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Criminal Law

Last time we discussed what the police are, from where they derive their power and some of your rights (5th and 6th amendments) when dealing with the police. This time I’d like to discuss the 4th amendment and your rights pertaining to searches and seizures.

The Fourth Amendment.

Let’s start with the first part, “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated,…” If it sounds like a mixture of 18th century English and that annoying language lawyers use, that’s because it is. To rephrase, we have a right to expect the state not intrude into our personal life, our personal places or our stuff unless they have a good reason, or probable cause, to do so.

The next part of the 4th amendment, “…and no Warrants shall issue, but upon probable cause1, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Again, let’s try plain English. An officer must have a warrant to search a person, private place or private things 2. To obtain a warrant an officer must present evidence, in the form of an affidavit or sworn statement to a judge or magistrate. The affidavit must be specific as to what the officer is searching for and specifically where the officer expects to find the item or items for which the officer is searching.

The judge must then determine if enough probable cause exists to issue the warrant allowing the officer to perform the search. If the judge determines that enough probable cause exists for the search he or she will issue the search warrant.

How does this apply to you?

Let’s say the police suspect that you are committing some sort of illegal activity in your home. They want to search your home for evidence of your illegal activity. The first thing many officers may do is simply knock on your door in order to have a conversation with you. The officer may say “We’ve had a report that there is a lot of short term traffic at your house at all hours of the day and night. In my experience this could possibly mean that you are selling drugs from your home. Do you mind if I come in and talk to you about this?” The officer is conducting an investigation. He is listening carefully to what you say; he is looking around at what he can see; he is observing your behavior. It’s a reconnaissance mission to gather information, to build probable cause, that he may later use to present to a judge to obtain a search warrant, or he is looking for a lack of evidence that convinces him that he’s on the wrong track.

Must you talk to the officer? No. Remember your right against self-incrimination. Must you allow him into your house if he doesn’t have a search warrant? No 2.

What do you do if this situation presents itself on your front porch?

If an officer presents himself at my front door and starts a conversation as described about, I’m simply going to politely let the officer know that I have no desire to speak with him about the subject. Then politely thank him for his time, let him know I’m closing (not slamming) the door and going about my business.

If the officer prevents you from closing the door, pushes his way in or prevents you from leaving DO NOT FIGHT with him. In all the years I was an officer, it never turned out well for anyone who fought with the cops. It’s just a bad idea.

Allow the officer to conduct the search but make certain he understands he does so over your strenuous objection. It’s possible the search may be found in violation of the 4th amendment and any evidence gained from the illegal search thrown out.

How about the car?

Cars are a different animal when it comes to search and seizure. Generally though, if an officer asks to search your car you have the right to tell them no. You may be told that he’s going to hold you there and get a search warrant. Invite him to do just that. If he says he’s going to search it anyway, once again don’t fight with him about it. Make certain that he understands that he absolutely does not have your permission to search your car then let him do what he’s going to do. Again, any evidence may be found to be the result of an illegal search and suppressed.

Parting thought.

A few years ago I had the local police knock on my door at about 5:00 a.m. My patrol car was in the garage so the officer may or may not have known I was a cop myself. Even though I’d been a cop for about 15 years at that time, when I saw who was standing on the porch all kinds of thoughts and questions raced through my head at the speed of light. Pretty silly, I know, but I think it’s typical of everyone who comes in unexpected contact with an officer. As it turns out, someone had broken into my wife’s car and stolen the stereo. He was there to let us know what had happened and get some information for a police report, simple enough.

While I write (and do so as candidly and honestly as possible) about dealing with the police from the viewpoint of someone who works in the area of criminal defense it must be remembered I was a cop for many years. Cops are no more or no less human than anyone else. They aren’t always “out to get you.” Sometimes, often times, they really are there to serve and protect, as was the case with the officer who knocked on my door. So when dealing with the police remember, “above all, be nice.”

When you find yourself in dealing with the police remember you have rights and the cops have rules. If you believe your rights have been violated or the police aren’t playing by the rules, give our experienced criminal team the opportunity to protect your constitutional rights; give us the chance to help you.

1. The standards used in the criminal justice system are these (from Black’s Law Dictionary):

a. Reasonable suspicion – A particular and objective basis, supported by specific and articulable facts for suspecting a person of criminal activity. This is the lowest standard. The officer doesn’t have enough to get a search warrant or to arrest the person at this point but he has enough to stop them and conduct an investigation.

b. Probable Cause – Under the Fourth Amendment, probable cause – which amounts to more than a bare suspicion but less than evidence that would justify a conviction – must be shown before an arrest or search warrant may be issued. This is a higher standard than reasonable suspicion. The officer can articulate that a crime is being, has been committed, or is about to be committed and that this is the person who committed or is committing the crime. The Officer can arrest an individual based on probable cause. He can also petition a judge for a search or arrest warrant based on probable cause.

c. Reasonable Doubt – The doubt that prevents one from being firmly convinced of a defendant’s guilt. This is the standard a jury must use when weighing evidence against a criminal defendant. The jury must find beyond a reasonable doubt that a crime was committed and that this individual committed the crime.

2. There are exceptions to the warrant rule. There are times when officers may search or arrest without a search warrant. We will discuss these circumstances in the next discussion.

For further reading:

http://www.usconstitution.net/const.html. This site makes it easy to find the different sections and amendments to the constitution.

Schmidt Law Firm Law Firm

136 East South Temple Street #1500

Salt Lake City, UT 84111

(801) 895-3113

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