Criminal Procedure: Pre-Trial: Assignment

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a warrant will be obtained authorizing the desired search. It is coercion for officers to tell persons that if they do not consent to a search, a warrant will be obtained and the officers will ransack their home.29

Consent is invalid if it is obtained by a mistaken belief that the officer had a legal right to conduct the search. For example, if Officer Frisk tells Patty Pat-Down that he has a warrant, or that the law does not require that he have one, and she acquiesces, the search is invalid if he had no warrant or legal right to conduct the search.

The same is true when officers use fraud or deceit to obtain consent. For example, in one case a defendant was arrested and interrogated. He gave no incriminating infor- mation during the questioning. The following day the officers went to the home of the defendant and told his wife that he had confessed to the crime and had sent the police to seize the contraband. Based upon these statements, the defendant’s wife consented to a search by the officers. The state court found that this tactic led to an involuntary consent and that the evidence seized was inadmissible at trial.30

The facts of that case raise another issue: third-party consent. This arises often in cases where many people share a single dwelling or room, such as families, fraternities, and dormitories. In United States v. Matlock (1974),31 the Supreme Court found that a third party may consent as long as the parties share access, control, and use of the prop- erty. If coinhabitants section off a dwelling, with each tenant having exclusive control over a specific area, then only the tenant using an area may consent. If closets, desks, or similar areas are reserved for one person’s private use, only that person may consent. Also, if coinhabitants are both present, either one may refuse consent for a search. If, however, police remove the coinhabitant from the premises before consent is refused, then the remaining coinhabitant’s consent is adequate.32

Having a property interest in property does not give one a right to consent to a search of the property. The Supreme Court has said that neither landlords nor hotel managers may consent to the search of their tenants’ rooms.33 They may have a prop- erty interest, but the privacy interest rests with the tenants.

Stop and Frisk Two of the most important exceptions to the probable cause and warrant require- ments are the stop and frisk. On October 31, 1963, a Cleveland, Ohio, police detective observed three men standing on a street corner. Suspicious of the men, the detective positioned himself to watch their behavior. After some time the officer concluded that the men were “casing a job, a stick-up.”

The officer approached the men, identified himself, and asked them to identify themselves. After the men “mumbled something,” the officer grabbed one of the men and conducted a frisk, or a patdown, of the man’s clothing. The officer felt a pistol in the man’s coat pocket. He removed the gun from his coat and then patted down the other two men. Another gun was discovered during those frisks.

The officer testified that he conducted the frisks because he believed the men were carrying weapons. The first man frisked was defendant Terry. At trial he was convicted of carrying a concealed weapon and was subsequently sentenced to one to three years in prison. His appeal made it to the United States Supreme Court.

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MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

This case presents serious questions concern- ing the role of the Fourth Amendment in the con- frontation on the street between the citizen and the policeman investigating suspicious circumstances.

Petitioner Terry was convicted of carrying a concealed weapon and sentenced to the statutorily prescribed term of one to three years in the peni- tentiary. Following the denial of a pretrial motion to suppress, the prosecution introduced in evidence two revolvers and a number of bullets seized from Terry and a codefendant, Richard Chilton, by Cleve- land Police Detective Martin McFadden. At the hear- ing on the motion to suppress this evidence, Officer McFadden testified that, while he was patrolling in plain clothes in downtown Cleveland at approxi- mately 2:30 in the afternoon of October 31, 1963, his attention was attracted by two men, Chilton and Terry, standing on the corner of Huron Road and Euclid Avenue. He had never seen the two men be- fore, and he was unable to say precisely what first drew his eye to them. However, he testified that he had been a policeman for 39 years and a detective for 35, and that he had been assigned to patrol this vicinity of downtown Cleveland for shoplifters and pickpockets for 30 years. He explained that he had developed routine habits of observation over the years, and that he would “stand and watch people or walk and watch people at many intervals of the day.” He added: “Now, in this case, when I looked over, they didn’t look right to me at the time.”

His interest aroused, Officer McFadden took up a post of observation in the entrance to a store 300 to 400 feet away from the two men. “I get more pur- pose to watch them when I seen their movements,” he testified. He saw one of the men leave the other one and walk southwest on Huron Road, past some stores. The man paused for a moment and looked

in a store window, then walked on a short distance, turned around and walked back toward the cor- ner, pausing once again to look in the same store window. He rejoined his companion at the corner, and the two conferred briefly. Then the second man went through the same series of motions, strolling down Huron Road, looking in the same window, walking on a short distance, turning back, peering in the store window again, and returning to confer with the first man at the corner. The two men re- peated this ritual alternately between five and six times apiece—in all, roughly a dozen trips. At one point, while the two were standing together on the corner, a third man approached them and engaged them briefly in conversation. This man then left the two others and walked west on Euclid Avenue. Chil- ton and Terry resumed their measured pacing, peer- ing, and conferring. After this had gone on for 10 to 12 minutes, the two men walked off together, head- ing west on Euclid Avenue, following the path taken earlier by the third man.

By this time, Officer McFadden had become thoroughly suspicious. He testified that, after ob- serving their elaborately casual and oft-repeated reconnaissance of the store window on Huron Road, he suspected the two men of “casing a job, a stick-up,” and that he considered it his duty as a police officer to investigate further. He added that he feared “they may have a gun.” Thus, Officer Mc- Fadden followed Chilton and Terry and saw them stop in front of Zucker’s store to talk to the same man who had conferred with them earlier on the street corner. Deciding that the situation was ripe for direct action, Officer McFadden approached the three men, identified himself as a police officer and asked for their names. At this point, his knowledge was confined to what he had observed. He was not acquainted with any of the three men by name or by sight, and he had received no information

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concerning them from any other source. When the men “mumbled something” in response to his in- quiries, Officer McFadden grabbed petitioner Terry, spun him around so that they were facing the other two, with Terry between McFadden and the oth- ers, and patted down the outside of his clothing. In the left breast pocket of Terry’s overcoat, Officer McFadden felt a pistol. He reached inside the over- coat pocket, but was unable to remove the gun. At this point, keeping Terry between himself and the others, the officer ordered all three men to enter Zucker’s store. As they went in, he removed Terry’s overcoat completely, removed a .38 caliber revolver from the pocket and ordered all three men to face the wall with their hands raised. Officer McFadden proceeded to pat down the outer clothing of Chilton and the third man, Katz. He discovered another revolver in the outer pocket of Chilton’s overcoat, but no weapons were found on Katz. The officer testified that he only patted the men down to see whether they had weapons, and that he did not put his hands beneath the outer garments of either Terry or Chilton until he felt their guns. So far as appears from the record, he never placed his hands beneath Katz’ outer garments. Officer McFadden seized Chilton’s gun, asked the proprietor of the store to call a police wagon, and took all three men to the station, where Chilton and Terry were formally charged with carrying concealed weapons.

On the motion to suppress the guns, the pros- ecution took the position that they had been seized following a search incident to a lawful arrest. The trial court rejected this theory, stating that it “would be stretching the facts beyond reasonable compre- hension” to find that Officer McFadden had had probable cause to arrest the men before he patted them down for weapons. However, the court denied the defendants’ motion on the ground that Officer McFadden, on the basis of his experience,

. . . had reasonable cause to believe . . . that the defen-

dants were conducting themselves suspiciously, and

some interrogation should be made of their action.

Purely for his own protection, the court held, the officer had the right to pat down the outer cloth- ing of these men, who he had reasonable cause to believe might be armed. The court distinguished between an investigatory “stop” and an arrest, and between a “frisk” of the outer clothing for weapons and a full-blown search for evidence of crime. The frisk, it held, was essential to the proper performance of the officer’s investigatory duties, for, without it, “the answer to the police officer may be a bullet, and a loaded pistol discovered during the frisk is admissible.” [They were con- victed, sentenced, and lost their appeal before the Supreme Court of Ohio.]

We would be less than candid if we did not ac- knowledge that this question thrusts to the fore dif- ficult and troublesome issues regarding a sensitive area of police activity—issues which have never be- fore been squarely presented to this Court. Reflec- tive of the tensions involved are the practical and constitutional arguments pressed with great vigor on both sides of the public debate over the power of the police to “stop and frisk”—as it is sometimes euphemistically termed—suspicious persons.

On the one hand, it is frequently argued that, in dealing with the rapidly unfolding and often dangerous situations on city streets, the police are in need of an escalating set of flexible responses, graduated in relation to the amount of information they possess. For this purpose, it is urged that dis- tinctions should be made between a “stop” and an “arrest” (or a “seizure” of a person), and between a “frisk” and a “search.” Thus, it is argued, the po- lice should be allowed to “stop” a person and de- tain him briefly for questioning upon suspicion that he may be connected with criminal activity. Upon

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suspicion that the person may be armed, the police should have the power to “frisk” him for weapons. If the “stop” and the “frisk” give rise to probable cause to believe that the suspect has committed a crime, then the police should be empowered to make a formal “arrest,” and a full incident “search” of the person. This scheme is justified in part upon the notion that a “stop” and a “frisk” amount to a mere “minor inconvenience and petty indignity,” which can properly be imposed upon the citizen in the interest of effective law enforcement on the basis of a police officer’s suspicion.

On the other side, the argument is made that the authority of the police must be strictly circum- scribed by the law of arrest and search as it has developed to date in the traditional jurisprudence of the Fourth Amendment. It is contended with some force that there is not -- and cannot be -- a variety of police activity which does not depend solely upon the voluntary cooperation of the citizen, and yet which stops short of an arrest based upon probable cause to make such an arrest. The heart of the Fourth Amendment, the argument runs, is a severe requirement of specific justification for any intrusion upon protected personal security, coupled with a highly developed system of judicial controls to enforce upon the agents of the State the com- mands of the Constitution. . . .

Our first task is to establish at what point in this encounter the Fourth Amendment becomes rel- evant. That is, we must decide whether and when Officer McFadden “seized” Terry, and whether and when he conducted a “search.” There is some sug- gestion in the use of such terms as “stop” and “frisk” that such police conduct is outside the purview of the Fourth Amendment because neither action rises to the level of a “search” or “seizure” within the meaning of the Constitution. We emphatically reject this notion. It is quite plain that the Fourth Amendment governs “seizures” of the person

which do not eventuate in a trip to the stationhouse and prosecution for crime—"arrests" in traditional terminology. It must be recognized that, whenever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that per- son. And it is nothing less than sheer torture of the English language to suggest that a careful explora- tion of the outer surfaces of a person’s clothing all over his or her body in an attempt to find weapons is not a “search.” Moreover, it is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, per- haps facing a wall with his hands raised, is a “petty indignity.” It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be under- taken lightly. . . .

In this case, there can be no question, then, that Officer McFadden “seized” petitioner and subjected him to a “search” when he took hold of him and patted down the outer surfaces of his clothing. We must decide whether, at that point, it was reason- able for Officer McFadden to have interfered with petitioner’s personal security as he did. And, in determining whether the seizure and search were “unreasonable,” our inquiry is a dual one -- whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place. . . .

If this case involved police conduct subject to the Warrant Clause of the Fourth Amendment, we would have to ascertain whether “probable cause” existed to justify the search and seizure which took place. However, that is not the case. We do not retreat from our holdings that the police must, whenever practica- ble, obtain advance judicial approval of searches and seizures through the warrant procedure, see, e.g., Katz v. United States . . . or that, in most instances, failure to comply with the warrant requirement can

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only be excused by exigent circumstances. But we deal here with an entire rubric of police conduct -- necessarily swift action predicated upon the on-the- spot observations of the officer on the beat -- which historically has not been, and, as a practical matter, could not be, subjected to the warrant procedure. Instead, the conduct involved in this case must be tested by the Fourth Amendment’s general proscrip- tion against unreasonable searches and seizures. . . .

Nonetheless, the notions which underlie both the warrant procedure and the requirement of prob- able cause remain fully relevant in this context. In order to assess the reasonableness of Officer Mc- Fadden’s conduct as a general proposition, it is necessary “first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen,” for there is . . .

. . . no ready test for determining reasonableness

other than by balancing the need to search [or seize]

against the invasion which the search [or seizure]

entails.

And, in justifying the particular intrusion, the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. The scheme of the Fourth Amendment becomes meaningful only when it is assured that, at some point, the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And, in making that assessment, it is imperative that the facts be judged against an objective stan- dard: would the facts available to the officer at the moment of the seizure or the search “warrant a man of reasonable caution in the belief” that the action

taken was appropriate? Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction. And simple

“good faith on the part of the arresting officer is not

enough.” . . . If subjective good faith alone were the

test, the protections of the Fourth Amendment would

evaporate, and the people would be “secure in their

persons, houses, papers, and effects,” only in the dis-

cretion of the police.

Applying these principles to this case, we consider first the nature and extent of the governmental in- terests involved. One general interest is, of course, that of effective crime prevention and detection; it is this interest which underlies the recognition that a police officer may, in appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. It was this legitimate investiga- tive function Officer McFadden was discharging when he decided to approach petitioner and his companions. He had observed Terry, Chilton, and Katz go through a series of acts, each of them per- haps innocent in itself, but which, taken together, warranted further investigation. There is nothing unusual in two men standing together on a street corner, perhaps waiting for someone. Nor is there anything suspicious about people in such circum- stances strolling up and down the street, singly or in pairs. Store windows, moreover, are made to be looked in. But the story is quite different where, as here, two men hover about a street corner for an extended period of time, at the end of which it becomes apparent that they are not waiting for any- one or anything; where these men pace alternately along an identical route, pausing to stare in the

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same store window roughly 24 times; where each completion of this route is followed immediately by a conference between the two men on the corner; where they are joined in one of these conferences by a third man who leaves swiftly, and where the two men finally follow the third and rejoin him a couple of blocks away. It would have been poor po- lice work indeed for an officer of 30 years’ experi- ence in the detection of thievery from stores in this same neighborhood to have failed to investigate this behavior further.

The crux of this case, however, is not the pro- priety of Officer McFadden’s taking steps to inves- tigate petitioner’s suspicious behavior, but, rather, whether there was justification for McFadden’s invasion of Terry’s personal security by searching him for weapons in the course of that investigation. We are now concerned with more than the govern- mental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the per- son with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded. Virtually all of these deaths and a substantial portion of the injuries are inflicted with guns and knives.

In view of these facts, we cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in believ- ing that the individual whose suspicious behavior he is investigating at close range is armed and pres- ently dangerous to the officer or to others, it would

appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is, in fact, carrying a weapon and to neutralize the threat of physical harm. . . .

The scope of the search in this case presents no serious problem in light of these standards. Officer McFadden patted down the outer clothing of peti- tioner and his two companions. He did not place his hands in their pockets or under the outer surface of their garments until he had felt weapons, and then he merely reached for and removed the guns. He never did invade Katz’ person beyond the outer sur- faces of his clothes, since he discovered nothing in his pat-down which might have been a weapon. Of- ficer McFadden confined his search strictly to what was minimally necessary to learn whether the men were armed and to disarm them once he discov- ered the weapons. He did not conduct a general ex- ploratory search for whatever evidence of criminal activity he might find.

We conclude that the revolver seized from Terry was properly admitted in evidence against him. At the time he seized petitioner and searched him for weapons, Officer McFadden had reasonable grounds to believe that petitioner was armed and dangerous, and it was necessary for the protec- tion of himself and others to take swift measures to discover the true facts and neutralize the threat of harm if it materialized. The policeman carefully restricted his search to what was appropriate to the discovery of the particular items which he sought. Each case of this sort will, of course, have to be de- cided on its own facts. We merely hold today that, where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where, in the course of investigating this behavior, he identi- fies himself as a policeman and makes reasonable

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inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to con- duct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons

which might be used to assault him. Such a search is a reasonable search under the Fourth Amend- ment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.

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neW York ciTY SToP And FriSk

New York City is home to a large and controversial stop and frisk program. Relying on the law established in Terry, New York established a program of aggressively stopping individuals who are suspected of criminality. Included in the program is Operation Clean Halls, a practice that enables owners of apartment houses and managers of public housing units to in- vite police into the public spaces of their buildings and to stop people who are suspected of criminality, including trespass. The program is large. More than 3,000 private housing units were enrolled in the program and over 600,000 people were stopped in 2011 alone. The program was challenged as violative of the Fourth Amendment and because of the disproportion- ate number of minorities stopped, as violative of equal protection as well. A federal district court found the program unconstitutional in 2012 and litigation was ongoing when this book went to press.34

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Officers are not given carte blanche to stop and frisk. Although probable cause is not required, officers must have a “reasonable suspicion” that the person to be stopped has committed, is committing, or is about to commit a crime. The officer’s suspicion must be supported by “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”35 An officer’s intuition alone is not enough suspicion to support a Terry seizure. When reviewing an officer’s reasonable suspicion decision, a court is to examine the “totality of the circumstances” as known to the officer. Facts that may not be admissible at trial may be considered.36

In Terry, the facts that the Court found established reasonable cause included the officer’s personal observation of the defendant and another man pacing near a business, repeatedly looking into the business’s window, and briefly encountering and conferring

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with a third man. In addition, the Court noted that the detective who stopped Terry had 39 years’ experience in policing, and the officer testified that in his experience the men appeared to be “casing” the business. While the Court stressed that an officer’s intuition alone is insufficient to establish reasonable cause, it can be relied upon in con- junction with specific facts to support a temporary detention. Another example of how much evidence is required to establish reasonable suspicion can be found in the 2000 Supreme Court case Illinois v. Wardlow. In Wardlow a defendant, who was in a high crime area, took flight immediately upon seeing police officers. The Court stated that even though a person’s presence in a high crime area is not enough to establish reason- able suspicion, that fact combined with the defendant’s unprovoked flight is enough.37

Not all contacts between an officer and a citizen amount to a seizure. A seizure oc- curs anytime a reasonable person believes that he or she is not free to leave. There need not be an attempt to leave. A person may feel restrained by physical contact from a police officer, tone of voice, threatening language, or the threatening presence of many officers.38

Mere questioning of a citizen by a police officer does not rise to the level of a de- tention. However, if the interrogation becomes accusatory or its duration lengthy, the Fourth Amendment may come into play. A Texas statute that required an individual to comply with a police officer’s order to identify himself, even though there was no basis to believe criminal activity was afoot, was held unconstitutional by the Supreme Court in 1979.39 The Court held that the Fourth Amendment prohibits the police from temporarily detaining a person and demanding identification without at least a reasonable suspicion to believe the individual has committed, or is engaged in commit- ting, a crime. However, if a Terry stop is justified, a statute may require the individual to produce identification and if refused, the individual may be arrested, charged, and convicted for the refusal. In the 2004 decision Hiibel v. Sixth Judicial District, 544 U.S. 177 (2004), the Court stated:

Obtaining a suspect’s name in the course of a Terry stop serves important government interests. Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder. On the other hand, knowing identity may help clear a suspect and allow the police to concentrate their ef- forts elsewhere. Identity may prove particularly important in cases such as this, where the police are investigating what appears to be a domestic assault. Officers called to investigate domestic disputes need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim. . . . Petitioner argues that the Nevada statute circumvents the probable cause requirement, in effect allowing an officer to arrest a person for being suspicious. Accord- ing to petitioner, this creates a risk of arbitrary police conduct that the Fourth Amend- ment does not permit. Brief for Petitioner 28–33. These are familiar concerns; they were central to the opinion in Papachristou, and also to the decisions limiting the operation of stop and identify statutes in Kolender and Brown. Petitioner’s concerns are met by the requirement that a Terry stop must be justified at its inception and “reasonably related in scope to the circumstances which justified” the initial stop. 392 U.S., at 20. Under these

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principles, an officer may not arrest a suspect for failure to identify himself if the request for identification is not reasonably related to the circumstances justifying the stop.

A motorist may be temporarily detained under Terry. Also, the Supreme Court has said that once a person is lawfully pulled over and probable cause exists to believe a crime, including a traffic violation, has occurred, he or she may be ordered out of the vehicle, even though there is no reason to believe that the driver is a threat. See later in this chapter for a more thorough discussion of automobiles and the Fourth Amendment.

In addition to requiring reasonable suspicion, the Terry Court also stated that stops are to “last no longer than is necessary,” and the investigative methods employed during the stop should be the “least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.” If an officer detains a person longer than necessary, the investigatory detention turns into a full seizure (arrest), and the probable cause requirement of the Fourth Amendment commences.

It is not always easy to distinguish stops from arrests. But the determination is important because of the varying legal standards, reasonable suspicion and probable cause. Florida v. Royer, 460 U.S. 491 (1983), provides an example of the distinction between an investigatory detention and an arrest. The defendant, a suspected drug dealer, was questioned in a public area of an airport. After a few minutes he was taken 40 feet to a small police office, where he consented to a search of his luggage. The Court concluded that the search was the product of an illegal arrest, as less intrusive methods of investigation were available. As alternatives, the Court mentioned that the officers could have used narcotics dogs to inspect the luggage or could have im- mediately requested consent to search the defendant’s luggage. The act of requiring the defendant to accompany the officers to a small room 40 feet away transformed the detention from a Terry stop to an arrest, which was violative of the Fourth Amend- ment because it was not supported by probable cause. In another case from a federal appellate court, that the police drew their guns on, and handcuffed, a driver and its occupant did not convert the Terry stop into a full seizure requiring probable cause. But the court acknowledged that the distinction between full seizures and Terry stops is often hard to draw.40

The fact that there has been a lawful stop does not itself justify a frisk. The pur- pose behind permitting investigatory stops is the advancement of crime detection and prevention. Frisks, on the other hand, are permitted to protect officers and others from the person stopped.

To conduct a frisk, an officer must have a reasonable belief that the person is armed and dangerous. Again, the officer must be able to point to facts to support this conclusion. An officer may draw on his or her experience as a police officer in making the decision. Again, however, intuition (suspicion not supported by any facts) alone is not adequate.

Full searches require probable cause. A Terry frisk requires less, and, accordingly, the permitted intrusion is less. The search must be limited to the outer clothing. A search of interior clothing or pockets is improper.

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If the defendant is in an automobile, the officer may search those areas within the person’s immediate control.41 Once any lawful stop of a vehicle is made, the driver may be ordered out of the vehicle. However, to frisk an occupant of a vehicle, the Terry standard must be met.

If during a patdown an officer feels an item that may be a weapon, then the officer may reach into the clothing of the citizen to seize the item. Any item seized, whether a weapon, contraband, or other item associated with a crime, may be used as evidence.

If the officer does not feel an item that may be a weapon, the search can go no further. If the officer feels evidence of another crime, the intrusion may continue under the “plain feel” doctrine.

Plain Feel You have learned both the plain view doctrine and the Terry exception to the warrant and probable cause requirements of the Fourth Amendment. The plain feel doctrine is the product of their joining. That is, what happens when an officer who is conducting a Terry patdown discovers, through the sense of touch, not a weapon, but contraband? May this information be used to establish probable cause allowing a more intrusive search? This question was answered in Minnesota v. Dickerson, 508 U.S. 366 (1993), where the Supreme Court held that evidence felt during a Terry frisk may be used to es- tablish probable cause to support retrieving item, as long as the incriminating character of the evidence is immediately apparent.

The rules set out in Terry apply. First, stops must be supported by reasonable suspi- cion. Second, patdowns may be conducted only when an officer possesses a reasonable suspicion based on specific and articulable facts that the suspect may be armed and dangerous. Third, the patdown must be limited. Exploration of the clothing beyond what is necessary to determine dangerousness is not permitted, unless probable cause to believe that there is contraband is created through the officer’s sense of touch.

Plain View Another exception to the warrant requirement is the plain view doctrine. Under this rule, a warrantless seizure of evidence by an officer who is lawfully in a position to see the evidence is valid.

A large body of cases discusses the plain view doctrine. From those cases it can be gleaned that for a seizure to be lawful under the doctrine, the following must be shown: (1) the officer must lawfully be in an area (2) from which the object to be seized is in plain view, and (3) the officer does in fact see the item; (4) there is probable cause to believe the object is connected to a crime, and (5) the officer has a right to access the object itself.

First, the officer must be in a place where he or she has a right to be. An officer, as is true of anyone, has a right to be in public places. Thus, evidence seen in a public park, on the street, or in a business open to the public may be seized without a warrant.

Evidence located on private property is different. As a general rule, the police have no right to enter private property to seize evidence that was in plain view from a public area. In such cases the officer is expected to obtain a warrant; the officer’s observation

plain view doctrine

■ The rule that if police

officers see or come

across something while

acting lawfully, that item

may be used as evidence

in a criminal trial even if

the police did not have a

search warrant.

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provides the requisite probable cause. However, if an exception applies, such as pre- venting the destruction of the evidence, the officer may immediately seize the evidence.

If an officer is on private property for a lawful reason, then the officer may seize ev- idence in plain view without first obtaining a warrant. There are many reasons that an officer may be in a position to see evidence. Many of these were discussed in Coolidge. An officer who has to enter a home to execute an arrest warrant is not expected to overlook illegal objects in plain sight. The same is true if the officer is executing a search warrant, is in hot pursuit, is responding to an emergency, or is conducting a stop and frisk.

An officer who sees evidence because he or she has gone beyond the scope of the law enforcement right violates the Fourth Amendment, and the plain view doctrine will not support a seizure. For example, if an officer has a warrant to search a defen- dant’s garage, any evidence obtained from the defendant’s home, even if in plain view, may not be used at trial.

Second, the evidence seized must be in plain sight or plain view. Only the senses of sight and touch may be used to establish plain view. Use of the sense of touch is discussed later. Of course, whether an item is in plain sight depends on the scope of the officer’s authority. An officer who has a search warrant authorizing the search of a closet for a gun may seize cocaine lying on the floor of the closet. The same is not true if the warrant did not authorize a search of the closet. In any case, the item must be plainly visible from a place where the officer has a right to be.

If an officer moves something with the intent of gaining a better vantage of the item, it is not in plain view. In one case, the movement of a stereo to record its serial number was considered an illegal search because the officers were on the premises for another reason. The Court noted in that case that merely observing the stereo, which was in plain view, was legal. If the serial number had been visible without moving the stereo, then recording its number would not have been violative of the Fourth Amend- ment. But moving the stereo constituted a “new invasion” of the defendant’s rights.42

Officers may use mechanical or electrical aids in seeing evidence, so long as they are in a place they have a right to be and they are not conducting a search (encroaching on someone’s right to privacy). Flashlights and binoculars are examples of such aids.

Third, the officer must see the item. In Coolidge, the Court stated that

. . . the discovery of evidence in plain view must be inadvertent. The rationale of the exception to the warrant requirement, as just stated, is that a plain-view seizure will not turn an initially valid (and therefore limited) search into a “general” one, while the inconvenience of procuring a warrant to cover an inadvertent discovery is great. But where the discovery is anticipated, where the police know in advance that location of the evidence and intend to seize it, the situation is altogether different. The requirement of a warrant imposes no inconvenience whatever.43

In Horton v. California, 496 U.S. 128 (1990), the Supreme Court reversed itself in part by eliminating inadvertence as a requirement of plain view. The Court recognized that discoveries will be inadvertent in most instances but found requiring inadvertence unworkable. In Horton, an officer sought a search warrant for both the proceeds of a

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robbery and the weapons used during the robbery. The warrant was issued, but only for the proceeds. During the search, the officer discovered the weapon, as expected, in plain view. The Court held that even though expected, the gun was properly seized.

Fourth, the officer must have probable cause to believe that the object is subject to seizure, or, as the Court stated in Horton, the incriminating character of the object must be immediately apparent. Contraband (an item that is illegal itself, such as drugs) can be seized, as can property that is used to commit crimes, has been used in a crime, or has been stolen.

Fifth, the officer must be located such that he or she had a legal right to access the object. If not, the officer must obtain a warrant.

Search Incident to Arrest and the Protective Sweep Two search issues arise during and immediately following an arrest. First, may offi- cers search the arrestee’s person without first obtaining a warrant? Second, may of- ficers search the arrestee’s home, apartment, or other structure where the defendant is arrested?

The issue of searching the defendant’s person was addressed in United States v. Robinson, 414 U.S. 260 (1973), in which the Court held that, after a lawful arrest, the defendant’s person may be fully searched without first obtaining a warrant. The Court held that to require officers to obtain a warrant would needlessly endanger their lives and would increase the possibility of evidence being destroyed by the defendant. Search incident to arrest includes a search of the defendant’s clothing. There is no probable cause requirement for a search incident to arrest.

The second issue concerns searching the area where the defendant is arrested. The premier case in this area is Chimel v. California.

This case raises basic questions concerning the permissible scope under the Fourth Amendment of a search incident to a lawful arrest.

The relevant facts are essentially undisputed. Late in the afternoon of September 13, 1965, three police officers arrived at the Santa Ana, California, home of the petitioner with a warrant authorizing his arrest for the burglary of a coin shop. The of- ficers knocked on the door, identified themselves to the petitioner’s wife, and asked if they might come inside. She ushered them into the house, where

they waited 10 to 15 minutes until the petitioner returned home from work. When the petitioner en- tered the house, one of the officers handed him the arrest warrant and asked for permission to “look around.” The petitioner objected, but was advised that “on the basis of the lawful arrest,” the officers would nonetheless conduct the search. No search warrant had been issued.

Accompanied by the petitioner’s wife, the officers then looked through the entire three- bedroom house, including the attic, the garage,

CHIMEl V. CAlIFOrNIA 395 U.S. 752 (1969)

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and a small workshop. In some rooms the search was relatively cursory. In the master bedroom and sewing room, however, the officers directed the petitioner’s wife to open drawers and “to physi- cally remove contents of the drawers from side to side so that [they] might view items that would have come from [the] burglary.” After completing the search, they seized numerous items—primarily coins, but also several medals, tokens, and a few other objects. The entire search took between 45 minutes and an hour. . . .

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 conceal- ment 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 the room itself. Such searches, in the absence of well-recognized excep- tions, may be made only under the authority of a search warrant. . . .

Application of sound Fourth Amendment prin- ciples to the facts of this case produces a clear result. . . . The scope of the search was . . . “unrea- sonable” under the Fourth and Fourteenth Amend- ments, and the petitioner’s conviction cannot stand.

Reversed.

CHIMEl V. CAlIFOrNIA (c o nt i nu e d)

Chimel significantly changed the law, as before Chimel was decided officers had the authority to search a much greater area as incident to arrest. The “within the defendant’s immediate control” test continues to be the governing law. As with any other lawful search and seizure, any evidence obtained may be used to prosecute the defendant.

A related concept, the protective sweep, was given constitutional recognition in Maryland v. Buie, 494 U.S. 325 (1990). A protective sweep is a brief and limited war- rantless search of an arrestee’s home, which is permitted if the defendant is arrested therein. The purpose of the protective sweep is to check the house for other persons who may pose a danger to the arresting officers. See later in this chapter for an extended discussion of searches incident to arrest and protective sweeps.

Finally, “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile,” including the contents of any containers found in that area.44

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Preservation of Evidence In some instances evidence may be destroyed before a warrant can be obtained. In such cases an officer may make a warrantless search and seizure.

Although the typical case involves the destruction of evidence, the preservation- of-evidence theory also has been applied to evanescent evidence (evidence that may vanish on its own). For example, in one case a defendant, who was arrested for drunk driving, was subjected to a warrantless blood alcohol test. The Court concluded that the warrantless test was reasonable under the Fourth Amendment.

The officer in the present case, however, might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened “the destruction of evidence.” . . . We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had to be taken to bring the accused to the hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner’s arrest.45

So, any evidence that may be destroyed, intentionally or not, before a warrant can be obtained, can be the foundation of a warrantless search and seizure under the preservation-of-evidence exception to the Fourth Amendment’s warrant requirement. See Chapter 13 for more on this subject.

Emergency responses and Hot Pursuit One of the many responsibilities of being a police officer is to respond to emergencies and to assist those in danger. Police officers are permitted to enter areas protected by the Fourth Amendment without a warrant if there is an emergency. For example, an officer may respond to cries for help from within a home or may enter a building that is on fire to assist firefighters. While the cause for entry must be genuine, it need not rise to the level of threatening life. In Brigham City v. Stuart, 547 U.S. 398 (2006), warrantless police entry of a home, following an announcement that they were entering, to quell a fight between four adults and a juvenile was upheld. During the fight, the juvenile punched one of the adults in the face, causing him to spit blood into a sink. The Court found that the officers were objectively reasonable in assuming the adult might need assistance and that the fight could escalate, leading to more serious injuries. Of course, once inside, any evidence in plain view may be seized. Also, officers may remedy any immediate problems, secure the premises, and then obtain a warrant before proceeding further, provided that no exigent circumstances justify a continued presence and search.

It has been argued that the government has such a great interest, especially in murder cases, in having immediate access to crime scenes that the Fourth Amendment warrant re- quirement should be dispensed with. The Supreme Court rejected that position in Mincey v. Arizona, 437 U.S. 385 (1978), in which a warrantless four-day search of an apartment where a police officer was murdered was held violative of the Fourth Amendment.

Similar to the emergency exception is the hot pursuit exception. An officer who is chasing a suspect does not have to end the pursuit at the door of a home or business.

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The normally unlawful entry into the structure is permitted to catch the defendant. Again, once inside, the plain view exception applies.

Open Fields The open fields doctrine is not, technically, an exception to the search warrant requirement. That is because, to be an exception to the Fourth Amendment warrant requirement, the Fourth Amendment must apply to the conduct of the officers. The Supreme Court has held that the “open fields” around one’s home are not protected by the Fourth Amendment, so officers are free to intrude upon such areas without first obtaining a warrant. In addition, officers will not be liable for trespass if they make such an intrusion while performing a lawful duty.46

Open fields are not protected, due to the language of the Fourth Amendment itself: “The right of the people to be secure in their persons, houses, papers, and ef- fects. . . .” The Supreme Court has found that this language extends the Fourth Amend- ment’s protection only to a person’s home and the curtilage of that home.

Curtilage is the area directly around one’s home. It is treated as part of the home, as the Court has recognized that a person’s privacy interest does not end at the front door of the home. Determining whether an area is curtilage, and pro- tected, or an open field, and unprotected, can be troublesome. In United States v. Dunn,47 the high Court held that a barn located 60 yards from a house was not within the curtilage, even though a fence enclosed the barn. In that opinion, the Court stated four factors that should be considered when making an open fields determination:

1. The proximity of the area claimed to be curtilage from the home. 2. Whether the area enclosed is enclosed with the home. 3. The nature of the use of the area. 4. The attempts of the residents to keep the area private.

The proximity of the area in question to the home, the fact that it is enclosed by fencing, that it is commonly used by the residents, and that the residents have taken measures to assure privacy in the area, all increase the probability that the area will be determined to be curtilage. The issue is whether the residents have a reasonable expec- tation of privacy in the area.

The advent of aerial surveillance has made it possible for law enforcement officers to see what were once remote areas. The question in the Fourth Amendment context is: Do people have a reasonable expectation of privacy in areas observable from aircraft?

One federal district court outlined five factors to be considered when examining the validity of aerial surveillance:

1. The height of the aircraft. 2. The size of the objects viewed. 3. The nature of the use of the area. 4. The number of flights over the area. 5. The frequency and duration of the aerial surveillance.48

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Structures, even though in an open field, may be protected if it appears that one took measures to assure privacy.49 However, the fact that an area is curtilage does not mean that a warrantless aerial observation is unreasonable. In a 1986 case, the Supreme Court upheld an aerial observation of a backyard that was surrounded by a fence and not visible from the street.50 In another twist of facts, a Wisconsin court upheld a tres- passory installation of cameras in an open field by police. The images of the defendants growing marijuana were admitted at trial.51

The impact that the 2012 Jones decision, reinstating the property test for a search, will have on the open fields doctrine remains to be seen. The rationale underlying the open fields doctrine is that there is no reasonable expectation to privacy in an open field. But if the government intrudes, trespasses, into a defendant’s fields, Jones may demand a different result.

Finally, although the Fourth Amendment speaks of “houses,” its protection extends to businesses and other structures as well. However, it is likely that the expectation of privacy will be less stringent in a business than in a dwelling.

Border Searches and Profiles It is a long-standing principle of international and U.S. law that a nation’s authority to protect itself is at its zenith at its borders. For this reason, searches at the borders of the United States do not require probable cause. In fact, no suspicion is required whatsoever. This rule applies to searches of both luggage and persons.52 It also applies to vehicles that cross the border. For example, border agents may remove, inspect, and reassemble a car’s gas tank with no suspicion of wrongdoing.53 How- ever, border searches must comply with the reasonableness requirement of the Fourth Amendment.54

For a strip search to be conducted, a customs official must have a “real suspicion” that illegality is afoot. As for more invasive searches, such as cavity searches, more sus- picion is required. A customs official must be aware of a “clear indication” of illegality before such searches are conducted. Further, these searches must be conducted in a private and medically safe environment. A clear indication is less than probable cause, but more than either the Terry reasonable suspicion or the border strip-search “real suspicion” standards.

The border search exception to the Fourth Amendment actually extends beyond the border. For example, first arrival ports in the United States of international flights are treated as borders for purposes of the Fourth Amendment. Roadblock-style check- points miles from a border intended to discover illegal aliens have been approved,55 but the authority to search is more limited than at the border. Officers may not search the occupants of the vehicles stopped at these checkpoints without probable cause.56 Ran- dom stops of vehicles away from the border must be supported by reasonable suspicion, because they are treated as Terry detentions.

Customs officials commonly use profiles to determine who to detain and search. A profile is an established set of criteria that are believed to indicate a probability that a person is involved in illegal activity. For example, a person who makes frequent trips

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between the United States and Colombia (a nation noted for its drug production and exportation), who carries little or no luggage, who has paid for airline tickets with cash, whose visits to Colombia are for short periods of time (e.g., 48 hours), and who behaves nervously at the customs desk, would meet a drug courier profile. Similar profiles have been used to stop motorists in Florida suspected of transporting and trafficking drugs.

Two issues are raised by profiles: first, whether a profile may be used to establish a reasonable suspicion, thereby permitting a Terry stop; and second, whether profiles justify searches.

As to the first question, the answer is yes. However, a profile must be reasonable. Courts examine the totality of the circumstances when examining the validity of a pro- file. Although no one factor in a profile may justify a temporary detention, the whole picture may. Although race may be a factor in the decision, the Supreme Court held in United States v. Brignoni-Ponce, 422 U.S. 873 (1975), that race alone does not establish reasonable suspicion, even if the detention occurs near the Mexican border and the oc- cupants appear to be of Mexican ancestry. The Court enumerated factors that may be taken into account:

1. The characteristics of the area, including the proximity to the border, the usual patterns of traffic on the road, and experience with alien traffic.

2. Information concerning recent illegal border crossings in the area. 3. The driver’s behavior, such as erratic driving and obvious attempts to evade

officers. 4. The type of vehicle, such as a station wagon with large compartments, which are

frequently used for transporting concealed aliens. 5. Whether the vehicle appears heavily loaded or has an extraordinary number of

occupants. 6. Whether passengers are attempting to hide. 7. The characteristics of persons living in Mexico, including mode of dress and hair

styles. 8. Other meaningful factors in light of the officers’ experiences in detecting illegal

aliens.

This list is not exclusive, and profiles vary depending upon the situation. Nevertheless, the Brignoni-Ponce decision provided a basis upon which law enforce- ment agencies can create profiles and courts can adjudge the validity of those profiles.

This leads to the second question: May profiles be used to justify searches? Recall that at borders no suspicion is necessary to conduct general searches of persons and things. However, to conduct body searches a “real suspicion” must exist, and to conduct more invasive searches there must be a “clear indication” of some illegality. Although a profile may satisfy the real suspicion test, it does not, acting alone, justify more invasive searches.

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Outside the border areas, profiles may be used to conduct Terry stops, but no more. To conduct a frisk of the persons detained, a reasonable belief as to dangerous- ness must exist. Probable cause is required if a full search of a person, vehicle, or other things is conducted.

Finally, although profiles may be used to support detentions, they may not be used at trial to establish guilt.57

The rAciAL ProFiLinG conTroVerSY

In recent years the use of race as a factor in law enforcement and corrections officer’s decision making has been the subject of considerable controversy. Many scholars and commentators have asserted that it is common for po- lice officers to stop black motorists simply because of their skin color. This phenomenon has become known as “driving while black.” In addition to traf- fic stops, race is often used as a factor to determine whose bags or person should be searched in airports and at borders.

Racial profiling was already the subject of considerable debate when the United States was attacked on September 11, 2001, by 19 Muslim terror- ists. Several hijackings in the 1970s and 1980s, the 1993 World Trade Center bombing, the 1996 bombing of a U.S. military site in Saudi Arabia, the bomb- ings of two U.S. embassies in 1996, the attack on the U.S.S. Cole in 2000, and other attacks on U.S. citizens and interests were all committed by Muslim extremists. In the wake of these events, many people called for increased scrutiny of people who appeared to be of Arab descent or who appeared to be Muslim. Others contended that such profiling was inherently wrong.

In an effort not to engage in “racial profiling,” the United States Sec- retary of Transportation, Norman Mineta, ordered that race not be used as a factor by airport security officers when making decisions to search bag- gage or persons. This policy had many critics, who contended that ethnicity and dress were legitimate characteristics given the nature of threat to the United States.

The Supreme Court of the United States has found a middle ground. The Court has held that race, ethnicity, religion, skin color, and similar character- istics may not be the sole basis upon which a person is searched or seized. However, the Court held in United States v. Brignoni-Ponce (1975) that race may be one of many factors law enforcement officers may consider when stopping motorists or conducting border searches, provided that race can be connected with criminality in the particular circumstances in which the officers are operating.

Source: David A. Harris, “The Stories, The Statistics, and the Law: Why Driving While Black Matters,” 84 Minnesota Law Review 265 (1999).

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Automobiles and roadblocks Privacy in automobiles is protected by the Fourth Amendment. However, the Supreme Court has not extended full Fourth Amendment protection to the occupants of auto- mobiles. The Court’s rationale for decreased protection is twofold. First, due to the mobile nature of automobiles, evidence can disappear quickly. Second, automobiles are used on the public roads where they and their occupants are visible to the public; thus, an occupant of an automobile has a lesser expectation of privacy than does the occupant of a home.

Stops Of course, a motorist may be stopped if an officer has probable cause. In addition, a Terry stop may be made if there is reasonable suspicion that an occupant has commit- ted a crime or that contraband will be found. As discussed earlier, Terry stops must be limited in duration and reasonable in method, and a frisk of the occupant is permissible only if the officer possesses a reasonable belief that the individual may have a weapon. If a stop is arbitrary, e.g. not supported by reasonable suspicion, probably cause, or for another legitimate road safety or traffic management reason, it violates the Fourth Amendment, as found in the Prouse case.

At 7:20 p.m. on November 30, 1976, a New Castle County . . . patrolman in a police cruiser stopped the automobile occupied by respondent. The pa- trolman smelled marihuana smoke as he was walking toward the stopped vehicle, and he seized marihuana in plain view on the car floor. Respon- dent was subsequently indicted for illegal posses- sion of a controlled substance. At a hearing on respondent’s motion to suppress the marihuana seized as a result of the stop, the patrolman testi- fied that prior to stopping the vehicle he had ob- served neither traffic or equipment violations nor any suspicious activity, and that he made the stop only in order to check the driver’s license and reg- istration. The patrolman was not acting pursuant to any standards, guidelines, or procedures pertain- ing to document spot checks, promulgated by ei- ther his department or the State Attorney General. Characterizing the stop as “routine,” the patrolman explained, “I saw the car in the area and wasn’t an- swering any complaints, so I decided to pull them

off.” The trial court granted the motion to suppress, finding the stop and detention to have been wholly capricious and therefore violative of the Fourth Amendment. . . .

The Delaware Supreme Court affirmed. . . . But the State of Delaware urges . . . these stops

are reasonable under the Fourth Amendment be- cause the State’s interest in the practice as a means of promoting public safety upon its roads more than outweighs the intrusion entailed. Although the record discloses no statistics concerning the extent of the problem of highway safety, in Delaware or in the Nation as a whole, we are aware of danger to life and property posed by vehicular traffic and the diffi- culties that even a cautious and experienced driver may encounter. We agree that the States have a vi- tal interest in ensuring that only those qualified to do so are permitted to operate motor vehicles, that these vehicles are fit for safe operation, and hence that licensing, registration, and vehicle inspection requirements are being observed. . . .

DElAWArE V. PrOUSE 440 U.S. 648 (1979)

(continued)

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Fourth Amendment issues also arise in the context of roadblocks, which are used by law enforcement officers in two situations. First, roadblocks assist in the apprehen- sion of a particular suspect. Second, in serving the regulatory function of protecting the public from unsafe drivers, officers may stop vehicles to determine if the car satisfies

DElAWArE V. PrOUSE (c o nt i nu e d)

The question remains, however, whether in the service of these important ends the discretionary spot check is a sufficiently productive mechanism to justify the intrusion upon Fourth Amendment interests which stops entail. On the record before us, that question must be answered in the negative. Given the alternative mechanisms available, both those in use and those that might be adopted, we are unconvinced that the incremental contribution to highway safety of the random spot check justifies the practice under the Fourth Amendment.

The foremost method of enforcing traffic and vehicle safety regulations, it must be recalled, is acting upon observed violations. Vehicle stops for traffic violations occur countless times each day; and on these occasions, licenses and registra- tion papers are subject to inspection and drivers without them will be ascertained. Furthermore, drivers without licenses are presumably the less safe drivers whose propensities may well exhibit themselves. . . .

Much the same can be said about the safety as- pects of automobiles as distinguished from drivers. Many violations of minimum vehicle-safety require- ments are observable, and something can be done about them by the observing officer, directly and im- mediately. Furthermore, in Delaware, as elsewhere, vehicles must carry and display current license plates, which themselves evidence that the vehicle is properly registered; and, under Delaware law, to qualify for annual registration a vehicle must pass the annual safety inspection and be properly insured. . . .

The marginal contribution to roadway safety possibly resulting from a system of spot checks cannot justify subjecting every occupant of every

vehicle on the roads to a seizure—limited in mag- nitude compared to other intrusions but nonethe- less constitutionally cognizable—at the unbridled discretion of law enforcement officials. To insist neither upon an appropriate factual basis for sus- picion directed at a particular automobile nor upon some other substantial and objective standard or rule to govern the exercise of discretion “would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than in- articulable hunches. . . .” This kind of standardless and unconstrained discretion is the evil the Court has discerned when in previous cases it has in- sisted that the discretion of the official in the field be circumscribed, at least to some extent. . . .”

Accordingly, we hold that except in those situ- ations in which there is at least articulable and rea- sonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automo- bile and detaining the driver in order to check his driver’s license and the registration of the automo- bile are unreasonable under the Fourth Amend- ment. This holding does not preclude the State of Delaware or other States from developing meth- ods for spot checks that involve less intrusions or that do not involve unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock-type stops is one possible alternative. We hold only that persons in automobiles on pub- lic roadways may not for that reason alone have their travel and privacy interfered with at the un- bridled discretion of police officers. The judgment below is affirmed.

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the state’s safety requirements, whether the driver is properly licensed, and whether the vehicle is properly registered. Regarding the former, reasonable suspicion is required before a stop can be made. As to the latter, temporary regulatory detentions are per- mitted so long as they are both objectively random and reasonable. That is, the police must use an objective system in deciding what automobiles will be stopped. Every car, or every tenth car, or some similar method is permissible.

droneS

The use of unmanned aerial vehicles by the U.S. military is widely known. The military has used drones for surveillance, in combat, and to execute ter- rorists. Drones are attractive surveillance and fighting weapons because they are fast, inexpensive, they can survey and record images and tracks persons and objects from a great distances using cameras, thermal detection devices, radars and other equipment, and because they don’t require a human pilot, they pose little risk to life. Drones can be as small as an insect and as large as a jet. For all their benefits, they also pose a serious threat to privacy. For this reason, the use of drones by police and other government agencies for criminal surveillance, to monitor borders, and for other purposes, as well as by private individuals, has begun to garner the public’s attention.

Many people are concerned that an impending loosening of federal re- strictions (2015) coupled with the low cost of drones will lead to a prolifera- tion of the vehicles. The Federal Aviation Administration has predicted that 30,000 drones will be flying in the United States before 2023.58 In response to the threat to privacy, many states have preemptively enacted laws re- stricting their use. By September 2013 nine states had laws restricting the use of drones. Most of those laws restricted use by law enforcement only, one restricted use by both private persons and law enforcement, and one state restrict individual use but not police use.59

Use by police raises Fourth Amendment concerns that the courts will have to address in the years to come. Existing Fourth Amendment law defin- ing aerial searches by traditional aircraft and defining open fields and curti- lage may prove outdated when examined in the context of drones.

The Supreme Court has also upheld roadblocks intended to discover drunk driv- ers. Michigan State Police v. Sitz (1990)60 upheld a highway sobriety checkpoint program where 126 vehicles passed through the checkpoint, the average delay for each vehicle was 25 seconds, and 2 intoxicated drivers were arrested. The Court found that the stops were seizures under the Fourth Amendment, but that they were reasonable. In support of this conclusion, the Court stressed that the stops were of limited duration; that drunk drivers are a serious problem in the nation, and accordingly Michigan had a compelling interest in

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performing the sobriety checks; that all stops were governed by objective guidelines; that the guidelines required all vehicles to be stopped, thereby preventing arbitrary decisions by individual officers; that all officers were fully uniformed, thereby lessening motorists’ con- cerns; and finally, that data support the conclusion that sobriety checkpoints are effective in apprehending drunk drivers. In the 2000 Supreme Court decision, City of Indianapolis v. Edmond, the Court invalidated systematic stops of cars intended to intercept illegal drugs.

In Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990), and United States v. Martinez-Fuerte, 428 U.S. 543 (1976), we held that brief, suspicionless seizures at highway checkpoints for the purposes of combating drunk driving and intercepting illegal immigrants were constitutional. We now consider the constitutionality of a highway checkpoint pro- gram whose primary purpose is the discovery and interdiction of illegal narcotics.

In August 1998, the city of Indianapolis began to operate vehicle checkpoints on Indianapolis roads in an effort to interdict unlawful drugs. The city conducted six such roadblocks between August and November that year, stopping 1,161 vehicles and arresting 104 motorists. Fifty-five arrests were for drug-related crimes, while 49 were for offenses unrelated to drugs. The overall “hit rate” of the pro- gram was thus approximately nine percent.

The parties stipulated to the facts concerning the operation of the checkpoints by the Indianapo- lis Police Department (IPD) for purposes of the pre- liminary injunction proceedings instituted below. At each checkpoint location, the police stop a pre- determined number of vehicles. Approximately 30 officers are stationed at the checkpoint. Pursuant to written directives issued by the chief of police, at least one officer approaches the vehicle, advises the driver that he or she is being stopped briefly at a drug checkpoint, and asks the driver to produce a license and registration. The officer also looks for

signs of impairment and conducts an open-view ex- amination of the vehicle from the outside. A narcot- ics-detection dog walks around the outside of each stopped vehicle.

The directives instruct the officers that they may conduct a search only by consent or based on the appropriate quantum of particularized suspicion. The officers must conduct each stop in the same manner until particularized suspicion develops, and the officers have no discretion to stop any vehicle out of sequence. The city agreed in the stipulation to operate the checkpoints in such a way as to en- sure that the total duration of each stop, absent rea- sonable suspicion or probable cause, would be five minutes or less.

The affidavit of Indianapolis Police Sergeant Marshall DePew, although it is technically outside the parties’ stipulation, provides further insight concerning the operation of the checkpoints. Ac- cording to Sergeant DePew, checkpoint locations are selected weeks in advance based on such considerations as area crime statistics and traffic flow. The checkpoints are generally operated dur- ing daylight hours and are identified with lighted signs reading, “NARCOTICS CHECKPOINT___MILE AHEAD, NARCOTICS K-9 IN USE, BE PREPARED TO STOP.” Once a group of cars has been stopped, other traffic proceeds without interruption until all the stopped cars have been processed or diverted for further processing. Sergeant DePew also stated

CITY OF INDIANAPOlIS V. EDMOND 531 U.S. 32 (2000)

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that the average stop for a vehicle not subject to fur- ther processing lasts two to three minutes or less.

Respondents James Edmond and Joell Palmer were each stopped at a narcotics checkpoint in late September 1998. Respondents then filed a lawsuit on behalf of themselves and the class of all motor- ists who had been stopped or were subject to be- ing stopped in the future at the Indianapolis drug checkpoints. . . .

The Fourth Amendment requires that searches and seizures be reasonable. A search or seizure is ordinarily unreasonable in the absence of indi- vidualized suspicion of wrongdoing. While such suspicion is not an “irreducible” component of reasonableness, Martinez-Fuerte, 428 U.S., at 561, we have recognized only limited circumstances in which the usual rule does not apply. For example, we have upheld certain regimes of suspicionless searches where the program was designed to serve “special needs, beyond the normal need for law enforcement.” We have also allowed searches for certain administrative purposes without particular- ized suspicion of misconduct, provided that those searches are appropriately limited. We have also upheld brief, suspicionless seizures of motorists at a fixed Border Patrol checkpoint designed to in- tercept illegal aliens, and at a sobriety checkpoint aimed at removing drunk drivers from the road. In addition, in Delaware v. Prouse, 440 U.S. 648, 663 (1979), we suggested that a similar type of road- block with the purpose of verifying drivers’ licenses and vehicle registrations would be permissible. In none of these cases, however, did we indicate approval of a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing.

In Martinez-Fuerte, we entertained Fourth Amendment challenges to stops at two perma- nent immigration checkpoints located on major

United States highways less than 100 miles from the Mexican border. We noted at the outset the par- ticular context in which the constitutional question arose, describing in some detail the “formidable law enforcement problems” posed by the northbound tide of illegal entrants into the United States. . . . In Martinez-Fuerte, we found that the balance tipped in favor of the Government’s interests in policing the Nation’s borders. . . .

In Sitz, we evaluated the constitutionality of a Michigan highway sobriety checkpoint program. The Sitz checkpoint involved brief suspicionless stops of motorists so that police officers could de- tect signs of intoxication and remove impaired driv- ers from the road. Motorists who exhibited signs of intoxication were diverted for a license and reg- istration check and, if warranted, further sobriety tests. This checkpoint program was clearly aimed at reducing the immediate hazard posed by the pres- ence of drunk drivers on the highways, and there was an obvious connection between the imperative of highway safety and the law enforcement practice at issue. The gravity of the drunk driving problem and the magnitude of the State’s interest in getting drunk drivers off the road weighed heavily in our determination that the program was constitutional. In Prouse, we invalidated a discretionary, suspicion- less stop for a spot check of a motorist’s driver’s li- cense and vehicle registration. The officer’s conduct in that case was unconstitutional primarily on ac- count of his exercise of “standardless and uncon- strained discretion.” We nonetheless acknowledged the States’ “vital interest in ensuring that only those qualified to do so are permitted to operate motor vehicles, that these vehicles are fit for safe opera- tion, and hence that licensing, registration, and ve- hicle inspection requirements are being observed.” Accordingly, we suggested that “[q]uestioning of all oncoming traffic at roadblock-type stops” would

CITY OF INDIANAPOlIS V. EDMOND (c o nt i nu e d)

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be a lawful means of serving this interest in high- way safety. We further indicated in Prouse that we considered the purposes of such a hypothetical roadblock to be distinct from a general purpose of investigating crime. . . . Not only does the com- mon thread of highway safety thus run through Sitz and Prouse, but Prouse itself reveals a difference in the Fourth Amendment significance of highway safety interests and the general interest in crime control. . . .

It is well established that a vehicle stop at a highway checkpoint effectuates a seizure within the meaning of the Fourth Amendment. The fact that officers walk a narcotics-detection dog around the exterior of each car at the Indianapolis checkpoints does not transform the seizure into a search. Just as in Place, an exterior sniff of an automobile does not require entry into the car and is not designed to disclose any information other than the presence or absence of narcotics. Like the dog sniff in Place, a sniff by a dog that simply walks around a car is “much less intrusive than a typical search.” Rather, what principally distinguishes these checkpoints from those we have previously approved is their primary purpose.

As petitioners concede, the Indianapolis check- point program unquestionably has the primary pur- pose of interdicting illegal narcotics. . . .

We have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing. Rather, our check- point cases have recognized only limited exceptions to the general rule that a seizure must be accompa- nied by some measure of individualized suspicion. We suggested in Prouse that we would not credit the “general interest in crime control” as justifica- tion for a regime of suspicionless stops (440 U.S., at 659, n.18). Consistent with this suggestion, each of the checkpoint programs that we have approved

was designed primarily to serve purposes closely related to the problems of policing the border or the necessity of ensuring roadway safety. Because the primary purpose of the Indianapolis narcotics checkpoint program is to uncover evidence of or- dinary criminal wrongdoing, the program contra- venes the Fourth Amendment.

Petitioners propose several ways in which the narcotics-detection purpose of the instant check- point program may instead resemble the primary purposes of the checkpoints in Sitz and Martinez- Fuerte. Petitioners state that the checkpoints in those cases had the same ultimate purpose of ar- resting those suspected of committing crimes. Se- curing the border and apprehending drunk drivers are, of course, law enforcement activities, and law enforcement officers employ arrests and criminal prosecutions in pursuit of these goals. If we were to rest the case at this high level of generality, there would be little check on the ability of the authorities to construct roadblocks for almost any conceivable law enforcement purpose. Without drawing the line at roadblocks designed primarily to serve the gen- eral interest in crime control, the Fourth Amend- ment would do little to prevent such intrusions from becoming a routine part of American life.

Petitioners also emphasize the severe and in- tractable nature of the drug problem as justifica- tion for the checkpoint program. There is no doubt that traffic in illegal narcotics creates social harms of the first magnitude. The law enforcement prob- lems that the drug trade creates likewise remain daunting and complex, particularly in light of the myriad forms of spinoff crime that it spawns. The same can be said of various other illegal activi- ties, if only to a lesser degree. But the gravity of the threat alone cannot be dispositive of questions concerning what means law enforcement officers may employ to pursue a given purpose. Rather,

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in determining whether individualized suspicion is required, we must consider the nature of the interests threatened and their connection to the particular law enforcement practices at issue. We are particularly reluctant to recognize exceptions to the general rule of individualized suspicion where governmental authorities primarily pursue their general crime control ends.

Nor can the narcotics-interdiction purpose of the checkpoints be rationalized in terms of a high- way safety concern similar to that present in Sitz. The detection and punishment of almost any crimi- nal offense serves broadly the safety of the com- munity, and our streets would no doubt be safer but for the scourge of illegal drugs. Only with respect to a smaller class of offenses, however, is society con- fronted with the type of immediate, vehicle-bound threat to life and limb that the sobriety checkpoint in Sitz was designed to eliminate.

Petitioners also liken the anticontraband agenda of the Indianapolis checkpoints to the antismuggling purpose of the checkpoints in Martinez-Fuerte. . . .

The primary purpose of the Indianapolis nar- cotics checkpoints is in the end to advance “the general interest in crime control,” We decline to sus- pend the usual requirement of individualized suspi- cion where the police seek to employ a checkpoint primarily for the ordinary enterprise of investigat- ing crimes. We cannot sanction stops justified only by the generalized and ever-present possibility that interrogation and inspection may reveal that any given motorist has committed some crime.

Of course, there are circumstances that may justify a law enforcement checkpoint where the primary purpose would otherwise, but for some emergency, relate to ordinary crime control. For ex- ample, as the Court of Appeals noted, the Fourth Amendment would almost certainly permit an

appropriately tailored roadblock set up to thwart an imminent terrorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route. . . .

Petitioners argue that our prior cases preclude an inquiry into the purposes of the checkpoint program. For example, they cite Whren v. United States, 517 U.S. 806 (1996), and Bond v. United States, 529 U.S. 334 (2000), to support the propo- sition that “where the government articulates and pursues a legitimate interest for a suspicionless stop, courts should not look behind that interest to determine whether the government’s ‘primary pur- pose’ is valid.” These cases, however, do not control the instant situation.

It goes without saying that our holding today does nothing to alter the constitutional status of the sobriety and border checkpoints that we ap- proved in Sitz and Martinez-Fuerte, or of the type of traffic checkpoint that we suggested would be law- ful in Prouse. The constitutionality of such check- point programs still depends on a balancing of the competing interests at stake and the effectiveness of the program. When law enforcement authorities pursue primarily general crime control purposes at checkpoints such as here, however, stops can only be justified by some quantum of individualized suspicion.

Our holding also does not affect the validity of border searches or searches at places like airports and government buildings, where the need for such measures to ensure public safety can be par- ticularly acute. Nor does our opinion speak to other intrusions aimed primarily at purposes beyond the general interest in crime control. Our holding also does not impair the ability of police officers to act appropriately upon information that they properly learn during a checkpoint stop justified by a law- ful primary purpose, even where such action may

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result in the arrest of a motorist for an offense un- related to that purpose. Finally, we caution that the purpose inquiry in this context is to be conducted only at the programmatic level and is not an invita- tion to probe the minds of individual officers acting at the scene.

Because the primary purpose of the Indianapo- lis checkpoint program is ultimately indistinguish- able from the general interest in crime control, the checkpoints violate the Fourth Amendment. The judgment of the Court of Appeals is accordingly affirmed.

Although systematic roadblocks are proper, discretionary spot checks are not. In the Prouse case, the Supreme Court held that arbitrary stops of automobiles by law enforcement officers violate the Fourth Amendment.

Finally, note that profiles are used by some law enforcement agencies to establish a reasonable suspicion to stop motorists. For example, drug courier profiles are used in Florida, and illegal alien profiles are used by the Border Patrol. See earlier in this chap- ter for a more thorough discussion of the use of profiles. The Supreme Court has also held that the validity of a stop is determined by whether probable cause exists to believe a traffic violation has occurred, not the motives of the police. In Whren v. United States (1996),61 the Court rejected a defendant’s claim that a police officer who stops an indi- vidual who has violated a traffic law with the genuine purpose of investigating another crime (e.g., drug possession) has violated the Fourth Amendment, so long as the officer had probable cause to believe the driver has committed a traffic offense.

Searches Where the Fourth Amendment’s mandates have been reduced is in the context of the warrant requirement. In Carroll v. United States, 267 U.S. 132 (1925), it was an- nounced that a warrantless search of a vehicle stopped on a public road is reasonable, provided the officer has probable cause to believe that an object subject to seizure will be found in the vehicle. The existence of probable cause is the key to the search, and no exigency has to exist for a police officer to conduct such a warrantless search.62 This authority has been extended to permit the search to continue after the vehicle is im- pounded.63 The Supreme Court has also validated warrantless seizures of vehicles when probable cause exists to believe the vehicle itself is forfeitable because the automobile had been used to traffic drugs.64

The sticky question in this area is the scope of the search. Generally, an officer is given the scope that a magistrate would have if a warrant were sought. Thus, if an of- ficer has probable cause to believe that a shotgun used in a crime will be found in a car, a search of the glove box is improper. The opposite would be true if the item sought was a piece of jewelry, such as a ring.

Officers may also search closed items found in the vehicle, provided probable cause exists to believe an item sought may be contained therein.65 The same rules apply as previously discussed. Rifling through a suitcase found in a car in search of a stolen

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painting that is larger than the suitcase is unreasonable and violative of the Fourth Amendment. Once the sought-after item is found, the search must cease.

An automobile may be searched incident to the arrest of its driver. This includes situations where arrestees have exited their cars, were immediately arrested, and the car is still within a reasonable proximity of the location of the arrest.66 The purpose of this exception is to protect officers and others from hidden weapons. Accordingly, if a driver has been arrested and can no longer access the automobile, a warrantless search is not justified.

On August 25, 1999, acting on an anonymous tip that the residence at 2524 North Walnut Avenue was being used to sell drugs, Tucson police offi- cers Griffith and Reed knocked on the front door and asked to speak to the owner. Gant answered the door and, after identifying himself, stated that he expected the owner to return later. The officers left the residence and conducted a records check, which revealed that Gant’s driver’s license had been suspended and there was an outstanding warrant for his arrest for driving with a suspended license.

When the officers returned to the house that evening, they found a man near the back of the house and a woman in a car parked in front of it. After a third officer arrived, they arrested the man for providing a false name and the woman for possessing drug paraphernalia. Both arrest- ees were handcuffed and secured in separate patrol cars when Gant arrived. The officers recog- nized his car as it entered the driveway, and Of- ficer Griffith confirmed that Gant was the driver by shining a flashlight into the car as it drove by him. Gant parked at the end of the driveway, got out of his car, and shut the door. Griffith, who was about 30 feet away, called to Gant, and they ap- proached each other, meeting 10 to 12 feet from Gant’s car. Griffith immediately arrested Gant and handcuffed him.

Because the other arrestees were secured in the only patrol cars at the scene, Griffith called for backup. When two more officers arrived, they locked Gant in the backseat of their vehicle. After Gant had been handcuffed and placed in the back of a patrol car, two officers searched his car: One of them found a gun, and the other discovered a bag of cocaine in the pocket of a jacket on the backseat.

Gant was charged with two offenses—possession of a narcotic drug for sale and possession of drug paraphernalia (i.e., the plastic bag in which the cocaine was found). He moved to suppress the evi- dence seized from his car on the ground that the warrantless search violated the Fourth Amendment. Among other things, Gant argued that Belton did not authorize the search of his vehicle because he posed no threat to the officers after he was hand- cuffed in the patrol car and because he was arrested for a traffic offense for which no evidence could be found in his vehicle. When asked at the suppres- sion hearing why the search was conducted, Officer Griffith responded: “Because the law says we can do it. . . .

In Chimel, we held that a search incident to ar- rest may only include “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

ArIZONA V. GANT 556 U.S. ___ (2009)

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For the search incident to arrest to apply, the arrestee must not only have access to the space, but there must actually be an arrest. A warrantless search of an automobile after issuing a traffic ticket to the driver is violative of the Fourth Amendment— even though the officer could have arrested the driver and then searched the car incident to the arrest.67 Note that Gant contains a second important principle; it authorizes war- rantless searches, even if the driver doesn’t have access to the automobile, if officers have reason to believe the evidence that is the subject of the arrest will be found inside. May the occupants of a vehicle be searched incident to a proper search of the vehicle? The answer is no68—but if an officer has probable cause to believe that one of the occupants has hidden the item sought on his or her person, a search of that occupant is permis- sible. Or, if an officer has a reasonable belief that one of the occupants may be armed, a frisk of the outer clothing is permitted to ensure officer safety.69

Occupants Concerning the occupants of lawfully stopped cars, the Supreme Court has held that both driver and passengers may be ordered to exit the car without cause to believe they hold contraband, a threat to the officer, or act out of fear of flight. The Court held that it may be done routinely to protect the safety of police officers.70

Inventory Searches Police officers may impound vehicles whenever the driver or owner is arrested. Impoundment means towing the vehicle to a garage or parking lot for storage.

Although the decision to impound a vehicle is generally left to the discretion of the police officer, an officer may not refuse a less intrusive manner of caring for the vehicle. For example, if a husband and wife are riding together, and the husband is arrested for

ArIZONA V. GANT (c o nt i nu e d)

evidence.” That limitation, which continues to de- fine the boundaries of the exception, ensures that the scope of a search incident to arrest is commen- surate with its purposes of protecting arresting of- ficers and safeguarding any evidence of the offense of arrest that an arrestee might conceal or destroy. If there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident- to-arrest exception are absent and the rule does not apply. . . .

Although it does not follow from Chimel, we also conclude that circumstances unique to the vehicle context justify a search incident to a law- ful arrest when it is “reasonable to believe evidence

relevant to the crime of arrest might be found in the vehicle. . . .

Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to be- lieve the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreason- able unless police obtain a warrant or show that another exception to the warrant requirement ap- plies. The Arizona Supreme Court correctly held that this case involved an unreasonable search. Accordingly, the judgment of the State Supreme Court is affirmed.

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drunk driving, the wife is to be permitted to drive the vehicle home, provided she is capable.

Once impounded, an inventory search may be conducted. The purpose of an in- ventory search is to protect the owner of the vehicle from vandalism, protect the safety of the officers and others, and protect the police department from claims of theft.

Because inventory searches are not conducted with an intent to discover evidence, there is no requirement of probable cause. If the facts of a case show that the police impounded a vehicle for the purpose of searching it, the search is improper.

Inventory searches are limited in scope. Although it is reasonable to search un- locked glove compartments and trunks, it is unreasonable under the Fourth Amend- ment if they are locked. A search of a vehicle’s seats, floor area, and dashboard are routine. The Supreme Court has also stated that closed items found in impounded vehicles are subject to inventory searches.71

To avoid arbitrary inventory searches, police departments are expected, if not re- quired, to establish an inventory search policy and procedure. All items discovered dur- ing an inventory search are to be recorded. See Exhibit 12–4 for a summary of the most prominent Supreme Court Fourth Amendment cases in the motor vehicle context.

Prisoners The law generally distinguishes between pretrial detainees and convictees. The former includes individuals who have been arrested but not convicted. Because pretrial detain- ees have not been convicted, they may not be punished or rehabilitated. Instead the objective of their detention is to ensure their appearance at trial. Because they have not been convicted, pretrial detainees are not protected by the Eighth Amendment’s prohi- bition of cruel and unusual punishments. But they are protected by due process.72 In some instances the protections mirror one another. In others they do not.

Local jails, which commonly house both pretrial detainees and convictees sen- tenced to a year or less, must, at times, distinguish in the treatment of the two popula- tions. The most obvious difference is that pretrial detainees may not be subjected to forms of punishment, such as a program of hard labor or shaming. Another example concerns legal materials. In order for pretrial detainees to properly prepare for trial, they have greater privacy rights to their papers, and access to counsel, than do convict- ees. Of course jailers must maintain order, prevent escapes, and provide for the safety of everyone in the jail setting. Rules that advance these objectives may be applied to all inmates, pretrial and convictees. Whether pretrial detainees can be subjected to system- atic but suspicionless strip searches at the time of first admission to a facility was the question in the 2012 case Florence v. Board of Chosen Freeholders.73

Albert Florence and his family were stopped by the police for a traffic offense com- mitted by his wife, who was driving their vehicle. Police checked both Florence and his wife for warrants. The computer database erroneously indicated that there was an out- standing arrest warrant for Florence. He was arrested, transported to a jail, booked, and subjected to a strip search. Unable to secure his immediate release he was still in jail six days later when he moved to a second jail, where another strip search was conducted. Florence sued under 42 U.S.C. §1983 alleging that suspicionless searches of persons

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Exhibit 12–4 SUMMARY OF FOURTH AMENDMENT ISSUES AND AUTOMOBILES

SuBJecT cASe

Stops and Arrests

stops may not be arbitrary. Delaware v. Prouse (1979)

stops may occur without suspicion if systematic. Michigan v. Sitz (1990)

the motives of police are not relevant when determining if a stop is lawful.

Whren v. United States (1996)

the issue is whether there is probable cause to believe a traffic violation has occurred.

states may delegate the discretion to arrest for misdemeanors, including traffic violations, to police.

Atwater v. City of Lago Vista (2001)

systematic stops to intercept illegal drugs violate Fourth amendment.

Indianapolis v. Edmond (2000)

occupants

Drivers and passengers are seized when pulled over, and therefore they may challenge the stop and search.

Brendlin v. California (2007)

Drivers of lawfully stopped auto mobiles may be ordered out without specific cause.

Pennsylvania v. Mimms (1977)

occupants of lawfully stopped auto mobiles may be ordered out without specific cause.

Maryland v. Wilson (1997)

occupants of automobiles may not be searched as incident to lawful search of automobiles— probable cause to believe sought item will be found on person required.

United States v. DiRe, 332 U.S. 581 (1948)

Drivers and occupants may be frisked if officer has reasonable belief of dangerousness

Arizona v. Johnson (2009)

Searches

Warrantless search of automobile valid if probable cause exists to believe item sought will be found in automobile. no exigency required if probable cause exists.

Carroll v. United States (1925)

Maryland v. Dyson (1999)

Warrantless searches of closed container in automobile valid if probable cause exists to believe item sought will be found in container.

entry into lawfully stopped vehicle to read the Vin legitimate.

California v. Acevedo (1991)

New York v. Class (1986)

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Warrantless search of personal item in automobile (e.g., purse) valid if there is probable cause to search for an item that may be concealed there.

Wyoming v. Houghton (1999)

Warrantless search of automobile invalid if probable cause exists to search container in automobile only.

California v. Acevedo (1991)

Warrantless search of recent occupant arrestee’s automobile that is within his or her control is valid.

Thornton v. United States (2004)

Warrantless search of automobile of suspect arrested in an officer’s cruiser invalid because car was outside of his control; warrantless search of car valid if reasonable belief evidence that is subject of arrest will be found within.

Arizona v. Gant (2009)

Warrantless search of automobile by officer who issued ticket but chose not to arrest driver is violative of the Fourth amendment.

Knowles v. Iowa (1998)

inventory searches of automobiles including containers—are valid if systematic.

Colorado v. Bertine, 479 u.s. 367 (1987)

properly framed profile may be used to stop an automobile, but searches and arrests require more.

United States v. Brignoni-Ponce (1975)

automobile may be seized without a warrant if probable cause exists to belifeve it is contraband.

Florida v. White (1999)

Exhibit 12–4 (continued)

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charged with minor misdemeanors violated due process and the Fourth Amendment. The Court rejected Florence’s claim in a decision exhibiting substantial deference to corrections authorities:

Maintaining safety and order at (detention) institutions requires the expertise of cor- rectional officials, who must have substantial discretion to devise reasonable solutions to the problems they face” . . . (T)he seriousness of an offense is a poor predictor of who has contraband.”

Although a small number of pretrial detainees are housed in prisons, most inmates of these facilities are convictees. The Fourth Amendment is not fully applicable in prisons, for three reasons. First, security concerns outweigh privacy concerns. Second, loss of privacy is considered by our society to be an attribute of confinement

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and punishment. Third, inmates generally do not have reasonable expectations of privacy.

Hence, the Fourth Amendment is not implicated in the search of an inmate’s cell, as there is no reasonable expectation of privacy in that area. The Supreme Court stated:

A prison “shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room.” . . . We strike the balance in favor of institutional security, which we have noted is “central to all other correctional goals.” . . . A right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and in- ternal order. We are satisfied that society would insist that the prisoner’s expectation of privacy always yield to what must be considered the paramount interest in institutional security. We believe that it is accepted by our society that “[l]oss of freedom of choice and privacy are inherent incidents of confinement.”74

Although the Fourth Amendment does not apply to searches of inmates’ cells, it does apply to searches of their persons. However, the probable cause and warrant requirements are dispensed within the prison context. Rather, they are tested by the Fourth Amendment’s reasonableness provision. Prisoners may be searched without any particular suspicion if the search is part of a routine system. Analogous to roadblocks, if the custodians search every prisoner, or every other prisoner, or use some other system, no suspicion is required. Prisoners may also be searched without suspicion if they have recently come into contact with visitors. In Bell v. Wolfish 75 the Supreme Court held that strip searches of prisoners, conducted after they have contact with visitors or upon their return to the institution from outside, are permissible even without individualized suspicion. Otherwise, individual searches of inmates are allowed only when an officer has a reasonable suspicion that the inmate possesses contraband.

Although searches of inmates’ cells are not included within the grasp of the Fourth Amendment, repeated searches intended to harass an inmate may be violative of the Eighth Amendment’s prohibition of cruel and unusual punishment, as may searches of an inmate’s person.

Probationers and Parolees Because probationers and parolees have a lessened expectation to privacy, searches of their persons, effects, and homes do not have to be supported by probable cause. Nor do searches have to be attended by a warrant. In 1987 the Court approved a state policy that empowered a probation officer to search the homes of a probationer if “reasonable grounds” existed to believe contraband would be found.76 In United States v. Knights, 77the rule concerning searches of probationers was announced. The Court held that warrantless searches of probationers are reasonable so long as reasonable suspicion exists. The Court left open the question of searches without reasonable suspicion where a probationer consents to such searches at the time of sentencing.

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