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  • Miranda Rights
  • Search and Seizure

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  • Right Against Self-Incrimination
  • Right to Counsel
  • Right to Speedy Jury Trial
  • "Double Jeopardy" Protections

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  • Right to Counsel - 1st Appeal
  • No Cruel & Unusual Punishment
  • More Information: Prisoners' Rights (Civil Rights Center)

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  • "Miranda" Rights and the Fifth Amendment
  • Focus on the Fifth: Miranda v. Arizona
  • U.S. Constitution: Fifth Amendment

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  • Police Questioning: When Miranda Warnings Are Required
  • Arrests and Interrogations FAQ

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  • The Miranda Case and the Right to Counsel
  • Invoking the Right to Counsel

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  • Stages of a Case: Arrest
  • Your Rights: Right to Counsel

"Miranda" Rights and the Fifth Amendment

What are the "Miranda" Rights?

In 1966, the U.S. Supreme Court decided the historic case of Miranda v. Arizona, declaring that whenever a person is taken into police custody, before being questioned he or she must be told of the Fifth Amendment right not to make any self-incriminating statements. As a result of Miranda, anyone in police custody must be told four things before being questioned:

1.      You have the right to remain silent.

2.      Anything you say can and will be used against you in a court of law.

3.      You have the right to an attorney.

4.      If you cannot afford an attorney, one will be appointed for you.

Read the historic U.S. Supreme Court decision: Miranda v. Arizona.

Fifth Amendment Right Against Self-Incrimination

The Fifth Amendment to the U.S. Constitution gives individuals the right to refuse to answer any questions or make any statements, when to do so would help establish that the person committed a crime or is connected to any criminal activity. This right is also known as the Fifth Amendment privilege against self-incrimination, which is invoked when someone is said to "plead the Fifth".

Can a Criminal Defendant be Forced to Testify at Trial?

At trial, the Fifth Amendment gives a criminal defendant the right not to testify. This means that the prosecutor, the judge, and even the defendant's lawyer cannot force the defendant to take the witness stand at trial, if he or she does not want to do so. Furthermore, when a defendant exercises his or her right not to testify, the jury is not permitted to take that refusal into consideration when deciding whether the defendant is guilty of the crime(s) charged.

It is important to note that, once a defendant does take the stand and testify at trial, he or she cannot ordinarily choose to answer some questions but not others. Rather, the defendant's Fifth Amendment privilege is deemed waived through the act of testifying.

Does the Privilege Apply to Fingerprints and Blood Tests?

The Fifth Amendment right against self-incrimination does ensure that a defendant in a criminal case cannot be forced to testify and "be a witness against himself or herself". But it does not apply when a defendant is fingerprinted, or made to provide a DNA sample in connection with a criminal case. In other words, a defendant may not refuse to submit to these procedures by asserting the Fifth Amendment privilege.

Who Can Claim the Fifth Amendment Privilege at Trial?

At a criminal trial, it is not only the defendant who enjoys the Fifth Amendment privilege. Witnesses who are asked to testify can refuse to answer certain questions by asserting their Fifth Amendment rights, if to answer would implicate them in any type of criminal activity. Unlike defendants in a criminal case, who have the right not to take the witness stand at all, a witness may be forced to testify (by subpoena or other means) but may exercise his or her Fifth Amendment right by refusing to answer certain questions.

[Note: The Fifth Amendment also provides the basis for an individual's "Miranda" rights while in police custody.]

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  • The Right to Counsel Overview

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  • What the Sixth Amendment Guarantees
  • The Right to Adequate Representation

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  • Judicial Proceedings and Custodial Interrogation
  • Lineups and Other Identification Situations
  • Post-Conviction Proceedings

The Right to Counsel

A criminal defendant's right to an attorney is found in the Sixth Amendment to the U.S. Constitution, which requires the "assistance of counsel" for the accused "in all criminal prosecutions." This means that a defendant has a constitutional right to be represented by an attorney during trial. It also means that if the defendant cannot afford an attorney, in almost all instances the government will appoint one to handle the case, at no cost to the defendant.

Keep in mind that, while the right to counsel is discussed here in connection with a criminal trial, a suspect has the right to a lawyer at almost every important phase of the criminal process, typically from arrest through the first appeal after conviction.

How Does an Attorney Assist a Defendant in a Criminal Case?

The defense attorney's role is of paramount importance in almost every criminal case. While specific duties of an attorney vary depending on the nature of the charges and the case, key responsibilities of any criminal defense lawyer include:

·         Advising the defendant of his or her rights and explaining what to expect at different stages of the criminal process;

·         Ensuring that the defendant's constitutional rights are not violated through law enforcement conduct, or in court proceedings;

·         Negotiating a plea bargain with the government, on the defendant's behalf;

·         From arraignment to sentencing: investigating facts and evidence, cross-examining government witnesses, objecting to improper questions and evidence, and presenting any legal defenses.

To What Standards is a Criminal Defense Attorney Held?

Courts have interpreted the Sixth Amendment right to counsel as guaranteeing the "effective assistance of counsel" to criminal defendants. It doesn't matter whether the attorney is hired by the defendant or appointed by the government. However, questionable strategic choices made by an attorney (and even serious lawyer errors, in some instances) do not usually cause a conviction to be thrown out, unless it is clear that the attorney's incompetence affected the outcome of the case.

• The interrogation phase of a criminal investigation
• The trial itself
• Sentencing
• At least an initial appeal of any conviction

• A trial by a jury (in most cases)
• The jury to hear all of the witnesses and see all of the evidence
• Presence at the trial and while the jury is hearing the case
• The opportunity to see, hear, and confront the witnesses presenting the case against them
• The opportunity to call witnesses and to have the court issue subpoenas to compel the witnesses to appear
• The chance to testify themselves should they choose to do so
• The option to refuse to testify
• Access to a criminal defense lawyer. If individuals cannot afford to hire their own criminal defense lawyer, a public defender will represent them. This lawyer can act on their behalf before, during, and after the trial
• The right to cross-examine the witnesses giving testimony against them
• The right to compel the state to prove its case against them beyond a reasonable doubt

1. The defendant must show that his own lawyer's job performance was deficient. The defendant must prove that his counsel made errors so serious that the lawyer did not function as the counsel guaranteed the defendant by the Sixth Amendment.
2. The defendant must show that the deficient performance unfairly prejudiced the defense. The defendant must show that his lawyer's errors were so serious as to wholly deprive the defendant of a fair trial.

Judicial Proceedings and Custodial Interrogation

Generally, defendants are entitled to counsel from the time of their arraignment until the beginning of their trial. This is because the defendant's need for consultation, investigation, and preparation are critically important for a fair trial. The courts have gradually expanded this idea to the point that there is a legal concept of "a critical stage in a criminal proceeding" that indicates when a defendant must be represented by counsel.

Custodial Interrogation

Defendants who have been taken into custody and have invoked their Sixth Amendment right to counsel with respect to the offense for which they are being prosecuted may not later waive that right. However, defendants may waive their right under Miranda not to be questioned about unrelated and uncharged offenses.

What happens if the police violate the right to counsel? The remedy for violation of the Sixth Amendment rule is that any statements obtained from defendants under these circumstances will be excluded from the evidence at trial. There is one important exception to the Sixth Amendment exclusionary rule: evidence obtained from defendants held in custody that violates the Sixth Amendment may be used for the sole purpose of impeaching the defendants' testimony at trial.

1. for granting parole or probation
2. for revoking parole when parole was imposed after sentencing
3. for prison disciplinary hearings

Right to a Speedy Jury Trial

In addition to guaranteeing the right to an attorney, the Sixth Amendment to the U.S. Constitution guarantees a criminal defendant a speedy trial by an "impartial jury." This means that a criminal defendant must be brought to trial for his or her alleged crimes within a reasonably short time after arrest, and that before being convicted of most crimes, the defendant has a constitutional right to be tried by a jury, which must find the defendant guilty "beyond a reasonable doubt."

What is a "Speedy" Trial?

A "speedy" trial basically means that the defendant is tried for the alleged crimes within a reasonable time after being arrested. Although most states have laws that set forth the time in which a trial must take place after charges are filed, often the issue of whether or not a trial is in fact "speedy" enough under the Sixth Amendment comes down to the circumstances of the case itself, and the reasons for any delays. In the most extreme situations, when a court determines that the delay between arrest and trial was unreasonable and prejudicial to the defendant, the court dismisses the case altogether.

What is the Jury's Role at Trial?

The Sixth Amendment guarantees a criminal defendant the right to be tried before an "impartial jury," representative of a cross-section of the community, which will consider the evidence against the defendant and decide whether to find him or her guilty of the crime(s) charged. In almost all states, 12 jurors must agree in order to find a defendant "guilty" or "not guilty." In such states, if the jury fails to reach a unanimous verdict and finds itself at a standstill (a "hung" jury), the judge may declare a "mistrial," after which the case may be dismissed or the trial may start all over again.

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  • The Concept of Double Jeopardy: Background
  • Reasons for Double Jeopardy Protection

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  • When Jeopardy Protection Applies: Only in Certain Proceedings
  • When Jeopardy Protections Take Hold
  • When Jeopardy Protection Ends: Acquittals, Dismissals, and More
  • What Constitutes the Same Offense

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  • Samples of State Court Decisions on Double Jeopardy

The Concept of Double Jeopardy: Background

The double jeopardy clause in the Fifth Amendment to the U. S. Constitution prohibits the government from prosecuting individuals more than one time for a single offense and from imposing more than one punishment for a single offense. It provides that "No person shall ... be subject for the same offence to be twice put in jeopardy of life or limb." Most state constitutions also guarantee this right to defendants appearing in state court. Even in states that do not expressly guarantee this right in their laws, the protection against double jeopardy must still be afforded to criminal defendants because the Fifth Amendment's Double Jeopardy Clause has been made applicable to state proceedings via the doctrine of incorporation.

Under this doctrine, the Supreme Court has ruled in a series of cases that the Due Process and Equal Protection Clauses of the Fourteenth Amendment guarantee to the citizens of every state the right to exercise certain fundamental liberties. These liberties include, but are not limited to, every liberty set forth in the Bill of Rights, except the Second Amendment right to bear arms, the Third Amendment right against quartering soldiers, the Seventh Amendment right to trial by jury in civil cases, and the Fifth Amendment right to indictment by grand jury.

The concept of double jeopardy is one of the oldest in Western civilization. In 355 B. C. Athenian statesmen Demosthenes said that the "law forbids the same man to be tried twice on the same issue." The Romans codified this principle in the Digest of Justinian in 533 A. D. The principle also survived the Dark Ages (400-1066 A.D.) through the canon law and the teachings of early Christian writers, notwithstanding the deterioration of other Greco-Roman legal traditions.

In England the protection against double jeopardy was considered a universal maxim of the common law and was embraced by eminent jurists Henry de Bracton (1250), Sir Edward Coke (1628), Sir Matthew Hale (1736), and Sir William Blackstone (1769). However, the English double jeopardy doctrine was extremely narrow. It afforded protection only to defendants accused of capital felonies and applied only after conviction or acquittal. It did not apply to cases dismissed prior to final judgment and was not immune to flagrant abuse by the British Crown.

The Concept of Double Jeopardy: Background

The American colonists were intimately familiar with the writings of Bracton, Coke, and Hale. Copies of Blackstone's Commentaries on English law were available in most of the colonies, and Blackstone's teachings were often quoted by the colonists in support of their claims that Parliament was exceeding its lawful authority.

The colonists were also familiar with how narrowly the right against double jeopardy had been defined in England. During the constitutional convention James Madison sought to enlarge the definition by making the right against double jeopardy applicable to all crimes not just capital felonies. Yet Madison's original draft of the Double Jeopardy Clause was perceived by some as too restrictive. It provided that "No person shall be subject ... to more than one punishment or one trial for the same offense" (United States v. Halper, 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487 [1989]). Several House members objected to this wording, arguing that it could be misconstrued to prevent defendants from seeking a second trial on appeal following conviction. Although the language of the Fifth Amendment was modified to address this concern, the final version ratified by the states left other questions for judicial interpretation.

1. preventing the government from employing its superior resources to wear down and erroneously convict innocent persons;
2. protecting individuals from the financial, emotional, and social consequences of successive prosecutions;
3. preserving the finality and integrity of criminal proceedings, which would be compromised were the government allowed to arbitrarily ignore unsatisfactory outcomes;
4. restricting prosecutorial discretion over the charging process; and
5. eliminating judicial discretion to impose cumulative punishments that are otherwise not clearly prohibited by law.

When Jeopardy Protection Applies: Only in Certain Proceedings

Only certain types of legal proceedings invoke double jeopardy protection. If a particular proceeding does not place an individual in jeopardy, then subsequent proceedings against that individual for the same conduct are not prohibited. The text of the Fifth Amendment suggests that the protection against double jeopardy extends only to proceedings threatening "life or limb." Nevertheless, the Supreme Court has established that the right against double jeopardy is not limited to capital crimes or corporeal punishment but extends to all felonies, misdemeanors, and juvenile delinquency adjudications, regardless of the punishments they prescribe.

In Benton v. Maryland, 39 U.S. 784, 89 S. Ct. 2056, 23 L. Ed.2d 707 (1969), the U. S. Supreme Court ruled that the Fifth Amendment's Double Jeopardy Clause is applicable to both state and federal proceedings. Prior to this ruling, an individual accused of violating state law could rely only on that particular state's protection against double jeopardy. Some states offered greater protection against double jeopardy than did others, and frequently the level of protection offered was less than that offered under the federal Constitution. The Supreme Court said this was impermissible.

Relying on the doctrine of incorporation described above, the Court held that the right against double jeopardy is so important that each state must afford criminal defendants at least the same amount of protection from multiple prosecutions and punishments that is afforded by the federal government under the Fifth Amendment. Consequently, state courts cannot provide their residents with less protection against double jeopardy than is offered by federal courts, though variations in the level of protection offered can still arise when states offer their residents more protection under their state constitutional provisions than is provided under the federal Constitution.

The Supreme Court has also ruled that the right against double jeopardy precludes only subsequent criminal proceedings. It does not preclude subsequent civil proceedings or administrative proceedings (e.g., a license revocation hearing) against a person who has already been prosecuted for the same act or omission, even if that person is fined in the later civil or administrative proceeding. Nor is prosecution barred by double jeopardy if it is preceded by a final civil or administrative determination on the same issue.

Courts have drawn a distinction between criminal proceedings on the one hand and civil or administrative proceedings on the other, based on the different purposes served by each. Criminal proceedings are punitive in nature and serve the purposes of deterrence and retribution. Civil and administrative proceedings are more remedial in nature. Civil proceedings, for example, seek to compensate injured persons for any losses they have suffered, while administrative proceedings can serve various remedial functions (e.g., license revocation) unrelated to deterrence or retribution. Because civil, administrative, and criminal proceedings serve different objectives, a single course of conduct can give rise to multiple trials in different types of courtrooms.

The multiple legal proceedings brought against O. J. (Orenthal James) Simpson over the death of Nicole Brown Simpson and Ronald Lyle Goldman illustrate these various objectives. The state of California prosecuted Simpson for the murders of his former wife and her friend. Despite Simpson's acquittal in criminal court, the families of the two victims filed three civil suits against him. The criminal proceedings had been instituted to punish Simpson, incarcerate him, and deter others from similar behavior. The civil suits were designed in part to make the victims' families whole by compensating them with money damages for the losses they suffered.

When Jeopardy Protections Take Hold

While the differences between civil, criminal, and administrative proceedings are not always perfectly clear, courts have done a much better job of explaining when jeopardy begins, or attaches. This question is crucial because any action taken by the government before jeopardy attaches, such as dismissing the indictment, will not prevent later proceedings against the same person for the same offense. Once jeopardy has attached, the full array of Fifth Amendment protections against multiple prosecutions and multiple punishments takes hold.

The U. S. Supreme Court has held that jeopardy attaches during a jury trial when the jury is sworn. In criminal cases tried by a judge without a jury, also called a bench trial, jeopardy attaches when the first witness is sworn. Jeopardy begins in juvenile delinquency adjudications when the court first hears evidence. If the defendant or juvenile enters a plea agreement with the prosecution, jeopardy does not attach until the plea is accepted by the court.

When Jeopardy Protection Ends: Acquittals, Dismissals, and More

Once jeopardy attaches, a dismissal granted by the court for insufficient evidence terminates jeopardy and bars further prosecution with one exception. The prosecution may appeal a dismissal entered after the jury has returned a guilty verdict. If the appellate court reverses the dismissal, the guilty verdict can be reinstated without necessitating a second trial. A dismissal granted for lack of evidence after a case has been submitted to a jury, but before a verdict has been reached, may not be appealed by the state.

Reprosecution is permitted and jeopardy continues against the defendant when a case is dismissed by the court at the defendant's request for reasons other than sufficiency of the evidence. For example, courts may dismiss a case when the defendant's right to a speedy trial has been denied by prosecutorial pretrial delay. The Supreme Court has held that no double jeopardy interest is triggered when defendants obtain a dismissal for reasons unrelated to their guilt or innocence (see United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 [1978]).

Mistrials are granted when it has become impracticable or impossible to finish a case. Courts typically declare mistrials when jurors fail to unanimously reach a verdict. Like dismissals, mistrials declared at the defendant's behest will not terminate jeopardy or bar re-prosecution. Nor will a mistrial preclude re-prosecution when it is declared with the defendant's consent. Courts disagree whether a defendant's mere silence is tantamount to consent.

A different situation is presented when a mistrial is declared over the defendant's objection. Reprosecution will be allowed only if the mistrial resulted from "manifest necessity," a standard more rigorous than "reasonably necessary" and less exacting than "absolutely necessary." A mistrial that could have been reasonably avoided will terminate jeopardy, but jeopardy will continue if the mistrial was unavoidable.

The manifest necessity standard has been satisfied where mistrials have resulted from defective indictments, disqualified or deadlocked jurors, and procedural irregularities willfully occasioned by the defendant. Manifest necessity is not present when mistrials result from prosecutorial or judicial manipulation. In each of these cases, courts balance the defendant's interests in finality against society's interest in a fair and just legal system.

Every defendant has the right to at least one appeal after conviction. If the conviction is reversed on appeal for insufficient evidence, it is treated as an acquittal, and further prosecution is not permitted. However, a defendant may be re-prosecuted when the reversal is not based on lack of evidence. The grounds for such reversals include defective search warrants, unlawful seizure of evidence, and other so-called "technicalities." Retrials in these instances are justified by society's interest in punishing the guilty. Defendants' countervailing interests are subordinated when a conviction rendered by 12 jurors is overturned for reasons unrelated to guilt or innocence.

The interests of the accused are also subordinated when courts permit prosecutors to seek a more severe sentence during the retrial of a defendant whose original conviction was thrown out on appeal. Defendants who appeal their conviction assume the risk that a harsher sentence will be imposed during re-prosecution. However, in most circumstances, courts are not permitted to impose a death sentence on a defendant during a second trial when the jury recommended life in prison during the first. The recommendation of life imprisonment is construed as an acquittal on the issue of capital punishment.

What Constitutes the Same Offense

The final question courts must resolve in double jeopardy litigation is determining whether successive prosecutions or punishments are for the "same offense." Jeopardy may have already attached and terminated in a prior criminal proceeding, but the state may bring further criminal action against a person so long as it is not for the same offense. Courts have analyzed this question in several ways, depending on whether the state is attempting to re-prosecute a defendant or impose multiple punishments.

At common law a single episode of criminal behavior produced only one prosecution, no matter how many wrongful acts may have been committed during that episode. But over the last fifty years the proliferation of overlapping and related offenses has made it possible for the government to prosecute someone for several different crimes stemming from the same set of circumstances. For example, an individual who has stolen a car to facilitate an abduction resulting in attempted rape could be separately prosecuted and punished for auto theft, kidnapping, and molestation. This development has significantly enlarged prosecutors' discretion over the charging process.

The Supreme Court curbed this discretion in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The Court said that the government may prosecute an individual for more than one offense stemming from a single course of conduct only when each offense requires proof of a fact the other does not. Blockburger requires courts to examine the elements of each offense as they are delineated by statute, without regard to the actual evidence that will be introduced at trial. The prosecution has the burden of demonstrating that each offense has at least one mutually exclusive element. If any one offense is completely subsumed by another, such as a lesser included offense, the two offenses are deemed the same, and punishment is allowed only for one.

Blockburger is the exclusive means by which courts determine whether cumulative punishments pass muster under the Double Jeopardy Clause. But several other methods have been used by courts to determine whether successive prosecutions are for the same offense. Collateral estoppel, which prevents the same parties from relitigating ultimate factual issues previously determined by a valid and final judgment, is one such method. In Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), the Supreme Court collaterally estopped the government from prosecuting an individual for robbing one of six men at a poker game when a jury had already acquitted him of robbing another one of the six. Although the second prosecution would have been permitted under Blockburger because two different victims were involved, the government here was not allowed to rehearse its case and secure a conviction against a person already declared not guilty of essentially the same crime.

The "same transaction" analysis is another means by which courts determine whether successive prosecutions will survive constitutional scrutiny. It requires the prosecution to join all offenses committed during a continuous interval that share a common factual basis and display a single goal or intent. The same transaction test is used by many state courts to bar successive prosecutions for the same offense. However, no federal court has ever adopted it.

Both state and federal courts have employed the "actual evidence" test to preclude successive prosecutions for a single offense. Unlike Blockburger, which examines the statutory elements of proof, the "actual evidence" test requires courts to compare the evidence "actually" introduced during the first trial with the evidence sought to be introduced by the prosecution at the second trial. Criminal offenses are characterized as the same when the evidence necessary to support a conviction for one offense would be sufficient to support a conviction for the other.

Under the "same conduct" analysis the government is forbidden from twice prosecuting an individual for the same criminal behavior, regardless of the actual evidence introduced during trial and regardless of the statutory elements of the offense. For example, this analysis has been applied to prevent prosecuting someone for vehicular homicide resulting from drunk driving, when the defendant had been earlier convicted for driving while under the influence of alcohol. The second prosecution would have been permitted had the state been able to prove the driver's negligence without proof of his intoxication. The U. S. Supreme Court applied this analysis for three years before abandoning it in 1993. However, the "same conduct" analysis is still utilized by some state courts interpreting their own constitutions and statutes.

What if the Police Fail to Advise Me of My Miranda Rights?

When police officers question a suspect in custody without first giving the Miranda warning, any statement or confession made is presumed to be involuntary, and cannot be used against the suspect in any criminal case. Any evidence discovered as a result of that statement or confession will likely also be thrown out of the case.

For example, suppose Dan is arrested and, without being read his Miranda rights, is questioned by police officers about a bank robbery. Unaware that he has the right to remain silent, Dan confesses to committing the robbery and tells the police that the money is buried in his backyard. Acting on this information, the police dig up the money. When Dan's attorney challenges the confession in court, the judge will likely find it unlawful. This means that, not only will the confession be thrown out of the case against Dan, but so will the money itself, because it was discovered solely as a result of the unlawful confession.

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  • "Search and Seizure" and the Fourth Amendment
  • Understanding Search and Seizure Law
  • Searches and Seizures FAQ

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  • Knowing When an Arrest is Legal
  • When the Fourth Amendment Applies
  • Search Warrants: What They Are and When They're Necessary
  • The Fourth Amendment Warrant Requirement
  • The "Reasonableness" Requirement
  • The Fourth Amendment and the "Exclusionary Rule"
  • U.S. Constitution: The Fourth Amendment
  • Sample State Court Decisions on "Search and Seizure"

• A law enforcement officer's physical apprehension or "seizure" of a person, by way of a stop or arrest; and
• Police searches of places and items in which an individual has a legitimate expectation of privacy -- his or her person, clothing, purse, luggage, vehicle, house, apartment, hotel room, and place of business, to name a few examples.

• An individual is stopped for police questioning while walking down the street.
• An individual is pulled over for a minor traffic infraction, and the police officer searches the vehicle's trunk.
• An individual is arrested.
• Police officers enter an individual's house to place him or her under arrest.
• Police officers enter an individual's apartment to search for evidence of crime.
• Police officers enter a corporation's place of business to search for evidence of crime.
• Police officers confiscate an individual's vehicle or personal property and place it under police control.

Understanding Search and Seizure Law

The Fourth Amendment to the U.S. Constitution places limits on the power of the police to make arrests, search people and their property, and seize objects and contraband (such as illegal drugs or weapons). These limits are the bedrock of search and seizure law. This article covers the basic issues that you should know, beginning with an overview of the Fourth Amendment itself.

The Fourth Amendment: Protecting Your Privacy

The Fourth Amendment to the U.S. Constitution reads as follows:

The search and seizure provisions of the Fourth Amendment are all about privacy. To honor this freedom, the Fourth Amendment protects against "unreasonable" searches and seizures by state or federal law enforcement authorities.

The flip side is that the Fourth Amendment does permit searches and seizures that are considered reasonable. In practice, this means that the police may override your privacy concerns and conduct a search of your home, barn, car, boat, office, personal or business documents, bank account records, trash barrel, or whatever, if:

• the police have probable cause to believe they can find evidence that you committed a crime, and a judge issues a search warrant, or
• the particular circumstances justify the search without a warrant first being issued.

When the Fourth Amendment Doesn't Protect You

The Fourth Amendment applies to a search only if a person has a "legitimate expectation of privacy" in the place or thing searched. If not, the Fourth Amendment offers no protection because there are, by definition, no privacy issues.

• Did the person actually expect some degree of privacy?
• Is the person's expectation objectively reasonable -- that is, one that society is willing to recognize?

A good example of how this works comes from a U.S. Supreme Court case in which the court held that a bus passenger had a legitimate expectation of privacy in an opaque carry-on bag positioned in a luggage rack above the passenger's head, and that the physical probing by the police of the bag's exterior for evidence of contraband constituted a search subject to Fourth Amendment limitations. (Bond v. U.S., No. 98-9349 (April 17, 2000).) Searches and Seizures FAQ

What's Below:

When is a police investigation considered a search?
How private is your property?
What is a search warrant?
What does it take to get a search warrant?
What are the police allowed to do after they obtain a search warrant?
Do the police always need a warrant to conduct a search?
Can my roommate-or my landlord-give the police permission to search my apartment?
If a police officer pulls me over, can she frisk me or search my car?
If my car is towed and impounded, can the police search it?

When is a police investigation considered a search?

A police investigation is not a search unless it intrudes on a person's privacy. In other words, if a person did not have a "legitimate expectation of privacy" in the place or thing searched, no "search" has occurred.

Courts ask two questions to determine whether a person had a legitimate expectation of privacy in the place or things searched:

• Did the person expect some degree of privacy?
• Is the person's expectation reasonable-that is, one that society is willing to recognize?

For example, a person who uses a public restroom expects that no one will spy on her, and most people-including judges and juries-would consider that expectation to be reasonable. Therefore, if the police install a hidden video camera in a public restroom, the action is considered a search and must meet the Fourth Amendment's requirement of reasonableness.

On the other hand, if the police glance into a car and see a weapon on the front seat, it is not a search because it is unlikely that a person would think that the front seat of a car is a private place. And even if he did, society is not generally willing to extend the protections of privacy to the front seat of an automobile.

How private is your property?

Generally, if the police are able to view contraband or evidence on your property without actually entering it, they have not conducted a search. In other words, you cannot have a reasonable expectation of privacy in an area that can legitimately be seen from outside your property. This means that the police can use what they have seen as the basis for getting a warrant to come in and take a closer look. Or, if the situation calls for prompt action (the need to stop a drug deal, for instance), they may enter without a warrant.

Law enforcement officers are allowed to take aerial photographs or come close enough to overhear your conversations-these actions are not considered searches. On the other hand, without a warrant or an exception to the rule requiring a warrant, officers are probably not allowed to use sophisticated equipment to discover what is on your property or to eavesdrop on your conversations. In general, if the investigation method is highly artificial and high-tech, it's likely to be considered a search. Where the line is drawn, however, is not clear or consistent from state to state.

What is a search warrant?

A search warrant is a kind of permission slip, signed by a judge, that allows the police to enter private property to look for particular items. It is addressed to the owner of the property, and tells the owner that a judge has decided that it is reasonably likely that certain contraband, or evidence of criminal activities, will be found in specified locations on the property.

As a general rule, the police are supposed to apply for a warrant before conducting a search of private property; any search that is conducted without a warrant is presumed to be unreasonable. This means that the police officers will later have to justify the search-and why a warrant wasn't obtained first-if the defendant challenges it in court.

What does it take to get a search warrant?

A judge will issue a search warrant after the police have convinced her that:

• it is more likely than not that a crime has taken place, and
• items connected to the crime are likely be found in a specified location on the property.

To convince the judge of these facts, the police tell the judge what they know about the situation. Usually, the information given to the judge is based either on the officers' own observations or on the second-hand observations of an informant.The police are limited in their ability to use secondhand information. As a general rule, the information must be reliable given the circumstances. Generally, reliable information is corroborated by police observation. For example, a citizen's tip that someone regularly delivers drugs to a certain location would be corroborated if an officer observes the person's routine. But corroboration is not necessary in every case. Sometimes a judge will issue a warrant if the source of the information is known to the police and has provided trustworthy information in the past.

What are the police allowed to do after they obtain a search warrant?

Once the police have a search warrant, they are entitled to enter the designated property to search for the items listed on the warrant. Legally, the search is supposed to be confined to the specific areas described in the warrant. For example, if the search warrant includes only the living room, the search should not extend into the kitchen, bathroom or bedroom. But there are exceptions to this limitation which are frequently used to justify broader searches. For example, the police may search beyond the terms of the warrant in order to:

• ensure their safety and the safety of others
• prevent the destruction of evidence
• discover more about possible evidence or contraband that is in plain view elsewhere on the property, or
• hunt for evidence or contraband that, as a result of their initial search, they believe exists in another location on the property.

For instance, although a warrant might be issued for the search of a house, the sound of a shotgun being loaded in the backyard would justify expanding the search to the yard in order to protect the officers; similarly, a search limited to the ground floor might legitimately expand to the upstairs if the police, searching for illegal drugs, hear toilets being flushed above. And the police can always seize evidence or illegal items if they are in plain view or are discovered while the officers are searching for the items listed in the warrant.

Do the police always need a warrant to conduct a search?

No. In many situations, police may legally conduct a search without first obtaining a warrant.

• Consent searches. If the police ask your permission to search your home, purse, briefcase or other property, and you agree, the search is considered consensual, and they don't need a warrant. The police typically obtain a person's consent by threatening to detain her while they obtain the warrant.
• Searches that accompany an arrest. When a person is placed under arrest, the police may search the person and the immediate surroundings for weapons that might be used to harm the officer. If the person is taken to jail, the police may search to make sure that weapons or contraband are not brought into the jail. (This is called an inventory search.) Inventory searches also frequently involve a search of the arrested person's car (if it is being held by the police) and personal effects on the theory that the police need a precise record of the person's property to avoid claims of theft.
• Searches necessary to protect the safety of the public. The police don't need a warrant if they have a reasonable fear that their safety, or that of the public, is in imminent danger. For example, an officer who suspected a bomb-making operation while walking his beat might be justified in entering immediately and seizing the ingredients. And in the famous O.J. Simpson case, the police justified their entry onto O.J. Simpson's property on the grounds that they feared for the safety of other family members.
• Searches necessary to prevent the imminent destruction of evidence. A police officer does not need to obtain a warrant if she has observed illegal items (such as weapons or contraband) and believes that the items will disappear unless the officer takes prompt action. This exception arises most frequently when the police spot contraband or weapons in a car. Because cars are moved so frequently, the officer is justified in searching the entire vehicle, including the trunk, without obtaining a warrant. On the other hand, if the police learn about a marijuana-growing operation from a neighbor, they usually would need a warrant, as it is unlikely that the growing plants and other evidence of the operation will disappear quickly enough to justify a warrantless search.
• "Hot pursuit" searches. Police may enter private dwellings to search for criminals who are fleeing the scene of a crime.

Can my roommate-or my landlord-give the police permission to search my apartment?

The police may search your apartment if the person in charge of the premises gives permission. If you and your roommate share common areas (such as the kitchen and living room), your roommate can authorize a search of those areas. But your roommate cannot give permission to search your separate bedroom.

Similarly, your landlord cannot give permission to search your apartment. Although the landlord owns the property, your monthly check guarantees your privacy at home. This is true even if you are behind in your rent or your landlord has sued to evict you. Until the landlord has a court order that permits him to enter and retake the premises, he cannot enter without your permission. (But keep in mind that many states allow a landlord to enter for inspections, which usually require advance notice of a day or two.) If the police can point to circumstances that would justify immediate entry, however -- such as the sound of a ferocious fight or the smell of burning marijuana -- they may enter without permission from anyone.

If a police officer pulls me over, can she frisk me or search my car?

Yes, if the officer has a reasonable suspicion you are armed and dangerous, she can frisk (pat down) you when you are pulled over for a traffic violation. Similarly, if the officer reasonably suspects that you are involved in criminal activity she can also perform a pat down. Assuming the police have probable cause -- a reasonable basis or justification to believe that you or your passengers are involved in criminal activity -- they can search your car and objects belonging to passengers.

If my car is towed and impounded, can the police search it?

Yes. If your car is impounded, the police are allowed to conduct a thorough search of it, including its trunk and any closed containers that they find inside. This is true even if your car was towed after you parked it illegally or if the police recover your car after it is stolen.

The police are required, however, to follow fair and standardized procedures when they search your car and may not stop you and impound your car simply to perform a search.

• To establish probable cause, police officers must be able to point to objective factual circumstances that lead them to believe that a suspect committed a crime. A police officer can't establish probable cause by saying something like, "I just had a hunch that the defendant was a burglar."

• Judges, not police officers, have the last word on whether probable cause exists. A police officer may be sincere in believing that enough factual information to constitute probable cause exists. But if a judge examines that same information and disagrees, then probable cause does not exist -- or did not exist, if the question is being decided after the arrest occurred.

• Probable cause to arrest may have existed at the time of the arrest, even if the police later turn out to be wrong. Put differently, an arrest is valid if it is based on probable cause, even if the arrested person is innocent. In this situation, probable cause protects the police against a civil suit for false arrest if the charges are later dismissed or the defendant is acquitted at trial.

• what the judge thinks the Fourth Amendment's drafters meant by the term probable cause

• previous judges' interpretations in similar fact situations, and

• the judge's views about police rights v. defendants' rights.

When the Fourth Amendment Applies

Like the rest of the Bill of Rights, the Fourth Amendment originally only applied in federal court. However, in Wolf v. Colorado, 338 U.S. 25 (1949), the U.S. Supreme Court ruled that the rights guaranteed by the text of the Fourth Amendment (sans the exclusionary rule to be discussed below) apply equally in state courts via the Fourteenth Amendment, which guarantees to the citizen of every state the right to due process and equal protection of the laws. The process by which the Supreme Court has made certain fundamental liberties protected by the Bill of Rights applicable to the states is known as the doctrine of incorporation.

Not every search and seizure that is scrutinized in state and federal court raises a Fourth Amendment issue. The Fourth Amendment only protects against searches and seizures conducted by the government or pursuant to governmental direction. Surveillance and investigatory actions taken by strictly private persons, such as private investigators, suspicious spouses, or nosey neighbors, are not governed by the Fourth Amendment. However, Fourth Amendment concerns do arise when those same actions are taken by a law enforcement official or a private person working in conjunction with law enforcement.

The Fourth Amendment does not apply even against governmental action unless defendants first establish that they had a reasonable expectation of privacy in the place to be searched or the thing to be seized. The Supreme Court has explained that what "a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection ... " But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected (see Katz v. United States, 389 U.S. 347 [1967]).

Applying this principle, the Supreme Court has ruled that individuals generally maintain a reasonable expectation of privacy in their bodies, clothing, and personal belongings. Homeowners possess a privacy interest that extends inside their homes and in the curtilage immediately surrounding the outside of their homes, but not in the "open fields" and "wooded areas" extending beyond the curtilage (see Hester v. United States, 265 U.S. 57 [1924]). A business owner's expectation of privacy in commercial property is less than the privacy interest afforded to a private homeowner and is particularly attenuated in commercial property used in "closely regulated" industries (i.e., airports, railroads, restaurants, and liquor establishments), where business premises may be subject to regular administrative searches by state or federal agencies for the purpose of determining compliance with health, safety, or security regulations. Automobile owners have a reasonable expectation of privacy in the cars they own and drive, though the expectation of privacy is less than a homeowner's privacy interest in his or her home.

No expectation of privacy is maintained for property and personal effects held open to the public. Things visible in "plain view" for a person of ordinary and unenhanced vision are entitled to no expectation of privacy and thus no Fourth Amendment protection. Items lying in someone's backseat, growing in someone's outdoor garden, or discarded in someone's curb-side garbage all fall within this category. However, items seen only through enhanced surveillance, such as through high-powered or telescopic lenses, may be subject to the strictures of the Fourth Amendment. Public records, published phone numbers, and other matters readily accessible to the general public enjoy no expectation of privacy. Similarly, the Supreme Court has said that individuals do not possess an expectation of privacy in their personal characteristics (see United States v. Dionisio, 410 U.S. 1 [1973]). Thus, the police may require individuals to give handwriting and voice exemplars, as well as hair, blood, DNA, and fingerprint samples, without complying with the Fourth Amendment's requirements.

Finally, to raise a Fourth Amendment objection to a particular search or seizure, a person must have "standing" to do so. Standing in this context means that the rights guaranteed by the Fourth Amendment are personal and may not be asserted on behalf of others. Thus, a passenger may not generally object to a police search of the owner's car and a houseguest may not generally object to a search of the homeowner's premises. These rules can become murky, however, as when a houseguest is actually living with the homeowner or owns things stored on the owner's premises.

Search Warrants: What They Are and When They're Necessary

A search warrant is an order signed by a judge that authorizes police officers to search for specific objects or materials at a definite location at a specified time. For example, a warrant may authorize the search of "the premises at 11359 Happy Glade Avenue between the hours of 8 A.M. to 6 P.M." and direct the police to search for and seize "cash, betting slips, record books, and every other means used in connection with placing bets on horses."

How Police Obtain Search Warrants

Police officers obtain search warrants by convincing a judge or magistrate that they have "probable cause" to believe that criminal activity is occurring at the place to be searched or that evidence of a crime may be found there. Usually, the police provide the judge or magistrate with information in the form of written statements under oath, called "affidavits," which report either their own observations or those of private citizens or police undercover informants. If the magistrate believes that the affidavit establishes probable cause to conduct a search, he or she will issue a warrant.

The suspect, who may be connected with the place to be searched, is not present when the warrant issues and therefore cannot contest the issue of probable cause at that time. However, the suspect can later challenge the validity of the warrant before trial.

What Police Can Search for and Seize Under a Warrant

The police can search only the place described in a warrant and usually can seize only the property that the warrant describes. The police cannot search a house if the warrant specifies the backyard, nor can they search for weapons if the warrant specifies marijuana plants. However, this does not mean that police officers can seize only those items listed in the warrant. If, in the course of their search, police officers come across contraband or evidence of a crime that is not listed in the warrant, they can lawfully seize the unlisted items.

If the warrant specifies a certain person to be searched, the police can search only that person, unless they have independent probable cause to search other persons who happen to be present at the scene of a search. If an officer merely has a reasonable suspicion that an onlooker is engaged in criminal activity, the officer can only question the onlooker and, if necessary for the officer's safety, conduct a frisk for weapons (but not do a full search).

When Search Warrants Aren't Required

Most searches occur without warrants being issued. Over the years, the courts have defined a number of situations in which a search warrant is not necessary, either because the search is per se reasonable under the circumstances or because, due to a lack of a reasonable expectation of privacy, the Fourth Amendment doesn't apply at all.

Consent Searches

If the person in control of the premises freely and voluntarily agrees to the search, the search is valid and whatever the officers find is admissible in evidence. Police officers do not have to warn people that they have a right to refuse consent to a search. If a police officer wrangles a consent through trickery or coercion, the consent does not validate the search.

Many disputes about consent have to do with who has the right to consent. If there are two or more separate tenants in one dwelling, courts often rule that one tenant has no power to consent to a search of the areas exclusively controlled by the other tenants (for instance, their separate bedrooms). Similarly, a landlord lacks authority to consent to a search of leased premises. The same is true for hotel operators. On the other hand, an employer can validly consent to a search of company premises, which extends to an employee's work area but not to clearly private areas such as an employee's clothes locker. A tricky twist is that the consent in these types of cases will be considered valid if the police reasonably believe that the consenting person has the authority to consent, even if it turns out they don't.

The Plain View Doctrine

Police officers do not need a warrant to search and seize contraband or evidence that is "in plain view" if the officer has a right to be where the evidence or contraband is first spotted. For instance, the police may search for and seize marijuana growing outdoors if they first spot the marijuana from an airplane or helicopter, since the marijuana is deemed to be in plain view. Similarly, if an officer walks by a car and spots evidence or contraband through the car window, a search may be conducted without a warrant. The same rule would apply if an officer is in your home for other valid reasons and spots drugs on a table or cabinet.

Search Made in Connection With an Arrest

Police officers do not need a warrant to make a search "incident to an arrest." After an arrest, police officers have the right to protect themselves by searching for weapons and to protect the legal case against the suspect by searching for evidence that the suspect might try to destroy.

Police may sometimes also make what's known as a "protective sweep" following an arrest if they have a reasonable belief that a dangerous accomplice might be hiding inside a residence. When making a protective sweep, police officers can walk through a residence and make a "cursory visual inspection" of places where an accomplice might be hiding. For example, police officers could look under beds and inside closets. If a sweep is lawful, the police can lawfully seize contraband or evidence of crime that is in plain view during the sweep.

The Emergency Exception

As a general rule, the police are authorized to make a warrantless search when the time it would take to get a warrant would jeopardize public safety or lead to the loss of important evidence. Here are some situations in which most judges would uphold a warrantless search:

• An officer checks an injured motorist for possible injuries following a collision and finds illegal drugs.
• Following a street drug arrest, an officer enters the house after the suspect shouts into the house, "Eddie, quick, flush it!" The officer arrests Eddie and seizes the stash.
• A police officer on routine patrol hears shouts and screams coming from a residence, rushes in, and arrests a suspect for spousal abuse.

In these types of emergency situations, an officer's duty to protect people and preserve evidence outweighs the warrant requirement.

Allowing Police to Make a Warrantless Search

A search warrant is not always legally necessary, and a police officer may have information of which a person is unaware that allows the officer to make a warrantless entry. If an officer announces an intention to enter a home or building without a warrant, a person should not risk injury or a separate charge of "interfering with a police officer." Rather, the person should stand aside, let the officer proceed and allow a court to decide later whether the officer's actions were proper. At the same time, the person should make it clear that he or she does not consent to the search.

Searches of Cars and Their Occupants

Cars may be searched without a warrant whenever the car has been validly stopped and the police have probable cause to believe the car contains contraband or evidence. If the police have probable cause to search the car, all compartments and packages that may contain the evidence or contraband being searched for are fair game.

While a police officer cannot search a car simply because the car was stopped for a traffic infraction, the police can order the driver and any passengers out of the car for safety considerations, even though there is no suspicion of criminal wrongdoing other than the traffic infraction. The police also can "frisk" the occupants for weapons if the officers have a "reasonable suspicion" that the occupants are involved in criminal activity and are reasonably concerned for their safety.

The Fourth Amendment Warrant Requirement

Once the Fourth Amendment applies to a particular search or seizure, the next question is under what circumstances is a warrant required. The Supreme Court has ruled that the Constitution expresses a preference for searches, seizures, and arrests conducted pursuant to a lawfully executed warrant (see Mincey v. Arizona, 437 U.S. 385 [1978]). A warrant is a written order signed by a court authorizing a law-enforcement officer to conduct a search, seizure, or arrest. Searches, seizures, and arrests performed without a valid warrant are deemed presumptively invalid, and any evidence seized without a warrant will be suppressed unless a court finds that the search was reasonable under the circumstances.

An application for a warrant must be supported by a sworn, detailed statement made by a law enforcement officer appearing before a neutral judge or magistrate. The Supreme Court has said that probable cause exists when the facts and circumstances within the police officer's knowledge provide a reasonably trustworthy basis for a man of reasonable caution to believe that a criminal offense has been committed or is about to take place (see Carroll v. United States, 267 U.S. 132 [1925]). Probable cause can be established by out-of-court statements made by reliable police informants, even though those statements cannot be tested by the magistrate. However, probable cause will not lie where the only evidence of criminal activity is an officer's affirmation of suspicion or belief (see Aguilar v. Texas, 378 U.S. 108 [1964]). On the other hand, an officer's subjective reason for making an arrest does not need to be the same criminal offense for which the facts indicate. (Devenpeck v. Alford, 543 U.S. 146 [2004]).

Probable cause will not lie unless the facts supporting the warrant are sworn by the officer as true to the best of his or her knowledge. The officer's oath can be written or oral, but the officer must typically swear that no knowing or intentionally false statement has been submitted in support of the warrant and that no statement has been made in reckless disregard of the truth. Inaccuracies due to an officer's negligence or innocent omission do not jeopardize a warrant's validity.

The Fourth Amendment requires not only that warrants be supported by probable cause offered by a sworn police officer, but it also requires that a warrant "particularly" describe the person or place to be searched or seized. Warrants must provide enough detail so that an officer with the warrant can ascertain with reasonable effort the persons and places identified in the warrant. For most residences a street address usually satisfies the particularity requirement, unless the warrant designates an apartment complex, hotel, or other multiple-unit building, in which case the warrant must describe the specific sub-unit to be searched. Warrants must describe individuals with sufficient particularity so that a person of average intelligence can distinguish them from others in the general population.

The magistrate before whom an officer applies for a warrant must be neutral and detached. This qualification means that the magistrate must be impartial and not a member of the "competitive enterprise" of law enforcement (see California v. Acevedo, 500 U.S. 565 [1991]). Thus, police officers, prosecutors, and attorney generals are disqualified from becoming a magistrate. States vary as to the requirements that candidates must possess before they will be considered qualified for the job of magistrate. Some states require that magistrates have an attorney's license, while others require only that their magistrates be literate.

The Fourth Amendment "Reasonableness" Requirement

Not every search, seizure, or arrest must be made pursuant to a lawfully executed warrant. The Supreme Court has ruled that warrantless police conduct may comply with the Fourth Amendment so long as it is reasonable under the circumstances. The exceptions made to the Fourth Amendment's warrant requirement reflect the Court's reluctance to unduly impede the job of law enforcement officials. The Court has attempted to strike a balance between the practical realities of daily police work and the privacy and freedom interests of the public. Always requiring police officers to take the time to complete a warrant application and locate and appear before a judge could result in the destruction of evidence, the disappearance of suspects and witnesses, or both. The circumstances under which a warrantless search, seizure, or arrest is deemed reasonable generally fall within seven categories.

1) No warrant is required for a felony arrest in a public place, even if the arresting officer had ample time to procure a warrant, so long as the officer possessed probable cause that the suspect committed the crime. Felony arrests in places not open to the public generally do require a warrant, unless the officer is in "hot pursuit" of a fleeing felon (see Warden v. Hayden, 387 U.S. 294 [1967]). The Fourth Amendment also allows warrantless arrests for misdemeanors committed in an officer's presence.

2) No warrant is required for searches incident to lawful arrest. If a police officer has made a lawful arrest, with or without a warrant, the Fourth Amendment permits the officer to conduct a search of the suspect's person, clothing, and all of the areas within the suspect's immediate reach. This kind of warrantless search is justified on grounds that it allows police officers to protect themselves from hidden weapons that might suddenly be wielded against them. Accordingly, officers are only permitted to seize items from the area in the immediate control of the arrestee.

3) Automobiles may be stopped if an officer possesses a reasonable and articulable suspicion that the motorist has violated a traffic law. Once the vehicle has pulled to the side of the road, the Fourth Amendment permits the officer to search the vehicle's interior, including the glove compartment. However, the trunk of a vehicle cannot be searched unless the officer has probable cause to believe that it contains contraband or the instrumentalities of criminal activity. But similar to a search incident to arrest, once a vehicle has been lawfully impounded, its contents may be inventoried without a warrant, including the contents of the trunk.

4) An officer who reasonably believes that criminal activity may be afoot in a public place is authorized to stop any person who is suspected of participating in that criminal activity and conduct a carefully limited search of the suspect's outer clothing for weapons that may be used against the officer (see Terry v. Ohio, 392 U.S. 1 [1968]). The officer may also ask for identification, but the suspect is under no obligation to produce it. However, A suspect's refusal to identify himself together with surrounding events may create probable cause to arrest (see People v. Loudermilk, 241 Cal. Rptr. 208 (Cal. App. 1987). This kind of warrantless search, called a Terry stop or a Terry frisk, is designed to protect officers from hidden weapons. Accordingly, items that do not feel like weapons, such as a baggie of soft, granular substance tucked inside a jacket pocket, cannot be seized during a Terry frisk, even if it turns out that the item is contraband.

5) Warrantless searches, seizures, and arrests may be justified by "exigent" circumstances. To determine whether exigent circumstances justified police conduct, a court must review the totality of the circumstances, including the gravity of the underlying offense and whether the suspect was fleeing or trying to escape. However, the surrounding circumstances must be tantamount to an emergency. Shots fired, screams heard, or fire emanating from inside a building have all been considered sufficiently exigent to dispense with the Fourth Amendment's warrant requirement.

6) The Supreme Court has upheld brief, warrantless seizures at fixed roadside checkpoints aimed at intercepting illegal aliens (see United States v. Martinez-Fuerte, 428 U.S. 543 [1976]) and drunk drivers (see Michigan v. Sitz, 496 U.S. 444 [1990]). Both checkpoint programs passed constitutional muster because they were tailored to remedying specific problems that law enforcement could not effectively address through more traditional means, namely problems relating to policing the nation's border and ensuring roadway safety. However, when the primary purpose of a checkpoint is simply to detect ordinary criminal activity, the Supreme Court has declared it violative of the Fourth Amendment (see Indianapolis v. Edmond, 531 U.S. 32 [2000]).

7) Searches, seizures, and arrests made pursuant to a defective warrant may be justified if the officer was proceeding in "good faith." The Supreme Court has said that a search made pursuant to a warrant that is later declared invalid (i.e., it fails to meet the requirements for a valid warrant enumerated above) will still be considered reasonable under the Fourth Amendment so long as the warrant was issued by a magistrate and the defect was not the result of willful police deception (see United States v. Leon, 468 U.S. 897 [1984]). This exception to the warrant requirement was created so as not to punish honest police officers who have done nothing wrong while acting in accordance with an ostensibly valid warrant.

The Fourth Amendment and the "Exclusionary Rule"

For the more than 100 years after its ratification, the Fourth Amendment was of little value to criminal defendants because evidence seized by law enforcement in violation of the warrant or reasonableness requirements was still admissible during the defendant's prosecution. The Supreme Court dramatically changed Fourth Amendment jurisprudence when it handed down its decision in Weeks v. United States, 232 U.S. 383 (1914). Weeks involved the appeal of a defendant who had been convicted based on evidence that had been seized by a federal agent without a warrant or other constitutional justification. The Supreme Court reversed the defendant's conviction, thereby creating what is known as the "exclusionary rule." In Mapp v. Ohio, 367 U.S. 643 (1961), the Supreme Court made the exclusionary rule applicable to the states.

Designed to deter police misconduct, the exclusionary rule enables courts to exclude incriminating evidence from introduction at trial upon proof that the evidence was procured in contravention of a constitutional provision. The rule allows defendants to challenge the admissibility of evidence by bringing a pre-trial motion to suppress the evidence. If the court allows the evidence to be introduced at trial and the jury votes to convict, the defendant can challenge the propriety of the trial court's decision denying the motion to suppress on appeal. If the defendant succeeds on appeal, however, the Supreme Court has ruled that double jeopardy principles do not bar retrial of the defendant because the trial court's error did not go to the question of guilt or innocence (see Lockhart v. Nelson, 488 U.S. 33 [1988]). Nonetheless, obtaining a conviction in the second trial would be significantly more difficult if the evidence suppressed by the exclusionary rule is important to the prosecution.

A companion to the exclusionary rule is the "fruit of the poisonous tree" doctrine. Under this doctrine, a court may exclude from trial not only evidence that itself was seized in violation of the Constitution but also any other evidence that is derived from an illegal search. For example, suppose a defendant is arrested for kidnapping and later confesses to the crime. If a court subsequently declares that the arrest was unconstitutional, the confession will also be deemed tainted and ruled inadmissible at any prosecution of the defendant on the kidnapping charge.

• Search and Seizure
• History and Scope of the Amendment
  • History
  • Scope of the Amendment
  • The Interest Protected
  • Arrests and Other Detentions
  • Searches and Inspections in Noncriminal Cases
• Searches and Seizures Pursuant to Warrant
  • Issuance by Neutral Magistrate
  • Probable Cause
  • Particularity
  • First Amendment Bearing on Probable Cause and Particularity
  • Property Subject to Seizure
  • Execution of Warrants
• Valid Searches and Seizures Without Warrants
  • Detention Short of Arrest: Stop-and-Frisk
  • Search Incident to Arrest
  • Vehicular Searches
  • Vessel Searches
  • Consent Searches
  • Border Searches
  • ''Open Fields''
  • ''Plain View''
  • Public Schools
  • Government Offices
  • Prisons and Regulation of Probation
  • Drug Testing
• Electronic Surveillance and the Fourth Amendment
  • The Olmstead Case
  • Federal Communications Act
  • Nontelephonic Electronic Surveillance
  • The Berger and Katz Cases
  • Warrantless ''National Security'' Electronic Surveillance
• Enforcing the Fourth Amendment: The Exclusionary Rule
  • Alternatives to the Exclusionary Rule
  • Development of the Exclusionary Rule
  • The Foundations of the Exclusionary Rule
  • Narrowing Application of the Exclusionary Rule
  • Operation of the Rule: Standing

SEARCH AND SEIZURE

  History and Scope of the Amendment

  History .--Few provisions of the Bill of Rights grew so directly out of the experience of the colonials as the Fourth Amendment, embodying as it did the protection against the utilization of the ''writs of assistance.'' But while the insistence on freedom from unreasonable searches and seizures as a fundamental right gained expression in the Colonies late and as a result of experience, 1 there was also a rich English experience to draw on. ''Every man's house is his castle'' was a maxim much celebrated in England, as was demonstrated in Semayne's Case, decided in 1603. 2 A civil case of execution of process, Semayne's Case nonetheless recognized the right of the homeowner to defend his house against unlawful entry even by the King's agents, but at the same time recognized the authority of the appropriate officers to break and enter upon notice in order to arrest or to execute the King's process. Most famous of the English cases was Entick v. Carrington, 3 one of a series of civil actions against state officers who, pursuant to general warrants, had raided many homes and other places in search of materials connected with John Wilkes' polemical pamphlets attacking not only governmental policies but the King himself. 4  

Entick, an associate of Wilkes, sued because agents had forcibly broken into his house, broken into locked desks and boxes, and seized many printed charts, pamphlets and the like. In an opinion sweeping in terms, the court declared the warrant and the behavior it authorized subversive ''of all the comforts of society,'' and the issuance of a warrant for the seizure of all of a person's papers rather than only those alleged to be criminal in nature ''contrary to the genius of the law of England.'' 5 Besides its general character, said the court, the warrant was bad because it was not issued on a showing of probable cause and no record was required to be made of what had been seized. Entick v. Carrington, the Supreme Court has said, is a ''great judgment,'' ''one of the landmarks of English liberty,'' ''one of the permanent monuments of the British Constitution,'' and a guide to an understanding of what the Framers meant in writing the Fourth Amendment. 6  

In the colonies, smuggling rather than seditious libel afforded the leading examples of the necessity for protection against unreasonable searches and seizures. In order to enforce the revenue laws, English authorities made use of writs of assistance, which were general warrants authorizing the bearer to enter any house or other place to search for and seize ''prohibited and uncustomed'' goods, and commanding all subjects to assist in these endeavors. The writs once issued remained in force throughout the lifetime of the sovereign and six months thereafter. When, upon the death of George II in 1760, the authorities were required to obtain the issuance of new writs, opposition was led by James Otis, who attacked such writs on libertarian grounds and who asserted the invalidity of the authorizing statutes because they conflicted with English constitutionalism. 7 Otis lost and the writs were issued and utilized, but his arguments were much cited in the colonies not only on the immediate subject but also with regard to judicial review.

  Scope of the Amendment .--The language of the provision which became the Fourth Amendment underwent some modest changes on its passage through the Congress, and it is possible that the changes reflected more than a modest significance in the interpretation of the relationship of the two clauses. Madison's introduced version provided ''The rights to be secured in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.'' 8 As reported from committee, with an inadvertent omission corrected on the floor, 9 the section was almost identical to the introduced version, and the House defeated a motion to substitute ''and no warrant shall issue'' for ''by warrants issuing'' in the committee draft. In some fashion, the rejected amendment was inserted in the language before passage by the House and is the language of the ratified constitutional provision. 10  

As noted above, the noteworthy disputes over search and seizure in England and the colonies revolved about the character of warrants. There were, however, lawful warrantless searches, primarily searches incident to arrest, and these apparently gave rise to no disputes. Thus, the question arises whether the Fourth Amendment's two clauses must be read together to mean that the only searches and seizures which are ''reasonable'' are those which meet the requirements of the second clause, that is, are pursuant to warrants issued under the prescribed safeguards, or whether the two clauses are independent, so that searches under warrant must comply with the second clause but that there are ''reasonable'' searches under the first clause which need not comply with the second clause. 11 This issue has divided the Court for some time, has seen several reversals of precedents, and is important for the resolution of many cases. It is a dispute which has run most consistently throughout the cases involving the scope of the right to search incident to arrest. 12 While the right to search the person of the arrestee without a warrant is unquestioned, how far afield into areas within and without the control of the arrestee a search may range is an interesting and crucial matter.

The Court has drawn a wavering line. 13 In Harris v. United States, 14 it approved as ''reasonable'' the warrantless search of a four-room apartment pursuant to the arrest of the man found there. A year later, however, a reconstituted Court majority set aside a conviction based on evidence seized by a warrantless search pursuant to an arrest and adopted the ''cardinal rule that, in seizing goods and articles, law enforcement agents must secure and use search warrants wherever reasonably practicable.'' 15 This rule was set aside two years later by another reconstituted majority which adopted the premise that the test ''is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.'' Whether a search is reasonable, the Court said, ''must find resolution in the facts and circumstances of each case.'' 16 However, the Court soon returned to its emphasis upon the warrant. ''The [Fourth] Amendment was in large part a reaction to the general warrants and warrantless searches that had so alienated the colonists and had helped speed the movement for independence. In the scheme of the Amendment, therefore, the requirement that 'no Warrants shall issue, but upon probable cause,' plays a crucial part.'' 17 Therefore, ''the police must, whenever practicable, obtain advance judicial approval of searches and seizures through a warrant procedure.'' 18 Exceptions to searches under warrants were to be closely contained by the rationale undergirding the necessity for the exception, and the scope of a search under one of the exceptions was similarly limited. 19  

During the 1970s the Court was closely divided on which standard to apply. 20 For a while, the balance tipped in favor of the view that warrantless searches are per se unreasonable, with a few carefully prescribed exceptions. 21 Gradually, guided by the variable expectation of privacy approach to coverage of the Fourth Amendment, the Court broadened its view of permissible exceptions and of the scope of those exceptions. 22  

By 1992, it was no longer the case that the ''warrants-with- narrow-exceptions'' standard normally prevails over a ''reasonableness'' approach. 23 Exceptions to the warrant requirement have multiplied, tending to confine application of the requirement to cases that are exclusively ''criminal'' in nature. And even within that core area of ''criminal'' cases, some exceptions have been broadened. The most important category of exception is that of administrative searches justified by ''special needs beyond the normal need for law enforcement.'' Under this general rubric the Court has upheld warrantless searches by administrative authorities in public schools, government offices, and prisons, and has upheld drug testing of public and transportation employees. 24 In all of these instances the warrant and probable cause requirements are dispensed with in favor of a reasonableness standard that balances the government's regulatory interest against the individual's privacy interest; in all of these instances the government's interest has been found to outweigh the individual's. The broad scope of the administrative search exception is evidenced by the fact that an overlap between law enforcement objectives and administrative ''special needs'' does not result in application of the warrant requirement; instead, the Court has upheld warrantless inspection of automobile junkyards and dismantling operations in spite of the strong law enforcement component of the regulation. 25 In the law enforcement context, where search by warrant is still the general rule, there has also been some loosening of the requirement. For example, the Court has shifted focus from whether exigent circumstances justified failure to obtain a warrant, to whether an officer had a ''reasonable'' belief that an exception to the warrant requirement applied; 26 in another case the scope of a valid search ''incident to arrest,'' once limited to areas within the immediate reach of the arrested suspect, was expanded to a ''protective sweep'' of the entire home if arresting officers have a reasonable belief that the home harbors an individual who may pose a danger. 27  

Another matter of scope recently addressed by the Court is the category of persons protected by the Fourth Amendment--who constitutes ''the people.'' This phrase, the Court determined, ''refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with [the United States] to be considered part of that community.'' 28 The Fourth Amendment therefore does not apply to the search and seizure by United States agents of property that is owned by a nonresident alien and located in a foreign country. The community of protected people includes U.S. citizens who go abroad, and aliens who have voluntarily entered U.S. territory and developed substantial connections with this country. There is no resulting broad principle, however, that the Fourth Amendment constrains federal officials wherever and against whomever they act.

  The Interest Protected .--For the Fourth Amendment to be applicable to a particular set of facts, there must be a ''search'' and a ''seizure,'' occurring typically in a criminal case, with a subsequent attempt to use judicially what was seized. Whether there was a search and seizure within the meaning of the Amendment, whether a complainant's interests were constitutionally infringed, will often turn upon consideration of his interest and whether it was officially abused. What does the Amendment protect? Under the common law, there was no doubt. Said Lord Camden in Entick v. Carrington: 29 ''The great end for which men entered in society was to secure their property. That right is preserved sacred and incommunicable in all instances where it has not been taken away or abridged by some public law for the good of the whole. . . . By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set foot upon my ground without my license but he is liable to an action though the damage be nothing . . . .'' Protection of property interests as the basis of the Fourth Amendment found easy acceptance in the Supreme Court 30 and that acceptance controlled decision in numerous cases. 31 For example, in Olmstead v. United States, 32 one of the two premises underlying the holding that wiretapping was not covered by the Amendment was that there had been no actual physical invasion of the defendant's premises; where there had been an invasion, a technical trespass, electronic surveillance was deemed subject to Fourth Amendment restrictions. 33 The Court later rejected this approach, however. ''The premise that property interests control the right of the Government to search and seize has been discredited. . . . We have recognized that the principal object of the Fourth Amendment is the protection of privacy rather than property, and have increasingly discarded fictional and procedural barriers rested on property concepts.'' 34 Thus, because the Amendment ''protects people, not places,'' the requirement of actual physical trespass is dispensed with and electronic surveillance was made subject to the Amendment's requirements. 35  

The test propounded in Katz is whether there is an expectation of privacy upon which one may ''justifiably'' rely. 36 ''What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.'' 37 That is, the ''capacity to claim the protection of the Amendment depends not upon a property right in the invaded place but upon whether the area was one in which there was reasonable expectation of freedom from governmental intrusion.'' 38  

The two-part test that Justice Harlan suggested in Katz 39 has purported to guide the Court in its deliberations, but its consequences are unclear. On the one hand, there is no difference in result between many of the old cases premised on property concepts and more recent cases in which the reasonable expectation of privacy flows from ownership concepts. 40 On the other hand, many other cases have presented close questions that have sharply divided the Court. 41 The first element, the ''subjective expectation'' of privacy, has largely dwindled as a viable standard, because, as Justice Harlan noted in a subsequent case, ''our expectations, and the risks we assume, are in large part reflections of laws that translate into rules the customs and values of the past and present.'' 42 As for the second element, whether one has a ''legitimate'' expectation of privacy that society finds ''reasonable'' to recognize, the Court has said that ''[l]egitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.'' 43 Thus, protection of the home is at the apex of Fourth Amendment coverage because of the right associated with ownership to exclude others; 44 but ownership of other things, i.e., automobiles, does not carry a similar high degree of protection. 45 That a person has taken normal precautions to maintain his privacy, that is, precautions customarily taken by those seeking to exclude others, is usually a significant factor in determining legitimacy of expectation. 46 Some expectations, the Court has held, are simply not those which society is prepared to accept. 47 While perhaps not clearly expressed in the opinions, what seems to have emerged is a balancing standard, which requires ''an assessing of the nature of a particular practice and the likely extent of its impact on the individual's sense of security balanced against the utility of the conduct as a technique of law enforcement.'' As the intrusions grow more extensive and significantly jeopardize the sense of security of the individual, greater restraint of police officers through the warrant requirement may be deemed necessary. 48 On the other hand, the Court's solicitude for law enforcement objectives may tilt the balance in the other direction.

Application of this balancing test, because of the Court's weighing in of law enforcement investigative needs 49 and the Court's subjective evaluation of privacy needs, has led to the creation of a two-tier or sliding-tier scale of privacy interests. The privacy test was originally designed to permit a determination that a Fourth Amendment protected interest had been invaded. 50 If it had been, then ordinarily a warrant was required, subject only to the narrowly defined exceptions, and the scope of the search under those exceptions was ''strictly tied to and justified by the circumstances which rendered its initiation permissible.'' 51 But the Court now uses the test to determine whether the interest invaded is important or persuasive enough so that a warrant is required to justify it; 52 if the individual has a lesser expectation of privacy, then the invasion may be justified, absent a warrant, by the reasonableness of the intrusion. 53 Exceptions to the warrant requirement are no longer evaluated solely by the justifications for the exception, e.g., exigent circumstances, and the scope of the search is no longer tied to and limited by the justification for the exception. 54 The result has been a considerable expansion, beyond what existed prior to Katz, of the power of police and other authorities to conduct searches.

  Arrests and Other Detentions .--That the Fourth Amendment was intended to protect against arbitrary arrests as well as against unreasonable searches was early assumed by Chief Justice Marshall 55 and is now established law. 56 At the common law, it was proper to arrest one who had committed a breach of the peace or a felony without a warrant, 57 and this history is reflected in the fact that the Fourth Amendment is satisfied if the arrest is made in a public place on probable cause, regardless of whether a warrant has been obtained. 58 However, in order to effectuate an arrest in the home, absent consent or exigent circumstances, police officers must have a warrant. 59 The Fourth Amendment applies to ''seizures'' and it is not necessary that a detention be a formal arrest in order to bring to bear the requirements of warrants or probable cause in instances in which warrants may be forgone. 60 Some objective justification must be shown to validate all seizures of the person, including seizures that involve only a brief detention short of arrest, although the nature of the detention will determine whether probable cause or some reasonable and articulable suspicion is necessary. 61  

Until relatively recently, the legality of arrests was seldom litigated in the Supreme Court because of the rule that a person detained pursuant to an arbitrary seizure--unlike evidence obtained as a result of an unlawful search--remains subject to custody and presentation to court. 62 But the application of self-incrimination and other exclusionary rules to the States and the heightening of their scope in state and federal cases alike brought forth the rule that verbal evidence, confessions, and other admissions, like all derivative evidence obtained as a result of unlawful seizures, could be excluded. 63 Thus, a confession made by one illegally in custody must be suppressed, unless the causal connection between the illegal arrest and the confession had become so attenuated that the latter should not be deemed ''tainted'' by the former. 64 Similarly, fingerprints and other physical evidence obtained as a result of an unlawful arrest must be suppressed. 65  

  Searches and Inspections in Noncriminal Cases .--Certain early cases held that the Fourth Amendment was applicable only when a search was undertaken for criminal investigatory purposes, 66 and the Supreme Court until recently employed a reasonableness test for such searches without requiring either a warrant or probable cause in the absence of a warrant. 67 But in 1967, the Court held in two cases that administrative inspections to detect building code violations must be undertaken pursuant to warrant if the occupant objects. 68 ''We may agree that a routine inspection of the physical condition of private property is a less hostile intrusion than the typical policeman's search for the fruits and instrumentalities of crime. . . . But we cannot agree that the Fourth Amendment interests at stake in these inspection cases are merely 'peripheral.' It is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.'' 69 Certain administrative inspections utilized to enforce regulatory schemes with regard to such items as alcohol and firearms are, however, exempt from the Fourth Amendment warrant requirement and may be authorized simply by statute. 70  

Camara and See were reaffirmed in Marshall v. Barlow's, Inc., 71 in which the Court held violative of the Fourth Amendment a provision of the Occupational Safety and Health Act which authorized federal inspectors to search the work area of any employment facility covered by the Act for safety hazards and violations of regulations, without a warrant or other legal process. The liquor and firearms exceptions were distinguished on the basis that those industries had a long tradition of close government supervision, so that a person in those businesses gave up his privacy expectations. But OSHA was a relatively recent statute and it regulated practically every business in or affecting interstate commerce; it was not open to a legislature to extend regulation and then follow it with warrantless inspections. Additionally, OSHA inspectors had unbounded discretion in choosing which businesses to inspect and when to do so, leaving businesses at the mercy of possibly arbitrary actions and certainly with no assurances as to limitation on scope and standards of inspections. Further, warrantless inspections were not necessary to serve an important governmental interest, inasmuch as most businesses would consent to inspection and it was not inconvenient to require OSHA to resort to an administrative warrant in order to inspect sites where consent was refused. 72  

In Donovan v. Dewey, 73 however, Barlow's was substantially limited and a new standard emerged permitting extensive governmental inspection of commercial property, 74 absent warrants. Under the Federal Mine Safety and Health Act, governing underground and surface mines (including stone quarries), federal officers are directed to inspect underground mines at least four times a year and surface mines at least twice a year, pursuant to extensive regulations as to standards of safety. The statute specifically provides for absence of advanced notice and requires the Secretary of Labor to institute court actions for injunctive and other relief in cases in which inspectors are denied admission. Sustaining the statute, the Court proclaimed that government had a ''greater latitude'' to conduct warrantless inspections of commercial property than of homes, because of ''the fact that the expectation of privacy that the owner of commercial property enjoys in such property differs significantly from the sanctity accorded an individual's home, and that this privacy interest may, in certain circumstances, be adequately protected by regulatory schemes authorizing warrantless inspections.'' 75  

Dewey was distinguished from Barlow's in several ways. First, Dewey involved a single industry, unlike the broad coverage in Barlow's. Second, the OSHA statute gave minimal direction to inspectors as to time, scope, and frequency of inspections, while FMSHA specified a regular number of inspections pursuant to standards. Third, deference was due Congress' determination that unannounced inspections were necessary if the safety laws were to be effectively enforced. Fourth, FMSHA provided businesses the opportunity to contest the search by resisting in the civil proceeding the Secretary had to bring if consent was denied. 76 The standard of a long tradition of government supervision permitting warrantless inspections was dispensed with, because it would lead to ''absurd results,'' in that new and emerging industries posing great hazards would escape regulation. 77 Dewey suggests, therefore, that warrantless inspections of commercial establishments are permissible so long as the legislature carefully drafts its statute.

Dewey was applied in New York v. Burger 78 to inspection of automobile junkyards and vehicle dismantling operations, a situation where there is considerable overlap between administrative and penal objectives. Applying the Dewey three-part test, the Court concluded that New York has a substantial interest in stemming the tide of automobile thefts, that regulation of vehicle dismantling reasonably serves that interest, and that statutory safeguards provided adequate substitute for a warrant requirement. The Court rejected the suggestion that the warrantless inspection provisions were designed as an expedient means of enforcing the penal laws, and instead saw narrower, valid regulatory purposes to be served: e.g., establishing a system for tracking stolen automobiles and parts, and enhancing the ability of legitimate businesses to compete. ''[A] State can address a major social problem both by way of an administrative scheme and through penal sanctions,'' the Court declared; in such circumstances warrantless administrative searches are permissible in spite of the fact that evidence of criminal activity may well be uncovered in the process. 79  

In other contexts, the Court has also elaborated the constitutional requirements affecting administrative inspections and searches. Thus, in Michigan v. Tyler, 80 it subdivided the process by which an investigation of the cause of a fire may be conducted. Entry to fight the fire is, of course, an exception based on exigent circumstances, and no warrant or consent is needed; firemen on the scene may seize evidence relating to the cause under the plain view doctrine. Additional entries to investigate the cause of the fire must be made pursuant to warrant procedures governing administrative searches. Evidence of arson discovered in the course of such an administrative inspection is admissible at trial, but if the investigator finds probable cause to believe that arson has occurred and requires further access to gather evidence for a possible prosecution, he must obtain a criminal search warrant. 81  

One curious case has approved a system of ''home visits'' by welfare caseworkers, in which the recipients are required to admit the worker or lose eligibility for benefits. 82 In another unusual case, the Court held that a sheriff's assistance to a trailer park owner in disconnecting and removing a mobile home constituted a ''seizure'' of the home. Supp.1  

In addition, there are now a number of situations, some of them analogous to administrative searches, where '''special needs' beyond normal law enforcement . . . justify departures from the usual warrant and probable cause requirements.'' 83 In one of these cases the Court, without acknowledging the magnitude of the leap from one context to another, has taken the Dewey/Burger rationale--developed to justify warrantless searches of business establishments--and applied it to justify the significant intrusion into personal privacy represented by urinalysis drug testing. Because of the history of pervasive regulation of the railroad industry, the Court reasoned, railroad employees have a diminished expectation of privacy that makes mandatory urinalysis less intrusive and more reasonable. 84  

With respect to automobiles, the holdings are mixed. Random stops of automobiles to check drivers' licenses, vehicle registrations, and safety conditions were condemned as too intrusive; the degree to which random stops would advance the legitimate governmental interests involved did not outweigh the individual's legitimate expectations of privacy. 85 On the other hand, in South Dakota v. Opperman, 86 the Court sustained the admission of evidence found when police impounded an automobile from a public street for multiple parking violations and entered the car to secure and inventory valuables for safekeeping. Marijuana was discovered in the glove compartment.

Footnotes

[Footnote 1] Apparently the first statement of freedom from unreasonable searches and seizures appeared in The Rights of the Colonists and a List of Infringements and Violations of Rights, 1772, in the drafting of which Samuel Adams took the lead. 1 B. Schwartz, The Bill of Rights: A Documentary History 199, 205-06 (1971).

[Footnote 2] 5 Coke's Rep. 91a, 77 Eng. Rep. 194 (K.B. 1604). One of the most forceful expressions of the maxim was that of William Pitt in Parliament in 1763: ''The poorest man may in his cottage bid defiance to all the force of the crown. It may be frail--its roof may shake--the wind may blow through it--the storm may enter, the rain may enter--but the King of England cannot enter--all his force dares not cross the threshold of the ruined tenement.''

[Footnote 3] 19 Howell's State Trials 1029, 95 Eng. 807 (1705).

[Footnote 4] See also Wilkes v. Wood, 98 Eng. 489 (C.P. 1763); Huckle v. Money, 95 Eng. Rep. 768 (K.B. 1763), aff'd 19 Howell's State Trials 1002, 1028; 97 Eng. Rep. 1075 (K.B. 1765).

[Footnote 5] 5 Eng. Rep. 817, 818.

[Footnote 6] Boyd v. United States, 116 U.S. 616, 626 (1886).

[Footnote 7] The arguments of Otis and others as well as much background material are contained in Quincy's Massachusetts Reports, 1761-1772, App. I, pp. 395-540, and in 2 Legal Papers of John Adams 106-47 (Wroth & Zobel eds., 1965). See also Dickerson, Writs of Assistance as a Cause of the American Revolution, in The Era of the American Revolution: Studies Inscribed to Evarts Boutell Greene 40 (R. Morris, ed., 1939).

[Footnote 8] 1 Annals of Congress 434-35 (June 8, 1789).

[Footnote 9] The word ''secured'' was changed to ''secure'' and the phrase ''against unreasonable searches and seizures'' was reinstated. Id. at 754 (August 17, 1789).

[Footnote 10] Id. It has been theorized that the author of the defeated revision, who was chairman of the committee appointed to arrange the amendments prior to House passage, simply inserted his provision and that it passed unnoticed. N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 101-03 (1937).

[Footnote 11] The amendment was originally in one clause as quoted above; it was the insertion of the defeated amendment to the language which changed the text into two clauses and arguably had the effect of extending the protection against unreasonable searches and seizures beyond the requirements imposed on the issuance of warrants. It is also possible to read the two clauses together to mean that some seizures even under warrants would be unreasonable, and this reading has indeed been effectuated in certain cases, although for independent reasons. Boyd v. United States, 116 U.S. 616 (1886); Gouled v. United States, 255 U.S. 298 (1921), overruled by Warden v. Hayden, 387 U.S. 294 (1967); but see id. at 303 (reserving the question whether ''there are items of evidential value whose very nature precludes them from being the object of a reasonable search and seizure.'')

[Footnote 12] Approval of warrantless searches pursuant to arrest first appeared in dicta in several cases. 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). Whether or not there is to be a rule or a principle generally preferring or requiring searches pursuant to warrant to warrantless searches, however, has ramifications far beyond the issue of searches pursuant to arrest. United States v. United States District Court, 407 U.S. 297, 320 (1972).

[Footnote 13] 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).

[Footnote 14]   331 U.S. 145 (1947).

[Footnote 15] Trupiano v. United States, 334 U.S. 699, 705 (1948). See also McDonald v. United States, 335 U.S. 451 (1948).

[Footnote 16] United States v. Rabinowitz, 339 U.S. 56, 66 (1950).

[Footnote 17] Chimel v. California, 395 U.S. 752, 761 (1969).

[Footnote 18] Terry v. Ohio, 392 U.S. 1, 20 (1968). In United States v. United States District Court, 407 U.S. 297, 321 (1972), Justice Powell explained that the ''very heart'' of the Amendment's mandate is ''that where practical, a governmental search and seizure should represent both the efforts of the officer to gather evidence of wrongful acts and the judgment of the magistrate that the collected evidence is sufficient to justify invasion of a citizen's private premises or conversation.'' Thus, what is ''reasonable'' in terms of a search and seizure derives content and meaning through reference to the warrant clause. Coolidge v. New Hampshire, 403 U.S. 443, 473 -84 (1971). See also Davis v. Mississippi, 394 U.S. 721, 728 (1969); Katz v. United States, 389 U.S. 347, 356 -58 (1967); Warden v. Hayden, 387 U.S. 294, 299 (1967).

[Footnote 19] Chimel v. California, 395 U.S. 752, 762 -64 (1969) (limiting scope of search incident to arrest). See also United States v. United States District Court, 407 U.S. 297 (1972) (rejecting argument that it was ''reasonable'' to allow President through Attorney General to authorize warrantless electronic surveillance of persons thought to be endangering the national security); Katz v. United States, 389 U.S. 347 (1967) (although officers acted with great self-restraint and reasonably in engaging in electronic seizures of conversations from telephone booth, self-imposition was not enough and magistrate's judgment required); Preston v. United States, 376 U.S. 364 (1964) (warrantless search of seized automobile not justified because not within rationale of exceptions to warrant clause). There were exceptions, e.g., Cooper v. California, 386 U.S. 58 (1967) (warrantless search of impounded car was reasonable); United States v. Harris, 390 U.S. 234 (1968) (warrantless inventory search of automobile).

[Footnote 20] See, e.g., Almeida-Sanchez v. United States, 413 U.S. 266 (1973), Justices Stewart, Douglas, Brennan, and Marshall adhered to the warrant-based rule, while Justices White, Blackmun, and Rehnquist, and Chief Justice Burger placed greater emphasis upon the question of reasonableness without necessary regard to the warrant requirement. Id. at 285. Justice Powell generally agreed with the former group of Justices, id. at 275 (concurring).

[Footnote 21] E.g., G.M. Leasing Corp. v. United States, 429 U.S. 338, 352 -53 (1977) (unanimous); Marshall v. Barlow's, Inc., 436 U.S. 307, 312 (1978); Michigan v. Tyler, 436 U.S. 499, 506 (1978); Mincey v. Arizona, 437 U.S. 385, 390 (1978) (unanimous); Arkansas v. Sanders, 442 U.S. 743, 758 (1979); United States v. Ross, 456 U.S. 798, 824 -25 (1982).

[Footnote 22] E.g., Chambers v. Maroney, 399 U.S. 42 (1970) (warrantless search of automobile taken to police station); Texas v. White, 423 U.S. 67 (1975) (same); New York v. Belton, 453 U.S. 454 (1981) (search incident to arrest); United States v. Ross, 456 U.S. 798 (1982) (automobile search at scene). On the other hand, the warrant-based standard did preclude a number of warrantless searches. E.g., Almeida- Sanchez v. United States, 413 U.S. 266 (1973) (warrantless stop and search of auto by roving patrol near border); Marshall v. Barlow's, Inc., 436 U.S. 307 (1978) (warrantless administrative inspection of business premises); Mincey v. Arizona, 437 U.S. 385 (1978) (warrantless search of home that was ''homicide scene'').

[Footnote 23] Of the 1992 Justices, only Justice Stevens has frequently sided with the warrants-with-narrow-exceptions approach. See, e.g., Illinois v. Rodriguez, 497 U.S. 177, 189 (Justice Stevens joining Justice Marshall's dissent); New Jersey v. T.L.O., 469 U.S. 325, 370 (1985) (Justice Stevens dissenting); California v. Acevedo, 500 U.S. 565, 585 (1991) (Justice Stevens dissenting).

[Footnote 24] See various headings infra under the general heading ''Valid Searches and Seizures Without Warrants.''

[Footnote 25] New York v. Burger, 482 U.S. 691 (1987).

[Footnote 26] Illinois v. Rodriguez, 497 U.S. 177 (1990).

[Footnote 27] Maryland v. Buie, 494 U.S. 325 (1990).

[Footnote 28] United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990).

[Footnote 29] 19 Howell's State Trials 1029, 1035, 95 Eng. Reg. 807, 817- 18 (1765).

[Footnote 30] Boyd v. United States, 116 U.S. 616, 627 (1886); Adams v. New York, 192 U.S. 585, 598 (1904).

[Footnote 31] Thus, the rule that ''mere evidence'' could not be seized but rather only the fruits of crime, its instrumentalities, or contraband, turned upon the question of the right of the public to possess the materials or the police power to make possession by the possessor unlawful. Gouled v. United States, 255 U.S. 298 (1921), overruled by Warden v. Hayden, 387 U.S. 294 (1967). See also Davis v. United States, 328 U.S. 582 (1946). Standing to contest unlawful searches and seizures was based upon property interests, United States v. Jeffers, 342 U.S. 48 (1951); Jones v. United States, 362 U.S. 257 (1960), as well as decision upon the validity of a consent to search. Chapman v. United States, 365 U.S. 610 (1961); Stoner v. California, 376 U.S. 483 (1964); Frazier v. Culp, 394 U.S. 731, 740 (1969).

[Footnote 32]   277 U.S. 438 (1928). See also Goldman v. United States, 316 U.S. 129 (1942) (detectaphone placed against wall of adjoining room; no search and seizure).

[Footnote 33] Silverman v. United States, 365 U.S. 505 (1961) (spike mike pushed through a party wall until it hit a heating duct).

[Footnote 34] Warden v. Hayden, 387 U.S. 294, 304 (1967).

[Footnote 35] Katz v. United States, 389 U.S. 347, 353 (1967). But see California v. Hodari D., 499 U.S. 621, 626 (1991) (Fourth Amendment ''seizure'' of the person is the same as a common law arrest; there must be either application of physical force or submission to the assertion of authority).

[Footnote 36]   389 U.S. at 353 . Justice Harlan, concurring, formulated a two pronged test for determining whether the privacy interest is paramount: ''first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable.''' Id. at 361.

[Footnote 37] Id. at 351-52.

[Footnote 38] Mancusi v. DeForte, 392 U.S. 364, 368 (1968) (official had a reasonable expectation of privacy in an office he shared with others, although he owned neither the premises nor the papers seized). Minnesota v. Olson, 495 U.S. 91 (1990) (overnight guest in home has a reasonable expectation of privacy). Cf. Rakas v. Illinois, 439 U.S. 128 (1978). Property rights are still protected by the Amendment, however. A ''seizure'' of property can occur when there is some meaningful interference with an individual's possessory interests in that property, and regardless of whether there is any interference with the individual's privacy interest. Soldal v. Cook County, 506 U.S. 56 (1992) (a seizure occurred when sheriff's deputies assisted in the disconnection and removal of a mobile home in the course of an eviction from a mobile home park). The reasonableness of a seizure, however, is an additional issue that may still hinge on privacy interests. United States v. Jacobsen, 466 U.S. 109, 120-21 (1984) (DEA agents reasonably seized package for examination after private mail carrier had opened the damaged package for inspection, discovered presence of contraband, and informed agents).

[Footnote 39] Justice Harlan's opinion has been much relied upon. E.g., Terry v. Ohio, 392 U.S. 1, 19 (1968); Rakas v. Illinois, 439 U.S. 128, 143 -144 n.12 (1978); Smith v. Maryland, 442 U.S. 735, 740 -41 (1979); United States v. Salvucci, 448 U.S. 83, 91 -92 (1980); Rawlings v. Kentucky, 448 U.S. 98, 105 -06 (1980).

[Footnote 40] E.g., Alderman v. United States, 394 U.S. 165 (1969) (home owner could object to electronic surveillance of conversations emanating from his home, even though he was not party to the conversations).

[Footnote 41] E.g., Rakas v. Illinois, 439 U.S. 128 (1978) (4-1-4 decision: passengers in automobile who own neither the car nor the property seized had no legitimate expectation of privacy in areas searched).

[Footnote 42] United States v. White, 401 U.S. 745, 786 (1971). See Smith v. Maryland, 442 U.S. 735, 740 n.5 (1979) (government could not condition ''subjective expectations'' by, say, announcing that henceforth all homes would be subject to warrantless entry, and thus destroy the ''legitimate expectation of privacy'').

[Footnote 43] Rakas v. Illinois, 439 U.S. 128, 144 n.12 (1978).

[Footnote 44] E.g., Alderman v. United States, 394 U.S. 165 (1969); Mincey v. Arizona, 437 U.S. 385 (1978); Payton v. New York, 445 U.S. 573 (1980).

[Footnote 45] E.g., United States v. Ross, 456 U.S. 798 (1982). See also Donovan v. Dewey, 452 U.S. 594 (1981) (commercial premises); Maryland v. Macon, 472 U.S. 463 (1985) (no legitimate expectation of privacy in denying to undercover officers allegedly obscene materials offered to public in bookstore).

[Footnote 46] E.g., United States v. Chadwick, 433 U.S. 1, 11 (1977); Katz v. United States, 389 U.S. 347, 352 (1967). But cf. South Dakota v. Opperman, 428 U.S. 364 (1976) (no legitimate expectation of privacy in automobile left with doors locked and windows rolled up). In Rawlings v. Kentucky, 448 U.S. 98 (1980), the fact that defendant had dumped a cache of drugs into his companion's purse, having known her for only a few days and knowing others had access to the purse, was taken to establish that he had no legitimate expectation the purse would be free from intrusion.

[Footnote 47] E.g., United States v. Miller, 425 U.S. 435 (1976) (bank records); Smith v. Maryland, 442 U.S. 735 (1979) (numbers dialed from one's telephone); Hudson v. Palmer, 468 U.S. 517 (1984) (prison cell); Illinois v. Andreas, 463 U.S. 765 (1983) (shipping container opened and inspected by customs agents and resealed and delivered to the addressee); California v. Greenwood, 486 U.S. 35 (1988) (garbage in sealed plastic bags left at curb for collection).

[Footnote 48] United States v. White, 401 U.S. 745, 786 -87 (1971) (Justice Harlan dissenting).

[Footnote 49] E.g., Robbins v. California, 453 U.S. 420, 429 , 433-34 (1981) (Justice Powell concurring), quoted approvingly in United States v. Ross, 456 U.S. 798, 815 -16 & n.21 (1982).

[Footnote 50] Katz v. United States, 389 U.S. 347, 351 -52 (1967).

[Footnote 51] Terry v. Ohio, 392 U.S. 1, 19 (1968).

[Footnote 52] The prime example is the home, so that for entries either to search or to arrest, ''the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.'' Payton v. New York, 445 U.S. 573, 590 (1980); Steagald v. United States, 451 U.S. 204, 212 (1981). And see Mincey v. Arizona, 437 U.S. 385 (1978).

[Footnote 53] One has a diminished expectation of privacy in automobiles. Arkansas v. Sanders, 442 U.S. 753, 761 (1979) (collecting cases); United States v. Ross, 456 U.S. 798, 804 -09 (1982). A person's expectation of privacy in personal luggage and other closed containers is substantially greater than in an automobile, United States v. Chadwick, 433 U.S. 1, 13 (1977); Arkansas v. Sanders, 442 U.S. 753 (1979), although if the luggage or container is found in an automobile as to which there exists probable cause to search, the legitimate expectancy diminishes accordingly. United States v. Ross, supra. There is also a diminished expectation of privacy in a mobile home parked in a parking lot and licensed for vehicular travel. California v. Carney, 471 U.S. 386 (1985) (leaving open the question of whether the automobile exception also applies to a ''mobile'' home being used as a residence and not adapted for immediate vehicular use).

[Footnote 54] E.g., Texas v. White, 423 U.S. 67 (1975) (if probable cause to search automobile existed at scene, it can be removed to station and searched without warrant); United States v. Robinson, 414 U.S. 218 (1973) (once an arrest has been validly made, search pursuant thereto is so minimally intrusive in addition that scope of search is not limited by necessity of security of officer); United States v. Edwards, 415 U.S. 800 (1974) (incarcerated suspect; officers need no warrant to take his clothes for test because little additional intrusion). But see Ybarra v. Illinois, 444 U.S. 85 (1979) (officers on premises to execute search warrant of premises may not without more search persons found on premises).

[Footnote 55] Ex parte Burford, 7 U.S. (3 Cr.) 448 (1806).

[Footnote 56] Giordenello v. United States, 357 U.S. 480, 485 -86 (1958); United States v. Watson, 423 U.S. 411, 416 -18 (1976); Payton v. New York, 445 U.S. 573, 583 -86 (1980); Steagald v. United States, 451 U.S. 204, 211 -13 (1981).

[Footnote 57] 1 J. Stephen, A History of the Criminal Law of England 193 (1883).

[Footnote 58] United States v. Watson, 423 U.S. 411 (1976). See also United States v. Santana, 427 U.S. 38 (1976) (sustaining warrantless arrest of suspect in her home when she was initially approached in her doorway and then retreated into house). However, a suspect arrested on probable cause but without a warrant is entitled to a prompt, nonadversary hearing before a magistrate under procedures designed to provide a fair and reliable determination of probable cause in order to keep the arrestee in custody. Gerstein v. Pugh, 420 U.S. 103 (1975).

[Footnote 59] Payton v. New York, 445 U.S. 573 (1980) (voiding state law authorizing police to enter private residence without a warrant to make an arrest); Steagald v. United States, 451 U.S. 204 (1981) (officers with arrest warrant for A entered B's home without search warrant and discovered incriminating evidence; violated Fourth Amendment in absence of warrant to search the home); Hayes v. Florida, 470 U.S. 811 (1985) (officers went to suspect's home and took him to police station for fingerprinting).

[Footnote 60] United States v. Mendenhall, 446 U.S. 544, 554 (1980) (opinion of Justice Stewart) (''[A] person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave''). See also Reid v. Georgia, 448 U.S. 438 (1980); United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975); Terry v. Ohio, 392 U.S. 1, 16 -19 (1968). Apprehension by the use of deadly force is a seizure subject to the Fourth Amendment's reasonableness requirement. See, e.g., Tennessee v. Garner, 471 U.S. 1 (1985) (police officer's fatal shooting of a fleeing suspect); Brower v. County of Inyo, 489 U.S. 593 (1989) (police roadblock designed to end car chase with fatal crash).

[Footnote 61] Adams v. Williams, 407 U.S. 143, 146 -49 (1972); Delaware v. Prouse, 440 U.S. 648, 661 (1979); Brown v. Texas, 443 U.S. 47, 51 (1979); Reid v. Georgia, 448 U.S. 438, 440 (1980); Michigan v. Summers, 452 U.S. 692 (1981).

[Footnote 62] Ker v. Illinois, 119 U.S. 436, 440 (1886); see also Albrecht v. United States, 273 U.S. 1 (1927); Frisbie v. Collins, 342 U.S. 519 (1952).

[Footnote 63] Wong Sun v. United States, 371 U.S. 471 (1963). Such evidence is the ''fruit of the poisonous tree,'' Nardone v. United States, 308 U.S. 338, 341 (1939), that is, evidence derived from the original illegality. Previously, if confessions were voluntary for purposes of the self-incrimination clause, they were admissible notwithstanding any prior official illegality. Colombe v. Connecticut, 367 U.S. 568 (1961).

[Footnote 64] Although there is a presumption that the illegal arrest is the cause of the subsequent confession, the presumption is rebuttable by a showing that the confession is the result of ''an intervening . . . act of free will.'' Wong Sun v. United States, 371 U.S. 471, 486 (1963). The factors used to determine whether the taint has been dissipated are the time between the illegal arrest and the confession, whether there were intervening circumstances (such as consultation with others, Miranda warnings, etc.), and the degree of flagrancy and purposefulness of the official conduct. Brown v. Illinois, 422 U.S. 590 (1975) (Miranda warnings alone insufficient); Dunaway v. New York, 442 U.S. 200 (1979); Taylor v. Alabama, 457 U.S. 687 (1982). In Johnson v. Louisiana, 406 U.S. 356 (1972), the fact that the suspect had been taken before a magistrate who advised him of his rights and set bail, after which he confessed, established a sufficient intervening circumstance.

[Footnote 65] Davis v. Mississippi, 394 U.S. 721 (1969); Taylor v. Alabama, 457 U.S. 687 (1982). In United States v. Crews, 445 U.S. 463 (1980), the Court, unanimously but for a variety of reasons, held proper the identification in court of a defendant, who had been wrongly arrested without probable cause, by the crime victim. The court identification was not tainted by either the arrest or the subsequent in-custody identification. See also Hayes v. Florida, 470 U.S. 811, 815 (1985), suggesting in dictum that a ''narrowly circumscribed procedure for fingerprinting detentions on less than probable cause'' may be permissible.

[Footnote 66] In re Strouse, 23 Fed. Cas. 261 (No. 13,548) (D. Nev. 1871); In re Meador, 16 Fed. Cas. 1294, 1299 (No. 9375) (N.D. Ga. 1869).

[Footnote 67] Abel v. United States, 362 U.S. 217 (1960); Frank v. Maryland, 359 U.S. 360 (1959); Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186 (1946).

[Footnote 68] Camara v. Municipal Court, 387 U.S. 523 (1967) (home); See v. City of Seattle, 387 U.S. 541 (1967) (commercial warehouse).

[Footnote 69] Camara v. Municipal Court, 387 U.S. 523, 530 (1967).

[Footnote 70] Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970); United States v. Biswell, 406 U.S. 311 (1972). Colonnade, involving liquor, was based on the long history of close supervision of the industry. Biswell, involving firearms, introduced factors that were subsequently to prove significant. Thus, while the statute was of recent enactment, firearms constituted a pervasively regulated industry, so that dealers had no reasonable expectation of privacy, inasmuch as the law provides for regular inspections. Further, warrantless inspections were needed for effective enforcement of the statute.

[Footnote 71]   436 U.S. 307 (1978). Dissenting, Justice Stevens, with Justices Rehnquist and Blackmun, argued that not the warrant clause but the reasonableness clause should govern administrative inspections. Id. at 325.

[Footnote 72] Administrative warrants issued on the basis of less than probable cause but only on a showing that a specific business had been chosen for inspection on the basis of a general administrative plan would suffice. Even without a necessity for probable cause, the requirement would assure the interposition of a neutral officer to establish that the inspection was reasonable and was properly authorized. Id. at 321, 323. The dissenters objected that the warrant clause was being constitutionally diluted. Id. at 325. Administrative warrants were approved also in Camara v. Municipal Court, 387 U.S. 523, 538 (1967). Previously, one of the reasons given for finding administrative and noncriminal inspections not covered by the Fourth Amendment was the fact that the warrant clause would be as rigorously applied to them as to criminal searches and seizures. Frank v. Maryland, 359 U.S. 360, 373 (1959). See also Almeida-Sanchez v. United States, 413 U.S. 266, 275 (1973) (Justice Powell concurring) (suggesting a similar administrative warrant procedure empowering police and immigration officers to conduct roving searches of automobiles in areas near the Nation's borders); id. at 270 n.3 (indicating that majority Jusitces were divided on the validity of such area search warrants); id. at 288 (dissenting Justice White indicating approval); United States v. Martinez-Fuerte, 428 U.S. 543, 547 n.2, 562 n.15 (1976).

[Footnote 73]   452 U.S. 594 (1981).

[Footnote 74] There is no suggestion that warrantless inspections of homes is broadened. Id. at 598, or that warrantless entry under exigent circumstances is curtailed. See, e.g., Michigan v. Tyler, 436 U.S. 499 (1978) (no warrant required for entry by firefighters to fight fire; once there, firefighters may remain for reasonable time to investigate the cause of the fire).

[Footnote 75] Donovan v. Dewey, 452 U.S. 594, 598 -99 (1981).

[Footnote 76] Id. at 596-97, 604-05. Pursuant to the statute, however, the Secretary has promulgated regulations providing for the assessment of civil penalties for denial of entry and Dewey had been assessed a penalty of $1,000. Id. at 597 n.3. It was also true in Barlow's that the Government resorted to civil process upon refusal to admit. 436 U.S. at 317 & n.12.

[Footnote 77] Donovan v. Dewey, 452 U.S. 594, 606 (1981). Duration of regulation will now be a factor in assessing the legitimate expectation of privacy of a business. Ibid. Accord, New York v. Burger, 482 U.S. 691 (1987) (although duration of regulation of vehicle dismantling was relatively brief, history of regulation of junk business generally was lengthy, and current regulation of dismantling was extensive).

[Footnote 78]   482 U.S. 691 (1987).

[Footnote 79]   482 U.S. at 712 (emphasis original).

[Footnote 80]   436 U.S. 499 (1978).

[Footnote 81] The Court also held that, after the fire was extinguished, if fire investigators were unable to proceed at the moment, because of dark, steam, and smoke, it was proper for them to leave and return at daylight without any necessity of complying with its mandate for administrative or criminal warrants. Id. at 510-11. But cf. Michigan v. Clifford, 464 U.S. 287 (1984) (no such justification for search of private residence begun at 1:30 p.m. when fire had been extinguished at 7 a.m.).

[Footnote 82] Wyman v. James, 400 U.S. 309 (1971). It is not clear what rationale the majority utilized. It appears to have proceeded on the assumption that a ''home visit'' was not a search and that the Fourth Amendment does not apply when criminal prosecution is not threatened. Neither premise is valid under Camara and its progeny, although Camara preceded Wyman. Presumably, the case would today be analyzed under the expectation of privacy/need/structural protection theory of the more recent cases.

[Footnote 1 (1996 Supplement)] Soldal v. Cook County, 506 U.S. 56, 61 (1992) (home ''was not only seized, it literally was carried away, giving new meaning to the term 'mobile home''').

[Footnote 83] Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (administrative needs of probation system justify warrantless searches of probationers' homes on less than probable cause); Hudson v. Palmer, 468 U.S. 517, 526 (1984) (no Fourth Amendment protection from search of prison cell); New Jersey v. T.L.O., 469 U.S. 325 (1985) (simple reasonableness standard governs searches of students' persons and effects by public school authorities); O'Connor v. Ortega, 480 U.S. 709 (1987) (reasonableness test for work-related searches of employees' offices by government employer); Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (1989) (neither probable cause nor individualized suspicion is necessary for mandatory drug testing of railway employees involved in accidents or safety violations). All of these cases are discussed infra under the general heading ''Valid Searches and Seizures Without Warrants.''

[Footnote 84] Skinner, supra n.83, 489 U.S. at 627 .

[Footnote 85] Delaware v. Prouse, 440 U.S. 648 (1979). Standards applied in this case had been developed in the contexts of automobile stops at fixed points or by roving patrols in border situations. Almeida-Sanchez v. United States, 413 U.S. 266 (1973); United States v. Brignoni-Ponce, 422 U.S. 873 (1975); United States v. Ortiz, 422 U.S. 891 (1975); United States v. Martinez-Fuerte, 428 U.S. 543 (1976).

[Footnote 86]   428 U.S. 364 (1976). See also Cady v. Dombrowski, 413 U.S. 433 (1973) (sustaining admission of criminal evidence found when police conducted a warrantless search of an out-of-state policeman's automobile following an accident, in order to find and safeguard his service revolver). The Court in both cases emphasized the reduced expectation of privacy in automobiles and the non criminal purposes of the searches.

Valid Searches and Seizures Without Warrants

While the Supreme Court stresses the importance of warrants and has repeatedly referred to searches without warrants as ''exceptional,'' 1 it appears that the greater number of searches, as well as the vast number of arrests, take place without warrants. The Reporters of the American Law Institute Project on a Model Code of Pre- Arraignment Procedure have noted ''their conviction that, as a practical matter, searches without warrant and incidental to arrest have been up to this time, and may remain, of greater practical importance'' than searches pursuant to warrants. ''[T]he evidence on hand . . . compel[s] the conclusion that searches under warrants have played a comparatively minor part in law enforcement, except in connection with narcotics and gambling laws.'' 2 Nevertheless, the Court frequently asserts that ''the most basic constitutional rule in this area is that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a few specially established and well-delineated exceptions.'' 3 The exceptions are said to be ''jealously and carefully drawn,'' 4 and there must be ''a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.'' 5 While the record does indicate an effort to categorize the exceptions, the number and breadth of those exceptions have been growing.

  Detention Short of Arrest: Stop-and-Frisk .--Arrests are subject to the requirements of the Fourth Amendment, but the courts have followed the common law in upholding the right of police officers to take a person into custody without a warrant if they have probable cause to believe that the person to be arrested has committed a felony or has committed a misdemeanor in their presence. 6 The probable cause is, of course, the same standard required to be met in the issuance of an arrest warrant, and must be satisfied by conditions existing prior to the policeman's stop, what is discovered thereafter not sufficing to establish retroactively reasonable cause. 7 There are, however, instances when a policeman's suspicions will have been aroused by someone's conduct or manner, but probable cause for placing such a person under arrest will be lacking. 8 In Terry v. Ohio, 9 the Court almost unanimously approved an on-the-street investigation by a police officer which involved ''patting down'' the subject of the investigation for weapons.

The case arose when a police officer observed three individuals engaging in conduct which appeared to him, on the basis of training and experience, to be the ''casing'' of a store for a likely armed robbery; upon approaching the men, identifying himself, and not receiving prompt identification, the officer seized one of the men, patted the exterior of his clothes, and discovered a gun. Chief Justice Warren for the Court wrote that the Fourth Amendment was applicable to the situation, applicable ''whenever a police officer accosts an individual and restrains his freedom to walk away.'' 10 Since the warrant clause is necessarily and practically of no application to the type of on-the-street encounter present in Terry, the Chief Justice continued, the question was whether the policeman's actions were reasonable. The test of reasonableness in this sort of situation is whether the police officer can point to ''specific and articulable facts which, taken together with rational inferences from those facts,'' would lead a neutral magistrate on review to conclude that a man of reasonable caution would be warranted in believing that possible criminal behavior was at hand and that both an investigative stop and a ''frisk'' was required. 11 Inasmuch as the conduct witnessed by the policeman reasonably led him to believe that an armed robbery was in prospect, he was as reasonably led to believe that the men were armed and probably dangerous and that his safety required a ''frisk.'' Because the object of the ''frisk'' is the discovery of dangerous weapons, ''it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.'' 12 If, in the course of a weapons frisk, ''plain touch'' reveals presence of an object that the officer has probable cause to believe is contraband, the officer may seize that object. Supp.3 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. Supp.4  

Terry did not pass on a host of problems, including the grounds that could permissibly lead an officer to momentarily stop a person on the street or elsewhere in order to ask questions rather than frisk for weapons, the right of the stopped individual to refuse to cooperate, and the permissible response of the police to that refusal. Following that decision, the standard for stops for investigative purposes evolved into one of ''reasonable suspicion of criminal activity.'' That test permits some stops and questioning without probable cause in order to allow police officers to explore the foun dations of their suspicions. 13 While not elaborating a set of rules governing the application of the tests, the Court was initially restrictive in recognizing permissible bases for reasonable suspicion. 14 Extensive instrusions on individual privacy, e.g., transportation to the stationhouse for interrogation and fingerprinting, were invalidated in the absence of probable cause. 15 More recently, however, the Court has taken less restrictive approaches. 16  

It took the Court some time to settle on a test for when a ''seizure'' has occurred, and the Court has recently modified its approach. The issue is of some importance, since it is at this point that Fourth Amendment protections take hold. The Terry Court recognized in dictum that ''not all personal intercourse between policemen and citizens involves 'seizures' of persons,'' and suggested that ''[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred.'' 17 Years later Justice Stewart proposed a similar standard, that a person has been seized ''only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.'' 18 This reasonable perception standard was subse quently endorsed by a majority of Justices, 19 and was applied in several cases in which admissibility of evidence turned on whether a seizure of the person not justified by probable cause or reasonable suspicion had occurred prior to the uncovering of the evidence. No seizure occurred, for example, when INS agents seeking to identify illegal aliens conducted work force surveys within a garment factory; while some agents were positioned at exits, others systematically moved through the factory and questioned employees. 20 This brief questioning, even with blocked exits, amounted to ''classic consensual encounters rather than Fourth Amendment seizures.'' 21 The Court also ruled that no seizure had occurred when police in a squad car drove alongside a suspect who had turned and run down the sidewalk when he saw the squad car approach. Under the circumstances (no siren, flashing lights, display of a weapon, or blocking of the suspect's path), the Court concluded, the police conduct ''would not have communicated to the reasonable person an attempt to capture or otherwise intrude upon [one's] freedom of movement.'' 22  

Soon thereafter, however, the Court departed from the Mendenhall reasonable perception standard and adopted a more formalistic approach, holding that an actual chase with evident intent to capture did not amount to a ''seizure'' because the suspect did not comply with the officer's order to halt. Mendenhall, said the Court in California v. Hodari D., stated a ''necessary'' but not a ''sufficient'' condition for a seizure of the person through show of authority. 23 A Fourth Amendment ''seizure'' of the person, the Court determined, is the same as a common law arrest; there must be either application of physical force (or the laying on of hands), or submission to the assertion of authority. 24 Indications are, however, that Hodari D. does not signal the end of the reasonable perception standard, but merely carves an exception applicable to chases and perhaps other encounters between suspects and police.

Later in the same term the Court ruled that the Mendenhall ''free-to-leave'' inquiry was misplaced in the context of a police sweep of a bus, but that a modified reasonable perception approach still governed. 25 In conducting a bus sweep, aimed at detecting illegal drugs and their couriers, police officers typically board a bus during a stopover at a terminal and ask to inspect tickets, identification, and sometimes luggage of selected passengers. The Court did not focus on whether an ''arrest'' had taken place, as adherence to the Hodari D. approach would have required, but instead suggested that the appropriate inquiry is ''whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter.'' 26 ''When the person is seated on a bus and has no desire to leave,'' the Court explained, ''the degree to which a reasonable person would feel that he or she could leave is not an accurate measure of the coercive effect of the encounter.'' 27  

A Terry search need not be limited to a stop and frisk of the person, but may extend as well to a protective search of the passenger compartment of a car if an officer possesses ''a reasonable belief, based on specific and articulable facts . . . that the suspect is dangerous and . . . may gain immediate control of weapons.'' 28 How lengthy a Terry detention may be varies with the circumstances. In approving a 20-minute detention of a driver made necessary by the driver's own evasion of drug agents and a state police decision to hold the driver until the agents could arrive on the scene, the Court indicated that it is ''appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.'' 29  

Similar principles govern detention of luggage at airports in order to detect the presence of drugs; Terry ''limitations applicable to investigative detentions of the person should define the permissible scope of an investigative detention of the person's luggage on less than probable cause.'' 30 The general rule is that ''when an officer's observations lead him reasonably to believe that a traveler is carrying luggage that contains narcotics, the principles of Terry . . . would permit the officer to detain the luggage briefly to investigate the circumstances that aroused his suspicion, provided that the investigative detention is properly limited in scope.'' 31 Seizure of luggage for an expeditious ''canine sniff'' by a dog trained to detect narcotics can satisfy this test even though seizure of luggage is in effect detention of the traveler, since the procedure results in ''limited disclosure,'' impinges only slightly on a traveler's privacy interest in the contents of personal luggage, and does not constitute a search within the meaning of the Fourth Amendment. 32 By contrast, taking a suspect to an interrogation room on grounds short of probable cause, retaining his air ticket, and retrieving his luggage without his permission taints consent given under such circumstances to open the luggage, since by then the detention had exceeded the bounds of a permissible Terry investigative stop and amounted to an invalid arrest. 33 But the same requirements for brevity of detention and limited scope of investigation are apparently inapplicable to border searches of international travelers, the Court having approved a 24-hour detention of a traveler suspected of smuggling drugs in her alimentary canal. 34  

  Search Incident to Arrest .--The common-law rule permitting searches of the person of an arrestee as an incident to the arrest has occasioned little controversy in the Court. 35 The dispute has centered around the scope of the search. Since it was the stated general rule that the scope of a warrantless search must be strictly tied to and justified by the circumstances which rendered its justification permissible, and since it was the rule that the justification of a search of the arrestee was to prevent destruction of evidence and to prevent access to a weapon, 36 it was argued to the court that a search of the person of the defendant arrested for a traffic offense, which discovered heroin in a crumpled cigarette package, was impermissible, inasmuch as there could have been no destructible evidence relating to the offense for which he was arrested and no weapon could have been concealed in the cigarette package. The Court rejected this argument, ruling that ''no additional justification'' is required for a custodial arrest of a suspect based on probable cause. 37  

However, the Justices have long found themselves embroiled in argument about the scope of the search incident to arrest as it extends beyond the person to the area in which the person is arrested, most commonly either his premises or his vehicle. Certain early cases went both ways on the basis of some fine distinctions, 38 but in Harris v. United States, 39 the Court approved a search of a four-room apartment pursuant to an arrest under warrant for one crime and in which the search turned up evidence of another crime. A year later, in Trupiano v. United States, 40 a raid on a distillery resulted in the arrest of a man found on the premises and a seizure of the equipment; the Court reversed the conviction because the officers had had time to obtain a search warrant and had not done so. ''A search or seizure without a warrant as an incident to a lawful arrest has always been considered to be a strictly limited right. It grows out of the inherent necessities of the situation at the time of the arrest. But there must be something more in the way of necessity than merely a lawful arrest.'' 41 This decision was overruled in United States v. Rabinowitz, 42 in which officers arrested defendant in his one-room office pursuant to an arrest warrant and proceeded to search the room completely. The Court observed that the issue was not whether the officers had the time and opportunity to obtain a search warrant but whether the search incident to arrest was reasonable. Though Rabinowitz referred to searches of the area within the arrestee's ''immediate control,'' 43 it provided no standard by which this area was to be determined, and extensive searches were permitted under the rule. 44  

In Chimel v. California, 45 however, a narrower view was asserted, the primacy of warrants was again emphasized, and a standard by which the scope of searches pursuant to arrest could be ascertained was set out. ''When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee's person and the area 'within his immediate control'--construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.

''There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs--or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant.'' 46  

Although the viability of Chimel had been in doubt for some time as the Court refined and applied its analysis of reasonable and justifiable expectations of privacy, 47 it has in some but not all contexts survived the changed rationale. Thus, in Mincey v. Arizona, 48 the Court rejected a state effort to create a ''homicide-scene'' exception for a warrantless search of an entire apartment extending over four days. The occupant had been arrested and removed and it was true, the Court observed, that a person legally taken into custody has a lessened right of privacy in his person, but he does not have a lessened right of privacy in his entire house. And, in United States v. Chadwick, 49 emphasizing a person's reasonable expectation of privacy in his luggage or other baggage, the Court held that, once police have arrested and immobilized a suspect, validly seized bags are not subject to search without a warrant. 50 Police may, however, in the course of jailing an arrested suspect conduct an inventory search of the individual's personal effects, including the contents of a shoulder bag, since ''the scope of a station-house search may in some circumstances be even greater than those supporting a search immediately following arrest.'' 51  

Still purporting to reaffirm Chimel, the Court in New York v. Belton 52 held that police officers who had made a valid arrest of the occupant of a vehicle could make a contemporaneous search of the entire passenger compartment of the automobile, including containers found therein. Believing that a fairly simple rule understandable to authorities in the field was desirable, the Court ruled ''that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, if not inevitably, within 'the area into which an arrestee might reach in order to grab a weapon or evidentiary ite[m].''' 53  

Chimel has, however, been qualified by another consideration. Not only may officers search areas within the arrestee's immediate control in order to alleviate any threat posed by the arrestee, but they may extend that search if there may be a threat posed by ''unseen third parties in the house.'' A ''protective sweep'' of the entire premises (including an arrestee's home) may be undertaken on less than probable cause if officers have a ''reasonable belief,'' based on ''articulable facts,'' that the area to be swept may harbor an individual posing a danger to those on the arrest scene. 54  

  Vehicular Searches .--In the early days of the automobile the Court created an exception for searches of vehicles, holding in Carroll v. United States 55 that vehicles may be searched without warrants if the officer undertaking the search has probable cause to believe that the vehicle contains contraband. The Court explained that the mobility of vehicles would allow them to be quickly moved from the jurisdiction if time were taken to obtain a warrant. 56  

Initially the Court limited Carroll's reach, holding impermissible the warrantless seizure of a parked automobile merely because it is movable, and indicating that vehicles may be stopped only while moving or reasonably contemporaneously with movement. 57 Also, the Court ruled that the search must be reasonably contemporaneous with the stop, so that it was not permissible to remove the vehicle to the stationhouse for a warrantless search at the convenience of the police. 58  

The Court next developed a reduced privacy rationale to supplement the mobility rationale, explaining that ''the configuration, use, and regulation of automobiles often may dilute the reasonable expectation of privacy that exists with respect to differently situated property.'' 59 '''One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one's residence or as the repository of personal effects. . . . It travels public thoroughfares where both its occupants and its contents are in plain view.''' 60 While motor homes do serve as residences and as repositories for personal effects, and while their contents are often shielded from public view, the Court extended the automobile exception to them as well, holding that there is a diminished expectation of privacy in a mobile home parked in a parking lot and licensed for vehicular travel, hence ''readily mobile.'' 61  

The reduced expectancy concept has broadened police powers to conduct automobile searches without warrants, but they still must have probable cause to search a vehicle 62 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'' Supp.5 of traffic or safety violation or some other criminal activity. Supp.6   By contrast, fixed-checkpoint stops in the absence of any individualized suspicion have been upheld. 64 Once police have validly stopped a vehicle, they may also, based on articulable facts warranting a reasonable belief that weapons may be present, conduct a Terry-type protective search of those portions of the passenger compartment in which a weapon could be placed or hidden. 65 And, in the absence of such reasonable suspicion as to weapons, police may seize contraband and suspicious items ''in plain view'' inside the passenger compartment. 66  

Once police have probable cause to believe there is contraband in a vehicle, they may remove it from the scene to the stationhouse in order to conduct a search, without thereby being required to obtain a warrant. ''[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.'' 67 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. 68 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. 69  

It is not lawful for the police in undertaking a warrantless search of an automobile to extend the search to the passengers therein. 70 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. 71 Luggage and other closed containers found in automobiles may also be subjected to warrantless searches based on probable cause, the same rule now applying whether the police have probable cause to search only the containers 72 or whether they have probable cause to search the automobile for something capable of being held in the container. 73  

  Vessel Searches .--Not only is the warrant requirement inapplicable to brief stops of vessels, but also none of the safeguards applicable to stops of automobiles on less than probable cause are necessary predicates to stops of vessels. In United States v. Villamonte-Marquez, 74 the Court upheld a random stop and boarding of a vessel by customs agents, lacking any suspicion of wrongdoing, for purpose of inspecting documentation. The boarding was authorized by statute derived from an act of the First Congress, 75 and hence had ''an impressive historical pedigree'' carrying with it a presumption of constitutionality. Moreover, ''important factual differences between vessels located in waters offering ready access to the open sea and automobiles on principal thoroughfares in the border area'' justify application of a less restrictive rule for vessel searches. The reason why random stops of vehicles have been held impermissible under the Fourth Amendment, the Court explained, is that stops at fixed checkpoints or roadblocks are both feasible and less subject to abuse of discretion by authorities. ''But no reasonable claim can be made that permanent checkpoints would be practical on waters such as these where vessels can move in any direction at any time and need not follow established 'avenues' as automobiles must do.'' 76 Because there is a ''substantial'' governmental interest in enforcing documentation laws, ''especially in waters where the need to deter or apprehend smugglers is great,'' the Court found the ''limited'' but not ''minimal'' intrusion occasioned by boarding for documentation inspection to be reasonable. 77 Dis senting Justice Brennan argued that the Court for the first time was approving ''a completely random seizure and detention of persons and an entry onto private, noncommercial premises by police officers, without any limitations whatever on the officers' discretion or any safeguards against abuse.'' 78  

Footnotes

[Footnote 1] 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).

[Footnote 2] American Law Institute, A Model Code of Pre-Arraignment Procedure, Tent. Draft No. 3 (Philadelphia: 1970), xix.

[Footnote 3] 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).

[Footnote 4] Jones v. United States, 357 U.S. 493, 499 (1958).

[Footnote 5] 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), and the Court's development of its privacy expectation tests, supra, pp.1206-09, substantially changed the content of that standard.

[Footnote 6] United States v. Watson, 423 U.S. 411 (1976). See supra, p.1209.

[Footnote 7] 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).

[Footnote 8] ''The police may not arrest upon mere suspicion but only on 'probable cause.''' Mallory v. United States, 354 U.S. 449, 454 (1957).

[Footnote 9]   392 U.S. 1 (1968). Only Justice Douglas dissented. Id. at 35.

[Footnote 10] Id. at 16. See id. at 16-20.

[Footnote 11] Id. at 20, 21, 22.

[Footnote 12] Id. 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; impermissible, because he lacked reasonable basis for frisk and in any event his search exceeded permissible scope of weapons frisk); Adams v. Williams, 407 U.S. 143 (1972) (acting on tip that defendant was sitting in his car with narcotics and firearm, police approached, asked defendant to step out, and initiated frisk and discovered weapon when he merely rolled window down; justifiable); 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).

[Footnote 3 (1996 Supplement)] Minnesota v. Dickerson, 508 U.S. 366 (1993).

[Footnote 4 (1996 Supplement)] Id. at 2237, 2139. 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.

[Footnote 13] 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).

[Footnote 14] 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 travelling 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).

[Footnote 15] Davis v. Mississippi, 394 U.S. 721 (1969); Dunaway v. New York, 442 U.S. 200 (1979).

[Footnote 16] See, e.g., 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); United States v. Sokolow, 490 U.S. 1 , (1989) (airport stop based on drug courier profile may rely on a combination of factors that individually may be ''quite consistent with innocent travel'').

[Footnote 17]   392 U.S. at 19 , n.16.

[Footnote 18] United States v. Mendenhall, 446 U.S. 544, 554 (1980).

[Footnote 19] 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.

[Footnote 20] INS v. Delgado, 466 U.S. 210 (1984).

[Footnote 21] Id. at 221.

[Footnote 22] Michigan v. Chesternut, 486 U.S. 567, 575 (1988).

[Footnote 23]   499 U.S. 621, 628 (1991). As in Michigan v. Chesternut, supra n.22, the suspect dropped incriminating evidence while being chased.

[Footnote 24] 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).

[Footnote 25] Florida v. Bostick, (1991).

[Footnote 26] Id. at 2387.

[Footnote 27] Id. 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.

[Footnote 28] 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).

[Footnote 29] 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).

[Footnote 30] United States v. Place, 462 U.S. 696, 709 (1983).

[Footnote 31] Id. at 706.

[Footnote 32]   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.

[Footnote 33] 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.

[Footnote 34] United States v. Montoya de Hernandez, 473 U.S. 531 (1985).

[Footnote 35] 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).

[Footnote 36] Terry v. Ohio, 392 U.S. 1, 19 (1968); Chimel v. California, 395 U.S. 752, 762 , 763 (1969).

[Footnote 37] 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).

[Footnote 38] 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).

[Footnote 39]   331 U.S. 145 (1947).

[Footnote 40]   334 U.S. 699 (1948).

[Footnote 41] Id. at 708.

[Footnote 42]   339 U.S. 56 (1950).

[Footnote 43] Id. at 64.

[Footnote 44] 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).

[Footnote 45]   395 U.S. 752 (1969).

[Footnote 46] Id. at 762-63.

[Footnote 47] Supra, pp.1206-09. 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.

[Footnote 48]   437 U.S. 385 (1978). The expectancy distinction is at 391.

[Footnote 49]   433 U.S. 1 (1977). Defendant and his luggage, a footlocker, had been removed to the police station, where the search took place.

[Footnote 50] 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).

[Footnote 51] 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).

[Footnote 52]   453 U.S. 454 (1981).

[Footnote 53] Id. 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.'' Id. at 460-61 n.4.

[Footnote 54] 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.

[Footnote 55]   267 U.S. 132 (1925). Carroll was a Prohibition-era liquor case, whereas a great number of modern automobile cases involve drugs.

[Footnote 56] Id. 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.

[Footnote 57] 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.

[Footnote 58] Preston v. United States, 376 U.S. 364 (1964); Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216 (1968).

[Footnote 59] Arkansas v. Sanders, 442 U.S. 753, 761 (1979).

[Footnote 60] 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).

[Footnote 61] 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'').

[Footnote 62] 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, 116 S. Ct. 2485, 2487 (1996).

[Footnote 5 (1996 Supplement)] Delaware v. Prouse, 440 U.S. 648, 663 (1979) (discretionary random stops of motorists to check driver's license and registration papers and safety features of cars 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). 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.

[Footnote 6 (1996 Supplement)] 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, 116 S. Ct. 1769 (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.

[Footnote 63] Deleted in 1996 Supplement.

[Footnote 64] 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). See also 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).

[Footnote 65] Michigan v. Long, 463 U.S. 1032, 1049 (1983) (holding that contraband found in the course of such a search is admissible).

[Footnote 66] Texas v. Brown, 460 U.S. 730 (1983). Similarly, since 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).

[Footnote 67] Michigan v. Thomas, 458 U.S. 259, 261 (1982). 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).

[Footnote 68] Cardwell v. Lewis, 417 U.S. 583 (1974). Justice Powell concurred on other grounds.

[Footnote 69] 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).

[Footnote 70] United States v. Di Re, 332 U.S. 581 (1948). While Di Re is now an old case, it appears still to control. See Ybarra v. Illinois, 444 U.S. 85, 94 -96 (1979).

[Footnote 71] Rakas v. Illinois, 439 U.S. 128 (1978).

[Footnote 72] California v. Acevedo, 500 U.S. 565 (1991) (overruling Arkansas v. Sanders, 442 U.S. 753 (1979).

[Footnote 73] 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).

[Footnote 74]   462 U.S. 579 (1983). The opinion of the Court, written by Justice Rehnquist, was joined by Chief Justice Burger and by Justices White, Blackmun, Powell, and O'Connor. Justice Brennan's dissent was joined by Justice Marshall and, on mootness but not on the merits, by Justice Stevens.

[Footnote 75] 19 U.S.C. Sec. 1581(a), derived from Sec. 31 of the Act of Aug. 4, 1790, ch.35, 1 Stat. 164.

[Footnote 76]   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 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).

[Footnote 77]   462 U.S. at 593 .

[Footnote 78]   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 (supra p.1239, n.63) should govern. 462 U.S. at 599 , 601.

Consent Searches .--Fourth Amendment rights, like other constitutional rights, may be waived, and one may consent to search of his person or premises by officers who have not complied with the Amendment. 79 The Court, however, has insisted that the burden is on the prosecution to prove the voluntariness of the consent 80 and awareness of the right of choice. 81 Reviewing courts must determine on the basis of the totality of the circumstances whether consent has been freely given or has been coerced. Actual knowledge of the right to refuse consent is not essential to the issue of voluntariness, and therefore police are not required to acquaint a person with his rights, as through a Fourth Amendment version of Miranda warnings. 82 But consent will not be regarded as voluntary when the officer asserts his official status and claim of right and the occupant yields to these factors rather than makes his own determination to admit officers. 83 When consent is obtained through the deception of an undercover officer or an informer gaining admission without, of course, advising a suspect who he is, the Court has held that the suspect has simply assumed the risk that an invitee would betray him, and evidence obtained through the deception is admissible. 84  

Additional issues arise in determining the validity of consent to search when consent is given not by the suspect but by a third party. In the earlier cases, third party consent was deemed sufficient if that party ''possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.'' 85 Now, however, actual common authority over the premises is no longer required; it is enough if the searching officer had a reasonable but mistaken belief that the third party had common authority and could consent to the search. 86  

  Border Searches .--''That searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border, should, by now, require no extended demonstration.'' 87 Authorized by the First Congress, 88 the customs search in these circumstances requires no warrant, no probable cause, not even the showing of some degree of suspicion that accompanies even investigatory stops. 89 Moreover, while prolonged detention of travelers beyond the routine customs search and inspection must be justified by the Terry standard of reasonable suspicion having a particularized and objective basis, 90 Terry protections as to the length and intrusiveness of the search do not apply. 91  

Inland stoppings and searches in areas away from the borders are a different matter altogether. Thus, in Almeida-Sanchez v. United States, 92 the Court held that a warrantless stop and search of defendant's automobile on a highway some 20 miles from the border by a roving patrol lacking probable cause to believe that the vehicle contained illegal aliens violated the Fourth Amendment. Similarly, the Court invalidated an automobile search at a fixed checkpoint well removed from the border; while agreeing that a fixed checkpoint probably gave motorists less cause for alarm than did roving patrols, the Court nonetheless held that the invasion of privacy entailed in a search was just as intrusive and must be justified by a showing of probable cause or consent. 93 On the other hand, when motorists are briefly stopped, not for purposes of a search but in order that officers may inquire into their residence status, either by asking a few questions or by checking papers, different results are achieved, so long as the stops are not truly random. Roving patrols may stop vehicles for purposes of a brief inquiry, provided officers are ''aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion'' that an automobile contains illegal aliens; in such a case the interference with Fourth Amendment rights is ''modest'' and the law enforcement interests served are significant. 94 Fixed checkpoints provide additional safeguards; here officers may halt all vehicles briefly in order to question occupants even in the absence of any reasonable suspicion that the particular vehicle contains illegal aliens. 95  

  ''Open Fields.'' --In Hester v. United States, 96 the Court held that the Fourth Amendment did not protect ''open fields'' and that, therefore, police searches in such areas as pastures, wooded areas, open water, and vacant lots need not comply with the requirements of warrants and probable cause. The Court's announcement in Katz v. United States 97 that the Amendment protects ''people not places'' cast some doubt on the vitality of the open fields principle, but all such doubts were cast away in Oliver v. United States. 98 Invoking Hester's reliance on the literal wording of the Fourth Amendment (open fields are not ''effects'') and distinguishing Katz, the Court ruled that the open fields exception applies to fields that are fenced and posted. ''[A]n individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home.'' 99 Nor may an individual demand privacy for activities conducted within outbuildings and visible by trespassers peering into the buildings from just outside. 100 Even within the curtilage and notwithstanding that the owner has gone to the extreme of erecting a 10- foot high fence in order to screen the area from ground-level view, there is no reasonable expectation of privacy from naked-eye inspection from fixed-wing aircraft flying in navigable airspace. 101 Similarly, naked-eye inspection from helicopters flying even lower contravenes no reasonable expectation of privacy. 102 And aerial photography of commercial facilities secured from ground-level public view is permissible, the Court finding such spaces more analogous to open fields than to the curtilage of a dwelling. 103  

  ''Plain View.'' --Somewhat similar in rationale is the rule that objects falling in the ''plain view'' of an officer who has a right to be in the position to have that view are subject to seizure without a warrant 104 or that if the officer needs a warrant or probable cause to search and seize his lawful observation will provide grounds therefor. 105 The plain view doctrine is limited, however, by the probable cause requirement: officers must have probable cause to believe that items in plain view are contraband before they may search or seize them. 106  

The Court has analogized from the plain view doctrine to hold that once officers have lawfully observed contraband, ''the owner's privacy interest in that item is lost,'' and officers may reseal a container, trace its path through a controlled delivery, and seize and reopen the container without a warrant. 107  

  Public Schools .--In New Jersey v. T.L.O., 108 the Court set forth the principles governing searches by public school authorities. The Fourth Amendment applies to searches conducted by public school officials because ''school officials act as representatives of the State, not merely as surrogates for the parents.'' 109 However, ''the school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject.'' 110 Neither the warrant requirement nor the probable cause standard is appropriate, the Court ruled. Instead, a simple reasonableness standard governs all searches of students' persons and effects by school authorities. 111 A search must be reasonable at its inception, i.e., there must be ''reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.'' 112 School searches must also be reasonably related in scope to the circumstances justifying the interference, and ''not excessively intrusive in light of the age and sex of the student and the nature of the infraction.'' 113 In applying these rules, the Court upheld as reasonable the search of a student's purse to determine whether the student, accused of violating a school rule by smoking in the lavatory, possessed cigarettes. The search for cigarettes uncovered evidence of drug activity held admissible in a prosecution under the juvenile laws.

  Government Offices .--Similar principles apply to a public employer's work-related search of its employees' offices, desks, or file cabinets, except that in this context the Court distinguished searches conducted for law enforcement purposes. In O'Connor v. Ortega, 114 a majority of Justices agreed, albeit on somewhat differing rationales, that neither a warrant nor a probable cause requirement should apply to employer searches ''for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct.'' 115 Four Justices would require a case-by-case inquiry into the reasonableness of such searches; 116 one would hold that such searches ''do not violate the Fourth Amendment.'' 117  

  Prisons and Regulation of Probation .--Searches of prison cells by prison administrators are not limited even by a reasonableness standard, the Court having held that ''the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell.'' 118 Thus, prison administrators may conduct random ''shakedown'' searches of inmates' cells without the need to adopt any established practice or plan, and inmates must look to the Eighth Amendment or to state tort law for redress against harassment, malicious property destruction, and the like.

Neither a warrant nor probable cause is needed for an administrative search of a probationer's home. It is enough, the Court ruled in Griffin v. Wisconsin, that such a search was conducted pursuant to a valid regulation that itself satisfies the Fourth Amendment's reasonableness standard (e.g., by requiring ''reasonable grounds'' for a search). 119 ''A State's operation of a probation system, like its operation of a school, government office or prison, or its supervision of a regulated industry, . . . presents 'special needs' beyond normal law enforcement that may justify departures from the usual warrant and probable cause requirements.'' 120 ''Probation, like incarceration, is a form of criminal sanction,'' the Court noted, and a warrant or probable cause requirement would interfere with the ''ongoing [non- adversarial] supervisory relationship'' required for proper functioning of the system. 121  

  Drug Testing .--In two 1989 decisions the Court held that no warrant, probable cause, or even individualized suspicion is required for mandatory drug testing of certain classes of railroad and public employees. In each case, ''special needs beyond the normal need for law enforcement'' were identified as justifying the drug testing. In Skinner v. Railway Labor Executives' Ass'n, 122 the Court upheld regulations requiring railroads to administer blood, urine, and breath tests to employees involved in certain train accidents or violating certain safety rules; upheld in National Treasury Employees Union v. Von Raab 123 was a Customs Service screening program requiring urinalysis testing of employees seeking transfer or promotion to positions having direct involvement with drug interdiction, or to positions requiring the incumbent to carry firearms. The Court in Skinner found a ''compelling'' governmental interest in testing the railroad employees without any showing of individualized suspicion, since operation of trains by anyone impaired by drugs ''can cause great human loss before any signs of impair ment become noticeable.'' 124 By contrast, the intrusions on privacy were termed ''limited.'' Blood and breath tests were passed off as routine; the urine test, while more intrusive, was deemed permissible because of the ''diminished expectation of privacy'' in employees having some responsibility for safety in a pervasively regulated industry. 125 The lower court's emphasis on the limited effectiveness of the urine test (it detects past drug use but not necessarily the level of impairment) was misplaced, the Court ruled. It is enough that the test may provide some useful information for an accident investigation; in addition, the test may promote deterrence as well as detection of drug use. 126 In Von Raab the governmental interests underlying the Customs Service's screening program were also termed ''compelling'': to ensure that persons entrusted with a firearm and the possible use of deadly force not suffer from drug-induced impairment of perception and judgment, and that ''front-line [drug] interdiction personnel [be] physically fit, and have unimpeachable integrity and judgment.'' 127 The possibly ''substantial'' interference with privacy interests of these Customs employees was justified, the Court concluded, because, ''[u]nlike most private citizens or government employees generally, they have a ''diminished expectation of privacy.'' 128  

Emphasizing the ''special needs'' of the public school context, reflected in the ''custodial and tutelary'' power that schools exercise over students, and also noting schoolchildren's diminished expectation of privacy, the Court in Vernonia School District v. Acton Supp.7 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.'' Supp.8 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.'' Supp.9 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. 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. Supp.10  

Footnotes

[Footnote 79] 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).

[Footnote 80] Bumper v. North Carolina, 391 U.S. 543 (1968).

[Footnote 81] Johnson v. United States, 333 U.S. 10, 13 (1948).

[Footnote 82] Schneckloth v. Bustamonte, 412 U.S. 218, 231 -33 (1973).

[Footnote 83] 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).

[Footnote 84] 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 Messiah 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).

[Footnote 85] 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).

[Footnote 86] 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).

[Footnote 87] 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).

[Footnote 88] Act of July 31, 1789, ch.5, Sec. Sec. 23, Sec. 24, 1 Stat. 43. See 19 U.S.C. Sec. Sec. 507, 1581, 1582.

[Footnote 89] 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).

[Footnote 90] 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).

[Footnote 91] Id. A traveler suspected of alimentary canal drug smuggling 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.

[Footnote 92]   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).

[Footnote 93] United States v. Ortiz, 422 U.S. 891 (1975).

[Footnote 94] 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), where border agents did have grounds for reasonable suspicion that the vehicle they stopped contained illegal aliens.

[Footnote 95] 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).

[Footnote 96]   265 U.S. 57 (1924). See also Air Pollution Variance Bd. v. Western Alfalfa Corp., 416 U.S. 86 (1974).

[Footnote 97]   389 U.S. 347, 353 (1967). Cf. Cady v. Dombrowski, 413 U.S. 433, 450 (1973) (citing Hester approvingly).

[Footnote 98]   466 U.S. 170 (1984) (approving warrantless intrusion past no trespassing signs and around locked gate, to view field not visible from outside property).

[Footnote 99] Id. 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'').

[Footnote 100] 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'').

[Footnote 101] 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 fence surrounding home, used for processing chemicals, and separated from public access only by series of livestock fences, by chained and locked driveway, and by one-half mile's distance, is not within curtilage).

[Footnote 102] Florida v. Riley, 488 U.S. 445 (1989) (view through partially open roof of greenhouse).

[Footnote 103] Dow Chemical Co. v. United States, 476 U.S. 227 (1986) (suggesting that aerial photography of the curtilage would be impermissible).

[Footnote 104] 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).

[Footnote 105] 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).

[Footnote 106] 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).

[Footnote 107] 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).

[Footnote 108]   469 U.S. 325 (1985).

[Footnote 109] Id. at 336 (1984).

[Footnote 110] Id. at 340.

[Footnote 111] 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.

[Footnote 112]   469 U.S. at 342 .

[Footnote 113] Id.

[Footnote 114]   480 U.S. 709 (1987).

[Footnote 115]   480 U.S. at 725 . Not at issue was whether there must be individualized suspicion for investigations of work-related misconduct.

[Footnote 116] This position was stated in Justice O'Connor's plurality opinion, joined by Chief Justice Rehnquist and by Justices White and Powell.

[Footnote 117]   480 U.S. at 732 (Scalia, J., concurring in judgment).

[Footnote 118] Hudson v. Palmer, 468 U.S. 517, 526 (1984).

[Footnote 119]   483 U.S. 868 (1987) (search based on information from police detective that there was or might be contraband in probationer's apartment).

[Footnote 120]   483 U.S. at 873 -74.

[Footnote 121] Id. at 718, 721.

[Footnote 122]   489 U.S. 602 (1989).

[Footnote 123]   489 U.S. 656 (1989).

[Footnote 124]   489 U.S. at 628 .

[Footnote 125] Id. at 628.

[Footnote 126] Id. at 631-32.

[Footnote 127] 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.

[Footnote 128] Id. at 672.

[Footnote 7 (1996 Supplement)] 115 S. Ct. 2386 (1995).

[Footnote 8 (1996 Supplement)] Id. at 2394-95.

[Footnote 9 (1996 Supplement)] Id. at 2395.

[Footnote 10 (1996 Supplement)] Id. at 2396.

[Footnotes 129-130] Deleted in 1996 Supplement.

Electronic Surveillance and the Fourth Amendment

  The Olmstead Case .--With the invention of the microphone, the telephone, and the dictograph recorder, it became possible to ''eavesdrop'' with much greater secrecy and expediency. Inevitably, the use of electronic devices in law enforcement was challenged, and in 1928 the Court reviewed convictions obtained on the basis of evidence gained through taps on telephone wires in violation of state law. On a five-to- four vote, the Court held that wiretapping was not within the confines of the Fourth Amendment. 131 Chief Justice Taft, writing the opinion of the Court, relied on two lines of argument for the conclusion. First, inasmuch as the Amendment was designed to protect one's property interest in his premises, there was no search so long as there was no physical trespass on premises owned or controlled by a defendant. Second, all the evidence obtained had been secured by hearing, and the interception of a conversation could not qualify as a seizure, for the Amendment referred only to the seizure of tangible items. Furthermore, the violation of state law did not render the evidence excludible, since the exclusionary rule operated only on evidence seized in violation of the Constitution. 132  

  Federal Communications Act .--Six years after the decision in the Olmstead case, Congress enacted the Federal Communications Act and included in Sec. 605 of the Act a broadly worded proscription on which the Court seized to place some limitation upon governmental wiretapping. 133 Thus, in Nardone v. United States, 134 the Court held that wiretapping by federal officers could violate Sec. 605 if the officers both intercepted and divulged the contents of the conversation they overheard, and that testimony in court would constitute a form of prohibited divulgence. Such evidence was therefore excluded, although wiretapping was not illegal under the Court's interpretation if the information was not used outside the governmental agency. Because Sec. 605 applied to intrastate as well as interstate transmissions, 135 there was no question about the applicability of the ban to state police officers, but the Court declined to apply either the statute or the due process clause to require the exclusion of such evidence from state criminal trials. 136 State efforts to legalize wiretapping pursuant to court orders were held by the Court to be precluded by the fact that Congress in Sec. 605 had intended to occupy the field completely to the exclusion of the States. 137  

  Nontelephonic Electronic Surveillance .--The trespass rationale of Olmstead was utilized in cases dealing with ''bugging'' of premises rather than with tapping of telephones. Thus, in Goldman v. United States, 138 the Court found no Fourth Amendment violation when a listening device was placed against a party wall so that conversations were overheard on the other side. But when officers drove a ''spike mike'' into a party wall until it came into contact with a heating duct and thus broadcast defendant's conversations, the Court determined that the trespass brought the case within the Amendment. 139 In so holding, the Court, without alluding to the matter, overruled in effect the second rationale of Olmstead, the premise that conversations could not be seized.

  The Berger and Katz Cases .--In Berger v. New York, 140 the Court confirmed the obsolesence of the alternative holding in Olmstead that conversations could not be seized in the Fourth Amendment sense. 141 Berger held unconstitutional on its face a state eavesdropping statute under which judges were authorized to issue warrants permitting police officers to trespass on private premises to install listening devices. The warrants were to be issued upon a showing of ''reasonable ground to believe that evidence of crime may be thus obtained, and particularly describing the person or persons whose communications, conversations or discussions are to be overheard or recorded.'' For the five-Justice majority, Justice Clark discerned several constitutional defects in the law. ''First, . . . eavesdropping is authorized without requiring belief that any particular offense has been or is being committed; nor that the 'property' sought, the conversations, be particularly described.

''The purpose of the probable-cause requirement of the Fourth Amendment to keep the state out of constitutionally protected areas until it has reason to believe that a specific crime has been or is being committed is thereby wholly aborted. Likewise the statute's failure to describe with particularity the conversations sought gives the officer a roving commission to 'seize' any and all conversations. It is true that the statute requires the naming of 'the person or persons whose communications, conversations or discussions are to be overheard or recorded. . . .' But this does no more than identify the person whose constitutionally protected area is to be invaded rather than 'particularly describing' the communications, conversations, or discussions to be seized. . . . Secondly, authorization of eavesdropping for a two-month period is the equivalent of a series of intrusions, searches, and seizures pursuant to a single showing of probable cause. Prompt execution is also avoided. During such a long and continuous (24 hours a day) period the con versations of any and all persons coming into the area covered by the device will be seized indiscriminately and without regard to their connection with the crime under investigation. Moreover, the statute permits. . . extensions of the original two-month period--presumably for two months each--on a mere showing that such extension is 'in the public interest.'. . . Third, the statute places no termination date on the eavesdrop once the conversation sought is seized. . . . Finally, the statute's procedure, necessarily because its success depends on secrecy, has no requirement for notice as do conventional warrants, nor does it overcome this defect by requiring some showing of special facts. On the contrary, it permits unconsented entry without any showing of exigent circumstances. Such a showing of exigency, in order to avoid notice, would appear more important in eavesdropping, with its inherent dangers, than that required when conventional procedures of search and seizure are utilized. Nor does the statute provide for a return on the warrant thereby leaving full discretion in the officer as to the use of seized conversations of innocent as well as guilty parties. In short, the statute's blanket grant of permission to eavesdrop is without adequate judicial supervision or protective procedures.'' 142  

Both Justices Black and White in dissent accused the Berger majority of so construing the Fourth Amendment that no wiretapping- eavesdropping statute could pass constitutional scrutiny, 143 and in Katz v. United States, 144 the Court in an opinion by one of the Berger dissenters, Justice Stewart, modified some of its language and pointed to Court approval of some types of statutorily-authorized electronic surveillance. Just as Berger had confirmed that one rationale of the Olmstead decision, the inapplicability of ''seizure'' to conversations, was no longer valid, Katz disposed of the other rationale. In the latter case, officers had affixed a listening device to the outside wall of a telephone booth regularly used by Katz and activated it each time he entered; since there had been no physical trespass into the booth, the lower courts held the Fourth Amendment not relevant. The Court disagreed, saying that ''once it is recognized that the Fourth Amendment protects peo ple--and not simply 'areas'--against unreasonable searches and seizures, it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure.'' 145 Because the surveillance of Katz's telephone calls had not been authorized by a magistrate, it was invalid; however, the Court thought that ''it is clear that this surveillance was so narrowly circumscribed that a duly authorized magistrate, properly notified of the need for such investigation, specifically informed of the basis on which it was to proceed, and clearly apprised of the precise intrusion it would entail, could constitutionally have authorized, with appropriate safeguards, the very limited search and seizure that the Government asserts in fact took place.'' 146 The notice requirement, which had loomed in Berger as an obstacle to successful electronic surveillance, was summarily disposed of. 147 Finally, Justice Stewart observed that it was unlikely that electronic surveillance would ever come under any of the established exceptions so that it could be conducted without prior judicial approval. 148  

Following Katz, Congress enacted in 1968 a comprehensive statute authorizing federal officers and permitting state officers pursuant to state legislation complying with the federal law to seek warrants for electronic surveillance to investigate violations of prescribed classes of criminal legislation. 149 The Court has not yet had occasion to pass on the federal statute and to determine whether its procedures and authorizations comport with the standards sketched in Osborn, Berger, and Katz or whether those standards are somewhat more flexible than they appear to be on the faces of the opinions. 150  

  Warrantless ''National Security'' Electronic Surveillance .--In Katz v. United States, 151 Justice White sought to preserve for a future case the possibility that in ''national security cases'' electronic surveillance upon the authorization of the President or the Attorney General could be permissible without prior judicial approval. The Executive Branch then asserted the power to wiretap and to ''bug'' in two types of national security situations, against domestic subversion and against foreign intelligence operations, first basing its authority on a theory of ''inherent'' presidential power and then in the Supreme Court withdrawing to the argument that such surveillance was a ''reasonable'' search and seizure and therefore valid under the Fourth Amendment. Unanimously, the Court held that at least in cases of domestic subversive investigations, compliance with the warrant provisions of the Fourth Amendment was required. 152 Whether or not a search was reasonable, wrote Justice Powell for the Court, was a question which derived much of its answer from the warrant clause; except in a few narrowly circumscribed classes of situations, only those searches conducted pursuant to warrants were reasonable. The Government's duty to preserve the national security did not override the gurarantee that before government could invade the privacy of its citizens it must present to a neutral magistrate evidence sufficient to support issuance of a warrant authorizing that invasion of privacy. 153 This protection was even more needed in ''national security cases'' than in cases of ''ordinary'' crime, the Justice continued, inasmuch as the tendency of government so often is to regard opponents of its policies as a threat and hence to tread in areas protected by the First Amendment as well as by the Fourth. 154 Rejected also was the argument that courts could not appreciate the intricacies of investigations in the area of national security nor preserve the secrecy which is required. 155  

The question of the scope of the President's constitutional powers, if any, remains judicially unsettled. 156 Congress has acted, however, providing for a special court to hear requests for warrants for electronic surveillance in foreign intelligence situations, and permitting the President to authorize warrantless surveillance to acquire foreign intelligence information provided that the communications to be monitored are exclusively between or among foreign powers and there is no substantial likelihood any ''United States person'' will be overheard. 157  

Footnotes

[Footnote 131] Olmstead v. United States, 277 U.S. 438 (1928).

[Footnote 132] Among the dissenters were Justice Holmes, who characterized ''illegal'' wiretapping as ''dirty business,'' id. at 470, and Justice Brandeis, who contributed to his opinion the famous peroration about government as ''the potent, the omnipresent, teacher'' which ''breeds contempt for law'' among the people by its example. Id. at 485. More relevant here was his lengthy argument rejecting the premises of the majority, an argument which later became the law of the land. (1) ''To protect [the right to be left alone], every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.'' Id. at 478. (2) ''There is, in essence, no difference between the sealed letter and the private telephone message. . . . The evil incident to invasion of the privacy of the telephone is far greater than that involved in tampering with the mails. Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded and all conversations between them upon any subject . . . may be overheard.'' Id. at 475-76.

[Footnote 133] Ch.652, 48 Stat. 1103 (1934), providing, inter alia, that ''. . . no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, purport, effect, or meaning of such intercepted communication to any person.'' Nothing in the legislative history indicated what Congress had in mind in including this language. The section, which appeared at 47 U.S.C. Sec. 605, was rewritten by Title III of the Omnibus Crime Act of 1968, 82 Stat. 22, Sec. 803, so that the ''regulation of the interception of wire or oral communications in the future is to be governed by'' the provisions of Title III. S. Rep. No. 1097, 90th Cong., 2d Sess. 107-08 (1968).

[Footnote 134]   302 U.S. 379 (1937). Derivative evidence, that is, evidence discovered as a result of information obtained through a wiretap, was similarly inadmissible, Nardone v. United States, 308 U.S. 338 (1939), although the testimony of witnesses might be obtained through the exploitation of wiretap information. Goldstein v. United States, 316 U.S. 114 (1942). Eavesdropping on a conversation on an extension telephone with the consent of one of the parties did not violate the statute. Rathbun v. United States, 355 U.S. 107 (1957).

[Footnote 135] Weiss v. United States, 308 U.S. 321 (1939).

[Footnote 136] Schwartz v. Texas, 344 U.S. 199 (1952). At this time, evidence obtained in violation of the Fourth Amendment could be admitted in state courts. Wolf v. Colorado, 338 U.S. 25 (1949). Although Wolf was overruled by Mapp v. Ohio, 367 U.S. 643 (1961), it was some seven years later and after wiretapping itself had been made subject to the Fourth Amendment that Schwartz was overruled in Lee v. Florida, 392 U.S. 378 (1968).

[Footnote 137] Bananti v. United States, 355 U.S. 96 (1957).

[Footnote 138]   316 U.S. 129 (1942).

[Footnote 139] Silverman v. United States, 365 U.S. 505 (1961). See also Clinton v. Virginia, 377 U.S. 158 (1964) (physical trespass found with regard to amplifying device stuck in a partition wall with a thumb tack).

[Footnote 140]   388 U.S. 41 (1967).

[Footnote 141] Id. at 50-53.

[Footnote 142] Id. at 58-60. Justice Stewart concurred because he thought that the affidavits in this case had not been sufficient to show probable cause, but he thought the statute constitutional in compliance with the Fourth Amendment. Id. at 68. Justice Black dissented, arguing that the Fourth Amendment was not applicable to electronic eavesdropping but that in any event the ''search'' authorized by the statute was reasonable. Id. at 70. Justice Harlan dissented, arguing that the statute with its judicial gloss was in compliance with the Fourth Amendment. Id. 89. Justice White thought both the statute and its application in this case were constitutional. Id. at 107.

[Footnote 143] Id. at 71, 113.

[Footnote 144]   389 U.S. 347 (1967).

[Footnote 145] Id. at 353. ''We conclude that the underpinnings of Olmstead and Goldman have been so eroded by our subsequent decisions that the 'trespass' doctrine there enunciated can no longer be regarded as controlling. The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a 'search and seizure' within the meaning of the Fourth Amendment.'' Id.

[Footnote 146] Id. at 354. The ''narrowly circumscribed'' nature of the surveillance was made clear by the Court in the immediately preceding passage. ''[The Government agents] did not begin their electronic surveillance until investigation of the petitioner's activities had established a strong probability that he was using the telephone in question to transmit gambling information to persons in other States, in violation of federal law. Moreover, the surveillance was limited, both in scope and in duration, to the specific purpose of establishing the contents of the petitioner's unlawful telephonic communications. The agents confined their surveillance to the brief periods during which he used the telephone booth, and they took great care to overhear only the conversations of the petitioner himself.'' Id. For similar emphasis upon precision and narrow circumscription, see Osborn v. United States, 385 U.S. 323, 329 -30 (1966).

[Footnote 147] ''A conventional warrant ordinarily serves to notify the suspect of an intended search . . . . In omitting any requirement of advance notice, the federal court . . . simply recognized, as has this Court, that officers need not announce their purpose before conducting an otherwise authorized search if such an announcement would provoke the escape of the suspect or the destruction of critical evidence.'' 389 U.S. at 355 n.16.

[Footnote 148] Id. at 357-58. Justice Black dissented, feeling that the Fourth Amendment applied only to searches for and seizures of tangible things and not conversations. Id. at 364. Two ''beeper'' decisions support the general applicability of the warrant requirement if electronic surveillance will impair legitimate privacy interests. Compare United States v. Knotts, 460 U.S. 276 (1983) (no Fourth Amendment violation in relying on a beeper, installed without warrant, to aid in monitoring progress of a car on the public roads, since there is no legitimate expectation of privacy in destination of travel on the public roads), with United States v. Karo, 468 U.S. 705 (1984) (beeper installed without a warrant may not be used to obtain information as to the continuing presence of an item within a private residence).

[Footnote 149] Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 211, 18 U.S.C. Sec. Sec. 2510-20.

[Footnote 150] The Court has interpreted the statute several times without reaching the constitutional questions. United States v. Kahn, 415 U.S. 143 (1974); United States v. Giordano, 416 U.S. 505 (1974); United States v. Chavez, 416 U.S. 562 (1974); United States v. Donovan, 429 U.S. 413 (1977); Scott v. United States, 436 U.S. 128 (1978); Dalia v. United States, 441 U.S. 238 (1979); United States v. New York Telephone Co., 434 U.S. 159 (1977); United States v. Caceres, 440 U.S. 741 (1979). Dalia supra, did pass on one constitutional issue, whether the Fourth Amendment mandated specific warrant authorization for a surreptitious entry to install an authorized ''bug.'' See also Smith v. Maryland, 442 U.S. 735 (1979) (no reasonable expectation of privacy in numbers dialed on one's telephone, so Fourth Amendment does not require a warrant to install ''pen register'' to record those numbers).

[Footnote 151]   389 U.S. 347, 363 -64 (1967) (concurring opinion). Justices Douglas and Brennan rejected the suggestion. Id. at 359-60 (concurring opinion). When it enacted its 1968 electronic surveillance statute, Congress alluded to the problem in ambiguous fashion, 18 U.S.C. Sec. 2511(3), which the Court subsequently interpreted as having expressed no congressional position at all. United States v. United States District Court, 407 U.S. 297, 302 -08 (1972).

[Footnote 152] United States v. United States District Court, 407 U.S. 297 (1972). Chief Justice Burger concurred in the result and Justice White concurred on the ground that the 1968 law required a warrant in this case, and therefore did not reach the constitutional issue. Id. at 340. Justice Rehnquist did not participate. Justice Powell carefully noted that the case required ''no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country.'' Id. at 308.

[Footnote 153] The case contains a clear suggestion that the Court would approve a congressional provision for a different standard of probable cause in national security cases. ''We recognize that domestic security surveillance may involve different policy and practical considerations from the surveillance of 'ordinary crime.' The gathering of security intelligence is often long range and involves the interrelation of various sources and types of information. The exact targets of such surveillance may be more difficult to identify than in surveillance operations against many types of crimes specified in Title III. Often, too, the emphasis of domestic intelligence gathering is on the prevention of unlawful activity or the enhancement of the Government's preparedness for some future crisis or emergency. . . . Different standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens. For the warrant application may vary according to the governmental interest to be enforced and the nature of citizen rights deserving protection. . . . It may be that Congress, for example, would judge that the application and affidavit showing probable cause need not follow the exact requirements of Sec. 2518 but should allege other circumstances more appropriate to domestic security cases. . . .'' Id. at 322-23.

[Footnote 154] Id. at 313-24.

[Footnote 155] Id. at 320.

[Footnote 156] See United States v. Butenko, 494 F.2d 593 (3d Cir.), cert. denied, 419 U.S. 881 (1974); Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975), cert. denied, 425 U.S. 944 (1976), appeal after remand 565 F.2d 742 (D.C. Cir. 1977), on remand, 444 F. Supp. 1296 (D.D.C. 1978), aff'd. in part, rev'd. in part, 606 F.2d 1172 (D.C. Cir. 1979), cert. denied, 453 U.S. 912 (1981); Smith v. Nixon, 606 F.2d 1183 (D.C. Cir. 1979), cert. denied, 453 U.S. 912 (1981); United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980), after remand, 667 F.2d 1105 (4th Cir. 1981); Halkin v. Helms, 690 F.2d 977 (D.C. Cir. 1982).

[Footnote 157] Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, 92 Stat. 1797, 50 U.S.C. Sec. Sec. 1801-1811. See United States v. Belfield, 692 F.2d 141 (D.C. Cir. 1982) (upholding constitutionality of disclosure restrictions in Act).

Enforcing the Fourth Amendment: The Exclusionary Rule

A right to be free from unreasonable searches and seizures is declared by the Fourth Amendment, but how one is to translate the guarantee into concrete terms is not specified. Several possible methods of enforcement have been suggested over time; however, the Supreme Court has settled, not without dissent, on only one as an effective means to make real the right.

  Alternatives to the Exclusionary Rule .--Theoretically, there are several alternatives to the exclusionary rule. An illegal search and seizure may be criminally actionable and officers undertaking one thus subject to prosecution, but the examples when officers are criminally prosecuted for overzealous law enforcement are extremely rare. 158 A policeman who makes an illegal search and seizure is subject to internal departmental discipline which may be backed up in the few jurisdictions which have adopted them by the oversight of and participation of police review boards, but again the examples of disciplinary actions are exceedingly rare. 159 Persons who have been illegally arrested or who have had their privacy invaded will usually have a tort action available under state statutory or common law.

Moreover, police officers acting under color of state law who violate a person's Fourth Amendment rights are subject to a suit for damages and other remedies 160 under a civil rights statute in federal courts. 161 While federal officers and others acting under color of federal law are not subject jurisdictionally to this statute, the Supreme Court has recently held that a right to damages for violation of Fourth Amendment rights arises by implication out of the guarantees secured and that this right is enforceable in federal courts. 162 While a damage remedy might be made more effectual, 163 a number of legal and practical problems stand in the way. 164 Police officers have available to them the usual common-law defenses, most important of which is the claim of good faith. 165 Federal officers are entitled to qualified immunity based on an objectively reasonable belief that a warrantless search later determined to violate the Fourth Amendment was supported by probable cause or exigent circumstances. 166 And on the practical side, persons subjected to illegal arrests and searches and seizures are often disreputable persons toward whom juries are unsympathetic, or they are indigent and unable to bring suit. The result, therefore, is that the Court has emphasized exclusion of unconstitutionally seized evidence in subsequent criminal trials as the only effective enforcement method.

  Development of the Exclusionary Rule .--Exclusion of evidence as a remedy for Fourth Amendment violations found its beginning in Boyd v. United States, 167 which, as was noted above, involved not a search and seizure but a compulsory production of business papers which the Court likened to a search and seizure. Further, the Court analogized the Fifth Amendment's self-incrimination provision to the Fourth Amendment's protections to derive a rule which required exclusion of the compelled evidence because the defendant had been compelled to incriminate himself by producing it. 168 The Boyd case was closely limited to its facts and an exclusionary rule based on Fourth Amendment violations was rejected by the Court a few years later, with the Justices adhering to the common- law rule that evidence was admissible however acquired. 169  

Nevertheless, ten years later the common-law view was itself rejected and an exclusionary rule propounded in Weeks v. United States. 170 Weeks had been convicted on the basis of evidence seized from his home in the course of two warrantless searches; some of the evidence consisted of private papers like those sought to be compelled in the Boyd case. Unanimously, the Court held that the evidence should have been excluded by the trial court. The Fourth Amendment, Justice Day said, placed on the courts as well as on law enforcement officers restraints on the exercise of power compatible with its guarantees. ''The tendency of those who execute the criminal laws of the country to obtain convictions by means of unlawful searches and enforced confessions . . . should find no sanction in the judgment of the courts which are charged at all times with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights.'' 171 The ruling is ambiguously based but seems to have had as its foundation an assumption that admission of illegally-seized evidence would itself violate the Amendment. ''If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secured against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitu tion. The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land.'' 172  

Because the Fourth Amendment did not restrict the actions of state officers, 173 there was no question about the application of an exclusionary rule in state courts 174 as a mandate of federal consitutional policy. 175 But in Wolf v. Colorado, 176 a unanimous Court held that freedom from unreasonable searches and seizures was such a fundamental right as to be protected against state violations by the due process clause of the Fourteenth Amendment. 177 However, the Court held that the right thus guaranteed did not require that the exclusionary rule be applied in the state courts, since there were other means to observe and enforce the right. ''Granting that in practice the exclusion of evidence may be an effective way of deterring unreasonable searches, it is not for this Court to condemn as falling below the minimal standards assured by the Due Process Clause a State's reliance upon other methods which, if consistently enforced, would be equally effective.'' 178  

It developed, however, that the Court had not vested in the States total discretion in regard to the admissibility of evidence, as the Court proceeded to evaluate under the due process clause the methods by which the evidence had been obtained. Thus, in Rochin v. California, 179 evidence of narcotics possession had been obtained by forcible administration of an emetic to defendant at a hospital after officers had been unsuccessful in preventing him from swallowing certain capsules. The evidence, said Justice Frankfurter for the Court, should have been excluded because the police methods were too objectionable. ''This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach's contents . . . is bound to offend even hardened sensibilities. They are methods too close to the rack and screw.'' 180 The Rochin standard was limited in Irvine v. California, 181 in which defendant was convicted of bookmaking activities on the basis of evidence secured by police who repeatedly broke into his house and concealed electronic gear to broadcast every conversation in the house. Justice Jackson's plurality opinion asserted that Rochin had been occasioned by the element of brutality, and that while the police conduct in Irvine was blatantly illegal the admissibility of the evidence was governed by Wolf, which should be consistently applied for purposes of guidance to state courts. The Justice also entertained considerable doubts about the efficacy of the exclusionary rule. 182 Rochin emerged as the standard, however, in a later case in which the Court sustained the admissibility of the results of a blood test administered while defendant was unconscious in a hospital following a traffic accident, the Court observing the routine nature of the test and the minimal intrusion into bodily privacy. 183  

Then, in Mapp v. Ohio, 184 the Court held that the exclusionary rule should and did apply to the States. It was ''logically and constitutionally necessary,'' wrote Justice Clark for the majority, ''that the exclusion doctrine--an essential part of the right to privacy--be also insisted upon as an essential ingredient of the right'' to be secure from unreasonable searches and seizures. ''To hold otherwise is to grant the right but in reality to withhold its privilege and enjoyment.'' 185 Further, the Court then held that since illegally- seized evidence was to be excluded from both federal and state courts, the standards by which the question of legality was to be determined should be the same, regardless of whether the court in which the evidence was offered was state or federal. 186  

  The Foundations of the Exclusionary Rule .--Important to determination of such questions as the application of the exclusionary rule to the States and the ability of Congress to abolish or to limit it is the fixing of the constitutional source and the basis of the rule. For some time, it was not clear whether the exclusionary rule was derived from the Fourth Amendment, from some union of the Fourth and Fifth Amendments, or from the Court's supervisory power over the lower federal courts. It will be recalled that in Boyd 187 the Court fused the search and seizure clause with the provision of the Fifth Amendment protecting against compelled self-incrimination. Weeks v. United States, 188 though the Fifth Amendment was mentioned, seemed to be clearly based on the Fourth Amendment. Nevertheless, in opinions following Weeks the Court clearly identified the basis for the exclusionary rule as the self-incrimination clause of the Fifth Amendment. 189 Then in Mapp v. Ohio, 190 the Court tied the rule strictly to the Fourth Amendment, finding exclusion of evidence seized in violation of the Amendment to be the ''most important constitutional privilege'' of the right to be free from unreasonable searches and seizures, finding that the rule was ''an essential part of the right of privacy'' protected by the Amendment.

''This Court has ever since [Weeks was decided in 1914] required of federal law officers a strict adherence to that command which this Court has held to be a clear, specific, and constitutionally required-- even if judicially implied--deterrent safeguard without insistence upon which the Fourth Amendment would have been reduced to a 'form of words.''' 191 It was a necessary step in the application of the rule to the States to find that the rule was of constitutional origin rather than a result of an exercise of the Court's supervisory power over the lower federal courts, inasmuch as the latter could not constitutionally be extended to the state courts. 192 In fact, Justice Frankfurter seemed to find the exclusionary rule to be based on the Court's supervisory powers in Wolf v. Colorado 193 in declining to extend the rule to the States. That the rule is of constitutional origin Mapp establishes, but this does not necessarily establish that it is immune to statutory revision.

Suggestions appear in a number of cases, including Weeks, to the effect that admission of illegally-seized evidence is itself unconstitutional. 194 These were often combined with a rationale emphasizing ''judicial integrity'' as a reason to reject the proffer of such evidence. 195 Yet the Court permitted such evidence to be introduced into trial courts, when the defendant lacked ''standing'' to object to the search and seizure which produced the evidence 196 or when the search took place before the announcement of the decision extending the exclusionary rule to the States. 197 At these times, the Court turned to the ''basic postulate of the exclusionary rule itself. The rule is calculated to prevent, not to repair. Its purpose is to deter--to compel respect for the constitutional guaranty in the only effectively available way--by removing the incentive to disregard it.'' 198 ''Mapp had as its prime purpose the enforcement of the Fourth Amendment through the inclusion of the exclusionary rule within its rights. This, it was found, was the only effective deterrent to lawless police action. Indeed, all of the cases since Wolf requiring the exclusion of illegal evidence have been based on the necessity for an effective deterrent to illegal police action.'' 199  

  Narrowing Application of the Exclusionary Rule .--For as long as we have had the exclusionary rule, critics have attacked it, challenged its premises, disputed its morality. 200 By the early 1980s a majority of Justices had stated a desire either to abolish the rule or to sharply curtail its operation, 201 and numerous opinions had rejected all doctrinal bases save that of deterrence. 202 At the same time, these opinions voiced strong doubts about the efficacy of the rule as a deterrent, and advanced public interest values in effective law enforcement and public safety as reasons to discard the rule altogether or curtail its application. 203 Thus, the Court emphasized the high costs of enforcing the rule to exclude reliable and trustworthy evidence, even when violations have been technical or in good faith, and suggested that such use of the rule may well ''generat[e] disrespect for the law and administration of justice,'' 204 as well as free guilty defendants. 205 No longer does the Court declare that ''[t]he essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.'' 206  

Although the exclusionary rule has not been completely repudiated, its utilization has been substantially curbed. Initial decisions chipped away at the rule's application. Defendants who themselves were not subjected to illegal searches and seizures may not object to the introduction against themselves of evidence illegally obtained from co-conspirators or codefendants, 207 and even a defendant whose rights have been infringed may find the evidence coming in, not as proof of guilt, but to impeach his testimony. 208 Defendants who have been convicted after trials in which they were given a full and fair opportunity to raise claims of Fourth Amendment violations may not subsequently raise those claims on federal habeas corpus because of the costs overweighing the minimal deterrent effect. 209 Evidence obtained through a wrongful search and seizure may sometimes be used in the criminal trial, if the prosecution can show a sufficient attenuation of the link between police misconduct and obtaining of the evidence. 210 If an arrest or a search which was valid at the time it was effectuated becomes bad through the subsequent invalidation of the statute under which the arrest or search was made, evidence obtained thereby is nonetheless admissible. 211 A grand jury witness was not permitted to refuse to answer questions on the ground that they were based on evidence obtained from an unlawful search and seizure, 212 and federal tax authorities were permitted to use in a civil proceeding evidence found to have been unconstitutionally seized from defendant by state authorities. 213  

The most severe curtailment of the rule came in 1984 with adoption of a ''good faith'' exception. In United States v. Leon, 214 the Court created an exception for evidence obtained as a result of officers' objective, good-faith reliance on a warrant, later found to be defective, issued by a detached and neutral magistrate. Justice White's opinion for the Court 215 could find little benefit in applying the exclusionary rule where there has been good-faith reliance on an invalid warrant. Thus, there was nothing to offset the ''substantial social costs exacted by the [rule].'' 216 ''The exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates,'' and in any event the Court considered it unlikely that the rule could have much deterrent effect on the actions of truly neutral magistrates. 217 Moreover, the Court thought that the rule should not be applied ''to deter objectively reasonable law enforcement activity,'' and that ''[p]enalizing the officer for the magistrate's error . . . cannot logically contribute to the deterrence of Fourth Amendment violations.'' 218 The Court also suggested some circumstances in which courts would be unable to find that officers' reliance on a warrant was objectively reasonable: if the officers have been ''dishonest or reckless in preparing their affidavit,'' if it should have been obvious that the magistrate had ''wholly abandoned'' his neutral role, or if the warrant was obviously deficient on its face (e.g., lacking in particularity). The Court applied the Leon standard in Massachusetts v. Sheppard, 219 holding that an officer possessed an objectively reasonable belief that he had a valid warrant after he had pointed out to the magistrate that he had not used the standard form, and the magistrate had indicated that the necessary changes had been incorporated in the issued warrant.

The Court then extended Leon to hold that the exclusionary rule is inapplicable to evidence obtained by an officer acting in objectively reasonable reliance on a statute later held violative of the Fourth Amendment. 220 Justice Blackmun's opinion for the Court reasoned that application of the exclusionary rule in such circumstances would have no more deterrent effect on officers than it would when officers reasonably rely on an invalid warrant, and no more deterrent effect on legislators who enact invalid statutes than on magistrates who issue invalid warrants. 221  

It is unclear from the Court's analysis in Leon and its progeny whether a majority of the Justices would also support a good-faith exception for evidence seized without a warrant, although there is some language broad enough to apply to warrantless seizures. 222 It is also unclear what a good-faith exception would mean in the context of a warrantless search, since the objective reasonableness of an officer's action in proceeding without a warrant is already taken into account in determining whether there has been a Fourth Amendment violation. 223 The Court's increasing willingness to uphold warrantless searches as not ''unreasonable'' under the Fourth Amendment, however, may reduce the frequency with which the good-faith issue arises in the context of the exclusionary rule. 224  

  Operation of the Rule: Standing .--The Court for a long period followed a rule of ''standing'' by which it determined whether a party was the appropriate person to move to suppress allegedly illegal evidence. Akin to Article III justiciability principles, which emphasize that one may ordinarily contest only those government actions that harm him, the standing principle in Fourth Amendment cases ''require[d] of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he allege, and if the allegation be disputed that he establish, that he himself was the victim of an invasion of privacy.'' 225 The Court recently has departed from the concept of ''standing'' to telescope the inquiry into one inquiry rather than two. Finding that ''standing'' served no useful analytical purpose, the Court has held that the issue of exclusion is to be determined solely upon a resolution of the substantive question whether the claimant's Fourth Amendment rights have been violated. ''We can think of no decided cases of this Court that would have come out differently had we concluded . . . that the type of standing requirement . . . reaffirmed today is more properly subsumed under substantive Fourth Amendment doctrine. Rigorous application of the principle that the rights secured by this Amendment are personal, in place of a notion of 'standing,' will produce no additional situations in which evidence must be excluded. The inquiry under either approach is the same.'' 226 One must therefore show that ''the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect.'' 227  

The Katz reasonable expectation of privacy rationale has now displaced property-ownership concepts which previously might have supported either standing to suppress or the establishment of an interest that has been invaded. Thus, it is no longer sufficient to allege possession or ownership of seized goods to establish the interest, if a justifiable expectation of privacy of the defendant was not violated in the seizure. 228 Also, it is no longer sufficient that one merely be lawfully on the premises in order to be able to object to an illegal search; rather, one must show some legitimate interest in the premises that the search invaded. 229 The same illegal search might, therefore, invade the rights of one person and not of another. 230 Again, the effect of the application of the privacy rationale has been to narrow considerably the number of people who can complain of an unconstitutional search.

Footnotes

[Footnote 158] Edwards, Criminal Liability for Unreasonable Searches and Seizures, 41 Va. L. Rev. 621 (1955).

[Footnote 159] Goldstein, Police Policy Formulation: A Proposal for Improving Police Performance, 65 Mich. L. Rev. 1123 (1967).

[Footnote 160] If there are continuing and recurrent violations, federal injunctive relief would be available. Cf. Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966); Wheeler v. Goodman, 298 F. Supp. 935 (preliminary injunction), 306 F. Supp. 58 (permanent injunction) (W.D.N.C. 1969), vacated on jurisdictional grounds, 401 U.S. 987 (1971).

[Footnote 161] 42 U.S.C. Sec. 1983 (1964). See Monroe v. Pape, 365 U.S. 167 (1961). In some circumstances, the officer's liability may be attributed to the municipality. Monell v. New York City Dep't of Social Services, 436 U.S. 658 (1978). These claims that officers have used excessive force in the course of an arrest or investigatory stop are to be analyzed under the Fourth Amendment, not under substantive due process. The test is ''whether the officers' actions are 'objectively reasonable' under the facts and circumstances confronting them.'' Graham v. Connor, 490 U.S. 386, 397 (1989).

[Footnote 162] Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). The possibility had been hinted at in Bell v. Hood, 327 U.S. 678 (1946).

[Footnote 163] See, e.g., Chief Justice Burger's dissent in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 411 , 422-24 (1971), which suggests suit against the Government in a special tribunal and the abolition of the exclusionary rule.

[Footnote 164] Foote, Tort Remedies for Police Violations of Individual Rights, 39 Minn. L. Rev. 493 (1955).

[Footnote 165] This is the rule in actions under 42 U.S.C. Sec. 1983, Pierson v. Ray, 386 U.S. 547 (1967), and on remand in Bivens the Court of Appeals promulgated the same rule to govern trial of the action. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 456 F.2d 1339 (2d Cir. 1972).

[Footnote 166] Anderson v. Creighton, 483 U.S. 635 (1987). The dissenting Justices argued, inter alia, that such a principle is more appropriately applied as an affirmative defense, thereby allowing resolution of factual disputes prior to determining objective reasonableness of an officer's actions. 483 U.S. at 655 (Stevens, J.). See also Malley v. Briggs, 475 U.S. 335, 345 (1986) (qualified immunity protects police officers who applied for a warrant unless ''a reasonably well-trained officer in [the same] position would have known that his affidavit failed to establish probable cause and that he should not have applied for a warrant'').

[Footnote 167]   116 U.S. 616 (1886).

[Footnote 168] ''We have already noticed the intimate relation between the two Amendments. They throw great light on each other. For the 'unreasonable searches and seizures' condemned in the Fourth Amendment are almost always made for the purpose of compelling a man to give evidence against himself, which in criminal cases is condemned in the Fifth Amendment; and compelling a man in a criminal case to be a witness against himself, which is condemned in the Fifth Amendment, throws light on the question as to what is an 'unreasonable search and seizure' within the meaning of the Fourth Amendment. And we have been unable to perceive that the seizure of a man's private books and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself. We think it is within the clear intent and meaning of those terms.'' Id. at 633. It was this utilization of the Fifth Amendment's clearly required exclusionary rule, rather than one implied from the Fourth, on which Justice Black relied and absent a Fifth Amendment self-incrimination violation he did not apply such a rule. Mapp v. Ohio, 367 U.S. 643, 661 (1961) (concurring opinion); Coolidge v. New Hampshire, 403 U.S. 443, 493 , 496-500 (1971) (dissenting opinion). The theory of a ''convergence'' of the two Amendments has now been disavowed by the Court. Supra, pp.1225-26.

[Footnote 169] Adams v. New York, 192 U.S. 585 (1904). Since the case arose from a state court and concerned a search by state officers, it could have been decided simply by holding that the Fourth Amendment was inapplicable. See National Safe Deposit Co. v. Stead, 232 U.S. 58, 71 (1914).

[Footnote 170]   232 U.S. 383 (1914).

[Footnote 171] Id. at 392.

[Footnote 172] Id. at 393.

[Footnote 173] Smith v. Maryland, 59 U.S. (18 How.) 71, 76 (1855); National Safe Deposit Co. v. Stead, 232 U.S. 58, 71 (1914). See supra, p.957.

[Footnote 174] The history of the exclusionary rule in the state courts was surveyed by Justice Frankfurter in Wolf v. Colorado, 338 U.S. 25, 29 , 33-38 (1949). The matter was canvassed again in Elkins v. United States, 364 U.S. 206, 224 -32 (1960).

[Footnote 175] During the period in which the Constitution did not impose any restrictions on state searches and seizures, the Court permitted the introduction in evidence in federal courts of items seized by state officers which had they been seized by federal officers would have been inadmissible, Weeks v. United States, 232 U.S. 383, 398 (1914), so long as no federal officer participated in the search, Byars v. United States, 273 U.S. 28 (1927), or the search was not made on behalf of federal law enforcement purposes. Gambino v. United States, 275 U.S. 310 (1927). This rule became known as the ''silver platter doctrine'' after the phrase coined by Justice Frankfurter in Lustig v. United States, 338 U.S. 74, 78 -79 (1949): ''The crux of that doctrine is that a search is a search by a federal official if he had a hand in it; it is not a search by a federal official if evidence secured by state authorities is turned over to the federal authorities on a silver platter.'' In Elkins v. United States, 364 U.S. 206 (1960), the doctrine was discarded by a five-to-four majority which held that inasmuch as Wolf v. Colorado, 338 U.S. 25 (1949), had made state searches and seizures subject to federal constitutional restrictions through the Fourteenth Amendment's due process clause, the ''silver platter doctrine'' was no longer constitutionally viable. During this same period, since state courts were free to admit any evidence no matter how obtained, evidence illegally seized by federal officers could be used in state courts, Wilson v. Schnettler, 365 U.S. 381 (1961), although the Supreme Court ruled out such a course if the evidence had first been offered in a federal trial and had been suppressed. Rea v. United States, 350 U.S. 214 (1956).

[Footnote 176]   338 U.S. 25 (1949).

[Footnote 177] ''The security of one's privacy against arbitrary intrusion by the police--which is at the core of the Fourth Amendment--is basic to a free society. It is therefore implicit in 'the concept of ordered liberty' and as such enforceable against the States through the Due Process Clause.'' Id. at 27-28.

[Footnote 178] Id. at 31. Justices Douglas, Murphy, and Rutledge dissented with regard to the issue of the exclusionary rule and Justice Black concurred.

[Footnote 179]   342 U.S. 165 (1952). The police had initially entered defendant's house without a warrant. Justices Black and Douglas concurred in the result on self-incrimination grounds.

[Footnote 180] Id. at 172.

[Footnote 181]   347 U.S. 128 (1954).

[Footnote 182] Id. at 134-38. Justice Clark, concurring, announced his intention to vote to apply the exclusionary rule to the States when the votes were available. Id. at 138. Justices Black and Douglas dissented on self-incrimination grounds, id. at 139, and Justice Douglas continued to urge the application of the exclusionary rule to the States. Id. at 149. Justices Frankfurter and Burton dissented on due process grounds, arguing the relevance of Rochin. Id. at 142.

[Footnote 183] Breithaupt v. Abram, 352 U.S. 432 (1957). Chief Justice Warren and Justices Black and Douglas dissented. Though a due process case, the results of the case have been reaffirmed directly in a Fourth Amendment case. Schmerber v. California, 384 U.S. 757 (1966).

[Footnote 184]   367 U.S. 643 (1961).

[Footnote 185] Id. at 655-56. Justice Black concurred, doubting that the Fourth Amendment itself compelled adoption of an exclusionary rule but relying on the Fifth Amendment for authority. Id. at 661. Justice Stewart would not have reached the issue but would have reversed on other grounds, id. at 672, while Justices Harlan, Frankfurter, and Whittaker dissented, preferring to adhere to Wolf. Id. at 672. Justice Harlan advocated the overruling of Mapp down to the conclusion of his service on the Court. See Coolidge v. New Hampshire, 403 U.S. 443, 490 (1971) (concurring opinion).

[Footnote 186] Ker v. California, 374 U.S. 23 (1963).

[Footnote 187] Boyd v. United States, 116 U.S. 616 (1886).

[Footnote 188]   232 U.S. 383 (1914). Defendant's room had been searched and papers seized by officers acting without a warrant. ''If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution.'' Id. at 393.

[Footnote 189] E.g., Gouled v. United States, 255 U.S. 298, 306 , 307 (1921); Amos v. United States, 255 U.S. 313, 316 (1921); Agnello v. United States, 269 U.S. 20, 33 -34 (1925); McGuire v. United States, 273 U.S. 95, 99 (1927). In Olmstead v. United States, 277 U.S. 438, 462 (1928), Chief Justice Taft ascribed the rule both to the Fourth and the Fifth Amendments, while in dissent Justices Holmes and Brandeis took the view that the Fifth Amendment was violated by the admission of evidence seized in violation of the Fourth. Id. at 469, 478-79. Justice Black was the only modern proponent of this view. Mapp v. Ohio, 367 U.S. 643, 661 (1961) (concurring opinion); Coolidge v. New Hampshire, 403 U.S. 443, 493 , 496-500 (1971) (dissenting opinion). See, however, Justice Clark's plurality opinion in Ker v. California, 374 U.S. 23, 30 (1963), in which he brought up the self-incrimination clause as a supplementary source of the rule, a position which he had discarded in Mapp.

[Footnote 190]   367 U.S. 643, 656 (1961). Wolf v. Colorado, 338 U.S. 25, 28 (1949), also ascribed the rule to the Fourth Amendment exclusively.

[Footnote 191] Mapp v. Ohio, 367 U.S. 643, 648 (1961) (emphasis supplied).

[Footnote 192] An example of an exclusionary rule not based on constitutional grounds may be found in McNabb v. United States, 318 U.S. 332 (1943), and Mallory v. United States, 354 U.S. 449 (1957), in which the Court enforced a requirement that arrestees be promptly presented to a magistrate by holding that incriminating admissions obtained during the period beyond a reasonable time for presentation would be inadmissible. The rule was not extended to the States, cf. Culombe v. Connecticut, 367 U.S. 568, 598 -602 (1961), but the Court's resort to the self-incrimination clause in reviewing confessions made such application irrelevant in most cases in any event. For an example of a transmutation of a supervisory rule into a constitutional rule, see McCarthy v. United States, 394 U.S. 459 (1969), and Boykin v. Alabama, 395 U.S. 238 (1969).

[Footnote 193] Weeks ''was not derived from the explicit requirements of the Fourth Amendment; . . . The decision was a matter of judicial implication.'' 338 U.S. 25, 28 (1949). Justice Black was more explicit. ''I agree with what appears to be a plain implication of the Court's opinion that the federal exclusionary rule is not a command of the Fourth Amendment but is a judicially created rule of evidence which Congress might negate.'' Id. at 39-40. He continued to adhere to the supervisory power basis in strictly search-and-seizure cases, Berger v. New York, 388 U.S. 41, 76 (1967) (dissenting), except where self- incrimination values were present. Mapp v. Ohio, 367 U.S. 643, 661 (1961) (concurring). And see id. at 678 (Justice Harlan dissenting); Elkins v. United States, 364 U.S. 206, 216 (1960) (Justice Stewart for the Court).

[Footnote 194] ''The tendency of those who execute the criminal laws of the country to obtain convictions by means of unlawful searches and enforced confessions . . . should find no sanction in the judgment of the courts which are charged at all times with the support of the Constitution . . . .'' Weeks v. United States, 232 U.S. 383, 392 (1914). In Mapp v. Ohio, 367 U.S. 643, 655 , 657 (1961), Justice Clark maintained that ''the Fourth Amendment include[s] the exclusion of the evidence seized in violation of its provisions'' and that it, and the Fifth Amendment with regard to confessions ''assures . . . that no man is to be convicted on unconstitutional evidence.'' In Terry v. Ohio, 392 U.S. 1, 12 , 13 (1968), Chief Justice Warren wrote: ''Courts which sit under our Constitution cannot and will not be made party to lawless invasions of the constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions. . . . A ruling admitting evidence in a criminal trial . . . has the necessary effect of legitimizing the conduct which produced the evidence.''

[Footnote 195] Elkins v. United States, 364 U.S. 206, 222 -23 (1960); Mapp v. Ohio, 367 U.S. 643, 660 (1961). See McNabb v. United States, 318 U.S. 332, 339 -40 (1943).

[Footnote 196] Infra, pp.1269-70.

[Footnote 197] Linkletter v. Walker, 381 U.S. 618 (1965).

[Footnote 198] Elkins v. United States, 364 U.S. 206, 217 (1960).

[Footnote 199] Linkletter v. Walker, 381 U.S. 618, 636 -37 (1965). The Court advanced other reasons for its decision as well. Id. at 636-40.

[Footnote 200] Among the early critics were Judge Cardozo, People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585, 587 (1926) (the criminal will go free ''because the constable has blundered''); and Dean Wigmore. 8 J. Wigmore, A Treatise on the Anglo-American System of Evidence 2183-84 (3d ed. 1940). For extensive discussion of criticism and support, with citation to the literature, see 1 Wayne R. LaFave, Search and Seizure--A Treatise on the Fourth Amendment Sec. 1.2 (2d ed. 1987).

[Footnote 201] E.g., Stone v. Powell, 428 U.S. 465, 496 (1976) (Chief Justice Burger: rule ought to be discarded now, rather than wait for a replacement as he argued earlier); id. at 536 (Justice White: modify rule to admit evidence seized illegally, but in good faith); Schneckloth v. Bustamonte, 412 U.S. 218, 261 (1973) (Justice Powell); Brown v. Illinois, 422 U.S. 590, 609 (1975) (Justice Powell); Robbins v. California, 453 U.S. 420, 437 (1981) (Justice Rehnquist); California v. Minjares, 443 U.S. 916 (1979) (Justice Rehnquist joined by Chief Justice Burger); Coolidge v. New Hampshire, 403 U.S. 443, 510 (1971) (Justice Blackmun joining Justice Black's dissent that ''the Fourth Amendment supports no exclusionary rule'').

[Footnote 202] E.g., United States v. Janis, 428 U.S. 433, 446 (1976) (deterrence is the ''prime purpose'' of the rule, ''if not the sole one.''); United States v. Calandra, 414 U.S. 338, 347 -48 (1974); United States v. Peltier, 422 U.S. 531, 536 -39 (1975); Stone v. Powell, 428 U.S. 465, 486 (1976); Rakas v. Illinois, 439 U.S. 128, 134 n.3, 137-38 (1978); Michigan v. DeFillippo, 443 U.S. 31, 38 n.3 (1979). Thus, admission of the fruits of an unlawful search or seizure ''work[s] no new Fourth Amendment wrong,'' the wrong being ''fully accomplished by the unlawful search or seizure itself,'' United States v. Calandara, supra, 354, and the exclusionary rule does not ''cure the invasion of the defendant's rights which he has already suffered.'' Stone v. Powell, supra, 540 (Justice White dissenting). ''Judicial integrity'' is not infringed by the mere admission of evidence seized wrongfully. ''[T]he courts must not commit or encourage violations of the Constitution,'' and the integrity issue is answered by whether exclusion would deter violations by others. United States v. Janis, supra, at 458 n.35; United States v. Calandra, supra, at 347, 354; United States v. Peltier, supra, at 538; Michigan v. Tucker, 417 U.S. 433, 450 n.25 (1974).

[Footnote 203] United States v. Janis, 428 U.S. 433, 448 -54 (1976), contains a lengthy review of the literature on the deterrent effect of the rule and doubts about that effect. See also Stone v. Powell, 428 U.S. 465, 492 n.32 (1976).

[Footnote 204] Stone v. Powell, 428 U.S. at 490 , 491.

[Footnote 205] Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 416 (1971) (Chief Justice Burger dissenting).

[Footnote 206] Silverthorne Lumber Co. v. United States 251 U.S. 385, 392 (1920).

[Footnote 207] E.g., Rakas v. Illinois, 439 U.S. 128 (1978); United States v. Salvucci, 448 U.S. 83 (1980); Rawlings v. Kentucky, 448 U.S. 98 (1980). In United States v. Payner, 447 U.S. 727 (1980), the Court held it impermissible for a federal court to exercise its supervisory power to police the administration of justice in the federal system to suppress otherwise admissible evidence on the ground that federal agents had flagrantly violated the Fourth Amendment rights of third parties in order to obtain evidence to use against others when the agents knew that the defendant would be unable to challenge their conduct under the Fourth Amendment.

[Footnote 208] United States v. Havens, 446 U.S. 620 (1980); Walder v. United States, 347 U.S. 62 (1954). Cf. Agnello v. United States, 269 U.S. 20 (1925) (now vitiated by Havens). The impeachment exception applies only to the defendant's own testimony, and may not be extended to use illegally obtained evidence to impeach the testimony of other defense witnesses. James v. Illinois, 493 U.S. 307 (1990).

[Footnote 209] Stone v. Powell, 428 U.S. 465 (1976).

[Footnote 210] Wong Sun v. United States, 371 U.S. 471, 487 -88 (1963); Alderman v. United States, 394 U.S. 165, 180 -85 (1969); Brown v. Illinois, 422 U.S. 590 (1975); Taylor v. Alabama, 457 U.S. 687 (1982). United States v. Ceccolini, 435 U.S. 268 (1978), refused to exclude the testimony of a witness discovered through an illegal search. Because a witness was freely willing to testify and therefore more likely to come forward, the application of the exclusionary rule was not to be tested by the standard applied to exclusion of inanimate objects. Deterrence would be little served and relevant and material evidence would be lost to the prosecution. In New York v. Harris, 495 U.S. 14 (1990), the Court refused to exclude a station-house confession made by a suspect whose arrest at his home had violated the Fourth Amendment because, even though probable cause had existed, no warrant had been obtained. And in Segura v. United States, 468 U.S. 796 (1984), evidence seized pursuant to warrant obtained after an illegal entry was admitted because there had been an independent basis for issuance of a warrant. This rule applies as well to evidence observed in plain view during the initial illegal search. Murray v. United States, 487 U.S. 533 (1988). See also United States v. Karo, 468 U.S. 705 (1984) (excluding consideration of tainted evidence, there was sufficient untainted evidence in affidavit to justify finding of probable cause and issuance of search warrant).

[Footnote 211] Michigan v. DeFillippo, 443 U.S. 31 (1979) (statute creating substantive criminal offense). Statutes that authorize unconstitutional searches and seizures but which have not yet been voided at the time of the search or seizure may not create this effect, however, Torres v. Puerto Rico, 442 U.S. 465 (1979); Ybarra v. Illinois, 444 U.S. 85 (1979). This aspect of Torres and Ybarra was to a large degree nullified by Illinois v. Krull, 480 U.S. 340 (1987), rejecting a distinction between substantive and procedural statutes and holding the exclusionary rule inapplicable in the case of a police officer's objectively reasonable reliance on a statute later held to violate the Fourth Amendment. Similarly, the exclusionary rule does not require suppression of evidence that was seized incident to an arrest that was the result of a clerical error by a court clerk. Arizona v. Evans, 115 S. Ct. 1185 (1995).

[Footnote 212] United States v. Calandra, 414 U.S. 338 (1974).

[Footnote 213] United States v. Janis, 428 U.S. 433 (1976). Similarly, the rule is inapplicable in civil proceedings for deportation of aliens. INS v. Lopez-Mendoza, 468 U.S. 1032 (1984).

[Footnote 214]   468 U.S. 897 (1984). The same objectively reasonable ''good-faith'' rule now applies in determining whether officers obtaining warrants are entitled to qualified immunity from suit. Malley v. Briggs, 475 U.S. 335 (1986).

[Footnote 215] The opinion was joined by Chief Justice Burger, and by Justices Blackmun, Powell, Rehnquist, and O'Connor. Justice Blackmun also added a separate concurring opinion. Dissents were filed by Justice Brennan, joined by Justice Marshall, and by Justice Stevens.

[Footnote 216]   468 U.S. at 907 .

[Footnote 217]   468 U.S. at 916 -17.

[Footnote 218]   468 U.S. at 919 , 921.

[Footnote 219]   468 U.S. 981 (1984).

[Footnote 220] Illinois v. Krull, 480 U.S. 340 (1987). The same difficult- to-establish qualifications apply: there can be no objectively reasonable reliance ''if, in passing the statute, the legislature wholly abandoned its responsibility to enact constitutional laws,'' or if ''a reasonable officer should have known that the statute was unconstitutional.'' 480 U.S. at 355 .

[Footnote 221] Dissenting Justice O'Connor disagreed with this second conclusion, suggesting that the grace period ''during which the police may freely perform unreasonable searches . . . creates a positive incentive [for legislatures] to promulgate unconstitutional laws,'' and that the Court's ruling ''destroys all incentive on the part of individual criminal defendants to litigate the violation of their Fourth Amendment rights'' and thereby obtain a ruling on the validity of the statute. 480 U.S. at 366 , 369.

[Footnote 222] The whole thrust of analysis in Leon dealt with reasonableness of reliance on a warrant. The Court several times, however, used language broad enough to apply to warrantless searches as well. See, e.g., 468 U.S. at 909 (quoting Justice White's concurrence in Illinois v. Gates): ''the balancing approach that has evolved . . . 'forcefully suggest[s] that the exclusionary rule be more generally modified to permit the introduction of evidence obtained in the reasonable good-faith belief that a search or seizure was in accord with the Fourth Amendment'''; and id. at at 919: ''[the rule] cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity.''

[Footnote 223] See Yale Kamisar, Gates, ''Probable Cause,'' ''Good Faith,'' and Beyond, 69 Iowa L. Rev. 551, 589 (1984) (imposition of a good-faith exception on top of the ''already diluted'' standard for validity of a warrant ''would amount to double dilution'').

[Footnote 224] See, e.g., Illinois v. Rodriguez, 497 U.S. 177 (1990) (upholding search premised on officer's reasonable but mistaken belief that a third party had common authority over premises and could consent to search); Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (no requirement of knowing and intelligent waiver in consenting to warrantless search); New York v. Belton, 453 U.S. 454 (1981) (upholding warrantless search of entire interior of passenger car, including closed containers, as incident to arrest of driver); United States v. Ross, 456 U.S. 798 (1982) (upholding warrrantless search of movable container found in a locked car trunk).

[Footnote 225] Jones v. United States, 362 U.S. 257, 261 (1960). That is, the movant must show that he was ''a victim of search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of search or seizure directed at someone else.'' Id. See Alderman v. United States, 394 U.S. 165, 174 (1969).

[Footnote 226] Rakas v. Illinois, 439 U.S. 128, 139 (1978).

[Footnote 227] Id. at 140.

[Footnote 228] Previously, when ownership or possession was the issue, such as a charge of possessing contraband, the Court accorded ''automatic standing'' to one on the basis, first, that to require him to assert ownership or possession at the suppression hearing would be to cause him to incriminate himself with testimony that could later be used against him, and, second, that the government could not simultaneously assert that defendant was in possession of the items and deny that it had invaded his interests. Jones v. United States, 362 U.S. 257, 261 -265 (1960). See also United States v. Jeffers, 342 U.S. 48 (1951). But in Simmons v. United States, 390 U.S. 377 (1968), the Court held inadmissible at the subsequent trial admissions made in suppression hearings. When it then held that possession alone was insufficient to give a defendant the interest to move to suppress, because he must show that the search itself invaded his interest, the second consideration was mooted as well, and thus the ''automatic standing'' rule was overturned. United States v. Salvucci, 448 U.S. 83 (1980) (stolen checks found in illegal search of apartment of the mother in defendant, in which he had no interest; defendant could not move to suppress on the basis of the illegal search); Rawlings v. Kentucky, 448 U.S. 98 (1980) (drugs belonging to defendant discovered in illegal search of friend's purse, in which he had no privacy interest; admission of ownership insufficient to enable him to move to suppress).

[Footnote 229] Rakas v. Illinois, 439 U.S. 128 (1978) (passengers in automobile had no privacy interest in interior of the car; could not object to illegal search). United States v. Padilla, 508 U.S. 77 (1993) (only persons whose privacy or property interests are violated may object to a search on Fourth Amendment grounds; exerting control and oversight over property by virtue of participation in a criminal conspiracy does not alone establish such interests). Jones v. United States, 362 U.S. 257 (1960), had established rule that anyone legitimately on the premises could object; the rationale was discarded but the result in Jones was maintained because he was there with permission, he had his own key, his luggage was there, he had the right to exclude and therefore a legitimate expectation of privacy. Similarly maintained were the results in United States v. Jeffers, 342 U.S. 48 (1951) (hotel room rented by defendant's aunts to which he had a key and permission to store things); Mancusi v. DeForte, 392 U.S. 364 (1968) (defendant shared office with several others; though he had no reasonable expectation of absolute privacy, he could reasonably expect to be intruded on only by other occupants and not by police).

[Footnote 230] E.g., Rawlings v. Kentucky, 448 U.S. 98 (1980) (fearing imminent police search, defendant deposited drugs in companion's purse where they were discovered in course of illegal search; defendant had no legitimate expectation of privacy in her purse, so that his Fourth Amendment rights were not violated, although hers were).

Right to Assistance of Counsel: First Appeal

A criminal defendant's Sixth Amendment right to assistance of counsel has been extended by the U.S. Supreme Court to include representation during the first appeal after conviction. This stage is sometimes called the "appeal as a matter of right."

If You Cannot Afford to Hire an Attorney for a First Appeal

Just as with the right to assistance of counsel at earlier stages such as preliminary hearing and trial, the government appoints an attorney to represent any criminal defendant who cannot afford a lawyer for a first appeal. For any subsequent appeal, the person usually must pay to hire an attorney. In many states, however, public interest or civil rights groups sometimes represent convicted persons for free at subsequent appeals.

• The institution's employees were aware of some danger or risk of harm to an inmate; and
• The employees chose not to take any steps to remedy the problem; and
• The inmate's fundamental rights were violated as a result.