In our digital age, balancing public safety with the 4th Amendment's protections is a nuanced endeavor. As law enforcement professionals, we're at the crossroads of being protectors and defenders of constitutional rights. Navigating this landscape requires a steadfast commitment to our foundational principles. Let's revisit and recommit to our oath in these modern times.

The Fourth Amendment reads:

"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 Fourth Amendment is not, of course, a guarantee against all searches and seizures, but only against unreasonable searches and seizures.” (emphasis added) United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985). “Whether a particular seizure is unreasonable depends upon the level of the encounter between the police officer and citizen and the justification for it.” State v. Jervis, 2017 UT App 207, ¶ 14, 407 P.3d 1072.

Furthermore, under the Fourth Amendment, defendants enjoy the rebuttable presumption that a search or seizure is unreasonable if effected without a warrant. See, e.g., Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); State v. Christensen, 676 P.2d 408, 411 (Utah 1984). “The United States Supreme Court then emphasized that searches [and seizures] conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment–subject only to a few specifically established and well-delineated exceptions.” Katz, 389 U.S. at 357. State v. Smith, 2022 UT 13, ¶ 11, 513 P.3d 629, 634, reh'g denied (June 29, 2022)

The Fourth Amendment is not, of course, a guarantee against all searches and seizures, but only against unreasonable searches and seizures.

Home

Searches and seizures inside a home without a warrant are presumptively unreasonable. Payton v. New York, 445 U.S. 573 (1980). However, a warrantless search may be lawful:

· If an officer is given consent to search; Davis v. United States, 328 U.S. 582 (1946)

· If the search is incident to a lawful arrest; United States v. Robinson, 414 U.S. 218 (1973)

· If there is probable cause to search and exigent circumstances; Payton v. New York, 445 U.S. 573 (1980)

· If the items are in plain view; Maryland v. Macon, 472 U.S. 463 (1985).

A Person

When an officer observes unusual conduct which leads him reasonably to conclude that criminal activity may be afoot, the officer may briefly stop the suspicious person and make reasonable inquiries aimed at confirming or dispelling the officer's suspicions.

See, e.g., Terry v. Ohio, 392 U.S. 1 (1968); Minnesota v. Dickerson, 508 U.S. 366 (1993)

Utah courts recognize three different levels of constitutionally permissible encounters between police officers and citizens. A level one encounter is a consensual encounter, which does not implicate the Fourth Amendment. An officer may approach an individual and ask questions, but [a]s long as the person ... remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy as would under the Constitution require some particularized and objective justification. On the other hand, a level two encounter [Terry stop] is a seizure within the meaning of the Fourth Amendment. It occurs when the officer, by means of physical force or show of authority has in some way restrained the liberty of the person. To be constitutionally permissible, an officer must have a reasonable, articulable suspicion that a person has committed or is about to commit a crime before the person can be detained. A level two detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Finally, a level three encounter occurs when a police officer arrests a suspect based on probable cause that an offense has been or is being committed.

State v. Bui-Cornethan, 2021 UT App 56, ¶ 17, 490 P.3d 191, 195, cert. denied, 497 P.3d 832 (Utah 2021).

Circumstances demonstrating that a level two stop is under way include the presence of more than one officer, the display of an officer's weapon, physical touching of the person, or use of commanding language or tone of voice. Further, the manner of questioning, the content of the questions, and the context in which the questions are being asked can convert mere questioning into a level two seizure if, under all of the circumstances, the questioning demonstrates a show of authority sufficient to restrain [a person's] freedom of movement.

State v. Alverez, 2006 UT 61, ¶ 12, 147 P.3d 425.

The community caretaking doctrine recognizes that police activity is not limited to criminal investigations. Rather, an officer's duty to protect and serve extends to helping individuals in the absence of criminal activity. This might include “helping stranded motorists, returning lost children to anxious parents, [and] assisting and protecting citizens in need.” People v. Ray, 21 Cal.4th 464, 88 Cal.Rptr.2d 1, 981 P.2d 928, 931 (1999). Utah courts have recognized this broader duty on several occasions. See, e.g., State v. Anderson, 2015 UT 90, 362 P.3d 1232 (holding that the community caretaking exception justified the warrantless seizure of a motorist parked on the side of a rural highway on a cold night); Salt Lake City v. Davidson, 2000 UT App 12, ¶ 11, 994 P.2d 1283 (recognizing the community caretaking exception), abrogated on separate grounds by State v. Adams, 2017 UT App 205, 407 P.3d 1027; see also Brigham City v. Stuart, 547 U.S. 398, 401-403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (in which the U.S. Supreme Court analyzed Utah's separate but related “emergency aid doctrine,” which recognizes a police officer's duty to aid someone “seriously injured or threatened with such injury” regardless of criminal activity). State v. Smith, 2022 UT 13, ¶ 14, 513 P.3d 629, 635, reh'g denied (June 29, 2022)

SOCIAL MEDIA AND LIMITS ON OFFICER’S FIRST AMENDMENT SPEECH

Be careful what you post on social media.

The First Amendment reads:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Speech includes not just verbal expressions but also forms such as writings, art, music, and symbolic speech. Although public employees may not “be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest” (emphasis added) – Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968) – "a citizen who accepts public employment must accept certain limitations on his or her freedom.” Garcetti v. Cabellos, 547 U.S. 410, 418, (2006).

To determine if a public employee’s speech is protected under the First Amendment, the Pickering test is used, where the public employee bears the burden to show:

1. They spoke on a matter of public concern;
2. They spoke as a private citizen rather than a public employee; and,
3. Their interest as a private citizen in speaking on the matter outweighed the efficiency of the public services it performs through its employees.

If the public employee meets his burden, the employer then bears the burden to show:

1. It has an adequate justification for treating its employee differently than other members of the public; or,
2. It would have taken the adverse employment action even absent the protected speech.

An issue is of “public concern” if it "relates to any matter of political, social, or other concern to the community,” or “is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public,” City of San Diego v. Roe, 543 U.S. 77, 83–84, (2004). Speech on matters of personal interest, such as addressing a personal employment dispute or complaints over internal office affairs, is not entitled to constitutional protection as matters of public concern. Hernandez v. City of Phoenix, 43 F. 4th 966 (2022). However, speech that helps citizens make informed decisions about government operations is very likely to be a matter of public concern. McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir. 1983).

You should be aware that there can be, and often are, consequences for officer speech that would otherwise not exist for citizens, and that you can be disciplined or even fired for speech that would be protected in other contexts. Officer speech is generally handled on a case-by-case basis. But be careful before you post to social media, and when in doubt, take additional steps to ensure your profile is distinct from your work as a peace officer and that you are commenting on matters of public concern.