Michelle PalaroCJUS 2360Fall 2015

A Foundation for Understanding Constitutional Law

Chapter 9 Conducting

Constitutional Searches

Introduction What are the fundamental rules of search

and seizure under the 4th Amendment?1. There must be governmental action2. The person making the challenge must have

standing, that is, the conduct violates the challenger’s reasonable expectation of privacy A situation in which (1) a person has exhibited actual

(subjective) expectation of privacy and (2) that expectation is one that society is prepared to recognize as reasonable

Often an implied right that falls within the shadow of other specified rights (penumbra)

3. General searches are unlawful and restrict the government from going beyond what is necessary

The Scope of Searches Unrestrained general searches

offend our sense of justice

All searches must be limited in scope

General searches are unconstitutional and never legal

Searches with a Warrant All searches with a warrant must be

based on:o Probable causeo Supported by oath and affirmationo Particularly describing the place to

be searched, ando The persons or things to be seized

Marron v. United States , 275 U.S. 192(1927)

Facts: Prohibition agents had a warrant for intoxicating liquor and their manufacture. They noticed a ledger showing inventories of liquors, receipts, expenses, including gifts to police officers, and other things relating to the business

Issues: Can the ledger be seized since it wasn't listed on the warrant?

Holding: Yes Rationale: The ledger was closely related to

the business of the illegal business https://www.law.cornell.edu/supremecourt/text/2

75/192

Vehicle Searches New York v. Belton (1981)

o Landmark case for the warrantless search of a vehicle incident to arrest• Court held that when an officer has made a lawful

custodial arrest of the occupant of an automobile, he may search the passenger compartment

• He may also examine the contents of any containers found within the compartment

• If the container is within reach of the arrestee, so also will containers in it be within his reach

o http://en.wikipedia.org/wiki/New_York_v._Belton

Executing the Warrant After officers have obtained their search

warrant they must execute it in a timely manner

They must not use excessive force to execute the warrant

There is limited authority to detain the occupants of the premises during the search

Conducting the Search Officers can only search the areas where

they reasonably believe the specified items might be found

If the warrant states only one specific item be sought, once it is located, the search must end

Officers often are protected with qualified immunityo Exemption of a public official from civil liability

for actions performed during the course of his or her job unless they violate a “clearly established” constitutional or statutory right

Conducting the Search, cont;d The government can also seize any

contraband or other evidence of a crime found during a search with a warrant, even though it was not specifiedo Contraband is anything that is illegal for

people to own or have in their possession

The contraband does not need to be described in the warrant or be related to the crime described in the warranto Plain view doctrine

Administrative Warrants Allows civil inspections of private

property to determine compliance with government rules, regulations and city ordinanceso Examples include fire building codes

These can also be obtained so government agents can conduct routine inspections when occupants refuse their entry

United States v. Biswell , 406 U.S. 311 (1972)

Facts: Police visited Biswell, a pawn shop operator who was federally licensed to deal in sporting weapons. They identified themselves, inspected Biswell's books and requested entry into a locked gun storeroom. Biswell asked whether the agents had a search warrant, and the principle investigator responded that they did not, but that section 923(g) of the Gun Control Act of 1968 authorized such inspections without a search warrant. There the agents found and seized two sawed-off rifles, items Biswell was not licensed to possess

Issues: Did the warrantless search violate the Fourth Amendment?

Holding: No Rationale: Inspections pertaining to the sale of illegal

firearms are justified and that limited threats such as this inspection to the gun dealer’s expectation of privacy are reasonable

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=406&invol=311

Searches without a Warrant

The 4th Amendment prefers a warrant because it necessitates judicial review of government action

The Supreme Court has defined some searches without a warrant to be reasonable under the 4th Amendment guidelines:o Consent searcho Friskso Plain feel/plain viewo Incident to arresto Automobile exceptiono Exigent (emergency) circumstanceso Open fieldso Abandoned property o Public places

Searches with Consent If an individual gives voluntary consent for the

police to search, the police may so without a warrant

Any evidence found will be admissible in court The person may revoke the search at anytime Only the person whose constitutional rights

might be threatened by a search can give consent

4th Amendment rights are specific to the person and may not be raised on behalf of someone else or in some abstract, theoretical way

Consent to search an individual must be given by that individual

United States v. Matlock , 45 U.S. 164 (1974)

Facts: The home that a robbery suspect was leasing was searched by the police after obtaining the consent to enter the home from somebody who lived with the suspect

Issues: Was the consent valid under the 4th Amendment?

Holding: Yes Rationale: The Court observed that recent

decisions “clearly indicate that the consent of one who possesses common authority over premises or effects is valid as against the absent, non-consenting person with whom that authority is shared”

http://www.casebriefs.com/blog/law/criminal-procedure/criminal-procedure-keyed-to-weinreb/the-fourth-amendment-arrest-and-search-and-seizure/united-states-v-matlock/

Searches with Consent, cont’d Examples of instances when

individuals cannot give valid consent to search:o Landlord/tenant• Even though the landlord is the legal owner,

they lack the authority to offer consent to a search of a tenant’s premises or a seizure of the tenant’s property

o Hotel employee/hotel guest• Supreme Court extended the principles

above to hotel employees as well• Only the tenant or hotel guest can give

consent

Frisks If an officer suspects a person is presently armed

and dangerous, a frisk may conducted without a warrant

If a frisk is authorized by the circumstances of an investigative stop, only a limited pat-down of the detainee’s outer clothing for the officer’s safety is authorized

Factors contributing to the decision to frisk include: Suspect that flees A bulge in the clothing Suspect’s hand concealed in a pocket Being in a known high crime area and suspected crime

would likely involve a weapon

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

Minnesota v. Dickerson , 508 U.S. 366 (1993), cont’d

Facts: Officer conducted a frisk. The search revealed no weapons, but the officer felt a small lump in respondent's jacket pocket, believed it to be a lump of crack cocaine upon examining it with his fingers, and then reached into the pocket and retrieved a small bag of cocaine

Issues: Was the seizure lawful without a warrant? Holding: Yes Rationale: As long as the narcotics are instantly

recognizable by plain feel or plain touch. Ultimately, if, in the lawful course of a frisk, officers feel something that training and experience causes them to believe is contraband, there is probable cause to expand the search and seize the object

Plain View Evidence The plain view doctrine says that unconcealed

evidence that officers see while engaged in a lawful activity may be seized and is admissible in courto For example, if a government official is invited into a

person’s home, and the officer sees illegal drugs on the table, the drugs can be seized

Technology is impacting 4th Amendment case lawo Thermal imaging deviceso Kyllo v. United States (2001)

• Was a search warrant needed for police to scan a home from the street and compare that infrared image to other buildings?

• This action is considered a search under the Fourth Amendment and requires a warrant

Kyllo v. United States (2001)

Searches Incident to Lawful Arrest Once a person has been lawfully taken into custody

by the police, U.S. law recognizes the necessity of permitting a complete search for two reasons:1. Officer safety2. Evidence and other contraband should be recovered

Chimel v. California (1969) – next slideo Searches after an arrest must be immediate and must be

limited to the area within the person’s wingspan• The area within a person’s reach or immediate control

Schmerber v. California (1966)o Absent the exigent circumstances, a search intrusive as

drawing blood would not be permissible without a warranto http://en.wikipedia.org/wiki/Schmerber_v._California

Searches Incident to Lawful Arrest, cont’d

The Automobile Exception

This exception states that if a governmental agent has probable cause to believe the vehicle contains contraband or evidence or a crime, no warrant is needed

Why?o Cars are mobileo In the time it would take to get a

warrant, the car, driver and contraband or evidence could be long gone

Carroll v. United States (1925)

Carroll v. United States (1925), cont’d Facts: Prohibition officers saw Carroll, suspected of alcohol

sales, driving on the highway. They gave chase, pulled them over, searched the car and found illegal liquor. The National Prohibition Act allowed warrantless searches of vehicles for alcohol

Issues: Was a warrant necessary? Holding: No. Rationale: Vehicles are more mobile than homes and

justify different rules. They can be searched without a warrant provided:

1. There is probable cause to believe the vehicle’s contents violate the law, and

2. The vehicle would be gone before a search warrant could be obtained

For an officer to search a vehicle without a warrant, they must have probable cause to believe the vehicle contains contraband or evidence

Exigent Circumstances The courts have recognized that sometimes

situations will arise that reasonably require immediate action before evidence may be destroyed

These circumstances include:o Danger or physical harm to officer or otherso Danger or destruction of evidenceo Driving while intoxicatedo Hot-pursuit situationso Individuals requiring rescuing and emergency aido Prevent escape

Open Fields, Abandoned Property and Public Places

The courts have extended the plain view doctrine stating that anything held out to the public is not protected by the 4th Amendment because no reasonable expectation of privacy exists

“Open fields” - Holds that land beyond that normally associated with the use of that land, that is, undeveloped land, can be searched without a warrant

California v. Ciraolo (1986)o Police looking from the air into a suspect’s backyard

does not violate the 4th Amendment because it is open to public view from the air

o http://en.wikipedia.org/wiki/California_v._Ciraolo

Border Searches and Seizures

Searches of persons, belongings and vehicles at international borders are reasonable under the 4th Amendment

The farther a person gets from the border, the more traditional search and seizure requirements come back into play

Border Searches and Seizures, cont’d

United States v. Montoya de Hernandez (1985)o Routine searches at a U.S. international border require

no objective justification, probable cause or warranto http://en.wikipedia.org/wiki/United_States_v._Montoya_

De_Hernandez Quinones-Ruiz v. United States (1994)

o The border search exception applies equally to persons entering or exiting the country

o http://law.justia.com/cases/federal/district-courts/FSupp/873/359/1466404/

Special Needs Searches These are limited searches that the court

considers reasonable because societal needs are thought to outweigh the individual’s normal expectation of privacy:o Administrative searches of closely regulated

businesseso Public school searcheso Prison, Probation, and Parole searcheso Drug testingo Community caretaking searches

Electronic Surveillance, Privacy Interests and the 4th Amendment

Electronic eavesdropping to searches of people, their luggage, where they live, and their bodies, homes, hotel rooms, businesses, obtaining evidence from a person’s body (urine testing), or surgical removal of a bullet lodged within a person are all cases that have been held to constitute searches under the 4th Amendment

Physical presence is not required to constitute a search

In each case, the person has a reasonable expectation of privacyo As such, a warrant is generally required

Electronic Surveillance, Privacy Interests and the 4th Amendment

Title III of the Omnibus Crime Control and Safe Streets Act of 1965o Prohibits the interception of phone conversations unless

one party to the conversation consents To obtain an electronic-surveillance warrant, or

wiretap order, probable cause that a person is engaging in particular communications must be established by the court, and normal investigative procedures must have already been tried