The Fourth Amendment to the Bill of Rights of the United States 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.
The Fifth Amendment reads, in part, "No person shall be...compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law...." These amendments provide the foundation for the rights that protect all U.S. Citizens from intrusive law enforcement practices.
1. Don't Leave Contraband in Plain View
Although law enforcement officers must obtain a warrant before they can conduct a privacy-invading search, any illicit material that can be plainly seen by any person from a non-intrusive vantage point is subject to confiscation. An arrest and a valid warrant to search the rest of the area is likely to ensue. A "roach" in the ashtray, a pipe or baggie on the coffee table, or a joint being smoked in public are common mistakes which all too-frequently lead to arrests.
2. Don't Put Anything Incriminating Into the Trash
Various courts have ruled that law enforcement officers are allowed to rummage through curbside trash bags without a warrant. A few seeds or stems can then be used as a basis for obtaining a warrant to search the individual's home. In fact, anything discarded into the public domain can be picked up by the police and used as evidence.
3. Never Consent to a Search
Many individuals arrested on marijuana charges could have avoided that arrest by exercising their Fourth Amendment rights. If a law enforcement officer asks permission to search, it is usually because: (1) there is not enough evidence to obtain a search warrant; or (2) the officer does not feel like going through the hassle of obtaining a warrant. Law enforcement officers are trained to intimidate people into consenting to searches. If an individual does consent, he waives his constitutional protection and the officers may search and seize items without further authorization. If officers find contraband, they will arrest the person.
If an individual does not consent to a search, the officer must either release the person or detain the person and attempt to get a warrant. The fact that an individual refuses to consent does not give the officer grounds to obtain a warrant. The individual should politely say, "I do not consent to a search of my person, belongings, home, or vehicle. I retain my Fourth Amendment rights and all other rights under the United States Constitution. I will say nothing until my attorney is present."
If the officer conducts a search anyway, without a warrant, any contraband will likely be declared invalid evidence by the judge, and any charges will probably be dropped. If the officer does attempt to obtain a warrant and is successful in doing so, the validity of the warrant can still be challenged in court. It is always better to refuse to consent to a search.
4. Don't Answer Questions Without Your Attorney Present
Whether arrested or not, individuals should always exercise the right to remain silent. Anything a person says to law enforcement officers, reporters, cell mates, or even their friends can be used as evidence against him or her. Individuals have the right to have an attorney present during questioning. The right to remain silent should always be exercised.
5. Determining if You Can Leave
A person may terminate an encounter with officers unless the person is being detained under police custody or has been arrested. If the person cannot tell whether he or she may leave, the person can ask officers, "Am I under arrest or otherwise detained?" If the answer is, "No," the person may leave.
6. Do Not Be Hostile; Do Not Physically Resist
There are times when individuals politely assert their rights and refuse to consent to a search but the officers nonetheless proceed to detain, search, or arrest them. In such cases, it is important not to physically resist. Rather, the individual might say, "Do what you feel you must; I will not physically resist. However, I do not consent to this." The individual can later challenge the search in court.
7. Informing on Others
The police and prosecutors often try to pressure individuals into providing information that would lead to the arrest and conviction of others. Threats and promises by police and prosecutors should be viewed with caution and skepticism. Decisions should only be made after consulting with an experienced criminal defense attorney and examining one's own conscience.
Finally, consider downloading and carrying the ACLU's "Bustcard" -- a quick reference guide to your rights and obligations when you are stopped by the police.