1197

FOURTH AMENDMENT

SEARCH AND SEIZURE

CONTENTS

Page

Search and Seizure .................................................................................................................... 1199

History and Scope of the Amendment .............................................................................. 1199

History .......................................................................................................................... 1199

Scope of the Amendment ............................................................................................ 1200

The Interest Protected ................................................................................................ 1205

Arrests and Other Detentions .................................................................................... 1209

Searches and Inspections in Noncriminal Cases ...................................................... 1211

Searches and Seizures Pursuant to Warrant ................................................................... 1215

Issuance by Neutral Magistrate ................................................................................. 1216

Probable Cause ............................................................................................................ 1217

Particularity ................................................................................................................. 1220

First Amendment Bearing on Probable Cause and Particularity ........................... 1221

Property Subject to Seizure ........................................................................................ 1223

Execution of Warrants ................................................................................................ 1226

Valid Searches and Seizures Without Warrants ............................................................. 1228

Detention Short of Arrest: Stop-and-Frisk ................................................................ 1229

Search Incident to Arrest ........................................................................................... 1234

Vehicular Searches ...................................................................................................... 1238

Vessel Searches ........................................................................................................... 1241

Consent Searches ........................................................................................................ 1242

Border Searches ........................................................................................................... 1243

‘‘Open Fields’’ ............................................................................................................... 1245

‘‘Plain View’’ ................................................................................................................. 1246

Public Schools .............................................................................................................. 1246

Government Offices ..................................................................................................... 1247

Prisons and Regulation of Probation ......................................................................... 1247

Drug Testing ................................................................................................................ 1248

Electronic Surveillance and the Fourth Amendment ...................................................... 1250

The Olmstead Case ..................................................................................................... 1250

Federal Communications Act ..................................................................................... 1251

Nontelephonic Electronic Surveillance ...................................................................... 1251

The Berger and Katz Cases ........................................................................................ 1252

Warrantless ‘‘National Security’’ Electronic Surveillance ........................................ 1255

Enforcing the Fourth Amendment: The Exclusionary Rule ............................................ 1257

Alternatives to the Exclusionary Rule ....................................................................... 1257

Development of the Exclusionary Rule ...................................................................... 1258

The Foundations of the Exclusionary Rule ............................................................... 1262

Narrowing Application of the Exclusionary Rule ..................................................... 1264

Operation of the Rule: Standing ................................................................................ 1269

1199

1 Apparently the first statement of freedom from unreasonable searches and seizures appeared in The Rights of the Colonists and a List of Infringements and Violations of Rights, 1772, in the drafting of which Samuel Adams took the lead. 1 B.

SCHWARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 199, 205–06 (1971). 2 5 Coke’s Rep. 91a, 77 Eng. Rep. 194 (K.B. 1604). One of the most forceful expressions of the maxim was that of William Pitt in Parliament in 1763: ‘‘The poorest

man may in his cottage bid defiance to all the force of the crown. It may be frail—

its roof may shake—the wind may blow through it—the storm may enter, the rain

may enter—but the King of England cannot enter—all his force dares not cross the

threshold of the ruined tenement.’’ 3 19 Howell’s State Trials 1029, 95 Eng. 807 (1705).

SEARCH AND SEIZURE

FOURTH AMENDMENT

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated; and no Warrants shall issue but

upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons or things to be seized.

SEARCH AND SEIZURE

History and Scope of the Amendment

History.—Few provisions of the Bill of Rights grew so directly

out of the experience of the colonials as the Fourth Amendment,

embodying as it did the protection against the utilization of the

‘‘writs of assistance.’’ But while the insistence on freedom from unreasonable searches and seizures as a fundamental right gained expression in the Colonies late and as a result of experience, 1 there

was also a rich English experience to draw on. ‘‘Every man’s house

is his castle’’ was a maxim much celebrated in England, as was

demonstrated in Semayne’s Case, decided in 1603. 2 A civil case of

execution of process, Semayne’s Case nonetheless recognized the

right of the homeowner to defend his house against unlawful entry

even by the King’s agents, but at the same time recognized the authority of the appropriate officers to break and enter upon notice

in order to arrest or to execute the King’s process. Most famous of

the English cases was Entick v. Carrington, 3 one of a series of civil

actions against state officers who, pursuant to general warrants,

had raided many homes and other places in search of materials
1200 AMENDMENT 4—SEARCHES AND SEIZURES

4See also Wilkes v. Wood, 98 Eng. 489 (C.P. 1763); Huckle v. Money, 95 Eng.

Rep. 768 (K.B. 1763), aff’d 19 Howell’s State Trials 1002, 1028; 97 Eng. Rep. 1075

(K.B. 1765). 5 5 Eng. Rep. 817, 818.

6 Boyd v. United States, 116 U.S. 616, 626 (1886).

7The arguments of Otis and others as well as much background material are

contained in Quincy’s MASSACHUSETTS REPORTS, 1761–1772, App. I, pp. 395–540,

and in 2 LEGAL PAPERS OF JOHN ADAMS 106–47 (Wroth & Zobel eds., 1965). See

also Dickerson, Writs of Assistance as a Cause of the American Revolution, in THE

ERA OF THE AMERICAN REVOLUTION: STUDIES INSCRIBED TO EVARTS BOUTELL

GREENE 40 (R. Morris, ed., 1939).

connected with John Wilkes’ polemical pamphlets attacking not

only governmental policies but the King himself. 4

Entick, an associate of Wilkes, sued because agents had forcibly broken into his house, broken into locked desks and boxes, and

seized many printed charts, pamphlets and the like. In an opinion

sweeping in terms, the court declared the warrant and the behavior

it authorized subversive ‘‘of all the comforts of society,’’ and the issuance of a warrant for the seizure of all of a person’s papers rather than only those alleged to be criminal in nature ‘‘contrary to the

genius of the law of England.’’ 5 Besides its general character, said

the court, the warrant was bad because it was not issued on a

showing of probable cause and no record was required to be made

of what had been seized. Entick v. Carrington, the Supreme Court

has said, is a ‘‘great judgment,’’ ‘‘one of the landmarks of English

liberty,’’ ‘‘one of the permanent monuments of the British Constitution,’’ and a guide to an understanding of what the Framers meant

in writing the Fourth Amendment. 6

In the colonies, smuggling rather than seditious libel afforded

the leading examples of the necessity for protection against unreasonable searches and seizures. In order to enforce the revenue

laws, English authorities made use of writs of assistance, which

were general warrants authorizing the bearer to enter any house

or other place to search for and seize ‘‘prohibited and uncustomed’’

goods, and commanding all subjects to assist in these endeavors.

The writs once issued remained in force throughout the lifetime of

the sovereign and six months thereafter. When, upon the death of

George II in 1760, the authorities were required to obtain the issuance of new writs, opposition was led by James Otis, who attacked

such writs on libertarian grounds and who asserted the invalidity

of the authorizing statutes because they conflicted with English

constitutionalism. 7 Otis lost and the writs were issued and utilized, but his arguments were much cited in the colonies not only

on the immediate subject but also with regard to judicial review.

Scope of the Amendment.—The language of the provision

which became the Fourth Amendment underwent some modest
AMENDMENT 4—SEARCHES AND SEIZURES 1201

8 1 ANNALS OF CONGRESS 434–35 (June 8, 1789). 9The word ‘‘secured’’ was changed to ‘‘secure’’ and the phrase ‘‘against unreasonable searches and seizures’’ was reinstated. Id. at 754 (August 17, 1789). 10 Id. It has been theorized that the author of the defeated revision, who was

chairman of the committee appointed to arrange the amendments prior to House

passage, simply inserted his provision and that it passed unnoticed. N. LASSON, THE

HISTORY AND DEVELOPMENT OF THE FOURTH AMENDMENT TO THE UNITED STATES

CONSTITUTION 101–03 (1937). 11The amendment was originally in one clause as quoted above; it was the insertion of the defeated amendment to the language which changed the text into two

clauses and arguably had the effect of extending the protection against unreasonable searches and seizures beyond the requirements imposed on the issuance of warrants. It is also possible to read the two clauses together to mean that some seizures

even under warrants would be unreasonable, and this reading has indeed been effectuated in certain cases, although for independent reasons. Boyd v. United States,

116 U.S. 616 (1886); Gouled v. United States, 255 U.S. 298 (1921), overruled by

Warden v. Hayden, 387 U.S. 294 (1967); but see id. at 303 (reserving the question

whether ‘‘there are items of evidential value whose very nature precludes them from

being the object of a reasonable search and seizure.’’)

changes on its passage through the Congress, and it is possible

that the changes reflected more than a modest significance in the

interpretation of the relationship of the two clauses. Madison’s introduced version provided ‘‘The rights to be secured in their persons, their houses, their papers, and their other property, from all

unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the

persons or things to be seized.’’ 8 As reported from committee, with

an inadvertent omission corrected on the floor, 9 the section was almost identical to the introduced version, and the House defeated a

motion to substitute ‘‘and no warrant shall issue’’ for ‘‘by warrants

issuing’’ in the committee draft. In some fashion, the rejected

amendment was inserted in the language before passage by the

House and is the language of the ratified constitutional provision. 10

As noted above, the noteworthy disputes over search and seizure in England and the colonies revolved about the character of

warrants. There were, however, lawful warrantless searches, primarily searches incident to arrest, and these apparently gave rise

to no disputes. Thus, the question arises whether the Fourth

Amendment’s two clauses must be read together to mean that the

only searches and seizures which are ‘‘reasonable’’ are those which

meet the requirements of the second clause, that is, are pursuant

to warrants issued under the prescribed safeguards, or whether the

two clauses are independent, so that searches under warrant must

comply with the second clause but that there are ‘‘reasonable’’

searches under the first clause which need not comply with the second clause. 11 This issue has divided the Court for some time, has
1202 AMENDMENT 4—SEARCHES AND SEIZURES

12 Approval of warrantless searches pursuant to arrest first appeared in dicta

in several cases. Weeks v. United States, 232 U.S. 383, 392 (1914); Carroll v. United

States, 267 U.S. 132, 158 (1925); Agnello v. United States, 269 U.S. 20, 30 (1925).

Whether or not there is to be a rule or a principle generally preferring or requiring

searches pursuant to warrant to warrantless searches, however, has ramifications

far beyond the issue of searches pursuant to arrest. United States v. United States

District Court, 407 U.S. 297, 320 (1972). 13 Compare Marron v. United States, 275 U.S. 192 (1927), with Go-Bart Importing Co. v. United States, 282 U.S. 344 (1931), and United States v. Lefkowitz, 285

U.S. 452 (1932). 14 331 U.S. 145 (1947). 15Trupiano v. United States, 334 U.S. 699, 705 (1948). See also McDonald v.

United States, 335 U.S. 451 (1948). 16 United States v. Rabinowitz, 339 U.S. 56, 66 (1950). 17 Chimel v. California, 395 U.S. 752, 761 (1969). 18Terry v. Ohio, 392 U.S. 1, 20 (1968). In United States v. United States District Court, 407 U.S. 297, 321 (1972), Justice Powell explained that the ‘‘very heart’’

of the Amendment’s mandate is ‘‘that where practical, a governmental search and

seizure should represent both the efforts of the officer to gather evidence of wrongful

seen several reversals of precedents, and is important for the resolution of many cases. It is a dispute which has run most consistently throughout the cases involving the scope of the right to

search incident to arrest. 12 While the right to search the person of

the arrestee without a warrant is unquestioned, how far afield into

areas within and without the control of the arrestee a search may

range is an interesting and crucial matter.

The Court has drawn a wavering line. 13 In Harris v. United

States, 14 it approved as ‘‘reasonable’’ the warrantless search of a

four-room apartment pursuant to the arrest of the man found

there. A year later, however, a reconstituted Court majority set

aside a conviction based on evidence seized by a warrantless search

pursuant to an arrest and adopted the ‘‘cardinal rule that, in seizing goods and articles, law enforcement agents must secure and

use search warrants wherever reasonably practicable.’’ 15 This rule

was set aside two years later by another reconstituted majority

which adopted the premise that the test ‘‘is not whether it is reasonable to procure a search warrant, but whether the search was

reasonable.’’ Whether a search is reasonable, the Court said, ‘‘must

find resolution in the facts and circumstances of each case.’’ 16 However, the Court soon returned to its emphasis upon the warrant.

‘‘The [Fourth] Amendment was in large part a reaction to the general warrants and warrantless searches that had so alienated the

colonists and had helped speed the movement for independence. In

the scheme of the Amendment, therefore, the requirement that ‘no

Warrants shall issue, but upon probable cause,’ plays a crucial

part.’’ 17 Therefore, ‘‘the police must, whenever practicable, obtain

advance judicial approval of searches and seizures through a warrant procedure.’’ 18 Exceptions to searches under warrants were to
AMENDMENT 4—SEARCHES AND SEIZURES 1203

acts and the judgment of the magistrate that the collected evidence is sufficient to

justify invasion of a citizen’s private premises or conversation.’’ Thus, what is ‘‘reasonable’’ in terms of a search and seizure derives content and meaning through reference to the warrant clause. Coolidge v. New Hampshire, 403 U.S. 443, 473–84

(1971). See also Davis v. Mississippi, 394 U.S. 721, 728 (1969); Katz v. United

States, 389 U.S. 347, 356–58 (1967); Warden v. Hayden, 387 U.S. 294, 299 (1967). 19 Chimel v. California, 395 U.S. 752, 762–64 (1969) (limiting scope of search

incident to arrest). See also United States v. United States District Court, 407 U.S.

297 (1972) (rejecting argument that it was ‘‘reasonable’’ to allow President through

Attorney General to authorize warrantless electronic surveillance of persons thought

to be endangering the national security); Katz v. United States, 389 U.S. 347 (1967)

(although officers acted with great self-restraint and reasonably in engaging in electronic seizures of conversations from telephone booth, self-imposition was not

enough and magistrate’s judgment required); Preston v. United States, 376 U.S. 364

(1964) (warrantless search of seized automobile not justified because not within rationale of exceptions to warrant clause). There were exceptions, e.g., Cooper v. California, 386 U.S. 58 (1967) (warrantless search of impounded car was reasonable);

United States v. Harris, 390 U.S. 234 (1968) (warrantless inventory search of automobile). 20See, e.g., Almeida-Sanchez v. United States, 413 U.S. 266 (1973), Justices

Stewart, Douglas, Brennan, and Marshall adhered to the warrant-based rule, while

Justices White, Blackmun, and Rehnquist, and Chief Justice Burger placed greater

emphasis upon the question of reasonableness without necessary regard to the warrant requirement. Id. at 285. Justice Powell generally agreed with the former group

of Justices, id. at 275 (concurring). 21 E.g., G.M. Leasing Corp. v. United States, 429 U.S. 338, 352–53 (1977) (unanimous); Marshall v. Barlow’s, Inc., 436 U.S. 307, 312 (1978); Michigan v. Tyler, 436

U.S. 499, 506 (1978); Mincey v. Arizona, 437 U.S. 385, 390 (1978) (unanimous); Arkansas v. Sanders, 442 U.S. 743, 758 (1979); United States v. Ross, 456 U.S. 798,

824–25 (1982). 22 E.g., Chambers v. Maroney, 399 U.S. 42 (1970) (warrantless search of automobile taken to police station); Texas v. White, 423 U.S. 67 (1975) (same); New York

v. Belton, 453 U.S. 454 (1981) (search incident to arrest); United States v. Ross, 456

U.S. 798 (1982) (automobile search at scene). On the other hand, the warrant-based

standard did preclude a number of warrantless searches. E.g., Almeida-Sanchez v.

United States, 413 U.S. 266 (1973) (warrantless stop and search of auto by roving

patrol near border); Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978) (warrantless administrative inspection of business premises); Mincey v. Arizona, 437 U.S. 385

(1978) (warrantless search of home that was ‘‘homicide scene’’). 23Of the 1992 Justices, only Justice Stevens has frequently sided with the warrants-with-narrow-exceptions approach. See, e.g., Illinois v. Rodriguez, 497 U.S. 177,

be closely contained by the rationale undergirding the necessity for

the exception, and the scope of a search under one of the exceptions

was similarly limited. 19

During the 1970s the Court was closely divided on which

standard to apply. 20 For a while, the balance tipped in favor of the

view that warrantless searches are per se unreasonable, with a few

carefully prescribed exceptions. 21 Gradually, guided by the variable

expectation of privacy approach to coverage of the Fourth Amendment, the Court broadened its view of permissible exceptions and

of the scope of those exceptions. 22

By 1992, it was no longer the case that the ‘‘warrants-withnarrow-exceptions’’ standard normally prevails over a ‘‘reasonableness’’ approach. 23 Exceptions to the warrant requirement have
1204 AMENDMENT 4—SEARCHES AND SEIZURES

189 (Justice Stevens joining Justice Marshall’s dissent); New Jersey v. T.L.O., 469

U.S. 325, 370 (1985) (Justice Stevens dissenting); California v. Acevedo, 500 U.S.

565, 585 (1991) (Justice Stevens dissenting). 24See various headings infra under the general heading ‘‘Valid Searches and

Seizures Without Warrants.’’ 25 New York v. Burger, 482 U.S. 691 (1987). 26 Illinois v. Rodriguez, 497 U.S. 177 (1990). 27Maryland v. Buie, 494 U.S. 325 (1990). 28 United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990).

multiplied, tending to confine application of the requirement to

cases that are exclusively ‘‘criminal’’ in nature. And even within

that core area of ‘‘criminal’’ cases, some exceptions have been

broadened. The most important category of exception is that of administrative searches justified by ‘‘special needs beyond the normal

need for law enforcement.’’ Under this general rubric the Court has

upheld warrantless searches by administrative authorities in public

schools, government offices, and prisons, and has upheld drug testing of public and transportation employees. 24 In all of these instances the warrant and probable cause requirements are dispensed with in favor of a reasonableness standard that balances

the government’s regulatory interest against the individual’s privacy interest; in all of these instances the government’s interest

has been found to outweigh the individual’s. The broad scope of the

administrative search exception is evidenced by the fact that an

overlap between law enforcement objectives and administrative

‘‘special needs’’ does not result in application of the warrant requirement; instead, the Court has upheld warrantless inspection of

automobile junkyards and dismantling operations in spite of the

strong law enforcement component of the regulation. 25 In the law

enforcement context, where search by warrant is still the general

rule, there has also been some loosening of the requirement. For

example, the Court has shifted focus from whether exigent circumstances justified failure to obtain a warrant, to whether an officer had a ‘‘reasonable’’ belief that an exception to the warrant requirement applied; 26 in another case the scope of a valid search

‘‘incident to arrest,’’ once limited to areas within the immediate

reach of the arrested suspect, was expanded to a ‘‘protective sweep’’

of the entire home if arresting officers have a reasonable belief that

the home harbors an individual who may pose a danger. 27

Another matter of scope recently addressed by the Court is the

category of persons protected by the Fourth Amendment—who constitutes ‘‘the people.’’ This phrase, the Court determined, ‘‘refers to

a class of persons who are part of a national community or who

have otherwise developed sufficient connection with [the United

States] to be considered part of that community.’’ 28 The Fourth

Amendment therefore does not apply to the search and seizure by
AMENDMENT 4—SEARCHES AND SEIZURES 1205

29 19 Howell’s State Trials 1029, 1035, 95 Eng. Reg. 807, 817–18 (1765). 30 Boyd v. United States, 116 U.S. 616, 627 (1886); Adams v. New York, 192

U.S. 585, 598 (1904). 31Thus, the rule that ‘‘mere evidence’’ could not be seized but rather only the

fruits of crime, its instrumentalities, or contraband, turned upon the question of the

right of the public to possess the materials or the police power to make possession

by the possessor unlawful. Gouled v. United States, 255 U.S. 298 (1921), overruled

by Warden v. Hayden, 387 U.S. 294 (1967). See also Davis v. United States, 328

U.S. 582 (1946). Standing to contest unlawful searches and seizures was based upon

property interests, United States v. Jeffers, 342 U.S. 48 (1951); Jones v. United

States, 362 U.S. 257 (1960), as well as decision upon the validity of a consent to

search. Chapman v. United States, 365 U.S. 610 (1961); Stoner v. California, 376

U.S. 483 (1964); Frazier v. Culp, 394 U.S. 731, 740 (1969). 32 277 U.S. 438 (1928). See also Goldman v. United States, 316 U.S. 129 (1942)

(detectaphone placed against wall of adjoining room; no search and seizure).

United States agents of property that is owned by a nonresident

alien and located in a foreign country. The community of protected

people includes U.S. citizens who go abroad, and aliens who have

voluntarily entered U.S. territory and developed substantial connections with this country. There is no resulting broad principle,

however, that the Fourth Amendment constrains federal officials

wherever and against whomever they act.

The Interest Protected.—For the Fourth Amendment to be

applicable to a particular set of facts, there must be a ‘‘search’’ and

a ‘‘seizure,’’ occurring typically in a criminal case, with a subsequent attempt to use judicially what was seized. Whether there

was a search and seizure within the meaning of the Amendment,

whether a complainant’s interests were constitutionally infringed,

will often turn upon consideration of his interest and whether it

was officially abused. What does the Amendment protect? Under

the common law, there was no doubt. Said Lord Camden in Entick

v. Carrington: 29 ‘‘The great end for which men entered in society

was to secure their property. That right is preserved sacred and incommunicable in all instances where it has not been taken away

or abridged by some public law for the good of the whole. . . . By

the laws of England, every invasion of private property, be it ever

so minute, is a trespass. No man can set foot upon my ground without my license but he is liable to an action though the damage be

nothing . . . .’’ Protection of property interests as the basis of the

Fourth Amendment found easy acceptance in the Supreme Court 30

and that acceptance controlled decision in numerous cases. 31 For

example, in Olmstead v. United States, 32 one of the two premises

underlying the holding that wiretapping was not covered by the

Amendment was that there had been no actual physical invasion

of the defendant’s premises; where there had been an invasion, a

technical trespass, electronic surveillance was deemed subject to
1206 AMENDMENT 4—SEARCHES AND SEIZURES

33Silverman v. United States, 365 U.S. 505 (1961) (spike mike pushed through

a party wall until it hit a heating duct).

34Warden v. Hayden, 387 U.S. 294, 304 (1967).

35Katz v. United States, 389 U.S. 347, 353 (1967). But see California v. Hodari

D., 499 U.S. 621, 626 (1991) (Fourth Amendment ‘‘seizure’’ of the person is the same

as a common law arrest; there must be either application of physical force or submission to the assertion of authority).

36 389 U.S. at 353. Justice Harlan, concurring, formulated a two pronged test

for determining whether the privacy interest is paramount: ‘‘first that a person have

exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’’’ Id. at 361.

37 Id. at 351–52.

38Mancusi v. DeForte, 392 U.S. 364, 368 (1968) (official had a reasonable expectation of privacy in an office he shared with others, although he owned neither the

premises nor the papers seized). Minnesota v. Olson, 495 U.S. 91 (1990) (overnight

guest in home has a reasonable expectation of privacy). Cf. Rakas v. Illinois, 439

U.S. 128 (1978).

39 Justice Harlan’s opinion has been much relied upon. E.g., Terry v. Ohio, 392

U.S. 1, 19 (1968); Rakas v. Illinois, 439 U.S. 128, 143–144 n.12 (1978); Smith v.

Maryland, 442 U.S. 735, 740–41 (1979); United States v. Salvucci, 448 U.S. 83, 91–

92 (1980); Rawlings v. Kentucky, 448 U.S. 98, 105–06 (1980).

Fourth Amendment restrictions. 33 The Court later rejected this approach, however. ‘‘The premise that property interests control the

right of the Government to search and seize has been discredited.

. . . We have recognized that the principal object of the Fourth

Amendment is the protection of privacy rather than property, and

have increasingly discarded fictional and procedural barriers rested

on property concepts.’’ 34 Thus, because the Amendment ‘‘protects

people, not places,’’ the requirement of actual physical trespass is

dispensed with and electronic surveillance was made subject to the

Amendment’s requirements. 35

The test propounded in Katz is whether there is an expectation

of privacy upon which one may ‘‘justifiably’’ rely. 36 ‘‘What a person

knowingly exposes to the public, even in his own home or office, is

not a subject of Fourth Amendment protection. But what he seeks

to preserve as private, even in an area accessible to the public, may

be constitutionally protected.’’ 37 That is, the ‘‘capacity to claim the

protection of the Amendment depends not upon a property right in

the invaded place but upon whether the area was one in which

there was reasonable expectation of freedom from governmental intrusion.’’ 38

The two-part test that Justice Harlan suggested in Katz 39 has

purported to guide the Court in its deliberations, but its consequences are unclear. On the one hand, there is no difference in

result between many of the old cases premised on property concepts and more recent cases in which the reasonable expectation of
AMENDMENT 4—SEARCHES AND SEIZURES 1207

40 E.g., Alderman v. United States, 394 U.S. 165 (1969) (home owner could object to electronic surveillance of conversations emanating from his home, even

though he was not party to the conversations). 41 E.g., Rakas v. Illinois, 439 U.S. 128 (1978) (4–1–4 decision: passengers in

automobile who own neither the car nor the property seized had no legitimate expectation of privacy in areas searched). 42 United States v. White, 401 U.S. 745, 786 (1971). See Smith v. Maryland, 442

U.S. 735, 740 n.5 (1979) (government could not condition ‘‘subjective expectations’’

by, say, announcing that henceforth all homes would be subject to warrantless

entry, and thus destroy the ‘‘legitimate expectation of privacy’’). 43 Rakas v. Illinois, 439 U.S. 128, 144 n.12 (1978). 44 E.g., Alderman v. United States, 394 U.S. 165 (1969); Mincey v. Arizona, 437

U.S. 385 (1978); Payton v. New York, 445 U.S. 573 (1980). 45 E.g., United States v. Ross, 456 U.S. 798 (1982). See also Donovan v. Dewey,

452 U.S. 594 (1981) (commercial premises); Maryland v. Macon, 472 U.S. 463 (1985)

(no legitimate expectation of privacy in denying to undercover officers allegedly obscene materials offered to public in bookstore). 46 E.g., United States v. Chadwick, 433 U.S. 1, 11 (1977); Katz v. United States,

389 U.S. 347, 352 (1967). But cf. South Dakota v. Opperman, 428 U.S. 364 (1976)

(no legitimate expectation of privacy in automobile left with doors locked and windows rolled up). In Rawlings v. Kentucky, 448 U.S. 98 (1980), the fact that defendant had dumped a cache of drugs into his companion’s purse, having known her for

only a few days and knowing others had access to the purse, was taken to establish

that he had no legitimate expectation the purse would be free from intrusion. 47 E.g., United States v. Miller, 425 U.S. 435 (1976) (bank records); Smith v.

Maryland, 442 U.S. 735 (1979) (numbers dialed from one’s telephone); Hudson v.

Palmer, 468 U.S. 517 (1984) (prison cell); Illinois v. Andreas, 463 U.S. 765 (1983)

(shipping container opened and inspected by customs agents and resealed and delivprivacy flows from ownership concepts. 40 On the other hand, many

other cases have presented close questions that have sharply divided the Court. 41 The first element, the ‘‘subjective expectation’’

of privacy, has largely dwindled as a viable standard, because, as

Justice Harlan noted in a subsequent case, ‘‘our expectations, and

the risks we assume, are in large part reflections of laws that

translate into rules the customs and values of the past and

present.’’ 42 As for the second element, whether one has a ‘‘legitimate’’ expectation of privacy that society finds ‘‘reasonable’’ to recognize, the Court has said that ‘‘[l]egitimation of expectations of

privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property

law or to understandings that are recognized and permitted by society.’’ 43 Thus, protection of the home is at the apex of Fourth

Amendment coverage because of the right associated with ownership to exclude others; 44 but ownership of other things, i.e., automobiles, does not carry a similar high degree of protection. 45 That

a person has taken normal precautions to maintain his privacy,

that is, precautions customarily taken by those seeking to exclude

others, is usually a significant factor in determining legitimacy of

expectation. 46 Some expectations, the Court has held, are simply

not those which society is prepared to accept. 47 While perhaps not
1208 AMENDMENT 4—SEARCHES AND SEIZURES

ered to the addressee); California v. Greenwood, 486 U.S. 35 (1988) (garbage in

sealed plastic bags left at curb for collection). 48 United States v. White, 401 U.S. 745, 786–87 (1971) (Justice Harlan dissenting).49 E.g., Robbins v. California, 453 U.S. 420, 429, 433–34 (1981) (Justice Powell

concurring), quoted approvingly in United States v. Ross, 456 U.S. 798, 815–16 &

n.21 (1982). 50Katz v. United States, 389 U. S. 347, 351–52 (1967). 51Terry v. Ohio, 392 U.S. 1, 19 (1968). 52The prime example is the home, so that for entries either to search or to arrest, ‘‘the Fourth Amendment has drawn a firm line at the entrance to the house.

Absent exigent circumstances, that threshold may not reasonably be crossed without

a warrant.’’ Payton v. New York, 445 U.S. 573, 590 (1980); Steagald v. United

States, 451 U.S. 204, 212 (1981). And see Mincey v. Arizona, 437 U.S. 385 (1978). 53One has a diminished expectation of privacy in automobiles. Arkansas v.

Sanders, 442 U.S. 753, 761 (1979) (collecting cases); United States v. Ross, 456 U.S.

798, 804–09 (1982). A person’s expectation of privacy in personal luggage and other

closed containers is substantially greater than in an automobile, United States v.

Chadwick, 433 U.S. 1, 13 (1977); Arkansas v. Sanders, 442 U.S. 753 (1979), although if the luggage or container is found in an automobile as to which there exists

probable cause to search, the legitimate expectancy diminishes accordingly. United

States v. Ross, supra. There is also a diminished expectation of privacy in a mobile

home parked in a parking lot and licensed for vehicular travel. California v. Carney,

471 U.S. 386 (1985) (leaving open the question of whether the automobile exception

clearly expressed in the opinions, what seems to have emerged is

a balancing standard, which requires ‘‘an assessing of the nature

of a particular practice and the likely extent of its impact on the

individual’s sense of security balanced against the utility of the

conduct as a technique of law enforcement.’’ As the intrusions grow

more extensive and significantly jeopardize the sense of security of

the individual, greater restraint of police officers through the warrant requirement may be deemed necessary. 48 On the other hand,

the Court’s solicitude for law enforcement objectives may tilt the

balance in the other direction.

Application of this balancing test, because of the Court’s weighing in of law enforcement investigative needs 49 and the Court’s

subjective evaluation of privacy needs, has led to the creation of a

two-tier or sliding-tier scale of privacy interests. The privacy test

was originally designed to permit a determination that a Fourth

Amendment protected interest had been invaded. 50 If it had been,

then ordinarily a warrant was required, subject only to the narrowly defined exceptions, and the scope of the search under those

exceptions was ‘‘strictly tied to and justified by the circumstances

which rendered its initiation permissible.’’ 51 But the Court now

uses the test to determine whether the interest invaded is important or persuasive enough so that a warrant is required to justify

it; 52 if the individual has a lesser expectation of privacy, then the

invasion may be justified, absent a warrant, by the reasonableness

of the intrusion. 53 Exceptions to the warrant requirement are no
AMENDMENT 4—SEARCHES AND SEIZURES 1209

also applies to a ‘‘mobile’’ home being used as a residence and not adapted for immediate vehicular use). 54 E.g., Texas v. White, 423 U.S. 67 (1975) (if probable cause to search automobile existed at scene, it can be removed to station and searched without warrant);

United States v. Robinson, 414 U.S. 218 (1973) (once an arrest has been validly

made, search pursuant thereto is so minimally intrusive in addition that scope of

search is not limited by necessity of security of officer); United States v. Edwards,

415 U.S. 800 (1974) (incarcerated suspect; officers need no warrant to take his

clothes for test because little additional intrusion). But see Ybarra v. Illinois, 444

U.S. 85 (1979) (officers on premises to execute search warrant of premises may not

without more search persons found on premises). 55 Ex parte Burford, 7 U.S. (3 Cr.) 448 (1806). 56Giordenello v. United States, 357 U.S. 480, 485–86 (1958); United States v.

Watson, 423 U.S. 411, 416–18 (1976); Payton v. New York, 445 U.S. 573, 583–86

(1980); Steagald v. United States, 451 U.S. 204, 211–13 (1981). 57 1 J. STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND 193 (1883). 58 United States v. Watson, 423 U.S. 411 (1976). See also United States v.

Santana, 427 U.S. 38 (1976) (sustaining warrantless arrest of suspect in her home

when she was initially approached in her doorway and then retreated into house).

However, a suspect arrested on probable cause but without a warrant is entitled to

a prompt, nonadversary hearing before a magistrate under procedures designed to

provide a fair and reliable determination of probable cause in order to keep the arrestee in custody. Gerstein v. Pugh, 420 U.S. 103 (1975). 59Payton v. New York, 445 U.S. 573 (1980) (voiding state law authorizing police

to enter private residence without a warrant to make an arrest); Steagald v. United

States, 451 U.S. 204 (1981) (officers with arrest warrant for A entered B’s home

without search warrant and discovered incriminating evidence; violated Fourth

Amendment in absence of warrant to search the home); Hayes v. Florida, 470 U.S.

811 (1985) (officers went to suspect’s home and took him to police station for

fingerprinting). 60 United States v. Mendenhall, 446 U.S. 544, 554 (1980) (opinion of Justice

Stewart) (‘‘[A] person has been ‘seized’ within the meaning of the Fourth Amendlonger evaluated solely by the justifications for the exception, e.g.,

exigent circumstances, and the scope of the search is no longer tied

to and limited by the justification for the exception. 54 The result

has been a considerable expansion, beyond what existed prior to

Katz, of the power of police and other authorities to conduct

searches.

Arrests and Other Detentions.—That the Fourth Amendment was intended to protect against arbitrary arrests as well as

against unreasonable searches was early assumed by Chief Justice

Marshall 55 and is now established law. 56 At the common law, it

was proper to arrest one who had committed a breach of the peace

or a felony without a warrant, 57 and this history is reflected in the

fact that the Fourth Amendment is satisfied if the arrest is made

in a public place on probable cause, regardless of whether a warrant has been obtained. 58 However, in order to effectuate an arrest

in the home, absent consent or exigent circumstances, police officers must have a warrant. 59 The Fourth Amendment applies to

‘‘seizures’’ and it is not necessary that a detention be a formal arrest in order to bring to bear the requirements of warrants or probable cause in instances in which warrants may be forgone. 60 Some
1210 AMENDMENT 4—SEARCHES AND SEIZURES

ment only if, in view of all the circumstances surrounding the incident, a reasonable

person would have believed that he was not free to leave’’). See also Reid v. Georgia,

448 U.S. 438 (1980); United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975);

Terry v. Ohio, 392 U.S. 1, 16–19 (1968). Apprehension by the use of deadly force

is a seizure subject to the Fourth Amendment’s reasonableness requirement. See,

e.g., Tennessee v. Garner, 471 U.S. 1 (1985) (police officer’s fatal shooting of a fleeing suspect); Brower v. County of Inyo, 489 U.S. 593 (1989) (police roadblock designed to end car chase with fatal crash). 61 Adams v. Williams, 407 U.S. 143, 146–49 (1972); Delaware v. Prouse, 440

U.S. 648, 661 (1979); Brown v. Texas, 443 U.S. 47, 51 (1979); Reid v. Georgia, 448

U.S. 438, 440 (1980); Michigan v. Summers, 452 U.S. 692 (1981). 62Ker v. Illinois, 119 U.S. 436, 440 (1886); see also Albrecht v. United States,

273 U.S. 1 (1927); Frisbie v. Collins, 342 U.S. 519 (1952). 63Wong Sun v. United States, 371 U.S. 471 (1963). Such evidence is the ‘‘fruit

of the poisonous tree,’’ Nardone v. United States, 308 U.S. 338, 341 (1939), that is,

evidence derived from the original illegality. Previously, if confessions were voluntary for purposes of the self-incrimination clause, they were admissible notwithstanding any prior official illegality. Colombe v. Connecticut, 367 U.S. 568 (1961). 64 Although there is a presumption that the illegal arrest is the cause of the

subsequent confession, the presumption is rebuttable by a showing that the confession is the result of ‘‘an intervening . . . act of free will.’’ Wong Sun v. United

States, 371 U.S. 471, 486 (1963). The factors used to determine whether the taint

has been dissipated are the time between the illegal arrest and the confession,

whether there were intervening circumstances (such as consultation with others,

Miranda warnings, etc.), and the degree of flagrancy and purposefulness of the official conduct. Brown v. Illinois, 422 U.S. 590 (1975) (Miranda warnings alone insufficient); Dunaway v. New York, 442 U.S. 200 (1979); Taylor v. Alabama, 457 U.S. 687

(1982). In Johnson v. Louisiana, 406 U.S. 356 (1972), the fact that the suspect had

been taken before a magistrate who advised him of his rights and set bail, after

which he confessed, established a sufficient intervening circumstance. 65Davis v. Mississippi, 394 U.S. 721 (1969); Taylor v. Alabama, 457 U.S. 687

(1982). In United States v. Crews, 445 U.S. 463 (1980), the Court, unanimously but

objective justification must be shown to validate all seizures of the

person, including seizures that involve only a brief detention short

of arrest, although the nature of the detention will determine

whether probable cause or some reasonable and articulable suspicion is necessary. 61

Until relatively recently, the legality of arrests was seldom litigated in the Supreme Court because of the rule that a person detained pursuant to an arbitrary seizure—unlike evidence obtained

as a result of an unlawful search—remains subject to custody and

presentation to court. 62 But the application of self-incrimination

and other exclusionary rules to the States and the heightening of

their scope in state and federal cases alike brought forth the rule

that verbal evidence, confessions, and other admissions, like all derivative evidence obtained as a result of unlawful seizures, could be

excluded. 63 Thus, a confession made by one illegally in custody

must be suppressed, unless the causal connection between the illegal arrest and the confession had become so attenuated that the

latter should not be deemed ‘‘tainted’’ by the former. 64 Similarly,

fingerprints and other physical evidence obtained as a result of an

unlawful arrest must be suppressed. 65
AMENDMENT 4—SEARCHES AND SEIZURES 1211

for a variety of reasons, held proper the identification in court of a defendant, who

had been wrongly arrested without probable cause, by the crime victim. The court

identification was not tainted by either the arrest or the subsequent in-custody identification. See also Hayes v. Florida, 470 U.S. 811, 815 (1985), suggesting in dictum

that a ‘‘narrowly circumscribed procedure for fingerprinting detentions on less than

probable cause’’ may be permissible. 66 In re Strouse, 23 Fed. Cas. 261 (No. 13,548) (D. Nev. 1871); In re Meador,

16 Fed. Cas. 1294, 1299 (No. 9375) (N.D. Ga. 1869). 67 Abel v. United States, 362 U.S. 217 (1960); Frank v. Maryland, 359 U.S. 360

(1959); Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186 (1946). 68 Camara v. Municipal Court, 387 U.S. 523 (1967) (home); See v. City of Seattle, 387 U.S. 541 (1967) (commercial warehouse). 69 Camara v. Municipal Court, 387 U.S. 523, 530 (1967). 70 Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970); United States

v. Biswell, 406 U.S. 311 (1972). Colonnade, involving liquor, was based on the long

history of close supervision of the industry. Biswell, involving firearms, introduced

factors that were subsequently to prove significant. Thus, while the statute was of

recent enactment, firearms constituted a pervasively regulated industry, so that

dealers had no reasonable expectation of privacy, inasmuch as the law provides for

regular inspections. Further, warrantless inspections were needed for effective enforcement of the statute. 71 436 U.S. 307 (1978). Dissenting, Justice Stevens, with Justices Rehnquist and

Blackmun, argued that not the warrant clause but the reasonableness clause should

govern administrative inspections. Id. at 325.

Searches and Inspections in Noncriminal Cases.—Certain

early cases held that the Fourth Amendment was applicable only

when a search was undertaken for criminal investigatory purposes, 66 and the Supreme Court until recently employed a reasonableness test for such searches without requiring either a warrant

or probable cause in the absence of a warrant. 67 But in 1967, the

Court held in two cases that administrative inspections to detect

building code violations must be undertaken pursuant to warrant

if the occupant objects. 68 ‘‘We may agree that a routine inspection

of the physical condition of private property is a less hostile intrusion than the typical policeman’s search for the fruits and instrumentalities of crime. . . . But we cannot agree that the Fourth

Amendment interests at stake in these inspection cases are merely

‘peripheral.’ It is surely anomalous to say that the individual and

his private property are fully protected by the Fourth Amendment

only when the individual is suspected of criminal behavior.’’ 69 Certain administrative inspections utilized to enforce regulatory

schemes with regard to such items as alcohol and firearms are,

however, exempt from the Fourth Amendment warrant requirement and may be authorized simply by statute. 70

Camara and See were reaffirmed in Marshall v. Barlow’s,

Inc., 71 in which the Court held violative of the Fourth Amendment

a provision of the Occupational Safety and Health Act which authorized federal inspectors to search the work area of any employment facility covered by the Act for safety hazards and violations

of regulations, without a warrant or other legal process. The liquor
1212 AMENDMENT 4—SEARCHES AND SEIZURES

72 Administrative warrants issued on the basis of less than probable cause but

only on a showing that a specific business had been chosen for inspection on the

basis of a general administrative plan would suffice. Even without a necessity for

probable cause, the requirement would assure the interposition of a neutral officer

to establish that the inspection was reasonable and was properly authorized. Id. at

321, 323. The dissenters objected that the warrant clause was being constitutionally

diluted. Id. at 325. Administrative warrants were approved also in Camara v. Municipal Court, 387 U.S. 523, 538 (1967). Previously, one of the reasons given for finding administrative and noncriminal inspections not covered by the Fourth Amendment was the fact that the warrant clause would be as rigorously applied to them

as to criminal searches and seizures. Frank v. Maryland, 359 U.S. 360, 373 (1959).

See also Almeida-Sanchez v. United States, 413 U.S. 266, 275 (1973) (Justice Powell

concurring) (suggesting a similar administrative warrant procedure empowering police and immigration officers to conduct roving searches of automobiles in areas near

the Nation’s borders); id. at 270 n.3 (indicating that majority Jusitces were divided

on the validity of such area search warrants); id. at 288 (dissenting Justice White

indicating approval); United States v. Martinez-Fuerte, 428 U.S. 543, 547 n.2, 562

n.15 (1976). 73 452 U.S. 594 (1981). 74There is no suggestion that warrantless inspections of homes is broadened.

Id. at 598, or that warrantless entry under exigent circumstances is curtailed. See,

e.g., Michigan v. Tyler, 436 U.S. 499 (1978) (no warrant required for entry by firefighters to fight fire; once there, firefighters may remain for reasonable time to investigate the cause of the fire).

and firearms exceptions were distinguished on the basis that those

industries had a long tradition of close government supervision, so

that a person in those businesses gave up his privacy expectations.

But OSHA was a relatively recent statute and it regulated practically every business in or affecting interstate commerce; it was

not open to a legislature to extend regulation and then follow it

with warrantless inspections. Additionally, OSHA inspectors had

unbounded discretion in choosing which businesses to inspect and

when to do so, leaving businesses at the mercy of possibly arbitrary

actions and certainly with no assurances as to limitation on scope

and standards of inspections. Further, warrantless inspections

were not necessary to serve an important governmental interest,

inasmuch as most businesses would consent to inspection and it

was not inconvenient to require OSHA to resort to an administrative warrant in order to inspect sites where consent was refused. 72

In Donovan v. Dewey, 73 however, Barlow’s was substantially

limited and a new standard emerged permitting extensive governmental inspection of commercial property, 74 absent warrants.

Under the Federal Mine Safety and Health Act, governing underground and surface mines (including stone quarries), federal officers are directed to inspect underground mines at least four times

a year and surface mines at least twice a year, pursuant to extensive regulations as to standards of safety. The statute specifically

provides for absence of advanced notice and requires the Secretary

of Labor to institute court actions for injunctive and other relief in
AMENDMENT 4—SEARCHES AND SEIZURES 1213

75Donovan v. Dewey, 452 U.S. 594, 598–99 (1981). 76 Id. at 596–97, 604–05. Pursuant to the statute, however, the Secretary has

promulgated regulations providing for the assessment of civil penalties for denial of

entry and Dewey had been assessed a penalty of $1,000. Id. at 597 n.3. It was also

true in Barlow’s that the Government resorted to civil process upon refusal to

admit. 436 U.S. at 317 & n.12. 77Donovan v. Dewey, 452 U.S. 594, 606 (1981). Duration of regulation will now

be a factor in assessing the legitimate expectation of privacy of a business. Ibid. Accord, New York v. Burger, 482 U.S. 691 (1987) (although duration of regulation of

vehicle dismantling was relatively brief, history of regulation of junk business generally was lengthy, and current regulation of dismantling was extensive). 78 482 U.S. 691 (1987).

cases in which inspectors are denied admission. Sustaining the

statute, the Court proclaimed that government had a ‘‘greater latitude’’ to conduct warrantless inspections of commercial property

than of homes, because of ‘‘the fact that the expectation of privacy

that the owner of commercial property enjoys in such property differs significantly from the sanctity accorded an individual’s home,

and that this privacy interest may, in certain circumstances, be

adequately protected by regulatory schemes authorizing

warrantless inspections.’’ 75

Dewey was distinguished from Barlow’s in several ways. First,

Dewey involved a single industry, unlike the broad coverage in Barlow’s. Second, the OSHA statute gave minimal direction to inspectors as to time, scope, and frequency of inspections, while FMSHA

specified a regular number of inspections pursuant to standards.

Third, deference was due Congress’ determination that unannounced inspections were necessary if the safety laws were to be

effectively enforced. Fourth, FMSHA provided businesses the opportunity to contest the search by resisting in the civil proceeding

the Secretary had to bring if consent was denied. 76 The standard

of a long tradition of government supervision permitting

warrantless inspections was dispensed with, because it would lead

to ‘‘absurd results,’’ in that new and emerging industries posing

great hazards would escape regulation. 77 Dewey suggests, therefore, that warrantless inspections of commercial establishments are

permissible so long as the legislature carefully drafts its statute.

Dewey was applied in New York v. Burger 78 to inspection of

automobile junkyards and vehicle dismantling operations, a situation where there is considerable overlap between administrative

and penal objectives. Applying the Dewey three-part test, the Court

concluded that New York has a substantial interest in stemming

the tide of automobile thefts, that regulation of vehicle dismantling

reasonably serves that interest, and that statutory safeguards provided adequate substitute for a warrant requirement. The Court rejected the suggestion that the warrantless inspection provisions
1214 AMENDMENT 4—SEARCHES AND SEIZURES

79 482 U.S. at 712 (emphasis original). 80 436 U.S. 499 (1978). 81The Court also held that, after the fire was extinguished, if fire investigators

were unable to proceed at the moment, because of dark, steam, and smoke, it was

proper for them to leave and return at daylight without any necessity of complying

with its mandate for administrative or criminal warrants. Id. at 510–11. But cf.

Michigan v. Clifford, 464 U.S. 287 (1984) (no such justification for search of private

residence begun at 1:30 p.m. when fire had been extinguished at 7 a.m.). 82Wyman v. James, 400 U.S. 309 (1971). It is not clear what rationale the majority utilized. It appears to have proceeded on the assumption that a ‘‘home visit’’

was not a search and that the Fourth Amendment does not apply when criminal

prosecution is not threatened. Neither premise is valid under Camara and its progeny, although Camara preceded Wyman. Presumably, the case would today be analyzed under the expectation of privacy/need/structural protection theory of the more

recent cases. 83Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (administrative needs of probation system justify warrantless searches of probationers’ homes on less than probwere designed as an expedient means of enforcing the penal laws,

and instead saw narrower, valid regulatory purposes to be served:

e.g., establishing a system for tracking stolen automobiles and

parts, and enhancing the ability of legitimate businesses to compete. ‘‘[A] State can address a major social problem both by way of

an administrative scheme and through penal sanctions,’’ the Court

declared; in such circumstances warrantless administrative

searches are permissible in spite of the fact that evidence of criminal activity may well be uncovered in the process. 79

In other contexts, the Court has also elaborated the constitutional requirements affecting administrative inspections and

searches. Thus, in Michigan v. Tyler, 80 it subdivided the process by

which an investigation of the cause of a fire may be conducted.

Entry to fight the fire is, of course, an exception based on exigent

circumstances, and no warrant or consent is needed; firemen on the

scene may seize evidence relating to the cause under the plain view

doctrine. Additional entries to investigate the cause of the fire must

be made pursuant to warrant procedures governing administrative

searches. Evidence of arson discovered in the course of such an administrative inspection is admissible at trial, but if the investigator

finds probable cause to believe that arson has occurred and requires further access to gather evidence for a possible prosecution,

he must obtain a criminal search warrant. 81

One curious case has approved a system of ‘‘home visits’’ by

welfare caseworkers, in which the recipients are required to admit

the worker or lose eligibility for benefits. 82

In addition, there are now a number of situations, some of

them analogous to administrative searches, where ‘‘‘special needs’

beyond normal law enforcement . . . justify departures from the

usual warrant and probable cause requirements.’’ 83 In one of these
AMENDMENT 4—SEARCHES AND SEIZURES 1215

able cause); Hudson v. Palmer, 468 U.S. 517, 526 (1984) (no Fourth Amendment

protection from search of prison cell); New Jersey v. T.L.O., 469 U.S. 325 (1985)

(simple reasonableness standard governs searches of students’ persons and effects

by public school authorities); O’Connor v. Ortega, 480 U.S. 709 (1987) (reasonableness test for work-related searches of employees’ offices by government employer);

Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989) (neither probable

cause nor individualized suspicion is necessary for mandatory drug testing of railway employees involved in accidents or safety violations). All of these cases are discussed infra under the general heading ‘‘Valid Searches and Seizures Without Warrants.’’ 84Skinner, supra n.83, 489 U.S. at 627. 85Delaware v. Prouse, 440 U.S. 648 (1979). Standards applied in this case had

been developed in the contexts of automobile stops at fixed points or by roving patrols in border situations. Almeida-Sanchez v. United States, 413 U.S. 266 (1973);

United States v. Brignoni-Ponce, 422 U.S. 873 (1975); United States v. Ortiz, 422

U.S. 891 (1975); United States v. Martinez-Fuerte, 428 U.S. 543 (1976). 86 428 U.S. 364 (1976). See also Cady v. Dombrowski, 413 U.S. 433 (1973) (sustaining admission of criminal evidence found when police conducted a warrantless

search of an out-of-state policeman’s automobile following an accident, in order to

find and safeguard his service revolver). The Court in both cases emphasized the

reduced expectation of privacy in automobiles and the noncriminal purposes of the

searches.

cases the Court, without acknowledging the magnitude of the leap

from one context to another, has taken the Dewey/Burger rationale—developed to justify warrantless searches of business establishments—and applied it to justify the significant intrusion into

personal privacy represented by urinalysis drug testing. Because of

the history of pervasive regulation of the railroad industry, the

Court reasoned, railroad employees have a diminished expectation

of privacy that makes mandatory urinalysis less intrusive and

more reasonable. 84

With respect to automobiles, the holdings are mixed. Random

stops of automobiles to check drivers’ licenses, vehicle registrations,

and safety conditions were condemned as too intrusive; the degree

to which random stops would advance the legitimate governmental

interests involved did not outweigh the individual’s legitimate expectations of privacy. 85 On the other hand, in South Dakota v.

Opperman, 86 the Court sustained the admission of evidence found

when police impounded an automobile from a public street for multiple parking violations and entered the car to secure and inventory

valuables for safekeeping. Marijuana was discovered in the glove

compartment.

Searches and Seizures Pursuant to Warrant

Emphasis upon the necessity of warrants places the judgment

of an independent magistrate between law enforcement officers and

the privacy of citizens, authorizes invasion of that privacy only

upon a showing that constitutes probable cause, and limits that invasion by specification of the person to be seized, the place to be
1216 AMENDMENT 4—SEARCHES AND SEIZURES

87While the exceptions may be different as between arrest warrants and search

warrants, the requirements for the issuance of the two are the same. Aguilar v.

Texas, 378 U.S. 108, 112 n.3 (1964). Also, the standards by which the validity of

warrants are to be judged are the same, whether federal or state officers are involved. Ker v. California, 374 U.S. 23 (1963). 88Most often, in the suppression hearings, the defendant will challenge the sufficiency of the evidence presented to the magistrate to constitute probable cause.

Spinelli v. United States, 393 U.S. 410 (1969); United States v. Harris, 403 U.S. 573

(1971). He may challenge the veracity of the statements used by the police to procure the warrant and otherwise contest the accuracy of the allegations going to establish probable cause, but the Court has carefully hedged his ability to do so.

Franks v. Delaware, 438 U.S. 154 (1978). He may also question the power of the

official issuing the warrant, Coolidge v. New Hampshire, 403 U.S. 443, 449–53

(1971), or the specificity of the particularity required. Marron v. United States, 275

U.S. 192 (1927). 89 United States v. Lefkowitz, 285 U.S. 452, 464 (1932); Giordenello v. United

States, 357 U.S. 480, 486 (1958); Jones v. United States, 362 U.S. 257, 270 (1960);

Katz v. United States, 389 U.S. 347, 356 (1967); United States v. United States District Court, 407 U.S. 297, 321 (1972); United States v. Chadwick, 433 U.S. 1, 9

(1977); Lo-Ji Sales v. New York, 442 U.S. 319, 326 (1979). 90 Johnson v. United States, 333 U.S. 10, 13–14 (1948). 91Shadwick v. City of Tampa, 407 U.S. 345, 354 (1972). 92 Coolidge v. New Hampshire, 403 U.S. 443, 449–51 (1971) (warrant issued by

state attorney general who was leading investigation and who as a justice of the

peace was authorized to issue warrants); Mancusi v. DeForte, 392 U.S. 364, 370–

72 (1968) (subpoena issued by district attorney could not qualify as a valid search

searched, and the evidence to be sought. 87 While a warrant is issued ex parte, its validity may be contested in a subsequent suppression hearing if incriminating evidence is found and a prosecution is brought. 88

Issuance by Neutral Magistrate.—In numerous cases, the

Court has referred to the necessity that warrants be issued by a

‘‘judicial officer’’ or a ‘‘magistrate.’’ 89 ‘‘The point of the Fourth

Amendment, which often is not grasped by zealous officers, is not

that it denies law enforcement the support of the usual inferences

which reasonable men draw from evidence. Its protection consists

in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in

the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the

Amendment to a nullity and leave the people’s homes secure only

in the discretion of police officers.’’ 90 These cases do not mean that

only a judge or an official who is a lawyer may issue warrants, but

they do stand for two tests of the validity of the power of the issuing party to so act. ‘‘He must be neutral and detached, and he must

be capable of determining whether probable cause exists for the requested arrest or search.’’ 91 The first test cannot be met when the

issuing party is himself engaged in law enforcement activities, 92
AMENDMENT 4—SEARCHES AND SEIZURES 1217

warrant); Lo-Ji Sales v. New York, 442 U.S. 319 (1979) (justice of the peace issued

open-ended search warrant for obscene materials, accompanied police during its execution, and made probable cause determinations at the scene as to particular items). 93 Jones v. United States, 362 U.S. 257, 270–71 (1960) (approving issuance of

warrants by United States Commissioners, many of whom were not lawyers and

none of whom had any guarantees of tenure and salary); Shadwick v. City of

Tampa, 407 U.S. 345 (1972) (approving issuance of arrest warrants for violation of

city ordinances by city clerks who were assigned to and supervised by municipal

court judges). The Court reserved the question ‘‘whether a State may lodge warrant

authority in someone entirely outside the sphere of the judicial branch. Many persons may not qualify as the kind of ‘public civil officers’ we have come to associate

with the term ‘magistrate.’ Had the Tampa clerk been entirely divorced from a judicial position, this case would have presented different considerations.’’ Id. at 352. 94 Id. at 350–54 (placing on defendant the burden of demonstrating that the issuing official lacks capacity to determine probable cause). See also Connally v. Georgia, 429 U.S. 245 (1977) (unsalaried justice of the peace who receives a sum of

money for each warrant issued but nothing for reviewing and denying a warrant

not sufficiently detached). 95Dumbra v. United States, 268 U.S. 435, 439, 441 (1925). ‘‘[T]he term ‘probable

cause’. . . means less than evidence which would justify condemnation.’’ Lock v.

United States, 11 U.S. (7 Cr.) 339, 348 (1813). See Steele v. United States, 267 U.S.

498, 504–05 (1925). It may rest upon evidence which is not legally competent in a

criminal trial, Draper v. United States, 358 U.S. 307, 311 (1959), and it need not

be sufficient to prove guilt in a criminal trial. Brinegar v. United States, 338 U.S.

160, 173 (1949). See United States v. Ventresca, 380 U.S. 102, 107–08 (1965). 96 Brinegar v. United States, 338 U.S. 160, 175 (1949).

but the Court has not required that an issuing party have that

independence of tenure and guarantee of salary which characterizes federal judges. 93 And in passing on the second test, the Court

has been essentially pragmatic in assessing whether the issuing

party possesses the capacity to determine probable cause. 94

Probable Cause.—The concept of ‘‘probable cause’’ is central

to the meaning of the warrant clause. Neither the Fourth Amendment nor the federal statutory provisions relevant to the area define ‘‘probable cause;’’ the definition is entirely a judicial construct.

An applicant for a warrant must present to the magistrate facts

sufficient to enable the officer himself to make a determination of

probable cause. ‘‘In determining what is probable cause . . . [w]e

are concerned only with the question whether the affiant had reasonable grounds at the time of his affidavit . . . for the belief that

the law was being violated on the premises to be searched; and if

the apparent facts set out in the affidavit are such that a reasonably discreet and prudent man would be led to believe that there

was a commission of the offense charged, there is probable cause

justifying the issuance of a warrant.’’ 95 Probable cause is to be determined according to ‘‘the factual and practical considerations of

everyday life on which reasonable and prudent men, not legal technicians, act.’’ 96 Warrants are favored in the law and utilization of

them will not be thwarted by a hypertechnical reading of the sup-
1218 AMENDMENT 4—SEARCHES AND SEIZURES

97 United States v. Ventresca, 380 U.S. 102, 108–09 (1965). 98 Jones v. United States, 362 U.S. 257, 270–71 (1960). 99 Aguilar v. Texas, 378 U.S. 108, 111 (1964). It must be emphasized that the

issuing party ‘‘must judge for himself the persuasiveness of the facts relied on by

a [complainant] to show probable cause.’’ Giordenello v. United States, 357 U.S. 480,

486 (1958). An insufficient affidavit cannot be rehabilitated by testimony after issuance concerning information possessed by the affiant but not disclosed to the magistrate. Whiteley v. Warden, 401 U.S. 560 (1971). 100 Byars v. United States, 273 U.S. 28 (1927) (affiant stated he ‘‘has good reason to believe and does believe’’ that defendant has contraband materials in his possession); Giordenello v. United States, 357 U.S. 480 (1958) (complainant merely

stated his conclusion that defendant had committed a crime). See also Nathanson

v. United States, 290 U.S. 41 (1933). 101 380 U.S. 102 (1965). 102 Id. at 109. 103 358 U.S. 307 (1959). For another case applying essentially the same probable

cause standard to warrantless arrests as govern arrests by warrant, see McCray v.

Illinois, 386 U.S. 300 (1967) (informant’s statement to arresting officers met Aguilar

probable cause standard). See also Whitely v. Warden, 401 U.S. 560, 566 (1971)

(standards must be ‘‘at least as stringent’’ for warrantless arrest as for obtaining

warrant).

porting affidavit and supporting testimony. 97 For the same reason,

reviewing courts will accept evidence of a less ‘‘judicially competent

or persuasive character than would have justified an officer in acting on his own without a warrant.’’ 98 Courts will sustain the determination of probable cause so long as ‘‘there was substantial basis

for [the magistrate] to conclude that’’ there was probable cause. 99

Much litigation has concerned the sufficiency of the complaint

to establish probable cause. Mere conclusory assertions are not

enough. 100 In United States v. Ventresca, 101 however, an affidavit

by a law enforcement officer asserting his belief that an illegal distillery was being operated in a certain place, explaining that the

belief was based upon his own observations and upon those of fellow investigators, and detailing a substantial amount of these personal observations clearly supporting the stated belief, was held to

be sufficient to constitute probable cause. ‘‘Recital of some of the

underlying circumstances in the affidavit is essential,’’ the Court

said, observing that ‘‘where these circumstances are detailed,

where reason for crediting the source of the information is given,

and when a magistrate has found probable cause,’’ the reliance on

the warrant process should not be deterred by insistence on too

stringent a showing. 102

Requirements for establishing probable cause through reliance

on information received from an informant has divided the Court

in several cases. Although involving a warrantless arrest, Draper

v. United States 103 may be said to have begun the line of cases.

A previously reliable, named informant reported to an officer that

the defendant would arrive with narcotics on a particular train,

and described the clothes he would be wearing and the bag he
AMENDMENT 4—SEARCHES AND SEIZURES 1219

104 362 U.S. 257 (1960). 105 378 U.S. 108 (1964). 106 393 U.S. 410 (1969). Both concurring and dissenting Justices recognized tension between Draper and Aguilar. See id. at 423 (Justice White concurring), id. at

429 (Justice Black dissenting and advocating the overruling of Aguilar). 107 403 U.S. 573 (1971). See also Adams v. Williams, 407 U.S. 143, 147 (1972)

(approving warrantless stop of motorist based on informant’s tip that ‘‘may have

been insufficient’’ under Aguilar and Spinelli as basis for warrant).

would be carrying; the informant, however, gave no basis for his information. FBI agents met the train, observed that the defendant

fully answered the description, and arrested him. The Court held

that the corroboration of part of the informer’s tip established probable cause to support the arrest. A case involving a search warrant,

Jones v. United States, 104 apparently utilized a test of considering

the affidavit as a whole to see whether the tip plus the corroborating information provided a substantial basis for finding probable

cause, but the affidavit also set forth the reliability of the informer

and sufficient detail to indicate that the tip was based on the informant’s personal observation. Aguilar v. Texas 105 held insufficient an affidavit which merely asserted that the police had ‘‘reliable information from a credible person’’ that narcotics were in a

certain place, and held that when the affiant relies on an informant’s tip he must present two types of evidence to the magistrate.

First, the affidavit must indicate the informant’s basis of knowledge—the circumstances from which the informant concluded that

evidence was present or that crimes had been committed—and, second, the affiant must present information which would permit the

magistrate to decide whether or not the informant was trustworthy. Then, in Spinelli v. United States, 106 the Court applied

Aguilar in a situation in which the affidavit contained both an informant’s tip and police information of a corroborating nature.

The Court rejected the ‘‘totality’’ test derived from Jones and

held that the informant’s tip and the corroborating evidence must

be separately considered. The tip was rejected because the affidavit

contained neither any information which showed the basis of the

tip nor any information which showed the informant’s credibility.

The corroborating evidence was rejected as insufficient because it

did not establish any element of criminality but merely related to

details which were innocent in themselves. No additional corroborating weight was due as a result of the bald police assertion that

defendant was a known gambler, although the tip related to gambling. Returning to the totality test, however, the Court in United

States v. Harris 107 approved a warrant issued largely on an informer’s tip that over a two-year period he had purchased illegal

whiskey from the defendant at the defendant’s residence, most re-
1220 AMENDMENT 4—SEARCHES AND SEIZURES

108 462 U.S. 213 (1983) (Justice Rehnquist’s opinion of the Court was joined by

Chief Justice Burger and by Justices Blackmun, Powell, and O’Connor. Justices

Brennan, Marshall, and Stevens dissented. 109 462 U.S. at 213. 110 462 U.S. at 238. 111Marron v. United States, 275 U.S. 192, 196 (1927). See Stanford v. Texas,

379 U.S. 476 (1965). Of course, police who are lawfully on the premises pursuant

to a warrant may seize evidence of crime in ‘‘plain view’’ even if that evidence is

not described in the warrant. Coolidge v. New Hampshire, 403, U.S. 443, 464–71

(1971).

cently within two weeks of the tip. The affidavit contained rather

detailed information about the concealment of the whiskey, and asserted that the informer was a ‘‘prudent person,’’ that defendant

had a reputation as a bootlegger, that other persons had supplied

similar information about him, and that he had been found in control of illegal whiskey within the previous four years. The Court determined that the detailed nature of the tip, the personal observation thus revealed, and the fact that the informer had admitted to

criminal behavior by his purchase of whiskey were sufficient to enable the magistrate to find him reliable, and that the supporting

evidence, including defendant’s reputation, could supplement this

determination.

The Court expressly abandoned the two-part Aguilar-Spinelli

test and returned to the ‘‘totality of the circumstances’’ approach to

evaluate probable cause based on an informant’s tip in Illinois v.

Gates. 108 The main defect of the two-part test, Justice Rehnquist

concluded for the Court, was in treating an informant’s reliability

and his basis for knowledge as independent requirements. Instead,

‘‘a deficiency in one may be compensated for, in determining the

overall reliability of a tip, by a strong showing as to the other, or

by some other indicia of reliability.’’ 109 In evaluating probable

cause, ‘‘[t]he task of the issuing magistrate is simply to make a

practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of

a crime will be found in a particular place.’’ 110

Particularity.—‘‘The requirement that warrants shall

particularily describe the things to be seized makes general

searches under them impossible and prevents the seizure of one

thing under a warrant describing another. As to what is to be

taken, nothing is left to the discretion of the officer executing the

warrant.’’ 111 This requirement thus acts to limit the scope of the

search, inasmuch as the executing officers should be limited to
AMENDMENT 4—SEARCHES AND SEIZURES 1221

112 ‘‘This Court has held in the past that a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and

scope. Kremen v. United States, 353 U.S. 346 (1957); Go-Bart Importing Co. v. United States, 282 U.S. 344, 356–58 (1931); see United States v. Di Re, 332 U.S. 581,

586–87 (1948). The scope of the search must be ‘strictly tied to and justified by’ the

circumstances which rendered its initiation permissible. Warden v. Hayden, 387

U.S. 294, 310 (1967) (Mr. Justice Fortas concurring); see, e.g., Preston v. United

States, 376 U.S. 364, 367–368 (1964); Agnello v. United States, 296 U.S. 20, 30–

31 (1925).’’ Terry v. Ohio, 392 U.S. 1, 18–19, (1968). See also Andresen v. Maryland,

427 U.S. 463, 470–82 (1976), and id. at 484, 492–93 (Justice Brennan dissenting).

In Stanley v. Georgia, 394 U.S. 557, 569 (1969), Justices Stewart, Brennan, and

White would have based decision on the principle that a valid warrant for gambling

paraphernalia did not authorize police upon discovering motion picture films in the

course of the search to project the films to learn their contents. 113Marcus v. Search Warrant, 367 U.S. 717, 730–31 (1961); Stanford v. Texas,

379 U.S. 476, 485 (1965). 114 367 U.S. 717 (1961). See Kingsley Books v. Brown, 354 U.S. 436 (1957). 115Marcus v. Search Warrant, 367 U.S. 717, 732 (1961).

looking in places where the described object could be expected to

be found. 112

First Amendment Bearing on Probable Cause and Particularity.—Where the warrant process is used to authorize seizure of books and other items entitled either to First Amendment

protection or to First Amendment consideration, the Court has required government to observe more exacting standards than in

other cases. 113 Seizure of materials arguably protected by the First

Amendment is a form of prior restraint that requires strict observance of the Fourth Amendment. At a minimum, a warrant is required, and additional safeguards may be required for large-scale

seizures. Thus, in Marcus v. Search Warrant, 114 the seizure of

11,000 copies of 280 publications pursuant to warrant issued ex

parte by a magistrate who had not examined any of the publications but who had relied on the conclusory affidavit of a policeman

was voided. Failure to scrutinize the materials and to particularize

the items to be seized was deemed inadequate, and it was further

noted that police ‘‘were provided with no guide to the exercise of

informed discretion, because there was no step in the procedure before seizure designed to focus searchingly on the question of obscenity.’’ 115 A state procedure which was designed to comply with

Marcus by the presentation of copies of books to be seized to the

magistrate for his scrutiny prior to issuance of a warrant was nonetheless found inadequate by a plurality of the Court, which concluded that ‘‘since the warrant here authorized the sheriff to seize

all copies of the specified titles, and since [appellant] was not afforded a hearing on the question of the obscenity even of the seven

novels [seven of 59 listed titles were reviewed by the magistrate]

before the warrant issued, the procedure was . . . constitutionally
1222 AMENDMENT 4—SEARCHES AND SEIZURES

116 A Quantity of Books v. Kansas, 378 U.S. 205, 210 (1964). 117 Heller v. New York, 413 U.S. 483 (1973). 118 Id. at 492–93. But cf. New York v. P.J. Video, Inc., 475 U.S. 868, 875 n.6

(1986), rejecting the defendant’s assertion, based on Heller, that only a single copy

rather than all copies of allegedly obscene movies should have been seized pursuant

to warrant. 119 Roaden v. Kentucky, 413 U.S. 496 (1973). See also Lo-Ji Sales v. New York,

442 U.S. 319 (1979); Walter v. United States, 447 U.S. 649 (1980). These special

constraints are inapplicable when obscene materials are purchased, and there is

consequently no Fourth Amendment search or seizure. Maryland v. Macon, 472 U.S.

463 (1985). 120Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 637 (1968) (per curiam). 121 New York v. P.J. Video, Inc., 475 U.S. 868, 873–74 (1986) (quoting Marcus

v. Search Warrant, 367 U.S. 717, 732 (1961)). 122 New York v. P.J. Video, Inc., 475 U.S. 868, 875 n.6 (1986).

deficient.’’ 116 Confusion remains, however, about the necessity for

and the character of prior adversary hearings on the issue of obscenity. In a later decision the Court held that, with adequate safeguards, no pre-seizure adversary hearing on the issue of obscenity

is required if the film is seized not for the purpose of destruction

as contraband (the purpose in Marcus and A Quantity of Books),

but instead to preserve a copy for evidence. 117 It is constitutionally

permissible to seize a copy of a film pursuant to a warrant as long

as there is a prompt post-seizure adversary hearing on the obscenity issue. Until there is a judicial determination of obscenity, the

Court advised, the film may continue to be exhibited; if no other

copy is available either a copy of it must be made from the seized

film or the film itself must be returned. 118

The seizure of a film without the authority of a constitutionally

sufficient warrant is invalid; seizure cannot be justified as incidental to arrest, inasmuch as the determination of obscenity may not

be made by the officer himself. 119 Nor may a warrant issue based

‘‘solely on the conclusory assertions of the police officer without any

inquiry by the [magistrate] into the factual basis for the officer’s

conclusions.’’ 120 Instead, a warrant must be ‘‘supported by affidavits setting forth specific facts in order that the issuing magistrate

may ‘focus searchingly on the question of obscenity.’ ’’ 121 This does

not mean, however, that a higher standard of probable cause is required in order to obtain a warrant to seize materials protected by

the First Amendment. ‘‘Our reference in Roaden to a ‘higher hurdle

. . . of reasonableness’ was not intended to establish a ‘higher’

standard of probable cause for the issuance of a warrant to seize

books or films, but instead related to the more basic requirement,

imposed by that decision, that the police not rely on the ‘exigency’

exception to the Fourth Amendment warrant requirement, but instead obtain a warrant from a magistrate . . . .’ ’’ 122
AMENDMENT 4—SEARCHES AND SEIZURES 1223

123 379 U.S. 476 (1965). 124 Id. at 485–86. See also Marcus v. Search Warrant, 367 U.S. 717, 723 (1961). 125Zurcher v. Stanford Daily, 436 U.S. 547 (1978). See id. at 566 (containing

suggestion mentioned in text), and id. at 566 (Justice Powell concurring) (more expressly adopting that position). In the Privacy Protection Act, Pub. L. No. 96–440,

94 Stat. 1879 (1980), 42 U.S.C. § 2000aa, Congress provided extensive protection

against searches and seizures not only of the news media and news people but also

of others engaged in disseminating communications to the public, unless there is

probable cause to believe the person protecting the materials has committed or is

committing the crime to which the materials relate. 126 United States v. Lefkowitz, 285 U.S. 452, 465–66 (1932). Of course, evidence

seizable under warrant is subject to seizure without a warrant in circumstances in

which warrantless searches are justified. 127 255 U.S. 298 (1921). United States v. Lefkowitz, 285 U.S. 452 (1932), applied

the rule in a warrantless search of premises. The rule apparently never applied in

case of a search of the person. Cf. Schmerber v. California, 384 U.S. 757 (1966). 128Gouled v. United States, 255 U.S. 298, 306 (1921).

In Stanford v. Texas, 123 a seizure of more than 2,000 books,

pamphlets, and other documents pursuant to a warrant which

merely authorized the seizure of books, pamphlets, and other written instruments ‘‘concerning the Communist Party of Texas’’ was

voided. ‘‘[T]he constitutional requirement that warrants must particularly describe the ‘things to be seized’ is to be accorded the most

scrupulous exactitude when the ‘things’ are books, and the basis for

their seizure is the ideas which they contain. . . . No less a standard could be faithful to First Amendment freedoms.’’ 124

However, the First Amendment does not bar the issuance or

execution of a warrant to search a newsroom to obtain photographs

of demonstrators who had injured several policemen, although the

Court appeared to suggest that a magistrate asked to issue such

a warrant should guard against interference with press freedoms

through limits on type, scope, and intrusiveness of the search. 125

Property Subject to Seizure.—There has never been any

doubt that search warrants could be issued for the seizure of contraband and the fruits and instrumentalities of crime. 126 But in

Gouled v. United States, 127 a unanimous Court limited the classes

of property subject to seizures to these three and refused to permit

a seizure of ‘‘mere evidence,’’ in this instance defendant’s papers

which were to be used as evidence against him at trial. The Court

recognized that there was ‘‘no special sanctity in papers, as distinguished from other forms of property, to render them immune from

search and seizure,’’ 128 but their character as evidence rendered

them immune. This immunity ‘‘was based upon the dual, related

premises that historically the right to search for and seize property

depended upon the assertion by the Government of a valid claim

of superior interest, and that it was not enough that the purpose

of the search and seizure was to obtain evidence to use in appre-
1224 AMENDMENT 4—SEARCHES AND SEIZURES

129Warden v. Hayden, 387 U.S. 294, 303 (1967). See Gouled v. United States,

255 U.S. 298, 309 (1921). The holding was derived from dicta in Boyd v. United

States, 116 U.S. 616, 624–29 (1886). 130Warden v. Hayden, 387 U.S. 294 (1967). Justice Douglas dissented, wishing

to retain the rule, id. at 312, and Justice Fortas with Chief Justice Warren concurred in the result while apparently wishing to retain the rule in warrant cases.

Id. at 310, 312. 131Davis v. Mississippi, 394 U.S. 721 (1969). 132Schmerber v. California, 384 U.S. 757 (1966). Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989) (warrantless blood testing for drug use by railroad employee involved in accident). 133Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989)

(warrantless drug testing of railroad employee involved in accident). 134 Cupp v. Murphy, 412 U.S. 291 (1973) (sustaining warrantless taking of

scrapings from defendant’s fingernails at the stationhouse, on the basis that it was

a very limited intrusion and necessary to preserve evanescent evidence). 135 United States v. Dionisio, 410 U.S. 1 (1973); United States v. Mara, 410 U.S.

19 (1973) (both sustaining grand jury subpoenas to produce voice and handwriting

exemplars; no reasonable expectation of privacy with respect to those items). 136 Berger v. New York, 388 U.S. 41, 44 n.2 (1967). See also id. at 97 n.4, 107–

08 (Justices Harlan and White concurring), 67 (Justice Douglas concurring). 137 Another important result of Warden v. Hayden is that third parties not suspected of culpability in crime are subject to the issuance and execution of warrants

for searches and seizures of evidence. Zurcher v. Stanford Daily, 436 U.S. 547, 553–

60 (1978). Justice Stevens argued for a stiffer standard for issuance of warrants to

nonsuspects, requiring in order to invade their privacy a showing that they would

not comply with a less intrusive method, such as a subpoena. Id. at 577 (dissenting). 138 Rochin v. California, 342 U.S. 165 (1952). 139Winston v. Lee, 470 U.S. 753 (1985). 140Winston v. Lee, 470 U.S. 753, 761–63 (1985). Chief Justice Burger concurred

on the basis of his reading of the Court’s opinion ‘‘as not preventing detention of

an individual if there are reasonable grounds to believe that natural bodily functions will disclose the presence of contraband materials secreted internally.’’ id. at

at 767. Cf. United States v. Montoya de Hernandez, 473 U.S. 531 (1985).

hending and convicting criminals.’’ 129 More evaded than followed,

the ‘‘mere evidence’’ rule was overturned in 1967. 130 It is now settled that such evidentiary items as fingerprints, 131 blood, 132 urine

samples, 133 fingernail and skin scrapings, 134 voice and handwriting exemplars, 135 conversations, 136 and other demonstrative

evidence may be obtained through the warrant process or without

a warrant where ‘‘special needs’’ of government are shown. 137

However, some medically assisted bodily intrusions have been

held impermissible, e.g., forcible administration of an emetic to induce vomiting, 138 and surgery under general anesthetic to remove

a bullet lodged in a suspect’s chest. 139 Factors to be weighed in determining which medical tests and procedures are reasonable include the extent to which the procedure threatens the individual’s

safety or health, ‘‘the extent of the intrusion upon the individual’s

dignitary interests in personal privacy and bodily integrity,’’ and

the importance of the evidence to the prosecution’s case. 140
AMENDMENT 4—SEARCHES AND SEIZURES 1225

141 387 U.S. 294, 302–03 (1967). Seizure of a diary was at issue in Hill v. California, 401 U.S. 797, 805 (1971), but it had not been raised in the state courts and

was deemed waived. 142 116 U.S. 616 (1886). 143 Act of June 22, 1874, § 5, 18 Stat. 187. 144 Boyd v. United States, 116 U.S. 616, 622 (1886). 145 Howell’s State Trials 1029, 95 Eng. Rep. 807 (1765). 146 Boyd v. United States, 116 U.S. 616, 630 (1886).

In Warden v. Hayden, 141 Justice Brennan for the Court cautioned that the items there seized were not ‘‘‘testimonial’ or ‘communicative’ in nature, and their introduction therefore did not compel respondent to become a witness against himself in violation of

the Fifth Amendment. . . . This case thus does not require that we

consider whether there are items of evidential value whose very

nature precludes them from being the object of a reasonable search

and seizure.’’ This merging of Fourth and Fifth Amendment considerations derived from Boyd v. United States, 142 the first case in

which the Supreme Court considered at length the meaning of the

Fourth Amendment. Boyd was a quasi-criminal proceeding for the

forfeiture of goods alleged to have been imported in violation of

law, and concerned a statute which authorized court orders to require defendants to produce any document which might ‘‘tend to

prove any allegation made by the United States.’’ 143 That there

was a self-incrimination problem the entire Court was in agreement, but Justice Bradley for a majority of the Justices also utilized the Fourth Amendment.

While the statute did not authorize a search but instead compulsory production, the Justice concluded that the law was well

within the restrictions of the search and seizure clause. 144 With

this point established, the Justice relied on Lord Camden’s opinion

in Entick v. Carrington 145 for the proposition that seizure of items

to be used as evidence only was impermissible. Justice Bradley announced that the ‘‘essence of the offence’’ committed by the Government against Boyd ‘‘is not the breaking of his doors, and the rummaging of his drawers . . . but it is the invasion of his indefeasible

right of personal security, personal liberty and private property.

. . . Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man’s own testimony or of his private papers to be used

as evidence to convict him of crime or to forfeit his goods, is within

the condemnation of that judgment. In this regard the Fourth and

Fifth Amendments run almost into each other.’’ 146

While it may be doubtful that the equation of search warrants

with subpoenas and other compulsory process ever really amounted
1226 AMENDMENT 4—SEARCHES AND SEIZURES

147 E.g., Oklahoma Press Pub Co. v. Walling, 327 U.S. 186, 209–09 (1946). 148 Andresen v. Maryland, 427 U.S. 463 (1976); Fisher v. United States, 425

U.S. 391, 405–14 (1976). Fisher states that ‘‘the precise claim sustained in Boyd

would now be rejected for reasons not there considered.’’ Id. at 408. 149 427 U.S. 463 (1976). 150 Id. at 470–77. 151 Id. at 478–84. 152 Id. at 482 n.11. Minimization, as required under federal law, has not proved

to be a significant limitation. Scott v. United States, 425 U.S. 917 (1976). 153 E.g., United States v. Miller, 425 U.S. 435, 440, 444 (1976); Fisher v. United

States, 425 U.S. 391, 401 (1976); California Bankers Ass’n v. Shultz, 416 U.S. 21,

78–79 (1974) (Justice Powell concurring). 154See Note, Formalism, Legal Realism, and Constitutionally Protected Privacy

Under the Fourth and Fifth Amendments, 90 HARV. L. REV. 945 (1977). 155 Rule 41(c), Federal Rules of Criminal Procedure, provides, inter alia, that

the warrant shall command its execution in the daytime, unless the magistrate ‘‘for

reasonable cause shown’’ directs in the warrant that it be served at some other time.

to much of a limitation, 147 the present analysis of the Court dispenses with any theory of ‘‘convergence’’ of the two Amendments. 148 Thus, in Andresen v. Maryland, 149 police executed a

warrant to search defendant’s offices for specified documents pertaining to a fraudulent sale of land, and the Court sustained the

admission of the papers discovered as evidence at his trial. The

Fifth Amendment was inapplicable, the Court held, because there

had been no compulsion of defendant to produce or to authenticate

the documents. 150 As for the Fourth Amendment, inasmuch as the

‘‘business records’’ seized were evidence of criminal acts, they were

properly seizable under the rule of Warden v. Hayden; the fact that

they were ‘‘testimonial’’ in nature, records in the defendant’s handwriting, was irrelevant. 151 Acknowledging that ‘‘there are grave

dangers inherent in executing a warrant authorizing a search and

seizure of a person’s papers,’’ the Court’s response was to observe

that while some ‘‘innocuous documents’’ would have to be examined

to ascertain which papers were to be seized, authorities, just as

with electronic ‘‘seizures’’ of conversations, ‘‘must take care to assure that they are conducted in a manner that minimizes unwarranted intrusions upon privacy.’’ 152

Although Andresen was concerned with business records, its

discussion seemed equally applicable to ‘‘personal’’ papers, such as

diaries and letters, as to which a much greater interest in privacy

most certainly exists. The question of the propriety of seizure of

such papers continues to be the subject of reservation in opinions, 153 but it is far from clear that the Court would accept any

such exception should the issue be presented. 154

Execution of Warrants.—The manner of execution of warrants is generally governed by statute and rule, as to time of execution, 155 method of entry, and the like. It was a rule at common law
AMENDMENT 4—SEARCHES AND SEIZURES 1227

See Jones v. United States, 357 U.S. 493, 498–500 (1958); Gooding v. United States,

416 U.S. 430 (1974). The rule is more relaxed for narcotics cases. 21 U.S.C. § 879(a). 156Semayne’s Case, 5 Coke’s Rep. 91a, 77 Eng. Rep. 194 (K.B. 1604). 157 18 U.S.C. § 3109. See Miller v. United States, 357 U.S. 301 (1958); Wong Sun

v. United States, 371 U.S. 471 (1963). 158 374 U.S. 23 (1963). Ker was an arrest warrant case, but no reason appears

for differentiating search warrants. Eight Justices agreed that federal standards

should govern and that the rule of announcement was of constitutional stature, but

they divided 4-to–4 whether entry in this case had been pursuant to a valid exception. Justice Harlan who had dissented from the federal standards issue joined the

four finding a justifiable exception to carry the result. 159 In narcotics cases, magistrates are authorized to issue ‘‘no-knock’’ warrants

if they find there is probable cause to believe (1) the property sought may, and if

notice is given, will be easily and quickly destroyed or (2) giving notice will endanger the life or safety of the executing officer or another person. 21 U.S.C. § 879(b).

See also D.C. Code, § 23–591. 160Sgro v. United States, 287 U.S. 206 (1932). 161 Id. 162 Ybarra v. Illinois, 444 U.S. 85 (1979) (patron in a bar), relying on and

reaffirming United States v. Di Re, 332 U.S. 581 (1948) (occupant of vehicle may

not be searched merely because there are grounds to search the automobile). 163 452 U.S. 692 (1981).

that before an officer could break and enter he must give notice of

his office, authority, and purpose and must in effect be refused admittance,156 and until recently this has been a statutory requirement in the federal system 157 and generally in the States. In Ker

v. California, 158 the Court considered the rule of announcement as

a constitutional requirement, although a majority there found circumstances justifying entry without announcement. Recent federal

laws providing for the issuance of warrants authorizing in certain

circumstances ‘‘no-knock’’ entries to execute warrants will no doubt

present the Court with opportunities to explore the configurations

of the rule of announcement. 159 A statute regulating the expiration

of a warrant and issuance of another ‘‘should be liberally construed

in favor of the individual.’’ 160 Similarly, inasmuch as the existence

of probable cause must be established by fresh facts, so the execution of the warrant should be done in timely fashion so as to ensure

so far as possible the continued existence of probable cause. 161

In executing a warrant for a search of premises and of named

persons on the premises, police officers may not automatically

search someone else found on the premises. 162 If they can articulate some reasonable basis for fearing for their safety they may

conduct a ‘‘patdown’’ of the person, but in order to search they

must have probable cause particularized with respect to that person. However, in Michigan v. Summers, 163 the Court held that officers arriving to execute a warrant for the search of a house could

detain, without being required to articulate any reasonable basis

and necessarily therefore without probable cause, the owner or occupant of the house, whom they encountered on the front porch
1228 AMENDMENT 4—SEARCHES AND SEIZURES

164Supra, p. 1208. See Michigan v. Summers, 452 U.S. 692, 696–701 (1981). 165 Id. at 701–06. Ybarra was distinguished on the basis of its greater intrusiveness and the lack of sufficient connection with the premises. Id. at 695 n.4. By the

time Summers was searched, police had probable cause to do so. Id. at 695. The

warrant here was for contraband, id. at 701, and a different rule possibly may apply

with respect to warrants for other evidence. 166Maryland v. Garrison, 480 U.S. 79 (1987) (officers reasonably believed there

was only one ‘‘third floor apartment’’ in city row house when in fact there were two). 167Steagald v. United States, 451 U.S. 204 (1981). An arrest warrant is a necessary and sufficient authority to enter a suspect’s home to arrest him. Payton v.

New York, 445 U.S. 573 (1980). 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.

leaving the premises. Applying its intrusiveness test, 164 the Court

determined that such a detention, which was ‘‘substantially less intrusive’’ than an arrest, was justified because of the law enforcement interests in minimizing the risk of harm to officers, facilitating entry and conduct of the search, and preventing flight in the

event incriminating evidence is found. 165 Also, under some circumstances officers may search premises on the mistaken but reasonable belief that the premises are described in an otherwise valid

warrant. 166

Although for purposes of execution, as for many other matters,

there is little diffence between search warrants and arrest warrants, one notable difference is that the possession of a valid arrest

warrant cannot authorize authorities to enter the home of a third

party looking for the person named in the warrant; in order to do

that, they need a search warrant signifying that a magistrate has

determined that there is probable cause to believe the person

named is on the premises. 167

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
AMENDMENT 4—SEARCHES AND SEIZURES 1229

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).

5McDonald 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.

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.

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.

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.

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,
1230 AMENDMENT 4—SEARCHES AND SEIZURES

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).

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

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-
AMENDMENT 4—SEARCHES AND SEIZURES 1231

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). 15Davis v. Mississippi, 394 U.S. 721 (1969); Dunaway v. New York, 442 U.S.

200 (1979). 16See, 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’’). 17 392 U.S. at 19, n.16. 18 United States v. Mendenhall, 446 U.S. 544, 554 (1980).

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

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-
1232 AMENDMENT 4—SEARCHES AND SEIZURES

19See, 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. 22Michigan v. Chesternut, 486 U.S. 567, 575 (1988). 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).

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

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.

Later in the same term the Court ruled that the Mendenhall

‘‘free-to-leave’’ inquiry was misplaced in the context of a police
AMENDMENT 4—SEARCHES AND SEIZURES 1233

25Florida 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. 28Michigan 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).

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

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

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
1234 AMENDMENT 4—SEARCHES AND SEIZURES

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. 33Florida 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). 35Weeks 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). 36Terry v. Ohio, 392 U.S. 1, 19 (1968); Chimel v. California, 395 U.S. 752, 762,

763 (1969).

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

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
AMENDMENT 4—SEARCHES AND SEIZURES 1235

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). 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.

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

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
1236 AMENDMENT 4—SEARCHES AND SEIZURES

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).

45 395 U.S. 752 (1969).

46 Id. at 762–63.

provided no standard by which this area was to be determined, and

extensive searches were permitted under the rule. 44

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.

‘‘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

Although the viability of Chimel had been in doubt for some

time as the Court refined and applied its analysis of reasonable
AMENDMENT 4—SEARCHES AND SEIZURES 1237

47Supra, 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). 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

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 ‘‘homicidescene’’ 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

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
1238 AMENDMENT 4—SEARCHES AND SEIZURES

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. 54Maryland v. Buie, 494 U.S. 325, 334 (1990). This ‘‘sweep’’ is not to be a fullblown, ‘‘top-to-bottom’’ search, but only ‘‘a cursory inspection of those spaces where

a person may be found.’’ Id. at 335–36. 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. 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. 58Preston v. United States, 376 U.S. 364 (1964); Dyke v. Taylor Implement Mfg.

Co., 391 U.S. 216 (1968).

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

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

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

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
AMENDMENT 4—SEARCHES AND SEIZURES 1239

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’’). 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). 63Delaware 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

648.64Michigan 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). 65Michigan v. Long, 463 U.S. 1032, 1049 (1983) (holding that contraband found

in the course of such a search is admissible).

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

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, fixedcheckpoint 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
1240 AMENDMENT 4—SEARCHES AND SEIZURES

66Texas 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). 67Michigan 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). 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).

and suspicious items ‘‘in plain view’’ inside the passenger compartment. 66

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

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
AMENDMENT 4—SEARCHES AND SEIZURES 1241

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). 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. § 1581(a), derived from § 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.

only the containers 72 or whether they have probable cause to

search the automobile for something capable of being held in the

container. 73

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-
1242 AMENDMENT 4—SEARCHES AND SEIZURES

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. 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). 82Schneckloth 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). 84On 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).

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

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

Additional issues arise in determining the validity of consent

to search when consent is given not by the suspect but by a third
AMENDMENT 4—SEARCHES AND SEIZURES 1243

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). 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, §§ 23, § 24, 1 Stat. 43. See 19 U.S.C. §§ 507, 1581,

1582.89 Carroll v. United States, 267 U.S. 132, 154 (1925); United States v. ThirtySeven 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.

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

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

Inland stoppings and searches in areas away from the borders

are a different matter altogether. Thus, in Almeida-Sanchez v.
1244 AMENDMENT 4—SEARCHES AND SEIZURES

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. MartinezFuerte, 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).

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
AMENDMENT 4—SEARCHES AND SEIZURES 1245

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 onehalf 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). 102Florida v. Riley, 488 U.S. 445 (1989) (view through partially open roof of

greenhouse).

‘‘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
1246 AMENDMENT 4—SEARCHES AND SEIZURES

103Dow Chemical Co. v. United States, 476 U.S. 227 (1986) (suggesting that

aerial photography of the curtilage would be impermissible). 104Washington 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). 105Steele 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). 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). 108 469 U.S. 325 (1985).

Court finding such spaces more analogous to open fields than to

the curtilage of a dwelling. 103

‘‘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

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

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
AMENDMENT 4—SEARCHES AND SEIZURES 1247

109 Id. at 336 (1984). 110 Id. at 340. 111This 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. 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. 116This 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).

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.

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

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
1248 AMENDMENT 4—SEARCHES AND SEIZURES

118 Hudson v. Palmer, 468 U.S. 517, 526 (1984). 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. 122 489 U.S. 602 (1989). 123 489 U.S. 656 (1989).

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.

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

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-
AMENDMENT 4—SEARCHES AND SEIZURES 1249

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. 129See, 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

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 druginduced impairment of perception and judgment, and that ‘‘frontline [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

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.,
1250 AMENDMENT 4—SEARCHES AND SEIZURES

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. 131Olmstead v. United States, 277 U.S. 438 (1928). 132 Among the dissenters were Justice Holmes, who characterized ‘‘illegal’’ wiretapping as ‘‘dirty business,’’ id. at 470, and Justice Brandeis, who contributed to his

opinion the famous peroration about government as ‘‘the potent, the omnipresent,

teacher’’ which ‘‘breeds contempt for law’’ among the people by its example. Id. at

485. More relevant here was his lengthy argument rejecting the premises of the majority, an argument which later became the law of the land. (1) ‘‘To protect [the

right to be left alone], every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation

of the Fourth Amendment.’’ Id. at 478. (2) ‘‘There is, in essence, no difference between the sealed letter and the private telephone message. . . . The evil incident

to invasion of the privacy of the telephone is far greater than that involved in tampering with the mails. Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded and all conversations between them upon

any subject . . . may be overheard.’’ Id. at 475–76.

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.

Electronic Surveillance and the Fourth Amendment

The Olmstead Case.—With the invention of the microphone,

the telephone, and the dictograph recorder, it became possible to

‘‘eavesdrop’’ with much greater secrecy and expediency. Inevitably,

the use of electronic devices in law enforcement was challenged,

and in 1928 the Court reviewed convictions obtained on the basis

of evidence gained through taps on telephone wires in violation of

state law. On a five-to-four vote, the Court held that wiretapping

was not within the confines of the Fourth Amendment. 131 Chief

Justice Taft, writing the opinion of the Court, relied on two lines

of argument for the conclusion. First, inasmuch as the Amendment

was designed to protect one’s property interest in his premises,

there was no search so long as there was no physical trespass on

premises owned or controlled by a defendant. Second, all the evidence obtained had been secured by hearing, and the interception

of a conversation could not qualify as a seizure, for the Amendment

referred only to the seizure of tangible items. Furthermore, the violation of state law did not render the evidence excludible, since the

exclusionary rule operated only on evidence seized in violation of

the Constitution. 132
AMENDMENT 4—SEARCHES AND SEIZURES 1251

133 Ch. 652, 48 Stat. 1103 (1934), providing, inter alia, that ’’. . . no person not

being authorized by the sender shall intercept any communication and divulge or

publish the existence, contents, purport, effect, or meaning of such intercepted communication to any person.’’ Nothing in the legislative history indicated what Congress had in mind in including this language. The section, which appeared at 47

U.S.C. § 605, was rewritten by Title III of the Omnibus Crime Act of 1968, 82 Stat.

22, § 803, so that the ‘‘regulation of the interception of wire or oral communications

in the future is to be governed by’’ the provisions of Title III. S. REP. NO. 1097, 90th

Cong., 2d Sess. 107–08 (1968). 134 302 U.S. 379 (1937). Derivative evidence, that is, evidence discovered as a

result of information obtained through a wiretap, was similarly inadmissible,

Nardone v. United States, 308 U.S. 338 (1939), although the testimony of witnesses

might be obtained through the exploitation of wiretap information. Goldstein v.

United States, 316 U.S. 114 (1942). Eavesdropping on a conversation on an extension telephone with the consent of one of the parties did not violate the statute.

Rathbun v. United States, 355 U.S. 107 (1957). 135Weiss v. United States, 308 U.S. 321 (1939). 136Schwartz v. Texas, 344 U.S. 199 (1952). At this time, evidence obtained in

violation of the Fourth Amendment could be admitted in state courts. Wolf v. Colorado, 338 U.S. 25 (1949). Although Wolf was overruled by Mapp v. Ohio, 367 U.S.

643 (1961), it was some seven years later and after wiretapping itself had been

made subject to the Fourth Amendment that Schwartz was overruled in Lee v. Florida, 392 U.S. 378 (1968). 137 Bananti v. United States, 355 U.S. 96 (1957). 138 316 U.S. 129 (1942).

Federal Communications Act.—Six years after the decision

in the Olmstead case, Congress enacted the Federal Communications Act and included in § 605 of the Act a broadly worded proscription on which the Court seized to place some limitation upon

governmental wiretapping. 133 Thus, in Nardone v. United

States, 134 the Court held that wiretapping by federal officers could

violate § 605 if the officers both intercepted and divulged the contents of the conversation they overheard, and that testimony in

court would constitute a form of prohibited divulgence. Such evidence was therefore excluded, although wiretapping was not illegal

under the Court’s interpretation if the information was not used

outside the governmental agency. Because § 605 applied to intrastate as well as interstate transmissions, 135 there was no question

about the applicability of the ban to state police officers, but the

Court declined to apply either the statute or the due process clause

to require the exclusion of such evidence from state criminal

trials. 136 State efforts to legalize wiretapping pursuant to court orders were held by the Court to be precluded by the fact that Congress in § 605 had intended to occupy the field completely to the

exclusion of the States. 137

Nontelephonic Electronic Surveillance.—The trespass rationale of Olmstead was utilized in cases dealing with ‘‘bugging’’ of

premises rather than with tapping of telephones. Thus, in Goldman

v. United States, 138 the Court found no Fourth Amendment violation when a listening device was placed against a party wall so
1252 AMENDMENT 4—SEARCHES AND SEIZURES

139Silverman v. United States, 365 U.S. 505 (1961). See also Clinton v. Virginia,

377 U.S. 158 (1964) (physical trespass found with regard to amplifying device stuck

in a partition wall with a thumb tack). 140 388 U.S. 41 (1967). 141 Id. at 50–53.

that conversations were overheard on the other side. But when officers drove a ‘‘spike mike’’ into a party wall until it came into contact with a heating duct and thus broadcast defendant’s conversations, the Court determined that the trespass brought the case

within the Amendment. 139 In so holding, the Court, without alluding to the matter, overruled in effect the second rationale of

Olmstead, the premise that conversations could not be seized.

The Berger and Katz Cases.—In Berger v. New York, 140 the

Court confirmed the obsolesence of the alternative holding in

Olmstead that conversations could not be seized in the Fourth

Amendment sense. 141 Berger held unconstitutional on its face a

state eavesdropping statute under which judges were authorized to

issue warrants permitting police officers to trespass on private

premises to install listening devices. The warrants were to be issued upon a showing of ‘‘reasonable ground to believe that evidence

of crime may be thus obtained, and particularly describing the person or persons whose communications, conversations or discussions

are to be overheard or recorded.’’ For the five-Justice majority, Justice Clark discerned several constitutional defects in the law.

‘‘First, . . . eavesdropping is authorized without requiring belief

that any particular offense has been or is being committed; nor

that the ‘property’ sought, the conversations, be particularly described.

‘‘The purpose of the probable-cause requirement of the Fourth

Amendment to keep the state out of constitutionally protected

areas until it has reason to believe that a specific crime has been

or is being committed is thereby wholly aborted. Likewise the statute’s failure to describe with particularity the conversations sought

gives the officer a roving commission to ‘seize’ any and all conversations. It is true that the statute requires the naming of ‘the

person or persons whose communications, conversations or discussions are to be overheard or recorded. . . .’ But this does no more

than identify the person whose constitutionally protected area is to

be invaded rather than ‘particularly describing’ the communications, conversations, or discussions to be seized. . . . Secondly, authorization of eavesdropping for a two-month period is the equivalent of a series of intrusions, searches, and seizures pursuant to a

single showing of probable cause. Prompt execution is also avoided.

During such a long and continuous (24 hours a day) period the con-
AMENDMENT 4—SEARCHES AND SEIZURES 1253

142 Id. at 58–60. Justice Stewart concurred because he thought that the affidavits in this case had not been sufficient to show probable cause, but he thought the

statute constitutional in compliance with the Fourth Amendment. Id. at 68. Justice

Black dissented, arguing that the Fourth Amendment was not applicable to electronic eavesdropping but that in any event the ‘‘search’’ authorized by the statute

was reasonable. Id. at 70. Justice Harlan dissented, arguing that the statute with

its judicial gloss was in compliance with the Fourth Amendment. Id. 89. Justice

White thought both the statute and its application in this case were constitutional.

Id. at 107. 143 Id. at 71, 113. 144 389 U.S. 347 (1967).

versations of any and all persons coming into the area covered by

the device will be seized indiscriminately and without regard to

their connection with the crime under investigation. Moreover, the

statute permits. . . extensions of the original two-month period—

presumably for two months each—on a mere showing that such extension is ‘in the public interest.’. . . Third, the statute places no

termination date on the eavesdrop once the conversation sought is

seized. . . . Finally, the statute’s procedure, necessarily because its

success depends on secrecy, has no requirement for notice as do

conventional warrants, nor does it overcome this defect by requiring some showing of special facts. On the contrary, it permits

unconsented entry without any showing of exigent circumstances.

Such a showing of exigency, in order to avoid notice, would appear

more important in eavesdropping, with its inherent dangers, than

that required when conventional procedures of search and seizure

are utilized. Nor does the statute provide for a return on the warrant thereby leaving full discretion in the officer as to the use of

seized conversations of innocent as well as guilty parties. In short,

the statute’s blanket grant of permission to eavesdrop is without

adequate judicial supervision or protective procedures.’’ 142

Both Justices Black and White in dissent accused the Berger

majority of so construing the Fourth Amendment that no wiretapping-eavesdropping statute could pass constitutional scrutiny, 143 and in Katz v. United States, 144 the Court in an opinion

by one of the Berger dissenters, Justice Stewart, modified some of

its language and pointed to Court approval of some types of statutorily-authorized electronic surveillance. Just as Berger had confirmed that one rationale of the Olmstead decision, the inapplicability of ‘‘seizure’’ to conversations, was no longer valid, Katz disposed

of the other rationale. In the latter case, officers had affixed a listening device to the outside wall of a telephone booth regularly

used by Katz and activated it each time he entered; since there had

been no physical trespass into the booth, the lower courts held the

Fourth Amendment not relevant. The Court disagreed, saying that

‘‘once it is recognized that the Fourth Amendment protects peo-
1254 AMENDMENT 4—SEARCHES AND SEIZURES

145 Id. at 353. ‘‘We conclude that the underpinnings of Olmstead and Goldman

have been so eroded by our subsequent decisions that the ‘trespass’ doctrine there

enunciated can no longer be regarded as controlling. The Government’s activities in

electronically listening to and recording the petitioner’s words violated the privacy

upon which he justifiably relied while using the telephone booth and thus constituted a ‘search and seizure’ within the meaning of the Fourth Amendment.’’ Id. 146 Id. at 354. The ‘‘narrowly circumscribed’’ nature of the surveillance was

made clear by the Court in the immediately preceding passage. ‘‘[The Government

agents] did not begin their electronic surveillance until investigation of the petitioner’s activities had established a strong probability that he was using the telephone

in question to transmit gambling information to persons in other States, in violation

of federal law. Moreover, the surveillance was limited, both in scope and in duration, to the specific purpose of establishing the contents of the petitioner’s unlawful

telephonic communications. The agents confined their surveillance to the brief periods during which he used the telephone booth, and they took great care to overhear

only the conversations of the petitioner himself.’’ Id. For similar emphasis upon precision and narrow circumscription, see Osborn v. United States, 385 U.S. 323, 329–

30 (1966). 147 ‘‘A conventional warrant ordinarily serves to notify the suspect of an intended search . . . . In omitting any requirement of advance notice, the federal court

. . . simply recognized, as has this Court, that officers need not announce their purpose before conducting an otherwise authorized search if such an announcement

would provoke the escape of the suspect or the destruction of critical evidence.’’ 389

U.S. at 355 n.16. 148 Id. at 357–58. Justice Black dissented, feeling that the Fourth Amendment

applied only to searches for and seizures of tangible things and not conversations.

Id. at 364. Two ‘‘beeper’’ decisions support the general applicability of the warrant

requirement if electronic surveillance will impair legitimate privacy interests. Compare United States v. Knotts, 460 U.S. 276 (1983) (no Fourth Amendment violation

in relying on a beeper, installed without warrant, to aid in monitoring progress of

a car on the public roads, since there is no legitimate expectation of privacy in destination of travel on the public roads), with United States v. Karo, 468 U.S. 705

(1984) (beeper installed without a warrant may not be used to obtain information

as to the continuing presence of an item within a private residence).

ple—and not simply ‘areas’—against unreasonable searches and

seizures, it becomes clear that the reach of that Amendment cannot

turn upon the presence or absence of a physical intrusion into any

given enclosure.’’ 145 Because the surveillance of Katz’s telephone

calls had not been authorized by a magistrate, it was invalid; however, the Court thought that ‘‘it is clear that this surveillance was

so narrowly circumscribed that a duly authorized magistrate, properly notified of the need for such investigation, specifically informed of the basis on which it was to proceed, and clearly apprised of the precise intrusion it would entail, could constitutionally have authorized, with appropriate safeguards, the very

limited search and seizure that the Government asserts in fact took

place.’’ 146 The notice requirement, which had loomed in Berger as

an obstacle to successful electronic surveillance, was summarily

disposed of. 147 Finally, Justice Stewart observed that it was unlikely that electronic surveillance would ever come under any of the

established exceptions so that it could be conducted without prior

judicial approval. 148
AMENDMENT 4—SEARCHES AND SEIZURES 1255

149Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat.

211, 18 U.S.C. §§ 2510–20. 150The Court has interpreted the statute several times without reaching the

constitutional questions. United States v. Kahn, 415 U.S. 143 (1974); United States

v. Giordano, 416 U.S. 505 (1974); United States v. Chavez, 416 U.S. 562 (1974);

United States v. Donovan, 429 U.S. 413 (1977); Scott v. United States, 436 U.S. 128

(1978); Dalia v. United States, 441 U.S. 238 (1979); United States v. New York Telephone Co., 434 U.S. 159 (1977); United States v. Caceres, 440 U.S. 741 (1979). Dalia

supra, did pass on one constitutional issue, whether the Fourth Amendment mandated specific warrant authorization for a surreptitious entry to install an authorized ‘‘bug.’’ See also Smith v. Maryland, 442 U.S. 735 (1979) (no reasonable expectation of privacy in numbers dialed on one’s telephone, so Fourth Amendment does

not require a warrant to install ‘‘pen register’’ to record those numbers). 151 389 U.S. 347, 363–64 (1967) (concurring opinion). Justices Douglas and

Brennan rejected the suggestion. Id. at 359–60 (concurring opinion). When it enacted its 1968 electronic surveillance statute, Congress alluded to the problem in

ambiguous fashion, 18 U.S.C. § 2511(3), which the Court subsequently interpreted

as having expressed no congressional position at all. United States v. United States

District Court, 407 U.S. 297, 302–08 (1972). 152 United States v. United States District Court, 407 U.S. 297 (1972). Chief

Justice Burger concurred in the result and Justice White concurred on the ground

that the 1968 law required a warrant in this case, and therefore did not reach the

constitutional issue. Id. at 340. Justice Rehnquist did not participate. Justice Powell

carefully noted that the case required ‘‘no judgment on the scope of the President’s

Following Katz, Congress enacted in 1968 a comprehensive

statute authorizing federal officers and permitting state officers

pursuant to state legislation complying with the federal law to seek

warrants for electronic surveillance to investigate violations of prescribed classes of criminal legislation. 149 The Court has not yet

had occasion to pass on the federal statute and to determine

whether its procedures and authorizations comport with the standards sketched in Osborn, Berger, and Katz or whether those standards are somewhat more flexible than they appear to be on the

faces of the opinions. 150

Warrantless ‘‘National Security’’ Electronic Surveillance.—In Katz v. United States, 151 Justice White sought to preserve for a future case the possibility that in ‘‘national security

cases’’ electronic surveillance upon the authorization of the President or the Attorney General could be permissible without prior judicial approval. The Executive Branch then asserted the power to

wiretap and to ‘‘bug’’ in two types of national security situations,

against domestic subversion and against foreign intelligence operations, first basing its authority on a theory of ‘‘inherent’’ presidential power and then in the Supreme Court withdrawing to the

argument that such surveillance was a ‘‘reasonable’’ search and seizure and therefore valid under the Fourth Amendment. Unanimously, the Court held that at least in cases of domestic subversive

investigations, compliance with the warrant provisions of the

Fourth Amendment was required. 152 Whether or not a search was
1256 AMENDMENT 4—SEARCHES AND SEIZURES

surveillance power with respect to the activities of foreign powers, within or without

this country.’’ Id. at 308. 153The case contains a clear suggestion that the Court would approve a congressional provision for a different standard of probable cause in national security cases.

‘‘We recognize that domestic security surveillance may involve different policy and

practical considerations from the surveillance of ‘ordinary crime.’ The gathering of

security intelligence is often long range and involves the interrelation of various

sources and types of information. The exact targets of such surveillance may be

more difficult to identify than in surveillance operations against many types of

crimes specified in Title III. Often, too, the emphasis of domestic intelligence gathering is on the prevention of unlawful activity or the enhancement of the Government’s preparedness for some future crisis or emergency. . . . Different standards

may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens. For the warrant application may vary according to the

governmental interest to be enforced and the nature of citizen rights deserving protection. . . . It may be that Congress, for example, would judge that the application

and affidavit showing probable cause need not follow the exact requirements of

§ 2518 but should allege other circumstances more appropriate to domestic security

cases. . . .’’ Id. at 322–23. 154 Id. at 313–24. 155 Id. at 320. 156See United States v. Butenko, 494 F.2d 593 (3d Cir.), cert. denied, 419 U.S.

881 (1974); Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975), cert. denied, 425 U.S.

944 (1976), appeal after remand 565 F.2d 742 (D.C. Cir. 1977), on remand, 444 F.

Supp. 1296 (D.D.C. 1978), aff’d. in part, rev’d. in part, 606 F.2d 1172 (D.C. Cir.

1979), cert. denied, 453 U.S. 912 (1981); Smith v. Nixon, 606 F.2d 1183 (D.C. Cir.

1979), cert. denied, 453 U.S. 912 (1981); United States v. Truong Dinh Hung, 629

F.2d 908 (4th Cir. 1980), after remand, 667 F.2d 1105 (4th Cir. 1981); Halkin v.

Helms, 690 F.2d 977 (D.C. Cir. 1982).

reasonable, wrote Justice Powell for the Court, was a question

which derived much of its answer from the warrant clause; except

in a few narrowly circumscribed classes of situations, only those

searches conducted pursuant to warrants were reasonable. The

Government’s duty to preserve the national security did not override the gurarantee that before government could invade the privacy of its citizens it must present to a neutral magistrate evidence

sufficient to support issuance of a warrant authorizing that invasion of privacy. 153 This protection was even more needed in ‘‘national security cases’’ than in cases of ‘‘ordinary’’ crime, the Justice

continued, inasmuch as the tendency of government so often is to

regard opponents of its policies as a threat and hence to tread in

areas protected by the First Amendment as well as by the

Fourth. 154 Rejected also was the argument that courts could not

appreciate the intricacies of investigations in the area of national

security nor preserve the secrecy which is required. 155

The question of the scope of the President’s constitutional powers, if any, remains judicially unsettled. 156 Congress has acted,

however, providing for a special court to hear requests for warrants

for electronic surveillance in foreign intelligence situations, and

permitting the President to authorize warrantless surveillance to
AMENDMENT 4—SEARCHES AND SEIZURES 1257

157Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95–511, 92 Stat.

1797, 50 U.S.C. §§ 1801–1811. See United States v. Belfield, 692 F.2d 141 (D.C. Cir.

1982) (upholding constitutionality of disclosure restrictions in Act). 158 Edwards, Criminal Liability for Unreasonable Searches and Seizures, 41 VA.

L. REV. 621 (1955). 159Goldstein, Police Policy Formulation: A Proposal for Improving Police Performance, 65 MICH. L. REV. 1123 (1967). 160 If there are continuing and recurrent violations, federal injunctive relief

would be available. Cf. Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966); Wheeler

v. Goodman, 298 F. Supp. 935 (preliminary injunction), 306 F. Supp. 58 (permanent

injunction) (W.D.N.C. 1969), vacated on jurisdictional grounds, 401 U.S. 987 (1971). 161 42 U.S.C. § 1983 (1964). See Monroe v. Pape, 365 U.S. 167 (1961). In some

circumstances, the officer’s liability may be attributed to the municipality. Monell

v. New York City Dep’t of Social Services, 436 U.S. 658 (1978). These claims that

officers have used excessive force in the course of an arrest or investigatory stop are

to be analyzed under the Fourth Amendment, not under substantive due process.

The test is ‘‘whether the officers’ actions are ‘objectively reasonable’ under the facts

and circumstances confronting them.’’ Graham v. Connor, 490 U.S. 386, 397 (1989).

acquire foreign intelligence information provided that the communications to be monitored are exclusively between or among foreign

powers and there is no substantial likelihood any ‘‘United States

person’’ will be overheard. 157

Enforcing the Fourth Amendment: The Exclusionary Rule

A right to be free from unreasonable searches and seizures is

declared by the Fourth Amendment, but how one is to translate the

guarantee into concrete terms is not specified. Several possible

methods of enforcement have been suggested over time; however,

the Supreme Court has settled, not without dissent, on only one as

an effective means to make real the right.

Alternatives to the Exclusionary Rule.—Theoretically, there

are several alternatives to the exclusionary rule. An illegal search

and seizure may be criminally actionable and officers undertaking

one thus subject to prosecution, but the examples when officers are

criminally prosecuted for overzealous law enforcement are extremely rare. 158 A policeman who makes an illegal search and seizure is subject to internal departmental discipline which may be

backed up in the few jurisdictions which have adopted them by the

oversight of and participation of police review boards, but again the

examples of disciplinary actions are exceedingly rare. 159 Persons

who have been illegally arrested or who have had their privacy invaded will usually have a tort action available under state statutory or common law.

Moreover, police officers acting under color of state law who

violate a person’s Fourth Amendment rights are subject to a suit

for damages and other remedies 160 under a civil rights statute in

federal courts. 161 While federal officers and others acting under

color of federal law are not subject jurisdictionally to this statute,
1258 AMENDMENT 4—SEARCHES AND SEIZURES

162 Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). The possibility had been hinted at in Bell v. Hood, 327 U.S. 678 (1946). 163See, e.g., Chief Justice Burger’s dissent in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 411, 422–24 (1971), which suggests suit against the

Government in a special tribunal and the abolition of the exclusionary rule. 164Foote, Tort Remedies for Police Violations of Individual Rights, 39 MINN. L.

REV. 493 (1955).

165This is the rule in actions under 42 U.S.C. § 1983, Pierson v. Ray, 386 U.S.

547 (1967), and on remand in Bivens the Court of Appeals promulgated the same

rule to govern trial of the action. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 456 F.2d 1339 (2d Cir. 1972). 166 Anderson v. Creighton, 483 U.S. 635 (1987). The dissenting Justices argued,

inter alia, that such a principle is more appropriately applied as an affirmative defense, thereby allowing resolution of factual disputes prior to determining objective

reasonableness of an officer’s actions. 483 U.S. at 655 (Stevens, J.). See also Malley

v. Briggs, 475 U.S. 335, 345 (1986) (qualified immunity protects police officers who

applied for a warrant unless ‘‘a reasonably well-trained officer in [the same] position

would have known that his affidavit failed to establish probable cause and that he

should not have applied for a warrant’’). 167 116 U.S. 616 (1886). 168 ‘‘We have already noticed the intimate relation between the two Amendments. They throw great light on each other. For the ‘unreasonable searches and

the Supreme Court has recently held that a right to damages for

violation of Fourth Amendment rights arises by implication out of

the guarantees secured and that this right is enforceable in federal

courts. 162 While a damage remedy might be made more effectual, 163 a number of legal and practical problems stand in the

way. 164 Police officers have available to them the usual commonlaw defenses, most important of which is the claim of good faith. 165

Federal officers are entitled to qualified immunity based on an objectively reasonable belief that a warrantless search later determined to violate the Fourth Amendment was supported by probable

cause or exigent circumstances. 166 And on the practical side, persons subjected to illegal arrests and searches and seizures are often

disreputable persons toward whom juries are unsympathetic, or

they are indigent and unable to bring suit. The result, therefore,

is that the Court has emphasized exclusion of unconstitutionally

seized evidence in subsequent criminal trials as the only effective

enforcement method.

Development of the Exclusionary Rule.—Exclusion of evidence as a remedy for Fourth Amendment violations found its beginning in Boyd v. United States, 167 which, as was noted above, involved not a search and seizure but a compulsory production of

business papers which the Court likened to a search and seizure.

Further, the Court analogized the Fifth Amendment’s self-incrimination provision to the Fourth Amendment’s protections to derive

a rule which required exclusion of the compelled evidence because

the defendant had been compelled to incriminate himself by producing it. 168 The Boyd case was closely limited to its facts and an
AMENDMENT 4—SEARCHES AND SEIZURES 1259

seizures’ condemned in the Fourth Amendment are almost always made for the purpose of compelling a man to give evidence against himself, which in criminal cases

is condemned in the Fifth Amendment; and compelling a man in a criminal case

to be a witness against himself, which is condemned in the Fifth Amendment,

throws light on the question as to what is an ‘unreasonable search and seizure’

within the meaning of the Fourth Amendment. And we have been unable to perceive

that the seizure of a man’s private books and papers to be used in evidence against

him is substantially different from compelling him to be a witness against himself.

We think it is within the clear intent and meaning of those terms.’’ Id. at 633. It

was this utilization of the Fifth Amendment’s clearly required exclusionary rule,

rather than one implied from the Fourth, on which Justice Black relied and absent

a Fifth Amendment self-incrimination violation he did not apply such a rule. Mapp

v. Ohio, 367 U.S. 643, 661 (1961) (concurring opinion); Coolidge v. New Hampshire,

403 U.S. 443, 493, 496–500 (1971) (dissenting opinion). The theory of a ‘‘convergence’’ of the two Amendments has now been disavowed by the Court. Supra,

pp. 1225–26.

169 Adams v. New York, 192 U.S. 585 (1904). Since the case arose from a state

court and concerned a search by state officers, it could have been decided simply

by holding that the Fourth Amendment was inapplicable. See National Safe Deposit

Co. v. Stead, 232 U.S. 58, 71 (1914). 170 232 U.S. 383 (1914). 171 Id. at 392.

exclusionary rule based on Fourth Amendment violations was rejected by the Court a few years later, with the Justices adhering

to the common-law rule that evidence was admissible however acquired. 169

Nevertheless, ten years later the common-law view was itself

rejected and an exclusionary rule propounded in Weeks v. United

States. 170 Weeks had been convicted on the basis of evidence seized

from his home in the course of two warrantless searches; some of

the evidence consisted of private papers like those sought to be

compelled in the Boyd case. Unanimously, the Court held that the

evidence should have been excluded by the trial court. The Fourth

Amendment, Justice Day said, placed on the courts as well as on

law enforcement officers restraints on the exercise of power compatible with its guarantees. ‘‘The tendency of those who execute the

criminal laws of the country to obtain convictions by means of unlawful searches and enforced confessions . . . should find no sanction in the judgment of the courts which are charged at all times

with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights.’’ 171 The ruling is ambiguously based but seems to

have had as its foundation an assumption that admission of illegally-seized evidence would itself violate the Amendment. ‘‘If letters and private documents can thus be seized and held and used

in evidence against a citizen accused of an offense, the protection

of the Fourth Amendment declaring his right to be secured against

such searches and seizures is of no value, and, so far as those thus

placed are concerned, might as well be stricken from the Constitu-
1260 AMENDMENT 4—SEARCHES AND SEIZURES

172 Id. at 393. 173Smith v. Maryland, 59 U.S. (18 How.) 71, 76 (1855); National Safe Deposit

Co. v. Stead, 232 U.S. 58, 71 (1914). See supra, p. 957. 174The history of the exclusionary rule in the state courts was surveyed by Justice Frankfurter in Wolf v. Colorado, 338 U.S. 25, 29, 33–38 (1949). The matter was

canvassed again in Elkins v. United States, 364 U.S. 206, 224–32 (1960). 175During the period in which the Constitution did not impose any restrictions

on state searches and seizures, the Court permitted the introduction in evidence in

federal courts of items seized by state officers which had they been seized by federal

officers would have been inadmissible, Weeks v. United States, 232 U.S. 383, 398

(1914), so long as no federal officer participated in the search, Byars v. United

States, 273 U.S. 28 (1927), or the search was not made on behalf of federal law enforcement purposes. Gambino v. United States, 275 U.S. 310 (1927). This rule became known as the ‘‘silver platter doctrine’’ after the phrase coined by Justice

Frankfurter in Lustig v. United States, 338 U.S. 74, 78–79 (1949): ‘‘The crux of that

doctrine is that a search is a search by a federal official if he had a hand in it; it

is not a search by a federal official if evidence secured by state authorities is turned

over to the federal authorities on a silver platter.’’ In Elkins v. United States, 364

U.S. 206 (1960), the doctrine was discarded by a five-to-four majority which held

that inasmuch as Wolf v. Colorado, 338 U.S. 25 (1949), had made state searches and

seizures subject to federal constitutional restrictions through the Fourteenth

Amendment’s due process clause, the ‘‘silver platter doctrine’’ was no longer constitutionally viable. During this same period, since state courts were free to admit

any evidence no matter how obtained, evidence illegally seized by federal officers

could be used in state courts, Wilson v. Schnettler, 365 U.S. 381 (1961), although

the Supreme Court ruled out such a course if the evidence had first been offered

in a federal trial and had been suppressed. Rea v. United States, 350 U.S. 214

(1956). 176 338 U.S. 25 (1949). 177 ‘‘The security of one’s privacy against arbitrary intrusion by the police—

which is at the core of the Fourth Amendment—is basic to a free society. It is therefore implicit in ‘the concept of ordered liberty’ and as such enforceable against the

States through the Due Process Clause.’’ Id. at 27–28.

tion. The efforts of the courts and their officials to bring the guilty

to punishment, praiseworthy as they are, are not to be aided by the

sacrifice of those great principles established by years of endeavor

and suffering which have resulted in their embodiment in the fundamental law of the land.’’ 172

Because the Fourth Amendment did not restrict the actions of

state officers, 173 there was no question about the application of an

exclusionary rule in state courts 174 as a mandate of federal

consitutional policy. 175 But in Wolf v. Colorado, 176 a unanimous

Court held that freedom from unreasonable searches and seizures

was such a fundamental right as to be protected against state violations by the due process clause of the Fourteenth Amendment. 177

However, the Court held that the right thus guaranteed did not require that the exclusionary rule be applied in the state courts,

since there were other means to observe and enforce the right.

‘‘Granting that in practice the exclusion of evidence may be an effective way of deterring unreasonable searches, it is not for this

Court to condemn as falling below the minimal standards assured
AMENDMENT 4—SEARCHES AND SEIZURES 1261

178 Id. at 31. Justices Douglas, Murphy, and Rutledge dissented with regard to

the issue of the exclusionary rule and Justice Black concurred. 179 342 U.S. 165 (1952). The police had initially entered defendant’s house without a warrant. Justices Black and Douglas concurred in the result on self-incrimination grounds. 180 Id. at 172. 181 347 U.S. 128 (1954). 182 Id. at 134–38. Justice Clark, concurring, announced his intention to vote to

apply the exclusionary rule to the States when the votes were available. Id. at 138.

Justices Black and Douglas dissented on self-incrimination grounds, id. at 139, and

Justice Douglas continued to urge the application of the exclusionary rule to the

States. Id. at 149. Justices Frankfurter and Burton dissented on due process

grounds, arguing the relevance of Rochin. Id. at 142. 183 Breithaupt v. Abram, 352 U.S. 432 (1957). Chief Justice Warren and Justices

Black and Douglas dissented. Though a due process case, the results of the case

by the Due Process Clause a State’s reliance upon other methods

which, if consistently enforced, would be equally effective.’’ 178

It developed, however, that the Court had not vested in the

States total discretion in regard to the admissibility of evidence, as

the Court proceeded to evaluate under the due process clause the

methods by which the evidence had been obtained. Thus, in Rochin

v. California, 179 evidence of narcotics possession had been obtained

by forcible administration of an emetic to defendant at a hospital

after officers had been unsuccessful in preventing him from swallowing certain capsules. The evidence, said Justice Frankfurter for

the Court, should have been excluded because the police methods

were too objectionable. ‘‘This is conduct that shocks the conscience.

Illegally breaking into the privacy of the petitioner, the struggle to

open his mouth and remove what was there, the forcible extraction

of his stomach’s contents . . . is bound to offend even hardened sensibilities. They are methods too close to the rack and screw.’’ 180

The Rochin standard was limited in Irvine v. California, 181 in

which defendant was convicted of bookmaking activities on the

basis of evidence secured by police who repeatedly broke into his

house and concealed electronic gear to broadcast every conversation

in the house. Justice Jackson’s plurality opinion asserted that

Rochin had been occasioned by the element of brutality, and that

while the police conduct in Irvine was blatantly illegal the admissibility of the evidence was governed by Wolf, which should be consistently applied for purposes of guidance to state courts. The Justice also entertained considerable doubts about the efficacy of the

exclusionary rule. 182 Rochin emerged as the standard, however, in

a later case in which the Court sustained the admissibility of the

results of a blood test administered while defendant was unconscious in a hospital following a traffic accident, the Court observing

the routine nature of the test and the minimal intrusion into bodily

privacy. 183
1262 AMENDMENT 4—SEARCHES AND SEIZURES

have been reaffirmed directly in a Fourth Amendment case. Schmerber v. California, 384 U.S. 757 (1966). 184 367 U.S. 643 (1961). 185 Id. at 655–56. Justice Black concurred, doubting that the Fourth Amendment itself compelled adoption of an exclusionary rule but relying on the Fifth

Amendment for authority. Id. at 661. Justice Stewart would not have reached the

issue but would have reversed on other grounds, id. at 672, while Justices Harlan,

Frankfurter, and Whittaker dissented, preferring to adhere to Wolf. Id. at 672. Justice Harlan advocated the overruling of Mapp down to the conclusion of his service

on the Court. See Coolidge v. New Hampshire, 403 U.S. 443, 490 (1971) (concurring

opinion). 186Ker v. California, 374 U.S. 23 (1963). 187 Boyd v. United States, 116 U.S. 616 (1886). 188 232 U.S. 383 (1914). Defendant’s room had been searched and papers seized

by officers acting without a warrant. ‘‘If letters and private documents can thus be

seized and held and used in evidence against a citizen accused of an offense, the

protection of the Fourth Amendment declaring his right to be secure against such

searches and seizures is of no value, and, so far as those thus placed are concerned,

might as well be stricken from the Constitution.’’ Id. at 393. 189 E.g., Gouled v. United States, 255 U.S. 298, 306, 307 (1921); Amos v. United

States, 255 U.S. 313, 316 (1921); Agnello v. United States, 269 U.S. 20, 33–34

(1925); McGuire v. United States, 273 U.S. 95, 99 (1927). In Olmstead v. United

Then, in Mapp v. Ohio, 184 the Court held that the exclusionary

rule should and did apply to the States. It was ‘‘logically and constitutionally necessary,’’ wrote Justice Clark for the majority, ‘‘that

the exclusion doctrine—an essential part of the right to privacy—

be also insisted upon as an essential ingredient of the right’’ to be

secure from unreasonable searches and seizures. ‘‘To hold otherwise is to grant the right but in reality to withhold its privilege

and enjoyment.’’ 185 Further, the Court then held that since illegally-seized evidence was to be excluded from both federal and

state courts, the standards by which the question of legality was

to be determined should be the same, regardless of whether the

court in which the evidence was offered was state or federal. 186

The Foundations of the Exclusionary Rule.—Important to

determination of such questions as the application of the exclusionary rule to the States and the ability of Congress to abolish or to

limit it is the fixing of the constitutional source and the basis of

the rule. For some time, it was not clear whether the exclusionary

rule was derived from the Fourth Amendment, from some union of

the Fourth and Fifth Amendments, or from the Court’s supervisory

power over the lower federal courts. It will be recalled that in

Boyd 187 the Court fused the search and seizure clause with the

provision of the Fifth Amendment protecting against compelled

self-incrimination. Weeks v. United States, 188 though the Fifth

Amendment was mentioned, seemed to be clearly based on the

Fourth Amendment. Nevertheless, in opinions following Weeks the

Court clearly identified the basis for the exclusionary rule as the

self-incrimination clause of the Fifth Amendment. 189 Then in
AMENDMENT 4—SEARCHES AND SEIZURES 1263

States, 277 U.S. 438, 462 (1928), Chief Justice Taft ascribed the rule both to the

Fourth and the Fifth Amendments, while in dissent Justices Holmes and Brandeis

took the view that the Fifth Amendment was violated by the admission of evidence

seized in violation of the Fourth. Id. at 469, 478–79. Justice Black was the only

modern proponent of this view. Mapp v. Ohio, 367 U.S. 643, 661 (1961) (concurring

opinion); Coolidge v. New Hampshire, 403 U.S. 443, 493, 496–500 (1971) (dissenting

opinion). See, however, Justice Clark’s plurality opinion in Ker v. California, 374

U.S. 23, 30 (1963), in which he brought up the self-incrimination clause as a supplementary source of the rule, a position which he had discarded in Mapp. 190 367 U.S. 643, 656 (1961). Wolf v. Colorado, 338 U.S. 25, 28 (1949), also ascribed the rule to the Fourth Amendment exclusively. 191Mapp v. Ohio, 367 U.S. 643, 648 (1961) (emphasis supplied). 192 An example of an exclusionary rule not based on constitutional grounds may

be found in McNabb v. United States, 318 U.S. 332 (1943), and Mallory v. United

States, 354 U.S. 449 (1957), in which the Court enforced a requirement that

arrestees be promptly presented to a magistrate by holding that incriminating admissions obtained during the period beyond a reasonable time for presentation

would be inadmissible. The rule was not extended to the States, cf. Culombe v. Connecticut, 367 U.S. 568, 598–602 (1961), but the Court’s resort to the self-incrimination clause in reviewing confessions made such application irrelevant in most cases

in any event. For an example of a transmutation of a supervisory rule into a constitutional rule, see McCarthy v. United States, 394 U.S. 459 (1969), and Boykin

v. Alabama, 395 U.S. 238 (1969). 193Weeks ‘‘was not derived from the explicit requirements of the Fourth Amendment; . . . The decision was a matter of judicial implication.’’ 338 U.S. 25, 28 (1949).

Justice Black was more explicit. ‘‘I agree with what appears to be a plain implication of the Court’s opinion that the federal exclusionary rule is not a command of

the Fourth Amendment but is a judicially created rule of evidence which Congress

might negate.’’ Id. at 39–40. He continued to adhere to the supervisory power basis

in strictly search-and-seizure cases, Berger v. New York, 388 U.S. 41, 76 (1967) (dissenting), except where self-incrimination values were present. Mapp v. Ohio, 367

U.S. 643, 661 (1961) (concurring). And see id. at 678 (Justice Harlan dissenting);

Elkins v. United States, 364 U.S. 206, 216 (1960) (Justice Stewart for the Court).

Mapp v. Ohio, 190 the Court tied the rule strictly to the Fourth

Amendment, finding exclusion of evidence seized in violation of the

Amendment to be the ‘‘most important constitutional privilege’’ of

the right to be free from unreasonable searches and seizures, finding that the rule was ‘‘an essential part of the right of privacy’’ protected by the Amendment.

‘‘This Court has ever since [Weeks was decided in 1914] required of federal law officers a strict adherence to that command

which this Court has held to be a clear, specific, and constitutionally required—even if judicially implied—deterrent safeguard

without insistence upon which the Fourth Amendment would have

been reduced to a ‘form of words.’’’ 191 It was a necessary step in

the application of the rule to the States to find that the rule was

of constitutional origin rather than a result of an exercise of the

Court’s supervisory power over the lower federal courts, inasmuch

as the latter could not constitutionally be extended to the state

courts. 192 In fact, Justice Frankfurter seemed to find the exclusionary rule to be based on the Court’s supervisory powers in Wolf v.

Colorado 193 in declining to extend the rule to the States. That the
1264 AMENDMENT 4—SEARCHES AND SEIZURES

194 ‘‘The tendency of those who execute the criminal laws of the country to obtain convictions by means of unlawful searches and enforced confessions . . . should

find no sanction in the judgment of the courts which are charged at all times with

the support of the Constitution . . . .’’ Weeks v. United States, 232 U.S. 383, 392

(1914). In Mapp v. Ohio, 367 U.S. 643, 655, 657 (1961), Justice Clark maintained

that ‘‘the Fourth Amendment include[s] the exclusion of the evidence seized in violation of its provisions’’ and that it, and the Fifth Amendment with regard to confessions ‘‘assures . . . that no man is to be convicted on unconstitutional evidence.’’ In

Terry v. Ohio, 392 U.S. 1, 12, 13 (1968), Chief Justice Warren wrote: ‘‘Courts which

sit under our Constitution cannot and will not be made party to lawless invasions

of the constitutional rights of citizens by permitting unhindered governmental use

of the fruits of such invasions. . . . A ruling admitting evidence in a criminal trial

. . . has the necessary effect of legitimizing the conduct which produced the evidence.’’ 195 Elkins v. United States, 364 U.S. 206, 222–23 (1960); Mapp v. Ohio, 367 U.S.

643, 660 (1961). See McNabb v. United States, 318 U.S. 332, 339–40 (1943). 196 Infra, pp. 1269–70. 197Linkletter v. Walker, 381 U.S. 618 (1965). 198 Elkins v. United States, 364 U.S. 206, 217 (1960). 199Linkletter v. Walker, 381 U.S. 618, 636–37 (1965). The Court advanced other

reasons for its decision as well. Id. at 636–40. 200 Among the early critics were Judge Cardozo, People v. Defore, 242 N.Y. 13,

21, 150 N.E. 585, 587 (1926) (the criminal will go free ‘‘because the constable has

blundered’’); and Dean Wigmore. 8 J. WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE 2183–84 (3d ed. 1940). For extensive discussion of critirule is of constitutional origin Mapp establishes, but this does not

necessarily establish that it is immune to statutory revision.

Suggestions appear in a number of cases, including Weeks, to

the effect that admission of illegally-seized evidence is itself unconstitutional. 194 These were often combined with a rationale emphasizing ‘‘judicial integrity’’ as a reason to reject the proffer of such

evidence. 195 Yet the Court permitted such evidence to be introduced into trial courts, when the defendant lacked ‘‘standing’’ to object to the search and seizure which produced the evidence 196 or

when the search took place before the announcement of the decision extending the exclusionary rule to the States. 197 At these

times, the Court turned to the ‘‘basic postulate of the exclusionary

rule itself. The rule is calculated to prevent, not to repair. Its purpose is to deter—to compel respect for the constitutional guaranty

in the only effectively available way—by removing the incentive to

disregard it.’’ 198 ‘‘Mapp had as its prime purpose the enforcement

of the Fourth Amendment through the inclusion of the exclusionary

rule within its rights. This, it was found, was the only effective deterrent to lawless police action. Indeed, all of the cases since Wolf

requiring the exclusion of illegal evidence have been based on the

necessity for an effective deterrent to illegal police action.’’ 199

Narrowing Application of the Exclusionary Rule.—For as

long as we have had the exclusionary rule, critics have attacked it,

challenged its premises, disputed its morality. 200 By the early
AMENDMENT 4—SEARCHES AND SEIZURES 1265

cism and support, with citation to the literature, see 1 WAYNE R. LAFAVE, SEARCH

AND SEIZURE—A TREATISE ON THE FOURTH AMENDMENT § 1.2 (2d ed. 1987). 201 E.g., Stone v. Powell, 428 U.S. 465, 496 (1976) (Chief Justice Burger: rule

ought to be discarded now, rather than wait for a replacement as he argued earlier);

id. at 536 (Justice White: modify rule to admit evidence seized illegally, but in good

faith); Schneckloth v. Bustamonte, 412 U.S. 218, 261 (1973) (Justice Powell); Brown

v. Illinois, 422 U.S. 590, 609 (1975) (Justice Powell); Robbins v. California, 453 U.S.

420, 437 (1981) (Justice Rehnquist); California v. Minjares, 443 U.S. 916 (1979)

(Justice Rehnquist joined by Chief Justice Burger); Coolidge v. New Hampshire, 403

U.S. 443, 510 (1971) (Justice Blackmun joining Justice Black’s dissent that ‘‘the

Fourth Amendment supports no exclusionary rule’’). 202 E.g., United States v. Janis, 428 U.S. 433, 446 (1976) (deterrence is the

‘‘prime purpose’’ of the rule, ‘‘if not the sole one.’’); United States v. Calandra, 414

U.S. 338, 347–48 (1974); United States v. Peltier, 422 U.S. 531, 536–39 (1975);

Stone v. Powell, 428 U.S. 465, 486 (1976); Rakas v. Illinois, 439 U.S. 128, 134 n.3,

137–38 (1978); Michigan v. DeFillippo, 443 U.S. 31, 38 n.3 (1979). Thus, admission

of the fruits of an unlawful search or seizure ‘‘work[s] no new Fourth Amendment

wrong,’’ the wrong being ‘‘fully accomplished by the unlawful search or seizure itself,’’ United States v. Calandara, supra, 354, and the exclusionary rule does not

‘‘cure the invasion of the defendant’s rights which he has already suffered.’’ Stone

v. Powell, supra, 540 (Justice White dissenting). ‘‘Judicial integrity’’ is not infringed

by the mere admission of evidence seized wrongfully. ‘‘[T]he courts must not commit

or encourage violations of the Constitution,’’ and the integrity issue is answered by

whether exclusion would deter violations by others. United States v. Janis, supra,

at 458 n.35; United States v. Calandra, supra, at 347, 354; United States v. Peltier,

supra, at 538; Michigan v. Tucker, 417 U.S. 433, 450 n.25 (1974). 203 United States v. Janis, 428 U.S. 433, 448–54 (1976), contains a lengthy review of the literature on the deterrent effect of the rule and doubts about that effect.

See also Stone v. Powell, 428 U.S. 465, 492 n.32 (1976). 204Stone v. Powell, 428 U.S. at 490, 491. 205 Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 416 (1971)

(Chief Justice Burger dissenting). 206Silverthorne Lumber Co. v. United States 251 U.S. 385, 392 (1920).

1980s a majority of Justices had stated a desire either to abolish

the rule or to sharply curtail its operation, 201 and numerous opinions had rejected all doctrinal bases save that of deterrence. 202 At

the same time, these opinions voiced strong doubts about the efficacy of the rule as a deterrent, and advanced public interest values

in effective law enforcement and public safety as reasons to discard

the rule altogether or curtail its application. 203 Thus, the Court

emphasized the high costs of enforcing the rule to exclude reliable

and trustworthy evidence, even when violations have been technical or in good faith, and suggested that such use of the rule may

well ‘‘generat[e] disrespect for the law and administration of justice,’’ 204 as well as free guilty defendants. 205 No longer does the

Court declare that ‘‘[t]he essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence

so acquired shall not be used before the Court but that it shall not

be used at all.’’ 206

Although the exclusionary rule has not been completely repudiated, its utilization has been substantially curbed. Initial decisions

chipped away at the rule’s application. Defendants who themselves
1266 AMENDMENT 4—SEARCHES AND SEIZURES

207 E.g., Rakas v. Illinois, 439 U.S. 128 (1978); United States v. Salvucci, 448

U.S. 83 (1980); Rawlings v. Kentucky, 448 U.S. 98 (1980). In United States v.

Payner, 447 U.S. 727 (1980), the Court held it impermissible for a federal court to

exercise its supervisory power to police the administration of justice in the federal

system to suppress otherwise admissible evidence on the ground that federal agents

had flagrantly violated the Fourth Amendment rights of third parties in order to

obtain evidence to use against others when the agents knew that the defendant

would be unable to challenge their conduct under the Fourth Amendment. 208 United States v. Havens, 446 U.S. 620 (1980); Walder v. United States, 347

U.S. 62 (1954). Cf. Agnello v. United States, 269 U.S. 20 (1925) (now vitiated by

Havens). The impeachment exception applies only to the defendant’s own testimony,

and may not be extended to use illegally obtained evidence to impeach the testimony of other defense witnesses. James v. Illinois, 493 U.S. 307 (1990). 209Stone v. Powell, 428 U.S. 465 (1976). 210Wong Sun v. United States, 371 U.S. 471, 487–88 (1963); Alderman v. United States, 394 U.S. 165, 180–85 (1969); Brown v. Illinois, 422 U.S. 590 (1975); Taylor v. Alabama, 457 U.S. 687 (1982). United States v. Ceccolini, 435 U.S. 268 (1978),

refused to exclude the testimony of a witness discovered through an illegal search.

Because a witness was freely willing to testify and therefore more likely to come

forward, the application of the exclusionary rule was not to be tested by the standard applied to exclusion of inanimate objects. Deterrence would be little served and

relevant and material evidence would be lost to the prosecution. In New York v.

Harris, 495 U.S. 14 (1990), the Court refused to exclude a station-house confession

made by a suspect whose arrest at his home had violated the Fourth Amendment

because, even though probable cause had existed, no warrant had been obtained.

And in Segura v. United States, 468 U.S. 796 (1984), evidence seized pursuant to

warrant obtained after an illegal entry was admitted because there had been an

independent basis for issuance of a warrant. This rule applies as well to evidence

observed in plain view during the initial illegal search. Murray v. United States,

487 U.S. 533 (1988). See also United States v. Karo, 468 U.S. 705 (1984) (excluding

consideration of tainted evidence, there was sufficient untainted evidence in affidavit to justify finding of probable cause and issuance of search warrant). 211Michigan v. DeFillippo, 443 U.S. 31 (1979) (statute creating substantive

criminal offense). Statutes that authorize unconstitutional searches and seizures but

which have not yet been voided at the time of the search or seizure may not create

were not subjected to illegal searches and seizures may not object

to the introduction against themselves of evidence illegally obtained from co-conspirators or codefendants, 207 and even a defendant whose rights have been infringed may find the evidence coming

in, not as proof of guilt, but to impeach his testimony. 208 Defendants who have been convicted after trials in which they were given

a full and fair opportunity to raise claims of Fourth Amendment

violations may not subsequently raise those claims on federal habeas corpus because of the costs overweighing the minimal deterrent effect. 209 Evidence obtained through a wrongful search and

seizure may sometimes be used in the criminal trial, if the prosecution can show a sufficient attenuation of the link between police

misconduct and obtaining of the evidence. 210 If an arrest or a

search which was valid at the time it was effectuated becomes bad

through the subsequent invalidation of the statute under which the

arrest or search was made, evidence obtained thereby is nonetheless admissible. 211 A grand jury witness was not permitted to
AMENDMENT 4—SEARCHES AND SEIZURES 1267

this effect, however, Torres v. Puerto Rico, 442 U.S. 465 (1979); Ybarra v. Illinois,

444 U.S. 85 (1979). This aspect of Torres and Ybarra was to a large degree nullified

by Illinois v. Krull, 480 U.S. 340 (1987), rejecting a distinction between substantive

and procedural statutes and holding the exclusionary rule inapplicable in the case

of a police officer’s objectively reasonable reliance on a statute later held to violate

the Fourth Amendment. 212 United States v. Calandra, 414 U.S. 338 (1974). 213 United States v. Janis, 428 U.S. 433 (1976). Similarly, the rule is inapplicable in civil proceedings for deportation of aliens. INS v. Lopez-Mendoza, 468 U.S.

1032 (1984). 214 468 U.S. 897 (1984). The same objectively reasonable ‘‘good-faith’’ rule now

applies in determining whether officers obtaining warrants are entitled to qualified

immunity from suit. Malley v. Briggs, 475 U.S. 335 (1986). 215The opinion was joined by Chief Justice Burger, and by Justices Blackmun,

Powell, Rehnquist, and O’Connor. Justice Blackmun also added a separate concurring opinion. Dissents were filed by Justice Brennan, joined by Justice Marshall,

and by Justice Stevens. 216 468 U.S. at 907. 217 468 U.S. at 916–17. 218 468 U.S. at 919, 921.

refuse to answer questions on the ground that they were based on

evidence obtained from an unlawful search and seizure, 212 and federal tax authorities were permitted to use in a civil proceeding evidence found to have been unconstitutionally seized from defendant

by state authorities. 213

The most severe curtailment of the rule came in 1984 with

adoption of a ‘‘good faith’’ exception. In United States v. Leon, 214

the Court created an exception for evidence obtained as a result of

officers’ objective, good-faith reliance on a warrant, later found to

be defective, issued by a detached and neutral magistrate. Justice

White’s opinion for the Court 215 could find little benefit in applying

the exclusionary rule where there has been good-faith reliance on

an invalid warrant. Thus, there was nothing to offset the ‘‘substantial social costs exacted by the [rule].’’ 216 ‘‘The exclusionary rule is

designed to deter police misconduct rather than to punish the errors of judges and magistrates,’’ and in any event the Court considered it unlikely that the rule could have much deterrent effect on

the actions of truly neutral magistrates. 217 Moreover, the Court

thought that the rule should not be applied ‘‘to deter objectively

reasonable law enforcement activity,’’ and that ‘‘[p]enalizing the officer for the magistrate’s error . . . cannot logically contribute to

the deterrence of Fourth Amendment violations.’’ 218 The Court also

suggested some circumstances in which courts would be unable to

find that officers’ reliance on a warrant was objectively reasonable:

if the officers have been ‘‘dishonest or reckless in preparing their

affidavit,’’ if it should have been obvious that the magistrate had

‘‘wholly abandoned’’ his neutral role, or if the warrant was obviously deficient on its face (e.g., lacking in particularity). The Court
1268 AMENDMENT 4—SEARCHES AND SEIZURES

219 468 U.S. 981 (1984). 220 Illinois v. Krull, 480 U.S. 340 (1987). The same difficult-to-establish qualifications apply: there can be no objectively reasonable reliance ‘‘if, in passing the

statute, the legislature wholly abandoned its responsibility to enact constitutional

laws,’’ or if ‘‘a reasonable officer should have known that the statute was unconstitutional.’’ 480 U.S. at 355. 221Dissenting Justice O’Connor disagreed with this second conclusion, suggesting that the grace period ‘‘during which the police may freely perform unreasonable

searches . . . creates a positive incentive [for legislatures] to promulgate unconstitutional laws,’’ and that the Court’s ruling ‘‘destroys all incentive on the part of individual criminal defendants to litigate the violation of their Fourth Amendment

rights’’ and thereby obtain a ruling on the validity of the statute. 480 U.S. at 366,

369.222The whole thrust of analysis in Leon dealt with reasonableness of reliance

on a warrant. The Court several times, however, used language broad enough to

apply to warrantless searches as well. See, e.g., 468 U.S. at 909 (quoting Justice

White’s concurrence in Illinois v. Gates): ‘‘the balancing approach that has evolved

. . . ‘forcefully suggest[s] that the exclusionary rule be more generally modified to

permit the introduction of evidence obtained in the reasonable good-faith belief that

a search or seizure was in accord with the Fourth Amendment’ ’’; and id. at at 919:

‘‘[the rule] cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity.’’ 223See Yale Kamisar, Gates, ‘‘Probable Cause,’’ ‘‘Good Faith,’’ and Beyond, 69

IOWA L. REV. 551, 589 (1984) (imposition of a good-faith exception on top of the ‘‘already diluted’’ standard for validity of a warrant ‘‘would amount to double dilution’’).

applied the Leon standard in Massachusetts v. Sheppard, 219 holding that an officer possessed an objectively reasonable belief that

he had a valid warrant after he had pointed out to the magistrate

that he had not used the standard form, and the magistrate had

indicated that the necessary changes had been incorporated in the

issued warrant.

The Court then extended Leon to hold that the exclusionary

rule is inapplicable to evidence obtained by an officer acting in objectively reasonable reliance on a statute later held violative of the

Fourth Amendment. 220 Justice Blackmun’s opinion for the Court

reasoned that application of the exclusionary rule in such circumstances would have no more deterrent effect on officers than it

would when officers reasonably rely on an invalid warrant, and no

more deterrent effect on legislators who enact invalid statutes than

on magistrates who issue invalid warrants. 221

It is unclear from the Court’s analysis in Leon and its progeny

whether a majority of the Justices would also support a good-faith

exception for evidence seized without a warrant, although there is

some language broad enough to apply to warrantless seizures. 222

It is also unclear what a good-faith exception would mean in the

context of a warrantless search, since the objective reasonableness

of an officer’s action in proceeding without a warrant is already

taken into account in determining whether there has been a Fourth

Amendment violation. 223 The Court’s increasing willingness to uphold warrantless searches as not ‘‘unreasonable’’ under the Fourth
AMENDMENT 4—SEARCHES AND SEIZURES 1269

224See, e.g., Illinois v. Rodriguez, 497 U.S. 177 (1990) (upholding search premised on officer’s reasonable but mistaken belief that a third party had common authority over premises and could consent to search); Schneckloth v. Bustamonte, 412

U.S. 218 (1973) (no requirement of knowing and intelligent waiver in consenting to

warrantless search); New York v. Belton, 453 U.S. 454 (1981) (upholding

warrantless search of entire interior of passenger car, including closed containers,

as incident to arrest of driver); United States v. Ross, 456 U.S. 798 (1982) (upholding warrrantless search of movable container found in a locked car trunk). 225 Jones v. United States, 362 U.S. 257, 261 (1960). That is, the movant must

show that he was ‘‘a victim of search or seizure, one against whom the search was

directed, as distinguished from one who claims prejudice only through the use of

evidence gathered as a consequence of search or seizure directed at someone else.’’

Id. See Alderman v. United States, 394 U.S. 165, 174 (1969). 226 Rakas v. Illinois, 439 U.S. 128, 139 (1978). 227 Id. at 140.

Amendment, however, may reduce the frequency with which the

good-faith issue arises in the context of the exclusionary rule. 224

Operation of the Rule: Standing.—The Court for a long period followed a rule of ‘‘standing’’ by which it determined whether

a party was the appropriate person to move to suppress allegedly

illegal evidence. Akin to Article III justiciability principles, which

emphasize that one may ordinarily contest only those government

actions that harm him, the standing principle in Fourth Amendment cases ‘‘require[d] of one who seeks to challenge the legality

of a search as the basis for suppressing relevant evidence that he

allege, and if the allegation be disputed that he establish, that he

himself was the victim of an invasion of privacy.’’ 225 The Court recently has departed from the concept of ‘‘standing’’ to telescope the

inquiry into one inquiry rather than two. Finding that ‘‘standing’’

served no useful analytical purpose, the Court has held that the

issue of exclusion is to be determined solely upon a resolution of

the substantive question whether the claimant’s Fourth Amendment rights have been violated. ‘‘We can think of no decided cases

of this Court that would have come out differently had we concluded . . . that the type of standing requirement . . . reaffirmed

today is more properly subsumed under substantive Fourth

Amendment doctrine. Rigorous application of the principle that the

rights secured by this Amendment are personal, in place of a notion of ‘standing,’ will produce no additional situations in which

evidence must be excluded. The inquiry under either approach is

the same.’’ 226 One must therefore show that ‘‘the disputed search

and seizure has infringed an interest of the defendant which the

Fourth Amendment was designed to protect.’’ 227

The Katz reasonable expectation of privacy rationale has now

displaced property-ownership concepts which previously might

have supported either standing to suppress or the establishment of

an interest that has been invaded. Thus, it is no longer sufficient
1270 AMENDMENT 4—SEARCHES AND SEIZURES

228Previously, when ownership or possession was the issue, such as a charge

of possessing contraband, the Court accorded ‘‘automatic standing’’ to one on the

basis, first, that to require him to assert ownership or possession at the suppression

hearing would be to cause him to incriminate himself with testimony that could

later be used against him, and, second, that the government could not simultaneously assert that defendant was in possession of the items and deny that it had

invaded his interests. Jones v. United States, 362 U.S. 257, 261–265 (1960). See also

United States v. Jeffers, 342 U.S. 48 (1951). But in Simmons v. United States, 390

U.S. 377 (1968), the Court held inadmissible at the subsequent trial admissions

made in suppression hearings. When it then held that possession alone was insufficient to give a defendant the interest to move to suppress, because he must show

that the search itself invaded his interest, the second consideration was mooted as

well, and thus the ‘‘automatic standing’’ rule was overturned. United States v.

Salvucci, 448 U.S. 83 (1980) (stolen checks found in illegal search of apartment of

the mother in defendant, in which he had no interest; defendant could not move to

suppress on the basis of the illegal search); Rawlings v. Kentucky, 448 U.S. 98

(1980) (drugs belonging to defendant discovered in illegal search of friend’s purse,

in which he had no privacy interest; admission of ownership insufficient to enable

him to move to suppress).

229 Rakas v. Illinois, 439 U.S. 128 (1978) (passengers in automobile had no privacy interest in interior of the car; could not object to illegal search). Jones v. United States, 362 U.S. 257 (1960), had established rule that anyone legitimately on the

premises could object; the rationale was discarded but the result in Jones was maintained because he was there with permission, he had his own key, his luggage was

there, he had the right to exclude and therefore a legitimate expectation of privacy.

Similarly maintained were the results in United States v. Jeffers, 342 U.S. 48

(1951) (hotel room rented by defendant’s aunts to which he had a key and permission to store things); Mancusi v. DeForte, 392 U.S. 364 (1968) (defendant shared office with several others; though he had no reasonable expectation of absolute privacy, he could reasonably expect to be intruded on only by other occupants and not

by police).

230 E.g., Rawlings v. Kentucky, 448 U.S. 98 (1980) (fearing imminent police

search, defendant deposited drugs in companion’s purse where they were discovered

in course of illegal search; defendant had no legitimate expectation of privacy in her

purse, so that his Fourth Amendment rights were not violated, although hers were).

to allege possession or ownership of seized goods to establish the

interest, if a justifiable expectation of privacy of the defendant was

not violated in the seizure. 228 Also, it is no longer sufficient that

one merely be lawfully on the premises in order to be able to object

to an illegal search; rather, one must show some legitimate interest

in the premises that the search invaded. 229 The same illegal search

might, therefore, invade the rights of one person and not of another. 230 Again, the effect of the application of the privacy rationale has been to narrow considerably the number of people who can

complain of an unconstitutional search.