Friday, 21. February 2014
Earlier this week, I shared a story about the unconstitutional strip searches being conducted by law enforcement officials in Georgia. The story led one reader to pose the following question:
Can a person refuse to be searched further if the initial pat down reveals nothing? – Dave F.
I’ll answer the question to the best of my abilities, but be advised that each situation is unique and should be treated as such.
The best answer I can give you is that ultimately the police conduct will be reviewed (either by a criminal court, if the cops find something; or by a civil court, if the arrestee sues the police for violating their constitutional rights). A person does not have the right to resist law enforcement carrying out their duties, and there are crimes you may be charged with if you were to physically refuse (i.e., Obstruction of Legal Process under Minn. Stat. sect. 609.50).
Now, what the State [and I'll admit - formerly, I as a prosecutor] is remiss in remembering upon occasion, whether due to overconfidence or inexperience, is that when they charge a crime they must prove that crime occurred by proof beyond a reasonable doubt. That proof must be made to a jury of the accused’s peers. It is not the defendant which is on trial – he/she doesn’t have to prove a damn thing, he has the ”presumption of innocence” – it is the State which is on trial and which must prove everything alleged.
When you have law enforcement who have been deficient and cavalier in discharging their duty, enforced at the end of a barrel of a gun, there emerges a problem with the officer’s perspective, their comprehension of their duties, and ultimately with their credibility. Juries can and are unforgiving for poorly executed obligations by law enforcement – especially when the entirety of the charge (e.g., Obstructing Legal Process) relies upon the credibility of the officer.
Police must be able to objectively articulate the basis for their seizure and search, and failing that – a citizen could have a legal claim against that officer, or at least a professional complaint to be directed to the Office of Police Conduct Review Minneapolis - http://www.minneapolismn.gov/
Free of Unreasonable Searches
A person has the right to be free of unreasonable searches and seizures in their “persons, houses, papers, and effects.” A search of these areas requires a Warrant (i.e., a specific person/place/effect which law enforcement has a substantial belief is or contains evidence of a crime; this document is then reviewed and authorized by a neutral magistrate [judge]), or an exception to the Warrant requirement.
The Supreme Court’s test for determining these places of privacy - which can expect Warrant protection – include any area such that:
A person manifests a subjective expectation of privacy, which society is prepared to recognize as reasonable.
This includes a person’s home and their body - but both of those are also subject to the measure of ”reasonableness” (i.e., “unreasonable search and seizure”).
There are several exceptions to the Warrant requirement, such as: search incident to arrest; hot pursuit of a fleeing suspect; consent to the search; motor vehicle exception (i.e., the police only need probable cause to search a vehicle and don’t have to get a warrant); inventory exception; medical emergency exception; exigency exception (i.e., evidence may be destroyed during time to get a Warrant); plain-view exception; and a few others I won’t list. If evidence is seized without a Warrant, and no exception exists to justify the seizure, that evidence must be suppressed.
I won’t go further, but that last sentence - ”evidence must be suppressed” – has been the subject of other commentary I’ve made about the importance of a judiciary which upholds the law and doesn’t further its erosion through systemic disenchantment, acquiescence, and contrary convictions.