Constitutional Law Expert Responds to Elon Students’ Concerns About Search and Seizure

Professor of Law at Elon Steve Friedland University School of Law. Courtesy of Elon Law.

Following a increased police presence on the Elon University campus on the first weekend of September, leading to an increase in alcohol-related citations, some students are wondering what to do if they are pulled over by a city police officer or from campus.

Steve Friedland, senior researcher and professor at Elon University School of Law, joined Elon Local News Live on September 12 to discuss student rights.

Friedland is an initial member of the law school and specializes in constitutional law, evidence law, criminal law and procedure.

This interview has been edited for clarity.

When students are arrested by the police, what are their rights as students?

The first thing I would say is that it is about the Constitution. The Fourth Amendment to the Constitution states that there shall be no unreasonable stops, searches or seizures and really focuses on searches and seizures. But it includes stops because it’s a kind of seizure. The Fifth Amendment talks about privilege against self-incrimination. So it involves statements. So our bill of rights, the first 10 amendments will limit what the power of government can do. And when I say government, we have two governments in this country: federal and state. So when you hear police sirens behind you, it’s the police.

When they stop you, my first suggestion is to keep your hands on the wheel where they can see it. And if you have to reach into your glove compartment, tell them I’m reaching into my glove compartment because that’s where I keep my recording. ‘Cause they might say, “License and registration, please,” and I reach into my pocket to get my license. Let them know what you are doing. And again, keep your hands visible, especially at night.

Can they ask you to get out of your car? The answer is yes. Under the Constitution, there was a Supreme Court case that said for their safety, they can ask you to get out of the car, including other members of the car.

Can they search us when they ask us to get out of the car? The general answer is actually no, unless they have a reasonable suspicion that we are armed and dangerous. That’s the only reason they can do what they call stop and dig. It’s based on a case called Terry vs. Ohio.

Can they now search the car? Usually the answer is no. And if they ask you to search the car, we all have the constitutional right to say no. What percentage of people actually say no, 20-30%. Most people will say yes, but you have a constitutional right to say no, and if it’s a traffic stop, they can only stay there for about 20 minutes.

Do these rules you explain for traffic stops also apply to things like underage drinking and open container laws? When police arrest students for underage drinking and open containers, what are their rights in these situations?

“Police can stop us when we’re walking or for other reasons if again they have a reasonable suspicion that a crime is under our feet. So that could include underage drinking, that can include weapons, it can include drugs. Well, when it’s a law that’s being enforced, like underage drinking, the police have the right to enforce the law.

Now, are they allowed to enter our homes to search for underage drinkers? No, unless they’re invited or, again, they have probable reason to believe there’s either a fugitive felon or imminent destruction of evidence, or they think it’s is a minor who drinks. As long as they have that reasonable suspicion, they can stop, ask questions, and again, probably ask for ID.