Articles Tagged with “search and seizure”

There comes a time in everyone’s life when you must admit that you are defeated. In the context of a police encounter it is important to know when that moment comes, and what to do. In order to illustrate when, and why it becomes necessary to admit possession, a hypothetical example will be given illustrating the consequences of failing to admit defeat. It is rarely advisable to admit knowingly possessing controlled substances, alcohol, or weapons. However, there are times where it is advisable to admit such possession to a police officers.

iStock_000005273638XSmall-300x200
The Situation

Donald is driving his car down the highway, when he is pulled over by a police officer for a broken taillight. Donald is nervous as he is in possession of half an ounce of marijuana and he knows his car smells like it. Fearing the worst, Donald stuffs the marijuana in his underwear hoping to hide it if the officer searches the car. The officer approaches the window and ask Donald for his License, and proof of insurance, the officer immediately smells the marijuana and now has probable cause to search the vehicle[1] without a warrant pursuant to “The Auto Exception” doctrine set forth in Carrol[2]. The officer then asks Donald if he has anything illegal in the car. Donald says no. The officer then asks Donald for consent to search the car, Donald says no. The police officer then asks Donald to step out of the car, places him in handcuffs, pats him down. During the pat down the officer misses the marijuana Donald has stashed on his person. The officer then leads Donald to the back of the patrol car and tells him he will begin to search his car for marijuana. Donald protest, but knows in his mind the officer will not find anything as he has hidden it on his person. The officer proceeds to search Donald’s car for marijuana, and ultimately finds a bit of marijuana on the floor of the vehicle that Donald had missed. Evidence secured, the officer returns to Donald and tells him he will be arrested for possession of marijuana[3]. Donald his distraught as he believed he had gotten all of it. The officer then asks Donald if he has any marijuana on him. Donald says no, believing the charge will get worse if he turns over the rest of the marijuana.

Today marks the 3rd anniversary of the landmark decision in Riley v California in which the Supreme Court unanimously held that a warrantless search and seizure of the digital contents of cell phones during an arrest is unconstitutional.

washington-dc-6-1235114-300x202
The Cases

The cases that eventually became the basis of the decision in Riley v. California[1] are interesting to say the least, and highlight why a Supreme Court decision on the matter was vital in settling the question of the constitutionality of these warrantless searches.

Terry v. Ohio[1]’s “narrow” ruling on the constitutionality of police stop and pat downs absent probable cause has opened up a whole new world of Supreme Court jurisprudence. The Court has sketched out the scope of these searches, seizures, and what remedies apply to constitutional violations resulting from them.

20170619_153435-300x175
Simple Scope Expansions for Vehicles

The Supreme Court quickly extended the principles of Terry from beat cops seeing suspicious behavior on the street, to police officers who see suspicious behavior on the road and in vehicles. Beginning with Pennsylvania v. Mimms[2], the Court allowed for officers to ask people to exit their vehicle and conduct a “Terry Frisk” when the officer has reasonable suspicion that the person is armed and dangerous.

The phrase “Stop and Frisk” has become a common feature of today’s political debate. The practice is often brought up in discussions of police tactics, court cases, and criminal justice. However, the average person has little awareness of the jurisprudence surrounding the practice. Unfortunately, people must be aware of what the practice actually is to properly safe guard their constitutional rights against abusive and unconstitutional police action.

iStock_000006746569XSmall-300x199
What is “Stop and Frisk”?

The phrase “Stop and Frisk” is a shortened way of describing two distinct government actions of a Terry stop, and a Terry frisk both of which arose out of the 1968 case of Terry v Ohio[1]. Terry v Ohio has proven to be one of the most important Supreme Court decisions in terms of the practical impact on the fourth amendment[2].  Terry outlined a new way of interpreting the meaning of the fourth amendment’s reasonableness and probable cause requirements in the context of a search and seizure.

iStock_000020746027_ExtraSmall.jpgIn December of 2013, a 54-year-old Texas woman was traveling back from spending the Christmas holiday with a family friend in Ciudad Juarez, Mexico when she was stopped by federal agents at the Cordova Bridge border crossing in El Paso, Texas. As the unnamed woman was passing through the checkpoint, a police drug dog allegedly alerted on her, prompting U.S. Customs and Border Protection agents to select her for additional screening. The woman was quickly stripped searched and forced to undergo several body cavity searches at the crossing checkpoint, but the agents failed to turn up absolutely any evidence of drugs.

Regardless of this fact, the agents were determined to find some evidence of drugs and proceeded to transport the woman, handcuffed and against her will, to the University Medical Center of El Paso. At the hospital, doctors subjected the woman to an observed bowel movement, an expensive total body CT scan and numerous body cavity probes in a desperate attempt to find some trace of drugs. However, after enduring over six hours of demeaning and highly invasive searches, the agents were forced to admit the woman had committed no crime and released her with no charges. However, to add insult to injury, the woman soon received a $5,000 bill from the hospital for the exams she was wrongly forced to undergo.

Continue reading

iStock_000009680929XSmall.jpgPolice officers cannot bring drug dogs onto a person’s property to search for evidence without first obtaining a warrant to conduct the search, according to a recent Supreme Court decision. Though this decision strengthens one’s fourth amendment protection against unreasonable searches, one should still know how officers could find a constitutional exception to the warrant requirement, allowing police to search the home. Even with a warrant or warrant-exception, the constitution places certain limitations upon the police’s search of a suspect’s home, which the police must not exceed.

A common way police are able to search the home without a warrant is through consent of the homeowner. Consent acts as an exception to both the probable cause and warrant requirements of a search, thus one must be aware that, when she consents to a search, she is relieving the police of their duty to follow constitutional safeguards against unreasonable searches. When requesting consent, the police are not obligated to tell the suspect he has the right to decline the police’s request. The police could even threaten the suspect in order to obtain consent, and such threats are lawful as long as the police can legally carry the threat out. For instance, a police officer could tell a homeowner if the homeowner doesn’t concede to a search, the officer may go to a magistrate judge to obtain a warrant for the search. However, if the threat to obtain consent is illegal for the police to follow through on, such as threatening to come back with drug dogs to conduct a warrantless search of the home, then the consent obtained would be invalid.

When a homeowner does decide to concede to a police search, he is able to limit the search to wherever he wants, such as conceding search of the living room, but not allowing search of the bedroom. The item or person the police are searching for can also limit the consent-based search. For example, if police get consent to search for an escaped prisoner, the police can only search where a person could be hiding like closets, but not drawers or small containers. However, if police obtain consent to search for marijuana, then police have free reign to search virtually everywhere in the house where marijuana could be hidden. A police officer may also get consent to search your home from another person who jointly controls the living area. If the other person does not actually jointly control the living area, but a reasonable officer would have (in good faith) believed the other person had joint control, then an officer could still obtain valid consent (to search the home) from the other person. In the circumstance where one homeowner objects to a search but another homeowner agrees to the search, a officer would have to yield to the objecting homeowner, and could not conduct the search without a warrant or warrant-exception besides consent. If you are involved in a criminal case where search or seizure is an issue, it is imperative that you contact a criminal defense attorney who can ensure that the courts will fully respect your fourth amendment rights.