Tucson Criminal Defense Attorney  The Fourth Amendment to the United States Constitution guarantees our right to be free from unreasonable searches. What exactly makes a search "unreasonable" has been defined by hundreds of years of judicial interpretation, with the most significant landmark rulings occurring in the United States Supreme Court. Although the full progression of Fourth Amendment jurisprudence is long and complex, this article will attempt to explain some of the basics, and help provide an understanding of the law. This article is for informational purposes only, and should not be construed as providing legal advice. Nor does any of the information contained within this article create and attorney client relationship. If you have specific questions about a search that has resulted in criminal charges in Arizona, contact the Tucson Defenders today for a FREE CONSULTATION with a Tucson Criminal Defense Attorney. 520-585-5757. SEARCHES OF THE HOME Case law clearly states that the greatest expectation of privacy a person can enjoy is in their own home. This means that searches of homes are most likely to fall into the category of "unreasonable" searches that are prohibited by the constitution. In most cases, home searches require a warrant, or consent (more on that later). There are a few narrow exceptions to the warrant requirement for a search of a home, most commonly pursuit of a fleeing felon, to execute an arrest warrant, or the broader "exigent circumstances" exception that would permit, for example, police to enter a home if they could hear an occupant screaming for help. Homes can include mobile homes, RVs, apartments, garages, etc. Additionally, Fourth Amendment protections do not apply only to VEHICLE SEARCHES We enjoy a lessened expectation of privacy in our vehicles. By the very nature of driving around out in the open, we do not have the same protections as is our homes. A person may be pulled over (but not searched or arrested) upon a mere showing of "reasonable suspicion" (more on investigatory detentions below). Vehicles can be searched based on probable cause. Typically, such probable cause is furnished by tips (e.g. a convenience store owner says that three robbers in masks jumped into a red SUV), as well as plain-view observations. A large number of weapon and drug crime, and drug trafficking cases come from vehicle searches. A driver can best protect themselves from searches of a vehicle by obeying traffic laws (including maintaining proper registration and keeping their vehicle in good repair), and not having anything illegal or suspicious in plain sight. INVESTIGATORY DETENTIONS When a person is arrested or fully searched, the police need to have probable cause (or a warrant, which would also require a showing of probable cause to a magistrate). Over 50 years ago, the Supreme Court carved out a limited exception for brief "investigatory detentions" which were not the same as a full-blown arrest, and even allow for a pat down of the exterior of a suspect's clothing. Rather than requiring probable cause to justify these brief intrusions, courts only require police to have "reasonable suspicion" that criminal activity is afoot. This means that even without evidence sufficient to constitute probable cause, police can initiate an investigatory detention, which often leads to their gathering more evidence, leading to an arrest or full-blown search. Many traffic and pedestrian stops are "investigatory detentions" and therefore need not be based on probable cause. During this brief encounter, police attempt to confirm or deny their suspicions. For example, if a police officer stops a vehicle that is seen driving slowly around a neighborhood, the officer does not have probable cause on that basis alone to conduct an arrest or search. However, if there have been home invasions in the area, and the officer can articulate facts that make it seem as though the car is "casing" homes, they might initiate a traffic stop. Once stopped, the officer might see burglary tools in plain sight, and can then make an arrest. This is also common in DUI enforcement stops, where an officer's observation of swerving is not enough to effect a DUI arrest, but may be enough to investigate whether the driver is impaired. CONSENT SEARCHES Many searches of homes, vehicles, and persons are categorized as "consent searches" despite the very coercive nature of police encounters. Police are trained to maintain control of a suspect, and certainly restrict our liberty during encounters. When police seek to search a person without probable cause, they will typically try to achieve their consent. Unfortunately, this power dynamic (and extensive police training) often makes people feel as if they have no choice but to consent. After warrants, consent searches can be the most difficult to challenge in court. During any police encounter, it is very important to affirmatively state that you do not consent to searches. While police may very well still conduct a search, a defense lawyer will better be able to defend a client who does not consent. CONTESTING A SEARCH If you have been arrested or charged with a crime, and believe that the police may have violated your Fourth Amendment rights in the process, the remedy is generally to exclude any evidence unlawfully obtained. This means that the government will not be able to present some or all of their evidence, which often results in a dismissal of the charges. The avenue to suppress evidence, whether in Arizona state courts, or in federal court, is to file a suppression motion. At the suppression hearing, the government has the burden of proving that the search was not conducted in violation of the defendant's Fourth Amendment rights. These motions require a strong grasp of the law, great research and writing skills, excellent courtroom advocacy, and thorough investigations. If you or a loved one has been arrested, searched, or charged with a crime, contact the Tucson Defenders now for a FREE CONSULTATION. We can go over the details of your specific case, and discuss possible strategies for your defense.
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November 2024
DISCLAIMER: The information provided on this website is for informational purposes only, and is not intended to be legal advice, nor to create an attorney-client relationship.
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