4th amendment Archives

Can Police Follow a Suspect for No Reason?

Yes, police can follow a suspect for a reasonable period of time even if they have no reason to believe the suspect committed a crime.

Police do not need reasonable suspicion to follow a suspect in California if the encounter remains consensual. Under California law, consensual encounters between law enforcement and individuals do not trigger Fourth Amendment scrutiny. A consensual encounter occurs when a reasonable person would feel free to disregard the police and go about their business. For example, officers may approach someone in a public place and converse with them without any suspicion of criminal activity. However, the encounter becomes a detention if the individual is not free to leave or terminate the interaction.¹

If the police action escalates to a detention, reasonable suspicion is required. A detention occurs when an officer restrains an individual’s liberty through physical force or a show of authority, and a reasonable person would not feel free to leave. Reasonable suspicion must be based on specific, articulable facts that suggest the person is involved in criminal activity.²

How Long can Police Follow a Suspect?

Continued police surveillance violates the 4th Amendment if it is unreasonable. Surveillance is unreasonable if it infringes upon an individual’s reasonable expectation of privacy or is conducted in a manner that is excessive or unjustified under the circumstances.³ There is no bright line on when continued surveillance becomes unreasonable. However, to violate the 4th amendment, the surveillance must be more than following a suspect for a short time. Ultimately the reasonableness of the surveillance depends on the specific facts of the case.

Additionally, California statutes clarify that law enforcement personnel may follow or surveil individuals. Officers can follow suspects as a part of their duty to investigate suspected illegal activity or misconduct. Their surveillance must be supported by articulable suspicion.⁴ This aligns with the principle that reasonable suspicion is necessary for more intrusive actions, such as detentions or searches, but not for mere observation or following in public spaces.

People v. Kidd, 36 Cal. App. 5th 12, People v. Linn, 241 Cal. App. 4th 46. ↩︎
Arburn v. Department of Motor Vehicles, 151 Cal. App. 4th 1480, People v. Bennett, 17 Cal. 4th 373. ↩︎
United States v. Martin, 753 F. Supp. 454, 463. ↩︎
Cal. Civ. Code section 1708.8. ↩︎

Can Police Order You to Exit Your Car?

The answer is yes. Police can order you to exit your car when they pull you over.

Why Can Police Order You to Exit Your Car?

The reason police can order you to exit your car is for officer safety. Police can make this order under any circumstances:

Police can order people out of a car even if they do not have probable cause or reasonable suspicion to believe a crime has committed.
Police can order people out of a vehicle even if they do not believe those people are armed or dangerous.
Police can order all occupants out of the car.

Why do Police Have This Power?

In 1977, Harry Mimms was driving in Philadelphia when he was stopped for having an expired license plate. One of the officers asked Mimms to exit his vehicle. When Mimms exited, the driver noticed a bulge in Mimms jacket. The officer patted Mimms down and discovered a loaded firearm in his waistband.

Mimms claimed that the officer’s order for him to exit the vehicle violated his 4th Amendment right to be free from unreasonable search and seizure. The United States Supreme Court reviewed the case and ruled that the officer had not violated Mimms’ 4th Amendment rights. (see Pennsylvania v. Mimms (1977) 434 U.S. 106)

The Supreme Court noted that the officer had no reason to believe Mimms was committing a crime. However, the officer claimed it was his usual practice to order all drivers out of their vehicle during a traffic stop. The prosecution argued that the officer’s practice was meant to ensure officer safety during a traffic stop.

The Supreme Court ruled that officer safety outweighs the minor 4th Amendment intrusion of having a driver or passenger exit a vehicle. According to one study, 30% of police shootings occurred when an officer approached a person seated in a vehicle. A significant percentage of murders of police officers occurs when the officers are making traffic stops. In addition, police can be hit by passing traffic when standing outside the driver window. The 4th Amendment intrusion of having a passenger exit a vehicle is minimal by comparison.

What if You Refuse to Exit Your Car?

If you refuse to exit, you could be charged with resisting or delaying arrest under Penal Code § 148. This offense is a misdemeanor punishable by a maximum of 364 days in jail.

Advice

If an officer asks you to exit your vehicle, you should clarify whether he is giving you an order or merely asking you to exit. While you should follow a police order, you do not have to comply with a voluntary request.

Do you think this law gives police too much power? You should raise your concerns with your state representative or senator.

Probable Cause

Probable cause is an exception to the warrant requirement under the 4th Amendment. In other words, police do not need a warrant to arrest a person as long as they have probable cause.

Definition

Probable cause means that the facts known to the officer warrant a reasonable belief that a crime has occurred or that evidence of a crime is located in a specific place. Probable cause is based on the totality of the circumstances and does not need to rely on any one fact. It does not have to be certain and can be based on probabilities and common sense conclusions. (United States v. Martin (2010) 613 F.3d 1295.)

Probable cause requires more than mere suspicion but does not necessitate facts sufficient to establish guilt. (United States v. Munoz-Nava (2008) 524 F.3d 1137.)

What Can Police Do if They Have Probable Cause?

Police arrest a person if they reasonably believe that person committed a crime. Police can search an area if they have reason to believe there is evidence of a crime in that area.

Specific Examples

An officer may arrest a person when multiple witnesses identify the suspect as the shooter in a homicide. (Moorer v. City of Chicago (2024) 94 F.4th 715.)

An officer may arrest a felon for unlawfully possessing a firearm after they observe a firearm in their car. (Young v. City of Chicago (2020) 987 F.3d 641.)

An officer may arrest a person when they observe facts consistent with drug transportation based on their previous experience with drug transportation. (United States v. Munoz-Nava (2008) 524 F.3d 1137.)

Insufficient Probable Cause

An officer cannot arrest a person based on their presence at a suspected stash house and traveling in an indirect route to their location. (United States v. Cervantes (2012) 678 F.3d 798.)

An officer cannot arrest a person for being near a crime without indications that the person is involved in the crime. (Williams v. City of Chicago (2013) 733 F.3d 749.)

An officer cannot arrest a person for possessing marijuana unless there is some indication the marijuana is being possessed or sold unlawfully. (People v. Lee (2019) 40 Cal.App.5th 853.) If you believe officers arrested you without probable cause, you should consult an attorney. You could contest your arrest in court and ask the judge to suppress evidence obtained unlawfully by police. You can also file a complaint or sue the police for their unlawful arrest.

Police Stops and Your Rights

tips on safely interacting with police during stops

Knowing your duties, rights, and law enforcement objectives can help you safely navigate an encounter with law enforcement. Below is a brief discussion of things to consider if the police stop you.

step 1: know your duties

Identify Yourself

You must identify yourself if police have probable cause to believe you committed a crime, have a warrant for your arrest, or are in violation of probation or parole.

Provide Your Driver’s License

You must provide your driver’s license if you are pulled over while driving.

Probation or Parole

You must admit that you are on probation or parole if doing so is a condition of your probation or parole.

step 2: know your rights

Remain Silent (5th Amendment)

Except for the duties above, you are not required to respond to questions.

Refuse Search (4th Amendment)

You do not have to allow police to search you, your possessions, or your vehicle, unless submitting to search is a condition of probation or parole.

Ask if You are Free to Leave (4th Amendment)

If you are not free to leave, law enforcement must have a reason for detaining you.

step 3: know the police

Authority

Authority figures do not like signs of disrespect, such as being ignored, or rude, impolite, or offensive behavior.

Crime-fighting

The modern policing focuses on crime-fighting. If police believe you are obstructing or delaying them from this objective, the could arrest you or use force against you.

Armed

Consider that most police are armed and some carry fully automatic assault weapons.

Immunity

Officers are immune to most civil lawsuit and rarely face criminal prosecution or internal discipline. Therefore, police have few if any consequences for harming you or violating your rights.

What Can I Say to Police?

I respect law enforcement and the job you do.
However, I am not going to consent to a search of myself, my property, or my vehicle.
I will not resist you, but I will not consent to my detention, search, or seizure.
Nor will I answer any questions without my lawyer present.
With that being said, am I free to leave?

What Can I Do if Police Violated My Rights?

If you can prove police misconduct, the judge could dismiss your criminal case. You could also sue the law enforcement for violating your established constitutional rights.