The Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” In determining whether a particular governmental action violates this provision, you must inquire first whether the action was regarded as an unlawful search or seizure under the common law when the amendment was framed. See Wilson v. Arkansas, 514 U.S. 927, 931 (1995 ; California v. Hodari D. 499 U.S. 621,624 (1991) If the above test yields no answer you must evaluate the search or seizure under traditional standards of reasonableness by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.
“If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” United States v. Ross, 456 U.S. 798, 806 (1982)
Stop and Frisk
Under Terry v. Ohio 392 U.S. 1 (1968), law enforcement officers are permitted to conduct a limited warrantless search on a level of suspicion less than probable cause under certain circumstances. In Terry, the Supreme Court ruled that when a police officer witnesses “unusual conduct” that leads that officer to reasonably believe “that criminal activity may be afoot”, that the suspicious person has a weapon and that the person is presently dangerous to the officer or others, the officer may conduct a “pat-down search” (or “frisk”) to determine whether the person is carrying a weapon. To conduct a frisk, officers must be able to point to specific and articulatory facts which, taken together with rational inferences from those facts, reasonably warrant their actions. A vague hunch will not do. Such a search must be temporary and questioning must be limited to the purpose of the stop (e.g., officers who stop a person because they have reasonable suspicion to believe that the person was driving a stolen car, cannot, after confirming that it is not stolen, compel the person to answer questions about anything else, such as the possession of contraband
A seizure does not occur just because the government questions an individual in a public place. The exclusionary rule would not bar voluntary answers to such questions from being offered into evidence in a subsequent criminal prosecution. The person is not being seized if his freedom of movement is not restrained. The government may not detain an individual even momentarily without reasonable, objective grounds, with few exceptions. His refusal to listen or answer does not by itself furnish such grounds. A person is seized within the meaning of the Fourth Amendment only when, by means of physical force or show of authority, his freedom of movement is restrained and, in the circumstances surrounding the incident, a reasonable person would believe that he was not free to leave. As long as the police do not convey a message that compliance with their requests is required, the courts will usually consider the police contact to be a “citizen encounter” which falls outside the protections of the Fourth Amendment. If a person remains free to disregard questioning by the government, there has been no intrusion upon the person’s liberty or privacy under the Fourth Amendment — there has been no seizure
When a person is arrested and taken into police custody, they have been seized (e.g., a reasonable person who is handcuffed and placed in the back of a police car would not think they were free to leave). A person subjected to a routine traffic stop on the other hand, has been seized, but is not “arrested” because traffic stops are a relatively brief encounter and are more analogous to a Terry stop than to a formal arrest. A police officer does not have the authority to arrest someone for refusing to identify himself when he is not suspected of committing a crime, unless state law says otherwise. A search incidental to an arrest that is not permissible under state law does not violate the Fourth Amendment, if the arresting officer has probable cause.
One way courts enforce the Fourth Amendment is through the use of the exclusionary rule. The rule provides that evidence obtained through a violation of the Fourth Amendment is generally not admissible by the prosecution during the defendant’s criminal trial.
KNOW YOUR RIGHTS!
Central Michigan Student Lawyer, Todd Levitt has been representing CMU, MSU, U OF M, Northwood, Ferris & all college students for more than 18 years. Todd Levitt can be reached for a free consultation at 989-772-6000