4th amendment unreasonable searches and seizures

8/7/2019 4th Amendment Unreasonable Searches and Seizures

1/42

4th Amendment Unreasonable searches and seizuresy Many of the individual rights guaranteed by the Bill of Rights are applicable to the states only via

the Fourteenth Amendments Due Process Clause, which requires fundamental fairness in state

criminal proceedings.

y The Fourth Amendment 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.

What is a search?Katz v. US:There is a twofold requirement, first that a person have exhibited an actual (subjective)

expectation ofprivacy and, second, that the expectation be one that society is prepared to recognize

as reasonable. Thus a mans home is, for the most purposes, a place where he expects privacy, but

objects, activities, or statements that he exposes to the plain view of outsiders are not protected

because no intention to keep them to himself has been exhibited. On the other hand, conversations in the

open would not be protected against being overheard, for the expectation of privacy under the

circumstances would be unreasonable.

Holding: (1) one who occupies it, shuts the door behind him, and pays the toll that permits him to place a

call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the

world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has

come to play in private communication.The Govts activities in electronically listening to and

recording the petitioners words violated the privacy upon which he justifiably relied while using the

telephone booth and thus constituted a search and seizure within the meaning of the fourth amendment.

(2) since there was a reasonable expectation of privacy, there must be a warrant. Here there was no

warrant and as such the search and seizure was UNREASONABLE.

Open FieldsOliver v. US: The police received a tip that the def was growing marijuana. The def had a no trespassing

sign and had locked the gate at the entrance to the center of the farm. About a mile from his house, the

police was around the gate and found a field of marijuana growing. When the police walked passed

olivers camper, someone standing in front of the camper shouted, No hunting is allowed, come back up

here. The officers shouted back that they were Police officers.

Rule:

y The govts intrusion upon the open fields is not one of those unreasonable searches proscribedby the text of the 4th Amendment

y The amendment does not protect the merely subjective expectation of privacy, but only thoseexpectation[s] that society is prepared to recognize as reasonable

Holding: Open fields do not provide the setting for those intimate activities that the Amendment is

intended to shelter from govt interference or surveillance. There is no societal interest in protecting the

privacy of those activities, such as the cultivation of crops, that occur in open fields.Bright-line test: if it

is an open field then no 4th amendment protection and no warrant required. Open fields is not

cartilage.


2/42

Distinction Between Open Field and CurtilageUS v. Dunn: Officers suspected Dunn of making amphetamine with intent to distribute. As such, they

put tracking devices in the products used to make amphetamine. The officers tracked Dunn to his house.

They had to cross five fences to get to his home. The officers found a barn near the house. The barn and

house were separated by some sort of fence. They looked into the barns with flashlights and saw thatDunn was making drugs. The officers left the residence and obtained a warrant.

Rule:

The cartilage concept originated at common law to extend to the area immediately surrounding adwelling house the same protection under the law of burglary as was afforded the house itself.

We identified the central component as whether the area harbors the intimate activity associated

with the sanctity of a mans home and the privacies of life.

Four part test: (1) the proximity ofthe area claimed to be cartilage to the home; (2) whetherthe area is included within an enclosure surrounding the home; (3) the nature ofthe uses to

which the area is put; and (4) the steps taken by the resident to protect the area from

observation by people passing by.Holding: First, the record discloses that the barn was located 50 yards from the fence surrounding the

house and 60 yards from the house itself. This substantial distance supports no inference that the barn

should be treated as an adjunct of the house. Second, the barn did not lie within the area surrounding the

house that was enclosed by a fence. Thus, was quite separate from the residence. Third, it is especially

significant that the law enforcement officials possessed objective data indicating that the barn was not

being used for intimate activities of the home. The facts indicated to the officers that the use to which the

barn was being put could not fairly be characterized as so associated with the activities and privacies of

domestic life that the officers should have deemed the barn as part of respondents home. Fourth,

respondent did little to protect the barn area from observation by those standing in the open fields.

Aerial Searches

The Court has found it is not a search within the meaning ofthe Fourth Amendment whenthe police observe behavior in a persons home and cartilage by using low flying airplanes.

California v. Ciraolo:The police received an anonymous tip that the def was growing marijuana. The

police were unable to see the marijuana from the street b/c the fence was too tall. As such, the police

officer used a helicopter to see the drug from an aerial view.

Katz posits a two part inquiry: first, has the individual manifested a subjective expectation ofprivacy in the object of the challenged search? Second, is society willing to recognize that

expectation as reasonable?

At common law, the cartilage is the areas to which extends the intimate activity associated withthe sanctity of a mans home and the privacies of life

Holding (the Court applied the Katzs test): the claimed area here was immediately adjacent to a suburban

home, surrounded by high double fences. The close nexus to the home would appear to encompass this

small area within the cartilage. Accepting, as the State does, that this yard and its crop fall within the

cartilage, the question remains whether naked-eye observation of the cartilage by police from an aircraft

lawfully operating at an altitude of 1,000 ft violates an expectation of privacy that is reasonableThe


3/42

observation in this case took place within public navigable airspace, in a physically non-intrusive manner.

That the observation from aircraft was directed at identifying the plants and the officers were trained to

recognize marijuana is irrelevant. Such observation is precisely what a judicial officer needs to provide a

basis for a warrant. Any member of the public flying in this airspace who glanced down could have seen

everything that these officers observed. On this record, we readily conclude that respondents expectation

that his garden was protected from such observation is unreasonable and is not an expectation that societyis prepared to honor. In Ciraolo, the Court stressed that the plane was flying lawfully at a level of

1,000 ft. In Florida v. Riley, the search was an aerial surveillance from a helicopter at 400 ft. There

was no majority opinion.

Florida v. Riley: The defs mobile home was 10-20 feet in front of the greenhouse. The greenhouse was

covered by corrugated roofing panels, some translucent and some opaque. At the time relevant to this

case, two of the panels, amounting to approximately 10% of the roof area, were missing. The

investigating officer discovered that he could not see the contents of the greenhouse from the road;

however, on the helicopter he could see it with his naked eye.

Holding: Here, the inspection was made from a helicopter, but as in the case with fixed wing planes,

private and commercial flight [by helicopter] in the public airways is routine in this country and there is

no indication that such flights are unheard of in Pasco County. Riley could not reasonably have expected

that his greenhouse was protected from public or official observation from a helicopter had it been flying

within the navigable airspace for fixed wing aircraft. Nor on the facts before us, does it make a difference

for fourth amendment purposes that the helicopter was flying at 400 ft when the officer saw what was

growing in the greenhouse through the partially open roof and sides of the structure.

Ifwe get an exam question on open field doctrine: First, we need to examine whether the area is

within the cartilage. Ifnot, then no expectation ofprivacy. Ifso, then we see ifthe search was

reasonable b/c the person has an expectation ofprivacy (use Katz test).

Thermal Imaging ofHomes

The use of thermal imaging of homes IS a search for purposes of the 4th Amendment.Kyllo v. US: If a person grows weed in his home, then they usually use a thermal heating lamp to help

them grow the plant. The officer used a thermal imaging camera to determine if the defendant was

growing marijuana. Based on the thermal imaging pictures, the officer got a warrant and searched his

home and found his weed garden.

Holding: We think that obtaining by sense-enhancing technology any information regarding the

interior ofthe home that could not otherwise have been obtained without physical intrusion into a

constitutionally protected area, constitutes a searchat least where (as here) the technology in

question is not in general public use.T

his assures preservation of that degree of privacy againstgovernment that existed when the Fourth Amendment was adopted. If we find no search violation, then

that would leave the homeowner at the mercy of advancing technologyincluding imaging technology

that could discern all human activity in the home.

Searches ofTrash

In California v. Greenwood, the Court considered this and found no reasonable expectationofprivacy in what a person chooses to discard.


4/42

California v. Greenwood:The police received a tip that drugs trafficking was occurring within a

neighbor. She investigated the tip. She ask the neighborhoods regular trash collector for the defendants

trash bags before mixing it with other peoples garbage, which the trash collector complied. The officer

found items indicating narcotic uses.

Holding: We conclude that respondents exposed their garbage to the public sufficiently to defeat their

claim to Fourth Amendment protection. It is common knowledge that plastic garbage bags left on or atthe side of a public street are readily accessible to animals, children, scavengers, snoops, and other

members of the public. Moreover, respondents placed their refuse at the curb for the express purpose of

conveying it to a third party, the trash collector, who might himself have sorted through respondents

trash or permitted others such as the police to do so. Accordingly, having deposited their garbage in

an area particularly suited for public inspection and in a manner ofspeaking, public consumption,

for the express purpose ofhaving strangers take it, respondents could have had no reasonable

expectation ofprivacy in the exculpatory items that they discarded.

Observation and Monitoring ofPublic Behavior

Police Putting a Radio-

Transmitter in a Container that was then in his car

United States v. Knotts: The police put a beeper in a container and the police tracked him down

with the beeper and using surveillance. During the latter part of this journey, Petschen began

making evasive maneuvers, and the pursuing agents ended their visual surveillance. At about the

same time officers lost the signal from the beeper, but with the assistance of a monitoring device

located in a helicopter the approximate location of the signal was picked up again about one hour

later.

Rules:

y One has a lesser expectation of privacy in a motor vehicle b/c its function istransportation and it seldom serves as ones residence or as the repository of personal

effects. A car seldom serves as ones residence or as the repository of personal effects.A car has little capacity for escaping public scrutiny. It travels public thoroughfares

where both its occupants and its contents are in plain view.

Holding: Respondent, Knotts, as the ownr of the cabin and surrounding premises to which

Petschen drove, undoubtedly had the tranditional expectation of privacy within a dwelling place

insofar as the cabin was concerned. But, no such expectation ofprivacy extended to the

visual observation ofPetschens automobile arriving on his premises after leaving a public

highway, nor to movements ofobjects such as the drum ofchloroform outside the cabin in

the open fields. Visual surveillance from public places along Petschens route or

adjoining Knotts premises would have sufficed to reveal all of these facts to the police.

The fact that the officers in this case relied no only on visual surveillance, but on the use of

the beeper to signal the presence ofPetschens automobile to the police receiver, does not

alter the situation.Nothing in the 4th Amendment prohibited the police from augmenting the

sensory faculties bestowed upon them at birth with such enhancement as science and technology

afforded them in this case.


5/42

U.S. v. Karo: Drug Enforcement Administration agents installed an electronic beeper in a can of ether

with the consent of the owner, a government informant. The marked can was sold along with a shipment

of 50 gallons of ether to the respondents, who intended to use the ether for the extraction and production

of cocaine. Having tracked the can of ether as it was moved between various residences and commercial

storage lockers, the federal investigators determined the location of the can and obtained an arrest

warrant. Respondent Karo and his accomplices were arrested for possession of cocaine with intent todistribute.

Holding: This case is not like Knotts, for there the beeper told the authorities nothing about the interior of

knotts cabin. The information obtained in Knotts was voluntarily conveyed to anyone who wanted

to look; here, as we have said, the monitoring indicated that the beeper was inside the house, a fact

that could not have been visually verified. THIS WAS INSIDE A HOUSE. We discern no reason for

deviating from the general rule that a search of a house should be conducted pursuant to a warrant.

SUMMARY: Electronic monitoring using tracking devices, such as beepers, does not violate a

defendants 4th Amendment right ifthe search could have been visually verified. In Knotts, the

search was visually verified b/c the police could see where the defendant was driving. In Karo, the

search was unreasonable b/c the police could not visually verify that the beeper was inside the

house.

Taping a conversationIn US v. White, the Court considered whether there was a search when a government informer carrying a

radio transmitter engaged in a conversation with a suspect. The Court held that the listening to this

conversation by another agent, in possession ofa radio receiver, was not a search. The Court argued

that it was similar to listening to a confession at the police station that doesnt require a search warrant.

Bank RecordsThe Court has similarly found that inspection of bank records are not searches under the Fourth

Amendment because banks are parties to any transactions and thus have knowledge of them. California

Bankers Assn. v. Schultz. The case involved a federal law, the Bank Secrecy Act of 1970, which

required that banks file reports with the federal government of certain types of transactions. A Fourth

Amendment challenge was rejected by the Court on the grounds that people have no reasonable

expectation ofprivacy as to this information because it is known by others, the banks that process

the transactions. In other words, because some others in the government will see the bank records, the

Court concluded that there is no privacy expectation in them.

Pen RegistersThe Court has gone even further and found that people have no reasonable expectation of privacy in the

phone numbers they dial or receive calls from.

Smith v. Maryland:The police put a pen register to find out who the defendant has been calling b/c he

was suspected of harassing Patricia McDonough. A pen register is usually installed at a central telephone

facility and records on a paper tape all numbers dialed from the line to which it is attached.


6/42

Holding: All telephone users realize that they must convey phone numbers to the telephone company,

since it is through telephone company switching equipment that their calls are completed. The Court

consistently has held that a person has no legitimate expectation ofprivacy in information he

voluntarily turns over to third parties. There is no legitimate expectation ofprivacy b/c petitioner

voluntarily conveyed numerical information to the telephone company and exposed that

information to its equipment in the ordinary course ofbusiness. In so doing, petitioner assumed therisk that the company would reveal to police the numbers he dialed.

Drug-Sniffing Dogs

There is no overall answer to whether it is a search if the police use drug-sniffing dogs. But theSupreme Court has found the use of such does is not a search in a couple of contexts.

In United States v. Place, the Court held that a canine sniffofclosed luggage is not a searchb/ca canine sniffby a well-trained narcotics detection dog does not require opening the

luggage.

Drug Sniffing Dogs at Traffic Stop

Illinois v. Caballes: One police officer stopped the defendant for speeding. Another officer, along with

his drug dog, came to help the police officer. The dog smelled marijuana in the car. The entire incident

lasted less than 10 minutes.

Rule: In U.S. v. Place, a canine sniff by a well-trained narcotics-detection dog as sui generis b/c it

discloses only the presence or absence of narcotics, a contraband item. Drug sniffs are designed, and if

properly conducted are generally likely, to reveal only the presence of contraband.

Holding: The use ofa well-trained narcotics-detection dogone that does not expose non-

contraband items that otherwise would remain hidden from public view,during a lawful traffic

stop, generally does not implicate legitimate privacy interests.In this case, the dog sniff was performed

on the exterior of respondents car while he was lawfully seized for a traffic violation.

The Requirement For Probable Causey A core requirement of the Fourth Amendment is the requirement for probable cause. Generally, a

judge may issue a search or arrest warrant only if there is probable cause. If it is a circumstances

where a warrant is not required, a police officer generally can search or arrest only if there is

probable cause. There are exceptions: for example, in schools, searches of students purse

requires only the lesser standard of reasonable suspicion.

y There is no clear definition of probable cause but the Court said that the question is whetherthe facts and circumstances before the officer are such to warrant a man of prudence and

caution in believing that the offense had been committed.

I. What Is Sufficient Beliefto Meet the Standard for Probable Cause?

The Supreme Court has said that in dealing with probable causewe deal with probabilities.But the Court did not attempt to define what probabilities are sufficient. The Court simply said

that more than bare suspicion but less than evidence which would justify convictions.

The IL v. Gates and Carroll v. US definitions are the best ones to know: under the totalityofthe circumstances [TOC], were there enough facts and circumstances known to the


7/42

officer to warrant a man ofprudence and caution in believing that an offense had been

committed or contraband was in the place to be searched?

Informants

Illinois v. Gates: An anonymous letter was sent to the police describing future events in which details

how the Gates obtained drugs by flying to Florida and then driving home to Illinois. The police officertried to collaborate as many details as he could.

Holding: overruling the two pronged test established in Spinelli and reaffirmed the totality ofthe

circumstances analysis that traditionally has informed probable cause determinations. Look at all:

veracity, reliability and basis ofknowledge ofthe informant.

Because an informant is right about some things, he is more probably rights about other facts,

including the claim regarding the Gateses illegal activity. This may well not be the type of

reliability or veracity necessary to satisfy some views ofthe veracity prong ofSpinelli, but

we think it suffices for the practical, common sense judgment called for in making a probable cause

determination.

Gates remains one of the Supreme Courts most important decisions concerning the standard forprobable cause. Yet, there is an inherent uncertainty as to what is enough. Probable cause is

more than the lesser standard of reasonable suspicion and it is thought to be less than

preponderance of the evidence.

A recent case that raised this question was Maryland v. Pringle. If a police officer knows that someone

within the car is responsible for contraband, is there probable cause to arrest all of those within the

car?

Maryland v. Pringle: It was a routine traffic stop. The officer saw that there was a large roll of money in

the glove compartment. The officer asked if they could search the car. The three men in the car allowed

the police officer to search the car. The officer found cocaine between the backseat and the arm rest.Pringle did not own the car and was not in the back seat.

Rule:

To determine whether an officer had probable cause to arrest an individual, we examine theevents leading up to the arrest, and then decide whether these historical facts, viewed from

the standpoint ofan objectively reasonable police officer, amount to probable cause

Holding: In this case, Pringle was one of three men riding in the car. There was $763 of rolled up cash in

the glove compartment directly in front of Pringle. Five plastic glassine baggies of cocaine were behind

the back seat armrest and accessible to all three men. Upon questioning, the 3 men failed to offer any

information with respect to the ownership of the cocaine or the money. We think it an entirely

reasonable inference from these facts that any or all three of the occupants had knowledge of, and

exercised dominion and control over the cocaine. Thus, a reasonable officer could conclude that there

was probable cause to believe Pringle committed the crime of possession of cocaine, either solely or

jointly.

II. Is Probable Cause an Objective or a Subjective Standard?

In the last decade, the Court has expressly held that the test for probable cause is an objective one.


8/42

Whren v. US: A suspicious truck was stopped for a traffic violation. The undercover police officer found

crack cocaine in the passengers hand.

Rule:

Temporary detention of individuals during the stop ofan automobile by the police, even ifonly for a briefperiod and for a limited purpose, constitutes a seizure ofpersons

within the meaning ofthis provision. An automobile stop is thus subject to theconstitutional imperative that it not be unreasonable under the circumstances. As a

general rule, the decision to stop an automobile is reasonable where the police have

probable cause to believe that a traffic violation has occurred.

Holding: there was probable cause here b/c of the defendants suspicious actions, illegal u-turn, and

speeding away from the police car. Probable cause is objective and focuses on whether the

reasonable officer could have found probable cause under the circumstances; the subjective intent

ofthe officer does not matter. Look at what a reasonable police officer could have done.

The Warrant Requirement

The Fourth Amendment states that no Warrants shall issue, but upon probable cause, supportedby oath or affirmation, and particularly describing the place to be searched, and the persons or

things to be seized.

Thomas: court has waivered between a warrant requirement and a general reasonableness test,they have found a plethora of exceptions , warrantless searches are per se unreasonable, except of

course when they are not.

If you say that you have an incidence in which you say that the search is presumptivelyreasonable the burden of proof is on the defendant, if presumptively unreasonable the burden of

proof is on the proseution

I. What Information Must Be Included in the Application for a Warrant?

Warrants are used both for searches and for arrests The Fourth Amendment requires that the warrant be based on probable cause and supported by

oath or affirmation, and particularly describing the place to be searched, and the persons or things

to be seized. The affidavit supporting the request for a warrant must include the information that

provides a basis for concluding that there is probable cause. The affidavit may be based on

hearsay.

The warrant will specify the time period for its execution. The Supreme Court has held that the warrant must be issued by a neutral and detached

magistrate.

II. What Form Must the Warrant Take?The warrant must detail with specificity that which is to be searched or seized.

Andresen v. Maryland: The defendant was suspected of committing false pretenses when selling Lot

13T. The investigators concluded there was sufficient probable cause and executed a warrant to search

petitioners law office and the separate office. A judge signed off on the warrant. Defendant was charged

and a jury found him guilty. The petitioner says his 4th Amendment rights were violated b/c the

descriptive terms of the search warrants were so broad as to make them impermissible general warrants.

The warrant described the documents seized as together with other fruits, instrumentalities and evidence


9/42

of crime at this time unknown. Petitioner contends that it permits the search for and seizure of any

evidence of any crime.

Rule

General warrants of course, are prohibited by the Fourth Amendment. The problem is not thatof intrusion Per se, but of a general, exploratory rummaging in a persons belongings.

Holding: The challenged phrase must be read as authorizing only the search for and seizure of evidencerelating to the crime of false pretenses with respect to Lot 13T. the challenged phrase is not a separate

sentence. Instead, it appears in each warrant at the end of a sentence containing a lengthy list of specified

and particular items ot be seized, all pertaining to Lot 13T.

The Supreme Court recently considered the requirement for particularity in the warrant in the

context ofa situation where the affidavit in support ofthe warrant contained the necessary

particularity, but the warrant itselfdid not list specifically what was to be searched for or seized.

The Court found that this warrant violated the Fourth Amendment.

Groh v. Ramirez: The defendant was suspected of possessing illegal weaponry. The police requested an

a search warrant. In their application for a search warrant, the police listed where they wanted to search

and what they wanted to seize. Although the application particularly described the place to be searched

and the contraband petitioner expected to find, the warrant itself was less specific; it failed to identify any

of the items that petitioner intended to seize.

Holding: The warrant was plainly invalid. The Fourth Amendment states unambiguously that no

Warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly

describing the pace to be searched, and the persons or things to be seized. The warrant in this case

complied with the first three requirements: it was based on probable cause and supported by a sworn

affidavit, and it described particularly the place of the search. On the fourth requirement, however, the

warrant failed altogether. The Fourth Amendment by its terms requires particularity in the warrant, not in

the supporting documents.

Anticipatory WarrantsAnticipatory warrant is where the affidavit for a search warrant states that the search will occur only if

certain events take place. In US v. Grubbs, federal law enforcement officers obtained a search warrant

for respondents house on the basis of an affidavit explaining that the warrant would be executed only

after a controlled delivery of contraband to that location. The court held that anticipatory warrants are

permissible.

III. What are the Requirements in Executing Warrants?

Rule 41 of the Federal Rules of Criminal Procedure provides that the warrant must command theofficer to execute the warrant during the daytime, unless the judge for good cause expressly

authorizes execution at another time. The Rule defines daytime to be the hours from 6 AM to 10

PM. However, there is a federal statute that provides that there does not have to be a special

showing of need for searches of narcotics.

A. How May Police Treat Those Who Are Present When a Warrant is Being Executed?

y The Supreme Court has held that a person who happens to be present in premises that aresubject to a search cannot be searched just by virtue ofbeing there. Ybarra v. Illinois. The


10/42

Court explained that a search must be supported by probable cause particularized with

respect to that person

y However, in Michigan v. Summers, the Supreme Court held that when there is a search ofaresidence, those present at the time ofthe search may be detained. The Court explained

that allowing such detentions serves may purposes: preventing flight by the individual in

case incriminating evidence is found; minimizing the risk ofharm to the police; and helpingthe police complete the search in the event that questions arise.

Muehler v. Mena: The police were looking for gang related items at Menas home. The police

handcuffed Mena and questioned her about her immigration status while the search is happening. The

police were looking for deadly weapons. 1983 claim, rights violated.

Holding: the Court reasoned that it was reasonable to detain people who are present at the scene.

Using handcuffs were reasonable because they were looking for weapons specifically and the

intrusion was only for 2-3 hours.

Wilson v. Arkansas

The door was unlocked, and police officers walk into a screen door and announce themselves as

having a warrant.

B. Do Police Have to Knock and Announce Before Searching a Dwelling?

y The Supreme Court has held that absent exigent circumstances, the police must knock andannounce their presence before entering a residence to execute a search warrant.

y The exclusionary rule will notkeep out evidence ifthe police did a proper search w/oknocking and announcing first.The Court held that the exclusionary rule does not apply to

evidence gained after police violate the knock and announce requirement in Hudson v. Michigan.

y There is no blanket exception to the knock and announce rule for felonies. In order to justify ano-knock entry, the police must have a reasonable suspicion that knocking andannouncing their presence, under the particular circumstances, would be dangerous or

futile, or that it would inhibit the effective investigation ofthe crime by, for example,

allowing the destruction ofevidence.(Richards v. Wisconsin)

C. What IfThere Are Unforeseen Circumstances or Mistakes While Executing a Warrant?

Ifa mistake is made in executing a warrant, the search is permissible so long as the policeaction is reasonable.

Maryland v. Garrison: The police obtained and executed a warrant to search the premises known as

2036 Park Avenue third floor apartment. The police reasonably believed that there was only one

apartment on the premises described in the warrant. In fact, the third floor was divided into two

apartments. Before the officers executing the warrant became aware that there were two apartments, they

had discovered the contraband that provided the basis for respondents conviction.

Holding: The Court must judge the constitutionality of the polices conduct in light of the information

available to them at the time they acted. We have no difficulty concluding that the officers entry into the

third floor common area was legal; they carried a warrant for those premises, and there were accompanied

by McWebb, who provided the key that they used to open the door giving access to the third floor


11/42

common area. If the officers had known, or should have known, that the third floor contained two

apartments before they entered the living quarters on the third floor, and thus had been aware of the error

in the warrant, they would have been obligated to limit their search to McWebbs apartment. The

officers conduct and the limits of the search were based on the information available as the search

proceededThe Court has also recognized the need to allow some latitude for honest mistakes that

are made by officers in the dangerous and difficult process ofmaking arrests and executing searchwarrants. The validity ofthe search ofrespondents apartment pursuant to a warrant authorizing

the search ofthe entire third floor depends on whether the officers failure to realize the

overbreadth ofthe warrant was objectively understandable and reasonable.The objective facts

available to the officers at the time suggested no distinction b/t McWebbs apartment and the third floor

premises.

Los Angeles County California v. Rettele: Deputies obtained a valid warrant to search a house, but they

were unaware that the suspects being sought had moved out three months earlier. When the deputies

searched the house, they found in a bedroom two residents who were of a different race than the suspects.

The deputies ordered these innocent residents, who had been sleeping unclothed, out of bed, and they

were naked. The deputies required them to stand for a few minutes before allowing them to dress.

Holding: The Fourth Amendment allows warrants to issue on probable cause, a standard well short of

absolute certainty. Valid warrants will issue to search the innocent, and people like Rettele and Sadler

unfortunately bear the cost. When officers execute a valid warrant and act in a reasonable manner to

protect themselves from harm, however the Fourth Amendment is not violated.

Executing a Search Warrant: Unforeseen Circumstances

Information that becomes available either before or during course of search may require police tocease or narrow search, regardless of warrant. (Garrison & Rettelle)

The officers conduct and the limits of the search were based on the information available as thesearch proceeded. While the purposes justifying a police search strictly limit the permissibleextent of the search, the Court has also recognized the need to allow some latitude for honest

mistakes that are made by officers in the dangerous and difficult process of making arrests and

executing search warrants. (Garrison)

Police can search containers large enough to hold the item for which authorized to search (p.117).May seize object not described in warrant if Probable Cause to believe item is subject to seizure

Once police find item described in warrant, must cease searching.Exceptions to the Warrant Requirement

The exceptions to the warrant requirement include: searches incident to arrest; searches made inhot pursuit; searches of things in plain view; automobile searches; inventory searches; bordersearches and checkpoints; searches at checkpoints; searches of those on probation and parole;

searches with consent; and special needs situations; and exigent circumstances. These exceptions

are not mutually exclusive; more than one can apply in a situation.

Searches Incident to Arrest


12/42

One well-established exception to the warrant requirement is the ability ofpolice to search a person

at the time ofa lawful arrest and the area within his immediate control.

Chimel v. California: The police searched the defendant house after lawfully arresting him. The

evidence was used against him at trial.

Rule:

When an arrest is made, it is reasonable for the arresting officers to search the person arrested inorder to remove any weapons that the latter might seek to use in order to resist arrest or affect his

escape.

In addition, it is entirely reasonable for the arresting officer to search for and seize any evidenceon the arrestees person in order to prevent its concealment or destruction. And the area into

which an arrestee might reach in order to grab a weapon or evidentiary items.

Holding: There is ample justification, therefore, for a search ofthe arrestees person and the area

within his immediate controlconstruing that phrase to mean the area from within which he

might gain possession ofa weapon or destructible evidence.There is no comparable justification,

however, for routinely searching any room other than that in which an arrest occursSuch searches, in

the absence of well-recognized exceptions, may be made only under the authority of a search warrant.

In United States v. Robinson, the Supreme Court held that police may search a person incident to

arrest regardless ofthe crime that led to the arrest.

SILA: Search incident to a lawful arrest.

As long as arrest is valid (based on probable cause) and custodial, search incident to that

arrest is lawful

o Dont need separate probable cause for search

y Reasons for SILA? :

o 1) to prevent destruction/concealment of evidence and

o 2) to protect officer and others on scene

Under SILA, scope ofsearch?

Police can search arrestees person, area of immediate control (area from which might gain

weapon or destroy evidence), otherwise known as wingspan Chimel

Authority to search is automatic, but scope has to be determined on a case-by-case basis.

However, in order for there to be a search incident to an arrest, there must actually be an arrest.

Knowles v. Iowa: Knowles was stopped for speeding. He was then searched and the police officer found

marijuana. Knowles moved to suppress the evidence so obtained. He argued that the search could not be

sustained under the search incident to arrest b/c he had not been placed under arrest.

Issue: An Iowa police officer stopped petitioner for speeding, but issued him a citation rather than

arresting him. The question presented is whether such a procedure authorized the officers, consistently

with the Fourth Amendment, to conduct a full search of the car. We answer this question, NO.

Rule:


13/42

In Robinson, we noted the two historical rationales for the search incident to arrest exception:

(1) the need to disarm the suspect in order to take him into custody, and (2) the need to preserve evidence

for later use at trial.

Holding: NEITHER ofthese underlying rationales for the search incident to arrest exception is

sufficient to justify the search in the present case. NO SILA for citation only offenses.

Searches Made In Hot PursuitThe Supreme Court has been most insistent on a warrant requirement when there are searches of a home,

even going so far as to say that warrantless searches and seizures in homes are presumptively invalid. But

the Court has recognized an exception to this when the police enter a home in hot pursuit of a suspected

felon.

Warden, MD. Penitentiary v. Hayden: We agree with the Court of Appeals that neither the entry

without warrant to search for the robber, nor the search for him without warrant was invalid. Under the

circumstances of this case, the exigencies of the made that course imperative. The police were informed

that an armed robbery had taken place and that the suspect had entered 2111 Cocoa Lane less than five

minutes before they reached it.T

hey acted reasonably when they entered the house and began to searchfor a man of the description they had been given and for weapons which he had used in the robbery or

might use against them. The Fourth Amendment does not require police officers to delay in the

course ofan investigation ifto do so would gravely endanger their lives or the lives ofothers. Speed

here was essential, and only a thorough search ofthe house for persons and weapons could have

insured that Hayden was the only man present and that the police had control o fall weapons which

could be used against them or to effect an escape.

But Payton v. NY is important in making clear that police cannot enter a home without a warrant to make

a routine arrest.

Payton v. NY: A NY statute authorizes police officers to enter a private residence without a warrant and

with force, if necessary, to make a routine felony arrest.Holding: It is a basic principle ofFourth Amendment law that searches and seizures inside a

home without a warrant are presumptively unreasonable. The zone ofprivacy is no more clearly

defined that when bounded by the unambiguous physical dimensions ofan individuals home. In

terms that apply equally to seizure ofproperty and to seizures ofpersons, the Fourth Amendment

has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold

may not reasonably be crossed without a warrant.

Arrests in the Home

4th Amendment PROHIBITS warrantless entry into a suspects home to make a routine arrest, inthe absence of consent or exigent circumstance (PAY

T

ON v. NY) To arrest someone in her own home, police must have a warrant for that person and a reason to

believe that the person is present (absent consent or exigent circumstances)

Entry into a home without a warrant:

Presumption that searches and seizures within the home are unreasonable without a warrant For warrantless entry into home to be reasonable, the police must have Probable Cause and

exigent circumstance (Payton)


14/42

A warrantless entry into a home might be justified by:

Exigent circumstances: Hot pursuit of a fleeing felon or Probable cause to believe that entry is necessary: (1) to prevent imminent destruction of evidence;

(2) to prevent escape; (3) risk of danger to police or other persons

Exigent Circumstnace: Hot Pursuit

Immediate or continuous pursuit of suspect from scene of crime into a dwelling place (Warden v.Hayden)

Rationale: likelihood that important government interst will be frustrated if policePlain View and Plain Touch

If officers are lawfully present in a place, they may use all of their senses. For example, imagine that an

officer has a warrant to search a home for child pornography. After lawfully entering the home, the

officer sees illegal drugs on a table. They may be seized and used as evidence. In fact, the same is true if

the officer is lawfully in the place for any reason.

Plain view justification for a warrantless seizure

Requirement: initial intrusion must be valid under 4th amendment

Incriminating/contraband nature of object is immediately apparent; officer must have probable cause

for this

As Coolidge and Horton make clear, it must be immediately apparent that the seized item is illegal.

Test for Plain View:

1. was the officer lawfully present?

y execution ofa valid search warrant; in-home arrest with an arrest warrant; during asearch justified under an exception to the warrant requirement; in a public place

2. First, not only must the item be in plain view; its incriminating character must also be

immediately apparent. Second, not only must the officer be lawfully located in a place from

which the object can be plainly seen, but the office must also have a lawful right ofaccess to the

object itself

**It must be remembered that the police are allowed to use all of their senses when they are lawfully

present. Usually, sight is the most important, but it could be plain smell or plain touch that is

used by the officer.

An example of the applicability of the plain view doctrine is the situation in which the police have a

warrant to search a given area for specified objects, and in the course of the search come across some

other article of incriminating character. Where the initial intrusion that brings the police within plain

view of such an article is supported, not by a warrant, but by one of the recognized exceptions to the

warrant requirement, the seizure is also legitimate. Thus the police may inadvertently come across

evidence while in hot pursuit of a fleeing suspect. And an object that comes into view during a search

incident to arrest that is appropriately limited in scope under existing law may be seized without a


15/42

warrant. Finally, the plain view doctrine has been applied where a police officer is not searching for

evidence against the accused, but nonetheless inadvertently comes across an incriminating object.

Plain View Exception Requirements:

1. The police are legitimately on the premises;2. They discover objects that they have probable cause to believe are contraband or fruits or

instrumentalities ofcrime; and

3. They observe such evidence in plain viewExamples:

Items not described in the warrant Ifthe police enter a house n hot pursuit

NOT Applicable: When the officers move the assumedly stolen stereo equipment to better view

the serial numbers, a search has occurred, for which a warrant is required. It is because the

stereo was not immediately apparent that the seized stereo was illegal.

Formerly, the Court required that to qualify under the plain view exception, the evidence had to be

inadvertently discovered. The Court departed from this approach however, and now evidence may

constitutionally be seized under the exception even ifdiscovery is not inadvertent.

Horton v. California: Officers were searching defendants home under a valid search warrant. The

officers did not find the stolen property, however, the officers discovered the weapon used in the robbery

in plain view and seized it. The officer testified that while he was searching for the stolen rings, he also

was interested in finding other evidence connecting petitioner to the robbery. Thus, the seized evidence

was not discovered inadvertently.

Holding: the suggestion that the inadvertence requirement is necessary to prevent the police from

conducting general searches, or from converting specific warrants into general warrants, is not

persuasive b/c that interest is already served by the requirements that no warrant issue unless itparticularly describes the place to be searched and the persons or things to be seized and that a

warrantless search be circumscribed by the exigencies which justify its initiation. Once those

commands have been satisfied and the officer has a lawful right ofaccess, however, no additional

Fourth Amendment interest is furthered by requiring that the discovery ofevidence be inadvertent.

Plain touch forTerry stops and seizures

During an otherwise valid Terry pat down if an officer discovers contraband through the sense oftouch, then the officer can seize it but cannot charge him unless there is objective classification of

why the police officer though it was drugs or other contraband

NOTE: we have not covered Terry yet. Terry frisks (reasonable suspicion w/ concern for safety)are different from arrests

Minnesota v. Dickerson: incriminating character of the object must be immediately apparent fromthe touch; cannot manipulate item to discern character

The Automobile Exception One ofthe most important exceptions to the warrant requirement is for automobiles; cars

and other movable vehicles can be searched without a warrant ifthere is probable cause.


16/42

A. The Automobile Exception and It rationale

California v. Carney: the police search a mini mobile home without a warrant. The police had probable

cause that there were drugs in the mobile home. The Court ruled: when a vehicle is being used on the

highways, or if it readily capable of such use and is found stationary in a place not regularly used for

residential purposestemporary or otherwisethe two justifications for the vechicle exception comeinto play. First, the vehicle is obviously readily mobile by the turn ofan ignition key, ifnot actually

moving. Second, there is a reduced expectation ofprivacy stemming from its use as a licensed

motor vehicle subject to a range ofpolice regulation inapplicable to a fixed dwelling. At least in

these circumstances, the overriding societal interests in effective law enforcement justify an

immediate search before the vehicle and its occupants become unavailable.Here, the mobile home

was an exception to warrantless search b/c (1) it was readily mobile and (2) the vehicle was licensed to

operate on public streets; was serviced in public places; and was subject to extensive regulation and

inspection. The vehicle was so situated that an objective observer would conclude that it was being used

not as a residence but as a vehicle.

When police have PC to believe that car contains contraband, can search any part of car thatcould reasonably hold contraband, including containers

Rationales: mobility of car, reduced expectation of privacy in cars, highly regulated by govtIn Chambers v. Maroney, the Court went even further and held that even ifthe automobile had

been taken to the police station, and thus was not movable, the automobile exception still applies.

Automobile exception requirements:

1. Probable cause requirement before beginning any search at all under the automobileexception, the police must have probable cause to believe that a moving vehicle, or a vehicle

that has temporarily stopped, contains the fruits or instrumentalities ofcrime, evidence ofcrime, or contraband. Probable cause to search may develop as a result ofobservation after

stopping vehicle.

2. Mobility requirement the exigency ofthe automobiles mobility excuses the officersfailure to secure a warrant and justifies the warrantless search ofthe entire automobile

(interior compartment and trunk)

3. Lower expectation ofprivacy requirement the automobile exception applies only toautomobiles, mobile recreational vehicles, boats, and airplanes b/c there is a lesser

expectation ofprivacy than the home, office and personal property.

b. Searches ofContainers in Automobiles

The Court has held that containers, such as luggage, can be searched without a warrant only ifthere are exigent circumstances. United States v. Chadwick. But ifthere is probable cause to

search a vehicle, the Court has said that the probable cause extends to the containers within

it.

California v. Acevedo: Respondent entered a house of a known drug dealer at 12:30 PM. He stayed for

about ten minutes, and reappeared carrying a brown paper bag that looked full. The officers noticed that

the bag was the size of one of the wrapped marijuana packages sent from Hawaii. Acevedo walked to a


17/42

silver Honda in the parking lot. He place the bag in the trunk of the car and started to drive away.

Fearing the loss of evidence, officers in a marked police car stopped him. They opened the trunk and the

bag and found marijuana.

Holding: Recognizing that under Carroll, the entire vehicle itselfcould be searched without a warrant,

we concluded that prohibiting police from opening immediately a container in which the object of the

search is most likely to be found and instead forcing them first to comb the entire vehicle would actuallyexacerbate the intrusion of privacy interests. At the moment when officers stop an automobile, it may be

less than clear whether they suspect with a high degree of certainty that the vehicle contains drugs in a

bag or simply contain drugs. If the police know that they may open a bag only if they are actually

searching the entire car, they may search more extensively than they otherwise would in order to establish

the general probable cause required by Rosswe now hold that the 4th amendment does not compel

separate treatment for an automobile search that extends only to a container within the vehicle.

The interpretation ofthe Carroll doctrine set forth in Ross now applies to all searches ofcontainers

found in an automobile. In other words, the police may search w/o a warrant iftheir search is

supported by probable cause.

C. Searches Incident to Arrest in Automobiles

In Arizona v. Gant, the Court adopts a new rule for situations where the driver and passengers are

restrained and do not have access to the car. The police may search the interior ofthe car only if

they reasonably believe that evidence ofthe crime that led to the arrest might be found. We hold

that the Chimel rationale for SILA authorizes police to search a vehicle incident to a recent

occupants arrest only when the arrestee is unsecured and within reaching distance ofthe

passenger compartment at the time ofthe search.

Inventory Searches Ifproperty is lawfully in the possession ofthe police, they may inventory the contents to

protect the owners property while it is in police possession.

Automobiles

South Dakota v. Opperman: the defendants car was towed due to parking violations. At the impound

lot, the police officer were taking an inventory of the car. There they found marijuana. The defendant

was arrested for possession of marijuana

Holding: When vehicles are impounded, local police departments generally follow a routine practice of

securing and inventorying the automobiles contents. These procedures developed in response to three

distinct needs: the protection of the owners property while it remains in police custody; the protection of

the police against claims or disputes over lost or stolen property; and the protection of the police from

potential dangerThis Court has consistently sustained police intrusions into automobiles impounded or

otherwise in lawful police custody where the process is aimed at securing or protecting the car and itscontentwe conclude that in following standard police procedures, prevailing throughout the

country and approved by the overwhelming majority ofcourts, the conduct ofthe police was not

unreasonable under the 4th Amendment.

Persons Possession


18/42

Illinois v. LaFayette: The defendant was arrested for disturbing the peace and was taken to the police

station. The defendant was carrying a shoulder bag on the trip to the station. The officer removed the

content of the bag and found amphetamine pills inside a cigarette case package.

Holding: At the stationhouse, it is entirely proper for police to remove and list or inventory property

found on the person or in the possession ofan arrested person who is to be jailed. In short, every

consideration oforderly police administration benefiting both police and the public point towardthe appropriateness ofthe examination ofrespondents shoulder bag prior to his incarceration.

Border Crossing and CheckpointsThe Supreme Court has made clear that the govt has broad authority to conduct warrantless

searches ofpeople, vehicles, and mail entering the border.

The government has the ability to stop all cars at the border and to conduct warrantless searches. In 2004,

the Court considered whether this includes the ability to take apart a cars gas tank without a warrant,

probable cause, or even reasonable suspicion.

US v. Flores-Montano: Custom officials seized 37 kilograms of marijuana from respondents gas tank atthe international border.

Holding: The Govts interst in preventing the entry of unwanted person and effects is at its zenith at the

international border. We have stated that searches made at the border, pursuant to the longstanding

right ofthe sovereign to protect itselfby stopping and examining persons and property crossing

into this country, are reasonable simply by virtue ofthe fact that they occur at the border. We

conclude that the govts authority to conduct suspicionless inspections at the border includes the

authority to remove, disassemble, and reassemble a vehicles fuel tank.

US v. Ramsey: Custom officials, acting with reasonable cause to suspect a violation of customs laws,

opened for inspection incoming international letter-class mail without first obtaining a search warrant.

Holding: It was conceded at oral argument that custom officials could search, w/o probable cause and w/oa warrant, envelopes carried by an entering traveler, whether in his luggage or on his person. Surely no

different constitutional standard should apply simply b/c the envelopes were mailed not carried. The

critical fact is that the envelopes cross the border and enter this country, not that they were

brought in by one mode oftransportation rather than another. It is their entry into this country

from without it that makes a resulting search reasonable.

Individuals, ofcourse, can be stopped at the border to ensure that they are lawfully entering the

country. But more intrusive searches, such as body cavity searches or detentions, require at least

reasonable suspicion.

US v. Montoya-Hernandez: Respondent was detained by customs upon her arrival at LA airport. Shewas found to be smuggling 88 cocaine-filled balloons in her alimentary canal, and was convicted.

Holding: We hold that the detention ofa traveler at the border, beyond the scope ofa routine

customs search and inspection, is justified at its inception ifcustoms agents, considering all the facts

surrounding the traveler and her trip, reasonably suspect that the traveler is smuggling contraband

in her alimentary canal.

Checkpoints


19/42

The police may stop a vehicle if they observe a traffic violation and may demand to see the drivers

license and the vehicles registration.

Intoxicated Drivers (Reasonable)

Michigan Dept. ofState Police v. Sitz: The state established sobriety checkpoints along state roads and

stopped passing vehicles to check for signs of intoxication. If the police suspected intoxication, the

motorist would be directed to a location out of the traffic flow where an officer would check themotorists drivers license and registration, and if warranted, connect more sobriety test.

Holding: a Fourth Amendment seizure has occurred but it is reasonable. The balance ofthe States

interest in preventing drunken driving, the extent to which this system can reasonably be said to

advance that interest, and the degree of intrusion upon individual motorists who are briefly

stopped, weighs in favor ofthe state program. We hold that it is consistent with the 4th

amendment.

Illegal Drugs (Unreasonable search)

City ofIndianapolis v. Edmond: the city established vehicle checkpoints for illegal drugs.

Holding: We have never approved a checkpoint program whose primary purpose was to detect evidence

of ordinary criminal wrongdoing. Rather, our checkpoint cases have recognized only limited exceptions

to the general rule that a seizure must be accompanied by some measure of individualized suspicion.

Each of the checkpoint programs that we have approved was designed primarily to serve purposes closely

related to the problems of policing the border or the necessity of ensuring roadway safety. b/c the

primary purpose ofthe Indianapolis narcotics checkpoint program is to uncover evidence of

ordinary criminal wrongdoing, the program contravenes the Fourth AmendmentWe decline to

suspend the usual requirement of individualized suspicion where the police seek to employ a

checkpoint primarily for the ordinary enterprise of investigating crimes. We cannot sanction stops

justified only by the generalized and ever-present possibility that interrogation and inspection may

reveal that any given motorist has committed some crime.

Questioning about Recent Crime

Illinois v. Lidster: about one week later at about the same time of night and at about the same place, local

police set up a highway checkpoint designed to obtain more information about the accident from the

motoring public. The respondent was driving drunk and the checkpoint officers arrested him for DUI.

Holding: the checkpoint stop here differs significantly from that in Edmond. The stops primary law

enforcement purpose was not to determine whether a vehicles occupants were committing a crime, but to

ask vehicle occupants, as member of the public, for their help in providing information about a crime in

all likelihood committed by others. The police expected the information elicited to help them apprehend,

not the vehicles occupants, but other individuals.

Consent (TOC)A search is permissible without a warrant or even probable cause if there is voluntary consent. The

standard for voluntariness was initially articulated in Schneckloth v. Bustomonte

Schneckloth v. Bustamonte: Six men were in a car that was pulled over. The car belonged to Alcalas

brother, and he was not present. An officer asked Alcala if he could search the car, which Alcala replied,

sure, go ahead! the officers found three checks that had previously been stolen from a car wash.


20/42

Holding: In determining whether a defendants will was overborne in a particular case, the Court has

assessed the totality of all the surrounding circumstancesboth the characteristics of the accused and the

details of the interrogation. In examining all the surrounding circumstances to determine if in fact the

consent to search was coerced account must be taken of subtly coercive police questions, as well as the

possibly vulnerable subjective state of the person who consents. We hold only that when the subject of

his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was infact voluntarily given, and not the result of duress or coercion, expressed or implied. A search may be

conducted without a warrant or probable cause ifvoluntary and intelligent consent is

given.Voluntariness is a question offact to be determined from all the circumstances, and while the

subjects knowledge ofa right to refuse is a factor to be taken into account, the prosecution is not

required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.

Knowledge ofright to withhold consent is NOT a prerequisite to proving that intelligent consent

was given.

Who May Give Consent

Georgia v. Randolph: An estranged married couple was claiming that the other was a drug user. The

wife moved out with the son two months ago. The police first asked the husband if they could search the

house, which he refused. They then asked the wife, and she said yes. The police found some contraband

and arrested the husband.

Holding: the police may not act on consent from one occupant ifa co-occupant is present and

objects to the search and the search is directed against the co-occupant.

Special Needs SearchesThe Supreme Court has said that there is a category of searches where there are special needs, wjere

warrants do not need to be obtained and often where less than probable cause is required.

Administrative Searches

Camara v. Municipal Court ofCity and County ofSan Francisco (searching residential

buildings): An inspector of the Divison of Housing Inspection of the San Francisco Dept of Public

Health entered an apartment building to make a routine annual inspection for possible violationsof the

citys Housing Code. The building manager informed the inspector that appellant, lessee of the ground

floor, was using the rear of his leasehold as a personal residence. Appellant wouldnt let the inspector

into his apartment.

Holding: We cannot say that the protections provided by the warrant procedure are not needed in this

context (housing); broad statutory safeguards are no substitute for individualized review, particularly

when those safeguards may only be invoked at the risk of criminal penalty. The court needs to obtain a

warrant but not based on probable cause but a lower standard than the criminal context. Theydont need individualized suspicion. Such standard, which will vary with the municipal program being

enforced, may be based upon the passage of time, the nature of the building, or the condition of the entire

area, but they will not necessarily depart upon specific knowledge of the condition of the particular

dwelling. It has been suggested that so to vary the probable cause test from the standard applied in

criminal cases would be to authorize a synthetic search warrant and thereby to lessen the overall

protections of the 4th Amendment.


21/42

Government inspectors who perform administrative searches must have a warrant to

search private residences and commercial buildings. However, the traditional probable

cause standard is relaxed in this area. Thus a valid administrative inspection warrant does

not requires a showing ofspecific violations of laws or ofparticular conditions ofparticular

buildings; a showing ofa general and neutral enforcement plan justifies issuance ofa

warrant. Also, probable cause may be based on factors such as the passage of time, the

nature of the building, or conditions in the same geographic area. Random, periodic area

inspections are then permitted.

New York v. Burger (commercial buildings): for business contexts, the court said that you dont

need a warrant nor probable cause b/c ofthe govt regulations.

The test:

1, there must be a substantial government interest that informs the regulatory scheme pursuant to

which the inspection is made;

2, the warrantless inspections must be necessary to further the regulatory scheme;

3, the statutes inspection program, in terms of the certainty and regularity of its application, must

provide a constitutionally adequate substitute for a warrant. In other words, the regulatory statute

must perform the two basic functions of a warrant: it must advise the owner of the commercial

premises that the search is being made pursuant to the law and has a properly defined scope, and it

must limit the discretion of the inspection officers.

To perform this first function, the statute must be sufficiently comprehensive and defined that the

owner of commercial property cannot help but be aware that his property will be subject to periodic

inspections undertaken for specific purposes.

Highly regulated industries exception: a warrant is not required for searches of businesses in highly

regulated industries. This exception is based on two theories (1) the urgent public interest involved, and

(2) the implied consent of businesses entering such industries. Furthermore, such regulatory violations

are often easily hidden and a business owner could thwart govt regulation unless warrantless searches

were permitted.

Parolees can be searched at any time.

Drug testing

Area ofEmployment Skinner v. Railway Executives Assn.: the Court upheld FRA regulations requiring drug

testing of railroad workers involved in accidents. The Court stressed the special need to

ensure the safety of the traveling public. The court said that the privacy expectations of

the employees were diminished by their working in an industry that is regulated

pervasively to ensure safety.

National Treasury Employees Union v. Von Raab: the court upheld urinalysis forcustoms workers upon their transfer or promotion to positions having a direct


22/42

involvement in drug interdiction or requiring the carrying of firearms. The Court struck

down the requirement as applied to those who would be handling classified documents.

Chandler v. Miller: the Court struck down a Georgia statute requiring that candidates forstate office pass a drug test. The Court stressed that Georgia asserts no evidence of a

drug problem among the States elected officials, those officials do not typically perform

high-risk, safety sensitive tasks, and the required certification immediately aids tointerdiction effort.

School Officials New Jersey v. TLO: the Court held that school officials could search a students purse

based on reasonable suspicion; there did not need to be a warrant or probable cause. The

Court said that the Fourth Amendment is applicable to the activities of civil as well as

criminal authorities. The Court said there be reasonable grounds for suspecting that the

search will turn up evidence that the student has violated or is violating either the law or

the rules of the school. The Court stressed that the search must be reasonable in scope.

It explained that 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.

Savannah v. Redding: Vernonia v. Acton: the Court upheld random drug testing for students participating in

athletic events.

Board v. Earls: the Court upheld random drug testing for students participating inextracurricular activities

Hospitals Ferguson v. City ofCharleston: the Court held that drug testing of pregnant women,

with results to be used for law enforcement purposes did not fit within the special

needs exception.

Exigent Circumstances:In an emergency, the police can search without a warrant ifthere is probable cause. This is often

referred to as exigent circumstances. The ability of the police to enter a home when in hot pursuit of a

felon is an example of this. For this exception to apply, it must be an emergency situation justifying

warrantless activity and there must be probable cause.

In Welsh v. Wisconsin: The defendant was driving erratically at night and swerved off the road into an

open field. The defendant left the scene. The police arrived at the scene and learned that the defendants

home was a few blocks away and assumed that he just walked home. The police went into his home and

arrested him for DUI.The search was unconstitutional b/c there was no present danger when the search happened. The State

attempts to justify the arrest by relying on the hot pursuit doctrineon the facts of this case, however, the

claim of hot pursuit is unconvincing b/c there was no immediate or continuous pursuit of the petitioner

from the scene of a crime. Moreover, b/c the petitioner had already arrived home, and had abandoned his

car at the scene of the accident; there was little remaining threat to the public safety.


23/42

The Court generally has been reluctant to find exigent circumstances. For example, in Mincey v.

Arizona, the Court rejected a claim that there should be a blanket exception to the warrant

requirement for all murder scenes. But police may act w/o a warrant if it is an emergency and the

police believe that entering premises will provide protection.

Brigham City, Utah v. Stuart: One exigency obviating the requirement ofa warrant is the need toassist persons who are seriously injured or threatened with such injury. Accordingly, law

enforcement officers may enter a home w/o a warrant to render emergency assistance to an injured

occupant or to protect an occupant from imminent injury. An important factor to be considered

when determining whether any exigency exists is the gravity ofthe underlying offense for which the

arrest is being made. The test is objectively reasonable basis for believing both that the injured

adult might need help and that the violence in the kitchen was just beginning. The Court held that

the officers had the right to enter w/o a warrant.

Seizure and Arrests

The Fourth Amendment, of course, applies to seizures, whether of a person or of his or herproperty. Arrests must be based on probable cause, a person may be stopped by the police withjust reasonable suspicion. Both arrests and stops are seizures within the meaning of the Fourth

Amendment. Also, an illegal arrest or stop generally requires the exclusion of the evidence

gained as its result.

Continuum of Police-Citizen Contacts

Consensual EncounterNot a 4th Amend seizure- No PC or reasonable suspicion needed- Person is free to leave

Stop for investigative purposes 4th Amend seizure- Need reasonable suspicion- Limited in scope (time, what officer can do)

Arrest- Must be based on PC

When is a warrant required for an arrest?

US v. Watson:Warrantless arrests permitted in public ifbased upon Probable Cause thatperson (1) has committed a felony or is committing a felony or (2) is committing a

misdemeanor in the officers presence

US v. Payton: Absent exigent circumstances or consent for police to enter, police need awarrant to arrest someone in her own home

Va v Moore:The Court held that warrantless arrests for crimes committed in the presenceofan arresting officer are reasonable under the Constitution, and that while States are free

to regulate such arrests however they desire, state restrictions do not alter the Fourth

Amendments protections.

There is no requirement that a search warrant be obtained the moment the police haveprobable cause to search. The rule is only that present probable cause be shown and a

warrant obtained before a search is undertaken.


24/42

The Fourth Amendment applies to seizure, whether of a person or of his or her property. Arrests must be

based on probable cause, though as discussed in section G, a person may be stopped by the police with

just reasonable suspicion. Both arrests and stops are seizures w/in the meaning of the Fourth Amendment

When Is A Person Seized?

For an exam question about seized, state was a seizure is and explore both Terry stopand frisk (reasonable suspicion) and arrest (probable cause). Dont forget to mention that

arrest requires a higher standard. Look at EVERY evidence the officer has before he does

either a stop or an arrest in order to determine if it is constitutional under the 4th

amendment.

US v. Mendenhall: the defendant was stopped at the airport by a police officer because she looked

nervous and he suspected her of drug trafficking. He asked her to follow him to the DEA office at the

airport and she did. He asked if he could search her bag and told her she could say no, but she came him

permission. He found nothing. He then had a female officer conduct a body search of her, which again

she consented. There they found heroin on her.

Holding: We adhere to the view that a person is seized only when, by means ofphysical force or ashow ofauthority, his freedom ofmovement is restrained.We conclude that a person has been

seized within the meaning ofthe Fourth Amendment only if, in view ofall the circumstances

surround the incident, a reasonable person would have believed that he was not free to leave

(objective test). Only when such restraint is imposed is there any foundation whatever for invoking

constitutional safeguards. The purpose of the 4th Amendment is not to eliminate all contact b/t the police

and the citizenry, but to prevent arbitrary and oppressive interference by enforcement officials with the

privacy and personal security of individuals. As long as the person to whom questions are put remains

free to disregard the questions and walk away, there has been no intrusion upon that persons liberty or

privacy as would under the Constitution require some particularized and objective justification.

Brendlin v. California: Both driver andPassengers are seized when they are riding in a car that was

stopped by the police

California v. Hodari D.:Officers were in a high crime area of Oakland in plain clothes but wearing

jackets with Police on both front and back. As their unmarked car turned a corner, they saw four or five

youths huddled around a small red car parked at the curb. The youths saw the car and took flight. The

officers were suspicious and ran after them. Looking behind as he ran, the defendant tossed away what

appeared to be a small rock. The officer then tackled Hodari, handcuffed him, and radioed for assistance.

Hodari was found to be carrying $130 in cash and a pager; and the rock he had discarded was crack

cocaine.

Issue: was the defendant seized when he dropped the drugs? If so, the drugs were the fruit of that seizureand the evidence should be excluded. If not, the drugs were abandoned by Hodari and lawfully recovered

by the police and should be admitted.

Holding: An arrest requires either physical force (for example, ifthe officer had laid his hands upon

Hodari to arrest him but Hodari had broken away and then cast away the cocaine) or, where that is

absent, submission to the assertion ofauthority. Street pursuits always place the public at risk, and

compliance with police orders to stop should therefore be encouraged. A person is not seized when

they give chase to the police. In sum, assuming that the officers pursuit in the present case constituted a


25/42

show of authority enjoining Hodari to halt, since Hodari did not comply with that injunction he was not

seized until he was tackled. The cocaine abandoned while he was running was in this case not the fruit of

a seizure, and his motion to exclude evidence of it was properly denied.

Stop and Frisk There is important differences b/t an arrest and a stop under the 4th Amendment: an arrest

requires probable cause and a stop only requires reasonable suspicion.

Ifa person is arrested, police can do a search incident to the arrest. But ifa person isstopped, there can be a frisk only ifthere is reasonable suspicion that the person has a

weapon that might endanger the police.

Ifa person driving a car is arrested based on probable cause, the police may search the car;but ifa person is stopped, there can be an inspection only ofthe area where the driver

might obtain a weapon after returning to the car.

The Authority for Police to Stop and FriskTerry v. Ohio: An officer in plain clothes was patrol a street and two men attracted his attention. He

claims he has never seen him before. The officer has been on the force for 39 years and a detective for 35years. The two men appeared to be casing out a store to rob. The officer feared that they had a gun.

The officer followed the two men and then approached them and identified himself as a police officer.

When the men mumbled something in response to his inquiries, Officer McFadden grabbed Terry, spun

him around so they were facing the other two, and patted him down the outside of his clothing. In the left

breast pocket, the officer felt a pistol. The officer tried to reach inside Terrys coat but was unable to

retrieve the gun. The officer testified that he only patted the men down ot see whether they had weapons,

and that he did not put his hands beneath the outer garments of eitherTerry or Chilton until he felt their

guns.

Holding: The police should be allowed to stop a person and detain him briefly for questioning

upon suspicion that he may be connected with criminal activity. Upon suspicion that the person

may be armed, the police should have the power to frisk him for weapons. Ifthe stop and the

frisk give rise to probable cause to believe that the suspect has committed a crime, then the police

should be empowered to make a formal arrest, and a full incident search ofthe person. The

stop and frisk must be based on a reasonable suspicion: there is no ready test for determining

reasonableness other than by balancing the need to search against the invasion which the search entails,

and in justifying the particular intrusion the police officer must be able to point to specific and articulable

facts which, taken together with ration inferences from those facts, reasonable warrant that intrusion. An

in making that assessment it is imperative that the facts be judged against an objective standard

would the facts available to the officer at the moment ofthe seizure or the search warrant a man

ofreasonable caution in the belief that the action taken was appropriate?We conclude that the

revolver seized from Terry was properly admitted in evidence against him. At the time he seizedpetitioner and searched him for weapons, Officer McFadden had reasonable grounds to believe that Terry

was armed and dangerous, and it was necessary for the protection of himself and others to take swift

measures to discover the true facts and neutralize the threat of harm if it materialized.

The Distinction Between Stops and Arrests Examples of Arrests:


26/42

1. if a person is detained for sustained interrogation that is an arrest within the meaning of theFourth Amendment. For example: an arrest has occurred if police officers take a suspect to the

station for questioning.

2. Taking a suspect from the public area of an airport into a small room constituted an arrest.3. Taking a suspect to the police station for fingerprinting is an arrest and needs to be based upon

probable cause4. The duration of the detention also matters in determining whether there has been a stop or an

arrest: detaining a persons luggage for 90 minutes was a seizure under the 4th amendment; a

police officer detained suspects b/t 30-40 minutes while waiting for DEA and the Court said this

was a stop. The Court has said that there is no hard-and-fast time limit b/t a stop and an arrest.

What May Police Do When They Stop an Individual? Terry v. Ohio says that police may friskan individual if there are reasonable grounds for

believing that the person has a weapon that might endanger the officers. In Michigan v.

Long, the Court said that if the police reasonably believe that a person might be dangerous, they

can conduct a limited investigation ofan area from which a person could obtain a weapon.

The Court thus said it was permissible for the police to inspect the areas ofthe car from which

the suspect could obtain a weapon after the stopwas completed.

Similarly, the Court has held that when the police arrest a person, they may conduct aprospective sweep ofthe premises ifthey have reasonable suspicion that a person might be

there who poses a threat to them. In Michigan v. Buie, the Court said that such a sweep may

extend only to a cursory inspection of those places where a person may be found.

When the police friska person, they may seize any evidence that is apparent to their experiencedplain feel. The police may notmanipulate the lining ofa persons clothes to lookfor

evidence.

Hiibel v. Sixth Judicial Dist. Court ofNevada:the defendant was arrested and convicted for refusing toidentify himself during a stop allowed by Terry v. Ohio. Earlier that day, the police received a call

reporting an assault. An officer approached a truck that looked similar to the callers description. The

officer observed skid marks in the gravel behind the truck, leading him to believe it had come to a sudden

stop. The officer approached the driver, who appeared drunk, and asked for his identification over 11

times, and the man refused. The officer arrested him for willfully delaying or obstructing a police

officers investigation.

Holding: Interrogation relating to ones identity or a request for identification by the police does not, by

itself, constitute a Fourth Amendment seizure. A suspects identity is a routine and accepted part of

many Terry stops. A state law requiring a suspect to disclose his name in the course of a valid Terry stop

is consistent with Fou

4th amendment unreasonable searches and seizures

Documents