The 30 round mag ban won in the courts. Magpul left the state because of that ruling if I remember right.
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Colorado county approves warrantless search and seizure of residences and confiscation of firearms
- Thread starter RidgeRunner45-70
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I'm not from commiefornika nor colorado, but the bolded part basically says "certain personnel (they don't define who that is) can enter your property in order to save life or property, and you agreed that a LEO can do that anyway which is incorrect in most states and certainly incorrect in all states according the Constitution for illegal search and seizure.
This appears to be a backdoor red flag law where "certain" personnel can enter the home and take firearms because they think the gun owner is a threat? Anyone owning more than a shotgun is a threat so lets take away their centerfire rifles and pistols?
Do they require a mental adjudication from a court of law to do so, or is it just someone's opinion that this person needs to lose their 2A rights because of why?
Spent three summers in Southern Colorado with a great county maintained gun range two miles away.
About 10 of us were shooting there one day when the county Sheriff showed up with a bunch of deputy's to qualify. Half of us were shooting AR's with 30 round mags on the long range area, the other half on the pistol bays.
Sheriff asked if they could have complete access to the pistol bays to qualify which we gladly agreed with.
He actually visited with us on the rifle bay for awhile, saying nothing about the dozen AR's laying on the benches with two or more dozen 30 round mags laying next to them.
Not all of Colorado is left wing, anti gun.
Denver, with the influx of those from the commie states have turned Colorado blue.
Texas is experiencing the same influx but are still holding on to the red state status.
If Tx falls to the demonrats, there will never be another Republican President.
The definition of an American, be they Democrat, or Republican, is; Someone that loves our great country, and way of life, and is willing to, and has, fought and died in the MILLIONS, to protect, defend, and preserve our nation and way of life! The definition of a anarchist, be they left, or right wing, is; Someone that HATES our great country, and way of life, and wants to destroy it, and replace it with their version of the utopian socity! We are being minipulated mostly by the lap dog news, and social media, that is likely controlled by Communist China, into thinking Democrats, or Republcans are the enemy! This is the oldest tactic in the book, and is working! Americans all want the same thing, what is best for America, and Americans. We only differ as to the best way to reach our COMMON GOAL! This debate is healthy, and has allowed us to become the LAST BEST HOE FOR HUMANITY, AND HAVE THE HIGHEST STANDARD OF LIVING IN ALL OF HUMAN HISTORY, AT THE VERY SAME TIME MANY OF OUR NEIGHBORS LIVE IN FEAR, AND HOPELESS POVERTY, UNDER THE HEAL OF ANARCHIST LEFT, AND RIGHT WING, DICTATORS! WE MUST THINK FOR OURSELVES, IF WE SURVIVE!
I dont disagree with you in regards to the broadest swath of Americans. There are those out there that just want to see that they can have impact on things. It is like a really large scale HOA to them. They want to say everyone's grass must be 0.125" shorter this year than it was last year and then sit on their porch watching everyone run outside with their lawnmower.
Our lives have gotten so easy we have to manifest struggles. Humans require obstacles to overcome and when all of the real obstacles (hunger, thirst, lack of shelter, lack of security, ability to provide for our kids, affording means of transportation, affording doctors visits without rewriting the budget for the rest of the year or go broke) have all but disappeared from our lives, we will make some up so we can feel like we are triumphing over something.
I think this explains some of the more absurd "movements" we have had over the past couple of decades. Grow up in an upper middle class suburb where everyone leaves their doors unlocked and never hear a siren unless you go to the city? No one asking you what your preferred pronoun is is pretty much like the civil rights movements of the 60s. Its ridiculous and we try to make sure our kids see it for what it is. Sometimes it is hard to find that balance on teaching them to be compassionate while recognizing false struggles.
Our lives have gotten so easy we have to manifest struggles. Humans require obstacles to overcome and when all of the real obstacles (hunger, thirst, lack of shelter, lack of security, ability to provide for our kids, affording means of transportation, affording doctors visits without rewriting the budget for the rest of the year or go broke) have all but disappeared from our lives, we will make some up so we can feel like we are triumphing over something.
I think this explains some of the more absurd "movements" we have had over the past couple of decades. Grow up in an upper middle class suburb where everyone leaves their doors unlocked and never hear a siren unless you go to the city? No one asking you what your preferred pronoun is is pretty much like the civil rights movements of the 60s. Its ridiculous and we try to make sure our kids see it for what it is. Sometimes it is hard to find that balance on teaching them to be compassionate while recognizing false struggles.
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They do define who can make entry in Section 4.
Law enforcement officers can make entry into a home without a warrant under many circumstances...life threatening emergencies being one of them. As far as I know they can do that in any state. That paragraph talks about immediate assistance to protect life and property. Again...LEOs can do that already and have been authorized to do that at least since I became one in 1989. That's nothing new.
Just to be clear, I'm not defending this. I'm just trying to look at it objectively without a "sky is falling" mentality.
If you think this county resolution says:
Colorado county approves warrantless search and seizure of residences and confiscation of firearms
...show me that in the resolution. Because I don't see it.
Oh, man.... that's going to get you CRUCIFIED around here...!
that is trueOh, man.... that's going to get you CRUCIFIED around here...!
I love the beautiful scenery in Colorado, but they have some asinine laws and policies. I'm glad I don't live there. Thank god for second amendment sanctuary county and state.
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Colorado is very beautiful...you just can't enjoy it due to the liberals, congestion, traffic, liberals, taxes, cost of living, liberals and now their idiotic gun laws that only punish the law-abiding. Oh, yeah...and the liberals.
This was the view from my home in Colorado in the summer of 2015. Gorgeous place in the mountains on 15 very isolated and private acres...where, for the last 7 years we lived there, we were basically prisoners in our own home on the weekends due to the traffic and crowds. I moved to northern Idaho. Way mo betta...
This was the view from my home in Colorado in the summer of 2015. Gorgeous place in the mountains on 15 very isolated and private acres...where, for the last 7 years we lived there, we were basically prisoners in our own home on the weekends due to the traffic and crowds. I moved to northern Idaho. Way mo betta...
The only way an LEO can enter a domicile without a warrant is if they see a crime in progress under most states laws anyway and the Constitution.
If the curtains are shut and the door locked, they cannot enter without a warrant.
Red flag laws are Constitutionally unlawful.
The language of the provision that became the Fourth Amendment underwent some modest 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
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 that need not comply with the second clause.11 This issue has divided the Court for some time, has seen several reversals of precedents, and is important for the resolution of many cases. It is a dispute that has run most consistently throughout the cases involving the scope of the right to search incident to arrest.12 Although 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.
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 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
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 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 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 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.26 In another case, the Court 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.27 The Court has also held that an exigent circumstances exception applied even where the exigency arose as a result of police conduct, so long as the police conduct was “reasonable” in that it neither threatened to nor violated the Fourth Amendment.28
Another matter of scope that the Court has addressed is the category of persons protected by the Fourth Amendment; i.e., 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.”29 The Fourth Amendment therefore does not apply to the search and seizure by 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.
The Interest Protected.
For the Fourth Amendment to ap-ply 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.30 Whether there was a search and seizure within the meaning of the Amendment, and 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. In Entick v. Carrington,31 Lord Camden wrote: “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 Court32 and that acceptance controlled the decision in numerous cases.33 For example, in Olmstead v. United States,34 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 Fourth Amendment restrictions.35The Court later rejected this approach. “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.”36 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.37
The new test, propounded in Katz v. United States, is whether there is an expectation of privacy upon which one may “justifiably” rely.38 “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.”39 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.”40
Katz’s focus on privacy was revitalized in Kyllo v. United States,41 in which the Court invalidated the warrantless use of a thermal imaging device directed at a private home from a public street. The rule devised by the Court to limit police use of new technology that can “shrink the realm of guaranteed privacy” is that “obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical ‘intrusion into a constitutionally protected area’ . . . constitutes a search—at least where (as here) the technology in question is not in general public use.”42 Relying on Katz, the Court rejected as “mechanical” the Government’s attempted distinction between off-the-wall and through-the-wall surveillance. Permitting all off-the-wall observations, the Court observed, “would leave the homeowner at the mercy of advancing technology—including technology that could discern all human activity in the home.”
Although the sanctity of the home has been strongly reaffirmed, protection of privacy in other contexts becomes more problematic. A two-part test that Justice Harlan suggested in Katz often provides the starting point for analysis.43 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.”44 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.”45
Thus, protection of the home is at the apex of Fourth Amendment coverage because of the right associated with ownership to exclude others;46 but ownership of other things, i.e., automobiles, does not carry a similar high degree of protection.47 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.48 Some expectations, the Court has held, are simply not among those that society is prepared to accept.49 In the context of norms for the use of rapidly evolving communications devices, the Court was reluctant to consider “the whole concept of privacy expectations” at all, preferring other decisional grounds: “The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.”50
What seems to have emerged is a balancing standard that 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.” Whereas Justice Harlan saw a greater need to restrain police officers through the warrant requirement as the intrusions on individual privacy grow more extensive,51 the Court’s solicitude for law enforcement objectives frequently tilts the balance in the other direction.
Application of this balancing test, because of the Court’s weighing of law enforcement investigative needs,52 and its 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 an interest protected by the Fourth Amendment had been invaded.53 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.”54 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;55 if the individual has a lesser expectation of privacy, then the invasion may be justified, absent a warrant, by the reasonableness of the intrusion.56 Exceptions to the warrant requirement are no 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.57 The result has been a considerable expansion, beyond what existed prior to Katz, of the power of police and other authorities to conduct searches.
In United States v. Jones,58 the Court seemed to revitalize the significance of governmental trespass in determining whether a Fourth Amendment search has occurred. In Jones, the Court considered whether the attachment of a Global-Positioning-System (GPS) device to a car used by a suspected narcotics dealer and the monitoring of such device for twenty-eight days, constituted a search. Although the Court ruled unanimously that this month-long monitoring violated Jones’s rights, it splintered on the reasoning. A majority of the Court relied on the theory of common law trespass to find that the attachment of the device to the car represented a physical intrusion into Jones’s constitutionally protected “effect” or private property.59 While this holding obviated the need to assess the month-long tracking under Katz’s reasonable expectation of privacy test, five Justices, who concurred either with the majority opinion or concurred with the judgment, would have held that long-term GPS tracking can implicate an individual’s expectation of privacy.60 Some have read these concurrences as partly premised on the idea that while government access to a small data set—for example, one trip in a vehicle—might not violate one’s expectation of privacy, aggregating a month’s worth of personal data allows the government to create a “mosaic” about an individual’s personal life that violates that individual’s reasonable expectation of privacy.61 As a consequence, these concurring opinions could potentially have significant implications for the scope of the Fourth Amendment in relation to current and future technologies, such as cell phone tracking and wearable technologies that do not require a physical trespass to monitor a person’s activities and that can aggregate a wealth of personal data about users.62
Arrests and Other Detentions.
That the Fourth Amend-ment was intended to protect against arbitrary arrests as well as against unreasonable searches was early assumed by Chief Justice Marshall63 and is now established law.64 At common law, warrantless arrests of persons who had committed a breach of the peace or a felony were permitted,65 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.66 However, in order to effectuate an arrest in the home, absent consent or exigent circumstances, police officers must have a warrant.67The 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 are not required.68 Some objective justification must be shown to validate all seizures of the person,69 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.70
The Fourth Amendment does not require an officer to consider whether to issue a citation rather than arresting (and placing in custody) a person who has committed a minor offense—even a minor traffic offense. In Atwater v. City of Lago Vista,71 the Court, even while acknowledging that the case before it involved “gratuitous humiliations imposed by a police officer who was (at best) exercising extremely poor judgment,” refused to require that “case-by-case determinations of government need” to place traffic offenders in custody be subjected to a reasonableness inquiry, “lest every discretionary judgment in the field be converted into an occasion for constitutional review.”72 Citing some state statutes that limit warrantless arrests for minor offenses, the Court contended that the matter is better left to statutory rule than to application of broad constitutional principle.73 Thus, Atwater and County of Riverside v. McLaughlin74 together mean that—as far as the Constitution is concerned—police officers have almost unbridled discretion to decide whether to issue a summons for a minor traffic offense or whether instead to place the offending motorist in jail, where she may be kept for up to 48 hours with little recourse. Even when an arrest for a minor offense is prohibited by state law, the arrest will not violate the Fourth Amendment if it was based on probable cause.75
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.76 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.77 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.78 Similarly, fingerprints and other physical evidence obtained as a result of an unlawful arrest must be suppressed.79
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,80 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.81 But, in 1967, the Court in two cases held that administrative inspections to detect building code violations must be undertaken pursuant to warrant if the occupant objects.82 “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.”83 Certain administrative inspections used 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.84Camara and See were reaffirmed in Marshall v. Barlow’s, Inc.,85 in which the Court held to violate the Fourth Amendment a provision of the Occupational Safety and Health Act that 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 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, 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.86
In Donovan v. Dewey,87 however, the Court seemingly limited Barlow’s reach and articulated a new standard that appeared to permit extensive governmental inspection of commercial property without a warrant. 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 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.”88
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’s 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.89 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.90
Dewey was applied in New York v. Burger91 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 were designed as an expedient means of enforcing the penal laws, and instead saw narrower, valid regulatory purposes to be served, such as 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.92
Most recently, however, in City of Los Angeles v. Patel, the Court declined to extend the “more relaxed standard” applicable to searches of closely regulated businesses to hotels when invalidating a Los Angeles ordinance that gave police the ability to inspect hotel registration records without advance notice and carried a six-month term of imprisonment and a $1,000 fine for hotel operators who failed to make such records available.93 The Patel Court, characterizing inspections pursuant to this ordinance as “administrative searches,”94 held “that a hotel owner must be afforded an opportunity to have a neutral decision maker review an officer’s demand to search the registry before he or she faces penalties for failing to comply” for such a search to be permissible under the Fourth Amendment.95 In so doing, the Court expressly declined to treat the hotel industry as a “closely regulated” industry subject to the more relaxed standard applied in Dewey and Burger on the grounds that doing so would “permit what has always been a narrow exception to swallow the rule.”96 The Court emphasized that, over the prior 45 years, it had recognized only four industries as having “such a history of government oversight that no reasonable expectation of privacy . . . could exist for a proprietor over the stock of such an enterprise.”97 These four industries involve liquor sales, firearms dealing, mining, and running an automobile junkyard, and the Court distinguished hotel operations from these industries, in part, because “nothing inherent in the operation of hotels poses a clear and significant risk to the public welfare.”98 However, the Court also suggested that, even if hotels were to be seen as pervasively regulated, the Los Angeles ordinance would still be deemed unreasonable because (1) there was no substantial government interest informing the regulatory scheme; (2) warrantless inspections were not necessary to further the government’s purpose; and (3) the inspection program did not provide, in terms of the certainty and regularity of its application, a constitutionally adequate substitute for a warrant.99
In other contexts, not directly concerned with whether an industry is comprehensively regulated, the Court has also elaborated the constitutional requirements affecting administrative inspections and searches. In Michigan v. Tyler,100 for example, 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; fire fighters 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.101
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.102 In another unusual case, the Court held that a sheriff ’s assistance to a trailer park owner in disconnecting and removing a mobile home constituted a “seizure” of the home.103
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.”104 In one of these 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.105
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.106 On the other hand, in South Dakota v. Opperman,107 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.
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 searched, and the evidence to be sought.108 Although 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.109Issuance by Neutral Magistrate.
In numerous cases, the Court has referred to the necessity that warrants be issued by a “judicial officer” or a “magistrate.”110 “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.”111 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.”112 The first test cannot be met when the issuing party is himself engaged in law enforcement activities,113 but the Court has not required that an issuing party have that independence of tenure and guarantee of salary that characterizes federal judges.114 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.115Probable 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.”116 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.”117 Warrants are favored in the law and their use will not be thwarted by a hypertechnical reading of the supporting affidavit and supporting testimony.118 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.”119 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.120Much litigation has concerned the sufficiency of the complaint to establish probable cause. Mere conclusory assertions are not enough.121 In United States v. Ventresca,122 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.123
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 States124 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 would be carrying; the informant, however, gave no basis for his information. FBI agents met the train, observed that the defendant fully fit 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,125 apparently considered 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. Texas126 held insufficient an affidavit that 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 that would permit the magistrate to decide whether or not the informant was trustworthy. Then, in Spinelli v. United States,127 the Court applied Aguilar in a situation in which the affidavit contained both an informant’s tip and police information of a corroborating nature.
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. Harris128 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 recently 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.
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.129 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.”130 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.”131
Particularity.
“The requirement that warrants shall particu-larly 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.”132 This requirement thus acts to limit the scope of the search, as the executing officers should be limited to looking in places where the described object could be expected to be found.133 The purpose of the particularity requirement extends beyond prevention of general searches; it also assures the person whose property is being searched of the lawful authority of the executing officer and of the limits of his power to search. It follows, therefore, that the warrant itself must describe with particularity the items to be seized, or that such itemization must appear in documents incorporated by reference in the warrant and actually shown to the person whose property is to be searched.134First Amendment Bearing on Probable Cause and Particularity.
Where the warrant process is used to authorize seizure of books and other items that may be protected by the First Amendment, the Court has required government to observe more exacting standards than in other cases.135 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,136 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.”137 A state procedure that 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 deficient.”138Confusion 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.139 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.140
The seizure of a film without the authority of a constitutionally sufficient warrant is invalid; seizure cannot be justified as incidental to arrest, as the determination of obscenity may not be made by the officer himself.141 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.”142 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.’ ”143 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 . . . .’ ”144
In Stanford v. Texas,145 the Court voided a seizure of more than 2,000 books, pamphlets, and other documents pursuant to a warrant that merely authorized the seizure of books, pamphlets, and other written instruments “concerning the Communist Party of Texas.” “[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.”146
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.147
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.148 But, in Gouled v. United States,149 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 papers of the defendant that 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,”150 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 apprehending and convicting criminals.”151 More evaded than followed, the “mere evidence” rule was overturned in 1967.152 It is now settled that such evidentiary items as fingerprints,153 blood,154 urine samples,155 fingernail and skin scrapings,156 voice and handwriting exemplars,157 conversations,158 and other demonstrative evidence may be obtained through the warrant process or without a warrant where “special needs” of government are shown.159However, some medically assisted bodily intrusions have been held impermissible, e.g., forcible administration of an emetic to induce vomiting,160 and surgery under general anesthetic to remove a bullet lodged in a suspect’s chest.161 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.162
In Warden v. Hayden,163 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,164 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 that authorized court orders to require defendants to produce any document that might “tend to prove any allegation made by the United States.”165 The entire Court agreed that there was a self-incrimination problem, but Justice Bradley for a majority of the Justices also used the Fourth Amendment.
Although the statute did not authorize a search but instead compelled the production of documents, the Justice concluded that the law was well within the restrictions of the Search and Seizure Clause.166 With this point established, the Justice relied on Lord Camden’s opinion in Entick v. Carrington167 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.”168
Although it may be doubtful that the equation of search warrants with subpoenas and other compulsory process ever really amounted to much of a limitation,169 the Court currently dispenses with any theory of “convergence” of the two amendments.170 Thus, in Andresen v. Maryland,171 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.172 As for the Fourth Amendment, because 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.173 Acknowledging that “there are grave dangers inherent in executing a warrant authorizing a search and seizure of a person’s papers,” the Court observed that, although some “innocuous documents” would have to be examined to ascertain which papers were to be seized, authorities, just as with electronic “seizures” of telephone conversations, “must take care to assure that [searches] are conducted in a manner that minimizes unwarranted intrusions upon privacy.”174
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 exists. The question of the propriety of seizure of such papers continues to be the subject of reservation in opinions,175 but it is far from clear that the Court would accept any such exception should the issue be presented.176
Execution of Warrants.
The Fourth Amendment’s “general touchstone of reasonableness . . . governs the method of execution of the warrant.”177 Until recently, however, most such issues have been dealt with by statute and rule.178 It was a rule at common law 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,179 and until recently this has been a statutory requirement in the federal system180 and generally in the states. In Ker v. California,181 the Court considered the rule of announcement as a constitutional requirement, although a majority there found circumstances justifying entry without announcement.In Wilson v. Arkansas,182 the Court determined that the common law “knock and announce” rule is an element of the Fourth Amendment reasonableness inquiry. The rule is merely a presumption, however, that yields under various circumstances, including those posing a threat of physical violence to officers, those in which a prisoner has escaped and taken refuge in his dwelling, and those in which officers have reason to believe that destruction of evidence is likely. The test, articulated two years later in Richards v. Wisconsin,183 is whether police have “a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime.” In Richards, the Court held that there is no blanket exception to the rule whenever officers are executing a search warrant in a felony drug investigation; instead, a case-by-case analysis is required to determine whether no-knock entry is justified under the circumstances.184 Similarly, if officers choose to knock and announce before searching for drugs, circumstances may justify forced entry if there is not a prompt response.185 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.186 A statute regulating the expiration of a warrant and issuance of another “should be liberally construed in favor of the individual.”187 Similarly, just 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.188
Because police actions in execution of a warrant must be related to the objectives of the authorized intrusion, and because privacy of the home lies at the core of the Fourth Amendment, police officers violate the Amendment by bringing members of the media or other third parties into a home during execution of a warrant if presence of those persons was not in aid of execution of the warrant.189
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.190 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,191 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 leaving the premises. 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.192 For the same reasons, officers may use “reasonable force,” including handcuffs, to effectuate a detention.193 Also, under some circumstances, officers may search premises on the mistaken but reasonable belief that the premises are described in an otherwise valid warrant.194
Limits on detention incident to a search were addressed in Bailey v. United States, a case in which an occupant exited his residence and traveled some distance before being stopped and detained.195 The Bailey Court held that the detention was not constitutionally sustainable under the rule announced in Summers.196 According to the Court, application of the categorical exception to probable cause requirements for detention incident to a search is determined by spatial proximity, that is, whether the occupant is found “within the immediate vicinity of the premises to be searched,”197 and not by temporal proximity, that is, whether the occupant is detained “as soon as reasonably practicable” consistent with safety and security. In so holding, the Court reasoned that limiting the Summers rule to the area within which an occupant poses a real threat ensures that the scope of the rule regarding detention incident to a search is confined to its underlying justification.198
Although, for purposes of execution, as for many other matters, there is little difference 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.199
Valid Searches and Seizures Without Warrants
Although the Supreme Court stresses the importance of warrants and has repeatedly referred to searches without warrants as “exceptional,”200 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 . . . compelDetention Short of Arrest: Stop and Frisk.
Arrests are sub-ject 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 a misdemeanor in their presence.205 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 police officer’s stop, what is discovered thereafter not sufficing to establish probable cause retroactively.206 There are, however, instances when a police officer’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.207 In Terry v. Ohio,208 the Court, with only Justice Douglas dissenting, approved an on-the-street investigation by a police officer that involved “patting down” the subject of the investigation for weapons.Terry 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, patted the exterior of his clothes, and discovered a gun. Chief Justice Warren for the Court wrote that the Fourth Amendment was applicable “whenever a police officer accosts an individual and restrains his freedom to walk away.”209 Because 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.210 Because the conduct witnessed by the police officer 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.”211
In a later case, the Court held that an officer may seize an object if, in the course of a weapons frisk, “plain touch” reveals the presence of the object, and the officer has probable cause to believe it is contraband.212 The Court viewed the situation as analogous to that covered by the “plain view” doctrine: obvious contraband may be seized, but a search may not be expanded to determine whether an object is contraband.213 Also impermissible is physical manipulation, without reasonable suspicion, of a bus passenger’s carry-on luggage stored in an overhead compartment.214
Terry did not rule 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. The Court provided a partial answer in 2004, when it upheld a state law that required a suspect to disclose his name in the course of a valid Terry stop.215 Questions about a suspect’s identity “are a routine and accepted part of many Terry stops,” the Court explained.216
After Terry, 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 foundations of their suspicions.217 Although it did not elaborate a set of rules to govern the application of the tests, the Court was initially restrictive in recognizing permissible bases for reasonable suspicion.218 Extensive intrusions on individual privacy, e.g., transportation to the station house for interrogation and fingerprinting, were invalidated in the absence of probable cause,219 although the Court has held that an uncorroborated, anonymous tip is insufficient basis for a Terry stop, and that there is no “firearms” exception to the reasonable suspicion requirement.220 More recently, however, the Court has taken less restrictive approaches.221
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.”222 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.”223 A majority of the Justices subsequently endorsed this reasonable perception standard224 and applied it 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 workforce surveys within a garment factory; while some agents were positioned at exits, others systematically moved through the factory and questioned employees.225 This brief questioning, even with blocked exits, amounted to “classic consensual encounters rather than Fourth Amendment seizures.”226 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.”227
Soon after, 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 had not complied with the officer’s order to halt. The Court in California v. Hodari D. wrote that Mendenhall stated a “necessary” but not a “sufficient” condition for a seizure of the person through show of authority.228 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.229 Indications are, however, that Hodari D. did not signal the end of the reasonable perception standard, but merely carved an exception applicable to chases and perhaps other encounters between suspects and police.
Later in the same term the Court ruled that the Mendenhall “free-to-leave” inquiry was misplaced in the context of a police sweep of a bus, but that a modified reasonable perception approach still governed.230 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.”231 “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.”232
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.”233 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.”234
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 less than probable cause.”235 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.”236 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.237 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.238 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.239
Search Incident to Arrest.
The common-law rule permit-ting searches of the person of an arrestee as an incident to the arrest has occasioned little controversy in the Court.240 The Court has even upheld a search incident to an illegal (albeit not unconstitutional) arrest.241 The dispute has centered around the scope of the search. Because it was the stated general rule that the scope of a warrantless search must be strictly tied to and justified by the circumstances that rendered its justification permissible, and because 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,242 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, because there could have been no 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.243The Court has disavowed a case-by-case evaluation of searches made post-arrest244 and instead has embraced categorical evaluations as to post-arrest searches. Thus, in Riley v. California,245 the Court declined to extend the holding of United States v. Robinson to the search of the digital data contained in a cell phone found on an arrestee. Specifically, the Court distinguished a search of cell phones, which contain vast quantities of personal data, from the limited physical search at issue in Robinson.246 Focusing primarily on the rationale that searching cell phones would prevent the destruction of evidence, the government argued that cell phone data could be destroyed remotely or become encrypted by the passage of time. The Court, however, both discounted the prevalence of these events and the efficacy of warrantless searches to defeat them. Rather, the Court noted that other means existed besides a search of a cell phone to secure the data contained therein, including turning the phone off or placing the phone in a bag that isolates it from radio waves.247 Because of the more substantial privacy interests at stake when digital data is involved in a search incident to an arrest and because of the availability of less intrusive alternatives to a warrantless search, the Court in Riley concluded that, as a “simple” categorical rule, before police can search a cell phone incident to an arrest, the police must “get a warrant.”248
Two years after Riley, the Court again crafted a new brightline rule with respect to searches following an arrest in another “situation[] that could not have been envisioned when the Fourth Amendment was adopted.”249 In Birchfield v. North Dakota, the Court examined whether compulsory breath and blood tests administered in order to determine the blood alcohol concentration (BAC) of an automobile driver, following the arrest of that driver for suspected “drunk driving,” are unreasonable under the search incident to arrest exception to the Fourth Amendment’s warrant requirement.250 In examining laws criminalizing the refusal to submit to either a breath or blood test, similar to Riley, the Court relied on a general balancing approach used to assess whether a given category of searches is reasonable, weighing the individual privacy interests implicated by such tests against any legitimate state interests.251 With respect to breath tests, the Birchfield Court viewed the privacy intrusions posed by such tests as “almost negligible” in that a breath test is functionally equivalent to the process of using a straw to drink a beverage and yields a limited amount of useful information for law enforcement agents.252 In contrast, the Court concluded that a mandatory blood test raised more serious privacy interests,253 as blood tests pierce the skin, extract a part of the subject’s body, and provide far more information than a breathalyzer test.254 Turning to the state’s interest in obtaining BAC readings for persons arrested for drunk driving, the Birchfield Court acknowledged the government’s “paramount interest” in preserving public safety on highways, including the state’s need to deter drunk driving from occurring in the first place through the imposition of criminal penalties for failing to cooperate with drunk driving investigations.255 Weighing these competing interests, the Court ultimately concluded that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving because the “impact of breath tests on privacy is slight,” whereas the “need for BAC testing is great.”256 In so doing, the Court rejected the alternative of requiring the state to obtain a warrant prior to the administration of a BAC breath test, noting (1) the need for clear, categorical rules to provide police adequate guidance in the context of a search incident to an arrest and (2) the potential administrative burdens that would be incurred if warrants were required prior to every breathalyzer test.257 Nonetheless, the Court reached a “different conclusion” with respect to blood tests, finding that such tests are “significantly more intrusive” and their “reasonability must be judged in light of the availability of the less intrusive alternative of a breath test.”258 As a consequence, the Court held that while a warrantless breath test following a drunk-driving arrest is categorically permissible as a reasonable search under the Fourth Amendment, a warrantless blood test cannot be justified by the search incident to arrest doctrine.259
However, the Justices have long found themselves in disagreement 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,260 but in Harris v. United States,261 the Court approved a search of a four-room apartment pursuant to an arrest under warrant for one crime, where the search turned up evidence of another crime. A year later, in Trupiano v. United States,262 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.”263
The Court overruled Trupiano in United States v. Rabinowitz,264 in which officers had arrested the 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,”265 it provided no standard by which this area was to be determined, and extensive searches were permitted under the rule.266
In Chimel v. California,267 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 someone 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.”
“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.”268
Although the viability of Chimel had been in doubt for some time as the Court refined and applied its analysis of reasonable and justifiable expectations of privacy,269 it has in some but not all contexts survived the changed rationale. Thus, in Mincey v. Arizona,270 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,271 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.272 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.”273
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.274
Stating that it was “in no way alter[ing] the fundamental principles established in the Chimel case,” the Court in New York v. Belton275 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].’ ”276
Belton was “widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search.”277 In Arizona v. Gant,278 however, the Court disavowed this understanding of Belton279 and held that “[p]olice may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe that the vehicle contains evidence of the offense of arrest.”280
Vehicular Searches.
In the early days of the automobile, the Court created an exception for searches of vehicles, holding in Carroll v. United States281 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.282Initially, 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.283 The Court also ruled that the search must be reasonably contemporaneous with the stop, so that it was not permissible to remove the vehicle to the station house for a warrantless search at the convenience of the police.284
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 expectation of privacy that exists with respect to differently situated property.”285 “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.’ ”286 Although motor homes serve as residences and as repositories for personal effects, and 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.”287
The reduced expectancy concept has broadened police powers to conduct automobile searches without warrants, but they still must have probable cause to search a vehicle288 and they may not make random stops of vehicles on the roads, but instead must base stops of individual vehicles on probable cause or some “articulable and reasonable suspicion”289 of traffic or safety violation or some other criminal activity.290 If police stop a vehicle, then the vehicle’s passengers as well as its driver are deemed to have been seized from the moment the car comes to a halt, and the passengers as well as the driver may challenge the constitutionality of the stop.291 Likewise, a police officer may frisk (patdown for weapons) both the driver and any passengers whom he reasonably concludes “might be armed and presently dangerous.”292
By contrast, fixed-checkpoint stops in the absence of any individualized suspicion have been upheld for purposes of promoting highway safety293 or policing the international border,294 but not for more generalized law enforcement purposes.295 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.296 And, in the absence of such reasonable suspicion as to weapons, police may seize contraband and suspicious items “in plain view” inside the passenger compartment.297
Although officers who have stopped a car to issue a routine traffic citation may conduct a Terry-type search, even including a pat-down of driver and passengers if there is reasonable suspicion that they are armed and dangerous, they may not conduct a full-blown search of the car298 unless they exercise their discretion to arrest the driver instead of issuing a citation.299 And once police have probable cause to believe there is contraband in a vehicle, they may remove the vehicle from the scene to the station house in order to conduct a search, without thereby being required to obtain a warrant.300 “[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.”301 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.302 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.303
Police in undertaking a warrantless search of an automobile may not extend the search to the persons of the passengers therein304 unless there is a reasonable suspicion that the passengers are armed and dangerous, in which case a Terry patdown is permissible,305 or unless there is individualized suspicion of criminal activity by the passengers.306 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.307 Luggage and other closed containers found in automobiles may also be subjected to warrantless searches based on probable cause, regardless of whether the luggage or containers belong to the driver or to a passenger, and regardless of whether it is the driver or a passenger who is under suspicion.308 The same rule now applies whether the police have probable cause to search only the containers309 or whether they have probable cause to search the automobile for something capable of being held in the container.310
Vessel Searches.
Not only is the warrant requirement inap-plicable 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,311 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,312 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.”313 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.314 Dissenting 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.”315Consent Searches.
Fourth Amendment rights, like other con-stitutional rights, may be waived, and one may consent to a search of his person or premises by officers who have not complied with the Amendment.316 The Court, however, has insisted that the burden is on the prosecution to prove the voluntariness of the consent317 and awareness of the right of choice.318 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 for a search to be found voluntary, and police therefore are not required to inform a person of his rights, as through a Fourth Amendment version of Miranda warnings.319 But consent will not be regarded as voluntary when the officer asserts his official status and claim of right and the occupant yields because of these factors.320 When consent is obtained through the deception of an undercover officer or an informer’s gaining admission without 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.321 Moreover, while the Court has appeared to endorse implied consent laws that view individuals who engage in certain regulated activities as having implicitly agreed to certain searches related to that activity and the enforcement of such laws through civil penalties,322 the implied consent doctrine does not extend so far as to deem individuals to have impliedly consented to a search on “pain of committing a criminal offense.”323Additional issues arise in determining the validity of consent to search when consent is given not by the suspect, but by a third 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.”324 Now, however, actual common authority over the premises is not required; it is sufficient if the searching officer had a reasonable but mistaken belief that the third party had common authority and could consent to the search.325 If, however, one occupant consents to a search of shared premises, but a physically present co-occupant expressly objects to the search, the search is unreasonable.326 Common social expectations inform the analysis. A person at the threshold of a residence could not confidently conclude he was welcome to enter over the express objection of a present co-tenant. Expectations may change, however, if the objecting co-tenant leaves, or is removed from, the premises with no prospect of imminent return.327
Border Searches.
“That searches made at the border, pursu-ant 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.”328 Authorized by the First Congress,329 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.330 Moreover, although 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, Terry protections as to the length and intrusiveness of the search do not apply.331 Motor vehicles may be searched at the border, even to the extent of removing, disassembling, and reassembling the fuel tank.332Inland stoppings and searches in areas away from the borders are a different matter altogether. Thus, in Almeida-Sanchez v. United States,333 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.334 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.335 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.336
“Open Fields”.
In Hester v. United States,337 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 States338 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.339 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.”340 Nor may an individual demand privacy for activities conducted within outbuildings and visible by trespassers peering into the buildings from just outside.341 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.342 Similarly, naked-eye inspection from helicopters flying even lower contravenes no reasonable expectation of privacy.343 And aerial photography of commercial facilities secured from ground-level public view is permissible, the Court finding such spaces more analogous to open fields than to the curtilage of a dwelling.344“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 warrant345 or that, if the officer needs a warrant or probable cause to search and seize, his lawful observation will provide grounds therefor.346 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.347The 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.348
Public Schools.
In New Jersey v. T.L.O.,349 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 State, not merely as surrogates for the parents.”350 However, “the school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject.”351 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.352 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.”353 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.”354 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.In Safford Unified School District #1 v. Redding,355 a student found in possession of prescription ibuprofen pills at school stated that the pills had come from another student, 13-year-old Savana Redding. The Court found that the first student’s statement was sufficiently plausible to warrant suspicion that Savana was involved in pill distribution, and that this suspicion was enough to justify a search of Savana’s backpack and outer clothing.356 School officials, however, had also “directed Savana to remove her clothes down to her underwear, and then ‘pull out’ her bra and the elastic band on her underpants”357 —an action that the Court thought could fairly be labeled a strip search. Taking into account that “adolescent vulnerability intensifies the patent intrusiveness of the exposure” and that, according to a study, a strip search can “result in serious emotional damage,” the Court found that the search violated the Fourth Amendment.358 “Because there were no reasons to suspect the drugs presented a danger or were concealed in her underwear,” the Court wrote, “the content of the suspicion failed to match the degree of intrusion.”359 But, even though the Court found that the search had violated the Fourth Amendment, it found that the school officials who conducted the search were protected from liability through qualified immunity, because the law prior to Red-ding was not clearly established.360
Government Workplace.
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,361 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.”362 Four Justices would require a case-by-case inquiry into the reasonableness of such searches;363 one would hold that such searches “do not violate the Fourth Amendment.”364In City of Ontario v. Quon,365 the Court bypassed adopting an approach for determining a government employee’s reasonable expectation of privacy, an issue unresolved in O’Connor. Rather, the Quon Court followed the “special needs” holding in O’Connor and found that, even assuming a reasonable expectation of privacy, a city’s warrantless search of the transcripts of a police officer’s on-duty text messages on city equipment was reasonable because it was justified at its inception by noninvestigatory work-related purposes and was not excessively intrusive.366 A jury had found the purpose of the search to be to determine whether the city’s contract with its wireless service provider was adequate, and the Court held that “reviewing the transcripts was reasonable because it was an efficient and expedient way to determine whether [the officer’s] overages were the result of work-related messaging or personal use.”367
Prisons and Regulation of Probation and Parole.
The “un-doubted security imperatives involved in jail supervision” require “defer[ence] to the judgment of correctional officials unless the record contains substantial evidence showing their policies are an unnecessary or unjustified response to the problems of jail security.”368 So saying, the Court, in Florence v. Board of Chosen Freeholders, upheld routine strip searches, including close-up visual cavity inspections, as part of processing new arrestees for entry into the general inmate population, without the need for individualized suspicion and without an exception for those arrested for minor offenses.369 Correctional officials had asserted significant penological interests to justify routine strip searches of new arrivals: detecting and preventing the introduction into the inmate population of infections, infestations, and contraband of all sorts; and identifying gang members. Having cited serious concerns and having applied their professional expertise, the officials had, in the Court’s opinion, acted reasonably and not clearly overreacted. But despite taking a deferential approach and recounting the grave dangers correctional officers face, the Florence Court did not hold that individuals being processed for detention have no privacy rights at all. In separate concurrences, moreover, two members of the five-Justice majority held out the prospect of exceptions and refinements in future rulings on blanket strip search policies for new detainees.370The Court in Maryland v. King cited a legitimate interest in having safe and accurate booking procedures to identify persons being taken into custody in order to sustain taking DNA samples from those charged with serious crimes.371 Tapping the “unmatched potential of DNA identification” facilitates knowing with certainty who the arrestee is, the arrestee’s criminal history, the danger the arrestee poses to others, the arrestee’s flight risk, and other relevant facts.372 By comparison, the Court characterized an arrestee’s expectation of privacy as diminished and the intrusion posed by a cheek swab as minimal.373
Searches of prison cells by prison administrators are not limited even by a reasonableness standard, the Court’s having held that “the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell.”374 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.
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).375 “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.”376 “Probation, like incarceration, is a form of criminal sanction,” the Court noted, and a warrant or probable cause requirement would interfere with the “on-going [non-adversarial] supervisory relationship” required for proper functioning of the system.377 A warrant is also not required if the purpose of a search of a probationer is investigate a crime rather than to supervise probation.378
“[O]n the ‘continuum’ of state-imposed punishments . . . , parolees have [even] fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment.”379 The Fourth Amendment, therefore, is not violated by a warrantless search of a parolee that is predicated upon a parole condition to which a prisoner agreed to observe during the balance of his sentence.380
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,381 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; in National Treasury Employees Union v. Von Raab382 the Court upheld a Customs Service screening program requiring urine 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 impairment become noticeable.”383 By contrast, the intrusions on privacy were termed “limited.” Blood and breath tests were passed off as routine; the urine test, although more intrusive, was deemed permissible because of the “diminished expectation of privacy” in employees having some responsibility for safety in a pervasively regulated industry.384 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.385
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.”386 The possibly “substantial” interference with privacy interests of these Customs employees was justified, the Court concluded, because, “nlike most private citizens or government employees generally, they have a diminished expectation of privacy.”387
Emphasizing the “special needs” of the public school context, reflected in the “custodial and tutelary” power that schools exercise over students, and also noting schoolchildren’s diminished expectation of privacy, the Court in Vernonia School District v. Acton388 upheld a school district’s policy authorizing random urinalysis drug testing of students who participate in interscholastic athletics. The Court redefined the term “compelling” governmental interest. The phrase does not describe a “fixed, minimum quantum of governmental concern,” the Court explained, but rather “describes an interest which appears important enough to justify the particular search at hand.”389 Applying this standard, the Court concluded that “deterring drug use by our Nation’s schoolchildren is at least as important as enhancing efficient enforcement of the Nation’s laws against the importation of drugs . . . or deterring drug use by engineers and trainmen.”390 On the other hand, the interference with privacy interests was not great, the Court decided, since schoolchildren are routinely required to submit to various physical examinations and vaccinations. Moreover, “[l]egitimate privacy expectations are even less [for] student athletes, since they normally suit up, shower, and dress in locker rooms that afford no privacy, and since they voluntarily subject themselves to physical exams and other regulations above and beyond those imposed on non-athletes.”391 The Court “caution[ed] against the assumption that suspicionless drug testing will readily pass muster in other contexts,” identifying as “the most significant element” in Vernonia the fact that the policy was implemented under the government’s responsibilities as guardian and tutor of schoolchildren.392
Seven years later, the Court in Board of Education v. Earls393 extended Vernonia to uphold a school system’s drug testing of all junior high and high school students who participated in extra-curricular activities. The lowered expectation of privacy that athletes have “was not essential” to the decision in Vernonia, Justice Thomas wrote for a 5–4 Court majority.394 Rather, that decision “depended primarily upon the school’s custodial responsibility and authority.”395 Another distinction was that, although there was some evidence of drug use among the district’s students, there was no evidence of a significant problem, as there had been in Vernonia. Rather, the Court referred to “the nationwide epidemic of drug use,” and stated that there is no “threshold level” of drug use that need be present.396 Because the students subjected to testing in Earls had the choice of not participating in extra-curricular activities rather than submitting to drug testing, the case stops short of holding that public school authorities may test all junior and senior high school students for drugs. Thus, although the Court’s rationale seems broad enough to permit across-the-board testing,397 Justice Breyer’s concurrence, emphasizing among other points that “the testing program avoids subjecting the entire school to testing,”398 raises some doubt on this score. The Court also left another basis for limiting the ruling’s sweep by asserting that “regulation of extracurricular activities further diminishes the expectation of privacy among schoolchildren.”399
In two other cases, the Court found that there were no “special needs” justifying random testing. Georgia’s requirement that candidates for state office certify that they had passed a drug test, the Court ruled in Chandler v. Miller400 was “symbolic” rather than “special.” There was nothing in the record to indicate any actual fear or suspicion of drug use by state officials, the required certification was not well designed to detect illegal drug use, and candidates for state office, unlike the customs officers held subject to drug testing in Von Raab, are subject to “relentless” public scrutiny. In the second case, a city-run hospital’s program for drug screening of pregnant patients suspected of cocaine use was invalidated because its purpose was to collect evidence for law enforcement.401 In the previous three cases in which random testing had been upheld, the Court pointed out, the “special needs” asserted as justification were “divorced from the general interest in law enforcement.”402 By contrast, the screening program’s focus on law enforcement brought it squarely within the Fourth Amendment’s restrictions.
Electronic Surveillance and the Fourth Amendment
The Olmstead Case.
With the invention of the microphone, the telephone, and the dictagraph 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.403 Chief Justice Taft, writing the opinion of the Court, relied on two lines of argument for the conclusion. First, because 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 excludable, since the exclusionary rule operated only on evidence seized in violation of the Constitution.404Federal Communications Act.
Six years after the decision in Olmstead, Congress enacted the Federal Communications Act and included in § 605 of the Act a broadly worded proscription on which the Court seized to place some limitation upon governmental wiretapping.405 Thus, in Nardone v. United States,406 the Court held that wiretapping by federal officers could violate § 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 § 605 applied to intrastate as well as interstate transmissions,407 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.408 State efforts to legalize wiretapping pursuant to court orders were held by the Court to be precluded by the fact that Congress in § 605 had intended to occupy the field completely to the exclusion of the states.409Nontelephonic Electronic Surveillance.
The trespass ratio-nale of Olmstead was used in cases dealing with “bugging” of premises rather than with tapping of telephones. Thus, in Goldman v. United States,410 the Court found no Fourth Amendment violation when a listening device was placed against a party wall so 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.411 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.The Berger and Katz Cases.
In Berger v. New York,412 the Court confirmed the obsolescence of the alternative holding in Olmstead that conversations could not be seized in the Fourth Amendment sense.413 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.”“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 conversations 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.”414
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,415 and, in Katz v. United States,416 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 people—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.”417 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.”418 The notice requirement, which had loomed in Berger as an obstacle to successful electronic surveillance, was summarily disposed of.419 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.420
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.421 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.422
Warrantless “National Security” Electronic Surveillance.
In Katz v. United States,423 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.424 Whether or not a search was 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 guarantee 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.425 This protection was even more needed in “national security cases” than in cases of “ordinary” crime, the Justice continued, because 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.426 Rejected also was the argument that courts could not appreciate the intricacies of investigations in the area of national security or preserve the secrecy which is required.427The question of the scope of the President’s constitutional powers, if any, remains judicially unsettled.428 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 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.429
Enforcing the Fourth Amendment: The Exclusionary Rule
The Fourth Amendment declares a right to be free from unreasonable searches and seizures, but how this right translates into concrete terms is not specified. Several possible methods of enforcement have been suggested, but only one—the exclusionary rule— has been applied with any frequency by the Supreme Court, and Court in recent years has limited its application.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.430 A police officer who makes an illegal search and seizure is subject to internal departmental discipline, which may be backed up by the oversight of police review boards in the few jurisdictions that have adopted them, but, again, the examples of disciplinary actions are exceedingly rare.431Civil remedies are also available. 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, or against the Federal Government under the Federal Tort Claims Act.
432 Moreover, police officers acting under color of state law who violate a person’s Fourth Amendment rights are subject to a suit in federal court for damages and other remedies433 under a civil rights statute.434 Although federal officers and others acting under color of federal law are not subject to this statute, the Supreme Court has held that a right to damages for a violation of Fourth Amendment rights arises by implication and that this right is enforceable in federal courts.435
Although a damages remedy might be made more effectual,436 legal and practical problems stand in the way.437 Law enforcement officers have available to them the usual common-law defenses, the most important of which is the claim of good faith.438 Such “good faith” claims, however, are not based on the subjective intent of the officer. Instead, officers are entitled to qualified immunity “where clearly established law does not show that the search violated the Fourth Amendment,”439 or where they had an objectively reasonable belief that a warrantless search later determined to violate the Fourth Amendment was supported by probable cause or exigent circumstances.440 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 sue. The result, therefore, is that the Court has emphasized exclusion of unconstitutionally seized evidence in subsequent criminal trials as the only effective enforcement method.
Development of the Exclusionary Rule.
Exclusion of evi-dence as a remedy for Fourth Amendment violations found its beginning in Boyd v. United States,441 which, as 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 that required exclusion of the compelled evidence because the defendant had been compelled to incriminate himself by producing it.442 Boyd was closely limited to its facts and an 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.443Nevertheless, ten years later the common-law view was itself rejected and an exclusionary rule propounded in Weeks v. United States.444 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 such as those sought to be compelled in Boyd. 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 judgments 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.”445 The basis of the ruling is ambiguous, but seems to have been an assumption that admission of illegally seized evidence would itself violate the Fourth 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 Constitution. 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.”446
Because the Fourth Amendment does not restrict the actions of state officers,447 there was originally no question about the application of an exclusionary rule in state courts448 as a mandate of federal constitutional policy.449 But, in Wolf v. Colorado,450 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.451 However, the Court held that the right thus guaranteed did not require that the exclusionary rule be applied in the state courts, because 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 by the Due Process Clause a State’s reliance upon other methods which, if consistently enforced, would be equally effective.”452
It developed, however, that the Court had not vested in the states total discretion with 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,453 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.”454 The Rochin standard was limited in Irvine v. California,455 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.456 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.457
Then, in Mapp v. Ohio,458 the Court held that the exclusionary rule applied 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.”459 The Court further held that, because 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.460
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 Boyd461 the Court fused the search and seizure clause with the provision of the Fifth Amendment protecting against compelled self-incrimination. In Weeks v. United States,462 though the Fifth Amendment was mentioned, the holding seemed clearly to be 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.463 Then, in Mapp v. Ohio,464 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.“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.’ ”465 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, because the latter could not constitutionally be extended to the state courts.466 In fact, in Wolf v. Colorado,467 in declining to extend the exclusionary rule to the states, Justice Frankfurter seemed to find the rule to be based on the Court’s supervisory powers. Mapp establishes that the rule is of constitutional origin, but this does not necessarily establish that it is immune to statutory revision.
Suggestions appear in a number of cases, including Weeks, to the effect that admission of illegally seized evidence is itself unconstitutional.468 These suggestions were often combined with a rationale emphasizing “judicial integrity” as a reason to reject the proffer of such evidence.469 Yet the Court permitted such evidence to be introduced into trial courts when the defendant lacked “standing” to object to the search and seizure that produced the evidence470 or when the search took place before the announcement of the decision extending the exclusionary rule to the states.471 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.”472 “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.”473
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.474 By the early 1980s, a majority of Justices had stated a desire either to abolish the rule or to sharply curtail its operation,475 and numerous opinions had rejected all doctrinal bases other than deterrence.476 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.477 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,”478 as well as free guilty defendants.479 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.”480Although the exclusionary rule has not been completely repudiated, its use has been substantially curbed. For instance, defendants who themselves were not subjected to illegal searches and seizures may not object to the introduction of evidence illegally obtained from co-conspirators or codefendants,481 and even a defendant whose rights have been infringed may find the evidence admitted, not as proof of guilt, but to impeach his testimony.482 Further, evidence obtained through a wrongful search and seizure may sometimes be used directly in the criminal trial, if the prosecution can show a sufficient attenuation of the link between police misconduct and obtaining the evidence.483 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, the Court found, the costs outweigh the minimal deterrent effect.484
The exclusionary rule is inapplicable in parole revocation hearings,485 and a violation of the “knock-and-announce” rule (the procedure that police officers must follow to announce their presence before entering a residence with a lawful warrant)486 does not require suppression of the evidence gathered pursuant to a search.487 If an arrest or a search that was valid at the time it took place becomes bad through the subsequent invalidation of the statute under which the arrest or search was made, the Court has held that evidence obtained thereby is nonetheless admissible.488 In other cases, a grand jury witness was required to answer questions even though the questions were based on evidence obtained from an unlawful search and seizure,489 and federal tax authorities were permitted in a civil proceeding to use evidence that had been unconstitutionally seized from a defendant by state authorities.490
A significant curtailment of the exclusionary rule came in 1984 with the adoption of a “good faith” exception. In United States v. Leon,491 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 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].”492 “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.493 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.”494 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 applied the Leon standard in Massachusetts v. Sheppard,495 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. Then, 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 to violate the Fourth Amendment.496 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.497 Finally, the Court has held that the exclusionary rule does not apply if the police conduct a search in objectively reasonable reliance on binding judicial precedent, even a defendant successfully challenges that precedent.498
The Court also applied Leon to allow the admission of evidence obtained incident to an arrest that was based on a mistaken belief that there was probable cause to arrest, where the mistaken belief had resulted from a negligent bookkeeping error by a police employee other than the arresting officer. In Herring v. United States,499 a police employee had failed to remove from the police computer database an arrest warrant that had been recalled five months earlier, and the arresting officer as a consequence mistakenly believed that the arrest warrant remained in effect. The Court upheld the admission of evidence because the error had been “the result of isolated negligence attenuated from the arrest.”500 Although the Court did “not suggest that all recordkeeping errors by the police are immune from the exclusionary rule,” it emphasized that, “[t]o trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.”501
Herring is significant because previous cases applying the good-faith exception to the exclusionary rule have involved principally Fourth Amendment violations not by the police, but by other governmental entities, such as the judiciary or the legislature. Although the error in Herring was committed by a police employee other than the arresting officer, the introduction of a balancing test to evaluate police conduct raises the possibility that even Fourth Amendment violations caused by the negligent actions of an arresting officer might in the future evade the application of the exclusionary rule.502
For instance, 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.503 It is also unclear what a good-faith exception would mean in the context of a warrantless search, because 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.504 The Court’s increasing willingness to uphold warrantless searches as not “unreasonable” under the Fourth Amendment, however, may reduce the frequency with which the good-faith issue arises in the context of the exclusionary rule.505
Another significant curtailment of the exclusionary rule involves the attenuation exception, which permits the use of evidence discovered through the government’s unconstitutional conduct if the “causal link” between that misconduct and the discovery of the evidence is seen by the reviewing courts as sufficiently remote or has been interrupted by some intervening circumstances.506 In a series of decisions issued over several decades, the Court has invoked this exception in upholding the admission of challenged evidence. For example, in Wong Sun v. United States, the Court upheld the admission of an unsigned statement made by a defendant who initially had been unlawfully arrested because, thereafter, the defendant was lawfully arraigned, released on his own recognizance, and, only then, voluntarily returned several days later to make the unsigned statement.507 Similarly, in its 1984 decision in Segura v. United States, the Court upheld the admission of evidence obtained following an illegal entry into a residence because the evidence was seized the next day pursuant to a valid search warrant that had been issued based on information obtained by law enforcement before the illegal entry.508
More recently, in its 2016 decision in Utah v. Strieff, the Court rejected a challenge to the admission of certain evidence obtained as the result of an unlawful stop on the grounds that the discovery of an arrest warrant after the stop attenuated the connection between the unlawful stop and the evidence seized incident to the defendant’s arrest.509 As a threshold matter, the Court rejected the state court’s view that the attenuation exception applies only in cases involving “an independent act of a defendant’s ‘free will.’ ”510 Instead, the Court relied on three factors it had set forth in a Fifth Amendment case, Brown v. Illinois,511 to determine whether the subsequent lawful acquisition of evidence was sufficiently attenuated from the initial misconduct: (1) the “temporal proximity” between the two acts; (2) the presences of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.512 On the whole, the Strieff Court, reiterating that “suppression of evidence should be the courts’ “last resort, not our first impulse,”513 concluded that the circumstances of the case weighed in favor of the admission of the challenged evidence. While the closeness in time between the initial stop and the search was seen by the Court as favoring suppression,514 the presence of intervening circumstances in the form of a valid warrant for the defendant’s arrest strongly favored the state,515 and in the Court’s view, there was no indication that this unlawful stop was part of any “systematic or recurrent police misconduct.”516 In particular, the Court, relying on the second factor, emphasized that the discovery of a warrant “broke the causal chain” between the unlawful stop and the discovery of the challenged evidence.517 As such, the Strieff Court appeared to establish a rule that the existence of a valid warrant, “predat[ing the] investigation” and “entirely unconnected with the stop,” generally favors finding sufficient attenuation between the unlawful conduct and the discovery of evidence.518
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.”519 Subsequently, the Court 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.”520 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.”521The Katz reasonable expectation of privacy rationale has now displaced property-ownership concepts that previously might have supported either standing to suppress or the establishment of an interest that has been invaded. Thus, it is no longer sufficient 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.522 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.523 The same illegal search might, therefore, invade the rights of one person and not of another.524 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.
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