Search and Seizure


Invoking Fourth Amendment protections is often critical to defending a client in criminal cases, especially in federal court where there is a large body of law governing proper proceedures. If the government violated an individual's Fourth Amendment, the remedy can be to exclude the evidence that resulted from the violation.

 The Fourth Amendment safeguards "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." In reading the Amendment, the court is guided by "the traditional protections against unreasonable searches and seizures afforded by the common law at the time of the framing," Wilson v. Arkansas, 514 U.S. 927, 931, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995).

The standard used to determine whether an arrest or search is lawful is whether the government had probable cause. The standard of probable cause "applie[s] to all arrests, without the need to 'balance' the interests and circumstances involved in particular situations." Dunaway v. New York, 442 U.S. 200, 208, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender. Atwater v. City of Lago Vista 532 U.S. 318, 354, 121 S.Ct. 1536, 1557 (U.S.,2001).

The standard for conducting a brief stop of an individual is lower. When an officer has "articulable suspicion" that crime is underway, the officer may investigate by stopping the individual for a short time and may frisk the person for weapons. (known as a "Terry stop and frisk") Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).  This is what occurs in most traffic offenses.

 Consensual encounters are another way law enforcement officers obtain evidence without violating Fourth Amendment law. Law enforcement officers do not violate the Fourth Amendment's prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen. See, e.g., Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) 201 plurality opinion); see id., at 523, n. 3, 103 S.Ct. 1319 (REHNQUIST, J., dissenting); Florida v. Rodriguez, 469 U.S. 1, 5-6, 105 S.Ct. 308, 83 L.Ed.2d 165 (1984) (per curiam) (holding that such interactions in airports are "the sort of consensual encounter[s] that implicat[e] no Fourth Amendment interest"). Even when law enforcement officers have no basis for suspecting a particular individual, they may pose questions, ask for identification, and request consent to search luggage--provided they do not induce cooperation by coercive means. See Florida v. Bostick, 501 U.S., at 434-435, 111 S.Ct. 2382 (citations omitted). If a reasonable person would feel free to terminate the encounter, then he or she has not been seized. U.S. v. Drayton, 536 U.S. 194, 200-201, 122 S.Ct. 2105, 2110 (U.S.,2002)

In some cases, where the an individual's Fourth Amendment rights have been violated, the evidence resulting from that violation is prohibited from being used against them. The exclusionary rule is a judicially created remedy designed to remedy the individual's violation and to safeguard against future violations of Fourth Amendment rights through its deterrent effect. However, the issue of exclusion is separate from whether the Amendment has been violated. The Amendment does not expressly preclude the use of evidence obtained in violation of its commands, and exclusion is appropriate only where the rule's remedial objectives are thought most efficaciously served.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Court held that certain warnings must be given before a suspect's statement made during custodial interrogation could be admitted in evidence. In Miranda, the Court noted that the advent of modern custodial police interrogation brought with it an increased concern about confessions obtained by coercion. 384 U.S., at 445-458, 86 S.Ct. 1602. Because custodial police interrogation, by its very nature, isolates and pressures the individual, the Court stated that "[e]ven without employing brutality, the 'third degree' or [other] specific stratagems, ... custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals." Id., at 455, 86 S.Ct. 1602. The Court concluded that the coercion inherent in custodial interrogation blurs the line between voluntary and involuntary statements, and thus heightens the risk that an individual will not be "accorded his privilege under the Fifth Amendment ... not to be compelled to incriminate himself." Id., at 439, 86 S.Ct. 1602. Accordingly, the Court laid down "concrete constitutional guidelines for law enforcement agencies and courts to follow." Id., at 442, 86 S.Ct. 1602. Those guidelines established that the admissibility in evidence of any statement given during custodial interrogation of a suspect would depend on whether the police provided the suspect with four warnings. These warnings (which have come to be known colloquially as "Miranda rights") are: a suspect "has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." Id., at 479, 86 S.Ct. 1602. Dickerson v. U.S. 530 U.S. 428, 434-435, 120 S.Ct. 2326, 2331 (U.S.,2000).

Suppression issues based on the circumstances of the defendant's interrogation remain some of the most heavily-litigated areas of criminal law. These “suppression motions” often make or break a criminal case. In a recent landmark case, US v. Faisal Hashime, No. 12-5039 (4th Cir. 2013), The Fourth Circuit held that an individual who was questioned in the basement of his home was in custody for purposes of the Fourth Amendment. The court explained that, in order to determine whether a defendant, not under formal arrest, was in custody for the Miranda requirements to apply, it will look at the totality of the circumstances to make an objective inquiry into whether a reasonable person in the individual's situation would have thought they were in custody. The Fourth Circuit concluded that even though law enforcement told Hashime that he did not have to answer any of their questions and he was free to leave, and that he was in his own home, the broad setting of the entire search and interrogation, including the fact that Hashime was isolated from his family during the interrogation, would lead a reasonable person to believe he was in custody. Importantly, the Court noted that Hashime and his family were unable to move freely throughout their own home. The Court pointed to the fact that Hashime and his family, even though they were in their own home, were required to have law enforcement escort where they went in the house changed the entire setting of the interrogation. Because the family had lost control of their home, the fact that the interrogation was conducted in his basement did not change the fact that the interrogation was conducted in a custodial setting.

If you think that your Fourth Amendment rights have been violated in a criminal case, it's important to relay that to your attorney. Additionally, it is helpful to provide a detailed description of everything that happened so your attorney can evaluate whether you have a Fourth Amendment challenge in your case. You are always welcome to contact us for a free evaluation.

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