Back Story: This summer I was fortunate enough to have had two student interns. It was an eye-opening experience for them! After 2 months they stated that everything they had been taught in school and understood about the 4th Amendment and 5th Amendment was wrong. I challenged them to write a blog post that explains what people should really know. This is what they wrote:
4th Amendment Rights
The 4th Amendment to the U.S. Constitution gives people the right against unlawful search and seizures for their person as well as property. The 4th Amendment does not protect you against warrantless search and seizure if there is probable cause. A police officer could not enter your home without your consent unless this officer has probable cause or a warrant.
For example, if a police officer knocks on your door and asks if they can come inside to look around, you can tell them that they cannot enter unless they have a warrant. If an officer knocks on your door and hears rustling and then the sound of flushing they could enter your house under the suspicion that you could be destroying evidence. The sounds behind the door could give an officer a reasonable suspicion as to a crime taking place. The entry of the officer under this circumstance would be allowed under the 4th Amendment.
The ultimate goal of the 4th Amendment is to protect a people’s “right to privacy” from arbitrary governmental intrusions.
4th Amendment Search v. 4th Amendment Seizure
1. 4th Amendment Search
When an individual’s privacy is violated by a government employee or agent, this constitutes a search under the 4th Amendment. A search of this nature is considered reasonable when supported by a warrant or probable cause. Probable cause is reasonable belief that someone has or will commit a crime.
For example, if an officer observes a suspicious person walking around at night, looking into car windows, and carrying a baseball bat, this would give the officer probable cause to approach the individual.
In the case of canine search, an officer can have his canine walk around the vehicle without violating your privacy under the 4th amendment. This would be reasonable to any person due to the fact that dogs walk around cars all the time. If the officer placed the canine into the vehicle without a warrant or consent, this would violate your privacy under the 4th Amendment.
2. 4th Amendment Seizure
Two elements are crucial for the validity of a seizure under the 4th amendment. The first being a show of authority by a police officer. For example, handcuffs, weapons, use of forceful language, and physical contact are all indicators of a presence of authority.
The second element being, the person being seized must submit to said authority. When an individual does not recognize the officer’s request, that person has not been seized under 4th amendment purposes.
For example, if an officer stops you on the street, and you don’t stop at his request, you would not be under seizure for the 4th Amendment. However, if a cop comes into your office to ask you questions about your company and you do answer his questions than you would be considered under seizure for the 4th Amendment. Officers are not required to Mirandize you under seizure of the 4th Amendment, but anything you say can be used against you or other parties in court.
The seizure of a person under the 4th amendment occurs when any person would not feel free to ignore the police presence and leave at his or her own will. This is a factual determination made on a CASE BY CASE basis. If the officer pulled out a gun you do not automatically win; nor do you automatically lose.
Investigatory stops are an exception to the seizure rules under the 4th Amendment. An investigatory stop is a legal stop that falls short of an arrest but falls within 4th amendment protections.
This kind of stop does not give you the freedom to walk away from an officer. Investigatory stops provide officers with less domination, power, and control and impose less infringement on personal liberties for the person stopped, i.e. traffic stops. Investigatory stops have to be for a specific purpose. Questions surrounding these kinds of stops must be temporary and specific to the situation.
For example, questions about how much one has had to drink for a possible DUI investigation is commonly asked. You do not have to answer this question but you are not free to leave at any time. In order to justify these brief stops, an officer must have a reasonable belief for suspecting a wrong-doing.
4th Amend Warrant/Warrantless Arrest
An arrest warrant is preferred but not required to make a lawful arrest under the 4th amendment. In cases of warrantless arrest, probable cause is required. A police officer has probable cause when they have reasonable belief in the guilt of a suspect based on the facts and information prior to the arrest. A police officer may arrest a suspect to prevent the suspect’s escape or to preserve evidence. A police officer cannot perform a warrantless arrest if they fail to find enough reason for probable cause. Probable cause is defined as a reasonable belief that an individual has, is, or will commit a crime.
FOR MIRANDA TO APPLY YOU MUST:
1. BE IN CUSTODY; and,
2. BE INTERROGATED.
The 5th Amendment guarantees a right against self-incrimination. It is the MOST misunderstood law. Every day we receive a phone call asking, “did the police violate my rights?” This gives you the right against answering questions that might incriminate you in a crime. One can pick and choose what questions to answer. There is nothing that says you must answer an officer’s question. The best thing to do is to answer no questions at all and immediately contact an attorney in cases where you might be involved in illegal activity.
Under the case law, Miranda v. Arizona, the 5th amendment guarantee’s that when you are arrested or taken into custody you must be notified of your rights. After you have been notified of these rights anything you say can and will be used against you in an investigation and in court.
Custody under the 5th Amendment is an action imposed on a person by a police officer that amounts to a degree of formal arrest (i.e. in Colorado it is generally the minute you are in handcuffs). You have the right to waive these rights and decide to talk to the officers. Or you have the option to voice your 5th Amendment right by remaining silent.
A Judge may decide later she is not in custody months later because she is not in handcuffs
If law enforcement fails to notify a person of their Miranda rights while in custody, the evidence found after could be dismissed if Miranda wasn’t waived. An actual waiver of these rights can only be accepted if the person who waived them did so knowingly, intelligently, and voluntarily. For example, spontaneous comments made before Miranda can be used assuming it was not under interrogation.
Interrogation under the 5th Amendment is statements or questions asked by a police officer that may illicit an incriminating response related to a crime.
To be under interrogation, officers must ask questions about a crime or potential crime. Officers will sometimes ask many unrelated questions to get you to say something incriminating, this would not be considered interrogation and is not covered by your 5th Amendment rights.
For example, if you’re in custody and the cops are asking you questions such as; how do you know the victim? Where were you on the date of the crime? All of these questions would imply that you are under interrogation. If you’re in custody and cops start talking about unrelated topics that could tempt you to illicit information about the crime, but they do not specifically ask you questions about that crime, this is not considered interrogation and could be used against you even after pleading the 5th or asking for a lawyer.
Who has the burden of proof in court to prove if your 4th and 5th Amendment Rights are violated?
In the past when a defendant claims that an officer has violated the 4th or 5th Amendments during an arrest, the prosecution has always had the burden of proof to show the officer did in fact follow procedure and that no rights were violated.
The recent landmark case People v. Cunningham (2013), was one that attorney Harvey Steinberg lost for all of Colorado. The burden of proof has now been shifted. Now, if the defense files a motion to suppress any evidence due to the violation of their client’s rights upon arrest, they also must show proof that their client’s rights were violated and how heir client’s rights were violated.
This poses a severe problem for the defense. It becomes increasingly hard to prove this kind of violation when you don’t have the evidence in the first place. Darn near impossible. We have never seen a case where the officer comes into court and swears they have intentionally violated a client’s rights.
It used to be that law enforcement had to double check their procedure. Essentially it was a safeguard against rights violations upon arrest. Now, it is just another burden that the defense must prove. It is much harder for the defense to prove their rights were violated than it is for the prosecution to prove that no rights were violated.
This post was written by Shannon and Cole