Searches and Seizures Pursuant to Warrant

Emphasis upon the necessity of warrants places the judgment of an independent magistrate between law enforcement officers and the privacy of citizens, authorizes invasion of that privacy only upon a showing that constitutes probable cause, and limits that invasion by specification of the person to be seized, the place to be searched, and the evidence to be sought.108 Although a warrant is issued ex parte, its validity may be contested in a subsequent suppression hearing if incriminating evidence is found and a prosecution is brought.109

Issuance by Neutral Magistrate.

In numerous cases, the Court has referred to the necessity that warrants be issued by a “judicial officer” or a “magistrate.”110 “The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers.”111 These cases do not mean that only a judge or an official who is a lawyer may issue warrants, but they do stand for two tests of the validity of the power of the issuing party to so act. “He must be neutral and detached, and he must be capable of determining whether probable cause exists for the requested arrest or search.”112 The first test cannot be met when the issuing party is himself engaged in law enforcement activities,113 but the Court has not required that an issuing party have that independence of tenure and guarantee of salary that characterizes federal judges.114 And, in passing on the second test, the Court has been essentially pragmatic in assessing whether the issuing party possesses the capacity to determine probable cause.115

Probable Cause.

The concept of “probable cause” is central to the meaning of the warrant clause. Neither the Fourth Amendment nor the federal statutory provisions relevant to the area define “probable cause”; the definition is entirely a judicial construct. An applicant for a warrant must present to the magistrate facts sufficient to enable the officer himself to make a determination of probable cause. “In determining what is probable cause . . . [w]e are concerned only with the question whether the affiant had reasonable grounds at the time of his affidavit . . . for the belief that the law was being violated on the premises to be searched; and if the apparent facts set out in the affidavit are such that a reasonably discreet and prudent man would be led to believe that there was a commission of the offense charged, there is probable cause justifying the issuance of a warrant.”116 Probable cause is to be determined according to “the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.”117 Warrants are favored in the law and their use will not be thwarted by a hypertechnical reading of the supporting affidavit and supporting testimony.118 For the same reason, reviewing courts will accept evidence of a less “judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant.”119 Courts will sustain the determination of probable cause so long as “there was substantial basis for [the magistrate] to conclude that” there was probable cause.120

Much litigation has concerned the sufficiency of the complaint to establish probable cause. Mere conclusory assertions are not enough.121 In United States v. Ventresca,122 however, an affidavit by a law enforcement officer asserting his belief that an illegal distillery was being operated in a certain place, explaining that the belief was based upon his own observations and upon those of fellow investigators, and detailing a substantial amount of these personal observations clearly supporting the stated belief, was held to be sufficient to constitute probable cause. “Recital of some of the underlying circumstances in the affidavit is essential,” the Court said, observing that “where these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause,” the reliance on the warrant process should not be deterred by insistence on too stringent a showing.123

Requirements for establishing probable cause through reliance on information received from an informant has divided the Court in several cases. Although involving a warrantless arrest, Draper v. United States124 may be said to have begun the line of cases. A previously reliable, named informant reported to an officer that the defendant would arrive with narcotics on a particular train, and described the clothes he would be wearing and the bag he would be carrying; the informant, however, gave no basis for his information. FBI agents met the train, observed that the defendant fully fit the description, and arrested him. The Court held that the corroboration of part of the informer’s tip established probable cause to support the arrest. A case involving a search warrant, Jones v. United States,125 apparently considered the affidavit as a whole to see whether the tip plus the corroborating information provided a substantial basis for finding probable cause, but the affidavit also set forth the reliability of the informer and sufficient detail to indicate that the tip was based on the informant’s personal observation. Aguilar v. Texas126 held insufficient an affidavit that merely asserted that the police had “reliable information from a credible person” that narcotics were in a certain place, and held that when the affiant relies on an informant’s tip he must present two types of evidence to the magistrate. First, the affidavit must indicate the informant’s basis of knowledge—the circumstances from which the informant concluded that evidence was present or that crimes had been committed—and, second, the affiant must present information that would permit the magistrate to decide whether or not the informant was trustworthy. Then, in Spinelli v. United States,127 the Court applied Aguilar in a situation in which the affidavit contained both an informant’s tip and police information of a corroborating nature.

The Court rejected the “totality” test derived from Jones and held that the informant’s tip and the corroborating evidence must be separately considered. The tip was rejected because the affidavit contained neither any information which showed the basis of the tip nor any information which showed the informant’s credibility. The corroborating evidence was rejected as insufficient because it did not establish any element of criminality but merely related to details which were innocent in themselves. No additional corroborating weight was due as a result of the bald police assertion that defendant was a known gambler, although the tip related to gambling. Returning to the totality test, however, the Court in United States v. Harris128 approved a warrant issued largely on an informer’s tip that over a two-year period he had purchased illegal whiskey from the defendant at the defendant’s residence, most recently within two weeks of the tip. The affidavit contained rather detailed information about the concealment of the whiskey, and asserted that the informer was a “prudent person,” that defendant had a reputation as a bootlegger, that other persons had supplied similar information about him, and that he had been found in control of illegal whiskey within the previous four years. The Court determined that the detailed nature of the tip, the personal observation thus revealed, and the fact that the informer had admitted to criminal behavior by his purchase of whiskey were sufficient to enable the magistrate to find him reliable, and that the supporting evidence, including defendant’s reputation, could supplement this determination.

The Court expressly abandoned the two-part Aguilar-Spinelli test and returned to the “totality of the circumstances” approach to evaluate probable cause based on an informant’s tip in Illinois v. Gates.129 The main defect of the two-part test, Justice Rehnquist concluded for the Court, was in treating an informant’s reliability and his basis for knowledge as independent requirements. Instead, “a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.”130 In evaluating probable cause, “[t]he task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.”131

Particularity.

“The requirement that warrants shall particu-larly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.”132 This requirement thus acts to limit the scope of the search, as the executing officers should be limited to looking in places where the described object could be expected to be found.133 The purpose of the particularity requirement extends beyond prevention of general searches; it also assures the person whose property is being searched of the lawful authority of the executing officer and of the limits of his power to search. It follows, therefore, that the warrant itself must describe with particularity the items to be seized, or that such itemization must appear in documents incorporated by reference in the warrant and actually shown to the person whose property is to be searched.134

First Amendment Bearing on Probable Cause and Particularity.

Where the warrant process is used to authorize seizure of books and other items that may be protected by the First Amendment, the Court has required government to observe more exacting standards than in other cases.135 Seizure of materials arguably protected by the First Amendment is a form of prior restraint that requires strict observance of the Fourth Amendment. At a minimum, a warrant is required, and additional safeguards may be required for large-scale seizures. Thus, in Marcus v. Search Warrant,136 the seizure of 11,000 copies of 280 publications pursuant to warrant issued ex parte by a magistrate who had not examined any of the publications but who had relied on the conclusory affidavit of a policeman was voided. Failure to scrutinize the materials and to particularize the items to be seized was deemed inadequate, and it was further noted that police “were provided with no guide to the exercise of informed discretion, because there was no step in the procedure before seizure designed to focus searchingly on the question of obscenity.”137 A state procedure that was designed to comply with Marcus by the presentation of copies of books to be seized to the magistrate for his scrutiny prior to issuance of a warrant was nonetheless found inadequate by a plurality of the Court, which concluded that “since the warrant here authorized the sheriff to seize all copies of the specified titles, and since [appellant] was not afforded a hearing on the question of the obscenity even of the seven novels [seven of 59 listed titles were reviewed by the magistrate] before the warrant issued, the procedure was . . . constitutionally deficient.”138

Confusion remains, however, about the necessity for and the character of prior adversary hearings on the issue of obscenity. In a later decision the Court held that, with adequate safeguards, no pre-seizure adversary hearing on the issue of obscenity is required if the film is seized not for the purpose of destruction as contraband (the purpose in Marcus and A Quantity of Books), but instead to preserve a copy for evidence.139 It is constitutionally permissible to seize a copy of a film pursuant to a warrant as long as there is a prompt post-seizure adversary hearing on the obscenity issue. Until there is a judicial determination of obscenity, the Court advised, the film may continue to be exhibited; if no other copy is available either a copy of it must be made from the seized film or the film itself must be returned.140

The seizure of a film without the authority of a constitutionally sufficient warrant is invalid; seizure cannot be justified as incidental to arrest, as the determination of obscenity may not be made by the officer himself.141 Nor may a warrant issue based “solely on the conclusory assertions of the police officer without any inquiry by the [magistrate] into the factual basis for the officer’s conclusions.”142 Instead, a warrant must be “supported by affidavits setting forth specific facts in order that the issuing magistrate may ‘focus searchingly on the question of obscenity.’ ”143 This does not mean, however, that a higher standard of probable cause is required in order to obtain a warrant to seize materials protected by the First Amendment. “Our reference in Roaden to a ‘higher hurdle . . . of reasonableness’ was not intended to establish a ‘higher’ standard of probable cause for the issuance of a warrant to seize books or films, but instead related to the more basic requirement, imposed by that decision, that the police not rely on the ‘exigency’ exception to the Fourth Amendment warrant requirement, but instead obtain a warrant from a magistrate . . . .’ ”144

In Stanford v. Texas,145 the Court voided a seizure of more than 2,000 books, pamphlets, and other documents pursuant to a warrant that merely authorized the seizure of books, pamphlets, and other written instruments “concerning the Communist Party of Texas.” “[T]he constitutional requirement that warrants must particularly describe the ‘things to be seized’ is to be accorded the most scrupulous exactitude when the ‘things’ are books, and the basis for their seizure is the ideas which they contain. . . . No less a standard could be faithful to First Amendment freedoms.”146

However, the First Amendment does not bar the issuance or execution of a warrant to search a newsroom to obtain photographs of demonstrators who had injured several policemen, although the Court appeared to suggest that a magistrate asked to issue such a warrant should guard against interference with press freedoms through limits on type, scope, and intrusiveness of the search.147

Property Subject to Seizure.

There has never been any doubt that search warrants could be issued for the seizure of contraband and the fruits and instrumentalities of crime.148 But, in Gouled v. United States,149 a unanimous Court limited the classes of property subject to seizures to these three and refused to permit a seizure of “mere evidence,” in this instance papers of the defendant that were to be used as evidence against him at trial. The Court recognized that there was “no special sanctity in papers, as distinguished from other forms of property, to render them immune from search and seizure,”150 but their character as evidence rendered them immune. This immunity “was based upon the dual, related premises that historically the right to search for and seize property depended upon the assertion by the Government of a valid claim of superior interest, and that it was not enough that the purpose of the search and seizure was to obtain evidence to use in apprehending and convicting criminals.”151 More evaded than followed, the “mere evidence” rule was overturned in 1967.152 It is now settled that such evidentiary items as fingerprints,153 blood,154 urine samples,155 fingernail and skin scrapings,156 voice and handwriting exemplars,157 conversations,158 and other demonstrative evidence may be obtained through the warrant process or without a warrant where “special needs” of government are shown.159

However, some medically assisted bodily intrusions have been held impermissible, e.g., forcible administration of an emetic to induce vomiting,160 and surgery under general anesthetic to remove a bullet lodged in a suspect’s chest.161 Factors to be weighed in determining which medical tests and procedures are reasonable include the extent to which the procedure threatens the individual’s safety or health, “the extent of the intrusion upon the individual’s dignitary interests in personal privacy and bodily integrity,” and the importance of the evidence to the prosecution’s case.162

In Warden v. Hayden,163 Justice Brennan for the Court cautioned that the items there seized were not “ ‘testimonial’ or ‘communicative’ in nature, and their introduction therefore did not compel respondent to become a witness against himself in violation of the Fifth Amendment. . . . This case thus does not require that we consider whether there are items of evidential value whose very nature precludes them from being the object of a reasonable search and seizure.” This merging of Fourth and Fifth Amendment considerations derived from Boyd v. United States,164 the first case in which the Supreme Court considered at length the meaning of the Fourth Amendment. Boyd was a quasi-criminal proceeding for the forfeiture of goods alleged to have been imported in violation of law, and concerned a statute that authorized court orders to require defendants to produce any document that might “tend to prove any allegation made by the United States.”165 The entire Court agreed that there was a self-incrimination problem, but Justice Bradley for a majority of the Justices also used the Fourth Amendment.

Although the statute did not authorize a search but instead compelled the production of documents, the Justice concluded that the law was well within the restrictions of the Search and Seizure Clause.166 With this point established, the Justice relied on Lord Camden’s opinion in Entick v. Carrington167 for the proposition that seizure of items to be used as evidence only was impermissible. Justice Bradley announced that the “essence of the offence” committed by the government against Boyd “is not the breaking of his doors, and the rummaging of his drawers . . . but it is the invasion of his indefeasible right of personal security, personal liberty and private property. . . . Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man’s own testimony or of his private papers to be used as evidence to convict him of crime or to forfeit his goods, is within the condemnation of that judgment. In this regard the Fourth and Fifth Amendments run almost into each other.”168

Although it may be doubtful that the equation of search warrants with subpoenas and other compulsory process ever really amounted to much of a limitation,169 the Court currently dispenses with any theory of “convergence” of the two amendments.170 Thus, in Andresen v. Maryland,171 police executed a warrant to search defendant’s offices for specified documents pertaining to a fraudulent sale of land, and the Court sustained the admission of the papers discovered as evidence at his trial. The Fifth Amendment was inapplicable, the Court held, because there had been no compulsion of defendant to produce or to authenticate the documents.172 As for the Fourth Amendment, because the “business records” seized were evidence of criminal acts, they were properly seizable under the rule of Warden v. Hayden; the fact that they were “testimonial” in nature (records in the defendant’s handwriting) was irrelevant.173 Acknowledging that “there are grave dangers inherent in executing a warrant authorizing a search and seizure of a person’s papers,” the Court observed that, although some “innocuous documents” would have to be examined to ascertain which papers were to be seized, authorities, just as with electronic “seizures” of telephone conversations, “must take care to assure that [searches] are conducted in a manner that minimizes unwarranted intrusions upon privacy.”174

Although Andresen was concerned with business records, its discussion seemed equally applicable to “personal” papers, such as diaries and letters, as to which a much greater interest in privacy exists. The question of the propriety of seizure of such papers continues to be the subject of reservation in opinions,175 but it is far from clear that the Court would accept any such exception should the issue be presented.176

Execution of Warrants.

The Fourth Amendment’s “general touchstone of reasonableness . . . governs the method of execution of the warrant.”177 Until recently, however, most such issues have been dealt with by statute and rule.178 It was a rule at common law that before an officer could break and enter he must give notice of his office, authority, and purpose and must in effect be refused admittance,179 and until recently this has been a statutory requirement in the federal system180 and generally in the states. In Ker v. California,181 the Court considered the rule of announcement as a constitutional requirement, although a majority there found circumstances justifying entry without announcement.

In Wilson v. Arkansas,182 the Court determined that the common law “knock and announce” rule is an element of the Fourth Amendment reasonableness inquiry. The rule is merely a presumption, however, that yields under various circumstances, including those posing a threat of physical violence to officers, those in which a prisoner has escaped and taken refuge in his dwelling, and those in which officers have reason to believe that destruction of evidence is likely. The test, articulated two years later in Richards v. Wisconsin,183 is whether police have “a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime.” In Richards, the Court held that there is no blanket exception to the rule whenever officers are executing a search warrant in a felony drug investigation; instead, a case-by-case analysis is required to determine whether no-knock entry is justified under the circumstances.184 Similarly, if officers choose to knock and announce before searching for drugs, circumstances may justify forced entry if there is not a prompt response.185 Recent federal laws providing for the issuance of warrants authorizing in certain circumstances “no-knock” entries to execute warrants will no doubt present the Court with opportunities to explore the configurations of the rule of announcement.186 A statute regulating the expiration of a warrant and issuance of another “should be liberally construed in favor of the individual.”187 Similarly, just as the existence of probable cause must be established by fresh facts, so the execution of the warrant should be done in timely fashion so as to ensure so far as possible the continued existence of probable cause.188

Because police actions in execution of a warrant must be related to the objectives of the authorized intrusion, and because privacy of the home lies at the core of the Fourth Amendment, police officers violate the Amendment by bringing members of the media or other third parties into a home during execution of a warrant if presence of those persons was not in aid of execution of the warrant.189

In executing a warrant for a search of premises and of named persons on the premises, police officers may not automatically search someone else found on the premises.190 If they can articulate some reasonable basis for fearing for their safety they may conduct a “patdown” of the person, but in order to search they must have probable cause particularized with respect to that person. However, in Michigan v. Summers,191 the Court held that officers arriving to execute a warrant for the search of a house could detain, without being required to articulate any reasonable basis and necessarily therefore without probable cause, the owner or occupant of the house, whom they encountered on the front porch leaving the premises. The Court determined that such a detention, which was “substantially less intrusive” than an arrest, was justified because of the law enforcement interests in minimizing the risk of harm to officers, facilitating entry and conduct of the search, and preventing flight in the event incriminating evidence is found.192 For the same reasons, officers may use “reasonable force,” including handcuffs, to effectuate a detention.193 Also, under some circumstances, officers may search premises on the mistaken but reasonable belief that the premises are described in an otherwise valid warrant.194

Limits on detention incident to a search were addressed in Bailey v. United States, a case in which an occupant exited his residence and traveled some distance before being stopped and detained.195 The Bailey Court held that the detention was not constitutionally sustainable under the rule announced in Summers.196 According to the Court, application of the categorical exception to probable cause requirements for detention incident to a search is determined by spatial proximity, that is, whether the occupant is found “within the immediate vicinity of the premises to be searched,”197 and not by temporal proximity, that is, whether the occupant is detained “as soon as reasonably practicable” consistent with safety and security. In so holding, the Court reasoned that limiting the Summers rule to the area within which an occupant poses a real threat ensures that the scope of the rule regarding detention incident to a search is confined to its underlying justification.198

Although, for purposes of execution, as for many other matters, there is little difference between search warrants and arrest warrants, one notable difference is that the possession of a valid arrest warrant cannot authorize authorities to enter the home of a third party looking for the person named in the warrant; in order to do that, they need a search warrant signifying that a magistrate has determined that there is probable cause to believe the person named is on the premises.199

Footnotes

108
Although the exceptions may be different for arrest warrants and search warrants, the requirements for the issuance of the two are the same. Aguilar v. Texas, 378 U.S. 108, 112 n.3 (1964). Also, the standards by which the validity of warrants are to be judged are the same, whether federal or state officers are involved. Ker v. California, 374 U.S. 23 (1963). back
109
Most often, in the suppression hearings, the defendant will challenge the sufficiency of the evidence presented to the magistrate to constitute probable cause. Spinelli v. United States, 393 U.S. 410 (1969); United States v. Harris, 403 U.S. 573 (1971). He may challenge the veracity of the statements used by the police to procure the warrant and otherwise contest the accuracy of the allegations going to establish probable cause, but the Court has carefully hedged his ability to do so. Franks v. Delaware, 438 U.S. 154 (1978). He may also question the power of the official issuing the warrant, Coolidge v. New Hampshire, 403 U.S. 443, 449–53 (1971), or the specificity of the particularity required. Marron v. United States, 275 U.S. 192 (1927). back
110
United States v. Lefkowitz, 285 U.S. 452, 464 (1932); Giordenello v. United States, 357 U.S. 480, 486 (1958); Jones v. United States, 362 U.S. 257, 270 (1960); Katz v. United States, 389 U.S. 347, 356 (1967); United States v. United States District Court, 407 U.S. 297, 321 (1972); United States v. Chadwick, 433 U.S. 1, 9 (1977); Lo-Ji Sales v. New York, 442 U.S. 319 (1979). back
111
Johnson v. United States, 333 U.S. 10, 13–14 (1948). back
112
Shadwick v. City of Tampa, 407 U.S. 345, 354 (1972). back
113
Coolidge v. New Hampshire, 403 U.S. 443, 449–51 (1971) (warrant issued by state attorney general who was leading investigation and who as a justice of the peace was authorized to issue warrants); Mancusi v. DeForte, 392 U.S. 364, 370–72 (1968) (subpoena issued by district attorney could not qualify as a valid search warrant); Lo-Ji Sales v. New York, 442 U.S. 319 (1979) (justice of the peace issued open-ended search warrant for obscene materials, accompanied police during its execution, and made probable cause determinations at the scene as to particular items). back
114
Jones v. United States, 362 U.S. 257, 270–71 (1960) (approving issuance of warrants by United States Commissioners, many of whom were not lawyers and none of whom had any guarantees of tenure and salary); Shadwick v. City of Tampa, 407 U.S. 345 (1972) (approving issuance of arrest warrants for violation of city ordinances by city clerks who were assigned to and supervised by municipal court judges). The Court reserved the question “whether a State may lodge warrant authority in someone entirely outside the sphere of the judicial branch. Many persons may not qualify as the kind of ‘public civil officers’ we have come to associate with the term ‘magistrate.’ Had the Tampa clerk been entirely divorced from a judicial position, this case would have presented different considerations.” Id. at 352. back
115
407 U.S. at 350–54 (placing on defendant the burden of demonstrating that the issuing official lacks capacity to determine probable cause). See also Connally v. Georgia, 429 U.S. 245 (1977) (unsalaried justice of the peace who receives a sum of money for each warrant issued but nothing for reviewing and denying a warrant is not sufficiently detached). back
116
Dumbra v. United States, 268 U.S. 435, 439, 441 (1925). “[T]he term ‘probable cause’ . . . means less than evidence which would justify condemnation.” Lock v. United States, 11 U.S. (7 Cr.) 339, 348 (1813). See Steele v. United States, 267 U.S. 498, 504–05 (1925). It may rest upon evidence that is not legally competent in a criminal trial, Draper v. United States, 358 U.S. 307, 311 (1959), and it need not be sufficient to prove guilt in a criminal trial. Brinegar v. United States, 338 U.S. 160, 173 (1949). See United States v. Ventresca, 380 U.S. 102, 107–08 (1965). An “anticipatory” warrant does not violate the Fourth Amendment as long as there is probable cause to believe that the condition precedent to execution of the search warrant will occur and that, once it has occurred, “there is a fair probability that contraband or evidence of a crime will be found in a specified place.” United States v. Grubbs, 547 U.S. 90, 95 (2006), quoting Illinois v. Gates, 462 U.S. 213, 238 (1983). “An anticipatory warrant is ‘a warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of a crime will be located at a specified place.’ ” 547 U.S. at 94. back
117
Brinegar v. United States, 338 U.S. 160, 175 (1949). back
118
United States v. Ventresca, 380 U.S. 102, 108–09 (1965). back
119
Jones v. United States, 362 U.S. 257, 270–71 (1960). Similarly, the preference for proceeding by warrant leads to a stricter rule for appellate review of trial court decisions on warrantless stops and searches than is employed to review probable cause to issue a warrant. Ornelas v. United States, 517 U.S. 690 (1996) (determinations of reasonable suspicion to stop and probable cause to search without a warrant should be subjected to de novo appellate review). back
120
Aguilar v. Texas, 378 U.S. 108, 111 (1964). It must be emphasized that the issuing party “must judge for himself the persuasiveness of the facts relied on by a [complainant] to show probable cause.” Giordenello v. United States, 357 U.S. 480, 486 (1958). An insufficient affidavit cannot be rehabilitated by testimony after issuance concerning information possessed by the affiant but not disclosed to the magistrate. Whiteley v. Warden, 401 U.S. 560 (1971). back
121
Byars v. United States, 273 U.S. 28 (1927) (affiant stated he “has good reason to believe and does believe” that defendant has contraband materials in his possession); Giordenello v. United States, 357 U.S. 480 (1958) (complainant merely stated his conclusion that defendant had committed a crime). See also Nathanson v. United States, 290 U.S. 41 (1933). back
122
380 U.S. 102 (1965). back
123
380 U.S. at 109. back
124
358 U.S. 307 (1959). For another case applying essentially the same probable cause standard to warrantless arrests as govern arrests by warrant, see McCray v. Illinois, 386 U.S. 300 (1967) (informant’s statement to arresting officers met Aguilar probable cause standard). See also Whitely v. Warden, 401 U.S. 560, 566 (1971) (standards must be “at least as stringent” for warrantless arrest as for obtaining warrant). back
125
362 U.S. 257 (1960). back
126
378 U.S. 108 (1964). back
127
393 U.S. 410 (1969). Both concurring and dissenting Justices recognized tension between Draper and Aguilar. See id. at 423 (Justice White concurring), id. at 429 (Justice Black dissenting and advocating the overruling of Aguilar). back
128
403 U.S. 573 (1971). See also Adams v. Williams, 407 U.S. 143, 147 (1972) (approving warrantless stop of motorist based on informant’s tip that “may have been insufficient” under Aguilar and Spinelli as basis for warrant). back
129
462 U.S. 213 (1983). Justice Rehnquist’s opinion of the Court was joined by Chief Justice Burger and by Justices Blackmun, Powell, and O’Connor. Justices Brennan, Marshall, and Stevens dissented. back
130
462 U.S. at 213. back
131
462 U.S. at 238. For an application of the Gates “totality of the circumstances” test to the warrantless search of a vehicle by a police officer, see, e.g. Florida v. Harris, 568 U.S. ___, No. 11–817, slip op. (2013). back
132
Marron v. United States, 275 U.S. 192, 196 (1927). See Stanford v. Texas, 379 U.S. 476 (1965). Of course, police who are lawfully on the premises pursuant to a warrant may seize evidence of crime in “plain view” even if that evidence is not described in the warrant. Coolidge v. New Hampshire, 403 U.S. 443, 464–71 (1971). back
133
In Terry v. Ohio, 392 U.S. 1, 17–19, (1968), the Court wrote: “This Court has held in the past that a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope. Kremen v. United States, 353 U.S. 346 (1957); Go-Bart Importing Co. v. United States, 282 U.S. 344, 356–58 (1931); see United States v. Di Re, 332 U.S. 581, 586–87 (1948). The scope of the search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible. Warden v. Hayden, 387 U.S. 294, 310 (1967) (Justice Fortas concurring); see, e.g., Preston v. United States, 376 U.S. 364, 367–368 (1964); Agnello v. United States, 296 U.S. 20, 30–31 (1925).” See also Andresen v. Maryland, 427 U.S. 463, 470–82 (1976), and id. at 484, 492–93 (Justice Brennan dissenting). In Stanley v. Georgia, 394 U.S. 557, 569 (1969), Justices Stewart, Brennan, and White would have based the decision on the principle that a valid warrant for gambling paraphernalia did not authorize police upon discovering motion picture films in the course of the search to project the films to learn their contents. back
134
Groh v. Ramirez, 540 U.S. 551 (2004) (a search based on a warrant that did not describe the items to be seized was “plainly invalid”; particularity contained in supporting documents not cross-referenced by the warrant and not accompanying the warrant is insufficient); United States v. Grubbs, 547 U.S. 90, 97, 99 (2006) (because the language of the Fourth Amendment “specifies only two matters that must be ‘particularly describ[ed]’ in the warrant: ‘the place to be searched’ and ‘the persons or things to be seized[,]’ . . . the Fourth Amendment does not require that the triggering condition for an anticipatory warrant be set forth in the warrant itself.” back
135
Marcus v. Search Warrant, 367 U.S. 717, 730–31 (1961); Stanford v. Texas, 379 U.S. 476, 485 (1965). For First Amendment implications of seizures under the Federal Racketeer Influenced and Corrupt Organizations Act (RICO), see First Amendment: Obscenity and Prior Restraint. back
136
367 U.S. 717 (1961). See Kingsley Books v. Brown, 354 U.S. 436 (1957). back
137
Marcus v. Search Warrant, 367 U.S. 717, 732 (1961). back
138
A Quantity of Books v. Kansas, 378 U.S. 205, 210 (1964). back
139
Heller v. New York, 413 U.S. 483 (1973). back
140
Id. at 492–93. But cf. New York v. P.J. Video, Inc., 475 U.S. 868, 875 n.6 (1986), rejecting the defendant’s assertion, based on Heller, that only a single copy rather than all copies of allegedly obscene movies should have been seized pursuant to warrant. back
141
Roaden v. Kentucky, 413 U.S. 496 (1973). See also Lo-Ji Sales v. New York, 442 U.S. 319 (1979); Walter v. United States, 447 U.S. 649 (1980). These special constraints are inapplicable when obscene materials are purchased, and there is consequently no Fourth Amendment search or seizure. Maryland v. Macon, 472 U.S. 463 (1985). back
142
Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 637 (1968) (per curiam). back
143
New York v. P.J. Video, Inc., 475 U.S. 868, 873–74 (1986) (quoting Marcus v. Search Warrant, 367 U.S. 717, 732 (1961)). back
144
New York v. P.J. Video, Inc., 475 U.S. 868, 875 n.6 (1986). back
145
379 U.S. 476 (1965). back
146
379 U.S. at 485–86. See also Marcus v. Search Warrant, 367 U.S. 717, 723 (1961). back
147
Zurcher v. Stanford Daily, 436 U.S. 547 (1978). See id. at 566 (containing suggestion mentioned in text), and id. at 566 (Justice Powell concurring) (more expressly adopting that position). In the Privacy Protection Act, Pub. L. 96–440, 94 Stat. 1879 (1980), 42 U.S.C. § 2000aa, Congress provided extensive protection against searches and seizures not only of the news media and news people but also of others engaged in disseminating communications to the public, unless there is probable cause to believe the person protecting the materials has committed or is committing the crime to which the materials relate. back
148
United States v. Lefkowitz, 285 U.S. 452, 465–66 (1932). Of course, evidence seizable under warrant is subject to seizure without a warrant in circumstances in which warrantless searches are justified. back
149
255 U.S. 298 (1921). United States v. Lefkowitz, 285 U.S. 452 (1932), applied the rule in a warrantless search of premises. The rule apparently never applied in case of a search of the person. Cf. Schmerber v. California, 384 U.S. 757 (1966). back
150
Gouled v. United States, 255 U.S. 298, 306 (1921). back
151
Warden v. Hayden, 387 U.S. 294, 303 (1967). See Gouled v. United States, 255 U.S. 298, 309 (1921). The holding was derived from dicta in Boyd v. United States, 116 U.S. 616, 624–29 (1886). back
152
Warden v. Hayden, 387 U.S. 294 (1967). back
153
Davis v. Mississippi, 394 U.S. 721 (1969). back
154
Schmerber v. California, 384 U.S. 757 (1966); Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989) (warrantless blood testing for drug use by railroad employee involved in accident). back
155
Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989) (warrantless drug testing of railroad employee involved in accident). back
156
Cupp v. Murphy, 412 U.S. 291 (1973) (sustaining warrantless taking of scrapings from defendant’s fingernails at the station house, on the basis that it was a very limited intrusion and necessary to preserve evanescent evidence). back
157
United States v. Dionisio, 410 U.S. 1 (1973); United States v. Mara, 410 U.S. 19 (1973) (both sustaining grand jury subpoenas to produce voice and handwriting exemplars, as no reasonable expectation of privacy exists with respect to those items). back
158
Berger v. New York, 388 U.S. 41, 44 n.2 (1967). See also id. at 97 n.4, 107–08 (Justices Harlan and White concurring), 67 (Justice Douglas concurring). back
159
Another important result of Warden v. Hayden is that third parties not suspected of culpability in crime are subject to the issuance and execution of warrants for searches and seizures of evidence. Zurcher v. Stanford Daily, 436 U.S. 547, 553–60 (1978). Justice Stevens argued for a stiffer standard for issuance of warrants to nonsuspects, requiring in order to invade their privacy a showing that they would not comply with a less intrusive method, such as a subpoena. Id. at 577 (dissenting). back
160
Rochin v. California, 342 U.S. 165 (1952). back
161
Winston v. Lee, 470 U.S. 753 (1985). back
162
Winston v. Lee, 470 U.S. 753, 761–63 (1985). Chief Justice Burger concurred on the basis of his reading of the Court’s opinion “as not preventing detention of an individual if there are reasonable grounds to believe that natural bodily functions will disclose the presence of contraband materials secreted internally.” Id. at 767. Cf. United States v. Montoya de Hernandez, 473 U.S. 531 (1985). back
163
387 U.S. 294, 302–03 (1967). Seizure of a diary was at issue in Hill v. California, 401 U.S. 797, 805 (1971), but it had not been raised in the state courts and was deemed waived. back
164
116 U.S. 616 (1886). back
165
Act of June 22, 1874, § 5, 18 Stat. 187. back
166
Boyd v. United States, 116 U.S. 616, 622 (1886). back
167
Howell’s State Trials 1029, 95 Eng. Rep. 807 (1765). back
168
Boyd v. United States, 116 U.S. 616, 630 (1886). back
169
E.g., Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 209–09 (1946). back
170
Andresen v. Maryland, 427 U.S. 463 (1976); Fisher v. United States, 425 U.S. 391, 405–14 (1976). Fisher states that “the precise claim sustained in Boyd would now be rejected for reasons not there considered.” Id. at 408. back
171
427 U.S. 463 (1976). back
172
427 U.S. at 470–77. back
173
427 U.S. at 478–84. back
174
427 U.S. at 482, n.11. Minimization, as required under federal law, has not proved to be a significant limitation. Scott v. United States, 425 U.S. 917 (1976). back
175
E.g., United States v. Miller, 425 U.S. 435, 440, 444 (1976); Fisher v. United States, 425 U.S. 391, 401 (1976); California Bankers Ass’n v. Shultz, 416 U.S. 21, 78–79 (1974) (Justice Powell concurring). back
176
See, Note, Formalism, Legal Realism, and Constitutionally Protected Privacy Under the Fourth and Fifth Amendments, 90 HARV. L. REV. 945 (1977). back
177
United States v. Ramirez, 523 U.S. 65, 71 (1998). back
178
Rule 41(c), Federal Rules of Criminal Procedure, provides, inter alia, that the warrant shall command its execution in the daytime, unless the magistrate “for reasonable cause shown” directs in the warrant that it be served at some other time. See Jones v. United States, 357 U.S. 493, 498–500 (1958); Gooding v. United States, 416 U.S. 430 (1974). A separate statutory rule applies to narcotics cases. 21 U.S.C. § 879(a). back
179
Semayne’s Case, 5 Coke’s Rep. 91a, 77 Eng. Rep. 194 (K.B. 1604). back
180
18 U.S.C. § 3109. See Miller v. United States, 357 U.S. 301 (1958); Wong Sun v. United States, 371 U.S. 471 (1963). back
181
374 U.S. 23 (1963). Ker was an arrest warrant case, but no reason appears for differentiating search warrants. Eight Justices agreed that federal standards should govern and that the rule of announcement was of constitutional stature, but they divided 4-to-4 whether entry in this case had been pursuant to a valid exception. Justice Harlan who had dissented from the federal standards issue joined the four finding a justifiable exception to carry the result. back
182
514 U.S. 927 (1995). back
183
520 U.S. 385, 394 (1997). back
184
The fact that officers may have to destroy property in order to conduct a no-knock entry has no bearing on the reasonableness of their decision not to knock and announce. United States v. Ramirez, 523 U.S. 65 (1998). back
185
United States v. Banks, 540 U.S. 31 (2003) (forced entry was permissible after officers executing a warrant to search for drugs knocked, announced “police search warrant,” and waited 15–20 seconds with no response). back
186
In narcotics cases, magistrates are authorized to issue “no-knock” warrants if they find there is probable cause to believe (1) the property sought may, and if notice is given, will be easily and quickly destroyed or (2) giving notice will endanger the life or safety of the executing officer or another person. 21 U.S.C. § 879(b). See also D.C. Code, § 23–591. back
187
Sgro v. United States, 287 U.S. 206 (1932). back
188
Sgro v. United States, 287 U.S. 206 (1932). back
189
Wilson v. Layne, 526 U.S. 603 (1999). Accord, Hanlon v. Berger, 526 U.S. 808 (1999) (media camera crew “ride-along” with Fish and Wildlife Service agents executing a warrant to search respondent’s ranch for evidence of illegal taking of wildlife). back
190
Ybarra v. Illinois, 444 U.S. 85 (1979) (patron in a bar), relying on and reaffirming United States v. Di Re, 332 U.S. 581 (1948) (occupant of vehicle may not be searched merely because there are grounds to search the automobile). But see Maryland v. Pringle, 540 U.S. 366 (2003) (distinguishing Ybarra on basis that passengers in car often have “common enterprise,” and noting that the tip in Di Re implicated only the driver. back
191
452 U.S. 692 (1981). back
192
452 U.S. at 701–06. Ybarra was distinguished on the basis of its greater intrusiveness and the lack of sufficient connection with the premises. Id. at 695 n.4. By the time Summers was searched, police had probable cause to do so. Id. at 695. The warrant here was for contraband, id. at 701, and a different rule may apply with respect to warrants for other evidence, id. at 705 n.20. In Los Angeles County v. Rettele, 550 U.S. 609 (2007), the Court found no Fourth Amendment violation where deputies did not know that the suspects had sold the house that the deputies had a warrant to search. The deputies entered the house and found the new owners, of a different race from the suspects, sleeping in the nude. The deputies held the new owners at gunpoint for one to two minutes without allowing them to dress or cover themselves. As for the difference in race, the Court noted that, “[w]hen the deputies ordered [Caucasian] respondents from their bed, they had no way of knowing whether the African-American suspects were elsewhere in the house.” Id. at 613. As for not allowing the new owners to dress or cover themselves, the Court quoted its statement in Michigan v. Summers that “[t]he risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.” Id. at 1993 (quoting 452 U.S. at 702–03). back
193
Muehler v. Mena, 544 U.S. 93, 98–99 (2005) (also upholding questioning the handcuffed detainee about her immigration status). back
194
Maryland v. Garrison, 480 U.S. 79 (1987) (officers reasonably believed there was only one “third floor apartment” in city row house when in fact there were two). back
195
568 U.S. ___, No. 11–770, slip op. (2013). In Bailey, the police obtained a warrant to search Bailey’s residence for firearms and drugs Id. at 2. Meanwhile, detectives staked out the residence, saw Bailey leave and drive away, and then called in a search team. Id. While the search was proceeding, the detectives tailed Bailey for about a mile before stopping and detaining him. Id. at 2–3. back
196
As an alternative ground, the district court had found that stopping Bailey was lawful as an investigatory stop under Terry v. Ohio, 392 U.S. 1, 20 (1968), but the Supreme Court offered no opinion on whether, assuming the stop was valid under Terry, the resulting interaction between law enforcement and Bailey could independently have justified Bailey’s detention. Bailey, slip op. at 14. back
197
Bailey, slip op. at 13–14. back
198
Id. at 13. back
199
Steagald v. United States, 451 U.S. 204 (1981). An arrest warrant is a necessary and sufficient authority to enter a suspect’s home to arrest him. Payton v. New York, 445 U.S. 573 (1980). back