The Fourth Amendment

The Fourth Amendment to the United States Constitution ensures the right of all citizens to "be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ..." The Fourth Amendment also provides that a search or arrest warrant cannot issue without "probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

People are entitled to Fourth Amendment protection against random or unreasonable searches or seizures only if they can demonstrate a legitimate expectation of privacy in the area searched and/or the items seized. To have a legitimate expectation of privacy, a person must demonstrate (1) a subjective expectation of privacy (a sincere belief that the property was private and not subject to search) and (2) that this expectation of privacy is one that society is prepared to recognize as objectively reasonable (that the person's belief that the property was private was reasonable).

Because the Fourth Amendment prohibits "unreasonable searches and seizures", the legality of a search is determined by a standard of reasonableness. One example of this rule is the probable cause requirement, which provides that an officer must have probable cause to conduct a search without a warrant. Second, the Fourth Amendment is generally interpreted to require that a warrant be obtained for a search whenever it is practicable to do so.

Courts are required to carefully weigh two competing values in deciding cases of search and seizure. On the one side of the scale is the ancient principle of Anglo Saxon law, "Every man's home is his castle." On the other side is the need for authorities to obtain any and all evidence that will help them in solving crimes and bringing criminals to justice.

The Fourth Amendment, and the rest of the U.S. Constitution, protects citizens against unconstitutional police action by federal and state authorities. Accordingly, the Fourth Amendment protects citizens in Pennsylvania (and all other states) and the five-county area in which I practice (Montgomery County, Berks County, Bucks County, Chester County and Delaware County).

There are specific exceptions to the general requirement that the police need a warrant prior to searching and/or seizing private property or persons. These specific exceptions to the warrant requirement include the following:

Stop and Frisk

A "stop and frisk" occurs when a police officer has reason to believe a person is behaving suspiciously and is likely to be armed. Police officers may ask for identification as well as an explanation for what they consider to be suspicious behavior. And, the police may
"frisk" or pat down a person on the exterior of his or her clothing to ensure that he or she is not armed. A person subject to a "stop and frisk" does not have to respond if asked specific questions about any crime.

Consent

Consent takes places when a person voluntarily agrees the police may conduct a search without a warrant and without probable cause. Normally a person may only grant permission to search his or her belongings or property. The consent to search must be wholly voluntary; it may not be coerced or implied in any manner. Consent given on the basis of deception by the police is not voluntary. And, the person giving consent must have the legal authority to do so (that is, a house guest may not have the authority to consent to a search of the homeowner's house).

Plain View

Plain View is when an object connected with a crime can be seen by the police from a place where he or she has a right to be. This frequently occurs on vehicle stops and/or DUI investigations where the police assert they have seen evidence in the automobile in "plain view". Police may seize evidence observed in "plain view" without a warrant provided the discovery is evidence is truly visible from a vantage point where the police are permitted without a warrant (that is, police may not unlawfully enter an automobile on a DUI stop and then claim that evidence was in "plain view" under the front seat).

Hot Pursuit

Hot pursuit occurs when the police are chasing a suspect and know where he or she is. They are not required to obtain a search warrant before entering a building that they have seen the suspect enter. It is also lawful to seize evidence found during a search conducted while in hot pursuit.

Exigent or Emergency Situations

If an exigent or emergency situation exists, police may not have to obtain a search warrant prior to seizing evidence. This is true when the police must act to prevent damage, death or serious injury, or the imminent destruction of evidence. Example situations include bomb threats, entering a house after smelling smoke or hearing screams, etc.

Automobile Searches

Courts have ruled that people are entitled to less privacy in their automobile than in their homes or places of business. This is based on the theory that automobiles (unlike homes) are mobile and that it is not always practicable to obtain a warrant prior to searching for evidence. The police have greater leeway to search an automobile after a traffic or potential DUI stop (because the driver will otherwise leave after the stop) as opposed to a unoccupied or parked vehicle (which will not drive away while the police obtain a warrant). The U.S. Supreme Court has held that because courts have a strong interest in deterring the crime of DUI, sobriety checkpoints (where a person is randomly stopped questioned and otherwise analyzed) are constitutional if certain requirements are met.

Sobriety Checkpoints

As stated above, the U.S. Supreme Court has ruled that the police may use properly established DUI "Sobriety Checkpoints" to investigate potential DUI offenders. This is a dramatic exception to the rule against random searches and seizures. Sobriety checkpoints or roadblocks involve law enforcement officials stopping every vehicle (or vehicles selected on a pre-determined mathematical basis such as every third or fifth or tenth vehicle) on a public roadway and investigating the possibility that the driver might be DUI or otherwise impaired to drive. Such checkpoints are often set up late at night or in the very early morning hours and on weekends during times where it is perceived that the percentage of DUI drivers tends to be the highest.

At a DUI checkpoint, if the police develop reasonable suspicion that a driver is DUI, the stopped driver is required to exit the vehicle and take roadside field sobriety tests designed to demonstrate mental and balance skills that DUI offenders may be lacking. If the police determine that the DUI suspect has not passed these tests, the person is required submit to blood or breath alcohol test. A blood alcohol result of .08 or higher will generally result in the person being charged with DUI.

In DUI cases, it is important for defendants and their counsel to focus on the specific requirements police departments must follow to ensure that a sobriety checkpoint is constitutional and, therefore, legal. Court decisions, and procedures set froth by The National Highway Traffic Safety Administration, have resulted in guidelines for police in planning and administering a sobriety checkpoint which include the following:

• Overall decision-making must be at a supervisory level, rather than by officers in the field.
• A neutral formula must be used to select vehicles to be stopped, such as every vehicle or every third vehicle, rather than leaving it up the officer in the field.
• Primary consideration must be given to public and officer safety.
• The site should be selected by policy-making officials, based upon areas having a high incidence of drunk driving.
• Limitations on when the checkpoint is to be conducted and for how long, bearing in mind both effectiveness and intrusiveness.
• Warning lights and signs should be clearly visible.
• Length of detention of motorists should be minimized.
• Advance publicity, such as publication in widely-circulated newspapers, is necessary to reduce the intrusiveness of the checkpoint and increase its deterrent effect.

Probable Cause to Arrest - The Totality of the Circumstances

In determining whether police had "probable cause" to make a DUI stop or "reasonable suspicion" to speak with a citizen, courts look at the "totality of the circumstances" of each case to see whether the police officer has a particularized and objective basis for suspecting legal wrongdoing. The theory behind this "totality of the circumstances" approach for police officers is that officers should be allowed to draw on their own experience and specialized training to make inferences from and deductions about the information available to them that could elude an untrained person.

Courts are consistently clear, however, that police may not act on a mere "hunch" or "suspicion" to justify an investigatory stop for suspected DUI or any other suspected crime. Police must be able to articulate "probable cause" or "reasonable suspicion" to justify a stopping a car for a suspected DUI or a pedestrian for investigative questioning.

When the police violate the rule against unlawful searches and seizures, evidence obtained as result of this unlawful police activity must be excluded from any prosecution of the accused. This rule, known as the "exclusionary rule", provides that all evidence obtained through an illegal search or an illegal stop of a DUI defendant is excluded and cannot be used against the defendant at trial. Accordingly, if the police illegally obtain evidence from a warrantless search of a house or automobile, or obtain a blood-alcohol-content result from a person after an unsubstantiated DUI stop, such evidence cannot be used against the accused at trial.

A lot of the case law relating to the right against unreasonable searches and seizures involves the stop of vehicles in Driving Under the Influence / DUI cases. The law is clear that the police may not pull-over or stop a vehicle based merely on a "hunch" that a person may be a wanted criminal or guilty of a crime such as DUI. To pull a person over for a suspected DUI, the police must observe an actual violation of the law, such as a legitimate driving violation such as speeding or repeated swerving. Absent such "probable cause", the police may not stop a vehicle even if they believe that a person may be, or is likely, wanted for a crime such as DUI.