CRS Annotated Constitution
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The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
History and Scope of the Amendment
History.—Few provisions of the Bill of Rights grew so directly out of the experience of the colonials as the Fourth Amendment, embodying as it did the protection against the utilization of the “writs of assistance.” But while the insistence on freedom from unreasonable searches and seizures as a fundamental right gained expression in the Colonies late and as a result of experience,1 there was also a rich English experience to draw on. “Every man’s house is his castle” was a maxim much celebrated in England, as was demonstrated in Semayne’s Case, decided in 1603.2 A civil case of execution of process, Semayne’s Case nonetheless recognized the right of the homeowner to defend his house against unlawful entry even by the King’s agents, but at the same time recognized the authority of the appropriate officers to break and enter upon notice in order to arrest or to execute the King’s process. Most famous of the English cases was Entick v. Carrington,3 one of a series of civil actions against state officers who, pursuant to general warrants, had raided many homes and other places in search of materials[p.1200]connected with John Wilkes’ polemical pamphlets attacking not only governmental policies but the King himself.4
Entick, an associate of Wilkes, sued because agents had forcibly broken into his house, broken into locked desks and boxes, and seized many printed charts, pamphlets and the like. In an opinion sweeping in terms, the court declared the warrant and the behavior it authorized subversive “of all the comforts of society,” and the issuance of a warrant for the seizure of all of a person’s papers rather than only those alleged to be criminal in nature “contrary to the genius of the law of England.”5 Besides its general character, said the court, the warrant was bad because it was not issued on a showing of probable cause and no record was required to be made of what had been seized. Entick v. Carrington, the Supreme Court has said, is a “great judgment,” “one of the landmarks of English liberty,” “one of the permanent monuments of the British Constitution,” and a guide to an understanding of what the Framers meant in writing the Fourth Amendment.6
In the colonies, smuggling rather than seditious libel afforded the leading examples of the necessity for protection against unreasonable searches and seizures. In order to enforce the revenue laws, English authorities made use of writs of assistance, which were general warrants authorizing the bearer to enter any house or other place to search for and seize “prohibited and uncustomed” goods, and commanding all subjects to assist in these endeavors. The writs once issued remained in force throughout the lifetime of the sovereign and six months thereafter. When, upon the death of George II in 1760, the authorities were required to obtain the issuance of new writs, opposition was led by James Otis, who attacked such writs on libertarian grounds and who asserted the invalidity of the authorizing statutes because they conflicted with English constitutionalism.7 Otis lost and the writs were issued and utilized, but his arguments were much cited in the colonies not only on the immediate subject but also with regard to judicial review.
Scope of the Amendment.—The language of the provision which became the Fourth Amendment underwent some modest[p.1201]changes on its passage through the Congress, and it is possible that the changes reflected more than a modest significance in the interpretation of the relationship of the two clauses. Madison’s introduced version provided “The rights to be secured in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.”8 As reported from committee, with an inadvertent omission corrected on the floor,9 the section was almost identical to the introduced version, and the House defeated a motion to substitute “and no warrant shall issue” for “by warrants issuing” in the committee draft. In some fashion, the rejected amendment was inserted in the language before passage by the House and is the language of the ratified constitutional provision.10
As noted above, the noteworthy disputes over search and seizure in England and the colonies revolved about the character of warrants. There were, however, lawful warrantless searches, primarily searches incident to arrest, and these apparently gave rise to no disputes. Thus, the question arises whether the Fourth Amendment’s two clauses must be read together to mean that the only searches and seizures which are “reasonable” are those which meet the requirements of the second clause, that is, are pursuant to warrants issued under the prescribed safeguards, or whether the two clauses are independent, so that searches under warrant must comply with the second clause but that there are “reasonable” searches under the first clause which need not comply with the second clause.11 This issue has divided the Court for some time, has[p.1202]seen several reversals of precedents, and is important for the resolution of many cases. It is a dispute which has run most consistently throughout the cases involving the scope of the right to search incident to arrest.12 While the right to search the person of the arrestee without a warrant is unquestioned, how far afield into areas within and without the control of the arrestee a search may range is an interesting and crucial matter.
The Court has drawn a wavering line.13 In Harris v. United States,14 it approved as “reasonable” the warrantless search of a four–room apartment pursuant to the arrest of the man found there. A year later, however, a reconstituted Court majority set aside a conviction based on evidence seized by a warrantless search pursuant to an arrest and adopted the “cardinal rule that, in seizing goods and articles, law enforcement agents must secure and use search warrants wherever reasonably practicable.”15 This rule was set aside two years later by another reconstituted majority which adopted the premise that the test “is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.” Whether a search is reasonable, the Court said, “must find resolution in the facts and circumstances of each case.”16 However, the Court soon returned to its emphasis upon the warrant. “The [Fourth] Amendment was in large part a reaction to the general warrants and warrantless searches that had so alienated the colonists and had helped speed the movement for independence. In the scheme of the Amendment, therefore, the requirement that ‘no Warrants shall issue, but upon probable cause,’ plays a crucial part.”17 Therefore, “the police must, whenever practicable, obtain advance judicial approval of searches and seizures through a warrant procedure.”18 Exceptions to searches under warrants were to[p.1203]be closely contained by the rationale undergirding the necessity for the exception, and the scope of a search under one of the exceptions was similarly limited.19
During the 1970s the Court was closely divided on which standard to apply.20 For a while, the balance tipped in favor of the view that warrantless searches are per se unreasonable, with a few carefully prescribed exceptions.21 Gradually, guided by the variable expectation of privacy approach to coverage of the Fourth Amendment, the Court broadened its view of permissible exceptions and of the scope of those exceptions.22
By 1992, it was no longer the case that the “warrants–with– narrow–exceptions” standard normally prevails over a “reasonableness” approach.23 Exceptions to the warrant requirement have[p.1204]multiplied, tending to confine application of the requirement to cases that are exclusively “criminal” in nature. And even within that core area of “criminal” cases, some exceptions have been broadened. The most important category of exception is that of administrative searches justified by “special needs beyond the normal need for law enforcement.” Under this general rubric the Court has upheld warrantless searches by administrative authorities in public schools, government offices, and prisons, and has upheld drug testing of public and transportation employees.24 In all of these instances the warrant and probable cause requirements are dispensed with in favor of a reasonableness standard that balances the government’s regulatory interest against the individual’s privacy interest; in all of these instances the government’s interest has been found to outweigh the individual’s. The broad scope of the administrative search exception is evidenced by the fact that an overlap between law enforcement objectives and administrative “special needs” does not result in application of the warrant requirement; instead, the Court has upheld warrantless inspection of automobile junkyards and dismantling operations in spite of the strong law enforcement component of the regulation.25 In the law enforcement context, where search by warrant is still the general rule, there has also been some loosening of the requirement. For example, the Court has shifted focus from whether exigent circumstances justified failure to obtain a warrant, to whether an officer had a “reasonable” belief that an exception to the warrant requirement applied;26 in another case the scope of a valid search “incident to arrest,” once limited to areas within the immediate reach of the arrested suspect, was expanded to a “protective sweep” of the entire home if arresting officers have a reasonable belief that the home harbors an individual who may pose a danger.27
Another matter of scope recently addressed by the Court is the category of persons protected by the Fourth Amendment—who constitutes “the people.” This phrase, the Court determined, “refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with [the United States] to be considered part of that community.”28 The Fourth Amendment therefore does not apply to the search and seizure by[p.1205]United States agents of property that is owned by a nonresident alien and located in a foreign country. The community of protected people includes U.S. citizens who go abroad, and aliens who have voluntarily entered U.S. territory and developed substantial connections with this country. There is no resulting broad principle, however, that the Fourth Amendment constrains federal officials wherever and against whomever they act.
The Interest Protected.—For the Fourth Amendment to be applicable to a particular set of facts, there must be a “search” and a “seizure,” occurring typically in a criminal case, with a subsequent attempt to use judicially what was seized. Whether there was a search and seizure within the meaning of the Amendment, whether a complainant’s interests were constitutionally infringed, will often turn upon consideration of his interest and whether it was officially abused. What does the Amendment protect? Under the common law, there was no doubt. Said Lord Camden in Entick v. Carrington:29 “The great end for which men entered in society was to secure their property. That right is preserved sacred and incommunicable in all instances where it has not been taken away or abridged by some public law for the good of the whole. . . . By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set foot upon my ground without my license but he is liable to an action though the damage be nothing . . . .” Protection of property interests as the basis of the Fourth Amendment found easy acceptance in the Supreme Court30 and that acceptance controlled decision in numerous cases.31 For example, in Olmstead v. United States,32 one of the two premises underlying the holding that wiretapping was not covered by the Amendment was that there had been no actual physical invasion of the defendant’s premises; where there had been an invasion, a technical trespass, electronic surveillance was deemed subject to[p.1206]Fourth Amendment restrictions.33 The Court later rejected this approach, however. “The premise that property interests control the right of the Government to search and seize has been discredited. . . . We have recognized that the principal object of the Fourth Amendment is the protection of privacy rather than property, and have increasingly discarded fictional and procedural barriers rested on property concepts.”34 Thus, because the Amendment “protects people, not places,” the requirement of actual physical trespass is dispensed with and electronic surveillance was made subject to the Amendment’s requirements.35
The test propounded in Katz is whether there is an expectation of privacy upon which one may “justifiably” rely.36 “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”37 That is, the “capacity to claim the protection of the Amendment depends not upon a property right in the invaded place but upon whether the area was one in which there was reasonable expectation of freedom from governmental intrusion.”38
The two–part test that Justice Harlan suggested in Katz39 has purported to guide the Court in its deliberations, but its consequences are unclear. On the one hand, there is no difference in result between many of the old cases premised on property concepts and more recent cases in which the reasonable expectation of[p.1207]privacy flows from ownership concepts.40 On the other hand, many other cases have presented close questions that have sharply divided the Court.41 The first element, the “subjective expectation” of privacy, has largely dwindled as a viable standard, because, as Justice Harlan noted in a subsequent case, “our expectations, and the risks we assume, are in large part reflections of laws that translate into rules the customs and values of the past and present.”42 As for the second element, whether one has a “legitimate” expectation of privacy that society finds “reasonable” to recognize, the Court has said that “[l]egitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.”43 Thus, protection of the home is at the apex of Fourth Amendment coverage because of the right associated with ownership to exclude others;44 but ownership of other things, i.e., automobiles, does not carry a similar high degree of protection.45 That a person has taken normal precautions to maintain his privacy, that is, precautions customarily taken by those seeking to exclude others, is usually a significant factor in determining legitimacy of expectation.46 Some expectations, the Court has held, are simply not those which society is prepared to accept.47 While perhaps not[p.1208]clearly expressed in the opinions, what seems to have emerged is a balancing standard, which requires “an assessing of the nature of a particular practice and the likely extent of its impact on the individual’s sense of security balanced against the utility of the conduct as a technique of law enforcement.” As the intrusions grow more extensive and significantly jeopardize the sense of security of the individual, greater restraint of police officers through the warrant requirement may be deemed necessary.48 On the other hand, the Court’s solicitude for law enforcement objectives may tilt the balance in the other direction.
Application of this balancing test, because of the Court’s weighing in of law enforcement investigative needs49 and the Court’s subjective evaluation of privacy needs, has led to the creation of a two–tier or sliding–tier scale of privacy interests. The privacy test was originally designed to permit a determination that a Fourth Amendment protected interest had been invaded.50 If it had been, then ordinarily a warrant was required, subject only to the narrowly defined exceptions, and the scope of the search under those exceptions was “strictly tied to and justified by the circumstances which rendered its initiation permissible.”51 But the Court now uses the test to determine whether the interest invaded is important or persuasive enough so that a warrant is required to justify it;52 if the individual has a lesser expectation of privacy, then the invasion may be justified, absent a warrant, by the reasonableness of the intrusion.53 Exceptions to the warrant requirement are no[p.1209]longer evaluated solely by the justifications for the exception, e.g., exigent circumstances, and the scope of the search is no longer tied to and limited by the justification for the exception.54 The result has been a considerable expansion, beyond what existed prior to Katz, of the power of police and other authorities to conduct searches.
Arrests and Other Detentions.—That the Fourth Amendment was intended to protect against arbitrary arrests as well as against unreasonable searches was early assumed by Chief Justice Marshall55 and is now established law.56 At the common law, it was proper to arrest one who had committed a breach of the peace or a felony without a warrant,57 and this history is reflected in the fact that the Fourth Amendment is satisfied if the arrest is made in a public place on probable cause, regardless of whether a warrant has been obtained.58 However, in order to effectuate an arrest in the home, absent consent or exigent circumstances, police officers must have a warrant.59 The Fourth Amendment applies to “seizures” and it is not necessary that a detention be a formal arrest in order to bring to bear the requirements of warrants or probable cause in instances in which warrants may be forgone.60 Some[p.1210]objective justification must be shown to validate all seizures of the person, including seizures that involve only a brief detention short of arrest, although the nature of the detention will determine whether probable cause or some reasonable and articulable suspicion is necessary.61
Until relatively recently, the legality of arrests was seldom litigated in the Supreme Court because of the rule that a person detained pursuant to an arbitrary seizure—unlike evidence obtained as a result of an unlawful search—remains subject to custody and presentation to court.62 But the application of self–incrimination and other exclusionary rules to the States and the heightening of their scope in state and federal cases alike brought forth the rule that verbal evidence, confessions, and other admissions, like all derivative evidence obtained as a result of unlawful seizures, could be excluded.63 Thus, a confession made by one illegally in custody must be suppressed, unless the causal connection between the illegal arrest and the confession had become so attenuated that the latter should not be deemed “tainted” by the former.64 Similarly, fingerprints and other physical evidence obtained as a result of an unlawful arrest must be suppressed.65[p.1211]
Searches and Inspections in Noncriminal Cases.—Certain early cases held that the Fourth Amendment was applicable only when a search was undertaken for criminal investigatory purposes,66 and the Supreme Court until recently employed a reasonableness test for such searches without requiring either a warrant or probable cause in the absence of a warrant.67 But in 1967, the Court held in two cases that administrative inspections to detect building code violations must be undertaken pursuant to warrant if the occupant objects.68 “We may agree that a routine inspection of the physical condition of private property is a less hostile intrusion than the typical policeman’s search for the fruits and instrumentalities of crime. . . . But we cannot agree that the Fourth Amendment interests at stake in these inspection cases are merely ‘peripheral.’ It is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.”69 Certain administrative inspections utilized to enforce regulatory schemes with regard to such items as alcohol and firearms are, however, exempt from the Fourth Amendment warrant requirement and may be authorized simply by statute.70
Camara and See were reaffirmed in Marshall v. Barlow’s, Inc.,71 in which the Court held violative of the Fourth Amendment a provision of the Occupational Safety and Health Act which authorized federal inspectors to search the work area of any employment facility covered by the Act for safety hazards and violations of regulations, without a warrant or other legal process. The liquor[p.1212]and firearms exceptions were distinguished on the basis that those industries had a long tradition of close government supervision, so that a person in those businesses gave up his privacy expectations. But OSHA was a relatively recent statute and it regulated practically every business in or affecting interstate commerce; it was not open to a legislature to extend regulation and then follow it with warrantless inspections. Additionally, OSHA inspectors had unbounded discretion in choosing which businesses to inspect and when to do so, leaving businesses at the mercy of possibly arbitrary actions and certainly with no assurances as to limitation on scope and standards of inspections. Further, warrantless inspections were not necessary to serve an important governmental interest, inasmuch as most businesses would consent to inspection and it was not inconvenient to require OSHA to resort to an administrative warrant in order to inspect sites where consent was refused.72
In Donovan v. Dewey,73 however, Barlow’s was substantially limited and a new standard emerged permitting extensive governmental inspection of commercial property,74 absent warrants. Under the Federal Mine Safety and Health Act, governing underground and surface mines (including stone quarries), federal officers are directed to inspect underground mines at least four times a year and surface mines at least twice a year, pursuant to extensive regulations as to standards of safety. The statute specifically provides for absence of advanced notice and requires the Secretary of Labor to institute court actions for injunctive and other relief in[p.1213]cases in which inspectors are denied admission. Sustaining the statute, the Court proclaimed that government had a “greater latitude” to conduct warrantless inspections of commercial property than of homes, because of “the fact that the expectation of privacy that the owner of commercial property enjoys in such property differs significantly from the sanctity accorded an individual’s home, and that this privacy interest may, in certain circumstances, be adequately protected by regulatory schemes authorizing warrantless inspections.”75
Dewey was distinguished from Barlow’s in several ways. First, Dewey involved a single industry, unlike the broad coverage in Barlow’s. Second, the OSHA statute gave minimal direction to inspectors as to time, scope, and frequency of inspections, while FMSHA specified a regular number of inspections pursuant to standards. Third, deference was due Congress’ determination that unannounced inspections were necessary if the safety laws were to be effectively enforced. Fourth, FMSHA provided businesses the opportunity to contest the search by resisting in the civil proceeding the Secretary had to bring if consent was denied.76 The standard of a long tradition of government supervision permitting warrantless inspections was dispensed with, because it would lead to “absurd results,” in that new and emerging industries posing great hazards would escape regulation.77 Dewey suggests, therefore, that warrantless inspections of commercial establishments are permissible so long as the legislature carefully drafts its statute.
Dewey was applied in New York v. Burger78 to inspection of automobile junkyards and vehicle dismantling operations, a situation where there is considerable overlap between administrative and penal objectives. Applying the Dewey three–part test, the Court concluded that New York has a substantial interest in stemming the tide of automobile thefts, that regulation of vehicle dismantling reasonably serves that interest, and that statutory safeguards provided adequate substitute for a warrant requirement. The Court rejected the suggestion that the warrantless inspection provisions[p.1214]were designed as an expedient means of enforcing the penal laws, and instead saw narrower, valid regulatory purposes to be served: e.g., establishing a system for tracking stolen automobiles and parts, and enhancing the ability of legitimate businesses to compete. “[A] State can address a major social problem both by way of an administrative scheme and through penal sanctions,” the Court declared; in such circumstances warrantless administrative searches are permissible in spite of the fact that evidence of criminal activity may well be uncovered in the process.79
In other contexts, the Court has also elaborated the constitutional requirements affecting administrative inspections and searches. Thus, in Michigan v. Tyler,80 it subdivided the process by which an investigation of the cause of a fire may be conducted. Entry to fight the fire is, of course, an exception based on exigent circumstances, and no warrant or consent is needed; firemen on the scene may seize evidence relating to the cause under the plain view doctrine. Additional entries to investigate the cause of the fire must be made pursuant to warrant procedures governing administrative searches. Evidence of arson discovered in the course of such an administrative inspection is admissible at trial, but if the investigator finds probable cause to believe that arson has occurred and requires further access to gather evidence for a possible prosecution, he must obtain a criminal search warrant.81
One curious case has approved a system of “home visits” by welfare caseworkers, in which the recipients are required to admit the worker or lose eligibility for benefits.82
Supplement: [P. 1214, add to text following n.82:]
In another unusual case, the Court held that a sheriff’s assistance to a trailer park owner in disconnecting and removing a mobile home constituted a “seizure” of the home.1
In addition, there are now a number of situations, some of them analogous to administrative searches, where “‘special needs’ beyond normal law enforcement . . . justify departures from the usual warrant and probable cause requirements.”83 In one of these[p.1215]cases the Court, without acknowledging the magnitude of the leap from one context to another, has taken the Dewey/Burger rationale—developed to justify warrantless searches of business establishments—and applied it to justify the significant intrusion into personal privacy represented by urinalysis drug testing. Because of the history of pervasive regulation of the railroad industry, the Court reasoned, railroad employees have a diminished expectation of privacy that makes mandatory urinalysis less intrusive and more reasonable.84
With respect to automobiles, the holdings are mixed. Random stops of automobiles to check drivers’ licenses, vehicle registrations, and safety conditions were condemned as too intrusive; the degree to which random stops would advance the legitimate governmental interests involved did not outweigh the individual’s legitimate expectations of privacy.85 On the other hand, in South Dakota v. Opperman,86 the Court sustained the admission of evidence found when police impounded an automobile from a public street for multiple parking violations and entered the car to secure and inventory valuables for safekeeping. Marijuana was discovered in the glove compartment.
Supplement: [P. 1206, add to n.38 before Rakas v. Illinois citation, and add parenthetical to Rakas citation:]
But cf. Minnesota v. Carter, 525 U.S. 83 (1998) (a person present in someone else’s apartment for only a few hours for the purpose of bagging cocaine for later sale has no legitimate expectation of privacy); Cf. Rakas v. Illinois, 439 U.S. 128 (1978) (auto passengers demonstrated no legitimate expectation of privacy in glove compartment or under seat of auto).
Supplement: [P. 1206, add to end of n.38:]
Property rights are still protected by the Amendment, however. A “seizure” of property can occur when there is some meaningful interference with an individual’s possessory interests in that property, and regardless of whether there is any interference with the individual’s privacy interest. Soldal v. Cook County, 506 U.S. 56 (1992) (a seizure occurred when sheriff’s deputies assisted in the disconnection and removal of a mobile home in the course of an eviction from a mobile home park). The reasonableness of a seizure, however, is an additional issue that may still hinge on privacy interests. United States v. Jacobsen, 466 U.S. 109, 120–21 (1984) (DEA agents reasonably seized package for examination after private mail carrier had opened the damaged package for inspection, discovered presence of contraband, and informed agents).
Supplement: [P. 1206, add to n.39:]
Bond v. United States, 120 S. Ct. 1462, 1465 (2000).
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