Criminal Law

Dealing with the Police, Part III

Last time we discussed the constitutional amendments that guarantee our right to be free from unreasonable searches, seizures and arrests. This time we’ll discuss some exceptions that allow police to perform a search or to arrest without a warrant.

Since the Constitution and the first ten amendments became the law, the Supreme Court of the United States has heard cases dealing with search and seizure many times. One of the more famous cases is Terry v. Ohio. In Terry, a police officer conducts an over the clothing pat down of 3 people he suspects are about to commit a robbery. He finds handguns on two of the suspects. They are arrested for carrying concealed weapons. One of the defendants, Terry, appeals, claiming the officer seized then searched him without a warrant, and that evidence from the illegal search should be suppressed. The Supreme Court made a few noteworthy points in their opinion.

1.Whenever a police officer restrains someone’s freedom to walk away that officer has seized that person.

2.The officer running his hand over the outside of someone’s clothing constitutes a search.

3.The police, “whenever practicable” must obtain a warrant to perform a search or seizure.1

The first two are pretty straight forward, but what does “whenever practicable” mean? It means that there are times when officers are not required to obtain a warrant to perform a search and/or a seizure. One such circumstance is when the officer can reasonably articulate why he performed the search without a warrant. In Terry, the officer had observed the 3 individuals casing a store. Two of them had walked past the store, stopped, looked in the window, conversed with one another then repeated the pattern approximately 24 more times. At some point the two were joined by a third person. The officer stopped the trio and patted them down. His pat down consisted of running his hand over the outside of their clothing. When he felt what he believed to be a gun on two of the suspects, he reached into their pocket and retrieved the weapon. He removed the gun for his own safety. The officer did not reach into the pockets of the third suspect because he didn’t encounter anything he thought to be a weapon.

The officer’s detention of the individuals was justified due to their behavior, his experience and the circumstances as viewed in their entirety. His pat down search was also justified for much the same reason. The Court also reasoned that when he encountered what he believed to be a weapon, seizing it for his safety, the safety of the public and even the safety of the suspects it was reasonable to seize the guns.

We all want the police to protect us from people who would commit crimes, particularly those that would harm us. To make the officer obtain a warrant before stopping the individuals in this case would certainly have ended with an officer writing a search warrant while the individuals are committing armed robbery. It was not practicable or reasonable for the officer to obtain a warrant. The same holds true of his seizure of the guns. He couldn’t very well have said, “hey, would you guys mind waiting here for an hour or two while I write up a search warrant, find a judge who isn’t busy so I can get the warrant signed, then I’ll be back to seize your guns.” His duty was to prevent a violent crime from occurring and to protect himself and others. The circumstances didn’t allow him the time to obtain a warrant.

So, an officer can stop you and restrict your freedom to leave without a search warrant. He may also conduct what cops refer to as a Terry frisk if they can articulate why they did so without a warrant and their reasons are, well, reasonable. However, remember the conversation about Miranda when being stopped and questioned by the police. And remember, if you are detained, frisked and items in your possession are seized, call our experienced criminal defense team. The state has the burden to prove that the officer’s actions were reasonable, and they must also prove that the warrantless search and seizure was justified. If the judge finds the officer’s action unreasonable or the warrantless seizure was not justified, any evidence gained in violation of your constitutional rights may be thrown out.

1.Terry v. Ohio, 392 U.S. 1.

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