Stop!” Says the police officer. Do you need to stop? And when the officer wants to frisk you, must you let him or her do it? While much has been written about in the press recently about “stop and frisk,” the constitutional rules of the road are rarely covered. This entry provides a short primer.
Recently, I had the privilege of defending RC, a prominent Alabama artist, whose works appear at shops like Billy Reid on Bond Street in Manhattan, against a graffiti misdemeanor charge, among other things. Thankfully, I was able to get the charges dropped to a violation, which is not a crime. How did I do it? By ensuring that his Fourth Amendment rights were protected.
The Fourth Amendment prohibits unreasonable searches and seizures of you by the cops. Generally, cops need to obtain a warrant to search any area in which you have a reasonable expectation of privacy. Such areas include your messenger bag, jean pockets, or purse. If the cops directly or indirectly search such an area without a warrant, they are violating the your Fourth Amendment rights. Any related evidence obtained couldn’t be used against you.
However, there are certain exceptions which allow the cops to search or seize you without a warrant. One is “plain view.” For example, the New York City police department observes illegal graffiti materials peeking out from your backpack. Another exception is hot pursuit. New York City police officers see you spray painting a building in Chelsea, and then sprinting from the scene. In both cases, cops have a right to frisk you for any contraband, particularly after an arrest.
To stop you on the street, the cops need only have a reasonable suspicion that you are involved in criminal activity. To frisk you, the standard is higher. In that case, cops must have a reasonable suspicion that you are “armed and dangerous.” If one of the exceptions above applies, however, then they need not have such a suspicion. Barring that, the police cannot search areas of your person, such as your messenger bag, pockets, or purse, without you being considered “armed and dangerous.”
So the next time you are stopped by the police and have arguably broken some law, remember these general parameters. They can help protect your rights, and potentially keep you from going to jail.