SEARCH AND SEIZURE

In any free society, the police must be constrained. The constraint can come from a variety of sources—politics, bureaucratic culture, administrative sanctions, and so forth. It need not necessarily come from the law. And in most Western democracies, it does not come from the law; outside the United States, police seem to be regulated, where they are regulated, mostly through nonlegal means.

For much of its history—until 1961, to be precise—the same held true of the United States. Since that date, however, American law has played a very large role in regulating the police and reining in police misconduct. And the chief source of legal restraint is the law of search and seizure.

That law has three key features. First, it is constitutional. The basic standards that limit police investigation of crime—the standards that define when police can search a home, or seize a suitcase believed to contain drugs, or arrest a suspect for some crime—derive from the Fourth Amendment to the federal constitution. Because judges are the prime interpreters of the constitution, this means search and seizure law is basically judge-made. Because constitutional law is binding on popularly elected legislatures and executives, it means search and seizure law cannot be altered by elected politicians, state or federal. In the United States, to a degree that probably has no parallel elsewhere, judges—especially Supreme Court Justices—decide what rules the police must follow. Congress, state legislatures, and the police themselves must live with the rules these judges and Justices create.

Second, its chief business is protecting privacy. The dominant focus of the law of search and seizure is to limit what police can see and hear, to limit their ability to invade spaces people prefer to keep private. That is not the only interest the law protects, but it clearly is the interest that the law protects most. Other concerns—the potential for police violence, the harm to individual liberty that comes from arrest or street detention, discriminatory treatment of black and white suspects—receive much less attention from judges and Justices in Fourth Amendment cases.

Third, it is police-focused. Government gathers information about people in a variety of ways, through a variety of agents. Grand juries subpoena witnesses and documents; prosecutors interview suspects; administrative agencies inspect wetlands and workplaces. These things receive only slight legal regulation; with few exceptions Fourth Amendment law ignores them. That law's clear focus is on police searches and arrests. It is not too much to say that Fourth Amendment law is a kind of tort law for the police; it is the body of civil liability rules that limit day-to-day police activities. Police must therefore pay close attention to Fourth Amendment rules; other government officials can usually ignore them.

The Fourth Amendment: origins, text, and history

Origins. Like most of the rest of the Bill of Rights, the Fourth Amendment has its origins in seventeenth-and eighteenth-century English common law. Unlike the rest of the Bill of Rights, the Fourth Amendment's origins can be traced precisely—it arose out of a strong public reaction to three cases from the 1760s, two decided in England and one in the colonies.

The two English cases are usefully treated as a pair. Both Wilkes v. Wood, 19 Howell's State Trials 1153 (C.P. 1763), and Entick v. Carrington, 19 Howell's State Trials 1029 (C.P. 1765), involved pamphleteers charged with seditious libel for criticizing the king's ministers and, through them, the king himself. In both cases, agents of the king issued a warrant authorizing the ransacking of the pamphleteers' homes and the seizure of all their books and papers. (An aside is necessary at this point: Warrants are means of giving government officials permission to search or arrest someone whom they otherwise might not be allowed to search or arrest. In American practice, warrants are issued only by judges or magistrates after reviewing an application from a police officer. In eighteenth-century England, warrants were sometimes issued by agents of the Crown on their own initiative.) These searches were duly carried out. Wilkes and Entick sued for damages, claiming that the warrants were void and that the searches pursuant to them were therefore illegal. Both Wilkes and Entick won, with powerful opinions issued by Lord Camden, the judge in both cases. These decisions made Camden a hero in the colonies; a number of towns and cities were named after him because of his opinions in Wilkes and Entick.

The third case was the Writs of Assistance Case (see Dickerson, 1939). British customs inspectors seeking to stamp out smuggling in colonial Boston were given blanket search warrants, called writs of assistance, that permitted them to search anyplace where they thought smuggled goods might be. (The writs also allowed the inspectors to compel private citizens to help them carry out the searches—hence the writs' name.) Some Boston merchants, represented by James Otis, sued, seeking a holding that the writs were invalid. The merchants lost, but Otis's argument, with its ringing defense of individual privacy, became famous and strengthened opposition to British rule. John Adams later said of Otis's argument that "then and there the child Independence was born."

Historians generally agree that the Fourth Amendment was designed to affirm the results in Wilkes and Entick, and to overturn the result in the Writs of Assistance Case. Three principles seem to follow. First, the government should not be allowed to search without some substantial justification, some reason to believe the place being searched contains the evidence being sought. That was the problem with the writs of assistance—they authorized searches based on no more than the unsupported suspicion of the inspector. Second, searches, particularly of private homes, should not go beyond their justification. That was the problem with the searches in Wilkes and Entick –the authorities did not simply search for and seize illegal writings, but took all the books and papers in the suspects' houses. Third, the government should not use blanket warrants to evade the first two principles. That was a problem in all three cases. English common law held it a trespass to invade someone's home without some kind of authorization; the warrants in Wilkes and Entick and the writs of assistance looked like efforts to evade that common law right. This explains why, at the time of the Founding era, search warrants—now viewed as a protection against police overreaching—were seen as more of a danger than a safeguard.

Notice that none of these three cases involved ordinary criminal law enforcement. None stemmed from the investigation of a murder, or a robbery, or a rape. Rather, each involved the investigation and prosecution of what might fairly be called dissidents—ordinary law-abiding citizens who disagreed strongly with the laws they were disobeying, and who enjoyed some substantial support among the citizenry. It is not at all clear from the Fourth Amendment's history that James Madison and his contemporaries wished to restrict the investigation of ordinary crimes; indeed, it is not clear that they even thought about the investigation of ordinary crimes.

Notice, too, that none of these cases involved searches by people whom we would recognize today as police officers. Police forces did not exist in the eighteenth century, either in England or in the colonies. It follows that the Framers could not possibly have thought about how best to regulate them. The Fourth Amendment's central role—reining in the police—is a role that it assumed much later. This point counsels in favor of a certain modesty when seeking to extract contemporary lessons from the Fourth Amendment's historical context.

The Fourth Amendment's text. The Fourth Amendment, along with the other provisions of the Bill of Rights, was proposed by James Madison. The version that was ultimately ratified (Madison's original version was slightly different) reads as follows:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The first clause—lawyers usually call it the "reasonableness clause"–contains a simple prohibition: unreasonable searches and seizures are forbidden. It leaves the key term, "unreasonable," undefined. The second clause, usually called the "warrant clause," places a set of limits on the issuance of search or arrest warrants. Three limits are listed: the warrants must be supported by probable cause, they must define where the search is to take place, and they must define what the object of the search is—who or what is to be seized.

This text nowhere requires the government to get search or arrest warrants—the second clause limits the use of warrants, but never says when, if ever, the government must use them. So far as the text of the Fourth Amendment is concerned, the police apparently may search or seize without a warrant, as long as the search or seizure is reasonable. This is unsurprising given the Fourth Amendment's origins. Madison and his contemporaries were chiefly concerned with preventing a recurrence of searches like the ones in Wilkes and Entick; the safest way to do that was to severely limit the use of warrants. Requiring them was apparently not on the Framers' agenda.

Subsequent history to 1961. For a century and a half after it was ratified, the Fourth Amendment (like the rest of the Bill of Rights) applied only to the federal government; state and local police were not bound by it. During most of this period, federal criminal investigation and prosecution was rare—there was no F.B.I., and no army of federal prosecutors—so there was little opportunity for Fourth Amendment litigation. As a consequence, Fourth Amendment law basically lay dormant until Prohibition in the 1920s, which for the first time produced a large and active federal enforcement bureaucracy. By that time, three important changes had taken place. First, the Supreme Court had adopted the exclusionary rule (in Weeks v. United States, 232 U.S. 314 (1914)), which held that illegally seized evidence ordinarily could not be used in criminal trials. The source and rationale of that rule are discussed in a separate entry. Second, during the course of the nineteenth century search warrants had come to be seen as a way of limiting police authority, not as means by which the government could evade legal restriction. This is a natural development: once the Fourth Amendment placed stringent limits on warrants, requiring warrants became a good way to ensure that police had good reasons for searching. Accordingly, one sees frequent discussion in Prohibition-era cases of the importance of requiring police to get advance permission from a magistrate, in the form of a warrant, before searching. Third, probable cause had become the generally applicable legal standard for searches. "Reasonable" searches meant searches supported by probable cause—which meant, roughly, a fair likelihood that the evidence searched for would be found in the place searched.

Thus, by the end of the 1920s, Fourth Amendment law had assumed the following structure. Probable cause was required for all searches or arrests. A warrant, obtained in advance, was required at least for searches of homes, and possibly for many other searches as well. (Curiously, arrests for serious crimes were not thought to require warrants, a rule that still holds today.) And these rules were enforced primarily by an exclusionary rule, so that when the police violated the rules, any evidence they found would be inadmissible in a subsequent criminal trial.

These rules still applied only to the federal government. That state of affairs changed when, in Wolf v. Colorado, 338 U.S. 25 (1949), the Supreme Court held that the Fourth Amendment was part of the liberty protected by the Fourteenth Amendment's due process clause against infringement by state and local officials. Twelve years later, in Mapp v. Ohio, 367 U.S. 643 (1961), the Supreme Court gave teeth to Wolf by imposing the exclusionary rule on the states. Henceforth local police, who are the primary enforcers of American criminal law, would be subject to the same search and seizure rules as F.B.I. agents, and to the same penalty for violating those rules.

It is not too much to say this worked a revolution in the way American police are themselves policed. Before 1961, local police were subject to state constitutional limits and could be sued for common law trespass (just like the offending officials in Entick and Wilkes ). But these limits were illusory: state constitutions went unenforced, and common law claims against police officers virtually were never brought. Consequently, there was no working law of search and seizure, no body of rules that officers felt bound to obey, outside the federal system. Local police were restrained, if they were restrained at all, by local custom or politics. Law played no real part in their regulation.

This posed more of a danger to some suspects than to others. At the time Mapp was decided, it was widely (and surely correctly) believed that local police, especially in the South, treated black suspects much more harshly than white ones. And blacks could not protect their interests through the political process, because they were often either denied the right to vote or frozen out of governing coalitions. Although the opinions in Mapp do not make this point explicitly, it seems likely that one of the reasons—perhaps the primary reason—for the Supreme Court's assertion of regulatory control over local police was the desire to protect black suspects from unfair treatment at the hands of nearly all-white police forces. In this way, Fourth Amendment law, which began as a tool for protecting upperclass pamphleteers and smugglers, had become a means of protecting a poor minority against oppression by police forces dominated by a middle-class (white) majority.

After 1961. The law Mapp imposed on local police forces was basically the same law that had been imposed on federal agents enforcing Prohibition in the 1920s: probable cause for searches and arrests, with warrants required for searches unless the police had a good excuse for not getting one. Perhaps because of a coincidence in timing—at about the time Mapp was decided, crime rates began skyrocketing, with the number of serious felonies trebling in the course of the next decade—these rules came to seem too burdensome for increasingly busy local police. (Rising crime also meant rising public hostility to the Supreme Court's efforts to regulate the criminal process, which was seen as "handcuffing" police and prosecutors.) Beginning in 1968, the Supreme Court moved to relax these rules in two key ways. First, in Terry v. Ohio, 392 U.S. 1 (1968), the Court permitted police to "stop and frisk" suspects on the street based on reasonable suspicion of criminal activity, a lesser standard than probable cause. Terry involved suspicion of an about-to-be-committed robbery, but the Court soon applied its reasonable suspicion standard to past crimes and, most importantly, to drug crime. With these extensions, Terry meant that officers could briefly detain people, but not arrest them, based on fairly low-level suspicion of crime—the sort of suspicion that might come from spending time in the company of "known" drug dealers at places where drug trafficking is believed to be common.

The second change involved the warrant requirement. In a series of decisions stretching from the early 1970s to the early 1990s, the Court created or expanded various exceptions to the warrant requirement. For example, searches of cars were exempt, as were searches incident to arrest, as were inventory searches (these involved the inspection and cataloging of a suspect's belongings when he is taken into custody). These various exceptions, taken together, meant that the warrant requirement applied to searches of houses and apartments, but almost never applied to anything else. For searches and seizures outside private homes, police were still bound by the probable cause or reasonable suspicion standards, but no advance permission to search was required.

The creation and expansion of "stop and frisk" doctrine and the contraction of the warrant requirement were both contentious; Fourth Amendment decisions in the 1970s and 1980s gave rise to some of the most heated arguments the Supreme Court has ever seen. Defenders of Fourth Amendment law's classical structure, primarily Justices William Brennan and Thurgood Marshall, argued passionately that it was important to preserve probable cause, not the softer reasonable suspicion standard, as the primary standard for searches and seizures; they also argued for a broad warrant requirement to provide an extra check on police overreaching. But these arguments generally lost, and the structure that had emerged by the early 1990s is now fairly stable. The key characteristics of that structure are the subject of the next part.

The current structure of search and seizure law

Search and seizure law today is built around three key questions. First, did the police "search" or "seize" anyone or anything? If not, the law leaves police action basically unregulated. If so, what justification must the police have—probable cause, reasonable suspicion, or (in rare cases) something else? Finally, what process must the police follow—must they seek permission in advance from a magistrate, or can they search first and defend themselves in a suppression hearing later?

The definition of "search" and "seizure." The most important of these questions may be the first one, for if a given police tactic is not a "search" or "seizure" within the meaning of the Fourth Amendment, the police are free to use that tactic when and on whom they wish, free of legal constraint.

"Searches," in Fourth Amendment law, are police tactics that infringe a "reasonable expectation of privacy." A reasonable expectation of privacy is the kind of expectation any citizen might have with respect to any other citizen. A fair translation of this standard might go as follows: Police can see and hear the things that any member of the public might see and hear, without fear of Fourth Amendment regulation. Only when police cross that line, only when they see and hear things that members of the public would not be allowed to see and hear, has a "search" taken place.

A few examples might clarify the standard. Eavesdropping on telephone conversations is a "search." Overhearing a conversation on the street is not. Climbing over a backyard fence is a "search." Observing the same backyard from the window of an airplane is not. Hiding in the bushes outside a house and looking inside is a "search." Standing on a public street and looking through open curtains into a living room is not. Opening a briefcase to inspect its contents is a "search." Observing someone carrying a briefcase on the street is not.

When applying the reasonable-expectationof-privacy standard, courts ask whether, at the moment the police officer observed the illegal behavior, he was in a position any member of the public might have been in. The duration and intensity of police observation does not matter. Thus, police officers can stake out a private home, taking up residence across the street and watching all comings and goings for a period of days or even weeks, and that behavior does not constitute a "search," because at any given moment, any member of the public might have been looking. And police can follow a suspect's movements along public streets, in shops or restaurants, and so forth; once again, such behavior is not a "search" (even though it amounts to something like stalking), because any member of the public might have seen any given transaction in public.

One other feature of the definition of "search" bears mention. Consensual transactions are not "searches," even if consent was given under false pretenses. So if a police officer poses as a drug buyer, and a suspect lets him into the suspect's house in order to sell him drugs, anything the officer sees and hears in the house is fair game—no Fourth Amendment "search" has taken place. The use of undercover agents is thus routinely permitted by search and seizure law, whether or not the police have good reason to suspect the person with whom the undercover agent is dealing of any crime. Also, if a police officer asks permission to look in a suspect's car or briefcase, and the suspect says yes, once again no "search" has taken place. This last point is particularly important. Police officers exert a certain amount of force just by virtue of their status. For many, perhaps most, a request from a police officer will sound like a command; the tendency will be to say yes whether one wants to or not. Nevertheless, if the police officer asks, and the suspect says yes, that almost always amounts to consent. Only if the officer behaves unusually coercively—if he pulls his weapon, or grabs hold of the suspect, or the like—will a court find that the consent was involuntary.

All these rules sound complicated; in practice, they are relatively simple. In general, the police are "searching" when they are either committing some kind of trespass—grabbing a suspect's briefcase and looking inside, breaking into a house or apartment, climbing over a backyard fence—or are engaged in some kind of electronic eavesdropping—for example, wiretapping a phone. Most of the rest of what police do to gather information falls outside the Fourth Amendment.

"Seizures" are harder to define. The Supreme Court says that a suspect has been "seized" if a reasonable person in the suspect's shoes would not feel free to leave. If the Court took its own language seriously, every conversation between a police officer and a citizen would be a "seizure." After all, few people, when approached on the street by an officer, feel free to turn on their heels and walk away. The consequences of that position would be huge; the police would need some adequate justification for every interaction.

Not surprisingly, the law does not operate that way in practice. The working standard seems to be roughly the same as the standard for consent. The dispositive question is this: Did the police officer behave coercively (not counting the coercion that is inherent in a police officer questioning a suspect)? If so, the encounter is a "seizure." If not, it is not. Compared to the definition of "search," which has acquired a good deal of definition over the years, the definition of "seizure" remains remarkably vague and open-ended. Conversations on the street between police officers and citizens often begin as consensual conversations; at some point the encounter often becomes a "seizure." Neither the officer nor the suspect—nor, for that matter, courts—know precisely when that point is.

Probable cause and reasonable suspicion. When the police have searched or seized someone, the Fourth Amendment requires some justification. With rare exceptions, the justification takes one of two forms: either the police must have probable cause, or they must have reasonable suspicion. The following paragraphs explain what these standards mean, and to what cases each standard applies.

Probable cause has never received a clear definition in the cases; the Supreme Court has said, unhelpfully, that an officer has probable cause to arrest when "the facts and circumstances within [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed" Brinegar v. United States, 338 U.S. 160, 175–76 (1949). What that means in practice seems to be, roughly, more likely than not. Thus, probable cause to arrest requires enough information to show that the suspect probably committed the crime. Probable cause to search requires enough information to show that evidence of crime can probably be found in the place to be searched.

One issue that regularly arises in the cases is whether police can rely on tips from informants to establish probable cause. Informants are sometimes ordinary citizens who call into police stations with useful information; more commonly they are criminals themselves who report information about other criminals in return for some favors—sometimes leniency, sometimes cash—from the police. Informants are common in police work, and especially in the policing of drug markets. (The leading study of search warrants shows that jurisdictions with the most drug cases also make the most use of informants' tips.) Such tips are clearly useful to the police; they equally clearly pose significant problems. Informants may have some incentive to frame rivals, or to concoct whatever information will get them the greatest reward from the police. And since the identity of the informant is almost always confidential—for obvious reasons, informants tend to insist on anonymity—there is some risk that police will make up phony informants to justify their own hunches. For these reasons, the Supreme Court in the 1960s and 1970s placed serious restrictions on the use of informants' tips to generate probable cause.

Those restrictions were largely removed in 1983, in Illinois v. Gates, 462 U.S. 213 (1983). The Court in Gates held, basically, that informants' tips were to be treated like any other information. And the Court specifically approved findings of probable cause where an informant's tip is partially corroborated—as where the informant says a suspect will be driving a certain car at a certain time and place and will be carrying drugs, and the officer confirms that the suspect was indeed driving that car at that time and place.

Like probable cause, reasonable suspicion is not well defined in the cases. Indeed, the only thing one can confidently say about it is that reasonable suspicion means something less than probable cause. Just how much less is unclear. A good indication of the kind and level of information required is the following common fact pattern. A police officer, on foot or in his car, turns a corner on a city street in an area known as a locale for drug trafficking. A young man standing on a street corner sees the officer, turns, and runs in the other direction. The officer knows nothing about the young man other than that he was in a place where crime was common, and that he ran when he saw the police. Does the officer have reasonable suspicion?

In Illinois v. Wardlow, 120 S.Ct. 673 (2000), the Supreme Court said the answer is yes. Likewise, if police see a suspect in a place where drugs are often sold, and if the suspect has a series of brief conversations with people the police know to be drug users, most courts would say the police have reasonable suspicion. In these cases the police have some ground for suspecting criminality, but not a great deal. Reasonable suspicion is meant to capture that intermediate condition.

To what cases do these standards apply? Probable cause is the governing standard for arrests, and for searches of homes, cars, or personal effects. For arrests, the standard is probable cause to believe the suspect has committed a crime; for searches it is, with one important exception, probable cause to believe evidence will be found in the place sought. The exception is for searches "incident to arrest." When the police make a valid arrest, they are permitted to search the suspect's person, any belongings he has with him, and his car; if the arrest occurs at home, they may search the area within his immediate control. These searches incident to arrest are legal if the arrest is legal. Thus, probable cause to arrest authorizes not only arrests but also a good many searches.

Reasonable suspicion is the governing standard for brief stops, as where an officer detains a pedestrian for a few minutes or pulls over a car in order to ask the driver a few questions. Reasonable suspicion of the presence of a weapon is the standard for very brief searches, such as a pat-down or frisk of a suspect's outer clothing. In practice, reasonable suspicion of the presence of a weapon tends to follow from reasonable suspicion of criminal activity. At least for serious crimes, judges tend to find that suspicion of the crime entitles the police to frisk the suspect in order to detect any weapons. The officer is, of course, entitled to check the contents of the pockets if this frisk turns up anything that might be a weapon. Naturally, the line between lumps that might be weapons and lumps that might be evidence of crime (drugs, for example) is a fine one. As a result, frisks for weapons tend to turn into frisks for either weapons or evidence.

The authority to frisk, or conduct a brief search, based on reasonable suspicion extends beyond the suspect's clothing. If the suspect is in a car, the officer is entitled to briefly look through the car's interior. If the suspect is carrying a purse or briefcase, the officer can briefly look inside, long enough to ensure that it does not contain a gun. And any evidence the officer finds during the course of such inspections is admissible.

Thus, given reasonable suspicion, officers can briefly detain pedestrians or pull over drivers of cars. Given reasonable suspicion of the kind of crime often associated with weapons, officers can briefly look around the car's interior, frisk a suspect's outer clothing, and open any containers (such as a purse or bag) that the suspect might reach to check for weapons. More extensive searches and seizures require probable cause.

Special cases—police use of force and group seizures. There remain two important categories of cases where neither probable cause nor reasonable suspicion applies. The first is police use of force, where the standard is higher than probable cause. The second is group seizures such as roadblocks, where the standard is lower than reasonable suspicion.

At common law, the police could use whatever force necessary to apprehend suspects and to bring them under control. If suspected of a felony, and if he fled, the suspect could be killed. These doctrines were still in force as late as the 1980s; not until 1985 did the Supreme Court decide that a higher standard was required for police use of force against suspects.

In that case, Tennessee v. Garner, 471 U.S. 1 (1985), the police shot and killed a fleeing burglary suspect; there was no reason to believe the suspect was armed or had threatened serious physical harm to anyone. The Court concluded that the shooting was unreasonable, and hence violated the Fourth Amendment. The Court ruled that deadly force was permissible only given some immediate danger of death or serious physical injury. Immediate danger is presumed if the police have probable cause to believe the suspect has caused or threatened death or serious injury, and if the suspect has been warned to stop but refuses to do so. The standard for using nondeadly force is both less demanding and less certain: the Supreme Court says only that officers must behave reasonably, taking account of the danger the suspect poses, the kind of crime he is suspected of committing, and the amount of force necessary to bring him under control.

These standards governing police use of force receive much less attention in the courts than the standards governing police frisks or house searches, because use-of-force claims are litigated much less frequently. The reason has to do with remedies. The primary remedy for Fourth Amendment violations is the exclusionary rule; the huge majority of Fourth Amendment claims arise as efforts by criminal defendants to suppress illegally obtained evidence. But when police beat or shoot a suspect, they are not looking for evidence. Thus, excessive force claims only rarely lead to efforts to suppress evidence; the exclusionary rule is essentially irrelevant to these claims.

Instead, excessive force claims arise either as claims for damages by the victim (or the victim's next-of-kin), or as criminal prosecutions of the offending officers. The latter happen only very rarely. Damages claims are more frequent, but still amount to a very small fraction of the number of exclusionary rule claims. Which explains why the law of excessive force is so much less developed than, say, the law of car searches or street stops.

Group searches and seizures are the second category of cases that fall outside the probable cause and reasonable suspicion standards. Here the law is both complex and unclear. In United States v. Martinez-Fuerte, 428 U.S. 543 (1976), the Supreme Court permitted the use of highway checkpoints near the border to check for illegal immigrants; at these checkpoints all cars were stopped and all drivers seized, even though the government had no reason to suspect any particular driver of harboring illegal aliens. Similarly, in Michigan Highway Department v. Sitz, 496 U.S. 444 (1990), the Court ruled that officers may set up roadblocks to catch drunk drivers, even though the officers have no ground for suspecting any particular driver of any wrongdoing. But in Indianapolis v. Edmond, 121 S.Ct. 447 (2000), the Court barred the use of roadblocks designed to catch drug violators. For now, the government can apparently seize (and perhaps search) all members of a group in pursuit of goals other than ordinary criminal law enforcement (border control in Martinez-Fuente, highway safety in Sitz ). But it cannot use power as a routine crime control tactic.

Drugs may fall on either side of this boundary. In Edmond, drug checkpoints were banned. But the result has been different in a number of cases involving drug testing. Government agencies sometimes seek to require periodic testing of employees, without any showing that any given employee was reasonably suspected of drug use or other misconduct. These testing programs have sometimes prevailed in the courts and sometimes not; the usual approach is to ask whether there is some "special need" to test the category of employees in question. The idea is similar to the idea behind Martinez-Fuerte and Sitz: In support of these testing programs, the government often claims suspicionless testing is permissible as long as many people are tested; that is, as long as no one person is singled out. If that argument were applied to tactics like group fingerprinting or DNA testing, it would considerably expand the scope of police authority. For now, Edmond is holding the line against such an expansion. But the line is unstable. The government can argue, with some force, that its interest in fighting drug crime is at least as strong as its interest in catching drunk drivers. If so, it seems odd that the police would be granted substantially greater power in the latter setting than in the former.

The role of substantive law. Probable cause and reasonable suspicion both refer to a level of probability, a likelihood that some asserted fact—the suspect committed a crime, or evidence of crime will be found in a particular place—is true. The asserted fact always involves crime. It follows that the meaning of probable cause or reasonable suspicion depends on what counts as a crime. To put it another way, to say that the police have probable cause to arrest a given suspect is to say they have reason to believe that the suspect probably violated some criminal statute. Whether the claim is right depends in part on just what behavior criminal statutes forbid. If enough criminal statutes forbid enough conduct, the police will have probable cause to arrest a large portion of the population.

Something much like this was true before the late 1960s. Loitering statutes made it a crime to hang around on street corners; vagrancy statutes made it a crime to be able-bodied but unemployed, or to be a "rogue" or "vagabond." These open-ended prohibitions plausibly covered a large fraction of ordinary street behavior, at least by people the police might wish to arrest or search. Consequently, the police had something close to blanket authority to arrest or search a large portion of the population. The probable cause standard mattered little.

In the late 1960s and early 1970s, most loitering and vagrancy statutes were declared unconstitutional on the ground that they were unacceptably vague. States and cities responded with a wave of statutes and ordinances criminalizing loitering with intent to commit acts of prostitution or drug use; some jurisdictions went farther, passing laws forbidding loitering in the presence of members of gangs that themselves were involved in various sorts of criminal activity. In Chicago v. Morales, 119 S.Ct. 1849 (1999), the Supreme Court struck down one such law, declaring that it was, like older loitering and vagrancy laws, too vague, and that it infringed on individuals' liberty to wander about on public streets free of official interference.

Morales was not a Fourth Amendment decision; the Court relied on the due process clause of the Fourteenth Amendment instead. But the Court's decision may have a large impact on the scope of Fourth Amendment protection. Again, if "crime" covers enough territory, police will have reasonable suspicion or probable cause with respect to most people, and Fourth Amendment standards will, as a practical matter, cease to operate. Morales may suggest that, at least with respect to pedestrians, the Court will not permit that state of affairs to recur.

The story is different when it comes to automobile traffic. In many states, moving violations—speeding, changing lanes without using a turn signal, running a stop sign, and the like—are, technically, crimes. Since such rules are not strictly enforced in most places (to the extent that speeding is the norm on many roads), most drivers are, technically, committing crimes most of the time, which gives the police authority to stop a large fraction of drivers.

That authority can be exercised strategically. If police believe a given suspect is transporting drugs, but they lack the kind of support needed to satisfy the probable cause or reasonable suspicion standards, they can wait for the suspect to run a stop sign, or speed, or violate some other traffic regulation, then pull the suspect over, arrest him for the traffic offense, and search him and his car incident to the arrest—all the while looking for drugs. In Whren v. United States, 517 U.S. 806 (1996), the Supreme Court held that this sort of pretextual police search is permissible. As long as the police have probable cause to believe the suspect is doing something the state defines as a crime, an arrest is legal, and if an arrest is legal, so is a search incident to arrest.

Whren and Morales are thus in some tension. Whren gives police near-blanket authority to stop vehicles; Morales seems to forbid near-blanket authority to stop pedestrians. In both cases, the primary determinant of the scope of police authority is not Fourth Amendment law, but the law that defines crimes.

The warrant requirement. All police searches and seizures are subject to legal challenge, but the challenge ordinarily comes after the fact. The officer searches, the defendant moves to suppress evidence found in the search, and the court holds a hearing to determine whether the search was legal. Where a search or arrest warrant is required, by contrast, judicial evaluation of the search or arrest happens in advance. The officer fills out a brief warrant application, with a sworn affidavit stating the facts in support of the application; a magistrate reviews the application, sometimes questioning the officer, and then decides whether to issue the warrant. If the warrant is issued and the search turns up evidence, the defendant can still seek to suppress it, but the court will give substantial deference to the magistrate's judgment. Thus, Fourth Amendment law knows two procedures for testing the legality of a search: the warrant process before the search, and the suppression hearing after.

In form, the law requires the first of these procedures—warrants—unless some special exception applies. In practice, the exceptions swallow the rule. Warrants are not required for (among other things) arrests outside the suspect's home, searches incident to arrest (which, remember, cover the suspect's clothing, car, and belongings at the time of arrest), searches of cars whether or not anyone is arrested, and brief stops or frisks of suspects. These categories encompass the large majority of searches and seizures.

Warrants are required for wiretaps, for searches of homes, and for arrests that take place in a home. Even here, there is an exception for cases where "exigent circumstances" exist—where getting a warrant is impractical because of the danger that suspects will flee or evidence will be destroyed.

The warrant requirement thus applies chiefly when police wish to enter a private home. Elsewhere, police generally are allowed to search first, and face judicial scrutiny afterward. Fourth Amendment law purports to have a warrant requirement with a few narrow exceptions. The true rule is no warrant requirement, with an exception for homes and wiretaps.

In theory, this regime offers an extra measure of protection for house searches. Forcing police to ask permission in advance of a search, and requiring that permission come from a neutral magistrate, should weed out potential searches based on thinly supported police hunches. In practice, it is unclear how much the warrant requirement accomplishes. Most reviews of warrant applications are cursory, and magistrates only hear from one side—the police officer. Not surprisingly, most applications are granted. That, one might think, suggests warrants are something of a sham, a process by which discretionary decisions by police officers are rubber-stamped by magistrates. On the other hand, the leading study of the warrant process suggests the large majority of searches pursuant to warrants turn up evidence of crime. That, one might suppose, suggests warrants work, that they serve as an effective screen. The truth may be somewhere in between these two views, or it may be different in different jurisdictions.

Two problems

The basic structure of search and seizure law seems fairly stable; large changes are unlikely, at least in the near future. In assessing that structure, it is helpful to focus on two issues. The first goes to the interests the law of search and seizure protects. The second goes to an interest that, for the most part, the law of search and seizure ignores.

Privacy. The dominant focus of the law of search and seizure is protecting privacy. "Privacy" here has a particular meaning—it is not some generalized right to be let alone; rather, it is the interest in being free from observation, the interest in not being seen or heard. That the law protects privacy in this limited sense is shown by the cases that define "searches," which cover only police conduct that permits officers to see or hear things that ordinary citizens would not be able to see or hear.

Notice that the interest in liberty receives less protection. Searches of private homes require probable cause and a warrant. Probable cause, with no warrant, suffices for an arrest outside the home—even though an arrest can lead to detention in the police station. The interest in being free from police violence receives, if not less protection, less attention, which may amount to the same thing: The number of excessive force claims brought against police officers is but a small fraction of the number of suppression motions based on allegedly illegal car searches.

The law's focus on privacy sits uncomfortably together with its focus on regulating the police. Administrative agencies like the Internal Revenue Service arguably invade people's privacy more than the police—think about the kinds of information people must supply on their tax forms. If one really wished to protect privacy, then, a natural way to do so would be to regulate with some care what questions the IRS can ask and how it can ask them. Yet Fourth Amendment law has almost nothing to say about those topics. At the same time, it has a great deal to say about questions like when the police can inspect the inside of a paper bag, or look inside the glove compartment of a car—trivial privacy invasions, one might think, compared with tax forms. In other words, search and seizure law protects privacy, but only when the police infringe it. That seems an odd way to protect privacy.

And protecting privacy may be an odd way to regulate the police. Police do two things that other government agents—grand juries, prosecutors, or administrative agencies—do not. Police arrest people, which means removing them from their homes and locking them up. And police beat, sometimes shoot, people as a means of obtaining and maintaining control over them. If one were to imagine a body of law whose goal was specially to regulate the police, one might expect that law to focus on those two things: on regulating police ability to deprive suspects of their liberty and, perhaps especially, on limiting police ability to injure or kill suspects. Fourth Amendment law does some of that. But it focuses more on privacy interests, on searches of homes and cars and paper bags, and less on other, perhaps more important goals.

Race discrimination. One of those goals might be to eliminate police discrimination on the basis of race. African Americans suffer a disproportionate share of arrests and prison sentences. Much of that disproportion flows from differences in crime rates across population groups, but some of the disproportion may be a consequence of discriminatory targeting of suspects by the police. Perhaps surprisingly, Fourth Amendment law does little to stop that sort of discrimination. Given the breadth of criminal law, police have probable cause to arrest or reasonable suspicion to stop a large portion of the population—when it comes to vehicular traffic, a large majority of the population. Within this pool of potential suspects, police can target whom they wish; Fourth Amendment law basically says nothing about their exercise of enforcement discretion. So if police officers stop large numbers of black drivers, ostensibly for speeding but primarily to check for drugs, and stop few whites, the black drivers have no legal claim.

This is true notwithstanding the fact that a number of courts forbid the use of race as a factor in police "profiles." Such profiles are common in drug investigations; they basically list factors common to drug couriers in particular markets at particular times. Officially, race is a forbidden factor, but officers can easily take race into account without acknowledging that they do so, and for now, the law tolerates that.

Another form of potential discrimination involves the targeting of some kinds of crimes, and some neighborhoods, more severely than others. In the late 1980s and early 1990s, urban crack markets received more police attention than suburban markets in cocaine powder. Most crack defendants were black; most cocaine powder defendants were white. One could argue that the strong tilt against crack was, on balance, a good thing; one could also argue that it was socially harmful, in part because of the racial composition of the two pools of defendants. Whichever answer is right, the current law of search and seizure leaves the question wholly to the police.

There may be no good alternative to that position. Courts are poorly positioned to direct the allocation of police resources across crimes and neighborhoods, and any serious effort to eliminate discriminatory policing would require precisely that. Still, it seems strange that Fourth Amendment law—the body of law most clearly devoted to regulating the police—has so little to do with what may be the most serious regulatory problem in the world of policing: stamping out race discrimination.

William J. Stuntz

See also Criminal Procedure: Constitutional Aspects; Criminal Procedure: Comparative Aspects; Exclusionary Rule; Police: Criminal Investigations; Police: Police Officer Behavior; Wiretapping and Eavesdropping.

BIBLIOGRAPHY

Amar, Akhil Reed. "Fourth Amendment First Principles." Harvard Law Review 107 (February 1994): 757–819.

Amsterdam, Anthony G. "Perspectives on the Fourth Amendment." Minnesota Law Review 58 (1974): 349–477.

Dickerson, O. M. "Writs of Assistance as a Cause of the Revolution." The Era of the American Revolution. Edited by Richard B. Morris. New York: Columbia University Press, 1939. Pages 40–75.

Kennedy, Randall. Race, Crime, and the Law. New York: Pantheon Books, 1997.

LaFave, Wayne R. Search and Seizure: A Treatise on the Fourth Amendment. 5 vols. St. Paul, Minn.: West, 1995.

Livingston, Debra. "Police Discretion and the Quality of Life in Public Places: Courts, Communities, and the New Policing." Columbia Law Review 97 (April 1997): 551–672.

Sklansky, David A. "Traffic Stops, Minority Motorists, and the Future of the Fourth Amendment." Supreme Court Review (1997): 271–329.

Steiker, Carol S. "Second Thoughts About First Principles." Harvard Law Review 107 (February 1994): 820–857.

Stuntz, William J. "Warrants and Fourth Amendment Remedies." Virginia Law Review 77 (August 1991): 881–942.

——. "The Substantive Origins of Criminal Procedure." Yale Law Journal 105 (November, 1995): 393–447.

Taylor, Telford. Two Studies in Constitutional Interpretation. Columbus: Ohio State University Press, 1969.

Van Duizend, Richard, et al. The Search Warrant Process: Preconceptions, Perceptions, Practices. National Center for State Courts, Williamsburg, Va., 1985.

Wasserstrom, Silas J., and Seidman, Louis Michael. "The Fourth Amendment as Constitutional Theory." Georgetown Law Journal 77 (October 1988): 19–112.

CASES

Brinegar v. United States, 338 U.S. 160 (1949).

Chicago v. Morales, 119 S.Ct. 1849 (1999).

Entick v. Carrington, 19 Howell's State Trials 1029 (C.P. 1765).

Illinois v. Gates, 462 U.S. 213 (1983).

Indianapolis v. Edmond, 121 S.Ct. 447 (2000).

Mapp v. Ohio, 367 U.S. 643 (1961).

Michigan Highway Department v. Sitz, 496 U.S. 444 (1990).

Tennessee v. Garner, 471 U.S. 1 (1985).

Terry v. Ohio, 392 U.S. 1 (1968).

Weeks v. United States, 232 U.S. 314 (1914).

Whren v. United States, 517 U.S. 806 (1996).

Wilkes v. Wood, 19 Howell's State Trials 1153 (C.P. 1763).

Wolf v. Colorado, 338 U.S. 25 (1949).

Writs of Assistance

SEARCH AND SEIZURE

The fourth amendment has the virtue of brevity and the vice of ambiguity. It does not define the probable cause required for warrants or indicate whether a warrantless search or seizure is inevitably "unreasonable" if made without probable cause, so that the factual basis required for a constitutional search or seizure is unclear. The amendment does not define the relationship of the word "unreasonable" to the clause setting forth the conditions under which warrants may issue; it is thus unclear when a judicial officer's approval must be obtained before an arrest or search is made. There is also uncertainty as to what official conduct is subject to the amendment's restraints, that is, just what actions amount to "searches and seizures" and threaten the "right of the people to be secure." Finally, there is ambiguity concerning how that right is to be enforced; unlike the Fifth Amendment right against self-incrimination, no mention is made of barring from evidence the fruits of a violation of the amendment. The Supreme Court has had to respond to each of these four fundamental questions. (See right-privilege distinction.)

The warrant clause of the Fourth Amendment makes it apparent that a valid arrest warrant or search warrant may issue only upon a showing of probable cause to the issuing authority. This requirement is intended to prohibit resort to general warrants and arrest and search on suspicion. As the Court noted in brinegar v. united states (1949), it is also intended "to give fair leeway for enforcing the law in the community's protection," and thus is best perceived as "a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests" of individual privacy and collective security.

Though a literal reading of the Fourth Amendment does not compel this result, the prohibition upon " unreasonable " searches and seizures has been construed to mean that even searches and seizures conducted without a warrant require probable cause. As explained in wong sun v. united states (1963), "the requirements of reliability and particularity of the information on which an officer may act … surely cannot be less stringent [when an arrest is made without a warrant] than where an arrest warrant is obtained. Otherwise, a principal incentive now existing for the procurement of arrest warrants would be destroyed." But the amount of probable cause required for with-warrant and without-warrant searches is not exactly the same; the Court stated in United States v. Ventresca (1965) that because of the preference accorded to warrants, "in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fail."

The same quantum of evidence is required whether one is concerned with probable cause to arrest or to search. Thus in spinelli v. united states (1969), concerning probable cause for a search warrant, the Court found its earlier decision in draper v. united states (1959), concerning probable cause to arrest, to be a "suitable benchmark." But the arrest and search situations differ in important respects. For arrest, it must be sufficiently probable that an offense has been committed and that the particular individual to be arrested has committed it; for a search, it must be sufficiently probable that specified items are evidence of criminal activity and are to be found in the specified place. On a given set of facts one type of probable cause may be present but not the other.

The probable cause test is an objective rather than a subjective one. "If subjective good faith alone were the test," the Supreme Court said in Beck v. Ohio (1964), "the protections of the Fourth Amendment would evaporate, and the people would be 'secure in their houses, papers, and effects,' only in the discretion of the police." The question, therefore, is not what the arresting or searching officer thought but rather what a reasonable person with the experience and expertise of the officer would have thought. That assessment is to be made on all available information regardless of its admissibility in a criminal trial because, as the Court said in Brinegar, the probable cause test is "not technical" and involves "the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Thus credible hearsay may be considered, but a person's reputation, at least when stated in terms of unsubstantiated conclusions, cannot.

Although Brinegar declares that probable cause requires "less than evidence which would justify … conviction" but yet "more than bare suspicion" and also that the question is one of "probabilities," it gives no indication as to what degree of probability is required. Some of the Court's decisions—for example, Johnson v. United States (1948), holding that the smell of burning opium from within a hotel room did not amount to probable cause to arrest a particular occupant because until the subsequent entry she was not known to be the sole occupant of the room—suggest a more-probable-than-not standard. But the Supreme Court has never explicitly held that the Fourth Amendment requires this standard, and the lower courts have understandably found such an interpretation too stringent in at least some circumstances. Thus, it is not uncommon to find an appellate decision holding that an arrest near a crime scene was lawful even though the victim's description was not exact or detailed enough to single the arrested person out from all other persons in the vicinity, or that a search of a number of different places under a suspect's control is permissible even though no one of them is the more-probable-than-not location of the evidence sought.

Most of the Supreme Court's probable cause cases involve information from police informants, denizens of the criminal milieu who provide information in exchange for money or informal immunity regarding their own criminal conduct. In aguilar v. texas (1964), where the search warrant affidavit merely recited that the affiants had "received reliable information from a credible person" that "narcotics and narcotics paraphernalia are being kept at the above described premises," the Court adopted a two-pronged test. This affidavit was held insufficient because, first, it did not disclose how the informant knew what he claimed to know concerning what was in the house; and second, it did not disclose how the affiants concluded that their informer was reliable. The first prong of this test has usually been met with details about how the informant acquired his knowledge (for instance, that he had just been inside the house and saw there a cache of narcotics from which the occupant made a sale), though it can be indirectly satisfied by self-verifying detail. As explained in Spinelli, if the informant gives a great many details about the criminal scheme (the precise amount of narcotics in the house, how it is wrapped, exactly where it is stored), then it may be inferred "that the informant had gained his information in a reliable way."

The second or "veracity" prong of Aguilar has typically been met on the basis of past performance, that is, by a recitation that this same informant previously has given information that turned out to be correct. Alternatively, it has sufficed to show, as in united states v. harris (1971), that the informant's statement included an admission against penal interest ("I bought some narcotics while I was in that house"), as people "do not lightly admit a crime and place critical evidence in the hands of the police in the form of their own admissions." The Supreme Court sometimes stressed that the informer's tale was partly corroborated, but there was considerable uncertainty as to just what deficiencies under the Aguilar twopronged test this corroboration overcomes. (Because the use of informants raises special concerns not present in other situations, no comparable showing of veracity is needed when the information has been obtained from a police officer or a cooperative citizen.)

The Aguilar test was abandoned in illinois v. gates (1983) in favor of a more general "totality of the circumstances" approach. The Aguilar factors of veracity and basis of knowledge remain as "relevant considerations," but are no longer two independent requirements; "a deficiency in one may be compensated for … by a strong showing as to the other." This is an unfortunate development, for the Aguilar rule provided a necessary structure and more precise guidance to police and judges. Moreover, the Gates approach is unsound, for surely—as the Court has often held—a conclusory allegation ("there are narcotics in that house") is insufficient even when it comes from a source of unquestioned reliability. Gates will doubtless make it easier to establish probable cause than it has been previously; the Court deemed it sufficient that the police had received an anonymous letter with a conclusory assertion of drug trafficking and then had corroborated the letter with certain predicted behavior that was not otherwise suspicious.

One extremely important question regarding the Fourth Amendment probable cause test is whether it is fixed or variable, that is, whether it always requires the same quantum of evidence or whether this compromise between privacy and law enforcement interests may be struck differently on a case-by-case basis. For example, may it be concluded that the solution of an unsolved murder is of greater public concern than the solution of an unsolved shoplifting, so that an arrest or search concerning the former would require less evidence than one respecting the latter offense? When confronted with that question in Dunaway v. New York (1979), the Court answered in the negative, saying such a variable standard would be impracticable: "A single, familiar standard is essential to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront."

Another supposed variable in Dunaway was that the police action at issue was a brief detention of the suspect at the police station, not recorded as an arrest. Though the Court there found the detention "indistinguishable from a traditional arrest" and thus subject to the usual probable cause requirement, on other occasions the Supreme Court has used a balancing test : when the police action is significantly less intrusive than the usual arrest or search, there is a corresponding reduction in the required factual basis justifying that action. The leading decision is the stop and frisk case, terry v. ohio (1968), which with later decisions may be taken to mean, first, that a brief on-the-street detention of a suspect, a distinct police practice significantly less intrusive than a full-fledged arrest, is lawful upon a reasonable suspicion of criminality falling short of that needed to arrest; and second, that a frisk of that suspect for purposes of self-protection, a distinct police practice significantly less intrusive than a complete search of the person, is lawful upon a reasonable suspicion that the suspect is armed falling short of the probable cause required for a full search.

Although this balancing in Terry upheld a limited seizure and search on a watered-down version of probable cause, in other situations the Supreme Court has permitted very limited routine seizures or searches even absent any case-by-case showing of suspicion. Thus camara v. municipal court (1967) allowed a safety inspection of a dwelling, without any showing of the likelihood of code violations in that particular dwelling, where the inspection followed "reasonable legislative or administrative standards," such as those authorizing periodic inspection. And in Delaware v. Prouse (1979) the Court indicated its approval of stopping a vehicle for a driver's license and vehicle registration check, even absent suspicion that the driver was unlicensed or the car unregistered, as part of a roadblock conducted under standardized procedures.

Still another line of cases requires no factual basis for a particular seizure or search provided it is conducted in connection with some other search or seizure for which there is a sufficient basis. Where such relationships exist, the law would be very complex and difficult to apply if multiple factual bases were required, and thus sophistication has been rejected in favor of certain "bright lines" clearly marking the boundaries of permissible police conduct. Illustrative is united states v. robinson (1973), holding that a search of a person is permissible whenever that individual has just been subjected to a lawful custodial arrest. Though the Court in Robinson understood that search of the arrestee's person serves only to ensure that he does not have a weapon by which to make an escape or evidence of the crime which he might try to destroy or dispose of, it was not thought realistic to require separate police determinations whether there were grounds for arrest and whether the arrestee might be armed or in possession of evidence. Rather, the right to search was "piggybacked" onto the authority to arrest. By like reasoning, the Court held in New York v. Belton (1981) that the search of an automobile's passenger compartment can be piggybacked onto the contemporaneous arrest of an occupant, and in michigan v. summers (1981) that the brief detention of an occupant of a house can be piggybacked onto the contemporaneous execution of a search warrant for contraband there.

The Supreme Court has often expressed a preference for searches and seizures made pursuant to a warrant, reasoning that the warrant process protects Fourth Amendment rights by ensuring that critical decisions are made by "a neutral and detached magistrate." Thus the warrant-issuing authority may not be given to a prosecutor (coolidge v. new hampshire, 1971), or to a justice of the peace who receives a fee for warrants issued (Connally v. Georgia, 1977), but at least as to minor offenses may be granted to a clerk of the court acting under the supervision of a judge (Shadwick v. City of Tampa, 1972). The magistrate's responsibility is to make the critical probable cause decision which otherwise would be left to the police, and to ensure, as the Fourth Amendment requires, that the warrant describes the place to be searched and the person or things to be seized with such specificity that an officer can, as the Court put it in Steele v. United States (1925), "with reasonable effort ascertain and identify" the place, person, or thing intended.

Despite this preference for warrants, in many circumstances a search or seizure may constitutionally be made without a warrant. For one thing, no warrant need be obtained when exigent circumstances make a detour to a magistrate impracticable. Illustrative is the seminal automobile search case of carroll v. united states (1925), where it was stressed that "it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought." However, the Court has not always dealt with the exigent circumstances issue in a consistent fashion. In chambers v. maroney (1970) the Court extended the Carroll rule to a vehicle that was in police custody and inaccessible to anyone else. On the other hand, in Vale v. Louisiana (1970) the Court chastised the police for not having obtained a search warrant a day earlier, though the probable cause needed for its issuance had unexpectedly come to the attention of the officer for the first time just minutes before the warrantless search of the arrestee's dwelling.

These different attitudes suggest that considerations other than "exigent circumstances" are at play. For example, the Court is less willing to recognize exceptions to the warrant requirement for dwelling searches than for vehicle searches. Apparently perceiving that its expanded vehicle search rule could not be explained in terms of exigent circumstances, the Court in United States v. Chadwick (1977) offered another explanation: vehicles have a "diminished expectation of privacy" which makes them unworthy of the usual Fourth Amendment warrant requirement. Yet in Arkansas v. Sanders (1979) the Court found no such diminished expectation in a suitcase, even when placed in a vehicle. It is not immediately apparent why placing one's personal items in the trunk of a car manifests less of a privacy expectation than placing those same items in some other type of container. Perhaps that is why the Court responded in United States v. Ross (1982) with this curious rule for the container-in-a-car cases: the Chambers no-warrant rule applies if there is probable cause to search the entire vehicle, but the Sanders warrant rule applies if there is probable cause to search only the container in the vehicle.

Some decisions reflect the Court's belief that certain police intrusions are more serious than others and that the warrant process is necessary only for the more serious ones. Intrusions upon a possessory interest are generally viewed as less serious than intrusions into a privacy interest; the former alone do not require warrants. Coolidge v. New Hampshire teaches that if the police are lawfully present in a place executing a search warrant and find items they believe are subject to seizure but which are not named in the warrant, they usually may make a warrantless seizure of them and need not return to the magistrate for another warrant. By contrast, when the police come into lawful possession of a closed container, for example, one which was turned over to them because misdelivered, as in Walter v. United States (1980), further intrusion into the privacy of the container ordinarily requires a warrant.

Similar analysis partly explains the rule of United States v. Watson (1976) that an arrest in a public place may be made without a warrant even if there was ample opportunity to obtain one. The Court did not consider such a siezure as great a threat to Fourth Amendment values as, say, the search of a dwelling. Thus the situation changes if the arrest can be made only by entering private premises; the Court held in payton v. new york (1980) that a warrant is then required absent true exigent circumstances. The situation also changes if the seizure of the person becomes more intrusive. As the Court explained in Gerstein v. Pugh (1975), no warrant is needed merely for "a brief period of detention to take the administrative steps incident to arrest," but if the arrestee is not promptly released then "the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint on liberty following arrest."

Yet another theme runs through the Court's decisions: no warrant is necessary when there is little for the magistrate to decide. The most obvious illustration is the rule that no search warrant is required for an inventory of an impounded vehicle because there are no special facts for the magistrate to evaluate. The point is also illustrated by comparing Payton with steagald v. united states (1981). Together the two cases stand for the proposition that an arrest warrant alone justifies entry into the intended arrestee's home to arrest him but not entry into a third party's home, which usually requires a search warrant. In the former situation, unlike the latter, there is no substantial need for a magistrate to determine on a case-by-case basis whether the suspect will probably be found in his own home. Sometimes, as in Camara v. Municipal Court, requiring warrants for housing inspections but permitting their issuance without a case-by-case probable cause showing, the Court has been sharply divided on the question of whether resort to the warrant process would be meaningful.

Still another consideration in the warrant cases of the Court is the need for "bright lines," the notion that case-by-case assessments simply are not feasible as to certain matters, so that a general rule applicable to all cases of a certain type is necessary. An example is United States v. Watson, holding that no warrant is required to arrest in a public place; a contrary holding, the Court said, would "encumber criminal prosecutions with endless litigation with respect to the existence of exigent circumstances, whether it was practicable to get a warrant, whether the suspect was about to flee, and the like." But in chimel v. california (1969) the Court overruled cases permitting a warrantless search of premises contemporaneous with a lawful arrest therein, rejecting the dissenters' claim that the earlier "bright line" rule was necessary because there often is "a strong possibility that confederates of the arrested man will in the meanwhile remove the items for which the police have probable cause to search."

The probable cause and warrant requirements of the Fourth Amendment limit the government only. They have no application to private illegal searches and seizures, as where a private person breaks into premises, seizes evidence of crime found therein, and turns that evidence over to the authorities. But if a government official should instigate or participate in such an activity, that involvement would make the private person an agent of the government. Though most Fourth Amendment cases involve the actions of police officers, the amendment unquestionably applies to other government officials as well.

The limitations of the Fourth Amendment extend only to "searches" and "seizures." The term "seizure" is considerably broader than "arrest"; thus the fact that a particular detention is not called an arrest or is less intrusive than an arrest does not mean the amendment is inapplicable. As the Court put it in Terry v. Ohio, "whenever a police officer accosts an individual and restrains his freedom to walk away, he has "seized' that person." That formulation leaves unresolved an issue of perspective: is the question whether the officer intended to restrain, or whether the suspect believed he was restrained? Either of these subjective states of mind would be difficult to prove apart from the self-serving statements of the officer and suspect, respectively, and thus an objective test is preferable. The courts, including the Supreme Court, have given insufficient attention to this matter. In Florida v. Royer (1983) a majority of the Court expressed the view "that a person has been "seized' within the meaning of the Fourth Amendment 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." But few people feel free to walk away during a police-citizen encounter, and thus a workable test may require consideration whether the officer added to the inherent pressures by engaging in menacing conduct significantly beyond that accepted in social intercourse. Some governmental pressure causing a person to be in a certain place at a certain time, such as the grand jury subpoena upheld in united states v. dionisio (1973), does not amount to a Fourth Amendment seizure.

More difficult is the definition of a "search" within the meaning of the Fourth Amendment. The view requiring a physical intrusion into "a constitutionally protected area" was finally abandoned in Katz v. United States (1967), which involved electronic eavesdropping upon one end of a telephone conversation with a device attached to the outside of a public telephone booth. The Court held that this conduct was a search because the government "violated the privacy upon which [Katz] justifiably relied while using the telephone booth." Justice john marshall harlan, concurring in Katz in an opinion often relied upon by lower courts, enunciated "a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as "reasonable."

The first of these two requirements clearly deserves no place in a theory of what the Fourth Amendment protects. Were it otherwise, as Anthony Amsterdam aptly put it, "the government could diminish each person's subjective expectation of privacy merely by announcing half-hourly on television … that we were all forthwith being placed under comprehensive electronic surveillance." Justice Harlan later came around to this position, counseling in his dissenting opinion in united states v. white (1971) that analysis under Katz must "transcend the search for subjective ecpectations," because our ecpectations "are in large part reflections of laws that translate into rules that customs and values of the past and present." A majority of the Court continues to use the "actual (subjective) expectation of privacy" formulatin, but cautioned in Smith v. Maryland (1979) that in some situations it "would provide an inadequate index of Fourth Amendment protection."

The Court has sometimes referred to the second Katz requirement simply as the "reasonable "expectation of privacy" test. From this, it might be assumed that investigative activity constitutes a search whenever it uncovers incriminating actions or objects which the law's hypothetical reasonable man would have expected to remain private, that is, those which as a matter of statistical probability were not likely to be discovered. But such an approach is unsound. Rather, as Justice Harlan later explained in his United States v. White dissent, the question here must "be answered by assessing 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." In Amsterdam's words, at the heart of the matter is "a value judgment": "whether, if the particular form of surveillance practiced by the police is permitted to go unregulated by constitutional restraints, the amount of privacy and freedom remaining to citizens would be diminished to a compass inconsistent with the aims of a free and open society."

Although Katz, so viewed, offers a useful approach to the question of what the Fourth Amendment protects, the Court's application of the test has been neither consistent nor cautious, as can be seen by comparing marshall v. barlow ' sinc. (1978) with Smith v. Maryland (1979). In Marshall, holding unconstitutional the warrantless inspection of business premises, the Court expressly rejected the government's claim that a businessman lacked any privacy expectation vis-à-vis the government when there was no such expectation as to others (in this instance, his employees). Rather, the Court reached the sensible conclusion that an unconsented entry would be a Fourth Amendment search even though the area entered was regularly used by the company's employees. But a year later, in Smith, rejecting the claim that there was a "legitimate expectation of privacy" in the numbers one dials on his telephone, the Court, though asserting that "our lodestar is Katz," concluded there was no such privacy expectation vis-à-vis the government because the telephone company's switching equipment had the capacity to record that information for certain limited business purposes. This unfortunate all-or-nothing view of privacy, as Justice thurgood marshall noted in dissent, means that "unless a person is prepared to forego use of what for many has become a personal or professional necessity, he cannot help but accept the risk of surveillance."

In still another situation the Fourth Amendment's probable cause and warrant requirements are not applicable. This situation is most commonly called a consent search, although when the facilitating party is active rather than passive it may be characterized as involving no search at all. At one time the consent doctrine was assumed to be grounded on the concept of waiver, but in schneckloth v. bustamonte (1973) the Court, saying such an approach "would be thoroughly inconsistent with our decisions," held that the underlying issue was whether the person's consent was "voluntary." One reason the concept of waiver is inappropriate here is because it has long been recognized that sometimes one party may give a consent that will be effective against another. As the Court put it in United States v. Matlock (1974), where two or more persons have joint access to or control of premises "it is reasonable to recognize that any of the coinhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched." The Court in Matlock found it unnecessary to pass upon the correctness of a position taken by several lower courts, namely, that the Fourth Amendment's reasonableness requirement is met if the police reasonably but mistakenly conclude that the consenting person has such authority.

The Fourth Amendment was a largely unexplored territory until boyd v. united states (1886), where the Supreme Court, weaving together the Fourth and Fifth Amendments, concluded that "the seizure of a man's private books and papers to be used in evidence against him" was not "substantially different from compelling him to be a witness against himself" and thus held that physical evidence the defendant was required to produce was inadmissible. Boyd was later confined by Adams v. New York (1904) to the situation in which a positive act was required of the defendant, but in weeks v. united states (1914) the Court ruled that the "effect of the 4th Amendment" is to forbid federal courts to admit into evidence the fruits of Fourth Amendment violations. The same could not be said of the state courts, the Supreme Court decided in wolf v. colorado (1949); whether exclusion of evidence was the best way to enforce the Fourth Amendment was "an issue as to which men with complete devotion to the protection of the right of privacy might give different answers." Wolf was overruled in mapp v. ohio (1961), where the majority concluded that other remedies for Fourth Amendment violations had proven worthless. Without an exclusionary rule operative at both the state and the federal level, the Constitution's assurance against unreasonable searches and seizures "would be "a form of words,' valueless and undeserving of mention in a perpetual charter of inestimable human liberties."

Over the years the Court has given various explanations of the rationale for this exclusionary rule. In elkins v. united states (1960) the Court emphasized "the imperative of judicial integrity"—that the courts not become "accomplices in the willful disobedience of a Constitution they are sworn to uphold." A second purpose, articulated by Justice william j. brennan, dissenting in united states v. calandra (1974), is that "of assuring the people—all potential victims of unlawful government conduct—that the government would not profit from its lawless behavior, thus minimizing the risk of seriously undermining popular trust in government." This second purpose is reflected in opinions as early as Weeks. Yet a third purpose, not explicitly mentioned in the earlier cases, is that of deterring unreasonable searches and seizures. Thus, in Elkins the Court emphasized: "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." In recent years the Court has relied almost exclusively upon this deterrence rationale.

Over the years the deterrence issue has occasioned intense debate; some claim the exclusionary rule does not deter and should be abandoned, and others claim that it does and should be retained. Hard evidence supporting either claim is unavailable, but some argue that a deterrent effect may be assumed because of such post-exclusionary-rule phenomena as the dramatic increase in the use of warrants and stepped-up efforts to educate the police on the law of search and seizure. The debate has recently centered on a proposed "good faith" exception to the Fourth Amendment exclusionary rule, allowing admission of illegally obtained evidence if the searching or seizing officer acted in a reasonable belief that his conduct was constitutionally permissible. A limited version of the exception was adopted by the Court in united states v. leon (1984), where the exclusionary rule was "modified so as not to bar the use in the prosecution's case-in-chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause." The majority reasoned that exclusion for purposes of deterrence was unnecessary in such circumstances, as exclusion would have no significant deterrent effect on the magistrate who issued the warrant, and there is no need to deter the policeman who justifiably relied upon the prior judgment of the magistrate. Whether Leon will be a stepping-stone to adoption of a broader (and, it would seem, less justifiable and more difficult to apply) "good faith" exception, applicable also in without-warrant cases, remains to be seen.

The current dimensions of the Fourth Amendment exclusionary rule are mostly tailored to the deterrence rationale. The rule is not used in certain settings on the assumption that the incremental gain in deterrence is not worth the cost. Illustrative are United States v. Calandra, refusing to compel exclusion at the behest of a grand jury witness because it "would achieve a speculative and undoubtedly minimal advance in the deterrence of police misconduct at the expense of substantially impending the role of the grand jury"; and United States v. Janis (1976), declining to require exclusion in federal tax litigation of evidence uncovered in a state criminal investigation of gambling because "common sense dictates that the deterrent effect of the exclusion of relevant evidence is highly attenuated when the "punishment' imposed upon the offending criminal enforcement officer is the removal of that evidence from a civil suit by or against a different sovereign." Even in the context of a criminal trial the deterrent objective of the exclusionary rule is sometimes perceived as outweighed by competing considerations. This explains the rule in Walder v. United States (1954) that the government may use illegally obtained evidence to impeach the defendant's testimony, so that the defendant cannot "turn the illegal method by which evidence in the Government's possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths."

Who may invoke the exclusionary rule? The rule of standing generally is that a constitutional challenge may be raised only by those who have an interest in the outcome of the controversy, and who are objecting to a violation of their own rights. A defendant in a criminal case against whom illegally obtained evidence is being offered certainly meets the first requirement, but he does not necessarily meet the second. As to the latter, the fundamental question is whether the challenged conduct intruded upon his freedom or expectation of privacy or only that of someone else, as Rakas v. Illinois (1978) illustrates. The Court held that passengers in a car did not have standing to object to a search under the seats and in the glove compartment of that vehicle. Essential to the holding were the conclusions that these passengers were not claiming that the car had been illegally stopped, that they "asserted neither a property nor a possessory interest in the automobile, nor an interest in the property seized," and that the areas searched were ones "in which a passenger qua passenger simply would not have a legitimate expectation of privacy." The Supreme Court refused in alderman v. united states (1969) to adopt a rule of "target standing" allowing a defendant to object to any Fourth Amendment violation committed for the purpose of acquiring evidence for use against him. This refusal limits to some extent the deterrent effect of the exclusionary rule, for police sometimes deliberately direct an illegal search at one person because they are seeking evidence to use against another person they know will not be able to question their conduct.

What evidence is subject to challenge under the exclusionary rule? Under the fruit of the poisonous tree doctrine, the exclusionary rule applies not only to the immediate and direct fruits of a Fourth Amendment violation (the physical evidence found in a search), but also to secondary or derivative evidence (a confession acquired by confronting a person with that physical evidence). Of course, in a criminal investigation the discovery of one fact often plays some part in the discovery of many others, and they in turn contribute to the uncovering of still others, and so on, but the fruits doctrine is not pushed this far. Even the fact first discovered by an illegal act does not become forever "inaccessible" for court use: it may still be proved "if knowledge of [the fact] is [also] gained from an independent source," as in silverthorne lumber co. v. united states (1920). The "inevitable discovery" doctrine accepted in Nix v. Williams (1984), whereunder illegally obtained evidence is admissible if "the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means," likewise serves to put the police in no worse position than they would have been if their misconduct had not occurred. Another limitation is provided by the test in Wong Sun v. United States : "whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." In that case the taint of one defendant's illegal arrest was deemed dissipated by his release on his own recognizance, so that the taint did not reach a subsequently given confession. Considerations close to the deterrent function of the exclusionary rule also come into play here. Thus, suppression of derivative evidence is much more likely if it appears that the primary illegality was a clearly unconstitutional act or that it was undertaken for the purpose of acquiring that derivative evidence. For example, a confession will be deemed the fruit of an obviously illegal arrest made in the hope of acquiring a confession.

It cannot be denied that there is ample room for reasonable disagreement regarding the rationales and results of a number of the Supreme Court's Fourth Amendment decisions. In the main, however, the Court's response to the four fundamental questions just discussed has been indisputably appropriate and sound. The decisions on the requisite factual basis for a seizure or search have generally struck a fair balance between privacy and law enforcement interests. The Court's rulings regarding the warrant requirement have prevented the warrant process from becoming so overburdened as to become a mechanical and meaningless routine, yet have provided added protection to those Fourth Amendment interests that are valued most. The decisions defining the activities to which the amendment applies—especially Katz and its justified expectation of privacy test—provide an approach that should enable the Court to protect against new threats to the individual's right to be free of intrusive government surveillance. Finally, it is the Court's insistence upon an exclusionary rule as an enforcement mechanism that has kept the Fourth Amendment from being reduced to "a form of words."

Wayne R. LaFave
(1986)

Bibliography

Amsterdam, Anthony G. 1974 Perspectives on the Fourth Amendment. Minnesota Law Review 58:349–477.

Grano, Joseph D. 1978 Perplexing Questions about Three Basic Fourth Amendment Issues: Fourth Amendment Activity, Probable Cause, and the Warrant Requirement. Journal of Criminal Law and Criminology 69:425–463.

Kamisar, Yale 1983 Does (Did) (Should) the Exclusionary Rule Rest on a "Principled Basis" Rather Than an "Empirical Proposition"? Creighton Law Review 16:565–667.

La Fave, Wayne R. 1978 Search and Seizure: A Treatise on the Fourth Amendment, 3 vols. St. Paul, Minn.: West Publishing Co.

Landynski, Jacob W. 1966 Search and Seizure and the Supreme Court. Baltimore, Md.: Johns Hopkins University Press.

Oaks, Dallin H. 1970 Studying the Exclusionary Rule. University of Chicago Law Review 37:665–757.

United States, Congress, Senate Committee on the Judiciary, Subcommittee on Criminal Law 1982 The Exclusionary Rule Bills, 97th Cong., 1st & 2d sess.

Search and Seizure

Sections within this essay:

Background

"Search and seizure" refers to the methods used by law enforcement to investigate crimes, track down evidence, question witnesses, and arrest suspects. It also refers to the legal rules governing these methods. At the federal level these rules are set forth in the Fourth Amendment to the U.S. Constitution, the Federal Rules of Criminal Procedure, and Title 18 of the United States Code, sections 2231 et seq. The rules and statutes refer to each other, and both are designed to provide greater detail for areas left silent by the Constitution. In addition, each state has its own set of applicable statutes, rules of procedure, and constitutional provisions. But the starting point in understanding any of these rules is the Fourth Amendment, since it sets forth the minimum amount of protection that both the state and federal government must provide against searches and seizures. Under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, the U.S. Supreme Court has ruled that states may provide their citizens with more protection against searches and seizures but not less.

The American Revolution was fought in part to create a system of government that would operate within the rule of law. The rule of law is represented by the idea that the United States is a nation of laws and not of men and women. Under the rule of law, the actions of government officials are limited by the legal principles, rules, and other norms that make up the U.S. legal system and not by the arbitrary or capricious whim of an individual official. Violating these legal norms in the course of official conduct can transform a law enforcer into a law breaker.

The Framers drafted the Fourth Amendment in response to their colonial experience with British officials whose discretion in collecting revenues for the Crown often went unchecked. Local magistrates were allowed to issue general search warrants to British tax collectors upon mere suspicion that a colonist was not fully complying with the tax code. Magistrates were not authorized to question the source or strength of a tax collector's suspicion, and, once issued, general warrants permitted blanket, door-to-door searches of entire neighborhoods without regard to person, place, or time.

The writ of assistance was a particularly loathsome form of general warrant. This writ derived its name from the power of British authorities to compel local peace officers and colonial residents to "assist" in executing a particular search. A writ of assistance lasted for the life of the king or queen under whom it was issued and could be enforced by any British law enforcement officer, including customs officials who often relied on them as long-term hunting licenses against suspected smugglers.

Colonial opposition to general warrants was pervasive. In Paxton's case, 1 Quincy 51 (Mass. 1761), James Otis appeared on behalf of the colonists who opposed issuance of another writ, arguing that before a warrant is valid it must be "directed to special officers and to search certain houses" for particular goods and may only be granted "upon oath made" by a government official "that he suspects such goods to be concealed in those very places he desires to search" (quoted in Illinois v. Krull, 480 U.S. 340 [1987]). John Adams cited Otis' argument against the writs "as the commencement of the controversy between Great Britain and America."

Ratified by the states in 1791, the Fourth Amendment put an end to writs of assistance by creating a constitutional buffer between U.S. citizens and the often-intimidating power of law enforcement. It has three components: first, the Fourth Amendment establishes a privacy interest by recognizing the right of every citizen to be "secure in their persons, houses, papers, and effects"; second, it protects this privacy interest by prohibiting searches and seizures that are not authorized by a warrant based on "probable cause" or that are otherwise "unreasonable"; and third, for searches requiring a warrant the Fourth Amendment states that the warrant must describe with particularity "the place to be searched, and the persons or things to be seized" and be supported by "oath or affirmation" of the officer requesting its issuance.

The Text of the Fourth Amendment and Case Law Interpreting It

Although ratification of the Fourth Amendment answered any lingering doubts about the validity of the writs of assistance in the United States, the text of the Fourth Amendment raised questions of its own about the meaning of the terms "unreasonable," "search or seizure," "warrant," "particularity," "oath or affirmation," and "probable cause," not to mention other questions about the scope of such terms as "houses, papers, and effects." The U.S. Supreme Court, lower federal courts, and state courts have spent more than 200 years grappling with these questions and continue to do so as new cases come before them.

The Text of the Fourth Amendment

The Fourth Amendment reads as follows: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

When the Fourth Amendment Applies

Like the rest of the Bill of Rights, the Fourth Amendment originally only applied in federal court. However, in Wolf v. Colorado, 338 U.S. 25 (1949), the U.S. Supreme Court ruled that the rights guaranteed by the text of the Fourth Amendment (sans the exclusionary rule to be discussed below) apply equally in state courts via the Fourteenth Amendment, which guarantees to the citizen of every state the right to due process and equal protection of the laws. The process by which the Supreme Court has made certain fundamental liberties protected by the Bill of Rights applicable to the states is known as the doctrine of incorporation.

Not every search and seizure that is scrutinized in state and federal court raises a Fourth Amendment issue. The Fourth Amendment only protects against searches and seizures conducted by the government or pursuant to governmental direction. Surveillance and investigatory actions taken by strictly private persons, such as private investigators, suspicious spouses, or nosey neighbors, are not governed by the Fourth Amendment. However, Fourth Amendment concerns do arise when those same actions are taken by a law enforcement official or a private person working in conjunction with law enforcement.

The Fourth Amendment does not apply even against governmental action unless defendants first establish that they had a reasonable expectation of privacy in the place to be searched or the thing to be seized. The Supreme Court has explained that 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 (see Katz v. United States, 389 U.S. 347 [1967]).

Applying this principle, the Supreme Court has ruled that individuals generally maintain a reason-able expectation of privacy in their bodies, clothing, and personal belongings. Homeowners possess a privacy interest that extends inside their homes and in the curtilage immediately surrounding the outside of their homes, but not in the "open fields" and "wooded areas" extending beyond the curtilage (see Hester v. United States, 265 U.S. 57 [1924]). A business owner's expectation of privacy in commercial property is less than the privacy interest afforded to a private homeowner and is particularly attenuated in commercial property used in "closely regulated" industries (i.e., airports, railroads, restaurants, and liquor establishments), where business premises may be subject to regular administrative searches by state or federal agencies for the purpose of determining compliance with health, safety, or security regulations. Automobile owners have a reasonable expectation of privacy in the cars they own and drive, though the expectation of privacy is less than a homeowner's privacy interest in his or her home.

No expectation of privacy is maintained for property and personal effects held open to the public. Things visible in "plain view" for a person of ordinary and unenhanced vision are entitled to no expectation of privacy and thus no Fourth Amendment protection. Items lying in someone's backseat, growing in someone's outdoor garden, or discarded in someone's curb-side garbage all fall within this category. However, items seen only through enhanced surveillance, such as through high-powered or telescopic lenses, may be subject to the strictures of the Fourth Amendment. Public records, published phone numbers, and other matters readily accessible to the general public enjoy no expectation of privacy. Similarly, the Supreme Court has said that individuals do not possess an expectation of privacy in their personal characteristics (see United States v. Dionisio, 410 U.S. 1 [1973]). Thus, the police may require individuals to give handwriting and voice exemplars, as well as hair, blood, DNA, and fingerprint samples, without complying with the Fourth Amendment's requirements.

Finally, to raise a Fourth Amendment objection to a particular search or seizure, a person must have "standing" to do so. Standing in this context means that the rights guaranteed by the Fourth Amendment are personal and may not be asserted on behalf of others. Thus, a passenger may not generally object to a police search of the owner's car and a houseguest may not generally object to a search of the homeowner's premises. These rules can become murky, however, as when a houseguest is actually living with the homeowner or owns things stored on the owner's premises.

How the Fourth Amendment Applies: The Warrant Requirement

Once the Fourth Amendment applies to a particular search or seizure, the next question is under what circumstances is a warrant required. The Supreme Court has ruled that the Constitution expresses a preference for searches, seizures, and arrests conducted pursuant to a lawfully executed warrant (see Mincey v. Arizona, 437 U.S. 385 [1978]). A warrant is a written order signed by a court authorizing a law-enforcement officer to conduct a search, seizure, or arrest. Searches, seizures, and arrests performed without a valid warrant are deemed presumptively invalid, and any evidence seized without a warrant will be suppressed unless a court finds that the search was reasonable under the circumstances.

An application for a warrant must be supported by a sworn, detailed statement made by a law enforcement officer appearing before a neutral judge or magistrate. The Supreme Court has said that probable cause exists when the facts and circumstances within the police officer's knowledge provide a reasonably trustworthy basis for a man of reasonable caution to believe that a criminal offense has been committed or is about to take place (see Carroll v. United States, 267 U.S. 132 [1925]). Probable cause can be established by out-of-court statements made by reliable police informants, even though those statements cannot be tested by the magistrate. However, probable cause will not lie where the only evidence of criminal activity is an officer's affirmation of suspicion or belief (see Aguilar v. Texas, 378 U.S. 108 [1964]). On the other hand, an officer's subjective reason for making an arrest does not need to be the same criminal offense for which the facts indicate. (Devenpeck v. Alford, 543 U.S. 146 [2004]).

Probable cause will not lie unless the facts supporting the warrant are sworn by the officer as true to the best of his or her knowledge. The officer's oath can be written or oral, but the officer must typically swear that no knowing or intentionally false statement has been submitted in support of the warrant and that no statement has been made in reckless disregard of the truth. Inaccuracies due to an officer's negligence or innocent omission do not jeopardize a warrant's validity.

The Fourth Amendment requires not only that warrants be supported by probable cause offered by a sworn police officer, but it also requires that a war-rant "particularly" describe the person or place to be searched or seized. Warrants must provide enough detail so that an officer with the warrant can ascertain with reasonable effort the persons and places identified in the warrant. For most residences a street address usually satisfies the particularity requirement, unless the warrant designates an apartment complex, hotel, or other multiple-unit building, in which case the warrant must describe the specific sub-unit to be searched. Warrants must describe individuals with sufficient particularity so that a person of average intelligence can distinguish them from others in the general population.

The magistrate before whom an officer applies for a warrant must be neutral and detached. This qualification means that the magistrate must be impartial and not a member of the "competitive enterprise" of law enforcement (see California v. Acevedo, 500 U.S. 565 [1991]). Thus, police officers, prosecutors, and attorney generals are disqualified from becoming a magistrate. States vary as to the requirements that candidates must possess before they will be considered qualified for the job of magistrate. Some states require that magistrates have an attorney's license, while others require only that their magistrates be literate.

How the Fourth Amendment Applies: The Reasonableness Requirement

Not every search, seizure, or arrest must be made pursuant to a lawfully executed warrant. The Supreme Court has ruled that warrantless police conduct may comply with the Fourth Amendment so long as it is reasonable under the circumstances. The exceptions made to the Fourth Amendment's warrant requirement reflect the Court's reluctance to unduly impede the job of law enforcement officials. The Court has attempted to strike a balance between the practical realities of daily police work and the privacy and freedom interests of the public. Always requiring police officers to take the time to complete a warrant application and locate and appear before a judge could result in the destruction of evidence, the disappearance of suspects and witnesses, or both. The circumstances under which a warrantless search, seizure, or arrest is deemed reasonable generally fall within seven categories.

First, no warrant is required for a felony arrest in a public place, even if the arresting officer had ample time to procure a warrant, so long as the officer possessed probable cause that the suspect committed the crime. Felony arrests in places not open to the public generally do require a warrant, unless the officer is in "hot pursuit" of a fleeing felon (see Warden v. Hayden, 387 U.S. 294 [1967]). The Fourth Amendment also allows warrantless arrests for misdemeanors committed in an officer's presence.

Second, no warrant is required for searches incident to lawful arrest. If a police officer has made a lawful arrest, with or without a warrant, the Fourth Amendment permits the officer to conduct a search of the suspect's person, clothing, and all of the areas within the suspect's immediate reach. This kind of warrantless search is justified on grounds that it allows police officers to protect themselves from hidden weapons that might suddenly be wielded against them. Accordingly, officers are only permitted to seize items from the area in the immediate control of the arrestee.

Third, automobiles may be stopped if an officer possesses a reasonable and articulable suspicion that the motorist has violated a traffic law. Once the vehicle has pulled to the side of the road, the Fourth Amendment permits the officer to search the vehicle's interior, including the glove compartment. However, the trunk of a vehicle cannot be searched unless the officer has probable cause to believe that it contains contraband or the instrumentalities of criminal activity. But similar to a search incident to arrest, once a vehicle has been lawfully impounded, its contents may be inventoried without a warrant, including the contents of the trunk.

Fourth, an officer who reasonably believes that criminal activity may be afoot in a public place is authorized to stop any person who is suspected of participating in that criminal activity and conduct a carefully limited search of the suspect's outer clothing for weapons that may be used against the officer (see Terry v. Ohio, 392 U.S. 1 [1968]). The officer may also ask for identification, but the suspect is under no obligation to produce it. However, A suspect's refusal to identify himself together with surrounding events may create probable cause to arrest (see People v. Loudermilk, 241 Cal. Rptr. 208 (Cal. App. 1987). This kind of warrantless search, called a Terry stop or a Terry frisk, is designed to protect officers from hidden weapons. Accordingly, items that do not feel like weapons, such as a baggie of soft, granular substance tucked inside a jacket pocket, cannot be seized during a Terry frisk, even if it turns out that the item is contraband.

Fifth, warrantless searches, seizures, and arrests may be justified by "exigent" circumstances. To determine whether exigent circumstances justified po-lice conduct, a court must review the totality of the circumstances, including the gravity of the underlying offense and whether the suspect was fleeing or trying to escape. However, the surrounding circumstances must be tantamount to an emergency. Shots fired, screams heard, or fire emanating from inside a building have all been considered sufficiently exigent to dispense with the Fourth Amendment's warrant requirement.

Sixth, the Supreme Court has upheld brief, warrantless seizures at fixed roadside checkpoints aimed at intercepting illegal aliens (see United States v. Martinez-Fuerte, 428 U.S. 543 [1976]) and drunk drivers (see Michigan v. Sitz, 496 U.S. 444 [1990]). Both checkpoint programs passed constitutional muster because they were tailored to remedying specific problems that law enforcement could not effectively address through more traditional means, namely problems relating to policing the nation's border and ensuring roadway safety. However, when the primary purpose of a checkpoint is simply to detect ordinary criminal activity, the Supreme Court has declared it violative of the Fourth Amendment (see Indianapolis v. Edmond, 531 U.S. 32 [2000]).

Seventh, searches, seizures, and arrests made pursuant to a defective warrant may be justified if the officer was proceeding in "good faith." The Supreme Court has said that a search made pursuant to a warrant that is later declared invalid (i.e., it fails to meet the requirements for a valid warrant enumerated above) will still be considered reasonable under the Fourth Amendment so long as the warrant was issued by a magistrate and the defect was not the result of willful police deception (see United States v. Leon, 468 U.S. 897 [1984]). This exception to the warrant requirement was created so as not to punish honest police officers who have done nothing wrong while acting in accordance with an ostensibly valid warrant.

How the Fourth Amendment Applies: The Exclusionary Rule

For the more than 100 years after its ratification, the Fourth Amendment was of little value to criminal defendants because evidence seized by law enforcement in violation of the warrant or reasonableness requirements was still admissible during the defendant's prosecution. The Supreme Court dramatically changed Fourth Amendment jurisprudence when it handed down its decision in Weeks v. United States, 232 U.S. 383 (1914). Weeks involved the appeal of a defendant who had been convicted based on evidence that had been seized by a federal agent without a warrant or other constitutional justification. The Supreme Court reversed the defendant's conviction, thereby creating what is known as the "exclusionary rule." In Mapp v. Ohio, 367 U.S. 643 (1961), the Supreme Court made the exclusionary rule applicable to the states.

Designed to deter police misconduct, the exclusionary rule enables courts to exclude incriminating evidence from introduction at trial upon proof that the evidence was procured in contravention of a constitutional provision. The rule allows defendants to challenge the admissibility of evidence by bringing a pre-trial motion to suppress the evidence. If the court allows the evidence to be introduced at trial and the jury votes to convict, the defendant can challenge the propriety of the trial court's decision denying the motion to suppress on appeal. If the defendant succeeds on appeal, however, the Supreme Court has ruled that double jeopardy principles do not bar retrial of the defendant because the trial court's error did not go to the question of guilt or innocence (see Lockhart v. Nelson, 488 U.S. 33 [1988]). Nonetheless, obtaining a conviction in the second trial would be significantly more difficult if the evidence suppressed by the exclusionary rule is important to the prosecution.

A companion to the exclusionary rule is the "fruit of the poisonous tree" doctrine. Under this doctrine, a court may exclude from trial not only evidence that itself was seized in violation of the Constitution but also any other evidence that is derived from an illegal search. For example, suppose a defendant is arrested for kidnapping and later confesses to the crime. If a court subsequently declares that the arrest was unconstitutional, the confession will also be deemed tainted and ruled inadmissible at any prosecution of the defendant on the kidnapping charge.

State Court Decisions Interpreting Constitutional Provisions Governing Search and Seizure

The federal Constitution and the Supreme Court cases interpreting it establish the minimum amount of protection that a state court must provide when it is interpreting a section of the Bill of Rights that has been made applicable to the states via the doctrine of incorporation, including instances when a state court is required to interpret and apply the Fourth Amendment. A state court interpreting the search-and-seizure provisions of its own constitution may provide more protection than is afforded by the fed-eral Constitution but not less. Below is a sampling of cases decided in part based on a state court's interpretation of its own state constitutional provision governing search and seizure.

FLORIDA: Florida courts are constitutionally required to interpret search and seizure issues in conformity with the Fourth Amendment of the United States Constitution as interpreted by the United States Supreme Court (see State v. Hernandez, 718 So.2d 833 [Fla. App. 1998]).

GEORGIA: A driver's proceeding through a poorly lit intersection without her headlights on created reasonable suspicion to justify a traffic stop of driver under the state constitution (see State v. Hammang, 549 S.E.2d 440 [Ga. App. 2001]).

IDAHO: The term "exigent circumstances" refers to a catalogue of exceptional or compelling circumstances that allow police to enter, search, seize, and arrest without complying with the warrant requirements of the federal or state constitutions, including unannounced entries to search made pursuant to the state and federal "knock and announce" statutes (see State v. Rauch 586 P.2d 671 [Idaho 1978]).

ILLINOIS: Officers involved in the surveillance of an arranged drug purchase had sufficient probable cause to make an arrest of both the driver and passenger of an unidentified vehicle that was observed during the surveillance (see People v. Ortiz, 823 N.E.2d 1171 [Ill. App. 2005]).

KANSAS: Even though police improperly searched a suspect's pockets and found drugs, these drugs inevitably would have been discovered. Under the inevitable discovery doctrine, the search was permissible. (see State v. Ingram, 113 P.3d 228 [Kan. 2005]).

LOUISIANA: Warrantless searches and seizures are unreasonable per se unless justified by one of the specific exceptions to warrant requirement of the federal and state constitutions (see State v. Manson, 791 So. 2d 749 [La. App. 2001]).

MICHIGAN: Enhanced search and seizure protection under Michigan's Constitution is available only if the search or seizure occurs inside the curtilage of the house (see Mich. Const. Art. 1, § 11).

MINNESOTA: The purpose of the exclusionary rule based upon the search and seizure provision of the state constitution is to deter police misconduct, and thus there is no compelling reason to apply a more stringent standard when applying the state exclusionary rule than when applying the federal exclusionary rule (see State v. Martin, 595 N.W.2d 214 [Minn. App. 1999]).

NEW JERSEY: Racial profiling involves a claim of unlawful search and seizure in violation of the state's constitution (see State v. Velez, 763 A.2d 290 [N.J. Super. A.D. 2000]).

NEW MEXICO: The state constitution allows a warrantless arrest only upon a showing of exigent circumstances (see American Civil Liberties Union of New Mexico v. City of Albuquerque, 128 N.M. 315, 992 P.2d 866 (N.M. 1999); NM Const. Art. 2, § 10).

NEW YORK: Liquor retailer had no legitimate expectation of privacy in retail customer sales records maintained by liquor wholesalers with whom the retailer had business dealings, and thus, the retailer lacked standing to challenge, as an unreasonable search and seizure in violation of the New York Constitution, the Department of Taxation and Finance's use of wholesalers' sales records to investigate suspected underreporting of sales tax by liquor retailers (see Roebling Liquors Inc. v. Comm'r of Taxation & Finance, 728 N.Y.S.2d 509 [N.Y. App. Div. 2001]).

NORTH CAROLINA: An informant was sufficiently reliable such that his tip could provide probable cause where the informant had more than 14 years of personal dealings with an officer and had led to more than 100 arrests. (see State v. Stanley, 622 S.E.2d 680 [N.C. App. 2005]).

OHIO: An inventory search of a compartment of a lawfully impounded vehicle does not contravene the federal or state constitutions, where the search is administered in good faith and in accordance with reasonable police procedures or established routine (see State v. Mesa, 717 N.E.2d 329 [Ohio 1999]).

SOUTH CAROLINA: A court order violated a defendant's Fourth Amendment rights by compelling a blood sample. However, other evidence supported the defendant's conviction for murder and first-degree burglary, and the court determined that the error was harmless (see State v. Baccus, 2005 WL 3620398 (S.C. 2006).

WASHINGTON: Without judicial participation, a municipal court clerk may not order the issuance of an arrest warrant in the absence of an authorizing statute, court rule, or ordinance (see State v. Walker, 999 P.2d 1296 (Wash. App. 2000).

WISCONSIN: Where police officers act in objectively reasonable reliance upon a facially valid search warrant that has been issued by a detached and neutral magistrate, a good-faith exception to the exclusionary rule applies under the state constitution, provided that the state shows the process used in obtaining the warrant included a significant investigation and review by either a police officer trained and knowledgeable in the requirements of probable cause and reasonable suspicion or a knowledgeable government attorney (see State v. Eason, 629 N.W.2d 625 [Wisc. 2001]).

Additional Resources

American Jurisprudence. 2d Series. Thomson/West, 2005.

Criminal Procedure. 4th Edition. Wayne R. LaFave, Jerold H. Israel, and Nancy J.King, Thomson/West, 2004.

Oxford Companion to the Supreme Court. 2d Edition. Hall, Kermit L., James W. Ely, Jr., and Joel B. Grossman eds., Oxford University Press, 2005.

West's Encyclopedia of American Law. 2d Edition. Thomson/Gale, 2004.

Organizations

American Civil Liberties Union

1400 20th Street, NW, Suite 119
Washington, DC 20036 USA
Phone: (202) 457-0800
URL: http://www.aclu.org

Association for Federal Defense Attorneys

8530 Wilshire Blvd., Suite 404
Beverly Hills, CA 90211 USA
Phone: (714) 836-6031
URL: http://www.afda.org

Center for Human Rights and Constitutional Law

256 S. Occidental Blvd.
Los Angeles, CA 90057 USA
Phone: (213) 388-8693
Fax: (213) 386-9484
URL: http://www.centerforhumanrights.org

National District Attorneys Association

99 Canal Center Plaza
Alexandria, VA 22314 USA
Phone: (703) 549-9222
Fax: (703) 836-3195
URL: http://www.ndaa.org

SEARCH AND SEIZURE

A hunt by law enforcement officials for property or communications believed to be evidence of crime, and the act of taking possession of this property.

Ininternational law, the right of ships of war, as regulated by treaties, to examine a merchant vessel during war in order to determine whether the ship or its cargo is liable to seizure.

Overview

Search and seizure is a necessary exercise in the ongoing pursuit of criminals. Searches and seizures are used to produce evidence for the prosecution of alleged criminals. The police have the power to search and seize, but individuals are protected against arbitrary, unreasonable police intrusions. Freedom from unrestricted search warrants was critical to American colonists.

Under England's rule, many searches were unlimited in scope and conducted without justification. Customs officials could enter the homes of colonists at will to search for violations of customs and trade laws, and suspicionless searches were carried out against outspoken political activists. Searches in the colonies came to represent governmental oppression.

To guard against arbitrary police intrusions, the newly formed United States in 1791 ratified the U.S. Constitution's fourth amendment, which states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

State Action

Law enforcement officers are entrusted with the power to conduct investigations, make arrests, perform searches and seizures of persons and their belongings, and occasionally use lethal force in the line of duty. But this power must be exercised within the boundaries of the law, and when police officers exceed those boundaries they jeopardize the admissibility of any evidence collected for prosecution. By and large, the Fourth Amendment and the case law interpreting it establish these boundaries.

The safeguards enumerated by the Fourth Amendment only apply against state action, namely action taken by a governmental official or at the direction of a governmental official. Thus, actions taken by state or federal law enforcement officials or private persons working with law enforcement officials will be subject to the strictures of the Fourth Amendment. Bugging, wiretapping, and other related snooping activity performed by purely private citizens, such as private investigators, do not receive Fourth Amendment scrutiny.

Reasonable Expectation of Privacy

Individuals receive no Fourth Amendment protection unless they can demonstrate that they have a reasonable expectation of privacy in the place that was searched or the property that was seized. The U.S. Supreme Court explained that 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." Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1976). In general the Court has said that individuals enjoy a reasonable expectation of privacy in their own bodies, personal property, homes, and business offices. Individuals also enjoy a qualified expectation of privacy in their automobiles.

Individuals ordinarily possess no reasonable expectation of privacy in things like bank records, vehicle location and vehicle paint, garbage left at roadside for collection, handwriting, the smell of luggage, land visible from a public place, and other places and things visible in plain or open view. Houseguests typically do not possess a reasonable expectation of privacy in the homes they are visiting, especially when they do not stay overnight and their sole purpose for being inside the house is to participate in criminal activity such as a drug transaction. Minnesota v. Carter, 525 U.S. 83, 119 S. Ct. 469, 142 L. Ed. 2d 373 (1998). Similarly, a defendant showing only that he was a passenger in a searched car has not shown an expectation of privacy in the car or its contents. Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978). Both the houseguest and the motor vehicle passenger must assert a property or possessory interest in the home or motor vehicle before a court will recognize any Fourth Amendment privacy interests such that would prevent a police officer from searching those places without first obtaining a warrant.

Probable Cause and Reasonable Suspicion

Once it has been established that an individual possesses a reasonable expectation of privacy in a place to be searched or a thing to be seized, the Fourth Amendment's protections take hold, and the question then becomes what are the nature of those protections. Police officers need no justification to stop someone on a public street and ask questions, and individuals are completely entitled to refuse to answer any such questions and go about their business. However, a police officer may only search people and places when the officer has probable cause or reasonable suspicion to suspect criminal activity.

"Probable cause" means that the officer must possess sufficiently trustworthy facts to believe that a crime has been committed. In some cases, an officer may need only a reasonable suspicion of criminal activity to conduct a limited search. Reasonable suspicion means that the officer has sufficient knowledge to believe that criminal activity is at hand. This level of knowledge is less than that of probable cause, so reasonable suspicion is usually used to justify a brief frisk in a public area or a traffic stop at roadside. To possess either probable cause or reasonable suspicion, an officer must be able to cite specific articulable facts to warrant the intrusion. Items related to suspected criminal activity found in a search may be taken, or seized, by the officer.

Arrest and Miranda

Under the Fourth Amendment, a seizure refers to the collection of evidence by law enforcement officials and to the arrest of persons. An arrest occurs when a police officer takes a person against his or her will for questioning or criminal prosecution. The general rule is that to make an arrest, the police must obtain an arrest warrant. However, if an officer has probable cause to believe that a crime has been committed and there is no time to obtain a warrant, the officer may make a warrantless arrest. Also, an officer may make a warrantless arrest of persons who commit a crime in the officer's presence. An invalid arrest is not generally a defense to prosecution. However, if an arrest is unsupported by probable cause, evidence obtained pursuant to the invalid arrest may be excluded from trial.

When an arrest is made, the arresting officer must read the Miranda warnings to the arrestee. The Miranda warnings apprise an arrestee of the right to obtain counsel and the right to remain silent. If these warnings are not read to an arrestee as soon as he or she is taken into custody, any statements the arrestee makes after the arrest may be excluded from trial.

Legal commentators have criticized Miranda and its subsequent line of decisions, stating that criminal suspects seldom truly understand the meaning or importance of the rights recited to them. Studies have indicated that the Miranda decision has had little effect on the numbers of confessions and requests for lawyers made by suspects in custody. Moreover, critics of Miranda cite concerns that the police may fabricate waivers, since a suspect's waiver of Miranda rights need not be recorded or made to a neutral party. Defenders of Miranda argue that it protects criminal suspects and reduces needless litigation by providing the police with concrete guidelines for permissible interrogation.

In 1999 the U.S. Court of Appeals for the Fourth Circuit fueled long-standing speculation that Miranda would be overruled when it held that the admissibility of confessions in federal court is governed not by Miranda, but by a federal statute enacted two years after Miranda. The statute, 18 U.S.C.A. § 3501, provides that a confession is admissible if voluntarily given. Congress enacted the statute to overturn Miranda, the Fourth Circuit said, and Congress had the authority to do so pursuant to its authority to overrule judicially created rules of evidence that are not mandated by the Constitution. U.S. v. Dickerson, 166 F.3d 667 (4th Cir. 1999).

The U.S. Supreme Court reversed. In an opinion authored by Chief Justice william rehnquist, the Court said that, whether or not it agreed with Miranda, the principles of stare decisis weighed heavily against overruling it. While the Supreme Court has overruled its precedents when subsequent cases have undermined their doctrinal underpinnings, that has not happened to the Miranda decision, which the Court said "has become embedded in routine police practice to the point where the warnings have become part of our national culture." Although the Court acknowledged that a few guilty defendants may sometimes go free as the result of the application of the Miranda rule, "experience suggests that the totality-of-the-circumstances test [that] § 3501 seeks to revive is more difficult than Miranda for law enforcement officers to conform to and for courts to apply in a consistent manner." Dickerson v. United States, 530 U.S. 428, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000).

The Search Warrant Requirement

A search warrant is a judicially approved document that authorizes law enforcement officials to search a particular place. To obtain a search warrant, a police officer must provide an account of information supporting probable cause to believe that evidence of a crime will be found in a particular place or places. The officer must also make a list of the particular places to be searched and the items sought. Finally, the officer must swear to the truthfulness of the information. The officer presents the information in an affidavit to a magistrate or judge, who determines whether to approve the warrant.

An officer may search only the places where items identified in the search warrant may be found. For example, if the only item sought is a snowmobile, the officer may not rummage through desk drawers. Only the items listed in the warrant may be seized, unless other evidence of illegal activity is in plain view. Judges or magistrates may approve a variety of types of searches. The removal of blood from a person's body, a search of body cavities, and even surgery may be approved for the gathering of evidence. electronic surveillance and phone records may also be used to gather evidence upon the issuance of a warrant.

A warrant is not required for a search incident to a lawful arrest, the seizure of items in plain view, a border search, a search effected in open fields, a vehicle search (except for the trunk), an inventory search of an impounded vehicle, and any search necessitated by exigent circumstances. It is also not required for a stop and frisk, a limited search for weapons based on a reasonable suspicion that the subject has committed or is committing a crime. A police officer may also conduct a warrantless search if the subject consents.

Exceptions to Warrant Requirement

Administrative agencies may conduct warrantless searches of highly regulated industries, such as strip mining and food service. Federal and state statutes authorize warrantless, random drug testing of persons in sensitive positions, such as air traffic controllers, drug interdiction officers, railroad employees, and customs officials. In each of these types of searches, the Supreme Court has ruled that the need for public safety outweighs the countervailing privacy interests that would normally require a search warrant. However, a few lower federal courts have ruled that warrantless searches of public housing projects are unconstitutional, not withstanding the fact that residents of the public housings projects signed petitions supporting warrantless searches to rid their communities of drugs and weapons.

Nor may states pass a law requiring candidates for state political office to certify that they have taken a drug test and that the test result was negative without violating the Fourth Amendment's warrant requirement. In Chandler v. Miller, 520 U.S. 305, 117 S.Ct. 1295, 137 L.Ed.2d 513 (U.S. 1997), the state of Georgia failed to show a special need that was important enough to justify such drug testing and override the candidate's countervailing privacy interests, the Court said. Moreover, the Court found, the certification requirement was not well designed to identify candidates who violate anti-drug laws and was not a credible means to deter illicit drug users from seeking state office, since the Georgia law allowed the candidates to select the test date, and all but the prohibitively addicted could abstain from using drugs for a pretest period sufficient to avoid detection.

The Supreme Court has given law enforcement mixed signals over the constitutionality of warrantless motor vehicle checkpoints. The Court approved warrantless, suspicionless searches at roadside sobriety checkpoints. These searches must be carried out in some neutral, articulable way, such as by stopping every fifth car. However, a highway checkpoint program whose primary purpose is the discovery and interdiction of illegal narcotics violates the Fourth Amendment. In distinguishing between sobriety and drug interdiction checkpoints, the Court said that the sobriety checkpoints under review were designed to ensure roadway safety, while the primary purpose of the narcotics checkpoint under review had been to uncover evidence of ordinary criminal wrongdoing, and, as such, the program contravened the Fourth Amendment. City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333 (U.S. 2000).

Warrant exceptions have been carved out by courts because requiring a warrant in certain situations would unnecessarily hamper law enforcement. For example, it makes little sense to require an officer to obtain a search warrant to seize contraband that is in plain view. Under the Fourth Amendment's reasonableness requirement, the appropriateness of every warrantless search is decided on a case-by-case basis, weighing the defendant's privacy interests against the reasonable needs of law enforcement under the circumstances.

The Exclusionary Rule and the Fruit of the Poisonous Tree Doctrine

A criminal defendant's claim of unreasonable search and seizure is usually heard in a suppression hearing before the presiding trial judge. This hearing is conducted before trial to determine what evidence will be suppressed, or excluded, from trial. When a judge deems a search unreasonable, he or she frequently applies the exclusionary rule.

For the entire nineteenth century, a Fourth Amendment violation had little consequence. Evidence seized by law enforcement from a warrantless or otherwise unreasonable search was admissible at trial if the judge found it reliable. This made the Fourth Amendment essentially meaningless to criminal defendants. But in 1914, the U.S. Supreme Court devised a way to enforce the Fourth Amendment. In Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652 (1914), a federal agent conducted a warrantless search for evidence of gambling at the home of Fremont Weeks. The evidence seized in the search was used at trial, and Weeks was convicted. On appeal, the Supreme Court held that the Fourth Amendment barred the use of evidence secured through a warrantless search and seizure. Weeks's conviction was reversed and thus was born the exclusionary rule.

The exclusionary rule is a judicially created remedy used to deter police misconduct in obtaining evidence. Under the exclusionary rule, a judge may exclude incriminating evidence from a criminal trial if there was police misconduct in obtaining the evidence. Without the evidence, the prosecutor may lose the case or drop the charges for lack of proof. This rule provides some substantive protection against illegal search and seizure.

The exclusionary rule was constitutionally required only in federal court until mapp v. ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). In Mapp, the Court held that the exclusionary rule applied to state criminal proceedings through the due process clause of the fourteenth amendment. Before the Mapp ruling, not all states excluded evidence obtained in violation of the Fourth Amendment. After Mapp, a defendant's claim of unreasonable search and seizure became commonplace in criminal prosecutions.

The application of the exclusionary rule has been significantly limited by a good faith exception created by the Supreme Court in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). Under the good faith exception, evidence obtained in violation of a person's Fourth Amendment rights will not be excluded from trial if the law enforcement officer, though mistaken, acts reasonably. For example, if an officer reasonably conducts a search relying on information that is later proved to be false, any evidence seized in the search will not be excluded if the officer acted in good faith, with a reasonable reliance on the information. The Supreme Court has carved out this exception to the exclusionary rule because, according to a majority of the court, the rule was designed to deter police misconduct, and excluding evidence when the police did not misbehave would not deter police misconduct.

A companion to the exclusionary rule is the fruit of the poisonous tree doctrine, established by the Supreme Court in Nardone v. United States, 308 U.S. 338, 60 S. Ct. 266, 84 L. Ed. 307 (1939). Under this doctrine, a court may exclude from trial any evidence derived from the results of an illegal search. For example, assume that an illegal search has garnered evidence of illegal explosives. This evidence is then used to obtain a warrant to search the suspect's home. The exclusionary rule excludes the evidence initially used to obtain the search warrant, and the fruit of the poisonous tree doctrine excludes any evidence obtained in a search of the home.

The Knock and Announce Requirement

The Fourth Amendment incorporates the common law requirement that police officers entering a dwelling must knock on the door and announce their identity and purpose before attempting forcible entry. At the same time, the Supreme Court has recognized that the "flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests." Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995). Instead, the Court left to the lower courts the task of determining the circumstances under which an unannounced entry is reasonable under the Fourth Amendment.

The Wisconsin Supreme Court concluded that police officers are never required to knock and announce their presence when executing a search warrant in a felony drug investigation. But the U.S. Supreme Court overturned the state high court's decision in Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (U.S. 1997). In Richards the Court said Fourth Amendment does not permit a blanket exception to the knock-and-announce requirement for the execution of a search warrant in a felony drug investigation. The fact that felony drug investigations may frequently present circumstances warranting a no-knock entry, the Court said, cannot remove from the neutral scrutiny of a reviewing court the reasonableness of the police decision not to knock and announce in a particular case. Rather, it is the duty of a court to determine whether the facts and circumstances of the particular entry justified dispensing with the knock-and-announce requirement. To justify a no-knock entry, the Court stressed that police must 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 by, for example, allowing the destruction of evidence.

The Fourth Amendment does not hold police officers to a higher standard when a no-knock entry results in the destruction of property. U.S. v. Ramirez, 523 U.S. 65, 118 S.Ct. 992, 140 L.Ed.2d 191 (U.S. 1998). The "reasonable suspicion" standard is still applicable. No Fourth Amendment violation occurred when, the Supreme Court found, during the execution of a "no-knock" warrant to enter and search a home, police officers broke a single window in a garage and pointed a gun through the opening. A reliable confidential informant had notified the police that an escaped prisoner might be inside the home, and an officer had confirmed that possibility, the Court said. The escapee had a violent past and reportedly had access to a large supply of weapons, and the police broke the window to discourage any occupant of the house from rushing to weapons. However, excessive or unnecessary destruction of property in the course of a search may violate the Fourth Amendment, the court emphasized, even though the entry itself is lawful and the fruits of the search are not subject to suppression.

Search and Seizure at Public Schools

A public school student's protection against unreasonable search and seizure is less stringent in school than in the world at large. In New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (U.S. 1985), the U.S. Supreme Court held that a school principal could search a student's purse without probable cause or a warrant. Considering the "legitimate need to maintain an environment in which learning can take place," the Court set a lower level of reasonableness for searches by school personnel.

Under ordinary circumstances, the Court said, a search of a student by a teacher or other school official will be "justified at its inception" when there are 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. Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. The "ordinary circumstances" justifying a warrantless search and seizure of a public school student, the Court continued, are limited to searches and seizures that take place on-campus or off-campus at school-sponsored events. Warrantless searches of public school students who are found off campus and not attending a school-sponsored event would still contravene the Fourth Amendment.

further readings

Beckham, Joseph. 1997. Student Searches in Public Schools. Arlington, Va.: Educational Research Service.

Bloom, Robert M. 2003. Searches, Seizures, and Warrants: A Reference Guide to the United States Constitution. Westport, Conn.: Praeger.

Bradley, Craig M. 2002. "Court Gives School Drug-Testing an A." Trial Magazine (December 1).

Greenhalgh, William W. 2003. The Fourth Amendment Handbook: A Chronological Survey of Supreme Court Decisions. 2d ed. Chicago, Ill.: Criminal Justice Section, American Bar Association.

Hemphill, Geoffrey G. 1995. "The Administrative Search Doctrine: Isn't This Exactly What the Framers Were Trying to Avoid?" Regent University Law Review 5.

cross-references

Alcohol; Automobiles; Criminal Law; Criminal Procedure; Drugs and Narcotics; Due Process of Law; Mapp v. Ohio; Miranda v. Arizona; Olmstead v. United States; Plain View Doctrine; Search Warrant; Terry v. Ohio; Wiretapping.

Search and Seizure

In international law, the right of ships of war, as regulated by treaties, to examine a merchant vessel during war in order to determine whether the ship or its cargo is liable to seizure.

A hunt by law enforcement officials for property or communications believed to be evidence of crime, and the act of taking possession of this property.

Court Upholds Raid of Congressional Office of U.S. Representative William Jefferson

In July 2006, the United States District Court for the District of Columbia issued a 28-page opinion upholding the FBI raid of the congressional office of U.S. Representative William Jefferson, in conjunction with an ongoing criminal investigation. In re: Search of the Rayburn House Office Building, Room Number 2113, Washington, D.C. 20515, Case. No. 06-1231 M-01 (July 10, 2006). The execution of a search warrant upon the office of a sitting Congressman is apparently the first in the 200-year history of the Constitution.

The seizure of materials followed the government's application for a search warrant, supported by an 83-page affidavit outlining the evidence against Jefferson thus obtained over the course of the investigation. The application also set forth "special search procedures" to minimize the chance that any politically-sensitive materials or documents that "may fall within the purview of the Speech or Debate Clause … or any other pertinent privilege" would be affected. Affidavit, para. 136.

Shortly after the raid, President George W. Bush ordered all seized materials sealed, hoping that the Department of Justice (DOJ) and House negotiators could resolve their disagreement over the constitutional legality of the seizure. Several House leaders from both political parties had objected to the seizure as unnecessary to advance the federal corruption investigation of the eight-term New Orleans Democrat. They also objected that it violated the separation of powers between executive and legislative branches, and violated the Speech or Debate Clause (Article I, §6) of the U.S. Constitution. Even though the 45-day seal expired the day before the court's decision, the seal was extended. Upon the release of the court's decision, prosecutors were free to immediately review all material seized during May-20-21, 2006, including all documents and computer hard drives seized from the congressman and his staff.

The major allegation against Jefferson was that he accepted payments in return for using his position in Congress to help secure equipment and service contracts in several African countries for a small Kentucky telecommunications company, iGate Inc. The CEO of iGate, Vernon Jackson pleaded guilty to bribery and conspiring to bribe Jefferson. (One of Jefferson's former congressional staffers also pleaded guilty to the same charges and was sentenced to eight years of imprisonment.) Jackson told officials that he paid more than $400,000 to a company controlled by Jefferson's family. An iGate investor, who cooperated with the FBI and wore a wire during meetings and telephone conversations with Jefferson, was videotaped handing a brief-case containing $100,000 to Jefferson, reportedly to be used as a bribe for the vice president of Nigeria. All but $10,000 of that money was later found in the freezer of Jefferson's Washington home. Jefferson has publicly stated that he has an honorable explanation for the allegations against him.

Pending before the district court was Jefferson's Motion for Return of Property. (His Motion for Interim Relief was rendered moot by President Bush's order for the custody and seal of all seized materials).

The district court rejected each of Jefferson's arguments. The court noted that the Speech or Debate Clause offered broad protections in support of the independence of the legislature, including absolute immunity from prosecution or suit for legislative acts and freedom from being "questioned" about those acts. But, "The Court declines to extend those protections further, holding that the Speech or Debate Clause does not shield Members of Congress from the execution of valid search warrants." The court then quoted from United States v. Brewster, 408 U.S. 501 at 516, that the Speech or Debate Clause did not "make Members of Congress super-citizens, immune from criminal responsibility." Said the court,

"Congressman Jefferson's interpretation of the Speech or Debate privilege would have the effect of converting every congressional office into a taxpayer-subsidized sanctuary for crime. Such a result is not supported by the Constitution or judicial precedent and will not be adopted here."

The court noted that no one argued that the warrant was not properly administered, so there was no impermissible intrusion on the legislature. According to the opinion, the fact that some privileged material may have been incidentally captured did not render the search unconstitutional as an unlawful intrusion.

As to separation of powers, the court noted that the power to determine the scope of one's own privilege is not available to any person, including congressmen, judges, or the President of the United States. The court rejected Jefferson's arguments that the search was unnecessary because DOJ had not exhausted less intrusive measures, and that the FBI had taken privileged material. The court stated:

"While the search here entailed an invasion somewhat greater than usual because it took place in a congressional office certain to contained privileged legislative material, the Government has demonstrated a compelling need to conduct the search in relation to a criminal investigation involving very serious crimes, and has been unable to obtain the evidence sought through any other reasonable means. Therefore, the search conducted of Congressman Jefferson's congressional office was reasonable under the Fourth Amendment."

Samson v. California

The Supreme Court has permitted police officers in certain circumstances to search a criminal suspect without a search warrant. However, officers must either have probable cause or a reasonable suspicion to justify the waiver of the terms contained in the Fourth Amendment. In a prior case, United States v. Knights, 534 U.S.112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2002), the Court ruled that police may search a person on probation who has signed an agreement that permits such searches if the police have reasonable suspicion of a crime. Questions lingered after this ruling as to whether police could search a person on probation or a parolee who had signed agreement permitting searches without reasonable suspicion. The Court answered these questions in Samson v. California, ___U.S.___, 126 S.Ct., ___L.Ed.2d ___ 2006 WL 1666974 (2006), holding that parolees may be searched without reasonable suspicion because the interests of society outweigh their privacy interests.

The state of California paroled Donald C. Samson in September 2002 after serving time for possession of a firearm. A few days later a San Bruno police officer saw Samson walking down the street with a woman and a child. The officer knew Samson was on parole and believed that there was a warrant out on him. The officer stopped Samson, questioned him about his parole status, and then confirmed via his radio that Samson was telling the truth. Nevertheless, the officer search Samson based on his parolee status. He found a plastic bag that contained methamphetamine in a cigarette box that was in Samson's shirt pocket. Samson was charged and convicted of drug possession and sentenced to seven years in prison. Samson appealed his conviction to the California Court of Appeals, arguing that the seized drugs should be suppressed because the search had been illegal. The appeals court upheld the search and the conviction, ruling that suspicionless searches of parolees were lawful under California law. The search in Samson's case was not arbitrary, capricious, or harassing. Samson then took his case to the U.S. Supreme Court.

The Court, in a 6-3 decision, upheld the California Court of Appeals ruling. Justice Clarence Thomas, writing for the majority, reviewed the United States v. Knights decision, in which Knights had signed a probation agreement that permitted searches of his person and property without the need for reasonable cause. However, the police searched Knights' apartment based on the reasonable suspicion that he had committed arson and vandalism. Justice Thomas noted that in Knights the Court had found that Knights' probationary status lessened his expectation of privacy. By agreeing to probation, Knights had surrendered part of his liberty. In the Court's view the probation agreement's search provision enhanced the goal of rehabilitation and the protection of society. Moreover, the government had a legitimate concern that Knights might break the law again, as statistics revealed that probationers have a "significantly higher" recidivism rate than the general crime rate. Because probationers have "even more of an incentive to conceal their criminal activities" because they face prison if their probation is revoked, the police must be able to act quickly if they have reasonable suspicion. Justice Thomas concluded that these interests had even great weight when applied to a person paroled from prison. Recent California statistics indicated that 70 per cent of paroled inmates reoffended within 18 months of release. However, the Knights opinion state that "nothing in the condition of probation suggests that it was confined to searches bearing upon probationary status and nothing more." Therefore, in the current case the majority needed to find a different legal footing to justify its conclusions.

Justice Thomas found that footing in prior cases that held that prison inmates have no expectations of privacy. Parolees had fewer expectations of privacy than probationers because "parole is more akin to imprisonment than probation is to imprisonment." The "essence" of parole was the release from prison, before the completion of sentence, on the condition that the parolee follows the rules laid down in the parole agreement. In California a parolee could be required to report to a parole officer within 72 hours of any change in employment status, request permission to travel more than 50 miles from home, and refrain from possessing firearms or consuming drugs and alcohol. These and other conditions, including the right of police to search the parolee without reasonable cause, proved that parolees had "severely diminished expectations of privacy by virtue of their status alone." Therefore, the Court concluded that Samson did not have a legitimate expectation of privacy that would requires reasonable suspicion for a search.

Justice John Paul Stevens, in a dissent joined by Justices David Souter and Stephen Breyer, agreed that the privacy interests and expectations of probationers and parolees are not as "robust" as ordinary citizens. However, Stevens contended that the Court's approval of suspicionless searches of parolees was "an unprecedented curtailment of liberty." He pointed out that suspicionless searches were the "very evil the Fourth Amendment was intended to stamp out." In prior decisions the court had identified "special needs" that justified suspicionless searches but Knights did not support "a blanket grant of discretion untethered by any procedural safeguards." A parolee's status was not the equivalent of a prisoner but rather was much like that of a probationer. Therefore, the same standard of reasonable suspicion announced in Knights should have been applied to parolees.