Many of us have had contact with law enforcement. For some, these interactions lead to arrests, while for others, no charges are filed. In some cases, police may place a person in their cruiser during a traffic stop, while in others, the individual remains in their own vehicle.
The Fourth Amendment of the U.S. Constitution protects individuals from illegal search and seizure, ensuring that people remain secure in their persons, houses, papers, and effects against unreasonable searches and seizures.
What Constitutes an Illegal Search and Seizure?
The Fourth Amendment protects both seizures of property—when law enforcement interferes with ownership—and seizures of a person, when police restrict an individual’s freedom of movement.
Court cases such as United States v. Place (1983) and Terry v. Ohio (1968) help define these protections. However, Nebraska law classifies police-citizen encounters into three distinct categories.
Three Types of Police-Citizen Encounters
Law enforcement interactions fall into one of three legal categories, each with different standards of justification:
- Voluntary Encounters – These are not considered seizures and do not implicate the Fourth Amendment.
- Investigative Detentions – These encounters are considered seizures and must be supported by reasonable suspicion.
- Arrests – An arrest must be supported by probable cause.
Tier-One: Voluntary Encounters
A tier-one encounter occurs when a citizen voluntarily interacts with police without coercion. This could include:
- Asking an officer for help with a flat tire.
- Witnessing a traffic accident and answering police questions.
Because these interactions are completely voluntary, there are no Fourth Amendment concerns.
Tier-Two: Investigative Detentions and Reasonable Suspicion
A tier-two encounter occurs when police briefly detain an individual based on reasonable suspicion of criminal activity. This is also known as a Terry Stop, named after Terry v. Ohio (1968).
Key points about tier-two encounters:
- Law enforcement must have specific and articulable facts suggesting criminal activity.
- The stop is limited in duration and scope.
- Officers may frisk individuals for weapons if they believe there is a safety risk.
For example, if an officer sees someone running from a fire carrying a gas can, that may be enough for reasonable suspicion to conduct a temporary detention.
Tier-Three: Arrests and Probable Cause
A tier-three encounter is a full arrest, requiring probable cause. Probable cause exists when law enforcement has reasonably trustworthy information leading a cautious person to believe a crime has been committed. (State v. McClain, 2013).
Defending Against Illegal Search and Seizure
If you were detained, searched, or arrested unlawfully, a criminal defense attorney can challenge the legality of the encounter. Key legal defenses include:
- Proving the police lacked reasonable suspicion (Tier-Two).
- Showing there was no probable cause for an arrest (Tier-Three).
- Suppressing evidence obtained through unlawful search and seizure.
A strong defense may rely on legal tools such as depositions, subpoenas, and subpoena duces tecum to investigate the case and protect your rights.
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The Fruit of the Poisonous Tree Doctrine
The fruit of the poisonous tree doctrine states that if evidence was obtained unlawfully, it cannot be used in court. If a search or seizure violated your Fourth Amendment rights, your attorney can argue that any resulting evidence is inadmissible.
Know Your Rights
Understanding illegal search and seizure is crucial for protecting yourself against unlawful police conduct. If you believe your Fourth Amendment rights have been violated, consult a criminal defense attorney immediately to explore your legal options.
