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The 4th Amendment and You

This is the final article of our series on the Fourth Amendment of the Constitution. In the previous article we talked about what it means when a person is seized, so today we’re going to talk about searches.

In past articles we mentioned how an officer may search your person without a warrant, your consent, or probable cause to arrest, when he or she has reasonable suspicion that you have or are committing a crime that involves you being armed and dangerous. This comes from the landmark case Terry v. Ohio, 392 U.S. 1 (1968), where Terry and another man were seen by an officer to be acting suspiciously around a store which, based on the officer’s experience, seemed like they were casing the store for a robbery. The officer stopped the men and conducted a patdown on the outside of their clothing for weapons. This is a “stop and frisk,” which came to be called a “Terry frisk” after its namesake case. When the officer found weapons, the Supreme Court of the United States found that this search was particularly reasonable and did not violate Terry’s Fourth Amendment Rights.

The rules for a Terry frisk are simple. As we mentioned before, the officer has to have a reasonable suspicion that you are armed and dangerous in order to pat you down. If they feel anything that could be a weapon then under the “plain feel” doctrine they can pull it out to inspect it. They can also do this if they feel something that they know based on feel to be contraband, such as a bag of drugs. They cannot, however, reach inside if they feel something that falls outside of that realm, such as a phone, a wallet, car keys, or anything that does not fit the bill. If it feels like contraband to an officer based on plain feel, they have a right to seize it and possibly arrest you for it.

Let’s end with a couple of examples. First, let’s examine a case where a man was arrested for shoplifting and accidently left his wallet on the table. The officer searched it and found LSD inside. Did the officer violate his rights by searching it? As it turns out, no, he did not. This was the case in State v. Boswell 804 P.2d 1059 (1991). This ties back to the rules of expectation of privacy, and since Boswell in this situation did not have a right to privacy where we was arrested and his wallet was not on his person, the officer did not search the wallet unlawfully. This principle was applied to cell phones in Riley v. California 573 U.S. 783 (2014), in which the Supreme Court determined that officers must have a warrant to search someone’s cell phone. This is the case even while conducting a search incident to arrest (which requires probable cause, a lower standard than a warrant, as we discussed before) and therefore warrantless searches of digital contents of a cell phone are unconstitutional.

For the second example, say an officer drove by some men who upon his passing threw something into the woods. The officer stopped, and patted them down under Terry thinking that whatever was thrown could have been a weapon or something else incriminating. The officer therefore has reasonable suspicion to pat the men down. He does, and feels something hard and about three-inches-by-one-inch dimensions. Sounds like a knife, right? That’s what the officer thought, so he pulled it out. Instead, he found a small opaque container that he knew to be the type of container that drug dealers in the area use to transport drugs. He opened the container and found cocaine. Did this officer violate the man’s rights? In this case, yes. The difference is that the container was found on the man’s person, as opposed to Boswell’s wallet being found on a table. Your rights extend to sealed containers on your person, like wallets or opaque containers. Even though the officer knew this was the kind of container drug dealers use, he had no true idea based on looking at it that it contained an illegal substance. This means the officer should have stopped his search when he saw that it was not clearly contraband or a weapon; continuing the search violated the man’s rights.

Thank you for reading our series on the Fourth Amendment of the United States Constitution. We hope you enjoyed this article.

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