We often hear about “right to privacy” and people’s demand for it. One thing people fail to understand, however, is the difference between their right to be protected from governmental intrusion and any privacy rights they may enjoy in the private sector.
For example, there might be laws that protect you in the privacy of the bathroom where you work, but you seldom have a right to privacy anywhere else at your workplace. Your boss can probably search your desk, your company locker, your company computer, and possibly your company-provided cell phone to make sure you are not using any of this items or areas improperly.
The same would likely be true of any state or private college. Sure, the police might need a warrant to search your dorm room, but check the fine print in your housing agreement. I’ll bet with adequate notice, the college can inspect your room without giving you a reason, just like any landlord can inspect a rental property, if advance notice is given.
The Fourth Amendment does cover government schools but for reasons of their safety, minors don’t have the same rights as adults. If a municipality has a curfew for minors, kids who look under eighteen can be stopped (constitutionally “seized”) to determine their age and why they are out after curfew.
Similarly, public schools don’t want drugs or weapons on their campuses and they don’t even need probable cause to search for such items. Any hint of those items gives rise to the necessary “reasonable suspicion” to search an individual or every desk, locker, and backpack in the school.
So, for adults, where are the boundaries for privacy protection under the Constitution?
Let’s go back and look at some of the amendment’s actual language.“The right of the people to be secure…against unreasonable searches…” In other words, you are protected by the Fourth Amendment if your expectation of privacy is reasonable.
You are probably asking, who determines if my expectation is “reasonable?”
Some types of warrantless searches have already been determined to be reasonable by the Supreme Court. For example, the ability of the police to “frisk” you if they have reasonable suspicion you are armed and presently dangerous, or the authority to search you incident to arrest, or the power to enter your house if they believe someone inside may be injured, to name a just few.
All other determinations will be made by a trial judge using the “reasonable person” test. In other words, would current society consider your expectation reasonable using contemporary community standards. Obviously this test is subjective in that it can change over time and also from place to place.
Let’s look at some examples of privacy expectations.
You have a very limited expectation of privacy in your vehicle. Why? Because you drive it around in public in view of the entire world. You park it in public where anyone can walk up and look in the windows, at the least the three front windows on which “limousine tint” is prohibited.
You have no expectation of privacy in your handwriting. You sign your name and fill out applications all the time. Did you sign your name when you endorsed your last paycheck?
What about that drawing you entered after a recent sporting event trying to win a car that was really a come-on for a time share in Las Vegas?
Ditto for your fingerprints that you leave unknowingly all over town. The police can just follow you around and lift your prints off the last surface you touched.
Any expectation of privacy in your face would likewise be unreasonable. You show your mug in public all day long. If anyone could surreptitiously snap a photo of your face, so can the police.
Your voice? Not there, either.
What about your home? Nope. What are you going to do? Keep in draped in a termite tent all the time? Who does that?
Not to mention police helicopters flying at the legal height or someone with a surveillance drone, the police have other tools, too.
There was a recent federal case where the police has a camera on a utility pole across the street from a former felon suspected of gun-dealing. After being convicted, the defendant appealed, claiming the video footage used to convict him was obtained in violation of his Fourth Amendment rights. The Sixth Circuit disagreed. They said the defendant had no reasonable expectation of privacy in the activity captured by the pole camera because the camera had the same view enjoyed by passersby. In other words, the footage only captured what the suspect made public to any person traveling on the public roads surrounding the farm.
If you have been arrested, I will be happy to discuss with you all the possible defenses to your case. With a valid suppression motion, I may be able to have the evidence excluded before we ever get close to trial. Call me, criminal defense attorney Rebecca Ocain, any time of the day or night, 619-431-1076 and let me go to work for you.
Okay, you’ve been stopped by the police. Whether they tell you or not, you get the sense they are going to conduct a weapons frisk. Or patdown.
Try to pay attention how the officer does the patdown.
A US Supreme Court decision dictates the patdown must be either an actual "pat" search in which the officer's flat hand is held momentarily against a part of your body, lifted up and replaced a few inches to one side or the other, over and over again. Or, in the alternative (or in combination with), the officer's flat hand is held against your body and dragged over each body part.
Here's why I want you to try to be alert. During a patdown, an officer is not allowed to grab a hold of your pockets trying to get a three-dimensional feel of what is in the pocket. If that happens and it leads to the officer finding some kind of contraband, I need to know.
However, if your pockets are full of junk, e.g. keys, coins, a hankie, old receipts, etc., there is no way any officer can tell whether there's a weapon in there and he or she can order you to empty your pockets on the hood of his or her car or elsewhere.
On the other hand, if the officer is conducting the patdown and feels anything he or she recognizes as a weapon, the officer can reach in to get it. Needless to say, if you told the officer you were not armed and that officer finds a gun or a knife, he or she is not going to be happy and things may get a little rougher for you. (Remember a cop's number one rule!)
Obviously, cops don't like suspects with handguns but they have a particular aversion to edged or pointed weapons, for example, knives, daggers, pins, knitting needles, screwdrivers, and even ballpoint pens (yes, really – they make excellent stabbing instruments).
What if the officer feels something that he or she doesn’t think is a weapon but, based on his or her training an experience, believes is contraband or evidence?
For example, patrol officers are notified to be on the lookout for a suspect in a blue jacket who just committed a strong arm robbery of a woman’s gold chain necklaces. You happen to be running down the street in relative proximity to the crime and happen to be wearing a blue windbreaker. The officer detains you. This officer knows from his or her training and experience that robbers are often armed so has reasonable suspicion to pat you down. He or she feels something hard and loose in your pocket that sounds like metal-on-metal when touching it. Can that officer reach in to get it, or order you to take it out?
Yes. Based on the Plain Feel exception to the Fourth Amendment, a corollary of the Plain View exception, your detention and patdown were justified and the officer had probable cause to think the item in your pocket was the stolen necklaces. When he or she discovers it is just your dog’s choke chain and you were chasing after your dog that ran out of the house, that officer no longer has a reason to detain you and must send you on your way. Maybe with an apology.
(I will cover the Plain View, Plain Feel, and Plain Smell exceptions to the Fourth Amendment in more depth in a future blog post.)
Patdown of Female Suspects
The question often comes up, can a male officer patdown a female suspect he has reasonable suspicion to believe is armed and dangerous?
Some departments may have policy prohibiting such patdowns and most often, just to avoid the possibility, and hassle, of a female crook accusing him of some kind of sexual assault, male officers will ask the dispatcher to send a female officer to his location to conduct the patdown.
But remember the cop’s number one rule? Go home alive. So, trust me, if no female officer is available, the officer is going to pat you down for weapons. And if you are going to be arrested anyway, a much more intrusive search for weapons is permitted.
But admit it ladies, while we may not like the idea of being stopped in the first place, I think we can all tell the difference between a police officer conducting a legitimate weapons patdown and some perv in uniform using it as an excuse to cop a feel. Even if you can’t get his name, be sure to report the incident to the police the same or next business day.
So, remember, an officer needs reasonable suspicion that you are about to commit a crime, are in the progress of committing a crime, or have just been committed one, to legally stop/detain you. Once you are detained, the officer may also conduct a patdown for weapons if he has separate reasonable suspicion that you are armed and presently dangerous.
In future editions, watch for: Bail and Own Recognizance Release, How Long Can a Detention Last?, Types of Restraining Orders, and the Plain View Exception to the Fourth Amendment.
If you ever have any question about this or any of my other blog posts, or would like to see a post on an aspect of criminal law of particular interest to you, feel free to send it to me at RebeccaOcainLaw.com.
Back in January, I wrote about the first half of the “stop and frisk” rule (Have You Ever Been Stopped by the Police?). This post will discuss the frisk or “weapons patdown” portion of what is commonly referred to as a “Terry stop,” named after the US Supreme Court’s decision in Terry v. Ohio.
Two things are worth mentioning at the beginning. A cop’s number one rule is: Go home alive. Terry was decided in 1968, so there is no law enforcement officer working today who wasn’t taught the Terry rule at the police academy. They may not have been taught it correctly, or they may have forgotten, but it is safe to say there are a lot of abuses of this special power the Supreme Court gave police.
If you recall from the January post, the police may stop, or detain, someone if they have “reasonable suspicion” (a standard lower than probable cause) that a crime is about to be committed, is being committed, or had just been committed, in order to conduct a preliminary investigation.
The Terry decision also says the police may frisk, or “pat down,” that person for weapons if the officer has reasonable suspicion that the person is armed and presently dangerous. The reasonable suspicion necessary to justify the patdown is separate and apart from the reasonable suspicion relied upon to trigger the detention.
That is where many officers mess up. They think, believe, or don’t care, that once they have reasonable suspicion to detain you, they automatically are justified in patting you down.
Also, the suspicion must also be “articuable.” In plain English, can the officer write (articulate) in his or her report the reason or reasons he or she thought you were armed and presently dangerous. A patdown is not justified because the officer was afraid, had a hunch, didn’t like your looks, or any other such ambiguous reason.
One way officers avoid that reasonable suspicion hurdle is to ask you for consent. In a calm, "let's-just-get-along" voice, the officer will ask if you are carrying any weapons or other things he should know about, and whether you have anything in your pockets that could stick or poke him. After you (hopefully) answer in the negative, the officer will ask in the same friendly voice, "You wouldn't mind if I conduct a quick patdown for my safety, would you?"
Face it. Most of us want our police to be safe. Likewise, most of us want to be cooperative if for no other reason than to get this nonsense over with and get on our way. So what happens? The person rolls over and abandons his constitutional rights under the Fourth Amendment.
What’s that matter with asking in return, in your own, friendly, "I'm-trying-to-be-cooperative" voice, "I don't know, officer. Is there some reason you think I have a weapon on me?"
Trust me, you're going to get patted down anyway but the officer is now on notice that you're someone who is aware of his/her rights.
Also remember, the law allows a patdown for weapons, not for drugs or anything else.
After you have been stopped by the police you are likely frightened and upset, but if you can think about it, pay attention to the both the manner, and speed, the stop and frisk happen so you can tell me about it later.
The Terry frisk is a patdown of your outer clothing. What constitutes outer clothing can depend on the officer and the situation. If it is winter and you are wearing a heavy leather coat or a thick down jacket, the officer can't very well feel if you have a weapon in your shirt pocket. He or she can require you to remove the coat until a patdown of those areas of your body covered by the coat is completed.
Even though he may be grasping your interlocked fingers behind your head with your body bent over the hood of a car, an officer knows he is more vulnerable at this time so he, or she, is not going to waste time conducting the frisk. They know how to do it and can do it thoroughly but fast.
Come back next week for Part 2 of this subject, which, among other things, will answer the question whether male police officers can frisk female suspects.
Could the police enter your home without a search warrant even if no criminal activity is suspected?
The answer is yes and most of us would be happy for it…unless you actually are involved in criminal activity.
Back in 1999, two San Diego officers were called to a complex of two duplexes in Pacific Beach separated by a walkway. A neighbor reported loud music had been coming from one of the units and she and other people at the complex were upset and worried.
On arriving, police could hear the music from outside the complex. The neighbor informed them she knew the two men who lived in the apartment and described them as quiet and in their late 20s. To her knowledge the loud music had been coming from their unit for about 24 hours. During this period, she had not seen the men but thought one was out of town. She said it was very unusual for loud music to be coming from the unit.
After the police noticed what appeared to be a couple of days of mail and newspapers stacked at the doorstep, one officer pounded very hard on the door. Receiving no response, the officers tried to look inside the residence but all the blinds were closed. They then tried the doors and windows and found they were locked. Police were able to look inside a small bathroom window but it was pitch black inside except for a light coming from a back bedroom. There was a light on in a stereo unit.
The police tried to find the telephone number to the unit by calling their department's communication division. No telephone number listed.
Another neighbor told police the loud music had been playing since the previous evening and it was abnormal. She had not seen the men in the last 24 hours and thought there might be someone injured inside. Police then tried to contact other neighbors without success. They tried to determine if the residents' cars were in the garage, but it was locked.
One officer, a 15-year police veteran, said he had a bad feeling something might be wrong inside the unit, in part because he had never responded to a loud music call where the occupant was not at home. He had recently responded to a home where the house seemed fine from the outside but the occupant had committed suicide. He felt it was his responsibility to enter the residence to determine if everything was all right inside. Over his radio, he spoke with his sergeant who recommended kicking the door open, which he did.
After forcing entry, the officers went in the darkened residence with their guns drawn. They called out their presence but received no answer. They did not see anything extraordinary but the music was so loud inside that they could not hear anything else. They then searched the rooms. Inside the partially opened closet in one of the bedrooms, marijuana plants were found growing. Growing equipment was also found. With guns still drawn, the officers continued searching for possibly injured persons. In a second bedroom closet, they found additional marijuana plants and equipment for growing marijuana.
Based on the marijuana plants and equipment found inside the residence, the officers obtained and executed a search warrant.
The legal fine points of the case aren’t important here, except to say the appellate court said the initial entry and search was legal. As part of their “protect and serve” role, police can sometimes make a forcible, warrantless entry into private homes even though no criminal activity is suspected.
If some event in or about your home triggers either the community caretaker exception or the rescue doctrine, and the police arrest you after they stumble across something illegal, maybe not a kilo of cocaine or a dead body, but something less onerous like a switchblade knife or brass knuckles you bought in Tijuana, or an inert hand grenade you have a souvenir, or anything else they know or think you shouldn’t possess, what should you do?
First, don’t say anything except biographical information (name, date or birth, etc.) for the booking sheet. Two, tell the police, and keep repeating it, that you want a lawyer before you say anything else. And three, call me any time of the day or night, criminal defense attorney Rebecca Ocain at 619-431-1076.
Rebecca Ocain has been a criminal law trial attorney for over fourteen years.