Daily we hear of new encroachments upon our civil liberties. The Fourth Amendment, which protects against unreasonable search and seizure, is under particular assault. From unconstitutional electronic surveillance of your emails and phone calls by the National Security Administration to illegal stop and frisks on the streets of New York, the 4th Amendment appears to be all but destroyed. However, few people actually understand what their rights are and are not under the 4th Amendment. This amendment will help provide you the essential practical knowledge and understanding of your rights and how to exercise them.
To understand how your civil liberties are being eroded, taken, and illegally violated, one must understand what the legal casework and Constitutional basis for those rights. Further, whether you agree or not with the current legal understanding of the right, you must understand how the courts currently interpret it. This series provides you the information on how the “courts” currently interpret the law and not how it theoretically should or should not be interpreted. Also, the 4th Amendment only protects an individual from violations by members of the government or the “state.” The 4th Amendment doesn’t extend to protecting an individual from being searched or seized by another private person.
The 4th Amendment states:
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 shall issue, but upon probable cause, supported by Oath of affirmation, and particularly describing the place to be searched, and the persons or things seized.
To begin, the 4th Amendment was designed to protect the people from the government and explicitly limited the powers of what the government can do. This amendment in the Bill of Rights was added as a result of the hard lessons learned suffering under unrestrained British searches and seizures of the colonists’ homes, belongings, and persons before and during the American Revolutionary War. The founding fathers realized correctly that if limits were not placed on the government, the very essence of privacy would be so eroded as to reduce all sense of true liberty and freedom. For this reason, the 4th Amendment is one of the most important the Bill of Rights conveys upon Americans.
The first clause of the 4th Amendment requires that ALL searches and seizure to be “reasonable” is perhaps most often misunderstood. The legal bar guiding all 4th Amendment action is that searches and seizures must be “reasonable” from the viewpoint of a “law enforcement officer.” The difference between the standard for reasonableness of a person and a trained law enforcement officer is often the cause of much public misunderstanding of the right. For example, many believe you must be under arrest to be detained, searched, and handcuffed. This is not true. An officer can temporarily detain, cuff, and “frisk” a suspect for weapons without an actual arrest in order to develop probable cause. Note that probable cause is NOT a primary requirement for an initial limited search and seizure, only reasonable suspicion is required. Specifically, to temporarily detain a person, an act known as a “Terry Stop,” only requires an officer to have reasonable suspicion crime is afoot and the person is involved. This is different than a voluntary encounter where the person has the ability to simply leave since a suspect is NOT free to go during a Terry Stop. Further, if the suspect tries to resist or flee, the officer is empowered to use whatever reasonable force is necessary to “seize” the suspect up to and including deadly force. Traffic stops are prime examples of Terry Stops. The suspect is not free to leave and the officer can use reasonable force to stop and if necessary arrest the suspect. However, this is still limited. If an officer is unable to further develop evidence to support “probable cause,” the officer must release the suspect.
To go further and “frisk” a person during a Terry Stop requires that the officer reasonably believes the suspect is “presently armed and dangerous.” This is considered an 4th Amendment search by the courts so it is limited in its scope. The search allows for a limited, but thorough pat down, specifically, for weapons. Should the search go beyond that, the officer has most likely violated your rights. Examples would include extensively and repeatedly searching one area, “manipulating” items with the fingers, and removing clothing (not including large bulky coats and similar outerwear). However, weapons can be concealed and can be very small. This gives officers cause to make a fairly detailed search of a suspect. Furthermore, if contraband is found during the search, it is admissible in court. For example, during a frisk, if the officer finds something that he “immediately recognizes” to be drugs, he can seize the drugs, place the suspect under arrest, and then conduct a full and detailed “search incident to arrest.” It is also worth noting that the courts have repeatedly affirmed that a suspect has no right to lie. If an officer asks whether you have a weapon on not, one would be best off to admit it up front or say nothing. For example, if an officer asks you specifically if you have a gun on your person and you lie, you could potentially be arrested even if you have a permit.
Terry frisks can extend to the immediate area the suspect is in and any items he or she has control over such as a briefcase, backpack, or purse. In the case of traffic stops, this could include the passenger cabin of a vehicle and any passengers if there is a reasonable suspicion that the suspect is presently armed and dangerous.
So how do you protect your privacy and leverage your 4th Amendment protections to the best of your ability? First, understand that officers can arrest you as soon as they have probably cause, which can be a fairly low bar if articulated properly. What this means for you is that you will not win the war of words with an officer on the street and certainly not win if you resist. Understand the law is overwhelming stacked in the favor of law enforcement officers and intentionally so for better or worse. If the arrest is improper, it will be through the courts that you will be able to air your grievances and seek remedy.
The next fundamental to understand is that if an officer asks permission to search, it is probably because they do not yet have the evidence to allow them to search. As such, politely say no. Most often, the request to search is done to develop both reasonable suspicion and probable cause as the officer is not limited by the 4th Amendment when conducting “consensual” searches. If you do give permission, you can at any time ask the officer to cease, just make sure you stay close enough to your belongings that you can articulate your intention if necessary. If the officer goes ahead and searches anyhow, he either already had enough cause or it was an illegal search. Either way, it will be ultimately for the courts to decide.
Outside of an arrest where you will be searched thoroughly, only items and areas readily accessible to the suspect can be searched during a Terry Stop. Respective of vehicles, this means that a locked glove box, locked container, and the trunk are off limits unless the officer finds enough evidence to warrant an arrest. If an arrest is made the vehicle will be impounded and inventoried, which in practice turns into a full detailed search of the entire vehicle. For SUVs, the area in the back of the vehicle is also off limits to being searched. However, the area must be covered up as any contraband in “plain view” is fair game. One would be wise to keep their insurance and registration information separate from any items that might be stored in a “locked” glove box since to retrieve them one must “unlock” the glove box making it open to a search. Respective of your person, one should password protect and encrypt any electronic media to include cell phones and laptops. If you carry a briefcase, make sure it can be locked. For ladies, placing a locked box in your purse for valuables is a viable option as well. What this does is removes the officer’s ability to articulate that he needed to search that area for weapons to ensure “officer safety.” If it is locked and then placed out of reach, it is not a threat and is not searchable beyond a cursory external inspection short of actual probable cause for arrest or you give consent.
Now that you understand the basic practical application of the first clause of the 4th Amendment, you are better able to stand up for your rights and recognize when a violation has occurred. Further, you should now be able to intuitively see why New York City’s “Stop and Frisk” policy violated your rights since it was “unreasonable” to stop a random person on the street that was neither suspected of being involved in a crime nor presently armed AND dangerous. Taking this further, one should heavily question the constitutionality of TSA searches of passengers for airline flights, which are now being expanded to all public transit. This doesn’t mean that all searches would be unconstitutional, just unreasonable ones where no reasonable suspicion someone is presently armed and dangerous exists. If challenged in court, the searches will not be likely to withstand strict constitutional scrutiny and should be struck down. However, in the meantime, the TSA justifies the searches through a complex and perverse web of legal interpretations and stalling by our elected leaders to put an end to the vile practice. TSA defenses for the searches have ranged from a person doesn’t have a right to travel and so voluntarily flies and must consent to a search to an extremely dangerous interpretation that suggests anyone at any time could “reasonably” be a terrorist with the intent to attack so everyone must be searched. The latter interpretation is patently chilling to the basic tenets the 4th Amendment was established to protect and would utterly destroy the notion of “reasonableness” that has been the legal bar when courts have decided on whether or not a search and seizure violated one’s rights.
In Part II on the 4th Amendment, the second clause will be examined and discuss how to protect your privacy at home. If you don’t understand “curtilage,” you definitely need to read the upcoming article.
By Guiles Hendrik