Crim Pro Handbook

Question 1

Can a police officer stop me on the street and question me even if I have done nothing wrong?

Answer 1

Yes. Even if an officer has no reason to suspect that you have done anything wrong, the officer can approach you to ask questions and ask to search you or objects in your possession (such as a briefcase). So long as the officer doesn’t suggest that you are legally compelled to talk or agree to a search, the officer has done nothing wrong (U.S. v. Drayton, U.S. Sup. Ct. 2002). At the same time, a person is generally not required to answer a police officer’s questions or allow a police officer to conduct a search.

Question 2

An officer pulled me over for suspicion of drunk driving and questioned me about where I’d been and what I’d had to drink. Can I be arrested for refusing to answer these questions?

Answer 2

No. An officer has the right to conduct a field sobriety test of a suspected drunk driver. But the driver has the right to refuse to answer questions. In such a situation, the validity of an arrest would depend solely on the person’s driving pattern and performance on the field sobriety tests.

Question 3

If I don’t have to answer questions, does this mean I can sue a police officer for trying to question me?

Answer 3

No. Even in the complete absence of probable cause to arrest or suspicion to conduct a stop and frisk, police officers have the same right as anyone else to approach people and try to talk to them. Of course, if the person refuses to talk, the officer must stop.

Question 4

Doesn’t a police officer always have to read me my “Miranda rights” before questioning me?

Answer 4

No. A “Miranda warning” is required only if a suspect is in custody and the police intend to interrogate the suspect. In other words, both “custody” and “interrogation” have to occur for Miranda rights to kick in. One upshot is that a statement by a person who is not in custody, or a statement made voluntarily rather than in response to police interrogation, is admissible in evidence at trial even though no Miranda warning was given.

CASE EXAMPLE: Officer Dave Bouncer is investigating a barroom brawl. The bartender indicates that a patron named Bob Sawyer might be able to identify the instigator of the brawl. When Officer Bouncer interviews Bob, Bob makes statements implicating himself in the brawl. Officer Bouncer did not read Bob his Miranda rights.

Question: If Bob is charged with a crime concerning the brawl, will Bob’s statements to Officer Bouncer be admissible as evidence?

Answer: Yes. At the time Officer Bouncer spoke to Bob, Bob was not in custody. Thus, Miranda warnings were not required as a condition of admissibility.

Question 5

What is a “Miranda warning”?

Answer 5

When police officers make an arrest, they commonly interrogate (question) the arrestee. Usually they are trying to strengthen the prosecution’s case by getting the arrestee to provide some evidence of guilt. An interrogation may have other purposes as well, such as developing leads to additional suspects.
By answering police questions after arrest, a suspect gives up two rights granted by the U.S. Constitution:

1) The Fifth Amendment right to remain silent, and
2) The Sixth Amendment right to have a lawyer present during the questioning.

Although people are entitled to voluntarily give up these and other rights, the courts have long recognized that voluntariness depends on knowledge and free will, and that people questioned by the police while they are in custody frequently have neither

To remedy this situation, the U.S. Supreme Court ruled in the case of Miranda v. Arizona (1966) that information obtained by police officers through the questioning of a suspect in police custody may be admitted as evidence at trial only if the questioning was preceded by certain cautions known collectively as a “Miranda warning.” Accordingly, police officers usually begin their questioning of a person in custody by first making the following statements:

You have the right to remain silent

Recall: If a suspect is in police custody, it doesn’t matter whether the interrogation takes place in a jail or at the scene of a crime, on a busy downtown street, or in the middle of an open field. Other than routine automobile stops and brief on-the-street detentions, once a police officer deprives a suspect of freedom of action in any way, the suspect is in police custody and Miranda is activated

CASE EXAMPLE: Kelly Rozmus is arrested for assault. At the police station, Officer Mayorkas seeks to question Rozmus about the events leading up to the assault.

Question: Does Rozmus have to answer the officer’s questions?

Answer: No. Rozmus has a constitutional right to remain silent, and if Officer Mayorkas fails to warn Rozmus of the Miranda rights before questioning begins, then nothing Rozmus says is later admissible in evidence.

Question 6

What happens if a suspect who is in custody isn’t given a Miranda warning and answers a police officer’s questions?

Answer 6

If a police officer questions a suspect without giving the suspect the Miranda warning, nothing the suspect says can be used against the suspect at trial. The purpose of this “exclusionary rule” is to deter the police from violating the Miranda rule, which the U.S. Supreme Court has ruled is required by the Constitution (Dickerson v. U.S., U.S. Sup. Ct. 2000).

Question 7

Am I entitled to have my case dismissed if the police questioned me without advising me of my Miranda rights?

Answer 7

No. One popular misconception about the criminal justice system is that a case has to be thrown out of court if the police fail to give the Miranda warning to people they arrest. What Miranda says is that the warning is necessary if the police interrogate a suspect in custody and want to offer something the suspect says into evidence at trial. This means that the failure to give the Miranda warning is utterly irrelevant to the case if:

the suspect is not in custody
the police do not question the suspect, or
the police do question the suspect, but the prosecution does not try to use the suspect’s responses as evidence.

In essence, if the prosecution can win its case without using the illegally-obtained evidence, a Miranda violation will not cause dismissal of the case.

Question 8

What are the search and seizure provisions of the Fourth Amendment all about?

Answer 8

They are about privacy. Most people instinctively understand the concept of privacy. It is the freedom to decide which details of your life shall be revealed to the public and which shall be revealed only to those you care to share them with. To honor this freedom, the Fourth Amendment protects against “unreasonable” searches and seizures by state or federal law enforcement authorities. However, the Fourth Amendment does not protect against searches initiated by nongovernmental people, such as employers, landlords, and private security personnel, unless the search is made at the behest of a law enforcement authority.

Question 9

Courts use a two-part test (fashioned by the U.S. Supreme Court) to determine whether, at the time of the search, the defendant had a legitimate expectation of privacy in the place or things searched.

Answer 9

Only if the answer to both questions is “yes” will a court go on to ask the next, ultimate question: Was the search reasonable or unreasonable?
For example, a person who uses a public restroom expects not to be spied upon (the person has a subjective expectation of privacy) and most people—including judges and juries—would consider that expectation to be reasonable (there is an objective expectation of privacy as well). Therefore, the installation of a hidden video camera by the police in a public restroom will be considered a search and would be subject to the Fourth Amendment’s requirement of reasonableness.
On the other hand, when the police find a weapon on the front seat of a car, it is not a search for Fourth Amendment purposes because it is very unlikely that the person would think that the front seat of the car is a private place (a subjective expectation of privacy is unlikely), and even if the person did, society is not willing to extend the protections of privacy to that particular location (no objective expectation of privacy).

Question 10

Can illegally seized evidence be used in court for any purpose?

Answer 10

Yes. Cases decided after Mapp have established that the Fourth Amendment is not a complete bar to the use of illegally seized evidence. For example, a judge may consider illegally seized evidence when deciding on an appropriate sentence following conviction, and illegally seized evidence is admissible in civil cases and deportation cases. Also, in some circumstances a prosecutor can use improperly seized evidence to impeach (attack the credibility of) a witness who testifies during a court proceeding.

CASE EXAMPLE: Flo Kane is on trial for possessing illegal drugs. During a pretrial hearing, the trial judge had ruled that the police had illegally seized a gun from Flo’s bedroom, and that the prosecutor could not admit the gun into evidence. While testifying, Flo states, “I’ve never owned a weapon of any kind.”

Question: Following this testimony, could the prosecutor show Flo the illegally seized gun and ask her to admit that she owned it?

Answer: Yes. Once Flo denies ever owning a weapon, the prosecutor may use the illegally seized gun to attack the credibility of her testimony.

Question 11

If the police illegally seize evidence, can they use the illegally seized information to find other evidence to use against the defendant?

Answer 11

No, because of a legal rule colorfully known as the “fruit of the poisonous tree doctrine.” This doctrine makes inadmissible any evidence that police officers seize or any information that police officers obtain as a direct result of an improper search. The tree is the evidence that the police illegally seize in the first place; the fruit is the second-generation product of the illegally seized evidence. Both tree and fruit are inadmissible at trial. The fruit of the poisonous tree doctrine removes what would otherwise be a big incentive for police officers to conduct illegal searches.

CASE EXAMPLE: Officer Wiley arrests Hy Lowe for selling phony telephone cards. A judge ruled that Officer Wiley had illegally entered Lowe’s home and improperly seized a map showing the location where Lowe hid the phone cards. At trial, the prosecutor doesn’t try to offer the map into evidence. The prosecutor does, however, seek to offer into evidence the phone cards that Officer Wiley located by using the map.

Question: Are the phone cards admissible in evidence?

Answer: No. Officer Wiley obtained the map through an illegal search. The phone cards are the fruit of that unlawful search, and therefore inadmissible in evidence.

Question 12

What is a search warrant?

Answer 12

A search warrant is an order signed by a judge that authorizes police officers to search for specific objects or materials at a definite location at a specified time. For example, a warrant may authorize the search of “the premises at 11359 Happy Glade Avenue between the hours of 8 a.m. to 6 p.m.,” and direct the police to search for and seize “cash, betting slips, record books, and every other means used in connection with placing bets on horses.” Police officers can take reasonable steps to protect themselves when conducting a search, such as handcuffing occupants while searching a house for weapons (Mena v. City of Simi Valley, U.S. Sup. Ct. 2005).

Question 13

How do police officers obtain search warrants?

Answer 13

Police officers obtain warrants by providing a judge or magistrate with information that the officers have gathered. Usually, the police provide the information in the form of written statements under oath, called affidavits, which report either their own observations or those of private citizens or police undercover informants. In many areas, a judicial officer is available 24 hours a day to issue warrants. If the magistrate believes that an affidavit establishes “probable cause” to conduct a search, she will issue a warrant. The suspect, who may be connected with the place to be searched, is not present when the warrant issues and therefore cannot contest the issue of probable cause before the magistrate signs the warrant. However, the suspect can later challenge the validity of the warrant with a pretrial motion.
Police officers can obtain anticipatory search warrants, meaning that if the police can show probable cause, they can obtain a warrant before contraband arrives at the location to be searched (U.S. v. Grubbs, U.S. Sup. Ct. 2006). For example, if the police demonstrate to a magistrate that illegal drugs are about to be shipped to a suspect’s home, they can get a warrant that allows the police to search the home once the drugs are delivered

Question 14

How much information do police officers need to establish that probable cause for a search warrant exists?

Answer 14

The Fourth Amendment doesn’t define probable cause. Its meaning remains fuzzy. What is clear is that after 200 years of court interpretations, the affidavits submitted by police officers to judges have to identify objectively suspicious activities rather than simply recite the officer’s subjective beliefs. The affidavits also have to establish more than a suspicion that criminal activity is afoot, but do not have to show proof beyond a reasonable doubt.
The information in the affidavit need not be in a form that would make it admissible at trial. (For example, a judge or magistrate may consider hearsay that seems reliable.) However, the circumstances set forth in an affidavit as a whole should demonstrate the reliability of the information (Illinois v. Gates, U.S. Sup. Ct. 1983).

Question 15

In general, when deciding whether to issue a search warrant, a judicial officer will likely consider information in an affidavit reliable if it comes from any of these sources:

Answer 15

1. a confidential police informant whose past reliability has been established or who has firsthand knowledge of illegal goings-on
2. an informant who implicates herself as well as the suspect
3. an informant whose information appears to be correct after at least partial verification by the police
4. a victim of a crime related to the search
   a witness to the crime related to the search, or
   another police officer

CASE EXAMPLE 1: Hoping to obtain a warrant to search Olive Martini’s backyard, a police officer submits an affidavit to a magistrate. The affidavit states that “the undersigned is informed that Olive operates an illegal still in her backyard.”

Question: Should the magistrate issue a search warrant?

Answer: No. The affidavit is too vague, and does not identify the source of the information so that the magistrate can properly judge its reliability. Probable cause therefore does not exist.

CASE EXAMPLE 2: Same case. The affidavit states that “I am a social acquaintance of Olive Martini. On three occasions in the past two weeks, I have attended parties at Martini’s house. On each occasion, I have personally observed Martini serving alcohol from a still in Martini’s backyard. I have personally tasted the drink and know it to be alcoholic with an impertinent aftertaste. I had no connection to the police when I attended these parties.”

Question: Should the magistrate issue a warrant authorizing the police to search Martini’s backyard?

Answer: Yes. The affidavit provides detailed, firsthand information from an ordinary witness (without police connections) that indicates criminal activity. The affidavit is reliable enough to establish probable cause for issuance of a warrant.
It may take an hour or two (or longer) for police officers to obtain a warrant. To prevent suspects from destroying evidence inside homes while the police are waiting for a judge to issue a warrant, the police may station themselves outside homes and prevent suspects from entering them (Illinois v. McArthur, U.S. Sup. Ct. 2001)

Question 16

If the police have a warrant to search my backyard for marijuana plants, can they legally search the inside of my house as well?

Answer 16

No. The police can only search the place described in a warrant, and usually can only seize whatever property the warrant describes. The police cannot search a house if the warrant specifies the backyard, nor can they search for weapons if the warrant specifies marijuana plants. However, this does not mean that police officers can only seize items listed in the warrant. Should police officers come across contraband or evidence of a crime that is not listed in the warrant in the course of searching for stuff that is listed, they can lawfully seize the unlisted items.

Question 17

If I agree to a search, is the search legal even if a police officer doesn’t have a warrant or probable cause to search?

Answer 17

Yes. If a defendant freely and voluntarily agrees to a search, the search is valid and whatever the officers find is admissible in evidence.
For example, assume that Officer Mayer knocks on the door of Caryn-Sue’s house. Officer Mayer suspects that Caryn-Sue is part of a group of suspects who are making pirated DVDs, but the officer lacks probable cause to search her house or arrest her. When Caryn-Sue answers the door, the following conversation takes place:
Officer: Good afternoon. I’m Officer Mayer. Is your name Caryn-Sue?
Caryn-Sue: Yes, it is. What can I do for you, officer?
Officer: I’m investigating the production of pirated DVDs, and I’d like to talk to you.

Question 18

Does a police officer have to warn me that I have a right to refuse to consent to a search?

Answer 18

No. No equivalent to Miranda warnings exists in the search and seizure area. Police officers do not have to warn people that they have a right to refuse consent to a search (Ohio v. Robinette, U.S. Sup. Ct. 1996).

Question 19

If a police officer tricks or coerces me into consenting to a search, does my consent make the search legal?

Answer 19

No. To constitute a valid consent to search, the consent must be given “freely and voluntarily.” If a police officer wrangles a consent through trickery or coercion, the consent does not validate the search. Often, a defendant challenges a search on the grounds that consent was not voluntary, only to have a police officer testify to a conflicting version of events that establishes a valid consent. In these conflict situations, judges tend to believe police officers unless defendants can support their claims through the testimony of other witnesses.

Question 20

If I agree to open my door to talk to a police officer and the officer enters without my permission and searches, is the search valid?

Answer 20

No. Merely opening the door to a police officer does not constitute consent to entry and search. Thus, whatever such a search turns up would be inadmissible in evidence. Of course, if contraband or evidence of a crime is in “plain view” from the doorway, the officer may seize it.

Question 21

If I share my residence with the person who consents to a police officer search (for example, a spouse or a roommate) and the search turns up evidence that incriminates me, can the evidence be used against me?

Answer 21

No, so long as you are personally present when the police ask for permission to search and you refuse to consent. Even if the person you share the residence with has agreed to the search, your refusal means that evidence cannot be used against you (Georgia v. Randolph, U.S. Sup. Ct. 2006). (Of course, if the police have probable cause, they might obtain a search warrant and conduct a search after you refuse to give permission.)
If your spouse, roommate, or cotenant agrees to a search in your absence, and the search turns up evidence that incriminates you, the evidence might well be admissible in evidence against you at trial. An adult in rightful possession of a house or apartment usually has legal authority to consent to a search of the entire premises. But if there are two or more separate tenants in one dwelling, courts often rule that one tenant has no power to consent to a search of the areas exclusively controlled by the other tenants (for instance, their separate bedrooms).

A tricky twist is that the consent will be considered valid if the police reasonably believe that the consenting person has the authority to consent even if it turns out they don’t. (See the example below.)

CASE EXAMPLE: Bob’s ex-wife Jan knows where Bob hides his cocaine. She calls the police and tells them about the cocaine. She directs them to Bob’s house. When they get there, she opens the door with a key (she never returned it to Bob). She puts her purse on the entry hall table, opens the hall closet, and puts on a sweater that appears to be hers. She then leads the police to the place where Bob stores his cocaine. As far as the police know, Jan lives in the apartment and has full authority to consent to the search.

Question: Even though Jan and the police enter the apartment without Bob’s permission, did the search violate Bob’s Fourth Amendment rights?

Answer: No. Although the police mistakenly thought that Jan had the authority to consent to the search, the mistake would be considered a reasonable one because every fact surrounding the search (including Jan’s having a key and knowing her way around the apartment) pointed to that authority.

Question 22

While I’m out, the landlord of the apartment building where I live gives a police officer permission to search my apartment. Does the landlord’s consent make the search legal?

Answer 22

No. The landlord is not considered to be in possession of an apartment leased to a tenant, and therefore lacks authority to consent to a search of leased premises. The same is true for hotel operators.

Question 23

I agreed to talk to a police officer in my house. The officer saw some drugs on a kitchen counter, seized them, and arrested me. Is this legal?

Answer 23

Yes. Police officers do not need a warrant to seize contraband or evidence that is in plain view if the officer is where he has a right to be. An officer’s seizure of an object in plain view does not violate the Fourth Amendment because the officer technically (and legally) has not conducted a search.

Question 24

If a police officer illegally enters a house and observes evidence in plain view, can the officer seize the evidence?

Answer 24

No. A police officer can seize objects in plain view only if the officer has a legal right to be in the place from which the objects can be seen or smelled. If an officer has no legal right to be where she is when the evidence or contraband is spotted, the plain view doctrine doesn’t apply.

CASE EXAMPLE: Two police officers in a helicopter fly over the backyard of a home as they are returning from the scene of a highway collision. Aided by binoculars, one of the officers sees a large number of marijuana plants growing in a greenhouse in the backyard. The officers report what they have seen, a search warrant is obtained, and the occupant of the house is arrested and charged with growing illegal drugs for sale.

Question: Was the officers’ aerial search of the backyard legal?

Answer: Yes. The police officers had a right to be in public airspace, and the occupant had no reasonable expectation of privacy for what could be seen from public airspace. (Maybe this is an example of “plane view.”) The outcome might be different if the police officer had spotted the plants from a space station by using advanced technology spying equipment. The homeowner might reasonably expect that the backyard would not be subjected to that type of surveillance

Question 25

Can an officer legally search me after arresting me?

Answer 25

Yes. Police officers do not need a warrant to make a search “incident to an arrest.” After an arrest, police officers have the right to protect themselves by searching for weapons and to protect the legal case against the suspect by searching for evidence that the suspect might try to destroy. Assuming that the officer has probable cause to make the arrest in the first place, a search of the person and the person’s surroundings following the arrest is valid, and any evidence uncovered is admissible at trial.

Question 26

If I’m arrested on the street or in a shopping mall, can the arresting officer search my dwelling or car?

Answer 26

No. To justify a search as incident to an arrest, a spatial relationship must exist between the arrest and the search. The general rule is that after arrest the police may search a defendant and the area within a defendant’s immediate control (Chimel v. California, U.S. Sup. Ct. 1969). For example, an arresting officer may search not only a suspect’s clothes, but also a suspect’s wallet or purse. If an arrest takes place in a kitchen, the arresting officer can probably search the kitchen, but not the rest of the house. If an arrest takes place outside a house, the arresting officer cannot search the house at all. To conduct a search broader in scope than a defendant and the area within the defendant’s immediate control, an officer would have to obtain a warrant

Question 27

If I’m arrested in my car, or shortly after leaving it, do the police need a warrant to search the interior of the car?

Answer 27

No. If the police arrest a suspect in or around a car, they don’t need a warrant to search its interior (Thornton v. U.S., U.S. Sup. Ct. 2004). They probably would need a warrant to search the trunk, however.

Question 28

If I’m arrested outside my place of residence, can the police go inside to look for accomplices?

Answer 28

Sometimes. Police officers can make protective sweeps following an arrest (Maryland v. Buie, U.S. Sup. Ct. 1990). When making a protective sweep, police officers can walk through a residence and make a cursory visual inspection of places where an accomplice might be hiding. For example, police officers could look under beds and inside closets. To justify making a protective sweep, police officers must have a reasonable belief that a dangerous accomplice might be hiding inside a residence. If a sweep is lawful, the police can legally seize contraband or evidence of crime that is in plain view

CASE EXAMPLE: Police officers have warrants to arrest Fox and Mulder for armed bank robbery. Fox and Mulder live together in a house. Officers Spock and Kirk stake out the house and arrest Fox coming up the driveway. With Fox in custody, Spock goes into the house to conduct a protective sweep. Spock goes into a bedroom, lifts up a mattress and seizes a gun hidden between the mattress and the box spring. Witnesses later identify the gun as the one used in the bank robbery

Question: Did Officer Spock lawfully seize the gun?

Answer: No. Because (1) Fox and Mulder live together, (2) Fox was arrested outside the house, and (3) they were suspected of committing a violent crime together, Spock probably had the right to make a protective sweep to look for Mulder. However, Spock had no right to lift up the mattress, because nothing suggested that Mulder might be hiding under it. After making sure that Mulder wasn’t in the house, the officers should have secured the house and gotten a search warrant

Question 29

If the police properly arrest me in my home, can they also search the home?

Answer 29

They can to a certain extent. They may search the person arrested and the area within that person’s immediate control. Immediate control is interpreted broadly to include any place a suspect may lunge to obtain a weapon. If the alleged crime is particularly violent, or if the police have reason to believe other armed suspects may be in the residence, the police may do a protective sweep to search in any place such accomplices may be hiding. Also, while they are making a lawful arrest or protective sweep, the police may typically search and seize anything apparently related to criminal activity that is in plain view

Question 30

If an officer searches me after a valid arrest and finds evidence for an entirely different crime, is the evidence admissible?

Answer 30

Yes. An officer can seize whatever evidence a proper search incident to an arrest turns up. So long as the search is valid, it doesn’t matter if a seized object has nothing to do with the crime for which the defendant was arrested

Question 31

What is the “stop and frisk” rule?

Answer 31

Using a procedure known as stop and frisk, authorized by Terry v. Ohio, U.S. Sup. Ct. 1968, a police officer need only have a reasonable suspicion of criminal behavior to detain and question a person (the “stop”). For self-protection, the officer can at the same time carry out a limited pat-down search for weapons (the “frisk”). This rule applies whether you are on foot or in your car. A “reasonable suspicion” requires more than a hunch or a mere distrust; the officer must have reasonable grounds, based on all of the circumstances, to suspect that the person is involved in criminal activity

CASE EXAMPLE 1: Officer Crosby sees Stills and Nash talking normally on a street corner. Having a hunch that a drug transaction may be underway, the officer detains and frisks the pair. The officer finds a gun in Nash’s pocket, and arrests him.

Question: Was the gun validly seized?

Answer: No. Officer Crosby had no right to detain Stills and Nash in the first place. A “hunch” doesn’t authorize detention; an officer must have “articulable facts supporting a reasonable suspicion” (U.S. v. Hensley, U.S. Sup. Ct. 1985). Since the initial detention was improper, the frisk incident to that detention was improper, and the fruits of the frisk are inadmissible

CASE EXAMPLE 2: Officer Jacks sees Jill hiding under the steps of an apartment building. As the officer approaches, Jill runs away. Officer Jacks captures Jill and pats her down for weapons. The officer removes a hard object that turns out to be a plastic envelope containing burglar’s tools.

Question: Can Officer Jacks legally seize the tools?

Answer: Yes. Officer Jacks had reasonable grounds for suspecting that Jill was engaged in criminal activity. The officer had the right to detain and pat down Jill, and remove an object that might have been a weapon.

CASE EXAMPLE 3: Officer Ross spots Wade’s minivan on a little-used road sometimes frequented by drug smugglers. Wade is driving at a time when border patrol officers commonly change shifts. Officer Ross knows that drug smugglers often use minivans, runs a check on the vehicle, and finds that it is registered to an address in a block notorious for drug smuggling. Officer Ross stops Wade, asks to search the van, and Wade consents. A subsequent search of the minivan reveals 130 pounds of marijuana

Question: Can Officer Ross seize the marijuana?

Answer: Yes. Based on all of the circumstances, Officer Ross had a reasonable suspicion that Wade was engaged in illegal behavior and had the right to detain him. Since the stop was legal and the resulting search was consensual, the marijuana is admissible as evidence (U.S. v. Arvizu, U.S. Sup. Ct. 2002).

Question 32

What’s the difference between a search and a frisk?

Answer 32

A search is more extensive. An officer conducting a full search can probe extensively for any type of contraband or evidence. A frisk allows officers only to conduct a cursory pat-down and to seize weapons, such as guns and knives or objects that the officer can tell from a plain feel are contraband (Minnesota v. Dickerson, U.S. Sup. Ct. 1993)

CASE EXAMPLE 1: Officer Mace pulls over a driver who resembles a person wanted for bank robbery. Officer Mace asks the driver to get out of the car, then frisks the driver. The officer feels a soft packet in the driver’s back pocket. With the packet still in the driver’s pocket, the officer pokes a finger through the packaging into the packet, rubs powder from the packet onto the finger, removes the finger and decides from the powder’s appearance and smell that it is an illegal drug. The officer removes the packet and arrests the driver for possession of illegal drugs

Question: Are the contents of the packet admissible in evidence?

Answer: No. The officer had reasonable grounds for detaining the driver, but lacked probable cause to arrest the driver and conduct a full search. Therefore, all the officer could do was frisk the driver and seize either a weapon or contraband in plain feel. Since the soft packet could not reasonably have been mistaken for a weapon, and the officer had to manipulate the packet before deciding that it contained illegal drugs, the officer had no right to remove it from the driver’s pocket.

CASE EXAMPLE 2: Same case, except that Officer Mace testifies that, “When I frisked the driver, I felt a packet of little pebbles that felt like rock cocaine, so I seized it.”

Question: Is the rock cocaine admissible in evidence?

Answer: Yes. The officer could tell from plain feel that the packet contained illegal drugs, so the seizure is valid. (Note: Police officers are generally very “up” on the law of search and seizure, and know how to testify so that seizures stand up in court.)

Question 33

Does a traffic stop constitute a “seizure” of a car’s drivers and passengers?

Answer 33

Yes. When police officers pull cars over, neither the drivers nor the passengers generally believe that they are free to simply walk off. Therefore, for purposes of the Fourth Amendment, police officers who carry out traffic stops “seize” all of a car’s occupants (Brendlin v. California, U.S. Sup. Ct. 2007). One upshot is that drivers and passengers alike can challenge the legality of a stop and any ensuing searches and arrests. The consequence is that police officers have the same power over passengers as over drivers. For example, officers may run the criminal histories of all of a car’s occupants

Question 34

If I’m pulled over for a traffic violation, can I be arrested and searched?

Answer 34

A police officer who stops a motorist for a traffic infraction (speeding, unsafe lane change, etc.) usually issues a citation (ticket), and the motorist agrees to appear in court at a later date. In these routine situations, the motorist has not been arrested and the police officer has no basis for searching either the motorist or the car (Knowles v. Iowa, U.S. Sup. Ct. 1998).
Be aware, however, that laws in many states give police officers the power to arrest motorists even for routine traffic infractions. If an officer does choose to arrest a motorist for a traffic infraction, then the officer can conduct a search incident to the arrest (Atwater v. Lago Vista, U.S. Sup. Ct. 2001).

Question 35

If the police have probable cause to search a car, do they have to obtain a warrant first?

Answer 35

No. Cars are not like houses. If the police have probable cause to search a car, they can do so. They do not need a warrant, even if they have adequate time to obtain one (Maryland v. Dyson, U.S. Sup. Ct. 1999). The basic reason for this exception to the warrant rule is that cars can easily be moved and the court believes that people don’t have the same expectation of privacy in their vehicles as they do in their homes.

Question 36

If the police have probable cause to search a car, can they also search objects belonging to passengers?

Answer 36

Yes. Once they have probable cause to search a car, the police don’t have to worry about whether the objects they are searching belong to the driver or to any passengers. The officers have the right to search any object that might be capable of concealing whatever object the police are searching for (Wyoming v. Houghton, U.S. Sup. Ct. 1999). If the search turns up incriminating evidence (such as drugs or loot from a crime), the police can arrest the driver and the passengers (Maryland v. Pringle, U.S. Sup. Ct. 2003).

CASE EXAMPLE 1: Officer Colombo pulls a car over for making an illegal left turn. Inside the car are four teenagers. The officer notices a hypodermic syringe and traces of drugs in the driver’s shirt pocket. The officer orders all the passengers out of the car, frisks them, and begins to search the car looking for drugs. The officer picks up a purse from the back seat, which one of the occupants identifies as hers. Officer Colombo opens the purse, finds drugs inside and places the purse’s owner under arrest.

Question: Was the arrest valid?

Answer: Yes. Since Officer Colombo had the right to search the car, the officer also had the right to search objects belonging to any passengers, assuming that the object could reasonably contain drugs.

CASE EXAMPLE 2: Officer Colombo pulls a car over for making an illegal left turn. Inside the car are four teenagers. The officer notices an illegal automatic weapon sticking out under the front passenger seat. Officer Colombo orders all the passengers out of the car, frisks them and begins to search the car looking for other evidence of weapons. The officer picks up a wallet from the back seat, which one of the occupants identifies as his. Officer Colombo carefully searches the wallet and finds drugs inside. He places the wallet’s owner under arrest.

Question: Was the arrest valid?

Answer: Probably not. Because Officer Colombo had the right to search the car, the officer also had the right to search property belonging to any passengers if the property could reasonably contain the objects the police are searching for, in this case weapons. Since no weapon could be concealed in the wallet, the search of the wallet was arguably illegal and the arrest based on it invalid.

Question 37

What are some examples of emergency situations that eliminate the need for search warrants?

Answer 37

Here are some situations in which most judges would uphold a warrantless search or entry into a residence:

a) An officer checks an injured motorist for possible injuries following a collision and finds illegal drugs.
Following a street drug arrest, an officer runs into the house after the suspect shouts into the house, “Eddie, quick, flush our stash down the toilet.” The officer arrests Eddie and seizes the stash.

b) A police officer in hot pursuit of a fleeing armed robbery suspect continues the chase into the suspect’s house, where the officer arrests and searches the suspect.
c) A police officer on routine patrol hears shouts and screams coming from a residence, rushes in and arrests a suspect for spousal abuse.
d) A police officer responding to a “loud party” complaint observes underage drinking and fighting going on inside the residence where the party is taking place (Brigham City v. Stuart, U.S. Sup. Ct. 2006).

In these types of emergency situations, an officer’s duty to protect people and preserve evidence outweighs the warrant requirement.

Question 38

Can public school officials search students without a warrant?

Answer 38

Public school students have fewer Fourth Amendment protections than adults. School officials do not need probable cause or search warrants; they can search students and their possessions as long as they have a reasonable basis for conducting a search and as long as the search is appropriate based on the age of the student and what’s being sought. For example, if a school official has a reasonable belief that a student has a weapon, drugs, or other illegal substances, the official may pat down the student’s clothes or request that the student empty pockets or any personal belongings such as backpacks.

CASE EXAMPLE: A junior high school student tells the school’s vice-principal that someone in a group of five to six children had brought a gun to school. The vice-principal searches the clothes and backpacks of all the students in the group. The vice-principal finds a gun and calls the police.

Question: Is the gun admissible in evidence?

Answer: Yes. The student’s initial report gave the vice-principal a reasonable basis to conduct the search.

Question 39

Can police officers use high-tech devices to search for evidence of criminal activity within a residence?

Answer 39

No, without a warrant, police cannot use high-tech “sense-enhancing” technology that is not in general use to collect information regarding the interior of a home or to monitor a person’s conduct within her home.