If you have been stopped, questioned and arrested or cited by the police, one of the first questions you should ask is whether the initial stop was constitutionally valid. The Fourth Amendment protects citizens from unreasonable search and seizure. This means that, generally, the police cannot seize or search you without a warrant–unless a specific exception applies.
Generally, there are three types of interactions with police — each requiring different levels of suspicion by the police before they can stop or question you. Which one of these does your case fall into?
1. The Consensual “Voluntary” Encounter.
This first type of interaction involves the police walking up to someone on the street and asking questions. Asking “voluntary” questions like this does not implicate the Fourth Amendment is not considered a “search” or “seizure” under the Constitution.
Police can ask anyone for ID anytime and can ask to search someone’s bag anytime, without having to have a warrant, probable cause, or even reasonable suspicion that criminal activity is afoot.
This is because in theory, the person can always refuse to provide information or say no to the search and walk away. These types of questions are allowed as long as the police don’t give the impression that you are required to answer.For example, as long as the police don’t make a show of force or authority.
I say “in theory” because if a police officer in uniform approaches you and asks you a question, it is sometimes hard to know whether you are required to respond. But generally, if an officer walks up to you on the street without any reason to believe you have been involved in a crime, you are not required to answer his questions.
2. A “Terry stop” (a brief investigatory stop)
This second kind of police interaction involves a temporary detention. Not an arrest, but you are not free to walk away. This does require that the police have “reasonable suspicion.” It is not considered a “seizure” but is a temporary stop that is allowed when there is “articulable suspicion that a person has committed or is about to commit a crime.”
In other words, in some cases, the police can stop someone for purposes of investigating possible criminal behavior — even when there is no probable cause to make an arrest.
This doctrine allows police to act when they think a crime is about to happen — they don’t have to sit back and wait until they have probable cause to arrest. What’s more, the police are even allowed to pat you down if they have a “reasonable fear for his own or others’ safety” before frisking. But in order to do a pat down, the police must have specific facts that they say make them afraid you might have a weapon — they can’t just say they had a hunch.
The test to figure out whether a stop is a “seizure” (a Terry stop) or just a voluntary consensual stop considers several factors:
- Was there a threatening presence of several officers?
- Did the officer display a weapon?
- Did the officer touch the person?
- Did the officer’s language or tone of voice indicate that the person was required to answer?
- Did the officers approach the person in a non-public place?
- Did the officers block the person’s path?
If the answer to one or more of these questions is “yes”, then the officers must prove they had reasonable suspicion for the stop. If not, the stop is invalid and whatever happened next could be thrown out of court.
In order to actually put you under arrest, the police must believe a crime has been committed and that the person they stopped committed it. An arrest without a warrant is constitutionally valid if the officers had probable cause to make the arrest.
Note that the police cannot stop you just because you have a record. Being a drug user, having a prior DUI on your record, or having committed a crime before is not by itself valid justification to stop you.
Likewise, being in a high crime area is not enough to support a stop.
Further, if you are stopped for a traffic violation, the length of the stop has to be reasonable. Just enough time to check your license, write the ticket, and send you on your way. An officer can’t expand the scope of the stop beyond the purpose of writing a ticket unless there is some other information that makes him suspicious that other crimes are happening or about to happen.
If you are arrested, the police are permitted to search your person and to secure your cell phone. However, they are not allowed to search your texts, call log, photos, videos, etc on your phone unless they get a warrant.
A recent example of these principles in action happened in the Ohio case of State v. Fox, 2013-Ohio-476.
In that case, the search happened like this. Around 5:30 PM, an officer saw a car parked at a Family Video store and noticed that the two people in the car had not moved. He recognized the driver as someone known to the police as a heroin user, but didn’t know her name. He saw the driver bend down and reach for something in the car.
The officer approached the car, asked the driver for ID, and she said she didn’t have a driver’s license on her. He went back to his cruiser to run a check and to ask for backup. The LEADS computer showed that she did not have a valid driver’s license. So, the officer issued a citation for no ops (not having a valid operator’s license).
Backup then arrived with a canine partner. The dog sniffed the car and both the driver and passenger were asked to exit the car and were patted down for weapons.
The driver was put in the back of the cruiser while the dog sniffed the car. The officer saw him lean over again in the cruiser, indicating he may be hiding something or getting a weapon. The officer opened the door and saw the defendant putting a syringe of heroin in his shoe. The car was then searched and a soda can with the bottom cut off was found along with scorch marks and a cotton ball.
At trial, the defendant’s attorney filed a motion to suppress all of the evidence found during the stop.
The State argued that the stop was proper because the officer knew the area was high crime, knew the occupants were drug users and saw the driver bend down in his seat.
But the Court noted that the car was in a public parking lot in the middle of the day. Other than recognizing the driver as someone who used drugs, there was nothing else unusual. Being parked in a parking lot during business hours and bending over your seat is not a sufficient basis to stop and detain the driver and passenger. Because there was no “reasonable suspicion” for the stop and no specific facts indicating a further crime after the no ops ticket was written, the motion to suppress was granted. The entire stop was thrown out and the entire case dismissed.
Another recent example is found in State v. Goodloe, 2013-Ohio-4394.
In that case, a Columbus police officer was in a marked car patrolling the east side of Columbus. He observed the defendant at the corner of an intersection and saw him hesitate when he saw the officers’ car. Additionally, the officer observed bulges on the right and left side of the defendant’s pants.
The officers pulled up closer and saw that one of the bulges was a cell phone but couldn’t identify the other bulge. The officers parked their car and approached him. One officer walked up to one side and there other stood in front of him. Neither drew their weapon.
The officer asked the defendant if he knew of anyone looking into cars in the parking lot he had just crossed through. The defendant replied that he did not. The officer then asked if he had any firearms. The defendant didn’t respond, but sighed and dropped his shoulders and head down.
The officer took this sigh as an admission that he had a firearm and immediately reached for the bulge. The officer felt a gun and took it. As a result, the defendant was charged with a single count of carrying a concealed weapon in violation of R.C. 2923.12.
The defendant moved to suppress the gun, claiming the officers violated his Fourth Amendment right to be free from unreasonable searches and seizures.
On appeal, the Court found that the stop was a seizure – a “Terry stop”. The fact that the officers blocked his path, that they were following him, and that they asked him accusatory questions demonstrated that he was not free to walk away. Because the officers did not have reasonable suspicion for the stop, the gun was thrown out and the charges dismissed.
If you have been stopped or questioned by the police, talk to an attorney about exactly what happened. If the police did not have reasonable suspicion to stop, detain or search you or your car, your case might be thrown out. The Fourth Amendment right to be free from unreasonable search and seizure is a right that is taken seriously in Ohio courts and cannot be taken lightly by police.
To ask specific questions about the stop in your case, call our attorneys at (614) 361-2804.