What is the 4th Amendment?

The 4th Amendment to the U.S. Constitution is that part of the Bill of Rights which prohibits unreasonable searches and seizures and which requires that Judges sanction and issue warrants which are supported by probable cause. It was made a critical part of the American justice system as a consequence of the history of abuses committed by the English Monarchy and as a way to protect the American people from their own government. Florida's Constitution (as with many other State Constitutions) contains its own independent "4th Amendment" provision. Article I, Section 12 says: The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. There are additional safeguards built into to the FL version (for more on this see: http://www.leg.state.fl.us/Statutes/Index.cfm?Mode=Constitution&Submenu=3&Tab=statutes#A1S12 ).


What is the remedy for a 4th Amendment Violation?

Although it "applies" to the 4th, 5th and 6th Amendments, the "exclusionary rule" is grounded in the 4th, and it is intended to protect citizens from illegal searches and seizures. The "exclusionary rule" is a court created legal principle which holds that evidence collected in violation of a Defendant's constitutional rights can be excluded from evidence. The rule applies to both federal and state governments. Unlike federal law, in Florida the 'exclusionary rule" is constitutional right. Again, Article I, Section 12 holds that: "Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution." The essence of the rule is to punish law enforcement by excluding evidence which acquired in violation of the Constitution. Sadly, there are a lot of "exceptions" to the rule.


Tiers of police-citizen contact.

There are many different types of police-citizen contact, each having its own rules, requirements and limitations. The least restrictive is referred to as an "encounter", is not considered a "seizure" and it does not trigger either the 4th Amendment or the Exclusionary Rule. Any cop anywhere anytime is entitled to approach any person and attempt to engage them in conversation. The key to it being an encounter (as opposed to a detention or an arrest) is that the person is free to decline to engage and can simply walk away. The next level of "seizure" is called a "detention". Detentions require "reasonable suspicion", are limited in purpose, scope and duration and, if exceeded, potentially results in the exclusion of evidence. Traffic stops are every day examples of detentions. They are temporary in nature and are strictly limited in scope and duration. The final level of "seizure" is a full blown arrest. Arrests require "probable cause" and are the ultimate personal seizure.


Encounters Explained.

Any cop anywhere anytime is entitled to approach any person and attempt to engage them in conversation. There is no prerequisite and the police officer needs neither a reason nor an explanation for doing so; however, the citizen is not obligated to even acknowledge the officer's presence and is perfectly free to ignore her/his as if s/he were a ghost or to simply walk away. If the officer either compels you to speak or precludes you from leaving then you have been detained and it is not an encounter. The only risk associated with an encounter is where the citizen chooses to engage the cop in discussion and subsequently incriminates her/himself. In this case the analysis will focus on whether the evidence was a product of free will or whether it was in fact an "acquiescence to authority". In the latter case the Courts will consider it a detention (not an encounter) and the exclusionary rule will apply; in the former, well, you buy your ticket you take your chances.


Detentions Defined.

A detention lies somewhere in between an encounter and a arrest. It occurs where you are not free to leave but the police do not have sufficient probably cause to arrest. In the case of a detention the cops can hold you just long enough to either confirm or dispel their objectively reasonable suspicion that a crime was, is or is about to be committed. If they believe you to be armed and dangerous then then can conduct a "limited part down" of your outer garments for "officer safety" (not a full blown "search" of either your person or property). Detentions are strictly limited in purpose, scope and duration and, if exceeded, effectively become arrests (triggering additional requirements and protections). On the federal level detentions stem from Terry v. Ohio (see: http://en.wikipedia.org/wiki/Terry_stop) and in FL we have F.S. 901.151 (see: http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0900-0999/0901/Sections/0901.151.html ).


Arrests Analyzed.

An arrest is the ultimate seizure. It requires probable cause (not reasonable suspicion as with a detention) that both a crime was committed and that you committed the crime. Unlike encounters and detentions, arrests are neither temporary nor are they limited in scope. They usually result in being secured, transported to the police station, searched (thoroughly - no warrant is required to search you incident to an arrest) booked (photographed and fingerprinted), transported to a jail facility, reprocessed (another search and rebooking) and then that you be taken before a Judge for purposes of determining your bond. Contrary to popular belief you are not entitled to either a lawyer or a phone until after the arrest process, although if you are going to be questioned while in custody then you are entitled to be read your Miranda Warnings. In this event you are almost always best advised to 100% STFU and wait until you are bonded out and can speak confidentially with an attorney.


How does an encounter become a detention or a detention become an arrest?

An encounter becomes a detention if law enforcement precludes you from leaving but does not arrest you. In that event the cop has to be able to prove that s/he had a "reasonable suspicion" that you were committing, were about to commit or that you had just committed a crime. A mere "hunch" is insufficient. The police officer will be required to articulate the basis of her/his belief and then the same will be held to the "reasonableness" standard. "Reasonable suspicion" is less than probable cause but is more than an "inchoate and unparticularized suspicion or 'hunch' and it must be based on "specific and articulable facts" which are "taken together with rational inferences from those facts". A detention becomes an arrest when the officer has confirmed her/his reasonable suspicions, "has developed probable cause" and where you are formally taken into custody.


Practical 4th Amendment matters; Part 1.

A common everyday example occurs in the context of traffic stops. Say Officer X observes Mr. D commit a traffic infraction (speeding, broken tail light, whatever - something innocuous) and conducts a traffic stop. Mr. D has been now been detained. The purpose and scope of the stop is limited to addressing the infraction and the duration is strictly limited to that time which is necessary to accomplish the purpose (i.e. to run the DL, registration, check insurance compliance and either write a ticket or give a warning). If, however, during the legitimate detention, Officer X develops reason to believe that a crime has been, is being or is about to be committed, then Mr D can be detained longer than the time which is necessary to complete the purposes of the initial traffic stop and now long enough for Officer X to either confirm or to dispel her/his "reasonable suspicions". Let's take 2 examples (DUI and drug possession / trafficking)....


Practical 4th Amendment matters; Part 2.

If, when approaching the vehicle to ask for the DL, registration and proof of insurance, Officer X detects a strong odor of alcohol, or observes tell-tale signs of impairment (i.e. blood shot or watery eyes, slurred speech, confusion or difficulty in complying with the Officer's requests), then Officer X would be lawfully entitled to lengthen then span and scope of the detention and to conduct a full blown criminal investigation (into the crime of DUI - but if none of these "reasonably suspicious" circumstances exists then Officer X can merely run the DL, registration, write a ticket(s) and promptly let Mr D drive away). If reasonable suspicion exists then Officer X can order Mr D out of the vehicle, ask (not require) Mr D to perform roadside sobriety testing and then decide whether or not to cut Mr. D free or to compel Mr D to accompany the Officer to the station for further (breath) testing. If probable cause develops then Mr D is properly arrested.


Practical 4th Amendment matters; Part 3.

If, when approaching the vehicle to ask for the DL, registration and proof of insurance, Officer X develops a feeling that Mr D is a drug courier then Officer X can ask for permission to search the vehicle. Although Mr D is technically detained (for purposes of the traffic stop) this "request" falls into the category of an encounter and Mr D is free to decline to acquiesce. At this point Officer X has a choice to make: Either Officer X will conclude the traffic stop and let Mr D go on his way or Officer X will further detain Mr D and risk violating the purpose, scope and duration of the lawful component of the detention. Officer X can call a K-9 to the scene (to sniff the car) and so long as the K-9 arrives within the time necessary for Officer X to conclude the lawful component of the stop then the sniff is permissible; but if Mr D is detained longer than necessary awaiting the K-9's arrival then the detention is unlawful.


Practical 4th Amendment matters; Part 4.

What is and what is not a constitutional violation will always depend upon the facts and circumstances of the particular case. Some officers are better trained than others, some know how to creatively write reports so as to cover their own asses (even though they are coloring / skewing / tailoring the facts to pass constitutional muster) and others simply don't care and just do what they want, more concerned about the moment than the long-term consequences or implications. The bottom line for you - for every citizen - is to remember that 1) you have rights, 2) that only you can invoke them, 3) that the cops may violate them anyhow, 4) that you should never react violently, 5) that there is a time and a place to explain yourself - and that is almost never one-on-one with a cop on the roadside, 6) (as many a cop has said) "you might ultimately beat the rap but you'll never beat the ride" and 7) be cool, don't panic, be polite, don't admit anything and let your lawyer do the talking!

Since 1991 Michael A. Haber, P.A. has been creatively, effectively and zealously representing clients, both juvenile and adult, in both State and Federal Courts, in criminal cases ranging from DUI to drug trafficking and from misdemeanors to first degree murder.

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