Search and Seizure
The 4th Amendment to the Constitution provides, in part:
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 issued, but upon probable cause . . .
This important constitutional right means that police cannot arrest or search you without probable cause. Like any broad rule such as this, there are exceptions so vast as to give the rule virtually no meaning. More, and broader exceptions are carved out by the courts all the time, so your best advice is to keep your eye on this site for the latest changes to search and seizure law.
In Your Home:
Generally, the police cannot come into your home unless they have a warrant or someone in apparent authority gives consent, or allows them in, or they see a crime occurring inside, or they chase someone inside in “hot pursuit,” or there exists some “exigent circumstances” such as imminent danger to someone such that there is no time to seek a warrant. If the police have a warrant, they are coming in and the best thing for you to do is cooperate, stay out of their way, and obey their commands. The warrant may or may not be valid, but that’s a fight for another day, in the courts, not in the house, with the police. Nothing good EVER came from fighting with the police. All that gets you is a beat-down and more charges.
In Your Car:
Generally one has a lower expectation of privacy in an automobile than in the home. However, in order to stop a car, the police must have either witnessed a traffic violation or have some other “reasonable suspicion” that a crime has been, is being or is about to be committed. In a DUI, for example, the police may not stop you on a hunch that you are DUI, but if they see you stumble out of a bar at closing time, fumble with your keys, get behind the wheel and start off down the road, that may be enough to conduct an investigatory stop. At that point, you are under the obligation to follow their directions, but you do not have to consent to a search of your car or person or to answer their questions or perform their tests. Note: Passengers can be stopped just as much as the drivers, so while the passenger must follow lawful orders, they also do not have to consent to any searches.
Walking Around:
What do you do if the police approach you while you are on a sidewalk, or just walking around, minding your own business? Under the law, there are three levels of police contact: (1) level one encounter, which requires no amount of probable cause or suspicion but rather is just an officer approaching a person and asking them some questions. In a level one encounter, the person is free to leave, and the officer may not require the person to stay or answer any questions. If you do not want to speak to the police, ask, “am I free to leave?” If so, go ahead and leave. If not, the encounter has escalated to the next level, a (2) level two investigatory stop. This kind of stop requires the police to have a “reasonable suspicion” that a crime has occurred, is occurring, or is about to occur. A mere hunch, or bare suspicion, without articuable facts to support the suspicion is not enough to justify an investigatory stop. There exists in the law a vast number of cases which attempt to define what evidence is sufficient to justify this type of stop (known in the law as a “Terry Stop” after the United State Supreme Court decision in Terry v. Ohio. If, during this Terry Stop, the police uncover evidence sufficient to affect an (3) arrest, you will be taken into custody, handcuffed and transported to the jail and required to make bail to be released. To do so, the police must have probable cause, or a likelihood that a crime occurred and likelihood that you are the one that committed it. This is not the same as proof beyond a reasonable doubt, which the state must show in order to gain a conviction, but it is enough to hold you until you make bail. You may or may not be read your constitutional rights “You have the right to remain silent…” etc.). Either way, exercise your rights. Do not speak any more, except to request a lawyer. I repeat, do not speak ANY MORE, except to request a lawyer. Please see the section in this FAQ on “Police Questioning.”
A Word on Consent:
When the police do not have probable cause to conduct a search of your person, home, or automobile, the first thing they will do is ask you for consent. They will not tell you about your right to refuse consent, or your right to consult with an attorney prior to consenting to a search. To the contrary, they may not even wait for your answer. When the police ask for consent to search, or enter a home, the best response is a quick, short “no, thank you.” The police may not like this but legally there is little they can do. They may ask why you have declined consent, implying you have something to hide (whether you actually do or not), but you should stay firm and decline consent. They may threaten to go get a warrant or fetch drug-sniffing dogs, or something of that nature. If they do this, politely decline consent again and thank them for their time. You are under no obligation to explain your actions. Rather you should inquire whether you are free to leave. If you are, go on your way and have a nice day. If not, the police had better have a good reason why not. Again, it’s best not to argue or fight with the police on this point. That’s my job.
This has been a brief and by no means complete outline of the law of search and seizure. It is not intended to be a thorough examination of all aspects, but rather a simplified primer to help you in the most likely situations you may encounter. If you have any specific questions, please contact me and we shall set up our initial free consultation.