CONDUCTING CONSTITUTIONAL SEARCHES

Chapter 10

Tenets of 4th Amendment Search Analysis

Cases involving the 4th Amendment begin with two basic questions:

1. Have the fundamental constitutional rules been met?

2. Does the search fit within one of the permissible realms?

Tenets of 4th Amendment Search Analysis

What are the fundamental rules?1. There must be governmental action2. The person making the challenge must have

standing, that is, the conduct violates the challenger’s reasonable expectation of privacy a situation in which (1) a person has exhibited

actual (subjective) expectation of privacy and (2) that expectation is one that society is prepared to recognize as reasonable

Often an implied right that falls within the shadow of other specified rights (penumbra)

3. General searches are unlawful and restrict government from going beyond what is necessary

The Scope of Searches

Unrestrained general searches offend our sense of justice

All searches must be limited in scope General searches are unconstitutional

and never legal

The Scope of Searches

Marron v. United States (1927) “The requirements that the warrants shall

particularly describe the things to be seized makes general searches under tem impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left o the discretion of the officer executing the warrant.”

Can’t look for an elephant in a matchbox!

Searches with a Warrant

All searches with a warrant must be based on: Probable cause Supported by oath and affirmation Particularly describing the place to be

searched, and The persons or things to be seized

Executing the Warrant

After officers have obtained their search warrant they must execute it in a timely manner

They must not use excessive force to execute the warrant

There is limited authority to detain the occupants of the premises during the search

Conducting the Search

Officers can only search the areas where they reasonably believe the specified items might be found

If the warrant states only one specific item be sought, once it is located, the search must end

Officers often are protected with qualified immunity Exemption of a public official from civil liability for

actions performed during the course of his or her job unless they violate a “clearly established” constitutional or statutory right

Conducting the Search

The government can also seize any contraband or other evidence of a crime found during a search with a warrant, even though it was not specified Contraband is anything that is illegal for

people to own or have in their possession The contraband does not need to be

described in the warrant or be related to the crime described in the warrant Plain view doctrine

Administrative Warrants

Allows civil inspections of private property to determine compliance with government rules, regulations and city ordinances Examples include fire building codes

These can also be obtained so government agents can conduct routine inspections when occupants refuse their entry

Administrative Warrants

United States v. Biswell (1972) The Supreme Court reversed a court or

appeals ruling that disallowed a warrantless search of a gun shop’s locked storeroom, which netted illegal firearms

Inspections pertaining to the sale of illegal firearms are justified and that limited threats such as this inspection to the gun dealer’s expectation of privacy are reasonable

Searches without a Warrant

The 4th Amendment prefers a warrant because it necessitates judicial review of government action

The Supreme Court has defined some searches without a warrant to be reasonable under the 4th Amendment guidelines: Consent search, frisks, plain feel/plain view,

incident to arrest, automobile exception, exigent circumstances, open fields, abandoned property and public places

Searches with Consent

If an individual gives voluntary consent for the police to search, the police may so without a warrant

Any evidence found will be admissible in court

The person may revoke the search at anytime

Searches with Consent

Only the person whose constitutional rights might be threatened by a search can give consent

4th Amendment rights are specific to the person and may not be raised on behalf of someone else or in some abstract, theoretical way

Consent to search an individual must be given by that individual

Searches with Consent

United States v. Matlock (1974) Consent to search any property must be

given by the actual owner If more than one persons owns a property, only

one needs to give permission In some instances, someone else can

give consent Parent/child, employer/employee,

host/guest, spouses

Searches with Consent

Georgia v. Randolph (2006) When both occupants are present and one

objects to a search, the other cannot “override” the co-occupants refusal

Illinois v. Rodriguez (1990) There is not 4th Amendment violation if

the police reasonably believed at the time of their entry that the third party possessed the authority to consent

Searches with Consent

Examples of instances when individuals cannot give valid consent to search: Landlord/tenant

Even though the landlord is the legal owner, they lack the authority to offer consent to a search of a tenant’s premises or a seizure of the tenant’s property

Hotel employee/hotel guest Supreme Court extended the principles above

to hotel employees as well Only the tenant or hotel guest can give consent

Searches with Consent

State v. Barlow, Jr. (1974) A consent to search is unreasonable under

the 4th Amendment if the consent was induced by deceit, trickery, or misrepresentation of the officials making the search

Failure to give consent cannot be used to establish probable cause

Searches with Consent

Weeds v. United States (1921) Police confronted the defendant with drawn

guns and a riot gun and said they would get a warrant if they needed

The Court said consent given under these conditions was not free and voluntary

People v. Loria (1961) Police threatening to kick down the door of

the defendant’s apartment if they did not let them in, was not free and voluntary

Searches with Consent

Consent to search must be voluntary The search must be limited to the

area specified by the person granting the permission

The person may revoke the consent at any time

Searches with Consent

Courts typically justify the consent exception by two separate tests: Voluntariness test-

The consent was obtained without coercion or promises and was reasonable

Considers the totality of the circumstances to determine is the consent was voluntary

Waiver test- Citizens may consent to waive their 4th

Amendment rights, but only if they do so voluntarily, knowingly, and intentionally

Searches with Consent

Although consent may be revoked at any time, if contraband was found before the revocation of consent, then

Probable cause to arrest that person may then exist and,

A search incident to arrest could ensue or,

The police might cease their search, secure the property, detain those present and seek a warrant

Frisks

If an officer suspects a person is presently armed and dangerous, a frisk may conducted without a warrant (Chapter 8)

A frisk is authorized by the circumstances of an investigative stop, only a limited pat-down of the detainee’s outer clothing for the officer’s safety is authorized

Factors contributing to the decision to frisk include: Suspect that flees A bulge in the clothing Suspect’s hand concealed in a pocket Being in a known high crime area and suspect

crime would likely involve a weapon

Frisks

Anything that reasonably feels like a weapon may then be removed and used as evidence against the person if it is contraband or other evidence

Plain feel is also considered acceptable in a frisk

Plain Feel/Plain Touch

Minnesota v. Dickerson (1993) The Court ruled that police do not need a

warrant to seize narcotics detected while frisking a suspect for concealed weapons

As long as the narcotics are instantly recognizable by plain feel or plain touch

Ultimately, if, in the lawful course of a frisk, officers feel something that training and experience causes them to believe is contraband, there is probable cause to expand the search and seize the object

Plain View Evidence

The plain view doctrine says that unconcealed evidence that officers see while engaged in a lawful activity may be seized and is admissible in court For example, if a government official is

invited into a person’s home, and the officer sees illegal drugs on the table, the drugs can be seized

Plain View Evidence

Technology is impacting 4th Amendment case law

Thermal imaging devices Kyllo v. United States (2001)

Was a search warrant needed for police to scan a home from the street and compare that infrared image to other buildings?

This action is considered a search under the Fourth Amendment and requires a warrant

Searches Incident to Lawful Arrest Once a person has been lawfully taken

into custody by the police, U.S. law recognizes the necessity of permitting a complete search for two reasons:1. Officer safety2. Evidence and other contraband should be

recovered

Searches Incident to Lawful Arrest Chimel v. California (1969)

Searches after an arrest must be immediate and must be limited to the area within the person’s wingspan The area within a person’s reach or immediate

control

Schmerber v. California (1966) Absent the exigent circumstances, a search

intrusive as drawing blood would not be permissible without a warrant

Searches Incident to Lawful Arrest Commonwealth v. Tarver (1975)

Seizures of items from the body like hair samples or finger nail clippings are allowed without a warrant incident to arrest if reasonable and painless procedures are used

Unites States v. Finley (2007) The numbers on a cell phone are

“searchable” incident to a lawful arrest

Searches Incident to Lawful Arrest The issue of remoteness may also

determine whether a search is unreasonable

United States v. Chadwick (1977) The Court held that a search of seized

luggage not immediately associated with the arrestee’s body or under his or her immediate control will not be allowed if that search is remote in time and place from the arrest and no emergency exists

Searches Incident to Lawful Arrest A protective sweep is a limited search

made in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene

Use of Force in Searching an Arrested Person

When government agents search a person incident to arrest, they may use as much force as reasonably necessary to Protect themselves, To prevent escape, Or the destruction or concealment of

evidence

The reasonableness of the police action determines the lawfulness of it

Searching People Other Than the Arrested Person Searches of people who accompany an

arrestee are limited to a frisk When the officers reasonably believe the

companion may be dangerous or might destroy evidence

They must also be in the immediate area of the arrest

The area of under the companion’s immediate control may also be searched

Searching the Vehicle of an Arrested Person

New York v. Belton (1981) Landmark case for the warrantless search

of a vehicle incident to arrest Court held that when an officer has made a

lawful custodial arrest of the occupant of an automobile, he may search the passenger compartment

He may also examine the contents of any containers found within the compartment

If the container is within reach of the arrestee, so also will containers in it be within his reach

Searching the Vehicle of an Arrested Person

Knowles v. Iowa (1998) Justification to conduct a warrantless

search of a vehicle is not present when the vehicle has been stopped for a traffic violation and the driver is merely issued a citation

Only a lawful custodial arrest justifies a warrantless search incident to arrest

Merely having probable cause to arrest, or issuing a citation when an actual arrest does not occur, does not justify a search

Inventory Searches

Suspects to be jailed are subjected to a warrantless search

This search serves two purposes:1. It protects the prisoner’s personal property

in that the property is all listed and then held in a safe place until the prisoner is released

2. It protects the officers and other prisoners and helps to ensure that no weapons or illegal drugs will be taken into the jail

An impounded vehicle can be inventoried for the same reasons

The Automobile Exception

This exception states that if a governmental agent has probable cause to believe the vehicle contains contraband or evidence or a crime, no warrant is needed

Why? Cars are mobile The time it would take to get a warrant, the

car, driver and contraband or evidence could be long gone

The Automobile Exception

Carroll v. United States (1925) Established that vehicles can be searched

without a warrant provided1. There is probable cause to believe the vehicle’s

contents violate the law2. The vehicle would be gone before a search

warrant could be obtained

For officer to search a vehicle without a warrant, the must have probable cause to believe that the vehicle contains contraband or evidence

The Automobile Exception

United States v. Ross (1982) “If probable cause justifies the search of a

lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search

United States v. Henry (1980) One the items are located, the search must

terminate While searching for such articles, the officer

discovers evidence of another crime, he can seize that evidence too

Inventory Searches of Impounded Vehicles

Police officer can legally tow and impound vehicles for many reasons

Once the vehicle is impounded, the police conduct an inventory search

Because the vehicle is in police custody, officers have a duty to assure personal property is accounted for

If contraband or evidence is found, it will be admissible in court

Inventory Searches of Impounded Vehicles

Colorado v. Bertine (1987) Required that police agencies to have a

policy mandating either that all containers be opened during such searches or that no containers be opened, leaving no room for officer discretion

Exigent Circumstances

The courts have recognized that sometimes situations will arise that reasonably require immediate action before evidence may be destroyed

These circumstances include: Danger or physical harm to officer or others Danger or destruction of evidence Driving while intoxicated Hot-pursuit situations Individuals requiring rescuing

Exigent Circumstances

Hot Pursuit Involve pursuit of a suspect into a place

that typically holds a reasonable expectation of privacy, such as one’s home

Must be immediate and continuous from the crime scene

Exigent Circumstances

Emergency Aid Doctrine Police may enter a home without a warrant

when they have an objectively reasonable basis for believing that an occupant is seriously injured or immediately threatened with injury

If police come across an unconscious person, they are obligated to search: The person’s pockets or purse for

Identification or medical information

Open Fields, Abandoned Property and Public Places The courts have extended the plain view

doctrine stating that anything held out to the public is not protected by the 4th Amendment because no reasonable expectation of privacy exists

Open Fields, Abandoned Property and Public Places “Open fields”- holds that land beyond

that normally associated with the use of that land, that is, undeveloped land, can be searched without a warrant ‘no trespassing” signs do not bar public

from viewing open fields, therefore the owner should have no expectation of privacy and the 4th Amendment does not apply

Open Fields, Abandoned Property and Public Places Curtilage- is the portion of property

generally associated with the common use of land Buildings, sheds, outhouses, and fenced-in

areas

Because there is a reasonable expectation of privacy within the curtilage, it is protected under the 4th Amendment

Open Fields, Abandoned Property and Public Places

California v. Ciraolo (1986) Police looking from the air into a suspect’s

backyard does not violate the 4th Amendment because it is open to public view from the air

After a person has discarded or abandoned property, they maintain no reasonable expectation of privacy Something thrown from a car, discarded

during a chase or even garbage disposed becomes abandoned property and police may inspect it without a warrant

Open Fields, Abandoned Property and Public Places

California v. Greenwood (1988) Warrantless search and seizure of trash left

curbside for collection in an area accessible by the public does not violate a person’s 4th Amendment right

United States v. Garcia (1994) A district court held that using a drug-detecting

dog in an Amtrak station did not violate the defendant’s 4th Amendment right because the defendant should have no expectation of privacy in the air surrounding his bags

Border Searches and Seizures Searches or persons, belongings and vehicles

at international borders are reasonable under the 4th Amendment

United States v. Montoya de Hernandez (1985) Routine searches at a U.S. international border

require no objective justification, probable cause or warrant

Quinones-Ruiz v. United States (1994) The border search exception applies equally to

persons entering or exiting the country

Border Searches and Seizures The Court has ruled that routine

searches at borders and at international airports are reasonable under the 4th Amendment

The farther a person gets from the border, the more traditional search and seizure requirements come back into play

Border Searches and Seizures People at airports are increasingly being

stopped because they fit a drug courier profile developed by the D.E.A.

There are seven characteristics:1. Arriving from a source city

2. Little or no luggage

3. Rapid turnaround on airplane trip

4. Use of assumed name

5. Possession of large amounts of cash

6. Cash purchase of ticket

7. Nervous appearance

Special Needs Searches

These are limited searches that the court considers reasonable because societal needs are thought to outweigh the individual’s normal expectation of privacy: Prison Probation and parole searches Drug testing for certain occupations Administrative searches of closely

regulated businesses Community caretaking searches Public school searches

Public School Searches

Most searches of students in public schools are conducted by school officials (government agents)

Officials may search a student (backpack) or locker without a warrant or probable cause if there is reasonable suspicion to suggest that contraband is present at the point to be searched

School officials have a responsibility to maintain a safe environment for students

Does not apply to adult students, dorm rooms, or private schools

Prison, Probation, and Parole Searches Prisoners have constitutional rights, but

they are limited Searches are a reasonable part of prison

life among inmates who have very little expectation of privacy

How the searches are carried out can conceivably challenge the reasonableness of the 4th Amendment

Prison, Probation, and Parole Searches

Moore v. People (1970) Court rules that searches conducted by

correctional personnel are not unreasonable as long as they are not for the purpose of harassing or humiliating the inmate in a cruel and unusual manner

Searches are also conducted on visitors, correctional officers and others as these individuals may smuggle contraband to inmates

Prison, Probation, and Parole Searches Turner v. Safley (1987)

Supreme Court ruled and upheld correctional policy allowing cross-gender searches

Jordan v. Gardner (1993) Female inmates subjected to unclothed

body searches by male officers had, in fact, been subjected to an unconstitutional search

Prison, Probation, and Parole Searches Not all people convicted of crimes

are sent to prison

Convicted criminals do not lose their rights entirely

Their rights are limited, but not forfeited

Prison, Probation, and Parole Searches Griffin v. Wisconsin (1987)

Supreme Court held that a probationer’s residence could be searched by a probation officer if there were reasonable grounds to believe contraband was present

People on probation have constitutional rights

Supreme Court affirmed that government actions must be reasonable

Prison, Probation, and Parole Searches United States v. Knights (2001)

Supreme Court addressed the constitutionality of whether a police officer could search a probationer’s home without probable cause or reasonable suspicion

The search was reasonable under the 4th Amendment because of the government’s interest in regulating and monitoring probationer’s behavior

Prison, Probation, and Parole Searches The Griffin and Knight cases make it

clear that individuals on parole or probation have a lesser reasonable expectation of privacy

Both cases involved searches based on reasonable grounds

Prison, Probation, and Parole Searches

United States v. Leonard (1991) Requiring a drug test of people on parole or

probation for drug offenses is reasonable

United States v. Thomas (1984) A parole officer was permitted to require the

client to remove his jacket to show fresh needle marks, with a subsequent search of his clothes netting drugs that were admissible as evidence

Both searches were also based on recognition that such searches were conditions of parole

Searches of Public Employee Work Areas

Employees have a degree of interest in retaining some privacy but it is lessened in the public workplace context

These searches only require reasonableness

Electronic Surveillance, Privacy Interests and the 4th Amendment

Olmstead v. United States (1928) Wiretapping was not a search within the meaning

of the 4th Amendment because neither was there physical invasion onto someone’s property nor was there a taking of tangible items

Katz v. United States (1967) Overturned Olmstead’s decision, holding that

such an intrusion into people’s lives does violate an expectation of privacy, and that a search had, indeed, occurred

Supreme Court agreed, holding that any form of electronic surveillance that violates a reasonable expectation of privacy constitutes a search

Electronic Surveillance, Privacy Interests and the 4th Amendment Electronic eavesdropping to searches of

people, their luggage, where they live, and their bodies, homes, hotel rooms, businesses, obtaining evidence from a person’s body (urine testing), or surgical removal of a bullet lodged within a person are all cases that have been held to constitute searches under the 4th Amendment

In each case, the person has a reasonable expectation of privacy

As such, a warrant is generally required

Electronic Surveillance, Privacy Interests and the 4th Amendment Title III of the Omnibus Crime Control and

Safe Streets Act of 1965 Prohibits the interception of phone conversations

unless one party to the conversation consents

To obtain an electronic-surveillance warrant, or wiretap order, probable cause that a person is engaging in particular communications must be established by the court, and normal investigative procedures must have already been tried

Electronic Surveillance, Privacy Interests and the 4th Amendment The application for such a warrant or

wiretap must be very detailed Included is why less intrusive means are not

practical Show that other investigative means have

been attempted The judge must find probable cause Is only effective for no more than 30 days Recording must be provided to the judge who

issued the order, who has control over them

Electronic Surveillance and the 4th Amendment The Supreme Court has ruled that the

expectation of privacy does not exist when someone voluntarily converses with someone else- “unreliable ear” exception

The Supreme Court has ruled that the expectation of privacy does not exist when someone converses in public because others may hear- “uninvited ear” exception

Electronic Surveillance and the 4th Amendment Title III also regulates use of

electronic devices to tap or intercept wire communications

These devices are legal under only two conditions:1. A court order authorizes the wiretap2. One person consents to the wiretap

The Electronic Communications Privacy Act Government does have an interest in ensuring

people’s privacy from others and thus they passed the Electronic Communications Privacy Act in 1986

Prohibits anyone from intentionally intercepting or endeavoring to intercept any wire, oral, or electronic communication by someone not a part of that communication

Cases are now heading to the courts that look at e-mail, texts, and other cell phone information retained by cellular companies and if they can be viewed without the permission of those sending and receiving them

Balancing Security Concerns with Privacy Interests Since 9/11, security concerns have

conflicted with privacy concerns

The use of GPS tracking has become an issue in several states

Cases are now being litigated throughout the country

Current Events

United States vs. Jones (2012)

Landmark ruling in applying the 4th Amendment protections to advances in surveillance technology

Prosecutors violated Jones’ rights when they attached a GPS device to his vehicle and monitored his movements for 28 days

Using GPS technology without a warrant is risky for law enforcement