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Evidence fruit of the poisonous tree: Why a judge’s ruling is dangerous for police
When police officers pull you over for running a red light, a routine traffic stop may not seem like much, but it’s far more complicated and nuanced than that.
Depending on the circumstances, officers can obtain and use evidence against you under a number of different legal statutes.
We’ve laid out the law in this article, and you’ve probably heard it all before. But we’ve put it in a different context and illustrated it with a hypothetical example: What if an officer obtained evidence that allowed him to arrest you for drunk driving because he saw you commit the traffic infraction but also heard you admit to having consumed alcohol?
This hypothetical question illustrates the difference between a lawful seizure and an illegal search under the Fourth Amendment. In the interest of putting this story into context and making it more useful to our readers, we will be using police terminology.
For the sake of illustration, we are going to use a traffic stop to get into this topic. A police officer pulls you over, gets out of his car and says, “You ran a red light.” You were driving home after a long day. You may ask why.
In reality, of course, this would never happen. Officers are obligated to make reasonable inquiries when there are articulable facts that would lead a reasonable officer to think that there is reasonable suspicion of criminal activity.
However, that’s what police officers have been trained to do. It’s also what we are told in the academy. It’s good for us. We need to ask questions. The officer needs to feel like his job is to protect and serve.
But the hypothetical example is illustrative. An officer may pull you over for no other reason than to obtain evidence of the traffic infraction.
“Officer, you ran a red light,” is a lawful inquiry if the officer reasonably believes he has enough probable cause to support the charge.
This is a seizure under the Fourth Amendment.
After the officer identifies you as a suspect in a criminal investigation, the officer will usually ask permission to search the vehicle. It’s a lawful request, not because it’s voluntary, but because it’s voluntary in a Fourth Amendment sense.
If you refuse consent, the officer will detain you, and may ask for consent to search the vehicle a second time. Again, it’s a lawful request because it’s voluntary in the Fourth Amendment sense.
Sometimes officers will not have consent. That’s an illegal seizure.
But if you refuse to consent to search and say, “No,” then an illegal search occurs. The officer will now be justified in using the tools of the search at his disposal.
The police aren’t permitted to do this, and they aren’t. But if you refuse to consent to the search, the officer will still need a legitimate reason to detain you and ask for a second, voluntary consent to search.
It’s important to understand the Fourth Amendment. If you understand it, you are going to have some say in how the police conduct their investigations.
It’s not as complicated as you may think. However, if you think the Fourth Amendment is complicated, read up on it.
There is something else to remember:
You do not have to go to court and defend your rights if you are innocent.
Do not think you need to take action and fight the police if you’re innocent. No one has ever been exonerated as a result of a refusal to consent to a search. No, I do not exaggerate.
Here is a list of things you should keep in mind:
You don’t have to consent to a search.
You don’t have to consent to a search of your property if you live in a hotel or at the airport.
Officers have to get your consent to search your private property.
You can say, “No.”
You do not have to answer questions.
You can decline an officer’s request to search, unless there is a warrant for it, and then answer his questions.
You can ask to go to court.
You can refuse to answer questions.
You do not have to consent to be arrested.
You do not have to be arrested unless you are committing a crime.
You do not have to answer questions after arrest.
You do not have to take a breathalyzer test if you’re under 21.
There are a few things you should remember, especially if you’re in New Jersey:
A person does not have to answer any questions or consent to a search unless there is a warrant for the search or if he is under arrest.
A person can say, “No.”
A person does not have to take a breathalyzer test if he is under 21.
You do not have to give consent if you are under the influence of drugs or alcohol.
The Fourth Amendment of the Constitution says:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
You should also know this:
The person who wants to search you cannot be with you when he asks you questions.
If you refuse to be searched, police cannot make you answer questions.
If you are under the influence of drugs or alcohol, you cannot be searched without a warrant.
A consent search is only valid if it is voluntary. Voluntary means that you had a choice whether to consent or not. You cannot be forced to give consent.
You cannot be charged with a crime for refusing to give consent.
A valid consent search has the following characteristics:
The police have a warrant, or can make a valid Terry stop.
The officer asking to search has to tell you why he wants to search you.
You have a right to ask questions of the police to see whether they have a legal reason to search you.
If you are under arrest, you cannot be questioned, and even if you are not under arrest, you can refuse to answer questions. However, you may be charged with a crime for making such a refusal.
In addition, the police can take you to a hospital or to a health care professional.
You have a right to seek treatment for medical needs.
You cannot be made to give blood or other bodily substances without a search warrant.
You have a right to be protected from self-incrimination.
This means that the police cannot use your answers or statements to prosecute you.
If you have a mental illness, you have rights under the Americans with Disabilities Act.
If you are detained for more than eight hours, you must be taken before a judge.
You should know that the police can legally arrest you if you fail to give them identification after