The United States and Arkansas Constitutions protect persons from unreasonable searches and seizures. The Fourth Amendment to the U.S. Constitution guarantees the right of citizens to be free from unreasonable governmental searches and states:
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.
Subject only to a few specifically established and well-delineated exceptions, a search is presumed to be unreasonable under the Fourth Amendment if it is not supported by probable cause and conducted pursuant to a valid search warrant. The Arkansas Constitution also protects citizens against unreasonable searches and seizures. Article 2 § 15 of the Arkansas Constitution provides for the right to privacy and states:
The right of the people of this State to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue, except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.
Both provisions make it explicitly clear that before a warrant can be obtained by authorities, they must have probable cause. Remember my standard disclaimer: This is not legal advice and I am not your lawyer, yet! I am providing this discussion for informative purposes only. Every situation is different and for legal advice on your specific situation, please consult a licensed attorney. Now with that out of the way, back to the discussion: All searches conducted without a valid warrant are unreasonable unless shown to be within one of the exceptions to the rule that a search must rest upon a valid warrant. The burden is on the State to establish an exception to the warrant requirement. Further, the burden is on the State to prove that the warrantless activity was reasonable. But there are exceptions to the warrant requirement Such exceptions include (but are definitely not limited to) voluntary waiver of the warrant requirement, consent to the search or seizure, exigent circumstances, or an investigatory stop. Firstly, you can voluntarily consent to a search of your person or possessions. As an example, the following conversation could take place and a waiver of the warrant requirement is obtained by the state:
Officer: “I’m just going to look in your trunk. Okay?”
Exigent circumstances can include a number of situations but generally fall into one of several broad categories: (1) response to an emergency, (2) hot pursuit, (3) probability of destruction of evidence, (4) the possibility of violence, (5) knowledge that a suspect is fleeing or attempting to flee, and (6) a substantial risk of harm to the persons involved or to the law enforcement process if police must wait for a warrant.
Police generally may not search a home or seize evidence without a warrant supported by probable cause. Because the invasion of the home is the chief evil to be prevented by the Fourth Amendment, searches and seizures inside a home without a warrant are presumptively unreasonable. Therefore, warrantless entries of the home are per se unlawful absent exigent circumstances or other clear necessity.
One final exception that I would like to generally explain is the investigatory stop or “Terry stop.” In performing their duties, police must question citizens regarding events which the police are investigating. Law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or another public place. Further, officers may question citizens without implicating Fourth Amendment protections so long as the officers do not convey a message that compliance with their requests is required. An encounter is not consensual, however, if “in light of all the circumstances, the police conduct would ‘have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.’” A Terry Stop, as set forth in Terry v. Ohio, 392 U.S. 1 (1968), is a bit different from a consensual encounter. Sometimes called a “stop and frisk,” the Terry Stop is set forth in the holding in Terry which says that the Fourth Amendment prohibition on unreasonable searches and seizures is not violated when a police officer stops a suspect on the street and searches him or her without probable cause to arrest. However, the Fourth Amendment is not violated if, and only if, the police officer has reasonable suspicion that the person has committed, is committing, or is about to commit a crime. Now what constitutes reasonable suspicion is the subject of many law review articles and caselaw which varies widely from state to state, but let it suffice that it is not a very high threshold. This reasonable suspicion must be based on “specific and articulable facts” and not merely upon an officer’s hunch. Once this threshold is met, police may for their own protection perform a quick surface search (or frisk) of the person’s outer clothing for weapons if they have reasonable suspicion that the person stopped is armed. The rationale behind the Supreme Court decision is “the exclusionary rule has its limitations.” The exclusionary rule is to protect persons from unreasonable searches and seizures aimed at gathering evidence, not searches and seizures for other purposes (like prevention of crime or personal protection of police officers). SCOTUS extended Terry in Michigan v. Long, 463 U.S. 1032 (1983) which held that car compartments could be constitutionally searched if an officer had reasonable suspicion. Reasonable suspicion is satisfied when the officer stops the vehicle on a pretext, since by definition, a “crime” has occurred even though the “crime” may be speeding, illegal lane change, license plate obscured, etc. You get the picture…. Now your rights during a public stop (on foot with no violation of law) where the officer demands identification depends upon what state you are in at the time. Depending upon the state law, SCOTUS held in Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004), that a state law requiring the suspect to identify himself during a Terry stop does not violate the 4th Amendment or the 5th Amendment privilege against self-incrimination (unless of course giving your name in and of itself incriminates you, which brings up an entirely different discussion! Just like an onion, the more layers you peel, the more layers you uncover and simply want to cry!). So it depends on whether your state has a law which conforms to the narrow Hiibel requirements which pretty much fall along the lines set forth in Terry in that police may detain any person “under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime” as to whether you have to produce identification. Here is a Wikipedia link to states that currently (as of 2010 according to the wiki page) have stop-and-identify statutes on the books. As with all things wiki, you must verify the information. Wikipedia is a great starting point, but anyone (even crazy defense lawyers) can edit the information, so you must verify the information. For instance, the page shows Arkansas (where I am licensed) has a stop-and-identify statute. However, looking to the actual text of the statute, it involves the crime of “loitering” and thus it automatically involves “reasonable suspicion that a crime is taking place.” Here is the relevant portion of the statute:
§ 5-71-213. Loitering (a) A person commits the offense of loitering if he or she: (1) Lingers, remains, or prowls in a public place or the premises of another without apparent reason and under circumstances that warrant alarm or concern for the safety of persons or property in the vicinity and, upon inquiry by a law enforcement officer, refuses to identify himself or herself and give a reasonably credible account of his or her presence and purpose….
The statute also sets forth a number of other situations which is considered loitering (such as lingering around a school building without permission, lingering to beg, lingering to drink an alcoholic beverage, lingering to … well, you get the picture.) For a complete list, please consult the law itself. So you can see that the officer is not simply walking up and asking “papers please.” The officer has to have reasonable suspicion that a crime is afoot. Otherwise it is simply a request that any private citizen may ask, and you are free to either comply or refuse and ask “Am I free to go?” Of course your refusal may make the officer suspicious (Catch-22 anyone?) and the officer may “investigate” further to gain reasonable suspicion. There are many different facets to search and seizure law that are entirely too numerous to go into in this article. Suffice it to say this merely scratches the surface. If you are involved in a situation involving a search and seizure, please consult a licensed attorney to discuss your situation. EVERY SITUATION IS UNIQUE!!! We are not your lawyers (yet) so please remember this is a general disussion, and is NOT to be construed as legal advice. Please visit our site disclaimer for a full explanation of our disclaimer. However, if you wish to consult an attorney at Butler, Horn, Nye & Johnson, please contact us immediately for a consultation.