Natty Shafer Law

Utah lawyer for criminal and immigration cases

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Warrant Exceptions: Stop and Frisk

An officer is allowed to conduct a stop and frisk (sometimes called a “Terry Stop” after the Supreme Court case that established their legality, Terry v. Ohio) when it is reasonable to believe that criminal activity may be taking place or is about to take place. The Court authorized the practice with the intention of improving police officer safety. Many crimes involve the use of dangerous weapons, and so, the rationale goes, it is reasonable to search for weapons when a person may be committing a crime.

Because a stop and frisk is supposed to be a search for dangerous weapons, an officer is not supposed to investigate further into objects which are obviously not weapons. A soft, powdery substance encased in a plastic bag, for example, could not be investigated further because the officer does not have reason to believe that the object could be a threat to officer safety.

The problem comes with how nebulous an officer’s suspicions can be. The Supreme Court has specifically said the standard for whether an officer can conduct a stop and frisk is lower than probable cause (which is low to begin with). The even lower standard is a “reasonable articulable suspicion” that a crime is taking place or is about to take place.

In plain language, officers must be able to explain to judges why they believe a specific person was about to commit a crime or was in the process of committing a crime. However, the Supreme Court has not required a particularly high threshold for what amounts to reasonable suspicion. In Illinois v. Wardlow , the Court held that running away from an officer in a “high crime area” was enough to arouse reasonable suspicion. With such a low threshold, judges often find in the officer’s favor.

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Warrant Exceptions: Plain View

The police are allowed to look at anything else that a regular citizen can look at. Officers legally in a place do not need a warrant to observe everything around them. While this is generally called the “plain view doctrine,” nothing prevents officers from using all of their senses to listen, feel, or otherwise observe, and if the incriminating nature of the object is obvious, seize it. (For the rest of this post, I will use the sense of “sight,” as a shorthand for any of the senses.)

Once officers see contraband, assuming they are legally present, they can seize it. The incriminating nature of the evidence has to be immediately apparent. Any further sleuthing by the officer is not allowed, such as moving a stereo to check its serial numbers. But something like illegal drugs, which are always illegal, can generally be seized.

An officer can even seize contraband in situations where they are on private property. For example, an officer does not need a warrant to seize a marijuana plant growing on someone’s property, even if there is a wooded fence keeping intruders out. Because anyone could see the plant, the police can also seize it or use the information for an arrest warrant.

The phrase “plain view,” can be a little misleading. Often, the incriminating item is not in “plain” view, but it is visible. For example, officers can press their noses to a car window and contort their heads to look for evidence. If an officer saw a loaded firearm, that would qualify for the plain view exception, even though most people would believe that the officer’s necessary contortions show that the firearm may have been in view, it was not in plain view. The bottom line is that an officer is not forbidden from seeing what anyone else can see, and anyone else could do the same thing, obnoxious manners though it would be.


Warrant Exceptions: Search Incident to Arrest

Most laypeople are vaguely aware that warrants allow police officers to search private belongings or property, and lack of a warrant can make a search illegal and render any evidence obtained inadmissible in court. However, there are so many exceptions to the warrant requirement that an officer can often find an exception. It sometimes seems as though the warrant requirement is no requirement at all. Today, I’m writing about one of those exceptions: the search incident to arrest.

When an officer arrests a person, the officer can search a person’s body to check for weapons or contraband. The rationale has been that officers need to protect themselves and they need to preserve evidence. The exception has a fairly long history. As Professor Orin Kerr showed, it goes back to at least 1914 and probably earlier. It is pretty well settled that officers can search everyone they arrest and the area within arm’s reach of the arrestee.

The problem comes with changes in technology and how intrusive such searches can be. We are in limbo as to whether or not police officers can search a person’s cell phone after an arrest. A police officer is allowed to remove the cell phone from someone they arrest, but are they allowed to open the cell phone and search for possibly incriminating evidence? A cell phone makes a poor weapon. Once an officer has removed it from a person’s possession, there is no threat of it harming the officer or of the arrestee deleting evidence. Unfortunately, the Supreme Court has not ruled on the issue of search incident to arrest recently, and lower courts are left analogizing new technologies to dissimilar objects from past rulings. Different courts are split on the issue. Neither the Utah Supreme Court nor the Tenth Circuit Court of Appeals have yet weighed in on the issue.

In United States v. Robinson, a 1973 case, the Court said that an officer could search a man’s pocket, which contained a crumpled up cigarette packet with heroin inside. As a result, some courts such as the California Supreme Court, have held that a cell phone on a person’s body is subject to search. A police officer, after a lawful arrest, can examine all of a phone’s contents without a search warrant.

It is not just the guilty who should be worried about this type of intrusion, either. Innocent people do get arrested, and there is a lot of personal information on a cell phone. I don’t know about you, but if an officer were so inclined, he could find a lot of embarrassing but not illegal information on my phone. I would not want a stranger poking around my text messages, call logs, appointment calendar, and pictures. Some people have even more sensitive information on their phone such as sensitive emails or trade secrets on their business phone.

Fortunately, there are other courts that have ruled differently, such as the Florida Supreme Court, and recognized that the rationale for this warrant exception does not apply to cell phones. Once an officer has taken a phone, the need to protect evidence or the officer’s safety is gone.

Until there is a ruling in Utah, it wouldn’t hurt to password protect your cell phone.