Fourth Amendment--Search and Seizure |
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FOURTH AMENDMENT
__________
SEARCH AND SEIZURE
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CONTENTS
Page
Search and Seizure........................................ 1199
History and Scope of the Amendment........................ 1199
History........................................... 1199
Scope of the Amendment............................ 1200
The Interest Protected............................ 1205
Arrests and Other Detentions...................... 1209
Searches and Inspections in Noncriminal Cases..... 1211
Searches and Seizures Pursuant to Warrant................. 1215
Issuance by Neutral Magistrate.................... 1216
Probable Cause.................................... 1217
Particularity..................................... 1220
First Amendment Bearing on Probable Cause and
Particularity................................. 1221
Property Subject to Seizure....................... 1223
Execution of Warrants............................. 1226
Valid Searches and Seizures Without Warrants.............. 1228
Detention Short of Arrest: Stop-and-Frisk......... 1229
Search Incident to Arrest......................... 1234
Vehicular Searches................................ 1238
Vessel Searches................................... 1241
Consent Searches.................................. 1242
Border Searches................................... 1243
``Open Fields''................................... 1245
``Plain View''.................................... 1246
Public Schools.................................... 1246
Government Offices................................ 1247
Prisons and Regulation of Probation............... 1247
Drug Testing...................................... 1248
Electronic Surveillance and the Fourth Amendment.......... 1250
The Olmstead Case................................. 1250
Federal Communications Act........................ 1251
Nontelephonic Electronic Surveillance............. 1251
The Berger and Katz Cases......................... 1252
Warrantless ``National Security'' Electronic
Surveillance.................................. 1255
Enforcing the Fourth Amendment: The Exclusionary Rule..... 1257
Alternatives to the Exclusionary Rule............. 1257
Development of the Exclusionary Rule.............. 1258
The Foundations of the Exclusionary Rule.......... 1262
Narrowing Application of the Exclusionary Rule.... 1264
Operation of the Rule: Standing................... 1269
[[Page 1199]]
FOURTH AMENDMENT
SEARCH AND SEIZURE
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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.
SEARCH AND SEIZURE
History and Scope of the Amendment
History.--Few provisions of the Bill of Rights grew so directly
out of the experience of the colonials as the Fourth Amendment,
embodying as it did the protection against the utilization of the
``writs of assistance.'' But while the insistence on freedom from
unreasonable searches and seizures as a fundamental right gained
expression in the Colonies late and as a result of experience,\1\ there
was also a rich English experience to draw on. ``Every man's house is
his castle'' was a maxim much celebrated in England, as was demonstrated
in Semayne's Case, decided in 1603.\2\ A civil case of execution of
process, Semayne's Case nonetheless recognized the right of the
homeowner to defend his house against unlawful entry even by the King's
agents, but at the same time recognized the authority of the appropriate
officers to break and enter upon notice in order to arrest or to execute
the King's process. Most famous of the English cases was Entick v.
Carrington,\3\ one of a series of civil actions against state officers
who, pursuant to general warrants, had raided many homes and other
places in search of materials
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connected with John Wilkes' polemical pamphlets attacking not only
governmental policies but the King himself.\4\
\1\Apparently the first statement of freedom from unreasonable
searches and seizures appeared in The Rights of the Colonists and a List
of Infringements and Violations of Rights, 1772, in the drafting of
which Samuel Adams took the lead. 1 B. Schwartz, The Bill of Rights: A
Documentary History 199, 205-06 (1971).
\2\5 Coke's Rep. 91a, 77 Eng. Rep. 194 (K.B. 1604). One of the
most forceful expressions of the maxim was that of William Pitt in
Parliament in 1763: ``The poorest man may in his cottage bid defiance to
all the force of the crown. It may be frail--its roof may shake--the
wind may blow through it--the storm may enter, the rain may enter--but
the King of England cannot enter--all his force dares not cross the
threshold of the ruined tenement.''
\3\19 Howell's State Trials 1029, 95 Eng. 807 (1705).
\4\See also Wilkes v. Wood, 98 Eng. 489 (C.P. 1763); Huckle v.
Money, 95 Eng. Rep. 768 (K.B. 1763), aff'd 19 Howell's State Trials
1002, 1028; 97 Eng. Rep. 1075 (K.B. 1765).
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Entick, an associate of Wilkes, sued because agents had forcibly
broken into his house, broken into locked desks and boxes, and seized
many printed charts, pamphlets and the like. In an opinion sweeping in
terms, the court declared the warrant and the behavior it authorized
subversive ``of all the comforts of society,'' and the issuance of a
warrant for the seizure of all of a person's papers rather than only
those alleged to be criminal in nature ``contrary to the genius of the
law of England.''\5\ Besides its general character, said the court, the
warrant was bad because it was not issued on a showing of probable cause
and no record was required to be made of what had been seized. Entick v.
Carrington, the Supreme Court has said, is a ``great judgment,'' ``one
of the landmarks of English liberty,'' ``one of the permanent monuments
of the British Constitution,'' and a guide to an understanding of what
the Framers meant in writing the Fourth Amendment.\6\
\5\5 Eng. Rep. 817, 818.
\6\Boyd v. United States, 116 U.S. 616, 626 (1886).
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In the colonies, smuggling rather than seditious libel afforded
the leading examples of the necessity for protection against
unreasonable searches and seizures. In order to enforce the revenue
laws, English authorities made use of writs of assistance, which were
general warrants authorizing the bearer to enter any house or other
place to search for and seize ``prohibited and uncustomed'' goods, and
commanding all subjects to assist in these endeavors. The writs once
issued remained in force throughout the lifetime of the sovereign and
six months thereafter. When, upon the death of George II in 1760, the
authorities were required to obtain the issuance of new writs,
opposition was led by James Otis, who attacked such writs on libertarian
grounds and who asserted the invalidity of the authorizing statutes
because they conflicted with English constitutionalism.\7\ Otis lost and
the writs were issued and utilized, but his arguments were much cited in
the colonies not only on the immediate subject but also with regard to
judicial review.
\7\The arguments of Otis and others as well as much background
material are contained in Quincy's Massachusetts Reports, 1761-1772,
App. I, pp. 395-540, and in 2 Legal Papers of John Adams 106-47 (Wroth &
Zobel eds., 1965). See also Dickerson, Writs of Assistance as a Cause of
the American Revolution, in The Era of the American Revolution: Studies
Inscribed to Evarts Boutell Greene 40 (R. Morris, ed., 1939).
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Scope of the Amendment.--The language of the provision which
became the Fourth Amendment underwent some modest
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changes on its passage through the Congress, and it is possible that the
changes reflected more than a modest significance in the interpretation
of the relationship of the two clauses. Madison's introduced version
provided ``The rights to be secured in their persons, their houses,
their papers, and their other property, from all unreasonable searches
and seizures, shall not be violated by warrants issued without probable
cause, supported by oath or affirmation, or not particularly describing
the places to be searched, or the persons or things to be seized.''\8\
As reported from committee, with an inadvertent omission corrected on
the floor,\9\ the section was almost identical to the introduced
version, and the House defeated a motion to substitute ``and no warrant
shall issue'' for ``by warrants issuing'' in the committee draft. In
some fashion, the rejected amendment was inserted in the language before
passage by the House and is the language of the ratified constitutional
provision.\10\
\8\1 Annals of Congress 434-35 (June 8, 1789).
\9\The word ``secured'' was changed to ``secure'' and the phrase
``against unreasonable searches and seizures'' was reinstated. Id. at
754 (August 17, 1789).
\10\Id. It has been theorized that the author of the defeated
revision, who was chairman of the committee appointed to arrange the
amendments prior to House passage, simply inserted his provision and
that it passed unnoticed. N. Lasson, The History and Development of the
Fourth Amendment to the United States Constitution 101-03 (1937).
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As noted above, the noteworthy disputes over search and seizure
in England and the colonies revolved about the character of warrants.
There were, however, lawful warrantless searches, primarily searches
incident to arrest, and these apparently gave rise to no disputes. Thus,
the question arises whether the Fourth Amendment's two clauses must be
read together to mean that the only searches and seizures which are
``reasonable'' are those which meet the requirements of the second
clause, that is, are pursuant to warrants issued under the prescribed
safeguards, or whether the two clauses are independent, so that searches
under warrant must comply with the second clause but that there are
``reasonable'' searches under the first clause which need not comply
with the second clause.\11\ This issue has divided the Court for some
time, has
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seen several reversals of precedents, and is important for the
resolution of many cases. It is a dispute which has run most
consistently throughout the cases involving the scope of the right to
search incident to arrest.\12\ While the right to search the person of
the arrestee without a warrant is unquestioned, how far afield into
areas within and without the control of the arrestee a search may range
is an interesting and crucial matter.
\11\The amendment was originally in one clause as quoted above;
it was the insertion of the defeated amendment to the language which
changed the text into two clauses and arguably had the effect of
extending the protection against unreasonable searches and seizures
beyond the requirements imposed on the issuance of warrants. It is also
possible to read the two clauses together to mean that some seizures
even under warrants would be unreasonable, and this reading has indeed
been effectuated in certain cases, although for independent reasons.
Boyd v. United States, 116 U.S. 616 (1886); Gouled v. United States, 255
U.S. 298 (1921), overruled by Warden v. Hayden, 387 U.S. 294 (1967); but
see id. at 303 (reserving the question whether ``there are items of
evidential value whose very nature precludes them from being the object
of a reasonable search and seizure.'')
\12\Approval of warrantless searches pursuant to arrest first
appeared in dicta in several cases. Weeks v. United States, 232 U.S.
383, 392 (1914); Carroll v. United States, 267 U.S. 132, 158 (1925);
Agnello v. United States, 269 U.S. 20, 30 (1925). Whether or not there
is to be a rule or a principle generally preferring or requiring
searches pursuant to warrant to warrantless searches, however, has
ramifications far beyond the issue of searches pursuant to arrest.
United States v. United States District Court, 407 U.S. 297, 320 (1972).
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The Court has drawn a wavering line.\13\ In Harris v. United
States,\14\ it approved as ``reasonable'' the warrantless search of a
four-room apartment pursuant to the arrest of the man found there. A
year later, however, a reconstituted Court majority set aside a
conviction based on evidence seized by a warrantless search pursuant to
an arrest and adopted the ``cardinal rule that, in seizing goods and
articles, law enforcement agents must secure and use search warrants
wherever reasonably practicable.''\15\ This rule was set aside two years
later by another reconstituted majority which adopted the premise that
the test ``is not whether it is reasonable to procure a search warrant,
but whether the search was reasonable.'' Whether a search is reasonable,
the Court said, ``must find resolution in the facts and circumstances of
each case.''\16\ However, the Court soon returned to its emphasis upon
the warrant. ``The [Fourth] Amendment was in large part a reaction to
the general warrants and warrantless searches that had so alienated the
colonists and had helped speed the movement for independence. In the
scheme of the Amendment, therefore, the requirement that `no Warrants
shall issue, but upon probable cause,' plays a crucial part.''\17\
Therefore, ``the police must, whenever practicable, obtain advance
judicial approval of searches and seizures through a warrant
procedure.''\18\ Exceptions to searches under warrants were to
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be closely contained by the rationale undergirding the necessity for the
exception, and the scope of a search under one of the exceptions was
similarly limited.\19\
\13\Compare Marron v. United States, 275 U.S. 192 (1927), with
Go-Bart Importing Co. v. United States, 282 U.S. 344 (1931), and United
States v. Lefkowitz, 285 U.S. 452 (1932).
\14\331 U.S. 145 (1947).
\15\Trupiano v. United States, 334 U.S. 699, 705 (1948). See
also McDonald v. United States, 335 U.S. 451 (1948).
\16\United States v. Rabinowitz, 339 U.S. 56, 66 (1950).
\17\Chimel v. California, 395 U.S. 752, 761 (1969).
\18\Terry v. Ohio, 392 U.S. 1, 20 (1968). In United States v.
United States District Court, 407 U.S. 297, 321 (1972), Justice Powell
explained that the ``very heart'' of the Amendment's mandate is ``that
where practical, a governmental search and seizure should represent both
the efforts of the officer to gather evidence of wrongful acts and the
judgment of the magistrate that the collected evidence is sufficient to
justify invasion of a citizen's private premises or conversation.''
Thus, what is ``reasonable'' in terms of a search and seizure derives
content and meaning through reference to the warrant clause. Coolidge v.
New Hampshire, 403 U.S. 443, 473-84 (1971). See also Davis v.
Mississippi, 394 U.S. 721, 728 (1969); Katz v. United States, 389 U.S.
347, 356-58 (1967); Warden v. Hayden, 387 U.S. 294, 299 (1967).
\19\Chimel v. California, 395 U.S. 752, 762-64 (1969) (limiting
scope of search incident to arrest). See also United States v. United
States District Court, 407 U.S. 297 (1972) (rejecting argument that it
was ``reasonable'' to allow President through Attorney General to
authorize warrantless electronic surveillance of persons thought to be
endangering the national security); Katz v. United States, 389 U.S. 347
(1967) (although officers acted with great self-restraint and reasonably
in engaging in electronic seizures of conversations from telephone
booth, self-imposition was not enough and magistrate's judgment
required); Preston v. United States, 376 U.S. 364 (1964) (warrantless
search of seized automobile not justified because not within rationale
of exceptions to warrant clause). There were exceptions, e.g., Cooper v.
California, 386 U.S. 58 (1967) (warrantless search of impounded car was
reasonable); United States v. Harris, 390 U.S. 234 (1968) (warrantless
inventory search of automobile).
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During the 1970s the Court was closely divided on which standard
to apply.\20\ For a while, the balance tipped in favor of the view that
warrantless searches are per se unreasonable, with a few carefully
prescribed exceptions.\21\ Gradually, guided by the variable expectation
of privacy approach to coverage of the Fourth Amendment, the Court
broadened its view of permissible exceptions and of the scope of those
exceptions.\22\
\20\See, e.g., Almeida-Sanchez v. United States, 413 U.S. 266
(1973), Justices Stewart, Douglas, Brennan, and Marshall adhered to the
warrant-based rule, while Justices White, Blackmun, and Rehnquist, and
Chief Justice Burger placed greater emphasis upon the question of
reasonableness without necessary regard to the warrant requirement. Id.
at 285. Justice Powell generally agreed with the former group of
Justices, id. at 275 (concurring).
\21\E.g., G.M. Leasing Corp. v. United States, 429 U.S. 338,
352-53 (1977) (unanimous); Marshall v. Barlow's, Inc., 436 U.S. 307, 312
(1978); Michigan v. Tyler, 436 U.S. 499, 506 (1978); Mincey v. Arizona,
437 U.S. 385, 390 (1978) (unanimous); Arkansas v. Sanders, 442 U.S. 743,
758 (1979); United States v. Ross, 456 U.S. 798, 824-25 (1982).
\22\E.g., Chambers v. Maroney, 399 U.S. 42 (1970) (warrantless
search of automobile taken to police station); Texas v. White, 423 U.S.
67 (1975) (same); New York v. Belton, 453 U.S. 454 (1981) (search
incident to arrest); United States v. Ross, 456 U.S. 798 (1982)
(automobile search at scene). On the other hand, the warrant-based
standard did preclude a number of warrantless searches. E.g., Almeida-
Sanchez v. United States, 413 U.S. 266 (1973) (warrantless stop and
search of auto by roving patrol near border); Marshall v. Barlow's,
Inc., 436 U.S. 307 (1978) (warrantless administrative inspection of
business premises); Mincey v. Arizona, 437 U.S. 385 (1978) (warrantless
search of home that was ``homicide scene'').
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By 1992, it was no longer the case that the ``warrants-with-
narrow-exceptions'' standard normally prevails over a ``reasonableness''
approach.\23\ Exceptions to the warrant requirement have
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multiplied, tending to confine application of the requirement to cases
that are exclusively ``criminal'' in nature. And even within that core
area of ``criminal'' cases, some exceptions have been broadened. The
most important category of exception is that of administrative searches
justified by ``special needs beyond the normal need for law
enforcement.'' Under this general rubric the Court has upheld
warrantless searches by administrative authorities in public schools,
government offices, and prisons, and has upheld drug testing of public
and transportation employees.\24\ In all of these instances the warrant
and probable cause requirements are dispensed with in favor of a
reasonableness standard that balances the government's regulatory
interest against the individual's privacy interest; in all of these
instances the government's interest has been found to outweigh the
individual's. The broad scope of the administrative search exception is
evidenced by the fact that an overlap between law enforcement objectives
and administrative ``special needs'' does not result in application of
the warrant requirement; instead, the Court has upheld warrantless
inspection of automobile junkyards and dismantling operations in spite
of the strong law enforcement component of the regulation.\25\ In the
law enforcement context, where search by warrant is still the general
rule, there has also been some loosening of the requirement. For
example, the Court has shifted focus from whether exigent circumstances
justified failure to obtain a warrant, to whether an officer had a
``reasonable'' belief that an exception to the warrant requirement
applied;\26\ in another case the scope of a valid search ``incident to
arrest,'' once limited to areas within the immediate reach of the
arrested suspect, was expanded to a ``protective sweep'' of the entire
home if arresting officers have a reasonable belief that the home
harbors an individual who may pose a danger.\27\
\23\Of the 1992 Justices, only Justice Stevens has frequently
sided with the warrants-with-narrow-exceptions approach. See, e.g.,
Illinois v. Rodriguez, 497 U.S. 177, 189 (Justice Stevens joining
Justice Marshall's dissent); New Jersey v. T.L.O., 469 U.S. 325, 370
(1985) (Justice Stevens dissenting); California v. Acevedo, 500 U.S.
565, 585 (1991) (Justice Stevens dissenting).
\24\See various headings infra under the general heading ``Valid
Searches and Seizures Without Warrants.''
\25\New York v. Burger, 482 U.S. 691 (1987).
\26\Illinois v. Rodriguez, 497 U.S. 177 (1990).
\27\Maryland v. Buie, 494 U.S. 325 (1990).
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Another matter of scope recently addressed by the Court is the
category of persons protected by the Fourth Amendment--who constitutes
``the people.'' This phrase, the Court determined, ``refers to a class
of persons who are part of a national community or who have otherwise
developed sufficient connection with [the United States] to be
considered part of that community.''\28\ The Fourth Amendment therefore
does not apply to the search and seizure by
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United States agents of property that is owned by a nonresident alien
and located in a foreign country. The community of protected people
includes U.S. citizens who go abroad, and aliens who have voluntarily
entered U.S. territory and developed substantial connections with this
country. There is no resulting broad principle, however, that the Fourth
Amendment constrains federal officials wherever and against whomever
they act.
\28\United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990).
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The Interest Protected.--For the Fourth Amendment to be
applicable to a particular set of facts, there must be a ``search'' and
a ``seizure,'' occurring typically in a criminal case, with a subsequent
attempt to use judicially what was seized. Whether there was a search
and seizure within the meaning of the Amendment, whether a complainant's
interests were constitutionally infringed, will often turn upon
consideration of his interest and whether it was officially abused. What
does the Amendment protect? Under the common law, there was no doubt.
Said Lord Camden in Entick v. Carrington:\29\ ``The great end for which
men entered in society was to secure their property. That right is
preserved sacred and incommunicable in all instances where it has not
been taken away or abridged by some public law for the good of the
whole. . . . By the laws of England, every invasion of private property,
be it ever so minute, is a trespass. No man can set foot upon my ground
without my license but he is liable to an action though the damage be
nothing . . . .'' Protection of property interests as the basis of the
Fourth Amendment found easy acceptance in the Supreme Court\30\ and that
acceptance controlled decision in numerous cases.\31\ For example, in
Olmstead v. United States,\32\ one of the two premises underlying the
holding that wiretapping was not covered by the Amendment was that there
had been no actual physical invasion of the defendant's premises; where
there had been an invasion, a technical trespass, electronic
surveillance was deemed subject to
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Fourth Amendment restrictions.\33\ The Court later rejected this
approach, however. ``The premise that property interests control the
right of the Government to search and seize has been discredited. . . .
We have recognized that the principal object of the Fourth Amendment is
the protection of privacy rather than property, and have increasingly
discarded fictional and procedural barriers rested on property
concepts.''\34\ Thus, because the Amendment ``protects people, not
places,'' the requirement of actual physical trespass is dispensed with
and electronic surveillance was made subject to the Amendment's
requirements.\35\
\29\19 Howell's State Trials 1029, 1035, 95 Eng. Reg. 807, 817-
18 (1765).
\30\Boyd v. United States, 116 U.S. 616, 627 (1886); Adams v.
New York, 192 U.S. 585, 598 (1904).
\31\Thus, the rule that ``mere evidence'' could not be seized
but rather only the fruits of crime, its instrumentalities, or
contraband, turned upon the question of the right of the public to
possess the materials or the police power to make possession by the
possessor unlawful. Gouled v. United States, 255 U.S. 298 (1921),
overruled by Warden v. Hayden, 387 U.S. 294 (1967). See also Davis v.
United States, 328 U.S. 582 (1946). Standing to contest unlawful
searches and seizures was based upon property interests, United States
v. Jeffers, 342 U.S. 48 (1951); Jones v. United States, 362 U.S. 257
(1960), as well as decision upon the validity of a consent to search.
Chapman v. United States, 365 U.S. 610 (1961); Stoner v. California, 376
U.S. 483 (1964); Frazier v. Culp, 394 U.S. 731, 740 (1969).
\32\277 U.S. 438 (1928). See also Goldman v. United States, 316
U.S. 129 (1942) (detectaphone placed against wall of adjoining room; no
search and seizure).
\33\Silverman v. United States, 365 U.S. 505 (1961) (spike mike
pushed through a party wall until it hit a heating duct).
\34\Warden v. Hayden, 387 U.S. 294, 304 (1967).
\35\Katz v. United States, 389 U.S. 347, 353 (1967). But see
California v. Hodari D., 499 U.S. 621, 626 (1991) (Fourth Amendment
``seizure'' of the person is the same as a common law arrest; there must
be either application of physical force or submission to the assertion
of authority).
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The test propounded in Katz is whether there is an expectation
of privacy upon which one may ``justifiably'' rely.\36\ ``What a person
knowingly exposes to the public, even in his own home or office, is not
a subject of Fourth Amendment protection. But what he seeks to preserve
as private, even in an area accessible to the public, may be
constitutionally protected.''\37\ That is, the ``capacity to claim the
protection of the Amendment depends not upon a property right in the
invaded place but upon whether the area was one in which there was
reasonable expectation of freedom from governmental intrusion.''\38\
\36\389 U.S. at 353. Justice Harlan, concurring, formulated a
two pronged test for determining whether the privacy interest is
paramount: ``first that a person have exhibited an actual (subjective)
expectation of privacy and, second, that the expectation be one that
society is prepared to recognize as `reasonable.''' Id. at 361.
\37\Id. at 351-52.
\38\Mancusi v. DeForte, 392 U.S. 364, 368 (1968) (official had a
reasonable expectation of privacy in an office he shared with others,
although he owned neither the premises nor the papers seized). Minnesota
v. Olson, 495 U.S. 91 (1990) (overnight guest in home has a reasonable
expectation of privacy). Cf. Rakas v. Illinois, 439 U.S. 128 (1978).
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The two-part test that Justice Harlan suggested in Katz\39\ has
purported to guide the Court in its deliberations, but its consequences
are unclear. On the one hand, there is no difference in result between
many of the old cases premised on property concepts and more recent
cases in which the reasonable expectation of
[[Page 1207]]
privacy flows from ownership concepts.\40\ On the other hand, many other
cases have presented close questions that have sharply divided the
Court.\41\ The first element, the ``subjective expectation'' of privacy,
has largely dwindled as a viable standard, because, as Justice Harlan
noted in a subsequent case, ``our expectations, and the risks we assume,
are in large part reflections of laws that translate into rules the
customs and values of the past and present.''\42\ As for the second
element, whether one has a ``legitimate'' expectation of privacy that
society finds ``reasonable'' to recognize, the Court has said that
``[l]egitimation of expectations of privacy by law must have a source
outside of the Fourth Amendment, either by reference to concepts of real
or personal property law or to understandings that are recognized and
permitted by society.''\43\ Thus, protection of the home is at the apex
of Fourth Amendment coverage because of the right associated with
ownership to exclude others;\44\ but ownership of other things, i.e.,
automobiles, does not carry a similar high degree of protection.\45\
That a person has taken normal precautions to maintain his privacy, that
is, precautions customarily taken by those seeking to exclude others, is
usually a significant factor in determining legitimacy of
expectation.\46\ Some expectations, the Court has held, are simply not
those which society is prepared to accept.\47\ While perhaps not
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clearly expressed in the opinions, what seems to have emerged is a
balancing standard, which requires ``an assessing of the nature of a
particular practice and the likely extent of its impact on the
individual's sense of security balanced against the utility of the
conduct as a technique of law enforcement.'' As the intrusions grow more
extensive and significantly jeopardize the sense of security of the
individual, greater restraint of police officers through the warrant
requirement may be deemed necessary.\48\ On the other hand, the Court's
solicitude for law enforcement objectives may tilt the balance in the
other direction.
\39\Justice Harlan's opinion has been much relied upon. E.g.,
Terry v. Ohio, 392 U.S. 1, 19 (1968); Rakas v. Illinois, 439 U.S. 128,
143-144 n.12 (1978); Smith v. Maryland, 442 U.S. 735, 740-41 (1979);
United States v. Salvucci, 448 U.S. 83, 91-92 (1980); Rawlings v.
Kentucky, 448 U.S. 98, 105-06 (1980).
\40\E.g., Alderman v. United States, 394 U.S. 165 (1969) (home
owner could object to electronic surveillance of conversations emanating
from his home, even though he was not party to the conversations).
\41\E.g., Rakas v. Illinois, 439 U.S. 128 (1978) (4-1-4
decision: passengers in automobile who own neither the car nor the
property seized had no legitimate expectation of privacy in areas
searched).
\42\United States v. White, 401 U.S. 745, 786 (1971). See Smith
v. Maryland, 442 U.S. 735, 740 n.5 (1979) (government could not
condition ``subjective expectations'' by, say, announcing that
henceforth all homes would be subject to warrantless entry, and thus
destroy the ``legitimate expectation of privacy'').
\43\Rakas v. Illinois, 439 U.S. 128, 144 n.12 (1978).
\44\E.g., Alderman v. United States, 394 U.S. 165 (1969); Mincey
v. Arizona, 437 U.S. 385 (1978); Payton v. New York, 445 U.S. 573
(1980).
\45\E.g., United States v. Ross, 456 U.S. 798 (1982). See also
Donovan v. Dewey, 452 U.S. 594 (1981) (commercial premises); Maryland v.
Macon, 472 U.S. 463 (1985) (no legitimate expectation of privacy in
denying to undercover officers allegedly obscene materials offered to
public in bookstore).
\46\E.g., United States v. Chadwick, 433 U.S. 1, 11 (1977); Katz
v. United States, 389 U.S. 347, 352 (1967). But cf. South Dakota v.
Opperman, 428 U.S. 364 (1976) (no legitimate expectation of privacy in
automobile left with doors locked and windows rolled up). In Rawlings v.
Kentucky, 448 U.S. 98 (1980), the fact that defendant had dumped a cache
of drugs into his companion's purse, having known her for only a few
days and knowing others had access to the purse, was taken to establish
that he had no legitimate expectation the purse would be free from
intrusion.
\47\E.g., United States v. Miller, 425 U.S. 435 (1976) (bank
records); Smith v. Maryland, 442 U.S. 735 (1979) (numbers dialed from
one's telephone); Hudson v. Palmer, 468 U.S. 517 (1984) (prison cell);
Illinois v. Andreas, 463 U.S. 765 (1983) (shipping container opened and
inspected by customs agents and resealed and delivered to the
addressee); California v. Greenwood, 486 U.S. 35 (1988) (garbage in
sealed plastic bags left at curb for collection).
\48\United States v. White, 401 U.S. 745, 786-87 (1971) (Justice
Harlan dissenting).
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Application of this balancing test, because of the Court's
weighing in of law enforcement investigative needs\49\ and the Court's
subjective evaluation of privacy needs, has led to the creation of a
two-tier or sliding-tier scale of privacy interests. The privacy test
was originally designed to permit a determination that a Fourth
Amendment protected interest had been invaded.\50\ If it had been, then
ordinarily a warrant was required, subject only to the narrowly defined
exceptions, and the scope of the search under those exceptions was
``strictly tied to and justified by the circumstances which rendered its
initiation permissible.''\51\ But the Court now uses the test to
determine whether the interest invaded is important or persuasive enough
so that a warrant is required to justify it;\52\ if the individual has a
lesser expectation of privacy, then the invasion may be justified,
absent a warrant, by the reasonableness of the intrusion.\53\ Exceptions
to the warrant requirement are no
[[Page 1209]]
longer evaluated solely by the justifications for the exception, e.g.,
exigent circumstances, and the scope of the search is no longer tied to
and limited by the justification for the exception.\54\ The result has
been a considerable expansion, beyond what existed prior to Katz, of the
power of police and other authorities to conduct searches.
\49\E.g., Robbins v. California, 453 U.S. 420, 429, 433-34
(1981) (Justice Powell concurring), quoted approvingly in United States
v. Ross, 456 U.S. 798, 815-16 & n.21 (1982).
\50\Katz v. United States, 389 U. S. 347, 351-52 (1967).
\51\Terry v. Ohio, 392 U.S. 1, 19 (1968).
\52\The prime example is the home, so that for entries either to
search or to arrest, ``the Fourth Amendment has drawn a firm line at the
entrance to the house. Absent exigent circumstances, that threshold may
not reasonably be crossed without a warrant.'' Payton v. New York, 445
U.S. 573, 590 (1980); Steagald v. United States, 451 U.S. 204, 212
(1981). And see Mincey v. Arizona, 437 U.S. 385 (1978).
\53\One has a diminished expectation of privacy in automobiles.
Arkansas v. Sanders, 442 U.S. 753, 761 (1979) (collecting cases); United
States v. Ross, 456 U.S. 798, 804-09 (1982). A person's expectation of
privacy in personal luggage and other closed containers is substantially
greater than in an automobile, United States v. Chadwick, 433 U.S. 1, 13
(1977); Arkansas v. Sanders, 442 U.S. 753 (1979), although if the
luggage or container is found in an automobile as to which there exists
probable cause to search, the legitimate expectancy diminishes
accordingly. United States v. Ross, supra. There is also a diminished
expectation of privacy in a mobile home parked in a parking lot and
licensed for vehicular travel. California v. Carney, 471 U.S. 386 (1985)
(leaving open the question of whether the automobile exception also
applies to a ``mobile'' home being used as a residence and not adapted
for immediate vehicular use).
\54\E.g., Texas v. White, 423 U.S. 67 (1975) (if probable cause
to search automobile existed at scene, it can be removed to station and
searched without warrant); United States v. Robinson, 414 U.S. 218
(1973) (once an arrest has been validly made, search pursuant thereto is
so minimally intrusive in addition that scope of search is not limited
by necessity of security of officer); United States v. Edwards, 415 U.S.
800 (1974) (incarcerated suspect; officers need no warrant to take his
clothes for test because little additional intrusion). But see Ybarra v.
Illinois, 444 U.S. 85 (1979) (officers on premises to execute search
warrant of premises may not without more search persons found on
premises).
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Arrests and Other Detentions.--That the Fourth Amendment was
intended to protect against arbitrary arrests as well as against
unreasonable searches was early assumed by Chief Justice Marshall\55\
and is now established law.\56\ At the common law, it was proper to
arrest one who had committed a breach of the peace or a felony without a
warrant,\57\ and this history is reflected in the fact that the Fourth
Amendment is satisfied if the arrest is made in a public place on
probable cause, regardless of whether a warrant has been obtained.\58\
However, in order to effectuate an arrest in the home, absent consent or
exigent circumstances, police officers must have a warrant.\59\ The
Fourth Amendment applies to ``seizures'' and it is not necessary that a
detention be a formal arrest in order to bring to bear the requirements
of warrants or probable cause in instances in which warrants may be
forgone.\60\ Some
[[Page 1210]]
objective justification must be shown to validate all seizures of the
person, including seizures that involve only a brief detention short of
arrest, although the nature of the detention will determine whether
probable cause or some reasonable and articulable suspicion is
necessary.\61\
\55\Ex parte Burford, 7 U.S. (3 Cr.) 448 (1806).
\56\Giordenello v. United States, 357 U.S. 480, 485-86 (1958);
United States v. Watson, 423 U.S. 411, 416-18 (1976); Payton v. New
York, 445 U.S. 573, 583-86 (1980); Steagald v. United States, 451 U.S.
204, 211-13 (1981).
\57\1 J. Stephen, A History of the Criminal Law of England 193
(1883).
\58\United States v. Watson, 423 U.S. 411 (1976). See also
United States v. Santana, 427 U.S. 38 (1976) (sustaining warrantless
arrest of suspect in her home when she was initially approached in her
doorway and then retreated into house). However, a suspect arrested on
probable cause but without a warrant is entitled to a prompt,
nonadversary hearing before a magistrate under procedures designed to
provide a fair and reliable determination of probable cause in order to
keep the arrestee in custody. Gerstein v. Pugh, 420 U.S. 103 (1975).
\59\Payton v. New York, 445 U.S. 573 (1980) (voiding state law
authorizing police to enter private residence without a warrant to make
an arrest); Steagald v. United States, 451 U.S. 204 (1981) (officers
with arrest warrant for A entered B's home without search warrant and
discovered incriminating evidence; violated Fourth Amendment in absence
of warrant to search the home); Hayes v. Florida, 470 U.S. 811 (1985)
(officers went to suspect's home and took him to police station for
fingerprinting).
\60\United States v. Mendenhall, 446 U.S. 544, 554 (1980)
(opinion of Justice Stewart) (``[A] person has been `seized' within the
meaning of the Fourth Amendment only if, in view of all the
circumstances surrounding the incident, a reasonable person would have
believed that he was not free to leave''). See also Reid v. Georgia, 448
U.S. 438 (1980); United States v. Brignoni-Ponce, 422 U.S. 873, 878
(1975); Terry v. Ohio, 392 U.S. 1, 16-19 (1968). Apprehension by the use
of deadly force is a seizure subject to the Fourth Amendment's
reasonableness requirement. See, e.g., Tennessee v. Garner, 471 U.S. 1
(1985) (police officer's fatal shooting of a fleeing suspect); Brower v.
County of Inyo, 489 U.S. 593 (1989) (police roadblock designed to end
car chase with fatal crash).
\61\Adams v. Williams, 407 U.S. 143, 146-49 (1972); Delaware v.
Prouse, 440 U.S. 648, 661 (1979); Brown v. Texas, 443 U.S. 47, 51
(1979); Reid v. Georgia, 448 U.S. 438, 440 (1980); Michigan v. Summers,
452 U.S. 692 (1981).
---------------------------------------------------------------------------
Until relatively recently, the legality of arrests was seldom
litigated in the Supreme Court because of the rule that a person
detained pursuant to an arbitrary seizure--unlike evidence obtained as a
result of an unlawful search--remains subject to custody and
presentation to court.\62\ But the application of self-incrimination and
other exclusionary rules to the States and the heightening of their
scope in state and federal cases alike brought forth the rule that
verbal evidence, confessions, and other admissions, like all derivative
evidence obtained as a result of unlawful seizures, could be
excluded.\63\ Thus, a confession made by one illegally in custody must
be suppressed, unless the causal connection between the illegal arrest
and the confession had become so attenuated that the latter should not
be deemed ``tainted'' by the former.\64\ Similarly, fingerprints and
other physical evidence obtained as a result of an unlawful arrest must
be suppressed.\65\
\62\Ker v. Illinois, 119 U.S. 436, 440 (1886); see also Albrecht
v. United States, 273 U.S. 1 (1927); Frisbie v. Collins, 342 U.S. 519
(1952).
\63\Wong Sun v. United States, 371 U.S. 471 (1963). Such
evidence is the ``fruit of the poisonous tree,'' Nardone v. United
States, 308 U.S. 338, 341 (1939), that is, evidence derived from the
original illegality. Previously, if confessions were voluntary for
purposes of the self-incrimination clause, they were admissible
notwithstanding any prior official illegality. Colombe v. Connecticut,
367 U.S. 568 (1961).
\64\Although there is a presumption that the illegal arrest is
the cause of the subsequent confession, the presumption is rebuttable by
a showing that the confession is the result of ``an intervening . . .
act of free will.'' Wong Sun v. United States, 371 U.S. 471, 486 (1963).
The factors used to determine whether the taint has been dissipated are
the time between the illegal arrest and the confession, whether there
were intervening circumstances (such as consultation with others,
Miranda warnings, etc.), and the degree of flagrancy and purposefulness
of the official conduct. Brown v. Illinois, 422 U.S. 590 (1975) (Miranda
warnings alone insufficient); Dunaway v. New York, 442 U.S. 200 (1979);
Taylor v. Alabama, 457 U.S. 687 (1982). In Johnson v. Louisiana, 406
U.S. 356 (1972), the fact that the suspect had been taken before a
magistrate who advised him of his rights and set bail, after which he
confessed, established a sufficient intervening circumstance.
\65\Davis v. Mississippi, 394 U.S. 721 (1969); Taylor v.
Alabama, 457 U.S. 687 (1982). In United States v. Crews, 445 U.S. 463
(1980), the Court, unanimously but for a variety of reasons, held proper
the identification in court of a defendant, who had been wrongly
arrested without probable cause, by the crime victim. The court
identification was not tainted by either the arrest or the subsequent
in-custody identification. See also Hayes v. Florida, 470 U.S. 811, 815
(1985), suggesting in dictum that a ``narrowly circumscribed procedure
for fingerprinting detentions on less than probable cause'' may be
permissible.
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[[Page 1211]]
Searches and Inspections in Noncriminal Cases.--Certain early
cases held that the Fourth Amendment was applicable only when a search
was undertaken for criminal investigatory purposes,\66\ and the Supreme
Court until recently employed a reasonableness test for such searches
without requiring either a warrant or probable cause in the absence of a
warrant.\67\ But in 1967, the Court held in two cases that
administrative inspections to detect building code violations must be
undertaken pursuant to warrant if the occupant objects.\68\ ``We may
agree that a routine inspection of the physical condition of private
property is a less hostile intrusion than the typical policeman's search
for the fruits and instrumentalities of crime. . . . But we cannot agree
that the Fourth Amendment interests at stake in these inspection cases
are merely `peripheral.' It is surely anomalous to say that the
individual and his private property are fully protected by the Fourth
Amendment only when the individual is suspected of criminal
behavior.''\69\ Certain administrative inspections utilized to enforce
regulatory schemes with regard to such items as alcohol and firearms
are, however, exempt from the Fourth Amendment warrant requirement and
may be authorized simply by statute.\70\
\66\In re Strouse, 23 Fed. Cas. 261 (No. 13,548) (D. Nev. 1871);
In re Meador, 16 Fed. Cas. 1294, 1299 (No. 9375) (N.D. Ga. 1869).
\67\Abel v. United States, 362 U.S. 217 (1960); Frank v.
Maryland, 359 U.S. 360 (1959); Oklahoma Press Pub. Co. v. Walling, 327
U.S. 186 (1946).
\68\Camara v. Municipal Court, 387 U.S. 523 (1967) (home); See
v. City of Seattle, 387 U.S. 541 (1967) (commercial warehouse).
\69\Camara v. Municipal Court, 387 U.S. 523, 530 (1967).
\70\Colonnade Catering Corp. v. United States, 397 U.S. 72
(1970); United States v. Biswell, 406 U.S. 311 (1972). Colonnade,
involving liquor, was based on the long history of close supervision of
the industry. Biswell, involving firearms, introduced factors that were
subsequently to prove significant. Thus, while the statute was of recent
enactment, firearms constituted a pervasively regulated industry, so
that dealers had no reasonable expectation of privacy, inasmuch as the
law provides for regular inspections. Further, warrantless inspections
were needed for effective enforcement of the statute.
---------------------------------------------------------------------------
Camara and See were reaffirmed in Marshall v. Barlow's,
Inc.,\71\ in which the Court held violative of the Fourth Amendment a
provision of the Occupational Safety and Health Act which authorized
federal inspectors to search the work area of any employment facility
covered by the Act for safety hazards and violations of regulations,
without a warrant or other legal process. The liquor
[[Page 1212]]
and firearms exceptions were distinguished on the basis that those
industries had a long tradition of close government supervision, so that
a person in those businesses gave up his privacy expectations. But OSHA
was a relatively recent statute and it regulated practically every
business in or affecting interstate commerce; it was not open to a
legislature to extend regulation and then follow it with warrantless
inspections. Additionally, OSHA inspectors had unbounded discretion in
choosing which businesses to inspect and when to do so, leaving
businesses at the mercy of possibly arbitrary actions and certainly with
no assurances as to limitation on scope and standards of inspections.
Further, warrantless inspections were not necessary to serve an
important governmental interest, inasmuch as most businesses would
consent to inspection and it was not inconvenient to require OSHA to
resort to an administrative warrant in order to inspect sites where
consent was refused.\72\
\71\436 U.S. 307 (1978). Dissenting, Justice Stevens, with
Justices Rehnquist and Blackmun, argued that not the warrant clause but
the reasonableness clause should govern administrative inspections. Id.
at 325.
\72\Administrative warrants issued on the basis of less than
probable cause but only on a showing that a specific business had been
chosen for inspection on the basis of a general administrative plan
would suffice. Even without a necessity for probable cause, the
requirement would assure the interposition of a neutral officer to
establish that the inspection was reasonable and was properly
authorized. Id. at 321, 323. The dissenters objected that the warrant
clause was being constitutionally diluted. Id. at 325. Administrative
warrants were approved also in Camara v. Municipal Court, 387 U.S. 523,
538 (1967). Previously, one of the reasons given for finding
administrative and noncriminal inspections not covered by the Fourth
Amendment was the fact that the warrant clause would be as rigorously
applied to them as to criminal searches and seizures. Frank v. Maryland,
359 U.S. 360, 373 (1959). See also Almeida-Sanchez v. United States, 413
U.S. 266, 275 (1973) (Justice Powell concurring) (suggesting a similar
administrative warrant procedure empowering police and immigration
officers to conduct roving searches of automobiles in areas near the
Nation's borders); id. at 270 n.3 (indicating that majority Jusitces
were divided on the validity of such area search warrants); id. at 288
(dissenting Justice White indicating approval); United States v.
Martinez-Fuerte, 428 U.S. 543, 547 n.2, 562 n.15 (1976).
---------------------------------------------------------------------------
In Donovan v. Dewey,\73\ however, Barlow's was substantially
limited and a new standard emerged permitting extensive governmental
inspection of commercial property,\74\ absent warrants. Under the
Federal Mine Safety and Health Act, governing underground and surface
mines (including stone quarries), federal officers are directed to
inspect underground mines at least four times a year and surface mines
at least twice a year, pursuant to extensive regulations as to standards
of safety. The statute specifically provides for absence of advanced
notice and requires the Secretary of Labor to institute court actions
for injunctive and other relief in
[[Page 1213]]
cases in which inspectors are denied admission. Sustaining the statute,
the Court proclaimed that government had a ``greater latitude'' to
conduct warrantless inspections of commercial property than of homes,
because of ``the fact that the expectation of privacy that the owner of
commercial property enjoys in such property differs significantly from
the sanctity accorded an individual's home, and that this privacy
interest may, in certain circumstances, be adequately protected by
regulatory schemes authorizing warrantless inspections.''\75\
\73\452 U.S. 594 (1981).
\74\There is no suggestion that warrantless inspections of homes
is broadened. Id. at 598, or that warrantless entry under exigent
circumstances is curtailed. See, e.g., Michigan v. Tyler, 436 U.S. 499
(1978) (no warrant required for entry by firefighters to fight fire;
once there, firefighters may remain for reasonable time to investigate
the cause of the fire).
\75\Donovan v. Dewey, 452 U.S. 594, 598-99 (1981).
---------------------------------------------------------------------------
Dewey was distinguished from Barlow's in several ways. First,
Dewey involved a single industry, unlike the broad coverage in Barlow's.
Second, the OSHA statute gave minimal direction to inspectors as to
time, scope, and frequency of inspections, while FMSHA specified a
regular number of inspections pursuant to standards. Third, deference
was due Congress' determination that unannounced inspections were
necessary if the safety laws were to be effectively enforced. Fourth,
FMSHA provided businesses the opportunity to contest the search by
resisting in the civil proceeding the Secretary had to bring if consent
was denied.\76\ The standard of a long tradition of government
supervision permitting warrantless inspections was dispensed with,
because it would lead to ``absurd results,'' in that new and emerging
industries posing great hazards would escape regulation.\77\ Dewey
suggests, therefore, that warrantless inspections of commercial
establishments are permissible so long as the legislature carefully
drafts its statute.
\76\Id. at 596-97, 604-05. Pursuant to the statute, however, the
Secretary has promulgated regulations providing for the assessment of
civil penalties for denial of entry and Dewey had been assessed a
penalty of $1,000. Id. at 597 n.3. It was also true in Barlow's that the
Government resorted to civil process upon refusal to admit. 436 U.S. at
317 & n.12.
\77\Donovan v. Dewey, 452 U.S. 594, 606 (1981). Duration of
regulation will now be a factor in assessing the legitimate expectation
of privacy of a business. Ibid. Accord, New York v. Burger, 482 U.S. 691
(1987) (although duration of regulation of vehicle dismantling was
relatively brief, history of regulation of junk business generally was
lengthy, and current regulation of dismantling was extensive).
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Dewey was applied in New York v. Burger\78\ to inspection of
automobile junkyards and vehicle dismantling operations, a situation
where there is considerable overlap between administrative and penal
objectives. Applying the Dewey three-part test, the Court concluded that
New York has a substantial interest in stemming the tide of automobile
thefts, that regulation of vehicle dismantling reasonably serves that
interest, and that statutory safeguards provided adequate substitute for
a warrant requirement. The Court rejected the suggestion that the
warrantless inspection provisions
[[Page 1214]]
were designed as an expedient means of enforcing the penal laws, and
instead saw narrower, valid regulatory purposes to be served: e.g.,
establishing a system for tracking stolen automobiles and parts, and
enhancing the ability of legitimate businesses to compete. ``[A] State
can address a major social problem both by way of an administrative
scheme and through penal sanctions,'' the Court declared; in such
circumstances warrantless administrative searches are permissible in
spite of the fact that evidence of criminal activity may well be
uncovered in the process.\79\
\78\482 U.S. 691 (1987).
\79\482 U.S. at 712 (emphasis original).
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In other contexts, the Court has also elaborated the
constitutional requirements affecting administrative inspections and
searches. Thus, in Michigan v. Tyler,\80\ it subdivided the process by
which an investigation of the cause of a fire may be conducted. Entry to
fight the fire is, of course, an exception based on exigent
circumstances, and no warrant or consent is needed; firemen on the scene
may seize evidence relating to the cause under the plain view doctrine.
Additional entries to investigate the cause of the fire must be made
pursuant to warrant procedures governing administrative searches.
Evidence of arson discovered in the course of such an administrative
inspection is admissible at trial, but if the investigator finds
probable cause to believe that arson has occurred and requires further
access to gather evidence for a possible prosecution, he must obtain a
criminal search warrant.\81\
\80\436 U.S. 499 (1978).
\81\The Court also held that, after the fire was extinguished,
if fire investigators were unable to proceed at the moment, because of
dark, steam, and smoke, it was proper for them to leave and return at
daylight without any necessity of complying with its mandate for
administrative or criminal warrants. Id. at 510-11. But cf. Michigan v.
Clifford, 464 U.S. 287 (1984) (no such justification for search of
private residence begun at 1:30 p.m. when fire had been extinguished at
7 a.m.).
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One curious case has approved a system of ``home visits'' by
welfare caseworkers, in which the recipients are required to admit the
worker or lose eligibility for benefits.\82\
\82\Wyman v. James, 400 U.S. 309 (1971). It is not clear what
rationale the majority utilized. It appears to have proceeded on the
assumption that a ``home visit'' was not a search and that the Fourth
Amendment does not apply when criminal prosecution is not threatened.
Neither premise is valid under Camara and its progeny, although Camara
preceded Wyman. Presumably, the case would today be analyzed under the
expectation of privacy/need/structural protection theory of the more
recent cases.
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In addition, there are now a number of situations, some of them
analogous to administrative searches, where ```special needs' beyond
normal law enforcement . . . justify departures from the usual warrant
and probable cause requirements.''\83\ In one of these
[[Page 1215]]
cases the Court, without acknowledging the magnitude of the leap from
one context to another, has taken the Dewey/Burger rationale--developed
to justify warrantless searches of business establishments--and applied
it to justify the significant intrusion into personal privacy
represented by urinalysis drug testing. Because of the history of
pervasive regulation of the railroad industry, the Court reasoned,
railroad employees have a diminished expectation of privacy that makes
mandatory urinalysis less intrusive and more reasonable.\84\
\83\Griffin v. Wisconsin, 483 U.S. 868, 873 (1987)
(administrative needs of probation system justify warrantless searches
of probationers' homes on less than probable cause); Hudson v. Palmer,
468 U.S. 517, 526 (1984) (no Fourth Amendment protection from search of
prison cell); New Jersey v. T.L.O., 469 U.S. 325 (1985) (simple
reasonableness standard governs searches of students' persons and
effects by public school authorities); O'Connor v. Ortega, 480 U.S. 709
(1987) (reasonableness test for work-related searches of employees'
offices by government employer); Skinner v. Railway Labor Executives'
Ass'n, 489 U.S. 602 (1989) (neither probable cause nor individualized
suspicion is necessary for mandatory drug testing of railway employees
involved in accidents or safety violations). All of these cases are
discussed infra under the general heading ``Valid Searches and Seizures
Without Warrants.''
\84\Skinner, supra n.83, 489 U.S. at 627.
---------------------------------------------------------------------------
With respect to automobiles, the holdings are mixed. Random
stops of automobiles to check drivers' licenses, vehicle registrations,
and safety conditions were condemned as too intrusive; the degree to
which random stops would advance the legitimate governmental interests
involved did not outweigh the individual's legitimate expectations of
privacy.\85\ On the other hand, in South Dakota v. Opperman,\86\ the
Court sustained the admission of evidence found when police impounded an
automobile from a public street for multiple parking violations and
entered the car to secure and inventory valuables for safekeeping.
Marijuana was discovered in the glove compartment.
\85\Delaware v. Prouse, 440 U.S. 648 (1979). Standards applied
in this case had been developed in the contexts of automobile stops at
fixed points or by roving patrols in border situations. Almeida-Sanchez
v. United States, 413 U.S. 266 (1973); United States v. Brignoni-Ponce,
422 U.S. 873 (1975); United States v. Ortiz, 422 U.S. 891 (1975); United
States v. Martinez-Fuerte, 428 U.S. 543 (1976).
\86\428 U.S. 364 (1976). See also Cady v. Dombrowski, 413 U.S.
433 (1973) (sustaining admission of criminal evidence found when police
conducted a warrantless search of an out-of-state policeman's automobile
following an accident, in order to find and safeguard his service
revolver). The Court in both cases emphasized the reduced expectation of
privacy in automobiles and the noncriminal purposes of the searches.
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FOURTH AMENDMENT
SEARCH AND SEIZURE
Searches and Seizures Pursuant to Warrant
Emphasis upon the necessity of warrants places the judgment of
an independent magistrate between law enforcement officers and the
privacy of citizens, authorizes invasion of that privacy only upon a
showing that constitutes probable cause, and limits that invasion by
specification of the person to be seized, the place to be
[[Page 1216]]
searched, and the evidence to be sought.\87\ While a warrant is issued
ex parte, its validity may be contested in a subsequent suppression
hearing if incriminating evidence is found and a prosecution is
brought.\88\
\87\While the exceptions may be different as between arrest
warrants and search warrants, the requirements for the issuance of the
two are the same. Aguilar v. Texas, 378 U.S. 108, 112 n.3 (1964). Also,
the standards by which the validity of warrants are to be judged are the
same, whether federal or state officers are involved. Ker v. California,
374 U.S. 23 (1963).
\88\Most often, in the suppression hearings, the defendant will
challenge the sufficiency of the evidence presented to the magistrate to
constitute probable cause. Spinelli v. United States, 393 U.S. 410
(1969); United States v. Harris, 403 U.S. 573 (1971). He may challenge
the veracity of the statements used by the police to procure the warrant
and otherwise contest the accuracy of the allegations going to establish
probable cause, but the Court has carefully hedged his ability to do so.
Franks v. Delaware, 438 U.S. 154 (1978). He may also question the power
of the official issuing the warrant, Coolidge v. New Hampshire, 403 U.S.
443, 449-53 (1971), or the specificity of the particularity required.
Marron v. United States, 275 U.S. 192 (1927).
---------------------------------------------------------------------------
Issuance by Neutral Magistrate.--In numerous cases, the Court
has referred to the necessity that warrants be issued by a ``judicial
officer'' or a ``magistrate.''\89\ ``The point of the Fourth Amendment,
which often is not grasped by zealous officers, is not that it denies
law enforcement the support of the usual inferences which reasonable men
draw from evidence. Its protection consists in requiring that those
inferences be drawn by a neutral and detached magistrate instead of
being judged by the officer engaged in the often competitive enterprise
of ferreting out crime. Any assumption that evidence sufficient to
support a magistrate's disinterested determination to issue a search
warrant will justify the officers in making a search without a warrant
would reduce the Amendment to a nullity and leave the people's homes
secure only in the discretion of police officers.''\90\ These cases do
not mean that only a judge or an official who is a lawyer may issue
warrants, but they do stand for two tests of the validity of the power
of the issuing party to so act. ``He must be neutral and detached, and
he must be capable of determining whether probable cause exists for the
requested arrest or search.''\91\ The first test cannot be met when the
issuing party is himself engaged in law enforcement activities,\92\
[[Page 1217]]
but the Court has not required that an issuing party have that
independence of tenure and guarantee of salary which characterizes
federal judges.\93\ And in passing on the second test, the Court has
been essentially pragmatic in assessing whether the issuing party
possesses the capacity to determine probable cause.\94\
\89\United States v. Lefkowitz, 285 U.S. 452, 464 (1932);
Giordenello v. United States, 357 U.S. 480, 486 (1958); Jones v. United
States, 362 U.S. 257, 270 (1960); Katz v. United States, 389 U.S. 347,
356 (1967); United States v. United States District Court, 407 U.S. 297,
321 (1972); United States v. Chadwick, 433 U.S. 1, 9 (1977); Lo-Ji Sales
v. New York, 442 U.S. 319, 326 (1979).
\90\Johnson v. United States, 333 U.S. 10, 13-14 (1948).
\91\Shadwick v. City of Tampa, 407 U.S. 345, 354 (1972).
\92\Coolidge v. New Hampshire, 403 U.S. 443, 449-51 (1971)
(warrant issued by state attorney general who was leading investigation
and who as a justice of the peace was authorized to issue warrants);
Mancusi v. DeForte, 392 U.S. 364, 370-72 (1968) (subpoena issued by
district attorney could not qualify as a valid search warrant); Lo-Ji
Sales v. New York, 442 U.S. 319 (1979) (justice of the peace issued
open-ended search warrant for obscene materials, accompanied police
during its execution, and made probable cause determinations at the
scene as to particular items).
\93\Jones v. United States, 362 U.S. 257, 270-71 (1960)
(approving issuance of warrants by United States Commissioners, many of
whom were not lawyers and none of whom had any guarantees of tenure and
salary); Shadwick v. City of Tampa, 407 U.S. 345 (1972) (approving
issuance of arrest warrants for violation of city ordinances by city
clerks who were assigned to and supervised by municipal court judges).
The Court reserved the question ``whether a State may lodge warrant
authority in someone entirely outside the sphere of the judicial branch.
Many persons may not qualify as the kind of `public civil officers' we
have come to associate with the term `magistrate.' Had the Tampa clerk
been entirely divorced from a judicial position, this case would have
presented different considerations.'' Id. at 352.
\94\Id. at 350-54 (placing on defendant the burden of
demonstrating that the issuing official lacks capacity to determine
probable cause). See also Connally v. Georgia, 429 U.S. 245 (1977)
(unsalaried justice of the peace who receives a sum of money for each
warrant issued but nothing for reviewing and denying a warrant not
sufficiently detached).
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Probable Cause.--The concept of ``probable cause'' is central to
the meaning of the warrant clause. Neither the Fourth Amendment nor the
federal statutory provisions relevant to the area define ``probable
cause;'' the definition is entirely a judicial construct. An applicant
for a warrant must present to the magistrate facts sufficient to enable
the officer himself to make a determination of probable cause. ``In
determining what is probable cause . . . [w]e are concerned only with
the question whether the affiant had reasonable grounds at the time of
his affidavit . . . for the belief that the law was being violated on
the premises to be searched; and if the apparent facts set out in the
affidavit are such that a reasonably discreet and prudent man would be
led to believe that there was a commission of the offense charged, there
is probable cause justifying the issuance of a warrant.''\95\ Probable
cause is to be determined according to ``the factual and practical
considerations of everyday life on which reasonable and prudent men, not
legal technicians, act.''\96\ Warrants are favored in the law and
utilization of them will not be thwarted by a hypertechnical reading of
the sup
[[Page 1218]]
porting affidavit and supporting testimony.\97\ For the same reason,
reviewing courts will accept evidence of a less ``judicially competent
or persuasive character than would have justified an officer in acting
on his own without a warrant.''\98\ Courts will sustain the
determination of probable cause so long as ``there was substantial basis
for [the magistrate] to conclude that'' there was probable cause.\99\
\95\Dumbra v. United States, 268 U.S. 435, 439, 441 (1925).
``[T]he term `probable cause'. . . means less than evidence which would
justify condemnation.'' Lock v. United States, 11 U.S. (7 Cr.) 339, 348
(1813). See Steele v. United States, 267 U.S. 498, 504-05 (1925). It may
rest upon evidence which is not legally competent in a criminal trial,
Draper v. United States, 358 U.S. 307, 311 (1959), and it need not be
sufficient to prove guilt in a criminal trial. Brinegar v. United
States, 338 U.S. 160, 173 (1949). See United States v. Ventresca, 380
U.S. 102, 107-08 (1965).
\96\Brinegar v. United States, 338 U.S. 160, 175 (1949).
\97\United States v. Ventresca, 380 U.S. 102, 108-09 (1965).
\98\Jones v. United States, 362 U.S. 257, 270-71 (1960).
\99\Aguilar v. Texas, 378 U.S. 108, 111 (1964). It must be
emphasized that the issuing party ``must judge for himself the
persuasiveness of the facts relied on by a [complainant] to show
probable cause.'' Giordenello v. United States, 357 U.S. 480, 486
(1958). An insufficient affidavit cannot be rehabilitated by testimony
after issuance concerning information possessed by the affiant but not
disclosed to the magistrate. Whiteley v. Warden, 401 U.S. 560 (1971).
---------------------------------------------------------------------------
Much litigation has concerned the sufficiency of the complaint
to establish probable cause. Mere conclusory assertions are not
enough.\100\ In United States v. Ventresca,\101\ however, an affidavit
by a law enforcement officer asserting his belief that an illegal
distillery was being operated in a certain place, explaining that the
belief was based upon his own observations and upon those of fellow
investigators, and detailing a substantial amount of these personal
observations clearly supporting the stated belief, was held to be
sufficient to constitute probable cause. ``Recital of some of the
underlying circumstances in the affidavit is essential,'' the Court
said, observing that ``where these circumstances are detailed, where
reason for crediting the source of the information is given, and when a
magistrate has found probable cause,'' the reliance on the warrant
process should not be deterred by insistence on too stringent a
showing.\102\
\100\Byars v. United States, 273 U.S. 28 (1927) (affiant stated
he ``has good reason to believe and does believe'' that defendant has
contraband materials in his possession); Giordenello v. United States,
357 U.S. 480 (1958) (complainant merely stated his conclusion that
defendant had committed a crime). See also Nathanson v. United States,
290 U.S. 41 (1933).
\101\380 U.S. 102 (1965).
\102\Id. at 109.
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Requirements for establishing probable cause through reliance on
information received from an informant has divided the Court in several
cases. Although involving a warrantless arrest, Draper v. United
States\103\ may be said to have begun the line of cases. A previously
reliable, named informant reported to an officer that the defendant
would arrive with narcotics on a particular train, and described the
clothes he would be wearing and the bag he
[[Page 1219]]
would be carrying; the informant, however, gave no basis for his
information. FBI agents met the train, observed that the defendant fully
answered the description, and arrested him. The Court held that the
corroboration of part of the informer's tip established probable cause
to support the arrest. A case involving a search warrant, Jones v.
United States,\104\ apparently utilized a test of considering the
affidavit as a whole to see whether the tip plus the corroborating
information provided a substantial basis for finding probable cause, but
the affidavit also set forth the reliability of the informer and
sufficient detail to indicate that the tip was based on the informant's
personal observation. Aguilar v. Texas\105\ held insufficient an
affidavit which merely asserted that the police had ``reliable
information from a credible person'' that narcotics were in a certain
place, and held that when the affiant relies on an informant's tip he
must present two types of evidence to the magistrate. First, the
affidavit must indicate the informant's basis of knowledge--the
circumstances from which the informant concluded that evidence was
present or that crimes had been committed--and, second, the affiant must
present information which would permit the magistrate to decide whether
or not the informant was trustworthy. Then, in Spinelli v. United
States,\106\ the Court applied Aguilar in a situation in which the
affidavit contained both an informant's tip and police information of a
corroborating nature.
\103\358 U.S. 307 (1959). For another case applying essentially
the same probable cause standard to warrantless arrests as govern
arrests by warrant, see McCray v. Illinois, 386 U.S. 300 (1967)
(informant's statement to arresting officers met Aguilar probable cause
standard). See also Whitely v. Warden, 401 U.S. 560, 566 (1971)
(standards must be ``at least as stringent'' for warrantless arrest as
for obtaining warrant).
\104\362 U.S. 257 (1960).
\105\378 U.S. 108 (1964).
\106\393 U.S. 410 (1969). Both concurring and dissenting
Justices recognized tension between Draper and Aguilar. See id. at 423
(Justice White concurring), id. at 429 (Justice Black dissenting and
advocating the overruling of Aguilar).
---------------------------------------------------------------------------
The Court rejected the ``totality'' test derived from Jones and
held that the informant's tip and the corroborating evidence must be
separately considered. The tip was rejected because the affidavit
contained neither any information which showed the basis of the tip nor
any information which showed the informant's credibility. The
corroborating evidence was rejected as insufficient because it did not
establish any element of criminality but merely related to details which
were innocent in themselves. No additional corroborating weight was due
as a result of the bald police assertion that defendant was a known
gambler, although the tip related to gambling. Returning to the totality
test, however, the Court in United States v. Harris\107\ approved a
warrant issued largely on an informer's tip that over a two-year period
he had purchased illegal whiskey from the defendant at the defendant's
residence, most re
[[Page 1220]]
cently within two weeks of the tip. The affidavit contained rather
detailed information about the concealment of the whiskey, and asserted
that the informer was a ``prudent person,'' that defendant had a
reputation as a bootlegger, that other persons had supplied similar
information about him, and that he had been found in control of illegal
whiskey within the previous four years. The Court determined that the
detailed nature of the tip, the personal observation thus revealed, and
the fact that the informer had admitted to criminal behavior by his
purchase of whiskey were sufficient to enable the magistrate to find him
reliable, and that the supporting evidence, including defendant's
reputation, could supplement this determination.
\107\403 U.S. 573 (1971). See also Adams v. Williams, 407 U.S.
143, 147 (1972) (approving warrantless stop of motorist based on
informant's tip that ``may have been insufficient'' under Aguilar and
Spinelli as basis for warrant).
---------------------------------------------------------------------------
The Court expressly abandoned the two-part Aguilar-Spinelli test
and returned to the ``totality of the circumstances'' approach to
evaluate probable cause based on an informant's tip in Illinois v.
Gates.\108\ The main defect of the two-part test, Justice Rehnquist
concluded for the Court, was in treating an informant's reliability and
his basis for knowledge as independent requirements. Instead, ``a
deficiency in one may be compensated for, in determining the overall
reliability of a tip, by a strong showing as to the other, or by some
other indicia of reliability.''\109\ In evaluating probable cause,
``[t]he task of the issuing magistrate is simply to make a practical,
commonsense decision whether, given all the circumstances set forth in
the affidavit before him, including the `veracity' and `basis of
knowledge' of persons supplying hearsay information, there is a fair
probability that contraband or evidence of a crime will be found in a
particular place.''\110\
\108\462 U.S. 213 (1983) (Justice Rehnquist's opinion of the
Court was joined by Chief Justice Burger and by Justices Blackmun,
Powell, and O'Connor. Justices Brennan, Marshall, and Stevens dissented.
\109\462 U.S. at 213.
\110\462 U.S. at 238.
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Particularity.--``The requirement that warrants shall
particularily describe the things to be seized makes general searches
under them impossible and prevents the seizure of one thing under a
warrant describing another. As to what is to be taken, nothing is left
to the discretion of the officer executing the warrant.''\111\ This
requirement thus acts to limit the scope of the search, inasmuch as the
executing officers should be limited to
[[Page 1221]]
looking in places where the described object could be expected to be
found.\112\
\111\Marron v. United States, 275 U.S. 192, 196 (1927). See
Stanford v. Texas, 379 U.S. 476 (1965). Of course, police who are
lawfully on the premises pursuant to a warrant may seize evidence of
crime in ``plain view'' even if that evidence is not described in the
warrant. Coolidge v. New Hampshire, 403, U.S. 443, 464-71 (1971).
\112\``This Court has held in the past that a search which is
reasonable at its inception may violate the Fourth Amendment by virtue
of its intolerable intensity and scope. Kremen v. United States, 353
U.S. 346 (1957); Go-Bart Importing Co. v. United States, 282 U.S. 344,
356-58 (1931); see United States v. Di Re, 332 U.S. 581, 586-87 (1948).
The scope of the search must be `strictly tied to and justified by' the
circumstances which rendered its initiation permissible. Warden v.
Hayden, 387 U.S. 294, 310 (1967) (Mr. Justice Fortas concurring); see,
e.g., Preston v. United States, 376 U.S. 364, 367-368 (1964); Agnello v.
United States, 296 U.S. 20, 30-31 (1925).'' Terry v. Ohio, 392 U.S. 1,
18-19, (1968). See also Andresen v. Maryland, 427 U.S. 463, 470-82
(1976), and id. at 484, 492-93 (Justice Brennan dissenting). In Stanley
v. Georgia, 394 U.S. 557, 569 (1969), Justices Stewart, Brennan, and
White would have based decision on the principle that a valid warrant
for gambling paraphernalia did not authorize police upon discovering
motion picture films in the course of the search to project the films to
learn their contents.
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First Amendment Bearing on Probable Cause and Particularity.--
Where the warrant process is used to authorize seizure of books and
other items entitled either to First Amendment protection or to First
Amendment consideration, the Court has required government to observe
more exacting standards than in other cases.\113\ Seizure of materials
arguably protected by the First Amendment is a form of prior restraint
that requires strict observance of the Fourth Amendment. At a minimum, a
warrant is required, and additional safeguards may be required for
large-scale seizures. Thus, in Marcus v. Search Warrant,\114\ the
seizure of 11,000 copies of 280 publications pursuant to warrant issued
ex parte by a magistrate who had not examined any of the publications
but who had relied on the conclusory affidavit of a policeman was
voided. Failure to scrutinize the materials and to particularize the
items to be seized was deemed inadequate, and it was further noted that
police ``were provided with no guide to the exercise of informed
discretion, because there was no step in the procedure before seizure
designed to focus searchingly on the question of obscenity.''\115\ A
state procedure which was designed to comply with Marcus by the
presentation of copies of books to be seized to the magistrate for his
scrutiny prior to issuance of a warrant was nonetheless found inadequate
by a plurality of the Court, which concluded that ``since the warrant
here authorized the sheriff to seize all copies of the specified titles,
and since [appellant] was not afforded a hearing on the question of the
obscenity even of the seven novels [seven of 59 listed titles were
reviewed by the magistrate] before the warrant issued, the procedure was
. . . constitutionally
[[Page 1222]]
deficient.''\116\ Confusion remains, however, about the necessity for
and the character of prior adversary hearings on the issue of obscenity.
In a later decision the Court held that, with adequate safeguards, no
pre-seizure adversary hearing on the issue of obscenity is required if
the film is seized not for the purpose of destruction as contraband (the
purpose in Marcus and A Quantity of Books), but instead to preserve a
copy for evidence.\117\ It is constitutionally permissible to seize a
copy of a film pursuant to a warrant as long as there is a prompt post-
seizure adversary hearing on the obscenity issue. Until there is a
judicial determination of obscenity, the Court advised, the film may
continue to be exhibited; if no other copy is available either a copy of
it must be made from the seized film or the film itself must be
returned.\118\
\113\Marcus v. Search Warrant, 367 U.S. 717, 730-31 (1961);
Stanford v. Texas, 379 U.S. 476, 485 (1965).
\114\367 U.S. 717 (1961). See Kingsley Books v. Brown, 354 U.S.
436 (1957).
\115\Marcus v. Search Warrant, 367 U.S. 717, 732 (1961).
\116\A Quantity of Books v. Kansas, 378 U.S. 205, 210 (1964).
\117\Heller v. New York, 413 U.S. 483 (1973).
\118\Id. at 492-93. But cf. New York v. P.J. Video, Inc., 475
U.S. 868, 875 n.6 (1986), rejecting the defendant's assertion, based on
Heller, that only a single copy rather than all copies of allegedly
obscene movies should have been seized pursuant to warrant.
---------------------------------------------------------------------------
The seizure of a film without the authority of a
constitutionally sufficient warrant is invalid; seizure cannot be
justified as incidental to arrest, inasmuch as the determination of
obscenity may not be made by the officer himself.\119\ Nor may a warrant
issue based ``solely on the conclusory assertions of the police officer
without any inquiry by the [magistrate] into the factual basis for the
officer's conclusions.''\120\ Instead, a warrant must be ``supported by
affidavits setting forth specific facts in order that the issuing
magistrate may `focus searchingly on the question of obscenity.'''\121\
This does not mean, however, that a higher standard of probable cause is
required in order to obtain a warrant to seize materials protected by
the First Amendment. ``Our reference in Roaden to a `higher hurdle . . .
of reasonableness' was not intended to establish a `higher' standard of
probable cause for the issuance of a warrant to seize books or films,
but instead related to the more basic requirement, imposed by that
decision, that the police not rely on the `exigency' exception to the
Fourth Amendment warrant requirement, but instead obtain a warrant from
a magistrate . . . .'''\122\
\119\Roaden v. Kentucky, 413 U.S. 496 (1973). See also Lo-Ji
Sales v. New York, 442 U.S. 319 (1979); Walter v. United States, 447
U.S. 649 (1980). These special constraints are inapplicable when obscene
materials are purchased, and there is consequently no Fourth Amendment
search or seizure. Maryland v. Macon, 472 U.S. 463 (1985).
\120\Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 637 (1968)
(per curiam).
\121\New York v. P.J. Video, Inc., 475 U.S. 868, 873-74 (1986)
(quoting Marcus v. Search Warrant, 367 U.S. 717, 732 (1961)).
\122\New York v. P.J. Video, Inc., 475 U.S. 868, 875 n.6 (1986).
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[[Page 1223]]
In Stanford v. Texas,\123\ a seizure of more than 2,000 books,
pamphlets, and other documents pursuant to a warrant which merely
authorized the seizure of books, pamphlets, and other written
instruments ``concerning the Communist Party of Texas'' was voided.
``[T]he constitutional requirement that warrants must particularly
describe the `things to be seized' is to be accorded the most scrupulous
exactitude when the `things' are books, and the basis for their seizure
is the ideas which they contain. . . . No less a standard could be
faithful to First Amendment freedoms.''\124\
\123\379 U.S. 476 (1965).
\124\Id. at 485-86. See also Marcus v. Search Warrant, 367 U.S.
717, 723 (1961).
---------------------------------------------------------------------------
However, the First Amendment does not bar the issuance or
execution of a warrant to search a newsroom to obtain photographs of
demonstrators who had injured several policemen, although the Court
appeared to suggest that a magistrate asked to issue such a warrant
should guard against interference with press freedoms through limits on
type, scope, and intrusiveness of the search.\125\
\125\Zurcher v. Stanford Daily, 436 U.S. 547 (1978). See id. at
566 (containing suggestion mentioned in text), and id. at 566 (Justice
Powell concurring) (more expressly adopting that position). In the
Privacy Protection Act, Pub. L. No. 96-440, 94 Stat. 1879 (1980), 42
U.S.C. Sec. 2000aa, Congress provided extensive protection against
searches and seizures not only of the news media and news people but
also of others engaged in disseminating communications to the public,
unless there is probable cause to believe the person protecting the
materials has committed or is committing the crime to which the
materials relate.
---------------------------------------------------------------------------
Property Subject to Seizure.--There has never been any doubt
that search warrants could be issued for the seizure of contraband and
the fruits and instrumentalities of crime.\126\ But in Gouled v. United
States,\127\ a unanimous Court limited the classes of property subject
to seizures to these three and refused to permit a seizure of ``mere
evidence,'' in this instance defendant's papers which were to be used as
evidence against him at trial. The Court recognized that there was ``no
special sanctity in papers, as distinguished from other forms of
property, to render them immune from search and seizure,''\128\ but
their character as evidence rendered them immune. This immunity ``was
based upon the dual, related premises that historically the right to
search for and seize property depended upon the assertion by the
Government of a valid claim of superior interest, and that it was not
enough that the purpose of the search and seizure was to obtain evidence
to use in appre
[[Page 1224]]
hending and convicting criminals.''\129\ More evaded than followed, the
``mere evidence'' rule was overturned in 1967.\130\ It is now settled
that such evidentiary items as fingerprints,\131\ blood,\132\ urine
samples,\133\ fingernail and skin scrapings,\134\ voice and handwriting
exemplars,\135\ conversations,\136\ and other demonstrative evidence may
be obtained through the warrant process or without a warrant where
``special needs'' of government are shown.\137\
\126\United States v. Lefkowitz, 285 U.S. 452, 465-66 (1932). Of
course, evidence seizable under warrant is subject to seizure without a
warrant in circumstances in which warrantless searches are justified.
\127\255 U.S. 298 (1921). United States v. Lefkowitz, 285 U.S.
452 (1932), applied the rule in a warrantless search of premises. The
rule apparently never applied in case of a search of the person. Cf.
Schmerber v. California, 384 U.S. 757 (1966).
\128\Gouled v. United States, 255 U.S. 298, 306 (1921).
\129\Warden v. Hayden, 387 U.S. 294, 303 (1967). See Gouled v.
United States, 255 U.S. 298, 309 (1921). The holding was derived from
dicta in Boyd v. United States, 116 U.S. 616, 624-29 (1886).
\130\Warden v. Hayden, 387 U.S. 294 (1967). Justice Douglas
dissented, wishing to retain the rule, id. at 312, and Justice Fortas
with Chief Justice Warren concurred in the result while apparently
wishing to retain the rule in warrant cases. Id. at 310, 312.
\131\Davis v. Mississippi, 394 U.S. 721 (1969).
\132\Schmerber v. California, 384 U.S. 757 (1966). Skinner v.
Railway Labor Executives' Ass'n, 489 U.S. 602 (1989) (warrantless blood
testing for drug use by railroad employee involved in accident).
\133\Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602
(1989) (warrantless drug testing of railroad employee involved in
accident).
\134\Cupp v. Murphy, 412 U.S. 291 (1973) (sustaining warrantless
taking of scrapings from defendant's fingernails at the stationhouse, on
the basis that it was a very limited intrusion and necessary to preserve
evanescent evidence).
\135\United States v. Dionisio, 410 U.S. 1 (1973); United States
v. Mara, 410 U.S. 19 (1973) (both sustaining grand jury subpoenas to
produce voice and handwriting exemplars; no reasonable expectation of
privacy with respect to those items).
\136\Berger v. New York, 388 U.S. 41, 44 n.2 (1967). See also
id. at 97 n.4, 107-08 (Justices Harlan and White concurring), 67
(Justice Douglas concurring).
\137\Another important result of Warden v. Hayden is that third
parties not suspected of culpability in crime are subject to the
issuance and execution of warrants for searches and seizures of
evidence. Zurcher v. Stanford Daily, 436 U.S. 547, 553-60 (1978).
Justice Stevens argued for a stiffer standard for issuance of warrants
to nonsuspects, requiring in order to invade their privacy a showing
that they would not comply with a less intrusive method, such as a
subpoena. Id. at 577 (dissenting).
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However, some medically assisted bodily intrusions have been
held impermissible, e.g., forcible administration of an emetic to induce
vomiting,\138\ and surgery under general anesthetic to remove a bullet
lodged in a suspect's chest.\139\ Factors to be weighed in determining
which medical tests and procedures are reasonable include the extent to
which the procedure threatens the individual's safety or health, ``the
extent of the intrusion upon the individual's dignitary interests in
personal privacy and bodily integrity,'' and the importance of the
evidence to the prosecution's case.\140\
\138\Rochin v. California, 342 U.S. 165 (1952).
\139\Winston v. Lee, 470 U.S. 753 (1985).
\140\Winston v. Lee, 470 U.S. 753, 761-63 (1985). Chief Justice
Burger concurred on the basis of his reading of the Court's opinion ``as
not preventing detention of an individual if there are reasonable
grounds to believe that natural bodily functions will disclose the
presence of contraband materials secreted internally.'' id. at at 767.
Cf. United States v. Montoya de Hernandez, 473 U.S. 531 (1985).
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[[Page 1225]]
In Warden v. Hayden,\141\ Justice Brennan for the Court
cautioned that the items there seized were not ```testimonial' or
`communicative' in nature, and their introduction therefore did not
compel respondent to become a witness against himself in violation of
the Fifth Amendment. . . . This case thus does not require that we
consider whether there are items of evidential value whose very nature
precludes them from being the object of a reasonable search and
seizure.'' This merging of Fourth and Fifth Amendment considerations
derived from Boyd v. United States,\142\ the first case in which the
Supreme Court considered at length the meaning of the Fourth Amendment.
Boyd was a quasi-criminal proceeding for the forfeiture of goods alleged
to have been imported in violation of law, and concerned a statute which
authorized court orders to require defendants to produce any document
which might ``tend to prove any allegation made by the United
States.''\143\ That there was a self-incrimination problem the entire
Court was in agreement, but Justice Bradley for a majority of the
Justices also utilized the Fourth Amendment.
\141\387 U.S. 294, 302-03 (1967). Seizure of a diary was at
issue in Hill v. California, 401 U.S. 797, 805 (1971), but it had not
been raised in the state courts and was deemed waived.
\142\116 U.S. 616 (1886).
\143\Act of June 22, 1874, Sec. 5, 18 Stat. 187.
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While the statute did not authorize a search but instead
compulsory production, the Justice concluded that the law was well
within the restrictions of the search and seizure clause.\144\ With this
point established, the Justice relied on Lord Camden's opinion in Entick
v. Carrington\145\ for the proposition that seizure of items to be used
as evidence only was impermissible. Justice Bradley announced that the
``essence of the offence'' committed by the Government against Boyd ``is
not the breaking of his doors, and the rummaging of his drawers . . .
but it is the invasion of his indefeasible right of personal security,
personal liberty and private property. . . . Breaking into a house and
opening boxes and drawers are circumstances of aggravation; but any
forcible and compulsory extortion of a man's own testimony or of his
private papers to be used as evidence to convict him of crime or to
forfeit his goods, is within the condemnation of that judgment. In this
regard the Fourth and Fifth Amendments run almost into each
other.''\146\
\144\Boyd v. United States, 116 U.S. 616, 622 (1886).
\145\Howell's State Trials 1029, 95 Eng. Rep. 807 (1765).
\146\Boyd v. United States, 116 U.S. 616, 630 (1886).
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While it may be doubtful that the equation of search warrants
with subpoenas and other compulsory process ever really amounted
[[Page 1226]]
to much of a limitation,\147\ the present analysis of the Court
dispenses with any theory of ``convergence'' of the two Amendments.\148\
Thus, in Andresen v. Maryland,\149\ police executed a warrant to search
defendant's offices for specified documents pertaining to a fraudulent
sale of land, and the Court sustained the admission of the papers
discovered as evidence at his trial. The Fifth Amendment was
inapplicable, the Court held, because there had been no compulsion of
defendant to produce or to authenticate the documents.\150\ As for the
Fourth Amendment, inasmuch as the ``business records'' seized were
evidence of criminal acts, they were properly seizable under the rule of
Warden v. Hayden; the fact that they were ``testimonial'' in nature,
records in the defendant's handwriting, was irrelevant.\151\
Acknowledging that ``there are grave dangers inherent in executing a
warrant authorizing a search and seizure of a person's papers,'' the
Court's response was to observe that while some ``innocuous documents''
would have to be examined to ascertain which papers were to be seized,
authorities, just as with electronic ``seizures'' of conversations,
``must take care to assure that they are conducted in a manner that
minimizes unwarranted intrusions upon privacy.''\152\
\147\E.g., Oklahoma Press Pub Co. v. Walling, 327 U.S. 186, 209-
09 (1946).
\148\Andresen v. Maryland, 427 U.S. 463 (1976); Fisher v. United
States, 425 U.S. 391, 405-14 (1976). Fisher states that ``the precise
claim sustained in Boyd would now be rejected for reasons not there
considered.'' Id. at 408.
\149\427 U.S. 463 (1976).
\150\Id. at 470-77.
\151\Id. at 478-84.
\152\Id. at 482 n.11. Minimization, as required under federal
law, has not proved to be a significant limitation. Scott v. United
States, 425 U.S. 917 (1976).
---------------------------------------------------------------------------
Although Andresen was concerned with business records, its
discussion seemed equally applicable to ``personal'' papers, such as
diaries and letters, as to which a much greater interest in privacy most
certainly exists. The question of the propriety of seizure of such
papers continues to be the subject of reservation in opinions,\153\ but
it is far from clear that the Court would accept any such exception
should the issue be presented.\154\
\153\E.g., United States v. Miller, 425 U.S. 435, 440, 444
(1976); Fisher v. United States, 425 U.S. 391, 401 (1976); California
Bankers Ass'n v. Shultz, 416 U.S. 21, 78-79 (1974) (Justice Powell
concurring).
\154\See Note, Formalism, Legal Realism, and Constitutionally
Protected Privacy Under the Fourth and Fifth Amendments, 90 Harv. L.
Rev. 945 (1977).
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Execution of Warrants.--The manner of execution of warrants is
generally governed by statute and rule, as to time of execution,\155\
method of entry, and the like. It was a rule at common law
[[Page 1227]]
that before an officer could break and enter he must give notice of his
office, authority, and purpose and must in effect be refused
admittance,\156\ and until recently this has been a statutory
requirement in the federal system\157\ and generally in the States. In
Ker v. California,\158\ the Court considered the rule of announcement as
a constitutional requirement, although a majority there found
circumstances justifying entry without announcement. Recent federal laws
providing for the issuance of warrants authorizing in certain
circumstances ``no-knock'' entries to execute warrants will no doubt
present the Court with opportunities to explore the configurations of
the rule of announcement.\159\ A statute regulating the expiration of a
warrant and issuance of another ``should be liberally construed in favor
of the individual.''\160\ Similarly, inasmuch as the existence of
probable cause must be established by fresh facts, so the execution of
the warrant should be done in timely fashion so as to ensure so far as
possible the continued existence of probable cause.\161\
\155\Rule 41(c), Federal Rules of Criminal Procedure, provides,
inter alia, that the warrant shall command its execution in the daytime,
unless the magistrate ``for reasonable cause shown'' directs in the
warrant that it be served at some other time. See Jones v. United
States, 357 U.S. 493, 498-500 (1958); Gooding v. United States, 416 U.S.
430 (1974). The rule is more relaxed for narcotics cases. 21 U.S.C.
Sec. 879(a).
\156\Semayne's Case, 5 Coke's Rep. 91a, 77 Eng. Rep. 194 (K.B.
1604).
\157\18 U.S.C. Sec. 3109. See Miller v. United States, 357 U.S.
301 (1958); Wong Sun v. United States, 371 U.S. 471 (1963).
\158\374 U.S. 23 (1963). Ker was an arrest warrant case, but no
reason appears for differentiating search warrants. Eight Justices
agreed that federal standards should govern and that the rule of
announcement was of constitutional stature, but they divided 4-to-4
whether entry in this case had been pursuant to a valid exception.
Justice Harlan who had dissented from the federal standards issue joined
the four finding a justifiable exception to carry the result.
\159\In narcotics cases, magistrates are authorized to issue
``no-knock'' warrants if they find there is probable cause to believe
(1) the property sought may, and if notice is given, will be easily and
quickly destroyed or (2) giving notice will endanger the life or safety
of the executing officer or another person. 21 U.S.C. Sec. 879(b). See
also D.C. Code, Sec. 23-591.
\160\Sgro v. United States, 287 U.S. 206 (1932).
\161\Id.
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In executing a warrant for a search of premises and of named
persons on the premises, police officers may not automatically search
someone else found on the premises.\162\ If they can articulate some
reasonable basis for fearing for their safety they may conduct a
``patdown'' of the person, but in order to search they must have
probable cause particularized with respect to that person. However, in
Michigan v. Summers,\163\ the Court held that officers arriving to
execute a warrant for the search of a house could detain, without being
required to articulate any reasonable basis and necessarily therefore
without probable cause, the owner or occupant of the house, whom they
encountered on the front porch
[[Page 1228]]
leaving the premises. Applying its intrusiveness test,\164\ the Court
determined that such a detention, which was ``substantially less
intrusive'' than an arrest, was justified because of the law enforcement
interests in minimizing the risk of harm to officers, facilitating entry
and conduct of the search, and preventing flight in the event
incriminating evidence is found.\165\ Also, under some circumstances
officers may search premises on the mistaken but reasonable belief that
the premises are described in an otherwise valid warrant.\166\
\162\Ybarra v. Illinois, 444 U.S. 85 (1979) (patron in a bar),
relying on and reaffirming United States v. Di Re, 332 U.S. 581 (1948)
(occupant of vehicle may not be searched merely because there are
grounds to search the automobile).
\163\452 U.S. 692 (1981).
\164\Supra, p.1208. See Michigan v. Summers, 452 U.S. 692, 696-
701 (1981).
\165\Id. at 701-06. Ybarra was distinguished on the basis of its
greater intrusiveness and the lack of sufficient connection with the
premises. Id. at 695 n.4. By the time Summers was searched, police had
probable cause to do so. Id. at 695. The warrant here was for
contraband, id. at 701, and a different rule possibly may apply with
respect to warrants for other evidence.
\166\Maryland v. Garrison, 480 U.S. 79 (1987) (officers
reasonably believed there was only one ``third floor apartment'' in city
row house when in fact there were two).
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Although for purposes of execution, as for many other matters,
there is little diffence between search warrants and arrest warrants,
one notable difference is that the possession of a valid arrest warrant
cannot authorize authorities to enter the home of a third party looking
for the person named in the warrant; in order to do that, they need a
search warrant signifying that a magistrate has determined that there is
probable cause to believe the person named is on the premises.\167\
\167\Steagald v. United States, 451 U.S. 204 (1981). An arrest
warrant is a necessary and sufficient authority to enter a suspect's
home to arrest him. Payton v. New York, 445 U.S. 573 (1980).
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FOURTH AMENDMENT
SEARCH AND SEIZURE
Valid Searches and Seizures Without Warrants
While the Supreme Court stresses the importance of warrants and
has repeatedly referred to searches without warrants as
``exceptional,''\1\ it appears that the greater number of searches, as
well as the vast number of arrests, take place without warrants. The
Reporters of the American Law Institute Project on a Model Code of Pre-
Arraignment Procedure have noted ``their conviction that, as a practical
matter, searches without warrant and incidental to arrest have been up
to this time, and may remain, of greater practical importance'' than
searches pursuant to warrants. ``[T]he evidence on hand . . . compel[s]
the conclusion that searches under warrants have played a comparatively
minor part in law enforcement, except in connection with narcotics and
gambling laws.''\2\
[[Page 1229]]
Nevertheless, the Court frequently asserts that ``the most basic
constitutional rule in this area is that `searches 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
specially established and well-delineated exceptions.''\3\ The
exceptions are said to be ``jealously and carefully drawn,''\4\ and
there must be ``a showing by those who seek exemption . . . that the
exigencies of the situation made that course imperative.''\5\ While the
record does indicate an effort to categorize the exceptions, the number
and breadth of those exceptions have been growing.
\1\E.g., Johnson v. United States, 333 U.S. 10, 14 (1948);
McDonald v. United States, 335 U.S. 451, 453 (1948); Camara v. Municipal
Court, 387 U.S. 523, 528-29 (1967); G.M. Leasing Corp. v. United States,
429 U.S. 338, 352-53, 355 (1977).
\2\American Law Institute, A Model Code of Pre-Arraignment
Procedure, Tent. Draft No. 3 (Philadelphia: 1970), xix.
\3\Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971)
(quoting Katz v. United States, 389 U.S. 347, 357 (1967)); G.M. Leasing
Corp. v. United States, 429 U.S. 338, 352-53, 358 (1977).
\4\Jones v. United States, 357 U.S. 493, 499 (1958).
\5\McDonald v. United States, 335 U.S. 451, 456 (1948). In
general, with regard to exceptions to the warrant clause, conduct must
be tested by the reasonableness standard enunciated by the first clause
of the Amendment, Terry v. Ohio, 392 U.S. 1, 20 (1968), and the Court's
development of its privacy expectation tests, supra, pp.1206-09,
substantially changed the content of that standard.
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Detention Short of Arrest: Stop-and-Frisk.--Arrests are subject
to the requirements of the Fourth Amendment, but the courts have
followed the common law in upholding the right of police officers to
take a person into custody without a warrant if they have probable cause
to believe that the person to be arrested has committed a felony or has
committed a misdemeanor in their presence.\6\ The probable cause is, of
course, the same standard required to be met in the issuance of an
arrest warrant, and must be satisfied by conditions existing prior to
the policeman's stop, what is discovered thereafter not sufficing to
establish retroactively reasonable cause.\7\ There are, however,
instances when a policeman's suspicions will have been aroused by
someone's conduct or manner, but probable cause for placing such a
person under arrest will be lacking.\8\ In Terry v. Ohio,\9\ the Court
almost unanimously approved an on-the-street investigation by a police
officer which involved ``patting down'' the subject of the investigation
for weapons.
\6\United States v. Watson, 423 U.S. 411 (1976). See supra,
p.1209.
\7\Henry v. United States, 361 U.S. 98 (1959); Johnson v. United
States, 333 U.S. 10, 16-17 (1948); Sibron v. New York, 392 U.S. 40, 62-
63 (1968).
\8\``The police may not arrest upon mere suspicion but only on
`probable cause.''' Mallory v. United States, 354 U.S. 449, 454 (1957).
\9\392 U.S. 1 (1968). Only Justice Douglas dissented. Id. at 35.
---------------------------------------------------------------------------
The case arose when a police officer observed three individuals
engaging in conduct which appeared to him, on the basis of training and
experience, to be the ``casing'' of a store for a likely armed robbery;
upon approaching the men, identifying himself, and not receiving prompt
identification, the officer seized one of the men,
[[Page 1230]]
patted the exterior of his clothes, and discovered a gun. Chief Justice
Warren for the Court wrote that the Fourth Amendment was applicable to
the situation, applicable ``whenever a police officer accosts an
individual and restrains his freedom to walk away.''\10\ Since the
warrant clause is necessarily and practically of no application to the
type of on-the-street encounter present in Terry, the Chief Justice
continued, the question was whether the policeman's actions were
reasonable. The test of reasonableness in this sort of situation is
whether the police officer can point to ``specific and articulable facts
which, taken together with rational inferences from those facts,'' would
lead a neutral magistrate on review to conclude that a man of reasonable
caution would be warranted in believing that possible criminal behavior
was at hand and that both an investigative stop and a ``frisk'' was
required.\11\ Inasmuch as the conduct witnessed by the policeman
reasonably led him to believe that an armed robbery was in prospect, he
was as reasonably led to believe that the men were armed and probably
dangerous and that his safety required a ``frisk.'' Because the object
of the ``frisk'' is the discovery of dangerous weapons, ``it must
therefore be confined in scope to an intrusion reasonably designed to
discover guns, knives, clubs, or other hidden instruments for the
assault of the police officer.''\12\
\10\Id. at 16. See id. at 16-20.
\11\Id. at 20, 21, 22.
\12\Id. at 23-27, 29. See also Sibron v. New York, 392 U.S. 40
(1968) (after policeman observed defendant speak with several known
narcotics addicts, he approached him and placed his hand in defendant's
pocket, thus discovering narcotics; impermissible, because he lacked
reasonable basis for frisk and in any event his search exceeded
permissible scope of weapons frisk); Adams v. Williams, 407 U.S. 143
(1972) (acting on tip that defendant was sitting in his car with
narcotics and firearm, police approached, asked defendant to step out,
and initiated frisk and discovered weapon when he merely rolled window
down; justifiable); Pennsylvania v. Mimms, 434 U.S. 106 (1977) (after
validly stopping car, officer required defendant to get out of car,
observed bulge under his jacket, and frisked him and seized weapon;
while officer did not suspect driver of crime or have an articulable
basis for safety fears, safety considerations justified his requiring
driver to leave car).
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Terry did not pass on a host of problems, including the grounds
that could permissibly lead an officer to momentarily stop a person on
the street or elsewhere in order to ask questions rather than frisk for
weapons, the right of the stopped individual to refuse to cooperate, and
the permissible response of the police to that refusal. Following that
decision, the standard for stops for investigative purposes evolved into
one of ``reasonable suspicion of criminal activity.'' That test permits
some stops and questioning without probable cause in order to allow
police officers to explore the foun
[[Page 1231]]
dations of their suspicions.\13\ While not elaborating a set of rules
governing the application of the tests, the Court was initially
restrictive in recognizing permissible bases for reasonable
suspicion.\14\ Extensive instrusions on individual privacy, e.g.,
transportation to the stationhouse for interrogation and fingerprinting,
were invalidated in the absence of probable cause.\15\ More recently,
however, the Court has taken less restrictive approaches.\16\
\13\In United States v. Cortez, 449 U.S. 411 (1981), a unanimous
Court attempted to capture the ``elusive concept'' of the basis for
permitting a stop. Officers must have ``articulable reasons'' or
``founded suspicions,'' derived from the totality of the circumstances.
``Based upon that whole picture the detaining officer must have a
particularized and objective basis for suspecting the particular person
stopped of criminal activity.'' Id. at 417-18. The inquiry is thus quite
fact-specific. In the anonymous tip context, the same basic approach
requiring some corroboration applies regardless of whether the standard
is probable cause or reasonable suspicion; the difference is that less
information, or less reliable information, can satisfy the lower
standard. Alabama v. White, 496 U.S. 325 (1990).
\14\E.g., Brown v. Texas, 443 U.S. 47 (1979) (individual's
presence in high crime area gave officer no articulable basis to suspect
him of crime); Delaware v. Prouse, 440 U.S. 648 (1979) (reasonable
suspicion of a license or registration violation is necessary to
authorize automobile stop; random stops impermissible); United States v.
Brignoni-Ponce, 422 U.S. 873 (1975) (officers could not justify random
automobile stop solely on basis of Mexican appearance of occupants);
Reid v. Georgia, 448 U.S. 438 (1980) (no reasonable suspicion for
airport stop based on appearance that suspect and another passenger were
trying to conceal the fact that they were travelling together). But cf.
United States v. Martinez-Fuerte, 428 U.S. 543 (1976) (halting vehicles
at fixed checkpoints to question occupants as to citizenship and
immigration status permissible, even if officers should act on basis of
appearance of occupants).
\15\Davis v. Mississippi, 394 U.S. 721 (1969); Dunaway v. New
York, 442 U.S. 200 (1979).
\16\See, e.g., United States v. Hensley, 469 U.S. 221 (1985)
(reasonable suspicion to stop a motorist may be based on a ``wanted
flyer'' as long as issuance of the flyer has been based on reasonable
suspicion); United States v. Sokolow, 490 U.S. 1, (1989) (airport stop
based on drug courier profile may rely on a combination of factors that
individually may be ``quite consistent with innocent travel'').
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It took the Court some time to settle on a test for when a
``seizure'' has occurred, and the Court has recently modified its
approach. The issue is of some importance, since it is at this point
that Fourth Amendment protections take hold. The Terry Court recognized
in dictum that ``not all personal intercourse between policemen and
citizens involves `seizures' of persons,'' and suggested that ``[o]nly
when the officer, by means of physical force or show of authority, has
in some way restrained the liberty of a citizen may we conclude that a
`seizure' has occurred.''\17\ Years later Justice Stewart proposed a
similar standard, that a person has been seized ``only if, in view of
all of the circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave.''\18\ This reasonable
perception standard was subse
[[Page 1232]]
quently endorsed by a majority of Justices,\19\ and was applied in
several cases in which admissibility of evidence turned on whether a
seizure of the person not justified by probable cause or reasonable
suspicion had occurred prior to the uncovering of the evidence. No
seizure occurred, for example, when INS agents seeking to identify
illegal aliens conducted work force surveys within a garment factory;
while some agents were positioned at exits, others systematically moved
through the factory and questioned employees.\20\ This brief
questioning, even with blocked exits, amounted to ``classic consensual
encounters rather than Fourth Amendment seizures.''\21\ The Court also
ruled that no seizure had occurred when police in a squad car drove
alongside a suspect who had turned and run down the sidewalk when he saw
the squad car approach. Under the circumstances (no siren, flashing
lights, display of a weapon, or blocking of the suspect's path), the
Court concluded, the police conduct ``would not have communicated to the
reasonable person an attempt to capture or otherwise intrude upon
[one's] freedom of movement.''\22\
\17\392 U.S. at 19, n.16.
\18\United States v. Mendenhall, 446 U.S. 544, 554 (1980).
\19\See, e.g., Florida v. Royer, 460 U.S. 491 (1983), in which
there was no opinion of the Court, but in which the test was used by the
plurality of four, id. at 502, and also endorsed by dissenting Justice
Blackmun, id. at 514.
\20\INS v. Delgado, 466 U.S. 210 (1984).
\21\Id. at 221.
\22\Michigan v. Chesternut, 486 U.S. 567, 575 (1988).
---------------------------------------------------------------------------
Soon thereafter, however, the Court departed from the Mendenhall
reasonable perception standard and adopted a more formalistic approach,
holding that an actual chase with evident intent to capture did not
amount to a ``seizure'' because the suspect did not comply with the
officer's order to halt. Mendenhall, said the Court in California v.
Hodari D., stated a ``necessary'' but not a ``sufficient'' condition for
a seizure of the person through show of authority.\23\ A Fourth
Amendment ``seizure'' of the person, the Court determined, is the same
as a common law arrest; there must be either application of physical
force (or the laying on of hands), or submission to the assertion of
authority.\24\ Indications are, however, that Hodari D. does not signal
the end of the reasonable perception standard, but merely carves an
exception applicable to chases and perhaps other encounters between
suspects and police.
\23\499 U.S. 621, 628 (1991). As in Michigan v. Chesternut,
supra n.22, the suspect dropped incriminating evidence while being
chased.
\24\Adherence to this approach would effectively nullify the
Court's earlier position that Fourth Amendment protections extend to
``seizures that involve only a brief detention short of traditional
arrest.'' United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975),
quoted in INS v. Delgado, 466 U.S., 210, 215 (1984).
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Later in the same term the Court ruled that the Mendenhall
``free-to-leave'' inquiry was misplaced in the context of a police
[[Page 1233]]
sweep of a bus, but that a modified reasonable perception approach still
governed.\25\ In conducting a bus sweep, aimed at detecting illegal
drugs and their couriers, police officers typically board a bus during a
stopover at a terminal and ask to inspect tickets, identification, and
sometimes luggage of selected passengers. The Court did not focus on
whether an ``arrest'' had taken place, as adherence to the Hodari D.
approach would have required, but instead suggested that the appropriate
inquiry is ``whether a reasonable person would feel free to decline the
officers' requests or otherwise terminate the encounter.''\26\ ``When
the person is seated on a bus and has no desire to leave,'' the Court
explained, ``the degree to which a reasonable person would feel that he
or she could leave is not an accurate measure of the coercive effect of
the encounter.''\27\
\25\Florida v. Bostick, (1991).
\26\Id. at 2387.
\27\Id. The Court asserted that the case was ``analytically
indistinguishable from Delgado. Like the workers in that case [subjected
to the INS ``survey'' at their workplace], Bostick's freedom of movement
was restricted by a factor independent of police conduct--i.e., by his
being a passenger on a bus.'' Id.
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A Terry search need not be limited to a stop and frisk of the
person, but may extend as well to a protective search of the passenger
compartment of a car if an officer possesses ``a reasonable belief,
based on specific and articulable facts . . . that the suspect is
dangerous and . . . may gain immediate control of weapons.''\28\ How
lengthy a Terry detention may be varies with the circumstances. In
approving a 20-minute detention of a driver made necessary by the
driver's own evasion of drug agents and a state police decision to hold
the driver until the agents could arrive on the scene, the Court
indicated that it is ``appropriate to examine whether the police
diligently pursued a means of investigation that was likely to confirm
or dispel their suspicions quickly, during which time it was necessary
to detain the defendant.''\29\
\28\Michigan v. Long, 463 U.S. 1032 (1983) (suspect appeared to
be under the influence of drugs, officer spied hunting knife exposed on
floor of front seat and searched remainder of passenger compartment).
Similar reasoning has been applied to uphold a ``protective sweep'' of a
home in which an arrest is made if arresting officers have a reasonable
belief that the area swept may harbor another individual posing a danger
to the officers or to others. Maryland v. Buie, 494 U.S. 325 (1990).
\29\United States v. Sharpe, 470 U.S. 675, 686 (1985). A more
relaxed standard has been applied to detention of travelers at the
border, the Court testing the reasonableness in terms of ``the period of
time necessary to either verify or dispel the suspicion.'' United States
v. Montoya de Hernandez, 473 U.S. 531, 544 (1985) (approving warrantless
detention for more than 24 hours of traveler suspected of alimentary
canal drug smuggling).
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Similar principles govern detention of luggage at airports in
order to detect the presence of drugs; Terry ``limitations applicable to
investigative detentions of the person should define the permissible
scope of an investigative detention of the person's luggage on
[[Page 1234]]
less than probable cause.''\30\ The general rule is that ``when an
officer's observations lead him reasonably to believe that a traveler is
carrying luggage that contains narcotics, the principles of Terry . . .
would permit the officer to detain the luggage briefly to investigate
the circumstances that aroused his suspicion, provided that the
investigative detention is properly limited in scope.''\31\ Seizure of
luggage for an expeditious ``canine sniff'' by a dog trained to detect
narcotics can satisfy this test even though seizure of luggage is in
effect detention of the traveler, since the procedure results in
``limited disclosure,'' impinges only slightly on a traveler's privacy
interest in the contents of personal luggage, and does not constitute a
search within the meaning of the Fourth Amendment.\32\ By contrast,
taking a suspect to an interrogation room on grounds short of probable
cause, retaining his air ticket, and retrieving his luggage without his
permission taints consent given under such circumstances to open the
luggage, since by then the detention had exceeded the bounds of a
permissible Terry investigative stop and amounted to an invalid
arrest.\33\ But the same requirements for brevity of detention and
limited scope of investigation are apparently inapplicable to border
searches of international travelers, the Court having approved a 24-hour
detention of a traveler suspected of smuggling drugs in her alimentary
canal.\34\
\30\United States v. Place, 462 U.S. 696, 709 (1983).
\31\Id. at 706.
\32\462 U.S. at 707. However, the search in Place was not
expeditious, and hence exceeded Fourth Amendment bounds, when agents
took 90 minutes to transport luggage to another airport for
administration of the canine sniff.
\33\Florida v. Royer, 460 U.S. 491 (1983). On this much the
plurality opinion of Justice White (id. at 503), joined by three other
Justices, and the concurring opinion of Justice Brennan (id. at 509)
were in agreement.
\34\United States v. Montoya de Hernandez, 473 U.S. 531 (1985).
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Search Incident to Arrest.--The common-law rule permitting
searches of the person of an arrestee as an incident to the arrest has
occasioned little controversy in the Court.\35\ The dispute has centered
around the scope of the search. Since it was the stated general rule
that the scope of a warrantless search must be strictly tied to and
justified by the circumstances which rendered its justification
permissible, and since it was the rule that the justification of a
search of the arrestee was to prevent destruction of evidence and to
prevent access to a weapon,\36\ it was argued to the court that a search
of the person of the defendant arrested for a traffic offense, which
discovered heroin in a crumpled cigarette package, was impermissible,
inasmuch as there could have been no
[[Page 1235]]
destructible evidence relating to the offense for which he was arrested
and no weapon could have been concealed in the cigarette package. The
Court rejected this argument, ruling that ``no additional
justification'' is required for a custodial arrest of a suspect based on
probable cause.\37\
\35\Weeks v. United States, 232 U.S. 383, 392 (1914); Carroll v.
United States, 267 U.S. 132, 158 (1925); Agnello v. United States, 269
U.S. 20, 30 (1925).
\36\Terry v. Ohio, 392 U.S. 1, 19 (1968); Chimel v. California,
395 U.S. 752, 762, 763 (1969).
\37\United States v. Robinson, 414 U.S. 218, 235 (1973). See
also id. at 237-38 (Justice Powell concurring). The Court applied the
same rule in Gustafson v. Florida, 414 U.S. 260 (1973), involving a
search of a motorist's person following his custodial arrest for an
offense for which a citation would normally have issued. Unlike the
situation in Robinson, police regulations did not require the Gustafson
officer to take the suspect into custody, nor did a departmental policy
guide the officer as to when to conduct a full search. The Court found
these differences inconsequential, and left for another day the problem
of pretextual arrests in order to obtain basis to search. Soon
thereafter, the Court upheld conduct of a similar search at the place of
detention, even after a time lapse between the arrest and search. United
States v. Edwards, 415 U.S. 800 (1974).
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However, the Justices have long found themselves embroiled in
argument about the scope of the search incident to arrest as it extends
beyond the person to the area in which the person is arrested, most
commonly either his premises or his vehicle. Certain early cases went
both ways on the basis of some fine distinctions,\38\ but in Harris v.
United States,\39\ the Court approved a search of a four-room apartment
pursuant to an arrest under warrant for one crime and in which the
search turned up evidence of another crime. A year later, in Trupiano v.
United States,\40\ a raid on a distillery resulted in the arrest of a
man found on the premises and a seizure of the equipment; the Court
reversed the conviction because the officers had had time to obtain a
search warrant and had not done so. ``A search or seizure without a
warrant as an incident to a lawful arrest has always been considered to
be a strictly limited right. It grows out of the inheren |