Tucson Criminal Defense Attorney Explains Fourth Amendment Rights  How your Tucson criminal defense attorney can assert your Constitutional rights to fight your case. The Fourth Amendment to the United States Constitution was designed to protect Americans from unreasonable government intrusions into our privacy. It reads as follows:
"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." To be clear, the supreme law of the land does not prohibit government searches, arrest warrants, or even warrant-less searches and seizures. What it does prohibit is searches conducted unreasonably, in most cases, without probable cause. When a search is not supported by a valid warrant or probable cause, and does not fall within any legally recognized exception, the remedy is suppression of the evidence. This creates an odd paradox, where the enforcement mechanism of this law only protects people when a search reveals evidence of criminal activity, and innocent people who are harassed with unreasonable searches rarely get any justice. If the police conduct an unlawful search, and do find something illegal, the defense can file a motion to suppress evidence and seek to have the evidence thrown out. Today, challenging an unlawful traffic stop, stop and frisk, pat down, vehicle search, search of a home or building, and the like in court provide the best defense for some defendants, especially in drug crimes cases, drug trafficking cases, weapons offenses, DUI cases, and the like. When a person is charged with a crime based on evidence that may have been unlawfully obtained, the defense must file a motion to suppress evidence. It then becomes the government's burden to prove that the search was lawful. This is a challenging process, in that police are not likely to volunteer information that a stop or search was unlawful, and many will lie to justify their illegal intrusions. The good news is that in this technologically advanced age, there is often objective evidence to contradict (and even discourage from the start) false statements made to justify a stop or search. Here are some examples of Fourth Amendment issues: STOP AND FRISK Sometimes called a Terry stop, or investigatory detention, a stop and frisk is a limited intrusion that does not require probable cause. Upon a showing of reasonable suspicion of criminal activity, a police officer may initiate a brief detention and pat down the exterior of a suspect's clothing to check for weapons. Often, police initiate investigatory detentions not only without probable cause, but without even reasonable suspicion (the required standard). Additionally, officers frequently go beyond the limited scope of an investigatory detention and conduct a full-blown search. In either case, the defendant will have a strong motion to suppress evidence. VEHICLE SEARCHES Vehicle searches generally require probable cause, not a warrant. Most often, vehicle searches follow a traffic stop, and escalate to a search upon an officer's determination that there is probable cause of a crime (or consent to search). In cases involving automobile searches, your defense lawyer can challenge an unjustified traffic stop, as well as the unjustified resulting search, provided that there is no evidence of criminal activity in plain view and the defendant did not consent to a search. CONSENT SEARCHES Consent is one of the most common justifications for a search. Although police often use coercion to induce consent to search, it is important that people understand and assert their right to refuse searches. With the growing use of body cameras and dash cameras, police will have a harder time fabricating consent, but it is ultimately up to the person being searched to assert that they do not consent to searches. The police may very well search anyway, but if there was not probable cause to search, there will be a strong motion to suppress evidence available. HOME SEARCHES GENERALLY REQUIRE A WARRANT The Fourth Amendment provides the greatest protection to individuals in their own homes. This means that most searches of a home will require a warrant. Warrant-less searches of homes will only be justified in certain limited circumstances, including: searches incident to a lawful arrest in the home (limited right to look for other persons who might be a danger to police), hot pursuit of a fleeing felon, and of course, consent. Individuals arrested and charged with a crime based on evidence found during a search of their homes can challenge the issuance of the warrant, or its execution, but the strongest motions to suppress will be in cases where police conduct a warrant-less search of a home. It is important to note that even strong evidence of guilt can be thrown out if unlawfully obtained. While suppression of evidence does not automatically mean that cases are dismissed, it is very difficult for the government to meet its high burden of proof beyond a reasonable doubt if even some evidence against a defendant is suppressed. Fourth Amendment issues are complicated, and require skillful motion writing, courtroom advocacy, and thorough investigation. IF YOU OR A LOVED ONE HAS BEEN UNLAWFULLY STOPPED, SEARCHED, OR ARRESTED, CONTACT THE TUCSON DEFENDERS NOW FOR A FREE CONSULTATION WITH A TUCSON CRIMINAL DEFENSE LAWYER. 520-585-5757.
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November 2024
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