Last updated on February 18th, 2019
Jacob Tingen: Hello there. Welcome to the first ever episode of Law Talk with Tingen & Williams. My name is Jacob Tingen with the law firm Tingen & Williams. I’m here with one of my partners, Jonathan Jordan.
Jonathan Jordan: How’s it going?
Jacob Tingen: Good to see you, man. We’re happy to be doing this program. Just to kind of give you a preview of what’s in store, so every week, we’re going to get on Facebook Live Wednesdays at 11:00. We might want to get your feedback, what hour’s best for you, but we’ll be here every week talking about issues relating to the law. Today, Jonathan, who is one of our criminal law attorneys and a bit of an expert in some of the issues that people face, will be talking to us about your constitutional rights, search and seizure, those kind of things. Jonathan, go ahead and say hello.
Jonathan Jordan: Hey, how’s it going?
Jacob Tingen: Jonathan, like I said, is one of our criminal law attorneys. We’re both graduates from the University of Richmond. What we’re going to do today is just kind of talk about what comes up here locally in Richmond but also, kind of, the things that people face around the country when it comes to search and seizure and police action. Let’s start with police stops. Does that sound like a good place to start, or did you want to share some thoughts about search and seizure before we even get into that?
Jonathan Jordan: I think we should get down the foundation of where the rights come from.
Jacob Tingen: Okay, so let’s talk about that first.
Jonathan Jordan: When we talk about search and seizure, really, the source of this is the Bill of Rights, specifically the Fourth Amendment, which the founders of this country, they wanted to protect people from government action. So if we’re talking about search and seizure, we’re really talking, essentially, first, about some sort of police or government action. We’re not talking about your boss or your buddy or anything else. It has to be some sort of cop or officer.
Jacob Tingen: Yeah, because when a private party does it, that’s stealing or that’s breaking and entering, which is also against the law, but when a government actor does it, it’s a violation of constitutional rights.
Jonathan Jordan: Exactly. The Constitution says, “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 it goes on to talk about warrants. That’s what we’re talking about, is unreasonable searches and seizures and how we know when they’re reasonable and when you can refuse them.
Jacob Tingen: Now, being a lawyer, of course, my ears perk up when I hear words like “unreasonable” and what that means. That’s where a lot of the debate today is, right?
Jonathan Jordan: Yeah. It’s like what is reasonable? They have different standards. Reasonable according to whom?
Jacob Tingen: Reasonable according to whom? There should be accepted standards of what’s reasonable, although, it’s pretty apparent that we fight over these things all the time, right?
Jonathan Jordan: Oh yeah.
Jacob Tingen: Law enforcement officers have to enforce the law, and of course, we should respect … I mean, that’s a good thing. It protects our citizenry. At the same time, it’s unfortunate when you have to protect our citizenry from the government itself, which is kind of what the root of this all is, right?
Jonathan Jordan: Yeah. The idea is Lord Acton, way back in the day, gave that phrase we hear sometimes, “Power tends to corrupt, and absolute power corrupts absolutely.” So this is a check on government to keep them from having absolute power. We want police officers to be able to actually go out and get bad guys, but we don’t want them to go kicking in doors like some sort of Gestapo or something like that, so we’re trying to walk this balance between those two issues.
Jacob Tingen: Right. Are these rights ever violated? I mean, I guess it’s kind of a dumb question. We know that they are.
Jonathan Jordan: Oh yeah.
Jacob Tingen: Frequently. What are some ways the that average Joe encounters these issues day to day?
Jonathan Jordan: Day to day, for example, if you’re like me, you’ve been stopped for some sort of traffic offense or you’ve run into police-
Jacob Tingen: If they’re like you, huh?
Jonathan Jordan: If you’re like me, you know what that is like when you see the lights go on behind you and your heart stops beating and you panic, start looking at your speedometer and everything else. You’re not sure what exactly is going on, or maybe you do know. You have this interaction with an officer. That’s probably the most common. I mean, generally, we’re not walking down the street saying hi and stopping officers ourselves. It’s usually them coming to us, interacting with us. The question is, when does that contact, when does that interaction, become constitutionally protected? Where are we do they have the right to interact with us, and what are the limits?
Jacob Tingen: And do they have the right to detain you, right?
Jonathan Jordan: Yeah.
Jacob Tingen: Kind of the idea is unreasonable search or seizure or detention of a person and say, “You can’t go anywhere, sir. I’m sorry.” They would need a reason to prevent you from going anywhere.
Jonathan Jordan: Exactly. When we say search and seizure, we’re talking about we can search places and we can search people. When we talk about seizure, we can seize things … Police can seize things, or police can seize people, also. An arrest would be the police seizing an individual.
Jacob Tingen: Your person, right.
Jonathan Jordan: And dragging you off somewhere that you really don’t want to go.
Jacob Tingen: Which, again, would be a crime when a private party does it, so that’s kidnapping and that kind of thing, but in the context of a government actor, then it’s a constitutional law violation.
Jonathan Jordan: Exactly.
Jacob Tingen: So let’s talk about your rights at a traffic stop. Actually, I want to back up, before we even get there. You mentioned a lot of people maybe you engage with police when you see them on the street, that kind of thing, or maybe they want to engage with you, just friendly conversation, that kind of thing. I’ve heard this term, consensual contact versus non-consensual contact, where they can stop you. Should people engage in consensual conversations with police? I mean, you don’t want to give up information that could incriminate you. Of course, everyone has the right against self-incrimination. There’s also this idea that the police protect us, or at least they should. Interactions with police, generally, I mean, what should that be if you see police in public? What do you think?
Jonathan Jordan: I’d like to think … I think, ideally, police are part of the community. Ideally, a police officer should know the people in the community, the people on his or her beat, as we used to say. I don’t think they really have that anymore, because they’re isolated in vehicles now. Generally, I think there’s a healthy interaction between police officers and the community.
Jacob Tingen: Or at least there should be.
Jonathan Jordan: There should be.
Jacob Tingen: There isn’t always, but there should be.
Jonathan Jordan: I know when I see them, I try to say high, and if they’re hanging out, I’ll chat with them sometimes. We have to understand when we do that, there’s the risk that we’re going to give them a reason to bust us, right? Potentially. Police are, generally, that’s their job, is to bust people for committing crimes. If, in that interaction, we give them the reason, I mean, it’s up to them whether they want to take it and bust us. I mean, you’re not going to go have an interaction without some sort of potential risk. If you’re generally a law-abiding citizen and friendly person, that risk is very minimal.
Jacob Tingen: Right. I frequently will, when I see a security officer or police officer, I’ll say hello, but that’s kind of where I leave it. If there’s a big crowd, I might ask what’s going on. I don’t typically have extended conversations with the police, for that very reason, because they’re also trained to keep their eyes out to be looking for violations. Isn’t that right? And some of them have—I mean, I’ve seen articles, but I don’t know the full extent—ticket quotas and those kind of things.
Jonathan Jordan: I think generally, they deny that they have ticket quotas, but the reality is that they are getting pressure from the city or county or jurisdiction that they work for. For example, a lot of these police departments are funding the public schools from their tickets, or the revenue from police tickets goes to public schools.
Jacob Tingen: So there’s pressure to generate revenue?
Jonathan Jordan: When the county’s out of money or wants to do stuff …
Jacob Tingen: Which is unfortunate.
Jonathan Jordan: … they’re going to put heat on the police, and the leadership, the command structure, is going to go put heat on individual officers to try to find things, to write more, to cite more. It goes beyond just interacting and trying to protect against gross violations. At some point, it becomes a revenue thing and they’re just looking.
Jacob Tingen: So let’s get into, like I mentioned, a traffic stop. What are your rights at a traffic stop? Presuming the police officer pulled you over for a good reason, or for a reason that you’re not even aware of … Let’s assume you don’t know the reason. You legitimately don’t know. You look at your speedometer. You’re clearly within the speed limit. What can we do there?
Jonathan Jordan: Any time police come to interact with the public, they’re coming under, potentially, one of three or maybe part of three excuses or valid authority to interact. The first one is voluntary interaction. The police are no less than an average citizen. They can say hi to people. They can chat with people. They can generally walk up to a front door and knock, that kind of stuff, same as any neighbor or visitor would have. The next one is when they’re actually making a stop that’s not consensual or traffic, for example. They either have to have stopped because they have what’s a standard called reasonable suspicion. They either need to have that or they need to have the more common, more understood is probable cause, or at least more heard of. Reasonable suspicion is less than probable cause, but what the law requires is they have to have what’s called reasonable articulable suspicion. If an officer’s Spidey senses start tingling and they go pull somebody over-
Jacob Tingen: Officers have Spidey sense, huh?
Jonathan Jordan: Or officer senses.
Jacob Tingen: Good to know.
Jonathan Jordan: They go pull somebody over because something tingled, they can’t just say, “Oh, my senses tingled. I’ve been doing this forever, and I got that tingly feeling. My sixth sense.”
Jacob Tingen: The gut feeling isn’t enough for reasonable suspicion. I got you.
Jonathan Jordan: That’s not reasonable suspicion. They have to say, “You know what?I observed this person trying to hide his face as he drove past me. I saw hiding some sort of suspicious thing.” They have to articulate a series of things that said, you know, all these things together, with my experience, equals there’s something shady going on. I’m going to go investigate that.
Jacob Tingen: I want to ask about this, particularly the words you’re using. Also, we did get one comment. You want to move your mic just a little bit to the side so it’s not covering … There we go. All right. Reasonable suspicion is the legal term that directly responds to the language in the amendment, which is unreasonable search and seizure. To overcome that, a police officer has to say, “Well, I’m not being unreasonable. My reasons are reasonable.” That’s the idea behind the language there, so what are the kinds of things that constitute reasonable suspicion?
Jonathan Jordan: The courts and the law use what they call a totality of the circumstances. That means everything is examined in the context of at that moment in time, not after the fact. At that moment of time, what did the officer know? What was the officer’s training? What was the officer’s experience? What did the officer see? What were the red flags that were going up? He has to be able to articulate them.
Jacob Tingen: Now, you mentioned officer’s training and experience, so there is a bit of Spidey sense involved in the calculus, but as a total complete picture, like you said, the totality of circumstances, there must be more, right?
Jonathan Jordan: Yeah, there has to be more. For example, one of the cases that is common, there was an officer that he was out on his beat. He was actually walking. He saw these guys walk back and forth in front of I think it was a bank or a store or something. They looked in the windows, and then they walked away, and then they came back and looked in the windows. Then, they walked away. To him, he’s thinking, these guys are casing the joint. They’re watching this. It’s not illegal to go look in windows, but when they keep coming back and looking in the windows, his experience, that seems kind of shady. He’s watching. He’s interested now. He follows them into an alley and he starts talking to them. He notices one of the guys has sort of a lump under his jacket. This is the olden days, where the mobsters, they carried their guns in a shoulder holster. He notices the lump, and he reaches out and searches. That one, with his experience, he knows that people don’t just normally walk back and forth and keep peering in windows and walk away without going inside. They were talking to the other guys. That would be a reasonable suspicion to make a stop. He doesn’t know what they’re doing specifically, but he’s guessing that they’re casing this store.
Jacob Tingen: All right. So let’s take it back to the traffic context. An officer pulls you over on reasonable suspicion, and that reasonable suspicion is reason by actual speeding, so he has tools to gauge, that kind of thing.
Jonathan Jordan: Well, that would be probable cause, actually.
Jacob Tingen: That would be probable cause. All right, so let’s take the jump, then, from reasonable suspicion to probable cause. Explain that.
Jonathan Jordan: If the office actually witnessed you commit a crime, like he’s got you on radar, he watched you speed by, he watched you swerve or use your cell phone where there’s an area where you’re not allowed to text and drive, if the officer watched you commit the act, he’s got probable cause to stop you. Whether he investigates that act more or he just gives you a citation for what he actually witnessed, that’s a different question. Reasonable suspicion might be a different reason, like he’s following and the car is circling a block over and over. Taking in the totality of the circumstances, he starts to suspect or she starts to suspect that something’s wrong. So that would be a reasonable suspicion stop. Then, there could a probable cause stop where there’s no doubt in the officer’s mind that you just broke a law.
Jacob Tingen: So let’s assume a police officer stops you. You roll down the window. What are your rights at that moment? What do you have to say, what do you have to do, and what are you permitted not to say? What are you permitted not to do?
Jonathan Jordan: Well, first off, you’re permitted to … We always have the constitutional right not to incriminate ourselves, so if the officer asks you a question … They’re trained to trip you up. They’re trained to get you to admit to what they think you were doing, so they’ll come out and say, “Do you know why I pulled you over.” Of course …
Jacob Tingen: The common question.
Jonathan Jordan: … lots of people know why they got pulled over, because they had set their cruise at 10 miles over the limit, and there’s no doubt in their mind they were speeding. The officer’s trying to get you to admit that you’re speeding. You don’t have to admit. You have a right to say, “I don’t want to answer that question,” or a right to ask him why he or she pulled you over. First off, you have a right to not incriminate yourself. You don’t have a right to impede the investigation. For example, if the officer asks you for your license and registration, that’s part of the privilege of driving, and it’s part of identifying the person they’re investigating. You don’t have a right to say, “No, you don’t get to see my stuff.” If you do that, they’re just going to arrest you, and they’re going to be perfectly okay in doing that. Legally, you have to comply with that demand. If you’ve been in some of these circumstances, you’ll have an issue, for example, where the officer says, “Hey, you’re not transporting anything illegal, are you? You don’t mind if I search the car?”
Jacob Tingen: So that’s a request for a consensual search, when it’s phrased like that, right?
Jonathan Jordan: They’re phrasing it in a certain way that they’re looking for one answer for two questions. You’re hearing, “Are you a criminal? Are you transporting drugs or contraband or weapons or something?” Your answer is, “Of course not. No, no, no, I’m not. I’m a good guy.” I don’t do that sort of thing. The police are going to use that to say, “Oh, he doesn’t mind if I search his car.” They’re kind of bundling those two together, that obviously, if you have nothing to hide, you’re going to let the officer search your car.
Jacob Tingen: Creating ambiguity so that they can search.
Jonathan Jordan: The reality is they don’t have a right to search your car automatically. There’s standards of when they have the … It gets really technical in detail, but automatically, they don’t have the right to search your car. Other things have to arise to give them the right to search your car. But if you’re nice and give them permission, guess what? They have permission. They can search everywhere.
Jacob Tingen: That’s the thing. I mean, at that point, once you’ve given permission, you’ve ceded that protection. Now, in the traffic law context, I just wanted to kind of do a little bit of rapid fire. If a police officer just stops you, you don’t even know the reason yet, can they search your car? No.
Jonathan Jordan: No, but they-
Jacob Tingen: Can they ask you to get out of the car?
Jonathan Jordan: It depends on what they’re doing. They have a right to protect themselves. If they have a reasonable grounds to believe their life may be in danger or the crime that they have probable cause to suspect you of committing will require certain searches, the answer is yes. Generally, in any sort of traffic stop, if the police can articulate reasons why he or she was scared or felt threatened or endangered, they can ask you to exit the vehicle so they can do what they call just a stop and frisk, basically. For their own security and safety, they’re going to quickly pat you down, search you for a weapon, basically. They don’t want you to shoot them when their back’s turned.
Jacob Tingen: Now, a police officer may say that, so let’s talk about this. A police officer may eventually say in court, if they did perform that kind of a stop and frisk or some kind of pat-down, a police officer may say, “Oh, I felt threatened.” As a defense lawyer, how do you respond to that when it’s very clear, from the situation, that this should have been a run-of-the-mill traffic stop and there was no right to search the person or the vehicle?
Jonathan Jordan: Well, the burden is on the police officer to show that it was reasonable, that there was some articulable reason for them to frisk you. The right to frisk is not automatic with a stop unless they feel, for some reason, that they might be endangered.
Jacob Tingen: Right, which goes back to the reasonable suspicion aspect.
Jonathan Jordan: Yeah. They have to say, “I really felt this.”
Jacob Tingen: Now, they have the right to ask you to exit the vehicle possibly, potentially. They have the right to kind of pat you down. Do they have the right to search the car if they feel endangered? Searching the car has nothing … I mean, what’s inside the car has nothing to do with their safety. So what do you say to that?
Jonathan Jordan: Well, we have to understand, this is where it gets really … Where we don’t have solid answers.
Jacob Tingen: This is where we keep fighting over it, right, as a system of laws?
Jonathan Jordan: This is where attorneys make their living, right here, so I don’t know if I can answer that directly. Let me give you a scenario. As the scene matures and as it develops, these grounds are shifting. For example, if the police sees through the window, in plain view, that you’ve got an open container, now there’s probable cause. When I say open container, obviously I mean alcohol. Now there’s probable cause for a crime of drinking and driving. Now the rules have just changed. This just went from a run of the mill, say, speeding thing or whatever, if they smell marijuana, now they have probable cause to believe that maybe marijuana is being used in the vehicle. That changes the whole dynamic.
Jacob Tingen: Does that give them probable cause to search the car, or just probable cause to give you a breathalyzer. I mean, those are two different things. What are your thoughts on that?
Jonathan Jordan: It really depends on what they feel like doing. Obviously, they can take you out and give you a breathalyzer. Of course, in each state, the rule will be different depending on further constitutional protections in the state constitutions. On that one, I’d have to double-check. As the scene develops, it gets complicated. Where you start at-
Jacob Tingen: All these questions get really tricky once you get into it, right?
Jonathan Jordan: When you’re doing the totality of the circumstances, what did they see? What did they know? I do want to point out, though, for the pat-down, it has to be above the clothing pat-down. They don’t get to manipulate. They don’t get to reach in and try to identify what they’re feeling. The reason for this pat-down is to protect the officer?
Jacob Tingen: Is safety, right. So it’s got to be clearly identifiable, oh, you’ve got a gun in your pocket kind of thing.
Jonathan Jordan: A gun, knife, something that’s going to endanger the officer. If they start manipulating it, oh, this is a little baggy of something or other, that has nothing to do with officer safety unless they have some other reason. If they see in plain view you have your crack pipe out and they feel a little baggy and now they’ve got probable cause to deepen the search and go wider and farther.
Jacob Tingen: This is all good information. Let’s assume that maybe there’s a listener, or maybe there’s not a listener, who is in this situation or who has been in this situation or aware of the situation, but let’s assume that there’s a pat-down. Of course, an officer does find something illegal. Let’s just throw out marijuana or some other kinds of drugs. Going into court, it becomes clear to you, as a defense attorney, when you review all of the evidence, that the pat-down was unconstitutional, that even the stop doesn’t seem particularly reasonable. There’s no ticket for speeding or anything like that. What, then, happens with that evidence when it’s clearly obtained unlawfully?
Jonathan Jordan: The courts have created a standard. They call it fruit of a poisonous tree. Basically, any evidence that was obtained directly through an illegal search or an illegal seizure is excluded. It cannot be used against the defendant. Even if they have it in their hands, they can’t use it against the defendant. The idea is to protect the citizens from abuse of police power. If the police are violating the law, the answers that the courts have invented to protect the people is like, well, if you break the law to get the evidence, then you can’t use it.
Jacob Tingen: This is an interesting result. I think the Supreme Court … Of course, everybody has it right. Fruit of the poisonous tree. This is the pro tip for people who find themselves in a very difficult situation. If the police stop you and unlawfully search you and find illegal stuff, then it might be very difficult in the interim period. Ultimately, if the stop was unlawful, then that evidence won’t be used against you, or at least it shouldn’t be in a just system. Now, the converse of this is if the police performs an unlawful search and finds a dead body in your trunk, you may get away with murder, and that’s not great. This incentivizes the police to do things right, to get warrants, to formulate reasonable suspicion, to articulate things, and it protects our citizenry from both the government as well as allowing them to do their jobs to protect the citizenry from criminal actors. What are your thoughts on that?
Jonathan Jordan: Exactly. We think sometimes … I know I grew up with we hear the idea, oh, they got off on a technicality. That’s another stupid judge that let some criminal go free and soft on crime.
Jacob Tingen: Yeah, but those technicalities can be very important, because they protect our rights, and that’s kind of what we’re talking about here today.
Jonathan Jordan: The problem the courts were facing back when this law was first being developed … You probably heard of the Miranda rights or the Miranda warnings, where when police are making a custodial arrest, they have to tell you you have a right to remain silent. You have a right to an attorney, blah, blah, blah, we hear every time we watch the TV or one of those police movies.
Jacob Tingen: Yeah, Miranda rights didn’t always exist. The Miranda case came about when? When was that? I’ll look it up really quick.
Jonathan Jordan: I think it was probably in the ’70s or so. The problems that the courts were having, the courts said, “Look, police cannot do that. It’s unconstitutional,” but there were no penalties attached. So the police were like, well, technically we’re not supposed to do that, but nothing bad happens when we do-
Jacob Tingen: 1966. That’s the date on that case.
Jonathan Jordan: So I was off by a few years.
Jacob Tingen: You were off by a few years. I mean, it’s been such a part of American culture now for so many years for our entire generation. For a prior generation, Miranda rights weren’t … I think they were there, but I guess just not recognized in the way that they are today, and definitely not included in every single movie thing. Pro tip, if you’re ever watching a movie from the ’20s and they read the Miranda rights, they didn’t do their research.
Jonathan Jordan: Yeah, they got that wrong. The problem they were having, the court was saying, “Look, you can’t do that. It’s unconstitutional,” but there’s no penalty. For years and years, the courts were saying, “No, you really can’t do that. It’s unconstitutional.” The police were like, “Sweet. We’re going to keep doing it, because it’s effective.” Finally, the court says, “Okay, you leave us no choice. We’re going to attach a penalty so severe that you’re never going to forget to read someone their Miranda rights. We’re going to take and exclude all evidence you got from that confession or from people not exercising their rights.” That’s where this fruit of the poisonous tree came from. The court’s not going to penalize the police department directly. They’re just going to say, “We’re not going to let you punish criminals when you violated their rights.”
Jacob Tingen: Yeah. So this is all fascinating. I wanted to talk not only cars and traffic but also street stops and then also, let’s assume law enforcement drops by your house. I think we’re going to wrap it up. We’ve been talking for about almost 30 minutes. We’ll probably discuss some of these other constitutional issues, stops in the street and then also the ability of law enforcement to search your house, possibly next week, so tune in and listen again for Law Talk with Tingen & Williams. Also, feel free to make comments on Facebook, and we’ll respond to any questions that you may have. Or you can call in during the 11:00 hour, (804) 477-1720. Again, this is Law Talk with Tingen & Williams. Both of us are licensed attorneys here in Virginia, so we can answer a lot of your legal questions. We do criminal law, personal injury law, immigration law. We do some wills and estate and business law trademark. If it’s a legal issue, we’re happy to discuss it and bat it around a little, and we hope that you’ll tune in next week. Thank you again for listening. Any final words of wisdom, Jonathan, on protecting our constitutional rights?
Jonathan Jordan: Yeah. If a police officer asks you to give consent, if they’re asking for your permission, that means they’re really asking. You don’t have to give it.
Jacob Tingen: Yeah, you can say no, and that’s totally fine.
Jonathan Jordan: You can walk away.
Jacob Tingen: You can say no, and you can walk away. So, more to come. We’ll cover this topic in a little more detail again next week. Thank you for listening, and we’ll see you around.