Search and Seizure

Compare two cases on “what’s a stop”:

“Invs. Concepcion and Dodaro merely parked alongside Mr. Alexander’s car, walked to each side of the car, and asked Messrs. Frails and Alexander routine questions about their presence in the neighborhood. It is undisputed that the time between parking the patrol car and approaching Mr. Alexander’s car was very brief, the suspects had their windows down, the investigators did not draw their weapons, did not ask for identification, and did not give any directions to Mr. Alexander or Mr. Frails during the initial part of the encounter. [¶] Police action such as this is insufficient to establish a Fourth Amendment seizure.” United States v. Alexander, 2013 U.S. Dist. LEXIS 176920 (S.D. Ga. October 18, 2013).*

Defendant was stopped without reasonable suspicion: United States v. Garner, 2013 U.S. Dist. LEXIS 175962 (D. Nev. October 22, 2013)*:

In this case, the government’s written motion argues that Bowman’s attempt to approach and question Garner did not constitute a seizure. The government relies on a line of cases in which the Supreme Court has held that police questioning alone does not constitute a seizure. See, e.g., Florida v. Royer, 460 U.S. 491, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983) (plurality opinion). It is clear, and the court finds, that this was not a consensual encounter. Bowman and Valle were shining their patrol vehicle spotlight down the alley and focused on Garner when they observed him seated in his car. The spotlight remained on him while the officers immediately pulled their patrol car to the front of Gardner’s vehicle parking at an angle near the front headlight of Garner’s vehicle. The officers activated the patrol vehicle’s emergency lights and immediately got out of the vehicle approaching Garner’s vehicle on both sides. Although both officers testified Garner’s vehicle was not completely blocked in by the patrol vehicle, both acknowledged that Garner would have had to maneuver his own vehicle to get around the patrol car. More importantly, both Bowman and Valle testified that from the point of the initial encounter, Garner was not free to ignore the police presence and go about his business. Rather, both Bowman and Valle acknowledged that Garner was being detained. Bowman testified that Garner was not free to leave and that he was being detained until Bowman made contact with him. Valle also testified that from the point the patrol car pulled up at an angle near the front headlight of Garner’s vehicle, Garner was not free to leave. The court finds that Garner was seized in an investigatory detention.


The law is very clear.  While the police can do a quick investigative stop on a vehicle or person and request a name, the police cannot SEARCH you, your car or your purse without probable cause.  You do NOT have to agree.  When a stop happens, be polite but be aware of YOUR rights.  Politely say, “I do not agree or give consent to any search of my person or property and would like to call my attorney.” 

If you use this language the police cannot misunderstand or later claim you gave consent.  It doesn’t matter that you don’t have a personal attorney.  It is the request that gives rise to the right.  The police must stop questioning you at this point unless they have probable cause to believe a crime has occurred or see contraband in plain view. 

Which gives rise to another issue, don’t leave your “drugs, guns or contraband” in plain view.  If you must carry those items in the car (which sets you up for arrest and detention) place them in your trunk and obey all traffic laws!

But mainly know your RIGHTS.  SAY, “NO” TO REQUESTS FOR SEARCH!

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10.0Katheryn H. Haywood
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