I was recently perusing through an online blog that focused on the issue of police searches, and I was amazed at how much incorrect information was being exchanged by the various "bloggers" involved in that discussion. More than one participant referred to officers conducting searches for any reason as Nazis or Fascists without really offering anything to the discussion, so their comments were discounted. Several quoted the Fourth Amendment of the Constitution apparently without even reading the words or knowing what they meant. While everyone has and is certainly entitled to their own opinions and interpretations involving searches conducted by law enforcement, I thought the time was ripe to explain from my perspective the role that searches play in police activities and hopefully offer some useful information. It is not my intent, nor necessarily my desire, to alter the opinion of those who oppose searches of any kind or in any context made by the police. However, I do hope to at least explain that the police may lawfully search in many situations and offer reasoning as to why they may, but at the same time show that we do not have blanket search authority at any time we want to search. Our actions are constrained by constitutional and statutory law and by ever changing case law.
Let us first answer the question as to why law enforcement officers conduct searches in the first place. There are several reasons actually. Searches are conducted because officers are seeking evidence of a crime being investigated or contraband connected to criminal activity or arrests. Some searches are obviously conducted for safety reasons, to find guns, knives, or other weapons that may be used to harm the officer or other persons. Searches are sometimes made due to existing emergencies in which the life, safety, and welfare of some person or persons will be in jeopardy if a search is not immediately conducted. There are other reasons as well.
Whenever someone is appointed or hired as an officer, then he or she goes through the standardized law enforcement training course and must learn the basic "do's and don'ts" of conducting searches. The authority of officers, or any agents of the government, are constrained and restricted by the provisions of the Fourth Amendment of the Bill of Rights to the United States Constitution. In Arkansas, they are also restricted by Article 2, Section 15 of Constitution of the State of Arkansas, the Arkansas Rules of Criminal Procedure, various legislative acts and statutes, and numerous and ever-changing appellate court decisions on both the federal and state level. That's a whole lot of information to take in and become familiar with. It takes time on the job and experience to properly understand and apply these rules when working in the field. Mistakes do get made. Searches are occasionally conducted that fall outside acceptable guidelines for that search. Likewise, sometimes searches that would be entirely proper and justified are not conducted because the officer lacked self assurance that he or she was permitted to search under the circumstances. It happens both ways. When officers conduct a search that is not justifiable and lawful, then any evidence or contraband seized can be thrown out. When officers fail to search, even though they should, then evidence and contraband is missed. The results of both situations can be the same.....the guilty person goes free. In our system of justice, the guilty often go free on what many of us may call "technicalities", but that's the reality we must accept when living in a free society where citizens have constitutional protection from unjustified governmental intrusion.
So, nearly everyone has heard of the "Fourth Amendment". What exactly does it say? It says exactly this: "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."
Let us for a moment dissect this wording. There are actually two important key phrases or sections here, 1) "against unreasonable searches and seizures"; and 2) "upon probable cause". Does the Fourth Amendment protect the people against all searches and seizures by the government? No, of course not. It protects the public against unreasonable searches and seizures. Who determines if the search is reasonable or not? Well, if the officer or government agent is asking a Judge for the issuance of a search warrant, then the Judge determines whether the search is reasonable or not based upon sworn statements of the officer or agent. On the other hand, if the officer or agent is acting in the field without a warrant, then the officer or agent makes the determination as to whether conducting a search is reasonable or not. That determination can, and likely will, later be reviewed by a Judge. The same procedure is used when determining whether probable cause exists or not. The existence of probable cause can either be determined prior to the search by a Judge when seeking a warrant, or determined in the field by an officer or agent, subject to later review by a Judge. This brings forth another question. Exactly what constitutes probable cause? I have read several wordy legal definitions of this term, but generally stated it is simply a "reasonable belief that a person has committed a crime". I have seen it described, for example, as there being sufficient evidence or grounds to tip the scales in favor of the officer, or saying that it's more likely than not (it's probable) that the person in question committed the crime based upon facts and information known at the time. All true searches and all arrests must be based on probable cause. That does not mean that sufficient grounds have to exist at the time of the search or arrest to convict the person in court of the crime "beyond a reasonable doubt", which is a vastly greater hurdle to overcome. It simply means that the person or property can be searched and the person arrested or taken into custody and charged with an offense if there is probable cause to do so.
Another point I hear and see argued in the blogs is whether or not the Fourth Amendment requires a warrant be in hand before a search or seizure is conducted. While the language in the amendment states that no warrant shall issue but upon probable cause, nowhere in the amendment does it proclaim that a search or seizure cannot be made absent such a warrant already in hand. In fact, the appellate courts long, long ago recognized that there are several categories of searches that can be lawfully made and held valid without first having a warrant. However, officers making warrantless searches in the field must understand that all warrantless searches are presumed on their face to be invalid, and that the government (Prosecution) has the burden of proving the warrantless search was permissible and justifiable under the circumstances existing at the time the search was made. These situations are argued in court in what are called "suppression hearings", where the offender seeks to have the Judge suppress or toss out evidence that was seized as a result of the search. If the challenge to the warrantless search is successful, then the Judge will apply the "exclusionary rule", which is a contrived mechanism invented in the 1960's by the U. S. Supreme Court (Mapp vs. Ohio case), to throw out all evidence seized and all fruits of the crime uncovered as a result of the invalid search. It’s a way to punish the officer for not following the rules. In criminal proceedings, if the officer's evidence is thrown out, then he doesn't have a case and the defendant will most probably be acquitted. Certainly no officer wants to see this happen, therefore we try to conduct searches in a lawful and proper manner.
In Arkansas, officers must also meet the requirements imposed by Article 2, Section 15 of the Arkansas Constitution, which reads, "The right of the people of this State to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue, except upon probable cause, supported by oath or affirmation, and particularly describing the places to be searched, and the person or thing to be seized." As we can see, the language in this section very nearly mirrors the language in the Fourth Amendment of our Bill of Rights. It's very interesting also to note that the individual States may impose restrictions on the government that are even more stringent than those imposed by the Fourth Amendment, but may not impose lesser restrictions. One can find through reading Arkansas case law that the Arkansas Supreme Court has several times interpreted that specific Arkansas laws and procedures have imposed greater restraints on the government than the U. S. Constitution and Federal Courts have in one way or another. Of course, since we work in Arkansas then that's what we must adhere to.
So, we mentioned that appellate courts recognize certain exceptions to the requirement to get a warrant to conduct a search. Let's talk about them in general terms, with the understanding that each situation is different and certain nuances of the exception will or may apply or come into effect depending on the circumstances. It's impossible to give a blanket yes or no “may the police search” answer on some of these. They have simply been interpreted too many times in too many ways by the courts. It's extremely difficult and frustrating to try and keep on top of the ever-changing rules.
Consent Searches: Any adult may give an officer or agent either written (best) or verbal consent to conduct a search of his person, home, personal items, vehicle, etc. The officer asking for consent must have a lawful right to be at the location to begin with, such as a vehicle stop on the roadway or in a public place or a disturbance complaint at a residence. The key to having a consent search upheld is being able to prove that consent was freely and voluntarily given, without duress or coercion by the police or government agent. People have an absolute right to refuse to give consent to a search. If consent is denied, then no search will be conducted unless the officer or agent has already developed probable cause by other means to justify a search. The fact that a person denies consent can never be used to establish probable cause to conduct the search anyway. If a person does grant consent, then he may limit the scope of the search to, say a particular room in a house or a particular part of a vehicle, and he may revoke the consent at any time after it has been given, although officers do not have to tell the person these facts in advance. A person cannot give officers consent to search a portion of a residence that he does not exercise complete control over, such as a bedroom used exclusively by a roommate or boarder. Also, for example, if a residence is occupied jointly by a married couple, and both parties are home at the time, then both of them would have to give consent in order for it to be valid.
Automobile Exception: It is fairly conclusively established that any time an officer has developed probable cause to search a motor vehicle, then he may do so without obtaining a warrant, particularly if the vehicle is found on a public roadway, a public place, or a place of stop or detention. The reasoning behind this exception is that courts recognize an automobile is capable of being driven away and may no longer be there when an officer returns hours later with a search warrant. Of course, if the vehicle is inoperable such as not having an engine or without tires, for example, then this exception will probably not apply and the procurement of a warrant would be necessary.
Open Fields: Officers are not required to obtain warrants to search, or even to enter in the lawful course of their duties, open fields or open areas that fall outside the curtilage (maintained area immediately surrounding a structure, such as a house). The presence of fences, signs, or gates do not make any difference. The courts have deemed that people have no reasonable expectation of privacy in open fields, and have held that entry into an open field does not even constitute a search within the meaning of the Fourth Amendment, therefore no probable cause is needed. This same principle applies, as an example, to the Sheriff's Office helicopter being used to search open areas for marijuana, stolen property, or other contraband or illegal activities.
Inventory Search: The purpose of the inventory search of a vehicle (which really is not techincally a search either) is for the purpose of inventorying, recording, and identifying goods, valuables, and personal effects for safekeeping. An inventory search can only be conducted when the law enforcement agency has in place a written policy that authorizes such procedures to occur. The policy may lawfully authorize officers to open the trunk, locked containers, luggage, and etc. to inventory their contents as well. Any contraband or evidence of crimes that is found may be lawfully seized used as the basis of a criminal charge. Inventory searches may not be selective; they must be uniformly applied and conducted each and every time a motor vehicle has been "impounded", which doesn't necessarily have the same meaning as "towed", by the officer or agency. A vehicle can become "impounded" for several reasons, the most common of which is that the driver of the vehicle has been arrested, seized, and/or taken into custody.
Plain View, Hearing, Smell: The Plain View doctrine allows offers to seize evidence and contraband found in plain view during a lawful observation. For the plain view doctrine to lawfully apply, there is a three prong test required: 1) The officer has to be lawfully present at the place where the evidence can be plainly viewed; 2) The officer has to have a lawful right of access to the object; and 3) the incriminating character of the object must be immediately apparent. Officers may not move objects around to get a better view of them to try and determine what is there. The Plain View doctrine has been expanded to include plain feel, plain smell, and plain hearing. One example of the Plain Smell doctrine would be when an officer has a vehicle stopped and detects the unmistakable odor of burned marijuana coming from the vehicle or persons therein. That plain smell of burned marijuana would certainly justify a search.
Pat Down Search or Stop and Frisk: This is also called a "Terry Stop" because justification for a frisk or pat down was held to be reasonable in certain situations under the Terry vs. Ohio case from 1968. This case allows the police to briefly stop and detain a person whom they reasonable suspect is involved in criminal activity and also held that the police may do a limited search of the suspect's outer garments for weapons if they have a reasonable and articulable suspicion that the person detained may be armed and dangerous. The Arkansas Rules of Criminal Procedure are more restrictive than the procedures permitted under the Terry case. A very important distinction in a Terry Stop is that an officer only needs "reasonable suspicion" and not "probable cause" to make the brief detention and/or pat down. Reasonable suspicion is a lower burden or standard and can be easily reached if the officer can accurately and sufficiently articulate facts and circumstances to justify it. The detention must be very brief in nature, generally no more than 15 minutes in duration, after which the officer must either release the person from detention or have developed probable cause that would allow the officer to arrest the person for a crime. The pat down or "frisk" must be limited to the outer clothing of the suspect. Its purpose is to find weapons that might harm the officer, not to search for evidence or contraband. Officers may remove any item believed to be a weapon, but otherwise may not empty pockets or manipulate objects to try and determine what they may be. If, in the normal course of the pat down, the officer feels something that he immediately recognizes as contraband, without manipulation or viewing, then he may remove it and seize it as evidence.
Search Incident to Arrest: The doctrine for this exception first came about from the Chimel vs. California case from 1969, followed up later by the Belton vs. New York case in 1981. It evolved from the theory that whenever an officer arrests someone, with or without a warrant, the officer should be permitted to fully search the person and any area within the person's arms reach (wingspan) in order to locate evidence of the crime or contraband, protect the officer, and prevent the escape from custody of the person so arrested. The Chimel case involved an arrest made inside a residence, while the later Belton case applied the "Chimel Doctrine" to persons arrested out of an automobile. Arkansas rules generally followed that criteria, with the additional requirement that the "Search Incident to Arrest" must be made substantially contemporaneous to the actual arrest itself. This meant, for example, that the search could be conducted at the time of the person was arrested and removed from the vehicle, but not if an officer returned to the parked vehicle several hours later wanting to search it. In 2009, all this changed, however, when the case of Arizona vs. Gant was decided by the U. S. Supreme Court. The court set aside portions of the previous criteria from the Belton case and made the "Search Incident to Arrest" more restrictive than before. In Gant, The United States Supreme Court agreed with Mr. Gant holding that the police are authorized to search a vehicle incident to a recent occupant's arrest only when the arrested person is unsecured and within reaching distance of the passenger compartment at the time of the search. However, the Court also concluded that the police are authorized to conduct such a search when it is reasonable to believe that evidence relevant to the crime for which the occupant has been arrested might be found in the vehicle. For example, if a recent occupant of a car is arrested for possessing cocaine found in one of his pants' pockets, it would probably be reasonable for the police to believe that additional narcotics or narcotics-related paraphernalia might also be found in his car. In that case, the police would probably be justified in searching the passenger compartment and any containers located inside of that compartment.
Canine Sniffs: Courts have held that a canine sniff of a vehicle exterior does not constitute a true search within the meaning of the Fourth Amendment, thus no probable cause or even reasonable suspicion is needed for an officer to conduct a canine sniff. So long as the vehicle has been lawfully stopped or detained in the first place, no separate additional suspicion of any kind is needed before a canine sniff of the vehicle exterior can be made. The canine sniff must be made, however, within the time frame allowed by law for the stop or detention to continue from the time it was initiated.
Exigent (Emergency) Circumstances: Although there are even more exceptions, the final exception I wish to comment on is called "Exigent Circumstances". This exception permits officers to enter a structure without a warrant when situations exist where people are in imminent danger, evidence faces imminent destruction, or a suspect will escape. There is no ready litmus test for determining whether such circumstances exist, and in each case the extraordinary situation must be measured by the facts known by officials at that time. One quick example that I can think of would be when officers respond to a residence on a domestic violence call. On arrival, officers hear someone inside the residence screaming for help, but nobody will answer the door. In such a case, officers would have probable cause to believe that a true emergency exists inside the residence and immediate entrance without a warrant would be justified for the protection of life.
Although this newsletter has been somewhat lengthy, I have really only just scratched the surface in discussing search and seizure issues. As everyone should be able to see from this discussion, the restraints imposed on police and government authority by the Constitution when it comes to searches and seizures are great and many. The rules never stay the same. They change regularly, at least in some small way as new cases are heard and decided. I truly believe that every officer I work with strives diligently to conduct searches within the guidelines of our laws and training. Everyone, me include, has made and will continue to make mistakes from time to time.......but that's exactly what they are.....mistakes. I do not believe that any officer I know would deliberately or knowingly conduct a warrantless search that he or she did not fully believe to be justified and lawful under the circumstances prevailing at that time. There would be no reward in doing so, because as already explained, the ever-present "exclusionary rule" is always there waiting to be invoked against those who have not followed the rules.
As always, thanks again for your continued support !
Capt. Jeff Lewis,
|The Bill of Rights
||Example of a searchbeing conducted
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