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).
---------------------------------------------------------------------------
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'').
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------
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 inherent necessities of
the situation at the time of the arrest. But there must be something
more in the way of necessity than merely a lawful arrest.''\41\ This
decision was overruled in United States v. Rabinowitz,\42\ in which
officers arrested defendant in his one-room office pursuant to an arrest
warrant and proceeded to search the room completely. The Court observed
that the issue was not whether the officers had the time and opportunity
to obtain a search warrant but whether the search incident to arrest was
reasonable. Though Rabinowitz referred to searches of the area within
the arrestee's ``immediate control,''\43\ it
[[Page 1236]]
provided no standard by which this area was to be determined, and
extensive searches were permitted under the rule.\44\
\38\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).
\39\331 U.S. 145 (1947).
\40\334 U.S. 699 (1948).
\41\Id. at 708.
\42\339 U.S. 56 (1950).
\43\Id. at 64.
\44\Cf. Chimel v. California, 395 U.S. 752, 764-65 & n.10
(1969). But in Kremen v. United States, 353 U.S. 346 (1957), the Court
held that the seizure of the entire contents of a house and the removal
to F.B.I. offices 200 miles away for examination, pursuant to an arrest
under warrant of one of the persons found in the house, was
unreasonable. In decisions contemporaneous to and subsequent to Chimel,
applying pre-Chimel standards because that case was not retroactive,
Williams v. United States, 401 U.S. 646 (1971), the Court has applied
Rabinowitz somewhat restrictively. See Von Cleef v. New Jersey, 395 U.S.
814 (1969), which followed Kremen; Shipley v. California, 395 U.S. 818
(1969), and Vale v. Louisiana, 399 U.S. 30 (1970) (both involving
arrests outside the house with subsequent searches of the house);
Coolidge v. New Hampshire, 403 U.S. 443, 455-57 (1971). Substantially
extensive searches were, however, approved in Williams v. United States,
401 U.S. 646 (1971), and Hill v. California, 401 U.S. 797 (1971).
---------------------------------------------------------------------------
In Chimel v. California,\45\ however, a narrower view was
asserted, the primacy of warrants was again emphasized, and a standard
by which the scope of searches pursuant to arrest could be ascertained
was set out. ``When an arrest is made, it is reasonable for the
arresting officer to search the person arrested in order to remove any
weapons that the latter might seek to use in order to resist arrest or
effect his escape. Otherwise, the officer's safety might well be
endangered, and the arrest itself frustrated. In addition, it is
entirely reasonable for the arresting officer to search for and seize
any evidence on the arrestee's person in order to prevent its
concealment or destruction. And the area into which an arrestee might
reach in order to grab a weapon or evidentiary items must, of course, be
governed by a like rule. A gun on a table or in a drawer in front of one
who is arrested can be as dangerous to the arresting officer as one
concealed in the clothing of the person arrested. There is ample
justification, therefore, for a search of the arrestee's person and the
area `within his immediate control'--construing that phrase to mean the
area from within which he might gain possession of a weapon or
destructible evidence.
\45\395 U.S. 752 (1969).
---------------------------------------------------------------------------
``There is no comparable justification, however, for routinely
searching any room other than that in which an arrest occurs--or, for
that matter, for searching through all the desk drawers or other closed
or concealed areas in that room itself. Such searches, in the absence of
well-recognized exceptions, may be made only under the authority of a
search warrant.''\46\
\46\Id. at 762-63.
---------------------------------------------------------------------------
Although the viability of Chimel had been in doubt for some time
as the Court refined and applied its analysis of reasonable
[[Page 1237]]
and justifiable expectations of privacy,\47\ it has in some but not all
contexts survived the changed rationale. Thus, in Mincey v. Arizona,\48\
the Court rejected a state effort to create a ``homicide-scene''
exception for a warrantless search of an entire apartment extending over
four days. The occupant had been arrested and removed and it was true,
the Court observed, that a person legally taken into custody has a
lessened right of privacy in his person, but he does not have a lessened
right of privacy in his entire house. And, in United States v.
Chadwick,\49\ emphasizing a person's reasonable expectation of privacy
in his luggage or other baggage, the Court held that, once police have
arrested and immobilized a suspect, validly seized bags are not subject
to search without a warrant.\50\ Police may, however, in the course of
jailing an arrested suspect conduct an inventory search of the
individual's personal effects, including the contents of a shoulder bag,
since ``the scope of a station-house search may in some circumstances be
even greater than those supporting a search immediately following
arrest.''\51\
\47\Supra, pp.1206-09. See, e.g., Coolidge v. New Hampshire, 403
U.S. 443, 492, 493, 510 (1971), in which the four dissenters advocated
the reasonableness argument rejected in Chimel.
\48\437 U.S. 385 (1978). The expectancy distinction is at 391.
\49\433 U.S. 1 (1977). Defendant and his luggage, a footlocker,
had been removed to the police station, where the search took place.
\50\If, on the other hand, a sealed shipping container had
already been opened and resealed during a valid customs inspection, and
officers had maintained surveillance through a ``controlled delivery''
to the suspect, there is no reasonable expectation of privacy in the
contents of the container and officers may search it, upon the arrest of
the suspect, without having obtained a warrant. Illinois v. Andreas, 463
U.S. 765 (1983).
\51\Illinois v. LaFayette, 462 U.S. 640, 645 (1983) (inventory
search) (following South Dakota v. Opperman, 428 U.S. 364 (1976)).
Similarly, an inventory search of an impounded vehicle may include the
contents of a closed container. Colorado v. Bertine, 479 U.S. 367
(1987). Inventory searches of closed containers must, however, be guided
by a police policy containing standardized criteria for exercise of
discretion. Florida v. Wells, 495 U.S. 1 (1990).
---------------------------------------------------------------------------
Still purporting to reaffirm Chimel, the Court in New York v.
Belton\52\ held that police officers who had made a valid arrest of the
occupant of a vehicle could make a contemporaneous search of the entire
passenger compartment of the automobile, including containers found
therein. Believing that a fairly simple rule understandable to
authorities in the field was desirable, the Court ruled ``that articles
inside the relatively narrow compass of the passenger compartment of an
automobile are in fact generally, if not inevitably, within `the area
into which an arrestee might reach in order to grab a weapon or
evidentiary ite[m].'''\53\
\52\453 U.S. 454 (1981).
\53\Id. at 460 (quoting Chimel v. California, 395 U.S. 752, 763
(1969)). In this particular instance, Belton had been removed from the
automobile and handcuffed, but the Court wished to create a general rule
removed from the fact-specific nature of any one case. ```Container'
here denotes any object capable of holding another object. It thus
includes closed or open glove compartments, consoles, or other
receptacles located anywhere within the passenger compartment, as well
as luggage, boxes, bags, clothing, and the like. Our holding encompasses
only the interior of the passenger compartment of an automobile and does
not encompass the trunk.'' Id. at 460-61 n.4.
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[[Page 1238]]
Chimel has, however, been qualified by another consideration.
Not only may officers search areas within the arrestee's immediate
control in order to alleviate any threat posed by the arrestee, but they
may extend that search if there may be a threat posed by ``unseen third
parties in the house.'' A ``protective sweep'' of the entire premises
(including an arrestee's home) may be undertaken on less than probable
cause if officers have a ``reasonable belief,'' based on ``articulable
facts,'' that the area to be swept may harbor an individual posing a
danger to those on the arrest scene.\54\
\54\Maryland v. Buie, 494 U.S. 325, 334 (1990). This ``sweep''
is not to be a full-blown, ``top-to-bottom'' search, but only ``a
cursory inspection of those spaces where a person may be found.'' Id. at
335-36.
---------------------------------------------------------------------------
Vehicular Searches.--In the early days of the automobile the
Court created an exception for searches of vehicles, holding in Carroll
v. United States\55\ that vehicles may be searched without warrants if
the officer undertaking the search has probable cause to believe that
the vehicle contains contraband. The Court explained that the mobility
of vehicles would allow them to be quickly moved from the jurisdiction
if time were taken to obtain a warrant.\56\
\55\267 U.S. 132 (1925). Carroll was a Prohibition-era liquor
case, whereas a great number of modern automobile cases involve drugs.
\56\Id. at 153. See also Husty v. United States, 282 U.S. 694
(1931); Scher v. United States, 305 U.S. 251 (1938); Brinegar v. United
States, 338 U.S. 160 (1949). All of these cases involved contraband, but
in Chambers v. Maroney, 399 U.S. 42 (1970), the Court, without
discussion, and over Justice Harlan's dissent, id. at 55, 62, extended
the rule to evidentiary searches.
---------------------------------------------------------------------------
Initially the Court limited Carroll's reach, holding
impermissible the warrantless seizure of a parked automobile merely
because it is movable, and indicating that vehicles may be stopped only
while moving or reasonably contemporaneously with movement.\57\ Also,
the Court ruled that the search must be reasonably contemporaneous with
the stop, so that it was not permissible to remove the vehicle to the
stationhouse for a warrantless search at the convenience of the
police.\58\
\57\Coolidge v. New Hampshire, 403 U.S. 443, 458-64 (1971). This
portion of the opinion had the adherence of a plurality only, Justice
Harlan concurring on other grounds, and there being four dissenters. Id.
at 493, 504, 510, 523.
\58\Preston v. United States, 376 U.S. 364 (1964); Dyke v.
Taylor Implement Mfg. Co., 391 U.S. 216 (1968).
---------------------------------------------------------------------------
The Court next developed a reduced privacy rationale to
supplement the mobility rationale, explaining that ``the configuration,
use, and regulation of automobiles often may dilute the reasonable
[[Page 1239]]
expectation of privacy that exists with respect to differently situated
property.''\59\ ```One has a lesser expectation of privacy in a motor
vehicle because its function is transportation and it seldom serves as
one's residence or as the repository of personal effects. . . . It
travels public thoroughfares where both its occupants and its contents
are in plain view.'''\60\ While motor homes do serve as residences and
as repositories for personal effects, and while their contents are often
shielded from public view, the Court extended the automobile exception
to them as well, holding that there is a diminished expectation of
privacy in a mobile home parked in a parking lot and licensed for
vehicular travel, hence ``readily mobile.''\61\
\59\Arkansas v. Sanders, 442 U.S. 753, 761 (1979).
\60\Cardwell v. Lewis, 417 U.S. 583, 590 (1974) (plurality
opinion), quoted in United States v. Chadwick, 433 U.S. 1, 12 (1977).
See also United States v. Ortiz, 422 U.S. 891, 896 (1975); United States
v. Martinez-Fuerte, 428 U.S. 543, 561 (1976); South Dakota v. Opperman,
428 U.S. 364, 367-68 (1976); Robbins v. California, 453 U.S. 420, 424-25
(1981); United States v. Ross, 456 U.S. 798, 807 n.9 (1982).
\61\California v. Carney, 471 U.S. 386, 393 (1985) (leaving open
the question of whether the automobile exception also applies to a
``mobile'' home being used as a residence and not ``readily mobile'').
---------------------------------------------------------------------------
The reduced expectancy concept has broadened police powers to
conduct automobile searches without warrants, but they still must have
probable cause to search a vehicle\62\ and they must have some
``articulable suspicion'' of criminal activity in order to make random
stops of vehicles on the roads.\63\ By contrast, fixed-checkpoint stops
in the absence of any individualized suspicion have been upheld.\64\
Once police have validly stopped a vehicle, they may also, based on
articulable facts warranting a reasonable belief that weapons may be
present, conduct a Terry-type protective search of those portions of the
passenger compartment in which a weapon could be placed or hidden.\65\
And, in the absence of such reasonable suspicion as to weapons, police
may seize contraband
[[Page 1240]]
and suspicious items ``in plain view'' inside the passenger
compartment.\66\
\62\Almeida-Sanchez v. United States, 413 U.S. 266 (1973)
(roving patrols); United States v. Ortiz, 422 U.S. 891 (1975). Cf.
Colorado v. Bannister, 449 U.S. 1 (1980).
\63\Delaware v. Prouse, 440 U.S. 648 (1979) (random stops of
motorists to check driver's license and registration papers and safety
features of cars); United States v. Brignoni-Ponce, 422 U.S. 873 (1975)
(roving patrols in areas near international borders on look-out for
illegal aliens). In Prouse, the Court cautioned that it was not
precluding the States from developing methods for spot checks that
involve less intrusion or that do not involve unconstrained exercise of
discretion. 440 U.S. at 648.
\64\Michigan Dep't of State Police v. Sitz, 496 U.S. 444 (1990)
(upholding a sobriety checkpoint at which all motorists are briefly
stopped for preliminary questioning and observation for signs of
intoxication). See also United States v. Martinez-Fuerte, 428 U.S. 543
(1976) (upholding border patrol checkpoint, over 60 miles from the
border, for questioning designed to apprehend illegal aliens).
\65\Michigan v. Long, 463 U.S. 1032, 1049 (1983) (holding that
contraband found in the course of such a search is admissible).
\66\Texas v. Brown, 460 U.S. 730 (1983). Similarly, since there
is no reasonable privacy interest in the vehicle identification number,
required by law to be placed on the dashboard so as to be visible
through the windshield, police may reach into the passenger compartment
to remove items obscuring the number and may seize items in plain view
while doing so. New York v. Class, 475 U.S. 106 (1986).
---------------------------------------------------------------------------
Once police have probable cause to believe there is contraband
in a vehicle, they may remove it from the scene to the stationhouse in
order to conduct a search, without thereby being required to obtain a
warrant. ``[T]he justification to conduct such a warrantless search does
not vanish once the car has been immobilized; nor does it depend upon a
reviewing court's assessment of the likelihood in each particular case
that the car would have been driven away, or that its contents would
have been tampered with, during the period required for the police to
obtain a warrant.''\67\ The Justices were evenly divided, however, on
the propriety of warrantless seizure of an arrestee's automobile from a
public parking lot several hours after his arrest, its transportation to
a police impoundment lot, and the taking of tire casts and exterior
paint scrapings.\68\ Because of the lessened expectation of privacy,
inventory searches of impounded automobiles are justifiable in order to
protect public safety and the owner's property, and any evidence of
criminal activity discovered in the course of the inventories is
admissible in court.\69\
\67\Michigan v. Thomas, 458 U.S. 259, 261 (1982). See also
Chambers v. Maroney, 399 U.S. 42 (1970); Texas v. White, 423 U.S. 67
(1975); United States v. Ross, 456 U.S. 798, 807 n.9 (1982).
\68\Cardwell v. Lewis, 417 U.S. 583 (1974). Justice Powell
concurred on other grounds.
\69\Cady v. Dombrowski, 413 U.S. 433 (1973); South Dakota v.
Opperman, 428 U.S. 364 (1976). See also Cooper v. California, 386 U.S.
58 (1967); United States v. Harris, 390 U.S. 234 (1968). Police, in
conducting an inventory search of a vehicle, may open closed containers
in order to inventory contents. Colorado v. Bertine, 479 U.S. 367
(1987).
---------------------------------------------------------------------------
It is not lawful for the police in undertaking a warrantless
search of an automobile to extend the search to the passengers
therein.\70\ But because passengers in an automobile have no reasonable
expectation of privacy in the interior area of the car, a warrantless
search of the glove compartment and the spaces under the seats, which
turned up evidence implicating the passengers, invaded no Fourth
Amendment interest of the passengers.\71\ Luggage and other closed
containers found in automobiles may also be subjected to warrantless
searches based on probable cause, the same rule now applying whether the
police have probable cause to search
[[Page 1241]]
only the containers\72\ or whether they have probable cause to search
the automobile for something capable of being held in the container.\73\
\70\United States v. Di Re, 332 U.S. 581 (1948). While Di Re is
now an old case, it appears still to control. See Ybarra v. Illinois,
444 U.S. 85, 94-96 (1979).
\71\Rakas v. Illinois, 439 U.S. 128 (1978).
\72\California v. Acevedo, 500 U.S. 565 (1991) (overruling
Arkansas v. Sanders, 442 U.S. 753 (1979).
\73\United States v. Ross, 456 U.S. 798 (1982). A Ross search of
a container found in an automobile need not occur soon after its
seizure. United States v. Johns, 469 U.S. 478 (1985) (three-day time
lapse). See also Florida v. Jimeno, 500 U.S. 248 (1991) (consent to
search automobile for drugs constitutes consent to open containers
within the car that might contain drugs).
---------------------------------------------------------------------------
Vessel Searches.--Not only is the warrant requirement
inapplicable to brief stops of vessels, but also none of the safeguards
applicable to stops of automobiles on less than probable cause are
necessary predicates to stops of vessels. In United States v.
Villamonte-Marquez,\74\ the Court upheld a random stop and boarding of a
vessel by customs agents, lacking any suspicion of wrongdoing, for
purpose of inspecting documentation. The boarding was authorized by
statute derived from an act of the First Congress,\75\ and hence had
``an impressive historical pedigree'' carrying with it a presumption of
constitutionality. Moreover, ``important factual differences between
vessels located in waters offering ready access to the open sea and
automobiles on principal thoroughfares in the border area'' justify
application of a less restrictive rule for vessel searches. The reason
why random stops of vehicles have been held impermissible under the
Fourth Amendment, the Court explained, is that stops at fixed
checkpoints or roadblocks are both feasible and less subject to abuse of
discretion by authorities. ``But no reasonable claim can be made that
permanent checkpoints would be practical on waters such as these where
vessels can move in any direction at any time and need not follow
established `avenues' as automobiles must do.''\76\ Because there is a
``substantial'' governmental interest in enforcing documentation laws,
``especially in waters where the need to deter or apprehend smugglers is
great,'' the Court found the ``limited'' but not ``minimal'' intrusion
occasioned by boarding for documentation inspection to be
reasonable.\77\ Dis
[[Page 1242]]
senting Justice Brennan argued that the Court for the first time was
approving ``a completely random seizure and detention of persons and an
entry onto private, noncommercial premises by police officers, without
any limitations whatever on the officers' discretion or any safeguards
against abuse.''\78\
\74\462 U.S. 579 (1983). The opinion of the Court, written by
Justice Rehnquist, was joined by Chief Justice Burger and by Justices
White, Blackmun, Powell, and O'Connor. Justice Brennan's dissent was
joined by Justice Marshall and, on mootness but not on the merits, by
Justice Stevens.
\75\19 U.S.C. Sec. 1581(a), derived from Sec. 31 of the Act of
Aug. 4, 1790, ch.35, 1 Stat. 164.
\76\462 U.S. at 589. Justice Brennan's dissent argued that a
fixed checkpoint was feasible in this case, involving a ship channel in
an inland waterway. id. at at 608 n.10. The fact that the Court's
rationale was geared to the difficulties of law enforcement in the open
seas suggests a reluctance to make exceptions to the general rule. Note
as well the Court's later reference to this case as among those
``reflect[ing] longstanding concern for the protection of the integrity
of the border.'' United States v. Montoya de Hernandez, 473 U.S. 531,
538 (1985).
\77\462 U.S. at 593.
\78\462 U.S. at 598. Justice Brennan contended that all previous
cases had required some ``discretion-limiting'' feature such as a
requirement of probable cause, reasonable suspicion, fixed checkpoints
instead of roving patrols, and limitation of border searches to border
areas, and that these principles set forth in Delaware v. Prouse (supra
p.1239, n.63) should govern. 462 U.S. at 599, 601.
---------------------------------------------------------------------------
Consent Searches.--Fourth Amendment rights, like other
constitutional rights, may be waived, and one may consent to search of
his person or premises by officers who have not complied with the
Amendment.\79\ The Court, however, has insisted that the burden is on
the prosecution to prove the voluntariness of the consent\80\ and
awareness of the right of choice.\81\ Reviewing courts must determine on
the basis of the totality of the circumstances whether consent has been
freely given or has been coerced. Actual knowledge of the right to
refuse consent is not essential to the issue of voluntariness, and
therefore police are not required to acquaint a person with his rights,
as through a Fourth Amendment version of Miranda warnings.\82\ But
consent will not be regarded as voluntary when the officer asserts his
official status and claim of right and the occupant yields to these
factors rather than makes his own determination to admit officers.\83\
When consent is obtained through the deception of an undercover officer
or an informer gaining admission without, of course, advising a suspect
who he is, the Court has held that the suspect has simply assumed the
risk that an invitee would betray him, and evidence obtained through the
deception is admissible.\84\
\79\Amos v. United States, 255 U.S. 313 (1921); Zap v. United
States, 328 U.S. 624 (1946); Schneckloth v. Bustamonte, 412 U.S. 218
(1973).
\80\Bumper v. North Carolina, 391 U.S. 543 (1968).
\81\Johnson v. United States, 333 U.S. 10, 13 (1948).
\82\Schneckloth v. Bustamonte, 412 U.S. 218, 231-33 (1973).
\83\Amos v. United States, 255 U.S. 313 (1921); Johnson v.
United States, 333 U.S. 10 (1948); Bumper v. North Carolina, 391 U.S.
543 (1968).
\84\On Lee v. United States, 343 U.S. 747 (1952); Lopez v.
United States, 373 U.S. 427 (1963); Hoffa v. United States, 385 U.S. 293
(1966); Lewis v. United States, 385 U.S. 206 (1966); United States v.
White, 401 U.S. 745 (1971). Cf. Osborn v. United States, 385 U.S. 323
(1966) (prior judicial approval obtained before wired informer sent into
defendant's presence). Problems may be encountered by police, however,
in special circumstances. See Messiah v. United States, 377 U.S. 201
(1964); United States v. Henry, 447 U.S. 264 (1980); United States v.
Karo, 468 U.S. 705 (1984) (installation of beeper with consent of
informer who sold container with beeper to suspect is permissible with
prior judicial approval, but use of beeper to monitor private residence
is not).
---------------------------------------------------------------------------
Additional issues arise in determining the validity of consent
to search when consent is given not by the suspect but by a third
[[Page 1243]]
party. In the earlier cases, third party consent was deemed sufficient
if that party ``possessed common authority over or other sufficient
relationship to the premises or effects sought to be inspected.''\85\
Now, however, actual common authority over the premises is no longer
required; it is enough if the searching officer had a reasonable but
mistaken belief that the third party had common authority and could
consent to the search.\86\
\85\United States v. Matlock, 415 U.S. 164, 171 (1974) (valid
consent by woman with whom defendant was living and sharing the bedroom
searched). See also Chapman v. United States, 365 U.S. 610 (1961)
(landlord's consent insufficient); Stoner v. California, 376 U.S. 483
(1964) (hotel desk clerk lacked authority to consent to search of
guest's room); Frazier v. Culp, 394 U.S. 731 (1969) (joint user of
duffel bag had authority to consent to search).
\86\Illinois v. Rodriguez, 497 U.S. 177 (1990). See also Florida
v. Jimeno, 500 U.S. 248, 251 (1991) (it was ``objectively reasonable''
for officer to believe that suspect's consent to search his car for
narcotics included consent to search containers found within the car).
---------------------------------------------------------------------------
Border Searches.--``That searches made at the border, pursuant
to the longstanding right of the sovereign to protect itself by stopping
and examining persons and property crossing into this country, are
reasonable simply by virtue of the fact that they occur at the border,
should, by now, require no extended demonstration.''\87\ Authorized by
the First Congress,\88\ the customs search in these circumstances
requires no warrant, no probable cause, not even the showing of some
degree of suspicion that accompanies even investigatory stops.\89\
Moreover, while prolonged detention of travelers beyond the routine
customs search and inspection must be justified by the Terry standard of
reasonable suspicion having a particularized and objective basis,\90\
Terry protections as to the length and intrusiveness of the search do
not apply.\91\
\87\United States v. Ramsey, 431 U.S. 606, 616 (1977)
(sustaining search of incoming mail). See also Illinois v. Andreas, 463
U.S. 765 (1983) (opening by customs inspector of locked container
shipped from abroad).
\88\Act of July 31, 1789, ch.5, Sec. Sec. 23, Sec. 24, 1 Stat.
43. See 19 U.S.C. Sec. Sec. 507, 1581, 1582.
\89\Carroll v. United States, 267 U.S. 132, 154 (1925); United
States v. Thirty-Seven Photographs, 402 U.S. 363, 376 (1971); Almeida-
Sanchez v. United States, 413 U.S. 266, 272 (1973).
\90\United States v. Montoya de Hernandez, 473 U.S. 531 (1985)
(approving warrantless detention incommunicado for more than 24 hours of
traveler suspected of alimentary canal drug smuggling).
\91\Id. A traveler suspected of alimentary canal drug smuggling
was strip searched, and then given a choice between an abdominal x-ray
or monitored bowel movements. Because the suspect chose the latter
option, the court disavowed decision as to ``what level of suspicion, if
any, is required for . . . strip, body cavity, or involuntary x-ray
searches.'' Id. at 541 n.4.
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Inland stoppings and searches in areas away from the borders are
a different matter altogether. Thus, in Almeida-Sanchez v.
[[Page 1244]]
United States,\92\ the Court held that a warrantless stop and search of
defendant's automobile on a highway some 20 miles from the border by a
roving patrol lacking probable cause to believe that the vehicle
contained illegal aliens violated the Fourth Amendment. Similarly, the
Court invalidated an automobile search at a fixed checkpoint well
removed from the border; while agreeing that a fixed checkpoint probably
gave motorists less cause for alarm than did roving patrols, the Court
nonetheless held that the invasion of privacy entailed in a search was
just as intrusive and must be justified by a showing of probable cause
or consent.\93\ On the other hand, when motorists are briefly stopped,
not for purposes of a search but in order that officers may inquire into
their residence status, either by asking a few questions or by checking
papers, different results are achieved, so long as the stops are not
truly random. Roving patrols may stop vehicles for purposes of a brief
inquiry, provided officers are ``aware of specific articulable facts,
together with rational inferences from those facts, that reasonably
warrant suspicion'' that an automobile contains illegal aliens; in such
a case the interference with Fourth Amendment rights is ``modest'' and
the law enforcement interests served are significant.\94\ Fixed
checkpoints provide additional safeguards; here officers may halt all
vehicles briefly in order to question occupants even in the absence of
any reasonable suspicion that the particular vehicle contains illegal
aliens.\95\
\92\413 U.S. 266 (1973). Justices White, Blackmun, Rehnquist,
and Chief Justice Burger would have found the search reasonable upon the
congressional determination that searches by such roving patrols were
the only effective means to police border smuggling. Id. at 285. Justice
Powell, concurring, argued in favor of a general, administrative warrant
authority not tied to particular vehicles, much like the type of warrant
suggested for noncriminal administrative inspections of homes and
commercial establishments for health and safety purposes, id. at 275,
but the Court has not yet had occasion to pass on a specific case. See
United States v. Martinez-Fuerte, 428 U.S. 543, 547 n.2, 562 n.15
(1976).
\93\United States v. Ortiz, 422 U.S. 891 (1975).
\94\United States v. Brignoni-Ponce, 422 U.S. 873 (1975).
However, stopping of defendant's car solely because the officers
observed the Mexican appearance of the occupants was unjustified. Id. at
886. Contrast United States v. Cortez, 449 U.S. 411 (1981), where border
agents did have grounds for reasonable suspicion that the vehicle they
stopped contained illegal aliens.
\95\United States v. Martinez-Fuerte, 428 U.S. 543 (1976). The
Court deemed the intrusion on Fourth Amendment interests to be quite
limited, even if officers acted on the basis of the Mexican appearance
of the occupants in referring motorists to a secondary inspection area
for questioning, whereas the elimination of the practice would deny to
the Government its only practicable way to apprehend smuggled aliens and
to deter the practice. Similarly, outside of the border/aliens context,
the Court has upheld use of fixed ``sobriety'' checkpoints at which all
motorists are briefly stopped for preliminary questioning and
observation for signs of intoxication. Michigan Dep't of State Police v.
Sitz, 496 U.S. 444 (1990).
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[[Page 1245]]
``Open Fields.''--In Hester v. United States,\96\ the Court held
that the Fourth Amendment did not protect ``open fields'' and that,
therefore, police searches in such areas as pastures, wooded areas, open
water, and vacant lots need not comply with the requirements of warrants
and probable cause. The Court's announcement in Katz v. United
States\97\ that the Amendment protects ``people not places'' cast some
doubt on the vitality of the open fields principle, but all such doubts
were cast away in Oliver v. United States.\98\ Invoking Hester's
reliance on the literal wording of the Fourth Amendment (open fields are
not ``effects'') and distinguishing Katz, the Court ruled that the open
fields exception applies to fields that are fenced and posted. ``[A]n
individual may not legitimately demand privacy for activities conducted
out of doors in fields, except in the area immediately surrounding the
home.''\99\ Nor may an individual demand privacy for activities
conducted within outbuildings and visible by trespassers peering into
the buildings from just outside.\100\ Even within the curtilage and
notwithstanding that the owner has gone to the extreme of erecting a 10-
foot high fence in order to screen the area from ground-level view,
there is no reasonable expectation of privacy from naked-eye inspection
from fixed-wing aircraft flying in navigable airspace.\101\ Similarly,
naked-eye inspection from helicopters flying even lower contravenes no
reasonable expectation of privacy.\102\ And aerial photography of
commercial facilities secured from ground-level public view is
permissible, the
[[Page 1246]]
Court finding such spaces more analogous to open fields than to the
curtilage of a dwelling.\103\
\96\265 U.S. 57 (1924). See also Air Pollution Variance Bd. v.
Western Alfalfa Corp., 416 U.S. 86 (1974).
\97\389 U.S. 347, 353 (1967). Cf. Cady v. Dombrowski, 413 U.S.
433, 450 (1973) (citing Hester approvingly).
\98\466 U.S. 170 (1984) (approving warrantless intrusion past no
trespassing signs and around locked gate, to view field not visible from
outside property).
\99\Id. at 178. See also California v. Greenwood, 486 U.S. 35
(1988) (approving warrantless search of garbage left curbside ``readily
accessible to animals, children, scavengers, snoops, and other members
of the public'').
\100\United States v. Dunn, 480 U.S. 294 (1987) (space
immediately outside a barn, accessible only after crossing a series of
``ranch-style'' fences and situated one-half mile from the public road,
constitutes unprotected ``open field'').
\101\California v. Ciraolo, 476 U.S. 207 (1986). Activities
within the curtilage are nonetheless still entitled to some Fourth
Amendment protection. The Court has described four considerations for
determining whether an area falls within the curtilage: proximity to the
home, whether the area is included within an enclosure also surrounding
the home, the nature of the uses to which the area is put, and the steps
taken by the resident to shield the area from view of passersby. United
States v. Dunn, 480 U.S. 294 (1987) (barn 50 yards outside fence
surrounding home, used for processing chemicals, and separated from
public access only by series of livestock fences, by chained and locked
driveway, and by one-half mile's distance, is not within curtilage).
\102\Florida v. Riley, 488 U.S. 445 (1989) (view through
partially open roof of greenhouse).
\103\Dow Chemical Co. v. United States, 476 U.S. 227 (1986)
(suggesting that aerial photography of the curtilage would be
impermissible).
---------------------------------------------------------------------------
``Plain View.''--Somewhat similar in rationale is the rule that
objects falling in the ``plain view'' of an officer who has a right to
be in the position to have that view are subject to seizure without a
warrant\104\ or that if the officer needs a warrant or probable cause to
search and seize his lawful observation will provide grounds
therefor.\105\ The plain view doctrine is limited, however, by the
probable cause requirement: officers must have probable cause to believe
that items in plain view are contraband before they may search or seize
them.\106\
\104\Washington v. Chrisman, 455 U.S. 1 (1982) (officer lawfully
in dorm room may seize marijuana seeds and pipe in open view); United
States v. Santana, 427 U.S. 38 (1976) (``plain view'' justification for
officers to enter home to arrest after observing defendant standing in
open doorway); Harris v. United States, 390 U.S. 234 (1968) (officer who
opened door of impounded automobile and saw evidence in plain view
properly seized it); Ker v. California, 374 U.S. 23 (1963) (officers
entered premises without warrant to make arrest because of exigent
circumstances seized evidence in plain sight). Cf. Coolidge v. New
Hampshire, 403 U.S. 443, 464-73 (1971), and id. at 510 (Justice White
dissenting). Maryland v. Buie, 494 U.S. 325 (1990) (items seized in
plain view during protective sweep of home incident to arrest); Texas v.
Brown, 460 U.S. 730 (1983) (contraband on car seat in plain view of
officer who had stopped car and asked for driver's license); New York v.
Class, 475 U.S. 106 (1986) (evidence seen while looking for vehicle
identification number). There is no requirement that the discovery of
evidence in plain view must be ``inadvertent.'' See Horton v.
California, 496 U.S. 128 (1990) (in spite of Amendment's particularity
requirement, officers with warrant to search for proceeds of robbery may
seize weapons of robbery in plain view).
\105\Steele v. United States, 267 U.S. 498 (1925) (officers
observed contraband in view through open doorway; had probable cause to
procure warrant). Cf. Taylor v. United States, 286 U.S. 1 (1932)
(officers observed contraband in plain view in garage, warrantless entry
to seize was unconstitutional).
\106\Arizona v. Hicks, 480 U.S. 321 (1987) (police lawfully in
apartment to investigate shooting lacked probable cause to inspect
expensive stereo equipment to record serial numbers).
---------------------------------------------------------------------------
The Court has analogized from the plain view doctrine to hold
that once officers have lawfully observed contraband, ``the owner's
privacy interest in that item is lost,'' and officers may reseal a
container, trace its path through a controlled delivery, and seize and
reopen the container without a warrant.\107\
\107\Illinois v. Andreas, 463 U.S. 765, 771 (1983) (locker
customs agents had opened, and which was subsequently traced). Accord,
United States v. Jacobsen, 466 U.S. 109 (1984) (inspection of package
opened by private freight carrier who notified drug agents).
---------------------------------------------------------------------------
Public Schools.--In New Jersey v. T.L.O.,\108\ the Court set
forth the principles governing searches by public school authorities.
The Fourth Amendment applies to searches conducted by public school
officials because ``school officials act as representatives of the
[[Page 1247]]
State, not merely as surrogates for the parents.''\109\ However, ``the
school setting requires some easing of the restrictions to which
searches by public authorities are ordinarily subject.''\110\ Neither
the warrant requirement nor the probable cause standard is appropriate,
the Court ruled. Instead, a simple reasonableness standard governs all
searches of students' persons and effects by school authorities.\111\ A
search must be reasonable at its inception, i.e., there must be
``reasonable grounds for suspecting that the search will turn up
evidence that the student has violated or is violating either the law or
the rules of the school.''\112\ School searches must also be reasonably
related in scope to the circumstances justifying the interference, and
``not excessively intrusive in light of the age and sex of the student
and the nature of the infraction.''\113\ In applying these rules, the
Court upheld as reasonable the search of a student's purse to determine
whether the student, accused of violating a school rule by smoking in
the lavatory, possessed cigarettes. The search for cigarettes uncovered
evidence of drug activity held admissible in a prosecution under the
juvenile laws.
\108\469 U.S. 325 (1985).
\109\Id. at 336 (1984).
\110\Id. at 340.
\111\This single rule, the Court explained, will permit school
authorities ``to regulate their conduct according to the dictates of
reason and common sense.'' 469 U.S. at 343. Rejecting the suggestion of
dissenting Justice Stevens, the Court was ``unwilling to adopt a
standard under which the legality of a search is dependent upon a
judge's evaluation of the relative importance of various school rules.''
Id. at n.9.
\112\469 U.S. at 342.
\113\Id.
---------------------------------------------------------------------------
Government Offices.--Similar principles apply to a public
employer's work-related search of its employees' offices, desks, or file
cabinets, except that in this context the Court distinguished searches
conducted for law enforcement purposes. In O'Connor v. Ortega,\114\ a
majority of Justices agreed, albeit on somewhat differing rationales,
that neither a warrant nor a probable cause requirement should apply to
employer searches ``for noninvestigatory, work-related purposes, as well
as for investigations of work-related misconduct.''\115\ Four Justices
would require a case-by-case inquiry into the reasonableness of such
searches;\116\ one would hold that such searches ``do not violate the
Fourth Amendment.''\117\
\114\480 U.S. 709 (1987).
\115\480 U.S. at 725. Not at issue was whether there must be
individualized suspicion for investigations of work-related misconduct.
\116\This position was stated in Justice O'Connor's plurality
opinion, joined by Chief Justice Rehnquist and by Justices White and
Powell.
\117\480 U.S. at 732 (Scalia, J., concurring in judgment).
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Prisons and Regulation of Probation.--Searches of prison cells
by prison administrators are not limited even by a reasonableness
standard, the Court having held that ``the Fourth Amendment
[[Page 1248]]
proscription against unreasonable searches does not apply within the
confines of the prison cell.''\118\ Thus, prison administrators may
conduct random ``shakedown'' searches of inmates' cells without the need
to adopt any established practice or plan, and inmates must look to the
Eighth Amendment or to state tort law for redress against harassment,
malicious property destruction, and the like.
\118\Hudson v. Palmer, 468 U.S. 517, 526 (1984).
---------------------------------------------------------------------------
Neither a warrant nor probable cause is needed for an
administrative search of a probationer's home. It is enough, the Court
ruled in Griffin v. Wisconsin, that such a search was conducted pursuant
to a valid regulation that itself satisfies the Fourth Amendment's
reasonableness standard (e.g., by requiring ``reasonable grounds'' for a
search).\119\ ``A State's operation of a probation system, like its
operation of a school, government office or prison, or its supervision
of a regulated industry, . . . presents `special needs' beyond normal
law enforcement that may justify departures from the usual warrant and
probable cause requirements.''\120\ ``Probation, like incarceration, is
a form of criminal sanction,'' the Court noted, and a warrant or
probable cause requirement would interfere with the ``ongoing [non-
adversarial] supervisory relationship'' required for proper functioning
of the system.\121\
\119\483 U.S. 868 (1987) (search based on information from
police detective that there was or might be contraband in probationer's
apartment).
\120\483 U.S. at 873-74.
\121\Id. at 718, 721.
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Drug Testing.--In two 1989 decisions the Court held that no
warrant, probable cause, or even individualized suspicion is required
for mandatory drug testing of certain classes of railroad and public
employees. In each case, ``special needs beyond the normal need for law
enforcement'' were identified as justifying the drug testing. In Skinner
v. Railway Labor Executives' Ass'n,\122\ the Court upheld regulations
requiring railroads to administer blood, urine, and breath tests to
employees involved in certain train accidents or violating certain
safety rules; upheld in National Treasury Employees Union v. Von
Raab\123\ was a Customs Service screening program requiring urinalysis
testing of employees seeking transfer or promotion to positions having
direct involvement with drug interdiction, or to positions requiring the
incumbent to carry firearms. The Court in Skinner found a ``compelling''
governmental interest in testing the railroad employees without any
showing of individualized suspicion, since operation of trains by anyone
impaired by drugs ``can cause great human loss before any signs of
impair
[[Page 1249]]
ment become noticeable.''\124\ By contrast, the intrusions on privacy
were termed ``limited.'' Blood and breath tests were passed off as
routine; the urine test, while more intrusive, was deemed permissible
because of the ``diminished expectation of privacy'' in employees having
some responsibility for safety in a pervasively regulated industry.\125\
The lower court's emphasis on the limited effectiveness of the urine
test (it detects past drug use but not necessarily the level of
impairment) was misplaced, the Court ruled. It is enough that the test
may provide some useful information for an accident investigation; in
addition, the test may promote deterrence as well as detection of drug
use.\126\ In Von Raab the governmental interests underlying the Customs
Service's screening program were also termed ``compelling'': to ensure
that persons entrusted with a firearm and the possible use of deadly
force not suffer from drug-induced impairment of perception and
judgment, and that ``front-line [drug] interdiction personnel [be]
physically fit, and have unimpeachable integrity and judgment.''\127\
The possibly ``substantial'' interference with privacy interests of
these Customs employees was justified, the Court concluded, because,
``[u]nlike most private citizens or government employees generally, they
have a ``diminished expectation of privacy.''\128\
\122\489 U.S. 602 (1989).
\123\489 U.S. 656 (1989).
\124\489 U.S. at 628.
\125\Id. at 628.
\126\Id. at 631-32.
\127\Von Raab, 489 U.S. at 670-71. Dissenting Justice Scalia
discounted the ``feeble justifications'' relied upon by the Court,
believing instead that the ``only plausible explanation'' for the drug
testing program was the ``symbolism'' of a government agency setting an
example for other employers to follow. 489 U.S. at 686-87.
\128\Id. at 672.
---------------------------------------------------------------------------
So far the Court has not ruled on a random drug testing program,
having since Skinner and Von Raab refused to hear other challenges to
drug testing.\129\ Answers to remaining questions, e.g.,
[[Page 1250]]
whether other drug testing programs not so closely tied to safety and
security concerns serve ``compelling'' governmental interests, whether
other classes of employees have a diminished expectation of privacy, and
whether more intrusive testing procedures are permissible,\130\ must
therefore await future litigation.
\129\See, e.g., Policemen's Benevolent Ass'n Local 318 v.
Township of Washington, 850 F.2d 133 (3d Cir. 1988), cert. denied 490
U.S. 1004 (1989) (random urinalysis testing of police officers upheld);
Copeland v. Philadelphia Police Dep't, 840 F.2d 1139 (3d Cir. 1988),
cert. denied 490 U.S. 1004 (upholding testing of police officer based on
``reasonable suspicion''); Alverado v. WPPSS, 759 P.2d 427 (Wash. 1988),
cert. denied 490 U.S. 1004 (upholding pre-employment drug screening for
nuclear power plant workers); Harmon v. Thornburgh, 878 F.2d 484 (D.C.
Cir. 1989), cert. denied sub nom. Bell v. Thornburgh, 493 U.S. 1056
(1990) (approving random testing of Department of Justice employees with
top secret security clearances); National Fed'n of Fed. Employees v.
Cheney, 892 F.2d 98 (D.C. Cir. 1989) cert. denied 493 U.S. 1056 (1990)
(upholding random testing of U.S. Army civilian employees in
``critical'' jobs, e.g., aircraft crews and mechanics, security guards,
and drug counselors); Guiney v. Roache, 873 F.2d 1557 (1st Cir. 1989),
cert. denied 493 U.S. 963 (upholding random testing of Boston police
officers who carry firearms or participate in drug interdiction); AFGE
v. Skinner, 885 F.2d 884 (D.C. Cir. 1989), cert. denied 493 U.S. 923
(1990) (upholding random drug testing of three categories of DOT
employees: motor vehicle operators, hazardous material inspectors, and
aircraft mechanics); Jones v. McKenzie, 833 F.2d 335 (D.C. Cir. 1987),
vacated and remanded sub nom. Jenkins v. Jones, 490 U.S. 1001 (1989)
(court of appeals had upheld testing of school bus drivers only in the
context of a routine medical exam).
\130\In Skinner the Court emphasized that the FRA regulations
``do not require'' direct observation by a monitor (although, as the
dissent pointed out, 489 U.S. at 646, the FRA Field Manual did so
require) and that the sample is collected ``in a medical environment''
(id. at 626); the Customs screening program at issue in Von Raab
similarly did not require direct observation of urination, and in
addition gave job applicants advance notice of testing.
---------------------------------------------------------------------------
FOURTH AMENDMENT
SEARCH AND SEIZURE
Electronic Surveillance and the Fourth Amendment
The Olmstead Case.--With the invention of the microphone, the
telephone, and the dictograph recorder, it became possible to
``eavesdrop'' with much greater secrecy and expediency. Inevitably, the
use of electronic devices in law enforcement was challenged, and in 1928
the Court reviewed convictions obtained on the basis of evidence gained
through taps on telephone wires in violation of state law. On a five-to-
four vote, the Court held that wiretapping was not within the confines
of the Fourth Amendment.\131\ Chief Justice Taft, writing the opinion of
the Court, relied on two lines of argument for the conclusion. First,
inasmuch as the Amendment was designed to protect one's property
interest in his premises, there was no search so long as there was no
physical trespass on premises owned or controlled by a defendant.
Second, all the evidence obtained had been secured by hearing, and the
interception of a conversation could not qualify as a seizure, for the
Amendment referred only to the seizure of tangible items. Furthermore,
the violation of state law did not render the evidence excludible, since
the exclusionary rule operated only on evidence seized in violation of
the Constitution.\132\
\131\Olmstead v. United States, 277 U.S. 438 (1928).
\132\Among the dissenters were Justice Holmes, who characterized
``illegal'' wiretapping as ``dirty business,'' id. at 470, and Justice
Brandeis, who contributed to his opinion the famous peroration about
government as ``the potent, the omnipresent, teacher'' which ``breeds
contempt for law'' among the people by its example. Id. at 485. More
relevant here was his lengthy argument rejecting the premises of the
majority, an argument which later became the law of the land. (1) ``To
protect [the right to be left alone], every unjustifiable intrusion by
the Government upon the privacy of the individual, whatever the means
employed, must be deemed a violation of the Fourth Amendment.'' Id. at
478. (2) ``There is, in essence, no difference between the sealed letter
and the private telephone message. . . . The evil incident to invasion
of the privacy of the telephone is far greater than that involved in
tampering with the mails. Whenever a telephone line is tapped, the
privacy of the persons at both ends of the line is invaded and all
conversations between them upon any subject . . . may be overheard.''
Id. at 475-76.
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[[Page 1251]]
Federal Communications Act.--Six years after the decision in the
Olmstead case, Congress enacted the Federal Communications Act and
included in Sec. 605 of the Act a broadly worded proscription on which
the Court seized to place some limitation upon governmental
wiretapping.\133\ Thus, in Nardone v. United States,\134\ the Court held
that wiretapping by federal officers could violate Sec. 605 if the
officers both intercepted and divulged the contents of the conversation
they overheard, and that testimony in court would constitute a form of
prohibited divulgence. Such evidence was therefore excluded, although
wiretapping was not illegal under the Court's interpretation if the
information was not used outside the governmental agency. Because
Sec. 605 applied to intrastate as well as interstate transmissions,\135\
there was no question about the applicability of the ban to state police
officers, but the Court declined to apply either the statute or the due
process clause to require the exclusion of such evidence from state
criminal trials.\136\ State efforts to legalize wiretapping pursuant to
court orders were held by the Court to be precluded by the fact that
Congress in Sec. 605 had intended to occupy the field completely to the
exclusion of the States.\137\
\133\Ch.652, 48 Stat. 1103 (1934), providing, inter alia, that
''. . . no person not being authorized by the sender shall intercept any
communication and divulge or publish the existence, contents, purport,
effect, or meaning of such intercepted communication to any person.''
Nothing in the legislative history indicated what Congress had in mind
in including this language. The section, which appeared at 47 U.S.C.
Sec. 605, was rewritten by Title III of the Omnibus Crime Act of 1968,
82 Stat. 22, Sec. 803, so that the ``regulation of the interception of
wire or oral communications in the future is to be governed by'' the
provisions of Title III. S. Rep. No. 1097, 90th Cong., 2d Sess. 107-08
(1968).
\134\302 U.S. 379 (1937). Derivative evidence, that is, evidence
discovered as a result of information obtained through a wiretap, was
similarly inadmissible, Nardone v. United States, 308 U.S. 338 (1939),
although the testimony of witnesses might be obtained through the
exploitation of wiretap information. Goldstein v. United States, 316
U.S. 114 (1942). Eavesdropping on a conversation on an extension
telephone with the consent of one of the parties did not violate the
statute. Rathbun v. United States, 355 U.S. 107 (1957).
\135\Weiss v. United States, 308 U.S. 321 (1939).
\136\Schwartz v. Texas, 344 U.S. 199 (1952). At this time,
evidence obtained in violation of the Fourth Amendment could be admitted
in state courts. Wolf v. Colorado, 338 U.S. 25 (1949). Although Wolf was
overruled by Mapp v. Ohio, 367 U.S. 643 (1961), it was some seven years
later and after wiretapping itself had been made subject to the Fourth
Amendment that Schwartz was overruled in Lee v. Florida, 392 U.S. 378
(1968).
\137\Bananti v. United States, 355 U.S. 96 (1957).
---------------------------------------------------------------------------
Nontelephonic Electronic Surveillance.--The trespass rationale
of Olmstead was utilized in cases dealing with ``bugging'' of premises
rather than with tapping of telephones. Thus, in Goldman v. United
States,\138\ the Court found no Fourth Amendment violation when a
listening device was placed against a party wall so
[[Page 1252]]
that conversations were overheard on the other side. But when officers
drove a ``spike mike'' into a party wall until it came into contact with
a heating duct and thus broadcast defendant's conversations, the Court
determined that the trespass brought the case within the Amendment.\139\
In so holding, the Court, without alluding to the matter, overruled in
effect the second rationale of Olmstead, the premise that conversations
could not be seized.
\138\316 U.S. 129 (1942).
\139\Silverman v. United States, 365 U.S. 505 (1961). See also
Clinton v. Virginia, 377 U.S. 158 (1964) (physical trespass found with
regard to amplifying device stuck in a partition wall with a thumb
tack).
---------------------------------------------------------------------------
The Berger and Katz Cases.--In Berger v. New York,\140\ the
Court confirmed the obsolesence of the alternative holding in Olmstead
that conversations could not be seized in the Fourth Amendment
sense.\141\ Berger held unconstitutional on its face a state
eavesdropping statute under which judges were authorized to issue
warrants permitting police officers to trespass on private premises to
install listening devices. The warrants were to be issued upon a showing
of ``reasonable ground to believe that evidence of crime may be thus
obtained, and particularly describing the person or persons whose
communications, conversations or discussions are to be overheard or
recorded.'' For the five-Justice majority, Justice Clark discerned
several constitutional defects in the law. ``First, . . . eavesdropping
is authorized without requiring belief that any particular offense has
been or is being committed; nor that the `property' sought, the
conversations, be particularly described.
\140\388 U.S. 41 (1967).
\141\Id. at 50-53.
---------------------------------------------------------------------------
``The purpose of the probable-cause requirement of the Fourth
Amendment to keep the state out of constitutionally protected areas
until it has reason to believe that a specific crime has been or is
being committed is thereby wholly aborted. Likewise the statute's
failure to describe with particularity the conversations sought gives
the officer a roving commission to `seize' any and all conversations. It
is true that the statute requires the naming of `the person or persons
whose communications, conversations or discussions are to be overheard
or recorded. . . .' But this does no more than identify the person whose
constitutionally protected area is to be invaded rather than
`particularly describing' the communications, conversations, or
discussions to be seized. . . . Secondly, authorization of eavesdropping
for a two-month period is the equivalent of a series of intrusions,
searches, and seizures pursuant to a single showing of probable cause.
Prompt execution is also avoided. During such a long and continuous (24
hours a day) period the con
[[Page 1253]]
versations of any and all persons coming into the area covered by the
device will be seized indiscriminately and without regard to their
connection with the crime under investigation. Moreover, the statute
permits. . . extensions of the original two-month period--presumably for
two months each--on a mere showing that such extension is `in the public
interest.'. . . Third, the statute places no termination date on the
eavesdrop once the conversation sought is seized. . . . Finally, the
statute's procedure, necessarily because its success depends on secrecy,
has no requirement for notice as do conventional warrants, nor does it
overcome this defect by requiring some showing of special facts. On the
contrary, it permits unconsented entry without any showing of exigent
circumstances. Such a showing of exigency, in order to avoid notice,
would appear more important in eavesdropping, with its inherent dangers,
than that required when conventional procedures of search and seizure
are utilized. Nor does the statute provide for a return on the warrant
thereby leaving full discretion in the officer as to the use of seized
conversations of innocent as well as guilty parties. In short, the
statute's blanket grant of permission to eavesdrop is without adequate
judicial supervision or protective procedures.''\142\
\142\Id. at 58-60. Justice Stewart concurred because he thought
that the affidavits in this case had not been sufficient to show
probable cause, but he thought the statute constitutional in compliance
with the Fourth Amendment. Id. at 68. Justice Black dissented, arguing
that the Fourth Amendment was not applicable to electronic eavesdropping
but that in any event the ``search'' authorized by the statute was
reasonable. Id. at 70. Justice Harlan dissented, arguing that the
statute with its judicial gloss was in compliance with the Fourth
Amendment. Id. 89. Justice White thought both the statute and its
application in this case were constitutional. Id. at 107.
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Both Justices Black and White in dissent accused the Berger
majority of so construing the Fourth Amendment that no wiretapping-
eavesdropping statute could pass constitutional scrutiny,\143\ and in
Katz v. United States,\144\ the Court in an opinion by one of the Berger
dissenters, Justice Stewart, modified some of its language and pointed
to Court approval of some types of statutorily-authorized electronic
surveillance. Just as Berger had confirmed that one rationale of the
Olmstead decision, the inapplicability of ``seizure'' to conversations,
was no longer valid, Katz disposed of the other rationale. In the latter
case, officers had affixed a listening device to the outside wall of a
telephone booth regularly used by Katz and activated it each time he
entered; since there had been no physical trespass into the booth, the
lower courts held the Fourth Amendment not relevant. The Court
disagreed, saying that ``once it is recognized that the Fourth Amendment
protects peo
[[Page 1254]]
ple--and not simply `areas'--against unreasonable searches and seizures,
it becomes clear that the reach of that Amendment cannot turn upon the
presence or absence of a physical intrusion into any given
enclosure.''\145\ Because the surveillance of Katz's telephone calls had
not been authorized by a magistrate, it was invalid; however, the Court
thought that ``it is clear that this surveillance was so narrowly
circumscribed that a duly authorized magistrate, properly notified of
the need for such investigation, specifically informed of the basis on
which it was to proceed, and clearly apprised of the precise intrusion
it would entail, could constitutionally have authorized, with
appropriate safeguards, the very limited search and seizure that the
Government asserts in fact took place.''\146\ The notice requirement,
which had loomed in Berger as an obstacle to successful electronic
surveillance, was summarily disposed of.\147\ Finally, Justice Stewart
observed that it was unlikely that electronic surveillance would ever
come under any of the established exceptions so that it could be
conducted without prior judicial approval.\148\
\143\Id. at 71, 113.
\144\389 U.S. 347 (1967).
\145\Id. at 353. ``We conclude that the underpinnings of
Olmstead and Goldman have been so eroded by our subsequent decisions
that the `trespass' doctrine there enunciated can no longer be regarded
as controlling. The Government's activities in electronically listening
to and recording the petitioner's words violated the privacy upon which
he justifiably relied while using the telephone booth and thus
constituted a `search and seizure' within the meaning of the Fourth
Amendment.'' Id.
\146\Id. at 354. The ``narrowly circumscribed'' nature of the
surveillance was made clear by the Court in the immediately preceding
passage. ``[The Government agents] did not begin their electronic
surveillance until investigation of the petitioner's activities had
established a strong probability that he was using the telephone in
question to transmit gambling information to persons in other States, in
violation of federal law. Moreover, the surveillance was limited, both
in scope and in duration, to the specific purpose of establishing the
contents of the petitioner's unlawful telephonic communications. The
agents confined their surveillance to the brief periods during which he
used the telephone booth, and they took great care to overhear only the
conversations of the petitioner himself.'' Id. For similar emphasis upon
precision and narrow circumscription, see Osborn v. United States, 385
U.S. 323, 329-30 (1966).
\147\``A conventional warrant ordinarily serves to notify the
suspect of an intended search . . . . In omitting any requirement of
advance notice, the federal court . . . simply recognized, as has this
Court, that officers need not announce their purpose before conducting
an otherwise authorized search if such an announcement would provoke the
escape of the suspect or the destruction of critical evidence.'' 389
U.S. at 355 n.16.
\148\Id. at 357-58. Justice Black dissented, feeling that the
Fourth Amendment applied only to searches for and seizures of tangible
things and not conversations. Id. at 364. Two ``beeper'' decisions
support the general applicability of the warrant requirement if
electronic surveillance will impair legitimate privacy interests.
Compare United States v. Knotts, 460 U.S. 276 (1983) (no Fourth
Amendment violation in relying on a beeper, installed without warrant,
to aid in monitoring progress of a car on the public roads, since there
is no legitimate expectation of privacy in destination of travel on the
public roads), with United States v. Karo, 468 U.S. 705 (1984) (beeper
installed without a warrant may not be used to obtain information as to
the continuing presence of an item within a private residence).
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[[Page 1255]]
Following Katz, Congress enacted in 1968 a comprehensive statute
authorizing federal officers and permitting state officers pursuant to
state legislation complying with the federal law to seek warrants for
electronic surveillance to investigate violations of prescribed classes
of criminal legislation.\149\ The Court has not yet had occasion to pass
on the federal statute and to determine whether its procedures and
authorizations comport with the standards sketched in Osborn, Berger,
and Katz or whether those standards are somewhat more flexible than they
appear to be on the faces of the opinions.\150\
\149\Title III of the Omnibus Crime Control and Safe Streets Act
of 1968, 82 Stat. 211, 18 U.S.C. Sec. Sec. 2510-20.
\150\The Court has interpreted the statute several times without
reaching the constitutional questions. United States v. Kahn, 415 U.S.
143 (1974); United States v. Giordano, 416 U.S. 505 (1974); United
States v. Chavez, 416 U.S. 562 (1974); United States v. Donovan, 429
U.S. 413 (1977); Scott v. United States, 436 U.S. 128 (1978); Dalia v.
United States, 441 U.S. 238 (1979); United States v. New York Telephone
Co., 434 U.S. 159 (1977); United States v. Caceres, 440 U.S. 741 (1979).
Dalia supra, did pass on one constitutional issue, whether the Fourth
Amendment mandated specific warrant authorization for a surreptitious
entry to install an authorized ``bug.'' See also Smith v. Maryland, 442
U.S. 735 (1979) (no reasonable expectation of privacy in numbers dialed
on one's telephone, so Fourth Amendment does not require a warrant to
install ``pen register'' to record those numbers).
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Warrantless ``National Security'' Electronic Surveillance.--In
Katz v. United States,\151\ Justice White sought to preserve for a
future case the possibility that in ``national security cases''
electronic surveillance upon the authorization of the President or the
Attorney General could be permissible without prior judicial approval.
The Executive Branch then asserted the power to wiretap and to ``bug''
in two types of national security situations, against domestic
subversion and against foreign intelligence operations, first basing its
authority on a theory of ``inherent'' presidential power and then in the
Supreme Court withdrawing to the argument that such surveillance was a
``reasonable'' search and seizure and therefore valid under the Fourth
Amendment. Unanimously, the Court held that at least in cases of
domestic subversive investigations, compliance with the warrant
provisions of the Fourth Amendment was required.\152\ Whether or not a
search was
[[Page 1256]]
reasonable, wrote Justice Powell for the Court, was a question which
derived much of its answer from the warrant clause; except in a few
narrowly circumscribed classes of situations, only those searches
conducted pursuant to warrants were reasonable. The Government's duty to
preserve the national security did not override the gurarantee that
before government could invade the privacy of its citizens it must
present to a neutral magistrate evidence sufficient to support issuance
of a warrant authorizing that invasion of privacy.\153\ This protection
was even more needed in ``national security cases'' than in cases of
``ordinary'' crime, the Justice continued, inasmuch as the tendency of
government so often is to regard opponents of its policies as a threat
and hence to tread in areas protected by the First Amendment as well as
by the Fourth.\154\ Rejected also was the argument that courts could not
appreciate the intricacies of investigations in the area of national
security nor preserve the secrecy which is required.\155\
\151\389 U.S. 347, 363-64 (1967) (concurring opinion). Justices
Douglas and Brennan rejected the suggestion. Id. at 359-60 (concurring
opinion). When it enacted its 1968 electronic surveillance statute,
Congress alluded to the problem in ambiguous fashion, 18 U.S.C.
Sec. 2511(3), which the Court subsequently interpreted as having
expressed no congressional position at all. United States v. United
States District Court, 407 U.S. 297, 302-08 (1972).
\152\United States v. United States District Court, 407 U.S. 297
(1972). Chief Justice Burger concurred in the result and Justice White
concurred on the ground that the 1968 law required a warrant in this
case, and therefore did not reach the constitutional issue. Id. at 340.
Justice Rehnquist did not participate. Justice Powell carefully noted
that the case required ``no judgment on the scope of the President's
surveillance power with respect to the activities of foreign powers,
within or without this country.'' Id. at 308.
\153\The case contains a clear suggestion that the Court would
approve a congressional provision for a different standard of probable
cause in national security cases. ``We recognize that domestic security
surveillance may involve different policy and practical considerations
from the surveillance of `ordinary crime.' The gathering of security
intelligence is often long range and involves the interrelation of
various sources and types of information. The exact targets of such
surveillance may be more difficult to identify than in surveillance
operations against many types of crimes specified in Title III. Often,
too, the emphasis of domestic intelligence gathering is on the
prevention of unlawful activity or the enhancement of the Government's
preparedness for some future crisis or emergency. . . . Different
standards may be compatible with the Fourth Amendment if they are
reasonable both in relation to the legitimate need of Government for
intelligence information and the protected rights of our citizens. For
the warrant application may vary according to the governmental interest
to be enforced and the nature of citizen rights deserving protection.
. . . It may be that Congress, for example, would judge that the
application and affidavit showing probable cause need not follow the
exact requirements of Sec. 2518 but should allege other circumstances
more appropriate to domestic security cases. . . .'' Id. at 322-23.
\154\Id. at 313-24.
\155\Id. at 320.
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The question of the scope of the President's constitutional
powers, if any, remains judicially unsettled.\156\ Congress has acted,
however, providing for a special court to hear requests for warrants for
electronic surveillance in foreign intelligence situations, and
permitting the President to authorize warrantless surveillance to
[[Page 1257]]
acquire foreign intelligence information provided that the
communications to be monitored are exclusively between or among foreign
powers and there is no substantial likelihood any ``United States
person'' will be overheard.\157\
\156\See United States v. Butenko, 494 F.2d 593 (3d Cir.), cert.
denied, 419 U.S. 881 (1974); Zweibon v. Mitchell, 516 F.2d 594 (D.C.
Cir. 1975), cert. denied, 425 U.S. 944 (1976), appeal after remand 565
F.2d 742 (D.C. Cir. 1977), on remand, 444 F. Supp. 1296 (D.D.C. 1978),
aff'd. in part, rev'd. in part, 606 F.2d 1172 (D.C. Cir. 1979), cert.
denied, 453 U.S. 912 (1981); Smith v. Nixon, 606 F.2d 1183 (D.C. Cir.
1979), cert. denied, 453 U.S. 912 (1981); United States v. Truong Dinh
Hung, 629 F.2d 908 (4th Cir. 1980), after remand, 667 F.2d 1105 (4th
Cir. 1981); Halkin v. Helms, 690 F.2d 977 (D.C. Cir. 1982).
\157\Foreign Intelligence Surveillance Act of 1978, Pub. L. No.
95-511, 92 Stat. 1797, 50 U.S.C. Sec. Sec. 1801-1811. See United States
v. Belfield, 692 F.2d 141 (D.C. Cir. 1982) (upholding constitutionality
of disclosure restrictions in Act).
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FOURTH AMENDMENT
SEARCH AND SEIZURE
Enforcing the Fourth Amendment: The Exclusionary Rule
A right to be free from unreasonable searches and seizures is
declared by the Fourth Amendment, but how one is to translate the
guarantee into concrete terms is not specified. Several possible methods
of enforcement have been suggested over time; however, the Supreme Court
has settled, not without dissent, on only one as an effective means to
make real the right.
Alternatives to the Exclusionary Rule.--Theoretically, there are
several alternatives to the exclusionary rule. An illegal search and
seizure may be criminally actionable and officers undertaking one thus
subject to prosecution, but the examples when officers are criminally
prosecuted for overzealous law enforcement are extremely rare.\158\ A
policeman who makes an illegal search and seizure is subject to internal
departmental discipline which may be backed up in the few jurisdictions
which have adopted them by the oversight of and participation of police
review boards, but again the examples of disciplinary actions are
exceedingly rare.\159\ Persons who have been illegally arrested or who
have had their privacy invaded will usually have a tort action available
under state statutory or common law.
\158\Edwards, Criminal Liability for Unreasonable Searches and
Seizures, 41 Va. L. Rev. 621 (1955).
\159\Goldstein, Police Policy Formulation: A Proposal for
Improving Police Performance, 65 Mich. L. Rev. 1123 (1967).
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Moreover, police officers acting under color of state law who
violate a person's Fourth Amendment rights are subject to a suit for
damages and other remedies\160\ under a civil rights statute in federal
courts.\161\ While federal officers and others acting under color of
federal law are not subject jurisdictionally to this statute,
[[Page 1258]]
the Supreme Court has recently held that a right to damages for
violation of Fourth Amendment rights arises by implication out of the
guarantees secured and that this right is enforceable in federal
courts.\162\ While a damage remedy might be made more effectual,\163\ a
number of legal and practical problems stand in the way.\164\ Police
officers have available to them the usual common-law defenses, most
important of which is the claim of good faith.\165\ Federal officers are
entitled to qualified immunity based on an objectively reasonable belief
that a warrantless search later determined to violate the Fourth
Amendment was supported by probable cause or exigent circumstances.\166\
And on the practical side, persons subjected to illegal arrests and
searches and seizures are often disreputable persons toward whom juries
are unsympathetic, or they are indigent and unable to bring suit. The
result, therefore, is that the Court has emphasized exclusion of
unconstitutionally seized evidence in subsequent criminal trials as the
only effective enforcement method.
\160\If there are continuing and recurrent violations, federal
injunctive relief would be available. Cf. Lankford v. Gelston, 364 F.2d
197 (4th Cir. 1966); Wheeler v. Goodman, 298 F. Supp. 935 (preliminary
injunction), 306 F. Supp. 58 (permanent injunction) (W.D.N.C. 1969),
vacated on jurisdictional grounds, 401 U.S. 987 (1971).
\161\42 U.S.C. Sec. 1983 (1964). See Monroe v. Pape, 365 U.S.
167 (1961). In some circumstances, the officer's liability may be
attributed to the municipality. Monell v. New York City Dep't of Social
Services, 436 U.S. 658 (1978). These claims that officers have used
excessive force in the course of an arrest or investigatory stop are to
be analyzed under the Fourth Amendment, not under substantive due
process. The test is ``whether the officers' actions are `objectively
reasonable' under the facts and circumstances confronting them.'' Graham
v. Connor, 490 U.S. 386, 397 (1989).
\162\Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388
(1971). The possibility had been hinted at in Bell v. Hood, 327 U.S. 678
(1946).
\163\See, e.g., Chief Justice Burger's dissent in Bivens v. Six
Unknown Fed. Narcotics Agents, 403 U.S. 388, 411, 422-24 (1971), which
suggests suit against the Government in a special tribunal and the
abolition of the exclusionary rule.
\164\Foote, Tort Remedies for Police Violations of Individual
Rights, 39 Minn. L. Rev. 493 (1955).
\165\This is the rule in actions under 42 U.S.C. Sec. 1983,
Pierson v. Ray, 386 U.S. 547 (1967), and on remand in Bivens the Court
of Appeals promulgated the same rule to govern trial of the action.
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,
456 F.2d 1339 (2d Cir. 1972).
\166\Anderson v. Creighton, 483 U.S. 635 (1987). The dissenting
Justices argued, inter alia, that such a principle is more appropriately
applied as an affirmative defense, thereby allowing resolution of
factual disputes prior to determining objective reasonableness of an
officer's actions. 483 U.S. at 655 (Stevens, J.). See also Malley v.
Briggs, 475 U.S. 335, 345 (1986) (qualified immunity protects police
officers who applied for a warrant unless ``a reasonably well-trained
officer in [the same] position would have known that his affidavit
failed to establish probable cause and that he should not have applied
for a warrant'').
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Development of the Exclusionary Rule.--Exclusion of evidence as
a remedy for Fourth Amendment violations found its beginning in Boyd v.
United States,\167\ which, as was noted above, involved not a search and
seizure but a compulsory production of business papers which the Court
likened to a search and seizure. Further, the Court analogized the Fifth
Amendment's self-incrimination provision to the Fourth Amendment's
protections to derive a rule which required exclusion of the compelled
evidence because the defendant had been compelled to incriminate himself
by producing it.\168\ The Boyd case was closely limited to its facts and
an
[[Page 1259]]
exclusionary rule based on Fourth Amendment violations was rejected by
the Court a few years later, with the Justices adhering to the common-
law rule that evidence was admissible however acquired.\169\
\167\116 U.S. 616 (1886).
\168\``We have already noticed the intimate relation between the
two Amendments. They throw great light on each other. For the
`unreasonable searches and seizures' condemned in the Fourth Amendment
are almost always made for the purpose of compelling a man to give
evidence against himself, which in criminal cases is condemned in the
Fifth Amendment; and compelling a man in a criminal case to be a witness
against himself, which is condemned in the Fifth Amendment, throws light
on the question as to what is an `unreasonable search and seizure'
within the meaning of the Fourth Amendment. And we have been unable to
perceive that the seizure of a man's private books and papers to be used
in evidence against him is substantially different from compelling him
to be a witness against himself. We think it is within the clear intent
and meaning of those terms.'' Id. at 633. It was this utilization of the
Fifth Amendment's clearly required exclusionary rule, rather than one
implied from the Fourth, on which Justice Black relied and absent a
Fifth Amendment self-incrimination violation he did not apply such a
rule. Mapp v. Ohio, 367 U.S. 643, 661 (1961) (concurring opinion);
Coolidge v. New Hampshire, 403 U.S. 443, 493, 496-500 (1971) (dissenting
opinion). The theory of a ``convergence'' of the two Amendments has now
been disavowed by the Court. Supra, pp.1225-26.
\169\Adams v. New York, 192 U.S. 585 (1904). Since the case
arose from a state court and concerned a search by state officers, it
could have been decided simply by holding that the Fourth Amendment was
inapplicable. See National Safe Deposit Co. v. Stead, 232 U.S. 58, 71
(1914).
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Nevertheless, ten years later the common-law view was itself
rejected and an exclusionary rule propounded in Weeks v. United
States.\170\ Weeks had been convicted on the basis of evidence seized
from his home in the course of two warrantless searches; some of the
evidence consisted of private papers like those sought to be compelled
in the Boyd case. Unanimously, the Court held that the evidence should
have been excluded by the trial court. The Fourth Amendment, Justice Day
said, placed on the courts as well as on law enforcement officers
restraints on the exercise of power compatible with its guarantees.
``The tendency of those who execute the criminal laws of the country to
obtain convictions by means of unlawful searches and enforced
confessions . . . should find no sanction in the judgment of the courts
which are charged at all times with the support of the Constitution and
to which people of all conditions have a right to appeal for the
maintenance of such fundamental rights.''\171\ The ruling is ambiguously
based but seems to have had as its foundation an assumption that
admission of illegally-seized evidence would itself violate the
Amendment. ``If letters and private documents can thus be seized and
held and used in evidence against a citizen accused of an offense, the
protection of the Fourth Amendment declaring his right to be secured
against such searches and seizures is of no value, and, so far as those
thus placed are concerned, might as well be stricken from the Constitu
[[Page 1260]]
tion. The efforts of the courts and their officials to bring the guilty
to punishment, praiseworthy as they are, are not to be aided by the
sacrifice of those great principles established by years of endeavor and
suffering which have resulted in their embodiment in the fundamental law
of the land.''\172\
\170\232 U.S. 383 (1914).
\171\Id. at 392.
\172\Id. at 393.
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Because the Fourth Amendment did not restrict the actions of
state officers,\173\ there was no question about the application of an
exclusionary rule in state courts\174\ as a mandate of federal
consitutional policy.\175\ But in Wolf v. Colorado,\176\ a unanimous
Court held that freedom from unreasonable searches and seizures was such
a fundamental right as to be protected against state violations by the
due process clause of the Fourteenth Amendment.\177\ However, the Court
held that the right thus guaranteed did not require that the
exclusionary rule be applied in the state courts, since there were other
means to observe and enforce the right. ``Granting that in practice the
exclusion of evidence may be an effective way of deterring unreasonable
searches, it is not for this Court to condemn as falling below the
minimal standards assured
[[Page 1261]]
by the Due Process Clause a State's reliance upon other methods which,
if consistently enforced, would be equally effective.''\178\
\173\Smith v. Maryland, 59 U.S. (18 How.) 71, 76 (1855);
National Safe Deposit Co. v. Stead, 232 U.S. 58, 71 (1914). See supra,
p.957.
\174\The history of the exclusionary rule in the state courts
was surveyed by Justice Frankfurter in Wolf v. Colorado, 338 U.S. 25,
29, 33-38 (1949). The matter was canvassed again in Elkins v. United
States, 364 U.S. 206, 224-32 (1960).
\175\During the period in which the Constitution did not impose
any restrictions on state searches and seizures, the Court permitted the
introduction in evidence in federal courts of items seized by state
officers which had they been seized by federal officers would have been
inadmissible, Weeks v. United States, 232 U.S. 383, 398 (1914), so long
as no federal officer participated in the search, Byars v. United
States, 273 U.S. 28 (1927), or the search was not made on behalf of
federal law enforcement purposes. Gambino v. United States, 275 U.S. 310
(1927). This rule became known as the ``silver platter doctrine'' after
the phrase coined by Justice Frankfurter in Lustig v. United States, 338
U.S. 74, 78-79 (1949): ``The crux of that doctrine is that a search is a
search by a federal official if he had a hand in it; it is not a search
by a federal official if evidence secured by state authorities is turned
over to the federal authorities on a silver platter.'' In Elkins v.
United States, 364 U.S. 206 (1960), the doctrine was discarded by a
five-to-four majority which held that inasmuch as Wolf v. Colorado, 338
U.S. 25 (1949), had made state searches and seizures subject to federal
constitutional restrictions through the Fourteenth Amendment's due
process clause, the ``silver platter doctrine'' was no longer
constitutionally viable. During this same period, since state courts
were free to admit any evidence no matter how obtained, evidence
illegally seized by federal officers could be used in state courts,
Wilson v. Schnettler, 365 U.S. 381 (1961), although the Supreme Court
ruled out such a course if the evidence had first been offered in a
federal trial and had been suppressed. Rea v. United States, 350 U.S.
214 (1956).
\176\338 U.S. 25 (1949).
\177\``The security of one's privacy against arbitrary intrusion
by the police--which is at the core of the Fourth Amendment--is basic to
a free society. It is therefore implicit in `the concept of ordered
liberty' and as such enforceable against the States through the Due
Process Clause.'' Id. at 27-28.
\178\Id. at 31. Justices Douglas, Murphy, and Rutledge dissented
with regard to the issue of the exclusionary rule and Justice Black
concurred.
---------------------------------------------------------------------------
It developed, however, that the Court had not vested in the
States total discretion in regard to the admissibility of evidence, as
the Court proceeded to evaluate under the due process clause the methods
by which the evidence had been obtained. Thus, in Rochin v.
California,\179\ evidence of narcotics possession had been obtained by
forcible administration of an emetic to defendant at a hospital after
officers had been unsuccessful in preventing him from swallowing certain
capsules. The evidence, said Justice Frankfurter for the Court, should
have been excluded because the police methods were too objectionable.
``This is conduct that shocks the conscience. Illegally breaking into
the privacy of the petitioner, the struggle to open his mouth and remove
what was there, the forcible extraction of his stomach's contents . . .
is bound to offend even hardened sensibilities. They are methods too
close to the rack and screw.''\180\ The Rochin standard was limited in
Irvine v. California,\181\ in which defendant was convicted of
bookmaking activities on the basis of evidence secured by police who
repeatedly broke into his house and concealed electronic gear to
broadcast every conversation in the house. Justice Jackson's plurality
opinion asserted that Rochin had been occasioned by the element of
brutality, and that while the police conduct in Irvine was blatantly
illegal the admissibility of the evidence was governed by Wolf, which
should be consistently applied for purposes of guidance to state courts.
The Justice also entertained considerable doubts about the efficacy of
the exclusionary rule.\182\ Rochin emerged as the standard, however, in
a later case in which the Court sustained the admissibility of the
results of a blood test administered while defendant was unconscious in
a hospital following a traffic accident, the Court observing the routine
nature of the test and the minimal intrusion into bodily privacy.\183\
\179\342 U.S. 165 (1952). The police had initially entered
defendant's house without a warrant. Justices Black and Douglas
concurred in the result on self-incrimination grounds.
\180\Id. at 172.
\181\347 U.S. 128 (1954).
\182\Id. at 134-38. Justice Clark, concurring, announced his
intention to vote to apply the exclusionary rule to the States when the
votes were available. Id. at 138. Justices Black and Douglas dissented
on self-incrimination grounds, id. at 139, and Justice Douglas continued
to urge the application of the exclusionary rule to the States. Id. at
149. Justices Frankfurter and Burton dissented on due process grounds,
arguing the relevance of Rochin. Id. at 142.
\183\Breithaupt v. Abram, 352 U.S. 432 (1957). Chief Justice
Warren and Justices Black and Douglas dissented. Though a due process
case, the results of the case have been reaffirmed directly in a Fourth
Amendment case. Schmerber v. California, 384 U.S. 757 (1966).
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[[Page 1262]]
Then, in Mapp v. Ohio,\184\ the Court held that the exclusionary
rule should and did apply to the States. It was ``logically and
constitutionally necessary,'' wrote Justice Clark for the majority,
``that the exclusion doctrine--an essential part of the right to
privacy--be also insisted upon as an essential ingredient of the right''
to be secure from unreasonable searches and seizures. ``To hold
otherwise is to grant the right but in reality to withhold its privilege
and enjoyment.''\185\ Further, the Court then held that since illegally-
seized evidence was to be excluded from both federal and state courts,
the standards by which the question of legality was to be determined
should be the same, regardless of whether the court in which the
evidence was offered was state or federal.\186\
\184\367 U.S. 643 (1961).
\185\Id. at 655-56. Justice Black concurred, doubting that the
Fourth Amendment itself compelled adoption of an exclusionary rule but
relying on the Fifth Amendment for authority. Id. at 661. Justice
Stewart would not have reached the issue but would have reversed on
other grounds, id. at 672, while Justices Harlan, Frankfurter, and
Whittaker dissented, preferring to adhere to Wolf. Id. at 672. Justice
Harlan advocated the overruling of Mapp down to the conclusion of his
service on the Court. See Coolidge v. New Hampshire, 403 U.S. 443, 490
(1971) (concurring opinion).
\186\Ker v. California, 374 U.S. 23 (1963).
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The Foundations of the Exclusionary Rule.--Important to
determination of such questions as the application of the exclusionary
rule to the States and the ability of Congress to abolish or to limit it
is the fixing of the constitutional source and the basis of the rule.
For some time, it was not clear whether the exclusionary rule was
derived from the Fourth Amendment, from some union of the Fourth and
Fifth Amendments, or from the Court's supervisory power over the lower
federal courts. It will be recalled that in Boyd\187\ the Court fused
the search and seizure clause with the provision of the Fifth Amendment
protecting against compelled self-incrimination. Weeks v. United
States,\188\ though the Fifth Amendment was mentioned, seemed to be
clearly based on the Fourth Amendment. Nevertheless, in opinions
following Weeks the Court clearly identified the basis for the
exclusionary rule as the self-incrimination clause of the Fifth
Amendment.\189\ Then in
[[Page 1263]]
Mapp v. Ohio,\190\ the Court tied the rule strictly to the Fourth
Amendment, finding exclusion of evidence seized in violation of the
Amendment to be the ``most important constitutional privilege'' of the
right to be free from unreasonable searches and seizures, finding that
the rule was ``an essential part of the right of privacy'' protected by
the Amendment.
\187\Boyd v. United States, 116 U.S. 616 (1886).
\188\232 U.S. 383 (1914). Defendant's room had been searched and
papers seized by officers acting without a warrant. ``If letters and
private documents can thus be seized and held and used in evidence
against a citizen accused of an offense, the protection of the Fourth
Amendment declaring his right to be secure against such searches and
seizures is of no value, and, so far as those thus placed are concerned,
might as well be stricken from the Constitution.'' Id. at 393.
\189\E.g., Gouled v. United States, 255 U.S. 298, 306, 307
(1921); Amos v. United States, 255 U.S. 313, 316 (1921); Agnello v.
United States, 269 U.S. 20, 33-34 (1925); McGuire v. United States, 273
U.S. 95, 99 (1927). In Olmstead v. United States, 277 U.S. 438, 462
(1928), Chief Justice Taft ascribed the rule both to the Fourth and the
Fifth Amendments, while in dissent Justices Holmes and Brandeis took the
view that the Fifth Amendment was violated by the admission of evidence
seized in violation of the Fourth. Id. at 469, 478-79. Justice Black was
the only modern proponent of this view. Mapp v. Ohio, 367 U.S. 643, 661
(1961) (concurring opinion); Coolidge v. New Hampshire, 403 U.S. 443,
493, 496-500 (1971) (dissenting opinion). See, however, Justice Clark's
plurality opinion in Ker v. California, 374 U.S. 23, 30 (1963), in which
he brought up the self-incrimination clause as a supplementary source of
the rule, a position which he had discarded in Mapp.
\190\367 U.S. 643, 656 (1961). Wolf v. Colorado, 338 U.S. 25, 28
(1949), also ascribed the rule to the Fourth Amendment exclusively.
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``This Court has ever since [Weeks was decided in 1914] required
of federal law officers a strict adherence to that command which this
Court has held to be a clear, specific, and constitutionally required--
even if judicially implied--deterrent safeguard without insistence upon
which the Fourth Amendment would have been reduced to a `form of
words.'''\191\ It was a necessary step in the application of the rule to
the States to find that the rule was of constitutional origin rather
than a result of an exercise of the Court's supervisory power over the
lower federal courts, inasmuch as the latter could not constitutionally
be extended to the state courts.\192\ In fact, Justice Frankfurter
seemed to find the exclusionary rule to be based on the Court's
supervisory powers in Wolf v. Colorado\193\ in declining to extend the
rule to the States. That the
[[Page 1264]]
rule is of constitutional origin Mapp establishes, but this does not
necessarily establish that it is immune to statutory revision.
\191\Mapp v. Ohio, 367 U.S. 643, 648 (1961) (emphasis supplied).
\192\An example of an exclusionary rule not based on
constitutional grounds may be found in McNabb v. United States, 318 U.S.
332 (1943), and Mallory v. United States, 354 U.S. 449 (1957), in which
the Court enforced a requirement that arrestees be promptly presented to
a magistrate by holding that incriminating admissions obtained during
the period beyond a reasonable time for presentation would be
inadmissible. The rule was not extended to the States, cf. Culombe v.
Connecticut, 367 U.S. 568, 598-602 (1961), but the Court's resort to the
self-incrimination clause in reviewing confessions made such application
irrelevant in most cases in any event. For an example of a transmutation
of a supervisory rule into a constitutional rule, see McCarthy v. United
States, 394 U.S. 459 (1969), and Boykin v. Alabama, 395 U.S. 238 (1969).
\193\Weeks ``was not derived from the explicit requirements of
the Fourth Amendment; . . . The decision was a matter of judicial
implication.'' 338 U.S. 25, 28 (1949). Justice Black was more explicit.
``I agree with what appears to be a plain implication of the Court's
opinion that the federal exclusionary rule is not a command of the
Fourth Amendment but is a judicially created rule of evidence which
Congress might negate.'' Id. at 39-40. He continued to adhere to the
supervisory power basis in strictly search-and-seizure cases, Berger v.
New York, 388 U.S. 41, 76 (1967) (dissenting), except where self-
incrimination values were present. Mapp v. Ohio, 367 U.S. 643, 661
(1961) (concurring). And see id. at 678 (Justice Harlan dissenting);
Elkins v. United States, 364 U.S. 206, 216 (1960) (Justice Stewart for
the Court).
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Suggestions appear in a number of cases, including Weeks, to the
effect that admission of illegally-seized evidence is itself
unconstitutional.\194\ These were often combined with a rationale
emphasizing ``judicial integrity'' as a reason to reject the proffer of
such evidence.\195\ Yet the Court permitted such evidence to be
introduced into trial courts, when the defendant lacked ``standing'' to
object to the search and seizure which produced the evidence\196\ or
when the search took place before the announcement of the decision
extending the exclusionary rule to the States.\197\ At these times, the
Court turned to the ``basic postulate of the exclusionary rule itself.
The rule is calculated to prevent, not to repair. Its purpose is to
deter--to compel respect for the constitutional guaranty in the only
effectively available way--by removing the incentive to disregard
it.''\198\ ``Mapp had as its prime purpose the enforcement of the Fourth
Amendment through the inclusion of the exclusionary rule within its
rights. This, it was found, was the only effective deterrent to lawless
police action. Indeed, all of the cases since Wolf requiring the
exclusion of illegal evidence have been based on the necessity for an
effective deterrent to illegal police action.''\199\
\194\``The tendency of those who execute the criminal laws of
the country to obtain convictions by means of unlawful searches and
enforced confessions . . . should find no sanction in the judgment of
the courts which are charged at all times with the support of the
Constitution . . . .'' Weeks v. United States, 232 U.S. 383, 392 (1914).
In Mapp v. Ohio, 367 U.S. 643, 655, 657 (1961), Justice Clark maintained
that ``the Fourth Amendment include[s] the exclusion of the evidence
seized in violation of its provisions'' and that it, and the Fifth
Amendment with regard to confessions ``assures . . . that no man is to
be convicted on unconstitutional evidence.'' In Terry v. Ohio, 392 U.S.
1, 12, 13 (1968), Chief Justice Warren wrote: ``Courts which sit under
our Constitution cannot and will not be made party to lawless invasions
of the constitutional rights of citizens by permitting unhindered
governmental use of the fruits of such invasions. . . . A ruling
admitting evidence in a criminal trial . . . has the necessary effect of
legitimizing the conduct which produced the evidence.''
\195\Elkins v. United States, 364 U.S. 206, 222-23 (1960); Mapp
v. Ohio, 367 U.S. 643, 660 (1961). See McNabb v. United States, 318 U.S.
332, 339-40 (1943).
\196\Infra, pp.1269-70.
\197\Linkletter v. Walker, 381 U.S. 618 (1965).
\198\Elkins v. United States, 364 U.S. 206, 217 (1960).
\199\Linkletter v. Walker, 381 U.S. 618, 636-37 (1965). The
Court advanced other reasons for its decision as well. Id. at 636-40.
---------------------------------------------------------------------------
Narrowing Application of the Exclusionary Rule.--For as long as
we have had the exclusionary rule, critics have attacked it, challenged
its premises, disputed its morality.\200\ By the early
[[Page 1265]]
1980s a majority of Justices had stated a desire either to abolish the
rule or to sharply curtail its operation,\201\ and numerous opinions had
rejected all doctrinal bases save that of deterrence.\202\ At the same
time, these opinions voiced strong doubts about the efficacy of the rule
as a deterrent, and advanced public interest values in effective law
enforcement and public safety as reasons to discard the rule altogether
or curtail its application.\203\ Thus, the Court emphasized the high
costs of enforcing the rule to exclude reliable and trustworthy
evidence, even when violations have been technical or in good faith, and
suggested that such use of the rule may well ``generat[e] disrespect for
the law and administration of justice,''\204\ as well as free guilty
defendants.\205\ No longer does the Court declare that ``[t]he essence
of a provision forbidding the acquisition of evidence in a certain way
is that not merely evidence so acquired shall not be used before the
Court but that it shall not be used at all.''\206\
\200\Among the early critics were Judge Cardozo, People v.
Defore, 242 N.Y. 13, 21, 150 N.E. 585, 587 (1926) (the criminal will go
free ``because the constable has blundered''); and Dean Wigmore. 8 J.
Wigmore, A Treatise on the Anglo-American System of Evidence 2183-84 (3d
ed. 1940). For extensive discussion of criticism and support, with
citation to the literature, see 1 Wayne R. LaFave, Search and Seizure--A
Treatise on the Fourth Amendment Sec. 1.2 (2d ed. 1987).
\201\E.g., Stone v. Powell, 428 U.S. 465, 496 (1976) (Chief
Justice Burger: rule ought to be discarded now, rather than wait for a
replacement as he argued earlier); id. at 536 (Justice White: modify
rule to admit evidence seized illegally, but in good faith); Schneckloth
v. Bustamonte, 412 U.S. 218, 261 (1973) (Justice Powell); Brown v.
Illinois, 422 U.S. 590, 609 (1975) (Justice Powell); Robbins v.
California, 453 U.S. 420, 437 (1981) (Justice Rehnquist); California v.
Minjares, 443 U.S. 916 (1979) (Justice Rehnquist joined by Chief Justice
Burger); Coolidge v. New Hampshire, 403 U.S. 443, 510 (1971) (Justice
Blackmun joining Justice Black's dissent that ``the Fourth Amendment
supports no exclusionary rule'').
\202\E.g., United States v. Janis, 428 U.S. 433, 446 (1976)
(deterrence is the ``prime purpose'' of the rule, ``if not the sole
one.''); United States v. Calandra, 414 U.S. 338, 347-48 (1974); United
States v. Peltier, 422 U.S. 531, 536-39 (1975); Stone v. Powell, 428
U.S. 465, 486 (1976); Rakas v. Illinois, 439 U.S. 128, 134 n.3, 137-38
(1978); Michigan v. DeFillippo, 443 U.S. 31, 38 n.3 (1979). Thus,
admission of the fruits of an unlawful search or seizure ``work[s] no
new Fourth Amendment wrong,'' the wrong being ``fully accomplished by
the unlawful search or seizure itself,'' United States v. Calandara,
supra, 354, and the exclusionary rule does not ``cure the invasion of
the defendant's rights which he has already suffered.'' Stone v. Powell,
supra, 540 (Justice White dissenting). ``Judicial integrity'' is not
infringed by the mere admission of evidence seized wrongfully. ``[T]he
courts must not commit or encourage violations of the Constitution,''
and the integrity issue is answered by whether exclusion would deter
violations by others. United States v. Janis, supra, at 458 n.35; United
States v. Calandra, supra, at 347, 354; United States v. Peltier, supra,
at 538; Michigan v. Tucker, 417 U.S. 433, 450 n.25 (1974).
\203\United States v. Janis, 428 U.S. 433, 448-54 (1976),
contains a lengthy review of the literature on the deterrent effect of
the rule and doubts about that effect. See also Stone v. Powell, 428
U.S. 465, 492 n.32 (1976).
\204\Stone v. Powell, 428 U.S. at 490, 491.
\205\Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388,
416 (1971) (Chief Justice Burger dissenting).
\206\Silverthorne Lumber Co. v. United States 251 U.S. 385, 392
(1920).
---------------------------------------------------------------------------
Although the exclusionary rule has not been completely
repudiated, its utilization has been substantially curbed. Initial
decisions chipped away at the rule's application. Defendants who
themselves
[[Page 1266]]
were not subjected to illegal searches and seizures may not object to
the introduction against themselves of evidence illegally obtained from
co-conspirators or codefendants,\207\ and even a defendant whose rights
have been infringed may find the evidence coming in, not as proof of
guilt, but to impeach his testimony.\208\ Defendants who have been
convicted after trials in which they were given a full and fair
opportunity to raise claims of Fourth Amendment violations may not
subsequently raise those claims on federal habeas corpus because of the
costs overweighing the minimal deterrent effect.\209\ Evidence obtained
through a wrongful search and seizure may sometimes be used in the
criminal trial, if the prosecution can show a sufficient attenuation of
the link between police misconduct and obtaining of the evidence.\210\
If an arrest or a search which was valid at the time it was effectuated
becomes bad through the subsequent invalidation of the statute under
which the arrest or search was made, evidence obtained thereby is
nonetheless admissible.\211\ A grand jury witness was not permitted to
[[Page 1267]]
refuse to answer questions on the ground that they were based on
evidence obtained from an unlawful search and seizure,\212\ and federal
tax authorities were permitted to use in a civil proceeding evidence
found to have been unconstitutionally seized from defendant by state
authorities.\213\
\207\E.g., Rakas v. Illinois, 439 U.S. 128 (1978); United States
v. Salvucci, 448 U.S. 83 (1980); Rawlings v. Kentucky, 448 U.S. 98
(1980). In United States v. Payner, 447 U.S. 727 (1980), the Court held
it impermissible for a federal court to exercise its supervisory power
to police the administration of justice in the federal system to
suppress otherwise admissible evidence on the ground that federal agents
had flagrantly violated the Fourth Amendment rights of third parties in
order to obtain evidence to use against others when the agents knew that
the defendant would be unable to challenge their conduct under the
Fourth Amendment.
\208\United States v. Havens, 446 U.S. 620 (1980); Walder v.
United States, 347 U.S. 62 (1954). Cf. Agnello v. United States, 269
U.S. 20 (1925) (now vitiated by Havens). The impeachment exception
applies only to the defendant's own testimony, and may not be extended
to use illegally obtained evidence to impeach the testimony of other
defense witnesses. James v. Illinois, 493 U.S. 307 (1990).
\209\Stone v. Powell, 428 U.S. 465 (1976).
\210\Wong Sun v. United States, 371 U.S. 471, 487-88 (1963);
Alderman v. United States, 394 U.S. 165, 180-85 (1969); Brown v.
Illinois, 422 U.S. 590 (1975); Taylor v. Alabama, 457 U.S. 687 (1982).
United States v. Ceccolini, 435 U.S. 268 (1978), refused to exclude the
testimony of a witness discovered through an illegal search. Because a
witness was freely willing to testify and therefore more likely to come
forward, the application of the exclusionary rule was not to be tested
by the standard applied to exclusion of inanimate objects. Deterrence
would be little served and relevant and material evidence would be lost
to the prosecution. In New York v. Harris, 495 U.S. 14 (1990), the Court
refused to exclude a station-house confession made by a suspect whose
arrest at his home had violated the Fourth Amendment because, even
though probable cause had existed, no warrant had been obtained. And in
Segura v. United States, 468 U.S. 796 (1984), evidence seized pursuant
to warrant obtained after an illegal entry was admitted because there
had been an independent basis for issuance of a warrant. This rule
applies as well to evidence observed in plain view during the initial
illegal search. Murray v. United States, 487 U.S. 533 (1988). See also
United States v. Karo, 468 U.S. 705 (1984) (excluding consideration of
tainted evidence, there was sufficient untainted evidence in affidavit
to justify finding of probable cause and issuance of search warrant).
\211\Michigan v. DeFillippo, 443 U.S. 31 (1979) (statute
creating substantive criminal offense). Statutes that authorize
unconstitutional searches and seizures but which have not yet been
voided at the time of the search or seizure may not create this effect,
however, Torres v. Puerto Rico, 442 U.S. 465 (1979); Ybarra v. Illinois,
444 U.S. 85 (1979). This aspect of Torres and Ybarra was to a large
degree nullified by Illinois v. Krull, 480 U.S. 340 (1987), rejecting a
distinction between substantive and procedural statutes and holding the
exclusionary rule inapplicable in the case of a police officer's
objectively reasonable reliance on a statute later held to violate the
Fourth Amendment.
\212\United States v. Calandra, 414 U.S. 338 (1974).
\213\United States v. Janis, 428 U.S. 433 (1976). Similarly, the
rule is inapplicable in civil proceedings for deportation of aliens. INS
v. Lopez-Mendoza, 468 U.S. 1032 (1984).
---------------------------------------------------------------------------
The most severe curtailment of the rule came in 1984 with
adoption of a ``good faith'' exception. In United States v. Leon,\214\
the Court created an exception for evidence obtained as a result of
officers' objective, good-faith reliance on a warrant, later found to be
defective, issued by a detached and neutral magistrate. Justice White's
opinion for the Court\215\ could find little benefit in applying the
exclusionary rule where there has been good-faith reliance on an invalid
warrant. Thus, there was nothing to offset the ``substantial social
costs exacted by the [rule].''\216\ ``The exclusionary rule is designed
to deter police misconduct rather than to punish the errors of judges
and magistrates,'' and in any event the Court considered it unlikely
that the rule could have much deterrent effect on the actions of truly
neutral magistrates.\217\ Moreover, the Court thought that the rule
should not be applied ``to deter objectively reasonable law enforcement
activity,'' and that ``[p]enalizing the officer for the magistrate's
error . . . cannot logically contribute to the deterrence of Fourth
Amendment violations.''\218\ The Court also suggested some circumstances
in which courts would be unable to find that officers' reliance on a
warrant was objectively reasonable: if the officers have been
``dishonest or reckless in preparing their affidavit,'' if it should
have been obvious that the magistrate had ``wholly abandoned'' his
neutral role, or if the warrant was obviously deficient on its face
(e.g., lacking in particularity). The Court
[[Page 1268]]
applied the Leon standard in Massachusetts v. Sheppard,\219\ holding
that an officer possessed an objectively reasonable belief that he had a
valid warrant after he had pointed out to the magistrate that he had not
used the standard form, and the magistrate had indicated that the
necessary changes had been incorporated in the issued warrant.
\214\468 U.S. 897 (1984). The same objectively reasonable
``good-faith'' rule now applies in determining whether officers
obtaining warrants are entitled to qualified immunity from suit. Malley
v. Briggs, 475 U.S. 335 (1986).
\215\The opinion was joined by Chief Justice Burger, and by
Justices Blackmun, Powell, Rehnquist, and O'Connor. Justice Blackmun
also added a separate concurring opinion. Dissents were filed by Justice
Brennan, joined by Justice Marshall, and by Justice Stevens.
\216\468 U.S. at 907.
\217\468 U.S. at 916-17.
\218\468 U.S. at 919, 921.
\219\468 U.S. 981 (1984).
---------------------------------------------------------------------------
The Court then extended Leon to hold that the exclusionary rule
is inapplicable to evidence obtained by an officer acting in objectively
reasonable reliance on a statute later held violative of the Fourth
Amendment.\220\ Justice Blackmun's opinion for the Court reasoned that
application of the exclusionary rule in such circumstances would have no
more deterrent effect on officers than it would when officers reasonably
rely on an invalid warrant, and no more deterrent effect on legislators
who enact invalid statutes than on magistrates who issue invalid
warrants.\221\
\220\Illinois v. Krull, 480 U.S. 340 (1987). The same difficult-
to-establish qualifications apply: there can be no objectively
reasonable reliance ``if, in passing the statute, the legislature wholly
abandoned its responsibility to enact constitutional laws,'' or if ``a
reasonable officer should have known that the statute was
unconstitutional.'' 480 U.S. at 355.
\221\Dissenting Justice O'Connor disagreed with this second
conclusion, suggesting that the grace period ``during which the police
may freely perform unreasonable searches . . . creates a positive
incentive [for legislatures] to promulgate unconstitutional laws,'' and
that the Court's ruling ``destroys all incentive on the part of
individual criminal defendants to litigate the violation of their Fourth
Amendment rights'' and thereby obtain a ruling on the validity of the
statute. 480 U.S. at 366, 369.
---------------------------------------------------------------------------
It is unclear from the Court's analysis in Leon and its progeny
whether a majority of the Justices would also support a good-faith
exception for evidence seized without a warrant, although there is some
language broad enough to apply to warrantless seizures.\222\ It is also
unclear what a good-faith exception would mean in the context of a
warrantless search, since the objective reasonableness of an officer's
action in proceeding without a warrant is already taken into account in
determining whether there has been a Fourth Amendment violation.\223\
The Court's increasing willingness to uphold warrantless searches as not
``unreasonable'' under the Fourth
[[Page 1269]]
Amendment, however, may reduce the frequency with which the good-faith
issue arises in the context of the exclusionary rule.\224\
\222\The whole thrust of analysis in Leon dealt with
reasonableness of reliance on a warrant. The Court several times,
however, used language broad enough to apply to warrantless searches as
well. See, e.g., 468 U.S. at 909 (quoting Justice White's concurrence in
Illinois v. Gates): ``the balancing approach that has evolved . . .
`forcefully suggest[s] that the exclusionary rule be more generally
modified to permit the introduction of evidence obtained in the
reasonable good-faith belief that a search or seizure was in accord with
the Fourth Amendment'''; and id. at at 919: ``[the rule] cannot be
expected, and should not be applied, to deter objectively reasonable law
enforcement activity.''
\223\See Yale Kamisar, Gates, ``Probable Cause,'' ``Good
Faith,'' and Beyond, 69 Iowa L. Rev. 551, 589 (1984) (imposition of a
good-faith exception on top of the ``already diluted'' standard for
validity of a warrant ``would amount to double dilution'').
\224\See, e.g., Illinois v. Rodriguez, 497 U.S. 177 (1990)
(upholding search premised on officer's reasonable but mistaken belief
that a third party had common authority over premises and could consent
to search); Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (no
requirement of knowing and intelligent waiver in consenting to
warrantless search); New York v. Belton, 453 U.S. 454 (1981) (upholding
warrantless search of entire interior of passenger car, including closed
containers, as incident to arrest of driver); United States v. Ross, 456
U.S. 798 (1982) (upholding warrrantless search of movable container
found in a locked car trunk).
---------------------------------------------------------------------------
Operation of the Rule: Standing.--The Court for a long period
followed a rule of ``standing'' by which it determined whether a party
was the appropriate person to move to suppress allegedly illegal
evidence. Akin to Article III justiciability principles, which emphasize
that one may ordinarily contest only those government actions that harm
him, the standing principle in Fourth Amendment cases ``require[d] of
one who seeks to challenge the legality of a search as the basis for
suppressing relevant evidence that he allege, and if the allegation be
disputed that he establish, that he himself was the victim of an
invasion of privacy.''\225\ The Court recently has departed from the
concept of ``standing'' to telescope the inquiry into one inquiry rather
than two. Finding that ``standing'' served no useful analytical purpose,
the Court has held that the issue of exclusion is to be determined
solely upon a resolution of the substantive question whether the
claimant's Fourth Amendment rights have been violated. ``We can think of
no decided cases of this Court that would have come out differently had
we concluded . . . that the type of standing requirement . . .
reaffirmed today is more properly subsumed under substantive Fourth
Amendment doctrine. Rigorous application of the principle that the
rights secured by this Amendment are personal, in place of a notion of
`standing,' will produce no additional situations in which evidence must
be excluded. The inquiry under either approach is the same.''\226\ One
must therefore show that ``the disputed search and seizure has infringed
an interest of the defendant which the Fourth Amendment was designed to
protect.''\227\
\225\Jones v. United States, 362 U.S. 257, 261 (1960). That is,
the movant must show that he was ``a victim of search or seizure, one
against whom the search was directed, as distinguished from one who
claims prejudice only through the use of evidence gathered as a
consequence of search or seizure directed at someone else.'' Id. See
Alderman v. United States, 394 U.S. 165, 174 (1969).
\226\Rakas v. Illinois, 439 U.S. 128, 139 (1978).
\227\Id. at 140.
---------------------------------------------------------------------------
The Katz reasonable expectation of privacy rationale has now
displaced property-ownership concepts which previously might have
supported either standing to suppress or the establishment of an
interest that has been invaded. Thus, it is no longer sufficient
[[Page 1270]]
to allege possession or ownership of seized goods to establish the
interest, if a justifiable expectation of privacy of the defendant was
not violated in the seizure.\228\ Also, it is no longer sufficient that
one merely be lawfully on the premises in order to be able to object to
an illegal search; rather, one must show some legitimate interest in the
premises that the search invaded.\229\ The same illegal search might,
therefore, invade the rights of one person and not of another.\230\
Again, the effect of the application of the privacy rationale has been
to narrow considerably the number of people who can complain of an
unconstitutional search.
\228\Previously, when ownership or possession was the issue,
such as a charge of possessing contraband, the Court accorded
``automatic standing'' to one on the basis, first, that to require him
to assert ownership or possession at the suppression hearing would be to
cause him to incriminate himself with testimony that could later be used
against him, and, second, that the government could not simultaneously
assert that defendant was in possession of the items and deny that it
had invaded his interests. Jones v. United States, 362 U.S. 257, 261-265
(1960). See also United States v. Jeffers, 342 U.S. 48 (1951). But in
Simmons v. United States, 390 U.S. 377 (1968), the Court held
inadmissible at the subsequent trial admissions made in suppression
hearings. When it then held that possession alone was insufficient to
give a defendant the interest to move to suppress, because he must show
that the search itself invaded his interest, the second consideration
was mooted as well, and thus the ``automatic standing'' rule was
overturned. United States v. Salvucci, 448 U.S. 83 (1980) (stolen checks
found in illegal search of apartment of the mother in defendant, in
which he had no interest; defendant could not move to suppress on the
basis of the illegal search); Rawlings v. Kentucky, 448 U.S. 98 (1980)
(drugs belonging to defendant discovered in illegal search of friend's
purse, in which he had no privacy interest; admission of ownership
insufficient to enable him to move to suppress).
\229\Rakas v. Illinois, 439 U.S. 128 (1978) (passengers in
automobile had no privacy interest in interior of the car; could not
object to illegal search). Jones v. United States, 362 U.S. 257 (1960),
had established rule that anyone legitimately on the premises could
object; the rationale was discarded but the result in Jones was
maintained because he was there with permission, he had his own key, his
luggage was there, he had the right to exclude and therefore a
legitimate expectation of privacy. Similarly maintained were the results
in United States v. Jeffers, 342 U.S. 48 (1951) (hotel room rented by
defendant's aunts to which he had a key and permission to store things);
Mancusi v. DeForte, 392 U.S. 364 (1968) (defendant shared office with
several others; though he had no reasonable expectation of absolute
privacy, he could reasonably expect to be intruded on only by other
occupants and not by police).
\230\E.g., Rawlings v. Kentucky, 448 U.S. 98 (1980) (fearing
imminent police search, defendant deposited drugs in companion's purse
where they were discovered in course of illegal search; defendant had no
legitimate expectation of privacy in her purse, so that his Fourth
Amendment rights were not violated, although hers were).
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