Last week, in discussing the case involving the search of a man’s laptop as he left the country last time, we noted that the Fourth Amendment to the U.S. Constitution protects individuals from “unreasonable searches.” This means to varying degrees, any discussion involving the Fourth Amendment and search and seizure will involve questions of reasonableness.
When law enforcement wants to search a person, their homes or their papers, they must first have probable cause. This allows an arrest or a search to take place. For a typical search to be carried out, law enforcement will obtain a search warrant from a judge by showing probable cause, or that there is likely to be evidence of the crime present at the location to be searched.
If law enforcement does not have a search warrant, and they want to search a person, they first must have “reasonable suspicion” that the person is connected the crime. The classic example of this occurred in the case Terry v. Ohio, where the Supreme Court analyzed a search of a man stopped on the street by police.
The officer must be able to provide “‘specific and articulable facts,’ which, when considered together with the rational inferences that can be drawn from those facts, indicate that criminal activity ‘may be afoot’.”
For instance, if a suspect in a jewelry store robbery is described in specific detail, and the police see such an individual within a short distance of the robbery scene, and he begins to walk quickly away from approaching police officers while appearing nervous, they potentially could have the “specific and articulable facts” necessary to stop, question and search the man.
Much of Fourth Amendment case law consists of courts examining the question of the reasonableness of the law enforcement officers suspicion and whether the specific facts are sufficient to permit the warrantless search. The determination is made under a “totality of the facts” standard that allows a very broad scope to the inquiry.
Source: uscourts.com, “UNITED STATES OF AMERICA v. JAE SHIK KIM, KARHAM ENG,” Crim. Action No. 13-0100 (ABJ), May 8, 2015