Valid Searches and Seizures Without Warrants

Although the Supreme Court stresses the importance of warrants and has repeatedly referred to searches without warrants as “exceptional,”200 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.”201 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.’ ”202 The exceptions are said to be “jealously and carefully drawn,”203 and there must be “a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.”204 Although the record indicates 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 sub-ject 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 a misdemeanor in their presence.205 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 police officer’s stop, what is discovered thereafter not sufficing to establish probable cause retroactively.206 There are, however, instances when a police officer’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.207 In Terry v. Ohio,208 the Court, with only Justice Douglas dissenting, approved an on-the-street investigation by a police officer that involved “patting down” the subject of the investigation for weapons.

Terry 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, patted the exterior of his clothes, and discovered a gun. Chief Justice Warren for the Court wrote that the Fourth Amendment was applicable “whenever a police officer accosts an individual and restrains his freedom to walk away.”209 Because 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.210 Because the conduct witnessed by the police officer 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.”211

In a later case, the Court held that an officer may seize an object if, in the course of a weapons frisk, “plain touch” reveals the presence of the object, and the officer has probable cause to believe it is contraband.212 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.213 Also impermissible is physical manipulation, without reasonable suspicion, of a bus passenger’s carry-on luggage stored in an overhead compartment.214

Terry did not rule 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. The Court provided a partial answer in 2004, when it upheld a state law that required a suspect to disclose his name in the course of a valid Terry stop.215 Questions about a suspect’s identity “are a routine and accepted part of many Terry stops,” the Court explained.216

After Terry, 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 foundations of their suspicions.217 Although it did not elaborate a set of rules to govern the application of the tests, the Court was initially restrictive in recognizing permissible bases for reasonable suspicion.218 Extensive intrusions on individual privacy, e.g., transportation to the station house for interrogation and fingerprinting, were invalidated in the absence of probable cause,219 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.220 More recently, however, the Court has taken less restrictive approaches.221

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.”222 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.”223 A majority of the Justices subsequently endorsed this reasonable perception standard224 and applied it 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 workforce surveys within a garment factory; while some agents were positioned at exits, others systematically moved through the factory and questioned employees.225 This brief questioning, even with blocked exits, amounted to “classic consensual encounters rather than Fourth Amendment seizures.”226 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.”227

Soon after, 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 had not complied with the officer’s order to halt. The Court in California v. Hodari D. wrote that Mendenhall stated a “necessary” but not a “sufficient” condition for a seizure of the person through show of authority.228 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.229 Indications are, however, that Hodari D. did not signal the end of the reasonable perception standard, but merely carved 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 sweep of a bus, but that a modified reasonable perception approach still governed.230 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.”231 “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.”232

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.”233 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.”234

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 less than probable cause.”235 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.”236 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.237 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.238 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.239

Search Incident to Arrest.

The common-law rule permit-ting searches of the person of an arrestee as an incident to the arrest has occasioned little controversy in the Court.240 The Court has even upheld a search incident to an illegal (albeit not unconstitutional) arrest.241 The dispute has centered around the scope of the search. Because it was the stated general rule that the scope of a warrantless search must be strictly tied to and justified by the circumstances that rendered its justification permissible, and because 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,242 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, because there could have been no 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.243

The Court has disavowed a case-by-case evaluation of searches made post-arrest244 and instead has embraced categorical evaluations as to post-arrest searches. Thus, in Riley v. California,245 the Court declined to extend the holding of United States v. Robinson to the search of the digital data contained in a cell phone found on an arrestee. Specifically, the Court distinguished a search of cell phones, which contain vast quantities of personal data, from the limited physical search at issue in Robinson.246 Focusing primarily on the rationale that searching cell phones would prevent the destruction of evidence, the government argued that cell phone data could be destroyed remotely or become encrypted by the passage of time. The Court, however, both discounted the prevalence of these events and the efficacy of warrantless searches to defeat them. Rather, the Court noted that other means existed besides a search of a cell phone to secure the data contained therein, including turning the phone off or placing the phone in a bag that isolates it from radio waves.247 Because of the more substantial privacy interests at stake when digital data is involved in a search incident to an arrest and because of the availability of less intrusive alternatives to a warrantless search, the Court in Riley concluded that, as a “simple” categorical rule, before police can search a cell phone incident to an arrest, the police must “get a warrant.”248

Two years after Riley, the Court again crafted a new brightline rule with respect to searches following an arrest in another “situation[] that could not have been envisioned when the Fourth Amendment was adopted.”249 In Birchfield v. North Dakota, the Court examined whether compulsory breath and blood tests administered in order to determine the blood alcohol concentration (BAC) of an automobile driver, following the arrest of that driver for suspected “drunk driving,” are unreasonable under the search incident to arrest exception to the Fourth Amendment’s warrant requirement.250 In examining laws criminalizing the refusal to submit to either a breath or blood test, similar to Riley, the Court relied on a general balancing approach used to assess whether a given category of searches is reasonable, weighing the individual privacy interests implicated by such tests against any legitimate state interests.251 With respect to breath tests, the Birchfield Court viewed the privacy intrusions posed by such tests as “almost negligible” in that a breath test is functionally equivalent to the process of using a straw to drink a beverage and yields a limited amount of useful information for law enforcement agents.252 In contrast, the Court concluded that a mandatory blood test raised more serious privacy interests,253 as blood tests pierce the skin, extract a part of the subject’s body, and provide far more information than a breathalyzer test.254 Turning to the state’s interest in obtaining BAC readings for persons arrested for drunk driving, the Birchfield Court acknowledged the government’s “paramount interest” in preserving public safety on highways, including the state’s need to deter drunk driving from occurring in the first place through the imposition of criminal penalties for failing to cooperate with drunk driving investigations.255 Weighing these competing interests, the Court ultimately concluded that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving because the “impact of breath tests on privacy is slight,” whereas the “need for BAC testing is great.”256 In so doing, the Court rejected the alternative of requiring the state to obtain a warrant prior to the administration of a BAC breath test, noting (1) the need for clear, categorical rules to provide police adequate guidance in the context of a search incident to an arrest and (2) the potential administrative burdens that would be incurred if warrants were required prior to every breathalyzer test.257 Nonetheless, the Court reached a “different conclusion” with respect to blood tests, finding that such tests are “significantly more intrusive” and their “reasonability must be judged in light of the availability of the less intrusive alternative of a breath test.”258 As a consequence, the Court held that while a warrantless breath test following a drunk-driving arrest is categorically permissible as a reasonable search under the Fourth Amendment, a warrantless blood test cannot be justified by the search incident to arrest doctrine.259

However, the Justices have long found themselves in disagreement 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,260 but in Harris v. United States,261 the Court approved a search of a four-room apartment pursuant to an arrest under warrant for one crime, where the search turned up evidence of another crime. A year later, in Trupiano v. United States,262 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.”263

The Court overruled Trupiano in United States v. Rabinowitz,264 in which officers had arrested the 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,”265 it provided no standard by which this area was to be determined, and extensive searches were permitted under the rule.266

In Chimel v. California,267 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 someone 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.”268

Although the viability of Chimel had been in doubt for some time as the Court refined and applied its analysis of reasonable and justifiable expectations of privacy,269 it has in some but not all contexts survived the changed rationale. Thus, in Mincey v. Arizona,270 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,271 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.272 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.”273

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.274

Stating that it was “in no way alter[ing] the fundamental principles established in the Chimel case,” the Court in New York v. Belton275 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].’ ”276

Belton was “widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search.”277 In Arizona v. Gant,278 however, the Court disavowed this understanding of Belton279 and held that “[p]olice may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe that the vehicle contains evidence of the offense of arrest.”280

Vehicular Searches.

In the early days of the automobile, the Court created an exception for searches of vehicles, holding in Carroll v. United States281 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.282

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.283 The Court also ruled that the search must be reasonably contemporaneous with the stop, so that it was not permissible to remove the vehicle to the station house for a warrantless search at the convenience of the police.284

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 expectation of privacy that exists with respect to differently situated property.”285 “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.’ ”286 Although motor homes serve as residences and as repositories for personal effects, and 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.”287

The reduced expectancy concept has broadened police powers to conduct automobile searches without warrants, but they still must have probable cause to search a vehicle288 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”289 of traffic or safety violation or some other criminal activity.290 If police stop a vehicle, then the vehicle’s passengers as well as its driver are deemed to have been seized from the moment the car comes to a halt, and the passengers as well as the driver may challenge the constitutionality of the stop.291 Likewise, a police officer may frisk (patdown for weapons) both the driver and any passengers whom he reasonably concludes “might be armed and presently dangerous.”292

By contrast, fixed-checkpoint stops in the absence of any individualized suspicion have been upheld for purposes of promoting highway safety293 or policing the international border,294 but not for more generalized law enforcement purposes.295 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.296 And, in the absence of such reasonable suspicion as to weapons, police may seize contraband and suspicious items “in plain view” inside the passenger compartment.297

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 car298 unless they exercise their discretion to arrest the driver instead of issuing a citation.299 And once police have probable cause to believe there is contraband in a vehicle, they may remove the vehicle from the scene to the station house in order to conduct a search, without thereby being required to obtain a warrant.300 “[T]he justification to conduct such a warrantless search does not vanish once the car has been immobilized; nor does it depend upon a reviewing court’s assessment of the likelihood in each particular case that the car would have been driven away, or that its contents would have been tampered with, during the period required for the police to obtain a warrant.”301 Because of the lessened expectation of privacy, inventory searches of impounded automobiles are justifiable in order to protect public safety and the owner’s property, and any evidence of criminal activity discovered in the course of the inventories is admissible in court.302 The Justices were evenly divided, however, on the propriety of warrantless seizure of an arrestee’s automobile from a public parking lot several hours after his arrest, its transportation to a police impoundment lot, and the taking of tire casts and exterior paint scrapings.303

Police in undertaking a warrantless search of an automobile may not extend the search to the persons of the passengers therein304 unless there is a reasonable suspicion that the passengers are armed and dangerous, in which case a Terry patdown is permissible,305 or unless there is individualized suspicion of criminal activity by the passengers.306 But because passengers in an automobile have no reasonable expectation of privacy in the interior area of the car, a warrantless search of the glove compartment and the spaces under the seats, which turned up evidence implicating the passengers, invaded no Fourth Amendment interest of the passengers.307 Luggage and other closed containers found in automobiles may also be subjected to warrantless searches based on probable cause, regardless of whether the luggage or containers belong to the driver or to a passenger, and regardless of whether it is the driver or a passenger who is under suspicion.308 The same rule now applies whether the police have probable cause to search only the containers309 or whether they have probable cause to search the automobile for something capable of being held in the container.310

Vessel Searches.

Not only is the warrant requirement inap-plicable 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,311 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,312 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.”313 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.314 Dissenting 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.”315

Consent Searches.

Fourth Amendment rights, like other con-stitutional rights, may be waived, and one may consent to a search of his person or premises by officers who have not complied with the Amendment.316 The Court, however, has insisted that the burden is on the prosecution to prove the voluntariness of the consent317 and awareness of the right of choice.318 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 for a search to be found voluntary, and police therefore are not required to inform a person of his rights, as through a Fourth Amendment version of Miranda warnings.319 But consent will not be regarded as voluntary when the officer asserts his official status and claim of right and the occupant yields because of these factors.320 When consent is obtained through the deception of an undercover officer or an informer’s gaining admission without 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.321 Moreover, while the Court has appeared to endorse implied consent laws that view individuals who engage in certain regulated activities as having implicitly agreed to certain searches related to that activity and the enforcement of such laws through civil penalties,322 the implied consent doctrine does not extend so far as to deem individuals to have impliedly consented to a search on “pain of committing a criminal offense.”323

Additional issues arise in determining the validity of consent to search when consent is given not by the suspect, but by a third 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.”324 Now, however, actual common authority over the premises is not required; it is sufficient if the searching officer had a reasonable but mistaken belief that the third party had common authority and could consent to the search.325 If, however, one occupant consents to a search of shared premises, but a physically present co-occupant expressly objects to the search, the search is unreasonable.326 Common social expectations inform the analysis. A person at the threshold of a residence could not confidently conclude he was welcome to enter over the express objection of a present co-tenant. Expectations may change, however, if the objecting co-tenant leaves, or is removed from, the premises with no prospect of imminent return.327

Border Searches.

“That searches made at the border, pursu-ant 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.”328 Authorized by the First Congress,329 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.330 Moreover, although 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, Terry protections as to the length and intrusiveness of the search do not apply.331 Motor vehicles may be searched at the border, even to the extent of removing, disassembling, and reassembling the fuel tank.332

Inland stoppings and searches in areas away from the borders are a different matter altogether. Thus, in Almeida-Sanchez v. United States,333 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.334 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.335 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.336

“Open Fields”.

In Hester v. United States,337 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 States338 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.339 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.”340 Nor may an individual demand privacy for activities conducted within outbuildings and visible by trespassers peering into the buildings from just outside.341 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.342 Similarly, naked-eye inspection from helicopters flying even lower contravenes no reasonable expectation of privacy.343 And aerial photography of commercial facilities secured from ground-level public view is permissible, the Court finding such spaces more analogous to open fields than to the curtilage of a dwelling.344

“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 warrant345 or that, if the officer needs a warrant or probable cause to search and seize, his lawful observation will provide grounds therefor.346 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.347

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.348

Public Schools.

In New Jersey v. T.L.O.,349 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 State, not merely as surrogates for the parents.”350 However, “the school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject.”351 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.352 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.”353 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.”354 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.

In Safford Unified School District #1 v. Redding,355 a student found in possession of prescription ibuprofen pills at school stated that the pills had come from another student, 13-year-old Savana Redding. The Court found that the first student’s statement was sufficiently plausible to warrant suspicion that Savana was involved in pill distribution, and that this suspicion was enough to justify a search of Savana’s backpack and outer clothing.356 School officials, however, had also “directed Savana to remove her clothes down to her underwear, and then ‘pull out’ her bra and the elastic band on her underpants”357 —an action that the Court thought could fairly be labeled a strip search. Taking into account that “adolescent vulnerability intensifies the patent intrusiveness of the exposure” and that, according to a study, a strip search can “result in serious emotional damage,” the Court found that the search violated the Fourth Amendment.358 “Because there were no reasons to suspect the drugs presented a danger or were concealed in her underwear,” the Court wrote, “the content of the suspicion failed to match the degree of intrusion.”359 But, even though the Court found that the search had violated the Fourth Amendment, it found that the school officials who conducted the search were protected from liability through qualified immunity, because the law prior to Red-ding was not clearly established.360

Government Workplace.

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,361 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.”362 Four Justices would require a case-by-case inquiry into the reasonableness of such searches;363 one would hold that such searches “do not violate the Fourth Amendment.”364

In City of Ontario v. Quon,365 the Court bypassed adopting an approach for determining a government employee’s reasonable expectation of privacy, an issue unresolved in O’Connor. Rather, the Quon Court followed the “special needs” holding in O’Connor and found that, even assuming a reasonable expectation of privacy, a city’s warrantless search of the transcripts of a police officer’s on-duty text messages on city equipment was reasonable because it was justified at its inception by noninvestigatory work-related purposes and was not excessively intrusive.366 A jury had found the purpose of the search to be to determine whether the city’s contract with its wireless service provider was adequate, and the Court held that “reviewing the transcripts was reasonable because it was an efficient and expedient way to determine whether [the officer’s] overages were the result of work-related messaging or personal use.”367

Prisons and Regulation of Probation and Parole.

The “un-doubted security imperatives involved in jail supervision” require “defer[ence] to the judgment of correctional officials unless the record contains substantial evidence showing their policies are an unnecessary or unjustified response to the problems of jail security.”368 So saying, the Court, in Florence v. Board of Chosen Freeholders, upheld routine strip searches, including close-up visual cavity inspections, as part of processing new arrestees for entry into the general inmate population, without the need for individualized suspicion and without an exception for those arrested for minor offenses.369 Correctional officials had asserted significant penological interests to justify routine strip searches of new arrivals: detecting and preventing the introduction into the inmate population of infections, infestations, and contraband of all sorts; and identifying gang members. Having cited serious concerns and having applied their professional expertise, the officials had, in the Court’s opinion, acted reasonably and not clearly overreacted. But despite taking a deferential approach and recounting the grave dangers correctional officers face, the Florence Court did not hold that individuals being processed for detention have no privacy rights at all. In separate concurrences, moreover, two members of the five-Justice majority held out the prospect of exceptions and refinements in future rulings on blanket strip search policies for new detainees.370

The Court in Maryland v. King cited a legitimate interest in having safe and accurate booking procedures to identify persons being taken into custody in order to sustain taking DNA samples from those charged with serious crimes.371 Tapping the “unmatched potential of DNA identification” facilitates knowing with certainty who the arrestee is, the arrestee’s criminal history, the danger the arrestee poses to others, the arrestee’s flight risk, and other relevant facts.372 By comparison, the Court characterized an arrestee’s expectation of privacy as diminished and the intrusion posed by a cheek swab as minimal.373

Searches of prison cells by prison administrators are not limited even by a reasonableness standard, the Court’s having held that “the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell.”374 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).375 “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.”376 “Probation, like incarceration, is a form of criminal sanction,” the Court noted, and a warrant or probable cause requirement would interfere with the “on-going [non-adversarial] supervisory relationship” required for proper functioning of the system.377 A warrant is also not required if the purpose of a search of a probationer is investigate a crime rather than to supervise probation.378

“[O]n the ‘continuum’ of state-imposed punishments . . . , parolees have [even] fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment.”379 The Fourth Amendment, therefore, is not violated by a warrantless search of a parolee that is predicated upon a parole condition to which a prisoner agreed to observe during the balance of his sentence.380

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,381 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; in National Treasury Employees Union v. Von Raab382 the Court upheld a Customs Service screening program requiring urine 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 impairment become noticeable.”383 By contrast, the intrusions on privacy were termed “limited.” Blood and breath tests were passed off as routine; the urine test, although more intrusive, was deemed permissible because of the “diminished expectation of privacy” in employees having some responsibility for safety in a pervasively regulated industry.384 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.385

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.”386 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.”387

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. Acton388 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.”389 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.”390 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.”391 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.392

Seven years later, the Court in Board of Education v. Earls393 extended Vernonia to uphold a school system’s drug testing of all junior high and high school students who participated in extra-curricular activities. The lowered expectation of privacy that athletes have “was not essential” to the decision in Vernonia, Justice Thomas wrote for a 5–4 Court majority.394 Rather, that decision “depended primarily upon the school’s custodial responsibility and authority.”395 Another distinction was that, although there was some evidence of drug use among the district’s students, there was no evidence of a significant problem, as there had been in Vernonia. Rather, the Court referred to “the nationwide epidemic of drug use,” and stated that there is no “threshold level” of drug use that need be present.396 Because the students subjected to testing in Earls had the choice of not participating in extra-curricular activities rather than submitting to drug testing, the case stops short of holding that public school authorities may test all junior and senior high school students for drugs. Thus, although the Court’s rationale seems broad enough to permit across-the-board testing,397 Justice Breyer’s concurrence, emphasizing among other points that “the testing program avoids subjecting the entire school to testing,”398 raises some doubt on this score. The Court also left another basis for limiting the ruling’s sweep by asserting that “regulation of extracurricular activities further diminishes the expectation of privacy among schoolchildren.”399

In two other cases, the Court found that there were no “special needs” justifying random testing. Georgia’s requirement that candidates for state office certify that they had passed a drug test, the Court ruled in Chandler v. Miller400 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. In the second case, a city-run hospital’s program for drug screening of pregnant patients suspected of cocaine use was invalidated because its purpose was to collect evidence for law enforcement.401 In the previous three cases in which random testing had been upheld, the Court pointed out, the “special needs” asserted as justification were “divorced from the general interest in law enforcement.”402 By contrast, the screening program’s focus on law enforcement brought it squarely within the Fourth Amendment’s restrictions.

Footnotes

200
E.g., Johnson v. United States, 333 U.S. 10, 14 (1948); McDonald v. United States, 335 U.S. 451, 453 (1948); Camara v. Municipal Court, 387 U.S. 523, 528–29 (1967); G.M. Leasing Corp. v. United States, 429 U.S. 338, 352–53, 355 (1977). back
201
American Law Institute, A Model Code of Pre-Arraignment Procedure, Tent. Draft No. 3 (Philadelphia: 1970), xix. back
202
Coolidge v. New Hampshire, 403 U.S. 443, 454–55 (1971) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)); G.M. Leasing Corp. v. United States, 429 U.S. 338, 352–53, 358 (1977). back
203
Jones v. United States, 357 U.S. 493, 499 (1958). back
204
McDonald v. United States, 335 U.S. 451, 456 (1948). In general, with regard to exceptions to the warrant clause, conduct must be tested by the reasonableness standard enunciated by the first clause of the Amendment, Terry v. Ohio, 392 U.S. 1, 20 (1968). The Court’s development of its privacy expectation tests, discussed under “The Interest Protected,” supra, substantially changed the content of that standard. back
205
United States v. Watson, 423 U.S. 411 (1976). back
206
Henry v. United States, 361 U.S. 98 (1959); Johnson v. United States, 333 U.S. 10, 16–17 (1948); Sibron v. New York, 392 U.S. 40, 62–63 (1968). back
207
“The police may not arrest upon mere suspicion but only on ‘probable cause.’ ” Mallory v. United States, 354 U.S. 449, 454 (1957). back
208
392 U.S. 1 (1968). back
209
392 U.S. at 16. See id. at 16–20. back
210
392 U.S. at 20, 21, 22. back
211
392 U.S. at 23–27, 29. See also Sibron v. New York, 392 U.S. 40 (1968) (after policeman observed defendant speak with several known narcotics addicts, he approached him and placed his hand in defendant’s pocket, thus discovering narcotics; this was impermissible, because he lacked a reasonable basis for the frisk and in any event his search exceeded the permissible scope of a weapons frisk); Adams v. Williams, 407 U.S. 143 (1972) (stop and frisk based on informer’s in-person tip that defendant was sitting in an identified parked car, visible to informer and officer, in a high crime area at 2 a.m., with narcotics and a gun at his waist); Pennsylvania v. Mimms, 434 U.S. 106 (1977) (after validly stopping car, officer required defendant to get out of car, observed bulge under his jacket, and frisked him and seized weapon; while officer did not suspect driver of crime or have an articulable basis for safety fears, safety considerations justified his requiring driver to leave car); 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”); Arizona v. Johnson, 129 S. Ct. 781, 786 (2009) (after validly stopping car, officer may frisk (patdown for weapons) both the driver and any passengers whom he reasonably concludes “might be armed and presently dangerous”). back
212
Minnesota v. Dickerson, 508 U.S. 366 (1993). back
213
508 U.S. at 375, 378–79. In Dickerson the Court held that seizure of a small plastic container that the officer felt in the suspect’s pocket was not justified; the officer should not have continued the search, manipulating the container with his fingers, after determining that no weapon was present. back
214
Bond v. United States, 529 U.S. 334 (2000) (bus passenger has reasonable expectation that, although other passengers might handle his bag in order to make room for their own, they will not “feel the bag in an exploratory manner”). back
215
Hiibel v. Sixth Judicial Dist. Ct., 542 U.S. 177 (2004). back
216
542 U.S. at 186. back
217
In United States v. Cortez, 449 U.S. 411 (1981), a unanimous Court attempted to capture the “elusive concept” of the basis for permitting a stop. Officers must have “articulable reasons” or “founded suspicions,” derived from the totality of the circumstances. “Based upon that whole picture the detaining officer must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Id. at 417–18. The inquiry is thus quite fact-specific. In the anonymous tip context, the same basic approach requiring some corroboration applies regardless of whether the standard is probable cause or reasonable suspicion; the difference is that less information, or less reliable information, can satisfy the lower standard. Alabama v. White, 496 U.S. 325 (1990). back
218
E.g., Brown v. Texas, 443 U.S. 47 (1979) (individual’s presence in high crime area gave officer no articulable basis to suspect him of crime); Delaware v. Prouse, 440 U.S. 648 (1979) (reasonable suspicion of a license or registration violation is necessary to authorize automobile stop; random stops impermissible); United States v. Brignoni-Ponce, 422 U.S. 873 (1975) (officers could not justify random automobile stop solely on basis of Mexican appearance of occupants); Reid v. Georgia, 448 U.S. 438 (1980) (no reasonable suspicion for airport stop based on appearance that suspect and another passenger were trying to conceal the fact that they were traveling together). But cf. United States v. Martinez-Fuerte, 428 U.S. 543 (1976) (halting vehicles at fixed checkpoints to question occupants as to citizenship and immigration status permissible, even if officers should act on basis of appearance of occupants). back
219
Davis v. Mississippi, 394 U.S. 721 (1969); Dunaway v. New York, 442 U.S. 200 (1979). Illinois v. Wardlow, 528 U.S. 119 (2000) (unprovoked flight from high crime area upon sight of police produces “reasonable suspicion”). back
220
Florida v. J.L., 529 U.S. 266 (2000) (reasonable suspicion requires that a tip be reliable in its assertion of illegality, not merely in its identification of someone). back
221
See, e.g., Prado Navarette v. California, 572 U.S. ___, No. 12–9490, slip op. (2014) (anonymous 911 call reporting an erratic swerve by a particular truck traveling in a particular direction held to be sufficient to justify stop); United States v. Sokolow, 490 U.S. 1, 9 (1989) (airport stop based on drug courier profile may rely on a combination of factors that individually may be “quite consistent with innocent travel”); United States v. Hensley, 469 U.S. 221 (1985) (reasonable suspicion to stop a motorist may be based on a “wanted flyer” as long as issuance of the flyer has been based on reasonable suspicion). back
222
392 U.S. at 19, n.16. back
223
United States v. Mendenhall, 446 U.S. 544, 554 (1980). back
224
See, e.g., Florida v. Royer, 460 U.S. 491 (1983), in which there was no opinion of the Court, but in which the test was used by the plurality of four, id. at 502, and also endorsed by dissenting Justice Blackmun, id. at 514. back
225
INS v. Delgado, 466 U.S. 210 (1984). back
226
466 U.S. at 221. back
227
Michigan v. Chesternut, 486 U.S. 567, 575 (1988). back
228
499 U.S. 621, 628 (1991). As in Michigan v. Chesternut, supra, the suspect dropped incriminating evidence while being chased. back
229
Adherence to this approach would effectively nullify the Court’s earlier position that Fourth Amendment protections extend to “seizures that involve only a brief detention short of traditional arrest.” United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975), quoted in INS v. Delgado, 466 U.S. 210, 215 (1984). back
230
Florida v. Bostick, 501 U.S. 429 (1991). back
231
501 U.S. at 436. back
232
501 U.S. at 436. The Court asserted that the case was “analytically indistinguishable from Delgado. Like the workers in that case [subjected to the INS ‘survey’ at their workplace], Bostick’s freedom of movement was restricted by a factor independent of police conduct—i.e., by his being a passenger on a bus.” Id. See also United States v. Drayton, 536 U.S. 194 (2002), applying Bostick to uphold a bus search in which one officer stationed himself in the front of the bus and one in the rear, while a third officer worked his way from rear to front, questioning passengers individually. Under these circumstances, and following the arrest of his traveling companion, the defendant had consented to the search of his person. back
233
Michigan v. Long, 463 U.S. 1032 (1983) (suspect appeared to be under the influence of drugs, officer spied hunting knife exposed on floor of front seat and searched remainder of passenger compartment). Similar reasoning has been applied to uphold a “protective sweep” of a home in which an arrest is made if arresting officers have a reasonable belief that the area swept may harbor another individual posing a danger to the officers or to others. Maryland v. Buie, 494 U.S. 325 (1990). back
234
United States v. Sharpe, 470 U.S. 675, 686 (1985). A more relaxed standard has been applied to detention of travelers at the border, the Court testing the reasonableness in terms of “the period of time necessary to either verify or dispel the suspicion.” United States v. Montoya de Hernandez, 473 U.S. 531, 544 (1985) (approving warrantless detention for more than 24 hours of traveler suspected of alimentary canal drug smuggling). back
235
United States v. Place, 462 U.S. 696, 709 (1983). back
236
462 U.S. at 706. back
237
462 U.S. at 707. However, the search in Place was not expeditious, and hence exceeded Fourth Amendment bounds, when agents took 90 minutes to transport luggage to another airport for administration of the canine sniff. The length of a detention short of an arrest has similarly been a factor in other cases. Compare Illinois v. Caballes, 543 U.S. 405 (2005) (a canine sniff around the perimeter of a car following a routine traffic stop does not offend the Fourth Amendment if the duration of the stop is justified by the traffic offense) with Rodriguez v. United States, 575 U.S. ___, No. 13–9972, slip op. at 3, 5–6 (2015) (finding that the stop in question had been prolonged for seven to eight minutes beyond the time needed to resolve the traffic offense in order to conduct a canine sniff). back
238
Florida v. Royer, 460 U.S. 491 (1983). On this much the plurality opinion of Justice White (id. at 503), joined by three other Justices, and the concurring opinion of Justice Brennan (id. at 509) were in agreement. back
239
United States v. Montoya de Hernandez, 473 U.S. 531 (1985). back
240
Weeks v. United States, 232 U.S. 383, 392 (1914); Carroll v. United States, 267 U.S. 132, 158 (1925); Agnello v. United States, 269 U.S. 20, 30 (1925). back
241
Virginia v. Moore, 128 S. Ct. 1598 (2008) (holding that, where an arrest for a minor offense is prohibited by state law, the arrest will not violate the Fourth Amendment if it was based on probable cause). back
242
Terry v. Ohio, 392 U.S. 1, 19 (1968); Chimel v. California, 395 U.S. 752, 762, 763 (1969). The Court, in Birchfield v. North Dakota, 579 U.S. ___, No. 14–1468, slip op. (2016), explained that the precedent allowing for a warrantless search of an arrestee in order to prevent the destruction of evidence applies to both evidence that could be actively destroyed by a suspect and to evidence that can be destroyed due to a natural process, such as the natural dissipation of the alcohol content in a suspect’s blood. Id. at 30–31. back
243
United States v. Robinson, 414 U.S. 218, 235 (1973). See also id. at 237–38 (Justice Powell concurring). The Court applied the same rule in Gustafson v. Florida, 414 U.S. 260 (1973), involving a search of a motorist’s person following his custodial arrest for an offense for which a citation would normally have issued. Unlike the situation in Robinson, police regulations did not require the Gustafson officer to take the suspect into custody, nor did a departmental policy guide the officer as to when to conduct a full search. The Court found these differences inconsequential, and left for another day the problem of pretextual arrests in order to obtain basis to search. Soon thereafter, the Court upheld conduct of a similar search at the place of detention, even after a time lapse between the arrest and search. United States v. Edwards, 415 U.S. 800 (1974). back
244
In this vein, the search incident to arrest exception to the warrant requirement differs from other exceptions to the warrant requirement, such as the exigent circumstances exception. See Birchfield, slip op. at 15–16 (noting that while “other exceptions to the warrant requirement ‘apply categorically’,” the exigent circumstances exception to the warrant requirement applies on a case-by-case basis) (quoting Missouri v. McNeely, 569 U.S. ___, No. 11–1425, slip op. at 7 n.3 (2013)). back
245
573 U.S. ___, No. 13–132, slip op. (2014). back
246
“Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person.” Id. at 17. back
247
Id. at 14. back
248
Id. at 28. back
249
See Birchfield, slip op. at 19. back
250
Id. at 19. back
251
Id. back
252
Id. at 20–22. The Court disclaimed a criminal defendant’s possessory interest in the air in his lungs, as air in one’s lungs is not a part of one’s body and is regularly exhaled from the lungs as a natural process. Id. at 21. back
253
“Blood tests are a different matter.” Id. at 22. back
254
Id. at 21–23. back
255
Id. at 24–25. back
256
Id. at 33. back
257
Id. at 25–28. The Birchfield Court also rejected “more costly” and previously tried alternatives to penalties for refusing a breath test, such as sobriety checkpoints, ignition interlocks, and the use of treatment programs. Id. at 29–30. back
258
Id. at 33. In so doing, the Court rejected the argument that warrantless blood tests are needed as an alternative to warrantless breath tests to detect impairing substances other than alcohol or to obtain the BAC of an unconscious or uncooperative driver. Id. at 34. In such situations, the Court reasoned that the state could obtain a warrant for the blood test, or in the case of an uncooperative driver, prosecute the defendant for refusing to undergo the breath test. Id. at 34–35. back
259
Id. at 37–38. back
260
Compare Marron v. United States, 275 U.S. 192 (1927), with Go-Bart Importing Co. v. United States, 282 U.S. 344 (1931), and United States v. Lefkowitz, 285 U.S. 452 (1932). back
261
331 U.S. 145 (1947). back
262
334 U.S. 699 (1948). back
263
334 U.S. at 708. back
264
339 U.S. 56 (1950). back
265
339 U.S. at 64. back
266
Cf. Chimel v. California, 395 U.S. 752, 764–65 & n.10 (1969). But, in Kremen v. United States, 353 U.S. 346 (1957), the Court held that the seizure of the entire contents of a house and the removal to F.B.I. offices 200 miles away for examination, pursuant to an arrest under warrant of one of the persons found in the house, was unreasonable. In decisions contemporaneous to and subsequent to Chimel, applying pre-Chimel standards because that case was not retroactive, Williams v. United States, 401 U.S. 646 (1971), the Court has applied Rabinowitz somewhat restrictively. See Von Cleef v. New Jersey, 395 U.S. 814 (1969), which followed Kremen; Shipley v. California, 395 U.S. 818 (1969), and Vale v. Louisiana, 399 U.S. 30 (1970) (both involving arrests outside the house with subsequent searches of the house); Coolidge v. New Hampshire, 403 U.S. 443, 455–57 (1971). Substantially extensive searches were, however, approved in Williams v. United States, 401 U.S. 646 (1971), and Hill v. California, 401 U.S. 797 (1971). back
267
395 U.S. 752 (1969). back
268
395 U.S. at 762–63. back
269
See, e.g., Coolidge v. New Hampshire, 403 U.S. 443, 492, 493, 510 (1971), in which the four dissenters advocated the reasonableness argument rejected in Chimel. back
270
437 U.S. 385, 390–91 (1978). Accord, Flippo v. West Virginia, 528 U.S. 11 (1999) (per curiam). back
271
433 U.S. 1 (1977). Defendant and his luggage, a footlocker, had been removed to the police station, where the search took place. back
272
If, on the other hand, a sealed shipping container had already been opened and resealed during a valid customs inspection, and officers had maintained surveillance through a “controlled delivery” to the suspect, there is no reasonable expectation of privacy in the contents of the container and officers may search it, upon the arrest of the suspect, without having obtained a warrant. Illinois v. Andreas, 463 U.S. 765 (1983). back
273
Illinois v. LaFayette, 462 U.S. 640, 645 (1983) (inventory search) (following South Dakota v. Opperman, 428 U.S. 364 (1976)). Similarly, an inventory search of an impounded vehicle may include the contents of a closed container. Colorado v. Bertine, 479 U.S. 367 (1987). Inventory searches of closed containers must, however, be guided by a police policy containing standardized criteria for exercise of discretion. Florida v. Wells, 495 U.S. 1 (1990). back
274
Maryland v. Buie, 494 U.S. 325, 334 (1990). This “sweep” is not to be a full-blown, “top-to-bottom” search, but only “a cursory inspection of those spaces where a person may be found.” Id. at 335–36. back
275
453 U.S. 454, 460 n.3 (1981). back
276
453 U.S. at 460 (quoting Chimel v. California, 395 U.S. 752, 763 (1969)). In this particular instance, Belton had been removed from the automobile and handcuffed, but the Court wished to create a general rule removed from the fact-specific nature of any one case. “ ‘Container’ here denotes any object capable of holding another object. It thus includes closed or open glove compartments, consoles, or other receptacles located anywhere within the passenger compartment, as well as luggage, boxes, bags, clothing, and the like. Our holding encompasses only the interior of the passenger compartment of an automobile and does not encompass the trunk.” 453 U.S. at 460–61 n.4. back
277
Arizona v. Gant, 556 U.S. ___, No. 07–542, slip op. at 8 (2009). back
278
556 U.S. ___, No. 07–542 (2009). back
279
“To read Belton as authorizing a vehicle search incident to every recent occupant’s arrest would . . . untether the rule from the justifications underlying the Chimel exception . . . .” Slip op. at 9. back
280
556 U.S. ___, No. 07–542, slip op. at 18. Justice Alito, in a dissenting opinion joined by Chief Justice Roberts and Justice Kennedy and in part by Justice Breyer, wrote that “there can be no doubt that” the majority had overruled Belton. Slip op. at 2. back
281
267 U.S. 132 (1925). Carroll was a Prohibition-era liquor case, whereas a great number of modern automobile cases involve drugs. back
282
267 U.S. at 153. See also Husty v. United States, 282 U.S. 694 (1931); Scher v. United States, 305 U.S. 251 (1938); Brinegar v. United States, 338 U.S. 160 (1949). All of these cases involved contraband, but in Chambers v. Maroney, 399 U.S. 42 (1970), the Court, without discussion, and over Justice Harlan’s dissent, id. at 55, 62, extended the rule to evidentiary searches. back
283
Coolidge v. New Hampshire, 403 U.S. 443, 458–64 (1971). This portion of the opinion had the adherence of a plurality only, Justice Harlan concurring on other grounds, and there being four dissenters. Id. at 493, 504, 510, 523. back
284
Preston v. United States, 376 U.S. 364 (1964); Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216 (1968). back
285
Arkansas v. Sanders, 442 U.S. 753, 761 (1979). back
286
Cardwell v. Lewis, 417 U.S. 583, 590 (1974) (plurality opinion), quoted in United States v. Chadwick, 433 U.S. 1, 12 (1977). See also United States v. Ortiz, 422 U.S. 891, 896 (1975); United States v. Martinez-Fuerte, 428 U.S. 543, 561 (1976); South Dakota v. Opperman, 428 U.S. 364, 367–68 (1976); Robbins v. California, 453 U.S. 420, 424–25 (1981); United States v. Ross, 456 U.S. 798, 807 n.9 (1982). back
287
California v. Carney, 471 U.S. 386, 393 (1985) (leaving open the question of whether the automobile exception also applies to a “mobile” home being used as a residence and not “readily mobile”). back
288
Almeida-Sanchez v. United States, 413 U.S. 266 (1973) (roving patrols); United States v. Ortiz, 422 U.S. 891 (1975). Cf. Colorado v. Bannister, 449 U.S. 1 (1980). 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, 527 U.S. 465 (1996). Accord, Maryland v. Dyson, 527 U.S. 465 (1999) (per curiam). Cf. Florida v. Harris, 568 U.S. ___, No. 11–817, slip op. (2013). back
289
Delaware v. Prouse, 440 U.S. 648, 663 (1979) (discretionary random stops of motorists to check driver’s license and automobile registration constitute Fourth Amendment violation); United States v. Brignoni-Ponce, 422 U.S. 873 (1975) (violation for roving patrols on lookout for illegal aliens to stop vehicles on highways near international borders when only ground for suspicion is that occupants appear to be of Mexican ancestry). But cf. United States v. Arvizu, 534 U.S. 266 (2002) (reasonable suspicion justified stop by border agents of vehicle traveling on unpaved backroads in an apparent effort to evade a border patrol checkpoint on the highway). In Prouse, the Court cautioned that it was not precluding the states from developing methods for spot checks, such as questioning all traffic at roadblocks, that involve less intrusion or that do not involve unconstrained exercise of discretion. 440 U.S. at 663. back
290
An officer who observes a traffic violation may stop a vehicle even if his real motivation is to investigate for evidence of other crime. Whren v. United States, 517 U.S. 806 (1996). The existence of probable cause to believe that a traffic violation has occurred establishes the constitutional reasonableness of traffic stops regardless of the actual motivation of the officers involved, and regardless of whether it is customary police practice to stop motorists for the violation observed. Similarly, pretextual arrest of a motorist who has committed a traffic offense is permissible. Arkansas v. Sullivan, 532 U.S. 769 (2001) (per curiam) (upholding search of the motorist’s car for a crime not related to the traffic offense). back
291
Brendlin v. California, 551 U.S. 249, 263 (2007). back
292
Arizona v. Johnson, 129 S. Ct. 781, 786 (2009). back
293
Michigan Dep’t of State Police v. Sitz, 496 U.S. 444 (1990) (upholding a sobriety checkpoint at which all motorists are briefly stopped for preliminary questioning and observation for signs of intoxication). back
294
United States v. Martinez-Fuerte, 428 U.S. 543 (1976) (upholding border patrol checkpoint, over 60 miles from the border, for questioning designed to apprehend illegal aliens). See also United States v. Flores-Montano, 541 U.S. 149 (2004) (upholding a search at the border involving disassembly of a vehicle’s fuel tank). back
295
City of Indianapolis v. Edmond, 531 U.S. 32 (2000) (vehicle checkpoint set up for the “primary purpose [of] detect[ing] evidence of ordinary criminal wrongdoing” (here interdicting illegal narcotics) does not fall within the highway safety or border patrol exception to the individualized suspicion requirement, and hence violates the Fourth Amendment). Edmond was distinguished in Illinois v. Lidster, 540 U.S. 419 (2004), upholding use of a checkpoint to ask motorists for help in solving a recent hit-and-run accident that had resulted in death. The public interest in solving the crime was deemed “grave,” while the interference with personal liberty was deemed minimal. back
296
Michigan v. Long, 463 U.S. 1032, 1049 (1983) (holding that contraband found in the course of such a search is admissible). back
297
Texas v. Brown, 460 U.S. 730 (1983). Similarly, because there is no reasonable privacy interest in the vehicle identification number, required by law to be placed on the dashboard so as to be visible through the windshield, police may reach into the passenger compartment to remove items obscuring the number and may seize items in plain view while doing so. New York v. Class, 475 U.S. 106 (1986). Because there also is no legitimate privacy interest in possessing contraband, and because properly conducted canine sniffs are “generally likely[] to reveal only the presence of contraband,” police may conduct a canine sniff around the perimeter of a vehicle stopped for a traffic offense so long as the stop is not prolonged beyond the time needed to process the traffic violation. Compare Illinois v. Caballes, 543 U.S. 405 (2005) (a canine sniff around the perimeter of a car following a routine traffic stop does not offend the Fourth Amendment if the duration of the stop is justified by the traffic offense) with Rodriguez v. United States, 575 U.S. ___, No. 13–9972, slip op. at 3, 5–6 (2015) (finding that the stop in question had been prolonged for seven to eight minutes beyond the time needed to resolve the traffic offense in order to conduct a canine sniff). back
298
Knowles v. Iowa, 525 U.S. 113 (1998) (invalidating an Iowa statute permitting a full-blown search incident to a traffic citation). back
299
See Atwater v. City of Lago Vista, 532 U.S. 318 (2001) (police officers, in their discretion, may arrest a motorist for a minor traffic offense rather than issuing a citation); New York v. Belton, 453 U.S. 454 (1981) (officers who arrest an occupant of a vehicle may make a contemporaneous search of the entire passenger compartment, including closed containers); Thornton v. United States, 541 U.S. 615 (2004) (the Belton rule applies regardless of whether the arrestee exited the car at the officer’s direction, or whether he did so prior to confrontation); Arizona v. Gant, 556 U.S. ___, No. 07–542 (U.S. Apr. 21 (2009), slip op. at 18 (the Belton rule applies “only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe that the vehicle contains evidence of the offense of arrest”); Arkansas v. Sullivan, 532 U.S. 769 (2001) (pretextual arrest of motorist who has committed a traffic offense is permissible even if purpose is to search vehicle for evidence of other crime). back
300
Michigan v. Thomas, 458 U.S. 259 (1982). 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). back
301
Michigan v. Thomas, 458 U.S. at 261. See also Chambers v. Maroney, 399 U.S. 42 (1970); Texas v. White, 423 U.S. 67 (1975); United States v. Ross, 456 U.S. 798, 807 n.9 (1982). back
302
Cady v. Dombrowski, 413 U.S. 433 (1973); South Dakota v. Opperman, 428 U.S. 364 (1976). See also Cooper v. California, 386 U.S. 58 (1967); United States v. Harris, 390 U.S. 234 (1968). Police, in conducting an inventory search of a vehicle, may open closed containers in order to inventory contents. Colorado v. Bertine, 479 U.S. 367 (1987). back
303
Cardwell v. Lewis, 417 U.S. 583 (1974). Justice Powell concurred on other grounds. back
304
United States v. Di Re, 332 U.S. 581 (1948);Ybarra v. Illinois, 444 U.S. 85, 94–96 (1979). back
305
Knowles v. Iowa, 525 U.S. 113, 118 (1998). back
306
Maryland v. Pringle, 540 U.S. 366 (2003) (probable cause to arrest passengers based on officers finding $783 in glove compartment and cocaine hidden beneath back seat armrest, and on driver and passengers all denying ownership of the cocaine). back
307
Rakas v. Illinois, 439 U.S. 128 (1978). back
308
Wyoming v. Houghton, 526 U.S. 295, 307 (1999) (“police officers with probable cause to search a car may inspect passengers’ belongings found in the car that are capable of concealing the object of the search”). back
309
California v. Acevedo, 500 U.S. 565 (1991) (overruling Arkansas v. Sanders, 442 U.S. 753 (1979). back
310
United States v. Ross, 456 U.S. 798 (1982). A Ross search of a container found in an automobile need not occur soon after its seizure. United States v. Johns, 469 U.S. 478 (1985) (three-day time lapse). See also Florida v. Jimeno, 500 U.S. 248 (1991) (consent to search automobile for drugs constitutes consent to open containers within the car that might contain drugs). back
311
462 U.S. 579 (1983). back
312
19 U.S.C. § 1581(a), derived from § 31 of the Act of Aug. 4, 1790, ch. 35, 1 Stat. 164. back
313
462 U.S. at 589. Justice Brennan’s dissent argued that a fixed checkpoint was feasible in this case, involving a ship channel in an inland waterway. Id. at 608 n.10. The fact that the Court’s rationale was geared to the difficulties of law enforcement in the open seas suggests a reluctance to make exceptions to the general rule. Note as well the Court’s later reference to this case as among those “reflect[ing] longstanding concern for the protection of the integrity of the border.” United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985). back
314
462 U.S. at 593. back
315
462 U.S. at 598. Justice Brennan contended that all previous cases had required some “discretion-limiting” feature such as a requirement of probable cause, reasonable suspicion, fixed checkpoints instead of roving patrols, and limitation of border searches to border areas, and that these principles set forth in Delaware v. Prouse, 440 U.S. 648 (1979), should govern. Id. at 599, 601. back
316
Amos v. United States, 255 U.S. 313 (1921); Zap v. United States, 328 U.S. 624 (1946); Schneckloth v. Bustamonte, 412 U.S. 218 (1973). back
317
Bumper v. North Carolina, 391 U.S. 543 (1968). back
318
Johnson v. United States, 333 U.S. 10, 13 (1948). back
319
Schneckloth v. Bustamonte, 412 U.S. 218, 231–33 (1973). See also Ohio v. Robinette, 519 U.S. 33 (1996) (officer need not always inform a detained motorist that he is free to go before consent to search auto may be deemed voluntary); United States v. Drayton, 536 U.S. 194, 207 (2002) (totality of circumstances indicated that bus passenger consented to search even though officer did not explicitly state that passenger was free to refuse permission). back
320
Amos v. United States, 255 U.S. 313 (1921); Johnson v. United States, 333 U.S. 10 (1948); Bumper v. North Carolina, 391 U.S. 543 (1968). back
321
On Lee v. United States, 343 U.S. 747 (1952); Lopez v. United States, 373 U.S. 427 (1963); Hoffa v. United States, 385 U.S. 293 (1966); Lewis v. United States, 385 U.S. 206 (1966); United States v. White, 401 U.S. 745 (1971). Cf. Osborn v. United States, 385 U.S. 323 (1966) (prior judicial approval obtained before wired informer sent into defendant’s presence). Problems may be encountered by police, however, in special circumstances. See Massiah v. United States, 377 U.S. 201 (1964); United States v. Henry, 447 U.S. 264 (1980); United States v. Karo, 468 U.S. 705 (1984) (installation of beeper with consent of informer who sold container with beeper to suspect is permissible with prior judicial approval, but use of beeper to monitor private residence is not). back
322
See, e.g., Missouri v. McNeely, 569 U.S. ___, No. 11–1425, slip op. at 18 (2013) (plurality opinion) (discussing implied consent laws that “require motorists, as a condition of operating a motor vehicle, . . . to consent to [blood alcohol concentration] testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense” or risk losing their license); South Dakota v. Neville, 459 U.S. 553, 554, 563–64 (1983). back
323
See Birchfield v. North Dakota, 579 U.S. ___, No. 14–1468, slip op. at 36–37 (2016). back
324
United States v. Matlock, 415 U.S. 164, 171 (1974) (valid consent by woman with whom defendant was living and sharing the bedroom searched). See also Chapman v. United States, 365 U.S. 610 (1961) (landlord’s consent insufficient); Stoner v. California, 376 U.S. 483 (1964) (hotel desk clerk lacked authority to consent to search of guest’s room); Frazier v. Culp, 394 U.S. 731 (1969) (joint user of duffel bag had authority to consent to search). back
325
Illinois v. Rodriguez, 497 U.S. 177 (1990). See also Florida v. Jimeno, 500 U.S. 248, 251 (1991) (it was “objectively reasonable” for officer to believe that suspect’s consent to search his car for narcotics included consent to search containers found within the car). back
326
Georgia v. Randolph, 547 U.S. 103 (2006) (warrantless search of a defendant’s residence based on his estranged wife’s consent was unreasonable and invalid as applied to a physically present defendant who expressly refused to permit entry). The Court in Randolph admitted that it was “drawing a fine line,” id. at 121, between situations where the defendant is present and expressly refuses consent, and that of United States v. Matlock, 415 U.S. 164, 171 (1974), and Illinois v. Rodriguez, 497 U.S. 177 (1990), where the defendants were nearby but were not asked for their permission. In a dissenting opinion, Chief Justice Roberts observed that the majority’s ruling “provides protection on a random and happenstance basis, protecting, for example, a co-occupant who happens to be at the front door when the other occupant consents to a search, but not one napping or watching television in the next room.” 547 U.S. at 127. back
327
Fernandez v. California, 571 U.S. ___, No. 12–7822, slip op. (2014) (consent by co-occupant sufficient to overcome objection of a second co-occupant who was arrested and removed from the premises, so long as the arrest and removal were objectively reasonable). back
328
United States v. Ramsey, 431 U.S. 606, 616 (1977) (sustaining search of incoming mail). See also Illinois v. Andreas, 463 U.S. 765 (1983) (opening by customs inspector of locked container shipped from abroad). back
329
Act of July 31, 1789, ch. 5, §§ 23, 24, 1 Stat. 43. See 19 U.S.C. §§ 507, 1581, 1582. back
330
Carroll v. United States, 267 U.S. 132, 154 (1925); United States v. Thirty-seven Photographs, 402 U.S. 363, 376 (1971); Almeida-Sanchez v. United States, 413 U.S. 266, 272 (1973). back
331
United States v. Montoya de Hernandez, 473 U.S. 531 (1985) (approving warrantless detention incommunicado for more than 24 hours of traveler suspected of alimentary canal drug smuggling). The traveler was strip searched, and then given a choice between an abdominal x-ray or monitored bowel movements. Because the suspect chose the latter option, the court disavowed decision as to “what level of suspicion, if any, is required for . . . strip, body cavity, or involuntary x-ray searches.” Id. at 541 n.4. back
332
United States v. Flores-Montano, 541 U.S. 149 (2004). back
333
413 U.S. 266 (1973). Justices White, Blackmun, Rehnquist, and Chief Justice Burger would have found the search reasonable upon the congressional determination that searches by such roving patrols were the only effective means to police border smuggling. Id. at 285. Justice Powell, concurring, argued in favor of a general, administrative warrant authority not tied to particular vehicles, much like the type of warrant suggested for noncriminal administrative inspections of homes and commercial establishments for health and safety purposes, id. at 275, but the Court has not yet had occasion to pass on a specific case. See United States v. Martinez-Fuerte, 428 U.S. 543, 547 n.2, 562 n.15 (1976). back
334
United States v. Ortiz, 422 U.S. 891 (1975). back
335
United States v. Brignoni-Ponce, 422 U.S. 873 (1975). However, stopping of defendant’s car solely because the officers observed the Mexican appearance of the occupants was unjustified. Id. at 886. Contrast United States v. Cortez, 449 U.S. 411 (1981), and United States v. Arvizu, 534 U.S. 266 (2002), where border agents did have grounds for reasonable suspicion that the vehicle they stopped contained illegal aliens. back
336
United States v. Martinez-Fuerte, 428 U.S. 543 (1976). The Court deemed the intrusion on Fourth Amendment interests to be quite limited, even if officers acted on the basis of the Mexican appearance of the occupants in referring motorists to a secondary inspection area for questioning, whereas the elimination of the practice would deny to the government its only practicable way to apprehend smuggled aliens and to deter the practice. Similarly, outside of the border/aliens context, the Court has upheld use of fixed “sobriety” checkpoints at which all motorists are briefly stopped for preliminary questioning and observation for signs of intoxication. Michigan Dep’t of State Police v. Sitz, 496 U.S. 444 (1990). back
337
265 U.S. 57 (1924). See also Air Pollution Variance Bd. v. Western Alfalfa Corp., 416 U.S. 86 (1974). back
338
389 U.S. 347, 353 (1967). Cf. Cady v. Dombrowski, 413 U.S. 433, 450 (1973) (citing Hester approvingly). back
339
466 U.S. 170 (1984) (approving warrantless intrusion past no trespassing signs and around locked gate, to view field not visible from outside property). back
340
466 U.S. at 178. See also California v. Greenwood, 486 U.S. 35 (1988) (approving warrantless search of garbage left curbside “readily accessible to animals, children, scavengers, snoops, and other members of the public”). back
341
United States v. Dunn, 480 U.S. 294 (1987) (space immediately outside a barn, accessible only after crossing a series of “ranch-style” fences and situated one-half mile from the public road, constitutes unprotected “open field”). back
342
California v. Ciraolo, 476 U.S. 207 (1986). Activities within the curtilage are nonetheless still entitled to some Fourth Amendment protection. The Court has described four considerations for determining whether an area falls within the curtilage: proximity to the home, whether the area is included within an enclosure also surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to shield the area from view of passersby. United States v. Dunn, 480 U.S. 294 (1987) (barn 50 yards outside of fence surrounding home, used for processing chemicals, and separated from public access only by a series of livestock fences, by a chained and locked driveway, and by one-half mile’s distance, is not within curtilage). back
343
Florida v. Riley, 488 U.S. 445 (1989) (view through partially open roof of greenhouse). back
344
Dow Chemical Co. v. United States, 476 U.S. 227 (1986) (suggesting that aerial photography of the curtilage would be impermissible). back
345
Washington v. Chrisman, 455 U.S. 1 (1982) (officer lawfully in dorm room may seize marijuana seeds and pipe in open view); United States v. Santana, 427 U.S. 38 (1976) (“plain view” justification for officers to enter home to arrest after observing defendant standing in open doorway); Harris v. United States, 390 U.S. 234 (1968) (officer who opened door of impounded automobile and saw evidence in plain view properly seized it); Ker v. California, 374 U.S. 23 (1963) (officers entered premises without warrant to make arrest because of exigent circumstances seized evidence in plain sight). Cf. Coolidge v. New Hampshire, 403 U.S. 443, 464–73 (1971), and id. at 510 (Justice White dissenting). Maryland v. Buie, 494 U.S. 325 (1990) (items seized in plain view during protective sweep of home incident to arrest); Texas v. Brown, 460 U.S. 730 (1983) (contraband on car seat in plain view of officer who had stopped car and asked for driver’s license); New York v. Class, 475 U.S. 106 (1986) (evidence seen while looking for vehicle identification number). There is no requirement that the discovery of evidence in plain view must be “inadvertent.” See Horton v. California, 496 U.S. 128 (1990) (in spite of Amendment’s particularity requirement, officers with warrant to search for proceeds of robbery may seize weapons of robbery in plain view). back
346
Steele v. United States, 267 U.S. 498 (1925) (officers observed contraband in view through open doorway; had probable cause to procure warrant). Cf. Taylor v. United States, 286 U.S. 1 (1932) (officers observed contraband in plain view in garage, warrantless entry to seize was unconstitutional). back
347
Arizona v. Hicks, 480 U.S. 321 (1987) (police lawfully in apartment to investigate shooting lacked probable cause to inspect expensive stereo equipment to record serial numbers). back
348
Illinois v. Andreas, 463 U.S. 765, 771 (1983) (locker customs agents had opened, and which was subsequently traced). Accord, United States v. Jacobsen, 466 U.S. 109 (1984) (inspection of package opened by private freight carrier who notified drug agents). back
349
469 U.S. 325 (1985). back
350
469 U.S. at 336. back
351
469 U.S. at 340. back
352
This single rule, the Court explained, will permit school authorities “to regulate their conduct according to the dictates of reason and common sense.” 469 U.S. at 343. Rejecting the suggestion of dissenting Justice Stevens, the Court was “unwilling to adopt a standard under which the legality of a search is dependent upon a judge’s evaluation of the relative importance of various school rules.” Id. at n.9. back
353
469 U.S. at 342. The Court has further elaborated that this “reasonable suspicion” standard is met if there is a “moderate chance” of finding evidence of wrongdoing. Safford Unified School District #1 v. Redding, 557 U.S. ___, No. 08–479, slip op. at 5 (2009). back
354
469 U.S. at 342. back
355
557 U.S. ___, No. 08–479 (2009). back
356
557 U.S. ___, No. 08–479, slip op. at 7. back
357
557 U.S. ___, No. 08–479, slip op. at 8. back
358
557 U.S. ___, No. 08–479, slip op. at 8. back
359
557 U.S. ___, No. 08–479, slip op. at 1, 9. Justice Thomas dissented from the finding of a Fourth Amendment violation. back
360
See “Alternatives to the Exclusionary Rule,” infra. Justices Stevens and Ginsburg dissented from the grant of qualified immunity. back
361
480 U.S. 709 (1987). back
362
480 U.S. at 725. Not at issue was whether there must be individualized suspicion for investigations of work-related misconduct. back
363
This position was stated in Justice O’Connor’s plurality opinion, joined by Chief Justice Rehnquist and by Justices White and Powell. back
364
480 U.S. at 732 (Scalia, J., concurring in judgment). back
365
560 U.S. ___, No. 08–1332, slip op. (2010). back
366
In Quon, a police officer was dismissed after a review of the transcripts of his on-duty text messages revealed that a large majority of his texting was not related to work, and some messages were sexually explicit. back
367
560 U.S. ___, No. 08–1332, slip op. at 13 (2010). back
368
Florence v. Board of Chosen Freeholders, 566 U.S. ___, No. 10–945, slip op. at 2, 9 (2012). See also, e.g., Bell v. Wolfish, 441 U.S. 520 (1979). The Florence Court made clear it was referring to “jails” in “a broad sense to include prisons and other detention facilities.” 566 U.S. ___, No. 10–945, slip op. at 1 (2012). back
369
566 U.S. ___, No. 10–945, slip op. (2012). The Court upheld similarly invasive strip searches of all inmates following contact visits in Bell v. Wolfish. 441 U.S. 520, 558–60 (1979). back
370
566 U.S. ___, No. 10–945, slip op. (2012) (Roberts, C.J., concurring); 566 U.S. ___, No. 10–945, slip op. (2012) (Alito, J., concurring). In the opinion of the dissenters, a strip search of the kind conducted in Florence is unconstitutional if given to an arriving detainee arrested for a minor offense not involving violence or drugs, absent a reasonable suspicion to believe that the new arrival possesses contraband. 566 U.S. ___, No. 10–945, slip op. (2012) (Breyer, J., dissenting). back
371
569 U.S. ___, No. 12–207, slip op. (2013). back
372
Id. at 10–18, 23. back
373
Id. at 23–26. back
374
Hudson v. Palmer, 468 U.S. 517, 526 (1984). See also Bell v. Wolfish, 441 U.S. 520, 555–57 (1979) (“It is difficult to see how the detainee’s interest in privacy is infringed by the room-search rule [allowing unannounced searches]. No one can rationally doubt that room searches represent an appropriate security measure . . . .”). back
375
483 U.S. 868 (1987) (search based on information from police detective that there was or might be contraband in probationer’s apartment). back
376
483 U.S. at 873–74. back
377
483 U.S. at 879. back
378
United States v. Knights, 534 U.S. 112 (2001) (probationary status informs both sides of the reasonableness balance). back
379
Samson v. California, 547 U.S. 843, 850 (2006) (internal quotation marks altered). back
380
547 U.S. at 852. The parole condition at issue in Samson required prisoners to “agree in writing to be subject to a search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause.” Id. at 846, quoting Cal. Penal Code Ann. § 3067(a). back
381
489 U.S. 602 (1989). back
382
489 U.S. 656 (1989). back
383
489 U.S. at 628. back
384
489 U.S. at 628. back
385
489 U.S. at 631–32. back
386
Von Raab, 489 U.S. at 670–71. Dissenting Justice Scalia discounted the “feeble justifications” relied upon by the Court, believing instead that the “only plausible explanation” for the drug testing program was the “symbolism” of a government agency setting an example for other employers to follow. 489 U.S. at 686–87. back
387
489 U.S. at 672. back
388
515 U.S. 646 (1995). back
389
515 U.S. at 661. back
390
515 U.S. at 661. back
391
515 U.S. at 657. back
392
515 U.S. at 665. back
393
536 U.S. 822 (2002). back
394
536 U.S. at 831. back
395
536 U.S. at 831. back
396
536 U.S. at 836. back
397
Drug testing was said to be a “reasonable” means of protecting the school board’s “important interest in preventing and deterring drug use among its students,” and the decision in Vernonia was said to depend “primarily upon the school’s custodial responsibility and authority.” 536 U.S. at 838, 831. back
398
Concurring Justice Breyer pointed out that the testing program “preserves an option for a conscientious objector,” who can pay a price of nonparticipation that is “serious, but less severe than expulsion.” 536 U.S. at 841. Dissenting Justice Ginsburg pointed out that extracurricular activities are “part of the school’s educational program” even though they are in a sense “voluntary.” “Voluntary participation in athletics has a distinctly different dimension” because it “expose[s] students to physical risks that schools have a duty to mitigate.” Id. at 845, 846. back
399
536 U.S. at 831–32. The best the Court could do to support this statement was to assert that “some of these clubs and activities require occasional off-campus travel and communal undress,” to point out that all extracurricular activities “have their own rules and requirements,” and to quote from general language in Vernonia. Id. Dissenting Justice Ginsburg pointed out that these situations requiring a change of clothes on occasional out-of-town trips are “hardly equivalent to the routine communal undress associated with athletics.” Id. at 848. back
400
520 U.S. 305 (1997). back
401
Ferguson v. City of Charleston, 532 U.S. 67 (2001). back
402
532 U.S. at 79. back