# fourth amendment **URL:** \ **Category:** Factual Questions\ **Created:** [July 9, 2006, 7:45am UTC](https://boards.straightdope.com/t/fourth-amendment/363714 "2006-07-09T07:45:43Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![diggleblop](https://avatars.discourse-cdn.com/v4/letter/d/ac91a4/32.png) [@diggleblop](https://boards.straightdope.com/u/diggleblop)\ **Post date:** [July 10, 2006, 12:31am UTC](https://boards.straightdope.com/t/fourth-amendment/363714/21 "2006-07-10T00:31:42Z")
> [@Otto](#): > > “Pat you down” and “check what you’re drinking” are two very different things. Either way, they can still do it. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [July 10, 2006, 3:28am UTC](https://boards.straightdope.com/t/fourth-amendment/363714/22 "2006-07-10T03:28:13Z")
> [@diggleblop](#): > > Either way, they can still do it. Well, no, as I explained in the very next post, police are not free to wander around patting people down on a whim. As The United States Supreme Court stated in [Terry v Ohio](http://www.law.cornell.edu/supct/html/historics/USSC_CR_0392_0001_ZO.html): > [@Chief Justice Warren](#): > > Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man, in the circumstances, would be warranted in the belief that his safety or that of others was in danger…And in determining whether the officer acted reasonably in such circumstances, due weight must be given not to his inchoate and unparticularized suspicion or “hunch,” but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. An officer may not reasonably coclude that his safety or that of others is in danger simply because someone is standing on a random street corner. An officer may not walk up to random people and legally pat them down absent reasonable suspicion that the person he wishes to pat down poses a threat. If you have a case on point that you believe overturns Terry and allows police officers to wander up to random people absent reasonable suspicion and pat them down, please post it. Otherwise please stop posting misinformation in General Questions. ---
**Author:** ![PBear42](https://avatars.discourse-cdn.com/v4/letter/p/ecccb3/32.png) [@PBear42](https://boards.straightdope.com/u/PBear42)\ **Post date:** [July 10, 2006, 5:14am UTC](https://boards.straightdope.com/t/fourth-amendment/363714/23 "2006-07-10T05:14:32Z")
**copperwindow** , I find it interesting that you find it expedient to hitch your star to the racism issue. Let’s try it again, leaving that out. So, “Can a police officer see a group of teenagers in a bad neighborhood hanging around with the officers ‘experience’ that it means some wrong doing is occuring and search all of them becase ‘more-often-than-not’ one of the teenagers will have a warrent of drugs or illeagle firearms or whaever?” The problem, of course, is that your premise is faulty. It’s not more likely than not. Except that, apparently, **you** assume it is if people of color are involved. All of which is beside the point. You seem to believe that a police officer has to KNOW you’re holding an alcoholic beverage before he can take it from your hand to sniff it. That’s not the standard. The standard is probable cause. ---
**Author:** ![PBear42](https://avatars.discourse-cdn.com/v4/letter/p/ecccb3/32.png) [@PBear42](https://boards.straightdope.com/u/PBear42)\ **Post date:** [July 10, 2006, 5:20am UTC](https://boards.straightdope.com/t/fourth-amendment/363714/24 "2006-07-10T05:20:56Z")
BTW, ya’ll, _Terry_ is inaposite to this situation. It was one of the rare pro-law-enforcement decisions of the Warren court and pretty narrow. The problem was that the officer had no probable cause, but the suspect was acting, well, suspiciously. The Supremes agreed that, under those circumstances, a limited frisk to protect the officer’s safety was okay. And the standard was even lower than probable cause, _viz_, reasonable suspicion. Here, we’re talking about a different problem. The issue is one of search and seizure. For this, probable cause will be required. ---
**Author:** ![diggleblop](https://avatars.discourse-cdn.com/v4/letter/d/ac91a4/32.png) [@diggleblop](https://boards.straightdope.com/u/diggleblop)\ **Post date:** [July 10, 2006, 5:31am UTC](https://boards.straightdope.com/t/fourth-amendment/363714/25 "2006-07-10T05:31:09Z")
> [@Otto](#): > > Well, no, as I explained in the very next post, police are not free to wander around patting people down on a whim. As The United States Supreme Court stated in [Terry v Ohio](http://www.law.cornell.edu/supct/html/historics/USSC_CR_0392_0001_ZO.html): I’m talking about if you are having a confrontation with them, not just going around randomly and searching people on a whim. If they see a group of kids acting up in a McDonald’s parking lot or people of suspicious nature lingering around some place, they can approach them and start the process. They claim to do this for their safety. Believe me, I’ve been in this situation a hundred times and each time my lawyer has assured me they had a right to pat me down and even take my “open container” away from me. 🙂 ---
**Author:** ![diggleblop](https://avatars.discourse-cdn.com/v4/letter/d/ac91a4/32.png) [@diggleblop](https://boards.straightdope.com/u/diggleblop)\ **Post date:** [July 10, 2006, 5:35am UTC](https://boards.straightdope.com/t/fourth-amendment/363714/26 "2006-07-10T05:35:22Z")
> [@](#): > > If you have a case on point that you believe overturns Terry and allows police officers to wander up to random people absent reasonable suspicion and pat them down, please post it. Otherwise please stop posting misinformation in General Questions. > Reply With Quote Also, don’t tell me to stop posting “misinformation”. _You_ are the one misunderstanding what I’m talking about. I paid my 14 dollars to post here, I have every right to post my experiences and knowledge. Now, a miscommunication between the two of us is understandable and if that’s the case, then I should have made myself more clear. But what is your authority to tell me what to post or what not to post? ---
**Author:** ![copperwindow](https://avatars.discourse-cdn.com/v4/letter/c/4af34b/32.png) [@copperwindow](https://boards.straightdope.com/u/copperwindow)\ **Post date:** [July 10, 2006, 9:03am UTC](https://boards.straightdope.com/t/fourth-amendment/363714/27 "2006-07-10T09:03:07Z")
> [@PBear42](#): > > The problem, of course, is that your premise is faulty. It’s not more likely than not. Except that, apparently, **you** assume it is if people of color are involved. If the police officer assumes people of color are “more-often-than-not” involved, can he consider it probable cause? Also, sniffing won’t help him determine if I have an alcoholic beverage, it is certainly legal to put non-alcoholic beer in an empty bottle of coors and drink it in public. I’m thinking he would need help from a lab to determine if there was alcohol in it or not. ---
**Author:** ![copperwindow](https://avatars.discourse-cdn.com/v4/letter/c/4af34b/32.png) [@copperwindow](https://boards.straightdope.com/u/copperwindow)\ **Post date:** [July 10, 2006, 9:11am UTC](https://boards.straightdope.com/t/fourth-amendment/363714/28 "2006-07-10T09:11:11Z")
Also, how do we know what percetage is of people drinking a non alcoholic drink out of a beer bottle is? Have there ever been any studies conducted? Also, do we know what the odds of a group of black teenagers hanging around a poor neighborhood after hours is? It very well be “more-often-than-not” if there is no evidence to the contrary. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [July 10, 2006, 12:14pm UTC](https://boards.straightdope.com/t/fourth-amendment/363714/29 "2006-07-10T12:14:07Z")
> [@diggleblop](#): > > I’m talking about if you are having a confrontation with them, not just going around randomly and searching people on a whim. But that’s not the question being contemplated by the OP. The OP is not asking about an officer approaching a group of people in a parking lot who are acting suspiciously. The OP is asking about an officer approaching an otherwise non-confrontational person drinking out of a paper bag. You stated that the officer has the authority both to pat the person down and to check the contents of the paper bag to see if it’s alcoholic. It is simply not true that police have the authority to pat people down absent a reasonable suspicion that the person poses a threat to the safety of the officer or others. I’ve posted that twice including a link to the case and a quote of the relevant language of the case. If you have something that indicates that my information is incorrect and your assertion of the police’s authority is correct, please post it. > [@diggleblop](#): > > Also, don’t tell me to stop posting “misinformation”. If you’re posting factually incorrect information in GQ, I will tell you to stop it. Count yourself lucky; some of our actual lawyers would be calling for your finger to be chopped off by a cigar cutter. > [@diggleblop](#): > > But what is your authority to tell me what to post or what not to post? The authority of every Doper to expect that accurate and correct information will be posted in GQ. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [July 10, 2006, 2:28pm UTC](https://boards.straightdope.com/t/fourth-amendment/363714/30 "2006-07-10T14:28:58Z")
I think the OP has been answered. But this thread reminds me of a scene from _To Kill a Mockingbird_, where Scout is talking to a nice old guy who’s “well known in the community” as a lush. He has a bottle in a paper bag and sips from it while sitting on the county courthouse square all day long. He offers Scout a sip, and she finds, to her delight, that it’s not booze (I forget what it is - ginger ale? root beer?). He winks at her in a friendly way, and she learns how wrong assumptions can be. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 10, 2006, 3:03pm UTC](https://boards.straightdope.com/t/fourth-amendment/363714/31 "2006-07-10T15:03:49Z")
> [@diggleblop](#): > > I’m talking about if you are having a confrontation with them, not just going around randomly and searching people on a whim. > > If they see a group of kids acting up in a McDonald’s parking lot or people of suspicious nature lingering around some place, they can approach them and start the process. They claim to do this for their safety. > > Believe me, I’ve been in this situation a hundred times and each time my lawyer has assured me they had a right to pat me down and even take my “open container” away from me. 🙂 Yes and no. Mostly, no. You said: > [@](#): > > I used to use apple juice bottles and fill them up with beer. But to answer your question, they have a right to reasonably pat you down and check to see what you’re drinking is alocohol or not, especially in public. The way they see it, if you’re doing something illegal, you don’t have a right to privacy. That’s simply not true, and your experience doesn’t make it true. You’ve asserted that “…they have a right to…” That’s a statement about the law, and it has a definitive and specific answer. **Otto** is right on the money. To expand on his correct analysis, the police may always approach anyone they wish, for any reason they wish. This is what’s known as a consensual enounter. As long as the person approached is free to ignore the police inquiry and go about their own business, then no constitutional protections are implicated. The police may briefly detain you to investigate a crime, and pat you down – this is a brief, non-intrusive search done by patting your outer garments, only if they have a reasonable, articulable suspicion of criminal activity and can point to specific, articulable facts that would lead a reasonable officer to have concerns for his safety. This is, generically, known as a _Terry_ stop. If, based on discoveries made during the Terry stop, the police obtain additonal information to raise their suspicions to the level of _probable cause_, they may further detain, search, or arrest you. That’s the law. Now, let’s turn to your personal experiences. I have no idea if the police in your personal experiences followed this set of escalation, or if they simply ran roughshod over your civil rights. I rather suspect the former, based on MY years of experience, but I admit I’ve known the latter to occur as well. In either case, though, the inquiry here is about the law, not a solicitation about anecdotal evidence of police following or breaking the law. Please don’t offer incorrect statements about the law as fact here in GQ. I’m the guy who proposes that the cigar cutter be an official tool of GQ moderation. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [July 10, 2006, 3:28pm UTC](https://boards.straightdope.com/t/fourth-amendment/363714/32 "2006-07-10T15:28:11Z")
> [@Bricker](#): > > The police may briefly detain you to investigate a crime, and pat you down – this is a brief, non-intrusive search done by patting your outer garments, only if they have a reasonable, articulable suspicion of criminal activity and can point to specific, articulable facts that would lead a reasonable officer to have concerns for his safety. This is, generically, known as a _Terry_ stop. It bears emphasis that the \*Terry \* patdown is for weapons–it’s not a freewheeling search of your person and belongings. > [@](#): > > I’m the guy who proposes that the cigar cutter be an official tool of GQ moderation. Don’t make him ask you nine more times. :eek: ---
**Author:** ![PBear42](https://avatars.discourse-cdn.com/v4/letter/p/ecccb3/32.png) [@PBear42](https://boards.straightdope.com/u/PBear42)\ **Post date:** [July 10, 2006, 3:55pm UTC](https://boards.straightdope.com/t/fourth-amendment/363714/33 "2006-07-10T15:55:22Z")
**copperwindow** , no one (but you) would assert that a person’s race supports probable cause. Does it happen? Yes. It’s known as the “driving while black” syndrome, and is universally criticised by all right-thinking people as an abuse of authority, albeit difficult to prove. You’re trying to extend this by analogy to your situation. Doesn’t fit. For the third time, the officer doesn’t need to KNOW you’re breaking the law to conduct a search. Whether you really broke the law will be decided at trial. All he needs is probable cause. Studies are not required. Lab tests are not required. Ordinary experience is sufficient. You know full well that 'most everybody standing around sipping out of paper bags is drinking a beer. What do you think the word games gain you? I can tell you. A ride in a squad car. BTW, in _To Kill A Mockingbird_, it was Coca-Cola. The exception that proves the rule. It was an effective plot twist precisely because it was so unusual. ---
**Author:** ![TJdude825](https://avatars.discourse-cdn.com/v4/letter/t/dec6dc/32.png) [@TJdude825](https://boards.straightdope.com/u/TJdude825)\ **Post date:** [July 10, 2006, 5:42pm UTC](https://boards.straightdope.com/t/fourth-amendment/363714/34 "2006-07-10T17:42:36Z")
Slightly off-topic: If well over 90% of people drinking something out of a paper bag are drinking alcohol, why even bother with the paper bag? Why don’t people just carry the open bottle and hope a cop doesn’t happen to walk by? ---
**Author:** ![Guinastasia](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/guinastasia/32/5751_2.png) [@Guinastasia](https://boards.straightdope.com/u/Guinastasia)\ **Post date:** [July 10, 2006, 6:18pm UTC](https://boards.straightdope.com/t/fourth-amendment/363714/35 "2006-07-10T18:18:58Z")
> [@Elendil's Heir](#): > > I think the OP has been answered. > > But this thread reminds me of a scene from _To Kill a Mockingbird_, where Scout is talking to a nice old guy who’s “well known in the community” as a lush. He has a bottle in a paper bag and sips from it while sitting on the county courthouse square all day long. He offers Scout a sip, and she finds, to her delight, that it’s not booze (I forget what it is - ginger ale? root beer?). He winks at her in a friendly way, and she learns how wrong assumptions can be. Coke. But he doesn’t offer it to Scout-he gives it to Dil, who has a stomachache. Scout declines to taste it. ---
**Author:** ![Spiff](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/spiff/32/9852_2.png) [@Spiff](https://boards.straightdope.com/u/Spiff)\ **Post date:** [July 10, 2006, 7:17pm UTC](https://boards.straightdope.com/t/fourth-amendment/363714/36 "2006-07-10T19:17:38Z")
> [@TJdude825](#): > > Slightly off-topic: If well over 90% of people drinking something out of a paper bag are drinking alcohol, why even bother with the paper bag? Why don’t people just carry the open bottle and hope a cop doesn’t happen to walk by? Because maybe you are an upstanding pillar of the community and don’t want it to be known that you have a penchant for Colt 45 _en plein aire_. ---
**Author:** ![copperwindow](https://avatars.discourse-cdn.com/v4/letter/c/4af34b/32.png) [@copperwindow](https://boards.straightdope.com/u/copperwindow)\ **Post date:** [July 10, 2006, 7:59pm UTC](https://boards.straightdope.com/t/fourth-amendment/363714/37 "2006-07-10T19:59:35Z")
[ > [@PBear42](#): > > For the third time, the officer doesn’t need to KNOW you’re breaking the law to conduct a search. You are saying (so it seems) that if an officer **thinks** you are breaking a law he has the right to search you. Under that logic, an officer can decide to think anyone’s breaking the law and can decide to search anyone, throwing my fourth amendment out of the window. > [@PBear42](#): > > Whether you really broke the law will be decided at trial. All he needs is probable cause. Studies are not required. Lab tests are not required. Without studies or lab tests, there will be no trail because a prosecuter would need _evidence_ that I broke a law. ---
**Author:** ![NaSultainne](https://avatars.discourse-cdn.com/v4/letter/n/8797f3/32.png) [@NaSultainne](https://boards.straightdope.com/u/NaSultainne)\ **Post date:** [July 10, 2006, 8:11pm UTC](https://boards.straightdope.com/t/fourth-amendment/363714/38 "2006-07-10T20:11:08Z")
> [@Elendil's Heir](#): > > I think the OP has been answered. > > But this thread reminds me of a scene from _To Kill a Mockingbird_, where Scout is talking to a nice old guy who’s “well known in the community” as a lush. He has a bottle in a paper bag and sips from it while sitting on the county courthouse square all day long. He offers Scout a sip, and she finds, to her delight, that it’s not booze (I forget what it is - ginger ale? root beer?). He winks at her in a friendly way, and she learns how wrong assumptions can be. As an aside, unrelated to the rest of this OP, and because I find this book way, way over-hyped; this scene is just plain annoying. 1. ‘well-known community lush’? 2. bottle in a paper bag? 3. sitting on the county courthouse square **all day long**? (my bolding) But Scout learns how wrong assumptions can be? Jumping jehosaphat already. Lee set up the expectation and others are wrong to reach the pre-ordained conclusion? That is so lame. Shades of oversimplistic elementary school again. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [July 10, 2006, 8:48pm UTC](https://boards.straightdope.com/t/fourth-amendment/363714/39 "2006-07-10T20:48:30Z")
> [@copperwindow](#): > > Without studies or lab tests, there will be no trail because a prosecuter would need _evidence_ that I broke a law. I believe **PBear42** was saying the police do not need lab tests to establish probable cause. That’s correct. Also, there are different kinds of evidence: physical (the actual bottle and its contents, for example), testimonial (officer says she smelled booze on your breath and when she sniffed the bottle, it smelled like booze too), and demonstrative (chart showing where you were standing–perhaps in a puddle of urine?), and expert (lab technician testifiesthat, despite your protestations, the liquid in the bottle was sterno). There are several combinations of these types of evidence that will support a conviction. ---
**Author:** ![diggleblop](https://avatars.discourse-cdn.com/v4/letter/d/ac91a4/32.png) [@diggleblop](https://boards.straightdope.com/u/diggleblop)\ **Post date:** [July 10, 2006, 8:54pm UTC](https://boards.straightdope.com/t/fourth-amendment/363714/40 "2006-07-10T20:54:11Z")
> [@](#): > > As long as the person approached is free to ignore the police inquiry and go about their own business, then no constitutional protections are implicated. > > The police may briefly detain you to investigate a crime, **and pat you down** – this is a brief, non-intrusive search done by patting your outer garments, only if they have a reasonable, articulable suspicion of criminal activity and can point to specific, articulable facts that would lead a reasonable officer to have concerns for his safety. This is, generically, known as a Terry stop. This is all I was talking about. I have been told by at least three lawyers that the police had a right to approach me because I was in the crowd of a rather loud, annoying group of drunk people. They then proceeded to briskly pat all of us down (stating that this is for their safety) and ask us what’s in the bottles. I personally called a lawyer the next day and he told me they had every right to do that. This was in Ocean City Maryland. I am going from personal experience and using the words of a lawyer to state my experiance. You can ask me not to post “misinformation”, but it’s not misinformation to me. To me posting misinformation is blatantly and belligerently posting the wrong stuff. I posted my personal experince, nothing more or less. If it’s wrong, then so be it. But don’t ask me to not post here, because you’re not gonna prove your point to me by being rude. Now, as far as citing sources, here is something else that is interesting when the dog sniffin question was raised: > [@](#): > > What is your cite that the police can call out a canine unit if you refuse a search? Check [this url](http://writ.news.findlaw.com/dorf/20050201.html) [Previous page](https://boards.straightdope.com/t/fourth-amendment/363714.md?page=1) [Next page](https://boards.straightdope.com/t/fourth-amendment/363714.md?page=3)