challenger community news/know your rights

Do You Know Your 4th Amendment Rights?

By William Small

The 4th Amendment to the U.S. Constitution governs police conduct in traffic stops, stop and frisk, and search warrants. Our people love to proclaim “I know my rights” but nobody actually knows the law. We invent all kinds of myths such as: “You have a right to ask why you are being stopped. Police have to tell you why they are stopping you or you don’t have to do what they tell you.” The truth is when you are stopped the only right you have is to either comply or resist but resist equals arrest.

You can “ask” why you are being stopped but there is nothing in the law that requires the officer to answer. It is good courtesy to answer your question and the officer will answer. But only when he is ready in order to remain in control of the situation. People often initiate a “why are you stopping me; I know my rights” confrontation because they want to be in control of the situation. Don’t force the cops to prove to you who’s in control. This is just another one of the creative ways that we come up with to get locked up. Then we complain that the police arrested us “for nothing”.

Observe ANY corner in our community where there is a traffic light or stop sign for 10 minutes and you will see many people run the light or fail to stop (completely) during that short period of time. Yet, so many people claim that they were stopped “for nothing”. I know you have seen people commit all kinds of violations while you are driving.  So with all of the people who ARE doing something wrong it is madness to suggest that cops are just randomly stopping people who weren’t doing anything. No one is ever stopped for “no reason”. There is always a reason.

Proverbs 16:18 says: “Pride goes before destruction and a haughty spirit before a fall.” Don’t allow your pride to destroy you or get you killed in a confrontation with police. Understand the nature of the beast. You wouldn’t take your bare finger and poke the nose of a snake would you? No, because you know that snake will bite and kill you. You wouldn’t confront one of these young criminals who is carrying a gun would you? No, because you know that kid will kill you. Then WHY do you have the courage to confront a cop that is also carrying a gun but who has the LEGAL authority to kill you?

That’s right! According to New York State Penal Law Article 35, Section 30 a police officer may use deadly force against you when: “theuseofdeadlyphysicalforce is necessary to defend the policeofficerorpeaceofficeroranotherpersonfromwhattheofficerreasonablybelievesto be the use or imminent use of deadly physical force.” That means, if you put a police officer in fear of his life, he can use deadly force against you and be legally justified in his actions. Now, people will protest and may even riot because you were killed but you will still be dead. You could have made a wiser decision and remained among the living if you had known the law better than you knew your rights.

Be smart, not of a proud heart or a haughty spirit so that you can go home after a cop stops you rather than going to the morgue or jail. If you believe your 4th Amendment rights are being violated you cannot challenge the police on the street. That would be like challenging Michael Jordan on the court. You are not going to win that game! You have a better chance of winning if you challenge the cops in court but make sure it is YOU bringing them to court rather than them bringing you. You always stand a better chance of winning in court when you are the plaintiff instead of a defendant.

This is what the 4th Amendment actually says: “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.”

Now the following is a primer on the 4th Amendment with case law. If we are going to be hell bent on giving opinions about the law and what police officers should be doing, it would be wise if we knew something about the LAW that governs what they do. The “first” thing you need to know is:

The 4th Amendment protects people from unreasonable searches and seizures by the government.  The 4th Amendment is not a guarantee against ALL searches and seizures but only those that are deemed unreasonable under the law.

Whether a particular type of search is considered reasonable in the eyes of the law is determined by balancing two important interests.  On one side is the intrusion on a person’s 4th Amendment rights.  On the other side of the scale are legitimate government interests such as public safety. The extent to which an individual is protected by the 4th Amendment depends, in part, on the location of the search or seizure according to  Minnesota v. Carter, 525 U.S. 83 (1998). So let’s examine some of the locations where you can be searched and the case law that permits these searches:

Home

Searches and seizures inside a home without a warrant are presumptively unreasonable; Payton v. New York, 445 U.S. 573 (1980). However, there are some exceptions. A warrantless search may be lawful: If an officer is given consent to search; Davis v. United States, 328 U.S. 582 (1946); If the search is incident to a lawful arrest; United States v. Robinson, 414 U.S. 218 (1973); If there is probable cause to search under exigent circumstances; Payton v. New York, 445 U.S. 573 (1980); If the items are in plain view; Maryland v. Macon, 472 U.S. 463 (1985).

A Person

When an officer observes unusual conduct which leads him reasonably to conclude that criminal activity may be afoot, the officer may briefly stop the suspicious person and make reasonable inquiries aimed at confirming or dispelling the officer's suspicions; Terry v. Ohio, 392 U.S. 1 (1968) Minnesota v. Dickerson, 508 U.S. 366 (1993)

Schools

School officials need not obtain a warrant before searching a student who is under their authority; rather, a search of a student need only be reasonable under all the circumstances; New Jersey v. TLO, 469 U.S. 325 (1985)

Cars

Where there is probable cause to believe that a vehicle contains evidence of a criminal activity, an officer may lawfully search any area of the vehicle in which the evidence might be found; Arizona v. Gant, 129 S. Ct. 1710 (2009). An officer may conduct a traffic stop if he has reasonable suspicion that a traffic violation has occurred or that criminal activity is afoot; Berekmer v. McCarty, 468 U.S. 420 (1984), United States v. Arvizu, 534 U.S. 266 (2002).

An officer may conduct a pat-down of the driver and passengers during a lawful traffic stop; the police need not believe that any occupant of the vehicle is involved in a criminal activity; Arizona v. Johnson, 555 U.S. 323 (2009). 

The use of a narcotics detection dog to walk around the exterior of a car subject to a valid traffic stop does not require reasonable, explainable suspicion; Illinois v. Cabales, 543 U.S. 405 (2005).  Special law enforcement concerns will sometimes justify highway stops without any individualized suspicion; Illinois v. Lidster, 540 U.S. 419 (2004).

An officer at an international border may conduct routine stops and searches; United States v. Montoya de Hernandez, 473 U.S. 531 (1985).

A state may use highway sobriety checkpoints for the purpose of combating drunk driving; Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990). A state may set up highway checkpoints where the stops are brief and seek voluntary cooperation in the investigation of a recent crime that has occurred on that highway; Illinois v. Lidster, 540 U.S. 419 (2004).

I hope that by seeing this case law it is clear what your rights REALLY are under the 4th Amendment rather than what the ghetto myths have conjured up. I pray that NOW you recognize it is futile to fight police with protests over what you think the law SHOULD be. You have to fight the law with the law! The reason the Civil Rights Movement was successful is because while Dr King protested in the streets Thurgood Marshall fought to change the LAW before The U.S. Supreme Court and Whitney Young did battle in the White House before Presidents Johnson and Nixon as well as before corporate leaders. None of them would have been successful without the work of the others. One dimensional protesting on the street against police is “not” going to lead to the change we want to see. It’s your right to fight but it doesn’t make sense to fight unless you fight in a way that is going to get you a win.

Dr William Small is an award winning author of several books including "Money DOES Grow on Trees" which you can find atwww.drwillspeaking.com