Although Arizona Tenants Union is an organization dedicated to tenants’ rights and tenant organizing, we are part of a larger progressive movement in Arizona.  From time to time I’ll be writing articles that are not about tenants’ rights but are interesting or important for our members or readers to know.  This is one such article.

REASONABLE SUSPICION AND THE 4TH AMENDMENT  (“Officer, am I free to go?”)

You’re walking down the street in a neighborhood known for drug activity.  You’re not necessarily engaged in drug activity.  A police car pulls up beside you and one of the cops beckons you over to the car.  Apprehensively, you slowly walk over to him.  When you approach the car, the cop asks you what your name is and what you’re doing in the neighborhood.

Now, it may be that you live in the neighborhood and you’re just walking down the street to the Circle K.  Or it may be that you have some crack on you and you’re looking to sell it.  Either way, the laws governing when police can stop you, when they can search you, and when they can arrest you, remain the same.  But most people don’t really have an understanding of the rules, and as such, they tend to be very deferential to police, even when the police are stepping way outside their authority.  I’ve even seen cases where someone who’s carrying contraband consents to a search because he’s scared and intimidated by the stop and he thinks cooperation is the best way to minimize his damages.

Of course, by consenting to the search he just convicted himself.  But in the instant of the confrontation, people get scared, and if they don’t have a basic understanding of the Fourth Amendment, which governs search and seizure, they often make stupid mistakes, even if they’re not doing anything wrong!  What I’m going to try to do is give you, in broad strokes, a basic understanding of the Fourth Amendment and some of the important cases that interpret it.

Consenting to Searches: Reasonable Suspicion and Probable Cause

The first thing you need to know is that the police do not need probable cause to stop you, whether you’re walking down the street or driving a car.  They are governed by a lesser standard known as reasonable suspicion. Probable cause is the logical belief supported by concrete evidence, facts and circumstances, that a crime has been or is being committed. Reasonable suspicion is the belief informed by the officer’s training and experience that a crime has been or is being committed.  Still, although reasonable suspicion is a lesser standard than probable cause, the officer still must have specific and articulable facts to stop you, and he is only allowed to perform a quick surface search of your outer clothing for weapons, for the purpose of ensuring his safety.  But he may not conduct a full body search without probable cause.

What is Probable Cause?

Probable cause is the legal standard by which a police officer has the right to make an arrest, conduct a personal or property search, or obtain a warrant for arrest. While many factors contribute to a police officer’s level of authority in a given situation, probable cause requires facts or evidence that would lead a reasonable person to believe that a suspect has committed a crime.

Common examples of probable cause include the sight or smell of contraband in plain view or plain smell, or an admission of guilt for a specific crime. The presentation of any of these facts would allow an officer to perform a search and make an arrest.

Normally, if police have probable cause to believe that a crime is in progress, they need to obtain a warrant to conduct a search of you or your property.  However, because of the “portability” of automobiles – that is, because an automobile can simply drive away from a crime scene – the police do not need a warrant in an automobile stop to search the car, just probable cause.

The major exception to the probable cause requirement for vehicle searches is consent. Most vehicle searches don’t occur because police have probable cause. They occur because people get tricked or intimidated into consenting to search requests.  Consenting to a search request automatically makes the search legal in the eyes of the law. And the Fourth Amendment doesn’t require officers to tell you about your right to refuse. So if you’re pulled over, don’t try to figure out whether or not the officer has probable cause to legally search you. You always have the right to refuse search requests by stating, “Officer, I don’t consent to any searches.” Repeat, if necessary.

What is Reasonable Suspicion?

Reasonable suspicion is the legal standard by which a police officer has the right to briefly detain a suspect for investigatory purposes and frisk the outside of their clothing for weapons, but not drugs. While many factors contribute to a police officer’s level of authority in a given situation, the reasonable suspicion standard requires facts or circumstances that would lead a reasonable person to believe that a suspect has, is, or will commit a crime.

While reasonable suspicion does not require hard evidence, it does require more than a hunch. A combination of particular facts, even if each is individually insignificant, can form the basis of reasonable suspicion. For example, police may have reasonable suspicion to detain someone who fits a description of a criminal suspect, a suspect who drops a suspicious object after seeing police, or a suspect in a high crime area who runs after seeing police.

It is extremely important to understand that just because reasonable suspicion gives officers legal authority to detain you, the absence of reasonable suspicion does not require officers to tell you that you’re free to leave. They will often use your uncertainty as an opportunity to ask probing questions even if the conversation is legally “voluntary”.  Therefore, it’s up to you to determine if you’re being detained or are free to go. Before answering an officer’s questions, you should courteously ask “Officer, am I free to go?” If you’re free to go, then go. If the officer’s answer is unclear or he asks additional questions, you may persist by repeating “Officer, am I free to go?”

If you are not free to go, you are being detained. The officer might have some reason to suspect you of a crime, and you may be arrested. In such a situation, your magic words are “I’m going to remain silent. I would like to see a lawyer.” Do not try to talk your way out of an arrest.  However friendly the police may seem, they are there to find ways to cause you to incriminate yourself, and very often even seemingly innocuous things you say can be twisted against you.  They mean it when they say anything you say can and will be used against you, so invoking your right to remain silent is your best protection if you’re under arrest.

Again, remember that detentions are voluntary unless you verbally ask to leave. Any time police detain you, you should ask if you’re free to go. If the officer says you may leave, it’s up to you to leave the scene of the encounter. If you choose to stay, the detention is automatically legal.

When Can Police Ask for ID?

In a free society, citizens who are minding their own business are not supposed to have to “show their papers” to police. In fact, in the United States there’s no law requiring citizens to carry identification of any kind.  (Although there are such requirements if you’re driving or going through an airport terminal.)

Still, even if you’re walking, the police may require you to reveal your identity if they have reasonable suspicion that a crime is afoot.  The problem is, how do you know why the officer is detaining you and whether you can just refuse to talk to him and walk away.  Again, the answer is – and if you get nothing else out of this article, know this – the most important thing to know about dealing with police is to say the officer:  “Excuse me officer. Are you detaining me, or am I free to go?” If the officer says you’re free to go, you should do so.

Only You Can Enforce Your Rights

A number of years ago I was waiting at the airport when two cops approached the man who was sitting next to me.  They started asking some questions, the man resisted answering them, and I decided I didn’t want to be right in the middle of that confrontation so I moved across the area to the other side.

The police asked the guy a lot of questions, performed a light search of his body and his luggage, and let him on his way.  Then they turned to me and asked me why I had moved across the room.  I explained to them I didn’t want to be in the middle of a confrontation.  Then they asked me what I was doing, where I was going, and I told them, truthfully, that I just came in on a flight, was waiting for the shuttle from Phoenix to Tucson, and I threw away the ticket stub as soon as I got on the ground.  (People who know me know I’m a compulsive declutterer and am always throwing things away, often to my detriment.)  When I couldn’t produce a ticket the officers asked me if they could search my luggage.  At that point I stopped cooperating with them and told them no.  They asked, “Why not?  If you don’t have anything to hide, why won’t you consent to the search?” I told them it was because I lived in America, and America is a free country.  Police don’t stop people to ask for their papers like they did in Nazi Germany.  I then asked if I was under arrest or free to go.  Reluctantly, they let me go.

I was prepared to be arrested for not cooperating with the authorities.  I knew I could take that chance because I knew the law and I knew that I would prevail.  I also knew that once the police understood that I knew the law, they would probably stop hassling me and move on to the next person.  And that’s exactly what they did.

The expansion of civil liberties under the Fourth Amendment during the 1960s has started to be turned back today.  There have been recent Supreme Court cases that appear to allow police to require a citizen to identify himself during a stop made on reasonable suspicion.  But to a great extent that doesn’t matter because so many people give up their civil liberties voluntarily.  There are tomes of case law defining your Constitutional rights in criminal proceedings.  But they are mostly irrelevant because criminal proceedings, which is where these rights mostly come into play, are largely administered through plea bargains so that a criminal defendant gives up his claims of police or prosecutorial misconduct.  It’s almost a dark joke: comparing the scholarly opinions and treatises written by Supreme Court justices to the actual day-to-day churning of criminal defendants through the criminal justice system.  Due process exists primarily to protect the guilty: to make sure the punishment fits the crime.  But even if it is properly administered procedurally (which is usually isn’t), there’s no question that it’s not being properly administered substantively, as intended by the framers of the Constitution.  Without getting into the question of whether Obama was born in Kenya, I do think our Constitutional rights are being taken away from us, one piece at a time.  I don’t know how to organize a real movement to address these issues – there seems to be some attempt on the part of Bernie Sanders to deal at least with the issues related to income inequality – but one thing is clear: there is no invisible hand that will equalize things.  If we don’t make it happen, it won’t be done.