FOURTH AMENDMENT

SEARCH AND SEIZURE

CONTENTS

Page

Search and Seizure .................................................................................................................... 1377

History and Scope of the Amendment .............................................................................. 1377

History .......................................................................................................................... 1377

Scope of the Amendment ............................................................................................ 1378

The Interest Protected ................................................................................................ 1383

Arrests and Other Detentions .................................................................................... 1389

Searches and Inspections in Noncriminal Cases ...................................................... 1393

Searches and Seizures Pursuant to Warrant ................................................................... 1399

Issuance by Neutral Magistrate ................................................................................ 1399

Probable Cause ............................................................................................................ 1400

Particularity ................................................................................................................. 1404

First Amendment Bearing on Probable Cause and Particularity ........................... 1405

Property Subject to Seizure ........................................................................................ 1407

Execution of Warrants ................................................................................................ 1410

Valid Searches and Seizures Without Warrants .............................................................. 1414

Detention Short of Arrest: Stop and Frisk ............................................................... 1414

Search Incident to Arrest ........................................................................................... 1421

Vehicular Searches ...................................................................................................... 1427

Vessel Searches ............................................................................................................ 1432

Consent Searches ........................................................................................................ 1433

Border Searches ........................................................................................................... 1435

“Open Fields” ............................................................................................................... 1436

“Plain View” ................................................................................................................. 1437

Public Schools .............................................................................................................. 1438

Government Workplace ............................................................................................... 1440

Prisons and Regulation of Probation and Parole ..................................................... 1440

Drug Testing ................................................................................................................ 1442

Electronic Surveillance and the Fourth Amendment ...................................................... 1446

The Olmstead Case ..................................................................................................... 1446

Federal Communications Act ..................................................................................... 1446

Nontelephonic Electronic Surveillance ...................................................................... 1447

The Berger and Katz Cases ....................................................................................... 1448

Warrantless “National Security” Electronic Surveillance ........................................ 1451

Enforcing the Fourth Amendment: The Exclusionary Rule ........................................... 1453

Alternatives to the Exclusionary Rule ...................................................................... 1453

Development of the Exclusionary Rule ..................................................................... 1455

The Foundations of the Exclusionary Rule ............................................................... 1458

Narrowing Application of the Exclusionary Rule ..................................................... 1461

Operation of the Rule: Standing ................................................................................ 1469

1375

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 use of the “writs of

assistance.” But though 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 Saman’s

Case demonstrated in 1603.2 A civil case of execution of process,

Saman’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 connected with John Wilkes’ po1 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 Repts. 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).

1377
lemical 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, the

court said, 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. Once issued, the writs 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 used, 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 that

became the Fourth Amendment underwent some modest changes

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

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

(K.B. 1765).

5 95 Eng. 817, 818.

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

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

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

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

Writs of Assistance as a Cause of the American Revolution, in THE ERA OF THE AMERICAN REVOLUTION: STUDIES INSCRIBED TO EVARTS BOUTELL GREENE 40 (R. Morris, ed., 1939).

1378 AMENDMENT 4—SEARCHES AND SEIZURE
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 that need not comply with the second clause.11

This issue has divided the Court for some time, has seen several

reversals of precedents, and is important for the resolution of many

8 1 ANNALS OF CONGRESS 434–35 (June 8, 1789).

9 The word “secured” was changed to “secure” and the phrase “against unreasonable searches and seizures” was reinstated. Id. at 754 (August 17, 1789).

10 Id. It has been theorized that the author of the defeated revision, who was

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

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

HISTORY AND DEVELOPMENT OF THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION

101–03 (1937).

11 The amendment was originally in one clause as quoted above; it was the insertion of the defeated amendment to the language which changed the text into two

clauses and arguably had the effect of extending the protection against unreasonable searches and seizures beyond the requirements imposed on the issuance of warrants. It is also possible to read the two clauses together to mean that some seizures even under warrants would be unreasonable, and this reading has indeed been

effectuated in certain cases, although for independent reasons. Boyd v. United States,

116 U.S. 616 (1886); Gouled v. United States, 255 U.S. 298 (1921), overruled by Warden v. Hayden, 387 U.S. 294 (1967); but see id. at 303 (reserving the question whether

“there are items of evidential value whose very nature precludes them from being

the object of a reasonable search and seizure.”)

AMENDMENT 4—SEARCHES AND SEIZURE 1379
cases. It is a dispute that has run most consistently throughout the

cases involving the scope of the right to search incident to arrest.12

Although 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 fourroom 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 be closely

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).

15 Trupiano v. United States, 334 U.S. 699, 705 (1948). See also McDonald v.

United States, 335 U.S. 451 (1948).

16 United States v. Rabinowitz, 339 U.S. 56, 66 (1950).

17 Chimel v. California, 395 U.S. 752, 761 (1969).

18 Terry v. Ohio, 392 U.S. 1, 20 (1968). In United States v. United States District Court, 407 U.S. 297, 321 (1972), Justice Powell explained that the “very heart”

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

seizure should represent both the efforts of the officer to gather evidence of wrongful acts and the judgment of the magistrate that the collected evidence is sufficient

1380 AMENDMENT 4—SEARCHES AND SEIZURE
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 variableexpectation-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-with-narrow-exceptions” standard norto 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 a telephone booth, a magistrate’s antecedent

judgment was 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).

20 See, e.g., Almighty-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. Barrow’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 (1979) (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 of vehicle incident to arrest); United States v.

Ross, 456 U.S. 798 (1982) (automobile search at scene); Brigham City, Utah v. Stuart, 547 U.S. 398 (2006) (warrantless entry into a home when police have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury); Michigan v. Fisher, 558 U.S. ___, No. 09–91

(2009) (applying Brigham City). On the other hand, the warrant-based standard did

preclude a number of warrantless searches. E.g., Almighty-Sanchez v. United States,

413 U.S. 266 (1973) (warrantless stop and search of auto by roving patrol near border); Marshall v. Barrow’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”); Arizona v. Gant, 556 U.S. ___, No. 07–

542 (2009) (search of vehicle incident to arrest where arrestee had no access to vehicle).

AMENDMENT 4—SEARCHES AND SEIZURE 1381
mally prevails over a “reasonableness” approach.23 Exceptions to the

warrant requirement have 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 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.26 In another case, the

Court 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.27 The

Court has also held that an exigent circumstances exception ap23 Of the Justices on the Court in 1992, only Justice Stevens frequently sided

with the warrants-with-narrow-exceptions approach. See, e.g., Illinois v. Rodriguez,

497 U.S. 177, 189 (Justice Stevens joining Justice Marshall’s dissent); New Jersey

v. T.L.O., 469 U.S. 325, 370 (1985) (Justice Stevens dissenting); California v. Acevedo,

500 U.S. 565, 585 (1991) (Justice Stevens dissenting).

24 See various headings infra under the general heading “Valid Searches and

Seizures Without Warrants.”

25 New York v. Burger, 482 U.S. 691 (1987).

26 Maryland v. Buie, 494 U.S. 325 (1990).

27 Illinois v. Rodriguez, 497 U.S. 177 (1990); see also Missouri v. McNeely, 569

U.S. ___, No. 11–1425, slip op. (2013) (rejecting a per se exception for obtaining warrants in DWI cases and requiring that exigent circumstances be evaluated under a

“totality of the circumstances” test).

1382 AMENDMENT 4—SEARCHES AND SEIZURE
plied even where the exigency arose as a result of police conduct,

so long as the police conduct was “reasonable” in that it neither

threatened to nor violated the Fourth Amendment.28

Another matter of scope that the Court has addressed is the

category of persons protected by the Fourth Amendment; i.e., 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.” 29 The Fourth Amendment therefore does not apply to the search and seizure by 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 apply 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.30 Whether there was a search

and seizure within the meaning of the Amendment, and 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. In Entick v. Carrington,

31 Lord Camden wrote: “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

28 Kentucky v. King, 563 U.S. ___, No. 09–1272, slip op. (2011) (police justified

in entering apartment after smelling burning marijuana in a hallway, knocking on

apartment door, and hearing noises consistent with evidence being destroyed).

29 United States v. Vertigo-Urquidez, 494 U.S. 259, 265 (1990).

30 See, e.g., California v. Hodari D., 499 U.S. 621, 626 (1991) (because there was

no “seizure” of the defendant as he fled from police before being tackled, the drugs

that he abandoned in flight could not be excluded as the fruits of an unreasonable

seizure).

31 19 Howell’s State Trials 1029, 1035, 95 Eng. Reg. 807, 817–18 (1765).

AMENDMENT 4—SEARCHES AND SEIZURE 1383
easy acceptance in the Supreme Court 32 and that acceptance controlled the decision in numerous cases.33 For example, in Olmstead

v. United States,

34 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 Fourth Amendment

restrictions.35

The Court later rejected this approach. “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.” 36 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.37

The new test, propounded in Katz v. United States, is whether

there is an expectation of privacy upon which one may “justifiably”

rely.38 “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 ac32 Boyd v. United States, 116 U.S. 616, 627 (1886); Adams v. New York, 192 U.S.

585, 598 (1904).

33 Thus, the rule that “mere evidence” could not be seized but rather only the

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

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

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

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

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

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

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

Chapman v. United States, 365 U.S. 610 (1961); Stoner v. California, 376 U.S. 483

(1964); Frazier v. Culp, 394 U.S. 731, 740 (1969).

34 277 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).

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

a party wall until it hit a heating duct).

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

37 Katz v. United States, 389 U.S. 347, 353 (1967) (warrantless use of listening

and recording device placed on outside of phone booth violates Fourth Amendment).

See also Kyllo v. United States, 533 U.S. 27, 32–33 (2001) (holding presumptively

unreasonable the warrantless use of a thermal imaging device to detect activity within

a home by measuring heat outside the home, and noting that a contrary holding

would permit developments in police technology “to erode the privacy guaranteed by

the Fourth Amendment”.

38 389 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.

1384 AMENDMENT 4—SEARCHES AND SEIZURE
cessible to the public, may be constitutionally protected.” 39 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.” 40

Katz’s focus on privacy was revitalized in Kyllo v. United States,

41

in which the Court invalidated the warrantless use of a thermal

imaging device directed at a private home from a public street. The

rule devised by the Court to limit police use of new technology that

can “shrink the realm of guaranteed privacy” is that “obtaining by

sense-enhancing technology any information regarding the interior

of the home that could not otherwise have been obtained without

physical ‘intrusion into a constitutionally protected area’ . . . constitutes a search—at least where (as here) the technology in question

is not in general public use.” 42 Relying on Katz, the Court rejected

as “mechanical” the Government’s attempted distinction between offthe-wall and through-the-wall surveillance. Permitting all off-thewall observations, the Court observed, “would leave the homeowner at the mercy of advancing technology—including technology

that could discern all human activity in the home.”

Although the sanctity of the home has been strongly reaffirmed, protection of privacy in other contexts becomes more problematic. A two-part test that Justice Harlan suggested in Katz often provides the starting point for analysis.43 The first element, the

39 389 U.S. at 351–52.

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

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

guest in home has a reasonable expectation of privacy). But cf. Minnesota v. Carter,

525 U.S. 83 (1998) (a person present in someone else’s apartment for only a few

hours for the purpose of bagging cocaine for later sale has no legitimate expectation

of privacy); Cf. Rakas v. Illinois, 439 U.S. 128 (1978) (auto passengers demonstrated

no legitimate expectation of privacy in glove compartment or under seat of auto).

Property rights are still protected by the Amendment, however. A “seizure” of property can occur when there is some meaningful interference with an individual’s possessory interests in that property, and regardless of whether there is any interference with the individual’s privacy interest. Soldal v. Cook County, 506 U.S. 56 (1992)

(a seizure occurred when sheriff’s deputies assisted in the disconnection and removal of a mobile home in the course of an eviction from a mobile home park). The

reasonableness of a seizure, however, is an additional issue that may still hinge on

privacy interests. United States v. Jacobsen, 466 U.S. 109, 120–21 (1984) (DEA agents

reasonably seized package for examination after private mail carrier had opened the

damaged package for inspection, discovered presence of contraband, and informed

agents).

41 533 U.S. 27 (2001).

42 533 U.S. at 34.

43 Justice Harlan’s opinion has been much relied upon. See, 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

AMENDMENT 4—SEARCHES AND SEIZURE 1385
“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.” 44 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.” 45

Thus, protection of the home is at the apex of Fourth Amendment coverage because of the right associated with ownership to

exclude others; 46 but ownership of other things, i.e., automobiles,

does not carry a similar high degree of protection.47 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.48 Some expectations, the Court has held, are simply not among

those that society is prepared to accept.49 In the context of norms

for the use of rapidly evolving communications devices, the Court

was reluctant to consider “the whole concept of privacy expectations” at all, preferring other decisional grounds: “The judiciary risks

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

529 U.S. 334, 338 (2000).

44 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”).

45 Rakas v. Illinois, 439 U.S. 128, 144 n.12 (1978).

46 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); Kyllo v. United States,

533 U.S. 27, 31 (2001).

47 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).

48 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.

49 E.g., United States v. Miller, 425 U.S. 435 (1976) (bank records); Smith v.

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

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

(shipping container opened and inspected by customs agents and resealed and delivered to the addressee); California v. Greenwood, 486 U.S. 35 (1988) (garbage in sealed

plastic bags left at curb for collection).

1386 AMENDMENT 4—SEARCHES AND SEIZURE
error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become

clear.” 50

What seems to have emerged is a balancing standard that 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.” Whereas Justice Harlan saw a greater need to restrain

police officers through the warrant requirement as the intrusions

on individual privacy grow more extensive,51 the Court’s solicitude

for law enforcement objectives frequently tilts the balance in the

other direction.

Application of this balancing test, because of the Court’s weighing of law enforcement investigative needs,52 and its subjective evaluation of privacy needs, has led to the creation of a two-tier or slidingtier scale of privacy interests. The privacy test was originally designed

to permit a determination that an interest protected by the Fourth

Amendment had been invaded.53 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.” 54 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; 55 if the individual has a

lesser expectation of privacy, then the invasion may be justified, absent a warrant, by the reasonableness of the intrusion.56 Exceptions to the warrant requirement are no longer evaluated solely by

50 City of Ontario v. Quon, 560 U.S. ___, No. 08–1332, slip op. at 10 (2010) The

Court cautioned that “[a] broad holding concerning employees’ privacy expectations

vis-a-vis employer-provided technological equipment might have implications for future cases that cannot be predicted.” Id. at 11–12.

51 United States v. White, 401 U.S. 745, 786–87 (1971) (Justice Harlan dissenting).

52 E.g., Robbins v. California, 453 U.S. 420, 429, 433–34 (1981) (Justice Powell

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

n.21 (1982).

53 Katz v. United States, 389 U.S. 347, 351–52 (1967).

54 Terry v. Ohio, 392 U.S. 1, 19 (1968).

55 The prime example is the home, so that for entries either to search or to arrest, “the Fourth Amendment has drawn a firm line at the entrance to the house.

Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” Payton v. New York, 445 U.S. 573, 590 (1980); Steagald v. United

States, 451 U.S. 204, 212 (1981); Kirk v. Louisiana, 536 U.S. 635 (2002) (per curiam).

See also Mincey v. Arizona, 437 U.S. 385 (1978). Privacy in the home is not limited

to intimate matters. “In the home all details are intimate details, because the entire area is held safe from prying government eyes.” Kyllo v. United States, 533 U.S.

27, 37 (2001).

56 One has a diminished expectation of privacy in automobiles. Arkansas v. Sanders, 442 U.S. 753, 761 (1979) (collecting cases); United States v. Ross, 456 U.S. 798,

AMENDMENT 4—SEARCHES AND SEIZURE 1387
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.57 The result has been a considerable expansion, beyond what existed prior to Katz, of the power of police

and other authorities to conduct searches.

In United States v. Jones,

58 the Court seemed to revitalize the

significance of governmental trespass in determining whether a Fourth

Amendment search has occurred. In Jones, the Court considered

whether the attachment of a Global-Positioning-System (GPS) device to a car used by a suspected narcotics dealer and the monitoring of such device for twenty-eight days, constituted a search. Although the Court ruled unanimously that this month-long monitoring

violated Jones’s rights, it splintered on the reasoning. A majority of

the Court relied on the theory of common law trespass to find that

the attachment of the device to the car represented a physical intrusion into Jones’s constitutionally protected “effect” or private property.59 While this holding obviated the need to assess the month804–09 (1982). A person’s expectation of privacy in personal luggage and other closed

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

433 U.S. 1, 13 (1977); Arkansas v. Sanders, 442 U.S. 753 (1979), although, if the

luggage or container is found in an automobile as to which there exists probable

cause to search, the legitimate expectancy diminishes accordingly. United States v.

Ross, supra. There is also a diminished expectation of privacy in a mobile home parked

in a parking lot and licensed for vehicular travel. California v. Carney, 471 U.S. 386

(1985) (leaving open the question of whether the automobile exception also applies

to a “mobile” home being used as a residence and not adapted for immediate vehicular use).

57 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).

58 565 U.S. ___, No. 10–1259, slip op. (2012).

59 Id. at 3–7. The physical trespass analysis was reprised in subsequent opinions. In its 2013 decision in Florida v. Jardines, the Court assessed whether a law

enforcement officer had the legal authority to conduct a drug sniff with a trained

canine on the front porch of a suspect’s home. Reviewing the law of trespass, the

Court observed that visitors to a home, including the police, must have either explicit or implicit authority from the homeowner to enter upon and engage in various

activities in the curtilage (i.e., the area immediately surrounding the home). Finding that the use of the dog to find incriminating evidence exceeded “background social norms” of what a visitor is normally permitted to do on another’s property, the

Court held that the drug sniff constituted a search. 569 U.S. ___, No. 11–564, slip

op. at 5–8 (2013). Similarly, in its 2015 per curiam opinion in Grady v. North Carolina, the Court emphasized the “physical intru[sion]” on a person when it found that

attaching a device to a person’s body, without consent, for the purpose of tracking

the person’s movements, constitutes a search within the meaning of the Fourth Amendment. 575 U.S. ___, No. 14–593, slip op. at 4–5 (2015). Neither the majority in Jardines

1388 AMENDMENT 4—SEARCHES AND SEIZURE
long tracking under Katz’s reasonable expectation of privacy test,

five Justices, who concurred either with the majority opinion or concurred with the judgment, would have held that long-term GPS tracking can implicate an individual’s expectation of privacy.60 Some have

read these concurrences as partly premised on the idea that while

government access to a small data set—for example, one trip in a

vehicle—might not violate one’s expectation of privacy, aggregating

a month’s worth of personal data allows the government to create

a “mosaic” about an individual’s personal life that violates that individual’s reasonable expectation of privacy.61 As a consequence, these

concurring opinions could potentially have significant implications

for the scope of the Fourth Amendment in relation to current and

future technologies, such as cell phone tracking and wearable technologies that do not require a physical trespass to monitor a person’s activities and that can aggregate a wealth of personal data

about users.62

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 63 and is now established law.64 At common law, warrantnor the Court in Grady addressed whether the challenged conduct violates a reasonable expectation of privacy under Katz v. United States. Grady, slip op. at 5; Jardines,

slip op. at 8–10.

60 Jones, slip op. at 14 (Alito, J., concurring in the judgment, joined by Ginsburg,

Breyer, Kagan, JJ.) (concluding that respondent’s reasonable expectations of privacy

were violated by the long-term monitoring of the movements of the respondent’s vehicle); id. at 3 (Sotomayor, J., concurring) (disagreeing with Justice Alito’s “approach” to the specific case but agreeing “longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.”).

61 See, e.g., United States v. Graham, 846 F.Supp. 2d 384, 394 (D. Md. 2012)

(“It appears as though a five-Justice majority is willing to accept the principle that

government surveillance over time can implicate an individual’s reasonable expectation of privacy.”), aff’d, ___ F.3d ___, No. 12–4659, slip op. at 31 (4th Cir. 2015); In

re Application for Telephone Information Needed for a Criminal Investigation, 119

F. Supp. 3d. 1011, 1021–22 (N.D. Cal. 2015) (discussing the import of the two concurring opinions from Jones); United States v. Brooks, 911 F. Supp. 2d 836, 842 (D.

Ariz. 2012) (noting that “[w]hile it does appear that in some future case, a five justice ‘majority’ is willing to accept the principle that Government surveillance can

implicate an individual’s reasonable expectation of privacy over time, Jones does not

dictate the result of the case at hand . . . ”); but see United States v. Graham, ___

F.3d ___, No. 12–4659, 2016 WL 3068018, at *10 (4th Cir. May 31, 2016) (arguing

that Justice Alito’s Jones concurrence should be read more narrowly so as to not

implicate government access to information collected by third-party actors, no matter the quantity of information collected); In re Application of FBI, No. BR 14–01,

2014 WL 5463097, at *10 (FISA Ct. Mar. 20, 2014) (“While the concurring opinions

in Jones may signal that some or even most of the Justices are ready to revisit certain settled Fourth Amendment principles, the decision in Jones itself breaks no new

ground . . .”).

62 See generally Orin S. Kerr, The Mosaic Theory of the Fourth Amendment, 111

MICH. L. REV. 311 (2012).

63 Ex parte Burford, 7 U.S. (3 Cr.) 448 (1806).

AMENDMENT 4—SEARCHES AND SEIZURE 1389
less arrests of persons who had committed a breach of the peace or

a felony were permitted,65 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.66 However, in order to effectuate an arrest in the

home, absent consent or exigent circumstances, police officers must

have a warrant.67

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 are not required.68 Some objective justification must be

shown to validate all seizures of the person,69 including seizures

64 Giordenello v. United States, 357 U.S. 480, 485–86 (1958); United States v.

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

(1980); Steagald v. United States, 451 U.S. 204, 211–13 (1981).

65 1 J. STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND 193 (1883). At common

law warrantless arrest was also permissible for some misdemeanors not involving a

breach of the peace. See the lengthy historical treatment in Atwater v. City of Lago

Vista, 532 U.S. 318, 326–45 (2001).

66 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). A “prompt” hearing now means a

hearing that is administratively convenient. See County of Riverside v. McLaughlin,

500 U.S. 44, 56 (1991) (authorizing “as a general matter” detention for up to 48

hours without a probable-cause hearing, after which time the burden shifts to the

government to demonstrate extraordinary circumstances justifying further detention).

67 Payton v. New York, 445 U.S. 573 (1980) (voiding state law authorizing police

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

States, 451 U.S. 204 (1981) (officers with arrest warrant for A entered B’s home without search warrant and discovered incriminating evidence; violated Fourth Amendment in absence of warrant to search the home); Hayes v. Florida, 470 U.S. 811

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

68 United States v. Mendenhall, 446 U.S. 544, 554 (1980) (“a person has been

‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that

he was not free to leave”). See also Reid v. Georgia, 448 U.S. 438 (1980); United

States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975); Terry v. Ohio, 392 U.S. 1, 16–19

(1968); Kaupp v. Texas, 538 U.S. 626 (2003). 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); Scott v. Harris, 550 U.S. 372 (2007) (police officer’s ramming fleeing motorist’s car from behind in attempt to stop him); Plumhoff

v. Rickard, 572 U.S. ___, No. 12–1117, slip op. (2014) (police use of 15 gunshots to

end a police chase).

69 The justification must be made to a neutral magistrate, not to the arrestee.

There is no constitutional requirement that an officer inform an arrestee of the rea1390 AMENDMENT 4—SEARCHES AND SEIZURE
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.70

The Fourth Amendment does not require an officer to consider

whether to issue a citation rather than arresting (and placing in

custody) a person who has committed a minor offense—even a minor traffic offense. In Atwater v. City of Lago Vista,

71 the Court, even

while acknowledging that the case before it involved “gratuitous humiliations imposed by a police officer who was (at best) exercising

extremely poor judgment,” refused to require that “case-by-case determinations of government need” to place traffic offenders in custody be subjected to a reasonableness inquiry, “lest every discretionary judgment in the field be converted into an occasion for

constitutional review.” 72 Citing some state statutes that limit warrantless arrests for minor offenses, the Court contended that the

matter is better left to statutory rule than to application of broad

constitutional principle.73 Thus, Atwater and County of Riverside v.

McLaughlin 74 together mean that—as far as the Constitution is concerned—police officers have almost unbridled discretion to decide

whether to issue a summons for a minor traffic offense or whether

instead to place the offending motorist in jail, where she may be

kept for up to 48 hours with little recourse. Even when an arrest

son for his arrest. Devenpeck v. Alford, 543 U.S. 146, 155 (2004) (the offense for

which there is probable cause to arrest need not be closely related to the offense

stated by the officer at the time of arrest).

70 Delaware v. Prouse, 440 U.S. 648, 650 (1979) (“unreasonable seizure . . . to

stop an automobile . . . for the purpose of checking the driving license of the operator and the registration of the car, where there is neither probable cause to believe

nor reasonable suspicion” that a law was violated); Brown v. Texas, 443 U.S. 47, 51

(1979) (detaining a person for the purpose of requiring him to identify himself constitutes a seizure requiring a “reasonable, articulable suspicion that a crime had

just been, was being, or was about to be committed”); Reid v. Georgia, 448 U.S. 438,

441 (1980) (requesting ticket stubs and identification from persons disembarking from

plane not reasonable where stated justifications would apply to “a very large category of innocent travelers,” e.g., travelers arrived from “a principal place of origin

of cocaine”); Michigan v. Summers, 452 U.S. 692, 705 (1981) (“it is constitutionally

reasonable to require that [a] citizen . . . remain while officers of the law execute a

valid warrant to search his home”); Illinois v. McArthur, 531 U.S. 326 (2001) (approving “securing” of premises, preventing homeowner from reentering, while a search

warrant is obtained); Los Angeles County v. Rettele, 550 U.S. 609 (2007) (where deputies executing a search warrant did not know that the house being searched had

recently been sold, it was reasonable to hold new homeowners, who had been sleeping in the nude, at gunpoint for one to two minutes without allowing them to dress

or cover themselves, even though the deputies knew that the homeowners were of a

different race from the suspects named in the warrant).

71 532 U.S. 318 (2001).

72 532 U.S. at 346–47.

73 532 U.S. at 352.

74 500 U.S. 44 (1991).

AMENDMENT 4—SEARCHES AND SEIZURE 1391
for a minor offense is prohibited by state law, the arrest will not

violate the Fourth Amendment if it was based on probable cause.75

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.76 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.77 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.78 Similarly, fingerprints and other physical evidence obtained as a result of an unlawful arrest must be suppressed.79

75 Virginia v. Moore, 128 S. Ct. 1598 (2008). See also Heien v. North Carolina,

574 U.S. ___, No. 13–604, slip op. at 5 (2014) (holding that a mistake of law can

give rise to the reasonable suspicion necessary to uphold the seizure of a vehicle).

The law enforcement officer in Heien had stopped the vehicle because it had only

one working brake light, which the officer understood to be a violation of the North

Carolina vehicle code. Id. at 2. However, a North Carolina court subsequently held,

in a case of first impression, that the vehicle code only requires one working brake

light. Id. at 3. In holding that reasonable suspicion can rest on a mistaken understanding of a legal prohibition, a majority of the Supreme Court noted prior cases

finding that mistakes of fact do not preclude reasonable suspicion and concluded

that “reasonable men make mistakes of law, too.” Id. at 5–6 (citing Illinois v. Rodriguez, 497 U.S. 177, 183–86 (1990), and Hill v. California, 401 U.S. 797, 802–05 (1971),

as cases involving mistakes of fact).

76 Ker v. Illinois, 119 U.S. 436, 440 (1886); see also Albrecht v. United States,

273 U.S. 1 (1927); Frisbie v. Collins, 342 U.S. 519 (1952).

77 Wong Sun v. United States, 371 U.S. 471 (1963). Such evidence is the “fruit

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

evidence derived from the original illegality. Previously, if confessions were voluntary for purposes of the self-incrimination clause, they were admissible notwithstanding any prior official illegality. Colombe v. Connecticut, 367 U.S. 568 (1961).

78 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); Kaupp v.

Texas, 538 U.S. 626 (2003). 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.

79 Davis v. Mississippi, 394 U.S. 721 (1969); Taylor v. Alabama, 457 U.S. 687

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

1392 AMENDMENT 4—SEARCHES AND SEIZURE
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,80 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.81 But, in 1967, the

Court in two cases held that administrative inspections to detect

building code violations must be undertaken pursuant to warrant

if the occupant objects.82 “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.” 83 Certain administrative inspections used 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.84

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

85

in which the Court held to violate the Fourth Amendment a provision of the Occupational Safety and Health Act that authorized federal inspectors to search the work area of any employment facility

covered by the Act for safety hazards and violations of regulations,

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.

80 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).

81 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).

82 Camara v. Municipal Court, 387 U.S. 523 (1967) (home); See v. City of Seattle, 387 U.S. 541 (1967) (commercial warehouse).

83 Camara v. Municipal Court, 387 U.S. 523, 530 (1967).

84 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, although the statute was

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

dealers had no reasonable expectation of privacy, because the law provides for regular inspections. Further, warrantless inspections were needed for effective enforcement of the statute.

85 436 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.

AMENDMENT 4—SEARCHES AND SEIZURE 1393
without a warrant or other legal process. The liquor 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, 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.86

In Donovan v. Dewey,

87 however, the Court seemingly limited

Barlow’s reach and articulated a new standard that appeared to permit extensive governmental inspection of commercial property without a warrant. 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 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 prop86 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. 436

U.S. 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 Justices

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).

87 452 U.S. 594 (1981).

1394 AMENDMENT 4—SEARCHES AND SEIZURE
erty 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.” 88

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’s 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.89 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.90

Dewey was applied in New York v. Burger 91 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 were

designed as an expedient means of enforcing the penal laws, and

instead saw narrower, valid regulatory purposes to be served, such

as 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 admin88 Donovan v. Dewey, 452 U.S. 594, 598–99 (1981).

89 452 U.S. 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.

90 Donovan v. Dewey, 452 U.S. 594, 606 (1981). Duration of regulation will now

be a factor in assessing the legitimate expectation of privacy of a business. Id. 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).

91 482 U.S. 691 (1987).

AMENDMENT 4—SEARCHES AND SEIZURE 1395
istrative 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.92

Most recently, however, in City of Los Angeles v. Patel, the Court

declined to extend the “more relaxed standard” applicable to searches

of closely regulated businesses to hotels when invalidating a Los

Angeles ordinance that gave police the ability to inspect hotel registration records without advance notice and carried a six-month

term of imprisonment and a $1,000 fine for hotel operators who failed

to make such records available.93 The Patel Court, characterizing

inspections pursuant to this ordinance as “administrative searches,” 94

held “that a hotel owner must be afforded an opportunity to have a

neutral decision maker review an officer’s demand to search the registry before he or she faces penalties for failing to comply” for such

a search to be permissible under the Fourth Amendment.95 In so

doing, the Court expressly declined to treat the hotel industry as a

“closely regulated” industry subject to the more relaxed standard

applied in Dewey and Burger on the grounds that doing so would

“permit what has always been a narrow exception to swallow the

rule.” 96 The Court emphasized that, over the prior 45 years, it had

recognized only four industries as having “such a history of government oversight that no reasonable expectation of privacy . . . could

exist for a proprietor over the stock of such an enterprise.” 97 These

four industries involve liquor sales, firearms dealing, mining, and

running an automobile junkyard, and the Court distinguished hotel operations from these industries, in part, because “nothing inherent in the operation of hotels poses a clear and significant risk

92 482 U.S. at 712 (emphasis in original).

93 576 U.S. ___, No. 13–1175, slip op. at 14 (2014). Patel involved a facial, rather

than an as-applied, challenge to the Los Angeles ordinance. The Court clarified that

facial challenges under the Fourth Amendment are “not categorically barred or especially disfavored.” Id. at 4. Some had apparently taken the Court’s earlier statement in Sibron v. New York, 392 U.S. 40 (1968), that “[t]he constitutional validity of

a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case,” id. at 59, to foreclose

facial Fourth Amendment challenges. Patel, slip op. at 5. However, the Patel Court

construed Sibron’s language to mean only that “claims for facial relief under the

Fourth Amendment are unlikely to succeed when there is substantial ambiguity as

to what conduct a statute authorizes.” Id.

94 Patel, slip op. at 10.

95 Id. at 11. The Court further noted that actual pre-compliance review need

only occur in those “rare instances” where a hotel owner objects to turning over the

registry, and that the Court has never “attempted to prescribe” the exact form of

such review. Id. at 10–11.

96 Id. at 14.

97 Id. (quoting Barlow’s, 436 U.S. at 313).

1396 AMENDMENT 4—SEARCHES AND SEIZURE
to the public welfare.” 98 However, the Court also suggested that,

even if hotels were to be seen as pervasively regulated, the Los Angeles ordinance would still be deemed unreasonable because (1) there

was no substantial government interest informing the regulatory

scheme; (2) warrantless inspections were not necessary to further

the government’s purpose; and (3) the inspection program did not

provide, in terms of the certainty and regularity of its application,

a constitutionally adequate substitute for a warrant.99

In other contexts, not directly concerned with whether an industry is comprehensively regulated, the Court has also elaborated the

constitutional requirements affecting administrative inspections and

searches. In Michigan v. Tyler,

100 for example, 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; fire

fighters 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.101

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.102 In another unusual case,

the Court held that a sheriff’s assistance to a trailer park owner in

98 Id. The majority further stated that the existence of regulations requiring hotels to maintain licenses, collect taxes, and take other actions did not establish a

“comprehensive scheme of regulation” distinguishing hotels from other industries.

Id. at 15. It also opined that the historical practice of treating hotels as public accommodations does not necessarily mean that hotels are to be treated as comprehensively regulated for purposes of warrantless searches. Id. at 14–15.

99 Id. at 16. Specifically, the Court noted that the government’s alleged interest

in ensuring that hotel operators not falsify their records, as they could if given an

opportunity for pre-compliance review, applied to every recordkeeping requirement.

Id. The Court similarly noted that there were other ways to further the city’s interest in warrantless inspections (e.g., ex parte warrants) and that the ordinance failed

to sufficiently constrain a police officer’s discretion as to which hotels to search and

under what circumstances. Id.

100 436 U.S. 499 (1978).

101 The Court also held that, after the fire was extinguished, if fire investigators were unable to proceed at the moment, because of dark, steam, and smoke, it

was proper for them to leave and return at daylight without any necessity of complying with its mandate for administrative or criminal warrants. 436 U.S. 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.).

102 Wyman v. James, 400 U.S. 309 (1971). It is not clear what rationale the majority used. It appears to have proceeded on the assumption that a “home visit” was

AMENDMENT 4—SEARCHES AND SEIZURE 1397
disconnecting and removing a mobile home constituted a “seizure”

of the home.103

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.” 104 In one of these 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.105

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.106 On the other hand, in South Danot 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.

103 Soldal v. Cook County, 506 U.S. 56, 61 (1992) (home “was not only seized, it

literally was carried away, giving new meaning to the term ‘mobile home’ ”).

104 City of Ontario v. Quon, 560 U.S. ___, No. 08–1332, slip op. (2010) (reasonableness test for obtaining and reviewing transcripts of on-duty text messages of

police officer using government-issued equipment); Griffin v. Wisconsin, 483 U.S. 868,

873 (1987) (administrative needs of probation system justify warrantless searches of

probationers’ homes on less than probable cause); Hudson v. Palmer, 468 U.S. 517,

526 (1984) (no Fourth Amendment protection from search of prison cell); New Jersey v. T.L.O., 469 U.S. 325 (1985) (simple reasonableness standard governs searches

of students’ persons and effects by public school authorities); O’Connor v. Ortega,

480 U.S. 709 (1987) (reasonableness test for work-related searches of employees’ offices by government employer); Skinner v. Railway Labor Executives’ Ass’n, 489 U.S.

602 (1989) (neither probable cause nor individualized suspicion is necessary for mandatory drug testing of railway employees involved in accidents or safety violations).

All of these cases are discussed infra under the general heading “Valid Searches

and Seizures Without Warrants.”

105 Skinner, 489 U.S. at 627.

106 Delaware v. Prouse, 440 U.S. 648 (1979). Standards applied in this case had

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

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

U.S. 891 (1975); United States v. Martinez-Fuerte, 428 U.S. 543 (1976).

1398 AMENDMENT 4—SEARCHES AND SEIZURE
kota v. Opperman,

107 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 searched,

and the evidence to be sought.108 Although 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.109

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.” 110 “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 evi107 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.

108 Although the exceptions may be different for 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).

109 Most 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).

110 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 (1979).

AMENDMENT 4—SEARCHES AND SEIZURE 1399
dence 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.” 111 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.” 112

The first test cannot be met when the issuing party is himself engaged in law enforcement activities,113 but the Court has not required that an issuing party have that independence of tenure and

guarantee of salary that characterizes federal judges.114 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.115

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

111 Johnson v. United States, 333 U.S. 10, 13–14 (1948).

112 Shadwick v. City of Tampa, 407 U.S. 345, 354 (1972).

113 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 warrant); Lo-Ji Sales v. New York, 442 U.S. 319 (1979) (justice of the peace issued openended search warrant for obscene materials, accompanied police during its execution, and made probable cause determinations at the scene as to particular items).

114 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.

115 407 U.S. 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 is

not sufficiently detached).

1400 AMENDMENT 4—SEARCHES AND SEIZURE
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.” 116 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.” 117 Warrants are favored in the law and their use will

not be thwarted by a hypertechnical reading of the supporting affidavit and supporting testimony.118 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.” 119 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.120

Much litigation has concerned the sufficiency of the complaint

to establish probable cause. Mere conclusory assertions are not

enough.121 In United States v. Ventresca,

122 however, an affidavit by

a law enforcement officer asserting his belief that an illegal distill116 Dumbra 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 that 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). An

“anticipatory” warrant does not violate the Fourth Amendment as long as there is

probable cause to believe that the condition precedent to execution of the search

warrant will occur and that, once it has occurred, “there is a fair probability that

contraband or evidence of a crime will be found in a specified place.” United States

v. Grubbs, 547 U.S. 90, 95 (2006), quoting Illinois v. Gates, 462 U.S. 213, 238 (1983).

“An anticipatory warrant is ‘a warrant based upon an affidavit showing probable

cause that at some future time (but not presently) certain evidence of a crime will

be located at a specified place.’ ” 547 U.S. at 94.

117 Brinegar v. United States, 338 U.S. 160, 175 (1949).

118 United States v. Ventresca, 380 U.S. 102, 108–09 (1965).

119 Jones v. United States, 362 U.S. 257, 270–71 (1960). Similarly, the preference for proceeding by warrant leads to a stricter rule for appellate review of trial

court decisions on warrantless stops and searches than is employed to review probable cause to issue a warrant. Ornelas v. United States, 517 U.S. 690 (1996) (determinations of reasonable suspicion to stop and probable cause to search without a

warrant should be subjected to de novo appellate review).

120 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).

121 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

AMENDMENT 4—SEARCHES AND SEIZURE 1401
ery 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.123

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 124 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 would be

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

fit 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,

125 apparently considered 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 126 held insufficient an affidavit that 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

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

States, 290 U.S. 41 (1933).

122 380 U.S. 102 (1965).

123 380 U.S. at 109.

124 358 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).

125 362 U.S. 257 (1960).

126 378 U.S. 108 (1964).

1402 AMENDMENT 4—SEARCHES AND SEIZURE
informant concluded that evidence was present or that crimes had

been committed—and, second, the affiant must present information

that would permit the magistrate to decide whether or not the informant was trustworthy. Then, in Spinelli v. United States,

127 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 128 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 recently

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.

129

The main defect of the two-part test, Justice Rehnquist concluded

127 393 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).

128 403 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).

129 462 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.

AMENDMENT 4—SEARCHES AND SEIZURE 1403
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.” 130 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.” 131

Particularity.—“The requirement that warrants shall particularly 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.” 132 This

requirement thus acts to limit the scope of the search, as the executing officers should be limited to looking in places where the described object could be expected to be found.133 The purpose of the

particularity requirement extends beyond prevention of general

searches; it also assures the person whose property is being searched

of the lawful authority of the executing officer and of the limits of

his power to search. It follows, therefore, that the warrant itself

must describe with particularity the items to be seized, or that such

itemization must appear in documents incorporated by reference in

130 462 U.S. at 213.

131 462 U.S. at 238. For an application of the Gates “totality of the circumstances” test to the warrantless search of a vehicle by a police officer, see, e.g. Florida

v. Harris, 568 U.S. ___, No. 11–817, slip op. (2013).

132 Marron 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).

133 In Terry v. Ohio, 392 U.S. 1, 17–19, (1968), the Court wrote: “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) (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).” 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 the 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.

1404 AMENDMENT 4—SEARCHES AND SEIZURE
the warrant and actually shown to the person whose property is to

be searched.134

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

books and other items that may be protected by the First Amendment, the Court has required government to observe more exacting

standards than in other cases.135 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,

136 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.” 137 A state procedure that 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

deficient.” 138

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 pre134 Groh v. Ramirez, 540 U.S. 551 (2004) (a search based on a warrant that did

not describe the items to be seized was “plainly invalid”; particularity contained in

supporting documents not cross-referenced by the warrant and not accompanying

the warrant is insufficient); United States v. Grubbs, 547 U.S. 90, 97, 99 (2006) (because the language of the Fourth Amendment “specifies only two matters that must

be ‘particularly describ[ed]’ in the warrant: ‘the place to be searched’ and ‘the persons or things to be seized[,]’ . . . the Fourth Amendment does not require that the

triggering condition for an anticipatory warrant be set forth in the warrant itself.”

135 Marcus v. Search Warrant, 367 U.S. 717, 730–31 (1961); Stanford v. Texas,

379 U.S. 476, 485 (1965). For First Amendment implications of seizures under the

Federal Racketeer Influenced and Corrupt Organizations Act (RICO), see First Amendment: Obscenity and Prior Restraint.

136 367 U.S. 717 (1961). See Kingsley Books v. Brown, 354 U.S. 436 (1957).

137 Marcus v. Search Warrant, 367 U.S. 717, 732 (1961).

138 A Quantity of Books v. Kansas, 378 U.S. 205, 210 (1964).

AMENDMENT 4—SEARCHES AND SEIZURE 1405
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.139 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.140

The seizure of a film without the authority of a constitutionally

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

by the officer himself.141 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.” 142 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.’ ” 143 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 . . . .’ ” 144

In Stanford v. Texas,

145 the Court voided a seizure of more than

2,000 books, pamphlets, and other documents pursuant to a warrant that merely authorized the seizure of books, pamphlets, and

other written instruments “concerning the Communist Party of Texas.”

139 Heller v. New York, 413 U.S. 483 (1973).

140 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.

141 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).

142 Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 637 (1968) (per curiam).

143 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)).

144 New York v. P.J. Video, Inc., 475 U.S. 868, 875 n.6 (1986).

145 379 U.S. 476 (1965).

1406 AMENDMENT 4—SEARCHES AND SEIZURE
“[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.” 146

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.147

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.148 But, in Gouled v.

United States,

149 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 papers of the defendant

that 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,” 150 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 apprehending and convicting criminals.” 151 More evaded than followed, the

146 379 U.S. at 485–86. See also Marcus v. Search Warrant, 367 U.S. 717, 723

(1961).

147 Zurcher 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. 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.

148 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.

149 255 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).

150 Gouled v. United States, 255 U.S. 298, 306 (1921).

151 Warden 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).

AMENDMENT 4—SEARCHES AND SEIZURE 1407
“mere evidence” rule was overturned in 1967.152 It is now settled

that such evidentiary items as fingerprints,153 blood,154 urine

samples,155 fingernail and skin scrapings,156 voice and handwriting

exemplars,157 conversations,158 and other demonstrative evidence may

be obtained through the warrant process or without a warrant where

“special needs” of government are shown.159

However, some medically assisted bodily intrusions have been

held impermissible, e.g., forcible administration of an emetic to induce vomiting,160 and surgery under general anesthetic to remove

a bullet lodged in a suspect’s chest.161 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.162

In Warden v. Hayden,

163 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

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

153 Davis v. Mississippi, 394 U.S. 721 (1969).

154 Schmerber 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).

155 Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989) (warrantless drug testing of railroad employee involved in accident).

156 Cupp v. Murphy, 412 U.S. 291 (1973) (sustaining warrantless taking of scrapings from defendant’s fingernails at the station house, on the basis that it was a

very limited intrusion and necessary to preserve evanescent evidence).

157 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, as no reasonable expectation of privacy exists with respect to those items).

158 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).

159 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).

160 Rochin v. California, 342 U.S. 165 (1952).

161 Winston v. Lee, 470 U.S. 753 (1985).

162 Winston 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 767.

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

163 387 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.

1408 AMENDMENT 4—SEARCHES AND SEIZURE
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,

164 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 that authorized court orders to require defendants to produce any document that might “tend to prove any allegation made by the United States.” 165 The entire Court agreed that

there was a self-incrimination problem, but Justice Bradley for a

majority of the Justices also used the Fourth Amendment.

Although the statute did not authorize a search but instead compelled the production of documents, the Justice concluded that the

law was well within the restrictions of the Search and Seizure

Clause.166 With this point established, the Justice relied on Lord

Camden’s opinion in Entick v. Carrington 167 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.” 168

Although it may be doubtful that the equation of search warrants with subpoenas and other compulsory process ever really

amounted to much of a limitation,169 the Court currently dispenses

with any theory of “convergence” of the two amendments.170 Thus,

in Andresen v. Maryland,

171 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

164 116 U.S. 616 (1886).

165 Act of June 22, 1874, § 5, 18 Stat. 187.

166 Boyd v. United States, 116 U.S. 616, 622 (1886).

167 Howell’s State Trials 1029, 95 Eng. Rep. 807 (1765).

168 Boyd v. United States, 116 U.S. 616, 630 (1886).

169 E.g., Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 209–09 (1946).

170 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.

171 427 U.S. 463 (1976).

AMENDMENT 4—SEARCHES AND SEIZURE 1409
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.172 As for

the Fourth Amendment, because 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.173 Acknowledging that “there are grave dangers inherent in executing a

warrant authorizing a search and seizure of a person’s papers,” the

Court observed that, although some “innocuous documents” would

have to be examined to ascertain which papers were to be seized,

authorities, just as with electronic “seizures” of telephone conversations, “must take care to assure that [searches] are conducted in a

manner that minimizes unwarranted intrusions upon privacy.” 174

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 exists. The question of the propriety of seizure of such papers continues

to be the subject of reservation in opinions,175 but it is far from clear

that the Court would accept any such exception should the issue

be presented.176

Execution of Warrants.—The Fourth Amendment’s “general

touchstone of reasonableness . . . governs the method of execution

of the warrant.” 177 Until recently, however, most such issues have

been dealt with by statute and rule.178 It was a rule at common

law 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,179 and until recently this has been a statutory

172 427 U.S. at 470–77.

173 427 U.S. at 478–84.

174 427 U.S. 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).

175 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).

176 See, Note, Formalism, Legal Realism, and Constitutionally Protected Privacy

Under the Fourth and Fifth Amendments, 90 HARV. L. REV. 945 (1977).

177 United States v. Ramirez, 523 U.S. 65, 71 (1998).

178 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.

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

416 U.S. 430 (1974). A separate statutory rule applies to narcotics cases. 21 U.S.C.

§ 879(a).

179 Semayne’s Case, 5 Coke’s Rep. 91a, 77 Eng. Rep. 194 (K.B. 1604).

1410 AMENDMENT 4—SEARCHES AND SEIZURE
requirement in the federal system 180 and generally in the states.

In Ker v. California,

181 the Court considered the rule of announcement as a constitutional requirement, although a majority there found

circumstances justifying entry without announcement.

In Wilson v. Arkansas,

182 the Court determined that the common law “knock and announce” rule is an element of the Fourth

Amendment reasonableness inquiry. The rule is merely a presumption, however, that yields under various circumstances, including

those posing a threat of physical violence to officers, those in which

a prisoner has escaped and taken refuge in his dwelling, and those

in which officers have reason to believe that destruction of evidence is likely. The test, articulated two years later in Richards v.

Wisconsin,

183 is whether police have “a reasonable suspicion that

knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit

the effective investigation of the crime.” In Richards, the Court held

that there is no blanket exception to the rule whenever officers are

executing a search warrant in a felony drug investigation; instead,

a case-by-case analysis is required to determine whether no-knock

entry is justified under the circumstances.184 Similarly, if officers

choose to knock and announce before searching for drugs, circumstances may justify forced entry if there is not a prompt response.185 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.186 A statute

regulating the expiration of a warrant and issuance of another “should

180 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).

181 374 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.

182 514 U.S. 927 (1995).

183 520 U.S. 385, 394 (1997).

184 The fact that officers may have to destroy property in order to conduct a

no-knock entry has no bearing on the reasonableness of their decision not to knock

and announce. United States v. Ramirez, 523 U.S. 65 (1998).

185 United States v. Banks, 540 U.S. 31 (2003) (forced entry was permissible after officers executing a warrant to search for drugs knocked, announced “police search

warrant,” and waited 15–20 seconds with no response).

186 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.

AMENDMENT 4—SEARCHES AND SEIZURE 1411
be liberally construed in favor of the individual.” 187 Similarly, just

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.188

Because police actions in execution of a warrant must be related to the objectives of the authorized intrusion, and because privacy of the home lies at the core of the Fourth Amendment, police

officers violate the Amendment by bringing members of the media

or other third parties into a home during execution of a warrant if

presence of those persons was not in aid of execution of the warrant.189

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.190 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,

191 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 leaving the premises.

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.192 For the same

187 Sgro v. United States, 287 U.S. 206 (1932).

188 Sgro v. United States, 287 U.S. 206 (1932).

189 Wilson v. Layne, 526 U.S. 603 (1999). Accord, Hanlon v. Berger, 526 U.S.

808 (1999) (media camera crew “ride-along” with Fish and Wildlife Service agents

executing a warrant to search respondent’s ranch for evidence of illegal taking of

wildlife).

190 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). But see Maryland v. Pringle, 540 U.S. 366 (2003) (distinguishing Ybarra on basis that passengers

in car often have “common enterprise,” and noting that the tip in Di Re implicated

only the driver.

191 452 U.S. 692 (1981).

192 452 U.S. 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 may apply

with respect to warrants for other evidence, id. at 705 n.20. In Los Angeles County

v. Rettele, 550 U.S. 609 (2007), the Court found no Fourth Amendment violation

where deputies did not know that the suspects had sold the house that the deputies

1412 AMENDMENT 4—SEARCHES AND SEIZURE
reasons, officers may use “reasonable force,” including handcuffs, to

effectuate a detention.193 Also, under some circumstances, officers

may search premises on the mistaken but reasonable belief that the

premises are described in an otherwise valid warrant.194

Limits on detention incident to a search were addressed in Bailey v. United States, a case in which an occupant exited his residence and traveled some distance before being stopped and detained.195 The Bailey Court held that the detention was not

constitutionally sustainable under the rule announced in Summers.

196 According to the Court, application of the categorical exception to probable cause requirements for detention incident to a search

is determined by spatial proximity, that is, whether the occupant is

found “within the immediate vicinity of the premises to be searched,” 197

and not by temporal proximity, that is, whether the occupant is detained “as soon as reasonably practicable” consistent with safety and

security. In so holding, the Court reasoned that limiting the Summers rule to the area within which an occupant poses a real threat

ensures that the scope of the rule regarding detention incident to a

search is confined to its underlying justification.198

Although, for purposes of execution, as for many other matters,

there is little difference 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

had a warrant to search. The deputies entered the house and found the new owners, of a different race from the suspects, sleeping in the nude. The deputies held

the new owners at gunpoint for one to two minutes without allowing them to dress

or cover themselves. As for the difference in race, the Court noted that, “[w]hen the

deputies ordered [Caucasian] respondents from their bed, they had no way of knowing whether the African-American suspects were elsewhere in the house.” Id. at 613.

As for not allowing the new owners to dress or cover themselves, the Court quoted

its statement in Michigan v. Summers that “[t]he risk of harm to both the police

and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.” Id. at 1993 (quoting 452 U.S. at 702–03).

193 Muehler v. Mena, 544 U.S. 93, 98–99 (2005) (also upholding questioning the

handcuffed detainee about her immigration status).

194 Maryland 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).

195 568 U.S. ___, No. 11–770, slip op. (2013). In Bailey, the police obtained a

warrant to search Bailey’s residence for firearms and drugs Id. at 2. Meanwhile,

detectives staked out the residence, saw Bailey leave and drive away, and then called

in a search team. Id. While the search was proceeding, the detectives tailed Bailey

for about a mile before stopping and detaining him. Id. at 2–3.

196 As an alternative ground, the district court had found that stopping Bailey

was lawful as an investigatory stop under Terry v. Ohio, 392 U.S. 1, 20 (1968), but

the Supreme Court offered no opinion on whether, assuming the stop was valid under Terry, the resulting interaction between law enforcement and Bailey could independently have justified Bailey’s detention. Bailey, slip op. at 14.

197 Bailey, slip op. at 13–14.

198 Id. at 13.

AMENDMENT 4—SEARCHES AND SEIZURE 1413
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.199

Valid Searches and Seizures Without Warrants

Although the Supreme Court stresses the importance of warrants and has repeatedly referred to searches without warrants as

“exceptional,” 200 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.” 201

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.’ ” 202 The

exceptions are said to be “jealously and carefully drawn,” 203 and

there must be “a showing by those who seek exemption . . . that

the exigencies of the situation made that course imperative.” 204 Although the record indicates 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 offi199 Steagald 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).

200 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).

201 American Law Institute, A Model Code of Pre-Arraignment Procedure, Tent.

Draft No. 3 (Philadelphia: 1970), xix.

202 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).

203 Jones v. United States, 357 U.S. 493, 499 (1958).

204 McDonald v. United States, 335 U.S. 451, 456 (1948). In general, with regard to exceptions to the warrant clause, conduct must be tested by the reasonableness standard enunciated by the first clause of the Amendment, Terry v. Ohio, 392

U.S. 1, 20 (1968). The Court’s development of its privacy expectation tests, discussed under “The Interest Protected,” supra, substantially changed the content of

that standard.

1414 AMENDMENT 4—SEARCHES AND SEIZURE
cers 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 a misdemeanor in their presence.205 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 police officer’s stop, what is discovered thereafter not

sufficing to establish probable cause retroactively.206 There are, however, instances when a police officer’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.207 In Terry v. Ohio,

208 the

Court, with only Justice Douglas dissenting, approved an on-thestreet investigation by a police officer that involved “patting down”

the subject of the investigation for weapons.

Terry 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, patted the exterior of his clothes, and discovered a gun. Chief Justice

Warren for the Court wrote that the Fourth Amendment was applicable “whenever a police officer accosts an individual and restrains

his freedom to walk away.” 209 Because 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.210 Because the conduct witnessed by the police officer 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 de205 United States v. Watson, 423 U.S. 411 (1976).

206 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).

207 “The police may not arrest upon mere suspicion but only on ‘probable cause.’ ”

Mallory v. United States, 354 U.S. 449, 454 (1957).

208 392 U.S. 1 (1968).

209 392 U.S. at 16. See id. at 16–20.

210 392 U.S. at 20, 21, 22.

AMENDMENT 4—SEARCHES AND SEIZURE 1415
signed to discover guns, knives, clubs, or other hidden instruments

for the assault of the police officer.” 211

In a later case, the Court held that an officer may seize an object if, in the course of a weapons frisk, “plain touch” reveals the

presence of the object, and the officer has probable cause to believe

it is contraband.212 The Court viewed the situation as analogous to

that covered by the “plain view” doctrine: obvious contraband may

be seized, but a search may not be expanded to determine whether

an object is contraband.213 Also impermissible is physical manipulation, without reasonable suspicion, of a bus passenger’s carry-on luggage stored in an overhead compartment.214

Terry did not rule 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. The Court provided a partial answer in 2004, when it upheld

a state law that required a suspect to disclose his name in the course

of a valid Terry stop.215 Questions about a suspect’s identity “are a

routine and accepted part of many Terry stops,” the Court explained.216

211 392 U.S. 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;

this was impermissible, because he lacked a reasonable basis for the frisk and in

any event his search exceeded the permissible scope of a weapons frisk); Adams v.

Williams, 407 U.S. 143 (1972) (stop and frisk based on informer’s in-person tip that

defendant was sitting in an identified parked car, visible to informer and officer, in

a high crime area at 2 a.m., with narcotics and a gun at his waist); 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); Maryland v.

Wilson, 519 U.S. 408, 413 (1997) (after validly stopping car, officer may order passengers as well as driver out of car; “the same weighty interest in officer safety is

present regardless of whether the occupant of the stopped car is a driver or passenger”); Arizona v. Johnson, 129 S. Ct. 781, 786 (2009) (after validly stopping car, officer may frisk (patdown for weapons) both the driver and any passengers whom he

reasonably concludes “might be armed and presently dangerous”).

212 Minnesota v. Dickerson, 508 U.S. 366 (1993).

213 508 U.S. at 375, 378–79. In Dickerson the Court held that seizure of a small

plastic container that the officer felt in the suspect’s pocket was not justified; the

officer should not have continued the search, manipulating the container with his

fingers, after determining that no weapon was present.

214 Bond v. United States, 529 U.S. 334 (2000) (bus passenger has reasonable

expectation that, although other passengers might handle his bag in order to make

room for their own, they will not “feel the bag in an exploratory manner”).

215 Hiibel v. Sixth Judicial Dist. Ct., 542 U.S. 177 (2004).

216 542 U.S. at 186.

1416 AMENDMENT 4—SEARCHES AND SEIZURE
After Terry, 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 foundations of their suspicions.217 Although it did not elaborate a set of rules to govern the

application of the tests, the Court was initially restrictive in recognizing permissible bases for reasonable suspicion.218 Extensive intrusions on individual privacy, e.g., transportation to the station house

for interrogation and fingerprinting, were invalidated in the absence of probable cause,219 although the Court has held that an uncorroborated, anonymous tip is insufficient basis for a Terry stop,

and that there is no “firearms” exception to the reasonable suspicion requirement.220 More recently, however, the Court has taken

less restrictive approaches.221

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 rec217 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).

218 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 traveling

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).

219 Davis v. Mississippi, 394 U.S. 721 (1969); Dunaway v. New York, 442 U.S.

200 (1979). Illinois v. Wardlow, 528 U.S. 119 (2000) (unprovoked flight from high

crime area upon sight of police produces “reasonable suspicion”).

220 Florida v. J.L., 529 U.S. 266 (2000) (reasonable suspicion requires that a tip

be reliable in its assertion of illegality, not merely in its identification of someone).

221 See, e.g., Prado Navarette v. California, 572 U.S. ___, No. 12–9490, slip op.

(2014) (anonymous 911 call reporting an erratic swerve by a particular truck traveling in a particular direction held to be sufficient to justify stop); United States v.

Sokolow, 490 U.S. 1, 9 (1989) (airport stop based on drug courier profile may rely

on a combination of factors that individually may be “quite consistent with innocent

travel”); 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).

AMENDMENT 4—SEARCHES AND SEIZURE 1417
ognized 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.” 222 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.” 223 A majority of the Justices subsequently endorsed this reasonable perception standard 224 and applied it 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 workforce surveys within a garment factory; while some

agents were positioned at exits, others systematically moved through

the factory and questioned employees.225 This brief questioning, even

with blocked exits, amounted to “classic consensual encounters rather

than Fourth Amendment seizures.” 226 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.” 227

Soon after, 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 had not complied with the officer’s order to halt. The Court in California v. Hodari

D. wrote that Mendenhall stated a “necessary” but not a “sufficient” condition for a seizure of the person through show of authority.228 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 submis222 392 U.S. at 19, n.16.

223 United States v. Mendenhall, 446 U.S. 544, 554 (1980).

224 See, e.g., Florida v. Royer, 460 U.S. 491 (1983), in which there was no opinion of the Court, but in which the test was used by the plurality of four, id. at 502,

and also endorsed by dissenting Justice Blackmun, id. at 514.

225 INS v. Delgado, 466 U.S. 210 (1984).

226 466 U.S. at 221.

227 Michigan v. Chesternut, 486 U.S. 567, 575 (1988).

228 499 U.S. 621, 628 (1991). As in Michigan v. Chesternut, supra, the suspect

dropped incriminating evidence while being chased.

1418 AMENDMENT 4—SEARCHES AND SEIZURE
sion to the assertion of authority.229 Indications are, however, that

Hodari D. did not signal the end of the reasonable perception standard, but merely carved 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 sweep

of a bus, but that a modified reasonable perception approach still

governed.230 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.” 231 “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.” 232

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.” 233 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

229 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).

230 Florida v. Bostick, 501 U.S. 429 (1991).

231 501 U.S. at 436.

232 501 U.S. at 436. 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. See also

United States v. Drayton, 536 U.S. 194 (2002), applying Bostick to uphold a bus

search in which one officer stationed himself in the front of the bus and one in the

rear, while a third officer worked his way from rear to front, questioning passengers

individually. Under these circumstances, and following the arrest of his traveling

companion, the defendant had consented to the search of his person.

233 Michigan v. Long, 463 U.S. 1032 (1983) (suspect appeared to be under the

influence of drugs, officer spied hunting knife exposed on floor of front seat and searched

remainder of passenger compartment). Similar reasoning has been applied to uphold a “protective sweep” of a home in which an arrest is made if arresting officers

have a reasonable belief that the area swept may harbor another individual posing

a danger to the officers or to others. Maryland v. Buie, 494 U.S. 325 (1990).

AMENDMENT 4—SEARCHES AND SEIZURE 1419
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.” 234

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 less

than probable cause.” 235 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.” 236 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.237 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.238 But the same requirements for brevity of de234 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).

235 United States v. Place, 462 U.S. 696, 709 (1983).

236 462 U.S. at 706.

237 462 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. The length of a detention short of an arrest has similarly been a factor in other cases. Compare Illinois v.

Caballes, 543 U.S. 405 (2005) (a canine sniff around the perimeter of a car following

a routine traffic stop does not offend the Fourth Amendment if the duration of the

stop is justified by the traffic offense) with Rodriguez v. United States, 575 U.S. ___,

No. 13–9972, slip op. at 3, 5–6 (2015) (finding that the stop in question had been

prolonged for seven to eight minutes beyond the time needed to resolve the traffic

offense in order to conduct a canine sniff).

238 Florida v. Royer, 460 U.S. 491 (1983). On this much the plurality opinion of

Justice White (id. at 503), joined by three other Justices, and the concurring opinion of Justice Brennan (id. at 509) were in agreement.

1420 AMENDMENT 4—SEARCHES AND SEIZURE
tention 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.239

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.240 The Court has

even upheld a search incident to an illegal (albeit not unconstitutional) arrest.241 The dispute has centered around the scope of the

search. Because it was the stated general rule that the scope of a

warrantless search must be strictly tied to and justified by the circumstances that rendered its justification permissible, and because

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,242

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, because there could

have been no 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.243

239 United States v. Montoya de Hernandez, 473 U.S. 531 (1985).

240 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).

241 Virginia v. Moore, 128 S. Ct. 1598 (2008) (holding that, where an arrest for

a minor offense is prohibited by state law, the arrest will not violate the Fourth

Amendment if it was based on probable cause).

242 Terry v. Ohio, 392 U.S. 1, 19 (1968); Chimel v. California, 395 U.S. 752, 762,

763 (1969). The Court, in Birchfield v. North Dakota, 579 U.S. ___, No. 14–1468,

slip op. (2016), explained that the precedent allowing for a warrantless search of an

arrestee in order to prevent the destruction of evidence applies to both evidence that

could be actively destroyed by a suspect and to evidence that can be destroyed due

to a natural process, such as the natural dissipation of the alcohol content in a suspect’s blood. Id. at 30–31.

243 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).

AMENDMENT 4—SEARCHES AND SEIZURE 1421
The Court has disavowed a case-by-case evaluation of searches

made post-arrest 244 and instead has embraced categorical evaluations as to post-arrest searches. Thus, in Riley v. California,

245 the

Court declined to extend the holding of United States v. Robinson

to the search of the digital data contained in a cell phone found on

an arrestee. Specifically, the Court distinguished a search of cell

phones, which contain vast quantities of personal data, from the

limited physical search at issue in Robinson.

246 Focusing primarily

on the rationale that searching cell phones would prevent the destruction of evidence, the government argued that cell phone data

could be destroyed remotely or become encrypted by the passage of

time. The Court, however, both discounted the prevalence of these

events and the efficacy of warrantless searches to defeat them. Rather,

the Court noted that other means existed besides a search of a cell

phone to secure the data contained therein, including turning the

phone off or placing the phone in a bag that isolates it from radio

waves.247 Because of the more substantial privacy interests at stake

when digital data is involved in a search incident to an arrest and

because of the availability of less intrusive alternatives to a warrantless search, the Court in Riley concluded that, as a “simple”

categorical rule, before police can search a cell phone incident to

an arrest, the police must “get a warrant.” 248

Two years after Riley, the Court again crafted a new brightline

rule with respect to searches following an arrest in another “situation[] that could not have been envisioned when the Fourth Amendment was adopted.” 249 In Birchfield v. North Dakota, the Court examined whether compulsory breath and blood tests administered

in order to determine the blood alcohol concentration (BAC) of an

automobile driver, following the arrest of that driver for suspected

“drunk driving,” are unreasonable under the search incident to arrest exception to the Fourth Amendment’s warrant requirement.250

In examining laws criminalizing the refusal to submit to either a

breath or blood test, similar to Riley, the Court relied on a general

244 In this vein, the search incident to arrest exception to the warrant requirement differs from other exceptions to the warrant requirement, such as the exigent

circumstances exception. See Birchfield, slip op. at 15–16 (noting that while “other

exceptions to the warrant requirement ‘apply categorically’,” the exigent circumstances exception to the warrant requirement applies on a case-by-case basis) (quoting Missouri v. McNeely, 569 U.S. ___, No. 11–1425, slip op. at 7 n.3 (2013)).

245 573 U.S. ___, No. 13–132, slip op. (2014).

246 “Cell phones differ in both a quantitative and a qualitative sense from other

objects that might be kept on an arrestee’s person.” Id. at 17.

247 Id. at 14.

248 Id. at 28.

249 See Birchfield, slip op. at 19.

250 Id. at 19.

1422 AMENDMENT 4—SEARCHES AND SEIZURE
balancing approach used to assess whether a given category of searches

is reasonable, weighing the individual privacy interests implicated

by such tests against any legitimate state interests.251 With respect to breath tests, the Birchfield Court viewed the privacy intrusions posed by such tests as “almost negligible” in that a breath

test is functionally equivalent to the process of using a straw to

drink a beverage and yields a limited amount of useful information

for law enforcement agents.252 In contrast, the Court concluded that

a mandatory blood test raised more serious privacy interests,253 as

blood tests pierce the skin, extract a part of the subject’s body, and

provide far more information than a breathalyzer test.254 Turning

to the state’s interest in obtaining BAC readings for persons arrested for drunk driving, the Birchfield Court acknowledged the government’s “paramount interest” in preserving public safety on highways, including the state’s need to deter drunk driving from occurring

in the first place through the imposition of criminal penalties for

failing to cooperate with drunk driving investigations.255 Weighing

these competing interests, the Court ultimately concluded that the

Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving because the “impact of breath tests on privacy is slight,” whereas the “need for BAC testing is great.” 256 In

so doing, the Court rejected the alternative of requiring the state

to obtain a warrant prior to the administration of a BAC breath

test, noting (1) the need for clear, categorical rules to provide police

adequate guidance in the context of a search incident to an arrest

and (2) the potential administrative burdens that would be incurred if warrants were required prior to every breathalyzer test.257

Nonetheless, the Court reached a “different conclusion” with respect to blood tests, finding that such tests are “significantly more

intrusive” and their “reasonability must be judged in light of the

availability of the less intrusive alternative of a breath test.” 258 As

a consequence, the Court held that while a warrantless breath test

251 Id.

252 Id. at 20–22. The Court disclaimed a criminal defendant’s possessory interest in the air in his lungs, as air in one’s lungs is not a part of one’s body and is

regularly exhaled from the lungs as a natural process. Id. at 21.

253 “Blood tests are a different matter.” Id. at 22.

254 Id. at 21–23.

255 Id. at 24–25.

256 Id. at 33.

257 Id. at 25–28. The Birchfield Court also rejected “more costly” and previously

tried alternatives to penalties for refusing a breath test, such as sobriety checkpoints, ignition interlocks, and the use of treatment programs. Id. at 29–30.

258 Id. at 33. In so doing, the Court rejected the argument that warrantless blood

tests are needed as an alternative to warrantless breath tests to detect impairing

substances other than alcohol or to obtain the BAC of an unconscious or uncooperative driver. Id. at 34. In such situations, the Court reasoned that the state could

AMENDMENT 4—SEARCHES AND SEIZURE 1423
following a drunk-driving arrest is categorically permissible as a reasonable search under the Fourth Amendment, a warrantless blood

test cannot be justified by the search incident to arrest doctrine.259

However, the Justices have long found themselves in disagreement 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,260 but in Harris v. United States,

261 the Court approved a search of a four-room

apartment pursuant to an arrest under warrant for one crime, where

the search turned up evidence of another crime. A year later, in

Trupiano v. United States,

262 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.” 263

The Court overruled Trupiano in United States v. Rabinowitz,

264

in which officers had arrested the 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,” 265 it provided no standard by which this area

was to be determined, and extensive searches were permitted under the rule.266

obtain a warrant for the blood test, or in the case of an uncooperative driver, prosecute the defendant for refusing to undergo the breath test. Id. at 34–35.

259 Id. at 37–38.

260 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).

261 331 U.S. 145 (1947).

262 334 U.S. 699 (1948).

263 334 U.S. at 708.

264 339 U.S. 56 (1950).

265 339 U.S. at 64.

266 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

1424 AMENDMENT 4—SEARCHES AND SEIZURE
In Chimel v. California,

267 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

someone 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.” 268

Although the viability of Chimel had been in doubt for some

time as the Court refined and applied its analysis of reasonable and

justifiable expectations of privacy,269 it has in some but not all contexts survived the changed rationale. Thus, in Mincey v. Arizona,

270 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

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).

267 395 U.S. 752 (1969).

268 395 U.S. at 762–63.

269 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.

270 437 U.S. 385, 390–91 (1978). Accord, Flippo v. West Virginia, 528 U.S. 11

(1999) (per curiam).

AMENDMENT 4—SEARCHES AND SEIZURE 1425
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,

271 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.272 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 stationhouse search may in some circumstances be even greater than those

supporting a search immediately following arrest.” 273

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.274

Stating that it was “in no way alter[ing] the fundamental principles established in the Chimel case,” the Court in New York v.

Belton 275 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,

271 433 U.S. 1 (1977). Defendant and his luggage, a footlocker, had been removed to the police station, where the search took place.

272 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).

273 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).

274 Maryland 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.

275 453 U.S. 454, 460 n.3 (1981).

1426 AMENDMENT 4—SEARCHES AND SEIZURE
within ‘the area into which an arrestee might reach in order to grab

a weapon or evidentiary ite[m].’ ” 276

Belton was “widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the

search.” 277 In Arizona v. Gant,

278 however, the Court disavowed this

understanding of Belton 279 and held that “[p]olice may search a vehicle incident to a recent occupant’s arrest only if the arrestee is

within reaching distance of the passenger compartment at the time

of the search or it is reasonable to believe that the vehicle contains

evidence of the offense of arrest.” 280

Vehicular Searches.—In the early days of the automobile, the

Court created an exception for searches of vehicles, holding in Carroll v. United States 281 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.282

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 move276 453 U.S. at 460 (quoting Chimel v. California, 395 U.S. 752, 763 (1969)). In

this particular instance, Belton had been removed from the automobile and handcuffed, but the Court wished to create a general rule removed from the fact-specific

nature of any one case. “ ‘Container’ here denotes any object capable of holding another object. It thus includes closed or open glove compartments, consoles, or other

receptacles located anywhere within the passenger compartment, as well as luggage, boxes, bags, clothing, and the like. Our holding encompasses only the interior

of the passenger compartment of an automobile and does not encompass the trunk.”

453 U.S. at 460–61 n.4.

277 Arizona v. Gant, 556 U.S. ___, No. 07–542, slip op. at 8 (2009).

278 556 U.S. ___, No. 07–542 (2009).

279 “To read Belton as authorizing a vehicle search incident to every recent occupant’s arrest would . . . untether the rule from the justifications underlying the Chimel

exception . . . .” Slip op. at 9.

280 556 U.S. ___, No. 07–542, slip op. at 18. Justice Alito, in a dissenting opinion joined by Chief Justice Roberts and Justice Kennedy and in part by Justice Breyer,

wrote that “there can be no doubt that” the majority had overruled Belton. Slip op.

at 2.

281 267 U.S. 132 (1925). Carroll was a Prohibition-era liquor case, whereas a

great number of modern automobile cases involve drugs.

282 267 U.S. 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.

AMENDMENT 4—SEARCHES AND SEIZURE 1427
ment.283 The Court also ruled that the search must be reasonably

contemporaneous with the stop, so that it was not permissible to

remove the vehicle to the station house for a warrantless search at

the convenience of the police.284

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 expectation of privacy that exists with respect to differently situated

property.” 285 “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.’ ” 286 Although motor homes serve as residences and as repositories for personal effects, and 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.” 287

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 288 and they may not make

random stops of vehicles on the roads, but instead must base stops

of individual vehicles on probable cause or some “articulable and

reasonable suspicion” 289 of traffic or safety violation or some other

283 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.

284 Preston v. United States, 376 U.S. 364 (1964); Dyke v. Taylor Implement Mfg.

Co., 391 U.S. 216 (1968).

285 Arkansas v. Sanders, 442 U.S. 753, 761 (1979).

286 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).

287 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”).

288 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).

An automobile’s “ready mobility [is] an exigency sufficient to excuse failure to obtain a search warrant once probable cause is clear”; there is no need to find the

presence of “unforeseen circumstances” or other additional exigency. Pennsylvania v.

Labron, 527 U.S. 465 (1996). Accord, Maryland v. Dyson, 527 U.S. 465 (1999) (per

curiam). Cf. Florida v. Harris, 568 U.S. ___, No. 11–817, slip op. (2013).

289 Delaware v. Prouse, 440 U.S. 648, 663 (1979) (discretionary random stops of

motorists to check driver’s license and automobile registration constitute Fourth Amendment violation); United States v. Brignoni-Ponce, 422 U.S. 873 (1975) (violation for

roving patrols on lookout for illegal aliens to stop vehicles on highways near inter1428 AMENDMENT 4—SEARCHES AND SEIZURE
criminal activity.290 If police stop a vehicle, then the vehicle’s passengers as well as its driver are deemed to have been seized from

the moment the car comes to a halt, and the passengers as well as

the driver may challenge the constitutionality of the stop.291 Likewise, a police officer may frisk (patdown for weapons) both the driver

and any passengers whom he reasonably concludes “might be armed

and presently dangerous.” 292

By contrast, fixed-checkpoint stops in the absence of any individualized suspicion have been upheld for purposes of promoting

highway safety 293 or policing the international border,294 but not

for more generalized law enforcement purposes.295 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.296

And, in the absence of such reasonable suspicion as to weapons,

national borders when only ground for suspicion is that occupants appear to be of

Mexican ancestry). But cf. United States v. Arvizu, 534 U.S. 266 (2002) (reasonable

suspicion justified stop by border agents of vehicle traveling on unpaved backroads

in an apparent effort to evade a border patrol checkpoint on the highway). In Prouse,

the Court cautioned that it was not precluding the states from developing methods

for spot checks, such as questioning all traffic at roadblocks, that involve less intrusion or that do not involve unconstrained exercise of discretion. 440 U.S. at 663.

290 An officer who observes a traffic violation may stop a vehicle even if his real

motivation is to investigate for evidence of other crime. Whren v. United States, 517

U.S. 806 (1996). The existence of probable cause to believe that a traffic violation

has occurred establishes the constitutional reasonableness of traffic stops regardless

of the actual motivation of the officers involved, and regardless of whether it is customary police practice to stop motorists for the violation observed. Similarly, pretextual

arrest of a motorist who has committed a traffic offense is permissible. Arkansas v.

Sullivan, 532 U.S. 769 (2001) (per curiam) (upholding search of the motorist’s car

for a crime not related to the traffic offense).

291 Brendlin v. California, 551 U.S. 249, 263 (2007).

292 Arizona v. Johnson, 129 S. Ct. 781, 786 (2009).

293 Michigan Dep’t of State Police v. Sitz, 496 U.S. 444 (1990) (upholding a sobriety checkpoint at which all motorists are briefly stopped for preliminary questioning and observation for signs of intoxication).

294 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). See also United States v. Flores-Montano, 541 U.S. 149 (2004)

(upholding a search at the border involving disassembly of a vehicle’s fuel tank).

295 City of Indianapolis v. Edmond, 531 U.S. 32 (2000) (vehicle checkpoint set

up for the “primary purpose [of] detect[ing] evidence of ordinary criminal wrongdoing” (here interdicting illegal narcotics) does not fall within the highway safety or

border patrol exception to the individualized suspicion requirement, and hence violates the Fourth Amendment). Edmond was distinguished in Illinois v. Lidster, 540

U.S. 419 (2004), upholding use of a checkpoint to ask motorists for help in solving a

recent hit-and-run accident that had resulted in death. The public interest in solving the crime was deemed “grave,” while the interference with personal liberty was

deemed minimal.

296 Michigan v. Long, 463 U.S. 1032, 1049 (1983) (holding that contraband found

in the course of such a search is admissible).

AMENDMENT 4—SEARCHES AND SEIZURE 1429
police may seize contraband and suspicious items “in plain view”

inside the passenger compartment.297

Although officers who have stopped a car to issue a routine traffic citation may conduct a Terry-type search, even including a patdown of driver and passengers if there is reasonable suspicion that

they are armed and dangerous, they may not conduct a full-blown

search of the car 298 unless they exercise their discretion to arrest

the driver instead of issuing a citation.299 And once police have probable cause to believe there is contraband in a vehicle, they may remove the vehicle from the scene to the station house in order to

conduct a search, without thereby being required to obtain a warrant.300 “[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 re297 Texas v. Brown, 460 U.S. 730 (1983). Similarly, because 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). Because

there also is no legitimate privacy interest in possessing contraband, and because

properly conducted canine sniffs are “generally likely[] to reveal only the presence

of contraband,” police may conduct a canine sniff around the perimeter of a vehicle

stopped for a traffic offense so long as the stop is not prolonged beyond the time

needed to process the traffic violation. Compare Illinois v. Caballes, 543 U.S. 405

(2005) (a canine sniff around the perimeter of a car following a routine traffic stop

does not offend the Fourth Amendment if the duration of the stop is justified by the

traffic offense) with Rodriguez v. United States, 575 U.S. ___, No. 13–9972, slip op.

at 3, 5–6 (2015) (finding that the stop in question had been prolonged for seven to

eight minutes beyond the time needed to resolve the traffic offense in order to conduct a canine sniff).

298 Knowles v. Iowa, 525 U.S. 113 (1998) (invalidating an Iowa statute permitting a full-blown search incident to a traffic citation).

299 See Atwater v. City of Lago Vista, 532 U.S. 318 (2001) (police officers, in their

discretion, may arrest a motorist for a minor traffic offense rather than issuing a

citation); New York v. Belton, 453 U.S. 454 (1981) (officers who arrest an occupant

of a vehicle may make a contemporaneous search of the entire passenger compartment, including closed containers); Thornton v. United States, 541 U.S. 615 (2004)

(the Belton rule applies regardless of whether the arrestee exited the car at the officer’s direction, or whether he did so prior to confrontation); Arizona v. Gant, 556

U.S. ___, No. 07–542 (U.S. Apr. 21 (2009), slip op. at 18 (the Belton rule applies

“only if the arrestee is within reaching distance of the passenger compartment at

the time of the search or it is reasonable to believe that the vehicle contains evidence of the offense of arrest”); Arkansas v. Sullivan, 532 U.S. 769 (2001) (pretextual

arrest of motorist who has committed a traffic offense is permissible even if purpose

is to search vehicle for evidence of other crime).

300 Michigan v. Thomas, 458 U.S. 259 (1982). The same rule applies if it is the

vehicle itself that is forfeitable contraband; police, acting without a warrant, may

seize the vehicle from a public place. Florida v. White, 526 U.S. 559 (1999).

1430 AMENDMENT 4—SEARCHES AND SEIZURE
quired for the police to obtain a warrant.” 301 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.302 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.303

Police in undertaking a warrantless search of an automobile may

not extend the search to the persons of the passengers therein 304

unless there is a reasonable suspicion that the passengers are armed

and dangerous, in which case a Terry patdown is permissible,305 or

unless there is individualized suspicion of criminal activity by the

passengers.306 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.307 Luggage and other closed containers found in automobiles may also be

subjected to warrantless searches based on probable cause, regardless of whether the luggage or containers belong to the driver or to

a passenger, and regardless of whether it is the driver or a passenger who is under suspicion.308 The same rule now applies whether

the police have probable cause to search only the containers 309 or

301 Michigan v. Thomas, 458 U.S. at 261. 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).

302 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).

303 Cardwell v. Lewis, 417 U.S. 583 (1974). Justice Powell concurred on other

grounds.

304 United States v. Di Re, 332 U.S. 581 (1948);Ybarra v. Illinois, 444 U.S. 85,

94–96 (1979).

305 Knowles v. Iowa, 525 U.S. 113, 118 (1998).

306 Maryland v. Pringle, 540 U.S. 366 (2003) (probable cause to arrest passengers based on officers finding $783 in glove compartment and cocaine hidden beneath back seat armrest, and on driver and passengers all denying ownership of

the cocaine).

307 Rakas v. Illinois, 439 U.S. 128 (1978).

308 Wyoming v. Houghton, 526 U.S. 295, 307 (1999) (“police officers with probable cause to search a car may inspect passengers’ belongings found in the car that

are capable of concealing the object of the search”).

309 California v. Acevedo, 500 U.S. 565 (1991) (overruling Arkansas v. Sanders,

442 U.S. 753 (1979).

AMENDMENT 4—SEARCHES AND SEIZURE 1431
whether they have probable cause to search the automobile for something capable of being held in the container.310

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. VillamonteMarquez,

311 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,312 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.” 313 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.314 Dissenting 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

310 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).

311 462 U.S. 579 (1983).

312 19 U.S.C. § 1581(a), derived from § 31 of the Act of Aug. 4, 1790, ch. 35, 1

Stat. 164.

313 462 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 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).

314 462 U.S. at 593.

1432 AMENDMENT 4—SEARCHES AND SEIZURE
limitations whatever on the officers’ discretion or any safeguards

against abuse.” 315

Consent Searches.—Fourth Amendment rights, like other constitutional rights, may be waived, and one may consent to a search

of his person or premises by officers who have not complied with

the Amendment.316 The Court, however, has insisted that the burden is on the prosecution to prove the voluntariness of the consent 317 and awareness of the right of choice.318 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 for a search

to be found voluntary, and police therefore are not required to inform a person of his rights, as through a Fourth Amendment version of Miranda warnings.319 But consent will not be regarded as

voluntary when the officer asserts his official status and claim of

right and the occupant yields because of these factors.320 When consent is obtained through the deception of an undercover officer or

an informer’s gaining admission without 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.321 Moreover, while the Court has appeared to endorse implied consent laws that view individuals who

engage in certain regulated activities as having implicitly agreed

315 462 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, 440 U.S. 648 (1979), should govern. Id. at 599, 601.

316 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).

317 Bumper v. North Carolina, 391 U.S. 543 (1968).

318 Johnson v. United States, 333 U.S. 10, 13 (1948).

319 Schneckloth v. Bustamonte, 412 U.S. 218, 231–33 (1973). See also Ohio v.

Robinette, 519 U.S. 33 (1996) (officer need not always inform a detained motorist

that he is free to go before consent to search auto may be deemed voluntary); United

States v. Drayton, 536 U.S. 194, 207 (2002) (totality of circumstances indicated that

bus passenger consented to search even though officer did not explicitly state that

passenger was free to refuse permission).

320 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).

321 On Lee v. United States, 343 U.S. 747 (1952); Lopez v. United States, 373

U.S. 427 (1963); Hoffa v. United States, 385 U.S. 293 (1966); Lewis v. United States,

385 U.S. 206 (1966); United States v. White, 401 U.S. 745 (1971). Cf. Osborn v. United

States, 385 U.S. 323 (1966) (prior judicial approval obtained before wired informer

sent into defendant’s presence). Problems may be encountered by police, however, in

special circumstances. See Massiah 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).

AMENDMENT 4—SEARCHES AND SEIZURE 1433
to certain searches related to that activity and the enforcement of

such laws through civil penalties,322 the implied consent doctrine

does not extend so far as to deem individuals to have impliedly consented to a search on “pain of committing a criminal offense.” 323

Additional issues arise in determining the validity of consent

to search when consent is given not by the suspect, but by a third

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.” 324 Now, however, actual common authority over the premises

is not required; it is sufficient if the searching officer had a reasonable but mistaken belief that the third party had common authority and could consent to the search.325 If, however, one occupant

consents to a search of shared premises, but a physically present

co-occupant expressly objects to the search, the search is unreasonable.326 Common social expectations inform the analysis. A person

at the threshold of a residence could not confidently conclude he

was welcome to enter over the express objection of a present cotenant. Expectations may change, however, if the objecting co322 See, e.g., Missouri v. McNeely, 569 U.S. ___, No. 11–1425, slip op. at 18 (2013)

(plurality opinion) (discussing implied consent laws that “require motorists, as a condition of operating a motor vehicle, . . . to consent to [blood alcohol concentration]

testing if they are arrested or otherwise detained on suspicion of a drunk-driving

offense” or risk losing their license); South Dakota v. Neville, 459 U.S. 553, 554,

563–64 (1983).

323 See Birchfield v. North Dakota, 579 U.S. ___, No. 14–1468, slip op. at 36–37

(2016).

324 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).

325 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).

326 Georgia v. Randolph, 547 U.S. 103 (2006) (warrantless search of a defendant’s residence based on his estranged wife’s consent was unreasonable and invalid as applied to a physically present defendant who expressly refused to permit

entry). The Court in Randolph admitted that it was “drawing a fine line,” id. at

121, between situations where the defendant is present and expressly refuses consent, and that of United States v. Matlock, 415 U.S. 164, 171 (1974), and Illinois v.

Rodriguez, 497 U.S. 177 (1990), where the defendants were nearby but were not

asked for their permission. In a dissenting opinion, Chief Justice Roberts observed

that the majority’s ruling “provides protection on a random and happenstance basis,

protecting, for example, a co-occupant who happens to be at the front door when the

other occupant consents to a search, but not one napping or watching television in

the next room.” 547 U.S. at 127.

1434 AMENDMENT 4—SEARCHES AND SEIZURE
tenant leaves, or is removed from, the premises with no prospect of

imminent return.327

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.” 328

Authorized by the First Congress,329 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.330 Moreover, although 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, Terry protections as to the length

and intrusiveness of the search do not apply.331 Motor vehicles may

be searched at the border, even to the extent of removing, disassembling, and reassembling the fuel tank.332

Inland stoppings and searches in areas away from the borders

are a different matter altogether. Thus, in Almeida-Sanchez v. United

States,

333 the Court held that a warrantless stop and search of defendant’s automobile on a highway some 20 miles from the border

327 Fernandez v. California, 571 U.S. ___, No. 12–7822, slip op. (2014) (consent

by co-occupant sufficient to overcome objection of a second co-occupant who was arrested and removed from the premises, so long as the arrest and removal were objectively reasonable).

328 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).

329 Act of July 31, 1789, ch. 5, §§ 23, 24, 1 Stat. 43. See 19 U.S.C. §§ 507, 1581,

1582.

330 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).

331 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). The traveler 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.

332 United States v. Flores-Montano, 541 U.S. 149 (2004).

333 413 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).

AMENDMENT 4—SEARCHES AND SEIZURE 1435
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.334 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.335 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.336

“Open Fields”.—In Hester v. United States,

337 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 338 that the Amendment protects “people

not places” cast some doubt on the vitality of the open fields prin334 United States v. Ortiz, 422 U.S. 891 (1975).

335 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), and United States v. Arvizu, 534 U.S. 266 (2002), where border agents

did have grounds for reasonable suspicion that the vehicle they stopped contained

illegal aliens.

336 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).

337 265 U.S. 57 (1924). See also Air Pollution Variance Bd. v. Western Alfalfa

Corp., 416 U.S. 86 (1974).

338 389 U.S. 347, 353 (1967). Cf. Cady v. Dombrowski, 413 U.S. 433, 450 (1973)

(citing Hester approvingly).

1436 AMENDMENT 4—SEARCHES AND SEIZURE
ciple, but all such doubts were cast away in Oliver v. United States.

339

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.” 340 Nor may an individual demand privacy for activities conducted within outbuildings and visible by trespassers peering into the buildings from just outside.341

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.342 Similarly, naked-eye inspection from helicopters flying even lower contravenes no reasonable expectation of

privacy.343 And aerial photography of commercial facilities secured

from ground-level public view is permissible, the Court finding such

spaces more analogous to open fields than to the curtilage of a dwelling.344

“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 345 or that, if the officer needs a warrant or probable cause

to search and seize, his lawful observation will provide grounds there339 466 U.S. 170 (1984) (approving warrantless intrusion past no trespassing signs

and around locked gate, to view field not visible from outside property).

340 466 U.S. 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”).

341 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”).

342 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 of fence surrounding home, used

for processing chemicals, and separated from public access only by a series of livestock fences, by a chained and locked driveway, and by one-half mile’s distance, is

not within curtilage).

343 Florida v. Riley, 488 U.S. 445 (1989) (view through partially open roof of greenhouse).

344 Dow Chemical Co. v. United States, 476 U.S. 227 (1986) (suggesting that aerial

photography of the curtilage would be impermissible).

345 Washington v. Chrisman, 455 U.S. 1 (1982) (officer lawfully in dorm room

may seize marijuana seeds and pipe in open view); United States v. Santana, 427

U.S. 38 (1976) (“plain view” justification for officers to enter home to arrest after

observing defendant standing in open doorway); Harris v. United States, 390 U.S.

AMENDMENT 4—SEARCHES AND SEIZURE 1437
for.346 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.347

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.348

Public Schools.—In New Jersey v. T.L.O.,

349 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 State,

not merely as surrogates for the parents.” 350 However, “the school

setting requires some easing of the restrictions to which searches

by public authorities are ordinarily subject.” 351 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.352 A search must be reasonable at its inception, i.e., there must

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).

346 Steele v. United States, 267 U.S. 498 (1925) (officers observed contraband in

view through open doorway; had probable cause to procure warrant). Cf. Taylor v.

United States, 286 U.S. 1 (1932) (officers observed contraband in plain view in garage, warrantless entry to seize was unconstitutional).

347 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).

348 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).

349 469 U.S. 325 (1985).

350 469 U.S. at 336.

351 469 U.S. at 340.

352 This single rule, the Court explained, will permit school authorities “to regulate their conduct according to the dictates of reason and common sense.” 469 U.S.

at 343. Rejecting the suggestion of dissenting Justice Stevens, the Court was “unwill1438 AMENDMENT 4—SEARCHES AND SEIZURE
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.” 353 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.” 354 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.

In Safford Unified School District #1 v. Redding,

355 a student

found in possession of prescription ibuprofen pills at school stated

that the pills had come from another student, 13-year-old Savana

Redding. The Court found that the first student’s statement was

sufficiently plausible to warrant suspicion that Savana was involved in pill distribution, and that this suspicion was enough to

justify a search of Savana’s backpack and outer clothing.356 School

officials, however, had also “directed Savana to remove her clothes

down to her underwear, and then ‘pull out’ her bra and the elastic

band on her underpants” 357—an action that the Court thought could

fairly be labeled a strip search. Taking into account that “adolescent vulnerability intensifies the patent intrusiveness of the exposure” and that, according to a study, a strip search can “result in

serious emotional damage,” the Court found that the search violated the Fourth Amendment.358 “Because there were no reasons to

suspect the drugs presented a danger or were concealed in her underwear,” the Court wrote, “the content of the suspicion failed to

match the degree of intrusion.” 359 But, even though the Court found

that the search had violated the Fourth Amendment, it found that

the school officials who conducted the search were protected from

ing 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.

353 469 U.S. at 342. The Court has further elaborated that this “reasonable suspicion” standard is met if there is a “moderate chance” of finding evidence of wrongdoing. Safford Unified School District #1 v. Redding, 557 U.S. ___, No. 08–479, slip

op. at 5 (2009).

354 469 U.S. at 342.

355 557 U.S. ___, No. 08–479 (2009).

356 557 U.S. ___, No. 08–479, slip op. at 7.

357 557 U.S. ___, No. 08–479, slip op. at 8.

358 557 U.S. ___, No. 08–479, slip op. at 8.

359 557 U.S. ___, No. 08–479, slip op. at 1, 9. Justice Thomas dissented from the

finding of a Fourth Amendment violation.

AMENDMENT 4—SEARCHES AND SEIZURE 1439
liability through qualified immunity, because the law prior to Redding was not clearly established.360

Government Workplace.—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,

361 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, workrelated purposes, as well as for investigations of work-related

misconduct.” 362 Four Justices would require a case-by-case inquiry

into the reasonableness of such searches; 363 one would hold that

such searches “do not violate the Fourth Amendment.” 364

In City of Ontario v. Quon,

365 the Court bypassed adopting an

approach for determining a government employee’s reasonable expectation of privacy, an issue unresolved in O’Connor. Rather, the

Quon Court followed the “special needs” holding in O’Connor and

found that, even assuming a reasonable expectation of privacy, a

city’s warrantless search of the transcripts of a police officer’s onduty text messages on city equipment was reasonable because it

was justified at its inception by noninvestigatory work-related purposes and was not excessively intrusive.366 A jury had found the

purpose of the search to be to determine whether the city’s contract with its wireless service provider was adequate, and the Court

held that “reviewing the transcripts was reasonable because it was

an efficient and expedient way to determine whether [the officer’s]

overages were the result of work-related messaging or personal use.” 367

Prisons and Regulation of Probation and Parole.—The “undoubted security imperatives involved in jail supervision” require

“defer[ence] to the judgment of correctional officials unless the record contains substantial evidence showing their policies are an unnecessary or unjustified response to the problems of jail secu360 See “Alternatives to the Exclusionary Rule,” infra. Justices Stevens and Ginsburg

dissented from the grant of qualified immunity.

361 480 U.S. 709 (1987).

362 480 U.S. at 725. Not at issue was whether there must be individualized suspicion for investigations of work-related misconduct.

363 This position was stated in Justice O’Connor’s plurality opinion, joined by

Chief Justice Rehnquist and by Justices White and Powell.

364 480 U.S. at 732 (Scalia, J., concurring in judgment).

365 560 U.S. ___, No. 08–1332, slip op. (2010).

366 In Quon, a police officer was dismissed after a review of the transcripts of

his on-duty text messages revealed that a large majority of his texting was not related to work, and some messages were sexually explicit.

367 560 U.S. ___, No. 08–1332, slip op. at 13 (2010).

1440 AMENDMENT 4—SEARCHES AND SEIZURE
rity.” 368 So saying, the Court, in Florence v. Board of Chosen

Freeholders, upheld routine strip searches, including close-up visual cavity inspections, as part of processing new arrestees for entry into the general inmate population, without the need for individualized suspicion and without an exception for those arrested for

minor offenses.369 Correctional officials had asserted significant penological interests to justify routine strip searches of new arrivals:

detecting and preventing the introduction into the inmate population of infections, infestations, and contraband of all sorts; and identifying gang members. Having cited serious concerns and having

applied their professional expertise, the officials had, in the Court’s

opinion, acted reasonably and not clearly overreacted. But despite

taking a deferential approach and recounting the grave dangers correctional officers face, the Florence Court did not hold that individuals being processed for detention have no privacy rights at all. In

separate concurrences, moreover, two members of the five-Justice

majority held out the prospect of exceptions and refinements in future rulings on blanket strip search policies for new detainees.370

The Court in Maryland v. King cited a legitimate interest in

having safe and accurate booking procedures to identify persons being taken into custody in order to sustain taking DNA samples from

those charged with serious crimes.371 Tapping the “unmatched potential of DNA identification” facilitates knowing with certainty who

the arrestee is, the arrestee’s criminal history, the danger the arrestee poses to others, the arrestee’s flight risk, and other relevant

facts.372 By comparison, the Court characterized an arrestee’s expectation of privacy as diminished and the intrusion posed by a cheek

swab as minimal.373

Searches of prison cells by prison administrators are not limited even by a reasonableness standard, the Court’s having held that

“the Fourth Amendment proscription against unreasonable searches

368 Florence v. Board of Chosen Freeholders, 566 U.S. ___, No. 10–945, slip op.

at 2, 9 (2012). See also, e.g., Bell v. Wolfish, 441 U.S. 520 (1979). The Florence Court

made clear it was referring to “jails” in “a broad sense to include prisons and other

detention facilities.” 566 U.S. ___, No. 10–945, slip op. at 1 (2012).

369 566 U.S. ___, No. 10–945, slip op. (2012). The Court upheld similarly invasive

strip searches of all inmates following contact visits in Bell v. Wolfish. 441 U.S. 520,

558–60 (1979).

370 566 U.S. ___, No. 10–945, slip op. (2012) (Roberts, C.J., concurring); 566 U.S.

___, No. 10–945, slip op. (2012) (Alito, J., concurring). In the opinion of the dissenters, a strip search of the kind conducted in Florence is unconstitutional if given to

an arriving detainee arrested for a minor offense not involving violence or drugs,

absent a reasonable suspicion to believe that the new arrival possesses contraband.

566 U.S. ___, No. 10–945, slip op. (2012) (Breyer, J., dissenting).

371 569 U.S. ___, No. 12–207, slip op. (2013).

372 Id. at 10–18, 23.

373 Id. at 23–26.

AMENDMENT 4—SEARCHES AND SEIZURE 1441
does not apply within the confines of the prison cell.” 374 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).375 “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.” 376 “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.377 A warrant is also not required if the

purpose of a search of a probationer is investigate a crime rather

than to supervise probation.378

“[O]n the ‘continuum’ of state-imposed punishments . . . , parolees have [even] fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment.” 379 The Fourth Amendment, therefore, is not violated

by a warrantless search of a parolee that is predicated upon a parole condition to which a prisoner agreed to observe during the balance of his sentence.380

Drug Testing.—In two 1989 decisions the Court held that no

warrant, probable cause, or even individualized suspicion is re374 Hudson v. Palmer, 468 U.S. 517, 526 (1984). See also Bell v. Wolfish, 441

U.S. 520, 555–57 (1979) (“It is difficult to see how the detainee’s interest in privacy

is infringed by the room-search rule [allowing unannounced searches]. No one can

rationally doubt that room searches represent an appropriate security measure . . . .”).

375 483 U.S. 868 (1987) (search based on information from police detective that

there was or might be contraband in probationer’s apartment).

376 483 U.S. at 873–74.

377 483 U.S. at 879.

378 United States v. Knights, 534 U.S. 112 (2001) (probationary status informs

both sides of the reasonableness balance).

379 Samson v. California, 547 U.S. 843, 850 (2006) (internal quotation marks altered).

380 547 U.S. at 852. The parole condition at issue in Samson required prisoners

to “agree in writing to be subject to a search or seizure by a parole officer or other

peace officer at any time of the day or night, with or without a search warrant and

with or without cause.” Id. at 846, quoting Cal. Penal Code Ann. § 3067(a).

1442 AMENDMENT 4—SEARCHES AND SEIZURE
quired 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,

381 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; in National Treasury Employees Union

v. Von Raab 382 the Court upheld a Customs Service screening program requiring urine 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 impairment become noticeable.” 383 By contrast, the intrusions on privacy

were termed “limited.” Blood and breath tests were passed off as

routine; the urine test, although more intrusive, was deemed permissible because of the “diminished expectation of privacy” in employees having some responsibility for safety in a pervasively regulated industry.384 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.385

In Von Raab the governmental interests underlying the Customs Service’s screening program were also termed “compelling”: to

ensure that persons entrusted with a firearm and the possible use

of deadly force not suffer from drug-induced impairment of perception and judgment, and that “front-line [drug] interdiction personnel [be] physically fit, and have unimpeachable integrity and judgment.” 386 The possibly “substantial” interference with privacy interests

of these Customs employees was justified, the Court concluded, be381 489 U.S. 602 (1989).

382 489 U.S. 656 (1989).

383 489 U.S. at 628.

384 489 U.S. at 628.

385 489 U.S. at 631–32.

386 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.

AMENDMENT 4—SEARCHES AND SEIZURE 1443
cause, “[u]nlike most private citizens or government employees generally, they have a diminished expectation of privacy.” 387

Emphasizing the “special needs” of the public school context, reflected in the “custodial and tutelary” power that schools exercise

over students, and also noting schoolchildren’s diminished expectation of privacy, the Court in Vernonia School District v. Acton 388

upheld a school district’s policy authorizing random urinalysis drug

testing of students who participate in interscholastic athletics. The

Court redefined the term “compelling” governmental interest. The

phrase does not describe a “fixed, minimum quantum of governmental concern,” the Court explained, but rather “describes an interest

which appears important enough to justify the particular search at

hand.” 389 Applying this standard, the Court concluded that “deterring drug use by our Nation’s schoolchildren is at least as important as enhancing efficient enforcement of the Nation’s laws against

the importation of drugs . . . or deterring drug use by engineers

and trainmen.” 390 On the other hand, the interference with privacy

interests was not great, the Court decided, since schoolchildren are

routinely required to submit to various physical examinations and

vaccinations. Moreover, “[l]egitimate privacy expectations are even

less [for] student athletes, since they normally suit up, shower, and

dress in locker rooms that afford no privacy, and since they voluntarily subject themselves to physical exams and other regulations

above and beyond those imposed on non-athletes.” 391 The Court “caution[ed] against the assumption that suspicionless drug testing will

readily pass muster in other contexts,” identifying as “the most significant element” in Vernonia the fact that the policy was implemented under the government’s responsibilities as guardian and tutor of schoolchildren.392

Seven years later, the Court in Board of Education v. Earls 393

extended Vernonia to uphold a school system’s drug testing of all

junior high and high school students who participated in extracurricular activities. The lowered expectation of privacy that athletes have “was not essential” to the decision in Vernonia, Justice

Thomas wrote for a 5–4 Court majority.394 Rather, that decision “depended primarily upon the school’s custodial responsibility and au387 489 U.S. at 672.

388 515 U.S. 646 (1995).

389 515 U.S. at 661.

390 515 U.S. at 661.

391 515 U.S. at 657.

392 515 U.S. at 665.

393 536 U.S. 822 (2002).

394 536 U.S. at 831.

1444 AMENDMENT 4—SEARCHES AND SEIZURE
thority.” 395 Another distinction was that, although there was some

evidence of drug use among the district’s students, there was no

evidence of a significant problem, as there had been in Vernonia.

Rather, the Court referred to “the nationwide epidemic of drug use,”

and stated that there is no “threshold level” of drug use that need

be present.396 Because the students subjected to testing in Earls

had the choice of not participating in extra-curricular activities rather

than submitting to drug testing, the case stops short of holding that

public school authorities may test all junior and senior high school

students for drugs. Thus, although the Court’s rationale seems broad

enough to permit across-the-board testing,397 Justice Breyer’s concurrence, emphasizing among other points that “the testing program avoids subjecting the entire school to testing,” 398 raises some

doubt on this score. The Court also left another basis for limiting

the ruling’s sweep by asserting that “regulation of extracurricular

activities further diminishes the expectation of privacy among schoolchildren.” 399

In two other cases, the Court found that there were no “special

needs” justifying random testing. Georgia’s requirement that candidates for state office certify that they had passed a drug test, the

Court ruled in Chandler v. Miller 400 was “symbolic” rather than “special.” There was nothing in the record to indicate any actual fear

or suspicion of drug use by state officials, the required certification

was not well designed to detect illegal drug use, and candidates for

state office, unlike the customs officers held subject to drug testing

in Von Raab, are subject to “relentless” public scrutiny. In the second case, a city-run hospital’s program for drug screening of preg395 536 U.S. at 831.

396 536 U.S. at 836.

397 Drug testing was said to be a “reasonable” means of protecting the school

board’s “important interest in preventing and deterring drug use among its students,” and the decision in Vernonia was said to depend “primarily upon the school’s

custodial responsibility and authority.” 536 U.S. at 838, 831.

398 Concurring Justice Breyer pointed out that the testing program “preserves

an option for a conscientious objector,” who can pay a price of nonparticipation that

is “serious, but less severe than expulsion.” 536 U.S. at 841. Dissenting Justice Ginsburg

pointed out that extracurricular activities are “part of the school’s educational program” even though they are in a sense “voluntary.” “Voluntary participation in athletics has a distinctly different dimension” because it “expose[s] students to physical

risks that schools have a duty to mitigate.” Id. at 845, 846.

399 536 U.S. at 831–32. The best the Court could do to support this statement

was to assert that “some of these clubs and activities require occasional off-campus

travel and communal undress,” to point out that all extracurricular activities “have

their own rules and requirements,” and to quote from general language in Vernonia.

Id. Dissenting Justice Ginsburg pointed out that these situations requiring a change

of clothes on occasional out-of-town trips are “hardly equivalent to the routine communal undress associated with athletics.” Id. at 848.

400 520 U.S. 305 (1997).

AMENDMENT 4—SEARCHES AND SEIZURE 1445
nant patients suspected of cocaine use was invalidated because its

purpose was to collect evidence for law enforcement.401 In the previous three cases in which random testing had been upheld, the

Court pointed out, the “special needs” asserted as justification were

“divorced from the general interest in law enforcement.” 402 By contrast, the screening program’s focus on law enforcement brought it

squarely within the Fourth Amendment’s restrictions.

Electronic Surveillance and the Fourth Amendment

The Olmstead Case.—With the invention of the microphone,

the telephone, and the dictagraph 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.403 Chief Justice Taft,

writing the opinion of the Court, relied on two lines of argument

for the conclusion. First, because 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 excludable, since the exclusionary rule operated only on evidence seized in violation of the Constitution.404

Federal Communications Act.—Six years after the decision

in Olmstead, 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 wire401 Ferguson v. City of Charleston, 532 U.S. 67 (2001).

402 532 U.S. at 79.

403 Olmstead v. United States, 277 U.S. 438 (1928).

404 Among the dissenters were Justice Holmes, who characterized “illegal” wiretapping as “dirty business,” 277 U.S. 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.

1446 AMENDMENT 4—SEARCHES AND SEIZURE
tapping.405 Thus, in Nardone v. United States,

406 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,407 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.408 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.409

Nontelephonic Electronic Surveillance.—The trespass rationale of Olmstead was used in cases dealing with “bugging” of premises rather than with tapping of telephones. Thus, in Goldman v.

United States,

410 the Court found no Fourth Amendment violation

when a listening device was placed against a party wall so 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 Amend405 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).

406 302 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).

407 Weiss v. United States, 308 U.S. 321 (1939).

408 Schwartz 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).

409 Bananti v. United States, 355 U.S. 96 (1957).

410 316 U.S. 129 (1942).

AMENDMENT 4—SEARCHES AND SEIZURE 1447
ment.411 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,

412 the

Court confirmed the obsolescence of the alternative holding in Olmstead

that conversations could not be seized in the Fourth Amendment

sense.413 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 conversations 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

411 Silverman 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).

412 388 U.S. 41 (1967).

413 388 U.S. at 50–53.

1448 AMENDMENT 4—SEARCHES AND SEIZURE
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.” 414

Both Justices Black and White in dissent accused the Berger

majority of so construing the Fourth Amendment that no wiretappingeavesdropping statute could pass constitutional scrutiny,415 and, in

Katz v. United States,

416 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 people—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.” 417 Because the surveillance

414 388 U.S. 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. at 89. Justice

White thought both the statute and its application in this case were constitutional.

Id. at 107.

415 388 U.S. at 71, 113.

416 389 U.S. 347 (1967).

417 389 U.S. at 353. “We conclude that the underpinnings of Olmstead and Goldman have been so eroded by our subsequent decisions that the ‘trespass’ doctrine

AMENDMENT 4—SEARCHES AND SEIZURE 1449
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.” 418

The notice requirement, which had loomed in Berger as an obstacle

to successful electronic surveillance, was summarily disposed of.419

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.420

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

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.”

418 389 U.S. 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).

419 “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.

420 389 U.S. 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).

1450 AMENDMENT 4—SEARCHES AND SEIZURE
classes of criminal legislation.421 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.422

Warrantless “National Security” Electronic Surveillance.—In Katz v. United States,

423 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.424 Whether or not a search was 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 pursu421 Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat.

211, 18 U.S.C. §§ 2510–20.

422 The 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).

423 389 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).

424 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 surveillance power with respect to the activities of foreign powers, within or without

this country.” Id. at 308.

AMENDMENT 4—SEARCHES AND SEIZURE 1451
ant to warrants were reasonable. The Government’s duty to preserve

the national security did not override the guarantee 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.425 This protection was even

more needed in “national security cases” than in cases of “ordinary” crime, the Justice continued, because 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.426 Rejected also was the argument that courts

could not appreciate the intricacies of investigations in the area of

national security or preserve the secrecy which is required.427

The question of the scope of the President’s constitutional powers, if any, remains judicially unsettled.428 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 acquire

foreign intelligence information provided that the communications

to be monitored are exclusively between or among foreign powers

425 The 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 right 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. . . .” 407

U.S. at 322–23.

426 407 U.S. at 313–24.

427 407 U.S. at 320.

428 See 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 Ding 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).

1452 AMENDMENT 4—SEARCHES AND SEIZURE
and there is no substantial likelihood any “United States person”

will be overheard.429

Enforcing the Fourth Amendment: The Exclusionary Rule

The Fourth Amendment declares a right to be free from unreasonable searches and seizures, but how this right translates into

concrete terms is not specified. Several possible methods of enforcement have been suggested, but only one—the exclusionary rule—

has been applied with any frequency by the Supreme Court, and

Court in recent years has limited its application.

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.430 A police officer who makes an illegal search and

seizure is subject to internal departmental discipline, which may

be backed up by the oversight of police review boards in the few

jurisdictions that have adopted them, but, again, the examples of

disciplinary actions are exceedingly rare.431

Civil remedies are also available. 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,

or against the Federal Government under the Federal Tort Claims

Act.432 Moreover, police officers acting under color of state law who

violate a person’s Fourth Amendment rights are subject to a suit in

federal court for damages and other remedies 433 under a civil rights

statute.434 Although federal officers and others acting under color

429 Foreign Intelligence Surveillance Act of 1978, Pub. L. 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).

430 Edwards, Criminal Liability for Unreasonable Searches and Seizures, 41 VA.

L. REV. 621 (1955).

431 Goldstein, Police Policy Formulation: A Proposal for Improving Police Performance, 65 MICH. L. REV. 1123 (1967).

432 28 U.S.C. §§ 1346(b), 2671–2680. Section 2680(h) prohibits suits against the

Federal Government for false arrest and specified other intentional torts, but contains an exception “with regard to acts or omissions of investigative or law enforcement officials of the United States Government.”

433 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).

434 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

AMENDMENT 4—SEARCHES AND SEIZURE 1453
of federal law are not subject to this statute, the Supreme Court

has held that a right to damages for a violation of Fourth Amendment rights arises by implication and that this right is enforceable

in federal courts.435

Although a damages remedy might be made more effectual,436

legal and practical problems stand in the way.437 Law enforcement

officers have available to them the usual common-law defenses, the

most important of which is the claim of good faith.438 Such “good

faith” claims, however, are not based on the subjective intent of the

officer. Instead, officers are entitled to qualified immunity “where

clearly established law does not show that the search violated the

Fourth Amendment,” 439 or where they had an objectively reasonable belief that a warrantless search later determined to violate the

Fourth Amendment was supported by probable cause or exigent circumstances.440 On the practical side, persons subjected to illegal artest is “whether the officers’ actions are ‘objectively reasonable’ under the facts and

circumstances confronting them.” Graham v. Connor, 490 U.S. 386, 397 (1989) (cited

with approval in Scott v. Harris, 550 U.S. 372, 381 (2007), in which a police officer’s

ramming a fleeing motorist’s car from behind in an attempt to stop him was found

reasonable).

435 Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). The possibility

had been hinted at in Bell v. Hood, 327 U.S. 678 (1946).

436 See, 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 a statute allowing

suit against the government in a special tribunal and a statutory remedy in lieu of

the exclusionary rule.

437 Foote, Tort Remedies for Police Violations of Individual Rights, 39 MINN. L.

REV. 493 (1955).

438 This 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).

439 Pearson v. Callahan, 555 U.S. ___, No. 07–751, slip op. (2009), quoted in Safford Unified School District #1 v. Redding, 557 U.S. ___, No. 08–479, slip op. at 11

(2009). In Saucier v. Katz, 533 U.S. 194 (2001), the Court had mandated a two-step

procedure to determine whether an officer has qualified immunity: first, a determination whether the officer’s conduct violated a constitutional right, and then a determination whether the right had been clearly established. In Pearson, the Court held

“that, while the sequence set forth [in Saucier] is often appropriate, it should no

longer be regarded as mandatory. The judges of the district courts and the courts of

appeals should be permitted to exercise their sound discretion in deciding which of

the two prongs of the qualified immunity analysis should be addressed first in light

of the circumstances in the particular case at hand.” 555 U.S. ___, No. 07–751, slip

op. at 10. See also Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

440 Anderson v. Creighton, 483 U.S. 635 (1987). The qualified immunity inquiry

“has a further dimension” beyond what is required in determining whether a police

officer used excessive force in arresting a suspect: the officer may make “a reasonable mistake” in his assessment of what the law requires. Saucier v. Katz, 533 U.S.

194, 205–06 (2001). See also Brosseau v. Haugen, 543 U.S. 194, 201 (2004) (because

cases create a “hazy border between excessive and acceptable force,” an officer’s misunderstanding as to her authority to shoot a suspect attempting to flee in a vehicle

was not unreasonable); Malley v. Briggs, 475 U.S. 335, 345 (1986) (qualified immu1454 AMENDMENT 4—SEARCHES AND SEIZURE
rests and searches and seizures are often disreputable persons toward whom juries are unsympathetic, or they are indigent and unable

to sue. 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,

441 which, as 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 selfincrimination provision to the Fourth Amendment’s protections to

derive a rule that required exclusion of the compelled evidence because the defendant had been compelled to incriminate himself by

producing it.442 Boyd was closely limited to its facts and an 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.443

Nevertheless, ten years later the common-law view was itself

rejected and an exclusionary rule propounded in Weeks v. United

nity protects police officers who applied for a warrant unless “a reasonably welltrained 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”). But

see Mullenix v. Luna, 577 U.S. ___, No. 14–1143, slip op. at 8 (2015) (per curiam)

(“The Court has . . . never found the use of deadly force in connection with a dangerous car chase to violate the Fourth Amendment, let alone be the basis for denying qualified immunity.”).

441 116 U.S. 616 (1886).

442 “We have already noticed the intimate relation between the two Amendments. They throw great light on each other. For the ‘unreasonable searches and

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.” 116 U.S. at 633. It was

this use 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. See discussion, supra, under

“Property Subject to Seizure.”

443 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).

AMENDMENT 4—SEARCHES AND SEIZURE 1455
States.

444 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 such as those sought to be

compelled in Boyd. 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 judgments 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.” 445

The basis of the ruling is ambiguous, but seems to have been an

assumption that admission of illegally seized evidence would itself

violate the Fourth 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 Constitution. 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.” 446

Because the Fourth Amendment does not restrict the actions of

state officers,447 there was originally no question about the application of an exclusionary rule in state courts 448 as a mandate of federal constitutional policy.449 But, in Wolf v. Colorado,

450 a unanimous Court held that freedom from unreasonable searches and seizures

444 232 U.S. 383 (1914).

445 232 U.S. at 392.

446 232 U.S. at 393.

447 Smith v. Maryland, 59 U.S. (18 How.) 71, 76 (1855); National Safe Deposit

Co. v. Stead, 232 U.S. 58, 71 (1914).

448 The 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).

449 During 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

1456 AMENDMENT 4—SEARCHES AND SEIZURE
was such a fundamental right as to be protected against state violations by the Due Process Clause of the Fourteenth Amendment.451 However, the Court held that the right thus guaranteed

did not require that the exclusionary rule be applied in the state

courts, because 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 by the Due Process Clause a State’s reliance upon other methods which, if consistently enforced, would be equally effective.” 452

It developed, however, that the Court had not vested in the states

total discretion with 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,

453 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.” 454 The

Rochin standard was limited in Irvine v. California,

455 in which defendant was convicted of bookmaking activities on the basis of evidence secured by police who repeatedly broke into his house and

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,

because 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).

450 338 U.S. 25 (1949).

451 “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.” 338 U.S. at 27–28.

452 338 U.S. at 31.

453 342 U.S. 165 (1952). The police had initially entered defendant’s house without a warrant. Justices Black and Douglas concurred in the result on selfincrimination grounds.

454 342 U.S. at 172.

455 347 U.S. 128 (1954).

AMENDMENT 4—SEARCHES AND SEIZURE 1457
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.456

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.457

Then, in Mapp v. Ohio,

458 the Court held that the exclusionary

rule applied 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.” 459 The Court

further held that, because 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.460

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

456 347 U.S. 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.

457 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 have been reaffirmed directly in a Fourth Amendment case. Schmerber v. California, 384 U.S. 757 (1966).

458 367 U.S. 643 (1961).

459 367 U.S. 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).

460 Ker v. California, 374 U.S. 23 (1963).

1458 AMENDMENT 4—SEARCHES AND SEIZURE
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 Boyd461

the Court fused the search and seizure clause with the provision of

the Fifth Amendment protecting against compelled self-incrimination.

In Weeks v. United States,

462 though the Fifth Amendment was mentioned, the holding seemed clearly to be based on the Fourth Amendment. Nevertheless, in opinions following Weeks the Court clearly

identified the basis for the exclusionary rule as the SelfIncrimination Clause of the Fifth Amendment.463 Then, in Mapp v.

Ohio,

464 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.’ ” 465 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, because the latter

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

462 232 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.

463 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 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.

464 367 U.S. 643, 656 (1961). Wolf v. Colorado, 338 U.S. 25, 28 (1949), also ascribed the rule to the Fourth Amendment exclusively.

465 Mapp v. Ohio, 367 U.S. 643, 648 (1961) (emphasis added).

AMENDMENT 4—SEARCHES AND SEIZURE 1459
could not constitutionally be extended to the state courts.466 In fact,

in Wolf v. Colorado,

467 in declining to extend the exclusionary rule

to the states, Justice Frankfurter seemed to find the rule to be based

on the Court’s supervisory powers. Mapp establishes that the rule

is of constitutional origin, 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.468 These suggestions were often combined with a rationale emphasizing “judicial integrity” as a reason to reject the proffer of such evidence.469 Yet the Court permitted such evidence to be

introduced into trial courts when the defendant lacked “standing”

to object to the search and seizure that produced the evidence 470

or when the search took place before the announcement of the deci466 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).

467 Weeks “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). See also id. at 678 (Justice Harlan dissenting);

Elkins v. United States, 364 U.S. 206, 216 (1960) (Justice Stewart for the Court).

468 “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.”

469 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).

470 See “Operation of the Rule: Standing,” infra.

1460 AMENDMENT 4—SEARCHES AND SEIZURE
sion extending the exclusionary rule to the states.471 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.” 472 “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.” 473

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.474 By the early 1980s,

a majority of Justices had stated a desire either to abolish the rule

or to sharply curtail its operation,475 and numerous opinions had

rejected all doctrinal bases other than deterrence.476 At the same

471 Linkletter v. Walker, 381 U.S. 618 (1965).

472 Elkins v. United States, 364 U.S. 206, 217 (1960).

473 Linkletter v. Walker, 381 U.S. 618, 636–37 (1965). The Court advanced other

reasons for its decision as well. Id. at 636–40.

474 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 criticism and support, with citation to the literature, see 1 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A

TREATISE ON THE FOURTH AMENDMENT § 1.2 (4th ed. 2004).

475 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”).

476 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.

Calandra, 414 U.S. at 354, and the exclusionary rule does not “cure the invasion of

the defendant’s rights which he has already suffered.” Stone v. Powell, 428 U.S. at

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, 428 U.S. at 458 n.35;

United States v. Calandra, 414 U.S. at 347, 354; United States v. Peltier, 422 U.S.

at 538; Michigan v. Tucker, 417 U.S. 433, 450 n.25 (1974).

AMENDMENT 4—SEARCHES AND SEIZURE 1461
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.477 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,” 478 as

well as free guilty defendants.479 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.” 480

Although the exclusionary rule has not been completely repudiated, its use has been substantially curbed. For instance, defendants who themselves were not subjected to illegal searches and

seizures may not object to the introduction of evidence illegally obtained from co-conspirators or codefendants,481 and even a defendant whose rights have been infringed may find the evidence admitted, not as proof of guilt, but to impeach his testimony.482 Further,

evidence obtained through a wrongful search and seizure may sometimes be used directly in the criminal trial, if the prosecution can

show a sufficient attenuation of the link between police misconduct

and obtaining the evidence.483 Defendants who have been convicted after trials in which they were given a full and fair opportu477 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).

478 Stone v. Powell, 428 U.S. at 490, 491.

479 Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 416 (1971) (Chief

Justice Burger dissenting).

480 Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920).

481 E.g., Rakas v. Illinois, 439 U.S. 128 (1978); United States v. Padilla, 508 U.S.

77 (1993) (only persons whose privacy or property interests are violated may object

to a search on Fourth Amendment grounds; exerting control and oversight over property by virtue of participation in a criminal conspiracy does not alone establish such

interests); 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.

482 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).

483 Wong 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.

1462 AMENDMENT 4—SEARCHES AND SEIZURE
nity to raise claims of Fourth Amendment violations may not subsequently raise those claims on federal habeas corpus because, the

Court found, the costs outweigh the minimal deterrent effect.484

The exclusionary rule is inapplicable in parole revocation hearings,485 and a violation of the “knock-and-announce” rule (the procedure that police officers must follow to announce their presence

before entering a residence with a lawful warrant) 486 does not require suppression of the evidence gathered pursuant to a search.487

If an arrest or a search that was valid at the time it took place

becomes bad through the subsequent invalidation of the statute under which the arrest or search was made, the Court has held that

evidence obtained thereby is nonetheless admissible.488 In other cases,

Alabama, 457 U.S. 687 (1982); Utah v. Strieff, 579 U.S. ___, No. 14–1373, slip op.

(2016). 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 a warrant obtained after an illegal entry was admitted because there had been an independent basis for issuance of the

warrant. This rule also applies 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).

484 Stone v. Powell, 428 U.S. 465, 494 (1976).

485 Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357 (1998).

486 The “knock and announce” requirement is codified at 18 U.S.C. § 3109, and

the Court has held that the rule is also part of the Fourth Amendment reasonableness inquiry. Wilson v. Arkansas, 514 U.S. 927 (1995).

487 Hudson v. Michigan, 547 U.S. 586 (2006). Writing for the majority, Justice

Scalia explained that the exclusionary rule was inappropriate because the purpose

of the knock-and-announce requirement was to protect human life, property, and the

homeowner’s privacy and dignity; the requirement has never protected an individual’s interest in preventing seizure of evidence described in a warrant. Id. at 594.

Furthermore, the Court believed that the “substantial social costs” of applying the

exclusionary rule would outweigh the benefits of deterring knock-and-announce violations by applying it. Id. The Court also reasoned that other means of deterrence,

such as civil remedies, were available and effective, and that police forces have become increasingly professional and respectful of constitutional rights in the past halfcentury. Id. at 599. Justice Kennedy wrote a concurring opinion emphasizing that

“the continued operation of the exclusionary rule . . . is not in doubt.” Id. at 603. In

dissent, Justice Breyer asserted that the majority’s decision “weakens, perhaps destroys, much of the practical value of the Constitution’s knock-and-announce protection.” Id. at 605.

488 Michigan 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 this

effect, however, Torres v. Puerto Rico, 442 U.S. 465 (1979); Ybarra v. Illinois, 444

AMENDMENT 4—SEARCHES AND SEIZURE 1463
a grand jury witness was required to answer questions even though

the questions were based on evidence obtained from an unlawful

search and seizure,489 and federal tax authorities were permitted

in a civil proceeding to use evidence that had been unconstitutionally seized from a defendant by state authorities.490

A significant curtailment of the exclusionary rule came in 1984

with the adoption of a “good faith” exception. In United States v.

Leon,

491 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 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].” 492 “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.493 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.” 494 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).

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. Similarly, the exclusionary rule does not require suppression of

evidence that was seized incident to an arrest that was the result of a clerical error

by a court clerk. Arizona v. Evans, 514 U.S. 1 (1995).

489 United States v. Calandra, 414 U.S. 338 (1974).

490 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).

491 468 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).

492 468 U.S. at 907.

493 468 U.S. at 916–17.

494 468 U.S. at 919, 921.

1464 AMENDMENT 4—SEARCHES AND SEIZURE
The Court applied the Leon standard in Massachusetts v. Sheppard,

495 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. Then, 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 to violate the Fourth Amendment.496 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.497 Finally, the Court has held that the exclusionary rule

does not apply if the police conduct a search in objectively reasonable reliance on binding judicial precedent, even a defendant successfully challenges that precedent.498

The Court also applied Leon to allow the admission of evidence

obtained incident to an arrest that was based on a mistaken belief

that there was probable cause to arrest, where the mistaken belief

had resulted from a negligent bookkeeping error by a police employee other than the arresting officer. In Herring v. United States,

499

a police employee had failed to remove from the police computer

database an arrest warrant that had been recalled five months earlier, and the arresting officer as a consequence mistakenly believed

that the arrest warrant remained in effect. The Court upheld the

495 468 U.S. 981 (1984).

496 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.” Id. at 355.

497 Dissenting 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.

498 Davis v. United States, 564 U.S. ___, No. 09–11328, slip op. (2011). Justice

Breyer, in dissent, points out that under Griffith v. Kentucky, 479 U.S. 314 (1987),

“a new rule for the conduct of criminal prosecutions is to be applied retroactively to

all cases, state or federal, pending on direct review or not yet final . . . .” Thus, the

majority opinion in Davis would allow the incongruous result that a defendant could

prove his Fourth Amendment rights had been violated, but could still be left without a viable remedy. Id. at 2 (Breyer, J., dissenting).

499 555 U.S. ___, No. 07–513, slip op. (2009), Herring was a five-to-four decision,

with two dissenting opinions.

AMENDMENT 4—SEARCHES AND SEIZURE 1465
admission of evidence because the error had been “the result of isolated negligence attenuated from the arrest.” 500 Although the Court

did “not suggest that all recordkeeping errors by the police are immune from the exclusionary rule,” it emphasized that, “[t]o trigger

the exclusionary rule, police conduct must be sufficiently deliberate

that exclusion can meaningfully deter it, and sufficiently culpable

that such deterrence is worth the price paid by the justice system.

As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.” 501

Herring is significant because previous cases applying the goodfaith exception to the exclusionary rule have involved principally

Fourth Amendment violations not by the police, but by other governmental entities, such as the judiciary or the legislature. Although the error in Herring was committed by a police employee

other than the arresting officer, the introduction of a balancing test

to evaluate police conduct raises the possibility that even Fourth

Amendment violations caused by the negligent actions of an arresting officer might in the future evade the application of the exclusionary rule.502

For instance, 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.503 It is also unclear what a good-faith exception would

500 129 S. Ct. at 698.

501 129 S. Ct. at 703, 702. Justice Ginsburg, in a dissent joined by Justices Stevens, Souter, and Breyer, stated that “the Court’s opinion underestimates the need

for a forceful exclusionary rule and the gravity of recordkeeping errors in law enforcement.” Id. at 706. Justice Ginsburg added that the majority’s suggestion that

the exclusionary rule “is capable of only marginal deterrence when the misconduct

at issue is merely careless, not intentional or reckless . . . runs counter to a foundational premise of tort law—that liability for negligence, i.e., lack of due care, creates

an incentive to act with greater care.” Id. at 708. Justice Breyer, in a dissent joined

by Justice Souter, noted that, although the Court had previously held that recordkeeping errors made by a court clerk do not trigger the exclusionary rule, Arizona v.

Evans, 514 U.S. 1 (1995), he believed that recordkeeping errors made by the police

should trigger the rule, as the majority’s “case-by-case, multifactored inquiry into

the degree of police culpability” would be difficult for the courts to administer. Id. at

711.

502 See Leon, 468 U.S. 897, 926 (1984) (articulating, in dicta, an “intentional or

reckless” misconduct standard for obviating “good faith” reliance on an invalid warrant).

503 The thrust of the analysis in Leon was with the 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

1466 AMENDMENT 4—SEARCHES AND SEIZURE
mean in the context of a warrantless search, because 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.504 The Court’s increasing

willingness to uphold warrantless searches as not “unreasonable”

under the Fourth Amendment, however, may reduce the frequency

with which the good-faith issue arises in the context of the exclusionary rule.505

Another significant curtailment of the exclusionary rule involves the attenuation exception, which permits the use of evidence discovered through the government’s unconstitutional conduct if the “causal link” between that misconduct and the discovery

of the evidence is seen by the reviewing courts as sufficiently remote or has been interrupted by some intervening circumstances.506 In a series of decisions issued over several decades, the

Court has invoked this exception in upholding the admission of challenged evidence. For example, in Wong Sun v. United States, the

Court upheld the admission of an unsigned statement made by a

defendant who initially had been unlawfully arrested because, thereafter, the defendant was lawfully arraigned, released on his own

recognizance, and, only then, voluntarily returned several days later

to make the unsigned statement.507 Similarly, in its 1984 decision

in Segura v. United States, the Court upheld the admission of evidence obtained following an illegal entry into a residence because

the evidence was seized the next day pursuant to a valid search

warrant that had been issued based on information obtained by law

enforcement before the illegal entry.508

a search or seizure was in accord with the Fourth Amendment’ ”; and id. at 919:

“[the rule] cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity.”

504 See 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”).

505 See, 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); Arizona v. Gant, 556 U.S. ___, No. 07–542 (U.S. Apr. 21

(2009), slip op. at 18 (the Belton rule applies “only if the arrestee is within reaching

distance of the passenger compartment at the time of the search or it is reasonable

to believe that the vehicle contains evidence of the offense of arrest”); United States

v. Ross, 456 U.S. 798 (1982) (upholding warrantless search of movable container found

in a locked car trunk).

506 Utah v. Strieff, 579 U.S. ___, No. 14–1373, slip op. at 5 (2016).

507 371 U.S. 471, 491 (1963).

508 468 U.S. 796, 813–16 (1984).

AMENDMENT 4—SEARCHES AND SEIZURE 1467
More recently, in its 2016 decision in Utah v. Strieff, the Court

rejected a challenge to the admission of certain evidence obtained

as the result of an unlawful stop on the grounds that the discovery

of an arrest warrant after the stop attenuated the connection between the unlawful stop and the evidence seized incident to the defendant’s arrest.509 As a threshold matter, the Court rejected the

state court’s view that the attenuation exception applies only in cases

involving “an independent act of a defendant’s ‘free will.’ ” 510 Instead, the Court relied on three factors it had set forth in a Fifth

Amendment case, Brown v. Illinois,

511 to determine whether the subsequent lawful acquisition of evidence was sufficiently attenuated

from the initial misconduct: (1) the “temporal proximity” between

the two acts; (2) the presences of intervening circumstances; and

(3) the purpose and flagrancy of the official misconduct.512 On the

whole, the Strieff Court, reiterating that “suppression of evidence

should be the courts’ “last resort, not our first impulse,” 513 concluded that the circumstances of the case weighed in favor of the

admission of the challenged evidence. While the closeness in time

between the initial stop and the search was seen by the Court as

favoring suppression,514 the presence of intervening circumstances

in the form of a valid warrant for the defendant’s arrest strongly

favored the state,515 and in the Court’s view, there was no indication that this unlawful stop was part of any “systematic or recurrent police misconduct.” 516 In particular, the Court, relying on the

second factor, emphasized that the discovery of a warrant “broke

the causal chain” between the unlawful stop and the discovery of

the challenged evidence.517 As such, the Strieff Court appeared to

establish a rule that the existence of a valid warrant, “predat[ing

the] investigation” and “entirely unconnected with the stop,” gener509 Strieff, slip op. at 1. The state in Strieff had conceded that law enforcement

lacked reasonable suspicion for the stop, id. at 2, and the Supreme Court characterized the search of the defendant following his arrest as a lawful search incident to

arrest, id. at 8.

510 Id. at 5 (quoting State v. Strieff, 457 P.3d 532, 544 (Utah 2015)).

511 See 422 U.S. 590, 603–04 (1970) (holding that the state supreme court in

this case had erroneously concluded that Miranda warnings always served to purge

the taint of an illegal arrest).

512 See Strieff, slip op. at 6–9.

513 Id. at 8 (quoting Hudson v. Michigan, 547 U.S. 586, 591 (2006) (internal quotations omitted)).

514 Id. at 6 (noting that “only minutes” passed between the unlawful stop and

the discovery of the challenged evidence).

515 Id. at 6–7. The Strieff Court emphasized that it viewed the warrant as “compelling” the officer to arrest the suspect. Id. at 9; see also id. at 7 (similar).

516 Id. at 8.

517 Id. at 9.

1468 AMENDMENT 4—SEARCHES AND SEIZURE
ally favors finding sufficient attenuation between the unlawful conduct and the discovery of evidence.518

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.” 519 Subsequently,

the Court 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.” 520 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.” 521

The Katz reasonable expectation of privacy rationale has now

displaced property-ownership concepts that previously might have

supported either standing to suppress or the establishment of an

interest that has been invaded. Thus, it is no longer sufficient 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.522 Also, it is no longer sufficient that

one merely be lawfully on the premises in order to be able to object

518 Id. at 7.

519 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).

520 Rakas v. Illinois, 439 U.S. 128, 139 (1978).

521 439 U.S. at 140.

522 Previously, when ownership or possession was the issue, such as a charge of

possessing contraband, the Court accorded “automatic standing” to one on the basis,

AMENDMENT 4—SEARCHES AND SEIZURE 1469
to an illegal search; rather, one must show some legitimate interest in the premises that the search invaded.523 The same illegal search

might, therefore, invade the rights of one person and not of another.524 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.

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, 261–65 (1960). See also United States

v. Jeffers, 342 U.S. 48 (1951). In Simmons v. United States, 390 U.S. 377 (1968),

however, 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 of

the 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).

523 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). United States

v. Padilla, 508 U.S. 77 (1993) (only persons whose privacy or property interests are

violated may object to a search on Fourth Amendment grounds; exerting control and

oversight over property by virtue of participation in a criminal conspiracy does not

alone establish such interests). Jones v. United States, 362 U.S. 257 (1960), had established the 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).

524 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).

1470 AMENDMENT 4—SEARCHES AND SEIZURE