Fourth Amendment

Question 1

FOURTH AMENDMENT: APPLICATION TO ARREST, SEARCH AND SEIZURE

Answer 1

This amendment protects persons against unreasonable arrests or other seizures as well as unreasonable searches.

In addition, when a warrant is required, it must comply with these constitutional requirements.

Question 2

Standing

Answer 2

Fourth Amendment rights are personal and may not be asserted vicariously. A defendant cannot successfully challenge governmental conduct as a violation of the Fourth Amendment protection against unreasonable searches and seizures unless the defendant himself has been seized or he has a reasonable expectation of privacy with regard to the place searched or the item seized.

Question 3

Exclusionary Rule

Answer 3

Remedy. prevents the introduction at a subsequent criminal trial of evidence unlawfully seized. This remedy is judicially created, not constitutionally mandated. The remedy provided by the exclusionary rule generally applies to criminal trials; it does not apply in other court proceedings, including federal habeas corpus review of state convictions, grand jury proceedings, preliminary hearings, bail hearings, sentencing hearings, and proceedings to revoke parole. Evidence will also not be excluded at trial when introduced as impeachment evidence against the defendant. Finally, the exclusionary rule is not applicable to civil proceedings.

Question 4

Standard of Review

Answer 4

The judge, not the jury, resolves suppression issues raised by a pretrial motion to suppress.

On appeal, the judge’s rulings as to questions of law are reviewed de novo; factual findings are reviewed only for clear error.

Question 5

Threshold of Governmental Action

Answer 5

The Fourth Amendment limits governmental action; it does not restrict the acts of private parties unless the private person is acting as an “instrument or agent of the government.” Even if governmental action exists, there still is no constitutional violation unless the individual had a reasonable expectation of privacy and either the police did not have a valid warrant or they executed an invalid warrantless search.

Question 6

Grand Jury Subpoena

Answer 6

Unless a grand jury subpoena is being used for harassment or is extremely broad, requiring a person to appear before the grand jury under such subpoena does not fall under the protection of the Fourth Amendment.

Question 7

Broader Rights Possible Under State Constitution

Answer 7

A state may grant broader rights under its own constitution than are granted by the federal Constitution. See Michigan v. Long, 463 U.S. 1032 (1983). Thus, even though the Fourth (or Fifth or Sixth) Amendment may not restrict the state government, state constitutional law may.

Question 8

Seizure: Objective Test—Not Free to Leave

Answer 8

A person is seized by the police when the officer physically touches a subject or when the subject submits to the officer’s show of authority. Terry v. Ohio, 392 U.S. 1 (1968). When the actions of the police do not show an unambiguous intent to restrain or when the individual’s submission to a show of governmental authority takes the form of passive acquiescence, a seizure occurs only if, in view of the totality of the circumstances, a reasonable innocent person would believe he was not free to leave. The test is whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.

a. Intentional detention

The police officer must intentionally employ physical force or a show of authority in order for the officer’s actions to result in a seizure.

However, as long as the officer intentionally employs force or makes a show of authority, the officer’s purpose need not be to detain the defendant in order for the defendant to be seized. Consequently, when a police officer makes a traffic stop, not only the driver but also any passengers are deemed to be seized. Therefore, the passenger as well as the driver may challenge the constitutionality of the stop

Question 9

Contrast Stop and Frisk

Answer 9

A temporary detention for the purpose of a criminal investigation is a “stop,” not an arrest, but is still a seizure for Fourth Amendment purposes. The test for a stop is whether the officer, by means of physical force or show of authority (to which the subject has submitted), has in some way restrained the liberty of the citizen. Seizure includes physical restraint or an order to stop so that the officer can frisk and ask questions on the street.

Question 10

Arrest Warrants

Answer 10

An arrest warrant is issued by a detached and neutral magistrate upon a finding of probable cause that a crime has been committed and that this person was involved in committing the particular crime. However, an arrest made pursuant to a warrant that failed to satisfy the probable cause requirement is not illegal when the officer making the arrest independently had probable cause for making the arrest.

a. Entry into home

A warrant to arrest an individual implicitly authorizes entry into the arrestee’s home to serve the warrant if the police have reason to believe that the arrestee is present. A police officer may not arrest a person in another person’s home without an arrest warrant for the subject and a search warrant for the third party’s home, absent exigent circumstances or valid consent to enter the third party’s home. Steagald v. United States, 451 U.S. 204 (1981).

Question 11

Warrantless Arrests

Answer 11

Unlike searches, police generally do not need a warrant to make a valid arrest in a public place, even if they have time to get one. U.S. v. Watson, 423 U.S. 411 (1976). The police, however, must have a warrant to arrest an individual in his own home, absent exigent circumstances or valid consent to enter the arrestee’s home. Payton v. New York, 445 U.S. 573 (1980).

a. Crime committed in the presence of the arresting party

Either a police officer or a private individual has a right to arrest without an arrest warrant if either a felony or a misdemeanor is committed in the arresting party’s presence. In determining whether a crime has been committed, the question is whether an officer could conclude—considering all of the surrounding circumstances—that there was a substantial chance of criminal activity. District of Columbia v. Wesby, 583 U.S. ___ (2018).

b. Crime committed outside the presence of the arresting party

In situations in which a felony has been committed outside the presence of the one making the arrest, a police officer may arrest anyone whom he has probable cause to believe has committed a felony, but a private individual may make an arrest only if (i) a felony has actually been committed and (ii) the private individual reasonably believes that the person being arrested is guilty.

c. Misdemeanor arrest

A warrantless arrest of a person for a misdemeanor punishable only by a fine is not an unreasonable seizure under the Fourth Amendment. Atwater v. Lago Vista, 532 U.S. 318 (2001). Note that the misdemeanor must have been committed in the presence of the arresting party; probable cause to believe that a misdemeanor was committed, without actually witnessing the crime, is not sufficient for a valid warrantless arrest.

d. Effect of invalid arrest

An unlawful arrest alone has no bearing on a subsequent criminal prosecution, and it is not a defense to the crime charged. If the police have probable cause to detain a suspect, they may do so even if they illegally arrested him (e.g., in his home without a warrant).

An unlawful arrest has legal significance, however, when there is a seizure of evidence. Evidence seized pursuant to an unlawful arrest may be suppressed at trial. A voluntary confession made after an unlawful arrest will not automatically be suppressed. Note, however, that the unlawfulness of the arrest may be considered as a factor when determining whether a confession was truly voluntary. If the confession is too closely tied to the illegal arrest, it may be suppressed. See Wong Sun v. U.S., 371 U.S. 471 (1963).

Question 12

Governmental Action

Answer 12

Searches conducted by private citizens are not protected by the Fourth Amendment—there must be governmental action. However, the police may not circumvent the Fourth Amendment by intentionally enlisting private individuals to conduct a search of a suspect or areas in which the suspect has a reasonable expectation of privacy.

Question 13

Defining “Search”: The Violation of a Reasonable Expectation of Privacy

Answer 13

Only unreasonable searches and seizures are subject to Fourth Amendment protections. An unreasonable search occurs when the government (1) invades a place protected by a reasonable expectation of privacy, or (2) physically intrudes upon a constitutionally protected area (persons, houses, papers, or effects) for the purpose of gathering information. Katz v. United States, 389 U.S. 347 (1967); Florida v. Jardines, 569 U.S. 1 (2013) (using a drug-sniffing dog on a homeowner’s porch for the purpose of investigating the contents of the home constituted a search); United States v. Jones, 565 U.S. 400 (2012) (placement of GPS device on defendant’s vehicle for the purpose of monitoring the vehicle’s movements constituted a search).

Question 14

Home

Answer 14

Although the Supreme Court has stated that “the Fourth Amendment protects people, not places,” (see id. at 351), the Fourth Amendment, by its terms, protects against an unreasonable governmental search of a “house.” This protection extends to persons who have the right to immediate possession of a dwelling, such as the renter of an apartment or a dormitory. Chapman v. United States, 365 U.S. 610 (1961).

Question 15

Curtilage

Answer 15

In addition to the home itself, an area immediately surrounding the home known as the “curtilage” may be covered by the “umbrella” of the home’s Fourth Amendment protection.

In determining whether the area is protected, the following four-factor test applies:

i) The proximity of the area to the home;
ii) Whether the area is included within an enclosure surrounding the home;
iii) The nature of the uses to which the area is put; and
iv) The steps taken by the resident to protect the area from observation by passersby.

Question 16

Open fields

Answer 16

Private property that lies outside the curtilage of a home, such as a farmer’s field, is not protected by the home’s umbrella of Fourth Amendment protection. Under the “open fields” doctrine, governmental intrusion on such property is not a search. The owner does not have a reasonable (i.e., objective) expectation of privacy, even though the owner may have a subjective expectation of privacy based on the fact that the land is fenced, protected from public view, and “no trespassing” signs are posted. United States v. Oliver, 466 U.S. 170 (1984).

Question 17

Overnight guest in a home

Answer 17

While an overnight guest in a home does not have an ownership interest in the home, such a guest does have a reasonable expectation of privacy, at least as to the areas of the home to which the guest has permission to enter. Minnesota v. Olson, 495 U.S. 91 (1990). (As to the ability of the owner or guest to consent to a search of the home, see §I.C.4.f, Consent searches, infra.)

Contrast short-term use of home for illegal business purpose: Short-term use of a home (e.g., several hours) with the permission of the owner does not give rise to a reasonable expectation of privacy, at least when the home is being used for an illegal business purpose (e.g., bagging cocaine for sale on the streets). Minnesota v. Carter, 525 U.S. 83 (1998).

Question 18

Motel room

Answer 18

As with the search of a home, the search of a motel room by a government agent may be an unreasonable search. A motel clerk’s consent to a governmental search of a room during the time it is rented is insufficient to justify the search. Stoner v. California, 376 U.S. 483 (1964).

Question 19

Business premises

Answer 19

In general, business premises are protected by the Fourth Amendment. G.M. Leasing Corp. v. United States, 429 U.S. 338 (1977). However, such premises may be subjected to administrative searches, see § I.C.4.g., Administrative searches, infra.

Question 20

Prison

Answer 20

A prison inmate has no reasonable expectation of privacy in his cell. The limitations on Fourth Amendment rights are justified by the need to maintain institutional security and preserve internal order and discipline. Hudson v. Palmer, 468 U.S. 517 (1984). Unlike a convict, a pretrial detainee may have a limited expectation of privacy in his cell. However, a detainee’s cell may be subject to a routine search, and the detainee’s person may be subject to a strip search or a full-body search after a contact visit with someone from the outside. Bell v. Wolfish, 441 U.S. 520 (1979). Jail administrators may also require all arrestees committed to the general population of a jail to undergo no-touch visual strip searches, even if the arrest was for a minor offense and even in the absence of reasonable suspicion that the arrestee possesses a concealed weapon or other contraband. Florence v. Board of Chosen Freeholders of County of Burlington, 566 U.S. 318 (2012).

Question 21

Trespass

Answer 21

While the fact that a governmental agent is on property without permission may make a warrantless search unreasonable (e.g., a search of a home), the fact that a governmental agent is illegally on property does not automatically make the search illegal (United States v. Oliver, supra), nor does the fact that a governmental agent is legally in a public place make the search legal (Katz v. United States, supra).

Question 22

Papers and effects

Answer 22

The Fourth Amendment, by its terms, protects “papers and effects.” For example, a person retains a reasonable expectation that items placed within his luggage will be free from a purposeful, exploratory physical manipulation of the luggage. Bond v. United States, 529 U.S. 334 (2000).
When papers and effects are transferred to a third party, such as checks and deposit slips given by a customer to a bank, a person no longer has a reasonable expectation of privacy in these items. Similarly, financial statements maintained by a bank are bank records in which the customer has no reasonable expectation of privacy. United States v. Miller, 425 U.S. 435 (1976).

Question 23

Automobiles

Answer 23

Although, under the Fourth Amendment, stopping a car constitutes a seizure of the driver and any passengers, Brendlin v. California, 551 U.S. 249 (2007) (passenger), Delaware v. Prouse, 440 U.S. 648 (1979) (driver), there is a lesser expectation of privacy with regard to the automobile and its contents than with a home. Wyoming v. Houghton, 526 U.S. 295 (1999). Even so, officers must have an articulable, reasonable suspicion of a violation of the law in order to stop an automobile. A call to 911 reporting erratic driving may give the police the reasonable suspicion needed to make a traffic stop if the report is reliable. Navarette v. California, 572 U.S. 393 (2014). The fact that a person who is in lawful possession of a rental car is not listed on the rental agreement does not defeat his or her otherwise reasonable expectation of privacy. Byrd v. United States, 584 U.S. ___ (2018).

Question 24

Checkpoints

Answer 24

Police may stop an automobile at a checkpoint without reasonable, individualized suspicion of a violation of the law if the stop is based on neutral, articulable standards and its purpose is closely related to an issue affecting automobiles. A roadblock to perform sobriety checks has been upheld, while a similar roadblock to perform drug checks has not. Compare Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990) (sobriety check) with Indianapolis v. Edmond, 531 U.S. 32 (2000) (check for presence of illegal drugs).

i) Immigration law enforcement

When the purpose of the stop relates to the enforcement of immigration laws, any car may be stopped on a random basis at the border of the United States without a reasonable suspicion of wrongdoing. Almeida-Sanchez v. United States, 413 U.S. 266 (1973). When a search does not occur at the border or its functional equivalent, all cars may be stopped at a fixed checkpoint without a reasonable suspicion of violation of an immigration law, but a car may not be singled out and randomly stopped without a particularized and objective basis. United States v. Cortez, 449 U.S. 411 (1981) (holding the stop of one car proper when officers could reasonably surmise that the car was involved in criminal immigration activity); United States v. Martinez-Fuerte, 428 U.S. 543 (1976) (affirming convictions based on stops at checkpoints at which all cars were stopped).

ii) Search for witnesses

A checkpoint maintained by police for the purpose of finding witnesses to a crime (rather than suspects) is not per se unreasonable, as long as (i) the checkpoint stop’s primary law enforcement purpose is to elicit evidence to help them apprehend not the vehicle’s occupants but other individuals; (ii) the stop advanced a public concern to a significant degree; and (iii) the police appropriately tailored their checkpoint stops to fit important criminal investigatory needs and to minimally interfere with liberties protected by the Fourth Amendment. Illinois v. Lidster, 540 U.S. 419 (2004).

Question 25

Car’s VIN

Answer 25

The driver of a car does not have a reasonable expectation of privacy in the vehicle identification number (VIN) affixed to an automobile. New York v. Class, 475 U.S. 106 (1986). Consequently, a police officer’s moving of papers that obstructed his view of this number did not constitute a search under the Fourth Amendment, and a gun found while doing so was admissible into evidence.

Question 26

Abandoned property

Answer 26

Abandoned property is not protected by the Fourth Amendment.

Question 27

Physical characteristics

Answer 27

There is no expectation of privacy in one’s physical characteristics; therefore, a demand for a handwriting or voice sample is not a search. United States v. Mara, 410 U.S. 19 (1973) (handwriting exemplar); United States v. Dionisio, 410 U.S. 1 (1973) (voice exemplar).

Furthermore, DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. When officers make an arrest supported by probable cause and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under theFourth Amendment. Maryland v. King, 569 U.S. 435 (2013).

Question 28

Blood samples

Answer 28

Except in unusual situations, blood samples require warrants, but breath samples do not. The involuntary, warrantless blood test of a drunken-driving suspect was appropriate when police could reasonably have believed that the delay necessary to obtain a search warrant would likely result in disappearance of the blood-alcohol content evidence, and the test was administered according to accepted medical practices. Schmerber v. California, 384 U.S. 757 (1966). However, the reasonableness of a warrantless blood test is determined case by case, based on the totality of the circumstances. The Fourth Amendment mandates that police officers obtain a warrant before a blood sample can be drawn, if they can reasonably do so without significantly undermining the efficacy of the search. Birchfield v. North Dakota, 579 U.S. ___, 136 S. Ct. 2160 (2016); Missouri v. McNeely, 569 U.S. 141 (2013).

When a driver is unconscious and cannot be given a breath test, the exigent-circumstances doctrine (discussed infra) generally permits a blood test without a warrant. Mitchell v. Wisconsin, 588 U.S. ___, 139 S. Ct. 2525 (2019).

Question 29

Government informants

Answer 29

Some surveillance and investigation techniques have been held not to implicate any reasonable expectation of privacy because the targets of the surveillance were regarded as having assumed the risk that the people with whom they were interacting would be government agents. There is no reasonable expectation of privacy in conversations carried on with government informants or undercover officers. Similarly, if one party to a telephone call consents to wiretapping or agrees to record the call at the government’s request, such monitoring will not trigger the Fourth Amendment rights of any other party to the call. United States v. White, 401 U.S. 745 (1971). A person also runs the risk that a third party to whom she turns over information may disclose such information to the government. United States v. Miller, 425 U.S. 435 (1976).

Question 30

Fly-over

Answer 30

An inspection conducted from at least 400 feet in the air, whether by an airplane or a helicopter, does not violate a reasonable expectation of privacy and therefore is not a search for the purposes of the Fourth Amendment. Florida v. Riley, 488 U.S. 445 (1989) (helicopter); California v. Ciraolo, 476 U.S. 207 (1986) (airplane).

Question 31

Technological device

Answer 31

Attaching a device to a person’s body without consent in order to track that person’s movements is a search for Fourth Amendment purposes. Grady v. North Carolina, 575 U.S. 306 (2015). Similarly, collection by law enforcement of cell-site location information records from wireless carriers in order to track a suspect’s whereabouts requires a warrant. Carpenter v. United States, 585 U.S. ___ (2018).

With regard to automobiles, the Fourth Amendment does not prohibit the police from using technological devices to enhance their ability to search (e.g., radar detectors, computers to search license plates, surveillance equipment). United States v. Knotts, 460 U.S. 276 (1983) (placement of a tracking device on a car). However, physically intruding upon a suspect’s property to install a technological device (e.g., a GPS tracker on a car to gather information) may constitute a search. United States v. Jones, supra.

The use of a device or sense-enhancing technology (e.g., a thermal sensing device) that is not in use by the general public to explore the details of a dwelling that would previously have been unknowable without physical intrusion constitutes a search. Kyllo v. United States, 533 U.S. 27 (2001). Moreover, use of an electronic listening device to eavesdrop on a conversation made from a public phone booth can violate the speaker’s reasonable expectation of privacy. Katz v. United States, supra.

Question 32

Canine sniff

Answer 32

Use of a trained dog to sniff for the presence of drugs is a search if it involves a physical intrusion onto constitutionally protected property. Florida v. Jardines, 569 U.S. 1 (2013) (curtilage). In the absence of a physical intrusion, the use of drug-sniffing dogs does not violate a reasonable expectation of privacy. Illinois v. Caballes, 543 U.S. 405 (2005) (car); United States v. Place, 462 U.S. 696 (1983) (luggage in a public place).

Question 33

Field test of substance

Answer 33

A field test performed on a substance to determine if the substance is contraband is not a search for Fourth Amendment purposes. United States v. Jacobsen, 466 U.S. 109 (1984).

Question 34

Probable cause

Answer 34

Facts supporting probable cause may come from any of the following sources:

i) A police officer’s personal observations;
ii) Information from a reliable, known informant or from an unknown informant that can be independently verified; or
iii) Evidence seized during stops based on reasonable suspicion, evidence discovered in plain view, or evidence obtained during consensual searches.

Question 35

Right to attack truthfulness of affidavit

Answer 35

Generally, a search warrant that is valid on its face may not be attacked by a defendant as lacking in probable cause. A defendant can challenge a facially valid warrant only when the defendant can establish, by a preponderance of the evidence, that:

i) The affidavit contained false statements that were made by the affiant knowingly, intentionally, or with a reckless disregard for their truth; and
ii) The false statements were necessary to the finding of probable cause.

Question 36

Informants

Answer 36

Courts use the totality of the circumstances test to determine whether information provided by a police informant is sufficient to create probable cause. The affidavit generally does not need to include any particular information about the informant, including the informant’s identity, so long as a neutral magistrate can find that, based on the informant’s information and all other available facts, there is probable cause to issue the warrant. Illinois v. Gates, 462 U.S. 213 (1983); McCray v. Illinois, 386 U.S. 300 (1967).

Question 37

Particularity

Answer 37

A search warrant must describe with particularity the place to be searched and the objects to be seized. United States v. Grubbs, 547 U.S. 90 (2006). Warrants that, in addition to describing specific documents to be seized, also refer to “other fruits, instrumentalities and evidence of the crime at this [time] unknown” are not converted into illegal general warrants by the inclusion of such language. The reference to a “crime” has been interpreted as being limited to a particular crime (e.g., false pretenses), rather than any crime. Andresen v. Maryland, 427 U.S. 463 (1976). A warrant need not specify the manner of its execution.

Question 38

Anticipatory warrant

Answer 38

Police do not have to believe that contraband is on the premises to be searched at the time the warrant is issued. The probable cause requirement is satisfied when, at the time that the warrant is issued, there is probable cause to believe that the triggering condition will occur and, if that condition does occur, there is a fair probability that contraband or evidence of a crime will be found in a particular place. United States v. Grubbs, supra.

Question 39

Third-party premises

Answer 39

A search warrant may be issued to search the premises of a person who is not suspected of a crime. Zurcher v. Stanford Daily, 436 U.S. 547 (1978).

Question 40

Execution of warrant

Answer 40

1) By whom

A warrant cannot be executed by a private citizen. Generally, only a police officer may execute a warrant, but administrative warrants may be executed by the appropriate governmental official (e.g., fire inspector).

2) Timing

A warrant that is not timely executed (i.e., an unreasonable delay occurs) may be subject to challenge on the grounds that probable cause ceased to exist.

3) Manner of execution—knock and announce

Most states and the federal government mandate that a police officer, when executing either a search or an arrest warrant, must generally announce his purpose before entering. The knock-and-announce rule gives individuals the opportunity to comply with the law, to avoid the destruction of property occasioned by a forcible entry, and to collect themselves with dignity before answering the door. The rule also serves to protect officers and the inhabitants of the building from physical harm, because an unannounced entry may provoke violence in supposed self-defense by the surprised resident. A state may permit an exception to the rule if the entry is made under exigent circumstances, such as when there is a reasonable belief of danger to the officer or destruction of evidence. Ker v. California, 374 U.S. 23, 34 (1963).

Note, however, that the interests protected by the knock-and-announce requirement do not include the shielding of potential evidence from discovery. Thus, violation of the “knock and announce” rule does not trigger the exclusionary rule (see § I.C.6., infra) with respect to evidence discovered as a result of a search conducted in violation of the “knock and announce” rule. Hudson v. Michigan, 547 U.S. 586 (2006).

4) Seizure of evidence not specified

A search warrant confers authority to search only the places and persons named in it. That said, any evidence of a crime, instrumentalities or fruits of a crime, or contraband found in plain view while properly executing the warrant, whether or not specified in the warrant, may be seized (see §I.C.4.e., “Plain view” doctrine, infra).

5) Treatment of persons not specified in the warrant

Independent justification is needed to search persons not named in a search warrant; mere proximity to a named person does not supply such justification. Ybarra v. Illinois, 444 U.S. 84 (1979). However, in conducting a search for contraband pursuant to a warrant, any occupant of the premises to be searched may be detained in a reasonable manner, which may include the use of handcuffs, for a reasonable time while the search is conducted. Muehler v. Mena, 544 U.S. 93 (2005); Michigan v. Summers, 452 U.S. 692 (1981). Such a detention is only justified for individuals within the immediate vicinity of the premises to be searched. If an individual is not in the immediate vicinity of the premises, then a detention of that individual must be justified by some other rationale. Bailey v United States, 568 U.S. 186 (2013) (detaining suspect one mile away from premises was unreasonable).

Question 41

Search incident to a lawful arrest

Answer 41

A warrantless search is valid if it is reasonable in scope and if it is made incident to a lawful arrest. If the arrest is invalid, any search made incident to it is likewise invalid. Therefore, if a suspect is stopped for a traffic offense and given a citation but not arrested, then there can be no search incident to lawful arrest. Knowles v. Iowa, 525 U.S. 113 (1999).

Question 42

The Chimel standard

Answer 42

A lawful arrest creates a situation that justifies a warrantless contemporaneous search of the person arrested and the immediate surrounding area (i.e., his “wingspan”) from which a weapon may be concealed or evidence destroyed. Chimel v. California, 395 U.S. 752 (1969).

If the arrest occurs in a home, it is permissible to conduct a “protective sweep” for confederates (i.e., people who might launch an attack) in spaces immediately adjacent to the place of arrest, even without probable cause or reasonable suspicion. A “protective sweep” allows a quick and limited visual inspection of those places immediately adjacent to the place of arrest in which a person might be hiding (e.g., adjacent rooms, closets, showers). If the officers have reasonable suspicion that confederates are hiding beyond these immediately adjacent areas, they can broaden their search for people in those places too. Maryland v. Buie, 494 U.S. 325, 334 (1990) (finding that after police properly arrested defendant in his home after defendant came up from his basement, the police were permitted to conduct a protective sweep of the basement to ensure their safety).

Question 43

Time limitations (temporal unity)

Answer 43

A search incident to a valid arrest must take place contemporaneously with the arrest in order to be valid.

Question 44

Scope of search

Answer 44

The right to search incident to a lawful arrest includes the right to search pockets of clothing and to open containers found inside the pockets. The right also extends to containers “immediately associated” with the person (such as a shoulder bag or purse).

The search incident to lawful arrest exception does not extend to an arrestee’s cell phone or laptop. Absent exigent circumstances, police must obtain a warrant before searching digital information of a person arrested. Riley v. California, 573 U.S. 373 (2014).

Question 45

Vehicle search incident to arrest

Answer 45

To justify a warrantless search of an automobile incident to arrest, the Fourth Amendment requires that law enforcement demonstrate either (i)that the arrestee is within reaching distance of the passenger compartment at the time of the search and, as a result, may pose an actual and continuing threat to the officer’s safety or a need to preserve evidence from being tampered with by the arrestee or (ii) that it is reasonable that evidence of the offense of arrest might be found in the vehicle. Arizona v. Gant, 556 U.S. 332 (2009).

Question 46

Impounded vehicle

Answer 46

A legally impounded vehicle may be searched, including closed containers, such as glove box or a backpack, as part of a routine inventory search. South Dakota v. Opperman, 428 U.S. 364, 369–71 (1976). The warrantless search need not take place at the time that the vehicle is seized.

Question 47

Exigent circumstances

Answer 47

Warrantless entry into a home or business is presumed unlawful unless the government demonstrates both probable cause and exigent circumstances. In determining the existence of exigent circumstances, courts use the “totality of circumstances” test. As a corollary to this doctrine, police may also secure the premises for a reasonable time to enable officers to obtain a warrant when the police have reason to believe that the failure to do so could result in the destruction of evidence. Illinois v. McArthur, 531 U.S. 326 (2001).

The exigent-circumstances rule does not apply when the police create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment. Kentucky v. King, 563 U.S. 452 (2011).

1) Hot pursuit

If the police have probable cause to believe that an individual has committed a felony and they are pursuing him to arrest him, then they have the right to enter a private building during the pursuit, to search that building for the person or his weapons while they are present on the premises, and to seize evidence found there, even though the material found is “mere” evidence and neither fruits nor instrumentalities of a crime.

No such exigency exists in pursuing someone suspected of a nonjailable traffic offense; the hot-pursuit exception is inapplicable in that instance. Welsh v. Wisconsin, 466 U.S. 740 (1984).

2) Emergency situations

A search without a warrant is authorized whenever there is a reasonable apprehension that the delay required in obtaining the warrant would result in the immediate danger of evidence destruction or the threatened safety of the officer or the public, or when a suspect is likely to flee before a warrant can be obtained.

Whether a person is in need of aid is judged on the basis of a police officer’s objective reasonable belief that the person needs aid. Aid includes emergency assistance to an injured occupant as well as protection of an occupant from imminent injury. Neither the officer’s subjective motive for searching without a warrant nor the seriousness of the crime the officer was originally investigating are relevant in making this determination. Brigham City v. Stuart, 547 U.S. 398 (2006).

c. Stop and frisk
1) Stop—limited seizure/detention

A “stop” (also known as a “Terry stop”) is a limited and temporary intrusion on an individual’s freedom of movement short of a full custodial arrest. Merely approaching a person, but not restricting the person’s movement in any way, does not constitute a detention. A stop is justified on the reasonable suspicion, based upon articulable facts, that the detainees are or were involved in criminal activity. Terry v. Ohio, 392 U.S. 1 (1968). Whether reasonable suspicion exists is based on the totality of the circumstances. It requires more than a vague suspicion, but less than probable cause, and it need not be based on a police officer’s personal knowledge.

Example: Police were justified in stopping a suspect who (i) was standing on a street corner in a high-crime area and (ii) fled upon noticing the police, even though neither factor alone would constitute reasonable suspicion to justify a stop. Illinois v. Wardlow, 528 U.S. 119 (2000).

Reasonable suspicion can be based on a flyer, a police bulletin, or an informant’s tip, but only if the tip is accompanied by sufficient indicia of reliability. United States v. Hensley, 469 U.S. 221, 233–34 (1985).

In addition, a police officer’s reasonable mistake of law can support reasonable suspicion to conduct a traffic stop. Heien v. North Carolina, 574 U.S. 54 (2014).

2) Frisk—limited search

An officer who does not have probable cause to arrest may make a limited search of a person he has lawfully stopped, such as a pat-down of the outer clothing, if he has reasonable suspicion that the person was or is involved in criminal activity and that the frisk is necessary for the preservation of his safety or the safety of others (i.e., reasonable suspicion that the person has a weapon).

Under the “plain feel” exception, if an officer conducting a valid frisk feels with an open hand an object that has physical characteristics that make its identity immediately obvious (i.e., he has probable cause to believe that the item is contraband), then the officer may seize the evidence. Police may also briefly seize items if the officers have a reasonable suspicion that the item is or contains contraband.

3) Terry stop and frisk of a car

Pursuant to a lawful stop of a vehicle, police may conduct a search of the passenger compartment for weapons, if:

i) The police possess a reasonable belief that the suspect is dangerous and may gain immediate control of weapons; and
ii) The search of the passenger compartment is “limited to those areas in which a weapon may be placed or hidden.”

Michigan v. Long, 463 U.S. 1032, 1048–50 (1983).

Police may order occupants out of a vehicle that they have lawfully stopped. Maryland v. Wilson, 519 U.S. 408 (1997).

When police make a lawful traffic stop, they are automatically detaining both the driver and the passenger. They may only frisk the driver or the passenger if they have reasonable suspicion that the person is carrying a weapon. Arizona v. Johnson, 555 U.S. 323 (2009).

4) Limits on time, place, and investigative method

A Terry stop must be temporary and last no longer than is necessary to effectuate the purpose of the stop. The investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short time. Police can require that the detained person identify himself. Failure to comply with this request can result in the arrest of the detained person.

After the conclusion of a traffic stop, absent reasonable suspicion, police extension of the stop in order to conduct a dog sniff violates the Fourth Amendment’s protection against unreasonable seizures. Rodriguez v. United States, 575 U.S. 348 (2015).

When police hold a suspect beyond the amount of time necessary to effectuate the purpose of a Terry stop, the seizure becomes an arrest and must be supported by probable cause.

5) Development of probable cause

If the officer conducting the stop develops probable cause, the officer may then make an arrest and conduct a full search incident to that arrest. If the stop involves a vehicle, the officer may search the passenger compartment and all containers therein, whether open or closed, if the arrestee is within reaching distance of the passenger compartment of the vehicle or if it is reasonable to believe that the vehicle contains evidence of the offense of arrest. See §I.C.4.a.4), Vehicle search incident to arrest, supra, discussing the Gant rule.

d. Automobile exception

The Fourth Amendment does not require police to obtain a warrant to search a vehicle if they have probable cause to believe that it contains contraband or evidence of a criminal activity. The police may search anywhere in a car that they believe there to be contraband, including the trunk and locked containers, so long as they have probable cause to do so. United States v. Ross, 456 U.S. 798, 825 (1982). The search may also extend to passengers’ belongings, Wyoming v. Houghten, 526 U.S. 295, 302 (1999), as well as to mobile homes, California v. Carney, 471 U.S. 386, 393–394 (1985). Any other evidence observed in plain view may also be seized.

Note that the automobile exception does not permit the warrantless entry of a home or its curtilage in order to search a vehicle therein. Collins v. Virginia, 584 U.S. ___ (2018).

1) Pretextual stop

Police may use a pretextual stop to investigate whether a law has been violated, even if they have no reasonable suspicion, provided that they have probable cause to believe that the law for which the vehicle was stopped has been violated. Whren v. United States, 517 U.S. 806 (1996) (seizure of illegal drugs constitutional even though police stopped a car for a traffic violation as a pretext to investigate a hunch that the occupants possessed drugs).

2) Containers within a car

Probable cause to search a vehicle extends only to containers and compartments that reasonably could hold the evidence they are searching for. If the police have probable cause to search only a particular container, they may search only that container, and not the entire car. Arkansas v. Sanders, 442 U.S. 753 (1979); California v. Acevedo, 500 U.S. 565, 570 (1991). (Note, however, that what the officers find in one container may give them probable cause to believe evidence is contained elsewhere in the car.)

Example: A driver left a residence holding a closed paper bag, which officers had probable cause to believe contained narcotics, based on an informant’s tip. The bag was placed in the trunk, and the driver drove away. Police were authorized to stop the vehicle, open the trunk, and inspect the bag. However, the search was limited to the bag only. If they did not find the bag, they could only open and search containers big enough to store the bag. Id. at 579–80.

3) Trunk

If police have probable cause to search the trunk, not just a container placed in the trunk, then they can search the entire trunk and every container in the trunk, even if locked.

e. “Plain-view” doctrine
1) In public view

Items in public view may be seized without a warrant because one cannot have a reasonable expectation of privacy in things that are exposed to the public (e.g., physical characteristics, vehicle identification numbers, or items in open fields).

2) In private view

In situations in which there is a reasonable expectation of privacy, a police officer may seize an item in plain view of the officer, even if the item was not named in the search warrant, as long as (i) the officer is lawfully on the premises, (ii) the incriminating character of the item is immediately apparent, and (iii) the officer has lawful access to the item (e.g., viewing an object through a window is insufficient if the officer does not have lawful access to the inside of the house). The discovery of the item does not need to be inadvertent. Horton v. California, 496 U.S. 128 (1990); Arizona v. Hicks, 480 U.S. 231 (1987).

Example: Officer Olivia was executing a valid warrant to search Defendant Doug’s home for a gun suspected to have been used in a murder. On entering the premises, Olivia saw bags of cocaine piled on Doug’s coffee table. Under the “plain view” doctrine, Olivia could properly seize the bags, even though the warrant applied only to a gun.

f. Consent searches

Consent can serve to eliminate the need for police to have probable cause as well as to first obtain a warrant in order to conduct a search.

1) Voluntary

For permission to constitute consent, the permission must be given voluntarily. Permission given under threats of harm or compulsion does not constitute consent. In determining whether a person’s response constitutes consent, courts evaluate the totality of the circumstances in which the response is made.

a) False assertion of authority

Permission given in acquiescence to lawful authority (e.g., a warrant) is not voluntary. Consequently, if the officer conducting the search erroneously states that he has a warrant, then permission given in reliance on that statement does not constitute consent. Bumper v. North Carolina, 391 U.S. 543, 549 (1968).

b) Knowledge of the right to withhold consent

The failure by police to inform the person from whom consent is sought that she has the right to withhold consent does not invalidate the consent. Schneckloth v. Bustamonte, 412 U.S. 218, 233 (1973).

c) Consent based on deceit

A government agent pretending to be a narcotics buyer, for example, may accept an invitation to enter the premises for the purposes contemplated by the occupant (i.e., to purchase drugs). The officer or agent may then seize things in plain view. Lewis v. United States, 385 U.S. 206 (1966).

2) Third-party consent

When the person from whom consent is sought is not the defendant, in addition to the voluntariness of the permission, the authority of that person to consent can be an issue.

a) Property of a third party

Generally, a third party has the authority to consent to a search of property that she owns or occupies. As such, the defendant cannot suppress evidence seized during such a search on the grounds that he (the defendant) did not consent to the search.

b) Property of the defendant

Generally, a third party does not have the authority to consent to a search of property owned or occupied by the defendant. The defendant can generally suppress evidence seized during such a search unless (i) an agency relationship exists between the third party and the defendant that gives to the third party the right to consent on behalf of the defendant, or (ii)the defendant otherwise gives the third party such rights with respect to the property that the defendant assumes the risk that the third party would allow the property to be searched (e.g., a shared duffle bag). Frazier v. Cupp, 394 U.S. 731, 740 (1969).

c) Jointly controlled property

When the property to be searched is under the joint control of the defendant and a third party (e.g., co-tenants of an apartment, a house jointly owned by a husband and wife), the authority of the third party to consent turns on whether the defendant is present at the time of the search.

i) Defendant not present

If the property to be searched is under the joint control of the defendant and a third party, and the defendant is not present at the time of the search, then the third party has authority to consent. The third party has actual authority when she has joint access or control for most purposes. U.S. v. Matlock, 415 U.S. 164, 170–171 (1974). In addition, the third party’s consent may be valid even though she lacks actual authority if the police reasonably believe that she has such authority. Illinois v. Rodriguez, 497 U.S. 177, 184 (1990).

ii) Defendant present

When the property to be searched is under the joint control of the defendant and a third party, and the defendant is present at the time of the search, then the police may not rely on third-party consent if the defendant objects to the search. Georgia v. Randolph, 547 U.S. 103, 114–116 (2006). When the defendant is not present, however, a third party may consent to a search even if the defendant previously was present and objected to a search at that time. Fernandez v. California, 571 U.S. 292 (2014).

iii) Ownership versus current control

In some instances, ownership of the premises is not sufficient to confer authority to consent to a search. For example, a landlord may not consent to a search of the tenant’s premises. Chapman v. United States, 365 U.S. 610, 617 (1961). Similarly, a hotel clerk cannot consent to the search of a guest’s room until the guest has permanently checked out. Stoner v. California, 376 U.S. 483, 489 (1964). However, some circuits have held that the owner of a house can consent to a search of rooms occupied by non-paying guests.

iv) Parental consent

When a child lives with a parent, the parent has the authority to consent to a search of a child’s room even if the child is an adult. However, a parent may lack authority to consent to the search of a locked container inside the child’s room, depending on the age of the child. U.S. v. Block, 590 F.2d 535, 540 (4th Cir. 1979).

3) Scope of consent

Although a search is limited to the area to which the consent applies, the search may extend to areas that a reasonable officer would believe it extends. For example, consent by a driver to search his car for drugs extends to a closed container within the car that could contain drugs. Florida v. Jimento, 500 U.S. 248, 252 (1991).

4) Burden of proof

The prosecution must prove that the permission was freely given; the defendant is not required to show that the permission was coerced.

g. Administrative, special needs, and inventory searches

Administrative search warrants are generally required for nonconsensual fire, health, or safety inspections of residential or private commercial property.

1) Probable cause

The probable cause requirement for administrative searches is less stringent than that for a criminal investigation. Evidence of an existing statutory or regulatory violation or a reasonable plan supported by a valid public interest will justify the issuance of a warrant. Camara v. Mun. Court of San Francisco, 387 U.S. 523, 533 (1967).

2) Use of administrative searches

The government may not use administrative searches to investigate criminal activity. However, discovery of evidence during the search does not invalidate the search. The following administrative-type searches may be validly made without a warrant:

i) Searches of people entering an airplane boarding area, as long as the passenger can prevent the search by not boarding the plane;
ii) Searches of businesses in highly regulated industries such as liquor stores, gun shops, strip-mining operations, and automobile junkyards, because of urgent public interest and under the theory that the business impliedly consented to warrantless searches by entering into a highly regulated industry;
iii) Oral statements seized by wiretaps, when matters of national security are at issue;
iv) Searches of students by public school officials, so long as they are based on reasonable grounds (this standard is lower than probable cause and calls for only a “moderate chance” of finding the expected evidence, rather than a “fair probability” or “substantial chance”), and the measures adopted for the search are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. New Jersey v. T.L.O., 469 U.S. 325, 340–341 (1985); Safford Unified Sch. Dist. #1 v. Redding, 557 U.S. 364, 370-371 (2009).
v) Special needs searches, such as drug testing for railroad employees involved in an accident or student athletes during the athletic season. To be a special need, the state interest must be a real, current, and vital problem that can be effectively addressed through the proposed search. Even if the need exists, it must be balanced against the privacy interest at stake and the character of the intrusion. Bd. of Educ. v. Earls, 536 U.S. 822, 829 (2002);
vi) Inventory searches of items in official custody, such as impounded vehicles. After lawfully taking custody of property, police may conduct a warrantless search of other property to protect the owner’s property while in custody, to protect police from claims of theft, and to protect officers from danger. Inventory searches must be performed according to standardized criteria and procedures. Subjective intent of the officer is irrelevant;
vii) Routine international border searches of border crossers and their belongings within the United States, including (i) stops, but not searches, by roving patrols who reasonably suspect that undocumented immigrants may be in an automobile, (ii) opening of international mail if authorities have reasonable cause to suspect contraband in the mail, and (iii) subsequent reopening of mail after the item had been resealed and delivered to the recipient;
viii) Vehicle checkpoints and roadblocks set up to stop cars on the basis of a neutral articulable standard and designed to serve a limited purpose closely related to the problem of an automobile’s inherent mobility (e.g., to get drunk drivers off the road);
ix) Factory searches of the entire work force to determine citizenship of workers;
x) Searches of government employees’ electronically recorded documents and conduct, file cabinets, and desks if they are justified by a reasonable suspicion of work-related misconduct or a non-investigatory, work-related need;
xi) Detention of a traveler whom authorities have reasonable suspicion is smuggling contraband in his stomach;
xii) Searches of parolees and their homes, even with no reasonable suspicion, when a parolee agrees to submit to searches by a parole officer or police officer at any time as a condition of his parole. The rationale being that because there is a greater need to search parolees since they are less likely to be law-abiding citizens, a parolee has a lower expectation of privacy;
xiii) Seizure of contaminated or spoiled food; and
xiv) Searches for the cause of a fire that occurs within a reasonable time after the fire is extinguished, but excluding searches for other evidence unrelated to the cause that would establish that the fire was attributable to arson. Michigan v. Clifford, 464 U.S. 287 (1984) (search of home); Michigan v. Tyler, 436 U.S. 499 (1978) (search of business (furniture store)).
h. Wiretapping

To obtain a warrant authorizing a wiretap, officers must satisfy the below requirements. The warrant must:

i) Be limited to a short period of time;
ii) Demonstrate probable cause that a specific crime has been or is about to be committed;
iii) Name the person or persons to be wiretapped;
iv) Describe with particularity the conversations that can be overheard; and
v) Include provisions for the termination of the wiretap.

Upon termination of the wiretap, the conversations that have been intercepted must be shown to the court. Note that a person assumes the unreliability of those to whom she speaks and has no Fourth Amendment claim if she finds out later that the listener was wired or recording the conversation. United States v. White, 401 U.S. 745 (1971). Furthermore, a speaker who makes no attempt to keep his conversation private has no Fourth Amendment claim. Katz v. United States, 389 U.S. 347 (1967).

In addition, a wiretap related to domestic security surveillance requires that a neutral and detached magistrate—not the president—make the determination that a wiretapping warrant should issue, and the wiretap must comply with the Omnibus Crime Control and Safe Streets Act. However, there is no requirement for prior authorization when a covert entry is planned to install the electronic equipment, or when a pen register is used.

Question 48

Raising the Issue of Standing

Answer 48

To establish that a search violated his Fourth Amendment rights, a defendant must show a legitimate expectation of privacy with regard to the search (see §I.C.2., supra). To make such a showing, which is sometimes referred to as “standing,” the defendant may have to admit facts that would incriminate him. Consequently, testimony given by the defendant to establish standing cannot be admitted as evidence against the defendant at trial.

Question 49

Exclusionary Rule

Answer 49

Under the exclusionary rule, evidence obtained in violation of the accused’s Fourth, Fifth, or Sixth Amendment rights may not be introduced at her trial to prove her guilt. Under the Fourth Amendment, evidence seized during an unlawful search cannot constitute proof against the victim of the search. Weeks v. United States, 232 U.S. 383 (1914).

Question 50

Fruit of the poisonous tree

Answer 50

Subject to some exceptions, the exclusionary rule applies not only to evidence initially seized as a result of the primary government illegality, but also to secondary “derivative evidence” discovered as a result of the primary taint, also known as the “fruit of the poisonous tree.”

Question 51

Exceptions

Answer 51

Evidence, whether primary or derivative, may still be admissible if one of the following exceptions to the exclusionary rule applies.

1) Inevitable discovery rule

The prosecution can prove that the evidence would have been inevitably discovered in the same condition through lawful means.

2) Independent source doctrine

The evidence was discovered in part by an independent source unrelated to the tainted evidence.

3) Attenuation principle

The chain of causation between the primary taint and the evidence has been so attenuated as to “purge” the taint. Both the passage of time and/or intervening events may attenuate the taint.

Example: An officer makes an unconstitutional investigatory stop, learns during the stop that the suspect was subject to a valid arrest warrant, arrests the suspect, and seizes incriminating evidence during a search incident to that arrest. The evidence the officer seizes as part of the search incident to the arrest is admissible. Utah v. Strieff, 579 U.S. ___, 136 S. Ct. 2056 (2016).

4) Good-faith exception

The good-faith exception applies to police officers who act in good faith on either a facially valid warrant later determined to be invalid or an existing law later declared unconstitutional. Michigan v. DeFillippo, 443 U.S. 31 (1979). Good faith is limited to the objective good faith of a reasonable police officer.

This exception does not apply if:

i) No reasonable officer would rely on the affidavit underlying the warrant;
ii) The warrant is defective on its face;
iii) The warrant was obtained by fraud;
iv) The magistrate has “wholly abandoned his judicial role”; or
v) The warrant was improperly executed.
5) Isolated police negligence

Isolated negligence by law-enforcement personnel will not necessarily trigger the exclusionary rule. To trigger the rule, police conduct must be “sufficiently deliberate such that exclusion can meaningfully deter it.” The exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct or, in some circumstances, recurring or systemic negligence. Herring v. United States, 555 U.S. 135, 144 (2009).

Example: Defendant Don goes to the police station to pick up an impounded vehicle. Policeman Paul believes that there might be a warrant out from another county for Don’s arrest and calls the other county’s sheriff to check. The sheriff tells Paul that there is a warrant out for Don’s arrest. Paul immediately arrests Don and in a search incident to the arrest finds illegal drugs and an illegal weapon on Don. Minutes later, the sheriff calls back to say that the warrant had actually been recalled and she had made a mistake. The exclusionary rule will not apply to the drugs and the weapon because Paul was relying in good faith on the erroneous information from the sheriff in conducting the arrest. The exclusionary rule should be applied only if there is substantial additional deterrence of police misconduct to be gained. Herring v. United States, 555 U.S. 135 (2009).

6) Knock and announce

The exclusionary rule does not apply to evidence discovered as a result of a search conducted in violation of the “knock and announce” rule, if the search was otherwise authorized by a valid warrant. Hudson v. Michigan, 547 U.S. 586 (2006).

7) In-court identification

A witness’s in-court identification of the defendant is not fruit of an unlawful detention. Thus, the identification cannot be excluded. On the other hand, live testimony may be excluded as fruit of illegal police conduct if there is a sufficient link between the illegal police conduct and the testimony.

c. Harmless error

Even if the trial court wrongfully admitted illegally seized evidence, the appellate court can refuse to order a new trial if it finds that the error was harmless beyond a reasonable doubt, meaning that the erroneously admitted evidence did not contribute to the result.

Note: The denial of the right to counsel is never a harmless error.

d. Enforcement

When the defendant challenges a confession or the admissibility of evidence, by right, a hearing is held to determine whether the confession or evidence is fruit of the poisonous tree. This hearing is held outside the presence of the jury. The defendant has a right to testify at this hearing, and the state bears the burden of establishing admissibility by a preponderance of the evidence.

e. Obtaining evidence by questionable methods

Evidence obtained in a manner that shocks the conscience is inadmissible. Examples of such methods of gathering evidence include inducements by official actions that offend the sense of justice and serious intrusions into the body, such as with surgery to remove a bullet. Contrast that, however, with a cheek swab to obtain a DNA sample, which is a reasonable intrusion because it is quick and painless, and involves no surgical intrusion beneath the skin. Maryland v. King, 569 U.S. 435 (2013).