Knowledge is Power
“Resentment is like drinking poison and then hoping it will kill your enemies.”
- Nelson Mandela
I learned this past week that, apparently, my strip and cavity search were video recorded. Already, my 4th Amendment rights were violated by an illegal arrest. And again by being stripped naked. And again by my cavities being searched. But now, I learn even the private parts of my nightmare continue to exist on video.
Can I heal or will there continue to be new surprises every week?
In my fury with the injustice perpetrated against me, I try to focus on the forgiveness Nelson Mandela not only preached but was able to give. He was imprisoned for 27 years for sabotage based on his efforts to end apartheid (South Africa’s system of brutal racial segregation). He is the epitome of an imprisoned freedom fighter. When he was finally released, he emerged with an unwavering commitment to compassion and reconciliation. Regardless of the horrors committed against him, he opened his heart, even to his enemies.
Me? I am not there.
In law school, my first summer was spent interning with Legal Aid South Africa. While there, I met two incredible mentors and real-life freedom fighters who gently and judiciously introduced me to the horrors of the criminal legal system. I was shown that, in a system that functions much like David versus the Goliath, every pebble is worth finding and with enough diligence, even the smallest one can topple the giant.
Both inside and outside the internship, I saw the lasting, negative effects of apartheid on South Africa. I also saw the hope and resiliency of South Africans. I continue to see the devasting effects of unleashed government actors on my clients and, now, my own life. I also see the strength, perseverance, and resiliency of each of my clients. Maybe one day I can provide legal guidance and serve as an example of compassion and forgiveness, but for now, continue to look to Mandela. For now, knowledge is power, and knowledge of the law is what I will share.
Since my mind this week was bothered by my privates not being left private, today we will focus on the Fourth Amendment of the Constitution that protects us from unlawful searches and seizures. Think: traffic stops, arrests, strip searches, cavity searches, and all other searches.
Like I mentioned last week, but always good to review, the Constitution exists to limit government action to protect our freedom. Here's a breakdown of how the Fourth Amendment protects you (uploaded as a picture to be easily saved, if you’re so inclined):
Now, let’s rephrase based on specific scenarios:
To pull you over while driving, a law enforcement officer must have a reasonable articulable suspicion that a crime is being or has been committed. He must have a clear reason that can be specifically articulated that made him believe you might be breaking a law. This reason cannot be based on mere speculation, like you were in “bad area” or based on race.
(Once you’re pulled over, do you have to answer officer’s questions? NO! You must provide identification and other documentation, such as insurance and registration, but you do not have to say where you are going. You do not have to say where you are coming from. You can invoke your right to remain silent!)
Can the officer ask you to step out of the car? Can the officer search your car? Not without your consent, a warrant, or a probable cause exception!
When can an officer arrest you? When the officer believes there is probable cause indicating that you have committed or are committing a crime. Yes, this is the same standard as when the officer had you step out of the vehicle! This is the same standard as when the officer began searching your vehicle! If this is happening, the officer believes he has enough reason to justify an arrest—SO STAY SILENT. More likely than not, regardless of what the search yields, you are going to be placed under arrest.
If you are arrested, your protections under the 4th Amendment weaken. Your person can be patted down prior to being placed in the patrol vehicle. Your person can be searched again when at the jail—in accordance with their common practice and standard operating procedures. If you are NOT going to be placed into general population, the 4th Amendment protects against strip searches absent reasonable articulable suspicion. Unless otherwise clearly stated in the standard operating procedures of the facility, cavity searches (visual or manual) are not to be conducted absent reasonable articulable suspicion. Cavity searches are constitutionally prohibited from occurring in all circumstances where a person is not entering general population.
(Because local law enforcement has expressed confusion about the term “cavity search,” as is federally defined: “body cavity searches involve looking into a subject’s body cavities (anus and/or vagina) but not touching or intruding with a finger or an instrument.” Intrusion with a finger or an instrument is a practice specifically referred to as a “manual body cavity search.”)
When a warrant is signed (either arrest warrant or search warrant), it means a judge was convinced that a crime might have been committed by the accused and/or the house, vehicle, phone, person, etc. might hold pertinent evidence. All search warrants are supposed to be limited in breath and scope to only permit access into areas where evidence is probably located. (This is where impartial judicial oversight is vital.)
When to Assert Your Fourth Amendment Rights
If you believe your Fourth Amendment rights are being violated, here's what you can do:
Be polite but firm. You can say something like, "I do not consent to a search of my person or property."
Know When to Remain Silent: You have the right to remain silent during any police interaction. You are not obligated to answer questions, especially ones that might incriminate you.
Additional Notes
The "Fruit of the Poisonous Tree" Doctrine: If evidence is obtained through an unlawful search or seizure, it can be excluded from court. Evidence derived from an illegal search is "fruit" that is tainted and therefore unreliable.
Consult an Attorney: If you believe your Fourth Amendment rights have been violated, consulting with an attorney is crucial. They can advise you on your legal options and potential remedies.
A Balancing Act: The Fourth Amendment protects your privacy while allowing law enforcement to investigate crimes. It's a balancing act. Understanding your rights and when to assert them can help you navigate police interactions with confidence.
Disclaimer: This blog post is for general information purposes only and does not constitute legal advice.
