Beyond Stop and Frisk: An In-Depth 4th Amendment Definition

The law allows citizens to “consent” to certain procedures or investigations, sometimes without being aware of it. We all know that the Fourth Amendment of our United States Constitution is meant to protect us from unreasonable searches and seizures. That is, law enforcement is not allowed to arrest you or look through your personal belongings without having a reasonable justification for doing so. Justifications to arrest or search can happen in the context of many police encounters. One example is where the officer witnesses you break the law and complete a crime from start to finish. This is very rare. The more common way an officer can justify an arrest is by gathering information from you during the encounter and establishing “probable cause” to arrest you. The officer has now justified an arrest under the law. Keep in mind that you may not feel that you are guilty of any crime, and you may not be. But in the context of police encounters, arrested individuals actually help the police to make the arrest. How would anyone help himself or herself get arrested? Very simply: by consenting to an officer’s requests.

Under the Fourth Amendment, a search is unreasonable when conducted without a warrant or probable cause. That means an officer must get authority from a neutral judge before they look through your “things.” This is true to search inside your home, inside your bags/purses, and inside your body. But, if you consent, you allow the officer to bypass the requirement of getting a warrant. This broad interpretation leads to the current controversy over so-called “stop and frisk” policies that are garnering scrutiny by civil rights groups.

“Consent” can be given to law enforcement in many ways. The most obvious is when an officer asks “do you mind if I look inside?” and you answer, “Not at all officer, I have nothing to hide!” You have now consented to a search. The more subtle way to get consent is when an officer asks you questions and you answer those questions. Those answers are now a consensual conversation, and even though you have not been given a “Miranda” warning, those statements/answers can be used against you. Whether you are being accused of DWI, possession of an illegal drug, a robbery, or any other type of crime, law enforcement will use its initial investigation to help in arresting you. The best thing you can do for yourself if you feel that you are being wrongfully accused is respectfully terminate any conversation with the police. State that you “wish to remain silent and no longer want to answer anymore questions,” and ask that your attorney be present. Do not let them convince you to provide any more information. Phrases from the police like, “well we just want to know what’s going on” “If you have nothing to hide, why don’t you want to answer any questions?” “If you cooperate, it will make things easier for you.” are an attempt by law enforcement to get your consent. Never get into an argument with an officer. Remain calm and respectful and do not answer any questions you are not comfortable answering. Remember that your consent, even if subtle, let’s law enforcement search you without a warrant.

1 reply
  1. Jeremy
    Jeremy says:

    New York is not Sanford, of course, and there is a world of difference between the vigilantism of George Zimmerman and the professional policing of the nation s biggest city. But we can no longer stand by while innocent young men of color are stopped for the crime of walking home or going to the store.


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