When the police can search you (Part One-street stops under federal constitution)

New York City criminal defense attorneys are often always asked under what circumstances can the police search you, your car, or your home. People tend to know that the 4th Amendment stops the police from conducing unreasonable searches and seizures, but beyond that there’s a lot of confusion. This is the first in a multi-part post that attempts to address these complicated issues. These are only a general posts about the issues associated with these circumstances and are not intended to substitute legal advice.

New York police officers would like to search a person any time they see fit. There are two documents that curtail those desires. The first is the U.S. constitution. The second is the New York constitution. The New York constitution is a bit more liberal than the federal version on this issue. This means there are circumstances in which an NYPD cop may have acted improperly under the New York constitution, but properly under the U.S. constitution. The reason for the multi-part post is so I can adequately discuss both constitutions and various circumstances in which people are confronted by the police. In this one, I’ll tackle the street encounters between cops and people under the federal constitution.

Under the U.S. constitution, a police officer cannot search a person unless he has probable cause to believe that the person committed a crime. That’s the general rule, however, there are countless exceptions. The general rule comes from the 4th Amendment itself in which it states that “[t]he 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…” Probable cause means the officer has evidence to suggest that it is more likely than not that the person committed a crime. If a police officer has reason to suspect that the person committed a crime and the person is in a public place, there is no need for a warrant. The cop can make an arrest outright and search the person incident to that arrest. So that’s the rule. But what are the exceptions? After all, it appears that cops routinely stop and search people when they don’t have probable cause. How can they do that?

There are two major exceptions to everything you just read above. And they both exist because the U.S. Supreme Court found that cops can search people in certain circumstances where they believe their safety is at issue. The first circumstance is conceptually easy to understand. A cop can search a person any time he places that person under arrest and the search is incident to that arrest. Meaning that if you are under arrest, a copy can search you to make sure you don’t have any weapons or anything that could harm the officer. He can also search you to make sure you don’t discard any evidence that might make you look bad. So if a cop arrests you, he has the right to search you. Period. Now, if it turns out that the arrest itself was unlawful, then the search was also unlawful and any evidence will be suppressed (more on this at a later time). The second reason a cop can search you even if he doesn’t have probable cause is because of a case called Terry v. Ohio. In that case, the U.S. Supreme Court held that a police officer can briefly detain a person and frisk them for the officer’s safety any time the officer has “reasonable suspicion” that the person is up to no good. The standard for reasonable suspicion is lower than probable cause. Under the reasonable suspicion standard, the cop doesn’t need to have evidence to suggest that it’s more likely than not that the person committed a crime. Rather, he just needs to justify his hunch that the person is up to no good and he wants to investigate further. And since he’s investigating further, the officer has the right to briefly pat the person down for his own safety in case the person doesn’t want to be investigated. Unfortunately for the many people, that pat down turns up drugs or other levels of low-level contraband that is now not suppressible.

So with the Terry ruling, the U.S. Supreme Court basically gave cops the right to stop, question, and frisk people when they think the person is engaging in some sort of illegality, but they don’t quite have enough to articulate the actual illegality. This ruling certainly seemed reasonable in 1968 when the Court decided it. However, police throughout the country have used so called “Terry Stops” to justify countless police stops and searches. New York’s “stop and frisk” policy was based upon the Terry case. The problem, in a nutshell, is that Terry allows cops to move upon their baser instincts. For example, if you are an officer who is suspicious of black people, then Terry can give you the right to move on those suspicious even if they are ultimately illegitimate. The problem is also that judges tend to believe officers who then find some other reason to justify the stop even though it wasn’t the real reason. They tend to say things like “the person was acting furtive,” etc. Then the evidence comes in.

It goes without saying that if you find yourself in a situation where you’ve been searched, you need to contact an experienced New York City lawyer who can help you determine whether the search was illegal and what the appropriate remedies are.

The next post will be on street encounters under the N.Y. state constitution.