The Fourth Amendment and Michigan Constitution protect against unreasonable searches and seizures. US Const, Am IV; Const 1963, art 1, § 11; People v Earl, 297 Mich App 104; 822 NW2d 271 (2012). The Fourth Amendment protects not only property interests but certain expectations of privacy as well. Katz v United States, 389 US 347; 88 S Ct 507; 19 L Ed 2d 576 (1967).
In general, the law separates different types of encounters civilians might have with police; each requiring that the police have a certain threshold level of suspicion or cause.
- Consensual encounter: a police officer may ask non-coercive questions of a person in a public setting without any level of suspicion. There is no seizure when a police officer merely approaches individuals on the street or in other public places and asks questions if they are willing to listen. United States v Drayton, 536 US 194; 122 S Ct 2105; 153 L Ed 2d 242 (2002). If you are stopped by a police officer in public, you have the right to ask if you are detained or if you free to leave. If the encounter is merely “consensual” you may leave. You also have the right to remain silent, and if you exercise that right be sure to say that out loud.
- Investigatory stop: a police officer may make a brief investigatory stop of a person or a vehicle if the officer has reasonable suspicion that a person has committed or is about to commit a crime. To establish reasonable suspicion, an officer must be able to articulate more than an “inchoate and unparticularized suspicion or hunch” of criminal activity. Illinois v Wardlow, 528 US 119; 120 S Ct 673; 145 L Ed 2d 570 (2000). An officer may conduct a brief “pat down” of an individual during an investigative stop if the officer reasonably believes or suspects that the defendant is armed, which is commonly called a Terry
You do not need to consent to the search of your person or your belongings, and you should say that out loud. Consent to a search must be voluntary. To be voluntary, consent must be “unequivocal, specific, and freely and intelligently given.” Consent to a search is not voluntary if it is the result of coercion or duress. The burden is on the prosecution to demonstrate that consent was valid. People v Chowdhury, 285 Mich App 509; 775 NW2d 845 (2009).
- Traffic stop: an officer may stop a vehicle with reasonable suspicion or probable cause of a traffic violation for the time required to resolve the violation.
- Arrest: an arrest or complete detention of an individual requires probable cause. Request an attorney and state that you will not answer any questions without your attorney present. Then exercise your right to remain silent.
Search and Seizure issues are extremely improtant in most criminal defense cases. It is important that you have a criminal attorney who knows the applicable Fourth Amendment law. Should you or your loved ones have any questions about a police officer encounter in public, please do not hesitate to contact one of the criminal lawyers at Willey and Chamberlain. Call us today for help: contact us