Top rated trial attorney Chad Garrett writes, publishes and teaches on numerous legal topics, including the foundation of criminal defense law, search and seizure.
The U.S. Constitution’s forth amendment reads:
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.
This amendment is responsible for the exclusionary rule, and carves out exceptions for warrantless stops and seizures. Every vehicle case or DWI case starts with the same analysis – the stop. Your exploration should hit these topics:
- Was there a seizure?
- If yes, there was a seizure, was it proper based on a reasonable suspicion or other proper legal standard?
- If yes, was the scope of the officer’s subsequent actions sufficiently limited?
- If an arrest occurs, was there probable cause?
- If there was a search, was it permissible based on probable cause?
Depending on how you answered these questions, you may have a suppression motion available.
If there has been no seizure, the forth amendment is not applicable. If a seizure did occur, the “free to leave” standard is invoked to determine if the person has been seized. This is a “reasonable person” standard, and an objective one.