5 Myths about Search & Seizure

What Should you Know?

Most people have never had the experience of being subject to a police search. When the search happens, a million things run through your mind. “What if they find something I didn’t even know was in there, or worse what if they plant evidence? Can they search anywhere? Do they need a warrant?”

The law surrounding search and seizure can be complex. Thus, it is helpful to start with some basic principles which help us understand the justifications for why we have them in place. We will begin with discussions on the Rule of Law as well as Due Process. Having these in mind, I will attempt to dispel 5 Myths about Search & Seizure that many people believe.

What is the Rule of Law?

We have all seen the cop shows on TV. You know the ones that I am talking about… the one where the rogue cop goes on a no-holds barred investigation to get to the bottom of a seedy criminal empire. Contrary to what Hollywood would have you believe, the law still applies to those who wear a badge. In fact, one of the founding principles of our country is the dedication to the principle of the Rule of Law i.e. laws govern our nation as opposed to the arbitrary decisions of a government official. No one is above the law. It constrains everyone’s behavior. This includes our nation’s citizenry and especially our nation’s government officials.

due proc·ess
[d(y)o͞o prəˈses]
fair treatment through the normal judicial system, especially as a citizen’s entitlement.

Why do we have Due Process?

Have you ever thought about why we have Due Process? It’s all about us not trusting the government. It’s an obstacle course designed to prevent abuse of power by the government. Official oppression of the people is worse than other forms of oppression and arguably the worst form of oppression. There is always a balance at play whenever we discuss these issues. On one hand, we have the interest of people being free to live their lives autonomously and free from unreasonable government intrusion. On the other hand, we have the interest of the government in solving crimes and enforcing perceived violations of the law. It is at this intersection that we begin our journey in exploring 5 myths people commonly believe about search and seizure.

Myth #1 If the Cops Break the Law then the Case gets Dropped.

I often get asked, “If they violated my rights then the case automatically gets dropped, right?”

The Truth is:

If the cops violated your rights your case may or may not get dropped. This all depends upon what evidence was gathered in violation of your rights and thus subject to the “Exclusionary Rule” and what evidence still remains. Consider this:

  • Evidence gathered in violation of your 4th Amendment rights cannot be used at trial. Weeks v. United States, 232 U.S. 383 (1914).
  • The justification the Supreme Court used for this rule is that “a conviction… the foundation of which is evidence obtained in disregard of liberties deemed fundamental by the Constitution, cannot stand.” In addition, “nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence….Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. . . . If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” Mapp v. Ohio, 367 U.S. 643 (1961)

However, in some cases, prosecutors may have access to evidence that was not gathered in violation of your rights. For example, a cop pulls you over for speeding. He smells alcohol on your breath and about your person. The cop also sees a beer can in plain view in your center console. He then asks you to step out of the vehicle. You perform the field sobriety tests which you promptly fail. After he arrests you, he administers a breathalyzer test at the police station, which you again promptly fail. He later obtains a confession from a custodial interrogation in violation of Miranda v. Arizona 384 U.S. 436 (1966) because he did not read you your Miranda rights. That confession would not be allowed to be used against you at trial. However, the prosecutor would still be allowed to use other lawfully gathered evidence against you at trial, including the officer’s testimony regarding:

  • Speeding
  • Smell of alcohol
  • the beer can in center console (also photos and/or the can itself if they are available)
  • Failure of the field sobriety tests (along with dash cam or body cam video of them being performed if they are available)
  • Failure of the breathalyzer  test (along with the breathalyzer certificate if available)

So, you see, while evidence of your confession may be helpful to the prosecution’s case, in this instance, it is likely that the confession is not necessary to obtain a conviction. However, in another case where legally gathered evidence is either nonexistent or otherwise weak, it is likely that the case will be dropped.

Myth #2 Cops Cannot Come into your House Without a Warrant.

I hear this one all of the time. It would seem that the 4th Amendment would prohibit cops from barging into your home without a warrant. While the general rule is that:

  • the 4th Amendment protects people from the government’s unreasonable searches and seizures of their “persons, houses, papers, and effects”;
  • searches must be based on “probable cause” i.e. the police officers must have some reason to believe that the search will find contraband, evidence of a crime, or similar items;
  • prior to conducting the search, the police must generally obtain a warrant from a “neutral and detached magistrate.”

The Truth is:

Cops can come into your house without a warrant under a variety of circumstances. Below are some leading cases that you can research which talk about specific instances that police can enter your home without a warrant.

  • Exigent Circumstances: The exigent circumstances rule states that police can enter a structure without a warrant if certain exigent (i.e. pressing, demanding, urgent) circumstances exist. These circumstances could include preventing physical harm to persons, the destruction of relevant evidence, the escape of the suspect, etc. In other words,  police may enter a home without a warrant if they have an objectively reasonable basis for believing any of the above circumstances exist. Brigham City v. Stuart, 547 U.S. 398 (2006). US v. McConney 728 F.2d 1195 (1984).
  • Hot Pursuit: The “hot pursuit” exception states that if the cops are pursuing a suspect and he runs into his or another’s dwelling, a warrantless entry may be permitted. United States v. Santana, 427 U.S. 38 (1976).
  • Consent: Akin to vampires, cops generally cannot come into your house without a warrant unless you invite them in. This would seem intuitive, however, there are some nuances that need to be explained. Consent must be voluntary. Consent is NOT voluntary where police say they have a warrant. Bumper v. North Carolina, 391 U.S. 543 (1968) . However, consent is valid even when the government uses undercover agents who misrepresent their identity to enter a residence. Lewis v. United States, 385 U.S. 206 (1966).
  • Protective Sweeps: Although this one does not require a search warrant, it does likely require an arrest warrant. The Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene. Maryland v. Buie, 494 U.S. 325 (1990). In short, police with an arrest warrant can search the rest of the house for people who may or may not be there. However, the scope of the search is limited to places where a person could reasonably be hiding. This means they cannot be looking for an elephant in a cigar box.

Myth #3 The Police Have no Right to ask me to Step out of My Vehicle


The Truth is:

The order to get out of the car, issued after you are lawfully detained, is reasonable, and thus permissible under the Fourth Amendment. Pennsylvania v. Mimms, 434 U.S. 106 (1977). In Mimms, a guy was stopped by police for operating with an expired license plate. One of the officers asked him to step out of the car and produce his license and registration. As he stepped out, a large bulge under his jacket was noticed by the officer, who frisked him and found a loaded revolver. He was then arrested and subsequently indicted for carrying a concealed weapon and unlicensed firearm. His motion to suppress the revolver was denied and after a trial, at which the revolver was introduced in evidence, he was convicted.

The Supreme Court justified their decision by citing that the government’s proffered justification- officer safety- is both legitimate and weighty, and the intrusion into personal liberty occasioned by the order, being, at most, a mere inconvenience, cannot prevail when balanced against legitimate concerns for the officer’s safety.

Myth #4 The Police Cannot Stop me for a Traffic Violation if Their Real Reason for Stopping me is __________________________.

Can they? Actually…

The Truth is:

Any traffic offense committed by a driver is a legitimate legal basis for a traffic stop. Whren v. United States, 517 U.S. 806 (1996). In Whren, police were patrolling a “high drug area” in an unmarked vehicle and observed a truck waiting at a stop sign at an intersection for an unusually long time; the truck then turned suddenly, without signaling, and sped off at an “unreasonable” speed. The officers stopped the vehicle, assertedly to warn the driver about traffic violations, and upon approaching the truck observed plastic bags of crack cocaine in the driver’s hands.

The Supreme Court stated that “Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” In other words, the Supreme Court will NOT look into the hearts and minds of the cops, all they will look at is if they have probable cause. Although the Court agreed that the Constitution prohibits selective enforcement of the law based on considerations such as race the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment.

Myth #5 The Police Cannot Arrest me for a Seat Belt Violation.

A seat belt violation? Really?

The Truth is:

The Supreme Court has held that the 4th Amendment does not forbid a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine. Atwater v. Lago Vista, 532 U.S. 318 (2001). In this case, Atwater drove her truck in Lago Vista, Texas, with her small children in the front seat. None of them was wearing a seatbelt. The policeman observed the seatbelt violations, pulled Atwater over, verbally berated her, handcuffed her, placed her in his squad car, and drove her to the local police station, where she was made to remove her shoes, jewelry, and eyeglasses, and empty her pockets. Officers took her “mug shot” and placed her, alone, in a jail cell for about an hour, after which she was taken before a magistrate and released on bond.

The Supreme Court stated that there are all sorts of historical examples of warrantless arrests for violations of the law unaccompanied by violence including “nightwalker” statutes which authorized night watchmen to arrest anyone found walking at night and hold them until morning. Also, there were statutes which authorized the arrest of anyone found playing “unlawful” games, like bowling, tennis, dice, and cards. In short, “the statutes [and historical examples] riddle Atwater’s supposed common-law rule with enough exceptions to unsettle any contention that the law of the mother country would have left the Fourth Amendment’s Framers of a view that it would necessarily have been unreasonable to arrest without warrant for a misdemeanor unaccompanied by real or threatened violence.” Atwater v. Lago Vista, 532 U.S. 318 (2001).


Is the Portland Stabbing Incident a Federal Hate Crime?

In Portland on May 26, 2017 a man named Jeremy Christian fatally stabbed two people, Ricky Best and Taliesin Myrddin Namkai-Meche, and injured a third named Micah Fletcher. Mr. Christian was shouting anti-Muslim slurs at two teenage children while they were all passengers on an MAX Light Rail. Ricky Best, a retired military service member, along with the other two victims attempted to deescalate the situation but Jeremy Christian began slashing at all three men repeatedly towards their neck after he received a slight push or shove from someone.

Jeremy Christian is charged with murder, attempted murder and other crimes. At his arraignment, he yelled, “Free Speech or die, Portland. You got no safe place,” and “This is America. Get out if you don’t like free speech.”

The FBI is assisting Portland Police with the investigation. They are investigating the possibility of charging Christian with a federal hate crime. In this blog post, we will explore what constitutes a federal hate crime, whether Jeremy Christian can be convicted of a federal hate crime, and whether this would violate Double Jeopardy. Along the way, we will learn about some interesting facts about constitutional law and how the federal and state criminal justice systems work side by side.

What constitutes a Federal Hate Crime?

There are two main bodies of law which make up what are referred to as “federal hate crimes”:

  • The Civil Rights Act of 1968
  • Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009

The Civil Rights Act of 1968

The Civil Rights Act of 1968 was signed into law by President Lyndon B. Johnson little more than a week after Dr. Martin Luther King’s assassination. It made changes to combat discriminatory housing policies and codified a hate crimes section.

The hate crimes section of Civil Rights Act of 1968 (18 USC 245(b)(2)) states in pertinent part  “Whoever, whether or not acting under color of law, force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with…any person because of his race, color, religion or national origin and because he is or has been” engaging in certain federally protected activities such as attending school, patronizing a public place/facility, applying for employment, acting as a juror in a state court or voting.

Those who violate this law can be fined or face up to one year of imprisonment or both. If the victim received bodily injuries then those who violate this law can face up to ten years of imprisonment. If the victim dies as a result of violations then the perpetrator can face up to life in prison or the death penalty.

Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009

The Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009 was signed into law by President Barack Obama on October 28, 2009. It was partially named after Matthew Shepard,  a 21 year old student who was tortured and murdered  near Laramie, Wyoming. It was widely reported that the attack was motivated in part due to the victim being gay, and the trial employed a gay panic defense. It was also partially named after James Byrd, Jr., a 49 year old black man who was brutally murdered by three white supremacists. 

The Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act eliminated the portion of the Civil Rights Act that stated that the victims had to be engaging in federally protected activities thus broadening it’s scope and applicability. It also broadened the federal definition of hate crimes by including in the definition those crimes motivated by a victim’s actual or perceived gender, sexual orientation, gender identity, or disability.

The law also requires that the hate crime happen “during the course of, or as the result of, the travel of the defendant or the victim across a State line or national border; or using a channel, facility, or instrumentality of interstate or foreign commerce;” or that the weapon that the defendant used has traveled in interstate or foreign commerce. You are probably asking yourself, “Why do they care whether the guy who just committed a hate crime or the weapon he used traveled across state or national borders?” The answer has to do with the Constitution and what are referred to as enumerated powers.

Enumerated Powers and the Commerce Clause

Because Article One of the Constitution limits the federal government to certain enumerated powers, the Hate Crimes Prevention Act used the commerce clause(a decidedly broad power) in order to legislate. If you are not a lawyer, you probably only have a vague idea of what the previous sentence even means. What it means is that in order for Congress to make law they must have been given that power to make law by the Constitution. The Constitution limits Congress to the enumerated powers set forth in Article 1 Section 8. These powers include things like the powers to declare war, collect taxes, coin money, and raise/support armies.  The broadest of those powers is the power of Commerce. This is because almost anything can be tied directly or indirectly to commerce-even the Portland Stabbing Incident as we will soon find out.

Can Jeremy Christian be convicted of a Federal Hate Crime?

The short answer is that I believe he can. The long answer is that due to the Anti-Muslim slurs that he made after the attack, it is most likely that these statements along with Mr. Christian’s prior recorded Anti-Muslim demonstrations would satisfy the element that the crime was committed because of religion. In addition, he stated that the two girls he was verbally abusing should “Go back to Saudi Arabia”. This statement would satisfy the element that the crime was committed because of national origin although, under the statute, it is not necessary to prove the crime was committed because of race, color, religion and national origin. Any one of these four or any one of those protected classes mentioned in the Hate Crimes Prevention Act would suffice for purposes of a conviction.

An issue which may give prosecutors a tough time is whether the victims of the hate crime must also be the targets of the hate speech. The law doesn’t explicitly require this to be the case although it may seem intuitive that they be the same person. The law is open ended as to who the target could be in saying “willfully causes bodily injury to any person or, through the use of …[a] weapon, …  because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person“. In this case, the most pertinent victims of the hate crime (the 2 men who were killed and the 1 injured) were not necessarily the targets of the hate speech (the 2 girls, one of which was wearing a hijab). Although some reports say that Christian’s speech was “anti-everything and anti-Muslim” it is unclear at this time what “anti-everything” means. Was Christian saying something to the effect of “I’m not racist, I hate everyone equally,” or was he shouting anti-gay, anti-Jew, anti-black, and anti-Mexican slurs with some anti-Muslim slurs thrown in for good measure.

To satisfy the elements associated with a Commerce Clause we must examine where the crime took place -on public transportation, specifically a light rail. This is definitely a channel for commerce. Does it run between several states? If so, this would make it a channel of interstate commerce. We also must look at what instruments were used-specifically the knife. Where was it manufactured? Where was it bought?  If in another state then it would be connected to interstate commerce and thus satisfy the requirements of statute.

Furthermore, two victims are dead as a result of the attacks thus Mr. Christian could be eligible for the death penalty. The Hate Crimes Prevention Act only mentions life in prison as a potential punishment which is curious considering it was promoted as a bill that would increase the penalties for those who commit hate crimes. The Civil Rights Act does mention the death penalty. Thus, if he is charged under the Civil Rights Act then he could receive the death penalty. If he is charged under the Hate Crimes Prevention Act, then the highest possible penalty he could receive would be life in prison. Federal prosecutors would likely charge him under both sections if they decide to pursue federal charges.

Why Pursue Federal Charges if he is already facing State Charges?

The answer to this question may depend on what the state prosecutors plan to do. If the state decides that they would rather let the feds deal with it then they will most likely dismiss their charges after he is indicted in Federal Court. Why would they? Maybe they think the feds have better resources to handle the investigation. Maybe they would rather conserve local taxpayer dollars than waste the time and energy to condemn a man who is already most likely going to spend the rest of his life in a federal penitentiary or worse.

If the state decides to prosecute him and the feds are not happy with the outcome, i.e. he gets a light sentence or found not guilty, then the feds can start their own prosecution.

Does this violate Double Jeopardy?

It does not. Double Jeopardy is governed by the Blockburger test. This states that where the same act or transaction constitutes a violation of two distinct laws, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not. Basically, what they are looking for is a separate element of the offense that needs to be proven. If a separate element exists, then Double Jeopardy doesn’t apply. If there are no separate elements, then Double Jeopardy does apply and the subsequent prosecution is barred.

Here, hate crimes require an extra element of proving the perpetrator’s actions were motivated by the victim’s race, religion, etc. This is distinct from most state murder statutes which only require premeditated intent to kill no matter what the motivations.

In addition, the Supreme Court decided in US v. Lanza 260 U. S. 377 (1922) that when the same act is an offense against both state and federal governments, its prosecution and punishment by the latter, after prosecution and punishment by the former, is not double jeopardy within the Fifth Amendment.


Do Court Fines Ever Go Away? I Didn’t pay my Fines a Long Time ago.

Short answer is that the obligation to pay the fines never goes away. The long answer is that not all of the processes that the court usually uses to get people to pay fines (i.e. contempt and revocation of probation) may be available to the court. The court cannot likely revoke your probation if it is outside the normal term of probation for a misdemeanor, which is 2 years, or 5 years for a felony, but this term can be extended in order to complete restitution AKA payments to the victim. There is nothing in the statute, KRS 533.020 authorizing extension of probation for payment of fines. Therefore, this means the court could not likely impose your original sentence if it is outside 2 years for a misdemeanor conviction or 5 years for a felony conviction.

However, the court can still use its contempt powers to make you pay the fine but there is process that goes along with that. Simply put, if you are ordered by the court to pay fines and you don’t then you are disobeying the court’s order. Judges expect their orders to be obeyed. If the orders are not obeyed then the judge can impose punishments up to and including jail time. However, before imposing those punishments for financial related obligations, the court must make a specific finding of fact upon his or her ability to pay and any further contempt proceedings should be limited to those amounts which the person is found to be able to pay. Also, if jail time is a possibility then the person has a right to appointed counsel AKA a public defender.