Reasonable Suspicion and the Fourth Amendment

Everyone’s car drifts a little bit within the lane. At that point, if you could win on the reasonable suspicion issue, all the evidence that was gathered after the stop could be thrown out. That’s a tactic that could win the case.

Interviewer: Tell me about the Fourth Amendment. What does it specifically say?

Expectation of Privacy and the Fourth Amendment

Dale: Under the Fourth Amendment, everyone is protected from unreasonable search and seizures. Now, what is unreasonable depends on the circumstances. It all comes down to your expectation of privacy. Of course, you have a much greater expectation of privacy in your home instead of your car but it still exists to protect you. The police must have reasonable suspicion to stop you, reasonable suspicion that you have engaged in unlawful activity.

Probable Cause

They have to have even stronger reasons to arrest you, which is called probable cause. They must believe that it is more probable than not that you have committed a crime that is punishable by incarceration.

For example, let’s say we are discussing an OVI. They even have to have probable cause to make you get out of your vehicle because the Fourth Amendment protects you every step of the way.

They can’t stop you for speeding and then say to get out of the car because they want to perform a sobriety test. They have to have something more in order to do so.

And it should be more than just a moderate odor of alcohol. It should be things like slurred speech, bloodshot eyes, or an inability to produce your driver’s license.

That would give them reason to get you out of the car. Failing the field sobriety test is what gives them probable cause to arrest you.

Interviewer: So the Fourth Amendment sounds like strong protection if the police didn’t do what they were supposed to do.

Dale: The Fourth Amendment right provides continuous protection. It is important because in this day and age our privacy is invaded in so many ways that we must preserve some right to be free from unreasonable search and seizures.

Interviewer: Is there anyplace that you have the highest level of Fourth Amendment protection?

Dale: Inside your home is where you have the most protection. Believe it or not, if the police come knocking on your door and they don’t have a warrant, you don’t have to let them in. You don’t even have to answer the door. Unless they think that you are disposing of evidence, such as flushing it down the toilet, or you have people in peril inside your home, they have no reason to get through your door.

You don’t have to answer the door and why should you? Let’s discuss your backyard. If you don’t have a privacy wall or fence around the yard, the yard is open to view. But if you do, that’s another issue.

Interviewer: What if someone is smoking marijuana in their backyard, and the police drive by and the officers smell it. Do they have the right to come to your home or even try to verbally engage you?

Dale: A strong odor of marijuana provides the police with some evidence. Now, they have probable cause. This probable cause might justify them breaking down your door.

It is important to remember that the issue has to be an arrestable offense. It can just be a minor misdemeanor and possession of a small amount of this drug is a minor misdemeanor. It’s a non-arrestable offense. This raises other issues, such as people who have marijuana plants growing in their backyard, which by the way, could lead to forfeiture of their home.

If you have a privacy wall around your yard and the police use a step ladder to look over the wall to see those plants, now it’s arguable that your Fourth Amendment rights have been violated. However, if you let them grow in your garden next to your tomato plants and they are right in view from your driveway, then you have no reasonable expectation of privacy.

The same premise applies to phone calls. It’s legal to do wiretaps on cell phone calls because there is now reasonable expectation of privacy because the calls are in the “open air.” If you are on a land or corded line, you have more protection.

Interviewer: is this a recent ruling? So, if you are on the phone talking about a drug deal or other illegal activity, you can be wiretapped without knowing it and that is perfectly legal?

Dale: Now that I think of it, wiretapping isn’t even the correct term when applied to cell phones. There are no wires! But they certainly can intercept a call that is out in the free air. But a corded line, is your own line. My advice is not to use your cell phone when discussing any illegal activity.

Interviewer: I imagine that would apply to Facebook and Twitter as well.

Dale: Facebook is now the first place prosecutors go when investigating crimes. Many times, they can gather all the evidence they need right off of Facebook.

Interviewer: What is your Fourth Amendment protection inside your car? Do you see activity that kind of skirts the protection?

Dale: As I mentioned, the distinction between weaving and drifting in a lane. That is a big issue. Also, how about if the police officer follows you for four miles and you once, just barely, touch the fog line? And, this results in a summons. That’s an issue. If the officer just happened to drive behind you for a short distance and witnessed you touch the fog line, that might be a different issue.

But, if you are being followed for miles and it’s witnessed that you, just once out of those miles, touch a fog line? That doesn’t provide the police with probable cause to pull you over.

Hand Held Devices Are Illegal to Use in Your Car in Ohio

My favorite is when the officer remarks, “I saw some furtive movement.” That means they think they saw someone hiding something, maybe under the car seat. But what may have happened instead is that you dropped your cell phone and reached down for it. I consider that a very weak probable cause.

The police can be clever with the things they do. Now, hand held devices are outlawed in the state of Ohio. You cannot use them in your car. However, now the police may claim that they pulled someone over because they thought they were using their phone to talk or text. This just provides them with another excuse. Also, just to remember, you are not even supposed to programming your GPS unit in some municipalities as it can violate the hand held law.

Items Inside Your Car and Your Fourth Amendment Rights

Interviewer: If the police stop you and see something in plain sight inside your car, are they then allowed to search your car without violating your Fourth Amendment right?

Dale: There are certain exceptions for searches. If they search your car and find a pound of marijuana under the front seat, is that still considered a “good” search? The courts say yes, because they classify it as an inventory search. The police perform an inventory search to make sure they have an inventory of everything that is in the vehicle. They do this so they can’t be sued later on for missing items.

Now, I don’t consider this to be valid. Do the police actually have a written policy for this inventory search? Many police departments would answer that they do not. So my question is, if you have no written policy directing you to perform these inventory searches, why are they being done?

For a different example, let’s say the police find that pound of marijuana in the trunk of you car. That presents a real Fourth Amendment issue. The inventory policy can’t apply to the trunk. This is because it is very unlikely that anything will be stolen out of the trunk. The trunk will locked.

Interviewer: Well, won’t the car be locked as well?

Dale: That’s true but the rationale for the inventory search tends to be successful when applied to the inside of the car. The car has to be unlocked when it is towed, as opposed to the trunk, which never has to be unlocked.

Interviewer: What about if the marijuana is in the gas tank?

Dale: That’s when they bring out the drug sniffing dogs. These dogs have been trained to bark when their handler taps on the car. You have to look at everything very carefully. I’ve never had a drug sniffing dog on the stand but I’ve often been tempted to see if he or she could pass a drug sniffing test in court.

Interviewer: I know you said that in a humorous vein but can a dog actually be retested to see if they really have the ability to identify drugs?

Dale: I don’t believe anyone has ever questioned the dogs’ abilities. But I think they should be assessed.

Interviewer: Do you have another illustrative example of one of your defenses?

Dale: Just recently, I had a client who was an excavator, that wasn’t working at this particular site at the time. But he and his friend wanted to drink a six-pack of beer and he thought it would be a good idea if he demonstrated to his friend how to operate a backhoe. Neighbors to the site call the police and the police arrive and they charge him, believe this, will an OVI. This case is currently pending.

Another example is another recent case. In every case, I always ask for all the evidence and that the evidence be preserved, including the video evidence. In this case, the police report indicated that my client was intoxicated. I repeatedly asked for the video. Later, I discover the video was destroyed. I was able to obtain a dismissal of the case for spoliation of the evidence. That illustrates the importance of never skipping a step in defense. You never know what you might discover to help your client.

I never want to say, “Oh, I wish I had done that.” Also, the more time you do all these steps, the better you actually get a crossing all your t’s and dotting all of your i’s.

By Dale Naticchia