4th Amendment

In criminal law, it is important to ensure that law enforcement act within the confines of the law and do not violate clients’ Constitutional rights.

The Constitution of the United States is the supreme law of our land.  It was amended 27 times, but the first 10 amendments are known as the Bill of Rights. The Bill of Rights offers specific protections of individual liberty and justice and place restrictions on the powers of government. The 4th Amendment addresses Government intrusion on our personal privacy and physical locations.

The 4th Amendment relates to “Search and Seizure,” and states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

In criminal law, it is important to ensure that law enforcement act within the confines of the law and do not violate clients’ Constitutional rights. Last week we discussed a few DWI cases that were dismissed because there was not a legal basis for the officers to come in contact with our clients before doing an investigation and making the arrests.

Search Warrants issued by the Government can only be issued after a judge determines there is probable cause for the warrant to issue.  This usually comes to play when police want to search someone’s home, but now it applies to the search of cell phones and the seizure of someone’s blood.

When a person is stopped by the police, the police will perform a “pat down” for their safety. That means the police pat the OUTER clothing of the person being detained. The scope is to feel for anything that could be dangerous to the officer, such as a gun or knife. Without a search warrant or the person’s consent, the police are not allowed to go into the person’s pockets if the officer does not feel something unsafe.  So, if an officer feels a soft bulge that he or she may believe might be a bag of weed, without a search warrant or the person’s consent, then the officer cannot enter the person’s pocket to retrieve what is felt in the pat down.

Recently, case law ruled that police officers are allowed to search a vehicle without a warrant if they smell the odor of marihuana. Other than this exception, the vehicle and the person can be searched “incident to arrest.” The only two traffic violations for which someone CANNOT be arrested, oddly enough, are speeding and open container. Every other traffic violation is an arrestable offense – like no driver’s license on demand, or no insurance. Officers will use these offenses to initiate an arrest if they feel like a search incident to arrest will lead to something larger like possession of a controlled substance.

This is just a brief summary of a subject that could take pages of writings to detail and explain, but these questions come up often in our office.

There is freedom in knowing your rights!

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