1) When are Police legally allowed to search/seize me?
2) What is reasonable suspicion?
3) What ways can the Police legally conduct searches without a Search Warrant?
4) What is probable cause?
5) Are Police required to read me my rights?
6) Is refusing to let Police search me an admission of guilt?
The Fourth Amendment: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation and particularly describing the place to be searched and the person or things to be seized."
Brief Investigatory Stop/Frisks
The landmark decision in United States Supreme Court case, Terry v. Ohio, 392 U.S. 1 (1968), allows Police to make a brief investigatory "stop and frisk" of persons and to conduct pat downs (for Officer safety) of the outer clothing of persons for weapons. In these instances, the Police only need reasonable suspicion to believe the person has committed, is committing, or is about to commit a crime, and may be armed and dangerous. Reasonable suspicion is a low standard of proof and is used to determine whether a brief investigatory stop or search by Police is warranted. The Police's suspicion must be based on "specific and articulable facts", not just a mere hunch.
This ruling held that there is no violation of one's Fourth Amendment rights against unreasonable search and seizure because the "exclusionary rule" serves as protection against searches and seizures used in gathering evidence. The search and seizure noted in Terry is geared toward the prevention of crime and personal protection of Police Officers. The exclusionary rule holds that evidence collected in violation of one's constitutional rights cannot be used against them in a criminal prosecution.
If the Police obtains a Search Warrant, they can legally search your home or your property. The Police are able to obtain a Warrant if the following conditions are met:
1) a Judge must evaluate the Affidavit to determine that probable cause (criminal activity is occurring at the place to be searched or that evidence of a crime may be found there) exists based on either direct information (a Police Officer's own observations) or hearsay information (an Informant or Anonymous Caller's observations). If the information is hearsay meaning not based on the Police Officer's own observations, then the Judge must evaluate the information to determine the "veracity" and "basis of knowledge" of the Informer;
2) describe with particularity, the place to be searched or the person or items to be seized and be signed and sworn to under oath;
3) signed by a detached and neutral Magistrate or Judge.
Exceptions to the Warrant Requirement
1) Consent to Search - if the Police ask your permission to search you, your car, your belongings, or your home, and you freely consent to such search, then this warrantless search becomes legal. If the Police find anything illegal during this search, then that evidence can and will be used to bring charges against you.
2) Plain View - if Police are legitimately in a location and observe an illegal item in plain view, then they can seize that item and use it to prosecute you.
3) Search Incident to Arrest - if you are arrested for any reason the police can search you and the area within your reach (wingspan). If Police find contraband, then you also arrested on that charge as well.
4) Stop and Frisk - brief investigatory stops and frisks are valid (see information above).
5) Automobile Exception - because automobiles are highly mobile, Police don't need Search Warrants, however, they must have probable cause to believe the vehicle contains evidence of a crime, the instrumentalities of crime, contraband, or the fruits of a crime.
The Fifth Amendment (Self-Incrimination Clause): " ...No person... shall be compelled in any criminal case to be a witness against himself or be deprived of life liberty or property without due process of law..."
The Police don't have to read a person his or her Miranda Rights while performing an arrest. The time to read Miranda Rights come after: 1) a person is taken into custody, 2) the Police start to question the person about a crime, and 3) the information sought by Police is to be used against the person in court. If Police don't read a person his or her Miranda Rights and statements are made, your Attorney may have grounds to file a motion to suppress those statements and any evidence obtained as a result of those statements. If the motion is successful, then the entire case may be dismissed if the Police don't have any other evidence against you.
Refusing a Search by Police
If the Police ask your permission to search, they are only asking because they don't have enough "probable cause" to search without your consent. If Police had sufficient probable cause, they would not be asking your permission, but would immediately proceed with a search of you and/or your vehicle. If you refuse to be searched, this does not give Police reasonable suspicion or probable cause. This is the area where most people fall victim to not asserting their Fourth Amendment Rights. You do not have to consent to any kind of search. However, acting nervous and answering questions inconsistently can heighten the suspicions of Police. If charges are eventually brought against you, your failure to consent to a search does not equal additional charges. Your assertion of your Fourth Amendment rights is not a crime.
Caveat: This Blog is for information purposes only. Please contact an Attorney for information regarding your particular situation.
For a Free Consultation, please contact Tawanda Williams Law Office, PLLC at 901-206-8200.