Concluding Searches and Seizures

To put a bit of a finish on our discussion of searches and seizures, let me define some of the situations where these terms do or do not apply.

A seizure is a police preclusion of your freedom of movement. But not all such preclusions are actually seizures. For example, a traffic stop is a detention not considered a full 4th Amendment seizure. An investigatory detention is not considered a seizure. Often this detention is accompanied by a search which is not considered a search and is referred to as a "Terry pat-down". This is a touching of the clothing to determine whether there are any potential weapons which could harm the officer.

At the airport you are subjected to a warrant-less search to get on an airplane. You may be subjected to additional pat-downs as well. Under a general greater good philosophy the courts have not found these searches to violate the 4th Amendment.

Returning to the traffic stop, once the reason for the stop is completed any further detention may well become an unreasonable seizure. The Supreme Court has held that being required to wait for a drug dog after a refusal to consent to a search is an unreasonable seizure. While talking about drug dogs, the courts have held that their sniffs are not searches, but if they "alert" then that is probable cause for the police to conduct a search.

The courts have been slow to keep up with technology and have probably not been abreast of current technology since Samuel F. B. Morse hooked up his telegraph wire to send a message from the Supreme Court chamber in the basement of the capital to a receiver in Baltimore, in 1844. But it is catching up and has determined that modern smart phones are more than just call making devices. The courts now require warrants to search such phones and you do not have to provide lock codes or other access information on demand by the officer.

Of course, the home is still the primary focus of 4th Amendment search protections. If the police arrive at your door to do a "knock and talk" you do not have to let them inside. If you let them inside that is considered a consent by the courts and you will have waived several arguments later.

As always these are your rights use them or lose them.

Clearing Some Misconceptions

Based on one comment in particular and some subsequent general impressions, I think it is important for me to clarify a few matters.

My postings here are about the practicalities and legal issues involved in criminal matters. Everything I have discussed has been based on real world events. I have not characterized these events as either good or bad acts by the law enforcement officers. But I am writing today to clear up that mis-conception.

Nothing that I have described a law enforcement officer doing, whether it is a local street cop or an FBI agent is illegal. These officers use the tools the courts have given them. These officers known and are taught how to get the most out of an individual. I do not fault them for doing what they are taught to do. That does not make them "bad cops". Some are more zealous in their duties than others, that is just life.

I responded to one poster, who attacked me personally in a most profane manner. I have not attacked any officer or agent in any post I have made, nor did I attack that poster in my direct response.

These posts are simple. They are an attempt for the general public, you the readers, to have some method of being aware of what is actually happening when you have a non-consensual encounter with the police.

I have always stated that you should be courteous and polite to the officer or agent. I continue to maintain that advice. I have at the same time advocated that you exercise your rights to your best interests. That you not be fooled by a friendly demeanor or consent when it is not legally required.

I welcome questions and comments which are constructive and advance the goals of these posts. However, I am engaged in an active legal practice and will only be able to answer as my busy schedule permits. Feel free to like the posts and the site. So, until next time.
As always these are your rights, use them or lose them.

Searches and Your Rights

Now that the turkey and dressing are a fading memory, if not our waistlines, let's return to the discussion of searches and your rights.

The exceptions discussed last time are matters over which you have no control. These are court made exemptions from the warrant requirement of the 4th Amendment. Most frequently encountered will be the "consent" exemption. As I have posted earlier any encounter with law enforcement is a legal matter not just a practical one. Which means, according to the Supreme Court, you must be thinking and speaking in a legal mindset not a routine conversation mindset.

A real world example helps illustrate this requirement. If you are the subject of a traffic stop for a minor violation and are told you are just getting a warning, then you should be on your guard for the coming questions. Once you are restored of your license, insurance and, if taken, your vehicle registration, then you are free to leave. The stop is concluded. Everything from this point on is voluntary on your part. If there are requests to "take a quick look" in your car, then say "No." This is a fishing expedition at this point. You cannot legally be detained while he waits for a dog to arrive, if you decline to consent.

Do not permit yourself to feel pressured or required to submit to these requests. Also as I have stated in earlier posts, do not fall for the "Nothing to hide" bait.

Finally, be polite and friendly in a business like manner. Be clear in your refusal to permit the "quick look". Advise the officer that it appears you are free to go and that is what you are doing.

As always, these are your rights, use them or lose them.

Happy Thanksgiving

Today, I want take time to wish each and every one of you a very special and joyous Thanksgiving day. No matter how meager it may seem, be thankful for what you have, for there are those who have much less.

Rights, Warrants, and Consent

Getting back on track in this series, we left off a couple of weeks ago about to discuss rights, warrants and consent.

To start this topic, which we will only brush the surface, consider where these rights are memorialized. I say memorialized intentionally because the founders believed these rights are inherent, that is we are born with them. They are memorialized in the 4th Amendment to the Constitution of the United States. Every state Constitution has its own version of this amendment. The Amendment states the every person has the right to be secure in their persons, places and effects against unreasonable searches and seizures. Further that no search nor seizure shall occur except by a warrant issued by a judge on a showing of probable cause particularly describing the place to be searched or the person or thing to be seized.

So the Constitution has very specifically defined how these rights are to be protected. You can read the actual Amendment and you will notice there are no exceptions to its requirements.

There is an anecdote I once heard that Justice Oliver Wendell Holmes was asked why there were no Supreme Court cases on the 4th Amendment. He supposedly stated that the Amendment was so direct in its pronouncement and so clear in its prohibitions that no such case were ever necessary. Today there tens if not hundreds of thousands of cases on the 4th Amendment.

Oddly, there is only one case which gets the bulk of criticism. That is the "exclusionary rule". This rule arose from the U.S. v. Weeks case in 1913 and was later found applicable to state cases in Mapp v. Ohio. This rule states succinctly, if the police illegally obtain the evidence then it is inadmissible in court against the accused. The criticism is that it may let the guilty escape conviction by keeping out evidence which could prove guilt. But the criticism is short sighted and misses the bigger issue. The critics would permit official illegal conduct to prevail against the citizen. If the government is to be the bearer of the mantle of justice then it must play by the same rules as it holds its citizens. When the government becomes the law breaker there must be some accountability and the Supreme Court in those cases found exclusion as the mechanism to do that. Unfortunately, since Mapp was decided in 1961 there has been a large scale retreat from its mandate and there have been several attempts to eliminate the rule altogether.

On the other hand, many cases have given the police greater lattitude to search and seize without consulting a magistrate or judge before doing so (the term police is used generically and includes all types of law enforcement agents state or federal) . Some such "exceptions" are the "automobile exception", "officer safety exception", exigent circumstances exception", "officer probable cause belief exception" and finally consent.

Yet, like the exclusionary rule, none of these exceptions appear in the Amendment. These are judge made exceptions. They expand the powers of the police in ways not envisioned nor permitted by the Constitution.

Of these exceptions the only one you as the citizen have at your disposal is consent. Because of its extensive use by the police, it is the one you are most likely to encounter if you have a police contact. However, it will probably be presented to you in a most casual manner, which disguises its intent and scope. Borrowing from the anti-drug use campaign, Just Say No. The most frequent application of the consent request is to motorists stopped for some trivial traffic violation. After being advised they are only getting a warning, the questioning shifts to the contents of the car or other vehicle. Whether there is anything illegal in the vehicle and can the officer "take a quick look". This search has nothing to do with the alleged traffic violation and every driver and passenger should Just Say No. At the point of being asked for consent you are legally free to go, as you should have already been given your license, registration and insurance documents back. Tell the officer to have a nice day and leave.

I say that, especially if you are innocent of any illegal activity. We do not live in a police state where we need permission to go about our normal lives. Do not take the bait that "if you have nothing to hide". That is a phony analogy. Ask the officer if you can come watch him and/or his wife bath, if they have nothing to hide. That hyperbole demonstrates the irrelevance of the "nothing to hide" bait, its not about hiding its about your rightful privacy and an invasion without cause by the police.

So, in summary, the police legally need a warrant according to the Constitution, can get by sometimes on one of the court made exceptions or get your consent. Never give up a right needlessly. These are your rights, use them or lose them. Be safe and be aware.