Fourth Amendment--Search and Seizure
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FOURTH AMENDMENT
SEARCH AND SEIZURE
History and Scope of the Amendment
History.--Few provisions of the Bill of Rights grew so directly
out of the experience of the colonials as the Fourth Amendment,
embodying as it did the protection against the utilization of the
``writs of assistance.'' But while the insistence on freedom from
unreasonable searches and seizures as a fundamental right gained
expression in the Colonies late and as a result of experience,\1\ there
was also a rich English experience to draw on. ``Every man's house is
his castle'' was a maxim much celebrated in England, as was demonstrated
in Semayne's Case, decided in 1603.\2\ A civil case of execution of
process, Semayne's Case nonetheless recognized the right of the
homeowner to defend his house against unlawful entry even by the King's
agents, but at the same time recognized the authority of the appropriate
officers to break and enter upon notice in order to arrest or to execute
the King's process. Most famous of the English cases was Entick v.
Carrington,\3\ one of a series of civil actions against state officers
who, pursuant to general warrants, had raided many homes and other
places in search of materials
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connected with John Wilkes' polemical pamphlets attacking not only
governmental policies but the King himself.\4\
\1\Apparently the first statement of freedom from unreasonable
searches and seizures appeared in The Rights of the Colonists and a List
of Infringements and Violations of Rights, 1772, in the drafting of
which Samuel Adams took the lead. 1 B. Schwartz, The Bill of Rights: A
Documentary History 199, 205-06 (1971).
\2\5 Coke's Rep. 91a, 77 Eng. Rep. 194 (K.B. 1604). One of the
most forceful expressions of the maxim was that of William Pitt in
Parliament in 1763: ``The poorest man may in his cottage bid defiance to
all the force of the crown. It may be frail--its roof may shake--the
wind may blow through it--the storm may enter, the rain may enter--but
the King of England cannot enter--all his force dares not cross the
threshold of the ruined tenement.''
\3\19 Howell's State Trials 1029, 95 Eng. 807 (1705).
\4\See also Wilkes v. Wood, 98 Eng. 489 (C.P. 1763); Huckle v.
Money, 95 Eng. Rep. 768 (K.B. 1763), aff'd 19 Howell's State Trials
1002, 1028; 97 Eng. Rep. 1075 (K.B. 1765).
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Entick, an associate of Wilkes, sued because agents had forcibly
broken into his house, broken into locked desks and boxes, and seized
many printed charts, pamphlets and the like. In an opinion sweeping in
terms, the court declared the warrant and the behavior it authorized
subversive ``of all the comforts of society,'' and the issuance of a
warrant for the seizure of all of a person's papers rather than only
those alleged to be criminal in nature ``contrary to the genius of the
law of England.''\5\ Besides its general character, said the court, the
warrant was bad because it was not issued on a showing of probable cause
and no record was required to be made of what had been seized. Entick v.
Carrington, the Supreme Court has said, is a ``great judgment,'' ``one
of the landmarks of English liberty,'' ``one of the permanent monuments
of the British Constitution,'' and a guide to an understanding of what
the Framers meant in writing the Fourth Amendment.\6\
\5\5 Eng. Rep. 817, 818.
\6\Boyd v. United States, 116 U.S. 616, 626 (1886).
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In the colonies, smuggling rather than seditious libel afforded
the leading examples of the necessity for protection against
unreasonable searches and seizures. In order to enforce the revenue
laws, English authorities made use of writs of assistance, which were
general warrants authorizing the bearer to enter any house or other
place to search for and seize ``prohibited and uncustomed'' goods, and
commanding all subjects to assist in these endeavors. The writs once
issued remained in force throughout the lifetime of the sovereign and
six months thereafter. When, upon the death of George II in 1760, the
authorities were required to obtain the issuance of new writs,
opposition was led by James Otis, who attacked such writs on libertarian
grounds and who asserted the invalidity of the authorizing statutes
because they conflicted with English constitutionalism.\7\ Otis lost and
the writs were issued and utilized, but his arguments were much cited in
the colonies not only on the immediate subject but also with regard to
judicial review.
\7\The arguments of Otis and others as well as much background
material are contained in Quincy's Massachusetts Reports, 1761-1772,
App. I, pp. 395-540, and in 2 Legal Papers of John Adams 106-47 (Wroth &
Zobel eds., 1965). See also Dickerson, Writs of Assistance as a Cause of
the American Revolution, in The Era of the American Revolution: Studies
Inscribed to Evarts Boutell Greene 40 (R. Morris, ed., 1939).
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Scope of the Amendment.--The language of the provision which
became the Fourth Amendment underwent some modest
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changes on its passage through the Congress, and it is possible that the
changes reflected more than a modest significance in the interpretation
of the relationship of the two clauses. Madison's introduced version
provided ``The rights to be secured in their persons, their houses,
their papers, and their other property, from all unreasonable searches
and seizures, shall not be violated by warrants issued without probable
cause, supported by oath or affirmation, or not particularly describing
the places to be searched, or the persons or things to be seized.''\8\
As reported from committee, with an inadvertent omission corrected on
the floor,\9\ the section was almost identical to the introduced
version, and the House defeated a motion to substitute ``and no warrant
shall issue'' for ``by warrants issuing'' in the committee draft. In
some fashion, the rejected amendment was inserted in the language before
passage by the House and is the language of the ratified constitutional
provision.\10\
\8\1 Annals of Congress 434-35 (June 8, 1789).
\9\The word ``secured'' was changed to ``secure'' and the phrase
``against unreasonable searches and seizures'' was reinstated. Id. at
754 (August 17, 1789).
\10\Id. It has been theorized that the author of the defeated
revision, who was chairman of the committee appointed to arrange the
amendments prior to House passage, simply inserted his provision and
that it passed unnoticed. N. Lasson, The History and Development of the
Fourth Amendment to the United States Constitution 101-03 (1937).
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As noted above, the noteworthy disputes over search and seizure
in England and the colonies revolved about the character of warrants.
There were, however, lawful warrantless searches, primarily searches
incident to arrest, and these apparently gave rise to no disputes. Thus,
the question arises whether the Fourth Amendment's two clauses must be
read together to mean that the only searches and seizures which are
``reasonable'' are those which meet the requirements of the second
clause, that is, are pursuant to warrants issued under the prescribed
safeguards, or whether the two clauses are independent, so that searches
under warrant must comply with the second clause but that there are
``reasonable'' searches under the first clause which need not comply
with the second clause.\11\ This issue has divided the Court for some
time, has
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seen several reversals of precedents, and is important for the
resolution of many cases. It is a dispute which has run most
consistently throughout the cases involving the scope of the right to
search incident to arrest.\12\ While the right to search the person of
the arrestee without a warrant is unquestioned, how far afield into
areas within and without the control of the arrestee a search may range
is an interesting and crucial matter.
\11\The amendment was originally in one clause as quoted above;
it was the insertion of the defeated amendment to the language which
changed the text into two clauses and arguably had the effect of
extending the protection against unreasonable searches and seizures
beyond the requirements imposed on the issuance of warrants. It is also
possible to read the two clauses together to mean that some seizures
even under warrants would be unreasonable, and this reading has indeed
been effectuated in certain cases, although for independent reasons.
Boyd v. United States, 116 U.S. 616 (1886); Gouled v. United States, 255
U.S. 298 (1921), overruled by Warden v. Hayden, 387 U.S. 294 (1967); but
see id. at 303 (reserving the question whether ``there are items of
evidential value whose very nature precludes them from being the object
of a reasonable search and seizure.'')
\12\Approval of warrantless searches pursuant to arrest first
appeared in dicta in several cases. Weeks v. United States, 232 U.S.
383, 392 (1914); Carroll v. United States, 267 U.S. 132, 158 (1925);
Agnello v. United States, 269 U.S. 20, 30 (1925). Whether or not there
is to be a rule or a principle generally preferring or requiring
searches pursuant to warrant to warrantless searches, however, has
ramifications far beyond the issue of searches pursuant to arrest.
United States v. United States District Court, 407 U.S. 297, 320 (1972).
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The Court has drawn a wavering line.\13\ In Harris v. United
States,\14\ it approved as ``reasonable'' the warrantless search of a
four-room apartment pursuant to the arrest of the man found there. A
year later, however, a reconstituted Court majority set aside a
conviction based on evidence seized by a warrantless search pursuant to
an arrest and adopted the ``cardinal rule that, in seizing goods and
articles, law enforcement agents must secure and use search warrants
wherever reasonably practicable.''\15\ This rule was set aside two years
later by another reconstituted majority which adopted the premise that
the test ``is not whether it is reasonable to procure a search warrant,
but whether the search was reasonable.'' Whether a search is reasonable,
the Court said, ``must find resolution in the facts and circumstances of
each case.''\16\ However, the Court soon returned to its emphasis upon
the warrant. ``The [Fourth] Amendment was in large part a reaction to
the general warrants and warrantless searches that had so alienated the
colonists and had helped speed the movement for independence. In the
scheme of the Amendment, therefore, the requirement that `no Warrants
shall issue, but upon probable cause,' plays a crucial part.''\17\
Therefore, ``the police must, whenever practicable, obtain advance
judicial approval of searches and seizures through a warrant
procedure.''\18\ Exceptions to searches under warrants were to
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be closely contained by the rationale undergirding the necessity for the
exception, and the scope of a search under one of the exceptions was
similarly limited.\19\
\13\Compare Marron v. United States, 275 U.S. 192 (1927), with
Go-Bart Importing Co. v. United States, 282 U.S. 344 (1931), and United
States v. Lefkowitz, 285 U.S. 452 (1932).
\14\331 U.S. 145 (1947).
\15\Trupiano v. United States, 334 U.S. 699, 705 (1948). See
also McDonald v. United States, 335 U.S. 451 (1948).
\16\United States v. Rabinowitz, 339 U.S. 56, 66 (1950).
\17\Chimel v. California, 395 U.S. 752, 761 (1969).
\18\Terry v. Ohio, 392 U.S. 1, 20 (1968). In United States v.
United States District Court, 407 U.S. 297, 321 (1972), Justice Powell
explained that the ``very heart'' of the Amendment's mandate is ``that
where practical, a governmental search and seizure should represent both
the efforts of the officer to gather evidence of wrongful acts and the
judgment of the magistrate that the collected evidence is sufficient to
justify invasion of a citizen's private premises or conversation.''
Thus, what is ``reasonable'' in terms of a search and seizure derives
content and meaning through reference to the warrant clause. Coolidge v.
New Hampshire, 403 U.S. 443, 473-84 (1971). See also Davis v.
Mississippi, 394 U.S. 721, 728 (1969); Katz v. United States, 389 U.S.
347, 356-58 (1967); Warden v. Hayden, 387 U.S. 294, 299 (1967).
\19\Chimel v. California, 395 U.S. 752, 762-64 (1969) (limiting
scope of search incident to arrest). See also United States v. United
States District Court, 407 U.S. 297 (1972) (rejecting argument that it
was ``reasonable'' to allow President through Attorney General to
authorize warrantless electronic surveillance of persons thought to be
endangering the national security); Katz v. United States, 389 U.S. 347
(1967) (although officers acted with great self-restraint and reasonably
in engaging in electronic seizures of conversations from telephone
booth, self-imposition was not enough and magistrate's judgment
required); Preston v. United States, 376 U.S. 364 (1964) (warrantless
search of seized automobile not justified because not within rationale
of exceptions to warrant clause). There were exceptions, e.g., Cooper v.
California, 386 U.S. 58 (1967) (warrantless search of impounded car was
reasonable); United States v. Harris, 390 U.S. 234 (1968) (warrantless
inventory search of automobile).
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During the 1970s the Court was closely divided on which standard
to apply.\20\ For a while, the balance tipped in favor of the view that
warrantless searches are per se unreasonable, with a few carefully
prescribed exceptions.\21\ Gradually, guided by the variable expectation
of privacy approach to coverage of the Fourth Amendment, the Court
broadened its view of permissible exceptions and of the scope of those
exceptions.\22\
\20\See, e.g., Almeida-Sanchez v. United States, 413 U.S. 266
(1973), Justices Stewart, Douglas, Brennan, and Marshall adhered to the
warrant-based rule, while Justices White, Blackmun, and Rehnquist, and
Chief Justice Burger placed greater emphasis upon the question of
reasonableness without necessary regard to the warrant requirement. Id.
at 285. Justice Powell generally agreed with the former group of
Justices, id. at 275 (concurring).
\21\E.g., G.M. Leasing Corp. v. United States, 429 U.S. 338,
352-53 (1977) (unanimous); Marshall v. Barlow's, Inc., 436 U.S. 307, 312
(1978); Michigan v. Tyler, 436 U.S. 499, 506 (1978); Mincey v. Arizona,
437 U.S. 385, 390 (1978) (unanimous); Arkansas v. Sanders, 442 U.S. 743,
758 (1979); United States v. Ross, 456 U.S. 798, 824-25 (1982).
\22\E.g., Chambers v. Maroney, 399 U.S. 42 (1970) (warrantless
search of automobile taken to police station); Texas v. White, 423 U.S.
67 (1975) (same); New York v. Belton, 453 U.S. 454 (1981) (search
incident to arrest); United States v. Ross, 456 U.S. 798 (1982)
(automobile search at scene). On the other hand, the warrant-based
standard did preclude a number of warrantless searches. E.g., Almeida-
Sanchez v. United States, 413 U.S. 266 (1973) (warrantless stop and
search of auto by roving patrol near border); Marshall v. Barlow's,
Inc., 436 U.S. 307 (1978) (warrantless administrative inspection of
business premises); Mincey v. Arizona, 437 U.S. 385 (1978) (warrantless
search of home that was ``homicide scene'').
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By 1992, it was no longer the case that the ``warrants-with-
narrow-exceptions'' standard normally prevails over a ``reasonableness''
approach.\23\ Exceptions to the warrant requirement have
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multiplied, tending to confine application of the requirement to cases
that are exclusively ``criminal'' in nature. And even within that core
area of ``criminal'' cases, some exceptions have been broadened. The
most important category of exception is that of administrative searches
justified by ``special needs beyond the normal need for law
enforcement.'' Under this general rubric the Court has upheld
warrantless searches by administrative authorities in public schools,
government offices, and prisons, and has upheld drug testing of public
and transportation employees.\24\ In all of these instances the warrant
and probable cause requirements are dispensed with in favor of a
reasonableness standard that balances the government's regulatory
interest against the individual's privacy interest; in all of these
instances the government's interest has been found to outweigh the
individual's. The broad scope of the administrative search exception is
evidenced by the fact that an overlap between law enforcement objectives
and administrative ``special needs'' does not result in application of
the warrant requirement; instead, the Court has upheld warrantless
inspection of automobile junkyards and dismantling operations in spite
of the strong law enforcement component of the regulation.\25\ In the
law enforcement context, where search by warrant is still the general
rule, there has also been some loosening of the requirement. For
example, the Court has shifted focus from whether exigent circumstances
justified failure to obtain a warrant, to whether an officer had a
``reasonable'' belief that an exception to the warrant requirement
applied;\26\ in another case the scope of a valid search ``incident to
arrest,'' once limited to areas within the immediate reach of the
arrested suspect, was expanded to a ``protective sweep'' of the entire
home if arresting officers have a reasonable belief that the home
harbors an individual who may pose a danger.\27\
\23\Of the 1992 Justices, only Justice Stevens has frequently
sided with the warrants-with-narrow-exceptions approach. See, e.g.,
Illinois v. Rodriguez, 497 U.S. 177, 189 (Justice Stevens joining
Justice Marshall's dissent); New Jersey v. T.L.O., 469 U.S. 325, 370
(1985) (Justice Stevens dissenting); California v. Acevedo, 500 U.S.
565, 585 (1991) (Justice Stevens dissenting).
\24\See various headings infra under the general heading ``Valid
Searches and Seizures Without Warrants.''
\25\New York v. Burger, 482 U.S. 691 (1987).
\26\Illinois v. Rodriguez, 497 U.S. 177 (1990).
\27\Maryland v. Buie, 494 U.S. 325 (1990).
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Another matter of scope recently addressed by the Court is the
category of persons protected by the Fourth Amendment--who constitutes
``the people.'' This phrase, the Court determined, ``refers to a class
of persons who are part of a national community or who have otherwise
developed sufficient connection with [the United States] to be
considered part of that community.''\28\ The Fourth Amendment therefore
does not apply to the search and seizure by
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United States agents of property that is owned by a nonresident alien
and located in a foreign country. The community of protected people
includes U.S. citizens who go abroad, and aliens who have voluntarily
entered U.S. territory and developed substantial connections with this
country. There is no resulting broad principle, however, that the Fourth
Amendment constrains federal officials wherever and against whomever
they act.
\28\United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990).
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The Interest Protected.--For the Fourth Amendment to be
applicable to a particular set of facts, there must be a ``search'' and
a ``seizure,'' occurring typically in a criminal case, with a subsequent
attempt to use judicially what was seized. Whether there was a search
and seizure within the meaning of the Amendment, whether a complainant's
interests were constitutionally infringed, will often turn upon
consideration of his interest and whether it was officially abused. What
does the Amendment protect? Under the common law, there was no doubt.
Said Lord Camden in Entick v. Carrington:\29\ ``The great end for which
men entered in society was to secure their property. That right is
preserved sacred and incommunicable in all instances where it has not
been taken away or abridged by some public law for the good of the
whole. . . . By the laws of England, every invasion of private property,
be it ever so minute, is a trespass. No man can set foot upon my ground
without my license but he is liable to an action though the damage be
nothing . . . .'' Protection of property interests as the basis of the
Fourth Amendment found easy acceptance in the Supreme Court\30\ and that
acceptance controlled decision in numerous cases.\31\ For example, in
Olmstead v. United States,\32\ one of the two premises underlying the
holding that wiretapping was not covered by the Amendment was that there
had been no actual physical invasion of the defendant's premises; where
there had been an invasion, a technical trespass, electronic
surveillance was deemed subject to
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Fourth Amendment restrictions.\33\ The Court later rejected this
approach, however. ``The premise that property interests control the
right of the Government to search and seize has been discredited. . . .
We have recognized that the principal object of the Fourth Amendment is
the protection of privacy rather than property, and have increasingly
discarded fictional and procedural barriers rested on property
concepts.''\34\ Thus, because the Amendment ``protects people, not
places,'' the requirement of actual physical trespass is dispensed with
and electronic surveillance was made subject to the Amendment's
requirements.\35\
\29\19 Howell's State Trials 1029, 1035, 95 Eng. Reg. 807, 817-
18 (1765).
\30\Boyd v. United States, 116 U.S. 616, 627 (1886); Adams v.
New York, 192 U.S. 585, 598 (1904).
\31\Thus, the rule that ``mere evidence'' could not be seized
but rather only the fruits of crime, its instrumentalities, or
contraband, turned upon the question of the right of the public to
possess the materials or the police power to make possession by the
possessor unlawful. Gouled v. United States, 255 U.S. 298 (1921),
overruled by Warden v. Hayden, 387 U.S. 294 (1967). See also Davis v.
United States, 328 U.S. 582 (1946). Standing to contest unlawful
searches and seizures was based upon property interests, United States
v. Jeffers, 342 U.S. 48 (1951); Jones v. United States, 362 U.S. 257
(1960), as well as decision upon the validity of a consent to search.
Chapman v. United States, 365 U.S. 610 (1961); Stoner v. California, 376
U.S. 483 (1964); Frazier v. Culp, 394 U.S. 731, 740 (1969).
\32\277 U.S. 438 (1928). See also Goldman v. United States, 316
U.S. 129 (1942) (detectaphone placed against wall of adjoining room; no
search and seizure).
\33\Silverman v. United States, 365 U.S. 505 (1961) (spike mike
pushed through a party wall until it hit a heating duct).
\34\Warden v. Hayden, 387 U.S. 294, 304 (1967).
\35\Katz v. United States, 389 U.S. 347, 353 (1967). But see
California v. Hodari D., 499 U.S. 621, 626 (1991) (Fourth Amendment
``seizure'' of the person is the same as a common law arrest; there must
be either application of physical force or submission to the assertion
of authority).
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The test propounded in Katz is whether there is an expectation
of privacy upon which one may ``justifiably'' rely.\36\ ``What a person
knowingly exposes to the public, even in his own home or office, is not
a subject of Fourth Amendment protection. But what he seeks to preserve
as private, even in an area accessible to the public, may be
constitutionally protected.''\37\ That is, the ``capacity to claim the
protection of the Amendment depends not upon a property right in the
invaded place but upon whether the area was one in which there was
reasonable expectation of freedom from governmental intrusion.''\38\
\36\389 U.S. at 353. Justice Harlan, concurring, formulated a
two pronged test for determining whether the privacy interest is
paramount: ``first that a person have exhibited an actual (subjective)
expectation of privacy and, second, that the expectation be one that
society is prepared to recognize as `reasonable.''' Id. at 361.
\37\Id. at 351-52.
\38\Mancusi v. DeForte, 392 U.S. 364, 368 (1968) (official had a
reasonable expectation of privacy in an office he shared with others,
although he owned neither the premises nor the papers seized). Minnesota
v. Olson, 495 U.S. 91 (1990) (overnight guest in home has a reasonable
expectation of privacy). Cf. Rakas v. Illinois, 439 U.S. 128 (1978).
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The two-part test that Justice Harlan suggested in Katz\39\ has
purported to guide the Court in its deliberations, but its consequences
are unclear. On the one hand, there is no difference in result between
many of the old cases premised on property concepts and more recent
cases in which the reasonable expectation of
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privacy flows from ownership concepts.\40\ On the other hand, many other
cases have presented close questions that have sharply divided the
Court.\41\ The first element, the ``subjective expectation'' of privacy,
has largely dwindled as a viable standard, because, as Justice Harlan
noted in a subsequent case, ``our expectations, and the risks we assume,
are in large part reflections of laws that translate into rules the
customs and values of the past and present.''\42\ As for the second
element, whether one has a ``legitimate'' expectation of privacy that
society finds ``reasonable'' to recognize, the Court has said that
``[l]egitimation of expectations of privacy by law must have a source
outside of the Fourth Amendment, either by reference to concepts of real
or personal property law or to understandings that are recognized and
permitted by society.''\43\ Thus, protection of the home is at the apex
of Fourth Amendment coverage because of the right associated with
ownership to exclude others;\44\ but ownership of other things, i.e.,
automobiles, does not carry a similar high degree of protection.\45\
That a person has taken normal precautions to maintain his privacy, that
is, precautions customarily taken by those seeking to exclude others, is
usually a significant factor in determining legitimacy of
expectation.\46\ Some expectations, the Court has held, are simply not
those which society is prepared to accept.\47\ While perhaps not
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clearly expressed in the opinions, what seems to have emerged is a
balancing standard, which requires ``an assessing of the nature of a
particular practice and the likely extent of its impact on the
individual's sense of security balanced against the utility of the
conduct as a technique of law enforcement.'' As the intrusions grow more
extensive and significantly jeopardize the sense of security of the
individual, greater restraint of police officers through the warrant
requirement may be deemed necessary.\48\ On the other hand, the Court's
solicitude for law enforcement objectives may tilt the balance in the
other direction.
\39\Justice Harlan's opinion has been much relied upon. E.g.,
Terry v. Ohio, 392 U.S. 1, 19 (1968); Rakas v. Illinois, 439 U.S. 128,
143-144 n.12 (1978); Smith v. Maryland, 442 U.S. 735, 740-41 (1979);
United States v. Salvucci, 448 U.S. 83, 91-92 (1980); Rawlings v.
Kentucky, 448 U.S. 98, 105-06 (1980).
\40\E.g., Alderman v. United States, 394 U.S. 165 (1969) (home
owner could object to electronic surveillance of conversations emanating
from his home, even though he was not party to the conversations).
\41\E.g., Rakas v. Illinois, 439 U.S. 128 (1978) (4-1-4
decision: passengers in automobile who own neither the car nor the
property seized had no legitimate expectation of privacy in areas
searched).
\42\United States v. White, 401 U.S. 745, 786 (1971). See Smith
v. Maryland, 442 U.S. 735, 740 n.5 (1979) (government could not
condition ``subjective expectations'' by, say, announcing that
henceforth all homes would be subject to warrantless entry, and thus
destroy the ``legitimate expectation of privacy'').
\43\Rakas v. Illinois, 439 U.S. 128, 144 n.12 (1978).
\44\E.g., Alderman v. United States, 394 U.S. 165 (1969); Mincey
v. Arizona, 437 U.S. 385 (1978); Payton v. New York, 445 U.S. 573
(1980).
\45\E.g., United States v. Ross, 456 U.S. 798 (1982). See also
Donovan v. Dewey, 452 U.S. 594 (1981) (commercial premises); Maryland v.
Macon, 472 U.S. 463 (1985) (no legitimate expectation of privacy in
denying to undercover officers allegedly obscene materials offered to
public in bookstore).
\46\E.g., United States v. Chadwick, 433 U.S. 1, 11 (1977); Katz
v. United States, 389 U.S. 347, 352 (1967). But cf. South Dakota v.
Opperman, 428 U.S. 364 (1976) (no legitimate expectation of privacy in
automobile left with doors locked and windows rolled up). In Rawlings v.
Kentucky, 448 U.S. 98 (1980), the fact that defendant had dumped a cache
of drugs into his companion's purse, having known her for only a few
days and knowing others had access to the purse, was taken to establish
that he had no legitimate expectation the purse would be free from
intrusion.
\47\E.g., United States v. Miller, 425 U.S. 435 (1976) (bank
records); Smith v. Maryland, 442 U.S. 735 (1979) (numbers dialed from
one's telephone); Hudson v. Palmer, 468 U.S. 517 (1984) (prison cell);
Illinois v. Andreas, 463 U.S. 765 (1983) (shipping container opened and
inspected by customs agents and resealed and delivered to the
addressee); California v. Greenwood, 486 U.S. 35 (1988) (garbage in
sealed plastic bags left at curb for collection).
\48\United States v. White, 401 U.S. 745, 786-87 (1971) (Justice
Harlan dissenting).
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Application of this balancing test, because of the Court's
weighing in of law enforcement investigative needs\49\ and the Court's
subjective evaluation of privacy needs, has led to the creation of a
two-tier or sliding-tier scale of privacy interests. The privacy test
was originally designed to permit a determination that a Fourth
Amendment protected interest had been invaded.\50\ If it had been, then
ordinarily a warrant was required, subject only to the narrowly defined
exceptions, and the scope of the search under those exceptions was
``strictly tied to and justified by the circumstances which rendered its
initiation permissible.''\51\ But the Court now uses the test to
determine whether the interest invaded is important or persuasive enough
so that a warrant is required to justify it;\52\ if the individual has a
lesser expectation of privacy, then the invasion may be justified,
absent a warrant, by the reasonableness of the intrusion.\53\ Exceptions
to the warrant requirement are no
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longer evaluated solely by the justifications for the exception, e.g.,
exigent circumstances, and the scope of the search is no longer tied to
and limited by the justification for the exception.\54\ The result has
been a considerable expansion, beyond what existed prior to Katz, of the
power of police and other authorities to conduct searches.
\49\E.g., Robbins v. California, 453 U.S. 420, 429, 433-34
(1981) (Justice Powell concurring), quoted approvingly in United States
v. Ross, 456 U.S. 798, 815-16 & n.21 (1982).
\50\Katz v. United States, 389 U. S. 347, 351-52 (1967).
\51\Terry v. Ohio, 392 U.S. 1, 19 (1968).
\52\The prime example is the home, so that for entries either to
search or to arrest, ``the Fourth Amendment has drawn a firm line at the
entrance to the house. Absent exigent circumstances, that threshold may
not reasonably be crossed without a warrant.'' Payton v. New York, 445
U.S. 573, 590 (1980); Steagald v. United States, 451 U.S. 204, 212
(1981). And see Mincey v. Arizona, 437 U.S. 385 (1978).
\53\One has a diminished expectation of privacy in automobiles.
Arkansas v. Sanders, 442 U.S. 753, 761 (1979) (collecting cases); United
States v. Ross, 456 U.S. 798, 804-09 (1982). A person's expectation of
privacy in personal luggage and other closed containers is substantially
greater than in an automobile, United States v. Chadwick, 433 U.S. 1, 13
(1977); Arkansas v. Sanders, 442 U.S. 753 (1979), although if the
luggage or container is found in an automobile as to which there exists
probable cause to search, the legitimate expectancy diminishes
accordingly. United States v. Ross, supra. There is also a diminished
expectation of privacy in a mobile home parked in a parking lot and
licensed for vehicular travel. California v. Carney, 471 U.S. 386 (1985)
(leaving open the question of whether the automobile exception also
applies to a ``mobile'' home being used as a residence and not adapted
for immediate vehicular use).
\54\E.g., Texas v. White, 423 U.S. 67 (1975) (if probable cause
to search automobile existed at scene, it can be removed to station and
searched without warrant); United States v. Robinson, 414 U.S. 218
(1973) (once an arrest has been validly made, search pursuant thereto is
so minimally intrusive in addition that scope of search is not limited
by necessity of security of officer); United States v. Edwards, 415 U.S.
800 (1974) (incarcerated suspect; officers need no warrant to take his
clothes for test because little additional intrusion). But see Ybarra v.
Illinois, 444 U.S. 85 (1979) (officers on premises to execute search
warrant of premises may not without more search persons found on
premises).
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Arrests and Other Detentions.--That the Fourth Amendment was
intended to protect against arbitrary arrests as well as against
unreasonable searches was early assumed by Chief Justice Marshall\55\
and is now established law.\56\ At the common law, it was proper to
arrest one who had committed a breach of the peace or a felony without a
warrant,\57\ and this history is reflected in the fact that the Fourth
Amendment is satisfied if the arrest is made in a public place on
probable cause, regardless of whether a warrant has been obtained.\58\
However, in order to effectuate an arrest in the home, absent consent or
exigent circumstances, police officers must have a warrant.\59\ The
Fourth Amendment applies to ``seizures'' and it is not necessary that a
detention be a formal arrest in order to bring to bear the requirements
of warrants or probable cause in instances in which warrants may be
forgone.\60\ Some
[[Page 1210]]
objective justification must be shown to validate all seizures of the
person, including seizures that involve only a brief detention short of
arrest, although the nature of the detention will determine whether
probable cause or some reasonable and articulable suspicion is
necessary.\61\
\55\Ex parte Burford, 7 U.S. (3 Cr.) 448 (1806).
\56\Giordenello v. United States, 357 U.S. 480, 485-86 (1958);
United States v. Watson, 423 U.S. 411, 416-18 (1976); Payton v. New
York, 445 U.S. 573, 583-86 (1980); Steagald v. United States, 451 U.S.
204, 211-13 (1981).
\57\1 J. Stephen, A History of the Criminal Law of England 193
(1883).
\58\United States v. Watson, 423 U.S. 411 (1976). See also
United States v. Santana, 427 U.S. 38 (1976) (sustaining warrantless
arrest of suspect in her home when she was initially approached in her
doorway and then retreated into house). However, a suspect arrested on
probable cause but without a warrant is entitled to a prompt,
nonadversary hearing before a magistrate under procedures designed to
provide a fair and reliable determination of probable cause in order to
keep the arrestee in custody. Gerstein v. Pugh, 420 U.S. 103 (1975).
\59\Payton v. New York, 445 U.S. 573 (1980) (voiding state law
authorizing police to enter private residence without a warrant to make
an arrest); Steagald v. United States, 451 U.S. 204 (1981) (officers
with arrest warrant for A entered B's home without search warrant and
discovered incriminating evidence; violated Fourth Amendment in absence
of warrant to search the home); Hayes v. Florida, 470 U.S. 811 (1985)
(officers went to suspect's home and took him to police station for
fingerprinting).
\60\United States v. Mendenhall, 446 U.S. 544, 554 (1980)
(opinion of Justice Stewart) (``[A] person has been `seized' within the
meaning of the Fourth Amendment only if, in view of all the
circumstances surrounding the incident, a reasonable person would have
believed that he was not free to leave''). See also Reid v. Georgia, 448
U.S. 438 (1980); United States v. Brignoni-Ponce, 422 U.S. 873, 878
(1975); Terry v. Ohio, 392 U.S. 1, 16-19 (1968). Apprehension by the use
of deadly force is a seizure subject to the Fourth Amendment's
reasonableness requirement. See, e.g., Tennessee v. Garner, 471 U.S. 1
(1985) (police officer's fatal shooting of a fleeing suspect); Brower v.
County of Inyo, 489 U.S. 593 (1989) (police roadblock designed to end
car chase with fatal crash).
\61\Adams v. Williams, 407 U.S. 143, 146-49 (1972); Delaware v.
Prouse, 440 U.S. 648, 661 (1979); Brown v. Texas, 443 U.S. 47, 51
(1979); Reid v. Georgia, 448 U.S. 438, 440 (1980); Michigan v. Summers,
452 U.S. 692 (1981).
---------------------------------------------------------------------------
Until relatively recently, the legality of arrests was seldom
litigated in the Supreme Court because of the rule that a person
detained pursuant to an arbitrary seizure--unlike evidence obtained as a
result of an unlawful search--remains subject to custody and
presentation to court.\62\ But the application of self-incrimination and
other exclusionary rules to the States and the heightening of their
scope in state and federal cases alike brought forth the rule that
verbal evidence, confessions, and other admissions, like all derivative
evidence obtained as a result of unlawful seizures, could be
excluded.\63\ Thus, a confession made by one illegally in custody must
be suppressed, unless the causal connection between the illegal arrest
and the confession had become so attenuated that the latter should not
be deemed ``tainted'' by the former.\64\ Similarly, fingerprints and
other physical evidence obtained as a result of an unlawful arrest must
be suppressed.\65\
\62\Ker v. Illinois, 119 U.S. 436, 440 (1886); see also Albrecht
v. United States, 273 U.S. 1 (1927); Frisbie v. Collins, 342 U.S. 519
(1952).
\63\Wong Sun v. United States, 371 U.S. 471 (1963). Such
evidence is the ``fruit of the poisonous tree,'' Nardone v. United
States, 308 U.S. 338, 341 (1939), that is, evidence derived from the
original illegality. Previously, if confessions were voluntary for
purposes of the self-incrimination clause, they were admissible
notwithstanding any prior official illegality. Colombe v. Connecticut,
367 U.S. 568 (1961).
\64\Although there is a presumption that the illegal arrest is
the cause of the subsequent confession, the presumption is rebuttable by
a showing that the confession is the result of ``an intervening . . .
act of free will.'' Wong Sun v. United States, 371 U.S. 471, 486 (1963).
The factors used to determine whether the taint has been dissipated are
the time between the illegal arrest and the confession, whether there
were intervening circumstances (such as consultation with others,
Miranda warnings, etc.), and the degree of flagrancy and purposefulness
of the official conduct. Brown v. Illinois, 422 U.S. 590 (1975) (Miranda
warnings alone insufficient); Dunaway v. New York, 442 U.S. 200 (1979);
Taylor v. Alabama, 457 U.S. 687 (1982). In Johnson v. Louisiana, 406
U.S. 356 (1972), the fact that the suspect had been taken before a
magistrate who advised him of his rights and set bail, after which he
confessed, established a sufficient intervening circumstance.
\65\Davis v. Mississippi, 394 U.S. 721 (1969); Taylor v.
Alabama, 457 U.S. 687 (1982). In United States v. Crews, 445 U.S. 463
(1980), the Court, unanimously but for a variety of reasons, held proper
the identification in court of a defendant, who had been wrongly
arrested without probable cause, by the crime victim. The court
identification was not tainted by either the arrest or the subsequent
in-custody identification. See also Hayes v. Florida, 470 U.S. 811, 815
(1985), suggesting in dictum that a ``narrowly circumscribed procedure
for fingerprinting detentions on less than probable cause'' may be
permissible.
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[[Page 1211]]
Searches and Inspections in Noncriminal Cases.--Certain early
cases held that the Fourth Amendment was applicable only when a search
was undertaken for criminal investigatory purposes,\66\ and the Supreme
Court until recently employed a reasonableness test for such searches
without requiring either a warrant or probable cause in the absence of a
warrant.\67\ But in 1967, the Court held in two cases that
administrative inspections to detect building code violations must be
undertaken pursuant to warrant if the occupant objects.\68\ ``We may
agree that a routine inspection of the physical condition of private
property is a less hostile intrusion than the typical policeman's search
for the fruits and instrumentalities of crime. . . . But we cannot agree
that the Fourth Amendment interests at stake in these inspection cases
are merely `peripheral.' It is surely anomalous to say that the
individual and his private property are fully protected by the Fourth
Amendment only when the individual is suspected of criminal
behavior.''\69\ Certain administrative inspections utilized to enforce
regulatory schemes with regard to such items as alcohol and firearms
are, however, exempt from the Fourth Amendment warrant requirement and
may be authorized simply by statute.\70\
\66\In re Strouse, 23 Fed. Cas. 261 (No. 13,548) (D. Nev. 1871);
In re Meador, 16 Fed. Cas. 1294, 1299 (No. 9375) (N.D. Ga. 1869).
\67\Abel v. United States, 362 U.S. 217 (1960); Frank v.
Maryland, 359 U.S. 360 (1959); Oklahoma Press Pub. Co. v. Walling, 327
U.S. 186 (1946).
\68\Camara v. Municipal Court, 387 U.S. 523 (1967) (home); See
v. City of Seattle, 387 U.S. 541 (1967) (commercial warehouse).
\69\Camara v. Municipal Court, 387 U.S. 523, 530 (1967).
\70\Colonnade Catering Corp. v. United States, 397 U.S. 72
(1970); United States v. Biswell, 406 U.S. 311 (1972). Colonnade,
involving liquor, was based on the long history of close supervision of
the industry. Biswell, involving firearms, introduced factors that were
subsequently to prove significant. Thus, while the statute was of recent
enactment, firearms constituted a pervasively regulated industry, so
that dealers had no reasonable expectation of privacy, inasmuch as the
law provides for regular inspections. Further, warrantless inspections
were needed for effective enforcement of the statute.
---------------------------------------------------------------------------
Camara and See were reaffirmed in Marshall v. Barlow's,
Inc.,\71\ in which the Court held violative of the Fourth Amendment a
provision of the Occupational Safety and Health Act which authorized
federal inspectors to search the work area of any employment facility
covered by the Act for safety hazards and violations of regulations,
without a warrant or other legal process. The liquor
[[Page 1212]]
and firearms exceptions were distinguished on the basis that those
industries had a long tradition of close government supervision, so that
a person in those businesses gave up his privacy expectations. But OSHA
was a relatively recent statute and it regulated practically every
business in or affecting interstate commerce; it was not open to a
legislature to extend regulation and then follow it with warrantless
inspections. Additionally, OSHA inspectors had unbounded discretion in
choosing which businesses to inspect and when to do so, leaving
businesses at the mercy of possibly arbitrary actions and certainly with
no assurances as to limitation on scope and standards of inspections.
Further, warrantless inspections were not necessary to serve an
important governmental interest, inasmuch as most businesses would
consent to inspection and it was not inconvenient to require OSHA to
resort to an administrative warrant in order to inspect sites where
consent was refused.\72\
\71\436 U.S. 307 (1978). Dissenting, Justice Stevens, with
Justices Rehnquist and Blackmun, argued that not the warrant clause but
the reasonableness clause should govern administrative inspections. Id.
at 325.
\72\Administrative warrants issued on the basis of less than
probable cause but only on a showing that a specific business had been
chosen for inspection on the basis of a general administrative plan
would suffice. Even without a necessity for probable cause, the
requirement would assure the interposition of a neutral officer to
establish that the inspection was reasonable and was properly
authorized. Id. at 321, 323. The dissenters objected that the warrant
clause was being constitutionally diluted. Id. at 325. Administrative
warrants were approved also in Camara v. Municipal Court, 387 U.S. 523,
538 (1967). Previously, one of the reasons given for finding
administrative and noncriminal inspections not covered by the Fourth
Amendment was the fact that the warrant clause would be as rigorously
applied to them as to criminal searches and seizures. Frank v. Maryland,
359 U.S. 360, 373 (1959). See also Almeida-Sanchez v. United States, 413
U.S. 266, 275 (1973) (Justice Powell concurring) (suggesting a similar
administrative warrant procedure empowering police and immigration
officers to conduct roving searches of automobiles in areas near the
Nation's borders); id. at 270 n.3 (indicating that majority Jusitces
were divided on the validity of such area search warrants); id. at 288
(dissenting Justice White indicating approval); United States v.
Martinez-Fuerte, 428 U.S. 543, 547 n.2, 562 n.15 (1976).
---------------------------------------------------------------------------
In Donovan v. Dewey,\73\ however, Barlow's was substantially
limited and a new standard emerged permitting extensive governmental
inspection of commercial property,\74\ absent warrants. Under the
Federal Mine Safety and Health Act, governing underground and surface
mines (including stone quarries), federal officers are directed to
inspect underground mines at least four times a year and surface mines
at least twice a year, pursuant to extensive regulations as to standards
of safety. The statute specifically provides for absence of advanced
notice and requires the Secretary of Labor to institute court actions
for injunctive and other relief in
[[Page 1213]]
cases in which inspectors are denied admission. Sustaining the statute,
the Court proclaimed that government had a ``greater latitude'' to
conduct warrantless inspections of commercial property than of homes,
because of ``the fact that the expectation of privacy that the owner of
commercial property enjoys in such property differs significantly from
the sanctity accorded an individual's home, and that this privacy
interest may, in certain circumstances, be adequately protected by
regulatory schemes authorizing warrantless inspections.''\75\
\73\452 U.S. 594 (1981).
\74\There is no suggestion that warrantless inspections of homes
is broadened. Id. at 598, or that warrantless entry under exigent
circumstances is curtailed. See, e.g., Michigan v. Tyler, 436 U.S. 499
(1978) (no warrant required for entry by firefighters to fight fire;
once there, firefighters may remain for reasonable time to investigate
the cause of the fire).
\75\Donovan v. Dewey, 452 U.S. 594, 598-99 (1981).
---------------------------------------------------------------------------
Dewey was distinguished from Barlow's in several ways. First,
Dewey involved a single industry, unlike the broad coverage in Barlow's.
Second, the OSHA statute gave minimal direction to inspectors as to
time, scope, and frequency of inspections, while FMSHA specified a
regular number of inspections pursuant to standards. Third, deference
was due Congress' determination that unannounced inspections were
necessary if the safety laws were to be effectively enforced. Fourth,
FMSHA provided businesses the opportunity to contest the search by
resisting in the civil proceeding the Secretary had to bring if consent
was denied.\76\ The standard of a long tradition of government
supervision permitting warrantless inspections was dispensed with,
because it would lead to ``absurd results,'' in that new and emerging
industries posing great hazards would escape regulation.\77\ Dewey
suggests, therefore, that warrantless inspections of commercial
establishments are permissible so long as the legislature carefully
drafts its statute.
\76\Id. at 596-97, 604-05. Pursuant to the statute, however, the
Secretary has promulgated regulations providing for the assessment of
civil penalties for denial of entry and Dewey had been assessed a
penalty of $1,000. Id. at 597 n.3. It was also true in Barlow's that the
Government resorted to civil process upon refusal to admit. 436 U.S. at
317 & n.12.
\77\Donovan v. Dewey, 452 U.S. 594, 606 (1981). Duration of
regulation will now be a factor in assessing the legitimate expectation
of privacy of a business. Ibid. Accord, New York v. Burger, 482 U.S. 691
(1987) (although duration of regulation of vehicle dismantling was
relatively brief, history of regulation of junk business generally was
lengthy, and current regulation of dismantling was extensive).
---------------------------------------------------------------------------
Dewey was applied in New York v. Burger\78\ to inspection of
automobile junkyards and vehicle dismantling operations, a situation
where there is considerable overlap between administrative and penal
objectives. Applying the Dewey three-part test, the Court concluded that
New York has a substantial interest in stemming the tide of automobile
thefts, that regulation of vehicle dismantling reasonably serves that
interest, and that statutory safeguards provided adequate substitute for
a warrant requirement. The Court rejected the suggestion that the
warrantless inspection provisions
[[Page 1214]]
were designed as an expedient means of enforcing the penal laws, and
instead saw narrower, valid regulatory purposes to be served: e.g.,
establishing a system for tracking stolen automobiles and parts, and
enhancing the ability of legitimate businesses to compete. ``[A] State
can address a major social problem both by way of an administrative
scheme and through penal sanctions,'' the Court declared; in such
circumstances warrantless administrative searches are permissible in
spite of the fact that evidence of criminal activity may well be
uncovered in the process.\79\
\78\482 U.S. 691 (1987).
\79\482 U.S. at 712 (emphasis original).
---------------------------------------------------------------------------
In other contexts, the Court has also elaborated the
constitutional requirements affecting administrative inspections and
searches. Thus, in Michigan v. Tyler,\80\ it subdivided the process by
which an investigation of the cause of a fire may be conducted. Entry to
fight the fire is, of course, an exception based on exigent
circumstances, and no warrant or consent is needed; firemen on the scene
may seize evidence relating to the cause under the plain view doctrine.
Additional entries to investigate the cause of the fire must be made
pursuant to warrant procedures governing administrative searches.
Evidence of arson discovered in the course of such an administrative
inspection is admissible at trial, but if the investigator finds
probable cause to believe that arson has occurred and requires further
access to gather evidence for a possible prosecution, he must obtain a
criminal search warrant.\81\
\80\436 U.S. 499 (1978).
\81\The Court also held that, after the fire was extinguished,
if fire investigators were unable to proceed at the moment, because of
dark, steam, and smoke, it was proper for them to leave and return at
daylight without any necessity of complying with its mandate for
administrative or criminal warrants. Id. at 510-11. But cf. Michigan v.
Clifford, 464 U.S. 287 (1984) (no such justification for search of
private residence begun at 1:30 p.m. when fire had been extinguished at
7 a.m.).
---------------------------------------------------------------------------
One curious case has approved a system of ``home visits'' by
welfare caseworkers, in which the recipients are required to admit the
worker or lose eligibility for benefits.\82\
\82\Wyman v. James, 400 U.S. 309 (1971). It is not clear what
rationale the majority utilized. It appears to have proceeded on the
assumption that a ``home visit'' was not a search and that the Fourth
Amendment does not apply when criminal prosecution is not threatened.
Neither premise is valid under Camara and its progeny, although Camara
preceded Wyman. Presumably, the case would today be analyzed under the
expectation of privacy/need/structural protection theory of the more
recent cases.
---------------------------------------------------------------------------
In addition, there are now a number of situations, some of them
analogous to administrative searches, where ```special needs' beyond
normal law enforcement . . . justify departures from the usual warrant
and probable cause requirements.''\83\ In one of these
[[Page 1215]]
cases the Court, without acknowledging the magnitude of the leap from
one context to another, has taken the Dewey/Burger rationale--developed
to justify warrantless searches of business establishments--and applied
it to justify the significant intrusion into personal privacy
represented by urinalysis drug testing. Because of the history of
pervasive regulation of the railroad industry, the Court reasoned,
railroad employees have a diminished expectation of privacy that makes
mandatory urinalysis less intrusive and more reasonable.\84\
\83\Griffin v. Wisconsin, 483 U.S. 868, 873 (1987)
(administrative needs of probation system justify warrantless searches
of probationers' homes on less than probable cause); Hudson v. Palmer,
468 U.S. 517, 526 (1984) (no Fourth Amendment protection from search of
prison cell); New Jersey v. T.L.O., 469 U.S. 325 (1985) (simple
reasonableness standard governs searches of students' persons and
effects by public school authorities); O'Connor v. Ortega, 480 U.S. 709
(1987) (reasonableness test for work-related searches of employees'
offices by government employer); Skinner v. Railway Labor Executives'
Ass'n, 489 U.S. 602 (1989) (neither probable cause nor individualized
suspicion is necessary for mandatory drug testing of railway employees
involved in accidents or safety violations). All of these cases are
discussed infra under the general heading ``Valid Searches and Seizures
Without Warrants.''
\84\Skinner, supra n.83, 489 U.S. at 627.
---------------------------------------------------------------------------
With respect to automobiles, the holdings are mixed. Random
stops of automobiles to check drivers' licenses, vehicle registrations,
and safety conditions were condemned as too intrusive; the degree to
which random stops would advance the legitimate governmental interests
involved did not outweigh the individual's legitimate expectations of
privacy.\85\ On the other hand, in South Dakota v. Opperman,\86\ the
Court sustained the admission of evidence found when police impounded an
automobile from a public street for multiple parking violations and
entered the car to secure and inventory valuables for safekeeping.
Marijuana was discovered in the glove compartment.
\85\Delaware v. Prouse, 440 U.S. 648 (1979). Standards applied
in this case had been developed in the contexts of automobile stops at
fixed points or by roving patrols in border situations. Almeida-Sanchez
v. United States, 413 U.S. 266 (1973); United States v. Brignoni-Ponce,
422 U.S. 873 (1975); United States v. Ortiz, 422 U.S. 891 (1975); United
States v. Martinez-Fuerte, 428 U.S. 543 (1976).
\86\428 U.S. 364 (1976). See also Cady v. Dombrowski, 413 U.S.
433 (1973) (sustaining admission of criminal evidence found when police
conducted a warrantless search of an out-of-state policeman's automobile
following an accident, in order to find and safeguard his service
revolver). The Court in both cases emphasized the reduced expectation of
privacy in automobiles and the noncriminal purposes of the searches.
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