Thursday, June 19, 2008

Fourth Amendment

This week I filed a motion to suppress in a simple possession case. The police stopped a man alleging as basis for the stop that his car had a loud muffler (I compared his with the one on my 1994 Mustang Cobra and think mine is a little louder with neither being all that loud). Then they asked him to step out of the vehicle and, based on the fact that he seemed 'nervous' they asked for consent to search his person and his vehicle. They found 3.4 grams of marijuana and some rolling papers.

This is a situation where the police obviously manufactured a reason to stop the vehicle and then obtained 'consent' to search. It happens all the time. Why do people say yes?

The reason is simple - they don't think they have the right to refuse. There they are on the side of the road with lights flashing and a couple of armed police officers asking them questions and they simply think they have to say yes.

The question in my mind is - why don't we require the police to advise them that they have the right to refuse? The United States Supreme Court, in Ohio v. Robinette, held that advising a motor vehicle detainee that they can refuse consent to search is not required by the Fourth Amendment. Why not, I ask?

The famous Miranda warnings protect our Fifth Amendment rights ("You have the right to remain silent"). And they protect our Sixth Amendment rights ("You have the right to an attorney..."). Why is the Fourth Amendment less important? It seems to me that it is more important. What is more fundamental than the right to be secure in you own person?

Fortunately for my case, the Tennessee Supreme Court has held that Article 1, Section 7 of the Tennessee Constitution provides our citizens with more protection than the Fourth Amendment. And in Tennessee v. Berrios, they indicated that courts should look critically at traffic stop searches.

In my motion, which you can read on my JD Supra page (, I argue both that the search should be declared invalid under Berrios and that it is time that the Tennessee courts adopted a rule like the one the United States Supreme Court struck down in Robinette.

This client is willing, for personal reasons, to take this as far as he must. It will be an interesting trip through the court system. Perhaps we can effect a change in the law.


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