Recently citizens organized and stopped planned safe injections site in South Philadelphia, for now but this issue is far from over! If this site had opened, there was talk that federal or state authorities could have stepped in and shut them down through police stop and frisk of site patrons as they left the center. In Podcast 10 this week, I answered these questions about the constitutionality of these stops and searches. Listen to my podcasts
What allows police to stop a car or a person on the street
It’s important to understand that police must always have probable cause to stop a car in Pennsylvania or New Jersey and without it, the stop is illegal and all evidence obtained following that stop is inadmissible under Article I, Section VIII of the Pennsylvania Constitution, Article I, Section II, Paragraph VII of the New Jersey Constitution, and the Fourth and Fourteenth Amendments to the United States Constitution. Probable cause is simply any violation of the vehicle code like speeding or running a red light.
It’s important to understand that police must always have probable cause to stop a car in Pennsylvania or New Jersey and without it, the stop is illegal and all evidence obtained following that stop is inadmissible under Article I, Section VIII of the Pennsylvania Constitution, Article II, Section II, Paragraph VII of the New Jersey Constitution, and the Fourth and Fourteenth Amendments to the United States Constitution.
The stop of a person walking down the street is different
If you’re a frequent reader of my blog, you understand that police need probable cause to arrest someone for a crime but prior to that arrest an investigative detention (stop) often occurs.
During this stop police begin an investigation that helps form the basis for probable cause to arrest. The basis for this stop, however, is extremely important because without a sufficient basis, the search and seizure of the suspect will be deemed illegal. Any evidence found as the result of an illegal search and seizure is inadmissible and therefore can’t be used as evidence against someone during a prosecution. Police stops often occur after an officer observes a suspect who he believes is involved in criminal activity based on his experience and training.
In addition to these instances, police are also permitted to stop a person if they believe that the individual is carrying some type of contraband (i.e.: a gun- bulge).
Further, after the stop police may frisk someone to confirm that the person isn’t a threat to the officer’s safety. While police need probable cause to arrest someone and search their belongings, they only need reasonable suspicion for a pedestrian investigative stop (detention).
It is important to keep in mind, however, that a police stop is only constitutionally permissible if the police officer can articulate a reasonable basis for his belief that some type of crime was occurring prior to the stop. For instance, if police simply observe unusual movements or some type of awkwardness, Pennsylvania Courts have found that this isn’t enough to establish reasonable suspicion for a police stop.
A person’s presence, however, in a high crime area combined with unusual movements or “hand to hand” transactions is probably enough for a stop for further investigation. Pennsylvania criminal courts will evaluate the reasonableness of a police stop based on a totality of the circumstances analysis based on the officer’s training and experience. There is no simple answer to the issue of reasonable suspicion or probable cause and every case is different.
While the Pennsylvania Supreme Court has ruled that police have probable cause to search a suspect based simply on the observation of the exchange of items in a high crime area, our Supreme Court still stressed that the prosecution must establish a “nexus” between the officer’s experience and his decision to search.
The bottom line is that reasonable suspicion to make an investigative stop is an important issue to any drug or gun case in Pennsylvania and beyond. While the test for reasonable suspicion doesn’t require as many “articulable facts” as probable cause, your criminal defense attorney must analyze this part of your criminal case.
If reasonable suspicion and/or probable cause are issues, your attorney must assert your Fourth Amendment Right against illegal search and seizure through a Motion to Suppress Evidence prior to trial. If your attorney doesn’t do this you waive your Fourth Amendment Right and it can seriously jeopardize your case. If you have more questions about criminal defense strategies you should read my books
What allows police to search a person following a vehicle or pedestrian stop
If police have probable cause to stop a car, they’re permitted to remove the driver from the vehicle if they have reasonable suspicion to believe that a crime has occurred or is occurring. The prosecution and police can establish reasonable suspicion based on the officer’s observations combined with his training, experience, and education. This means that if an officer stops a vehicle and smells what he believes to be marijuana or alcohol, he or she can remove the driver and investigate the situation.
Typically this investigation involves a frisk of the driver and any occupants for contraband and for the officer’s safety. If the frisk reveals an item which the officer believes to be contraband he can seize it.
Why is speaking to police a bad idea?
If following the frisk nothing is found, the officer must terminate the investigation or provide an independent basis for a continued investigation. This is an important point to remember because in initial investigations officers do not find any contraband but an illegally prolonged investigation can ultimately find something which leads to our client’s arrest. Speaking to police will not only prolong the investigation but it increases the possibility that you will say something incriminating which will hurt your case.
How will consenting to a search affect your constitutional rights?
If you’re stopped in Pennsylvania or New Jersey, you should never give consent to search your vehicle. If consent is given all of a person’s Constitutional Rights, under the Fourth Amendment to the US Constitution are negated. Consent, however, is not always as simple as the officer testifying that the driver permitted the search. In Pennsylvania, the burden to prove that consent is voluntary is always on the prosecution. Courts will determine the voluntariness of consent based on the totality of the circumstances. Courts will determine if a driver or motorist affirmatively acquiesced to a search.
It’s important to keep in mind that even if the allegation is that you consented to the search, you should not give up hope on your case! Your criminal defense lawyer should review all of the circumstances surrounding your arrest and the search of your vehicle to determine if there is a viable argument for a lack of voluntary consent
How will a court determine if consent was made under duress or Coercion
A very common situation that we find in our law firm, based in Philadelphia, are alleged consent searches. In these situations police remove a suspect from a vehicle, conduct a frisk, and find no evidence of a crime. Police in their affidavit of probable cause for the arrest, allege that the suspect consented to a search of the vehicle whereupon the contraband was discovered. In these situations, it’s important to understand that the burden is on the Commonwealth to establish voluntary consent. Pennsylvania courts have consistently held that a suspect does not have to explicitly tell police that he or she does not consent to a search and consent cannot be implied through non-resistance to police action.
There is only consent to search where there is an intentional relinquishment or abandonment of a known right or privilege. If police allege that consent was given for a search, the prosecution must demonstrate, by a preponderance of the evidence, that the suspect was made aware of his right against illegal search for that waiver to be intelligent.
It is very common for police officers to allege that a suspect provided consent while in the presence of multiple officers. This is a situation where the defense can specifically use the presence of police officers against the prosecution as implied coercion or duress. It is also important to keep in mind that the length of the detention is a critical aspect of many of these cases, because again, the police must provide an independent basis for continued investigation once the initial bases for the investigation is complete.
How does a person assert their right against an illegal search or police stop?
A Motion to Suppress Evidence is a powerful pre-trial motion which attempts to exclude often extremely incriminating evidence, which, more than likely, will lead to a conviction. Examples of this type of evidence would include illegal narcotics, drugs, guns, firearms, money, or other items used to commit a crime. The basis of this pre-trial motion is a person’s constitutional right against illegal search and seizure, which is in the United States Constitution as well as each individual state’s constitution.
The right against illegal search and seizure is contained in the Fourth Amendment to the United States Constitution, which, through the Fourteenth Amendment entitles all people to due process under the law. Due process deals with the administration of justice and is a safeguard against the arbitrary denial of life, liberty, and property by the government. The Pennsylvania Constitution provides protection against illegal search and seizure under Article 1, Section 8, while New Jersey also provides this protection under Article 1, Paragraph 7, of its Constitution.
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