April 19, 2016 Police are not allowed to detain people on mere hunches or tenuous veins of suspicion. This is because the Fourth Amendment protects the rights of citizens to be secure in their persons and homes, and not be subject to arbitrary search or seizure. It is important to understand that the Fourth Amendment does not provide absolute protection against search and seizure, but rather, protection from unreasonable search and seizure. The distinction between the two is often difficult to determine. When is a search or seizure reasonable, and therefore allowable? Searches and arrests are always allowable under circumstances of a properly executed warrant. Many exceptions to the warrant requirement exist, but two are most common. Probable Cause A warrant is issued by a court and is based upon probable cause as affirmed by oath. Probable cause is a standard of proof involving a reasonable level of certainty, but not absolute certainty. In short, it means that police can articulate circumstances reasonably leading them to believe that criminal activity is afoot. If police knowingly provide false information to a court for the purpose of obtaining a warrant for search or arrest, they face criminal charges and exorbitant fines, themselves. Reasonable suspicion is also the standard of proof necessary to make an arrest and attach criminal charges by officers in the field without a warrant. Arrest based on investigation or simple observation of the arresting officer resulting in probable cause is the most common type of arrest. Consensual Contact At any time, police may approach a citizen and begin to ask questions about possible criminal activity. Nothing in the Fourth Amendment protects citizens from this type of interaction with police because in such a situation, the citizen is free to leave and not answer. Many factors can come into play during a consensual encounter and can transform the consensual nature of the contact into a compulsory one. The test to determine whether contact with police is truly consensual is whether a reasonable person in the shoes of one being spoken to would feel free to leave. The number of officers present, the positioning of officers with relation to the citizen, language used, and demeanor of police all come into play. Although courts attempt to use standards, the line separating consent and seizure is a fuzzy one. To understand, consider two scenarios. First, a person is walking down the street and is met by a police officer standing on the edge of the sidewalk who does not change his position but says “hello, nice weather we’re having today.” The person, being cordial, stops and a conversation ensues. So long as this situation remains static, whatever statements are made pursuant to this line of conversation are admissible in court, as well as the observations of the officer. Contrast the above scenario with circumstances in which three officers stand on the edge of the sidewalk, and when the citizen comes within close proximity, the three officers move, taking up positions that block the citizen’s way and surround him. One of the officers questions in a stern voice, “Where are you coming from?” Here, a reasonable person would likely feel that he was not free to leave. Reasonable Suspicion A commonly misunderstood middle ground exists between being under arrest and being free to leave police. Police are allowed to temporarily detain citizens upon reasonable suspicion. Reasonable suspicion is a standard of proof much greater than mere hunch, but less than probable cause. If police can articulate why they reasonably suspect a citizen to be involved in criminal activity, they can stop and detain that person for a short period of time during which they may conduct an investigation, including questioning, about the crime they suspect. Statements made during such encounters are admissible in court. Once again, a blurry line can exists separating arrest (i.e. in handcuffs in the back of a police car) and mere temporary detention, as in a traffic stop. Get Legal Help If you or a loved one has been arrested pursuant to statements made during a police stop, it is not too late to invoke your Fifth Amendment or Fourth Amendment rights. Contact the criminal defense attorneys at The Nahajski Firm at (206) 621-0500 for a free and confidential initial consultation.