CRS Annotated Constitution
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Valid Searches and Seizures Without Warrants
While the Supreme Court stresses the importance of warrants and has repeatedly referred to searches without warrants as “exceptional,”1 it appears that the greater number of searches, as well as the vast number of arrests, take place without warrants. The Reporters of the American Law Institute Project on a Model Code of Pre– Arraignment Procedure have noted “their conviction that, as a practical matter, searches without warrant and incidental to arrest have been up to this time, and may remain, of greater practical importance” than searches pursuant to warrants. “[T]he evidence on hand . . . compel[s] the conclusion that searches under warrants have played a comparatively minor part in law enforcement, except in connection with narcotics and gambling laws.”2 [p.1229]Nevertheless, the Court frequently asserts that “the most basic constitutional rule in this area is that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specially established and well–delineated exceptions.”3 The exceptions are said to be “jealously and carefully drawn,”4 and there must be “a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.”5 While the record does indicate an effort to categorize the exceptions, the number and breadth of those exceptions have been growing.
Detention Short of Arrest: Stop–and–Frisk.—Arrests are subject to the requirements of the Fourth Amendment, but the courts have followed the common law in upholding the right of police officers to take a person into custody without a warrant if they have probable cause to believe that the person to be arrested has committed a felony or has committed a misdemeanor in their presence.6 The probable cause is, of course, the same standard required to be met in the issuance of an arrest warrant, and must be satisfied by conditions existing prior to the policeman’s stop, what is discovered thereafter not sufficing to establish retroactively reasonable cause.7 There are, however, instances when a policeman’s suspicions will have been aroused by someone’s conduct or manner, but probable cause for placing such a person under arrest will be lacking.8 In Terry v. Ohio,9 the Court almost unanimously approved an on–the–street investigation by a police officer which involved “patting down” the subject of the investigation for weapons.
The case arose when a police officer observed three individuals engaging in conduct which appeared to him, on the basis of training and experience, to be the “casing” of a store for a likely armed robbery; upon approaching the men, identifying himself, and not receiving prompt identification, the officer seized one of the men,[p.1230]patted the exterior of his clothes, and discovered a gun. Chief Justice Warren for the Court wrote that the Fourth Amendment was applicable to the situation, applicable “whenever a police officer accosts an individual and restrains his freedom to walk away.”10 Since the warrant clause is necessarily and practically of no application to the type of on–the–street encounter present in Terry, the Chief Justice continued, the question was whether the policeman’s actions were reasonable. The test of reasonableness in this sort of situation is whether the police officer can point to “specific and articulable facts which, taken together with rational inferences from those facts,” would lead a neutral magistrate on review to conclude that a man of reasonable caution would be warranted in believing that possible criminal behavior was at hand and that both an investigative stop and a “frisk” was required.11 Inasmuch as the conduct witnessed by the policeman reasonably led him to believe that an armed robbery was in prospect, he was as reasonably led to believe that the men were armed and probably dangerous and that his safety required a “frisk.” Because the object of the “frisk” is the discovery of dangerous weapons, “it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.”12
Supplement: [P. 1230, add to text following n.12:]
If, in the course of a weapons frisk, “plain touch” reveals presence of an object that the officer has probable cause to believe is contraband, the officer may seize that object.8 The Court viewed the situation as analogous to that covered by the “plain view” doctrine: obvious contraband may be seized, but a search may not be expanded to determine whether an object is contraband.9 Also impermissible is physical manipulation, without reasonable suspicion, of a bus passenger’s carry–on luggage stored in an overhead compartment.10
Terry did not pass on a host of problems, including the grounds that could permissibly lead an officer to momentarily stop a person on the street or elsewhere in order to ask questions rather than frisk for weapons, the right of the stopped individual to refuse to cooperate, and the permissible response of the police to that refusal. Following that decision, the standard for stops for investigative purposes evolved into one of “reasonable suspicion of criminal activity.” That test permits some stops and questioning without probable cause in order to allow police officers to explore the foun[p.1231]dations of their suspicions.13 While not elaborating a set of rules governing the application of the tests, the Court was initially restrictive in recognizing permissible bases for reasonable suspicion.14 Extensive instrusions on individual privacy, e.g., transportation to the stationhouse for interrogation and fingerprinting, were invalidated in the absence of probable cause.15 More recently, however, the Court has taken less restrictive approaches.16
Supplement: [P. 1231, add, after n.16, to end of sentence containing n.16:]
, although the Court has held that an uncorroborated, anonymous tip is insufficient basis for a Terry stop, and that there is no “firearms” exception to the reasonable suspicion requirement.11
It took the Court some time to settle on a test for when a “seizure” has occurred, and the Court has recently modified its approach. The issue is of some importance, since it is at this point that Fourth Amendment protections take hold. The Terry Court recognized in dictum that “not all personal intercourse between policemen and citizens involves ‘seizures’ of persons,” and suggested that “[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.”17 Years later Justice Stewart proposed a similar standard, that a person has been seized “only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.”18 This reasonable perception standard was subse[p.1232]quently endorsed by a majority of Justices,19 and was applied in several cases in which admissibility of evidence turned on whether a seizure of the person not justified by probable cause or reasonable suspicion had occurred prior to the uncovering of the evidence. No seizure occurred, for example, when INS agents seeking to identify illegal aliens conducted work force surveys within a garment factory; while some agents were positioned at exits, others systematically moved through the factory and questioned employees.20 This brief questioning, even with blocked exits, amounted to “classic consensual encounters rather than Fourth Amendment seizures.”21 The Court also ruled that no seizure had occurred when police in a squad car drove alongside a suspect who had turned and run down the sidewalk when he saw the squad car approach. Under the circumstances (no siren, flashing lights, display of a weapon, or blocking of the suspect’s path), the Court concluded, the police conduct “would not have communicated to the reasonable person an attempt to capture or otherwise intrude upon [one’s] freedom of movement.”22
Soon thereafter, however, the Court departed from the Mendenhall reasonable perception standard and adopted a more formalistic approach, holding that an actual chase with evident intent to capture did not amount to a “seizure” because the suspect did not comply with the officer’s order to halt. Mendenhall, said the Court in California v. Hodari D., stated a “necessary” but not a “sufficient” condition for a seizure of the person through show of authority.23 A Fourth Amendment “seizure” of the person, the Court determined, is the same as a common law arrest; there must be either application of physical force (or the laying on of hands), or submission to the assertion of authority.24 Indications are, however, that Hodari D. does not signal the end of the reasonable perception standard, but merely carves an exception applicable to chases and perhaps other encounters between suspects and police.
Later in the same term the Court ruled that the Mendenhall “free–to–leave” inquiry was misplaced in the context of a police[p.1233]sweep of a bus, but that a modified reasonable perception approach still governed.25 In conducting a bus sweep, aimed at detecting illegal drugs and their couriers, police officers typically board a bus during a stopover at a terminal and ask to inspect tickets, identification, and sometimes luggage of selected passengers. The Court did not focus on whether an “arrest” had taken place, as adherence to the Hodari D. approach would have required, but instead suggested that the appropriate inquiry is “whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.”26 “When the person is seated on a bus and has no desire to leave,” the Court explained, “the degree to which a reasonable person would feel that he or she could leave is not an accurate measure of the coercive effect of the encounter.”27
A Terry search need not be limited to a stop and frisk of the person, but may extend as well to a protective search of the passenger compartment of a car if an officer possesses “a reasonable belief, based on specific and articulable facts . . . that the suspect is dangerous and . . . may gain immediate control of weapons.”28 How lengthy a Terry detention may be varies with the circumstances. In approving a 20–minute detention of a driver made necessary by the driver’s own evasion of drug agents and a state police decision to hold the driver until the agents could arrive on the scene, the Court indicated that it is “appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.”29
Similar principles govern detention of luggage at airports in order to detect the presence of drugs; Terry “limitations applicable to investigative detentions of the person should define the permissible scope of an investigative detention of the person’s luggage on[p.1234]less than probable cause.”30 The general rule is that “when an officer’s observations lead him reasonably to believe that a traveler is carrying luggage that contains narcotics, the principles of Terry . . . would permit the officer to detain the luggage briefly to investigate the circumstances that aroused his suspicion, provided that the investigative detention is properly limited in scope.”31 Seizure of luggage for an expeditious “canine sniff” by a dog trained to detect narcotics can satisfy this test even though seizure of luggage is in effect detention of the traveler, since the procedure results in “limited disclosure,” impinges only slightly on a traveler’s privacy interest in the contents of personal luggage, and does not constitute a search within the meaning of the Fourth Amendment.32 By contrast, taking a suspect to an interrogation room on grounds short of probable cause, retaining his air ticket, and retrieving his luggage without his permission taints consent given under such circumstances to open the luggage, since by then the detention had exceeded the bounds of a permissible Terry investigative stop and amounted to an invalid arrest.33 But the same requirements for brevity of detention and limited scope of investigation are apparently inapplicable to border searches of international travelers, the Court having approved a 24–hour detention of a traveler suspected of smuggling drugs in her alimentary canal.34
Search Incident to Arrest.—The common–law rule permitting searches of the person of an arrestee as an incident to the arrest has occasioned little controversy in the Court.35 The dispute has centered around the scope of the search. Since it was the stated general rule that the scope of a warrantless search must be strictly tied to and justified by the circumstances which rendered its justification permissible, and since it was the rule that the justification of a search of the arrestee was to prevent destruction of evidence and to prevent access to a weapon,36 it was argued to the court that a search of the person of the defendant arrested for a traffic offense, which discovered heroin in a crumpled cigarette package, was impermissible, inasmuch as there could have been no[p.1235]destructible evidence relating to the offense for which he was arrested and no weapon could have been concealed in the cigarette package. The Court rejected this argument, ruling that “no additional justification” is required for a custodial arrest of a suspect based on probable cause.37
Supplement: [P. 1235, add to text following n.37:]
If there is no custodial arrest, as in the case of a routine traffic stop, the threat to officer safety is “a good deal less,” and the scope of a permissible search is also more limited.12
However, the Justices have long found themselves embroiled in argument about the scope of the search incident to arrest as it extends beyond the person to the area in which the person is arrested, most commonly either his premises or his vehicle. Certain early cases went both ways on the basis of some fine distinctions,38 but in Harris v. United States,39 the Court approved a search of a four–room apartment pursuant to an arrest under warrant for one crime and in which the search turned up evidence of another crime. A year later, in Trupiano v. United States,40 a raid on a distillery resulted in the arrest of a man found on the premises and a seizure of the equipment; the Court reversed the conviction because the officers had had time to obtain a search warrant and had not done so. “A search or seizure without a warrant as an incident to a lawful arrest has always been considered to be a strictly limited right. It grows out of the inherent necessities of the situation at the time of the arrest. But there must be something more in the way of necessity than merely a lawful arrest.”41 This decision was overruled in United States v. Rabinowitz,42 in which officers arrested defendant in his one–room office pursuant to an arrest warrant and proceeded to search the room completely. The Court observed that the issue was not whether the officers had the time and opportunity to obtain a search warrant but whether the search incident to arrest was reasonable. Though Rabinowitz referred to searches of the area within the arrestee’s “immediate control,”43 it[p.1236]provided no standard by which this area was to be determined, and extensive searches were permitted under the rule.44
In Chimel v. California,45 however, a narrower view was asserted, the primacy of warrants was again emphasized, and a standard by which the scope of searches pursuant to arrest could be ascertained was set out. “When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee’s person and the area ‘within his immediate control’—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.
“There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs—or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well–recognized exceptions, may be made only under the authority of a search warrant.”46
Although the viability of Chimel had been in doubt for some time as the Court refined and applied its analysis of reasonable[p.1237]and justifiable expectations of privacy,47 it has in some but not all contexts survived the changed rationale. Thus, in Mincey v. Arizona,48 the Court rejected a state effort to create a “homicide–scene” exception for a warrantless search of an entire apartment extending over four days. The occupant had been arrested and removed and it was true, the Court observed, that a person legally taken into custody has a lessened right of privacy in his person, but he does not have a lessened right of privacy in his entire house. And, in United States v. Chadwick,49 emphasizing a person’s reasonable expectation of privacy in his luggage or other baggage, the Court held that, once police have arrested and immobilized a suspect, validly seized bags are not subject to search without a warrant.50 Police may, however, in the course of jailing an arrested suspect conduct an inventory search of the individual’s personal effects, including the contents of a shoulder bag, since “the scope of a station–house search may in some circumstances be even greater than those supporting a search immediately following arrest.”51
Still purporting to reaffirm Chimel, the Court in New York v. Belton52 held that police officers who had made a valid arrest of the occupant of a vehicle could make a contemporaneous search of the entire passenger compartment of the automobile, including containers found therein. Believing that a fairly simple rule understandable to authorities in the field was desirable, the Court ruled “that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, if not inevitably, within ‘the area into which an arrestee might reach in order to grab a weapon or evidentiary ite[m].”’53[p.1238]
Chimel has, however, been qualified by another consideration. Not only may officers search areas within the arrestee’s immediate control in order to alleviate any threat posed by the arrestee, but they may extend that search if there may be a threat posed by “unseen third parties in the house.” A “protective sweep” of the entire premises (including an arrestee’s home) may be undertaken on less than probable cause if officers have a “reasonable belief,” based on “articulable facts,” that the area to be swept may harbor an individual posing a danger to those on the arrest scene.54
Vehicular Searches.—In the early days of the automobile the Court created an exception for searches of vehicles, holding in Carroll v. United States55 that vehicles may be searched without warrants if the officer undertaking the search has probable cause to believe that the vehicle contains contraband. The Court explained that the mobility of vehicles would allow them to be quickly moved from the jurisdiction if time were taken to obtain a warrant.56
Initially the Court limited Carroll’s reach, holding impermissible the warrantless seizure of a parked automobile merely because it is movable, and indicating that vehicles may be stopped only while moving or reasonably contemporaneously with movement.57 Also, the Court ruled that the search must be reasonably contemporaneous with the stop, so that it was not permissible to remove the vehicle to the stationhouse for a warrantless search at the convenience of the police.58
The Court next developed a reduced privacy rationale to supplement the mobility rationale, explaining that “the configuration, use, and regulation of automobiles often may dilute the reasonable[p.1239]expectation of privacy that exists with respect to differently situated property.”59 “‘One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one’s residence or as the repository of personal effects. . . . It travels public thoroughfares where both its occupants and its contents are in plain view.”’60 While motor homes do serve as residences and as repositories for personal effects, and while their contents are often shielded from public view, the Court extended the automobile exception to them as well, holding that there is a diminished expectation of privacy in a mobile home parked in a parking lot and licensed for vehicular travel, hence “readily mobile.”61
The reduced expectancy concept has broadened police powers to conduct automobile searches without warrants, but they still must have probable cause to search a vehicle62 and they must have some “articulable suspicion” of criminal activity in order to make random stops of vehicles on the roads.63 By contrast, fixed–checkpoint stops in the absence of any individualized suspicion have been upheld.64 Once police have validly stopped a vehicle, they may also, based on articulable facts warranting a reasonable belief that weapons may be present, conduct a Terry–type protective search of those portions of the passenger compartment in which a weapon could be placed or hidden.65 And, in the absence of such reasonable suspicion as to weapons, police may seize contraband[p.1240]and suspicious items “in plain view” inside the passenger compartment.66
Supplement: [P. 1240, add to text following n.66:]
Although officers who have stopped a car to issue a routine traffic citation may conduct a Terry–type search, even including a pat down of driver and passengers if there is reasonable suspicion that they are armed and dangerous, they may not conduct a full–blown search of the car.15
Once police have probable cause to believe there is contraband in a vehicle, they may remove it from the scene to the stationhouse in order to conduct a search, without thereby being required to obtain a warrant.
Supplement: [P. 1240, add new footnote at end of first sentence in first full paragraph:]
The same rule applies if it is the vehicle itself that is forfeitable contraband; police, acting without a warrant, may seize the vehicle from a public place. Florida v. White, 526 U.S. 559 (1999) .
It is not lawful for the police in undertaking a warrantless search of an automobile to extend the search to the passengers therein.70
Supplement: [P. 1240, change sentence ending with n.70 to read:
Police in undertaking a warrantless search of an automobile may not extend the search to the persons of the passengers therein 16 unless there is a reasonable suspicion that the passengers are armed and dangerous, in which case a Terry pat down is permissible.17
Vessel Searches.—Not only is the warrant requirement inapplicable to brief stops of vessels, but also none of the safeguards applicable to stops of automobiles on less than probable cause are necessary predicates to stops of vessels. In United States v. Villamonte–Marquez,74 the Court upheld a random stop and boarding of a vessel by customs agents, lacking any suspicion of wrongdoing, for purpose of inspecting documentation. The boarding was authorized by statute derived from an act of the First Congress,75 and hence had “an impressive historical pedigree” carrying with it a presumption of constitutionality. Moreover, “important factual differences between vessels located in waters offering ready access to the open sea and automobiles on principal thoroughfares in the border area” justify application of a less restrictive rule for vessel searches. The reason why random stops of vehicles have been held impermissible under the Fourth Amendment, the Court explained, is that stops at fixed checkpoints or roadblocks are both feasible and less subject to abuse of discretion by authorities. “But no reasonable claim can be made that permanent checkpoints would be practical on waters such as these where vessels can move in any direction at any time and need not follow established ‘avenues’ as automobiles must do.”76 Because there is a “substantial” governmental interest in enforcing documentation laws, “especially in waters where the need to deter or apprehend smugglers is great,” the Court found the “limited” but not “minimal” intrusion occasioned by boarding for documentation inspection to be reasonable.77 Dis[p.1242]senting Justice Brennan argued that the Court for the first time was approving “a completely random seizure and detention of persons and an entry onto private, noncommercial premises by police officers, without any limitations whatever on the officers’ discretion or any safeguards against abuse.”78
Consent Searches.—Fourth Amendment rights, like other constitutional rights, may be waived, and one may consent to search of his person or premises by officers who have not complied with the Amendment.79 The Court, however, has insisted that the burden is on the prosecution to prove the voluntariness of the consent80 and awareness of the right of choice.81 Reviewing courts must determine on the basis of the totality of the circumstances whether consent has been freely given or has been coerced. Actual knowledge of the right to refuse consent is not essential to the issue of voluntariness, and therefore police are not required to acquaint a person with his rights, as through a Fourth Amendment version of Miranda warnings.82 But consent will not be regarded as voluntary when the officer asserts his official status and claim of right and the occupant yields to these factors rather than makes his own determination to admit officers.83 When consent is obtained through the deception of an undercover officer or an informer gaining admission without, of course, advising a suspect who he is, the Court has held that the suspect has simply assumed the risk that an invitee would betray him, and evidence obtained through the deception is admissible.84
Additional issues arise in determining the validity of consent to search when consent is given not by the suspect but by a third[p.1243]party. In the earlier cases, third party consent was deemed sufficient if that party “possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.”85 Now, however, actual common authority over the premises is no longer required; it is enough if the searching officer had a reasonable but mistaken belief that the third party had common authority and could consent to the search.86
Border Searches.—“That searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border, should, by now, require no extended demonstration.”87 Authorized by the First Congress,88 the customs search in these circumstances requires no warrant, no probable cause, not even the showing of some degree of suspicion that accompanies even investigatory stops.89 Moreover, while prolonged detention of travelers beyond the routine customs search and inspection must be justified by the Terry standard of reasonable suspicion having a particularized and objective basis,90 Terry protections as to the length and intrusiveness of the search do not apply.91
Inland stoppings and searches in areas away from the borders are a different matter altogether. Thus, in Almeida–Sanchez v.[p.1244]United States,92 the Court held that a warrantless stop and search of defendant’s automobile on a highway some 20 miles from the border by a roving patrol lacking probable cause to believe that the vehicle contained illegal aliens violated the Fourth Amendment. Similarly, the Court invalidated an automobile search at a fixed checkpoint well removed from the border; while agreeing that a fixed checkpoint probably gave motorists less cause for alarm than did roving patrols, the Court nonetheless held that the invasion of privacy entailed in a search was just as intrusive and must be justified by a showing of probable cause or consent.93 On the other hand, when motorists are briefly stopped, not for purposes of a search but in order that officers may inquire into their residence status, either by asking a few questions or by checking papers, different results are achieved, so long as the stops are not truly random. Roving patrols may stop vehicles for purposes of a brief inquiry, provided officers are “aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion” that an automobile contains illegal aliens; in such a case the interference with Fourth Amendment rights is “modest” and the law enforcement interests served are significant.94 Fixed checkpoints provide additional safeguards; here officers may halt all vehicles briefly in order to question occupants even in the absence of any reasonable suspicion that the particular vehicle contains illegal aliens.95[p.1245]
“Open Fields.”—In Hester v. United States,96 the Court held that the Fourth Amendment did not protect “open fields” and that, therefore, police searches in such areas as pastures, wooded areas, open water, and vacant lots need not comply with the requirements of warrants and probable cause. The Court’s announcement in Katz v. United States97 that the Amendment protects “people not places” cast some doubt on the vitality of the open fields principle, but all such doubts were cast away in Oliver v. United States.98 Invoking Hester’s reliance on the literal wording of the Fourth Amendment (open fields are not “effects”) and distinguishing Katz, the Court ruled that the open fields exception applies to fields that are fenced and posted. “[A]n individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home.”99 Nor may an individual demand privacy for activities conducted within outbuildings and visible by trespassers peering into the buildings from just outside.100 Even within the curtilage and notwithstanding that the owner has gone to the extreme of erecting a 10– foot high fence in order to screen the area from ground–level view, there is no reasonable expectation of privacy from naked–eye inspection from fixed–wing aircraft flying in navigable airspace.101 Similarly, naked–eye inspection from helicopters flying even lower contravenes no reasonable expectation of privacy.102 And aerial photography of commercial facilities secured from ground–level public view is permissible, the[p.1246]Court finding such spaces more analogous to open fields than to the curtilage of a dwelling.103
“Plain View.”—Somewhat similar in rationale is the rule that objects falling in the “plain view” of an officer who has a right to be in the position to have that view are subject to seizure without a warrant104 or that if the officer needs a warrant or probable cause to search and seize his lawful observation will provide grounds therefor.105 The plain view doctrine is limited, however, by the probable cause requirement: officers must have probable cause to believe that items in plain view are contraband before they may search or seize them.106
The Court has analogized from the plain view doctrine to hold that once officers have lawfully observed contraband, “the owner’s privacy interest in that item is lost,” and officers may reseal a container, trace its path through a controlled delivery, and seize and reopen the container without a warrant.107
Public Schools.—In New Jersey v. T.L.O.,108 the Court set forth the principles governing searches by public school authorities. The Fourth Amendment applies to searches conducted by public school officials because “school officials act as representatives of the[p.1247]State, not merely as surrogates for the parents.”109 However, “the school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject.”110 Neither the warrant requirement nor the probable cause standard is appropriate, the Court ruled. Instead, a simple reasonableness standard governs all searches of students’ persons and effects by school authorities.111 A search must be reasonable at its inception, i.e., there must be “reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.”112 School searches must also be reasonably related in scope to the circumstances justifying the interference, and “not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”113 In applying these rules, the Court upheld as reasonable the search of a student’s purse to determine whether the student, accused of violating a school rule by smoking in the lavatory, possessed cigarettes. The search for cigarettes uncovered evidence of drug activity held admissible in a prosecution under the juvenile laws.
Government Offices.—Similar principles apply to a public employer’s work–related search of its employees’ offices, desks, or file cabinets, except that in this context the Court distinguished searches conducted for law enforcement purposes. In O’Connor v. Ortega,114 a majority of Justices agreed, albeit on somewhat differing rationales, that neither a warrant nor a probable cause requirement should apply to employer searches “for noninvestigatory, work–related purposes, as well as for investigations of work–related misconduct.”115 Four Justices would require a case–by–case inquiry into the reasonableness of such searches;116 one would hold that such searches “do not violate the Fourth Amendment.”117
Prisons and Regulation of Probation.—Searches of prison cells by prison administrators are not limited even by a reasonableness standard, the Court having held that “the Fourth Amendment[p.1248]proscription against unreasonable searches does not apply within the confines of the prison cell.”118 Thus, prison administrators may conduct random “shakedown” searches of inmates’ cells without the need to adopt any established practice or plan, and inmates must look to the Eighth Amendment or to state tort law for redress against harassment, malicious property destruction, and the like.
Neither a warrant nor probable cause is needed for an administrative search of a probationer’s home. It is enough, the Court ruled in Griffin v. Wisconsin, that such a search was conducted pursuant to a valid regulation that itself satisfies the Fourth Amendment’s reasonableness standard (e.g., by requiring “reasonable grounds” for a search).119 “A State’s operation of a probation system, like its operation of a school, government office or prison, or its supervision of a regulated industry, . . . presents ‘special needs’ beyond normal law enforcement that may justify departures from the usual warrant and probable cause requirements.”120 “Probation, like incarceration, is a form of criminal sanction,” the Court noted, and a warrant or probable cause requirement would interfere with the “ongoing [non– adversarial] supervisory relationship” required for proper functioning of the system.121
Drug Testing.—In two 1989 decisions the Court held that no warrant, probable cause, or even individualized suspicion is required for mandatory drug testing of certain classes of railroad and public employees. In each case, “special needs beyond the normal need for law enforcement” were identified as justifying the drug testing. In Skinner v. Railway Labor Executives’ Ass’n,122 the Court upheld regulations requiring railroads to administer blood, urine, and breath tests to employees involved in certain train accidents or violating certain safety rules; upheld in National Treasury Employees Union v. Von Raab123 was a Customs Service screening program requiring urinalysis testing of employees seeking transfer or promotion to positions having direct involvement with drug interdiction, or to positions requiring the incumbent to carry firearms. The Court in Skinner found a “compelling” governmental interest in testing the railroad employees without any showing of individualized suspicion, since operation of trains by anyone impaired by drugs “can cause great human loss before any signs of impair[p.1249]ment become noticeable.”124 By contrast, the intrusions on privacy were termed “limited.” Blood and breath tests were passed off as routine; the urine test, while more intrusive, was deemed permissible because of the “diminished expectation of privacy” in employees having some responsibility for safety in a pervasively regulated industry.125 The lower court’s emphasis on the limited effectiveness of the urine test (it detects past drug use but not necessarily the level of impairment) was misplaced, the Court ruled. It is enough that the test may provide some useful information for an accident investigation; in addition, the test may promote deterrence as well as detection of drug use.126 In Von Raab the governmental interests underlying the Customs Service’s screening program were also termed “compelling”: to ensure that persons entrusted with a firearm and the possible use of deadly force not suffer from drug–induced impairment of perception and judgment, and that “front–line [drug] interdiction personnel [be] physically fit, and have unimpeachable integrity and judgment.”127 The possibly “substantial” interference with privacy interests of these Customs employees was justified, the Court concluded, because, “[u]nlike most private citizens or government employees generally, they have a “diminished expectation of privacy.”128
So far the Court has not ruled on a random drug testing program, having since Skinner and Von Raab refused to hear other challenges to drug testing.129 Answers to remaining questions, e.g.,[p.1250]whether other drug testing programs not so closely tied to safety and security concerns serve “compelling” governmental interests, whether other classes of employees have a diminished expectation of privacy, and whether more intrusive testing procedures are permissible,130 must therefore await future litigation.
Supplement: [P. 1230, add to n.12:]
Maryland v. Wilson, 519 U.S. 408, 413 (1997) (after validly stopping car, officer may order passengers as well as driver out of car; “the same weighty interest in officer safety is present regardless of whether the occupant of the stopped car is a driver or passenger”).
Supplement: [P. 1231, add to n.16:]
Illinois v. Wardlow, 120 S. Ct. 673 (2000) (unprovoked flight from high crime area upon sight of police produces “reasonable suspicion”).
Supplement: [P. 1237, change n.48 to read:]
Supplement: [P. 1239, add to n.62:]
An automobile’s “ready mobility [is] an exigency sufficient to excuse failure to obtain a search warrant once probable cause is clear”; there is no need to find the presence of “unforeseen circumstances” or other additional exigency. Pennsylvania v. Labron, 518 U.S. 938, 940 (1996) . Accord, Maryland v. Dyson, 527 U.S. 465 (1999) (per curiam).
Supplement: [P. 1239, delete text accompanying n.63, and substitute the following:]
and they may not make random stops of vehicles on the roads, but instead must base stops of individual vehicles on probable cause or some “articulable and reasonable suspicion” 13 of traffic or safety violation or some other criminal activity.14
Supplement: [P. 1249, substitute for paragraph beginning after n.128:]
Emphasizing the “special needs” of the public school context, reflected in the “custodial and tutelary” power that schools exercise over students, and also noting schoolchildren’s diminished expectation of privacy, the Court in Vernonia School District v. Acton 19 upheld a school district’s policy authorizing random urinalysis drug testing of students who participate in interscholastic athletics. The Court redefined the term “compelling” governmental interest. The phrase does not describe a “fixed, minimum quantum of governmental concern,” the Court explained, but rather “describes an interest which appears important enough to justify the particular search at hand.” 20 Applying this standard, the Court concluded that “deterring drug use by our Nation’s schoolchildren is at least as important as enhancing efficient enforcement of the Nation’s laws against the importation of drugs . . . or deterring drug use by engineers and trainmen.” 21 On the other hand, the interference with privacy interests was not great, the Court decided, since schoolchildren are routinely required to submit to various physical examinations and vaccinations. Moreover, “[l]egitimate privacy expectations are even less [for] student athletes,” since they normally suit up, shower, and dress in locker rooms that afford no privacy, and since they voluntarily subject themselves to physical exams and other regulations above and beyond those imposed on non–athletes.22 The Court “caution[ed] against the assumption that suspicionless drug testing will readily pass muster in other contexts,” identifying as “the most significant element” in Vernonia the fact that the policy was implemented under the government’s responsibilities as guardian and tutor of schoolchildren.23
No “special needs” justified Georgia’s requirement that candidates for state office certify that they had passed a drug test, the Court ruled in Chandler v. Miller.24 Rather, the Court concluded that Georgia’s requirement was “symbolic” rather than “special.” There was nothing in the record to indicate any actual fear or suspicion of drug use by state officials, the required certification was not well designed to detect illegal drug use, and candidates for state office, unlike the customs officers held subject to drug testing in Von Raab, are subject to “relentless” public scrutiny.
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