Archives : search and seizures

Was I lawfully stopped, searched and arrested?

This article will explain the general United States Constitutional principles that arise when ordinary citizens encounter police searches and seizures. Specifically, we will address issues associated with searches of persons by police and other governmental actors. While the following passage is meant to be a discussion of general principles of Constitutional Law, actual search and seizures laws vary from state to state. If you have been arrested and are reading this to determine if you have an issue for litigation, we urge you to consult an attorney and discuss you matter fully with them. Nothing in this article is meant to be advice about any specific or individual case.

Police Must Follow Search and Seizure Procedures

Contrary to what’s seen on television, police may not simply approach people and search their person unless one of the following situations apply:

1) Arrests: An arrest occurs when the police take a person into custody against her will for purposes of criminal prosecution or interrogation. An arrest must be based on probable cause. Probable cause to arrest is present when at the time of the arrest, the officer has within her knowledge reasonably trustworthy facts and circumstances sufficient to warrant a reasonably prudent person to believe that the suspect has committed or is committing a crime.

When police affect an arrest, they may perform what’s known as a “search incident to a lawful arrest” which is defined as:

• Whenever there is a lawful arrest of a suspect, the police may, contemporaneous with that arrest, search within the geographic “reach area” of the suspect, specifically including his pockets or any bags or parcels she is carrying.
• If the suspect is arrested in a dwelling, the police may generally not search outside the room the suspect is located in.
• Note that if the arrest turns out to be unlawful, the search is unlawful as well.

Please also note the special rule for automobiles:  When a suspect is lawfully arrested within a vehicle, the police may search that person and within the passenger compartment of that vehicle (excluding the trunk).  This includes any parcels or bags within the passenger compartment of the car.

2) Stop and Frisk: The police may also conduct a less intrusive search, known as a “stop and frisk.”  While a full arrest as described above must be supported by “probable cause”, a stop and frisk only requires “reasonable suspicion”:

• “Stop“:The Court has not specifically defined “reasonable suspicion.”  It requires something more than a vague suspicion (e.g. it is not enough that the detainee was in a crime filled area), but full probable cause is not required.  Whether the standard is met is judged under the totality of the circumstances.Example: Reasonable suspicion justifying a stop is present when (i) a suspect who is standing on a corner in a high crime area (ii) flees after noticing the presence of police.  Neither factor standing alone is enough to justify a stop, but together they are sufficiently suspicious.
• “Frisk“:  If the police reasonably suspect that the person is armed after stopping them, the police may conduct a limited pat-down of the suspect’s outer clothing to search for weapons. If a weapon or other contraband is discovered during the course of that pat-down, it may be admissible depending on how much it felt like the contraband the officer thought it was.
  • The inquiry in this situation is “how much of a weapon/contraband did the object feel like through the suspects clothing.”Example: Police notice Sean in a drug neighborhood pacing on a corner.  During the frisk, the officer feels a small metal rectangular box, which he opens, and determines that it contains crack cocaine.  There is a strong argument, based on US Constitutional law that the officer could not possibly determine that the item was crack by feeling a rectangular box through the suspect’s clothing.

The above are guidelines to inform people of the rights guaranteed them by the Constitution.  There are many other protections against unreasonable law enforcement actions guaranteed by the Constitution and state and federal laws, and you should educate yourself fully.  If you were stopped by a police officer and their conduct was not within the terms discussed in this article, please contact an attorney immediately; your liberty may depend upon it.