Probable Cause: Police Searches and the 4th Amendment

For centuries, we have held the police out as a leading law enforcement agency for keeping the peace. Years of training, huge budgets, and well-intentioned officers however can not stop the rising numbers in brutal clashes between police and citizens. 

These clashes heightened recently, bringing to fore racial disparities and how minorities are often the victims of police brutality. This comes in varying forms including racial profiling regarding searches, seizures and arrests. These happenings have led to a call for police reform which has gained momentum recently. 

Government after governments have tried to solve these issues as they arise over decades. Several commissions have been set up, but the problem persists, albeit in distinct forms. 

The Black Lives Matter Protest and Demand for Police Reform

Since George Floyd, there has been a significant rise in the number of protesters against police brutality and some racial injustice. The protest has seeped into a rise in calls for police restructuring and defunding. 

Although there have been a myriad of opinions on this subject, they all seem to agree that there is a need for a reform of law enforcement systems. Major policy reforms in policing and law enforcement must cut across searches and other erstwhile legal provisions. 

Some police officers could hide behind the veil of law to commit racial injustice. For example, the Supreme Court in Graham v. Connor may have widened the latitude for use of force when “objectively reasonable”. This may not offend the letters of the law, but it contravenes its spirit.

These legal provisions protect law enforcement officers who have acted in violation of constitutional rights. This perhaps unintended consequence of law is tagged as Qualified Immunity. Until congress looks into this problem, we encourage victims to continually assert their rights through a competent criminal defense lawyer. 

Opinions on Police Reform and Restructuring

There have been two sides to the argument on police reform, especially in the wake of Trump’s law and order approach. Racial divides seep into the arguments too, as a recent study by CATO institute suggests. The study reveals that over 70% of African Americans hold the opinion that police are quick to use deadly force on citizens. Barely 40% of whites agree to this proposition.

These views have significantly shaped the liberal and conservative stances to the subject of police reform. Conservatives hold the opinion that there is no systemic problem with the police. They contend that the problem is only with a few bad apples. Studies suggest that 80% of republicans believe that police use of force is necessary and justifiable.

The Liberals on the other hand believe that there is a problem with the system. This informs their call for a system overhaul, police reform and police defunding. Undertaking a policy overhaul as the liberals suggest depends on a closer look at the laws and institution. This also applies to the position of the conservatives as covering legal loopholes may solve the bad apples problem. 

All these beg the question of the current stance of the law on the concerned subject matters. This is where the fourth amendment comes into the argument, particularly regarding search and seizures. 

Fourth Amendment and Implications for Law Enforcement 

A growing concern in law enforcement in US is false searches and racial profiling. In fact, the case of George Floyd lends credence to this. He was said to have been pulled over for a police search after someone had reported that he tried to use a counterfeit 20 dollar bill. There are instances of many other routine police search incidents that had gone south like Floyd’s. 

The Fourth Amendment of the Constitution makes provisions relating to the right to privacy and freedom from unjustifiable government intrusions. It provides that “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.

This is a natural human right that applies to all irrespective of race or ideological leanings. However, it is not an absolute right. It does not exclude the conduct of searches and seizures. Searches and seizures must however be conducted reasonably and in accordance with the law. This is one area unscrupulous officers often exploit to foist injustice on civilians. 

US Law on Reasonable Search and Seizure

Cops have found refuge in the law on arrests and the attendant factual uncertainties. Certain aspects of the fourth amendment such as “probable cause” has been leveraged upon and abused by cops. This is because of its relatively low and subjective standard. 

The phrase literally connotes that there must be a good and compelling reason to act. The same applies in this case, too. The police are required under US criminal laws to have an adequate reason before issuing a warrant for search, seizure or an arrest. Thus it is generally required under the fourth amendment that intrusive seizures be based on reasonable suspicion. 

Searches with warrants are clear, mostly. The situation becomes nebulous when searches and seizures without warrants are considered. It has been the crux of so much outrage in recent times. For example, racist cops may racially profile a black person and pull him over for a search with no reasonable cause. 

Warrantless searches are generally outlawed by the fourth amendment, but there are exceptions. The exceptions include when the searching officer possess a reasonable and articulate suspicion or ongoing criminal activity. But what qualifies as reasonable suspicion is determined by peculiar circumstances of each case. Factual twists may be exploited to the detriment of the victims. Therefore, it is important for victims of unlawful searches to have competent criminal defense attorneys on their case. 

The Miranda Rights 

Another issue that clouds the reasonableness of a search, seizure and arrest is failing to read the Miranda rights to the suspect. A law enforcement officer must read the Miranda warning to a person under custodial interrogation. It includes very important rights of a suspect such as the right to remain silent and the right to an attorney. It is an offshoot of the protection against self-incrimination under the Fifth Amendment. 

Failure to read the Miranda rights to a defendant casts doubts on its reasonability. Cops have been known to pull over persons, arrest and conduct custodial interrogations without reading out their Miranda rights. If you’ve been in this situation, contact a competent criminal defense attorney. 

We place usually more emphasis on reading the Miranda rights to a suspect in custody. This is because it only applies to suspects or defendants under custodial interrogation.  So it may ordinarily not apply to routine searches. For examples, the traffic officer needs not read the Miranda rights to a person at a routine traffic stop. 

We would advise that you maintain silence where possible during interrogations. It is best that you speak after you have consulted with your criminal defense attorney.

Let our St. Louis Criminal Defense Attorneys Fight for your rights

Have you or your loved one been a victim of false search and seizure? Our St. Louis criminal defense attorneys are ready to fight to protect your fourth amendment rights. Contact us for a free consultation or call us to discuss your case.  

Search and Seizure FAQs

  1. Can a police search be conducted without a search warrant?

Yes, they can.

Under US laws, the police do not require Search warrants for every search. Although the general rule is that there must be a search warrant before they conduct a search, there are certain exceptions at law. Some recognized exceptions are;

  • Emergency Situations

Necessity may require that a search be conducted without a warrant sometimes. In such instance, the search may be legal. 

  • Consent

A search without a warrant is not illegal if you consent. For example, if you are asked for permission to enter your home to conduct a search and you consent, it is not illegal because they did it without a warrant. 

  • Searches after Arrest 

The law allows police officers to conduct searches on an arrested person for weapons that may be dangerous. 

  1. What should I do after falling victim to a false search and seizure? 

If you’ve been a victim of a false or unlawful search and seizure your first point of call should be your attorney. You may assert your rights under the fourth amendment and recover compensation. In fact, you can include attorney fees in the damages. A competent local attorney could analyze the particular facts of your case, advise you, and proceed to recover compensation on your behalf.