A police offer may stop a person if he has an articulable and reasonable suspicion of criminal activity. The authority to investigate suspected criminal activity may include the authority to conduct a pat down search for officer safety. The purpose of a pat down is to find weapons that might put the officer or other bystanders in danger. Although it may result in the discovery of of there evidence, the pat down cannot be a general exploratory search for whatever evidence of criminal activity officers might find. Whether a reasonable person in the officers circumstances would have believed there was a danger, regardless of whether the officer actually feared for his own safety or the safety of others. Weapons searches under Terry present two main issues
- Was the search reasonable at the outset
- Did the facts support a finding that a reasonable officer would have feared for his safety.
What Justifies a Pat Down
- Sudden movement of suspect’s hand
- The circumstances of the detention, for instance, a defendant fleeing from officers in a heavy Narcotics trafficking area
- Unprovoked flight from officers
- Pacing nervously in the dark, unsecured are suspected of narcotics operations
- Officer provides knowledge that a suspect owns or has weapons.
An immediate pat down of a suspects outer clothing is the most common activity conducted under a Terry search, but the permissible scope of Terry searches is broader
- Officers may reach into an area of a suspects clothing when the officer has specific information that the suspect has a weapon hidden there.
- Officers may search a car, or the passenger compartment of a car if they believe a weapon might be hidden there, and officers have reasonable belief that the occupant is dangerous
- Officers may search purses if they believe a weapon may be hidden there, even if an initial pat down does not uncover a weapon.
- Officers may ask the driver or passenger to get out of the car.
- Courts will look at the purpose of the stop, and the time needed to fulfill that purpose, and the method used to investigate it.
Search During The Traffic Stop
An officer who has made a valid traffic stop may order passengers as well as the driver to exit the vehicle. WIthout reasonable suspicion, officers may only conduct consensual questioning of passengers in a vehicle. Searches of passengers and their belongings, depending on the facts, might be authorized under at least two warrantless exceptions:
- A search incident to arrest includes the right to search the passenger compartment of the vehicle if the defendant is an occupant of the vehicle at the time of his arrest; and contraband found in the car can lead to probable cause to believe any or all occupants of the car are committing the offense of drug possession and authorize a search of the driver and all passengers and all areas of the car.
- Consent can also authorize a passenger search, but note that consent from the driver of the car does not necessarily extend to cover searches of the passenger’s belongings. A driver may also have standing to contest the search of a passenger in his car.
Police may conduct a valid warrantless search if a suspect voluntary and intelligently consents. The relevant issues in a consent case are:
- Voluntariness of the consent,
- Scope of the consent, and
- Authority of person giving the consent.
The question of whether an individual has voluntarily consented to a search can be answered by examining all relevant circumstances to determine if there has been coercion. Because knowledge of a right to refuse to consent is not a prerequisite of a voluntary consent, an officer is not required to advise an individual of his right to refuse before obtaining voluntary consent.
Consent cannot be coerced by explicit or implicit means, by implied threat or by force, and the suspect’s consent must be unequivocal. Mere acquiescence to an officer’s lawful authority is not sufficient to establish voluntary consent. Police do not have to give a defendant Miranda warnings prior to obtaining his consent to a search. Consent can also be implied through a defendant’s actions. Additionally, oral consent is sufficient; there is no requirement that an officer get consent in writing. Displaying weapons by officers, seeking consent from a mentally impaired suspect, or handcuffing a suspect at the time consent is given are the types of factors courts have cited in finding that consent was not voluntary.
The scope of the search is limited by the scope of consent. But consent extends to all areas to which a reasonable person under the circumstances would believe it extends. The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of objective reasonableness, what would a reasonable person have understood by the exchange between the officer and the suspect. Courts might question both the timeframe and the area included in the scope of a person’s consent to search. A defendant’s consent to search his car includes searching a closed container.
Authority to Consent
A person with common authority over property may consent to its search. Assuming that the consent was given voluntarily and the search didn’t exceed the scope of the consent given. The consenting person must have an expectation of privacy in the place or object searched. A person who co owns property may give consent on behalf of the absent co owner, but not if the co owner is present and denies consent. Courts look for the following factors in reviewing the facts surround the consent to search:
- Consent must be obtained from an individual with an expectation of privacy
- The consenting person individual must understand the circumstances and voluntary waive his constitutional rights to privacy; and
- The person who consented must have contemplated that police would search as extensively as they do.
Courts have ruled that third parties in the following types of relationships to defendants can give effective consent to search under their joint control and use
- Spouses, if consent has not been limited or refused by the other spouse;
- Employers and employees;
- Landlords and roommates;
Courts have limited the right of third parties to consent in the following situations
- Child consenting to search parent’s home;
- Motel employee before expiration of the guest’s occupancy time;
- Roommates, after one roommate has moved out.
Texas law includes 10 statutory exceptions to the general requirement that arrests should be made with a warrant.
- Presence or View of Officer
- Suspicious Place or Circumstances
- Protective Order Violations
- Preventing Consequences of Theft
- Presence or View of Magistrate
- Assault/Family Violence
- Fleeing Felons
- Fugitives from another State
- Interfering with Emergency Phone Calls
- Admissible Felony Confessions
Probable cause along with exigent circumstances may justify a search or entry without a warrant. This is also known as the emergency doctrine. Exigent circumstances case typically involve
- Protection of life
- Protection of property
- Preventing destruction of evidence
- Pursuing a fleeing felon
- Protective sweeps
Exigent circumstances may justify the initial entry into the house but because the purpose of the exception is to aid someone in distress or to secure safety, once the crisis is contained, further searching is not permitted. A warrant or another exception may authorize continued seating of the premises, however, and officers can secure the scene for the time it takes to get a warrant.
If police have probable cause to believe that a vehicle contains contraband or evidence of a crime, they may search the vehicle without a warrant under the automobile exception. This is based on a lessened expectation of privacy once a person enters a car, and the mobility of cars.
The automobile exception does not require any independent exigency for officers to be justified in searching without a warrant, as long as police have probable cause. The scope of a warrantless search based on probable cause is no narrower, and no broader, then the scope of a search of a search that would be authorized by a warrant supported by probable cause. If police have probable cause to search the vehicle, they can search the vehicle, they can search all containers in the vehicle and trunk as long as the size of the container reasonably corresponds to the size of the object for which they are searching. The automobile exception allows officers to search even after the suspect has exited the car. Once an officer determines he has probable cause to arrest a suspect, officers can ensure their safety and preserve evidence by searching the car’s entire passenger area.
The Fourth Amendment provides no protection at the border or its functional equivalent. By crossing any international borderline, a person has implicitly agreed to an inspection. Officers can stop someone at checkpoint or its equivalent and detain and question them but cannot search without probable cause.
If officers entry into a home is reasonable under the Fourth Amendment, other exceptions to the warrant requirement may allow further search or seizure than the justified at the beginning of the entry.
A person has no legitimate expectation of privacy in an open field regardless of fences, signs, or the property’s secluded location.
The Fourth Amendment protects the curtilage of a home, defined as the land immediately surrounding and associated with the home, but not land outside the curtilage, including an adjacent open field owned by the residents.
A suspect is considered to have relinquished any expectation of privacy once he has abandoned something, such as garbage left at the curb for pickup. Therefore, there is no search when poise seize property that has been abandoned. Abandoning evidence at houses and apartments is not as easily determined as at hotel rooms. Whatever possessions a defendant leaves behind after he checks out of a hotel room or vacates an apartment can be considered abandoned property, if there’s no reason to believe the defendant elects to come back for his things.
Dropping contraband or incriminating evidence in the hopes that offers won’t connect the defendant to the evidence amounts to abandonment. Numerous Texas cases have upheld officers’ right to seize drugs tossed aside by a suspect without a warrant under the theory of abandonment.
Once a defendant leaves his trash at the curb outside the curtilage of the home, he has given up his expectation of privacy in whatever is in the garbage bags, and officers may seize whatever is in the trash without a warrant under the abandonment theory. Even if the defendant is able to show that he had a subjective privacy expectation in his trash, that expectation is not one society is prepared to recognize as reasonable.
Car Frisk Under Terry
- Frisk of passenger compartment areas where weapons might be hidden; includes open and closed containers. No trunk search unless an initial search leads to probable cause. Focus of search are weapons.
Search Incident to Arrest
- Entire passenger compartment, console, glove compartment and any containers, open or closed, locked or not within suspect’s wingspan. No truck search unless initial search leads to probable cause to search trunk. Focus of search includes weapons and evidence.
- Any part of vehicle where the evidence sought might be located (anywhere a search warrant would allow officer to look based on probable cause. Trunk search is justified. Focus of search includes all items for which officer has probable cause.
- Any part of vehicle for which consent is given, including containers. Trunk search is justified if covered by consent. No specific focus of search required, just valid consent.
- Areas authorized by department’s inventory policy. Trunk search is justified if policy includes it. Focus of search are valuables, weapons, hazardous materials – not evidence.
In drug testing and in searches on school property, the Supreme Court has given schools leeway to use search powers to guard against dangers beyond that given in other contexts involving adults. The Court has ruled that a warrant and finding of probable cause in the public school context are unnecessary because the requirements would unduly interfere with the maintenance of the swift and informal disciplinary procedures that are needed. Determining the reasonableness of a search at school requires courts to look at two things whether the action was justified at its inception, and whether the search as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place.
Drug testing in the private sector does not implicate Fourth Amendment protections. The Supreme Court recognized a reasonable expectation of privacy that an employee has in is office, drawer, and files. A work related search by employers, however, will not require a warrant if its purpose is reasonable at the beginning and if the scope of the search does not exceed the justification. The Court tied the idea of reasonableness to the reason for and object of the search.
Drug and Alcohol Testing
A divided U.S. Supreme Court has shown increasing willingness to allow suspicion less drug testing in a variety of areas. In evaluating the reasonableness of a particular kind of drug testing, the Court has abandoned more traditional reasonableness inquires to balance the special needs that justify the program against the individual’s privacy interest.
Random drug testing in the private sector does not implicate Forth Amendment protections. Suspicion less drug testing of employees for certain sensitive positions can be reasonable. A court will weight the intrusion upon the privacy interests of the individuals being tested against the government’s stated special need in conducting the test. A program may be unconstitutional even if the intrusion is minimal if the government fails to establish a sufficient special need justifying the intrusion without individual suspicion.
In 2002, the Supreme Court ruled that suspicion less drug testing of all students participating in extracurricular activities was constitutional. The Court found the students privacy interests were not significant and the schools concerns about the nationwide drug epidemic were a significant factor in balancing the interests.
Some activities carry a greater potential for public harm, and so the Fourth Amendment protections guarding against suspicion less searches to allow administrative searches that ensure compliance with regulations intended to ensure safety. These administrative searches are generally carried out by government agencies whose purpose is to regulate a particular industry.
No Warrant Required
Government agents may perform administrative searches without notice or a warrant.
The Fourth Amendment permits warrantless searches of parolees without any type of suspicion as a condition of parole and warrantless searches of probationers that are supported by reasonable suspicion and authorized as a condition of probation.
The Alcoholic Beverage Commission may make a warrantless search, without probable cause, of a club holding a beverage liquor license.
The Fourth Amendment does not prohibit warrantless entry into public areas to serve administrative subpoenas.
Administrative Warrant Required Health/Housing Inspections
The constitutionality of an administrative search for health or housing regulation compliance requires the familiar Fourth Amendment balancing test between the need to search versus the intrusion, with a slight variation. A routine administrative search is reasonable where the need for inspection viewed in terms of its goal, enforcement of the municipal code, in this case, outweighs the intrusion. The Supreme Court ruled that these administrative searches are typically reasonable based on judicial and public acceptance, they further the public goal of preventing dangerous conditions, and the intrusion on a person’s privacy.
Prosecutors can use subpoenas or grand jury subpoenas to obtain information gathered by non law enforcement entities. As long as the information was gathered without violating any law, the information should be admissible in a criminal prosecution and will not be kept out under Texas’ exclusionary rule.
Medical records are among the most commonly sought information obtained by non law enforcement personnel. Health and Safety Code allows a health care provider to disclose a patients health care information without the patients authorization if the disclosure is related to a judicial proceeding in which the patient is a party and the disclosure is requested under a subpoena. An entity covered by HIPPA is expressly authorized to disclose health information that is otherwise protected without a patient’s consent in numerous situations, including for law enforcement purposes.
Dallas criminal lawyer Constantine Anagnostis dedicates his practice to people who are facing criminal charges, with a primary emphasis on DWI, Drug Offenses, Expunction & Nondisclosure Agreements, and Occupational Driver’s License Issues. Dallas criminal lawyer Constantine G. Anagnostis understands the law, procedures, and penalties pertaining to criminal law, and will aggressively fight to protect your rights. You may call 817-229-0319 to schedule a free consultation, or submit a sample case form. At DFW Criminal Lawyers, L.L.C., we look forward to helping you.