Wednesday, February 23, 2011

Can you say no to the police? Your Constitutional Fourth Amendment Right


The Fourth Amendment to the United States Constitution states, " 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.” U.S. Const. amend. IV.

The United State Supreme Court clarified this in their 1968 Terry vs. Ohio decision. They held that the Constitutional Fourth Amendment prohibition on unreasonable searches and seizures is not violated when a police officer stops a suspect on the street and frisks him without probable cause to arrest, if the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime.  This is often referred to as a Terry Stop and allows the officer to conduct a pat-down to search for weapons. 

The Georgia Court of Appeals recently confirmed that decision when they found, “Police officers were authorized to assume that the defendant posed a danger to their safety, and thus, the pat-down search for a weapon was constitutionally permissible.” Lewis v. State, Daily Report A10A1669.

This means that if a police officer believes you pose a danger and that officer can point to specific facts (more than a mere hunch) to support his belief, then the officer is allowed to conduct a Terry Stop and Frisk. This Terry Stop and Frisk is limited to your outer garments to search for weapons only. Additional exceptions also allow police officers to seize contraband that is immediately apparent by feel or sight. 

When a police officer asks if they can look around, many people just answer yes, but our Constitution allows us to say NO.  With your consent, the police can search even if they have no legal authority to do so. Refusing permission to search does not mean that you are guilty, that you are hiding something or even that the search will not happen. If the police still want to search your things and you refuse, they are then required to obtain legal authority to conduct the search. This type of balance ensures that our Constitutional right “against unreasonable searches and seizures” is protected.

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