Stopped by the police, can they search me and my bag?
As we discussed in another blog, when you are dealing with the police there are three levels to police intrusion – Contacts, Stops, and Arrest. Understanding what level the person is at will make the decision of whether the police can search you or your bag. Please be mindful that the police never tell you what level of intrusion they are at when they make contact with you. The issue discussed in this article is whether the police can search you upon a contact, a Terry Stop, or an arrest.
Police routinely have contact with citizens. The Court has held that “law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen…” Florida v. Royer, 460 U.S. 491, 497 (1983) .In other words, the police may have contacts with citizens and just ask them some questions. Yes, you have the right to walk away. These “non-seizures” are often referred to as “contacts” and require no justification: “[P]olice-citizen communications which take place under circumstances in which the citizen‟s freedom to walk away‟ is not limited by anything other than his desire to cooperate do not amount to seizures‟ of the person.” United States v. Wylie, 569 F.2d 62, 67 (D.C. Cir. 1977). The police may not search you or your bag during a Contact.
The next contact the police has with citizens is called a Terry Stop, named after the famous case, Terry v. Ohio, 392 U.S. 1 (1968). This case allowed for police officers to stop citizens and briefly detain the citizen if they believe based on“reasonable, articulable suspicion” that the person is committing a crime. Its a lesser standard than probable cause. Unlike Contact, the police can stop the individual and make further inquiries. The individual is not free to leave during a Terry Stop. The Court has even allowed Officers to place suspects in handcuffs during a Terry Stop. The police officers do not have to advise you that you have the right not to comply. In the District of Columbia, the Courts have allowed up to 15 minutes for a Terry Stop. The police may not search you during a Terry Stop
Frisk with a Terry Stop
The police may not frisk the individual for whom they made a Terry Stop unless they have reason to believe that the person armed and dangerous. The frisk must be independently justified; the sole justification for a frisk is protection. The search of an item beyond the immediate reach of the suspect, however, exceeds a frisk‟s strictly limited scope to protect the officer. In Holston v. United States, 633 A.2d 378, 380 (D.C. 1993). The police may search areas of the suspects such as bags if they have reason to believe the person is armed and dangerous. See District of Columbia v. M.M., 407 A.2d 698, 701-02 (D.C. 1979) (going through a paper bag). Furthermore, the Court in United States v. Spinner, 475 F.3d 356 (D.C. Cir. 2007) held that a person acting nervousness is not enough to create a reasonable suspicion that he is armed and dangerous justifying a search. United States v. Brown, 104
Wash. D.L. Rptr. 1669, 1675 (D.C. Super. Ct. 1976) (Mencher, J.), held that an examination of a
suspect‟s handbag was improper under Terry because the officer‟s purpose was to search for
evidence. “Terry does not allow an exploratory search even if it is limited to a frisk of outer clothing or handbag for any other reason except to discover weapons.” The police may frisk you during a Terry Stop but only if they believe you are armed and dangerous.
Arrest are usually more discernible because the person is usually placed in handcuffs and transported. In order to be placed under arrest the police officer must have probable cause that you committed crime. Probable cause simply meaning more reasonable grounds that you did the crime. Although not dis-positive the officer will usually tell the person they are under arrest and read Miranda warnings. Whether there is probable cause to make an arrest is viewed from the perspective of “a reasonable, cautious and prudent peace officer‟ and must be judged in light of his experience and training. The police may search you and your immediate area if you are placed under arrest.
Rollins and Chan Law Firm