Firm Announcements and Law Updates

Fourth Amendment Basics

If you were stopped by a police officer, either on the street or in a car, or you had a place searched, such as your home, you should contact an attorney to determine whether the police acted lawfully.  The Fourth Amendment to the United States Constitution provides: “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.”  In California, challenges to detentions and searches are generally made through a Penal Code Section 1538.5 motion. 

Section 1538.5 may move to “suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure,” on the following grounds:

1.     The search or seizure without a warrant was unreasonable.

2.     The search or seizure without a warrant was unreasonable because any of the following apply:

a.     The warrant is insufficient on its face.

b.     The property or evidence obtained is not that described in the warrant.

c.     There was not probable cause for the issuance of the warrant.

d.     The method of execution of the warrant violated federal or state constitutional grounds.

e.     There was any other violation of federal or state constitutional standards.

Section 1538.5 motion’s must be brought in writing, and must include a memorandum of points and authorities that “set[s] forth the factual basis and legal authorities that demonstrate why the motion should be granted.” 

When can a police officer detain me?

When is it legal for a police officer to stop you in your car on the street?  A police officer may detain a person if he or she has a reasonable, articulable suspicion that the person has engaged in or about to engage in criminal activity. (Terry v. Ohio (1968) 392 U.S. 1, 21.)  Reasonable suspicion is shown where “the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provides some objective manifestation that the person detained may be involved in criminal activity.” (People v. Souza (1994) 9 Cal.4th 224, 231.)  This requires the detaining officer’s suspicions to be “such that any reasonable officer in the detaining officer’s position would suspect the same criminal activity and the same involvement by the person in question.” (People v. McDonald (2006) 137 Cal.App.4th 521, 530 citing People v. Aldridge (1984) 35 Cal.3d 473, 478.)  In California, “A police officer can legally stop a motorist only if the facts and circumstances known to the officer support at least a reasonable suspicion that the driver has violated the Vehicle Code or some other law.” (People v. Miranda (1993) 17 Cal.App.4th 917, 926.) 

When does contact with a police officer become a detention?

If you are approached by a police officer and a conversation starts, does that mean you are detained? 

Depends.  The Fourth Amendment does not prohibit officers from asking people questions to people on the streets. (People v. Bennett (1998) 68 Cal.App.4th 396, 402.)  During a consensual encounter, a police officer may ask a citizen to remove his hands from his pockets and inquire into the contents of his pockets. (People v. Ross (1990) 217 Cal.App.3d 879, 884 (1990), disapproved on other grounds in (People v Walker (1991) 54 Cal.3d 1013 citing People v Franklin (1987) 192 Cal.App.3d 935, 940; People v. Epperson (1986) 187 Cal.App.3d 115, 118–20.)  Whether the compliance was voluntary is determined by the mode or manner in which the request for identification or to remove one's hands is put to the citizen, not the nature of the request. (Ross, 217 Cal.App.3d at 884–85); (Franklin, 192 Cal.App.3d at 942.)

No detention occurs until officers physically apprehend the suspect or until he submits to a show of authority. (California v. Hodari D. (1991) 499 U.S. 621, 627–28.)  The Fourth Amendment is not implicated when an officer approaches a person without a show of authority because the officer has not limited the person’s freedom. (Florida v. Royer (1983) 460 U.S. 491, 497); People v. Davis (1981) 29 Cal.3d 814, 820–22.)  If, on the other hand, an “officer’s words or actions” convey to a reasonable person that the officer ordered him to restrict his movement, then a show of authority occurred. (Hodari D., 499 U.S. at 628).  An officer’s words or actions may limit a person’s freedom in the following instances “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” (United States. v. Mendenhall (1979) 446 U.S. 544, 554.)

How long can the police detain me if I am pulled over?

Generally, an investigatory detention is unconstitutional if it is “‘extended beyond what is reasonably necessary under the circumstances [that] made its initiation permissible.’” (People v. McGaughran (1979) 25 Cal.3d 577, 586.)  If a detention becomes unreasonable in length, it essentially becomes an arrest that must be supported by probable cause.“ (See People v. Gomez (2004) 117 Cal.App.4th 531, 538.)

Can the police search me if I am arrested?

Yes. Police may, incident to a lawful custodial arrest, search the person of a defendant and the area immediately surrounding him in order to remove weapons and prevent the concealment of evidence. (People v. Gutierrez (1984) 163 Cal.App.3d 332, 335 citing Chimel v. California (1969) 395 U.S. 752, 763.)  An officer may search an individual incident to his lawful arrest regardless of the offense for which the arrest is made.  (United States v. Robinson (1973) 414 U.S. 218.)  The search may be for instruments used to commit the crime, fruits of the crime, evidence that will aid in apprehending or convicting the criminal, unlawfully possessed articles or weapons. (Id.)  A full custodial arrest is lawful even for a fine-only offense. (People v. McKay (2002) 27 Cal.4th 601, 607 citing Atwater v. City of Lago Vista (2001) 532 U.S. 318, 354.)  An officer with probable cause to arrest can also open any container found on a defendant’s body. (People v. Limon (1993) 17 Cal.App.4th 524 at 538.)

What if I consented to a search and a police officer found something illegal?

Often times, a police officer will ask permission to search something.  Although people have a right to refuse, they often agree and this can sometimes result in the officer locating something unlawful, such as a controlled substance or evidence of a crime.  If this occurs, you should consult an attorney to determine whether your consent was sufficient under the law.

Consent is a specifically established exception to the Fourth Amendment’s warrant requirement. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 248.)  Consent must be the product of free will rather than mere submission to an express or implied assertion of authority. (Schneckloth, 412 U.S. at 233; People v. James (1977) 19 Cal.3d 99, 106, 109–10.)  Whether consent was a product of free will is a question of fact to be determined in light of all the circumstances. (Schneckloth, 412 U.S. at 248–49.)  Courts consider whether consent was voluntary are by analyzing (1) whether the person was in custody, (2) whether the officers had their guns drawn, (3) whether Miranda warnings were given, (4) whether the person was told of the right to refuse consent, and (5) whether the person was told a search warrant could be obtained. (People v. Ramirez (1997) 59 Cal.App.4th 1548, 1558.)  “Consent induced by an illegal search or arrest is not voluntary.” (James, 19 Cal.3d at 108–12.)