SCOTUS Holds a Right to Privacy in Cell Phones: Police May Not Search Cell Phone Data as a Search Incident to Arrest

Cell Phone

Lansing Michigan Fourth Amendment Attorney

In a rare 9-0 decision last week, the Supreme Court of the United States held that police may not search cell phone data as a search incident to arrest. Instead, the Court held that police must generally obtain a warrant if they want to search an arrestee’s phone. That is a big victory for the Fourth Amendment as Constitutional and privacy advocates rejoiced.

Riley v California and California v Wurie

The Court combined two companion cases for the purpose of deciding the issue of whether searching through cell phone data was a valid search incident to arrest. The two cases were Riley v Californian and California v Wurie. In Riley, the defendant was arrested after a traffic violation led to a weapons charge. Officers searched Riley’s cell phone and repeatedly saw term associated with street gangs. Based upon information they found and after further analysis of the cell phone’s content, Riley was charged with a shooting and faced an enhanced sentence based on gang membership. The trial court denied Riley’s motion to suppress and the California Court of Appeal affirmed the trial court’s decision.

In California v Wurie, the defendant was arrested after police observed a drug transaction in a car. At the police station, police noticed an incoming call on Wurie’s phone from “my house.” They accessed his call log and traced the number to Wurie’s residence. Police obtained a search warrant and found drugs, guns, ammunition, and cash. The trial court denied defendant’s motion to suppress. The First Circuit reversed the denial, suppressed the evidence, and vacated the conviction. Certiorari was granted by the Supreme Court in both cases.

Fourth Amendment Warrant Requirement

The Fourth Amendment grants a right to privacy in our homes, papers, and effects by restricting the government from performing unreasonable searches and seizures. A warrant, supported by probable cause, is generally required for a search. However, there are numerous exceptions to the search warrant requirement that have been enumerated by the Supreme Court over the years. One of those warrant exceptions is a search incident to arrest. When placed under arrest, the police may search your clothes and artifacts in order to protect the police from anything harmful the arrestee may have and to prevent the destruction of evidence. Also, the police will often keep an inventory of everything recovered in order to protect the department from civil suits from defendants who may claim the police lost, stole, or damaged their property.

Balancing Test—Privacy vs Governmental Interest

The search incident to arrest is limited to the area immediately within the arrestee’s control. Such a warrantless search is justified by balancing the interests in the officer’s safety versus the legitimate governmental interests. The governmental interest being the aforementioned safety of the officer and to prevent the destruction of evidence.

SCOTUS: Cell Phones are Unique and Different from Most Physical Objects

The Supreme Court correctly recognized that cell phones are unique and vastly different than most physical objects that may be recovered on an arrestee’s person. Cell phones are essentially minicomputers that also operate as a phone. They contain tons of pages of text, information, pictures, videos, etc. due to their high storage capacity. Cell phones keep records of nearly every aspect of our lives.

The justices noted that digital data cannot be used as a weapon against the police or to help the arrestee escape. The police can certainly examine the physical aspect of the phone to ensure that it will not be used as a weapon, but not the digital information. The justices did not agree with any of the government’s arguments.

The government argued that searching a phone could protect the officer’s safety by looking for warnings that the arrestee’s confederates were coming to the scene. SCOTUS held that this type of argument is best left to a case-by-case basis under an exigent circumstances analysis. The government further argued that cell phones are susceptible to remote wiping and data encryption, so searching through them will preserve any evidence that may be lost or destroyed. The justices stated that not only was this broad concern not proven to be prevalent, but that having the police search through the phone would be an adequate solution.

Cell Phone Data is not Subject to Search Incident to Arrest

The Supreme Court refused to form a hybrid rule, or compromise, offered by the government. The government proposed that the Court could limit the holding so that police officers could only search phone data for relevant information pertaining to the crime the defendant was arrested for. The Court declined this as well. Instead, the Supreme Court stood firm on the principles of the Fourth Amendment and held that we the people have a right to privacy in our cell phone data. The police cannot search through your phone simply because you are arrested. If they believe the phone contains relevant information of a crime, they will need to cite probable cause to a judge or magistrate and get a warrant. As it should be. Our founding fathers would be proud.

Lansing Michigan Criminal Defense Attorney

If you are facing criminal charges and believe your Fourth Amendment rights have been violated or you are the victim of an unreasonable search and seizure, call Austin Legal Services, PLC today at (517) 614-1983 to speak to a Michigan Fourth Amendment lawyer for a free consultation!

Defending criminal charges, Fourth Amendment, and other Constitutional rights throughout Michigan in the counties of Ingham, Eaton, Livingston, Jackson, Clinton, Kent, Calhoun, Kalamazoo in the cities of Lansing, East Lansing, Mason, Brighton, Howell, Jackson, Kalamazoo, Battle Creek, Charlotte, St. Johns, Grand Rapids.

Supreme Court Allows Traffic Stops and Search of Vehicles Based on Uncorroborated Anonymous Call

SCOTUS

Lansing Michigan Criminal Defense Attorney

Last month in the case of Navarette v California[i], SCOTUS (Supreme Court of the United States) held that the police can pull your car over based on an anonymous tip without any independent corroboration by the police that the driver or occupants of the car are engaging in illegal activity. While it is too early to see the full effects of this decision, I can clearly see this being used as a license to harass a motorist by someone who has a grudge against said motorist.

For example, if you know the make, model, and license plate of someone’s car and know the direction they are traveling, you can call in to every police station and patrol post on the way and accuse them of erratic driving and have them pulled over and detained. Possibly searched. At least, according to the majority opinion in Navarette. This is a frightening decision for those who are concerned about civil liberties.

Facts of the Case

In Navarette, someone called 911 to state that a truck had just run her off the road. The caller gave the color and make, model, and license plate of the truck and the direction of where the truck was traveling on a particular road. Police officers located this vehicle, followed it for five minutes and after witnessing no erratic driving or any other violation of the motor vehicle code, initiated a traffic stop. After approaching the vehicle and detecting an odor of marijuana, the officers searched the truck and located 30 pounds of marijuana. Charged with a serious felony of manufacturing and delivering marijuana, the defendants moved to suppress the evidence citing that the police had no reasonable suspicion that the occupants of the vehicle were doing anything illegal and an anonymous phone call[ii] to the police, absent any independent corroboration, is insufficient and does not give the police reasonable suspicion to stop the vehicle. The trial court denied the motion and the Court of Appeals upheld the decision. The Supreme Court refused to hear the case so defendants appealed to the United States Supreme Court.

Case Law on Fourth Amendment, Traffic Stops, and Anonymous Tips

The Fourth Amendment allows brief investigative stops (traffic stops) when there is a “particularized objective basis for suspecting the particular person of criminal activity.”[iii] Reasonable suspicion necessary to justify a stop “is dependent upon both content of information possessed by the police and its degree of reliability.”[iv] This standard takes into account the “totality of the circumstances”—the whole picture.[v] Although a mere “hunch” does not create “reasonable suspicion[vi], the level of suspicion that is required is “considerably less than proof of wrongdoing by a preponderance of the evidence and obviously less than is required for probable cause.[vii]

Anonymous Tip Cases

Before Navarette, the two main anonymous tip cases were Alabama v White[viii] and Florida v JL[ix]. In White, the police received a tip that a woman would drive from a particular apartment building to a particular motel in a brown Plymouth station wagon with a broken tail light transporting cocaine. Officers observed just what the caller had indicated, stopped the vehicle, and found cocaine. The Court reasoned in this case that the specific information coupled with the police corroboration, equaled reasonable suspicion of criminal activity. The tipster demonstrated a specific familiarity with the acts of the accused which made it reliable. In JL, police received a tip that a black male with a plaid shirt at a bus stop was carrying a gun. The caller provided no further explanation of how he knew this information nor offered any predictions of the accused’s future behavior. The Court reasoned that there was no reasonable suspicion in this case because the tip wasn’t specific enough and too barebones to be reliable.

Applying White and JL to Navarette

The five justice majority (consisting of justices Thomas, Roberts, Alito, Kennedy, and Breyer) relied on the specificity of the tip (vehicle description and location) and the specific behavior the vehicle allegedly engaged in. Combining that with the assumption (based on the call) that the driver of the truck was intoxicated and the public policy to protect motorists and pedestrians from drunk drivers, held that this gave the officers reasonable suspicion to stop the vehicle. The caller would be dissuaded from making false or fake phone calls due to the tracking information the 911 call centers possess. The five-minute observation period was meaningless because 1) the officers already had reasonable suspicion based on the tip and 2) an intoxicated driver noticing police in his rearview mirror would undoubtedly drive more cautious and conform his driving to normal safety standards.

Justice Scalia’s Scathing Dissent

Justice Scalia, almost always siding with the conservative wing of the court, found himself siding with the liberal wing and authored the minority opinion. He notes that an anonymous tip normally needs to be corroborated and while the police had no reason to credit the tip, they had many reasons to doubt it. They didn’t know the tipster’s name or even the location from where she was calling. The fact that the tip was anonymous is suspicious by itself. Wouldn’t a victim of a crime want to identify themselves so they can later testify or further aid the police? “[E]liminating accountability… is ordinarily the very purpose of anonymity.”[x] The unnamed tipster “can lie with impunity.”[xi]

In White, the caller predicted the target’s behavior in such fine detail that it could only have been known by someone familiar with the target’s business as very few people would have such intimate knowledge. In Navarette, the knowledge provided by the caller was generally available. Anyone on the same road that day would have been able to identify the color, make and model of the car, license plate, and direction of travel. The issue, after all, is not how she knew the information she claimed to know, but whether or not what she claimed to know was true.

Nothing from the tip asserted or even suggested the driver was intoxicated. At most, it conveyed that the truck did something atypical. The truck could have been swerving for a number of reasons other than intoxication—distracted by an unruly child, avoiding a pothole, animal, or pedestrian, cell phone distraction… The fact that the police followed the truck for five minutes and did nothing wrong in the time period was enough to dispel any belief (however weak) that the driver was drunk or continuing to engage in any unlawful behavior. Reasonable suspicion requires an ongoing crime. Driving while being a reckless or careless person is not ongoing like drunk driving.

Conclusion

SCOTUS has opened up a whole new wave for police stops. If a caller describes your car, traveling location, and accuses you of erratic driving, the police can stop your car and detain you. I do not think for a moment that this is what the Framers had envisioned when they drafted the Fourth Amendment. It strikes at the very heart of what the Bill of Rights and Fourth Amendment stands for. Like I stated earlier, this just gives license for people to have the police continually harass someone they have ought against. This ruling empowers the police and strips away at the very core freedom the Constitution seeks to protect—the right to be left alone from unwarranted government intrusion. The potential horror that this decision seeks to bring about will soon be unleashed.

 

Austin Legal Services, PLC is a Michigan criminal defense law firm protecting the rights of those accused of a crime. We defend weapons charges, drug crimes, DUI/OWI, sex crimes, assault crimes, and theft crimes throughout Michigan in the counties of Ingham, Eaton, Clinton, Gratiot, Jackson, Shiawassee, Livingston, Washtenaw, Kent, Calhoun, in the cities of Lansing, East Lansing, Mason, Jackson, Brighton, Howell, St. Johns, Ithaca, Battle Creek, Grand Rapids, Charlotte, Ann Arbor.

Call us today at (517) 614-1983 to speak to a Michigan criminal defense attorney for a free consultation.

 

 

[i] 572 US _____ (2014)

[ii] The record was clear that the caller did give her name when calling in, but this information was neither preserved nor given to the officers responding. Subsequently, the caller’s identification was lost and was treated as an “anonymous tip” since the police that pulled the car over never was given the caller’s name nor were they aware that the caller had left her name at the time they initiated the traffic stop.

[iii] US v Cortez, 449 US 411, 417-418 (1981); Terry v Ohio, 392 US 1, 21-22 (1968).

[iv] Alabama v White, 496 US 325, 330 (1990).

[v] Cortez, supra at 417.

[vi] Terry, supra at 27.

[vii] US v Sokolow, 490 US 1, 7 (1989).

[viii] 496 US 325 (1990)

[ix] 529 US 266 (2000)

[x] McIntyre v Ohio Elections Comm’n, 514 US 334, 385 (1995).

[xi] JL, supra at 275.

License Plate Readers

License Plate Readers

License plate readers have become a hot topic recently with many police departments investing in this new technology. Advocates in favor of these devices say that it will aid police in finding stolen vehicles and people with outstanding warrants while opponents believe it will lead to privacy violations, especially in the wake of the NSA revelations regarding phone monitoring. In recent years, police agencies have been using more technology such as red light cameras, speed cameras, and sidewalk cameras in order to enforce traffic laws, provide photographic evidence in case of a crime, and deterrence. However, many fear that computers taking over can only make it ripe for abuse.

 

License plate readers (LPRs) are typically mounted on patrol cars or stationary on a structure. LPRs are high speed cameras that use software to record passing license plates on cars. It extracts these numbers and cross checks them for various lists. If there is a match (for example, the plate number comes back as a reported stolen vehicle), the police can use that information alone to pull the vehicle over.

 

Grand Rapids, MI began using them earlier this year as well as Detroit, Lansing, and other Michigan cities. Some states have all but banned them. Maine requires that any date recorded from the LPRs must be destroyed within 21 days while Ohio requires that the information immediately be destroyed if there is no match. Recently, Representative Sam Singh from East Lansing began working on a bill that would require the information from LPRs be destroyed within 48 hours as well as banning pictures of the motorists.

 

Advocates of LPRs state that this is nothing more than a technological extension of the police doing random plate checks. Often times the police will randomly run a license plate while sitting behind a car at a stop light. If the check reveals that the plates are expired, the car is stolen, etc. then the police can pull the vehicle over. A few years ago the Sixth Circuit held that this practice was not an un-Constitutional invasion of privacy “as long as the officer had a right to be in a position to observe the defendant’s license plate, any such observation and corresponding use of the information on the plate does not violate the Fourth Amendment.”[1]

 

The reasoning is that license plates are displayed in public and therefore no one can claim privacy in that information. What they fail to realize (or rationalize) is that while the plate number itself may be public; the information that can be obtained from the plate number is not public. For now, that’s the law. At least the Supreme Court has held that the police cannot stop you just to check your identification or registration without reasonable suspicion that the driver is operating without a license or that the vehicle is not registered.[2]

 

What the future of LPRs and other computerized law enforcement tools is and what restraints and prohibitions legislatures decide to place on them remains to be seen. For now, they’re here to stay.


[1]    US v Ellison, 462 F3d 557 (6th Cir 2006)– a Michigan case

[2]    Delaware v Prouse, 440 US 648 (1979)

SCOTUS Holds Law Requring DNA Samples Upon Arrest Constitutional

0_0_0_0_250_187_csupload_58638701A couple of weeks ago in what Justice Alito called the “most important criminal procedure case that this Court has heard in decades,” the US Supreme Court held that a law requiring anyone arrested for a serious felony to submit to a DNA sample is not an unreasonable search under the Fourth Amendment.[1] This holding has sparked intense debate between those who believe such information is valuable and necessary in resolving unsolved crimes, while others see it as an impermissible intrusion of our person and civil liberties that is a precursor for further eroding of our Constitutional safeguards. So who is right? First, a little
background.
Alonzo Jay King was arrested in 2009 on a felony assault charge. Under the Maryland DNA Collection Act, he was forced to to submit to a cheek swab to obtain his DNA. This law, which is similar to what 25 other states have, takes the DNA samples and places them into CODIS (the Combined DNA Index System), a federal data base that law enforcement uses to link DNA samples to unsolved crimes. King ended up pleading guilty to a reduced misdemeanor. The authorities used his DNA to trace him to an unsolved rape case from 2003. His defense attorneys moved to suppress the DNA results but the trial court denied the motion and his conviction was appealed. The Maryland Court of Appeals overturned the conviction holding that police needed a warrant or at least a reason to suspect him of another crime before getting a DNA sample. That’s how the matter got before the nation’s highest court.
Justice Kennedy, writing for the narrow 5-4 majority, believes that DNA samples are akin to fingerprints (unique personal identifying marks) and a faster, more accurate, and less intrusive process. After all, if it helps solve crimes and take violent offenders off the streets, isn’t it worth it even if it may run a little afoul of the Fourth Amendment? Would the Founding Fathers who drafted the Bill of Rights approve of the ‘fingerprinting of the 21 Century?” I believe the answer to both questions is no.
The problem I have with the supporters of this ruling is that they are looking at it the wrong way. It doesn’t matter how many crimes this may help solve or how many bad people it takes off the street and puts behind bars. The question is is it Constitutional? If it isn’t, then no amount of positive results it may bring will justify it. After all, we could get criminals off the street merely by having the police do house checks (like they do in Japan). The police would be coming across any number of drug houses, meth labs, domestic assaults, wanted felons, and maybe even some missing children or the occasional kidnap victim. We don’t do these things because we have a Constitution that says otherwise. We need the Bill of Rights in order to keep the government in check and from running amuck abusing their power. The ends do not justify the means.
 
The other problem that I have with the case is that it didn’t draw any distinction nor set any boundaries. Is this rule of law limited to forced DNA sampling for only violent offenders, or can states pass laws requiring it for anyone arrested for any felony, or worse yet any crime? Where does it all end? The Court didn’t tell us. Perhaps over the next few years when more states add more intrusive DNA legislation we’ll get our answer. Justice Scalia in dissent with the liberal wing of the Court, called this a “suspicionless search.”
The majority erroneously analogized collecting DNA samples to a search incident to arrest and identification. Search Incidents to Arrest are for the safety of the police and jail population, i.e. to make sure that the arrestee doesn’t have any weapons or dangerous items that he may be bringing into the jail (and to protect police from claims of lost or damaged property). The identification claim is also bogus in that not only did they have sufficient information as to who King was, but the DNA sample was not completed until after his arraignment (three days after his arrest) and by the time the DNA sample was taken, collected, sent off for lab analysis and returned, several months had passed. Clearly they were searching King for evidence of a crime that a) was unknown at the time, and b) they did not have probable cause to believe he committed it. The ruling flies in the face of the very safeguards that the Fourth Amendment provides. Yes, it will aid in the solving of crimes, but it will also result in the government becoming more powerful and more intrusive which means we all lose more privacy. For these reasons the Court’s decision is wrong. The ends do not justify the means.
This is troubling as it is surprising since the Court had seemingly been swinging in the direction of protecting against unreasonable search and seizures the last couple of years.[2] Currently, the Michigan legislature has bills pending that would require anyone arrested for a felony to submit to DNA testing for the purposes of identification.[3]
What say you?

 

[1]    Maryland v King, 133 S Ct 1958 (2013)[2]    In US v Jones, 132 S Ct 945 (2012), the Court held that the police using a GPS device on a car to track a suspect was un-Constitutional. InFlorida v Jardines, 133 S Ct 1409 (2013), the Court held that if the police, without a warrant, bring a drug dog to your house that is a trespass. [3]    2013 MI SB 105, 106, and 107.

When the Police Pull You Over

0_0_0_0_250_167_csupload_54755647I SAW THE LIGHT—IN MY REAR VIEW MIRROR

A guide on what to do when the police pull you over.

Under What Circumstances Can the Police Pull Me Over?

The police need reasonable suspicion of criminal activity to pull you over. It is a very low standard. Simply going over the speed limit by one mile per hour is enough. Almost any traffic infraction will be enough to stop your vehicle.

What Should You Do When Pulled Over

When the police activate their lights, begin to slow down and look for a safe place to pull over. Put on your signal indicating where you are pulling over. If necessary, drive really slow until you reach a safe place or a well lit area.

Stay calm. Turn off your engine and turn on your interior car light if it is dark out. Keep your hands on the steering wheel. Make no sudden movements to grab your license or registration or any other sudden movements. Inform the officer of any movement you intend on making with your hands and make them slowly.

DO NOT get out of the car—that is considered an act of aggression! Wait with your hands on the wheel until the police come up to your window. Be prepared to show your license and registration and proof of insurance for the vehicle. Try not to act suspicious or nervous. Obey the officer’s instructions and be polite, even if the officer isn’t being nice to you in return. If the officer is being rude to you, ask for his name and badge number.

If the officer has given you a command that you believe to be unlawful, it is always better to obey the officer’s commands than risk injury or being charged with “resisting and obstructing.” You can always challenge the officer’s decisions and evidence later in court.

Do not give any incriminating statements to the police. If they ask you why they pulled you over, do not tell them anything incriminating. Simply tell them that you do not know or not sure. Be polite and do not have an attitude with them. Ordinarily traffic stops ar enot considered police custody which would trigger Miranda Warnings so you have to be careful about incriminating statements.

Police can order the driver and any passenger outside of the car for any reason—they don’t have to have one (it’s for officer’s safety).

Do I Have the Right to See the Radar Reading? No, you do not. A lot of police officers won’t show it to you if you ask because they don’t have to. Some might show you, but most usually will not.

Plain View

The police have the right to seize any illegal property or contraband that is in “plain view” as long as they have the legal right to be there. That includes obvious smells such as marijuana smoke or drugs in the car or open containers of alcohol. But the police cannot move or manipulate the evidence in order to uncover it.

Police can search the vehicle if they believe that there is a reasonable suspicion of weapons in thevehicle. But that search is limited to where weapons can be found and where the driver has access. Incriminating evidence that is obtained while lawfully searching the vehicle is admissible.

If they police do not have reasonable suspicion or probable cause to search your vehicle, they cannot lawfully do so without your permission. Do not let them bluff you by telling you that they will go get a warrant so you might as well let them search. There is an automobile exception to search warrants meaning that if the police have probable cause to search your vehicle then they never need a warrant because your car is likely to drive away.

The police can search anywhere in your car except the trunk. They may however search the trunk if the flop sea tis open from the inside. Trunk Exception—Police may search your trunk if they have probable cause that something illegal is in the trunk.

You may give the police permission to search your car but you don’t have to and that will not and cannot be used against you. The police can ask you but may not force you but they may trick you and they do not have to tell you that you can refuse. The scope of the search must be reasonable and you can revoke consent anytime during the search. Police may search objects in the vehicle if they have probable cause and they do not have to worry about if the driver or passenger is the owner of the objects.

Drug Dogs

Police can have drug dogs sniff around a stopped vehicle even if they have no reasonable suspicion to believe that drugs exist. If the drug dog indicates that drugs are present, that is enough probable cause for the police to start searching your car and your person and the car’s passengers for drugs.

Search Warrant Exceptions

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Lansing Michigan Criminal Defense Lawyer

SEARCH WARRANT EXCEPTIONS

When can the police conduct a search without a warrant?

Throughout the years, the courts have recognized and adopted numerous circumstances as to when either obtaining a warrant is unnecessary or unreasonable. These provide the exceptions as towhen the police can perform searches without first obtaining a warrant.

1. Consent – If you voluntarily consent to a police search, then you have no grounds to challenge the search. However, the consent must be freely and voluntarily given without any coercion or trickery on the part of the police. The police must either be wearing a police uniform or otherwise properly identifying themselves as a police officer. If the officer is undercover or in plain clothes and somehow tricks you or gets you to give“consent,” it is not a valid search.

Caveat: The police do not have to tell you that you have the right to refuse a consent search. There is no Miranda equivalent in the search and seizure area. As long as the police have made lawful contact with you, then they can ask you to consent to a search.

Can I Limit the Scope of the Search? Yes.You may consent to a search of one area and not another and that may not be used against you absent any other behavior that would establish probable cause.

Can I Revoke Consent During the Search? Yes.You may revoke consent at any time and this revocation cannot be used against you (unless your other actions are so suspicious that they amount to probable cause).

2. Plain View—If the officer is in a place he is lawfully permitted to be, any evidence that is in the officer’s “plain view” or plain sight may be confiscated. The officer must be able to immediately recognize what ever it is as something illegal without any further probing or questioning. This also applies to “plain smell.” In other words, if an officer after lawfully pulling your car over immediately recognizes an odor of marijuana and knows for sure from his experience that’s what the smell is, then the officer can seize the marijuana.

3. Search Incident to Arrest—After a lawful arrest has been made, a police officer may search the arrested suspect in order to protect themselves from any dangerous weapons the suspect may have on them. The officer may also perform such a search to protect evidence from being destroyed that the suspect may have on them as well.

ProtectiveSweeps—When being placed under arrest, the officer may search anywhere that is within reasonable reachof the suspect. For example, if the officer is arresting you in your home, the officer may search any desk or cupboard drawers that may be within reach of the suspect in order to search for any weapons that the suspect may try to get and harm the officer with.

4. Terry Stops—These stops are named after the procedure first used in the US Supreme Court case of Terry v Ohio (1968). If an officer after observing a suspect or suspects, believes that there is a “reasonable suspicion” that criminal activity is occurring or is about to occur, then the officer may perform what is called a “stop and frisk.”This is a patdown of the outer layer of clothing in order to check for weapons to ensure the officer’s safety before questioning the suspects. It is not a full scale search. The officer cannot reach inside the clothing or pockets unless they immediately recognize a weapon or contraband.

What is “reasonable suspicion?” We know that it’s more than a mere hunch or mere suspicion and distrust and it isn’tquite as high a standard as “probable cause.”Police and the courts look to what they call the “totality of the circumstances,” kind of the “big picture” approach to determine if reasonable suspicion exists. Police will look at all the circumstances combined together as a whole to determine if reasonable suspicion exists.

5. Automobile Exception—Automobiles are not given the same level of privacy as a home or dwelling is. Since cars are so readily mobile and have the ability to be long gone by the time a search warrant is obtained, cars can be searched when probable cause exists to search them. A Terry frisk can take place if reasonable suspicion for weapons exists. The police can search closed and even locked containers in the vehicleif they have probable cause to believe that contraband is in them. This includes footlockers, briefcase, purses, etc. The officer can also search the car’s passengers and their belongings if the contraband could reasonably becontained there.

Watch Out forTrickery—Don’t let the cops fool you by telling you to “consent or else I’ll get a warrant.” They don’t need to get a warrant if probable cause exists to search the vehicle and therefore they wouldn’t need your consent. If they try that you know they are just bluffing.

Pretext Stops—The police cannot use a routine traffic stop to launch an extensive criminal investigation when no probable cause exists.

6. Open Field—Open fields such as meadows, open waters, woods, and pastures may be searched without a warrant because the reasoning is that there is no expectation of privacy in such wide open areas.

Curtilage— This is the area immediately surrounding your home and there is an expectation of privacy in cartilage.Therefore, the police need to obtain a warrant to search your curtilage. Exactly how far does the cartilage extend to? It depends. It’s a case-by-case determination.While it’s not an exact way to determine curtilage,think of it as the area you mow.

7. Exigent Circumstances—AKA “Emergency Circumstances.” The police may make warrantless searches when the time it would take to get a warrant would jeopardize public safety or could lead to the imminent destruction of evidence.In other words, there just isn’t enough time to get a warrant without bad things happening.

a. Hot Pursuit—A police officer may continue to chase a fleeing suspect even into a place where such a search would be exempt but for a warrant, such as a home. It doesn’t necessarily have to be a “high speed” pursuit either just as long as a pursuit is taking place, i.e. think OJ and the “slow speed chase.”

b. Imminent Destruction of Evidence— If the police are in fear that evidence may be destroyed before obtaining a search warrant, the police may proceed without a warrant.

c. Public Safety—The police may seize and search someone without a warrant if they believe that the safety of the public is in jeopardy and no time remains to get a warrant. For example, if an officer hears screams for help coming from a house, the officer may enter without a warrant, or if the police believe that a suspect has a bomb the police may search him.

8. Border Searches—These entail searches at the US border or the equivalent (i.e. customs at an international airport). These searches maybe conducted without a warrant and without probable cause. They may also be conducted at random with absolutely no suspicion at all. However, overly intrusive searches such as strip searches and body cavity searches require reasonable suspicion. Some judicial circuits have held that electronic materials, such as laptops and blackberries, may be searched without suspicion.

Miscellaneous

 

Telephones—The police need a search warrant to tap your telephone because there is an expectation of a right to privacy for telephone calls.

Trash—No search warrant is required as long as the trash is set out for collection. If it is setting by the curbside for pick-up, then yes it’s fair game. If it’s on your back porch, then no the police may not search without a warrant.

Public Schools—Students have fewer rights than adults. Probable Cause is not needed to search students, their possessions, or their lockers. There just needs to be a reasonable basis and appropriate means which will be based on the age of the student and what is being sought form the search.

Drug Testing for Extra-CurricularActivities—Students who participate in extra-curricular activities may be searched and be required to submit to drug tests without reasonable suspicion or a warrant.

High Tech Devices to Search Homes—Hightech devices designed to monitor amounts of heat emanating from someone’s houseis an intrusive search and a warrant must be obtained to conduct such a search.Heat emissions do not count as “plain view.”

Private Security Guards—Security Guard sare not police officers and therefore are not subject to the same requirements as police officer so they may perform searches on patrons detained on suspicion of shoplifting. There may come a day in the near future when the courts rule otherwise, but not for now.

Probation—You are afforded less privacy protections and Constitutional safeguards when placed on probation. Sometime sthe conditions of probation call for random searches withoutthe necessity of probable cause.

If the police obtain evidence illegallydoes that mean that it cannot be used against me in court? Not necessarily.Ordinarily if evidence is obtained illegally (i.e. without a search warrant,beyond the scope of the search warrant, no probable cause), then the evidenceis suppressed and cannot be used against you under the doctrine that theevidence stems from the “fruit of the poisonous tree.” But, there is somethingcalled “inevitable discovery.” If the police would have discovered the evidenceeventually anyway, then the evidence can be used against you. In other words,if the police would have discovered the evidence eventually in a legal way,then it doesn’t matter that the method they obtained it was illegal because itwould have inevitably been discovered.