The Fourth Amendment protects citizens and non-citizens alike from unreasonable searches and seizures. Understand your rights with the experienced Kansas and Missouri criminal defense attorneys at Joseph, Holland & Craft.
What Does the Fourth Amendment Say?
The Fourth Amendment to the US Constitution states: “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 means there must be a reasonable basis to suspect someone of a crime before they are pulled over, detained, or have their home, person, or property inspected by police AND any detention, search or inspection must be reasonably related to the crime that person is suspected of committing. For instance, if you are pulled over for speeding and there is no evidence you have been involved in other criminal activity, it would be unreasonable for an officer to search your car for drugs, weapons, or child pornography.
Under the Fourth Amendment, the proper procedure for a legal search or seizure of property is for a law enforcement officer to obtain a warrant. First, the officer submits evidence of a specific crime being committed to a judge or magistrate. Upon finding probable cause to believe a crime has been committed by a particular person, the judge or magistrate will then sign a warrant, which is an order authorizing the requested action (such as the search of a building and seizure of evidence or the arrest of a person suspected of committing a crime).
Searches and seizures without a warrant are considered in general to be unreasonable, but there are many exceptions under which a warrantless search or seizure is not considered to violate the Fourth Amendment. For instance:
- An officer has been given consent to search, Davis v. United States, 328 U.S. 582 (1946)
- The search accompanies a lawful arrest, United States v. Robinson, 414 U.S. 218 (1973)
- The items in question are in plain view, Maryland v. Macon, 472 U.S. 463 (1985)
- There is probable cause and exigent circumstances, Payton v. New York, 445 U.S. 573 (1980)
- It is impracticable to obtain a warrant because of the inherent mobility of a vehicle, Carroll v. United States, 267 U.S. 132 (1925)
- A brief detention for questioning when there is reasonable suspicion of criminal activity, Terry v. Ohio, 392 U.S. 1 (1968)
What Does “Probable Cause” Mean?
Probable cause is sometimes defined as “reasonable belief” that criminal activity is taking place. Probable cause is stronger than simple suspicion or a hunch. It might be frustrating to discover that there are no official parameters for what determines “probable cause” outlined in the Constitution. This gives some leeway to police officers and federal agents, as what constitutes a reasonable search may be decided on a case by case basis. However, the factors for probable cause generally break down into the following four categories:
- Observational Evidence: This might be what an officer sees, smells, or hears. For instance, if you are pulled over for speeding but an officer smells alcohol in the car and hears you tell your passenger to not reveal that you are drunk, then it may be generally considered reasonable for them to administer a breath test to check for a DUI.
- Circumstantial Evidence: Circumstantial evidence is not enough for a conviction, but it may be used to establish probable cause. An example might be an officer who hears on the radio that a shooting has taken place and the main suspect has dark hair, a beard, and a green hoodie. If you match that description and are seen carrying a weapon in the immediate vicinity of the crime, an officer may be able to detain you based on the circumstantial evidence.
- Expert Evidence: An officer’s years on the force and information learned during that time is a consideration when establishing probable cause. For instance, an officer who works in a K9 unit might have probable cause to search a car if that officer’s dog alerts to the presence of narcotics.
- Obtained Evidence: A tip from a credible informant, bulletin shared over police radio, or other viable information obtained by a police officer can be considered to help establish probable cause for a search or seizure.
What Are Missouri’s Laws Governing Search and Seizure?
Missouri state law also governs proper protocols for search and seizure. State Const. of 1875, Art. II, § 11 (Amended August 5, 2014) states that:
Unreasonable search and seizure prohibited — contents and basis of warrants. — That the people shall be secure in their persons, papers, homes, effects, and electronic communications and data, from unreasonable searches and seizures; and no warrant to search any place, or seize any person or thing, or access electronic data or communication, shall issue without describing the place to be searched, or the person or thing to be seized, or the data or communication to be accessed, as nearly as may be; nor without probable cause, supported by written oath or affirmation.
Missouri Stop and Frisk Rules
The Supreme Court Case Terry v. Ohio, 392 U.S. 1 (1968), decided that a police officer may use their hands to pat down a person they reasonably suspect of committing a crime in order to check for weapons. This decision was ostensibly for their own safety, but contains a massive backdoor as well. Under this ruling, if an officer finds other contraband like illegal drugs on your person during a pat-down it can be used as probable cause for further search and an arrest.
Under Mo. Code Regs. tit. 15 § 60-10.010, a Missouri officer may legally perform a “Terry frisk,” meaning a limited pat-down or frisk of the driver or his or her automobile for weapons without having the probable cause needed for an actual arrest.
Missouri No-Knock Warrants
Controversial “no-knock warrants” are legal in both Kansas and Missouri, but only in emergency situations. In 2022, both Missouri and Kansas state legislatures attempted to pass legislation outlawing or limiting the scope of no-knock warrants, but the legislation did not succeed.
Traffic Stops in Missouri and Kansas
Traffic stops are the main way that most people end up interacting with police officers. They can occur at almost any time, they can be unexpected, and can escalate quickly. In Missouri as well as Kansas you are legally required to hand over your license, registration, and proof of insurance during a traffic stop. If you are the passenger of a car that is pulled over, you are allowed to ask if you are free to leave. As the driver, you are legally allowed to refuse consent to a search of the inside of your vehicle, but your car can be searched without your consent if there is probable cause to believe evidence of a crime will be found within.
Rule 41 of the Federal Rules of Criminal Procedure
Federal Rule of Criminal Procedure 41 governs the granting of a search warrant at the federal level. Federal warrants will only be granted in cases of suspected federal crimes.
How Our Kansas City Defense Lawyers Prove Your Fourth Amendment Rights Were Violated
If your Fourth Amendment rights have been violated, evidence obtained as a result of the violation cannot be admitted against you at trial. To ensure the evidence is excluded from trial, your attorney will file a suppression motion and argue the motion at a hearing. Successful litigation of a suppression issue can change the course of your case in your favor–sometime resulting in dismissal of the case altogether.
At Joseph, Hollander & Craft our Kansas City criminal defense lawyers build up your defense based on a meticulous review of applicable evidence, in-depth assessment of the timeline and facts of the case, and a thorough understanding of the law. Our firm is nationally ranked and recognized by Thomson Reuters’ Super Lawyers, Best Lawyers, and the Martindale Hubbell Bar Register of Pre-Eminent Lawyers. Our Kansas City defense attorneys are known for handling complex litigation as well as criminal appeals based on Constitutional rights violations in both state and federal courts.
Contact Our Kansas City Criminal Defense Attorneys
At Joseph, Hollander & Craft we are known as both formidable advocates as well as skilled negotiators. Our attorneys use every tool available to protect our clients’ rights as well as ensure the best possible outcome on their behalf. Contact us today for a consultation and to begin assembling your defense. We maintain offices in Kansas City, MO as well as Overland Park, Wichita, Lawrence, and Topeka, KS for your convenience.