Crim B4

Chapter 3

Intro to Search & Seizure

CHAPTER OVERVIEW

The Fourth Amendment contains two basic clauses: The reasonableness clause, which proscribes unreasonable searches and seizures, followed by the warrant clause, which says that “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.”

A fundamental question has been raised about these two clauses. They are joined in the text of the Fourth Amendment by the conjunction and, which has led to a great deal of debate over whether the two clauses are related or separate. Some have argued that the warrant clause gives meaning to the reasonableness clause, so that any search conducted without a warrant is deemed unreasonable, and therefore unconstitutional.

Others have argued that the reasonableness clause and the warrant clause should be read separately. Their position is that the reasonableness of a search should not depend on whether a warrant was obtained or on whether there was a good excuse for not obtaining a warrant. Instead, they believe that the courts should focus on the factual circumstances justifying the search. They also believe, specifically, that the courts should consider the manner in which the search was executed, not whether a warrant was secured.

A third view, known as the warrant preference view, has come to the forefront in recent years. As a result, much of the confusion surrounding the nexus of the reasonableness clause and the warrant clause has been cleared up. As the Supreme Court stated in Mincey v. Arizona, 437 U.S. 385(1978), “The Fourth Amendment proscribes all unreasonable searches and seizures, and it is a cardinal principle that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment, subject to a few specifically established and well delineated exceptions.”

This chapter begins by introducing basic Fourth Amendment terminology, focusing in particular on which police activities trigger the protections of the Fourth Amendment and (2) what justification is required for the police to engage in certain types of activities. Later chapters focus on the types of law enforcement activity authorized (and not authorized) by the Fourth Amendment as well as on relevant procedures.

BASIC TERMINOLOGY

The Fourth Amendment protects persons, houses, papers, and effects from unreasonable searches and seizures.

  • Person encompasses the individual as a whole, both internally and externally. An arrest, for example, is a seizure of a person.
  • House is a term that is broadly construed to mean any structure that a person uses as a residence (and frequently a business) on either a temporary or long-term basis. A hotel room or its equivalent is considered a “house,” as it is a temporary residence that enjoys Fourth Amendment protection. Also, a garage or other structure not connected to a house can also fall within the meaning of a “house” under the Fourth Amendment.
  • Papers and effects include nearly all personal items. Business records, letters, diaries, memos, and countless other forms of tangible evidence can be defined as papers. Effects are the catch-all category. Anything that is not a person, house, or paper is probably an effect. Effects can include cars, luggage, clothing, weapons, contraband, and the fruits of criminal activity.

A FRAMEWORK FOR ANALYZING THE FOURTH AMENDMENT

  • A search is an activity geared toward finding evidence to be used in a criminal prosecution. To define when a search takes place, two important factors need to be considered: whether the presumed search is a product of government action and (2) whether the intrusion violates a person’s reasonable expectation of privacy.
  • The term seizure has a dual meaning in criminal procedure. Property can be seized as a result of a search is a seizure of property to be used as evidence.
  • The second stage in Fourth Amendment analysis focuses on the reasonableness of the search or seizure. In other words, once the protections of the Fourth Amendment are triggered, did the police act in line with Fourth Amendment requirements? When the courts focus on the reasonableness of a search or seizure, they speak in terms of justification. If the police (or other government actors) engage in a search or seizure without justification, they violate the Fourth Amendment. The only justification mentioned in the Fourth Amendment is probable cause.

WHEN DOES A “SEARCH” OCCUR?

  • In Burdeau v. McDowell, 256 U.S. 465 (1921), the Supreme Court first recognized that the Fourth Amendment does not apply to private individuals.
  • In Coolidge v. New Hampshire, 403 U.S. 443 (1971), the Court stated that if a private person “wholly on [his] own initiative” turns over evidence to authorities, “[t]here can be no doubt under existing law that the articles would later [be] admissible in evidence.
  • In Walter v. United States, 447 U.S. 649 (1980), the Court ruled that “a wrongful search and seizure conducted by a private party does not violate the Fourth Amendment and . . . does not deprive the government of the right to use evidence that it has acquired [from the third party] lawfully.”
  • What are Government Officials?
  • When Do Private Individuals Become Government Agents?
  • When Does a Private Search Become Governmental?

INFRINGEMENT ON A REASONABLE EXPECTATION OF PRIVACY

Prior to 1967, the definition of a search was closely tied to a person’s physical and tangible property interests. Police action would only be deemed a search if it physically infringed on an individual’s property.

In Katz v. United States, 389 U.S. 347 (1967), federal agents placed a listening device outside a phone booth in which Katz was having a conversation.

In California v. Greenwood, 486 U.S. 35 (1988), the Supreme Court ruled that a Fourth Amendment search or seizure occurs only when (1) the citizen has a manifested subjective expectation of privacy and (2) the expectation of privacy is one that society (through the eyes of a court) is willing to accept as objectively reasonable.

Undercover Agents and False Friends

Many government investigations are conducted by undercover agents or “false friends” posing as others. Generally, whether the search is illegal turns on whether the target of the investigation voluntarily disclosed information or turned over materials. This issue came up in Hoffa v. United States, 385 U.S. 293 (1966).

United States v. On Lee, 343 U.S. 747 (1952) addressed the issue of whether an undercover agent could wear a recording device during a conversation with a suspected criminal. The majority ruled that this activity did not constitute a search, again, because the informant was invited into the area where the conversation took place. Justice Burton dissented, however, noting that the recorder “amount[s] to [the agent] surreptitiously bringing [the police] with him.” The majority countered by arguing that the listening device was simply designed to improve the accuracy of the evidence obtained by the informant.

Abandoned Property

In California v. Greenwood, the Supreme Court reached the following decision:

[G]arbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public. Moreover, respondents placed their refuse at the curb for the express purpose of conveying it to a third party, the trash collector, who might himself have sorted through respondents’ trash or permitted others, such as the police, to do so. Accordingly, having deposited their garbage in an area particularly suited for public inspection and, in a manner of speaking, public consumption, for the express purpose of having strangers take it, respondents could have no reasonable expectation of privacy in the inculpatory items they discarded.

Privacy in One’s Physical Characteristics

The Supreme Court has also held that people’s physical characteristics, including their voices, are knowingly exposed to the public and are thus outside the scope of the Fourth Amendment. Physical attributes not on public display, however, generally fall within the protection of the Fourth Amendment. Finally, the fact that external physical characteristics are knowingly exposed does not mean that the police are not restricted in other ways by the Fourth Amendment.

Open Fields and Curtilage

Curtilage is the “area to which extends the intimate activity associated with the sanctity of man’s home and the privacies of life” (Oliver v. United States, 466 U.S. 170, 225 [1984]). By contrast, an open field is any unoccupied or undeveloped real property falling outside the curtilage of a home. Open fields do not enjoy Fourth Amendment protection, but homes and curtilage do.

Enhancement Devices

Enhancement devices can include flashlights, drug dogs, satellite photography, thermal imagery, and so on. Whatever their form, the devices are designed to enhance or replace the sensory abilities of the police, usually when police are operating from an otherwise lawful vantage point. In determining what level of sensory enhancement is appropriate, the courts generally give consideration to six specific factors:

• The nature of the place surveilled

• The nature of the activity surveilled

• The care taken to ensure privacy

• The lawfulness of the vantage point

• The availability of sophisticated technology

• The extent to which the technology used enhances or replaces the natural senses

In 2012, the Supreme Court was confronted with a similar scenario, this time involving GPS monitoring. The government obtained a warrant to install a GPS tracking device on a woman’s car. It authorized the device to be placed on the vehicle within 10 days, and within the District of Columbia. The device was actually placed on the vehicle on the 11th day, and in Maryland, in violation of the warrant. Thus, the device was put on the vehicle without a warrant. The government tracked the vehicle for 28 days and used information thereby obtained to bring a case against the woman’s husband. The Supreme Court held that “[t]he Government’s attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment” (United States v. Jones, 565 U.S. ___ [2012]).

A slightly more controversial law enforcement tool is the drug-sniffing dog. Some courts have ruled that their use does not trigger the Fourth Amendment under certain circumstances (see United States v. Place, 462 U.S. 696 [1983]). However, it has been argued that they do implicate the Fourth Amendment because a drug dog’s senses are used to replace an officer’s senses.

WHEN DOES A “SEIZURE” OCCUR?

Seizure of Property

According to United States v. Jacobsen, 466 U.S. 109 (1984), a seizure of property occurs “when there is some meaningful interference with an individual’s possessory interest in that property.” In determining if a piece of property is “seized,” courts often refer to actual and constructive possessions. A piece of property is in a person’s actual possession if he or she is physically holding or grasping the property. Constructive possession, by comparison, refers to possession of property without physical contact.

In Soldal v. Cook County, 506 U.S. 56 (1992), the question before the Supreme Court was whether the Fourth Amendment applied when a family’s trailer was removed from a trailer park. The Court held that the Fourth Amendment applied, meaning a seizure occurred. There was no search per se.

Seizure of Persons

A seizure of a person occurs when a police officer—by means of physical force or show of authority—intentionally restrains an individual’s liberty in such a manner that a reasonable person would believe that he or she is not free to leave (see Terry v. Ohio, 392 U.S. 1[1968]; United States v. Mendenhall, 446 U.S. 544 [1980]).

According to California v. Hodari D., 499 U.S. 621 (1991), when an officer chases a suspect but does not lay hands on him or her, a seizure does not occur until which point the suspect submits to police authority.

JUSTIFICATION

  • Teaching Note: Emphasize that the police need to have justification, or cause, before they can conduct a search or a seizure. Justification needs to be in place a priori—that is, before a person or evidence is sought in an area protected by the Fourth Amendment. The police cannot conduct an illegal search to obtain evidence and then argue after the fact that what they did was appropriate. Probable cause is the only standard of justification mentioned in the Fourth Amendment, but the Supreme Court has invoked the amendment’s reasonableness clause to carve out exceptions to the probable cause requirement.

Probable Cause

Probable cause was formally defined in Beck v. Ohio, 379 U.S. 89 (1964) as more than bare suspicion; it exists when “the facts and circumstances within [the officers’] knowledge and of which they [have] reasonably trustworthy information [are] sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.”

In Brinegar v. United States, 338 U.S. 160 (1949), the Court added, “The substance of all the definitions of probable cause is a reasonable ground for belief of guilt.”

Probable cause is always required in the following scenarios:

• Arrests with warrants

• Arrests without warrants

• Searches and seizures of property with warrants

• Searches and seizures of property without warrants

Informants and Other Third Parties

In Aguilar v. Texas, 378 U.S. 108 (1964), the Supreme Court ruled that an affidavit based on a tip from an informant must show (1) sufficient information to demonstrate how the informant reached his or her conclusion and (2) sufficient information to establish the reliability of the informant. The first prong asks, “Why should the police believe this person?” and the second prong asks, “How does the informant know what he or she claims to know?”

In Spinelli v. United States, 393 U.S. 410 (1969), the Supreme Court clarified the meaning of the first prong. It concluded that insufficient knowledge of the details of the reported criminal activity can be overcome if “the tip describe[s] the accused’s criminal activity in sufficient detail that the magistrate knows that he is relying on something more substantial than a casual rumor . . . or an accusation based merely on an individual’s general reputation” (p. 416).

In Illinois v. Gates, 462 U.S. 213 (1983), the Supreme Court basically abandoned the two-pronged probable cause analysis and replaced it with a totality of circumstances test. Thus, if “a particular informant is known for the unusual reliability of his predictions of certain types of criminal activities in a locality, his failure, in a particular case, to thoroughly set forth the basis of his knowledge surely should not serve as an absolute bar to a finding of probable cause based on his tip” (p. 233).

First-Hand Knowledge

In many cases the officer does not actually observe criminal behavior, but he or she knows the suspect is in close proximity to criminal conduct. In such cases, proximity to criminal conduct does not, by itself, give probable cause to arrest (United States v. Di Re, 332 U.S. 581 [1948]).

Reasonable Reliance of Mistaken Information

If information supplied by an informant or by an officer’s firsthand observations later proves to be false, the courts will uphold the arrest or search, so long as the mistake was a reasonable one (Franks v. Delaware, 438 U.S. 154 [1978]). When such a mistake is deemed unreasonable, however, the courts will almost always reach a different conclusion. An example of an unreasonable mistake is a police officer’s reliance on an informant who had provided false information on 50 previous occasions (Albright v. Oliver, 510 U.S. 266 [1994]).

REASONABLE SUSPICION

Recognizing how essential these lesser intrusions are to the police mission, the Supreme Court established in Terry v. Ohio, 392 U.S. 1 (1968) a different level of justification for such activities, namely, reasonable suspicion. In Terry, an officer’s attention was drawn to two men on a street corner that appeared to the officer to be “casing” a store for a robbery.

There is no clear definition of reasonable suspicion, just as there is no clear definition of probable cause. As the Supreme Court has stated:

courts have used a variety of terms to capture the elusive concept of what cause is sufficient to authorize police to stop a person. Terms like “articulable reasons” and “founded suspicion” are not self-defining; they fall short of providing clear guidance dispositive of the myriad factual situations that arise. But the essence of all that has been written is that the totality of circumstances—the whole picture—must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting theparticular person stopped of criminal activity (United States v. Cortez, 449 U.S. 411 [1981]).

Likewise, in Alabama v. White, 496 U.S. 325, 330 (1990), the Supreme Court observed that

[r]easonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.

  • Teaching Note: Clarify that reasonable suspicion must be based on articulable facts that connect the suspect to criminal activity. The key factor is knowledge of articulable facts. An articulable fact is an event that is witnessed and can be explained, as opposed to a gut reaction or a mere hunch.

ADMINISTRATIVE JUSTIFICATION

The administrative justification adopts a balancing approach, weighing the privacy interests of individuals with the interests of society in preserving public safety. The administrative form of justification was first adopted in Camara v. Municipal Court, 387 U.S. 523 (1967), which involved a health code inspection of residential dwelling units. The Supreme Court held that such inspections were subject to Fourth Amendment protection.