1. CONDUCTING
CONSTITUTIONAL SEARCHES
Chapter 10

2. Tenets of 4th Amendment Search
Analysis

Cases involving the 4th Amendment begin with
two basic questions:
1.
Have the fundamental constitutional rules been
met?
2.
Does the search fit within one of the
permissible realms?

3. Tenets of 4th Amendment Search
Analysis

What are the fundamental rules?
1. There must be governmental action
2. The person making the challenge must have
standing, that is, the conduct violates the
challenger’s reasonable expectation of privacy


a situation in which (1) a person has exhibited actual
(subjective) expectation of privacy and (2) that
expectation is one that society is prepared to
recognize as reasonable
Often an implied right that falls within the shadow of
other specified rights (penumbra)
1. General searches are unlawful and restrict
government from going beyond what is
necessary

4. The Scope of Searches



Unrestrained general searches offend our
sense of justice
All searches must be limited in scope
General searches are unconstitutional and
never legal

5. The Scope of Searches

M rro n v. Unite d Sta te s (1927)
a


“The requirements that the warrants shall
particularly describe the things to be seized
makes general searches under tem impossible
and prevents the seizure of one thing under a
warrant describing another. As to what is to be
taken, nothing is left o the discretion of the officer
executing the warrant.”
Can’t look for an elephant in a matchbox!

6. Searches with a Warrant

All searches with a warrant must be based on:




Probable cause
Supported by oath and affirmation
Particularly describing the place to be searched,
and
The persons or things to be seized

7. Executing the Warrant



After officers have obtained their search
warrant they must execute it in a timely
manner
They must not use excessive force to execute
the warrant
There is limited authority to detain the
occupants of the premises during the search

8. Conducting the Search



Officers can only search the areas where they
reasonably believe the specified items might
be found
If the warrant states only one specific item be
sought, once it is located, the search must end
Officers often are protected with qualified
immunity

Exemption of a public official from civil liability for
actions performed during the course of his or her
job unless they violate a “clearly established”
constitutional or statutory right

9. Conducting the Search

The government can also seize any
contraband or other evidence of a crime found
during a search with a warrant, even though it
was not specified


Contraband is anything that is illegal for people to
own or have in their possession
The contraband does not need to be
described in the warrant or be related to the
crime described in the warrant

Plain view doctrine

10. Administrative Warrants

Allows civil inspections of private property to
determine compliance with government rules,
regulations and city ordinances


Examples include fire building codes
These can also be obtained so government
agents can conduct routine inspections when
occupants refuse their entry

11. Administrative Warrants

Unite d Sta te s v. Bis we ll (1972)


The Supreme Court reversed a court or appeals
ruling that disallowed a warrantless search of a
gun shop’s locked storeroom, which netted illegal
firearms
Inspections pertaining to the sale of illegal
firearms are justified and that limited threats such
as this inspection to the gun dealer’s expectation
of privacy are reasonable

12. Searches without a Warrant


The 4th Amendment prefers a warrant because
it necessitates judicial review of government
action
The Supreme Court has defined some
searches without a warrant to be reasonable
under the 4th Amendment guidelines:

Consent search, frisks, plain feel/plain view,
incident to arrest, automobile exception, exigent
circumstances, open fields, abandoned property
and public places

13. Searches with Consent

If an individual gives voluntary consent for the
police to search, the police may so without a
warrant

Any evidence found will be admissible in court

The person may revoke the search at anytime

14. Searches with Consent



Only the person whose constitutional rights
might be threatened by a search can give
consent
4th Amendment rights are specific to the person
and may not be raised on behalf of someone
else or in some abstract, theoretical way
Consent to search an individual must be given
by that individual

15. Searches with Consent

Unite d Sta te s v. M tlo c k (1974)
a

Consent to search any property must be given by
the actual owner
 If
more than one persons owns a property, only one
needs to give permission

In some instances, someone else can give
consent

Parent/child, employer/employee, host/guest,
spouses

16. Searches with Consent

G e o rg ia v. Ra nd o lp h (2006)


When both occupants are present and one
objects to a search, the other cannot “override”
the co-occupants refusal
I is v. Ro d rig ue z (1990)
llino

There is not 4th Amendment violation if the police
reasonably believed at the time of their entry
that the third party possessed the authority to
consent

17. Searches with Consent

Examples of instances when individuals
cannot give valid consent to search:

Landlord/tenant
 Even
though the landlord is the legal owner, they lack
the authority to offer consent to a search of a tenant’s
premises or a seizure of the tenant’s property

Hotel employee/hotel guest
 Supreme
Court extended the principles above to hotel
employees as well
 Only the tenant or hotel guest can give consent

18. Searches with Consent

Sta te v. Ba rlo w, Jr. (1974)


A consent to search is unreasonable under the 4th
Amendment if the consent was induced by deceit,
trickery, or misrepresentation of the officials
making the search
Failure to give consent cannot be used to
establish probable cause

19. Searches with Consent

We e d s v. Unite d Sta te s (1921)



Police confronted the defendant with drawn guns
and a riot gun and said they would get a warrant if
they needed
The Court said consent given under these
conditions was not free and voluntary
Pe o p le v. Lo ria (1961)

Police threatening to kick down the door of the
defendant’s apartment if they did not let them in,
was not free and voluntary

20. Searches with Consent



Consent to search must be voluntary
The search must be limited to the area
specified by the person granting the
permission
The person may revoke the consent at
any time

21. Searches with Consent

Courts typically justify the consent exception
by two separate tests:

Voluntariness test The
consent was obtained without coercion or
promises and was reasonable


Considers the totality of the circumstances to determine is
the consent was voluntary
W
aiver test Citizens
may consent to waive their 4th Amendment
rights, but only if they do so voluntarily, knowingly,
and intentionally

22. Searches with Consent




Although consent may be revoked at any time,
if contraband was found before the revocation
of consent, then
Probable cause to arrest that person may then
exist and,
A search incident to arrest could ensue or,
The police might cease their search, secure
the property, detain those present and seek a
warrant

23. Frisks



If an officer suspects a person is presently armed and
dangerous, a frisk may conducted without a warrant
(Chapter 8)
A frisk is authorized by the circumstances of an
investigative stop, only a limited pat-down of the
detainee’s outer clothing for the officer’s safety is
authorized
Factors contributing to the decision to frisk include:
 Suspect that flees
 A bulge in the clothing
 Suspect’s hand concealed in a pocket
 Being in a known high crime area and suspect crime
would likely involve a weapon

24. Frisks


Anything that reasonably feels like a weapon
may then be removed and used as evidence
against the person if it is contraband or other
evidence
Plain feel is also considered acceptable in a
frisk

25. Plain Feel/Plain Touch

M
inne s o ta v. Dic ke rs o n (1993)



The Court ruled that police do not need a warrant
to seize narcotics detected while frisking a
suspect for concealed weapons
As long as the narcotics are instantly
recognizable by plain feel or plain touch
Ultimately, if, in the lawful course of a frisk,
officers feel something that training and
experience causes them to believe is contraband,
there is probable cause to expand the search and
seize the object

26. Plain View Evidence

The plain view doctrine says that unconcealed
evidence that officers see while engaged in a
lawful activity may be seized and is admissible
in court

For example, if a government official is invited
into a person’s home, and the officer sees illegal
drugs on the table, the drugs can be seized

27. Plain View Evidence



Technology is impacting 4th Amendment case
law
Thermal imaging devices
Ky llo v. Unite d Sta te s (2001)


Was a search warrant needed for police to scan a
home from the street and compare that infrared
image to other buildings?
This action is considered a search under the
Fourth Amendment and requires a warrant

28. Searches Incident to Lawful
Arrest

Once a person has been lawfully taken into
custody by the police, U.S. law recognizes the
necessity of permitting a complete search for
two reasons:
1.
2.
Officer safety
Evidence and other contraband should be
recovered

29. Searches Incident to Lawful
Arrest

Chim e l v. Ca lifo rnia (1969)

Searches after an arrest must be immediate and
must be limited to the area within the person’s
wingspan
 The

area within a person’s reach or immediate control
Sc hm e rbe r v. Ca lifo rnia (1966)

Absent the exigent circumstances, a search
intrusive as drawing blood would not be
permissible without a warrant

30. Searches Incident to Lawful
Arrest

Co m m o nwe a lth v. Ta rve r (1975)


Seizures of items from the body like hair samples
or finger nail clippings are allowed without a
warrant incident to arrest if reasonable and
painless procedures are used
Unite s Sta te s v. Finle y (2007)

The numbers on a cell phone are “searchable”
incident to a lawful arrest

31. Searches Incident to Lawful
Arrest


The issue of remoteness may also determine
whether a search is unreasonable
Unite d Sta te s v. Cha d wic k (1977)

The Court held that a search of seized luggage
not immediately associated with the arrestee’s
body or under his or her immediate control will not
be allowed if that search is remote in time and
place from the arrest and no emergency exists

32. Searches Incident to Lawful
Arrest

A protective sweep is a limited search made in
conjunction with an in-home arrest when the
searching officer possesses a reasonable
belief based on specific and articulable facts
that the area to be swept harbors an individual
posing a danger to those on the arrest scene

33. Use of Force in Searching an Arrested
Person

When government agents search a person
incident to arrest, they may use as much force
as reasonably necessary to
 Protect themselves,
 To prevent escape,
 Or the destruction or concealment of evidence

The reasonableness of the police action
determines the lawfulness of it

34. Searching People Other Than
the Arrested Person




Searches of people who accompany an
arrestee are limited to a frisk
When the officers reasonably believe the
companion may be dangerous or might
destroy evidence
They must also be in the immediate area of
the arrest
The area of under the companion’s immediate
control may also be searched

35. Searching the Vehicle of an Arrested
Person

N w Yo rk v. Be lto n (1981)
e

Landmark case for the warrantless search of a
vehicle incident to arrest
 Court
held that when an officer has made a lawful
custodial arrest of the occupant of an automobile, he
may search the passenger compartment
 He
may also examine the contents of any containers
found within the compartment
 If
the container is within reach of the arrestee, so also
will containers in it be within his reach

36. Searching the Vehicle of an Arrested
Person

Kno wle s v. I wa (1998)
o



Justification to conduct a warrantless search of a
vehicle is not present when the vehicle has been
stopped for a traffic violation and the driver is
merely issued a citation
Only a lawful custodial arrest justifies a
warrantless search incident to arrest
Merely having probable cause to arrest, or issuing
a citation when an actual arrest does not occur,
does not justify a search

37. Inventory Searches



Suspects to be jailed are subjected to a warrantless
search
This search serves two purposes:
1. It protects the prisoner’s personal property in
that the property is all listed and then held in a
safe place until the prisoner is released
2. It protects the officers and other prisoners and
helps to ensure that no weapons or illegal
drugs will be taken into the jail
An impounded vehicle can be inventoried for the
same reasons

38. The Automobile Exception


This exception states that if a governmental
agent has probable cause to believe the
vehicle contains contraband or evidence or a
crime, no warrant is needed
Why?


Cars are mobile
The time it would take to get a warrant, the car,
driver and contraband or evidence could be long
gone

39. The Automobile Exception

Ca rro ll v. Unite d Sta te s (1925)

Established that vehicles can be searched without
a warrant provided
1.
2.

There is probable cause to believe the vehicle’s
contents violate the law
The vehicle would be gone before a search warrant
could be obtained
For officer to search a vehicle without a
warrant, the must have probable cause to
believe that the vehicle contains contraband
or evidence

40. The Automobile Exception

Unite d Sta te s v. Ro s s (1982)


“If probable cause justifies the search of a lawfully
stopped vehicle, it justifies the search of every
part of the vehicle and its contents that may
conceal the object of the search
Unite d Sta te s v. He nry (1980)


One the items are located, the search must
terminate
While searching for such articles, the officer
discovers evidence of another crime, he can
seize that evidence too

41. Inventory Searches of Impounded
Vehicles




Police officer can legally tow and impound
vehicles for many reasons
Once the vehicle is impounded, the police
conduct an inventory search
Because the vehicle is in police custody,
officers have a duty to assure personal
property is accounted for
If contraband or evidence is found, it will be
admissible in court

42. Inventory Searches of Impounded
Vehicles

Co lo ra d o v. Be rtine (1987)

Required that police agencies to have a policy
mandating either that all containers be opened
during such searches or that no containers be
opened, leaving no room for officer discretion

43. Exigent Circumstances


The courts have recognized that sometimes
situations will arise that reasonably require
immediate action before evidence may be
destroyed
These circumstances include:





Danger or physical harm to officer or others
Danger or destruction of evidence
Driving while intoxicated
Hot-pursuit situations
Individuals requiring rescuing

44. Exigent Circumstances

Hot Pursuit


Involve pursuit of a suspect into a place that
typically holds a reasonable expectation of
privacy, such as one’s home
Must be immediate and continuous from the
crime scene

45. Exigent Circumstances

Emergency Aid Doctrine


Police may enter a home without a warrant when
they have an objectively reasonable basis for
believing that an occupant is seriously injured or
immediately threatened with injury
If police come across an unconscious person,
they are obligated to search:

The person’s pockets or purse for
 Identification
or medical information

46. Open Fields, Abandoned Property
and Public Places

The courts have extended the plain view
doctrine stating that anything held out to the
public is not protected by the 4th Amendment
because no reasonable expectation of privacy
exists

47. Open Fields, Abandoned Property
and Public Places

“Open fields”- holds that land beyond that
normally associated with the use of that land,
that is, undeveloped land, can be searched
without a warrant

‘no trespassing” signs do not bar public from
viewing open fields, therefore the owner should
have no expectation of privacy and the 4th
Amendment does not apply

48. Open Fields, Abandoned Property
and Public Places

Curtilage- is the portion of property generally
associated with the common use of land


Buildings, sheds, outhouses, and fenced-in areas
Because there is a reasonable expectation of
privacy within the curtilage, it is protected
under the 4th Amendment

49. Open Fields, Abandoned Property
and Public Places

Ca lifo rnia v. Cira o lo (1986)


Police looking from the air into a suspect’s
backyard does not violate the 4th Amendment
because it is open to public view from the air
After a person has discarded or abandoned
property, they maintain no reasonable
expectation of privacy

Something thrown from a car, discarded during a
chase or even garbage disposed becomes
abandoned property and police may inspect it
without a warrant

50. Open Fields, Abandoned Property
and Public Places

Ca lifo rnia v. G re e nwo o d (1988)


Warrantless search and seizure of trash left curbside
for collection in an area accessible by the public does
not violate a person’s 4th Amendment right
Unite d Sta te s v. G a rc ia (1994)

A district court held that using a drug-detecting dog in
an Amtrak station did not violate the defendant’s 4th
Amendment right because the defendant should have
no expectation of privacy in the air surrounding his
bags

51. Border Searches and Seizures


Searches or persons, belongings and vehicles
at international borders are reasonable under
the 4th Amendment
Unite d Sta te s v. M nto y a d e He rna nd e z
o
(1985)


Routine searches at a U.S. international border
require no objective justification, probable cause
or warrant
Quino ne s -Ruiz v. Unite d Sta te s (1994)

The border search exception applies equally to
persons entering or exiting the country

52. Border Searches and Seizures


The Court has ruled that routine searches at
borders and at international airports are
reasonable under the 4th Amendment
The farther a person gets from the border, the
more traditional search and seizure
requirements come back into play

53. Border Searches and Seizures


People at airports are increasingly being
stopped because they fit a drug courier profile
developed by the D.E.A.
There are seven characteristics:
1. Arriving from a source city
2. Little or no luggage
3. Rapid turnaround on airplane trip
4. Use of assumed name
5. Possession of large amounts of cash
6. Cash purchase of ticket
7. Nervous appearance

54. Special Needs Searches

These are limited searches that the court
considers reasonable because societal needs
are thought to outweigh the individual’s normal
expectation of privacy:






Prison
Probation and parole searches
Drug testing for certain occupations
Administrative searches of closely regulated
businesses
Community caretaking searches
Public school searches

55. Public School Searches




Most searches of students in public schools
are conducted by school officials (government
agents)
Officials may search a student (backpack) or
locker without a warrant or probable cause if
there is reasonable suspicion to suggest that
contraband is present at the point to be
searched
School officials have a responsibility to
maintain a safe environment for students

56. Prison, Probation, and Parole
Searches



Prisoners have constitutional rights, but they
are limited
Searches are a reasonable part of prison life
among inmates who have very little
expectation of privacy
How the searches are carried out can
conceivably challenge the reasonableness of
the 4th Amendment

57. Prison, Probation, and Parole
Searches

M o re v. Pe o p le (1970)
o


Court rules that searches conducted by
correctional personnel are not unreasonable as
long as they are not for the purpose of harassing
or humiliating the inmate in a cruel and unusual
manner
Searches are also conducted on visitors,
correctional officers and others as these
individuals may smuggle contraband to
inmates

58. Prison, Probation, and Parole
Searches

Turne r v. Sa fle y (1987)


Supreme Court ruled and upheld correctional
policy allowing cross-gender searches
Jo rd a n v. G a rd ne r (1993)

Female inmates subjected to unclothed body
searches by male officers had, in fact, been
subjected to an unconstitutional search

59. Prison, Probation, and Parole
Searches



Not all people convicted of crimes are
sent to prison
Convicted criminals do not lose their
rights entirely
Their rights are limited, but not forfeited

60. Prison, Probation, and Parole
Searches

G riffin v. Wis c o ns in (1987)

Supreme Court held that a probationer’s
residence could be searched by a probation
officer if there were reasonable grounds to
believe contraband was present

People on probation have constitutional rights

Supreme Court affirmed that government
actions must be reasonable

61. Prison, Probation, and Parole
Searches

Unite d Sta te s v. Knig hts (2001)

Supreme Court addressed the constitutionality
of whether a police officer could search a
probationer’s home without probable cause or
reasonable suspicion

The search was reasonable under the 4th
Amendment because of the government’s
interest in regulating and monitoring
probationer’s behavior

62. Prison, Probation, and Parole
Searches


The Griffin and Knight cases make it clear that
individuals on parole or probation have a
lesser reasonable expectation of privacy
Both cases involved searches based on
reasonable grounds

63. Prison, Probation, and Parole
Searches

Unite d Sta te s v . Le o na rd (1991)


Unite d Sta te s v . Tho m a s (1984)


Requiring a drug test of people on parole or probation
for drug offenses is reasonable
A parole officer was permitted to require the client to
remove his jacket to show fresh needle marks, with a
subsequent search of his clothes netting drugs that
were admissible as evidence
Both searches were also based on recognition
that such searches were conditions of parole

64. Searches of Public Employee Work
Areas


Employees have a degree of interest in
retaining some privacy but it is lessened
in the public workplace context
These searches only require
reasonableness

65. Electronic Surveillance, Privacy
Interests and the 4th Amendment

O lm s te a d v. Unite d Sta te s (1928)


Wiretapping was not a search within the meaning of
the 4th Amendment because neither was there physical
invasion onto someone’s property nor was there a
taking of tangible items
Ka tz v . Unite d Sta te s (1967)

Overturned Olmstead’s decision, holding that such an
intrusion into people’s lives does violate an
expectation of privacy, and that a search had, indeed,
occurred

Supreme Court agreed, holding that any form of
electronic surveillance that violates a reasonable

66. Electronic Surveillance, Privacy
Interests and the 4th Amendment



Electronic eavesdropping to searches of people,
their luggage, where they live, and their bodies,
homes, hotel rooms, businesses, obtaining
evidence from a person’s body (urine testing), or
surgical removal of a bullet lodged within a
person are all cases that have been held to
constitute searches under the 4th Amendment
In each case, the person has a reasonable
expectation of privacy
As such, a warrant is generally required

67. Electronic Surveillance, Privacy
Interests and the 4th Amendment

Title III of the Omnibus Crime Control and
Safe Streets Act of 1965


Prohibits the interception of phone conversations
unless one party to the conversation consents
To obtain an electronic-surveillance warrant,
or wiretap order, probable cause that a person
is engaging in particular communications must
be established by the court, and normal
investigative procedures must have already
been tried

68. Electronic Surveillance, Privacy
Interests and the 4th Amendment

The application for such a warrant or
wiretap must be very detailed

Included is why less intrusive means are not
practical

Show that other investigative means have been
attempted

The judge must find probable cause

Is only effective for no more than 30 days

Recording must be provided to the judge who
issued the order, who has control over them

69. Electronic Surveillance and the 4th
Amendment


The Supreme Court has ruled that the
expectation of privacy does not exist when
someone voluntarily converses with someone
else- “unreliable ear” exception
The Supreme Court has ruled that the
expectation of privacy does not exist when
someone converses in public because others
may hear- “uninvited ear” exception

70. Electronic Surveillance and the 4th
Amendment


Title III also regulates use of electronic
devices to tap or intercept wire
communications
These devices are legal under only two
conditions:
1.
2.
A court order authorizes the wiretap
One person consents to the wiretap

71. The Electronic Communications
Privacy Act



Government does have an interest in ensuring
people’s privacy from others and thus they passed
the Electronic Communications Privacy Act in 1986
Prohibits anyone from intentionally intercepting or
endeavoring to intercept any wire, oral, or electronic
communication by someone not a part of that
communication
Cases are now heading to the courts that look at email, texts, and other cell phone information
retained by cellular companies and if they can be
viewed without the permission of those sending and
receiving them

72. Balancing Security Concerns
with Privacy Interests



Since 9/11, security concerns have
conflicted with privacy concerns
The use of GPS tracking has become an
issue in several states
Cases are now being litigated throughout
the country

73. Current Events
United
States
vs. Jones
(2012)



Landmark ruling in applying the 4th
Amendment protections to
advances in surveillance
technology
Prosecutors violated Jones’ rights
when they attached a GPS device
to his vehicle and monitored his
movements for 28 days
Using GPS technology without a
warrant is risky for law enforcement