Scheb and Scheb, Criminal Law and Procedure 7 th edition Chapter 15: Search and Seizure
The 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.”
Incorporation of the 4 th Amendment
In Wolf v. Colorado (1949) the Supreme Court held that freedom from unreasonable searches and seizures is “implicit in 'the concept of ordered liberty’ ” and ruled that the Fourth Amendment is enforceable against the States through the Fourteenth Amendment.
State courts are free to provide higher levels of protection under their state constitutions but cannot provide less without running afoul of the Fourteenth Amendment.
Scope of the 4 th Amendment
The Fourth Amendment protects a person’s rights against the police and other government agents from unreasonable searches and seizures but does not protect against searches and seizures by private individuals.
Scope of the 4 th Amendment
Fourth Amendment protection is at its maximum for persons in their homes and its curtilage, which is the area immediately surrounding the house.
The 4 th Amendment does not apply to open fields or to abandoned property.
Protections extend to stores, offices, and places of business, but not to those areas of commercial properties that carry an implied invitation for the public to enter.
Persons crossing the national border or other functional equivalents, and searches and seizures conducted by U.S. agents outside the territory of the United States are not protected by the Fourth Amendment.
Border searches are evaluated based on a broader due process standard; the conduct of agents cannot “shock the conscience.”
What is a “Search”?
Historically, courts looked at whether a trespass (physical intrusion into property) had taken place in deciding whether the Fourth Amendment was implicated.
Olmstead v. United States (U.S. S.Ct., 1928)
The modern Supreme Court abandoned the trespass doctrine, saying “the Fourth Amendment protects people, not places.”
Katz v. United States (U.S. S.Ct., 1967)
Reasonable Expectations of Privacy
Today courts employ a twofold test:
(1) whether a person has exhibited an actual (subjective) expectation of privacy;
(2) whether the expectation is one that society recognizes as “reasonable.”
Katz v. United States (U.S. S.Ct., 1967)
Wiretapping and Other Forms of Electronic Surveillance
Are limited by the 4 th Amendment only if they infringe on reasonable expectations of privacy.
Katz v. United States (1967)
The use of searchlights, field glasses, aerial photography, and other means of enhancing observation does not necessarily trigger Fourth Amendment protections.
In 1979 the Supreme Court determined that use of a pen register to record phone numbers dialed from a particular phone number is not a search within the meaning of the Fourth Amendment.
USA PATRIOT Act
Title II, “Enhanced Surveillance Procedures,” enables law enforcement to access Internet communications, expands the authority for use of pen registers and trap and trace surveillance, and allows federal courts to issue “roving” surveillance orders in connection with foreign intelligence matters.
Law enforcement officers are authorized to seize voice-mail messages pursuant to a search warrant and to subpoena subscriber records of local and long distance telephone connection records and means of payment.
Jail and Prison Searches
A person lawfully incarcerated in a prison or jail has no reasonable expectation of privacy.
Inmates are routinely subjected to searches of their persons although some courts hold that “strip searches” violate the Fourth Amendment rights unless there is probable cause to believe the arrestee is concealing weapons or contraband.
Other courts permit strip searches where there is a reasonable suspicion that the arrestee is concealing weapons or contraband.
Courts have approved properly established and conducted sobriety checkpoints where all drivers passing a certain point are stopped briefly for license checks and signs of intoxication.
People driving automobiles are presumed to have diminished expectations of privacy.
Of course, courts also take into account the public safety interest in reducing drunk driving.
There is no 4 th Amendment problem with appropriate security measures at airports.
Consider the magnitude of the public safety interest involved.
Travelers are put on notice that “all bags are subject to search.”
Airport travelers have reduced expectations of privacy.
Inventory Searches of Impounded Automobiles
When conducted according to standard police procedures, an inventory search of a vehicle is regarded as an administrative search not subject to ordinary Fourth Amendment requirements.
Inventory searches are justified by the need to protect the owner’s property and to protect the police from claims of lost property and potential dangers lurking inside closed automobiles.
Consent to a search must be truly voluntary and involve more than mere acquiescence to the authority of the police.
Courts have said that police may not search a home when one resident invites them in but another refuses to grant access.
In 1990 the Supreme Court shifted the focus from the dominion and control of the third party to the police officer’s subjective belief that the third party has the authority to grant consent to a search of the premises.
The problem of consent is especially acute in situations where several persons share a single dwelling, as is common among college students.
Where the Fourth Amendment applies, it expresses a decided preference for searches and seizures to be conducted pursuant to a warrant.
This ensures that the impartial judgment of a judge or a magistrate is interposed between the citizen and the state.
To secure a search warrant a police officer must submit an affidavit to a judge or magistrate.
Search warrants can only be issued by judicial officers (judges, magistrates, judicial commissioners).
Search warrants must be based on probable cause.
Probable cause exists when prudent and cautious police officers have trustworthy information leading them to believe that evidence of crime might be obtained through a particular search.
Courts say officers are to determine probable cause as a “commonsense, practical question” in light of the totality of circumstances in a given case.
The Particularity Requirement
Because the Fourth Amendment mandates that “no warrants shall issue” except those “particularly describing the place to be searched and the persons or things to be seized,” an officer’s affidavit must contain a rather precise description of the place(s) or person(s) to be searched and the things to be seized and must attest to sufficiently fresh facts, and not mere suspicions.”
Probable Cause Determinations
A judge or magistrate’s finding of probable cause may be based on hearsay evidence, but because hearsay evidence is often provided by confidential informants (CIs), whose motivations may be suspect, their reliability and basis of knowledge must be carefully checked.
The Supreme Court formerly required the officer’s affidavit show that a CI was both credible and reliable, and basis of the CI’s knowledge.
In 1983 the Court relaxed the standards and permitted magistrates to consider the totality of circumstances when evaluating applications for search warrants based on hearsay evidence.
Most states follow the relaxed standard but many have opted adhere to the more strict requirements.
Execution of the Search Warrant
Federal Rules of Criminal Procedure provide that a warrant “shall command the officer to search, within a specified period of time not to exceed 10 days, the person or place named or the property or person specified.”
“ The warrant shall be served in the daytime, unless the issuing authority … authorizes its execution at times other than daytime.”
States have varying requirements that govern the period of time and hours for execution of a search warrant.
The Supreme Court has said that officers must give notice—the so-called “knock-and-announce requirement.”
An officer may break open a door or window to execute a search warrant, if, after notice of his or her authority and purpose, the officer is refused admittance.
Officers facing exigent circumstances such as the need to preserve evanescent evidence can dispense with the knock and announce requirement.
Exceptions to the Warrant Requirement
The plain view doctrine
Preservation of evanescent evidence
Search incident to lawful arrest
Roadside searches of motor vehicles
Warrantless Searches of Automobiles
Police may stop an automobile without a warrant and temporarily detain the driver as long as they have probable cause to believe that criminal activity is taking place or that traffic laws or automobile regulations are being violated.
Whren v. United States (U.S. S.Ct., 1996).
Exceptions to the Probable Cause Requirement
Stop and frisk (investigatory detention).
In these and other special needs situations, the standard is reasonable suspicion.
Drug testing and vehicle checkpoints may be valid in the absence of reasonable suspicion, depending on other factors.
Stop and Frisk
To protect law enforcement personnel, in Terry v. Ohio (1968) the Supreme Court upheld authority of police officers to stop and frisk an individual and conduct a limited “pat-down” search for weapons based on reasonable suspicion.
That ruling has been extended to motor vehicles.
The Exclusionary Rule
Weeks v. United States (1914) - established the exclusionary rule for the federal court.
Wolf v. Colorado (1949) – extended 4 th Amendment to states, but not exclusionary rule.
Mapp v. Ohio (1961)- exclusionary rule applies to state court actions.
Mapp v. Ohio (1961)
Police looking for a suspect searched Dollree Mapp’s home without a warrant.
They did not find the suspect, but they found pornographic material in a trunk in the basement.
Mapp was convicted on an Ohio court of possession of obscene materials.
The Supreme Court reversed the conviction, holding that the evidence should have been suppressed.
The Court held that the Fourth Amendment exclusionary rule applies to the state courts as well as the federal courts.
Fruit of the Poisonous Tree Doctrine
Evidence derived from other evidence that is obtained through an illegal search or seizure is itself inadmissible.
Wong Sun v. United States (1963)
The Fourth Amendment does not require evidence to be excluded, even if it was initially discovered during an illegal search of private property, if that evidence is later discovered during a valid search that is wholly independent of the initial illegal activity.
Murray v. United States (1988)
Standing to Invoke the Exclusionary Rule
After Mapp v. Ohio (1961) the Supreme Court granted automatic standing to anyone who was legitimately on the premises searched; however, in 1978 the Court began to restrict that doctrine.
Rakas v. Illinois (1978)
The Court’s current approach is to grant standing only to those persons who have a possessory or legitimate privacy interest in the place that was searched.
Some state courts have rejected the more restrictive rule on standing.
The Good Faith Exception
In United States v. Leon (1984) the Supreme Court instituted a “good-faith exception” to the exclusionary rule where the police officer who conducted the search relied in “good faith” on the validity of a search warrant. But the good-faith exception to the exclusionary rule does not apply if:
(1) the magistrate was misled by an affidavit that the affiant knew was false or would have known was false except for reckless disregard for the truth;
(2) the magistrate wholly abandons his or her judicial role;
(3) the affidavit is so lacking in indicia of probable cause as to render belief in its existence unreasonable; or
(4) the warrant is so facially deficient that the executing officer cannot reasonably presume its validity.