Fourth Amendment--Search and Seizure
FOURTH AMENDMENT
SEARCH AND SEIZURE
Valid Searches and Seizures Without Warrants
While the Supreme Court stresses the importance of warrants and
has repeatedly referred to searches without warrants as
``exceptional,''\1\ it appears that the greater number of searches, as
well as the vast number of arrests, take place without warrants. The
Reporters of the American Law Institute Project on a Model Code of Pre-
Arraignment Procedure have noted ``their conviction that, as a practical
matter, searches without warrant and incidental to arrest have been up
to this time, and may remain, of greater practical importance'' than
searches pursuant to warrants. ``[T]he evidence on hand . . . compel[s]
the conclusion that searches under warrants have played a comparatively
minor part in law enforcement, except in connection with narcotics and
gambling laws.''\2\
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Nevertheless, the Court frequently asserts that ``the most basic
constitutional rule in this area is that `searches conducted outside the
judicial process, without prior approval by judge or magistrate, are per
se unreasonable under the Fourth Amendment--subject only to a few
specially established and well-delineated exceptions.''\3\ The
exceptions are said to be ``jealously and carefully drawn,''\4\ and
there must be ``a showing by those who seek exemption . . . that the
exigencies of the situation made that course imperative.''\5\ While the
record does indicate an effort to categorize the exceptions, the number
and breadth of those exceptions have been growing.
\1\E.g., Johnson v. United States, 333 U.S. 10, 14 (1948);
McDonald v. United States, 335 U.S. 451, 453 (1948); Camara v. Municipal
Court, 387 U.S. 523, 528-29 (1967); G.M. Leasing Corp. v. United States,
429 U.S. 338, 352-53, 355 (1977).
\2\American Law Institute, A Model Code of Pre-Arraignment
Procedure, Tent. Draft No. 3 (Philadelphia: 1970), xix.
\3\Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971)
(quoting Katz v. United States, 389 U.S. 347, 357 (1967)); G.M. Leasing
Corp. v. United States, 429 U.S. 338, 352-53, 358 (1977).
\4\Jones v. United States, 357 U.S. 493, 499 (1958).
\5\McDonald v. United States, 335 U.S. 451, 456 (1948). In
general, with regard to exceptions to the warrant clause, conduct must
be tested by the reasonableness standard enunciated by the first clause
of the Amendment, Terry v. Ohio, 392 U.S. 1, 20 (1968), and the Court's
development of its privacy expectation tests, supra, pp.1206-09,
substantially changed the content of that standard.
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Detention Short of Arrest: Stop-and-Frisk.--Arrests are subject
to the requirements of the Fourth Amendment, but the courts have
followed the common law in upholding the right of police officers to
take a person into custody without a warrant if they have probable cause
to believe that the person to be arrested has committed a felony or has
committed a misdemeanor in their presence.\6\ The probable cause is, of
course, the same standard required to be met in the issuance of an
arrest warrant, and must be satisfied by conditions existing prior to
the policeman's stop, what is discovered thereafter not sufficing to
establish retroactively reasonable cause.\7\ There are, however,
instances when a policeman's suspicions will have been aroused by
someone's conduct or manner, but probable cause for placing such a
person under arrest will be lacking.\8\ In Terry v. Ohio,\9\ the Court
almost unanimously approved an on-the-street investigation by a police
officer which involved ``patting down'' the subject of the investigation
for weapons.
\6\United States v. Watson, 423 U.S. 411 (1976). See supra,
p.1209.
\7\Henry v. United States, 361 U.S. 98 (1959); Johnson v. United
States, 333 U.S. 10, 16-17 (1948); Sibron v. New York, 392 U.S. 40, 62-
63 (1968).
\8\``The police may not arrest upon mere suspicion but only on
`probable cause.''' Mallory v. United States, 354 U.S. 449, 454 (1957).
\9\392 U.S. 1 (1968). Only Justice Douglas dissented. Id. at 35.
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The case arose when a police officer observed three individuals
engaging in conduct which appeared to him, on the basis of training and
experience, to be the ``casing'' of a store for a likely armed robbery;
upon approaching the men, identifying himself, and not receiving prompt
identification, the officer seized one of the men,
[[Page 1230]]
patted the exterior of his clothes, and discovered a gun. Chief Justice
Warren for the Court wrote that the Fourth Amendment was applicable to
the situation, applicable ``whenever a police officer accosts an
individual and restrains his freedom to walk away.''\10\ Since the
warrant clause is necessarily and practically of no application to the
type of on-the-street encounter present in Terry, the Chief Justice
continued, the question was whether the policeman's actions were
reasonable. The test of reasonableness in this sort of situation is
whether the police officer can point to ``specific and articulable facts
which, taken together with rational inferences from those facts,'' would
lead a neutral magistrate on review to conclude that a man of reasonable
caution would be warranted in believing that possible criminal behavior
was at hand and that both an investigative stop and a ``frisk'' was
required.\11\ Inasmuch as the conduct witnessed by the policeman
reasonably led him to believe that an armed robbery was in prospect, he
was as reasonably led to believe that the men were armed and probably
dangerous and that his safety required a ``frisk.'' Because the object
of the ``frisk'' is the discovery of dangerous weapons, ``it must
therefore be confined in scope to an intrusion reasonably designed to
discover guns, knives, clubs, or other hidden instruments for the
assault of the police officer.''\12\
\10\Id. at 16. See id. at 16-20.
\11\Id. at 20, 21, 22.
\12\Id. at 23-27, 29. See also Sibron v. New York, 392 U.S. 40
(1968) (after policeman observed defendant speak with several known
narcotics addicts, he approached him and placed his hand in defendant's
pocket, thus discovering narcotics; impermissible, because he lacked
reasonable basis for frisk and in any event his search exceeded
permissible scope of weapons frisk); Adams v. Williams, 407 U.S. 143
(1972) (acting on tip that defendant was sitting in his car with
narcotics and firearm, police approached, asked defendant to step out,
and initiated frisk and discovered weapon when he merely rolled window
down; justifiable); Pennsylvania v. Mimms, 434 U.S. 106 (1977) (after
validly stopping car, officer required defendant to get out of car,
observed bulge under his jacket, and frisked him and seized weapon;
while officer did not suspect driver of crime or have an articulable
basis for safety fears, safety considerations justified his requiring
driver to leave car).
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Terry did not pass on a host of problems, including the grounds
that could permissibly lead an officer to momentarily stop a person on
the street or elsewhere in order to ask questions rather than frisk for
weapons, the right of the stopped individual to refuse to cooperate, and
the permissible response of the police to that refusal. Following that
decision, the standard for stops for investigative purposes evolved into
one of ``reasonable suspicion of criminal activity.'' That test permits
some stops and questioning without probable cause in order to allow
police officers to explore the foun
[[Page 1231]]
dations of their suspicions.\13\ While not elaborating a set of rules
governing the application of the tests, the Court was initially
restrictive in recognizing permissible bases for reasonable
suspicion.\14\ Extensive instrusions on individual privacy, e.g.,
transportation to the stationhouse for interrogation and fingerprinting,
were invalidated in the absence of probable cause.\15\ More recently,
however, the Court has taken less restrictive approaches.\16\
\13\In United States v. Cortez, 449 U.S. 411 (1981), a unanimous
Court attempted to capture the ``elusive concept'' of the basis for
permitting a stop. Officers must have ``articulable reasons'' or
``founded suspicions,'' derived from the totality of the circumstances.
``Based upon that whole picture the detaining officer must have a
particularized and objective basis for suspecting the particular person
stopped of criminal activity.'' Id. at 417-18. The inquiry is thus quite
fact-specific. In the anonymous tip context, the same basic approach
requiring some corroboration applies regardless of whether the standard
is probable cause or reasonable suspicion; the difference is that less
information, or less reliable information, can satisfy the lower
standard. Alabama v. White, 496 U.S. 325 (1990).
\14\E.g., Brown v. Texas, 443 U.S. 47 (1979) (individual's
presence in high crime area gave officer no articulable basis to suspect
him of crime); Delaware v. Prouse, 440 U.S. 648 (1979) (reasonable
suspicion of a license or registration violation is necessary to
authorize automobile stop; random stops impermissible); United States v.
Brignoni-Ponce, 422 U.S. 873 (1975) (officers could not justify random
automobile stop solely on basis of Mexican appearance of occupants);
Reid v. Georgia, 448 U.S. 438 (1980) (no reasonable suspicion for
airport stop based on appearance that suspect and another passenger were
trying to conceal the fact that they were travelling together). But cf.
United States v. Martinez-Fuerte, 428 U.S. 543 (1976) (halting vehicles
at fixed checkpoints to question occupants as to citizenship and
immigration status permissible, even if officers should act on basis of
appearance of occupants).
\15\Davis v. Mississippi, 394 U.S. 721 (1969); Dunaway v. New
York, 442 U.S. 200 (1979).
\16\See, e.g., United States v. Hensley, 469 U.S. 221 (1985)
(reasonable suspicion to stop a motorist may be based on a ``wanted
flyer'' as long as issuance of the flyer has been based on reasonable
suspicion); United States v. Sokolow, 490 U.S. 1, (1989) (airport stop
based on drug courier profile may rely on a combination of factors that
individually may be ``quite consistent with innocent travel'').
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It took the Court some time to settle on a test for when a
``seizure'' has occurred, and the Court has recently modified its
approach. The issue is of some importance, since it is at this point
that Fourth Amendment protections take hold. The Terry Court recognized
in dictum that ``not all personal intercourse between policemen and
citizens involves `seizures' of persons,'' and suggested that ``[o]nly
when the officer, by means of physical force or show of authority, has
in some way restrained the liberty of a citizen may we conclude that a
`seizure' has occurred.''\17\ Years later Justice Stewart proposed a
similar standard, that a person has been seized ``only if, in view of
all of the circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave.''\18\ This reasonable
perception standard was subse
[[Page 1232]]
quently endorsed by a majority of Justices,\19\ and was applied in
several cases in which admissibility of evidence turned on whether a
seizure of the person not justified by probable cause or reasonable
suspicion had occurred prior to the uncovering of the evidence. No
seizure occurred, for example, when INS agents seeking to identify
illegal aliens conducted work force surveys within a garment factory;
while some agents were positioned at exits, others systematically moved
through the factory and questioned employees.\20\ This brief
questioning, even with blocked exits, amounted to ``classic consensual
encounters rather than Fourth Amendment seizures.''\21\ The Court also
ruled that no seizure had occurred when police in a squad car drove
alongside a suspect who had turned and run down the sidewalk when he saw
the squad car approach. Under the circumstances (no siren, flashing
lights, display of a weapon, or blocking of the suspect's path), the
Court concluded, the police conduct ``would not have communicated to the
reasonable person an attempt to capture or otherwise intrude upon
[one's] freedom of movement.''\22\
\17\392 U.S. at 19, n.16.
\18\United States v. Mendenhall, 446 U.S. 544, 554 (1980).
\19\See, e.g., Florida v. Royer, 460 U.S. 491 (1983), in which
there was no opinion of the Court, but in which the test was used by the
plurality of four, id. at 502, and also endorsed by dissenting Justice
Blackmun, id. at 514.
\20\INS v. Delgado, 466 U.S. 210 (1984).
\21\Id. at 221.
\22\Michigan v. Chesternut, 486 U.S. 567, 575 (1988).
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Soon thereafter, however, the Court departed from the Mendenhall
reasonable perception standard and adopted a more formalistic approach,
holding that an actual chase with evident intent to capture did not
amount to a ``seizure'' because the suspect did not comply with the
officer's order to halt. Mendenhall, said the Court in California v.
Hodari D., stated a ``necessary'' but not a ``sufficient'' condition for
a seizure of the person through show of authority.\23\ A Fourth
Amendment ``seizure'' of the person, the Court determined, is the same
as a common law arrest; there must be either application of physical
force (or the laying on of hands), or submission to the assertion of
authority.\24\ Indications are, however, that Hodari D. does not signal
the end of the reasonable perception standard, but merely carves an
exception applicable to chases and perhaps other encounters between
suspects and police.
\23\499 U.S. 621, 628 (1991). As in Michigan v. Chesternut,
supra n.22, the suspect dropped incriminating evidence while being
chased.
\24\Adherence to this approach would effectively nullify the
Court's earlier position that Fourth Amendment protections extend to
``seizures that involve only a brief detention short of traditional
arrest.'' United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975),
quoted in INS v. Delgado, 466 U.S., 210, 215 (1984).
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Later in the same term the Court ruled that the Mendenhall
``free-to-leave'' inquiry was misplaced in the context of a police
[[Page 1233]]
sweep of a bus, but that a modified reasonable perception approach still
governed.\25\ In conducting a bus sweep, aimed at detecting illegal
drugs and their couriers, police officers typically board a bus during a
stopover at a terminal and ask to inspect tickets, identification, and
sometimes luggage of selected passengers. The Court did not focus on
whether an ``arrest'' had taken place, as adherence to the Hodari D.
approach would have required, but instead suggested that the appropriate
inquiry is ``whether a reasonable person would feel free to decline the
officers' requests or otherwise terminate the encounter.''\26\ ``When
the person is seated on a bus and has no desire to leave,'' the Court
explained, ``the degree to which a reasonable person would feel that he
or she could leave is not an accurate measure of the coercive effect of
the encounter.''\27\
\25\Florida v. Bostick, (1991).
\26\Id. at 2387.
\27\Id. The Court asserted that the case was ``analytically
indistinguishable from Delgado. Like the workers in that case [subjected
to the INS ``survey'' at their workplace], Bostick's freedom of movement
was restricted by a factor independent of police conduct--i.e., by his
being a passenger on a bus.'' Id.
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A Terry search need not be limited to a stop and frisk of the
person, but may extend as well to a protective search of the passenger
compartment of a car if an officer possesses ``a reasonable belief,
based on specific and articulable facts . . . that the suspect is
dangerous and . . . may gain immediate control of weapons.''\28\ How
lengthy a Terry detention may be varies with the circumstances. In
approving a 20-minute detention of a driver made necessary by the
driver's own evasion of drug agents and a state police decision to hold
the driver until the agents could arrive on the scene, the Court
indicated that it is ``appropriate to examine whether the police
diligently pursued a means of investigation that was likely to confirm
or dispel their suspicions quickly, during which time it was necessary
to detain the defendant.''\29\
\28\Michigan v. Long, 463 U.S. 1032 (1983) (suspect appeared to
be under the influence of drugs, officer spied hunting knife exposed on
floor of front seat and searched remainder of passenger compartment).
Similar reasoning has been applied to uphold a ``protective sweep'' of a
home in which an arrest is made if arresting officers have a reasonable
belief that the area swept may harbor another individual posing a danger
to the officers or to others. Maryland v. Buie, 494 U.S. 325 (1990).
\29\United States v. Sharpe, 470 U.S. 675, 686 (1985). A more
relaxed standard has been applied to detention of travelers at the
border, the Court testing the reasonableness in terms of ``the period of
time necessary to either verify or dispel the suspicion.'' United States
v. Montoya de Hernandez, 473 U.S. 531, 544 (1985) (approving warrantless
detention for more than 24 hours of traveler suspected of alimentary
canal drug smuggling).
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Similar principles govern detention of luggage at airports in
order to detect the presence of drugs; Terry ``limitations applicable to
investigative detentions of the person should define the permissible
scope of an investigative detention of the person's luggage on
[[Page 1234]]
less than probable cause.''\30\ The general rule is that ``when an
officer's observations lead him reasonably to believe that a traveler is
carrying luggage that contains narcotics, the principles of Terry . . .
would permit the officer to detain the luggage briefly to investigate
the circumstances that aroused his suspicion, provided that the
investigative detention is properly limited in scope.''\31\ Seizure of
luggage for an expeditious ``canine sniff'' by a dog trained to detect
narcotics can satisfy this test even though seizure of luggage is in
effect detention of the traveler, since the procedure results in
``limited disclosure,'' impinges only slightly on a traveler's privacy
interest in the contents of personal luggage, and does not constitute a
search within the meaning of the Fourth Amendment.\32\ By contrast,
taking a suspect to an interrogation room on grounds short of probable
cause, retaining his air ticket, and retrieving his luggage without his
permission taints consent given under such circumstances to open the
luggage, since by then the detention had exceeded the bounds of a
permissible Terry investigative stop and amounted to an invalid
arrest.\33\ But the same requirements for brevity of detention and
limited scope of investigation are apparently inapplicable to border
searches of international travelers, the Court having approved a 24-hour
detention of a traveler suspected of smuggling drugs in her alimentary
canal.\34\
\30\United States v. Place, 462 U.S. 696, 709 (1983).
\31\Id. at 706.
\32\462 U.S. at 707. However, the search in Place was not
expeditious, and hence exceeded Fourth Amendment bounds, when agents
took 90 minutes to transport luggage to another airport for
administration of the canine sniff.
\33\Florida v. Royer, 460 U.S. 491 (1983). On this much the
plurality opinion of Justice White (id. at 503), joined by three other
Justices, and the concurring opinion of Justice Brennan (id. at 509)
were in agreement.
\34\United States v. Montoya de Hernandez, 473 U.S. 531 (1985).
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Search Incident to Arrest.--The common-law rule permitting
searches of the person of an arrestee as an incident to the arrest has
occasioned little controversy in the Court.\35\ The dispute has centered
around the scope of the search. Since it was the stated general rule
that the scope of a warrantless search must be strictly tied to and
justified by the circumstances which rendered its justification
permissible, and since it was the rule that the justification of a
search of the arrestee was to prevent destruction of evidence and to
prevent access to a weapon,\36\ it was argued to the court that a search
of the person of the defendant arrested for a traffic offense, which
discovered heroin in a crumpled cigarette package, was impermissible,
inasmuch as there could have been no
[[Page 1235]]
destructible evidence relating to the offense for which he was arrested
and no weapon could have been concealed in the cigarette package. The
Court rejected this argument, ruling that ``no additional
justification'' is required for a custodial arrest of a suspect based on
probable cause.\37\
\35\Weeks v. United States, 232 U.S. 383, 392 (1914); Carroll v.
United States, 267 U.S. 132, 158 (1925); Agnello v. United States, 269
U.S. 20, 30 (1925).
\36\Terry v. Ohio, 392 U.S. 1, 19 (1968); Chimel v. California,
395 U.S. 752, 762, 763 (1969).
\37\United States v. Robinson, 414 U.S. 218, 235 (1973). See
also id. at 237-38 (Justice Powell concurring). The Court applied the
same rule in Gustafson v. Florida, 414 U.S. 260 (1973), involving a
search of a motorist's person following his custodial arrest for an
offense for which a citation would normally have issued. Unlike the
situation in Robinson, police regulations did not require the Gustafson
officer to take the suspect into custody, nor did a departmental policy
guide the officer as to when to conduct a full search. The Court found
these differences inconsequential, and left for another day the problem
of pretextual arrests in order to obtain basis to search. Soon
thereafter, the Court upheld conduct of a similar search at the place of
detention, even after a time lapse between the arrest and search. United
States v. Edwards, 415 U.S. 800 (1974).
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However, the Justices have long found themselves embroiled in
argument about the scope of the search incident to arrest as it extends
beyond the person to the area in which the person is arrested, most
commonly either his premises or his vehicle. Certain early cases went
both ways on the basis of some fine distinctions,\38\ but in Harris v.
United States,\39\ the Court approved a search of a four-room apartment
pursuant to an arrest under warrant for one crime and in which the
search turned up evidence of another crime. A year later, in Trupiano v.
United States,\40\ a raid on a distillery resulted in the arrest of a
man found on the premises and a seizure of the equipment; the Court
reversed the conviction because the officers had had time to obtain a
search warrant and had not done so. ``A search or seizure without a
warrant as an incident to a lawful arrest has always been considered to
be a strictly limited right. It grows out of the inherent necessities of
the situation at the time of the arrest. But there must be something
more in the way of necessity than merely a lawful arrest.''\41\ This
decision was overruled in United States v. Rabinowitz,\42\ in which
officers arrested defendant in his one-room office pursuant to an arrest
warrant and proceeded to search the room completely. The Court observed
that the issue was not whether the officers had the time and opportunity
to obtain a search warrant but whether the search incident to arrest was
reasonable. Though Rabinowitz referred to searches of the area within
the arrestee's ``immediate control,''\43\ it
[[Page 1236]]
provided no standard by which this area was to be determined, and
extensive searches were permitted under the rule.\44\
\38\Compare Marron v. United States, 275 U.S. 192 (1927), with
Go-Bart Importing Co. v. United States, 282 U.S. 344 (1931), and United
States v. Lefkowitz, 285 U.S. 452 (1932).
\39\331 U.S. 145 (1947).
\40\334 U.S. 699 (1948).
\41\Id. at 708.
\42\339 U.S. 56 (1950).
\43\Id. at 64.
\44\Cf. Chimel v. California, 395 U.S. 752, 764-65 & n.10
(1969). But in Kremen v. United States, 353 U.S. 346 (1957), the Court
held that the seizure of the entire contents of a house and the removal
to F.B.I. offices 200 miles away for examination, pursuant to an arrest
under warrant of one of the persons found in the house, was
unreasonable. In decisions contemporaneous to and subsequent to Chimel,
applying pre-Chimel standards because that case was not retroactive,
Williams v. United States, 401 U.S. 646 (1971), the Court has applied
Rabinowitz somewhat restrictively. See Von Cleef v. New Jersey, 395 U.S.
814 (1969), which followed Kremen; Shipley v. California, 395 U.S. 818
(1969), and Vale v. Louisiana, 399 U.S. 30 (1970) (both involving
arrests outside the house with subsequent searches of the house);
Coolidge v. New Hampshire, 403 U.S. 443, 455-57 (1971). Substantially
extensive searches were, however, approved in Williams v. United States,
401 U.S. 646 (1971), and Hill v. California, 401 U.S. 797 (1971).
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In Chimel v. California,\45\ however, a narrower view was
asserted, the primacy of warrants was again emphasized, and a standard
by which the scope of searches pursuant to arrest could be ascertained
was set out. ``When an arrest is made, it is reasonable for the
arresting officer to search the person arrested in order to remove any
weapons that the latter might seek to use in order to resist arrest or
effect his escape. Otherwise, the officer's safety might well be
endangered, and the arrest itself frustrated. In addition, it is
entirely reasonable for the arresting officer to search for and seize
any evidence on the arrestee's person in order to prevent its
concealment or destruction. And the area into which an arrestee might
reach in order to grab a weapon or evidentiary items must, of course, be
governed by a like rule. A gun on a table or in a drawer in front of one
who is arrested can be as dangerous to the arresting officer as one
concealed in the clothing of the person arrested. There is ample
justification, therefore, for a search of the arrestee's person and the
area `within his immediate control'--construing that phrase to mean the
area from within which he might gain possession of a weapon or
destructible evidence.
\45\395 U.S. 752 (1969).
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``There is no comparable justification, however, for routinely
searching any room other than that in which an arrest occurs--or, for
that matter, for searching through all the desk drawers or other closed
or concealed areas in that room itself. Such searches, in the absence of
well-recognized exceptions, may be made only under the authority of a
search warrant.''\46\
\46\Id. at 762-63.
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Although the viability of Chimel had been in doubt for some time
as the Court refined and applied its analysis of reasonable
[[Page 1237]]
and justifiable expectations of privacy,\47\ it has in some but not all
contexts survived the changed rationale. Thus, in Mincey v. Arizona,\48\
the Court rejected a state effort to create a ``homicide-scene''
exception for a warrantless search of an entire apartment extending over
four days. The occupant had been arrested and removed and it was true,
the Court observed, that a person legally taken into custody has a
lessened right of privacy in his person, but he does not have a lessened
right of privacy in his entire house. And, in United States v.
Chadwick,\49\ emphasizing a person's reasonable expectation of privacy
in his luggage or other baggage, the Court held that, once police have
arrested and immobilized a suspect, validly seized bags are not subject
to search without a warrant.\50\ Police may, however, in the course of
jailing an arrested suspect conduct an inventory search of the
individual's personal effects, including the contents of a shoulder bag,
since ``the scope of a station-house search may in some circumstances be
even greater than those supporting a search immediately following
arrest.''\51\
\47\Supra, pp.1206-09. See, e.g., Coolidge v. New Hampshire, 403
U.S. 443, 492, 493, 510 (1971), in which the four dissenters advocated
the reasonableness argument rejected in Chimel.
\48\437 U.S. 385 (1978). The expectancy distinction is at 391.
\49\433 U.S. 1 (1977). Defendant and his luggage, a footlocker,
had been removed to the police station, where the search took place.
\50\If, on the other hand, a sealed shipping container had
already been opened and resealed during a valid customs inspection, and
officers had maintained surveillance through a ``controlled delivery''
to the suspect, there is no reasonable expectation of privacy in the
contents of the container and officers may search it, upon the arrest of
the suspect, without having obtained a warrant. Illinois v. Andreas, 463
U.S. 765 (1983).
\51\Illinois v. LaFayette, 462 U.S. 640, 645 (1983) (inventory
search) (following South Dakota v. Opperman, 428 U.S. 364 (1976)).
Similarly, an inventory search of an impounded vehicle may include the
contents of a closed container. Colorado v. Bertine, 479 U.S. 367
(1987). Inventory searches of closed containers must, however, be guided
by a police policy containing standardized criteria for exercise of
discretion. Florida v. Wells, 495 U.S. 1 (1990).
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Still purporting to reaffirm Chimel, the Court in New York v.
Belton\52\ held that police officers who had made a valid arrest of the
occupant of a vehicle could make a contemporaneous search of the entire
passenger compartment of the automobile, including containers found
therein. Believing that a fairly simple rule understandable to
authorities in the field was desirable, the Court ruled ``that articles
inside the relatively narrow compass of the passenger compartment of an
automobile are in fact generally, if not inevitably, within `the area
into which an arrestee might reach in order to grab a weapon or
evidentiary ite[m].'''\53\
\52\453 U.S. 454 (1981).
\53\Id. at 460 (quoting Chimel v. California, 395 U.S. 752, 763
(1969)). In this particular instance, Belton had been removed from the
automobile and handcuffed, but the Court wished to create a general rule
removed from the fact-specific nature of any one case. ```Container'
here denotes any object capable of holding another object. It thus
includes closed or open glove compartments, consoles, or other
receptacles located anywhere within the passenger compartment, as well
as luggage, boxes, bags, clothing, and the like. Our holding encompasses
only the interior of the passenger compartment of an automobile and does
not encompass the trunk.'' Id. at 460-61 n.4.
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[[Page 1238]]
Chimel has, however, been qualified by another consideration.
Not only may officers search areas within the arrestee's immediate
control in order to alleviate any threat posed by the arrestee, but they
may extend that search if there may be a threat posed by ``unseen third
parties in the house.'' A ``protective sweep'' of the entire premises
(including an arrestee's home) may be undertaken on less than probable
cause if officers have a ``reasonable belief,'' based on ``articulable
facts,'' that the area to be swept may harbor an individual posing a
danger to those on the arrest scene.\54\
\54\Maryland v. Buie, 494 U.S. 325, 334 (1990). This ``sweep''
is not to be a full-blown, ``top-to-bottom'' search, but only ``a
cursory inspection of those spaces where a person may be found.'' Id. at
335-36.
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Vehicular Searches.--In the early days of the automobile the
Court created an exception for searches of vehicles, holding in Carroll
v. United States\55\ that vehicles may be searched without warrants if
the officer undertaking the search has probable cause to believe that
the vehicle contains contraband. The Court explained that the mobility
of vehicles would allow them to be quickly moved from the jurisdiction
if time were taken to obtain a warrant.\56\
\55\267 U.S. 132 (1925). Carroll was a Prohibition-era liquor
case, whereas a great number of modern automobile cases involve drugs.
\56\Id. at 153. See also Husty v. United States, 282 U.S. 694
(1931); Scher v. United States, 305 U.S. 251 (1938); Brinegar v. United
States, 338 U.S. 160 (1949). All of these cases involved contraband, but
in Chambers v. Maroney, 399 U.S. 42 (1970), the Court, without
discussion, and over Justice Harlan's dissent, id. at 55, 62, extended
the rule to evidentiary searches.
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Initially the Court limited Carroll's reach, holding
impermissible the warrantless seizure of a parked automobile merely
because it is movable, and indicating that vehicles may be stopped only
while moving or reasonably contemporaneously with movement.\57\ Also,
the Court ruled that the search must be reasonably contemporaneous with
the stop, so that it was not permissible to remove the vehicle to the
stationhouse for a warrantless search at the convenience of the
police.\58\
\57\Coolidge v. New Hampshire, 403 U.S. 443, 458-64 (1971). This
portion of the opinion had the adherence of a plurality only, Justice
Harlan concurring on other grounds, and there being four dissenters. Id.
at 493, 504, 510, 523.
\58\Preston v. United States, 376 U.S. 364 (1964); Dyke v.
Taylor Implement Mfg. Co., 391 U.S. 216 (1968).
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The Court next developed a reduced privacy rationale to
supplement the mobility rationale, explaining that ``the configuration,
use, and regulation of automobiles often may dilute the reasonable
[[Page 1239]]
expectation of privacy that exists with respect to differently situated
property.''\59\ ```One has a lesser expectation of privacy in a motor
vehicle because its function is transportation and it seldom serves as
one's residence or as the repository of personal effects. . . . It
travels public thoroughfares where both its occupants and its contents
are in plain view.'''\60\ While motor homes do serve as residences and
as repositories for personal effects, and while their contents are often
shielded from public view, the Court extended the automobile exception
to them as well, holding that there is a diminished expectation of
privacy in a mobile home parked in a parking lot and licensed for
vehicular travel, hence ``readily mobile.''\61\
\59\Arkansas v. Sanders, 442 U.S. 753, 761 (1979).
\60\Cardwell v. Lewis, 417 U.S. 583, 590 (1974) (plurality
opinion), quoted in United States v. Chadwick, 433 U.S. 1, 12 (1977).
See also United States v. Ortiz, 422 U.S. 891, 896 (1975); United States
v. Martinez-Fuerte, 428 U.S. 543, 561 (1976); South Dakota v. Opperman,
428 U.S. 364, 367-68 (1976); Robbins v. California, 453 U.S. 420, 424-25
(1981); United States v. Ross, 456 U.S. 798, 807 n.9 (1982).
\61\California v. Carney, 471 U.S. 386, 393 (1985) (leaving open
the question of whether the automobile exception also applies to a
``mobile'' home being used as a residence and not ``readily mobile'').
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The reduced expectancy concept has broadened police powers to
conduct automobile searches without warrants, but they still must have
probable cause to search a vehicle\62\ and they must have some
``articulable suspicion'' of criminal activity in order to make random
stops of vehicles on the roads.\63\ By contrast, fixed-checkpoint stops
in the absence of any individualized suspicion have been upheld.\64\
Once police have validly stopped a vehicle, they may also, based on
articulable facts warranting a reasonable belief that weapons may be
present, conduct a Terry-type protective search of those portions of the
passenger compartment in which a weapon could be placed or hidden.\65\
And, in the absence of such reasonable suspicion as to weapons, police
may seize contraband
[[Page 1240]]
and suspicious items ``in plain view'' inside the passenger
compartment.\66\
\62\Almeida-Sanchez v. United States, 413 U.S. 266 (1973)
(roving patrols); United States v. Ortiz, 422 U.S. 891 (1975). Cf.
Colorado v. Bannister, 449 U.S. 1 (1980).
\63\Delaware v. Prouse, 440 U.S. 648 (1979) (random stops of
motorists to check driver's license and registration papers and safety
features of cars); United States v. Brignoni-Ponce, 422 U.S. 873 (1975)
(roving patrols in areas near international borders on look-out for
illegal aliens). In Prouse, the Court cautioned that it was not
precluding the States from developing methods for spot checks that
involve less intrusion or that do not involve unconstrained exercise of
discretion. 440 U.S. at 648.
\64\Michigan Dep't of State Police v. Sitz, 496 U.S. 444 (1990)
(upholding a sobriety checkpoint at which all motorists are briefly
stopped for preliminary questioning and observation for signs of
intoxication). See also United States v. Martinez-Fuerte, 428 U.S. 543
(1976) (upholding border patrol checkpoint, over 60 miles from the
border, for questioning designed to apprehend illegal aliens).
\65\Michigan v. Long, 463 U.S. 1032, 1049 (1983) (holding that
contraband found in the course of such a search is admissible).
\66\Texas v. Brown, 460 U.S. 730 (1983). Similarly, since there
is no reasonable privacy interest in the vehicle identification number,
required by law to be placed on the dashboard so as to be visible
through the windshield, police may reach into the passenger compartment
to remove items obscuring the number and may seize items in plain view
while doing so. New York v. Class, 475 U.S. 106 (1986).
---------------------------------------------------------------------------
Once police have probable cause to believe there is contraband
in a vehicle, they may remove it from the scene to the stationhouse in
order to conduct a search, without thereby being required to obtain a
warrant. ``[T]he justification to conduct such a warrantless search does
not vanish once the car has been immobilized; nor does it depend upon a
reviewing court's assessment of the likelihood in each particular case
that the car would have been driven away, or that its contents would
have been tampered with, during the period required for the police to
obtain a warrant.''\67\ The Justices were evenly divided, however, on
the propriety of warrantless seizure of an arrestee's automobile from a
public parking lot several hours after his arrest, its transportation to
a police impoundment lot, and the taking of tire casts and exterior
paint scrapings.\68\ Because of the lessened expectation of privacy,
inventory searches of impounded automobiles are justifiable in order to
protect public safety and the owner's property, and any evidence of
criminal activity discovered in the course of the inventories is
admissible in court.\69\
\67\Michigan v. Thomas, 458 U.S. 259, 261 (1982). See also
Chambers v. Maroney, 399 U.S. 42 (1970); Texas v. White, 423 U.S. 67
(1975); United States v. Ross, 456 U.S. 798, 807 n.9 (1982).
\68\Cardwell v. Lewis, 417 U.S. 583 (1974). Justice Powell
concurred on other grounds.
\69\Cady v. Dombrowski, 413 U.S. 433 (1973); South Dakota v.
Opperman, 428 U.S. 364 (1976). See also Cooper v. California, 386 U.S.
58 (1967); United States v. Harris, 390 U.S. 234 (1968). Police, in
conducting an inventory search of a vehicle, may open closed containers
in order to inventory contents. Colorado v. Bertine, 479 U.S. 367
(1987).
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It is not lawful for the police in undertaking a warrantless
search of an automobile to extend the search to the passengers
therein.\70\ But because passengers in an automobile have no reasonable
expectation of privacy in the interior area of the car, a warrantless
search of the glove compartment and the spaces under the seats, which
turned up evidence implicating the passengers, invaded no Fourth
Amendment interest of the passengers.\71\ Luggage and other closed
containers found in automobiles may also be subjected to warrantless
searches based on probable cause, the same rule now applying whether the
police have probable cause to search
[[Page 1241]]
only the containers\72\ or whether they have probable cause to search
the automobile for something capable of being held in the container.\73\
\70\United States v. Di Re, 332 U.S. 581 (1948). While Di Re is
now an old case, it appears still to control. See Ybarra v. Illinois,
444 U.S. 85, 94-96 (1979).
\71\Rakas v. Illinois, 439 U.S. 128 (1978).
\72\California v. Acevedo, 500 U.S. 565 (1991) (overruling
Arkansas v. Sanders, 442 U.S. 753 (1979).
\73\United States v. Ross, 456 U.S. 798 (1982). A Ross search of
a container found in an automobile need not occur soon after its
seizure. United States v. Johns, 469 U.S. 478 (1985) (three-day time
lapse). See also Florida v. Jimeno, 500 U.S. 248 (1991) (consent to
search automobile for drugs constitutes consent to open containers
within the car that might contain drugs).
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Vessel Searches.--Not only is the warrant requirement
inapplicable to brief stops of vessels, but also none of the safeguards
applicable to stops of automobiles on less than probable cause are
necessary predicates to stops of vessels. In United States v.
Villamonte-Marquez,\74\ the Court upheld a random stop and boarding of a
vessel by customs agents, lacking any suspicion of wrongdoing, for
purpose of inspecting documentation. The boarding was authorized by
statute derived from an act of the First Congress,\75\ and hence had
``an impressive historical pedigree'' carrying with it a presumption of
constitutionality. Moreover, ``important factual differences between
vessels located in waters offering ready access to the open sea and
automobiles on principal thoroughfares in the border area'' justify
application of a less restrictive rule for vessel searches. The reason
why random stops of vehicles have been held impermissible under the
Fourth Amendment, the Court explained, is that stops at fixed
checkpoints or roadblocks are both feasible and less subject to abuse of
discretion by authorities. ``But no reasonable claim can be made that
permanent checkpoints would be practical on waters such as these where
vessels can move in any direction at any time and need not follow
established `avenues' as automobiles must do.''\76\ Because there is a
``substantial'' governmental interest in enforcing documentation laws,
``especially in waters where the need to deter or apprehend smugglers is
great,'' the Court found the ``limited'' but not ``minimal'' intrusion
occasioned by boarding for documentation inspection to be
reasonable.\77\ Dis
[[Page 1242]]
senting Justice Brennan argued that the Court for the first time was
approving ``a completely random seizure and detention of persons and an
entry onto private, noncommercial premises by police officers, without
any limitations whatever on the officers' discretion or any safeguards
against abuse.''\78\
\74\462 U.S. 579 (1983). The opinion of the Court, written by
Justice Rehnquist, was joined by Chief Justice Burger and by Justices
White, Blackmun, Powell, and O'Connor. Justice Brennan's dissent was
joined by Justice Marshall and, on mootness but not on the merits, by
Justice Stevens.
\75\19 U.S.C. Sec. 1581(a), derived from Sec. 31 of the Act of
Aug. 4, 1790, ch.35, 1 Stat. 164.
\76\462 U.S. at 589. Justice Brennan's dissent argued that a
fixed checkpoint was feasible in this case, involving a ship channel in
an inland waterway. id. at at 608 n.10. The fact that the Court's
rationale was geared to the difficulties of law enforcement in the open
seas suggests a reluctance to make exceptions to the general rule. Note
as well the Court's later reference to this case as among those
``reflect[ing] longstanding concern for the protection of the integrity
of the border.'' United States v. Montoya de Hernandez, 473 U.S. 531,
538 (1985).
\77\462 U.S. at 593.
\78\462 U.S. at 598. Justice Brennan contended that all previous
cases had required some ``discretion-limiting'' feature such as a
requirement of probable cause, reasonable suspicion, fixed checkpoints
instead of roving patrols, and limitation of border searches to border
areas, and that these principles set forth in Delaware v. Prouse (supra
p.1239, n.63) should govern. 462 U.S. at 599, 601.
---------------------------------------------------------------------------
Consent Searches.--Fourth Amendment rights, like other
constitutional rights, may be waived, and one may consent to search of
his person or premises by officers who have not complied with the
Amendment.\79\ The Court, however, has insisted that the burden is on
the prosecution to prove the voluntariness of the consent\80\ and
awareness of the right of choice.\81\ Reviewing courts must determine on
the basis of the totality of the circumstances whether consent has been
freely given or has been coerced. Actual knowledge of the right to
refuse consent is not essential to the issue of voluntariness, and
therefore police are not required to acquaint a person with his rights,
as through a Fourth Amendment version of Miranda warnings.\82\ But
consent will not be regarded as voluntary when the officer asserts his
official status and claim of right and the occupant yields to these
factors rather than makes his own determination to admit officers.\83\
When consent is obtained through the deception of an undercover officer
or an informer gaining admission without, of course, advising a suspect
who he is, the Court has held that the suspect has simply assumed the
risk that an invitee would betray him, and evidence obtained through the
deception is admissible.\84\
\79\Amos v. United States, 255 U.S. 313 (1921); Zap v. United
States, 328 U.S. 624 (1946); Schneckloth v. Bustamonte, 412 U.S. 218
(1973).
\80\Bumper v. North Carolina, 391 U.S. 543 (1968).
\81\Johnson v. United States, 333 U.S. 10, 13 (1948).
\82\Schneckloth v. Bustamonte, 412 U.S. 218, 231-33 (1973).
\83\Amos v. United States, 255 U.S. 313 (1921); Johnson v.
United States, 333 U.S. 10 (1948); Bumper v. North Carolina, 391 U.S.
543 (1968).
\84\On Lee v. United States, 343 U.S. 747 (1952); Lopez v.
United States, 373 U.S. 427 (1963); Hoffa v. United States, 385 U.S. 293
(1966); Lewis v. United States, 385 U.S. 206 (1966); United States v.
White, 401 U.S. 745 (1971). Cf. Osborn v. United States, 385 U.S. 323
(1966) (prior judicial approval obtained before wired informer sent into
defendant's presence). Problems may be encountered by police, however,
in special circumstances. See Messiah v. United States, 377 U.S. 201
(1964); United States v. Henry, 447 U.S. 264 (1980); United States v.
Karo, 468 U.S. 705 (1984) (installation of beeper with consent of
informer who sold container with beeper to suspect is permissible with
prior judicial approval, but use of beeper to monitor private residence
is not).
---------------------------------------------------------------------------
Additional issues arise in determining the validity of consent
to search when consent is given not by the suspect but by a third
[[Page 1243]]
party. In the earlier cases, third party consent was deemed sufficient
if that party ``possessed common authority over or other sufficient
relationship to the premises or effects sought to be inspected.''\85\
Now, however, actual common authority over the premises is no longer
required; it is enough if the searching officer had a reasonable but
mistaken belief that the third party had common authority and could
consent to the search.\86\
\85\United States v. Matlock, 415 U.S. 164, 171 (1974) (valid
consent by woman with whom defendant was living and sharing the bedroom
searched). See also Chapman v. United States, 365 U.S. 610 (1961)
(landlord's consent insufficient); Stoner v. California, 376 U.S. 483
(1964) (hotel desk clerk lacked authority to consent to search of
guest's room); Frazier v. Culp, 394 U.S. 731 (1969) (joint user of
duffel bag had authority to consent to search).
\86\Illinois v. Rodriguez, 497 U.S. 177 (1990). See also Florida
v. Jimeno, 500 U.S. 248, 251 (1991) (it was ``objectively reasonable''
for officer to believe that suspect's consent to search his car for
narcotics included consent to search containers found within the car).
---------------------------------------------------------------------------
Border Searches.--``That searches made at the border, pursuant
to the longstanding right of the sovereign to protect itself by stopping
and examining persons and property crossing into this country, are
reasonable simply by virtue of the fact that they occur at the border,
should, by now, require no extended demonstration.''\87\ Authorized by
the First Congress,\88\ the customs search in these circumstances
requires no warrant, no probable cause, not even the showing of some
degree of suspicion that accompanies even investigatory stops.\89\
Moreover, while prolonged detention of travelers beyond the routine
customs search and inspection must be justified by the Terry standard of
reasonable suspicion having a particularized and objective basis,\90\
Terry protections as to the length and intrusiveness of the search do
not apply.\91\
\87\United States v. Ramsey, 431 U.S. 606, 616 (1977)
(sustaining search of incoming mail). See also Illinois v. Andreas, 463
U.S. 765 (1983) (opening by customs inspector of locked container
shipped from abroad).
\88\Act of July 31, 1789, ch.5, Sec. Sec. 23, Sec. 24, 1 Stat.
43. See 19 U.S.C. Sec. Sec. 507, 1581, 1582.
\89\Carroll v. United States, 267 U.S. 132, 154 (1925); United
States v. Thirty-Seven Photographs, 402 U.S. 363, 376 (1971); Almeida-
Sanchez v. United States, 413 U.S. 266, 272 (1973).
\90\United States v. Montoya de Hernandez, 473 U.S. 531 (1985)
(approving warrantless detention incommunicado for more than 24 hours of
traveler suspected of alimentary canal drug smuggling).
\91\Id. A traveler suspected of alimentary canal drug smuggling
was strip searched, and then given a choice between an abdominal x-ray
or monitored bowel movements. Because the suspect chose the latter
option, the court disavowed decision as to ``what level of suspicion, if
any, is required for . . . strip, body cavity, or involuntary x-ray
searches.'' Id. at 541 n.4.
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Inland stoppings and searches in areas away from the borders are
a different matter altogether. Thus, in Almeida-Sanchez v.
[[Page 1244]]
United States,\92\ the Court held that a warrantless stop and search of
defendant's automobile on a highway some 20 miles from the border by a
roving patrol lacking probable cause to believe that the vehicle
contained illegal aliens violated the Fourth Amendment. Similarly, the
Court invalidated an automobile search at a fixed checkpoint well
removed from the border; while agreeing that a fixed checkpoint probably
gave motorists less cause for alarm than did roving patrols, the Court
nonetheless held that the invasion of privacy entailed in a search was
just as intrusive and must be justified by a showing of probable cause
or consent.\93\ On the other hand, when motorists are briefly stopped,
not for purposes of a search but in order that officers may inquire into
their residence status, either by asking a few questions or by checking
papers, different results are achieved, so long as the stops are not
truly random. Roving patrols may stop vehicles for purposes of a brief
inquiry, provided officers are ``aware of specific articulable facts,
together with rational inferences from those facts, that reasonably
warrant suspicion'' that an automobile contains illegal aliens; in such
a case the interference with Fourth Amendment rights is ``modest'' and
the law enforcement interests served are significant.\94\ Fixed
checkpoints provide additional safeguards; here officers may halt all
vehicles briefly in order to question occupants even in the absence of
any reasonable suspicion that the particular vehicle contains illegal
aliens.\95\
\92\413 U.S. 266 (1973). Justices White, Blackmun, Rehnquist,
and Chief Justice Burger would have found the search reasonable upon the
congressional determination that searches by such roving patrols were
the only effective means to police border smuggling. Id. at 285. Justice
Powell, concurring, argued in favor of a general, administrative warrant
authority not tied to particular vehicles, much like the type of warrant
suggested for noncriminal administrative inspections of homes and
commercial establishments for health and safety purposes, id. at 275,
but the Court has not yet had occasion to pass on a specific case. See
United States v. Martinez-Fuerte, 428 U.S. 543, 547 n.2, 562 n.15
(1976).
\93\United States v. Ortiz, 422 U.S. 891 (1975).
\94\United States v. Brignoni-Ponce, 422 U.S. 873 (1975).
However, stopping of defendant's car solely because the officers
observed the Mexican appearance of the occupants was unjustified. Id. at
886. Contrast United States v. Cortez, 449 U.S. 411 (1981), where border
agents did have grounds for reasonable suspicion that the vehicle they
stopped contained illegal aliens.
\95\United States v. Martinez-Fuerte, 428 U.S. 543 (1976). The
Court deemed the intrusion on Fourth Amendment interests to be quite
limited, even if officers acted on the basis of the Mexican appearance
of the occupants in referring motorists to a secondary inspection area
for questioning, whereas the elimination of the practice would deny to
the Government its only practicable way to apprehend smuggled aliens and
to deter the practice. Similarly, outside of the border/aliens context,
the Court has upheld use of fixed ``sobriety'' checkpoints at which all
motorists are briefly stopped for preliminary questioning and
observation for signs of intoxication. Michigan Dep't of State Police v.
Sitz, 496 U.S. 444 (1990).
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[[Page 1245]]
``Open Fields.''--In Hester v. United States,\96\ the Court held
that the Fourth Amendment did not protect ``open fields'' and that,
therefore, police searches in such areas as pastures, wooded areas, open
water, and vacant lots need not comply with the requirements of warrants
and probable cause. The Court's announcement in Katz v. United
States\97\ that the Amendment protects ``people not places'' cast some
doubt on the vitality of the open fields principle, but all such doubts
were cast away in Oliver v. United States.\98\ Invoking Hester's
reliance on the literal wording of the Fourth Amendment (open fields are
not ``effects'') and distinguishing Katz, the Court ruled that the open
fields exception applies to fields that are fenced and posted. ``[A]n
individual may not legitimately demand privacy for activities conducted
out of doors in fields, except in the area immediately surrounding the
home.''\99\ Nor may an individual demand privacy for activities
conducted within outbuildings and visible by trespassers peering into
the buildings from just outside.\100\ Even within the curtilage and
notwithstanding that the owner has gone to the extreme of erecting a 10-
foot high fence in order to screen the area from ground-level view,
there is no reasonable expectation of privacy from naked-eye inspection
from fixed-wing aircraft flying in navigable airspace.\101\ Similarly,
naked-eye inspection from helicopters flying even lower contravenes no
reasonable expectation of privacy.\102\ And aerial photography of
commercial facilities secured from ground-level public view is
permissible, the
[[Page 1246]]
Court finding such spaces more analogous to open fields than to the
curtilage of a dwelling.\103\
\96\265 U.S. 57 (1924). See also Air Pollution Variance Bd. v.
Western Alfalfa Corp., 416 U.S. 86 (1974).
\97\389 U.S. 347, 353 (1967). Cf. Cady v. Dombrowski, 413 U.S.
433, 450 (1973) (citing Hester approvingly).
\98\466 U.S. 170 (1984) (approving warrantless intrusion past no
trespassing signs and around locked gate, to view field not visible from
outside property).
\99\Id. at 178. See also California v. Greenwood, 486 U.S. 35
(1988) (approving warrantless search of garbage left curbside ``readily
accessible to animals, children, scavengers, snoops, and other members
of the public'').
\100\United States v. Dunn, 480 U.S. 294 (1987) (space
immediately outside a barn, accessible only after crossing a series of
``ranch-style'' fences and situated one-half mile from the public road,
constitutes unprotected ``open field'').
\101\California v. Ciraolo, 476 U.S. 207 (1986). Activities
within the curtilage are nonetheless still entitled to some Fourth
Amendment protection. The Court has described four considerations for
determining whether an area falls within the curtilage: proximity to the
home, whether the area is included within an enclosure also surrounding
the home, the nature of the uses to which the area is put, and the steps
taken by the resident to shield the area from view of passersby. United
States v. Dunn, 480 U.S. 294 (1987) (barn 50 yards outside fence
surrounding home, used for processing chemicals, and separated from
public access only by series of livestock fences, by chained and locked
driveway, and by one-half mile's distance, is not within curtilage).
\102\Florida v. Riley, 488 U.S. 445 (1989) (view through
partially open roof of greenhouse).
\103\Dow Chemical Co. v. United States, 476 U.S. 227 (1986)
(suggesting that aerial photography of the curtilage would be
impermissible).
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``Plain View.''--Somewhat similar in rationale is the rule that
objects falling in the ``plain view'' of an officer who has a right to
be in the position to have that view are subject to seizure without a
warrant\104\ or that if the officer needs a warrant or probable cause to
search and seize his lawful observation will provide grounds
therefor.\105\ The plain view doctrine is limited, however, by the
probable cause requirement: officers must have probable cause to believe
that items in plain view are contraband before they may search or seize
them.\106\
\104\Washington v. Chrisman, 455 U.S. 1 (1982) (officer lawfully
in dorm room may seize marijuana seeds and pipe in open view); United
States v. Santana, 427 U.S. 38 (1976) (``plain view'' justification for
officers to enter home to arrest after observing defendant standing in
open doorway); Harris v. United States, 390 U.S. 234 (1968) (officer who
opened door of impounded automobile and saw evidence in plain view
properly seized it); Ker v. California, 374 U.S. 23 (1963) (officers
entered premises without warrant to make arrest because of exigent
circumstances seized evidence in plain sight). Cf. Coolidge v. New
Hampshire, 403 U.S. 443, 464-73 (1971), and id. at 510 (Justice White
dissenting). Maryland v. Buie, 494 U.S. 325 (1990) (items seized in
plain view during protective sweep of home incident to arrest); Texas v.
Brown, 460 U.S. 730 (1983) (contraband on car seat in plain view of
officer who had stopped car and asked for driver's license); New York v.
Class, 475 U.S. 106 (1986) (evidence seen while looking for vehicle
identification number). There is no requirement that the discovery of
evidence in plain view must be ``inadvertent.'' See Horton v.
California, 496 U.S. 128 (1990) (in spite of Amendment's particularity
requirement, officers with warrant to search for proceeds of robbery may
seize weapons of robbery in plain view).
\105\Steele v. United States, 267 U.S. 498 (1925) (officers
observed contraband in view through open doorway; had probable cause to
procure warrant). Cf. Taylor v. United States, 286 U.S. 1 (1932)
(officers observed contraband in plain view in garage, warrantless entry
to seize was unconstitutional).
\106\Arizona v. Hicks, 480 U.S. 321 (1987) (police lawfully in
apartment to investigate shooting lacked probable cause to inspect
expensive stereo equipment to record serial numbers).
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The Court has analogized from the plain view doctrine to hold
that once officers have lawfully observed contraband, ``the owner's
privacy interest in that item is lost,'' and officers may reseal a
container, trace its path through a controlled delivery, and seize and
reopen the container without a warrant.\107\
\107\Illinois v. Andreas, 463 U.S. 765, 771 (1983) (locker
customs agents had opened, and which was subsequently traced). Accord,
United States v. Jacobsen, 466 U.S. 109 (1984) (inspection of package
opened by private freight carrier who notified drug agents).
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Public Schools.--In New Jersey v. T.L.O.,\108\ the Court set
forth the principles governing searches by public school authorities.
The Fourth Amendment applies to searches conducted by public school
officials because ``school officials act as representatives of the
[[Page 1247]]
State, not merely as surrogates for the parents.''\109\ However, ``the
school setting requires some easing of the restrictions to which
searches by public authorities are ordinarily subject.''\110\ Neither
the warrant requirement nor the probable cause standard is appropriate,
the Court ruled. Instead, a simple reasonableness standard governs all
searches of students' persons and effects by school authorities.\111\ A
search must be reasonable at its inception, i.e., there must be
``reasonable grounds for suspecting that the search will turn up
evidence that the student has violated or is violating either the law or
the rules of the school.''\112\ School searches must also be reasonably
related in scope to the circumstances justifying the interference, and
``not excessively intrusive in light of the age and sex of the student
and the nature of the infraction.''\113\ In applying these rules, the
Court upheld as reasonable the search of a student's purse to determine
whether the student, accused of violating a school rule by smoking in
the lavatory, possessed cigarettes. The search for cigarettes uncovered
evidence of drug activity held admissible in a prosecution under the
juvenile laws.
\108\469 U.S. 325 (1985).
\109\Id. at 336 (1984).
\110\Id. at 340.
\111\This single rule, the Court explained, will permit school
authorities ``to regulate their conduct according to the dictates of
reason and common sense.'' 469 U.S. at 343. Rejecting the suggestion of
dissenting Justice Stevens, the Court was ``unwilling to adopt a
standard under which the legality of a search is dependent upon a
judge's evaluation of the relative importance of various school rules.''
Id. at n.9.
\112\469 U.S. at 342.
\113\Id.
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Government Offices.--Similar principles apply to a public
employer's work-related search of its employees' offices, desks, or file
cabinets, except that in this context the Court distinguished searches
conducted for law enforcement purposes. In O'Connor v. Ortega,\114\ a
majority of Justices agreed, albeit on somewhat differing rationales,
that neither a warrant nor a probable cause requirement should apply to
employer searches ``for noninvestigatory, work-related purposes, as well
as for investigations of work-related misconduct.''\115\ Four Justices
would require a case-by-case inquiry into the reasonableness of such
searches;\116\ one would hold that such searches ``do not violate the
Fourth Amendment.''\117\
\114\480 U.S. 709 (1987).
\115\480 U.S. at 725. Not at issue was whether there must be
individualized suspicion for investigations of work-related misconduct.
\116\This position was stated in Justice O'Connor's plurality
opinion, joined by Chief Justice Rehnquist and by Justices White and
Powell.
\117\480 U.S. at 732 (Scalia, J., concurring in judgment).
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Prisons and Regulation of Probation.--Searches of prison cells
by prison administrators are not limited even by a reasonableness
standard, the Court having held that ``the Fourth Amendment
[[Page 1248]]
proscription against unreasonable searches does not apply within the
confines of the prison cell.''\118\ Thus, prison administrators may
conduct random ``shakedown'' searches of inmates' cells without the need
to adopt any established practice or plan, and inmates must look to the
Eighth Amendment or to state tort law for redress against harassment,
malicious property destruction, and the like.
\118\Hudson v. Palmer, 468 U.S. 517, 526 (1984).
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Neither a warrant nor probable cause is needed for an
administrative search of a probationer's home. It is enough, the Court
ruled in Griffin v. Wisconsin, that such a search was conducted pursuant
to a valid regulation that itself satisfies the Fourth Amendment's
reasonableness standard (e.g., by requiring ``reasonable grounds'' for a
search).\119\ ``A State's operation of a probation system, like its
operation of a school, government office or prison, or its supervision
of a regulated industry, . . . presents `special needs' beyond normal
law enforcement that may justify departures from the usual warrant and
probable cause requirements.''\120\ ``Probation, like incarceration, is
a form of criminal sanction,'' the Court noted, and a warrant or
probable cause requirement would interfere with the ``ongoing [non-
adversarial] supervisory relationship'' required for proper functioning
of the system.\121\
\119\483 U.S. 868 (1987) (search based on information from
police detective that there was or might be contraband in probationer's
apartment).
\120\483 U.S. at 873-74.
\121\Id. at 718, 721.
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Drug Testing.--In two 1989 decisions the Court held that no
warrant, probable cause, or even individualized suspicion is required
for mandatory drug testing of certain classes of railroad and public
employees. In each case, ``special needs beyond the normal need for law
enforcement'' were identified as justifying the drug testing. In Skinner
v. Railway Labor Executives' Ass'n,\122\ the Court upheld regulations
requiring railroads to administer blood, urine, and breath tests to
employees involved in certain train accidents or violating certain
safety rules; upheld in National Treasury Employees Union v. Von
Raab\123\ was a Customs Service screening program requiring urinalysis
testing of employees seeking transfer or promotion to positions having
direct involvement with drug interdiction, or to positions requiring the
incumbent to carry firearms. The Court in Skinner found a ``compelling''
governmental interest in testing the railroad employees without any
showing of individualized suspicion, since operation of trains by anyone
impaired by drugs ``can cause great human loss before any signs of
impair
[[Page 1249]]
ment become noticeable.''\124\ By contrast, the intrusions on privacy
were termed ``limited.'' Blood and breath tests were passed off as
routine; the urine test, while more intrusive, was deemed permissible
because of the ``diminished expectation of privacy'' in employees having
some responsibility for safety in a pervasively regulated industry.\125\
The lower court's emphasis on the limited effectiveness of the urine
test (it detects past drug use but not necessarily the level of
impairment) was misplaced, the Court ruled. It is enough that the test
may provide some useful information for an accident investigation; in
addition, the test may promote deterrence as well as detection of drug
use.\126\ In Von Raab the governmental interests underlying the Customs
Service's screening program were also termed ``compelling'': to ensure
that persons entrusted with a firearm and the possible use of deadly
force not suffer from drug-induced impairment of perception and
judgment, and that ``front-line [drug] interdiction personnel [be]
physically fit, and have unimpeachable integrity and judgment.''\127\
The possibly ``substantial'' interference with privacy interests of
these Customs employees was justified, the Court concluded, because,
``[u]nlike most private citizens or government employees generally, they
have a ``diminished expectation of privacy.''\128\
\122\489 U.S. 602 (1989).
\123\489 U.S. 656 (1989).
\124\489 U.S. at 628.
\125\Id. at 628.
\126\Id. at 631-32.
\127\Von Raab, 489 U.S. at 670-71. Dissenting Justice Scalia
discounted the ``feeble justifications'' relied upon by the Court,
believing instead that the ``only plausible explanation'' for the drug
testing program was the ``symbolism'' of a government agency setting an
example for other employers to follow. 489 U.S. at 686-87.
\128\Id. at 672.
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So far the Court has not ruled on a random drug testing program,
having since Skinner and Von Raab refused to hear other challenges to
drug testing.\129\ Answers to remaining questions, e.g.,
[[Page 1250]]
whether other drug testing programs not so closely tied to safety and
security concerns serve ``compelling'' governmental interests, whether
other classes of employees have a diminished expectation of privacy, and
whether more intrusive testing procedures are permissible,\130\ must
therefore await future litigation.
\129\See, e.g., Policemen's Benevolent Ass'n Local 318 v.
Township of Washington, 850 F.2d 133 (3d Cir. 1988), cert. denied 490
U.S. 1004 (1989) (random urinalysis testing of police officers upheld);
Copeland v. Philadelphia Police Dep't, 840 F.2d 1139 (3d Cir. 1988),
cert. denied 490 U.S. 1004 (upholding testing of police officer based on
``reasonable suspicion''); Alverado v. WPPSS, 759 P.2d 427 (Wash. 1988),
cert. denied 490 U.S. 1004 (upholding pre-employment drug screening for
nuclear power plant workers); Harmon v. Thornburgh, 878 F.2d 484 (D.C.
Cir. 1989), cert. denied sub nom. Bell v. Thornburgh, 493 U.S. 1056
(1990) (approving random testing of Department of Justice employees with
top secret security clearances); National Fed'n of Fed. Employees v.
Cheney, 892 F.2d 98 (D.C. Cir. 1989) cert. denied 493 U.S. 1056 (1990)
(upholding random testing of U.S. Army civilian employees in
``critical'' jobs, e.g., aircraft crews and mechanics, security guards,
and drug counselors); Guiney v. Roache, 873 F.2d 1557 (1st Cir. 1989),
cert. denied 493 U.S. 963 (upholding random testing of Boston police
officers who carry firearms or participate in drug interdiction); AFGE
v. Skinner, 885 F.2d 884 (D.C. Cir. 1989), cert. denied 493 U.S. 923
(1990) (upholding random drug testing of three categories of DOT
employees: motor vehicle operators, hazardous material inspectors, and
aircraft mechanics); Jones v. McKenzie, 833 F.2d 335 (D.C. Cir. 1987),
vacated and remanded sub nom. Jenkins v. Jones, 490 U.S. 1001 (1989)
(court of appeals had upheld testing of school bus drivers only in the
context of a routine medical exam).
\130\In Skinner the Court emphasized that the FRA regulations
``do not require'' direct observation by a monitor (although, as the
dissent pointed out, 489 U.S. at 646, the FRA Field Manual did so
require) and that the sample is collected ``in a medical environment''
(id. at 626); the Customs screening program at issue in Von Raab
similarly did not require direct observation of urination, and in
addition gave job applicants advance notice of testing.
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