1279

FOURTH AMENDMENT 

SEARCH AND SEIZURE 

CONTENTS

Page

Search and Seizure .................................................................................................................... 1281 

History and Scope of the Amendment .............................................................................. 1281 

History .......................................................................................................................... 1281 

Scope of the Amendment ............................................................................................ 1283 

The Interest Protected ................................................................................................ 1287 

Arrests and Other Detentions .................................................................................... 1292 

Searches and Inspections in Noncriminal Cases ...................................................... 1294 

Searches and Seizures Pursuant to Warrant ................................................................... 1299 

Issuance by Neutral Magistrate ................................................................................. 1299 

Probable Cause ............................................................................................................ 1301

Particularity ................................................................................................................. 1304

First Amendment Bearing on Probable Cause and Particularity ........................... 1305 

Property Subject to Seizure ........................................................................................ 1307 

Execution of Warrants ................................................................................................ 1310 

Valid Searches and Seizures Without Warrants ............................................................. 1313 

Detention Short of Arrest: Stop-and-Frisk ................................................................ 1313 

Search Incident to Arrest ........................................................................................... 1319 

Vehicular Searches ...................................................................................................... 1323 

Vessel Searches ........................................................................................................... 1327

Consent Searches ........................................................................................................ 1328 

Border Searches ........................................................................................................... 1329

‘‘Open Fields’’ ............................................................................................................... 1330

‘‘Plain View’’ ................................................................................................................. 1331 

Public Schools .............................................................................................................. 1332

Government Offices ..................................................................................................... 1333 

Prisons and Regulation of Probation ......................................................................... 1333 

Drug Testing ................................................................................................................ 1334

Electronic Surveillance and the Fourth Amendment ...................................................... 1336 

The Olmstead Case ..................................................................................................... 1336 

Federal Communications Act ..................................................................................... 1337 

Nontelephonic Electronic Surveillance ...................................................................... 1338 

The Berger and Katz Cases ........................................................................................ 1338 

Warrantless ‘‘National Security’’ Electronic Surveillance ........................................ 1341 

Enforcing the Fourth Amendment: The Exclusionary Rule ............................................ 1343 

Alternatives to the Exclusionary Rule ....................................................................... 1343 

Development of the Exclusionary Rule ...................................................................... 1345 

The Foundations of the Exclusionary Rule ............................................................... 1347 

Narrowing Application of the Exclusionary Rule ..................................................... 1351 

Operation of the Rule: Standing ................................................................................ 1356 

1281

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

SCHWARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 199, 205-06 (1971). 2 5 Coke’s 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). 

SEARCH AND SEIZURE 

FOURTH AMENDMENT 

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

houses, papers, and effects, against unreasonable searches and 

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

upon probable cause, supported by Oath or affirmation, and 

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

SEARCH AND SEIZURE 

History and Scope of the Amendment 

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

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

embodying as it did the protection against the utilization of the 

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

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

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

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

execution of process, Semayne’s Case nonetheless recognized the 

right of the homeowner to defend his house against unlawful entry 

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

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

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

actions against state officers who, pursuant to general warrants, 

had raided many homes and other places in search of materials 

1282 AMENDMENT 4—SEARCHES AND SEIZURE 

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

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

(K.B. 1765). 5 95 Eng. 817, 818. 

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

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

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

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

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

OF THE AMERICAN REVOLUTION: STUDIES INSCRIBED TO EVARTS BOUTELL GREENE 40

(R. Morris, ed., 1939). 

connected with John Wilkes’ polemical pamphlets attacking not 

only governmental policies but the King himself. 4

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

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

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

it authorized subversive ‘‘of all the comforts of society,’’ and the 

issuance of a warrant for the seizure of all of a person’s papers 

rather than only those alleged to be criminal in nature ‘‘contrary 

to the genius of the law of England.’’ 5 Besides its general character, said the court, the warrant was bad because it was not 

issued on a showing of probable cause and no record was required 

to be made of what had been seized. Entick v. Carrington, the Supreme Court has said, is a ‘‘great judgment,’’ ‘‘one of the landmarks 

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

Framers meant in writing the Fourth Amendment. 6

In the colonies, smuggling rather than seditious libel afforded 

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

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

were general warrants authorizing the bearer to enter any house 

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

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

The writs once issued remained in force throughout the lifetime of 

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

George II in 1760, the authorities were required to obtain the 

issuance of new writs, opposition was led by James Otis, who attacked such writs on libertarian grounds and who asserted the invalidity of the authorizing statutes because they conflicted with 

English constitutionalism. 7 Otis lost and the writs were issued and 

utilized, but his arguments were much cited in the colonies not 

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

AMENDMENT 4—SEARCHES AND SEIZURE 1283

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

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

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

HISTORY AND DEVELOPMENT OF THE FOURTH AMENDMENT TO THE UNITED STATES

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

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

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

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

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

Scope of the Amendment.—The language of the provision 

which became the Fourth Amendment underwent some modest 

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

that the changes reflected more than a modest significance in the 

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

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

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

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

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

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

amendment was inserted in the language before passage by the 

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

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

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

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

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

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

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

to warrants issued under the prescribed safeguards, or whether the 

two clauses are independent, so that searches under warrant must 

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

searches under the first clause which need not comply with the second clause. 11 This issue has divided the Court for some time, has 

1284 AMENDMENT 4—SEARCHES AND SEIZURE 

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

being the object of a reasonable search and seizure.’’) 12 Approval of warrantless searches pursuant to arrest first appeared in dicta 

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

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

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

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

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

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

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

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

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

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

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

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

range is an interesting and crucial matter. 

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

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

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

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

aside a conviction based on evidence seized by a warrantless search 

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

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

was set aside two years later by another reconstituted majority 

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

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

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

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

colonists and had helped speed the movement for independence. In 

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

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

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

advance judicial approval of searches and seizures through a warrant procedure.’’ 18 Exceptions to searches under warrants were to 

AMENDMENT 4—SEARCHES AND SEIZURE 1285

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

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

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

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

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

States, 389 U.S. 347, 356-58 (1967); Warden v. Hayden, 387 U.S. 294, 299 (1967). 

19 Chimel v. California, 395 U.S. 752, 762-64 (1969) (limiting scope of search incident to arrest). See also United States v. United States District Court, 407 U.S. 

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

Attorney General to authorize warrantless electronic surveillance of persons thought 

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

(although officers acted with great self-restraint and reasonably in engaging in electronic seizures of conversations from 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). 

20See, e.g., Almeida-Sanchez v. United States, 413 U.S. 266 (1973), Justices 

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

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

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

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

U.S. 499, 506 (1978); Mincey v. Arizona, 437 U.S. 385, 390 (1978) (unanimous); Arkansas v. Sanders, 442 U.S. 753, 758 (1979); United States v. Ross, 456 U.S. 798, 

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

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

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

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

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

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

(1978) (warrantless search of home that was ‘‘homicide scene’’). 

be closely contained by the rationale undergirding the necessity for 

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

was similarly limited. 19

During the 1970s the Court was closely divided on which 

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

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

carefully prescribed exceptions. 21 Gradually, guided by the variable 

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

of the scope of those exceptions. 22

By 1992, it was no longer the case that the ‘‘warrants-withnarrow-exceptions’’ standard normally prevails over a ‘‘reasonableVerDate Apr<15>2004 09:55 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00005 Fmt 8222 Sfmt 8222 C:\CONAN\CON028.SGM PRFM99 PsN: CON028
1286 AMENDMENT 4—SEARCHES AND SEIZURE 

23Of the 1992 Justices, only Justice Stevens has frequently sided with the warrants-with-narrow-exceptions approach. See, e.g., Illinois v. Rodriguez, 497 U.S. 177, 

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

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

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

Seizures Without Warrants.’’ 25 New York v. Burger, 482 U.S. 691 (1987). 26 Illinois v. Rodriguez, 497 U.S. 177 (1990). 27Maryland v. Buie, 494 U.S. 325 (1990). 

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

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

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

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

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

Another matter of scope recently addressed by the Court is the 

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

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

have otherwise developed sufficient connection with [the United 

AMENDMENT 4—SEARCHES AND SEIZURE 1287

28 United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990). 

29See, 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).

30 19 Howell’s State Trials 1029, 1035, 95 Eng. Reg. 807, 817-18 (1765). 

31 Boyd v. United States, 116 U.S. 616, 627 (1886); Adams v. New York, 192 

U.S. 585, 598 (1904). 

32Thus, 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). 

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

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

a ‘‘seizure,’’ occurring typically in a criminal case, with a subsequent attempt to use judicially what was seized. 29 Whether there 

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

whether a complainant’s interests were constitutionally infringed, 

will often turn upon consideration of his interest and whether it 

was officially abused. What does the Amendment protect? Under 

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

v. Carrington. 30 ‘‘The great end for which men entered in society 

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

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

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

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

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

Fourth Amendment found easy acceptance in the Supreme Court 31

and that acceptance controlled decision in numerous cases. 32 For

1288 AMENDMENT 4—SEARCHES AND SEIZURE 

33 277 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). 34Silverman v. United States, 365 U.S. 505 (1961) (spike mike pushed through 

a party wall until it hit a heating duct). 35Warden v. Hayden, 387 U.S. 294, 304 (1967). 36Katz 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’’. 37 389 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. 38 389 U.S. at 351-52. 39Mancusi 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 

example, in Olmstead v. United States, 33 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. 34

The Court later rejected this approach, however. ‘‘The premise 

that property interests control the right of the Government to 

search and seize has been discredited. . . . We have recognized that 

the principal object of the Fourth Amendment is the protection of 

privacy rather than property, and have increasingly discarded fictional and procedural barriers rested on property concepts.’’ 35

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. 36

The test propounded in Katz is whether there is an expectation 

of privacy upon which one may ‘‘justifiably’’ rely. 37 ‘‘What a person 

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

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

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

be constitutionally protected.’’ 38 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.’’ 39

AMENDMENT 4—SEARCHES AND SEIZURE 1289

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). 40 121 S. Ct. 2038 (2001). 41 121 S. Ct. at 2043. 42 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 (1980); Rawlings v. Kentucky, 448 U.S. 98, 105-06 (1980). Bond v. United 

States, 529 U.S. 334, 338 (2000). 43 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’’). 

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

States, 40 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.’’ 41 Relying

on Katz, the Court rejected as ‘‘mechanical’’ the Government’s attempted distinction between off-the-wall and through-the-wall surveillance. Permitting all off-the-wall 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.’’ 

While the sanctity of the home has been strongly reaffirmed, 

protection of privacy in other contexts becomes more problematic. 

The two-part test that Justice Harlan suggested in Katz often provides the starting point for analysis. 42 The first element, the ‘‘subjective expectation’’ of privacy, has largely dwindled as a viable 

standard, because, as Justice Harlan noted in a subsequent case, 

‘‘our expectations, and the risks we assume, are in large part reflections of laws that translate into rules the customs and values 

of the past and present.’’ 43 As for the second element, whether one 

1290 AMENDMENT 4—SEARCHES AND SEIZURE 

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

45 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, 

121 S. Ct. 2038, 2041-42 (2001). 

46 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). 

47 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. 

48 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). 

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

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.’’ 44 Thus, protection of the home is at the apex 

of Fourth Amendment coverage because of the right associated 

with ownership to exclude others; 45 but ownership of other things, 

i.e., automobiles, does not carry a similar high degree of protection. 46 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. 47 Some expectations, the Court has held, are 

simply not those which society is prepared to accept. 48

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.’’ While Justice Harlan saw a greater need to restrain 

police officers through the warrant requirement as the intrusions 

on individual privacy grow more extensive, 49 the Court’s solicitude 

for law enforcement objectives frequently tilts the balance in the 

other direction. 

AMENDMENT 4—SEARCHES AND SEIZURE 1291

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

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

n.21 (1982). 51Katz v. United States, 389 U. S. 347, 351-52 (1967). 52Terry v. Ohio, 392 U.S. 1, 19 (1968). 53The prime example is the home, so that for entries either to search or to arrest, ‘‘the Fourth Amendment has drawn a firm line at the entrance to the house. 

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

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

States, 451 U.S. 204, 212 (1981). And see Mincey v. Arizona, 437 U.S. 385 (1978). 

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, 121 S. Ct. 2038,2045 (2001). 54One has a diminished expectation of privacy in automobiles. Arkansas v. 

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

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

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

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

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

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

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

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

also applies to a ‘‘mobile’’ home being used as a residence and not adapted for immediate vehicular use). 55 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). 

Application of this balancing test, because of the Court’s weighing in of law enforcement investigative needs 50 and the Court’s 

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

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

was originally designed to permit a determination that a Fourth 

Amendment protected interest had been invaded. 51 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.’’ 52 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; 53 if the individual has a lesser expectation of privacy, then the 

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

of the intrusion. 54 Exceptions to the warrant requirement are no 

longer evaluated solely by the justifications for the exception, e.g., 

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

to and limited by the justification for the exception. 55 The result 

1292 AMENDMENT 4—SEARCHES AND SEIZURE 

56 Ex parte Burford, 7 U.S. (3 Cr.) 448 (1806). 57Giordenello 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). 58 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). 59 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). 60Payton 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). 61 United States v. Mendenhall, 446 U.S. 544, 554 (1980) (opinion of Justice 

Stewart) (‘‘[A] person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable 

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

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

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

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

e.g., Tennessee v. Garner, 471 U.S. 1 (1985) (police officer’s fatal shooting of a fleehas been a considerable expansion, beyond what existed prior to 

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

searches.

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

against unreasonable searches was early assumed by Chief Justice 

Marshall 56 and is now established law. 57 At common law, 

warrantless arrests of persons who had committed a breach of the 

peace or a felony were permitted, 58 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. 59 However, in order to effectuate an arrest in the home, absent consent or exigent circumstances, police 

officers must have a warrant. 60 The Fourth Amendment applies to 

‘‘seizures’’ and it is not necessary that a detention be a formal arrest in order to bring to bear the requirements of warrants or probable cause in instances in which warrants may be forgone. 61 Some

AMENDMENT 4—SEARCHES AND SEIZURE 1293

ing suspect); Brower v. County of Inyo, 489 U.S. 593 (1989) (police roadblock designed to end car chase with fatal crash). 62 Adams v. Williams, 407 U.S. 143, 146-49 (1972); Delaware v. Prouse, 440 U.S. 

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

438, 440 (1980); Michigan v. Summers, 452 U.S. 692 (1981); Illinois v. McArthur, 

531 U.S. 326 (2001) (approving ‘‘securing’’ of premises, preventing homeowner from 

reentering, while search warrant obtained). 63 532 U.S. 318 (2001). 64 532 U.S. at 346-47. 65 532 U.S. at 352. 66 500 U.S. 44 (1991). 67Ker 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). 

objective justification must be shown to validate all seizures of the 

person, including seizures that involve only a brief detention short 

of arrest, although the nature of the detention will determine 

whether probable cause or some reasonable and articulable suspicion is necessary. 62

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, 63 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.’’ 64 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. 65 Thus, Atwater and County of 

Riverside v. McLaughlin 66 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. 

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. 67 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 

1294 AMENDMENT 4—SEARCHES AND SEIZURE 

68Wong 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). 69 Although there is a presumption that the illegal arrest is the cause of the subsequent confession, the presumption is rebuttable by a showing that the confession 

is the result of ‘‘an intervening . . . act of free will.’’ Wong Sun v. United States, 

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

dissipated are the time between the illegal arrest and the confession, whether there 

were intervening circumstances (such as consultation with others, Miranda warnings, etc.), and the degree of flagrancy and purposefulness of the official conduct. 

Brown v. Illinois, 422 U.S. 590 (1975) (Miranda warnings alone insufficient); 

Dunaway v. New York, 442 U.S. 200 (1979); Taylor v. Alabama, 457 U.S. 687 (1982). 

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

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

he confessed, established a sufficient intervening circumstance. 70Davis v. Mississippi, 394 U.S. 721 (1969); Taylor v. Alabama, 457 U.S. 687 

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

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

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

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

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

probable cause’’ may be permissible. 71 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). 72 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). 73 Camara v. Municipal Court, 387 U.S. 523 (1967) (home); See v. City of Seattle, 387 U.S. 541 (1967) (commercial warehouse). 

excluded. 68 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. 69 Similarly,

fingerprints and other physical evidence obtained as a result of an 

unlawful arrest must be suppressed. 70

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, 71 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. 72 But in 1967, the 

Court held in two cases that administrative inspections to detect 

building code violations must be undertaken pursuant to warrant 

if the occupant objects. 73 ‘‘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 

AMENDMENT 4—SEARCHES AND SEIZURE 1295

74 Camara v. Municipal Court, 387 U.S. 523, 530 (1967). 75 Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970); United States 

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

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

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

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

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

regular inspections. Further, warrantless inspections were needed for effective enforcement of the statute. 76 436 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. 77 Administrative warrants issued on the basis of less than probable cause but 

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

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

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

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

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

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

his private property are fully protected by the Fourth Amendment 

only when the individual is suspected of criminal behavior.’’ 74 Certain administrative inspections utilized to enforce regulatory 

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

however, exempt from the Fourth Amendment warrant requirement and may be authorized simply by statute. 75

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

Inc., 76 in which the Court held violative of the Fourth Amendment 

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

of regulations, without a warrant or other legal process. The liquor 

and firearms exceptions were distinguished on the basis that those 

industries had a long tradition of close government supervision, so 

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

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

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

with warrantless inspections. Additionally, OSHA inspectors had 

unbounded discretion in choosing which businesses to inspect and 

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

actions and certainly with no assurances as to limitation on scope 

and standards of inspections. Further, warrantless inspections 

were not necessary to serve an important governmental interest, 

inasmuch as most businesses would consent to inspection and it 

was not inconvenient to require OSHA to resort to an administrative warrant in order to inspect sites where consent was refused. 77

1296 AMENDMENT 4—SEARCHES AND SEIZURE 

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). 78 452 U.S. 594 (1981). 79There is no suggestion that warrantless inspections of homes is broadened. Id. 

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

e.g., Michigan v. Tyler , 436 U.S. 499 (1978) (no warrant required for entry by firefighters to fight fire; once there, firefighters may remain for reasonable time to investigate the cause of the fire). 80Donovan v. Dewey , 452 U.S. 594, 598-99 (1981). 81 Id. at 596-97, 604-05. Pursuant to the statute, however, the Secretary has 

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

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

In Donovan v. Dewey, 78 however, Barlow’s was substantially 

limited and a new standard emerged permitting extensive governmental inspection of commercial property, 79 absent warrants. 

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

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

provides for absence of advanced notice and requires the Secretary 

of Labor to institute court actions for injunctive and other relief in 

cases in which inspectors are denied admission. Sustaining the 

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

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

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

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

adequately protected by regulatory schemes authorizing 

warrantless inspections.’’ 80

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

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

specified a regular number of inspections pursuant to standards. 

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

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

the Secretary had to bring if consent was denied. 81 The standard 

AMENDMENT 4—SEARCHES AND SEIZURE 1297

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

admit. 436 U.S. at 317 & n.12. 82Donovan 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). 83 482 U.S. 691 (1987). 84 482 U.S. at 712 (emphasis original). 85 436 U.S. 499 (1978). 

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. 82 Dewey suggests, therefore, that warrantless inspections of commercial establishments are 

permissible so long as the legislature carefully drafts its statute. 

Dewey was applied in New York v. Burger 83 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: 

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

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

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

declared; in such circumstances warrantless administrative 

searches are permissible in spite of the fact that evidence of criminal activity may well be uncovered in the process. 84

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

searches. Thus, in Michigan v. Tyler, 85 it subdivided the process by 

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

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

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

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

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

be made pursuant to warrant procedures governing administrative 

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

finds probable cause to believe that arson has occurred and reVerDate Apr<15>2004 09:55 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00017 Fmt 8222 Sfmt 8222 C:\CONAN\CON028.SGM PRFM99 PsN: CON028
1298 AMENDMENT 4—SEARCHES AND SEIZURE 

86The Court also held that, after the fire was extinguished, if fire investigators 

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

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

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

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

residence begun at 1:30 p.m. when fire had been extinguished at 7 a.m.). 87Wyman v. James, 400 U.S. 309 (1971). It is not clear what rationale the majority utilized. It appears to have proceeded on the assumption that a ‘‘home visit’’ 

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

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

recent cases. 88Soldal 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’’’). 89Griffin 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.’’ 90Skinner, 489 U.S. at 627. 

quires further access to gather evidence for a possible prosecution, 

he must obtain a criminal search warrant. 86

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. 87 In another unusual 

case, the Court held that a sheriff’s assistance to a trailer park 

owner in disconnecting and removing a mobile home constituted a 

‘‘seizure’’ of the home. 88

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.’’ 89 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. 90

AMENDMENT 4—SEARCHES AND SEIZURE 1299

91Delaware 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). 92 428 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. 93While 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). 94Most 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). 

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. 91 On the other hand, in South Dakota v. 

Opperman, 92 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. 93 While a warrant is 

issued ex parte, its validity may be contested in a subsequent suppression hearing if incriminating evidence is found and a prosecution is brought. 94

Issuance by Neutral Magistrate.—In numerous cases, the 

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

1300 AMENDMENT 4—SEARCHES AND SEIZURE 

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

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

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

(1977); Lo-Ji Sales v. New York, 442 U.S. 319, 326 (1979). 96 Johnson v. United States, 333 U.S. 10, 13-14 (1948). 97Shadwick v. City of Tampa, 407 U.S. 345, 354 (1972). 98 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 

open-ended search warrant for obscene materials, accompanied police during its execution, and made probable cause determinations at the scene as to particular items). 99 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. 100 Id. at 350-54 (placing on defendant the burden of demonstrating that the 

issuing official lacks capacity to determine probable cause). See also Connally v. 

‘‘judicial officer’’ or a ‘‘magistrate.’’ 95 ‘‘The point of the Fourth 

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

that it denies law enforcement the support of the usual inferences 

which reasonable men draw from evidence. Its protection consists 

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

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

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

in the discretion of police officers.’’ 96 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.’’ 97 The first test cannot be met 

when the issuing party is himself engaged in law enforcement activities, 98 but the Court has not required that an issuing party 

have that independence of tenure and guarantee of salary which 

characterizes federal judges. 99 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. 100

AMENDMENT 4—SEARCHES AND SEIZURE 1301

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). 101Dumbra v. United States, 268 U.S. 435, 439, 441 (1925). ‘‘[T]he term ‘probable cause’. . . means less than evidence which would justify condemnation.’’ Lock 

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

U.S. 498, 504-05 (1925). It may rest upon evidence which is not legally competent 

in a criminal trial, Draper v. United States, 358 U.S. 307, 311 (1959), and it need 

not be sufficient to prove guilt in a criminal trial. Brinegar v. United States, 338 

U.S. 160, 173 (1949). See United States v. Ventresca, 380 U.S. 102, 107-08 (1965). 102 Brinegar v. United States, 338 U.S. 160, 175 (1949). 103 United States v. Ventresca , 380 U.S. 102, 108-09 (1965). 104 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). 105 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). 

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

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

An applicant for a warrant must present to the magistrate facts 

sufficient to enable the officer himself to make a determination of 

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

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

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

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

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

justifying the issuance of a warrant.’’ 101 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.’’ 102 Warrants are favored in the law and utilization of 

them will not be thwarted by a hypertechnical reading of the supporting affidavit and supporting testimony. 103 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.’’ 104 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. 105

1302 AMENDMENT 4—SEARCHES AND SEIZURE 

106 Byars v. United States, 273 U.S. 28 (1927) (affiant stated he ‘‘has good reason to believe and does believe’’ that defendant has contraband materials in his possession); Giordenello v. United States, 357 U.S. 480 (1958) (complainant merely 

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

v. United States, 290 U.S. 41 (1933). 107 380 U.S. 102 (1965). 108 Id. at 109. 109 358 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). 110 362 U.S. 257 (1960). 

Much litigation has concerned the sufficiency of the complaint 

to establish probable cause. Mere conclusory assertions are not 

enough. 106 In United States v. Ventresca, 107 however, an affidavit 

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

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

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

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

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

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

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

the warrant process should not be deterred by insistence on too 

stringent a showing. 108

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 109 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 

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

the corroboration of part of the informer’s tip established probable 

cause to support the arrest. A case involving a search warrant, 

Jones v. United States, 110 apparently utilized a test of considering 

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

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

and sufficient detail to indicate that the tip was based on the inVerDate Apr<15>2004 09:55 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00022 Fmt 8222 Sfmt 8222 C:\CONAN\CON028.SGM PRFM99 PsN: CON028
AMENDMENT 4—SEARCHES AND SEIZURE 1303

111 378 U.S. 108 (1964). 112 393 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). 113 403 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). 

formant’s personal observation. Aguilar v. Texas 111 held insufficient an affidavit which merely asserted that the police had ‘‘reliable information from a credible person’’ that narcotics were in a 

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

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

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

magistrate to decide whether or not the informant was trustworthy. Then, in Spinelli v. United States, 112 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 113 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 

1304 AMENDMENT 4—SEARCHES AND SEIZURE 

114 462 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. 115 462 U.S. at 213. 116 462 U.S. at 238. 117Marron 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). 118 ‘‘This Court has held in the past that a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and 

scope. Kremen v. United States, 353 U.S. 346 (1957); Go-Bart Importing Co. v. 

United States, 282 U.S. 344, 356-58 (1931); see United States v. Di Re, 332 U.S. 581, 

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

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

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

States, 376 U.S. 364, 367-68 (1964); Agnello v. United States, 296 U.S. 20, 30-31 

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

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

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

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

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

course of the search to project the films to learn their contents. 

evidence, including defendant’s reputation, could supplement this 

determination.

The Court expressly abandoned the two-part AguilarSpinelli test and returned to the ‘‘totality of the circumstances’’ approach to evaluate probable cause based on an informant’s tip in 

Illinois v. Gates. 114 The main defect of the two-part test, Justice 

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

reliability and his basis for knowledge as independent requirements. Instead, ‘‘a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to 

the other, or by some other indicia of reliability.’’ 115 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.’’ 116

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.’’ 117

This requirement thus acts to limit the scope of the search, inasmuch as the executing officers should be limited to looking in 

places where the described object could be expected to be found. 118

AMENDMENT 4—SEARCHES AND SEIZURE 1305

119Marcus v. Search Warrant, 367 U.S. 717, 730-31 (1961); Stanford v. Texas, 

379 U.S. 476, 485 (1965). 120 367 U.S. 717 (1961). See Kingsley Books v. Brown, 354 U.S. 436 (1957). 121Marcus v. Search Warrant, 367 U.S. 717, 732 (1961). 122 A Quantity of Books v. Kansas, 378 U.S. 205, 210 (1964). 123 Heller v. New York, 413 U.S. 483 (1973). 

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

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

other cases. 119 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, 120 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.’’ 121 A state procedure which was designed to comply with 

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

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

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

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

before the warrant issued, the procedure was . . . constitutionally 

deficient.’’ 122 Confusion remains, however, about the necessity for 

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

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

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

but instead to preserve a copy for evidence. 123 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 

1306 AMENDMENT 4—SEARCHES AND SEIZURE 

124 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. 125 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). 126Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 637 (1968) (per curiam). 127 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)). 128 New York v. P.J. Video, Inc., 475 U.S. 868, 875 n.6 (1986). 129 379 U.S. 476 (1965). 130 Id. at 485-86. See also Marcus v. Search Warrant, 367 U.S. 717, 723 (1961). 

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

film or the film itself must be returned. 124

The seizure of a film without the authority of a constitutionally 

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

not be made by the officer himself. 125 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.’’ 126 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.’’’ 127

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 . . . .’’’ 128

In Stanford v. Texas, 129 a seizure of more than 2,000 books, 

pamphlets, and other documents pursuant to a warrant which 

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

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

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

their seizure is the ideas which they contain. . . . No less a standard could be faithful to First Amendment freedoms.’’ 130

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 

AMENDMENT 4—SEARCHES AND SEIZURE 1307

131Zurcher v. Stanford Daily, 436 U.S. 547 (1978). See id. at 566 (containing 

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

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

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

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

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

committing the crime to which the materials relate. 

132 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. 

133 255 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). 

134Gouled v. United States, 255 U.S. 298, 306 (1921). 

135Warden 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). 

136Warden v. Hayden, 387 U.S. 294 (1967). Justice Douglas dissented, wishing 

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

Id. at 310, 312. 

137Davis v. Mississippi, 394 U.S. 721 (1969). 

138Schmerber 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). 

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. 131

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. 132 But in 

Gouled v. United States, 133 a unanimous Court limited the classes 

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

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

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

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

search and seizure,’’ 134 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.’’ 135 More evaded than followed, 

the ‘‘mere evidence’’ rule was overturned in 1967. 136 It is now settled that such evidentiary items as fingerprints, 137 blood, 138 urine

1308 AMENDMENT 4—SEARCHES AND SEIZURE 

139Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989) (warrantless 

drug testing of railroad employee involved in accident). 140 Cupp v. Murphy, 412 U.S. 291 (1973) (sustaining warrantless taking of 

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

a very limited intrusion and necessary to preserve evanescent evidence). 141 United States v. Dionisio, 410 U.S. 1 (1973); United States v. Mara, 410 U.S. 

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

exemplars; no reasonable expectation of privacy with respect to those items). 142 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). 143 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). 144 Rochin v. California, 342 U.S. 165 (1952). 145Winston v. Lee, 470 U.S. 753 (1985). 146Winston 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). 147 387 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. 148 116 U.S. 616 (1886). 

samples, 139 fingernail and skin scrapings, 140 voice and handwriting 

exemplars, 141 conversations, 142 and other demonstrative evidence 

may be obtained through the warrant process or without a warrant 

if ‘‘special needs’’ of government are shown. 143

However, some medically assisted bodily intrusions have been 

held impermissible, e.g., forcible administration of an emetic to induce vomiting, 144 and surgery under general anesthetic to remove 

a bullet lodged in a suspect’s chest. 145 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. 146

In Warden v. Hayden, 147 Justice Brennan for the Court cautioned that the items there seized were not ‘‘‘testimonial’ or ‘communicative’ in nature, and their introduction therefore did not compel respondent to become a witness against himself in violation of 

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

consider whether there are items of evidential value whose very 

nature precludes them from being the object of a reasonable search 

and seizure.’’ This merging of Fourth and Fifth Amendment considerations derived from Boyd v. United States, 148 the first case in 

which the Supreme Court considered at length the meaning of the 

AMENDMENT 4—SEARCHES AND SEIZURE 1309

149 Act of June 22, 1874, § 5, 18 Stat. 187. 150 Boyd v. United States, 116 U.S. 616, 622 (1886). 151 Howell’s State Trials 1029, 95 Eng. Rep. 807 (1765). 152 Boyd v. United States, 116 U.S. 616, 630 (1886). 153 E.g., Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 209-09 (1946). 154 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. 155 427 U.S. 463 (1976). 156 Id. at 470-77. 

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

forfeiture of goods alleged to have been imported in violation of 

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

prove any allegation made by the United States.’’ 149 That there 

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

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

within the restrictions of the search and seizure clause. 150 With

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

in Entick v. Carrington 151 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.’’ 152

While it may be doubtful that the equation of search warrants 

with subpoenas and other compulsory process ever really amounted 

to much of a limitation, 153 the present analysis of the Court dispenses with any theory of ‘‘convergence’’ of the two Amendments. 154 Thus, in Andresen v. Maryland, 155 police executed a warrant to search defendant’s offices for specified documents pertaining to a fraudulent sale of land, and the Court sustained the 

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

Fifth Amendment was inapplicable, the Court held, because there 

had been no compulsion of defendant to produce or to authenticate 

the documents. 156 As for the Fourth Amendment, inasmuch as the 

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

1310 AMENDMENT 4—SEARCHES AND SEIZURE 

157 Id. at 478-84. 158 Id. at 482 n.11. Minimization, as required under federal law, has not proved 

to be a significant limitation. Scott v. United States, 425 U.S. 917 (1976). 159 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). 160See, Note, Formalism, Legal Realism, and Constitutionally Protected Privacy 

Under the Fourth and Fifth Amendments 90 HARV. L. REV. 945 (1977). 161 United States v. Ramirez, 523 U.S. 65, 71 (1998). 162 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). 163Semayne’s Case, 5 Coke’s Rep. 91a, 77 Eng. Rep. 194 (K.B. 1604). 164 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). 165 374 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 excepproperly seizable under the rule of Warden v. Hayden; the fact that 

they were ‘‘testimonial’’ in nature, records in the defendant’s handwriting, was irrelevant. 157 Acknowledging that ‘‘there are grave 

dangers inherent in executing a warrant authorizing a search and 

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

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

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

with electronic ‘‘seizures’’ of conversations, ‘‘must take care to assure that they are conducted in a manner that minimizes unwarranted intrusions upon privacy.’’ 158

Although Andresen was concerned with business records, its 

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

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

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

such papers continues to be the subject of reservation in opinions, 159 but it is far from clear that the Court would accept any 

such exception should the issue be presented. 160

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

touchstone of reasonableness . . . governs the method of execution 

of the warrant.’’ 161 Until recently, however, most such issues have 

been dealt with by statute and rule. 162 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, 163 and until recently this has been a statutory 

requirement in the federal system 164 and generally in the States. 

In Ker v. California, 165 the Court considered the rule of announceVerDate Apr<15>2004 09:55 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00030 Fmt 8222 Sfmt 8222 C:\CONAN\CON028.SGM PRFM99 PsN: CON028
AMENDMENT 4—SEARCHES AND SEIZURE 1311

tion. Justice Harlan who had dissented from the federal standards issue joined the 

four finding a justifiable exception to carry the result. 166 514 U.S. 927 (1995). 167 520 U.S. 385, 394 (1997). 168The fact that officers may have to destroy property in order to conduct a noknock entry has no bearing on the reasonableness of their decision not to knock and 

announce. United States v. Ramirez, 523 U.S. 65 (1998). 169 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. 170Sgro v. United States, 287 U.S. 206 (1932). 171 Id.

ment as a constitutional requirement, although a majority there 

found circumstances justifying entry without announcement. In 

Wilson v. Arkansas, 166 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, 167 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. 168 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. 169 A statute regulating the expiration of a warrant and issuance of another ‘‘should be liberally 

construed in favor of the individual.’’ 170 Similarly, inasmuch as the 

existence of probable cause must be established by fresh facts, so 

the execution of the warrant should be done in timely fashion so 

as to ensure so far as possible the continued existence of probable 

cause. 171

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 

1312 AMENDMENT 4—SEARCHES AND SEIZURE 

172Wilson 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).

173 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). 

174 452 U.S. 692 (1981). 

175 Id. at 701-06. Ybarra was distinguished on the basis of its greater intrusiveness and the lack of sufficient connection with the premises. Id. at 695 n.4. By the 

time Summers was searched, police had probable cause to do so. Id. at 695. The 

warrant here was for contraband, id. at 701, and a different rule may apply with 

respect to warrants for other evidence. 

176Maryland 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). 

177Steagald 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). 

if presence of those persons was not in aid of execution of the warrant. 172 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. 173 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, 174 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. 175 Also, under some circumstances officers may search 

premises on the mistaken but reasonable belief that the premises 

are described in an otherwise valid warrant. 176

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 

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. 177

AMENDMENT 4—SEARCHES AND SEIZURE 1313

178 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). 179 American Law Institute, A Model Code of Pre-Arraignment Procedure, Tent. 

Draft No. 3 (Philadelphia: 1970), xix. 180 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). 181 Jones v. United States, 357 U.S. 493, 499 (1958). 182McDonald 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. 183 United States v. Watson, 423 U.S. 411 (1976). 

Valid Searches and Seizures Without Warrants 

While the Supreme Court stresses the importance of warrants 

and has repeatedly referred to searches without warrants as ‘‘exceptional,’’ 178 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.’’ 179 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.’’’ 180 The exceptions are said to be ‘‘jealously and 

carefully drawn,’’ 181 and there must be ‘‘a showing by those who 

seek exemption . . . that the exigencies of the situation made that 

course imperative.’’ 182 While the record does indicate an effort to 

categorize the exceptions, the number and breadth of those exceptions have been growing. 

Detention Short of Arrest: Stop-and-Frisk.—Arrests are 

subject to the requirements of the Fourth Amendment, but the 

courts have followed the common law in upholding the right of police officers to take a person into custody without a warrant if they 

have probable cause to believe that the person to be arrested has 

committed a felony or a misdemeanor in their presence. 183 The

probable cause is, of course, the same standard required to be met 

1314 AMENDMENT 4—SEARCHES AND SEIZURE 

184 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). 185 ‘‘The police may not arrest upon mere suspicion but only on ‘probable cause.’’’ 

Mallory v. United States, 354 U.S. 449, 454 (1957). 186 392 U.S. 1 (1968). Only Justice Douglas dissented. Id. at 35. 187 Id. at 16. See id. at 16-20. 188 Id. at 20, 21, 22. 189 Id. at 23-27, 29. See also Sibron v. New York, 392 U.S. 40 (1968) (after policeman observed defendant speak with several known narcotics addicts, he approached him and placed his hand in defendant’s pocket, thus discovering narcotics; 

in the issuance of an arrest warrant, and must be satisfied by conditions existing prior to the policeman’s stop, what is discovered 

thereafter not sufficing to establish retroactively reasonable 

cause. 184 There are, however, instances when a policeman’s suspicions will have been aroused by someone’s conduct or manner, 

but probable cause for placing such a person under arrest will be 

lacking. 185 In Terry v. Ohio, 186 the Court almost unanimously approved an on-the-street investigation by a police officer which involved ‘‘patting down’’ the subject of the investigation for weapons. 

The case arose when a police officer observed three individuals 

engaging in conduct which appeared to him, on the basis of training and experience, to be the ‘‘casing’’ of a store for a likely armed 

robbery; upon approaching the men, identifying himself, and not 

receiving prompt identification, the officer seized one of the men, 

patted the exterior of his clothes, and discovered a gun. Chief Justice Warren for the Court wrote that the Fourth Amendment was 

applicable to the situation, applicable ‘‘whenever a police officer accosts an individual and restrains his freedom to walk away.’’ 187

Since the warrant clause is necessarily and practically of no application to the type of on-the-street encounter present in Terry, the 

Chief Justice continued, the question was whether the policeman’s 

actions were reasonable. The test of reasonableness in this sort of 

situation is whether the police officer can point to ‘‘specific and 

articulable facts which, taken together with rational inferences 

from those facts,’’ would lead a neutral magistrate on review to 

conclude that a man of reasonable caution would be warranted in 

believing that possible criminal behavior was at hand and that 

both an investigative stop and a ‘‘frisk’’ was required. 188 Inasmuch

as the conduct witnessed by the policeman reasonably led him to 

believe that an armed robbery was in prospect, he was as reasonably led to believe that the men were armed and probably dangerous and that his safety required a ‘‘frisk.’’ Because the object of 

the ‘‘frisk’’ is the discovery of dangerous weapons, ‘‘it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.’’ 189 In a later case, the Court held that 

AMENDMENT 4—SEARCHES AND SEIZURE 1315

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

event his search exceeded permissible scope of a weapons frisk); Adams v. Williams, 

407 U.S. 143 (1972) (stop and frisk based on informer’s tip that defendant was sitting in parked car with narcotics and gun at 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’’). 190Minnesota v. Dickerson, 508 U.S. 366 (1993). 191 508 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. 192 Bond v. United States, 529 U.S. 334 (2000) (bus passenger has reasonable 

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

room for their own, they will not ‘‘feel the bag in an exploratory manner’’). 193 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). 

an officer may seize an object if, in the course of a weapons frisk, 

‘‘plain touch’’ reveals presence of an object that the officer has probable cause to believe is contraband, the officer may seize that object. 190 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. 191 Also impermissible is physical manipulation, without reasonable suspicion, of a bus passenger’s carry-on 

luggage stored in an overhead compartment. 192

Terry did not pass on a host of problems, including the grounds 

that could permissibly lead an officer to momentarily stop a person 

on the street or elsewhere in order to ask questions rather than 

frisk for weapons, the right of the stopped individual to refuse to 

cooperate, and the permissible response of the police to that refusal. Following that decision, the standard for stops for investigative purposes evolved into one of ‘‘reasonable suspicion of criminal 

activity.’’ That test permits some stops and questioning without 

probable cause in order to allow police officers to explore the foundations of their suspicions. 193 While not elaborating a set of rules 

governing the application of the tests, the Court was initially restrictive in recognizing permissible bases for reasonable susVerDate Apr<15>2004 09:55 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00035 Fmt 8222 Sfmt 8222 C:\CONAN\CON028.SGM PRFM99 PsN: CON028
1316 AMENDMENT 4—SEARCHES AND SEIZURE 

194 E.g., Brown v. Texas, 443 U.S. 47 (1979) (individual’s presence in high crime 

area gave officer no articulable basis to suspect him of crime); Delaware v. Prouse, 

440 U.S. 648 (1979) (reasonable suspicion of a license or registration violation is 

necessary to authorize automobile stop; random stops impermissible); United States 

v. Brignoni-Ponce, 422 U.S. 873 (1975) (officers could not justify random automobile 

stop solely on basis of Mexican appearance of occupants); Reid v. Georgia, 448 U.S. 

438 (1980) (no reasonable suspicion for airport stop based on appearance that suspect and another passenger were trying to conceal the fact that they were travelling 

together). But cf. United States v. Martinez-Fuerte, 428 U.S. 543 (1976) (halting vehicles at fixed checkpoints to question occupants as to citizenship and immigration 

status permissible, even if officers should act on basis of appearance of occupants). 195Davis 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’’). 196Florida 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). 197See, e.g., United States v. Hensley, 469 U.S. 221 (1985) (reasonable suspicion 

to stop a motorist may be based on a ‘‘wanted flyer’’ as long as issuance of the flyer 

has been based on reasonable suspicion); United States v. Sokolow, 490 U.S. 1, 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’’). 198 392 U.S. at 19, n.16. 199 United States v. Mendenhall, 446 U.S. 544, 554 (1980). 200See, 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. 

picion. 194 Extensive instrusions on individual privacy, e.g., transportation to the stationhouse for interrogation and fingerprinting, 

were invalidated in the absence of probable cause, 195 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. 196 More recently, 

however, the Court has taken less restrictive approaches. 197

It took the Court some time to settle on a test for when a ‘‘seizure’’ has occurred, and the Court has recently modified its approach. The issue is of some importance, since it is at this point 

that Fourth Amendment protections take hold. The Terry Court

recognized in dictum that ‘‘not all personal intercourse between policemen and citizens involves ‘seizures’ of persons,’’ and suggested 

that ‘‘[o]nly when the officer, by means of physical force or show 

of authority, has in some way restrained the liberty of a citizen 

may we conclude that a ‘seizure’ has occurred.’’ 198 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.’’ 199 This reasonable perception standard was subsequently endorsed by a majority of Justices, 200 and was applied in 

several cases in which admissibility of evidence turned on whether 

a seizure of the person not justified by probable cause or reasonable suspicion had occurred prior to the uncovering of the evidence. 

AMENDMENT 4—SEARCHES AND SEIZURE 1317

201 INS v. Delgado, 466 U.S. 210 (1984). 202 Id. at 221. 203Michigan v. Chesternut, 486 U.S. 567, 575 (1988) 204 499 U.S. 621, 628 (1991). As in Michigan v. Chesternut, supra, the suspect 

dropped incriminating evidence while being chased. 205 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). 206Florida v. Bostick, 501 U.S. 429 (1991). 

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. 201

This brief questioning, even with blocked exits, amounted to ‘‘classic consensual encounters rather than Fourth Amendment seizures.’’ 202 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.’’ 203

Soon thereafter, however, the Court departed from the 

Mendenhall reasonable perception standard and adopted a more 

formalistic approach, holding that an actual chase with evident intent to capture did not amount to a ‘‘seizure’’ because the suspect 

did not comply with the officer’s order to halt. Mendenhall, said the 

Court in California v. Hodari D., stated a ‘‘necessary’’ but not a 

‘‘sufficient’’ condition for a seizure of the person through show of 

authority. 204 A Fourth Amendment ‘‘seizure’’ of the person, the 

Court determined, is the same as a common law arrest; there must 

be either application of physical force (or the laying on of hands), 

or submission to the assertion of authority. 205 Indications are, however, that Hodari D. does not signal the end of the reasonable perception standard, but merely carves an exception applicable to 

chases and perhaps other encounters between suspects and police. 

Later in the same term the Court ruled that the 

Mendenhall ‘‘free-to-leave’’ inquiry was misplaced in the context of 

a police sweep of a bus, but that a modified reasonable perception 

approach still governed. 206 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, 

1318 AMENDMENT 4—SEARCHES AND SEIZURE 

207 Id. at 2387. 208 Id. The Court asserted that the case was ‘‘analytically indistinguishable from 

Delgado. Like the workers in that case [subjected to the INS ‘survey’ at their workplace], Bostick’s freedom of movement was restricted by a factor independent of police conduct—i.e., by his being a passenger on a bus.’’ Id. 209Michigan 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). 210 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). 211 United States v. Place, 462 U.S. 696, 709 (1983). 

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.’’ 207 ‘‘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.’’ 208

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.’’ 209

How lengthy a Terry detention may be varies with the circumstances. In approving a 20-minute detention of a driver made 

necessary by the driver’s own evasion of drug agents and a state 

police decision to hold the driver until the agents could arrive on 

the scene, the Court indicated that it is ‘‘appropriate to examine 

whether the police diligently pursued a means of investigation that 

was likely to confirm or dispel their suspicions quickly, during 

which time it was necessary to detain the defendant.’’ 210

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.’’ 211 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 

AMENDMENT 4—SEARCHES AND SEIZURE 1319

212 Id. at 706. 213 462 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. 214Florida 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. 215 United States v. Montoya de Hernandez, 473 U.S. 531 (1985). 216Weeks 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). 217Terry v. Ohio, 392 U.S. 1, 19 (1968); Chimel v. California, 395 U.S. 752, 762, 

763 (1969). 

that the investigative detention is properly limited in scope.’’ 212

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. 213 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. 214 But the same 

requirements for brevity of detention and limited scope of investigation are apparently inapplicable to border searches of international travelers, the Court having approved a 24-hour detention 

of a traveler suspected of smuggling drugs in her alimentary 

canal. 215

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. 216 The dispute 

has centered around the scope of the search. Since it was the stated general rule that the scope of a warrantless search must be 

strictly tied to and justified by the circumstances which rendered 

its justification permissible, and since it was the rule that the justification of a search of the arrestee was to prevent destruction of 

evidence and to prevent access to a weapon, 217 it was argued to the 

court that a search of the person of the defendant arrested for a 

traffic offense, which discovered heroin in a crumpled cigarette 

package, was impermissible, inasmuch as there could have been no 

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 addiVerDate Apr<15>2004 09:55 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00039 Fmt 8222 Sfmt 8222 C:\CONAN\CON028.SGM PRFM99 PsN: CON028
1320 AMENDMENT 4—SEARCHES AND SEIZURE 

218 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). 219 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). 220 331 U.S. 145 (1947). 221 334 U.S. 699 (1948). 222 Id. at 708. 223 339 U.S. 56 (1950). 224 Id. at 64. 225 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 

tional justification’’ is required for a custodial arrest of a suspect 

based on probable cause. 218

However, the Justices have long found themselves embroiled in 

argument about the scope of the search incident to arrest as it extends beyond the person to the area in which the person is arrested, most commonly either his premises or his vehicle. Certain 

early cases went both ways on the basis of some fine distinctions, 219 but in Harris v. United States, 220 the Court approved a 

search of a four-room apartment pursuant to an arrest under warrant for one crime and in which the search turned up evidence of 

another crime. A year later, in Trupiano v. United States, 221 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.’’ 222 This

decision was overruled in United States v. Rabinowitz, 223 in which 

officers arrested defendant in his one-room office pursuant to an 

arrest warrant and proceeded to search the room completely. The 

Court observed that the issue was not whether the officers had the 

time and opportunity to obtain a search warrant but whether the 

search incident to arrest was reasonable. Though Rabinowitz referred to searches of the area within the arrestee’s ‘‘immediate control,’’ 224 it provided no standard by which this area was to be determined, and extensive searches were permitted under the rule. 225

AMENDMENT 4—SEARCHES AND SEIZURE 1321

contents of a house and the removal to F.B.I. offices 200 miles away for examination, pursuant to an arrest under warrant of one of the persons found in the house, 

was unreasonable. In decisions contemporaneous to and subsequent to Chimel, applying pre- Chimel standards because that case was not retroactive, Williams v. 

United States, 401 U.S. 646 (1971), the Court has applied Rabinowitz somewhat restrictively. See Von Cleef v. New Jersey, 395 U.S. 814 (1969), which followed 

Kremen; Shipley v. California, 395 U.S. 818 (1969), and Vale v. Louisiana, 399 U.S. 

30 (1970) (both involving arrests outside the house with subsequent searches of the 

house); Coolidge v. New Hampshire, 403 U.S. 443, 455-57 (1971). Substantially extensive searches were, however, approved in Williams v. United States, 401 U.S. 

646 (1971), and Hill v. California, 401 U.S. 797 (1971). 226 395 U.S. 752 (1969). 227 Id. at 762-63. 228See, 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. 229 437 U.S. 385, 390-91 (1978) Accord, Flippo v. West Virginia, 528 U.S. 11 

(1999) (per curiam). 

In Chimel v. California, 226 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.’’ 227

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, 228 it has in some but not all 

contexts survived the changed rationale. Thus, in Mincey v. Arizona, 229 the Court rejected a state effort to create a ‘‘homicideVerDate Apr<15>2004 09:55 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00041 Fmt 8222 Sfmt 8222 C:\CONAN\CON028.SGM PRFM99 PsN: CON028
1322 AMENDMENT 4—SEARCHES AND SEIZURE 

230 433 U.S. 1 (1977). Defendant and his luggage, a footlocker, had been removed 

to the police station, where the search took place. 231 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). 232 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). 233 453 U.S. 454 (1981). 234 Id. at 460 (quoting Chimel v. California, 395 U.S. 752, 763 (1969)). In this 

particular instance, Belton had been removed from the automobile and handcuffed, 

but the Court wished to create a general rule removed from the fact-specific nature 

of any one case. ‘‘‘Container’ here denotes any object capable of holding another object. It thus includes closed or open glove compartments, consoles, or other receptacles located anywhere within the passenger compartment, as well as luggage, 

boxes, bags, clothing, and the like. Our holding encompasses only the interior of the 

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

at 460-61 n.4. 

scene’’ exception for a warrantless search of an entire apartment 

extending over four days. The occupant had been arrested and removed and it was true, the Court observed, that a person legally 

taken into custody has a lessened right of privacy in his person, 

but he does not have a lessened right of privacy in his entire house. 

And, in United States v. Chadwick, 230 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. 231 Police may, however, in the course of jailing an arrested 

suspect conduct an inventory search of the individual’s personal effects, including the contents of a shoulder bag, since ‘‘the scope of 

a station-house search may in some circumstances be even greater 

than those supporting a search immediately following arrest.’’ 232

Still purporting to reaffirm Chimel, the Court in New York v. 

Belton 233 held that police officers who had made a valid arrest of 

the occupant of a vehicle could make a contemporaneous search of 

the entire passenger compartment of the automobile, including containers found therein. Believing that a fairly simple rule understandable to authorities in the field was desirable, the Court ruled 

‘‘that articles inside the relatively narrow compass of the passenger 

compartment of an automobile are in fact generally, if not inevitably, within ‘the area into which an arrestee might reach in order 

to grab a weapon or evidentiary ite[m].’’’ 234

AMENDMENT 4—SEARCHES AND SEIZURE 1323

235Maryland 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. 236 267 U.S. 132 (1925). Carroll was a Prohibition-era liquor case, whereas a 

great number of modern automobile cases involve drugs. 237 Id. at 153. See also Husty v. United States, 282 U.S. 694 (1931); Scher v. 

United States, 305 U.S. 251 (1938); Brinegar v. United States, 338 U.S. 160 (1949). 

All of these cases involved contraband, but in Chambers v. Maroney, 399 U.S. 42 

(1970), the Court, without discussion, and over Justice Harlan’s dissent, id. at 55, 

62, extended the rule to evidentiary searches. 238 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. 239Preston v. United States, 376 U.S. 364 (1964); Dyke v. Taylor Implement 

Mfg. Co., 391 U.S. 216 (1968). 240 Arkansas v. Sanders, 442 U.S. 753, 761 (1979). 

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. 235

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

Court created an exception for searches of vehicles, holding in Carroll v. United States 236 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. 237

Initially the Court limited Carroll’s reach, holding impermissible the warrantless seizure of a parked automobile merely because it is movable, and indicating that vehicles may be stopped 

only while moving or reasonably contemporaneously with movement. 238 Also, the Court ruled that the search must be reasonably 

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

remove the vehicle to the stationhouse for a warrantless search at 

the convenience of the police. 239

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.’’ 240 ‘‘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. . 

1324 AMENDMENT 4—SEARCHES AND SEIZURE 

241 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). 242 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’’). 243 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). 244Delaware v. Prouse, 440 U.S. 648, 663 (1979) (discretionary random stops of 

motorists to check driver’s license and registration papers and safety features of 

cars 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 international borders when only ground for suspicion is that 

occupants appear to be of Mexican ancestry). 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. 245 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, 121 S. Ct. 1876 (2001) (per curiam) (upholding search of the 

motorist’s car for crime not related to the traffic offense). 246Michigan 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). 

. . It travels public thoroughfares where both its occupants and its 

contents are in plain view.’’’ 241 While motor homes do serve as residences and as repositories for personal effects, and while their contents are often shielded from public view, the Court extended the 

automobile exception to them as well, holding that there is a diminished expectation of privacy in a mobile home parked in a parking lot and licensed for vehicular travel, hence ‘‘readily mobile.’’ 242

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 243 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’’ 244 of traffic or safety violation or some 

other criminal activity. 245 By contrast, fixed-checkpoint stops in the 

absence of any individualized suspicion have been upheld for purposes of promoting highway safety 246 or policing the international 

AMENDMENT 4—SEARCHES AND SEIZURE 1325

247 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). 248 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 Amendmentc) 249Michigan v. Long, 463 U.S. 1032, 1049 (1983) (holding that contraband found 

in the course of such a search is admissible). 250Texas v. Brown, 460 U.S. 730 (1983). Similarly, since there is no reasonable 

privacy interest in the vehicle identification number, required by law to be placed 

on the dashboard so as to be visible through the windshield, police may reach into 

the passenger compartment to remove items obscuring the number and may seize 

items in plain view while doing so. New York v. Class, 475 U.S. 106 (1986). 251Knowles v. Iowa, 525 U.S. 113 (1998) (invalidating an Iowa statute permitting a full-blown search incident to a traffic citation). 252See 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); and 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). 253Michigan 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). 

border, 247 but not for more generalized law enforcement purposes. 248 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. 249 And, in the absence of such reasonable suspicion as to weapons, police may seize contraband and suspicious items ‘‘in plain view’’ inside the passenger compartment. 250

Although officers who have stopped a car to issue a routine 

traffic citation may conduct a Terry-type search, even including a 

pat-down of driver and passengers if there is reasonable suspicion 

that they are armed and dangerous, they may not conduct a fullblown search of the car 251 unless they exercise their discretion to 

arrest the driver instead of issuing a citation. 252 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. 253 ‘‘[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, 

1326 AMENDMENT 4—SEARCHES AND SEIZURE 

254Michigan 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). 255 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). 256 Cardwell v. Lewis, 417 U.S. 583 (1974). Justice Powell concurred on other 

grounds. 257 United States v. Di Re, 332 U.S. 581 (1948); Ybarra v. Illinois, 444 U.S. 85, 

94-96 (1979). 258Knowles v. Iowa, 525 U.S. 113, 118 (1998). 259 Rakas v. Illinois, 439 U.S. 128 (1978). 260Wyoming 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’’). 261 California v. Acevedo, 500 U.S. 565 (1991) (overruling Arkansas v. Sanders, 

442 U.S. 753 (1979). 262 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 

during the period required for the police to obtain a warrant.’’ 254

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. 255 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. 256

Police in undertaking a warrantless search of an automobile 

may not extend the search to the persons of the passengers therein 257 unless there is a reasonable suspicion that the passengers are 

armed and dangerous, in which case a Terry patdown is permissible. 258 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. 259 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. 260 The same rule now applies 

whether the police have probable cause to search only the containers 261 or whether they have probable cause to search the automobile for something capable of being held in the container. 262

AMENDMENT 4—SEARCHES AND SEIZURE 1327

(1991) (consent to search automobile for drugs constitutes consent to open containers within the car that might contain drugs). 

263 462 U.S. 579 (1983). The opinion of the Court, written by Justice Rehnquist, 

was joined by Chief Justice Burger and by Justices White, Blackmun, Powell, and 

O’Connor. Justice Brennan’s dissent was joined by Justice Marshall and, on 

mootness but not on the merits, by Justice Stevens. 

264 19 U.S.C. § 1581(a), derived from § 31 of the Act of Aug. 4, 1790, ch. 35, 1 

Stat. 164. 

265 462 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). 

266 462 U.S. at 593. 

Vessel Searches.—Not only is the warrant requirement inapplicable to brief stops of vessels, but also none of the safeguards applicable to stops of automobiles on less than probable cause are 

necessary predicates to stops of vessels. In United States v. 

Villamonte-Marquez, 263 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 , 264 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.’’ 265 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. 266 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 limitations 

1328 AMENDMENT 4—SEARCHES AND SEIZURE 

267 462 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. 268 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). 269 Bumper v. North Carolina, 391 U.S. 543 (1968). 270 Johnson v. United States, 333 U.S. 10, 13 (1948). 271Schneckloth v. Bustamonte, 412 U.S. 218, 231-33 (1973). 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). 272 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). 273On 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). 

whatever on the officers’ discretion or any safeguards against 

abuse.’’ 267

Consent Searches.—Fourth Amendment rights, like other 

constitutional rights, may be waived, and one may consent to 

search of his person or premises by officers who have not complied 

with the Amendment. 268 The Court, however, has insisted that the 

burden is on the prosecution to prove the voluntariness of the consent 269 and awareness of the right of choice. 270 Reviewing courts 

must determine on the basis of the totality of the circumstances 

whether consent has been freely given or has been coerced. Actual 

knowledge of the right to refuse consent is not essential to the 

issue of voluntariness, and therefore police are not required to acquaint a person with his rights, as through a Fourth Amendment 

version of Miranda warnings. 271 But consent will not be regarded 

as voluntary when the officer asserts his official status and claim 

of right and the occupant yields to these factors rather than makes 

his own determination to admit officers. 272 When consent is obtained through the deception of an undercover officer or an informer gaining admission without, of course, advising a suspect 

who he is, the Court has held that the suspect has simply assumed 

the risk that an invitee would betray him, and evidence obtained 

through the deception is admissible. 273

Additional issues arise in determining the validity of consent 

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AMENDMENT 4—SEARCHES AND SEIZURE 1329

274 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). 275 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). 276 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). 277 Act of July 31, 1789, ch. 5, §§ 23, 24, 1 Stat. 43. See 19 U.S.C. §§ 507, 1581, 

1582.278 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). 279 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). 280 Id. A traveler suspected of alimentary canal drug smuggling was strip 

searched, and then given a choice between an abdominal x-ray or monitored bowel 

movements. Because the suspect chose the latter option, the court disavowed decision as to ‘‘what level of suspicion, if any, is required for . . . strip, body cavity, or 

involuntary x-ray searches.’’ Id. at 541 n.4. 281 413 U.S. 266 (1973). Justices White, Blackmun, Rehnquist, and Chief Justice 

Burger would have found the search reasonable upon the congressional determinacient if that party ‘‘possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.’’ 274 Now, however, actual common authority over the 

premises is no longer required; it is enough if the searching officer 

had a reasonable but mistaken belief that the third party had common authority and could consent to the search. 275

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.’’ 276 Authorized by the First Congress, 277 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. 278 Moreover, while prolonged detention of 

travelers beyond the routine customs search and inspection must 

be justified by the Terry standard of reasonable suspicion having 

a particularized and objective basis, 279 Terry protections as to the 

length and intrusiveness of the search do not apply. 280

Inland stoppings and searches in areas away from the borders 

are a different matter altogether. Thus, in Almeida-Sanchez v. 

United States, 281 the Court held that a warrantless stop and search 

1330 AMENDMENT 4—SEARCHES AND SEIZURE 

tion 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). 282 United States v. Ortiz, 422 U.S. 891 (1975). 283 United States v. Brignoni-Ponce, 422 U.S. 873 (1975). However, stopping of 

defendant’s car solely because the officers observed the Mexican appearance of the 

occupants was unjustified. Id. at 886. Contrast United States v. Cortez, 449 U.S. 411 

(1981), where border agents did have grounds for reasonable suspicion that the vehicle they stopped contained illegal aliens. 284 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). 285 265 U.S. 57 (1924). See also Air Pollution Variance Bd. v. Western Alfalfa 

Corp., 416 U.S. 86 (1974). 

of defendant’s automobile on a highway some 20 miles from the 

border by a roving patrol lacking probable cause to believe that the 

vehicle contained illegal aliens violated the Fourth Amendment. 

Similarly, the Court invalidated an automobile search at a fixed 

checkpoint well removed from the border; while agreeing that a 

fixed checkpoint probably gave motorists less cause for alarm than 

did roving patrols, the Court nonetheless held that the invasion of 

privacy entailed in a search was just as intrusive and must be justified by a showing of probable cause or consent. 282 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. 283 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. 284

‘‘Open Fields’’.—In Hester v. United States, 285 the Court held 

that the Fourth Amendment did not protect ‘‘open fields’’ and that, 

AMENDMENT 4—SEARCHES AND SEIZURE 1331

286 389 U.S. 347, 353 (1967). Cf. Cady v. Dombrowski, 413 U.S. 433, 450 (1973) 

(citing Hester approvingly). 287 466 U.S. 170 (1984) (approving warrantless intrusion past no trespassing 

signs and around locked gate, to view field not visible from outside property). 288 Id. at 178. See also California v. Greenwood, 486 U.S. 35 (1988) (approving 

warrantless search of garbage left curbside ‘‘readily accessible to animals, children, 

scavengers, snoops, and other members of the public’’). 289 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’’). 290 California v. Ciraolo, 476 U.S. 207 (1986). Activities within the curtilage are 

nonetheless still entitled to some Fourth Amendment protection. The Court has described four considerations for determining whether an area falls within the 

curtilage: proximity to the home, whether the area is included within an enclosure 

also surrounding the home, the nature of the uses to which the area is put, and 

the steps taken by the resident to shield the area from view of passersby. United 

States v. Dunn, 480 U.S. 294 (1987) (barn 50 yards outside fence surrounding home, 

used for processing chemicals, and separated from public access only by a series of 

livestock fences, by a chained and locked driveway, and by one-half mile’s distance, 

is not within curtilage). 291Florida v. Riley, 488 U.S. 445 (1989) (view through partially open roof of 

greenhouse). 292Dow Chemical Co. v. United States, 476 U.S. 227 (1986) (suggesting that aerial photography of the curtilage would be impermissible). 

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 286 that the Amendment protects ‘‘people not 

places’’ cast some doubt on the vitality of the open fields principle, 

but all such doubts were cast away in Oliver v. United States. 287

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.’’ 288

Nor may an individual demand privacy for activities conducted 

within outbuildings and visible by trespassers peering into the 

buildings from just outside. 289 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. 290

Similarly, naked-eye inspection from helicopters flying even lower 

contravenes no reasonable expectation of privacy. 291 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. 292

‘Plain View’.—Somewhat similar in rationale is the rule that 

objects falling in the ‘plain view’ of an officer who has a right to 

1332 AMENDMENT 4—SEARCHES AND SEIZURE 

293Washington v. Chrisman, 455 U.S. 1 (1982) (officer lawfully in dorm room 

may seize marijuana seeds and pipe in open view); United States v. Santana, 427 

U.S. 38 (1976) (‘plain view’ justification for officers to enter home to arrest after observing defendant standing in open doorway); Harris v. United States, 390 U.S. 234 

(1968) (officer who opened door of impounded automobile and saw evidence in plain 

view properly seized it); Ker v. California, 374 U.S. 23 (1963) (officers entered premises without warrant to make arrest because of exigent circumstances seized evidence in plain sight). Cf. Coolidge v. New Hampshire, 403 U.S. 443, 464-73 (1971), 

and id. at 510 (Justice White dissenting). Maryland v. Buie, 494 U.S. 325 (1990) 

(items seized in plain view during protective sweep of home incident to arrest); 

Texas v. Brown, 460 U.S. 730 (1983) (contraband on car seat in plain view of officer 

who had stopped car and asked for driver’s license); New York v. Class, 475 U.S. 

106 (1986) (evidence seen while looking for vehicle identification number). There is 

no requirement that the discovery of evidence in plain view must be ‘inadvertent.’ 

See Horton v. California, 496 U.S. 128 (1990) (in spite of Amendment’s particularity 

requirement, officers with warrant to search for proceeds of robbery may seize weapons of robbery in plain view). 

294Steele 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). 295 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). 296 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). 297 469 U.S. 325 (1985). 298 Id. at 336. 299 Id. at 340. 

be in the position to have that view are subject to seizure without 

a warrant 293 or that if the officer needs a warrant or probable 

cause to search and seize his lawful observation will provide 

grounds therefor. 294 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. 295

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. 296

Public Schools.—In New Jersey v. T.L.O., 297 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.’’ 298 However, ‘‘the 

school setting requires some easing of the restrictions to which 

searches by public authorities are ordinarily subject.’’ 299 Neither

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300This single rule, the Court explained, will permit school authorities ‘‘to regulate their conduct according to the dictates of reason and common sense.’’ 469 U.S. 

at 343. Rejecting the suggestion of dissenting Justice Stevens, the Court was ‘‘unwilling to adopt a standard under which the legality of a search is dependent upon 

a judge’s evaluation of the relative importance of various school rules.’’ Id. at n.9. 301 469 U.S. at 342. 302 Id. 303 480 U.S. 709 (1987). 304 480 U.S. at 725. Not at issue was whether there must be individualized suspicion for investigations of work-related misconduct. 305This position was stated in Justice O’Connor’s plurality opinion, joined by 

Chief Justice Rehnquist and by Justices White and Powell. 306 480 U.S. at 732 (Scalia, J., concurring in judgment). 307 Hudson v. Palmer, 468 U.S. 517, 526 (1984). 

priate, the Court ruled. Instead, a simple reasonableness standard 

governs all searches of students’ persons and effects by school authorities. 300 A search must be reasonable at its inception, i.e., there 

must be ‘‘reasonable grounds for suspecting that the search will 

turn up evidence that the student has violated or is violating either 

the law or the rules of the school.’’ 301 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.’’ 302 In applying 

these rules, the Court upheld as reasonable the search of a student’s purse to determine whether the student, accused of violating 

a school rule by smoking in the lavatory, possessed cigarettes. The 

search for cigarettes uncovered evidence of drug activity held admissible in a prosecution under the juvenile laws. 

Government Offices.—Similar principles apply to a public 

employer’s work-related search of its employees’ offices, desks, or 

file cabinets, except that in this context the Court distinguished 

searches conducted for law enforcement purposes. In O’Connor v. 

Ortega, 303 a majority of Justices agreed, albeit on somewhat differing rationales, that neither a warrant nor a probable cause requirement should apply to employer searches ‘‘for noninvestigatory, 

work-related purposes, as well as for investigations of work-related 

misconduct.’’ 304 Four Justices would require a case-by-case inquiry 

into the reasonableness of such searches; 305 one would hold that 

such searches ‘‘do not violate the Fourth Amendment.’’ 306

Prisons and Regulation of Probation.—Searches of prison 

cells by prison administrators are not limited even by a reasonableness standard, the Court having held that ‘‘the Fourth Amendment 

proscription against unreasonable searches does not apply within 

the confines of the prison cell.’’ 307 Thus, prison administrators may 

conduct random ‘‘shakedown’’ searches of inmates’ cells without the 

need to adopt any established practice or plan, and inmates must 

1334 AMENDMENT 4—SEARCHES AND SEIZURE 

308 483 U.S. 868 (1987) (search based on information from police detective that 

there was or might be contraband in probationer’s apartment). 309 483 U.S. at 873-74. 310 Id. at 718, 721. 311 489 U.S. 602 (1989). 312 489 U.S. 656 (1989). 313 489 U.S. at 628. 

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). 308 ‘‘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.’’ 309 ‘‘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. 310

Drug Testing.—In two 1989 decisions the Court held that no 

warrant, probable cause, or even individualized suspicion is required for mandatory drug testing of certain classes of railroad and 

public employees. In each case, ‘‘special needs beyond the normal 

need for law enforcement’’ were identified as justifying the drug 

testing. In Skinner v. Railway Labor Executives’ Ass’n, 311 the Court 

upheld regulations requiring railroads to administer blood, urine, 

and breath tests to employees involved in certain train accidents or 

violating certain safety rules; upheld in National Treasury Employees Union v. Von Raab 312 was a Customs Service screening program requiring urinalysis testing of employees seeking transfer or 

promotion to positions having direct involvement with drug interdiction, or to positions requiring the incumbent to carry firearms. 

The Court in Skinner found a ‘‘compelling’’ governmental interest 

in testing the railroad employees without any showing of individualized suspicion, since operation of trains by anyone impaired by 

drugs ‘‘can cause great human loss before any signs of impairment 

become noticeable.’’ 313 By contrast, the intrusions on privacy were 

termed ‘‘limited.’’ Blood and breath tests were passed off as routine; 

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AMENDMENT 4—SEARCHES AND SEIZURE 1335

314 Id. at 628. 315 Id. at 631-32. 316 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. 317 Id. at 672. 318 515 U.S. 646 (1995). 319 Id. at 661. 320 Id.

try. 314 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. 315 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.’’ 316 The possibly ‘‘substantial’’ 

interference with privacy interests of these Customs employees was 

justified, the Court concluded, because, ‘‘[u]nlike most private citizens or government employees generally, they have a diminished 

expectation of privacy.’’ 317

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 318

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.’’ 319 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.’’ 320 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, 

1336 AMENDMENT 4—SEARCHES AND SEIZURE 

321 Id. at 657. 322 Id. at 665. 323 520 U.S. 305 (1997). 324Ferguson v. City of Charleston, 532 U.S. 67 (2001). 325 532 U.S. at 79. 326Olmstead v. United States, 277 U.S. 438 (1928). 

and since they voluntarily subject themselves to physical exams 

and other regulations above and beyond those imposed on nonathletes.’’ 321 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. 322

In two more recent 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 323 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 pregnant patients suspected of cocaine use was invalidated because its purpose was to collect evidence for law enforcement. 324 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.’’ 325 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 dictograph recorder, it became possible to 

‘‘eavesdrop’’ with much greater secrecy and expediency. Inevitably, 

the use of electronic devices in law enforcement was challenged, 

and in 1928 the Court reviewed convictions obtained on the basis 

of evidence gained through taps on telephone wires in violation of 

state law. On a five-to-four vote, the Court held that wiretapping 

was not within the confines of the Fourth Amendment. 326 Chief

Justice Taft, writing the opinion of the Court, relied on two lines 

of argument for the conclusion. First, inasmuch as the Amendment 

was designed to protect one’s property interest in his premises, 

there was no search so long as there was no physical trespass on 

AMENDMENT 4—SEARCHES AND SEIZURE 1337

327 Among the dissenters were Justice Holmes, who characterized ‘‘illegal’’ wiretapping as ‘‘dirty business,’’ id. at 470, and Justice Brandeis, who contributed to his 

opinion the famous peroration about government as ‘‘the potent, the omnipresent, 

teacher’’ which ‘‘breeds contempt for law’’ among the people by its example. Id. at 

485. More relevant here was his lengthy argument rejecting the premises of the majority, an argument which later became the law of the land. (1) ‘‘To protect [the 

right to be left alone], every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation 

of the Fourth Amendment.’’ Id. at 478. (2) ‘‘There is, in essence, no difference between the sealed letter and the private telephone message. . . . The evil incident 

to invasion of the privacy of the telephone is far greater than that involved in tampering with the mails. Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded and all conversations between them upon 

any subject . . . may be overheard.’’ Id. at 475-76. 328 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). 329 302 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). 330Weiss v. United States, 308 U.S. 321 (1939). 

premises owned or controlled by a defendant. Second, all the evidence obtained had been secured by hearing, and the interception 

of a conversation could not qualify as a seizure, for the Amendment 

referred only to the seizure of tangible items. Furthermore, the violation of state law did not render the evidence excludible, since the 

exclusionary rule operated only on evidence seized in violation of 

the Constitution. 327

Federal Communications Act.—Six years after the decision 

in the Olmstead case, Congress enacted the Federal Communications Act and included in § 605 of the Act a broadly worded proscription on which the Court seized to place some limitation upon 

governmental wiretapping. 328 Thus, in Nardone v. United 

States, 329 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, 330 there was no question 

1338 AMENDMENT 4—SEARCHES AND SEIZURE 

331Schwartz 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). 332 Bananti v. United States, 355 U.S. 96 (1957). 333 316 U.S. 129 (1942). 334Silverman 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). 335 388 U.S. 41 (1967). 336 Id. at 50-53. 

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. 331 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. 332

Nontelephonic Electronic Surveillance.—The trespass rationale of Olmstead was utilized in cases dealing with ‘‘bugging’’ of 

premises rather than with tapping of telephones. Thus, in Goldman

v. United States, 333 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 Amendment. 334 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, 335 the

Court confirmed the obsolesence of the alternative holding in 

Olmstead that conversations could not be seized in the Fourth 

Amendment sense. 336 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 

AMENDMENT 4—SEARCHES AND SEIZURE 1339

337 Id. at 58-60. Justice Stewart concurred because he thought that the affidavits 

in this case had not been sufficient to show probable cause, but he thought the statute constitutional in compliance with the Fourth Amendment. Id. at 68. Justice 

Black dissented, arguing that the Fourth Amendment was not applicable to electronic eavesdropping but that in any event the ‘‘search’’ authorized by the statute 

was reasonable. Id. at 70. Justice Harlan dissented, arguing that the statute with 

its judicial gloss was in compliance with the Fourth Amendment. Id. at 89. Justice 

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 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.’’ 337

1340 AMENDMENT 4—SEARCHES AND SEIZURE 

White thought both the statute and its application in this case were constitutional. 

Id. at 107. 338 Id. at 71, 113. 339 389 U.S. 347 (1967). 340 Id. at 353. ‘‘We conclude that the underpinnings of Olmstead and Goldman have been so eroded by our subsequent decisions that the ‘trespass’ doctrine 

there enunciated can no longer be regarded as controlling. The Government’s activities in electronically listening to and recording the petitioner’s words violated the 

privacy upon which he justifiably relied while using the telephone booth and thus 

constituted a ‘search and seizure’ within the meaning of the Fourth Amendment.’’ 

Id. 341 Id. at 354. The ‘‘narrowly circumscribed’’ nature of the surveillance was made 

clear by the Court in the immediately preceding passage. ‘‘[The Government agents] 

did not begin their electronic surveillance until investigation of the petitioner’s activities had established a strong probability that he was using the telephone in 

question to transmit gambling information to persons in other States, in violation 

of federal law. Moreover, the surveillance was limited, both in scope and in duration, to the specific purpose of establishing the contents of the petitioner’s unlawful 

telephonic communications. The agents confined their surveillance to the brief periods during which he used the telephone booth, and they took great care to overhear 

only the conversations of the petitioner himself.’’ Id. For similar emphasis upon preBoth Justices Black and White in dissent accused the 

Berger majority of so construing the Fourth Amendment that no 

wiretapping-eavesdropping statute could pass constitutional scrutiny, 338 and in Katz v. United States, 339 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.’’ 340 Because the surveillance of Katz’s telephone 

calls had not been authorized by a magistrate, it was invalid; however, the Court thought that ‘‘it is clear that this surveillance was 

so narrowly circumscribed that a duly authorized magistrate, properly notified of the need for such investigation, specifically informed of the basis on which it was to proceed, and clearly apprised of the precise intrusion it would entail, could constitutionally have authorized, with appropriate safeguards, the very 

limited search and seizure that the Government asserts in fact took 

place.’’ 341 The notice requirement, which had loomed in Berger as

AMENDMENT 4—SEARCHES AND SEIZURE 1341

cision and narrow circumscription, see Osborn v. United States, 385 U.S. 323, 329- 

30 (1966). 342 ‘‘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. 343 Id. at 357-58. Justice Black dissented, feeling that the Fourth Amendment 

applied only to searches for and seizures of tangible things and not conversations. 

Id. at 364. Two ‘‘beeper’’ decisions support the general applicability of the warrant 

requirement if electronic surveillance will impair legitimate privacy interests. Compare United States v. Knotts, 460 U.S. 276 (1983) (no Fourth Amendment violation 

in relying on a beeper, installed without warrant, to aid in monitoring progress of 

a car on the public roads, since there is no legitimate expectation of privacy in destination of travel on the public roads), with United States v. Karo, 468 U.S. 705 

(1984) (beeper installed without a warrant may not be used to obtain information 

as to the continuing presence of an item within a private residence). 344Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 

211, 18 U.S.C. §§ 2510-20. 345The 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). 346 389 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 

an obstacle to successful electronic surveillance, was summarily 

disposed of. 342 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. 343

Following Katz, Congress enacted in 1968 a comprehensive 

statute authorizing federal officers and permitting state officers 

pursuant to state legislation complying with the federal law to seek 

warrants for electronic surveillance to investigate violations of prescribed classes of criminal legislation. 344 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. 345

Warrantless ‘‘National Security’’ Electronic Surveillance.—In Katz v. United States, 346 Justice White sought to preVerDate Apr<15>2004 09:55 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00061 Fmt 8222 Sfmt 8222 C:\CONAN\CON028.SGM PRFM99 PsN: CON028
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expressed no congressional position at all. United States v. United States District 

Court, 407 U.S. 297, 302-08 (1972). 347 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. 348The 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. . . .’’ Id. at 322-23. 

serve 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. 347 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 pursuant 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. 348 This protection was even more needed in ‘‘national 

security cases’’ than in cases of ‘‘ordinary’’ crime, the Justice conVerDate Apr<15>2004 09:55 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00062 Fmt 8222 Sfmt 8222 C:\CONAN\CON028.SGM PRFM99 PsN: CON028
AMENDMENT 4—SEARCHES AND SEIZURE 1343

349 Id. at 313-24. 350 Id. at 320. 351See 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). 352Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, 92 Stat. 

1797, 50 U.S.C. §§ 1801-1811. See United States v. Belfield, 692 F.2d 141 (D.C. Cir. 

1982) (upholding constitutionality of disclosure restrictions in Act). 353 Edwards, Criminal Liability for Unreasonable Searches and Seizures, 41 VA.

L. REV. 621 (1955). 

tinued, inasmuch as the tendency of government so often is to regard opponents of its policies as a threat and hence to tread in 

areas protected by the First Amendment as well as by the 

Fourth. 349 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. 350

The question of the scope of the President’s constitutional powers, if any, remains judicially unsettled. 351 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 and there is no substantial likelihood any ‘‘United States 

person’’ will be overheard. 352

Enforcing the Fourth Amendment: The Exclusionary Rule 

A right to be free from unreasonable searches and seizures is 

declared by the Fourth Amendment, but how 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 the 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. 353 A policeman who makes an illegal search and 

seizure is subject to internal departmental discipline which may be 

backed up in the few jurisdictions which have adopted them by the 

1344 AMENDMENT 4—SEARCHES AND SEIZURE 

354Goldstein, Police Policy Formulation: A Proposal for Improving Police Performance, 65 MICH. L. REV. 1123 (1967). 355 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). 356 42 U.S.C. § 1983 (1964). See Monroe v. Pape, 365 U.S. 167 (1961). In some 

circumstances, the officer’s liability may be attributed to the municipality. Monell 

v. New York City Dep’t of Social Services, 436 U.S. 658 (1978). These claims that 

officers have used excessive force in the course of an arrest or investigatory stop are 

to be analyzed under the Fourth Amendment, not under substantive due process. 

The test is ‘‘whether the officers’ actions are ‘objectively reasonable’ under the facts 

and circumstances confronting them.’’ Graham v. Connor, 490 U.S. 386, 397 (1989). 357 Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). The possibility had been hinted at in Bell v. Hood, 327 U.S. 678 (1946). 358See, e.g., Chief Justice Burger’s dissent in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 411, 422-24 (1971), which suggests suit against the Government in a special tribunal and the abolition of the exclusionary rule. 359Foote, Tort Remedies for Police Violations of Individual Rights, 39 MINN. L. 

REV. 493 (1955). 

360This 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). 361 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, 205-206 (2001). See also Malley v. Briggs, 475 U.S. 335, 345 (1986) (qualified 

immunity protects police officers who applied for a warrant unless ‘‘a reasonably 

well-trained officer in [the same] position would have known that his affidavit failed 

to establish probable cause and that he should not have applied for a warrant’’). 

oversight of police review boards, but again the examples of disciplinary actions are exceedingly rare. 354

Persons who have been illegally arrested or who have had 

their privacy invaded will usually have a tort action available 

under state statutory or common law. Moreover, police officers acting under color of state law who violate a person’s Fourth Amendment rights are subject to a suit for damages and other remedies 355 under a civil rights statute in federal courts. 356 While federal officers and others acting under color of federal law are not 

subject to this statute, the Supreme Court has recently held that 

a right to damages for violation of Fourth Amendment rights arises 

by implication and that this right is enforceable in federal 

courts. 357 While a damage remedy might be made more effectual, 358 a number of legal and practical problems stand in the 

way. 359 Police officers have available to them the usual commonlaw defenses, most important of which is the claim of good faith. 360

Federal officers are entitled to qualified immunity based on an objectively reasonable belief that a warrantless search later determined to violate the Fourth Amendment was supported by probable 

cause or exigent circumstances. 361 And on the practical side, perVerDate Apr<15>2004 09:55 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00064 Fmt 8222 Sfmt 8222 C:\CONAN\CON028.SGM PRFM99 PsN: CON028
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362 116 U.S. 616 (1886). 363 ‘‘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.’’ Id. at 633. It 

was this utilization of the Fifth Amendment’s clearly required exclusionary rule, 

rather than one implied from the Fourth, on which Justice Black relied, and absent 

a Fifth Amendment self-incrimination violation he did not apply such a rule. Mapp 

v. Ohio, 367 U.S. 643, 661 (1961) (concurring opinion); Coolidge v. New Hampshire, 

403 U.S. 443, 493, 496-500 (1971) (dissenting opinion). The theory of a ‘‘convergence’’ of the two Amendments has now been disavowed by the Court. See discussion, supra, under ‘‘Property Subject to Seizure.’’ 364 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). 365 232 U.S. 383 (1914). 

sons subjected to illegal arrests and searches and seizures are often 

disreputable persons toward whom juries are unsympathetic, or 

they are indigent and unable to bring suit. The result, therefore, 

is that the Court has emphasized exclusion of unconstitutionally 

seized evidence in subsequent criminal trials as the only effective 

enforcement method. 

Development of the Exclusionary Rule.—Exclusion of evidence as a remedy for Fourth Amendment violations found its beginning in Boyd v. United States, 362 which, as was noted above, involved not a search and seizure but a compulsory production of 

business papers, which the Court likened to a search and seizure. 

Further, the Court analogized the Fifth Amendment’s self-incrimination provision to the Fourth Amendment’s protections to derive 

a rule which required exclusion of the compelled evidence because 

the defendant had been compelled to incriminate himself by producing it. 363 The Boyd case 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. 364

Nevertheless, ten years later the common-law view was itself 

rejected and an exclusionary rule propounded in Weeks v. United 

States. 365 Weeks had been convicted on the basis of evidence seized 

from his home in the course of two warrantless searches; some of 

the evidence consisted of private papers like those sought to be 

1346 AMENDMENT 4—SEARCHES AND SEIZURE 

366 Id. at 392. 

367 Id. at 393. 

368Smith v. Maryland, 59 U.S. (18 How.) 71, 76 (1855); National Safe Deposit 

Co. v. Stead, 232 U.S. 58, 71 (1914). 

369The 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). 

compelled in the Boyd case. Unanimously, the Court held that the 

evidence should have been excluded by the trial court. The Fourth 

Amendment, Justice Day said, placed on the courts as well as on 

law enforcement officers restraints on the exercise of power compatible with its guarantees. ‘‘The tendency of those who execute the 

criminal laws of the country to obtain convictions by means of unlawful searches and enforced confessions . . . should find no sanction in the judgment of the courts which are charged at all times 

with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights.’’ 366 The ruling is ambiguously based but seems to 

have had as its foundation an assumption that admission of illegally-seized evidence would itself violate the Amendment. ‘‘If letters and private documents can thus be seized and held and used 

in evidence against a citizen accused of an offense, the protection 

of the Fourth Amendment declaring his right to be secured against 

such searches and seizures is of no value, and, so far as those thus 

placed are concerned, might as well be stricken from the 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.’’ 367

Because the Fourth Amendment does not restrict the actions 

of state officers, 368 there was originally no question about the application of an exclusionary rule in state courts 369 as a mandate of 

AMENDMENT 4—SEARCHES AND SEIZURE 1347

370During the period in which the Constitution did not impose any restrictions 

on state searches and seizures, the Court permitted the introduction in evidence in 

federal courts of items seized by state officers which had they been seized by federal 

officers would have been inadmissible, Weeks v. United States, 232 U.S. 383, 398 

(1914), so long as no federal officer participated in the search, Byars v. United 

States, 273 U.S. 28 (1927), or the search was not made on behalf of federal law enforcement purposes. Gambino v. United States, 275 U.S. 310 (1927). This rule became known as the ‘‘silver platter doctrine’’ after the phrase coined by Justice 

Frankfurter in Lustig v. United States, 338 U.S. 74, 78-79 (1949): ‘‘The crux of that 

doctrine is that a search is a search by a federal official if he had a hand in it; it 

is not a search by a federal official if evidence secured by state authorities is turned 

over to the federal authorities on a silver platter.’’ In Elkins v. United States, 364 

U.S. 206 (1960), the doctrine was discarded by a five-to-four majority which held 

that inasmuch as Wolf v. Colorado, 338 U.S. 25 (1949), had made state searches and 

seizures subject to federal constitutional restrictions through the Fourteenth 

Amendment’s due process clause, the ‘‘silver platter doctrine’’ was no longer constitutionally viable. During this same period, since state courts were free to admit 

any evidence no matter how obtained, evidence illegally seized by federal officers 

could be used in state courts, Wilson v. Schnettler, 365 U.S. 381 (1961), although 

the Supreme Court ruled out such a course if the evidence had first been offered 

in a federal trial and had been suppressed. Rea v. United States, 350 U.S. 214 

(1956). 371 338 U.S. 25 (1949). 372 ‘‘The security of one’s privacy against arbitrary intrusion by the police— 

which is at the core of the Fourth Amendment—is basic to a free society. It is therefore implicit in ‘the concept of ordered liberty’ and as such enforceable against the 

States through the Due Process Clause.’’ Id. at 27-28. 373 Id. at 31. Justices Douglas, Murphy, and Rutledge dissented with regard to 

the issue of the exclusionary rule and Justice Black concurred. 374 342 U.S. 165 (1952). The police had initially entered defendant’s house without a warrant. Justices Black and Douglas concurred in the result on self-incrimination grounds. 

federal constitutional policy. 370 But in Wolf v. Colorado, 371 a unanimous Court held that freedom from unreasonable searches and 

seizures was such a fundamental right as to be protected against 

state violations by the due process clause of the Fourteenth 

Amendment. 372 However, the Court held that the right thus guaranteed did not require that the exclusionary rule be applied in the 

state courts, since there were other means to observe and enforce 

the right. ‘‘Granting that in practice the exclusion of evidence may 

be an effective way of deterring unreasonable searches, it is not for 

this Court to condemn as falling below the minimal standards assured by the Due Process Clause a State’s reliance upon other 

methods which, if consistently enforced, would be equally effective.’’ 373

It developed, however, that the Court had not vested in the 

States total discretion in regard to the admissibility of evidence, as 

the Court proceeded to evaluate under the due process clause the 

methods by which the evidence had been obtained. Thus, in Rochin

v. California, 374 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 swalVerDate Apr<15>2004 09:55 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00067 Fmt 8222 Sfmt 8222 C:\CONAN\CON028.SGM PRFM99 PsN: CON028
1348 AMENDMENT 4—SEARCHES AND SEIZURE 

375 Id. at 172. 376 347 U.S. 128 (1954). 377 Id. at 134-38. Justice Clark, concurring, announced his intention to vote to 

apply the exclusionary rule to the States when the votes were available. Id. at 138. 

Justices Black and Douglas dissented on self-incrimination grounds, id. at 139, and 

Justice Douglas continued to urge the application of the exclusionary rule to the 

States. Id. at 149. Justices Frankfurter and Burton dissented on due process 

grounds, arguing the relevance of Rochin. Id. at 142. 378 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). 379 367 U.S. 643 (1961). 380 Id. at 655-56. Justice Black concurred, doubting that the Fourth Amendment 

itself compelled adoption of an exclusionary rule but relying on the Fifth Amendment for authority. Id. at 661. Justice Stewart would not have reached the issue 

but would have reversed on other grounds, id. at 672, while Justices Harlan, Frankfurter, and Whittaker dissented, preferring to adhere to Wolf. Id. at 672. Justice 

lowing 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.’’ 375 The

Rochin standard was limited in Irvine v. California, 376 in which defendant was convicted of bookmaking activities on the basis of evidence secured by police who repeatedly broke into his house and 

concealed electronic gear to broadcast every conversation in the 

house. Justice Jackson’s plurality opinion asserted that Rochin had

been occasioned by the element of brutality, and that while the police conduct in Irvine was blatantly illegal the admissibility of the 

evidence was governed by Wolf, which should be consistently applied for purposes of guidance to state courts. The Justice also entertained considerable doubts about the efficacy of the exclusionary 

rule. 377 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. 378

Then, in Mapp v. Ohio, 379 the Court held that the exclusionary 

rule should and did apply to the States. It was ‘‘logically and constitutionally necessary,’’ wrote Justice Clark for the majority, ‘‘that 

the exclusion doctrine—an essential part of the right to privacy— 

be also insisted upon as an essential ingredient of the right’’ to be 

secure from unreasonable searches and seizures. ‘‘To hold otherwise is to grant the right but in reality to withhold its privilege 

and enjoyment.’’ 380 Further, the Court then held that since illeVerDate Apr<15>2004 09:55 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00068 Fmt 8222 Sfmt 8222 C:\CONAN\CON028.SGM PRFM99 PsN: CON028
AMENDMENT 4—SEARCHES AND SEIZURE 1349

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).

381Ker v. California, 374 U.S. 23 (1963). 

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

383 232 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. 384 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. 385 367 U.S. 643, 656 (1961). Wolf v. Colorado, 338 U.S. 25, 28 (1949), also ascribed the rule to the Fourth Amendment exclusively. 

gally-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. 381

The Foundations of the Exclusionary Rule.—Important to 

determination of such questions as the application of the exclusionary rule to the States and the ability of Congress to abolish or 

to limit it is the fixing of the constitutional source and the basis 

of the rule. For some time, it was not clear whether the exclusionary rule was derived from the Fourth Amendment, from some 

union of the Fourth and Fifth Amendments, or from the Court’s supervisory power over the lower federal courts. It will be recalled 

that in Boyd 382 the Court fused the search and seizure clause with 

the provision of the Fifth Amendment protecting against compelled 

self-incrimination. Weeks v. United States, 383 though the Fifth 

Amendment was mentioned, seemed to be clearly based on the 

Fourth Amendment. Nevertheless, in opinions following Weeks the

Court clearly identified the basis for the exclusionary rule as the 

self-incrimination clause of the Fifth Amendment. 384 Then in Mapp

v. Ohio, 385 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 

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386Mapp v. Ohio, 367 U.S. 643, 648 (1961) (emphasis supplied). 387 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). 388Weeks ‘‘was not derived from the explicit requirements of the Fourth Amendment; . . . The decision was a matter of judicial implication.’’ 338 U.S. 25, 28 (1949). 

Justice Black was more explicit. ‘‘I agree with what appears to be a plain implication of the Court’s opinion that the federal exclusionary rule is not a command of 

the Fourth Amendment but is a judicially created rule of evidence which Congress 

might negate.’’ Id. at 39-40. He continued to adhere to the supervisory power basis 

in strictly search-and-seizure cases, Berger v. New York, 388 U.S. 41, 76 (1967) (dissenting), except where self-incrimination values were present. Mapp v. Ohio, 367 

U.S. 643, 661 (1961) (concurring). And see id. at 678 (Justice Harlan dissenting); 

Elkins v. United States, 364 U.S. 206, 216 (1960) (Justice Stewart for the Court). 389 ‘‘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 

ing 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.’’’ 386 It was a necessary step in 

the application of the rule to the States to find that the rule was 

of constitutional origin rather than a result of an exercise of the 

Court’s supervisory power over the lower federal courts, inasmuch 

as the latter could not constitutionally be extended to the state 

courts. 387 In fact, Justice Frankfurter seemed to find the exclusionary rule to be based on the Court’s supervisory powers in Wolf

v. Colorado 388 in declining to extend the rule to the States. That 

the rule is of constitutional origin Mapp establishes, but this does 

not necessarily establish that it is immune to statutory revision. 

Suggestions appear in a number of cases, including Weeks, to 

the effect that admission of illegally-seized evidence is itself unconstitutional. 389 These were often combined with a rationale emphaVerDate Apr<15>2004 09:55 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00070 Fmt 8222 Sfmt 8222 C:\CONAN\CON028.SGM PRFM99 PsN: CON028
AMENDMENT 4—SEARCHES AND SEIZURE 1351

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.’’ 390 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). 391See ‘‘Operation of the Rule: Standing’’, infra. 392Linkletter v. Walker, 381 U.S. 618 (1965). 393 Elkins v. United States, 364 U.S. 206, 217 (1960). 394Linkletter v. Walker, 381 U.S. 618, 636-37 (1965). The Court advanced other 

reasons for its decision as well. Id. at 636-40. 395 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 (2d ed. 1987). 396 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’’). 397 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 

sizing ‘‘judicial integrity’’ as a reason to reject the proffer of such 

evidence. 390 Yet the Court permitted such evidence to be introduced into trial courts when the defendant lacked ‘‘standing’’ to object to the search and seizure which produced the evidence 391 or

when the search took place before the announcement of the decision extending the exclusionary rule to the States. 392 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.’’ 393 ‘‘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.’’ 394

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. 395 By the early 

1980s a majority of Justices had stated a desire either to abolish 

the rule or to sharply curtail its operation, 396 and numerous opinions had rejected all doctrinal bases save that of deterrence. 397 At

1352 AMENDMENT 4—SEARCHES AND SEIZURE 

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). 398 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). 399Stone v. Powell , 428 U.S. at 490, 491. 400 Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 416 (1971) 

(Chief Justice Burger dissenting). 401Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920). 402 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. 

the same time, these opinions voiced strong doubts about the efficacy of the rule as a deterrent, and advanced public interest values 

in effective law enforcement and public safety as reasons to discard 

the rule altogether or curtail its application. 398 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,’’ 399 as well as free guilty defendants. 400 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.’’ 401

Although the exclusionary rule has not been completely repudiated, its utilization has been substantially curbed. Initial decisions 

chipped away at the rule’s application. Defendants who themselves 

were not subjected to illegal searches and seizures may not object 

to the introduction of evidence illegally obtained from co-conspirators or codefendants, 402 and even a defendant whose rights have 

AMENDMENT 4—SEARCHES AND SEIZURE 1353

403 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). 404Stone v. Powell, 428 U.S. 465 (1976). 405Wong Sun v. United States, 371 U.S. 471, 487-88 (1963); Alderman v. United 

States, 394 U.S. 165, 180-85 (1969); Brown v. Illinois, 422 U.S. 590 (1975); Taylor 

v. Alabama, 457 U.S. 687 (1982). United States v. Ceccolini, 435 U.S. 268 (1978), 

refused to exclude the testimony of a witness discovered through an illegal search. 

Because a witness was freely willing to testify and therefore more likely to come 

forward, the application of the exclusionary rule was not to be tested by the standard applied to exclusion of inanimate objects. Deterrence would be little served and 

relevant and material evidence would be lost to the prosecution. In New York v. 

Harris, 495 U.S. 14 (1990), the Court refused to exclude a station-house confession 

made by a suspect whose arrest at his home had violated the Fourth Amendment 

because, even though probable cause had existed, no warrant had been obtained. 

And in Segura v. United States, 468 U.S. 796 (1984), evidence seized pursuant to 

warrant obtained after an illegal entry was admitted because there had been an 

independent basis for issuance of a warrant. This rule applies as well to evidence 

observed in plain view during the initial illegal search. Murray v. United States, 

487 U.S. 533 (1988). See also United States v. Karo , 468 U.S. 705 (1984) (excluding 

consideration of tainted evidence, there was sufficient untainted evidence in affidavit to justify finding of probable cause and issuance of search warrant). 406Michigan 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 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). 407 United States v. Calandra, 414 U.S. 338 (1974). 

been infringed may find the evidence coming in, not as proof of 

guilt, but to impeach his testimony. 403 Defendants who have been 

convicted after trials in which they were given a full and fair opportunity to raise claims of Fourth Amendment violations may not 

subsequently raise those claims on federal habeas corpus, because 

the costs outweigh the minimal deterrent effect. 404 Evidence obtained through a wrongful search and seizure may sometimes be 

used in the criminal trial, if the prosecution can show a sufficient 

attenuation of the link between police misconduct and obtaining of 

the evidence. 405 If an arrest or a search which was valid at the 

time it was effectuated becomes bad through the subsequent invalidation of the statute under which the arrest or search was made, 

evidence obtained thereby is nonetheless admissible. 406 A grand 

jury witness was not permitted to refuse to answer questions on 

the ground that they were based on evidence obtained from an unlawful search and seizure, 407 and federal tax authorities were permitted to use in a civil proceeding evidence found to have been unVerDate Apr<15>2004 09:55 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00073 Fmt 8222 Sfmt 8222 C:\CONAN\CON028.SGM PRFM99 PsN: CON028
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408 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). 409Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357 (1998). 410 468 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). 411The opinion was joined by Chief Justice Burger, and by Justices Blackmun, 

Powell, Rehnquist, and O’Connor. Justice Blackmun also added a separate concurring opinion. Dissents were filed by Justice Brennan, joined by Justice Marshall, 

and by Justice Stevens. 412 468 U.S. at 907. 413 468 U.S. at 916-17. 414 468 U.S. at 919, 921. 415 468 U.S. 981 (1984). 

constitutionally seized from defendant by state authorities. 408 The

rule is inapplicable in parole revocation hearings. 409

The most severe curtailment of the rule came in 1984 with 

adoption of a ‘‘good faith’’ exception. In United States v. Leon, 410

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 411 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].’’ 412 ‘‘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. 413 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.’’ 414 The Court also 

suggested some circumstances in which courts would be unable to 

find that officers’ reliance on a warrant was objectively reasonable: 

if the officers have been ‘‘dishonest or reckless in preparing their 

affidavit,’’ if it should have been obvious that the magistrate had 

‘‘wholly abandoned’’ his neutral role, or if the warrant was obviously deficient on its face (e.g., lacking in particularity). The Court 

applied the Leon standard in Massachusetts v. Sheppard, 415 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. 

AMENDMENT 4—SEARCHES AND SEIZURE 1355

416 Illinois v. Krull , 480 U.S. 340 (1987). The same difficult-to-establish qualifications apply: there can be no objectively reasonable reliance ‘‘if, in passing the 

statute, the legislature wholly abandoned its responsibility to enact constitutional 

laws,’’ or if ‘‘a reasonable officer should have known that the statute was unconstitutional.’’ 480 U.S. at 355. 417Dissenting 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, 

369.418The whole thrust of analysis in Leon dealt with reasonableness of reliance 

on a warrant. The Court several times, however, used language broad enough to 

apply to warrantless searches as well. See, e.g., 468 U.S. at 909 (quoting Justice 

White’s concurrence in Illinois v. Gates): ‘‘the balancing approach that has evolved 

. . . ‘forcefully suggest[s] that the exclusionary rule be more generally modified to 

permit the introduction of evidence obtained in the reasonable good-faith belief that 

a search or seizure was in accord with the Fourth Amendment’’’; and id. at 919: 

‘‘[the rule] cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity.’’ 419See 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’’). 420See, 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, 

The Court then extended Leon to hold that the exclusionary 

rule is inapplicable to evidence obtained by an officer acting in objectively reasonable reliance on a statute later held violative of the 

Fourth Amendment. 416 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. 417

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. 418 It

is also unclear what a good-faith exception would mean in the context of a warrantless search, since the objective reasonableness of 

an officer’s action in proceeding without a warrant is already taken 

into account in determining whether there has been a Fourth 

Amendment violation. 419 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. 420

1356 AMENDMENT 4—SEARCHES AND SEIZURE 

as incident to arrest of driver); United States v. Ross, 456 U.S. 798 (1982) (upholding warrrantless search of movable container found in a locked car trunk). 421 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). 422 Rakas v. Illinois, 439 U.S. 128, 139 (1978). 423 Id. at 140. 424Previously, when ownership or possession was the issue, such as a charge of 

possessing contraband, the Court accorded ‘‘automatic standing’’ to one on the basis, 

first, that to require him to assert ownership or possession at the suppression hearing would be to cause him to incriminate himself with testimony that could later 

be used against him, and, second, that the government could not simultaneously asOperation 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.’’ 421 The Court recently has departed from the concept of ‘‘standing’’ to telescope the 

inquiry into one inquiry rather than two. Finding that ‘‘standing’’ 

served no useful analytical purpose, the Court has held that the 

issue of exclusion is to be determined solely upon a resolution of 

the substantive question whether the claimant’s Fourth Amendment rights have been violated. ‘‘We can think of no decided cases 

of this Court that would have come out differently had we concluded . . . that the type of standing requirement . . . reaffirmed 

today is more properly subsumed under substantive Fourth 

Amendment doctrine. Rigorous application of the principle that the 

rights secured by this Amendment are personal, in place of a notion of ‘standing,’ will produce no additional situations in which 

evidence must be excluded. The inquiry under either approach is 

the same.’’ 422 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.’’ 423

The Katz reasonable expectation of privacy rationale has now 

displaced property-ownership concepts which previously might 

have supported either standing to suppress or the establishment of 

an interest that has been invaded. Thus, it is no longer sufficient 

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. 424 Also, it is no longer sufficient that 

AMENDMENT 4—SEARCHES AND SEIZURE 1357

sert that defendant was in possession of the items and deny that it had invaded 

his interests. Jones v. United States, 362 U.S. 257, 261-265 (1960). See also United

States v. Jeffers, 342 U.S. 48 (1951). But in Simmons v. United States, 390 U.S. 

377 (1968), the Court held inadmissible at the subsequent trial admissions made in 

suppression hearings. When it then held that possession alone was insufficient to 

give a defendant the interest to move to suppress, because he must show that the 

search itself invaded his interest, the second consideration was mooted as well, and 

thus the ‘‘automatic standing’’ rule was overturned. United States v. Salvucci, 448 

U.S. 83 (1980) (stolen checks found in illegal search of apartment of the mother 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). 425 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). 426 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). 

one merely be lawfully on the premises in order to be able to object 

to an illegal search; rather, one must show some legitimate interest 

in the premises that the search invaded. 425 The same illegal search 

might, therefore, invade the rights of one person and not of another. 426 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.