Know Your Rights: When Can You Be Legally Detained and Searched By Police?
Here’s the scenario:
It’s New Years Eve and you’re on your way to a party at your buddy’s house. You are amazed when you get there at the spread your buddy has prepared. He’s got wine, beer, liquor, whiskey…you name it.
By the time the night is over, you’ve had all you can drink in terms of alcohol. Asking you to walk a straight line would be an impossibility at this point. So, you decide that its time to go home.
You’re walking back home when all the sudden a police officer pulls up behind you and turns on the blue lights. “Don’t take another step,” the officer yells. You throw your hands in the air. “I didn’t do anything,” you shout in a panic. “I’m just walking home.”
The officer gets out of his car and approaches you. “I need to search you,” he says. Somehow you muster up the courage to ask, “why do you need to search me?” “I’ve done nothing wrong!!”
The officer replies by simply saying, “you just look like you’re up to no good.” Little did you know that only minutes before your encountering the officer, one of the banks near by had been robbed.
You have no idea whether this officer can search you or not. You’re scared, tired, and a bit buzzed. So, you go ahead and let the officer do it. He performs the search and finds some illegal marijuana in your pocket. “I totally forgot that was in there,” you think.
The officer places you under arrest for simple possession of marijuana and public intoxication and takes you to jail. On the way, you wonder….”could that officer really search me just because I ‘looked like I was up to no good’?”
Thus the question is: When can you be legally detained and searched by law enforcement?
This question is all about the Fourth Amendment and its protection against unreasonable searches and seizures.
The Fourth Amendment provides that all people should be free in their persons from unreasonable searches and seizures.
A “search” can be defined as a governmental intrusion into an area where a person has a reasonable and justifiable expectation of privacy.
A “seizure” can be defined as the exercise of control by the government over a person or thing.
So, as a general starting point, an officer can seize and search you or your things only if doing so is “reasonable” under the circumstances.
What is “reasonable” is generally determined on a case-by-case basis and after a consideration of the “totality of the circumstances.”
With all that in mind, lets discuss the seizure.
A “seizure” occurs when a “reasonable person would feel that he/she was not free to decline the officer’s requests or otherwise terminate the encounter.” Usually this requires some physical application of force by the officer or a submission to the officer’s show of force. Merely asking or ordering you to stop usually wont be considered a seizure. On the other hand, in Tennessee, the second an officer turns on his/her blue lights, a seizure has occurred.
There are two very important types of seizures: Arrests and Investigatory Stops
Arrests: To be reasonable, an arrest must be based on probable cause. In other words, at the time of the arrest, the officer must possess reasonably trustworthy facts and circumstances sufficient to warrant a reasonable person to believe that the suspect has committed or is committing a crime.
Contrary to popular belief, however, police generally don’t have to get a warrant before arresting a person in a public place, even if they have the time to do so.
The general rules are: A police officer may arrest a suspect without a warrant and charge him/her with a felony as long as the officer has probable cause to believe the person committed the felony or is about to. A police officer may arrest a suspect without a warrant and charge him/her with a misdemeanor as long as the misdemeanor was committed in the officer’s presence.
For any other situation, or for arrests being made in the suspects home (that aren’t emergencies) police officers will need to get a warrant.
Investigatory Stops: This would apply to the fact pattern above. Police have the authority to briefly detain a person for investigative purposes even if they lack probable cause to make an arrest. To make such a stop, police must have reasonable suspicion supported by articulable facts of criminal activity or involvement in a completed crime.
For a stop of this nature to be valid, police must act in a diligent and reasonable manner in confirming or dispelling their suspicions. Essentially, they can’t detain you any longer than necessary UNLESS probable cause develops during the stop.
But what about searches? When can police officers search you or your property?
Unlike seizures, police officers MUST have a warrant to search you or your property UNLESS one of the following exceptions apply:
- Search Incident To Lawful Arrest: The police may conduct a warrantless search incident to an arrest as long as it was made on probable cause. The officer may search your “wingspan” (i.e. you and any areas into which you might be able to reach to obtain weapons or destroy evidence). Officers can also make a protective sweep of the area beyond your wingspan if they believe accomplices may be present. Police may search your vehicle (or one in which you were a passenger) if you are unsecured and able to gain access to the interior of the vehicle OR they reasonably believe that evidence of the offense for which you are being arrested may be found in the vehicle.
- Automobile Exception: If police have probable cause to believe that a vehicle contains contraband, instrumentalities, or other evidence of a crime, they may search your vehicle without a warrant. If police have full probable cause to search a vehicle, they can search the entire vehicle (including the trunk) and all containers within the vehicle that might contain the “object” for which they are searching.
- Plain View: Police may make a warrantless search when they: (i) are legitimately on the premises, (ii) discover evidence of a crime, or contraband, (iii) see such evidence in plain view, and (iv) have probable cause to believe that the item is evidence, contraband, or instrumentality of a crime.
- Consent: Police may conduct a valid warrantless search if they have received a knowing and voluntary consent to search by someone with the authority to provide it (i.e. any person with an apparent equal right to use or occupy the property).
- Stop and Frisk: During a valid investigatory stop, a police officer may conduct a “protective frisk” if he/she reasonably believes that the suspect may be armed and presently dangerous. During the frisk, the officer may reach into the suspect’s clothing and seize any item that the officer reasonably believes, based on its plain feel, is a weapon or contraband.
- Hot Pursuit, Evanescent Evidence, and Other Emergencies: Police officers in hot pursuit of a fleeing felon may make a warrantless search and seizure. They may also seize evidence likely to disappear before a warrant can be obtained. Finally, they may conduct a warrantless search during emergencies that threaten health or safety if said emergencies require immediate action.
- Administrative Searches: Administrative searches, inventory searches and the like may be conducted without a warrant.
So, going back to our fact pattern above:
The stop by the officer is most likely invalid (although keep in mind that I am a criminal defense attorney at heart). If the officer stopped you only because “you looked like you were up to no good,” that’s not good enough.
Remember, the officer above was attempting to conduct an “investigatory stop.” This means that the officer must have reasonable suspicion supported by articulable facts of criminal activity or involvement in a completed crime.
Now, if you happen to fit the description of the bank robber, that’s a different story. If you look like a duck, walk like a duck, and are in an area where ducks hang out, then a police officer can most likely detain you to figure out if you’re a duck.
So my argument is that the investigatory stop is invalid. But the officer went ahead and arrested you anyways. What happens now?
Well, just because an arrest or investigatory stop is invalid, doesn’t mean that you can’t be prosecuted.
The Fourth Amendment has what courts call the “exclusionary rule.” Under the Fourth Amendment’s exclusionary rule, if the seizure or search was invalid, then any evidence found as a result of the invalid search or seizure is not admissible into evidence (with some exceptions).
This means that at your jury trial (should you decide to request one), the DA could not present evidence of the marijuana or public drunk charges to the jury. They would be excluded.
So there you have it. The general basics of when a police officer can seize and search you or your property. Keep in mind, however, that there are always other considerations that could come into play. This post just provides a general summary of searches and seizures.
Good Legal Health.
The Juris Doctor