San Diego Criminal Defense Attorney Explains California Stop and Frisk and Search of Persons Law

San Diego Search & Seizure Lawyer
When are the police allowed to stop a person and search them?  This is a question I am asked frequently, and a question that defense attorneys in San Diego frequently are left to argue in court, when our clients have been arrested by an officer who searched our clients in violation of the Fourth Amendment rights.  The Fourth Amendment of the US Constitution guarantees our freedom from unreasonable searches and seizures.  That is, without a probable cause (or in some cases a warrant), police may not trample our privacy rights.  We are most protected in our homes, and have a diminished "expectation of privacy" in all other areas, including in our vehicles, yards or public places.

In a 1968 case called Terry v. Ohio, the US Supreme Court gave police officers an explicit power to conduct "investigatory detentions" without having probable cause.  In requiring a lower level of evidence (reasonable suspicion), the Court gave officers more authority to stop and detain a person, who might otherwise be free to go for lack of probable cause.  This ruling has had far-reaching implications, because police have been permitted to stop people for lawful conduct such as: sweating, appearing nervous, making moves to avoid police, etc.  Additionally, Terry stops have been extended to traffic stops.  Officers may conduct an investigatory detention of a driver of a vehicle without having probable cause to do so.

REASONABLE SUSPICION
This lessened standard does not permit an officer to conduct a stop for no reason, however.  An investigatory detention is not permissible for no reason at all, or just because the officer has a "hunch" that there might be some evidence of a crime to uncover.  Instead, an officer must be able to articulate specific facts which indicate that there may be a crime taking place.  In the Terry case, the officer saw several men pacing back and forth in front of a store, and also noticed a bulge that turned out to be a gun.  Another case, Illinois v. Warlow, decided that someone running from police in a high-crime area provides reasonable suspicion for a Terry stop, but NOT probable cause for arrest.

STOP AND FRISK: THE SCOPE OF AN INVESTIGATORY DETENTION
What makes a stop & first (or "investigatory detention") any different from a search or arrest?  The scope of a Terry stop is limited due to the diminished level of evidence needed to justify the intrusion.  This means that an officer who has reasonable suspicion, but not probable cause, might go too far while conducting a pat down, rendering the search unlawful (and the evidence suppressed).  During a pat-down, an officer  may only pat down the outside of a suspect's clothing, looking for weapons or other contraband, easily determined during the pat-down to be something illegal.  A landmark case dissecting the issue of scope of a Terry stop is the case of Minnesota v. Dickerson.  In that case, Dickerson was in possession of a small amount of crack cocaine in a jacket pocket.  A simple pat-down as permitted under Terry would not have revealed that there was anything illegal in Dickerson's possession.  The officer came to the conclusion that the item in Dickerson's pocket was crack only after manipulating the object with his fingers, thus exceeding the scope of a Terry stop.  Another restriction on the Terry stop investigative detention is time.  In  United States v. Place, the US Supreme Court held that a 90 minute detention was not a valid exercise of the Terry-stop "investigatory detention" and requires probable cause.

If you or a loved one has been arrested or charged with a crime arising out of a potentially unlawful search, you need a knowledgeable, aggressive San Diego Criminal Defense Lawyer on your side to fight for you, file a motion to suppress the evidence and work to get the evidence against you dismissed.  We have very important rights, enshrined in the Constitution that is still the law of the land.  Though the Courts have carved out exceptions to our rights at every turn, our office takes the position that the Bill of Rights and the Fourth Amendment are alive and well in the courtroom, even if not respected by police on the street.  Call now for a Free Consultation with a San Diego Criminal Defense Attorney.  619-930-9515.


Other Search & Seizure Articles:
WHAT CONSTITUTES A SEARCH?
CONSENT SEARCHES
SEARCH OF VEHICLES AND EFFECTS
HOW TO SUPPRESS EVIDENCE
WHEN DO POLICE NEED A WARRANT?
HOW TO REFUSE A SEARCH

Nicholas M. Loncar, Esq.
San Diego Criminal Defense Attorney
San Diego DUI Lawyer
www.iDefendSanDiego.com
T: 619-930-9515
F:
619-930-9516
By Nicholas Loncar          
 


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