What are my 4th Amendment Rights?

By: JeremyEldridge. As a Maryland Lawyer, who practices criminal law, I am often approached by potential clients, friends or acquaintances, concerning the legal basis for a police officer to approach you and ask questions, or even search your person, belongings or vehicle.

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This blog post is not intended to provide insight into all of the Fourth Amendment protections against unreasonable search and seizures, but rather to address a topic that has gained traction lately. The question is whether a police officer’s observation of symptoms of alcohol use, drug addiction, or paraphernalia, commonly associated with the use or manufacturing of controlled dangerous substances (CDS), such as heroin, cocaine and marijuana, is enough to search your person, belongings, or vehicle? The simple answer is NO, but let me explain why. First, allow me to provide an abbreviated explanation of your Fourth Amendment protections.

The Fourth Amendment protects us from governmental unreasonable searches and seizures, and provides that warrants must contain probable cause, and be signed by a judicial magistrate. The Fourth Amendment offers different levels of protection, and is often dependent upon the set of facts in a particular case. For instance, the standard for evaluating the reasonableness of an investigatory stop, is different than evaluating the standard for an arrest, or search of a person.

The standard for an investigatory stop is not probable cause, but a lesser and more elusive standard in terms of articulable reasons or founded suspicions. Referred to as a “Terry stop.” Terry v. Ohio, 392 U.S. 1 (1968). Probable cause for a search, however, exists where the totality of the circumstances establishes a fair probability that contraband or evidence of a crime will be found in a particular place. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317 (1983).

Maryland Lawyer: So can I smoke a handrolled cigarette, wear ether-laced cologne, walk around smelling of Schnapps?
Now for the answer to the main question–The Fourth Amendment, and current Maryland law, do not allow police officers to simply assert that apparently innocent conduct was suspicious to him or her; rather, the officer must state the factual basis upon which he or she bases the conclusion. Let me provide some factual examples from real cases that will help explain the law.

Ferris v. State, 355 Md. 356 (1999) Defendant’s having bloodshot eyes and nervously glancing at the officer from inside the car were activities equally consistent with innocence as with guilt. Conduct that appears innocuous to the average layperson may in fact be suspicious when observed by a trained law enforcement official. The officer did not testify that defendant’s bloodshot eyes were somehow distinct from other bloodshot eyes irritated by non-criminal causes.

Carr v. State, 353 So. 2d 958 (1978) Defendant was observed at night in a residential area and questioned by police, outside of defendant’s truck, who saw two hand-rolled cigarettes in defendant’s truck. The officer testified that he “knew” they were marijuana cigarettes because they were unevenly rolled and twisted at the ends. The officer could not actually see any marijuana. The officer believed the cigarettes to be marijuana, arrested defendant, searched his vehicle, and found a quantity of marijuana. The court held that the officer’s arrest was not supported by probable cause. When the officer searched defendant’s vehicle incident to the unlawful arrest, the marijuana found was inadmissible. The court held that, the officer did not have probable cause to search defendant’s vehicle.

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