When Police Stops/Seizures Are Illegal

Under the Fourth Amendment to the U.S. Constitution, you are entitled to personal privacy and protected from government intrusion, but there are certain circumstances when police officers are allowed to search you, your car, premises, or other property. This article explores what makes a police stop illegal and the limitations police have when it comes to stopping, search, and seizure.

Police are allowed to:

– Stop your vehicle when they have probable cause to believe that you have committed a traffic infraction or a reasonable suspicion that you have committed a crime. Common traffic infractions are speeding, running a stop sign or red light, reckless driving, driving with an expired safety, and driving with overly tinted windows.

– Conduct sobriety checkpoints aka DUI roadblocks in 38 states including Hawaii, provided they follow minimum standards such as stopping vehicles in a specified numerical sequence, limiting the roadblocks to three hours in a fixed location, and complying with safety standards.

– Engage in ”reasonable” searches and seizures. To prove a search is reasonable, police must show there is reason to believe that it is more likely than not a crime has occurred, and a search would uncover evidence of the crime.

– Use first-hand information or a tip from an informant to justify a search. If a tip from an informant is used, the police must prove that the information is reliable under the circumstances.

– Seize evidence when there is no “legitimate expectation of privacy” such as if a suspect leaves personal items in plain view.

Police are NOT allowed to:

– Pull you over if they suspect, but have no probable cause to believe you are committing a crime. For example, if you are seen exiting a bar in the middle of the night, police cannot simply stop you on suspicion of DUI unless they believe you have committed a traffic violation or other criminal act.

– Set up roadblocks for the purpose of finding illegal drugs because conducting suspicion-less searches for the general interest in crime control is a violation of your Fourth Amendment rights.

– Search you or your property without permission from you, a warrant, or probable cause that you have or are committing a crime. However, if your car has been confiscated by the police, they may search it.

– Stop and frisk you unless they have a reasonable suspicion that you are involved in a criminal activity. If they have reasonable suspicion, police are allowed to pat down your outer clothing.

– Use evidence against you in a trial if it was obtained through an unreasonable or illegal search. They also may not use evidence resulting from an illegal search to find other evidence. However, there is an exception to this. If you are stopped illegally and are found to have a warrant out for your arrest, then any evidence found can be admissible because the illegal police stop is sufficiently attenuated by the outstanding warrant.

Now that you have an idea of what officers are and are not allowed to do when it comes to police stops, searches, and seizures, test your knowledge with these situations.

Example: Casing the Joint

A plainclothes officer on patrol notices two men who take turns repeatedly walking a short distance in front of some stores and looking in the same store window before walking back in the direction where they came from to confer with each other. This pacing, peering, and conferring continues for about a dozen times. A third man meets them, engages in a brief conversation, leaves, and then later returns to talk in front of the store they were eyeballing.

The officer, who has now been watching them for over ten minutes, suspects the men of checking out the store in preparation to rob it. He approaches them, identifies himself as a police officer and pats down the outer clothing of all three men. He discovers guns on two of the three men. Unable to remove the gun from the overcoat pocket of one of the men, the officer has to remove the overcoat completely in order to confiscate the gun.

The two men were charged with carrying concealed weapons. The prosecution filed a motion to suppress the guns, saying that they were seized following a search incident to a lawful arrest.

Question: Was this stop legal? Was the officer justified in searching the men?

Answer: Yes and yes. Terry v. Ohio (1968) was the landmark United States Supreme Court case which held that the Fourth Amendment is not violated when a police officer stops a suspect on the street and frisks him or her without probable cause to arrest. The officer only has to have a reasonable suspicion (“whether a reasonably prudent man, in the circumstances, would be warranted in the belief that his safety or that of others was in danger”) that the person has committed, is committing, or is about to commit a crime and have a reasonable belief that the person “may be armed and presently dangerous.”

The court ruled that based on his experience and the defendants’ suspicious actions, Officer McFadden had reason to believe the defendants might be preparing to commit a robbery. Officer McFadden also had reason to believe the defendants might be armed, so patting down their outer clothing was allowed to protect himself and others from possible harm.

In this case, the defendants clearly demonstrated suspicious behavior, which the officer observed from a distance for several minutes. However, these stop-and-frisk searches are controversial and constantly being criticized for being arbitrary and discriminatory.

Example: Crime Control Checkpoint

A roadblock is set up and police stop a predetermined number of vehicles and officers do not stop any vehicle out of sequence. At least one officer approaches the vehicle, advises the driver that he or she is being stopped briefly at a drug checkpoint, and asks the driver to show their license and registration. The officer looks for signs of impairment and conducts an open-view examination of the vehicle from the outside, while another officer walks a narcotics detection dog around the outside of each stopped vehicle. Unless there was reasonable suspicion or probable cause of wrongdoing, stops took no longer than five minutes.

Question: Were these stops legal?

Answer: No. In Indianapolis v. Edmond (2000), the court found that because the checkpoint program’s primary purpose is indistinguishable from general interest in crime control, the checkpoints violate the Fourth Amendment.

In other cases, the court has ruled that checkpoints designed to remove drunk drivers from the road are allowed. The statistics against drunk drivers show astounding figures of fatal accidents, personal injuries, and property damage are caused every year. The state’s interest in preventing accidents caused by drunk drivers compared to the slight measure of the intrusion on motorists was enough to warrant the stops. Checkpoints designed to intercept illegal aliens and those to verify driver’s licenses and registrations have also been found to be reasonable under the Fourth Amendment.

Example: In Plain Sight

An officer sees a student leave a dorm room carrying a bottle of alcohol and stops him because he appears to be under 21. The student does not have his ID and has to get it from his room. The officer follows the student to his room and, while standing in the open doorway, sees what appears to be marijuana seeds and a pipe.

Question: Was the officer allowed to follow the student to his room? Was the officer allowed to seize contraband?

Answer: Yes and yes. In the case of Washington v. Chrisman (1982), the court held that it was reasonable for the officer to follow the suspect and was not considered an invasion of privacy. Since the marijuana seeds and pipe were in plain view of the officer, he was allowed to take the contraband and the evidence was admitted at trial.

Example: Suspected Drug House

Police received an anonymous tip about drug activity at a residence, so a narcotics detective conducted intermittent surveillance of the home over the course of a week. During this time, the detective noticed visitors who would leave after only a few minutes. These short visits were frequent enough to raise the detective’s suspicions that the occupants were dealing drugs, so he decided to stop one of the visitors. After checking his ID and finding the man had an outstanding warrant for a traffic violation, the detective searched him, finding a bag of methamphetamine and drug paraphernalia.

Question: Was the stop legal? Should the evidence be allowed in court?

Answer: No and yes. The recent case of Utah v. Strieff (2016) did find that the police stop was illegal because the officer lacked reasonable suspicion of a crime and instead wanted to find out what was going on inside the house. Normally, any evidence recovered by an illegal police stop is known as “fruit of the poisonous tree” and suppressed from being used in court to discourage police misconduct. However, the U.S. Supreme Court has now created an exception that allows evidence from an illegal police stop if the suspect has an outstanding warrant because the search becomes incident to the arrest and is therefore lawful.

Get Your Free Consultation by a Criminal Defense Attorney

If you’re facing criminal charges, all the little details of case are your important. An experienced criminal defense lawyer will be able to examine the facts and determine whether the police followed proper procedure. If there are problems with how you were stopped or how evidence was obtained, this could make a very big difference in the outcome of your case. A good attorney can make all the difference, so don’t hesitate to get in touch with us right away for your free initial case consultation.