Something that isn't taught in American schools, surprisingly, is your American right to exercise fundamental rights without government interference. My favorite is the 4th Amendment right against unreasonable search and seizure without a warrant and probable cause. This is a right that puts citizens on equal playing field with the government. As such, the government rarely institute the teaching of this right, no matter how fundamental it is.
I spent 3 weeks in law school and one summer internship to master the 4th Amendment. I'll do my best to briefly summarize it in this post.
The 4th Amendment states in part that, "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..." This Amendment says that the government cannot unreasonably seize or search a person, their home, papers, and effects (which means communication including mail and telephone) without a warrant and probable cause.
When and what is a seizure?
Even though many of you might not know it, you have probably been seized before. A person is seized when he/she does not feel free to walk away. The police can seized someone either by a show of force or physical restraint. By this definition, every traffic stop is a seizure! Certainly nobody feels free to walk away (or leave) when lights and sirens are coming from behind.
What is required for a seizure?
The Constitution says that no unreasonable search without a warrant and probable cause. This has been interpreted by the Supreme Court to mean that reasonable searches are okay. So what is a reasonable search?
In the famous case of Terry v. Ohio, the Supreme Court ruled that if the police has a reasonable suspicion that a crime is afoot or a reasonable suspicion that the suspect is armed and dangerous, the police can conduct a reasonable search. In that case, a police officer spotted some guys walking around and looking into store windows. The officer approached the suspects, flipped them around, and frisked them for weapons. When he discovered a gun, he arrested them. When it came time for trial, the defendants questioned whether the cop had a right to stop and search them without a warrant or probable cause. The Supreme Court ultimately allowed this search, deciding that the government's interest outweighed the defendant's individual privacy interest.
The Court was careful in applying this search. This search is limited to the pat down of the suspects outer clothing and can only last so long. This has been known as the Terry Search or the "Pat Down." This is the only known search allowed where the police does not have probable cause that a crime has been committed and no warrant is present.
Later, the Court applied the Terry Search to cars in Michigan v. Long and to homes in Maryland v. Buie. Over the years, the Supreme Court has expanded its interpretation of the 4th Amendment to say that an unreasonable search without a warrant can be allowed in limited circumstances. I won't elaborate on every exception (such as exigent circumstances, to preserve evidence, incident to an arrest, etc.), but I will talk about one exception called "consent."
The police can always search a person upon consent. Consent must be knowing, intelligent, and voluntary ("KIV"). Even though refusing consent cannot give rise to any probable cause, this is the number one reason why people consent to searches. For example, a police officer pulls you over for speeding, and you have a kilo of cocaine in the trunk (that you took from your drug-addict brother in an intervention). The officer says, "do you mind if I look in your trunk?" What do you say?
Most people feel that if you say no to the popo (pissed off police officer) that he'll think that you're hiding something, so they voluntarily give the police permission to search the trunk! Next time you watch COPS, pay attention to the people who voluntarily give consent to a search. The Court is clear that refusing to give consent, alone, is not enough for the police to get a warrant to search. So next time you have cocaine in your trunk, don't let the popo search it!
There are other exceptions such as the "plain-view" doctrine which says that if the police can see something in plain view (like through your car window), that it is okay for the police to use it as evidence.
What happens if the search is improper?
If the police violates your 4th Amendment right to obtain evidence, then that evidence cannot be used against you in the court of law. Criminal defense attorneys heavily rely on this defense to exclude harmful evidence. When I was in Michigan, East Lansing Police used to walk up and down sidewalks and ask people to take breathalyzers. Based on the results, people could get charged with a "Minor in Possession" of alcohol. Anyone who refuses to take the breathalyzer was charged a $100 fine. The Court eventually held that it was an unconstitutional search because (1) simply walking on a sidewalk cannot be enough reason to seize someone and (2) consent was not voluntary. As a result, the breathalyzer results couldn't be used to charge anyone with an MIP. No evidence, no crime.
*Please remember that refusing a breathalyzer if you are driving a car could result in your license being suspended. This is because you consented to this search when you got your license.*
I'm not sure what the lesson here is, except that you should never consent to a search of your trunk if you are hiding cocaine in there.
www.ArrowLawGroup.com | Attorneys at Law | Seattle, WA
thanks for these good tips and advice hahaha I thought that usually when the cop asks to check the trunk, they do have the right to check it. Only when searches of buildings and houses, they need warrants.ReplyDelete
if let's say someone was drunk driving, can the driver refuse to take any of the sobriety tests or the Breathalyzer? what ends up happening when they're taken to the cop office? through time, their BAC lowers doesn't it?
i'm very glad to have learned more deeper of the meaning of the 4th amendment :)
@ShareBear A breathalyzer is usually mandatory (you can lose your license by refusing). A field sobriety test is considered a search, and you can refuse it. Most defense attorneys advise clients to refuse field sobriety tests since it's not mandatory and only hurts them if they fail. At the same time, if they pass the field sobriety test, they might earn brownie points with the police. If you've been drinking, then it's probably a good idea to refuse a field sobriety test.ReplyDelete
This post is so interesting since my eighth grade year was dedicated to passing the "Constitution test." Thankfully, I passed; however, like you stated we, the citizens, weren't even informed about the seizures and searches. But I'm not too surprised since it IS the US.ReplyDelete
On the other hand, what about the upcoming issues about the Advanced Body Screenings in airports? How does that come into play? If I didn't want to be x-rayed but HAD to opt for a "pat down" is that a violation of my 4th amendment? Or did I give up that right when I bought my airplane tickets?
I'm just curious to know since I know that x-ray machines aren't good for you, especially babies, and there's no other way out if you get selected to do so. And yes, it had to do with the whole incident with the man in San Diego, or whatnot...I forgot where...it caught my attention because I was contemplating about it before it even occurred since I'll be traveling this season.
Sorry for the long comment/post.
This is SUCH a good post Minh!ReplyDelete
In one of my university classes just the other day we had a class day to talk about the 4th amendment and how it is so easy in different situations to simply wave your rights by being prompted by the police.
We watched this great video called "Flex Your Rights" by the ACLU:
Have you seen it before!?
It is a bit tacky and really funny, however it is such a real life problem and happens in SO many different scenarios.
I think it is crazy how the average student does not learn these things in their high school classes so that they can know how to be protected.
Currently, former Supreme Court Justice Sandra Day O'Connor is working to pass legislation that will require all high schools to include "Civics" as a class for part of their curriculum. Below I will leave a post of one of the article as well:
Hope I was maybe able to teach YOU something ;) haha
I guess this is why Jay Z says in that song something about him knowing his rights. Meaning, that the officer had to night to search his car. Thanks for the tip! I will feel so bad ass if I ever get stopped and say no officer you may not check my trunk! Lol. Thanks for sharing!ReplyDelete
Wow! This is definitely helpful. As a cellist, I'm constantly traveling around and often times, I have to go through airport security seizure since I travel with my big cello. I always feel violated in some way since it gets kind of old going through the same process of them "double-checking" me and my cello because they think I may hide drugs in it or something.ReplyDelete
There was also a case close to my home where there was an imposter police officer who was stopping random people on the road and once my friend was stopped. Luckily, she knew about the imposter and she got this gut feeling that something wasn't right and she drove away.
Thanks for the tip about the breathalizer as well!! :)
WRena Good point! Unfortunately, we haven't had anyone step up to challenge airport searches yet. Mostly because nobody wants to challenge our government in the name of "national security." Imagine if the x-ray machine reveals something like illegal drugs on a person. I think that's when we'll see some limitation on the airport searches. I'm traveling with Steph this holiday... it's sort of weird to know that somebody will be looking at my man-tool. But at the end of the day, it's hard to know how the courts will rule on this evasive x-ray search, they have to balance the government's interest with our individual dignity.ReplyDelete
@Rena Good point! Unfortunately, we haven't had anyone step up to challenge airport searches yet. Mostly because nobody wants to challenge our government in the name of "national security." Imagine if the x-ray machine reveals something like illegal drugs on a person. I think that's when we'll see some limitation on the airport searches. I'm traveling with Steph this holiday... it's sort of weird to know that somebody will be looking at my man-tool. But at the end of the day, it's hard to know how the courts will rule on this evasive x-ray search, they have to balance the government's interest with our individual dignity.ReplyDelete
Lol. I like your lesson in this blog. Yes, I will take note not to let anyone search my trunk or purse when I have illegal substance in it. This really made me think of my Management 200 class, which was basically intro to law (Specifically Washington State law). Your post was easier to understand than my TA. Ever thought of going into teaching when you retire? =DReplyDelete
The whole pat down topic, reminds me of this video I saw a while back on Youtube. Basically, a cop was patting down this guy. He stops and squeezes something then vocally ask, "what is this?". The person receiving the patdown, calmly states, "that's my penis". Talk about awkward. Moral? Don't wear your pants sagging down when you receive a patdown.
Does it apply to Border Patrol when they ask to pop your trunk open? My boyfriend and I drive to Toronto several of times throughout the year since we're in Buffalo and it's only a two hour drive to get some decent Viet and Chinese food. They always make a mess in the trunk and they don't care about ripping open the bags that we have food in. Would we get into a lot of trouble if we refuse?ReplyDelete
I was just curious since I've been searched before...and this was when I was in 8th grade...I was 5' 4", 105 lbs, obviously Asian...wearing sandals, shorts, and a tank...My school counselor got really angry since I got patted down...CRAAAAZY!
But yes, I'm just a little worried since I will be traveling with my baby and for someone who is taking x-ray classes, I know that there's a limit to radiation exposure.
hahah your example of the traffic stop -- genius! I never thought of it that way, but I certainly will never THINK of it as a seizure. It's more of a safety thing. :PReplyDelete
I know that when the police suspects there is crime going on in your house (marijuana grow-op, weapons, etc.), they have to do a lot of investigating and get a warrant before they can enter the home and seize the evidence.
Thanks for the lesson LOL I'll keep that in mind if I ever have cocaine in my trunk (which is never btw). : )
Hmm have you ever heard about people recording police officers doing illegal activities (like beating a homeless person or shooting someone randomly) and when the person recording is caught, they are ordered to delete the evidence? Are they allowed to do that? Isn't the person recording this allowed to keep the video or photos as evidence to use AGAINST the cop? Just because he's a cop, it doesn't mean you have to listen to him and remove this evidence from your phone/camera, right? I'm just interested in knowing what one should do, should this occur. Please write about that next! :D
xx The Little Dust Princess
Again, even though it's been for EVER since your last blog post this deffinately makes up for it. I just have one question. What about high schools doing locker, backpack, and purse checks? Is it different in that situation?ReplyDelete
But, thank you for the info!
Your awesome posts are so informative!ReplyDelete
So this also applies to California as well or is it only for Washington? It's great that we citizens do have rights that we don't really know about. But if you have nothing to hide then all is good. However, this advice is extremely useful for people who do have something to hide... ;) I understand it's an inconvenience or an annoyance for us but it's for our safety in the long run. I say this since I have a family member in law enforcement.
Great post! I learned a lot :D Im never gunna let the popos seach my stuff >;)just cause i canReplyDelete
When i was studying the amendments, your right, we only took about 30 seconds to cover this amendment, but i found it o interesting. it it a little tricky that the schools and govts do that kind of thing. haha thats not fair!! but i love the equality that it shows.ReplyDelete
I always thought you have to do what the police officers ask of you. I was pulled over once for speeding and all the highway patrol asked was my driver license and car registration. But if he had asked me to pop the trunk open, or get out of the car, i would have done it. What would happen if he asked me those things and i refused?? Would i get fined or charged for not following their order?ReplyDelete
thanks for replying back fast Minh! that clears up and makes me understand a lot more. I was always curious about being in that situation due to stories from friends LOL a friend of a friend was pulled over b/c of drunk driving and the kid ended up taking both the breathlyzer and field sobriety test. he got into more trouble for taking the field sobriety test and not passing :(ReplyDelete
Wow thanks for the tips and advice! I live in New York City and I see popo's all the time searching people. It used to make me free safe, like their protecting us. But after reading this it has made me understand the 4th Amendment clearer. I remember my brother telling me something about that now the police in nyc can search random people without there consent. I don't know if that's true or not but I think that's crazy! All I know is popo's better not be touching me! lolReplyDelete
Thanks for this!
This was very helpful to me because I didn't know much about this. Could you maybe do a post on privacy?ReplyDelete
I understand everyone's concern regarding the new airport securities. I however, do not personally have a problem with it. If it keeps me safe, why not. I can see someone's family member being hurt or even suffer fatal consequences from a terrorist attack or action and raising up a storm that the airport doesn't have enough security operations.ReplyDelete
I feel they are just doing what they have to do.
I'd love to know if the full body-scans they are now doing at airport security lines are in violation of anything from a legal standpoint. I love reading your blog because it makes me realize and understand things from a different perspective that I wouldn't have otherwise known.ReplyDelete
Wow, this was very interesting. Honestly, I didn't expect that many comments as I was redirected here from the DSK jewelry site and didn't think so many would be interested in law.ReplyDelete
I used to practice law too...corporate commercial and then litigation. I have since left to pursue other areas but anything legal still intrigues me :)
How interesting. If the popo ever asked to search me, I would feel obliged to give them my consent even if I had a donkeyload of marijuana with me., I keep thinking that some worse type of method would be used if I refused. Thanks for the info!ReplyDelete
I like this post, I'd have to say one of my favorites out of all the other post like Chapter 13 or the home for closure. I took American Law, Advanced American Law, and Criminal Justice in high school and learned a little about this. It was really interesting! Like one story my teacher told us was about this one dude who had loads of drugs, and they didnt have a warrant and while the cops came, and knock on the door, he didn't open because he was showering. So they knocked the door down, and arrested him but it was wrong because they didn't have the warrant! ha ha, so basically the evidenced they seized was useless. hehe, I like those kind of stories. Sometimes cops are just being big headed, but not all are like that and I do appreciate them everyday for keeping most of us safe out there. :) Looking forwards to your next post!ReplyDelete
Happy Thanksgiving, Minh! Have fun in Boston!ReplyDelete
Thanks for sharing Minh. I actually just finished taking a college class over this. It is good to see your pspective on it.ReplyDelete
You sound better than my political science teacher. :) This post really opened my eyes toward this amendment!ReplyDelete
Good points :) I hope to never be subjected to a search but it's very true they cannot just search w/o a warrant...it wouldn't be very humanizing. In any case, if you say "No", wouldn't the popo find a reason to arrest you? And then somehow obtain a warrant from the courts? :pReplyDelete
how do you feel about the threat of removing unemployment benefits. Is aw it on the news today. I think it'll affect bankruptcy and in turn it'll affect your business. It may be a positive thing for you. Just a thought. My dad's definitely affected. He's been laid off for 2-3 years now. It's rough but I understand that benefits need to be terminated eventually.ReplyDelete
How interesting I couldnt stop laughing at the cocaine in your trunk.ReplyDelete
Sometimes police officers do their job when they have evidence of some type of crime and decide to act. But in other overstep the bounds of their possibilities and take advantage of their authority.ReplyDelete
what made you decide to go into bankruptcy law?
these are rights that all american citizens should know of, because they can be the reason a person is innocent rather than guilty.ReplyDelete
This post was very helpful as everyone should be aware of their rights. What do u think would happen though if someone refused a search? Maybe they would be held for longer, taken to the station or more inconvenienced than they would if they agreed and went on their way (assuming they don't have anything to hide)? What do u think?ReplyDelete
haha I have to say I never knew what a popo meant. i knew it was a police officer but the pissed off police officer part made me laugh.ReplyDelete
These posts are very helpful and good to keep in mind. I haven't been pulled over yet *knocks on wood* and wouldn't have drugs on me but it's good to know our rights
BAHAHAHAH! This made me laugh out loud: "I'm not sure what the lesson here is, except that you should never consent to a search of your trunk if you are hiding cocaine in there."ReplyDelete
I'll try to remember that next time... haha jk! It's nice to hear that the POPO's are NOT always right!
Wow, this post is so informative! I will tell about it to my relative who lived in USA. Hope she would read your post!ReplyDelete
For the first time. You have actually made the laws and learning them interesting to me. I look forward to reading more of your blogs!ReplyDelete