Oftentimes clients ask the following questions;
When the police searched me, was their search valid?
Were the police allowed to search me?
Did the police have the authority to search me?
Answer: It depends, this three part blog series will explore what types of searches are and are not valid.
The general rule is that a search without a valid warrant is unreasonable. Where there is no warrant it must be demonstrated that there was both probable cause and a valid exception.
Beneath are the recognized scenarios where law enforcement may conduct a warrantless search;
1) When incident to a lawful arrest,
2) Under the "plain view doctrine",
3) Based on voluntary consent,
4) Pursuant to a custodial inventory search,
5) Pursuant to statute,
6) When presented with exigent circumstances,
7) Automobile searches,
8) And stop and frisk searches.
The Constitution affords the most protection to homes. Much less protection is extended to motorists and individuals. This post is devoted to what is required to search an individual without a warrant.
Pursuant to the Terry v Ohio U.S. Supreme Court decision, a police officer has the authority to stop a suspect when he/she has reasonable suspicion that criminal activity is occurring. Basically, the officer must be able to describe the situation and explain his actions based upon his experience as a police officer. This pertains only to whether or not an officer can stop an individual who is walking down the street.
Whether or not the officer can search the individual is dependent upon the circumstances of the encounter. Although the person has been stopped based upon the officer's reasonable suspicion, the officer is limited in how he/she can search the individual's person. When the officer has reasonable suspicion that the person is armed and presently dangerous or is engaging in criminal conduct, they are entitled to search the individual. The frisk, as it's known, is limited to a search for weapons by patting down only the outer clothing of the person. During this search if an item is immediately recognized as contraband it may be seized pursuant to the "plain feel" exception. However, an officer cannot, for example, manipulate an objected suspected to be contraband through the clothes or remove that object in order to determine that it is indeed contraband.
Both the search and the stop must be reasonable. This is determined through an objective test, which means that if the behavior meets a certain threshold, it's reasonable. If not, the police behavior is unreasonable.
Courts have held the following -
1) It is not a violation of the Fourth Amendment for a cop to stop and question an individual on the street.
2) While a person's mere presence in a high crime area may not be enough to warrant a frisk, running from such an area is.
3) An officer's personal observation of criminal activity is not needed to form reasonable suspicion, it can be based on third party information.
4) Police officers cannot manipulate someone's carry-on luggage in order to determine its contents, whereas a canine sniff (properly limited in scope) is not a "search" as defined by law.
5) Police may question persons on public transportation.
What can be synthesized from this? The more that an officer see's that would give him or her reason to believe that a crime has been committed supports a greater intrusion into one's privacy. While a person in public may be inconvenienced or stopped by a police officer, with nothing more they cannot be patted down. Whereas somebody taking unprovoked flight from a crime scene can likely be submitted to at least a pat down search by law enforcement.
At Abdo Law we take the time to review police reports in order to make sure that law enforcement agents are following procedure. While some slip ups are harmless, certain constitutional violations may result in the suppression of harmful evidence or even a dismissal. The Fourth Amendment is often an issue in cases involving automobile stops or narcotics.
The Abdo Law Firm handles criminal cases regularly and always fights for the best possible outcome for our clients. For a free consultation with experienced counsel, call Abdo Law today at 586-412-5555.
Other segments in this series