For A-Plus Writer Only

an anderson book

u

Fourteenth Edition I Jacqueline R. Kanovitz

-arch and Seizure

e right of the people to be secure in their persons, houses, papers, and -ects, against unreasonable searches and seizures, shall not be violated,

d no Warrants shall issue, but upon probable cause, supported by Oath ~affirmation, and particularly describing the place to be searched, and e persons or things to be seized.

Fourth Amendment

171

4

,

Chapter Outline

4.1 Overview of the Law of Search and Seizure 4.2 - Definition of a Search 4.3 - Sources of Search Authority 4.4 -Fourth Amendment Requirements for Seizing Property 4.5 - The Fourth Amendment Search Warrant 4.6 Searches Involving People and Personal Effects 4. 7 - The Terry Search Revisited 4.8 - Search Following a Custodial Arrest 4.9 Vehicle Searches 4.10 - Search ofVehicles Pursuant to a Detention or Arrest 4.11 - Search of Vehicles Based on Probable Cause ("Automobile

Exception") 4.12 - Inventory Searches oflmpounded Vehicles 4.13 Search ofProtected Premises 4.14 -Premises Protected by the Fourth Amendment 4.15 -Entry and Search ofPremises Under a Warrant 4.16 - Entry and Search of Premises Without a Warrant 4.17 The Exclusionary Rule 4.18 Summary and Practical Suggestions 243 Notes

....

"

172

121 TE RMS AND CONCEPTS

ipatory search warrant -- oarent authority

::.:~ · ainer

::.: raband __ ·ra ge

lly valid warrant

(of a crime) (of an il legal search

-· e izure) :: _ search

undment mentalities ity (of a search)

- - ntory search ~ igatory detention

Limited weapons search Mere evidence Open fields Open view Pat down Plain view doctrine Probable cause (to arrest) Probable cause (to search) Probable cause (to seize) Protective sweep Reasonable expectation of

privacy Scope (of a search) Search Search warrant Seizable evidence of crime Seizure (of persons) Seizure (of things)

1 Overview of the Law of Search and Seizure

:he Fourth Amendment regulates three activities in addition to those covered in ·er 3: (1) searching persons for evidence, (2) searching places and things for

e, and (3) seizing evidence. These three activities are grouped together into a _ ~ ategory called "search and seizure" law. The work that police officers do often

s them to coordinate the rules covered in Chapter 3 with those covered in Chap- - Gathering evidence is usually necessary to develop probable cause for an arrest. ~-er evidence gathering generally occurs during an arrest and often afterward to = p the case for trial. The same Fourth Amendment language that regulates inves-

- - •. detentions and arrests also regulates searches and seizures. It should, therefore, no surprise that the requirements in both contexts are similar.

:e will begin this chapter by examining a recent police investigation known as the Case of the Artless Art Thief. What makes this case unique is that Inspector

-:o ·s compliance with the Fourth Amendment was, for once in his career, = a ble.

173

,

174 CoNSTITUTIONAL LAw FOR CRIMINAL JusTICE § 4.:

The Curious Case of the Artless Art Thief

Prologue

Several summers ago, a collec- tion of famous works of art on loan from the Louvre museum in Paris, was on tour in the United States and exhibited in various local museums. While these works were on display at the Whosville Art Insti- tute, a brazen burglary took place. The burglar broke in under cover of night and stole two paintings- Leonardo do Vinci's Mona Usa and Marcell du Chump's Nude Descending a Fireman 's Pole. There were no witnesses and the only physical evidence recovered by the Whosville Police Depart- ment (WPD) at the crime scene was a single left-handed wh ite glove bearing the monogram SS.

The Investigation

The WPD ' s finest Inspector Clueso, surmised that the glove belonged to none other than Sticky-Fingered Sam, Whosville 's most infamous criminal. Glove in hand, Clueso headed straight to the local magistrate, Judge Stick- ler, and requested a warrant to search Sam's home . After review- ing the evidence, Stickler denied the warrant exclaiming with exasperation:

"You dunce, you should know by now that a glove bearing the initials SS is not enough evidence to establish probable cause to believe that the stolen works of

art wi ll be found in Sam's house. You had no business asking for a search warrant on such meager evidence. It shows a complete dis- regard for the rights of the citizens who elected me."

Undaunted, Clueso set up sur- ve illance outside Sam 's home. He waited on the street outside Sam's house each morning, followed Sam to his office, wa ited outside, and then followed Sam home again. In the evenings, when Sam took his garbage out to the curb, Clueso rummaged through the cans, looking for incriminating materi- als. He also put in a requisition for a pair of Super-Spy X-Ray Binocu- lars, explaining that he needed the equipment to look through Sam's wal ls. His request was denied with advice that he "could get in big trouble for using a device like that without a search warrant."

After one week, Clueso had observed nothing unusual, but his garbage rummaging had turned up several art magazines and a receipt for one pair of gloves. Once again Clueso applied for a search warrant and once again was told that his evidence was .. not sufficient to satisfy the Fourth Amendment.

Feeling like a failure, Clueso sank into a depression and was unable to work for several weeks. However, on the first night that he returned to work, Clueso hit what he thought wou ld be a pay dirt-a

SEARCH AND SEIZURE 175

~---handed white glove, dis- ::-ded in Sam's garbage, bear- ;; -he initials SS. This time Stickler

_ :;;-eed that there was probable - _:_.se, but not the kind for which ~ had hoped. The matching : e, considered in combina- :- w ith Sam's criminal record,

~- :1blished probable cause to :-=eve that Sam committed the =~, allowing for issuance of an

_ 3S warrant, but not a search ~ant. A search warrant, Stick-

-= explained. required probable __ __se to believe that the stolen

~ ·ngs would be found in Sam's : e. Because the burglary had

- ~oened almost a month before ~ Cl ueso had not kept Sam's

-: ...se under obseNation for much · - is period, it was just as proba- = -= at Sam had already disposed

e paintings. As a result, no -=-.::~ch warrant would be issued.

b ig break in the case came ~ s al months later. Fortunately _ Clueso, Sam loved art more :: his privacy and installed a ;e d isplay window facing the :.:: to let in the northern light.

- Clueso drove by Sam's house _- s day, he saw a painting of a

: a n resembling the Mona Usa, -=:1rty visible through the w indow.

=~ eving that he now had enough - ::ence to support a search war-

- b ut afraid to let the paint- ; ut of his sight, he rang Sam's : ~el l and introduced himself as =-= a world-renowned art critic.

--=- ld Sam that he couldn't help _- otice the dazzling painting

-= 50W through the window, and sd w hether he could come in

- ::dmire it up closer. Flattered,

Sam agreed, and took Clueso into his living room.

Once inside, Clueso could see that the painting looked very much like the Mona Usa, but could not be sure. The famous smile on the painting was all w rong and the paint appeared to be wet. Either this was a common reproduction of the famous painting or Sam had been altering it to suit his own sense of aesthetics. To solve this mystery, Clueso took the painting from the wa ll and sniffed around the smile. Sure enough, the paint was wet. Confident that the painting was authentic, Clueso placed Sam under arrest. He then scanned the room and looked inside a closet near w here Sam was standing, but the du Chump painting was nowhere to be seen . However, he spotted a set of finger paints, whic h he seized.

When advised of these devel- opments, Judge Stickler hastily issued a warrant to search Sam's home for " Du Chump's Nude Descending a Fireman 's Pole, tools used in connection w ith the theft, and any other items evi- dencing Sam 's responsibility." Armed with the search warrant, Clueso returned to Sam's home and, this time, looked in every room and closet. He found the Nude Descending a Fireman 's Pole unharmed behind the bureau in Sam's bedroom. As he moved the bureau, he dislodged a plas- tic sandwich bag containing w hat appeared to .be several ounces of marijuana that was wedged behind it and seized that as well. Sam's motion to suppress the

,

176 CoNSTITUTIONAL LAw FOR CRIMINAL JusTicE § 4.:

evidence taken from his home was denied and he was convicted of two counts of grand theft, one count of willful destruction of prop- erty, and one count of possession of a controlled substance. Sam's conviction was upheld on appeal.

Analysis of the Investigation

Epilogue

Clueso was promoted to head of the WPD, Sam finished out his sentence, and the investigation has been hailed as a resounding success.

Inspector (now Chief) Clueso's investigation fully complied with the Fourt Amendment. "Privacy" and "property" are the centerpieces of Fourth Amendmen: search and seizure law. A search occurs when police intrude on a suspect's reasonab le expectation of privacy. A seizure occurs when they interfere with a suspect's posses- sory rights in property. As with seizures of persons, searches and seizures of property are graded according to invasiveness. Some evidence-gathering is not regulated by the Fourth Amendment because there is no interference with the suspect's privacy or prop- erty rights. Other evidence-gathering involves an intrusion, but the intrusion is suffi - ciently brief and limited as to call for less stringent regulation. Finally, some intrusions are sufficiently serious as to constitute full-blown searches or seizures. Clueso's inves- tigation contains examples of each, as well as a host of other concepts that will be covered in this chapter.

A search occurs when police intrude on a suspect's reasonable expectation of privacy.

A seizure occurs when they interfere with a suspect's possessory rights in property.

A. Nonsearch Activity

Investigative activity that does not interfere with interests protected by the Fount Amendment constitutes a "free zone" for police work. In detention and arrest law, this zone is defined in terms of the suspect's freedom to go about his or her business. k. search and seizure law, it is defined in terms of the suspect's privacy and prope~ rights. Police operate in the free zone as long as their investigative activity does n-- infringe on any of these three interests.

Investigative activity that infringes on a suspect's reasonable expectation of pri- vacy results in a search. A search can occur either because police make a trespassor: entry into a constitutionally protected location or because they use high-tee:.

SEARCH AND SEIZURE 177

ce devices that invade privacy. 1 Inspector Clueso was careful not to perform _- until he developed Fourth Amendment grounds. The initial stages of his inves-

were conducted on the public streets. He was standing on the street when he t appeared to be the stolen Mona Lisa through Sam 's front window where it

- le to anyone who looked. Suspects have no reasonable expectation of privacy -~ they knowingly expose to the public. Consequently, police surveillance of

_- exposed to public view is not a search. This also explains why rummaging ________ ....... Sam's garbage container was not a search. Once Sam placed the garbage con-

the curb for collection, he no longer had any reasonable expectation of privacy _ontents. Just as the public could see the Mona L isa through Sam 's undraped . o vagabonds, children, and snooping neighbors could have picked through

:_ ue. Consequently, Clueso was free to rummage through it as weli.2 - :;eso also refrained from seizing evidence before he developed grounds. A sei- ~urs when police interfere with a suspect's property rights. 3 Removing items

.::.2:m's garbage container was not a seizure because Sam deliberately abandoned _,._...,.,-h , rights in the objects he discarded as trash.

onsent Searches and Seizures

·s house is a location that is protected by the Fourth Amendment. A physical -:o a constitutionally protected location constitutes a search4 and normally

-----""- a search warrant. 5 However, consent voluntarily given by someone who n the premises eliminates the need for a warrant. Clueso's misrepresentation

_ lice identity did not destroy the voluntariness of Sam 's consent. 6 Accordingly, · into Sam's home did not violate the Fourth Amendment.

rief, Limited Searches and Seizures

--en Inspector Clueso removed the Mona Lisa-like painting from Sam 's wall, """":fered with Sam's property rights because he had only been given permission

at the painting. Removing it from the wall was , therefore, a seizure. Prob- - se to believe that property is connected to a crime is necessary before

ay seize it for use as evidence. 7 Because Inspector Clueso had not yet d this degree of certainty, he would have violated Sam 's Fourth Amend-

.:: ts had he put the painting under his arm and left with it. However, Clueso :: the painting for a lesser purpose-to examine it to determine whether it .en. Police are allowed to perform brief, limited seizures for investigation "'Y have a reasonable suspicion that property is connected to criminal activ- ,_ authority is based on the principles announced in Terry v. Ohio 9 and is ed by the same standard. Clueso's reasonable suspicion that the painting was "n Mona Lisa justified his removing it from Sam ' s wall for a closer exam- Once satisfied that it was the real thing, Inspector Clueso now had probable

- seize it as evidence.

- -- - --~ ----

,

178 CONSTITUTIONAL LAW FOR CRIMINAL JuSTICE ~

D. Full Searches and Seizures

A search for criminal evidence is called a full search (short for full-blown). U arrests, in which a warrant is usually optional, full-blown searches always require search warrant unless an established exception to the warrant requirement applie- However, a number of exceptions exist and consent is one of them. Sam's consent w nevertheless, limited. He invited Clueso into his living room to look at his paintffi= When Clueso developed probable cause to believe that the painting on the wall was rr stolen Mona Lisa and placed Sam under arrest, however, a second exception to -' search warrant requirement became applicable. Clue so was entitled to perform a sean: incident to the arrest.

Searches incident to arrest, and indeed all searches, have defined boundaries . . -...:: arrest only justifies a search of the arrestee's person and the area under his or her i~­ diate control, which is defined as the area within arm's reach. Consequently, it was ne-:- essary for Clueso to get a search warrant before he could search the rest of Sam's ho"""" Judge Stickler, who had previously refused to grant a search warrant because Clue evidence failed to establish probable cause to believe that the stolen works of art were in Sam's home, was now willing to do so. Discovery of the stolen Mona Lisa crea' probable cause to believe that the du Chump painting was probably still there, too.

The search warrant only authorized the seizure of the du Chump painting and ar:- cles related to the theft. Police, nevertheless, are not required to ignore criminal e\ - dence and contraband discovered in plain view during an authorized search, eY when they are not listed in the warrant. 10 The plain view exception to the wa requirement supplied the basis for Clueso's seizure of the marijuana. 11 Now that ·-·- Curious Case of the Artless Art Thief has been solved, we are ready to explore the 1 of search and seizure.

§ 4.2 -Definition of a Search

Every Fourth Amendment analysis begins with the basic question: "Did the co;:- duct of the police constitute a 'search' or a 'seizure'?" If the answer is "no," no furth""" Fourth Amendment inquiry is necessary. As you learned in Chapter 3, there is a ~ zone in which police are able to investigate without having to worry about the Four:- Amendment. In fact, the Fourth Amendment covers only .. two activities-searches seizures. As long as the police avoid doing either, their activity is not regulated by •r~ Fourth Amendment.

The Fourth Amendment restricts the search authority of the police to protect priva . The colonists' experience with general warrants and writs of assistance, which gave Bri..:- customs officials authority to enter any home and search at will for smuggled goods anything else that might be incriminating, without grounds for believing that anyth ir::: incriminating would be found, made the colonists acutely aware of this need. 12 Cancer:. for privacy is also the controlling consideration in determining whether there has been _

I

SEARCH AND SEIZURE 179

~h. The Supreme Court defines a search as police activity that intrudes upon a citizen's able expectation of privacy. However, this has not always been the case.

Fourth Amendment Interpretation from Olmstead to Katz The Supreme Court originally interpreted the term " search" to require a physical -ion into a constitutionally protected location. Persons, houses, papers, and effects

_ · e four subjects mentio)led in the Constitution. This interpretation was adequate to t the privacy needs of the _e.merican people for the first 200 years of our history.

ever, technological advances during the early part of the twentieth century over- ..med the original test. The telephone eliminated the need to conduct private con-

·ons behind closed doors , face-to-face and enabled the government to eavesdrop ut physically entering either party's home. The telephone was just the beginning.

original definition of a search as involving a physical intrusion into a constitution- - ?Totected location was no longer capable of providing protection against govern-

- intrusions on privacy. ~e Supreme Court's first encounter with the impact of the new technologies on ;.b Amendment analysis occurred in Olmstead v. United States. 13 Olmstead, a boot-

==- . was convicted of violating the National Prohibition Act based on evidence ed by tapping his telephone line from a junction box located on a public street.

- -upreme Court stood by the traditional interpretation, holding that Olmstead's -· Amendment rights were not violated because the police listened to his conver-

without trespassing on any property that belonged to him. ;J/mstead remained the Supreme Court 's official position until the 1967 case of

: United States, 14 which marked the beginning of modem Fourth Amendment ~dence. Katz , a bookie, was convicted of transmitting wagering information ~ on evidence overheard by FBI agents who attached a recording device to the . r of a public telephone booth Katz regularly used to conduct his business . The

- t of the police did not violate the Fourth Amendment under traditional analysis - the recording device did not penetrate the wall of the booth. As a result, there

- physical intrusion into a constitutionally protected location. The Supreme Court, ~..heless, ruled that a person who occupies a telephone booth, shuts the door, and

-· e toll has a reasonable expectation that his telephone conversation is private :Jat this expectation is entitled to Fourth Amendment protection. The Court

d:

the Fourth Amendment protects people, not places. What a person know ingly = ":X>ses to the public, even in his own home or office, is not a subject of Fourth - --,endment protection. But what he seeks to preserve as private, even in an area =xessible to the public, may be constitutionally protected.

- _ broadened the definition of a search by holding that a search also occurs when = intrude on a suspect's reasonable expectation of privacy. This definition did not

w the protection that previously existed against physical intrusions into

,

180 CONSTITUTIONAL LAW FOR CRIMINAL JUSTICE § 4.2

constitutionally protected locations. 15 The Supreme Court's goal in Katz was to make the Fourth Amendment responsive to changes in technology that made it possible for police to invade privacy without a physical trespass.

B. Search Defined We are now ready to formulate a working definition of the term search. A search

occurs when police violate a suspect's reasonable expectation of privacy, either by : (1) physically tresspassing into a constitutionally protected location (i.e., a location in which the suspect has a reasonable expectation of privacy) 16 or (2) intruding into matters a suspect reasonably expects are private. 17

A search occurs when police v iolate a suspect's reasonable expectation of privacy either by physically trespassing into a constitutionally protected location or intruding into matters a suspect reasonably expects are private.

1. Physical Intrusion into a Constitutionally Protected Location

The most common way a search occurs is by physically intruding into a constitu- tionally protected location. The Fourth Amendment mentions four subjects-persons, houses, papers, and effects-as having constitutional protection. These subjects have been interpreted expansively as denoting broad general categories.

Persons. The term persons, for search purposes, encompasses those parts of a suspect's body and clothing that are not exposed to the public, such as private parts of the anatomy, biological materials, and pockets and undergarments. Examining private parts of a suspect's bodyl 8 or clothing 19 for evidence of a crime constitutes a search and requires Fourth Amendment search authority. Searches of clothing and personal belong- ings are covered in§§ 4.6 to 4.8. Highly intrusive body searches, such as strip searches and body cavity searches, and the taking of blood and urine samples, are subject to special rules that are covered in Chapter 7.

Houses. Houses includes homes and their surrounding buffer zone known as the curtilage, apartments, hotel rooms, private offices and warehouses, telephone booths, and even fixtures like file cabinets and lockers. In fact, this term has been defined to include any premises, structure, or fixture in which a reasonable expectation of privacy exists. 20 Shopping malls and retail establishments, in c ontrast, are constitutionally pro- tected locations only during hours when they are closed to the public. Searches of' protected premises are covered in§§ 4.13 to 4.16.

Papers and personal effects. Papers encompasses letters, journals, records, films , and other private documents. Personal effects encompasses handbags, briefcases, pack- ages, luggage and other closed containers, and vehicles, among other things. Searches involving papers and effects are discussed at various points in this chapter.

Police may not physically enter a suspect's home,21 reach into his pocket,22 look inside his luggage,23 or intrude into any other location in which the suspect has a reasonable

SEARCH AND SEIZURE 181

tion of privacy, without a recognized source of Fourth Amendment search ':ty.

:. Violation of a Suspect's Reasonable Expectation of Privacy

- :xlay a search can also occur without a physical trespass. Olmstead and Katz both ed intrusions into the privacy of telephone conversations . In Katz, the Supreme

- · eld that a person who enters a public telephone booth and closes the door, shut- ' ~ the world, has a reasonable expectation that the conversation will be private

- -this expectation is protected by the Fourth Amendment. Telecommunication _ ~ ance is now regulated by a federal statute. Six months after Katz, Congress

the Omnibus Crime Control and Safe Streets Act of 1968,24 which brought law ent use of wiretapping and other interception devices under judicial control

:liring prior court authorization. ite the promise held out in Katz that citizens would enjoy broad protection

- the government's surreptitious monitoring of their comings and goings, this has out to be the case. Technological advances since Katz have furnished the police

: rusticated devices that enable them to obtain much of the same information that -=quired a physical trespass , and the Supreme Court has given police considerable - ·o use the tools of modem science to fight crime.25 Practically speaking, there are

-o limitations on surreptitious surveillance of matters other than communications. eillance devices must be employed from a location where the officer has a right

Second, police may not use special surveillance equipment that is not generally ~ e to the public to spy on activities inside a residence. 26 Had Inspector Clueso used - _ y X -Ray Specs to monitor activities inside Sam's home, such use would have

--~~ed a search and a search warrant would have been necessary. titutional and statutory limitations on wiretapping and other technological of privacy are covered in greater depth in Chapter 5.

- =:: .... th Amend ment does not treat the following activities as searches:

: '"'-arc hes a nd se izures performed by p rivat e parties wi th o ut governme nt :xnp licity

_aorch es a nd seizures of abandoned property - estigati on of matters exposed to public view ::~ ine inspec tions to d etect for th e presence of narcotics.

-:msearches

-~ch occurs under the Katz definition when police violate a suspect's rea- - :: exp ectation of privacy. This definition has two components: (1) police

_ an d (2) an invasion of a suspect's reasonable expectation of privacy. If

,

182 CONSTITUTIONAL LAW FOR CRIMINAL JusTICE §.!-

either of these components is missing, there is no search and the Fourth Amen· - ment does not apply.

1. Private-Party Searches

Our Constitution operates as a limitation only on the actions of the governmen:- Searches conducted by private parties without police complicity are not regulated b~ the Fourth Amendment. As a result, police may use evidence received from private parties, without concern for how they obtained it. 27 Furthermore, police activity thr-- would otherwise be considered a search is not a search if it merely duplicates activi _ that a private party has already performed. Suppose an airline traveler inadvertentl_ leaves her travel bag on an airplane and an airline employee opens it to determine th" owner's identity. Upon discovering a vial of cocaine, the employee closes the bag an hands it over to the police. Although opening a travel bag and inspecting the conten- would normally be considered a search, it is not a search after a private party has don= this because the owner's reasonable expectation of privacy has already been compro- mised.28 However, police activity becomes a search when it exceeds the previous exploratory activity and invades privacy interests that have not yet been invaded. If aL apartment maintenance worker discovers a vial of cocaine while fixing a leaking fauce: and turns it over to the police, police may not re-enter and search the apartment in its entirety. Unlike the travel bag, which was fully examined before being turned over to the police, a person's apartment contains countless other possessions that have not ye- been viewed. The occupant's reasonable expectation of privacy in the unviewed objects is still intact. 29 Consequently, a police inspection, following a private-party search, i:.., not considered a search only if it goes no farther.

2. Police Investigations Conducted Without Invading Privacy

The Fourth Amendment does not regulate police investigations conducted withou encroaching on a suspect's reasonable expectations of privacy. Because suspects lack a reasonable expectation of privacy in matters exposed to the public and abandoned prop- erty, police surveillance of these matters falls outside the Fourth Amendment.

Matters in open view. Police are free to make the same observations that members of the public could make. Anything visible to members of the public from a vantage point where the officer is lawfully present is said to be in open view. 30 Police surveil- lance of matters in "open view" is not regarded as a search because people do not have a reasonable expectation of privacy in matters they expose to the public. If there is an undraped window, a knothole in a fence, or a garbage can on the sidewalk, police are free to peek inside.

The fact that it takes special effort to reach a vantage point from which a view is possible does not prevent the matter observed from being in "open view." Even though an officer has to climb 20 flights of stairs to reach the outdoor fire escape of a public building to get to the rooftop garden that overlooks the defendant's backyard, the

SEARCH AND SEIZURE 183

_·ardis still considered to be in open view. What matters is that the officer is stand- a place accessible to members of the public when the officer observes things that e else standing there could have observed.31 Police are allowed to use flashlights,

mlars, telescopes, and other artificial aids in general public use to enhance their :y to make the observation. 32 In California v. Ciraolo33 police officers, acting on an ;mous tip, flew a helicopter over the defendant's backyard, which was shielded ground-level view by a 10-foot-high fence , and observed marijuana plants grow- low. The Supreme ~ourt held that this was not a search because the observation ed in navigable airspace. and anyone else flying in this airspace who glanced ould have observed the very same things.

-:be same principle applies to evidence detected through the senses of smell or g. Police officers are allowed to use any of their natural senses when they are

- y present at the place where their senses are used.34 Listening with the naked ear =-ings-on inside a motel room from an adjoining room or a common hallway,35 and - g the exterior of a car parked on a public street for the odor of drugs are not _hes .36

-:-he Supreme Court has extended this principle to the use of trained drug detection _ In United States v. Place,37 the Supreme Court ruled that the use of a trained drug

·on dog to sniff luggage is not a search because it does not require opening the ="" -~e or exposing the contents. Trained narcotics detection dogs function as little

--=than an extension of the officer's own senses . JIUg detection dogs are now being used to perform inspections at airports, bus termi- rrain stations, and other places. 38 No suspicion is needed to walk a trained narcotics ·on dog down a public street, through a parking lot, airport terminal, train station, orridor, or any other location accessible to members of the public.39 Drug-detection

_ may also be used during routine traffic stops if their use does not extend the duration stop beyond the time required to process the traffic violation. 40

Police, nevertheless, do not have the right to touch and feel everything they are free , at or smell. Exploratory touching involves a greater intrusion on privacy. In Bond

_ ;Ted States , 41 a border patrol agent boarded a bus to check the immigration status of _ sengers. As he walked forward to exit the bus after completing the check, he

"""zed the soft luggage passengers had placed in the overhead storage bins to feel for _ sence of contraband objects. He felt a brick-like object in the defendant's luggage :urned out to be a brick of methamphetamine. The Supreme Court ruled that the -~ patrol agent 's tactile examination of the defendant 's luggage to determine the ents involved a search. Although bus passengers who store luggage in overhead _ e bins expect that other passengers may move or shove their luggage to make fo r their own, they do not expect that others will touch their bags in the exploratory er the border patrol agent did here. As a result, the border patrol agent 's exploratory

.:ing could not be sustained under the open view doctrine and involved a search. Abandoned property. A person who abandons property voluntarily relinquishes any

ble expectation of privacy in that property. This explains why rummaging through _ tents of garbage cans that have been placed on the curb for collection is not a search. 42

fll

184 CONSTITUTIONAL LAW FOR CRIMINAL JusTICE § 4.3

Figu re 4.2 Essentials for a Lawful Search

For a search to be lawful. the offi cer must:

l . act under a recogn ized source of search authority, and 2. confine the search activity to authorized search bou ndaries. Grounds for search a uthority and search bou ndaries vary w ith th e purpose of t he search.

§ 4.3 -Sources of Search Authority

Whenever police perform an act that the Fourth Amendment treats as a search, they must have search authority. What is necessary to have search authority varies with the purpose of the search. The three main purposes for searching are to gather evidence, to disarm suspects for self-protection, and to make an inventory of property that the police have impounded. The first kind of search is called a full search, the second a limited weapons search or frisk, and the third an inventory search .

Rummaging through a person's belongings for anything incriminating without prob- able cause to believe that anything will be found is a general search, the evil against which the Fourth Amendment is directed. 43 To guard against general searches, the Fourth Amend- ment requires that police: (1) have search authority and (2) confine their search to the authorized search boundaries. 44 Each ground for search authority has companion rules delineating the boundaries of the search. Descriptions of search boundaries have two fea- tures: the scope, which defines the locations that may be searched, and the intensity, which defines the thoroughness with which they may be searched. However, there is one over- riding limitation that governs all searches: The scope and intensity of a search may never be greater than necessary to locate the objects for which an officer has search authority.

Fig ure 4. 3 Categories of Searches

CATEGORY PU RPOSE O F SEARCH G RO UNDS FOR CON DUCTI NG

Full Search Gather evidence Search warra nt or recogn ized exception to w arra nt req uirement

Lim ited Disarm p erson to p rotect Reaso na ble susp ic ion that a p erson ' ' Weapons officer's safety lawfu lly deta ined is armed and

Search dangerous

Inventory Cata logue property that Authority to impound a nd Search police have taken into adherence to p o lice d epartment

c ustody regula tions governing conduct of inventory searches

SEARCH AND SEIZURE 185

Full Searches Searches conducted to gather criminal evidence are called full searches. When the ose of the search is to gather evidence, the Fourth Amendment always requires

_ -· er a search warrant or a recognized exception to the warrant requirement. 45 The ::eptions are generally based on circumstances that create an urgent need for a search

_~~time when it is impractical to obtain a warrant.

- ~ l"e 4.4 bable Cause for a Searcn Warrant

- ord er to secure a search warrant, an officer must possess facts sufficient to warrant :: oorson of reasonable caution in believing three things:

That a crime has been (or is being) committed; That specific objects associated with the crime exist; and That they will be found in the place to be searched.

1. Searches Under the Authority of a Warrant

The Supreme Court has expressed a strong preference for searches and seizures to ~onducted under the authority of a warrant, because a warrant places the decision of ~.her there is probable cause for the search in the hands of a neutral and detached

· = .46 Fourth Amendment search and seizure analysis starts with the presumption that ch warrant is necessary and then carves out an abundance of exceptions that cut

_ inroads into the general rule. Nevertheless , it is good policy to obtain a warrant, _ when an exception applies, because search warrants carry at least two advantages. _ a facially valid search warrant shields the officer from civil and criminalliabil-

econd, it also insulates the fruits of the search from suppression. 48

The Fourth Amendment provides that "no Warrants shall issue, but upon probable -=-.supported by Oath or affirmation. " Probable cause for a search warrant is similar

_ bable cause for an arrest warrant. It requires the same level of certainty, which is _ than a hunch or even a reasonable suspicion, but less than proof beyond a reason-

~ oubt.49 The facts upon which probable cause for a search are based may be gath- _:: from the same sources and must have the same degree of reliability as those

_ rting probable cause to arrest. 50 The major difference is what the officer must :: robable cause to believe . Probable cause for a search warrant requires facts suf-

- to justify a person of reasonable caution in believing three things: (1) that crim- ~~tivity has taken place, (2) that specific objects associated with that crime exist, ~ that they will be found at the place to be searched. Courts do not insist on direct

ce that the objects of the search are located at the place to be searched; it is :: that they are probably there. 5 1 Courts, for example, will assume that the gun :o commit a crime and the clothing worn during its commission are probably at

_ ·pect's home, absent evidence to the contrary. 52

#'

186 CONSTITUTIONAL LAW FOR CRIMINAL JusTICE § 4.3

A second difference is the freshness of the information needed to support aL application for a search warrant. 53 Unlike facts that support probable cause to belieY that a suspect has committed a crime, facts supporting probable cause to believe tha· items of evidence will be found at a given location can grow stale. If the informatio is too old, it may have little value in showing that the evidence is still present at th" place for which the warrant is sought. This is why Judge Stickler, although willing t issue an arrest warrant once the second glove was found, refused to issue a searc~ warrant. By the time Clueso developed probable cause to believe that Sam had stole:: the paintings, several weeks had passed and Sam could have sold or removed them ;_ the meantime. Consequently, even though Clueso now had enough evidence for n- arrest, the passage of time prevented him from making the showing needed fo r - search warrant.

Finally, the Fourth Amendment requires that search warrants contain a particular- ized description of the place to be searched and the things to be seized. The warrant"~ description of the place to be searched limits the search to locations for which police have demonstrated probable cause to believe that the objects of the search will found, while the description of the things to be seized prevents the police from 1111Ii- maging more extensively than necessary to discover them. The two requirements com- bine to guard against general searches.

a. Scope of a Search Under a Warrant

The warrant's description of the place to be searched defines the permissible scope of the search. Although warrants are usually issued for searches of homes and busi- nesses, they can also be issued for searches of vehicles, containers, and even people Search authority under a warrant extends only to the locations described in it. If a war- rant is issued to search Sam's kitchen, police may not search the bedroom, garage, the cabana behind his pool. However, descriptions like this are exceedingly rare. It more common to describe the premises to be searched by address. When the premis •. are described by address, search authority extends to the residence, the yard, and structures and vehicles inside the curtilage. 54

b. Intensity of a Search Under a Warrant ...

The warrant's description of the premises to be sear~hed grants authority to ent' " Once inside, the intensity of the search- whether the officer may look inside clo~­ ets, open drawers or containers, read mail, etc.-is controlled by the warrant's descrip- tion of the objects to be seized. Police may only look in places that are potenti- repositories of the objects for which they have search authority. 55 If the police secure - warrant to search Sam's home for a stolen pink baby elephant named Cha Cha, th . may look in the basement and walk through all the rooms, but they may not open enY""- lopes or look inside drawers, behind furniture, or under beds, because it would ~. impossible for a stolen elephant to be hidden there. Looking in places where Cha C

SEARCH AND SEIZURE 187

:.J..! d not possibly be violates the Fourth Amendment. On the other hand, when a 2rch warrant is issued for small, easily concealed objects such as money or drugs, - ·ch can be hidden almost anywhere, police may meticulously go over every square

of the premises with a fine-tooth comb.

:: ==" e 4.5 nt Requirement for Evidentiary Searches

- search warrant is necessarx to conduct a fu ll search, except w hen:

police obtain consent from someone w ho has authority to give it the search is conducted as an incident to a lawful custodial arrest police have p robable cause to bel ieve that a motor veh ic le contains property they may lawfully seize po lice are confronted with exigen t circumstances tha t requ ire immed ia te w arrantless action .

2. Full Searches Conducted Under an Exception to the Warrant Requirement

The Supreme Court has expressed a strong preference that searches be conducted ..: r the authority of a warrant because the decision of whether probable cause exists :::~ade by a neutral and detached magistrate in a calm atmosphere rather than a hurried

- -ion by an officer on the scene. 56 However, search warrants are necessary only for -blown searches. Even then, four exceptions exist. Full searches are permitted with- a warrant: (1) with consent, (2) as an incident to a lawful arrest, (3) when police e probable cause to believe a motor vehicle contains evidence that is subject to

_ e, and ( 4) when exigent circumstances are present. Each of these exceptions is -y described below and in greater detail later in this chapter. Pay close attention to - is necessary to have search authority under each of the exceptions and the scope

- intensity of search activity that is permitted.

Consent to Search

A search warrant is not required if the suspect or another adult who has common = .::nd authority over the premises , such as a spouse or roommate, consents to the

- -h. 57 When two or more persons occupy the same premises, the consent of any one --em is sufficient to authorize a search. The consent-giver 's authority can be actual _ arent. Apparent authority exists when the facts available to the officer at the

of the search would lead a reasonable person to believe that the consent-giver _ j oint use and authority over the premises when, in fact, the person does not. In

is v. Rodriguez, 58 the Supreme Court upheld a search conducted with the consent --e suspect 's former girlfriend, even though she no longer occupied the premises,

she referred to the apartment as " ours" and unlocked the door with her own key,

,

188 CONSTITUTIONAL LAW FOR CRIMINAL JuSTICE § 4 . .>

creating the impression that she lived there. Landlords, hotel clerks, and others who, to the officer's knowledge, are not occupants lack apparent authority to admit the police. 5°

A third-party's consent extends to the areas shared in common. Whether it als o extends to the suspect's private bedroom and closed containers that house personal be longings, such as purses, suitcases, briefcases, and footlockers, turns on whether police know that the room or container belongs to the suspect and that the consent-giver has no right of access. When this information is lacking, the search can generally be sus- tained based on apparent authority. 60 However, when police are aware that the room or container belongs to the suspect and that the consent-giver has no right of access, the consent is ineffective. 61 Police, for example, cannot rely on a male occupant's consent to search his female roommate's purse, even if the purse is located in an area of the house under the control of both, because they are aware that the purse does not belong to the consent-giver and that he has no right of access.

The consent of a single occupant is not effective, even as to the areas shared in common, if another occupant who is present on the scene objects to the search.62 If the occupants disagree on whether to admit the police, police must remain outside and obtain a search warrant. However, the ability of one occupant to override another 's consent lasts only so long as the objecting occupant is present. Police may search the premises on the consent of the willing occupant after the objecting occupant has left, even if the reason for his departure is a lawful arrest. 63

The scope of a search based on consent is confined to the terms of the authoriza- tion. When a general statement of consent is given without express limitations, search authority extends to anything a reasonable police officer could interpret the terms of the authorization as encompassing. 64 The express object of the search is the most important consideration. A suspect's consent to search his apartment for drugs, for example, would permit the police to open closets and drawers, search clothing, and look in any other place in which drugs might be found.

b. Search Incident to a Lawful Arrest

A lawful custodial arrest carries automatic authority to search the arrested individ- ual's person. 65 This source of warrantless search authority is justified by the need to disarm suspects before taking them into custody and to prevent them from destroying evidence. The scope of the search extends to the suspect's person, clothing, and wallet or handbag, 66 but not to luggage, packages, or other contaiqers in close proximity unless- a realistic possibility exists that the suspect could gain access to a weapon or evidence from inside them at the time of the search. 67

c. Vehicle Search Based on Probable Cause to Believe that the Vehicle Contains Criminal Evidence or Contraband ("Automobile Exception")

Police may conduct a warrantless search of a vehicle whenever they have probable cause to believe that the vehicle contains contraband or evidence of criminal activity. 68

/

SEARCH AND SEIZURE 189

exception to the warrant requirement exists because of the ease with which motor : es can be moved. Within the time it takes to return with a search warrant, the :'e may be gone. Accordingly, a search warrant is not necessary when officers have -~ le cause to believe that the vehicle contains evidence that they may lawfully -~- The scope of the search extends to the entire vehicle and everything inside, _ gh police, of course, may only look in places where the object of their search ~be located. For example, they may not look inside the motorist's handbag when -~g for a stolen television.

Exigent Circumstances and Hot Pursuit

-=>oli ce are allowed to enter private premises without a search warrant when -. are confronted with exigent circumstances that create an urgent need for

ediate action. 69 The three main circumstances that fall within this exception are ~ursuit of a fleeing suspect, threats to safety, and threatened destruction of ""nce. 70

::xigent circumstances searches are limited, both in scope and intensity, to action ediately necessary to address the exigency that justified the entry. 71 For example,

-~exigency concerns destruction of evidence, police may enter for the sake of secur- - -e premises to prevent people inside from destroying or removing the evidence

~ applying for a search warrant, but must postpone the search until a warrant is ed.

Limited Weapons Searches: Frisks and Protective Sweeps

-:::he traditional Fourth Amendment requirements of probable cause and a -_ · warrant apply only to full searches. Searches conducted for reasons besides

·ery of evidence, such as to disarm a suspect or to prepare an inventory of _cny that has been impounded, are governed by different Fourth Amendment :.ards. :>olice may perform a limited weapons search or frisk when they have reason to _ ·e that a person they have lawfully detained may be armed and dangerous. 72 The

-e of a frisk is to disarm the suspect so that police can conduct the investigation fear for their safety. Weapons frisks are limited searches. They are limited both

~obj ects for which police may search and in their scope and intensity. Police may _- only for weapons and are limited to patting down the suspect's outer clothing. ~ detention involves a vehicle, they are limited to performing a cursory visual :::tion of areas and receptacles inside the passenger compartment that are capable

-ing a weapon. 73

otective sweeps are another type of limited search. When police make an arrest ~ a residence, they are allowed to perform a cursory visual inspection of closets - er spaces immediately adjoining the place of arrest in which cohorts who pose

5 er to the officers might be hiding. 74

,

190 CONSTITUTIONAL LAW FOR CRIMINAL JuSTICE § 4.-=

C. Inventory Searches An impoundment occurs when police take custody of property for reasons other

than use as evidence. Vehicles and personal belongings taken from arrestees before placing them in a detention facility are the articles most often impounded. 75 The Fourth Amendment allows lawfully impounded property to be searched without a warrant. -~ The reason traditional Fourth Amendment requirements do not apply is that the search is not investigatory. The purpose of the search is to protect the owner's property while it is in police custody and to protect the police department against false claims of los-. or stolen property. The Fourth Amendment is satisfied if police have legal authority for the impoundment and conduct the search according to standardized inventory procedures. 77

§ 4.4 -Fourth Amendment Requirements for Seizing Property

So far this chapter has discussed only searches. The Fourth Amendment also pro- tects "[t]he right of the people to be secure in their ... houses, papers, and effects, again unreasonable ... seizures." Although seizures normally occur in tandem with searches. this is not always the case. There can be searches without seizures and seizures withou searches, and the Fourth Amendment imposes separate requirements for each.78

There are at least four different reasons police seize property: (1) to use it as evi- dence at a trial, (2) to detain it while conducting a brief investigation into its ownership or contents, (3) to prevent it from being moved while applying for a search warrant to open it, and (4) to impound it for safekeeping. As with searches, Fourth Amendmen requirements vary with the purpose of the seizure . Each purpose has its own set of rules . However, we are getting ahead of ourselves. We will start by defining the term seizure, as applied to things:

A seizure, in the Fourth Amendment sense, occurs when pol ice commit a meaningfu l interference with a person's possessory interest in property.

A. Seizure Defined ... /

Under property law, the possessor of property has the exclusive right to use it and the absolute right to exclude others from using it. Even the slightest touching consti- tutes a trespass if done without permission. However, Fourth Amendment protection does not go this far. A seizure in the Fourth Amendment sense requires a meaningful interference with a person's possessory interest in property. 79 This definition has two key phrases-"meaningful interference" and "possessory interest in property." Both must be understood in order to grasp the concept of a seizure. The following example will help explain.

SEARCH AND SEIZURE 191

Duffel Trouble for Officer Caesar Ralph Riefer (the second stu-

~ d est drug dealer in Whosville - to ry) recently placed an anony-

us telephone ca ll to the Whos- e Pol ice DepartJllent to report

:: theft. Riefer told police that ary Wanna (the stuPidest drug

::ealer in Whosville) had just stolen :: d uffel bag full of his "personal :-ash " and was planning to smug- ;; e it across the border into Mex-

. Officer Caesar, who took the _aiL believed it was a practical - e and asked the caller to iden-

_:_ himself. When Riefer refused, ....... a esar to ld him that he could do - hing without more information,

.'hat do you want me to do, --.-est every woman in Whosville _.:mying a duffel bag?"

" No, you idiot" Riefer replied, look at the name tag on

-.o d uffel. If it says 'Ralph Riefer, ' ' s the one." Riefer then hung

_ q uickly, hoping that the call ld not be traced, but he was late. Caesar sent a car down to Rief-

=~- house to determine whether - e ca ll was a joke, but decided

e meantime to check Whos- e Air's next flight to Mexico, just

- ::::ase Riefer was telling the truth. _ -e enough, when he arrived at - ""airport Caesar observed three = en in line at the check-in

::~Iter, each traveling w ith a duf- - .Jag .

lhe first woman had already :- scked her bag with the ticket

agent so Caesar stepped behind the counter, checked the tag, and determined that the bag did not belong to Riefer. The second woman had her duffel strapped to her back w ith a name tag dangling from it. Caesar snuck up, flipped it over, and read it w ithout her notic- ing. Again, not Riefer's bag.

The third woman, who had been watching Caesar the whole time, clutched her bag tightly to her chest as he approached. Caesar politely asked her if he could examine the name tag on her luggage, but she refused . Caesar did not bother her further. Instead, he headed straight to the airport security office to tele- phone his superior for instructions. The superior instructed Caesar to keep the woman under observa- tion and to see if she checked in under the name " Mary Wanna." In the meantime, the third woman became nervous, tossed her duf- fel in a nearby garbage can, and headed out of the airport. When Caesar returned, he found the duffeL opened it, and located Riefer's stash. The duffel bag and the stash were admitted into evi- dence against Mary and Ralph and both were convicted of drug offenses.

Caesar touched all three bags, but none of his acts amounted to a meaningful interference with possession each for a different reason.

,

192 CONSTITUTIONAL LAW FOR CRIMINAL JusTICE §4.4

1. Touching or Moving an Object Outside the Owner's Presence

Caesar did not interfere with the first owner's possessory rights because the bag was not in her possession when he touched it. She had already relinquished possession to the airline and had no intention of reclaiming her bag until she reached her destina- tion. Touching or moving luggage outside the owner 's presence is not a seizure if the acts of the police do not damage the luggage , delay its arrival, or interfere with the owner's travel plans. 80

2. Touching or Moving Property in the Owner's Presence without Depriving the Owner of Possession

Caesar touched the second duffel bag while the owner was carrying it. How- ever, his touching did not amount to a meaningful interference with the second owner's possessory rights because he did not deprive the owner of possession and control of her bag. 8 1 The Supreme Court has decided two cases in which the poli ce handled property in the owner ' s presence . In one case, the police detained a traY- eler's luggage for 90 minutes. The Court found that this was a seizure because the owner was denied access to his luggage and was prevented from taking it with him. 82 Depriving a traveler of his right to take his luggage with him, even for a shor: period, constitutes a meaningful interference with possession. In the second case. the police turned stereo equipment around to examine the serial numbers to deter- mine whether it was stolen, also in the owner's presence. The Court held that this handling was not a seizure. 83 Putting these cases together, the following pri nc i- ple emerges: To constitute a meaningful interference with possession, the pol ic e must deprive the suspect of possession, if only temporarily, such as by taking the property away, detaining it, or preventing the suspect from retrieving it fr om a third party.

3. Abandoned Property

Caesar did not seize the third duffel bag when he fished it out of the garbage ca:: because Mary abandoned her property rights when she threw it there. Tossing some- thing into a garbage can constitutes an unequivocal act of abandonment. A person wh abandons property has no right to complain of a sei~ure . 84

Denying ownership is another common way propert); can be abandoned. Had Ca'e- sar approached Mary as she stood a few feet away from the bag, asked Mary if the ba.= was hers, and had she denied ownership, this , too , would have constitute- abandonment. 85

/

SEARCH AND SEIZURE 193

==..:e 4. 6 Amendment Requirements fo r Seizing Property

::lo::rpose of the Seizure Fourth Amendment Requirements

- e object as evidence Probable cause to associate the object with a crime and either a search warrant describing it or a plain view discovery

:: 7:Iin the object for investigation Reasonable suspicion that the object is or contains criminal evidence or contraband

= =- ent the object from Deing moved Probable cause to obtain a search warrant - e a pplying for a search wmrant coupled with the risk that the object will be

moved unless the police seize it now

" _ound the property Legal authority to impound

Seizure of Property for Use as Evidence

!he requirements for seizing property vary with the purpose. Figure 4.6 shows the main purposes for seizing property and summarizes the requirements for each. In

= to seize property for use as evidence, the officer must have probable cause to ;:ye that the property is connected to a crime. 86

Jtherwise, officers conducting a lawful search would seize everything that looked _ -lightly suspicious. 87 The officer must, in addition, either have a search warrant -:rrizing the seizure or discover the item in plain view.88 More will be said about the

d requirement shortly. We must first consider the kinds of objects police are per- to seize as evidence.

-=-·e are four categories of objects police may seize for use as evidence: fruits of a -e, instrumenta lities of its commission, other evidence of its commission, and :-~aband .

::.. Objects that May Be Seized as Evidence: The Requirement of Probable Cause

-=nere are four categories of items that police may seize as evidence: ( 1) fruits of a -"-. such as stolen money or goods, (2) the instrumentalities used to commit it, such

eapon, (3) contraband, which includes anything that it is a crime to possess, such :mregistered gun or narcotics, and ( 4) "mere evidence," a catch-all phrase that

any other evidence that links a suspect to a crime or furnishes evidence of its ~--~· -sion, such as a mask worn by a bank robber, a shoe with a tread pattern that

,

194 CoNSTITUTIONAL LAw FOR CRIMINAL JusTICE § 4.-l

matches footprints found at the crime scene, or a receipt for the purchase of the murder weapon. 89

A police officer must be able to make a reasoned determination that the objec. viewed falls into one of these four categories before the officer may seize it without a search warrant and, to some extent, even when the officer has a warrant. 90 Police offi- cers' experience and training generally enable them to recognize fruits, instrumentali- ties, and contraband without much difficulty. 91 Cash in unusual quantities or packaged in particular ways sends up a "red flag" that it is probably the fruits of a crime. 92 Police officers do not have to know what the crime was or who committed it in order to have probable cause to treat bundles of $100 bills crammed into a briefcase as seizable evi- dence. Experience also helps police officers to recognize instrumentalities of a crime and contraband. In Texas v. Brown,93 for example, the Supreme Court held that a police officer had probable cause to seize a balloon knotted a half-inch from the tip, even though he could not see what was inside, because the officer knew from prior experi- ence that balloons knotted this way are often used to transport drugs. Based on similar reasoning, a Maryland court held that police officers investigating a recent burglary had probable cause to seize a crowbar in the possession of the man they arrested, even though they were not yet aware of the means used to gain entry, because a crowbar i a burglar's "stock in trade."94

2. Seizure Under a Search Warrant

As in the case of searches, the Supreme Court has expressed a strong preference for seizures under the authority of a warrant because a warrant protects against mis- taken seizures. 95 An officer is not forced to decide on the spot whether an object that comes into view constitutes the fruits, instrumentalities, or other evidence of a crime or contraband. The judge has already decided this. The listing of an object in a search warrant carries a judicial finding that there is probable cause to believe that the objec is properly subject to seizure. All the officer has to do is find it. The particularized description that search warrants must contain reduces the danger of mistaken seizures. 96

Figure 4.7 Authority to Seize Evidence in Plain View

Police may seize evidence, w ithout a warrant if they discover it and develop prob-/ able cause to believe that it is connected to criminal a ctivity without exceeding their lawful search authority. Evidence is considered to be in plain view only if:

l . the initial intrusion that brings the officer in contact w ith the evidence is lawful 2. it is immediately apparent to the officer that the object obseNed is criminal

evidence or contraband 3. the officer is able to gain physical access to seize it w ithout violating the Fourth

Amendment.

SEARCH AND SEIZURE 195

3. Plain View Exception to the Warrant Requirement

The only time police are allowed to seize an object for use as evidence without a h warrant describing it is when the plain view exception to the warrant require-

-ent applies. This exception permits police to perform a warrantless seizure when: (1) = initial intrusion that brings them in contact with the evidence is lawful, (2) it is

ediately apparent that the object viewed is associated with criminal activity, and _ :hey have a lawful right of access to it. 97 The Supreme Court has explained that once

ffic er is lawfully in a position to view an object, the owner's privacy interest in that -_ ~ t is lost and it would be a needless inconvenience and sometimes even dangerous

~ uire the officer to obtain a search warrant, to say nothing of the risk that the object 2 t be removed or destroyed in the meantime.

The plain view exception originally applied only to objects discovered by accident. thinking was that if the officer knew of the object's existence in advance, he/she d obtain a warrant. This limitation was abandoned in Horton v. California. 98 Con-

_,.ntly, even though plain view discoveries normally occur by chance, chance dis- ;:ry is no longer necessary.

-.-,ze Initial Intrusion That Brings the Officer in Contact - ith the Evidence Must Be Lawful

Police must have a legitimate reason for being present at the precise location where - -covery is made for the plain view exception to apply. 99 This requirement is often - d as being whether the initial intrusion that brought the officer in contact with

_ i dence was lawful. :here can be any number of legitimate explanations for the officer 's presence at

- ene of the discovery. The incriminating object, for example, may have been found ;: the police were on the premises executing a valid warrant to search for other

e, while they were conducting an appropriately limited search under an excep- : the warrant requirement, while- they were inventorying the contents of an

ded vehicle, while they were rendering emergency aid to a motorist who is = a seizure, while they were walking up to a driveway to ring the doorbell to ask _;:up ant a few questions , ad nauseam. The possibilities are unlimited. - · often necessary for the court to decide whether police were exceeding their

authority at the time of discovery because, if they were, the initial intrusion that _ -r them in plain view of the evidence is not lawful, and the seizure cannot be

_" by the plain view doctrine. For example, if police discover a bag of marijuana ·cine cabinet while executing a search warrant to search for a stolen television, nee will be suppressed because they had no business looking inside a medicine

- or a stolen television. --;:plain view rule is not limited to items that can be seen. It also applies to objects _

7 ed through the sense of touch. For example, if an officer, while conducting a -eny pat-down search to determine whether a suspect is armed, feels an object

,

196 CONSTITUTIONAL LAW FOR CRIMINAL JUSTICE §4.-±

that he or she instantly recognizes as contraband from its shape and the way it feels, the officer may seize it. 100

b. The Object's Criminal Nature Must Be Immediately Apparent

The second prong of the plain view exception requires that the incriminating nature of the object be "immediately apparent." This raises two questions. How much cer- tainty must the officer possess about an object's incriminating nature in order to seize it? And second, what additional exploratory activity is an officer allowed to perform i.G making this determination? As to the first question, the plain view doctrine does no' require absolute certainty that the object viewed constitutes criminal evidence or con- traband. The "immediately apparent" requirement is satisfied if the officer has probabl"' cause to associate the object with criminal activity. 101

The answer to the second question is more complicated. Examining a suspicious object to determine its criminal identity constitutes a search. The plain view doctrin does not give police an iota of search authority beyond what they already have. Som grounds for search authority, such as searches incident to a lawful arrest, allow polic~ to examine objects that come into view before deciding whether to seize them; othe~ do not carry this authority. To satisfy the "immediately apparent" requirement, poli'-~ must develop probable cause to believe that the object viewed is associated with criffi- inal activity, with no additional exploratory activity beyond what is authorized. 102 MO\-- ing a suspicious object as little as an inch to take a closer look is not allowed if tllli activity is unrelated to the justification that brought the officer in contact with it.

Arizona v. Hicks 103 is an illustrative case. Police entered the defendant's apartme- in search of a shooter who had fired a bullet through the floor that struck a person in tt:: apartment below. While on the premises, one of them noticed high-end stereo equip ment that seemed out of place in the surroundings and, suspecting that it might b- stolen, moved the turntable to read the serial number. A call to headquarters confirm, the officer's suspicion. Application ofthe plain view exception was denied because .... , officer had to move the stereo to develop probable cause to seize it. If an officer has : pick up, move, feel, or otherwise examine an object to determine its criminal identi;:: and this activity is unrelated to justification that brought police in contact with it, ·'- plain view exception does not apply.

The same principle applies to writings. Unless police" are operating under an exccr- tion to the warrant requirement that allows them to read writings, they may not exam:- writings that come into view during a search beyond glancing at what is plainly visio~:: United States v. Silva 104 illustrates this principle. Police obtained a warrant authoriz:il:= them to search the home of a bank robbery suspect for a gun, a holster, ammuniti certain items of clothing, business suits, ties, ski masks, and a pair of wide-rimm.:- sunglasses. In the course of the search, one of the officers came across a brown satche opened it, and found a spiral notebook. As he thumbed through the notebook, a fi \-::- page letter fell out, which he read as well. He discovered an incriminating passage the third page. The court rejected application of the plain view exception because ~:

SEARCH AND SEIZURE 197

~ er had no justification for inspecting the contents of the notebook. The notebook - not listed in the warrant and was incapable of containing any of the objects that

For the plain view exception to apply, the incriminating nature of a writing must - ~certainable without opening, inspecting, or disturbing it in any way beyond read- = what is plainly visible. 105

-;he Officer Must Have a Lawful Right of Access to the Object /

The last requirement for a plain vl. ew seizure is that the officer must have a lawful _-~ of access to the object. Simply because the police lawfully observe an object that _ · have probable cause to seize does not give them authority to seize it if it would

· e a warrantless entry into a constitutionally protected location to gain physical ess .106 This happened when Clueso saw what he thought was the stolen Mona Lisa ugh Sam's living room window. Even though his off-premises view was lawful and -,d probable cause for a seizure, it was necessary for Sam to obtain a search warrant

_ nsent to enter.

::: ~.ects recog nized as crim inal evidence or contraband may be se ized without a -=~ch warrant only if the officer is able to gain physica l access to them without vio- ::-!Q the Fourth Amendment. If a physical intrusion into a constitutionally protected : =:::rtion is necessary to gain access, the officer must obtain a search warrant or _=-.se nt to enter.

Brief, Limited Seizures

. n en police have suspicions about an object, but lack a search warrant or author- seize it under the plain view doctrine, they may be able to detain it for a brief

-_ ·gation or prevent it from being moved while applying for a search warrant. 107

- ':'ourth Amendment imposes less rigorous requirements for brief, limited

3rief, limited seizures are generally used to detain closed containers, such as brief- - suitcases, and mailed parcels. Containers are personal effects in which suspects

th privacy and property rights. Opening a closed container to look inside con- -- a search and requires either a search warrant or an exception to the warrant -~ent that authorizes the opening of a closed container. When search authority

· g, police may be able to temporarily seize it for investigation or while applying _ search warrant.

Seizure Pending Issuance of a Search Warrant

3~ ause a search warrant requires probable cause, police must have probable - -o believe that a container houses criminal evidence or contraband coupled -eason to fear that it might be moved in order to seize it while applying for a

,

198 CoNSTITUTIONAL LAw FOR CRIMINAL JusTICE § 4.~

search warrant to open it. 108 Seizures pending application for a search warrant rest OG exigent circumstances. Suppose that police learn that Sam has left a package witt $10,000,000 worth of stolen diamonds with UPS for delivery to his "French connec- tion," and that the plane containing the package is about to take off for Paris . EveG though police have no warrant, exigent circumstances justify seizing the package from UPS. This preserves the status quo, pending application for a search warranL Once the container has been secured, police must obtain a search warrant before they may look inside. 109

2. Brief, Limited Seizures for Investigation

Police cannot obtain a search warrant if they only have reasonable suspicion tc believe that a container houses seizable evidence. However, reasonable suspicion is enough to seize the container for a brief investigation. 110 Investigatory detentions o:::- property are based on the principles established in Terry v. Ohio 111 and are subject to the same rules. 112 For example, if police spot a woman in an airport who matches a drug courier profile, they may temporarily detain her for investigation and also her lug- gage.113 However, because reasonable suspicion does not confer authority to open closed container, investigatory detentions of containers are of little use to the polic"' unless they can confirm their suspicion without looking inside.

The chief application of this exception occurs in narcotics work. As you learne, earlier, canine examinations are not searches. 114 Consequently, when police have rea- sonable suspicion that there are drugs in a traveler's luggage, they may seize th~ luggage and detain it to subject it to a canine examination. Because no search is involved, the only requirement necessary to perform this procedure is grounds for a.r:. investigatory detention. If the dog detects drugs, the officer will then have probabl"' cause for a lengthier seizure, pending application for a search warrant to open the luggage.

No degree of suspicion is necessary to subject a container to a canine examinatio::. if police can gain access to the container without seizing it. Unoccupied parked vehi- cles,115 checked luggage, 116 and packages in the control of the postal service 117 are examples of containers that may be exposed to a sniff, without suspicion, because the owner's possessory rights are not disturbed.

D. Seizures of Vehicles and Personal Belongings for Impoundment

Traditional Fourth Amendment requirements do not apply when property is seiz for a noninvestigative reason, such as to impound it (i.e., take custody for safekeep- ing). 11 8 Vehicles and the clothing worn at the time of arrest are the two articles mas- often impounded. Statutes generally give police authority to impound vehicles wh~ they are abandoned, illegally parked, not drivable, or when no one is available to take charge of them after a driver's arrest. 119 The clothing worn at the time of arrest is

/

SEARCH AND SEIZURE 199

:illy taken from arrested persons and impounded when they are booked into a ·on facility.120

ce property is impounded, a search will be conducted to produce an inventory. -=-ourth Amendment regulates inventory searches, but not by the same standards ~ used for evidentiary searches, because the purpose of the search is to protect the

·- property while in police custody and to deter false claims of loss or theft. 121

-=- urth Amendment requirements for inventory searches are designed to ensure that =e used for this purpose and not as a subterfuge to search for evidence . For the

.4.. o be valid, (1) there must be a law or police department regulation authorizing ~ undment and (2) the search 'inust be conducted according to established police

ent operating procedures. 122

-The Fourth Amendment Search Warrant

~uch has been made of the fact that a search warrant is generally necessary to _-for or seize evidence . Little, however, has been said of the search warrant itself. ~proceeding further, we will pause to examine what a search warrant looks like,

e is obtained, and what is necessary for proper execution. Because Fourth -~-~ ~ent requirements for an arrest warrant ( § § 3.14-3 .15) also apply, for the most

· search warrants, the following explanation focuses on the differences .

_-lpplying for a Search Warrant

. .::e mechanics of applying for search and arrest warrants are similar. For both, - er must submit an affidavit under oath to a magistrate setting forth facts -g probable cause. 123 The fac ts must be true to the best of the officer's knowl-

.::- an d must be sufficiently detailed to enable the magistrate to make an inde- ~ determination of probable cause. 125 The main difference is what the facts in - davit must show. For a search warrant, the facts must establish probable ~ · o believe that: (1) a crime has been committed, 126 (2) the items the officer

;:onstitute evidence of that offense, and (3) the items are located at the place s.earched.127

- - satisfy the second requirement, the officer must describe the items to be seized _ . lain their connection to the crime . When authority is sought to search for the

r instrumentalities of a crime or contraband, the connection is generally _ · 'ent and simply describing the object in the application is generally enough. 128

~ ple, if the application establishes probable cause to believe that Mary Wanna g in drugs from her home, it will be easy for the judge to see why a balance

_ uld be an instrumentality of that crime . 129 However, if police wish to search -= -eize mere evidence, such as "one black overcoat" (allegedly worn by the

-=--.,..-_,.or of the crime), they should be sure to include in the application the facts ~ -l them to believe that the item furn ishes evidence of the crime-such as, the

II!

200 CoNSTITUTIONAL LAw FOR CRIMINAL JusTICE § 4.5

fact that an eyewitness saw the perpetrator fleeing the scene of the crime while wear- ing such a coat.

To satisfy the last requirement, the affidavit must set forth facts that establish prob- able cause to believe that the items described in the warrant are located at the place to be searched. 130 In the typical case, police seek permission to search for evidence that is now there. However, courts also have authority to issue anticipatory search warrants authorizing police to search for evidence that is not currently there, but is expected to be there at the time of execution.131 The most common use for anticipatory warrants is in drug investigations. Police arrange for a controlled delivery of drugs and then apply for a warrant authorizing them to search the premises after the delivery has occurred. Anticipatory warrants are not that different from ordinary search warrants because all warrants require probable cause to believe that the objects listed in the warrant will be at the placed to be searched when the warrant is executed.

Facts establishing probable cause to search can grow stale with the passage of time because, even though the police had probable cause to believe that the objects were there a month ago, they may not be there now. The staleness of the facts in Clueso's affidavit was one of the reasons Judge Stickler initially refused to issue a search war- rant. If a significant amount of time passes between the facts relied on to establish probable cause and the application for a search warrant, police must include facts show- ing why they believe the objects described are still at that location. For example, had Clueso kept Sam's house under observation for the entire month, and had Stickler been informed of that fact, the passage of time would not have precluded issuance of the search warrant.

B. Contents and Form of the Search Warrant The Fourth Amendment requires that search warrants "particularly describe" the

place to be searched and the things to be seized. The purpose of this requirement is to ensure that police do not seize the wrong property and that they search only in loca- tions where there is probable cause to believe that the objects of their search will be found.

1. Particular Description of the Place to be Searched

Oftentimes a search warrant will be execu~d by a person other than the one who knows the facts of the case and who swore to them in the application. Accordingcy, the search warrant must describe the place to be searched with sufficient particularity to allow an executing officer who is unfamiliar with the facts to locate and identify it with reasonable certainty. 132 If a warrant is issued to search premises, a street address will suffice unless the building is subdivided into units-in which case the unit number must also be included. 133 If a warrant is issued to search a vehicle, reference to the vehicle's make and license number or make and owner is sufficient, but other facts , such as color, model, model year, or vehicle identification number (VIN), should be included, if this information is known.

/

= SEARCH AND SEIZURE 201

:. Particular Description of the Things to Be Seized

-:be Fourth Amendment requires a particularized description of the items to be for two reasons-to avoid seizing the wrong property and to prevent indiscrim-

"" rummaging. The more precisely an object is described, the more limited the search ;: premises is likely to be. Accordingly, the warrant must describe the objects of the _ with sufficient particularity to avoid misidentification and to prevent the police

invading privacy to any greater extent than necessary. 13 4

n ether a particular warrant description is adequate to accomplish these purposes . - with the nature of the object, the ease of describing it, the amount of detail

to the police, and the risk of misidentification. 135 For example, a warrant au tho- = a search for "drug paraphernalia" in a tobacco shop should contain a fairly spe-

- ..... escription of what items are considered "paraphernalia." Otherwise, the executing - -~ could end up seizing tobacco pipes even though there is no probable cause to

::-o ·e that they are associated with the use of illegal drugs. ~ven when the risk of seizing innocent items is low, as, for example, when a war- authorizes the seizure of drug paraphernalia from a video store, the warrant's

:-:iption must be as specific as the circumstances of the case permit. 136 Failure to do lates the Fourth Amendment because it leads to overly broad searches and unnec-

_. invasions of privacy.137 For example, a warrant issued to search a robbery sus- -·- home for " weapons used in the robbery" would violate the particularity

. · ement if the police knew that the weapon used was a machine gun because __ ons" is a category that includes everything from missiles with multiple warheads -y razor blades. Failure to describe the weapon sought as a machine gun will result

ecessary intrusions on privacy because it allows police to look inside places a __ on" would fit , but a machine gun would not.

3. The "Facially Valid" Warrant

.-\. warrant that appears to contain a particularized description of the place to be ~hed and the items to be seized is said to be facially valid. 138 Even though the

:ription turns out to be less precise than it appears to be and the warrant is held ::.:.id, evidence seized under it will not be suppressed as long as the executing officer - nably failed to appreciate the warrant 's deficiency.139 Maryland v. Garrison 140 is ;:xample. Police obtained and executed a search warrant for premises known as

__ 6 Park Avenue, third floor apartment" and learned later that the third floor was ed into two apartments and that they had searched the wrong unit. The Supreme

nevertheless, upheld the admissibility of the evidence, despite the warrant's ::..;_idity, because the executing officers were excusably ignorant that there were two aate units on the third floor.

Whether the executing officer should have recognized the warrant's defects _ ds on a number of considerations, including the degree to which the officer par- r ted in the investigation and preparation of the affidavit. For example, a description

e items to be seized as "women 's jewelry" could seem perfectly adequate to an

,

202 CONSTITUTIONAL LAW FOR CRIMINAL JuSTICE § 4.:

officer who is unfamiliar with the case, but overly broad to an officer who is intimate!. familiar and knows that only a small portion of the jewelry likely to be found on th premises will be relevant. Likewise, an officer who prepared the affidavit might review the list of items in the warrant and understand that extraneous items have been included. Thus, the reasonableness of the officer's reliance on a defective warrant must be deter- mined on a case-by-case basis . 141

However, reliance on a warrant that fails to give any description of the place to be searched or the items to be seized is never reasonable. 142 The search warrant in Fig- ure 4.8 is facially invalid because it completely fails to list any of the items for which it is issued.

Figure 4.8 Sample Search Warrant/Without Item Listing

To any Sheriff, Constable, Marshal, or Police Officer of the State of Confusion:

You are hereby authorized and directed to search the following premises located : 2443 Morris Avenue, Apartment/Room# 7, IN THE COUNTY OF WHADYASAY, STATE OF CONFUSION.

This search warrant must be executed between 6:00a.m. and 9:00p.m. This search warrant must be executed not more than 1 0 days after the date of

issuance. The search warrant and any property seized must be returned and delivered

without any unnecessary delay.

Given under my hand this 13th Day of May 2011 /S/ Betty Bright Justice of the Peace, Whadyasay County

C. Requirements for Executing the Warrant The procedure for executing search warrants is similar to the procedure for execut-

ing arrest warrants. In both cases, only the persons to whom the search warrant is addressed may execute it, 143 the warrant must be presented upon execution, and officers must knock and announce their presence before making a forcible entry unless compli- ance will jeopardize their safety or risk destruction of evidence. However, there are two important differences.

First, search warrants must be executed within a reasonably short time after their issuance. 144 This is in contrast to arrest warrants, which c&n remain valid for a long / time-even years. Once facts make it reasonable to believe that a given person is guilty of a crime, the reasonableness of that belief will not change over time. The same is nm true of search warrants, which require probable cause to believe that the objects described in the warrant are located at the place to be searched. Even though there w as probable cause to believe that the objects were there when the warrant is issued, this probability weakens with the passage of time. Delay in executing a search warran-

SEARCH AND SEIZURE 203

·es the Fourth Amendment if the probable cause that supported its issuance no __ exists when it is executed.

Second, after completing the search, the executing officer must prepare an inven- i'the property seized, give the owner a copy, and return the warrant, together with

__ ·of the inventory, to the judge who issued it. 145 Although failure to make a timely - will rarely invalidate an otherwise lawful search, it can cause other problems

· e the prosecutor is required to authenticate objects offered into evidence (i.e. , - · h that they are what they purport to be and have not been tampered with). A _ · return is important because the longer the police wait, the more difficult it will

ilie prosecutor to establish authenticity . . ·e have just completed a condensed tour of the main principles governing search

:"izure law. Police are called upon to apply these principles in three primary set- - · earches involving people, searches involving vehicles, and searches involving

·es. Examining the rules a second time in the settings in which police are called :o apply them will solidify understanding and fix them in memory. The rules need

tantly accessible because most searches are conducted without a warrant, fore- - ~lice to make on-the-spot decisions about the scope of their authority. Their deci-

eed to be correct, because the admissibility of evidence can be destroyed if they . - ""P their lawful search authority. 146

Searches Involving People and Personal Effects

-... though search warrants may be issued to search a specific individual, 147 most such are conducted without a warrant. Terry pat-down searches and searches inci-

ustodial arrests are the two most common grounds for searching individuals. ·e begin with the following example.

Operation Grab 'n' Sniff

e Whosvill e PD recently emented Operation "Grab nniff" a t t he Whosvi ll e inter-

::- nal a irport . The operatio n _ es p lacing t ra ined dogs in

-= o aggage handl ing area to ~-=-3ct illegal drugs. As soon as

_ oa gs from a n arriving fl ig ht _ unloaded, Whosvi lle officers

separate out bags th at appear suspicious and p resent them for a can ine exami nation. 148 Usua lly, t he dogs detect not hing and t he bags are ret urned to the airline for standard handling. When a dog detects something, pol ice officers seize the bag and proceed to t he magistrate for a warrant to search

,

204 CONSTITUTIONAL LAW FOR CRIMINAL JusTICE § 4.

the bog and a second warrant to arrest the owner.

Lost week, Officer Caesar of the Whosville PD separated out a Gucci gym bog that looked suspi- cious and exposed it to a canine examination. Sure enough, the dog detected something. The nome tog on the bog showed that it was owned by Bugsy Boss. Recognizing the nome as the head of Whos- ville's biggest crime syndicate, Caesar decided that instead of fol- lowing the standard procedure, he would place the bog bock on the carousel and arrest Boss when he claimed it. That way, Caesar rea- soned, Boss would not be able to extricate himself with high priced attorneys. Caesar returned the Gucci bog to the airline and stoked out the baggage claim area, but Boss was nowhere to be seen.

A young man named Tom Thug, also familiar to Caesar because of a prior armed robbery conviction, retrieved the Gucci bog. Caesar watched him go outside, hand the bog to Boss, and return to the bog- gage claim area. Suspecting Tom of being on accomplice, Caesar radioed for a second officer to arrest Boss while he kept Tom under surveillance.

Officer Fromkin responded to the call. After placing Boss under arrest, he grabbed the Gucci bog from him, performed a pot down, and then hastily searched the con- tents for drugs and weapons . All he found was two rocks of crock cocaine. He then handcuffed Boss's arms behind his bock, and went through his pockets and

wallet where he found a note titled "Things to do today." The note read: "l. Buy milk, 2. Bribe Mayor Kruger re: rood contract 3. Blackmail jurors in RICO trial." There were check marks beside "2" and "3." Because the note dealt with matters unrelated to Boss's arrest, Fromkin put it bock in Boss's wallet and returned it to him.

Meanwhile, Caesar watched Tom remove two more bogs from the carousel. As he carried them from the airport, Caesar approached Tom and asked if he would answer a few questions. "''m too busy," Tom replied, and kept walking . Caesar said "Not so fast buddy! WPD-Iet me see some identification." As Tom reached for his wallet, Caesar noticed a strange bulge underneath his coot and pro- ceeded to pot him down for weap- ons. The bulge was bumpy but pliable and clearly not a weapon . As Caesar poked squeezed, lifted, and pushed on the bulge, he heard a "clinking" sound like glosses top- ping each other. As a result, Cae- sar was able to conclude that the bulge was a boggie containing several gloss viols of the kind used to package illegal drugs. At that point, Caesar reached into Tom 's pocket and removed a bog full of gloss viols containing crock, just as he hod expected, and placed Tom under arre~t. /

The Boss, Tom, the bog con- taining viols of crock cocaine, and the three pieces of luggage were transported to the Whosville police station. Upon arrival, Cae- sar searched the remaining two

SEARCH AND SEIZURE 205

oags a nd made a huge bust-he "'ound severa l kil og rams of crack

oca ine. At the arra ign me nt the ext d ay, the judge denied bai l for

3oss (d ue t o his p ri or record), but 'Uied that Tom had been illegally arrested a nd re leased him.

/ After th e arraig nment Caesar :>laced Boss in lockup, exchGmged

is street clothes for a n o range mpsuit, and searched his wa llet g ai n. Comin g across the "th ings

-o do" note, he read it and set - aside for use as evidence . He

en se arc hed the Gucci bag and he discovered a bound led- ;Jer bo ok that Officer Fromkin a d missed. He thumbed through

it to determine whether it con- tained anything incriminating . Su re enough, it conta ined vast records of drug transactions, bribery, and co rrupt dealings. After comp leting the inventory, Caesar took the led- ger and the "things to do" note to the evidence room, and the rest of Boss's belongings t o the property room for safekeepi ng . At the triaL the judge suppressed eve rything except the two rocks of crack cocaine recove red from Boss's Gucci bag at the scene of his arrest and the "th ings to do" note . As you read the materials that fo l- low, try to figure out w hy the rest of the evidence w as inadmissible .

- -±. 7 -The Terry Search Revisited

A number of searches were performed in Operation Grab ' n' Sniff- some legal, e not. We will begin our analysis with Officer Caesar 's Terry search of Tom.

--ough the search began properly, it quickly went awry. As a result, all the evidence t Tom had to be suppressed.

Required Grounds

Police perform weapons frisks during investigatory encounters when they have - nable concerns for their safety. Although this practice is longstanding, the Supreme _ di d not have occasion to rule on its constitutionality until 1968 in the landmark ~of Terry v. Ohio, 149 covered in Chapter 3. The Court laid down two requirements JOtective weapons searches. First, the officer must have adequate grounds to initi-

- - e encounter. The usual reason is to check out circumstances that arouse their - nable suspicion.150 That is why Officer Caesar initiated his encounter with Tom.

zanine alert in response to Boss 's luggage, Caesar 's observation that Tom appeared ·orking with Boss, and his knowledge that both had previously been involved in al activity provided ample justification for initiating the stop.

B:owever, a lawful stop does not automatically justify a weapons frisk. 151 A frisk is ·ned only if the officer has reasonable suspicion that the detainee is armed and

::be dangerous. 152 The crime under investigation, knowledge of the detainee's al past, weapon-like bulges in the detainee 's clothing, hostile behavior, furtive

,

206 CoNSTITUTIONAL LAw FOR CRIMINAL JusTICE § · -"'·

gestures, and the late hour or secluded location of the stop are some of the many factors that might justify a frisk. Caesar's observation of the bulge in Tom's jacket, 153 com- bined with his knowledge of Tom's prior armed robbery conviction, 154 provided ade- quate justification for a frisk.

B. Permissible Scope

The scope of a Terry weapons search extends to the detainee's person 155 and any unlocked containers within grabbing distance that might contain a weapon. 156 Officer Caesar's Terry search authority did not extend to the luggage Tom was carrying at the time of his arrest because the bags were probably locked, rendering weapons inside inaccessible . Moreover, the probability of their containing weapon was low because they had previously cleared airport security.

C. Permissible Intensity

Officer Caesar's search went bad, not because he lacked grounds for frisking Tom, but because he exceeded the intensity permitted for this kind of search. A Terry weap- ons search is limited to activity necessary to determine whether the suspect is armed. When the search is directed at the suspect's person, the intensity is limited to patting down the suspect's outer clothing. 157 When authority exists to search a container, the intensity is limited to a cursory visual inspection of the contents- just enough to deter- mine whether there is a weapon inside. 158

Once Officer Caesar determined that the bulge under Tom's coat was not a weapon, he reached the limits of his Terry search authority. When he continued to poke, squeeze, and push the bulge, he was no longer searching for weapons, but was trying to deter- mine other things about the object. Because these acts were not necessary to rule the object out as being a weapon, Caesar 's continued tactile examination exceeded the boundaries of his Terry search authority, requiring suppression of the glass vials of cocaine removed from Tom 's pocket. 159

Fig ure 4.9 Requirements for a "Plain Feel" Seizure during a Terry Stop

1. Police feel an object in the course of a weapons pat down. 2. Th ey immediately recognize the object as "fee ling" somet hing like a specific

kind of contraband. .. 3. Ot her ci rcumsta nces surrounding t he encounter reinforce the be lief t hat the

object is w hat it feels li ke.

D. Seizure of Evidence in "Plain Feel" During a Terry Pat Down Search

Although police officers may not initiate a pat-down search solely because they suspect that a detainee has contraband, they may seize it if they discover it during a

SEARCH AND SEIZURE 207

pat-down search. The plain view doctrine has an analog known as the "plain octrine, which applies to Terry searches. If an officer feels an object during a pat down and its contours and mass make it immediately apparent that the object

a-aband, the officer may to seize it without a warrant. 160 "Immediately apparent" --that the officer must develop probable cause to believe that the object felt is

and without exceeding the boundaries of the officer 's Terry search authority. ;: :he officer rules the object out as being a weapon, Terry search authority ends .

ued manipulation to determine an object's identity, as Officer Caesar did, vio- / - e Fourth Amendment. ..

:>oli ce are seldom able to develop probable cause to believe that an unseen ~ -: is contraband solely from the light touch that is permissible during a pat- - earch. What feels like a rock of crack cocaine could be just a rock, 16 1 a -hi tter" pipe could be a pen, and a film canister might actually contain only :: However, police officers are allowed to take other information into account. 163

=xample, if an officer feels what he or she believes could be a rock of crack e in a suspect's shirt pocket during a pat-down search, this alone does not

de probable cause to seize it. 164 However, if the officer also observes a glass - - :md a box of Brillo pads on the front seat of the suspect 's car, which he or she

- fr om prior experience are often used to smoke crack, the officer would then ;: grounds to seize it. 165

-Search Following a Custodial Arrest

3ugsy Boss and Tom Thug were both arrested and searched. The Boss search ed from a lawful arrest and was conducted in a proper manner, producing evidence :ould be used at his trial. Tom's arrest, in contrast, derived from a Terry search no n. The unconstitutionality of the arrest tainted the search that followed. Tom -eleased because there was no evidence that could be used against him.

Ju stifications for Performing the Search

.:a studying the search incident to arrest exception to the warrant requirement, you - o stay focused on the justifications for the search. The search serves two pur- -:: (1 ) to protect the officer 's safety by removing weapons that could be used to

t the officer or effect an escape and (2) to prevent persons under arrest from ying or concealing evidence. The justifications that support the search also define

~ undaries. Search authority only extends to the arrestee 's person 166 and objects the area under his immediate control (defined as the area from within which he/

·ght reach to gain access to a weapon or destructible evidence). 167

-:be "immediate control" test was announced in Chime! v. California. 168 The defen- ·as arrested in his home for the burglary of a coin shop. After his arrest, police

- ted a warrantless search of his entire home, which lasted almost an hour. They ·ered some of the stolen coins in a drawer in the bedroom.

,

208 CoNSTITUTIONAL LAw FOR CRIMINAL JusTICE §4.

The Supreme Court ruled that this search vastly exceeded their search authority. The Court explained:

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 .... In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested.

However, "[t]here is no comparable justification ... for searching any room other than that in which an arrest occurs--or, for that matter, for searching through all the desk draw- ers or other closed or concealed areas in that room itself Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant."

The search incident to arrest exception has two separate branches, one dealing with searches of an arrested individual's person and the other with searches of objects within arm's reach. Each branch has its own set of rules.

Figure 4.10 Authority to Search the Arrestee's Person Incident to Arrest

A lawful custodial arrest carries automatic authority to search the arrested individual's person, clothing, and articles closely associated with his person that are on or carried by him. Authority to perform this search does not depend upon the nature of the offense of arrest or the probability that the search will turn up weapons or evidence. The search may be performed either at the scene of arrest, the police station, or at both places, and may be as methodical as the police wish to make it.

B. Search of the Arrested Individual's Person

1. Authority to Perform

The majority of searches performed by the police are made after an arrest. A lawful custodial arrest carries automatic authority to search the arrested individual's person, clothing, and articles closely associated with his person that are on or carried by hjm. Authority to perform the search does not depend on the nature of the offense or the probability that the search will tum up weapons or evidence.

This rule was established in United States v. Robinson. 169 Robinson was arrested fo r driving with a revoked operator 's permit. After his arrest, the officer performed a field search that included inspecting the contents of a crumpled cigarette pack in Robinson 's pocket where 14 heroin capsules were found. Robinson moved to suppress this evidence on the grounds that the nature of the offense for which he was arrested--driving on a suspended license-made the search unreasonable because the officer lacked probable

SEARCH AND SEIZURE 209

·=- to believe that the search would tum up weapons or evidence of the crime he :rrrested for. The Supreme Court rejected this argument, explaining that the

.=er to an officer from the extended exposure , which follows taking a suspect into ~y and transporting him to the police station, makes it reasonable to perform a : earch of the arrested individual ' s person in all cases, and not just those where ffi cer has probable cause to believe the person arrested possesses a weapon or

tible evidence . However, an actual custodial arrest is needed. Police are not -e d to search for evidence when they issue a citation in lieu of making an

/ - 1- 0

Scope and Intensity of the Search

""lhe search of the arrested indiv idual 's person extends to his clothing and small on or carried by him that are closely associated with his person like wallets and

- gs. m -:be search can be quite thorough. Police are free to examine everything in the - d individual's pockets, go through his wallet, read his receipts and private papers, ;:yen inspect the contents of a cigarette pack in search of evidence of any offense,

-t the offense for the arrest was made. 172

Authority to search articles closely associated with the arrested individual ' s person _: not include data stored on his cell phone . 173 Modem cell phones raise privacy

ems that differentiate them from other items people normally carry in their pock- -:bey are capable of storing vast amounts of personal information. A person 's pri-

"life can be reconstructed through the photographs , videos , emails, texts , voicemail - ~es , Internet browsing histories, phone books , calendars , and other information ~ on the person's cell phone. Searching the digital content is not necessary for

al safety or to prevent destruction of evidence since the arrested person cannot =-"' the content once the cell phone has been removed from his possession. Accord-

- _ -. police can seize the cell phone to prevent it from being used as a weapon, but = rbe cell phone has been secured, the privacy interests at stake require police to

a search warrant before examining the content unless exigent circumstances are __ ent.

ilighly intrusive body search like strip and body cavity and searches that extend below .JOdy surface, such as drawing blood, are not included in the search authority that arises

automatic incident of a lawful custodial arrest. Additional grounds are necessary to ----,.,m searches like these. Bodily intrusive searches are covered in Chapter 7.

3. Timing of the Search

The search of the arrested individual's person may be performed at the scene of arrest, police station, or at both places.174 The Supreme Court has not been troubled even by

tial delays in performing the search. In United States v. Edwards, 175 for example, e searched the defendant's clothing at the police station hours after his arrest for

,

210 CONSTITUTIONAL LAW FOR CRIMINAL JuSTICE § 4. -

attempting to break and enter a post office. The arrest was made at 11 :00 P.M. and the defen- dant was taken to jail. An investigation of the burglary scene after the defendant's arres: revealed that the attempted entry had been made through a wooden window, which hru been pried up, leaving paint chips on the window sill. The next morning, the defendanL shirt, trousers and other articles of clothing were taken from him and tested for paint chip A positive match was found. The Supreme Court upheld the delayed search, stating:

... (O)nce the accused is lawfully arrested and is in custody, the effects in his pos- session at the place of detention that were subject to search at the time and place of his arrest may lawfully be searched and seized without a warrant even though a substantial period of time has elapsed between the arrest and subsequent admin- istrative processing, on the one hand, and the taking of the property for use as evidence, on the other. This is true where the clothing or effects are immediately seized upon arrival at the jail, held under the defendant's name in the "property room" of the jail, and at a later time searched and taken for use at the subsequent criminal trial. The result is the same where the property is not physically taken from the defendant until sometime after his incarceration.

The Supreme Court has never explained why delayed searches are permitted for articles that are closely associated with the arrestee's person but not of other things. n Perhaps it is because a thorough examination of the suspect's clothing and personal effects at the scene of the arrest would be embarrassing, inconvenient, and impractica- ble, or because an inventory search will take place, in any event, when the suspect i booked into a detention facility. Whatever the reason, the line has been drawn at article closely associated with the arrested individual's person that are on or carried by him. 1T Searches of articles not associated with the person like backpacks, briefcases, suitcases, and packages are governed by the rule discussed in the next section. 178

Articles not closely associated with the arrested individual's person that were on or carried by him at the time of arrest may be searched without a warrant on ly if the arrestee is unsecured and within reaching distance at the time of the search.

C. Search of Articles Not Closely Associated with the Arrested Individual's Person

Police may search articles under the arrested per son's control that are not closely associated with him only if the arrestee is unsecured and within reaching distance of ... them at the time of the search. Once the arrestee has been secured and can no longer grab a weapon or evidence from inside them, the search can no longer be justified as an incident to his arrest, and police must obtain a search warrant. 179

Although this restriction makes perfect sense, it was not the law until recently. Authority to search containers that were under the arrested person's immediate control at the time of arrest was viewed as the spoils of a lawful arrest. 180 So long as the search occurred reasonably close in time to the arrest and was an integral part of the arrest

SEARCH AND SEIZURE 211

ess, the search was valid even through the arrestee was securely in police custody -no longer had access to them.181

The Supreme Court eliminated this windfall in A rizona v. Gant. Gant was arrested driving with a suspended license. After he was handcuffed and locked in a patrol

- po lice searched his vehicle and found cocaine in the pocket of a jacket in the back- . - The Supreme Court ruled that the right to search a motorist's vehicle after his -_st is not a police entitlement. It is a precaution police are allowed to take when the

h is necessary to protect their safety or prevent destruction of evidence. If no real- : possibility exists that the arreste~ could retrieve a weapon or evidence from his - · le when it is searched, the search is unjustified and violates the Fourth

-:endment.

1. Application of Arizona v. Cant Outside the Vehicle Context

Arizona v. Gant left many questions unanswered, the most important being whether - :uling applies outside the vehicle context. In his dissenting opinion in Arizona v.

-. Justice Ali to observed that "there is no logical reason why the same rule should .:rpply to all arrestees." 183 Justice Alito's prediction has proven correct. Gant has

generally understood as applying to all searches incident to arrest, and not just .::"'involving a vehicle. 184

_-\s a result, police are not allowed to search backpacks, briefcases, suitcases and containers that were under the arrestee 's immediate control unless the arrestee is ured and within reaching distance ofthem when they are searched. 185

Analysis of the Searches Performed in Operation Grab 'n' Sniff

Police searched Bugsy Boss's wallet twice, once at the scene of the arrest and a sec- :ime at the police stations. Both searches were valid because the Fourth Amendment - police to search an arrested individual 's person and clothing, either at the scene of

::rrest, the police station, or at both places. A wallet in the arrested individual's pocket ~ded as part of his clothing. Consequently, the "things to do" note seized from

-·-wallet during the second search can be used as evidence. The Gucci bag Boss was _ ing at the time of his arrest is governed by a different rule. Objects under the arrested :dual's immediate control that are not associated with his person or part ofhis cloth-

y be searched without a warrant, incident to arrest, only if the arrestee is unsecured ithin reaching distance of them when they are searched. Once the arrestee has been

• itated and is no able to retrieve a weapon or destroy evidence inside them, the _- can no longer be justified as incident to arrest and a search warrant is necessary . ..~on this analysis, the search of Boss's Gucci bag at the scene of the arrest was valid

.=se he was unsecured and within reaching distance of it at the time of the search, but - ond search at the police station was not. However, station house searches that fail

~

212 CONSTITUTIONAL LAW FOR CRIMINAL JusTICE §-!.

to qualify as a valid search incident to the arrest can sometimes be justified under a dif- ferent exception to the warrant requirement-the inventory search exception. 186

E. Inventory Searches Incident to Booking an Arrestee into Jail

When a person is arrested at a place other than his home, belongings in his posse~ sion at the time of arrest will be bundled up and taken to the police station unless there is someone present who can take charge ofthem. 187 During routine booking procedures incident to incarceration, the suspect's clothing and other belongings will be impoundee and an inventory search will be performed. The purpose of an inventory search is no- to discover evidence. The purpose is to secure valuables, protect the police departmen- against false claims of loss or theft, and prevent weapons and contraband from being introduced into the jail community.188 The search should not be performed until it is determined that the suspect will not be released on baiL 189 If the inventory search is conducted properly, evidence that comes to light during the search will be admissible under the plain view rule. 190 Evidence missed during a search incident to an arrest is sometimes discovered later during an inventory search.

Inventory searches must be conducted in accordance with standard police depan - ment operating procedures concerning the time, place, and manner for conducting such searches. 191 The purpose of this requirement is to ensure that police do not use inventory searches as a subterfuge to search for evidence. For example, if the department's stan- dard operating procedures do not provide for opening closed containers and inventory- ing their contents separately, but instead require them to be securely taped and sealee and placed into a locker, opening and searching them will violate the Fourth Amend- ment and evidence uncovered will be inadmissible. 192

The permissible intensity of an inventory search also differs from a search inciden- to arrest because police are performing an administrative and caretaking function, no- looking for evidence. Accordingly, police may not examine the articles they are inven- torying to any greater extent than necessary to describe them on an inventory. 193 A superficial examination is generally enough. Caesar's reading of Boss's ledger book. for example, exceeded the permissible intensity of an inventory search because reading the contents was not necessary to describe it on an inventory. Because the reading occurred too late to qualify as a search incident to arrest and was too intensive for an inventory search, the ledger book could not be used as evidence.

F. Searches Preceding an Arrest .. Police sometimes do things out of sequence. They search the suspect before plac-

ing him under arrest. This is not a problem if police have probable cause for making an arrest before the search is begun. When grounds for arrest are present, the fact that the search precedes the arrest does not violate the Fourth Amendment. However, the fruits of a search cannot supply grounds for an arrest that follows. If the police do not have grounds for arrest before they start the search, the search and subsequent arrest are both illegaL 194

., 9 SEARCH AND SEIZURE 213

- -1.9 Vehicle Searches

A lthough it is a wise practice to obtain a search warrant when feasible, for obvious ::!SOns, this is often not feasible in the case of motor vehicle searches. As a result, most - tor vehicle searches are conducted without a warrant. There are four theories, in - ·tion to consent, for searching motor vehicles without a warrant: (1) vehicular lim- ~ weapons searches, (2) searches incident to the arrest of a motorist or passenger, - -earches based on probable cause to believe that the vehicle contains criminal evi-

e or contraband (referred te as the "motor vehicle exception"), and ( 4) inventory rches. Officers need a strong grasp of these theories, because there is rarely time to

- der when the need to search arises. These four theories can work in tandem, with one theory triggering another. An

= er develops grounds for conducting a vehicular limited weapons search during a - _ · or traffic stop and, while conducting the search, comes across drugs or contra-

. The officer places the motorist under arrest, conducts a more intensive search wed as an incident to arrest), and finds additional drugs or contraband. This dis-

·ery gives the officer probable cause to believe that there may be more evidence in ~ yet unsearched and enlarges the scope of the officer's search authority by trigger- = me third exception. The officer performs a highly intensive search based on proba-

- -= a use to believe that the vehicle contains criminal evidence. When this search is leted, because the motorist has been arrested and there is no one to take charge of

-= ··ehicle, it is towed to the police impound lot where it is searched a fourth time, this .3 under the inventory search exception. In studying the four theories for searching motor vehicles without a warrant, pay

se attention to the grounds for search authority and areas that can be searched, __ :mse they differ markedly from theory to theory. Consider the following example.

A Mid-Summer's Nightmare Bock before the rock group

- e Thankless Incarnates broke ~o, Mary Wonno and Rolph Riefer ::ecided to spend a whole sum- ~er following the bond. Although :::Jip h's parents told him to "get a - ircut and earn some money for

c e," Rolph convinced them he _ou ld make a killing going from oncert to concert selling knick-

cks and trinkets to the other -co rnote Heads. Rolph's parents

finally gave up and agreed to lend him the family's blue Vo lkswagen Bug. Due to a series of mishaps that Rolph wou ld later describe to his lawyer as "on unforeseeable bummer," Rolph and Mary got arrested and spent the lost port of the summer behind bars.

As Rolph and Mary wound their way through Whosville, they were stopped by Officer Bobby Weird, who was acting on a tip from the

Ill

214 CONSTITUTIONAL LAW FOR CRIMINAL JuSTICE § 4.C

WPD's most reliable informant that a "major drug dealer named Ray V. Gravy would be passing through town in a blue VW Bug, carrying a large stash of marijuana in the trunk." The informant also told Weird that Gravy was "usu- ally heavily armed, uses numerous aliases, and often travels with girl- friends." Weird felt confident that Ralph was the suspect he'd been waiting for since he'd been watch- ing the highway all week and this was the first blue Bug he had seen. Weird pulled Ralph over with his siren and lights, and approached the vehicle with his hand on his holster. Rich from the sales of coun- terfeit Incarnate sweatshirts and trinkets, Ralph offered Weird a roll of twenties, saying: "Look, we're in a hurry to get to a concert. I don't know what I did, but I'm sure this is enough to pay the fine."

Weird pushed the money aside, ordered Ralph and Mary to step outside, and patted them down for weapons. Finding none, he pro- ceeded to search the VW. He saw a couple of fliers on the floor, adver- tising "Ralph's Thankless Knock-Off- Knickknacks: We cut out the band's share and pass the savings on to you." He put them in his pocket and continued to search. He found two large bags of marijuana and a bundle of $20 bills in the glove com- partment, and a vial of cocaine in a cigarette pack inside Mary's handbag, that she had left on the seat when she exited. As things turned out, Ralph had expanded the business model during the trip to include drug trafficking. Weird then placed Ralph and Mary under

arrest handcuffed them, and put them in the squad car. He also took the keys from Ralph and opened the trunk, where he found some scales and other materials used in connection with drug distribution but, to his consternation, no drugs or counterfeit goods.

Officer Weird had Ralph's Bug towed to the impound lot where the contents of the vehicle were inven- toried. Miscellaneous trash and spare change were the only things found. Later that same day, the real Ray V. Gravy passed through Whos- ville in a beaten-up, blue VW Bug and he, too, was arrested.

Weird was puzzled by the scantiness of his find and knew that the couple would get off light unless he found more evidence. Two days later, it came to Weird like a flash; he had been looking in the wrong places. Luckily, Ralph' s father had not yet traveled to Whosville to pick up the vehicle, so Weird jumped on the chance and used some tools to take out the steering wheel hub, door panels, dashboard, and back seat. Sure enough, Weird found 30 pounds of marijuana, a case of counterfeit glow-in-the-dark Thankless Incar- nate action figures, and nearly $37,000 in cash (mostly $20 bills).

Ralph was charged with pos- session "'f marijuana with intent to distribute, possession of counter- feit goods, and attempted brib- ery of a police officer; Mary was charged with possession of a vial of cocaine. The judge denied all of their motions to suppress and both of them are now serving sen- tences in the Whosville jail.

- i) SEARCH AND SEIZURE 215

""_e 4. ll · le Limited Weapons Search

Th e sole o bject of t he searc h is weapons. Th e offi cer must have reaso nable susp icion that weap ons are located inside a lawfu lly stopp ed veh ic le. Th e scope of the search is confined to the passenger compartment. Th e intensity is limited to a cursory visual inspection of areas (and containers) insi de the passenger compartment in which a weapon would fi t.

10 -Search of Vehicles Pursuant to a Detention or Arrest

:-erry vehicular limited weapons searches and vehicle searches incident to arrest e one feature in common. Both searches are confined to the passenger compart- - However, this is where the similarity ends. Significant differences exist in the

ds for the search, the lawful objects , and intensity of search activity _ ;rted.

Terry Searches of Vehicles

~ · Grounds for Search Authority

_-\limited weapons search, as the name suggests, is strictly limited to searching for ns that could be used to harm the officer. Officers who make a valid Terry or

- - stop may order the driver and passengers to step out of the vehicle and remain ~e for the duration of the stop. This precaution may be taken as a matter of course, o additional grounds beyond grounds for the stop. 195 Frisks and vehicular weapon

_ es, in contrast, require reasonable suspicion that weapons are present. 19 6 A vehi- eapons search may be performed even though the driver and passengers have been

to step out of the vehicle because they will have access to weapons inside once _ ~e permitted to re-enter. 197

- · Scope and Intensity

-:he scope of a vehicular weapons search is limited to the passenger compart- - o- The trunk is off-limits because a locked trunk is not a place from which the

-=:l~mts can gain immediate access to a weapon. The intensity of the search is limited _:rrsory visual inspection of areas within the passenger compartment in which a

n could fit. 199 These areas include the floors , dashboard, seats, area under the _ ove compartment, console, storage compartments, rear window ledge, and all

ers inside the passenger compartment in which a weapon could fit. A cursory inspection of these areas is all that is permitted. 200 If criminal evidence or

"'

216 CoNSTITUTIONAL LAw FOR CRIMINAL JusTICE §-L

contraband is discovered by the police while searching within these confines, they rna_ seize it under the plain view exception. 201

Officer Weird cannot be faulted for his decision to stop Ralph's car, frisk Ralph Mary, and perform a vehicle weapons search. He had received a tip from a reliab~ = informant that a heavily armed drug dealer, possibly accompanied by a female camp~ ion, would be passing through Whosville and he had every reason to believe that Ralp.:: was the suspect he had been waiting for. 202 Ralph's car matched the informant's descri;- tion in every detail: he was traveling with a woman companion, as Gravy normally di;:_ and because traffic rarely passes through Whosville, Officer Weird was reasonable concluding that Ralph was the suspect he had been waiting for, and that he and Ma;: were armed and dangerous. 203

However, Officer Weird twice exceeded the boundaries of a Terry vehicle wea;- ons search. The first time was when he examined the contents of the crumpled cig- arette pack in Mary's handbag. Because he knew that the cigarette pack did n contain a weapon, he had no authority to examine the contents. 204 The second tim:: was when he searched the trunk. Trunks are beyond the scope of a vehicle weap o search because weapons hidden in a locked trunk are not immediate _ accessible. 205

Even though Officer Weird exceeded the bounds for a vehicular weapo~ search, he did not violate the Fourth Amendment because he had probable cause · arrest Ralph for being a drug dealer before the search began. A tip from a reli ab. = informant establishes probable cause to arrest a person whom the officer reasonab _ believes is the suspect, even though the officer is mistaken. 206 Accordingly, C.:: search Weird performed needs to be analyzed under the search incident to arr __ exception to the warrant requirement. We turn now to an examination of t exception.

Figure 4.12 Vehicle Searches Incident to an Occupant's Arrest

• Police may perform a vehicle search incident to arrest only if: (l) the arrestee is unsecured and within reaching distance of the passenger compartment cr the time of the search or (2) pol ice have reason to believe that the vehicle might contain evidence of the crime for wh ich the arrest is made.

• The scope of the search extends to the entire passenger compartment and a containers located inside, without regard for ownersh ip.

• The intensity may be as thorough as necessar" to find offense-relate evidence.

• The timing of the search depends on the justification. If the justification is prcr tecting the officer's safety, the search must be performed while the suspect is unsecured and within reaching distance of the passenger compartment. If the justification is reason to believe that the vehicle contains evidence of the crime for which the arrest was made, the search may be postponed until after the arrest scene has been secured .

SEARCH AND SEIZURE

Vehicle Searches Incident to the Custodial Arrest of an Occupant

217

.;ntil recently, police could automatically search the passenger compartment ever they arrested a vehicle occupant2°7 or recent occupant208 for any offense,

_ding a traffic violation. This overly broad search authority led to the widespread · e of using arrests for traffic violations as a cover to search for drugs. 209 Countless

- rists had their privacy invaded for nothing more serious than a speeding or seatbelt . ..

"·on. In Arizona v. Gant,210 discussed in§ 4.8 , the Supreme Court rewrote the law ;! . cle searches incident to arre st. Gant was arrested for driving with a suspended license. After he was handcuffed ocked in a squad car, police searched his vehicle and found drugs . The Supreme

recognized two justifications for searching a vehicle incident to the arrest of an __ ant- a safety justification and an evidence-gathering justification. The police are

·tted to search the passenger compartment if: (1) the arrestee is unsecured and · reaching distance at the time of the search (safety justification) or (2) it is rea-

le to believe that evidence relevant to the crime of arrest might be found inside ·ehicle (evidence-gathering justification). Neither justification was present in Gant. :e had no concerns for their safety because Gant was handcuffed and locked in the -seat of a squad car when his vehicle was searched. Nor did they have the slightest

_ of finding evidence of the crime for which Gant was arrested. Gant was arrested Criving on a suspended license, a crime for which no tangible evidence existed. ::"" the officers had absolutely no reason to search Gant's vehicle, the search was

onable and violated the Fourth Amendment. The first justification for searching a vehicle incident to arrest derives from el v. California ,21 1 which allows police to search objects under the arrested per-

-- immediate control as an incident to his arrest. Gant clarified the immediate ol test by requiring that control be measured as of the time of the search, and not

- :ime of arrest. Once the arrestee has been secured the first justification for search- - over. The second justification is new. The Supreme Court took with one hand, but gave

- the other. Police may search a vehicle incident to arrest, even after the safety con- - have been eliminated, if it is "reasonable to believe that evidence relevant to the

-e of arrest might be found in the vehicle."2 12 "Reasonable to believe" and "might -- und" establish a lenient standard, one considerably lower than probable cause. 213

offense for which the arrest is made is the most important consideration, and rding to many courts, the only factor police need to consider in determining

~..her evidence of the offense of arrest might be found inside the vehicle. 214 When ffense is, by its nature, one for which physical evidence might exist, such as a DUI

-:ug offense, then evidence of that offense might be in the vehicle and police are - ed to perform an evidence-gathering search. 2 15 On the other hand, if the defendant

::Tested for a nonevidentiary offense like speeding, driving with a suspended license,

,

218 CONSTITUTIONAL LAW FOR CRIMINAL JusTICE § 4.1

or resisting arrest, no evidence of that offense can be expected to be found in the vehicle and an evidence-gathering search is not allowed.

The Court stressed that the second justification for searching is based on "cir- cumstances unique to the vehicle context,"216 but did not explain why. It is probabl. because vehicles are mobile, creating a risk that a family member or nonarreste occupant might move the vehicle before the officer returns with a search warran Consequently, the officer needs authority to search the vehicle without a warran Otherwise, evidence of the crime for which the arrest was made might not be avail- able at the trial. This problem is not encountered when an arrest is made inside n residence or other fixed location and, consequently, police are not allowed to searc for evidence after the arrest scene has been secured unless they obtain a searct warrant. 2 17

1. Scope and Intensity of the Search

When a vehicle search is authorized incident to arrest, the scope of the searcl: extends to the entire passenger compartment (i.e. , the seats, floor, glove compartments. consoles, etc.) and everything inside that could house a weapon or evidence of the crime for which the arrest was made (i.e., luggage, boxes, bags, briefcases, jackets. handbags, etc.).218 Search authority does not extend to the engine compartment or the trunk2 19 unless the rear component is accessible without exiting the vehicle.22° Ko authority exists to rip up upholstery or remove structural parts. 221

2. Timing of the Search

The timing of the search depends on the justification. If the justification is prevenr- ing the arrestee from gaining access to a weapon, the search must be performed while the arrestee is unsecured and within reaching distance ofthe vehicle. 222 The Gant Cour. observed in a footnote that "[b ]ecause officers have many means of ensuring the safi arrest of vehicle occupants, it will be the rare case in which an officer is unable to fu ll. effectuate an arrest so that a real possibility of access to the arrestee 's vehicle remains.- This suggests that officers who rely on the first justification should be prepared tc explain why they were unable to fully effectuate the arrest, making it necessary to search the vehicle to ensure their safety.

If the search is justified by the need to gather offense-reJated evidence, police rna_ secure the arrest scene first. However, the search must be performed close in time to the arrest, and generally before the arrestee or the vehicle has been removed from th"' scene. 223

3. Further Analysis of A Mid-Summer's Nightmare

Officer Weird had both justifications for searching the vehicle incident to Ralp and Mary's arrest. They were unsecured, standing near the vehicle, and outnumberoc

- 0 SEARCH AND SEIZURE 219

rwo to one, creating a risk that they might try to overpower him and lunge for a =::pan inside. Weird also had reason to believe that there were drugs in the vehicle, _ use he had received a tip from a reliable informant that a drug dealer would be --ing through and he had probable cause to believe that Ralph was that person. The

that Weird performed the search before placing Ralph under arrest is not objection- - ~- When police have probable cause for arrest, the timing of the search vis-a-vis the

_st is inconsequential. 224

Weird's incident-to-arrest search authority extended to the entire passenger com- ent and all containers in side capable of housing drugs. Mary's handbag was

- a container. The fact that it oelonged to a passenger whom Weird did not yet e probable cause to arrest was no obstacle. In Wy oming v. Houghton ,225 a patrol

-:er stopped a car for speeding. During the stop , the officer noticed a syringe in the ~r's pocket. When asked about the syringe, the driver candidly admitted that he

:3 it to take drugs, giving the officer probable cause to search the vehicle. During ::earch, the officer spotted a handbag on the backseat. He searched it even though

ew that it belonged to a passenger, and arrested her when he found drugs found ;:e. The Supreme Court upheld the search even though the officer lacked probable -~ to suspect the passenger of criminal activity before searching her handbag. The _ stated that, when police have probable cause to search a vehicle , requiring

to determine the ownership of belongings found inside before searching them d encourage drivers to stash their contraband in passengers ' belongings or -e passengers to claim ownership to thwart the search. This would impair the :y of the police to do their job. Accordingly, when police have probable cause to

-:h a vehicle, they may search all containers , packages , and belongings found :.e that are capable of housing the object of their search, without concern for ership. _-\lthough Houghton involved a vehicle search conducted under the motor vehicle

__ rion, courts have extended the ruling to searches of a passenger 's belongings .:..."TTt to the motorist's arrest. 226 As one court explained:

'1en poli ce stop a car with multiple passengers and arrest one of them, the need ""~r the police to discover either hidden w eapons that could be turned upon t hem :·evidence th at cou ld be destroyed is no less acute t han when the police stop a ~ icle and a rrest its sole occupant. Indeed, because of the number of people ~ olved, the need may be even greater. Given that third-party ow nership of an -~m wit hin a car ' s passenger compartment w ould not necessaril y prevent an ~estee from gaining access to it third-party ownership of an item should not bar

ic e from searching that item in the same manner as if it were owned by t he ~estee . 227

~owever, Officer Weird cannot rely on the search incident to arrest exception to ~ - his search ofRalph 's trunk or the search he conducted two days later. 228 Author- search vehicle trunks or to search a vehicle at a time and place remote from the

~ of an arrest can derive only from the exceptions covered in the next two

fll

220 CONSTITUTIONAL LAW FOR CRIMINAL JuSTICE § 4.1:

Fig ure 4. 13 Vehicle Searches Based on Probable Cause ( "Automobile Exception")

The officer must have probable ca use to be lieve th at the veh icle c o nta ins crim- inal evide nce o r contraba nd .

• The sc o pe of t he search exten ds to the entire vehicle, fro m motor compart- m e nt to trun k and a ll th e conte nts.

• The intensity is limited to searc h a ctivity necessary to fin d the o bjects the officer has pro b a ble c ause to b e lieve are hidden in the vehic le.

§ 4.11 -Search of Vehicles Based on Probable Cause ("Automobile Exception")

A. Grounds for Search Authority

The third exception, known as the "automobile exception," permits the police to search motor vehicles without a warrant whenever they have probable cause to believe that the vehicle contains evidence that they may lawfully seize (i.e., criminal evidence or contraband) . 229 This exception is based on the ready mobility of motor vehicles, which creates a risk that they might be gone by the time the police return with a search warrant/30 and also on the reduced expectation of privacy of people seated inside a vehicle because the passenger compartment is exposed to anyone who wants to look. 231

This is the broadest of the four exceptions relating to motor vehicles. Police do not need a search warrant to search a vehicle that is stopped on the highway, parked on a curb, or encountered elsewhere232 if they have probable cause to believe that the vehicle contains criminal evidence or contraband, even if they have time to obtain a warrant. 233

A handful of states use an older, more restrictive version of the automobile exception that requires exigent circumstances in addition to probable causeY4 Police in these jurisdictions are not allowed to search unoccupied parked vehicles because there is no emergency. One officer can be left at the scene to watch the vehicle while another goes to get a search warrant.

B. Scope and Intensity ...

Search authority under the motor vehicle exception extends from bumper to bumper. 235 Police may search the vehicle as thoroughly as if they had a search war- rant,236 even to the point of removing structural parts. 237 Their search authority also extends to containers within the vehicle. 238 They may open any container that is capable ofhousing the objects of their search, regardless of ownership. 239 However, their search authority does not automatically carry over to the occupants. The occupants may be searched only if police have probable cause to believe that the objects of the search are secreted on their persons or in their clothing. 240

I

- "!:.11 SEARCH AND SEIZURE 221

As is true for all searches, searches conducted under the automobile exception may - : be broader than necessary to locate the objects for which the police have search

ority. For example, if the police have probable cause to believe that drugs are hid- somewhere in the vehicle, they may search the entire vehicle from engine compart-

ent to trunk and everything inside. On the other hand, if the only thing they have is bable cause to believe that there is a briefcase containing drugs in the trunk, they are

~·ted to opening the trunk and looking inside the briefcase. 241

Timing of the Search

Searches conducted under the automobile exception do not have to be performed - e spot. 242 Requiring police to stop everything and conduct an immediate search at

~ Toadside whenever they have probable cause to believe that a vehicle contains evi- ~e subject to seizure would hamper thorough and efficient criminal investigations .243

-- equently, the search may be delayed until the vehicle reaches the police impound- lot. 244

Further Analysis of AMid-Summer's Nightmare

Offi cer Weird's search of the passenger compartment at the scene of the stop gave :eas on to believe that there was more criminal evidence and contraband as yet

- - overed. It was obvious from the fliers that Ralph was a traveling peddler who _ .::ounterfeit wares. The two bags of marijuana and large wad of $20 bills found in

senger compartment suggested that Ralph was also peddling drugs . These dis- ~es supplied probable cause to believe that there were counterfeit trinkets and

..: in other parts of the vehicle, triggering the automobile exception and broadening - -~ Weird's search authority. 245 Weird was no longer restricted to searching the

ger compartment. He could now search the car from bumper to bumper, includ- - - e rrunk.

J-fficer Weird's superficial roadside search did not exhaust his search authority :he automobile exception because he remained convinced, despite this search, ~were undiscovered drugs and counterfeit trinkets elsewhere in the vehicle. 246

_ authority under the automobile exception does not have to be exercised at the " ,:-the stop. 247 When police have probable cause to believe that a vehicle contains

~~-~-- evidence or contraband, they may seize it and search it later at a more conve- xati on.248

--::.e fact that two days elapsed between the seizure of Ralph 's car and the second -- not a problem because searches under the automobile exception do not have ~ imultaneously with the seizure. 249 Courts have upheld searches under the

..., ile exception even in the face of substantial delays. 250 In one case , police --~-~- a hidden compartment behind the radio in the dashboard for drugs more than

- after the vehicle was impounded.251 The court upheld the search notwithstand- - elay.

,

222 CONSTITUTIONAL LAW FOR CRIMINAL JUSTICE § • ~ -"'%_ ,_.L_

The scope and intensity of searches under the automobile exception are als o di:_ ferent from searches conducted as an incident to an arrest. When the police have pro·· - able cause to search a motor vehicle, they may search any location where the obj of their search could be hidden, even if it requires disassembling parts of the vehicle.::-:: Officer Weird was, accordingly, justified in looking inside the steering wheel col and behind the dashboard, and removing the door panels and backseat because they ~ locations where drug dealers sometimes hide drugs and that could also serve as hi cfu:.: places for counterfeit trinkets.

Figure 4.14 Vehicle Inventory Search

• The purpose of the search is to secure the owner's valuables and protect the police department against liability for loss and theft.

• Police must have legal authority to impound the vehicle. • Police must follow standard procedures for inventorying the contents of

impounded vehicles. • The scope of the search is governed by these procedures. • The intensity is limited to activity necessary to catalog and safeguard the items.

§ 4.12 -Inventory Searches of Impounded Vehicles

A. Grounds for Search Authority

The first requirement for a lawful inventory search is a valid impoundment. Stat- utory authority exists to impound vehicles for a variety of reasons, including illega" parking, unpaid traffic tickets, abandonment, mechanical failures, and disablement due to accidents. 253

In addition the decision to impound must be reasonable. 254 Police, for example. may not impound a vehicle after a driver's arrest if there are other licensed drivers present who are able of take charge ofit. 255 Evidence that comes to light after a wrong- ful impoundment will be suppressed. 256

Once a vehicle has been impounded, an inventory search will follow. Inventory searches are exempt from conventional Fourth Amendment requirements because police are performing a caretaking function. 257 To be sustainable as an inventory search. the search must be conducted in accordance with "standardized criteria" specifying where, when, and how inventory searches are to be conducted (i.e., whether the search is to be conducted at the scene before the vehicle is released to a third-party towing company or when it reaches the impoundment lot, what parts of the vehicle may be searched, whether police may open closed containers, etc.). 258 Standardized procedures are necessary to ensure that inventory searches are used for their intended purposes and not as a ruse to search for evidence. 259 It is up to each individual police department to formulate inventory search procedures. Once policies and procedures have been put

- 7 SEARCH AND SEIZURE 223

place, they must be routinely followed in order for the search to be upheld under inventory search exception.

Scope and Intensity of Inventory Searches

All search activity performed during an inventory search must be geared toward or more of the following purposes: (1) safeguarding valuables inside the vehicle,

_ . rotecting law enforcement agencies against unjustified claims of loss or damage, 3) locating potentially hazardous articles like weapons and flammables. 260 Police, example, are not allQ.wed to open and read journals, diaries , and planners, search

ar phones for telephon numbers, or listen to tapes during an inventory search _- se these activities advance none of the purposes for which an inventory search . be conducted.261 Nor are they allowed to dismantle parts of the vehicle, such as

ving steering wheel hubs and door panels, because the police department is not ns ible for safeguarding valuables stored in places like these. 262 A noted authority

- e law of search and seizure writes: 263

n e inventory must be reasonably related to its purpose, which is the protection of e car owner from loss, and the police or other custodian from liability or unjust aim. It extends to t he open areas of the vehicles, including areas unde r seats, and ther p laces where p roperty is ordinarily kept, e.g., glove compartments and t runks.

-does not permit a search of hidden places, certainly not the removal of car parts a n effort to locate contraband or other property. The owner having no legitimate

~laim fo r protect ion of property so hidden, the police cou ld have no legitimate erest in seeking it out.

Inventory Search Exception and the Inevitable Discovery Rule

-tandard operating procedures for conducting inventory searches are important for ~:ond reason. Their existence can salvage evidence from suppression under a doc-

known as the inevitable discovery rule. As will be explained in § 4.17, evidence - ~omes to light through unlawful means may nonetheless be used at trial if it would -:tably have been revealed in some other lawful way. 264 Consequently, even though -- · le search violates the Fourth Amendment, the evidence can be used if it would,

_:case, have been discovered during a routine inventory search. 265

Final Analysis of AMid-Summer's Nightmare

~e search Officer Weird performed at the police impoundment lot was not sus- Ie as an inventory search because he dismantled parts of the vehicle. The search evertheless, valid under the automobile exception because he had probable cause

:: ·eve that drugs and other incriminating evidence were hidden somewhere in the .e. Police officers do not need to have a particular exception in mind when they

,

224 CoNSTITUTIONAL LAw FOR CRIMINAL JusTICE § 4.13

conduct a warrantless search. The search is valid if it can be sustained under any excep- tion to the warrant requirement.

§ 4.13 Search of Protected Premises

When police officers cross the threshold of a home in search of evidence, the val- ues protected by the Fourth Amendment are most at risk. Accordingly, it is at this point that the Fourth Amendment affords maximum protection. A search warrant is required so that the decision to invade a resident's privacy will be made only after proper con- sideration and the boundaries for the search will be established in advance. Unlike searches of people and vehicles, in which warrants are more the exception than the rule, there are only two circumstances that justify a warrantless search of protected premises-consent and exigent circumstances.

Consider this last example as you examine the rules for premises searches.

'~ Final 'Tail'" Something evil has been tak-

ing place in Officer Goodfellow's neighborhood. One by one, his neighbors' pets have vanished. In the once peaceful suburb where cats and dogs roamed freely, peo- ple are now frightened and lock their animals up with them at night. Still, the disappearances continue.

The first disappearance occurred at about the same time that a strange old woman, Mrs. Metzger, moved into the neighbor- hood. Metzger purchased the larg- est lot in the neighborhood, known as "the Farm." The lot consists of three acres surrounded by a hog wire fence. Located inside are a main house, a separate three-car garage, and a dilapidated barn situated at the far rear in an area overgrown with weeds and brush.

The neighbors first put two and two together when they learned

that Mrs. Metzger had started her own sausage company and was running it out of the barn and garage. Metzger Sausages were rumored to have a "curiously gamey flavor," unlike any other brand on the market. Time and time again a pet wou ld disappear early in the evening, and the sau- sage trucks would pull up to the barn the next morning.

Neighbors called various gov- ernment offices to report the atroc- ities, but little attention was paid to them. They ultimately persuaded an inspector from the county's Board of Food .Safety to conduct a surprise search. The inspector went to Mrs. Metzger's home, demanded to see the sausage production facilities in the barn and garage, pronounced the facil- ities "safe," left, and reported that he did not see anything unusual.

SEARCH AND SEIZURE 225

- the neighbors turned to Officer ..::ooodfellow and begged him to :-op the carnage.

Goodfellow agreed. That night e hopped over the fence, flash- ~ht in hand, and began examin-

the barn. Immediately outside ~e barn door he foun~ two ani-

al collars, one with the t;) ame =·d o" on it the other "Boogums."

- e entered the barn through an _ locked door, inspected the ~ c hinery and found what looked

·e cat hair near one of the grind- = . He took the hair with him .

Goodfellow proceeded to the :;;arage. Using his flashlight he ::Jserved a large meat grinder :: d a car parked in a far corner :" the building. Unfortunately, the

rs were locked and he could enter. Leaving, Goodfellow

- ·c ed some garbage cans out- e the garage. Out of curiosity, he

::)€ned one, and found something sent a chill down his spine-a

e box filled with animal collars. - :x> scared to look further without

c kup, Goodfellow grabbed the x and headed straight to the

_ al magistrate, seeking a warrant -~ search the entire estate and an ::-'est warrant for Mrs. Metzger. The - gistrate refused both, saying: _ st because you found some ~ ma l collars doesn't mean that -ere is probable cause to believe

Mrs. Metzger committed a e or that evidence of a crime be found on her property. I'm

_ rry, but you need to do some re police work." The next evening, Goodfellow d e the rounds of the neigh-

- ~·hood, knocking on doors and

asking if anyone could identify the Fido and Boogums collars. Good- fellow finally felt that he had prob- able cause w hen Jason P. Thomas, a neighbor for many years whom Goodfellow knew to be trustworthy, told him that "Fido " and "Boogums" were two of the pets that had dis- appeared from the neighborhood within the last week. But before Goodfellow could get back to the magistrate, a frightened young girl came running up to him, scream- ing "Please save Snowball! She didn 't come back tonight." Eerily, at that same moment they heard the low hum of machinery coming from Mrs. Metzger's place and the lights in the garage came on.

Believing that Snowball had only a few minutes left, Goodfellow ran into the garage to save her. He burst through the door scream- ing "Stop! You're under arrest." As soon as Mrs. Metzger saw him, she dropped a w hite fluffy cat to the floor and ra n into the main house. Goodfellow chased her inside, and began a systematic search, looking in rooms, closets, and under beds in an effort to find her, bending down to pick up pet collars as he made his way . When he opened the door to the basement approximately 50 animals, cats and dogs, came run- ning out. Mrs. Metzger came out behind them and asked that she be allowed to speak to a lawyer.

As it turns out all of the neigh- borhood's pets were unharmed. Mrs. Metzger, a zoophile, sim- ply wanted them all to herself. She received a suspended sen- tence and is currently undergoing counseling .

,

226 CoNSTITUTIONAL LAw FOR CRIMINAL JusTicE § 4.1-=

In the sections that follow, we will explore whether Mrs. Metzger's Fourth Amend- ment rights were violated by the warrantless incursions onto her property. Because he:- property was used as a business as well as a residence, we will analyze the Fourtt Amendment protection for each.

§ 4.14 -Premises Protected by the Fourth Amendment

While a literal reading of the Fourth Amendment would suggest that "houses" are the only premises protected by the Fourth Amendment because they are the only one~ mentioned, the term "house" has never been interpreted this narrowly. 266 Protectioli extends to any location, including business premises, for which there exists a reason- able expectation of privacy. 267

A. Fourth Amendment Protection for Business Premises

Fourth Amendment protection for business premises depends on whether they are open to the public, such as retail establishments, or closed to the public, such as private offices and warehouses. 268 Police do not need a search warrant to enter business prem- ises that are open to the public,269 but they may only enter during business hours and go into areas that members of the public are invited to enter.270 Officers acting on a tip on that the defendant is running an illegal bingo hall, for example, are free to enter while a bingo game is in progress, but not to sneak into the back offices or break into the bingo hall during hours when the establishment is closed. 271

The Fo urth Amendment protects any locati on for w hich t he re exists a rea sona ble exp ectati on of privacy.

B. Fourth Amendment Protection of Residences

The Fourth Amendment affords maximum protection to homes.Z72 Police may not enter a home without a warrant, exigent circumstances, or consent. 273 A home, for Fourth Amendment purposes, includes any structure occupied as a dwelling. It does not have to be a permanent residence. Hotel rooms, motel rooms, and bedrooms occupied by an overnight guest are entitled to the same protection as a permanent residence. 274

C. Outdoor Spaces: Areas Within the Curtilage and "Open Fields"

Outdoor spaces surrounding a home are broken down into two categories-areas within the curtilage and open fields. The curtilage refers to the area immediately sur- rounding the home, which is regularly used for domestic and family purposes, such as the garage and yard. The curtilage carries the same Fourth Amendment protection as

SEARCH AND SEIZURE 227

home. 275 Consequently, police need a search warrant to enter the curtilage in search - e:Yi dence, although they have the same right as v isitors , deliverymen, and other

bers of the public to enter, using the regular access route, when they come on - · · ate business .276

The rest of the land is classified as an open field and carries no Fourth Amendment :ecti on. The phrase "open field" is misleading because the area need not be open or

=~ld in any literal sense; it can be a thickly wooded area, a condominium parking lot, ~Yen a lake. 277 Police do not need any Fourth Amendment justification to enter an

fi eld, even though their presence constitutes a trespass under property law. 278

There is no fixed formul<r for drawing the line between the curtilage and an " open ., The Supreme Court has identified four factors that are relevant to this inquiry:

:he proximity to the home, (2) whether the area is included within an enclosure unding the home, (3) whether it is used for family purposes, and ( 4) the steps taken

- e residents to shield the area from view by passersby. 279 No single factor is deter- rive, but they each inform a court's decis ion as to whether the outlying area is "so

tely tied to the home itself that it should be placed under the home's 'umbrella' · -=-ourth Amendment protection. "280 While there is no fixed distance at which the cur-

=e ends, the Supreme Court has indicated that it would be rare for the curtilage to ~d more than 150 feet beyond the home. 28 1

The curtilage concept does not apply to business establishments, but the grounds unding a business may receive analogous protection when special precautions are

=n by the occupants to protect their privacy by putting up tall fences with locked

Analysis of "A Final 'Tail"'

Offi cer Goodfellow violated the FourthAmendmentwhen he entered Mrs. Metzger's age in search of evidence. The more difficult question is determining the curti-

=- ·- boundaries . Mrs. Metzger ' s garage was within the curtilage both because of its :imity to her home and because garages are commonly used for domestic purposes,

though hers was being used partly for business. Consequently, Goodfellow per- ed a search when he walked up to her garage, shined a flashlight to look inside,

;etrieved a shoe box full of pet collars from a garbage can just outside . The fact that : oe box had been placed in a garbage can did not destroy Fourth Amendment - tion because until a garbage can is placed outside the curtilage for collection, the -~ts are not yet abandoned. 283 The garbage can is just another container that is

. -5 used for a domestic purpose. -:be pet collars found near the bam stand on a different footing because the bam ·ituated in an " open field." The reason the land around the bam was an open field ~ substantial distance from Mrs. Metzger's house, its dilapidated condition, which

=-= ·ted that the bam was not being put to domestic use , and the fact that it was actu- ing used for business. 284 Had the bam been closer to the home and used for

5tic purposes, the characterization would have been more difficult.

_,

228 CoNSTITUTIONAL LAW FOR CRIMINAL JusTICE § 4. 1::

E. Outbuildings

Even though the bam was situated in an "open field," and Goodfellow was free t, walk around outside, his warrantless entry constituted a search because the bam itself was entitled to the same Fourth Amendment protection as any other closed building used for business. 285 Police may not enter a closed building used for business with our exigent circumstances, consent, or a warrant. 286

This does not mean that barns and outbuildings situated in an open field enjoy the same privacy protection as structures located inside the curtilage. If a bam is situateri in an open field , police are free to walk up, peer through the windows, and use a fla sh- light to illuminate the interior. 287 Police are not allowed to do this for buildings that lay within the curtilage because they have no right to enter the curtilage to search for evi- dence without a search warrant.

Figure 4.15 Premises Searches Conducted Under the Authority of a Warrant

• The scope of the search extends to the residence, curtilage, and all structures and vehicles inside the curtilage.

• Police may search everything found on the premises that is a plausible reposi- tory for the objects described in the warrant, regardless of ownership.

• The occupants may be detained while the search is in progress. • The occupants may be frisked only if police have Terry grounds for a frisk. • The occupants may be searched for objects listed in the warrant only if: (l) the

search warrant expressly confers this authority, (2) the search is incidental to a lawful arrest or (3) police have probable cause to believe that objects of the kind listed in the warrant are secreted on their person.

§ 4.15 -Entry and Search of Premises Under a Warrant

Most premises searches are conducted under the authority of either a search war- rant or an arrest warrant. The search authority conferred by each warrant is different.

A. Searches Conducted Under the Authority of a Search Warrant

None of the problems encountered in A Final Tail would have arisen if Officer Goodfellow had been able to get a search warrant. A se arch warrant that describes the premises by address confers authority to search the residence, the curtilage, and all structures and vehicles within the curtilage. 288

The permissible intensity is controlled by the warrant's description of the articles to be seized. Officers may search any place, receptacle, or effects that are plausible repositories for articles of the kind described in their warrant. When the articles sough

SEARCH AND SEIZURE 229

~ small, police may look under beds, in drawers and closets, and even in the pockets = e clothing hanging inside. 289

Whether a premises search warrant confers authority to search containers found on premises that belong to visitors, although formerly unclear,290 has now been settled. ;Jlyoming v. Houghton, 291 a case that arose under the automobile exception, police

_ ched a passenger's handbag even though the probable cause that supported the =· h was directed at the driver. The Supreme Court held that when police have prob- - e cause to search a vehicle, they may search any container that is a plausible repos- :y for the objects of their search, regardless of ownership. A close reading of the

_ ·on leaves little room for doubt that the Court would have reached the same con- -ion had the case involved a premises search conducted under a search warrant.

1. Authority to Detain the Occupants During the Execution of a Search Warrant

A search warrant carries automatic authority to detain persons who regularly y the premises for the duration of the search. 292 Detention is justified because a

h warrant embodies a judicial finding of probable cause to believe that someone the premises has committed a crime and that evidence of the crime will be found ~- This finding casts suspicion on all who regularly occupy the premises, making it -stitutionally reasonable to detain them while the search is in progress. However,

ority extends only to occupants who are present on the premises when the police ·e; it does not extend to occupants who have already departed and left the immedi-

_,. ·icinity. 293

Police do not have automatic authority to detain people who are not occupants, as visitors and others who are coincidentally present. 294 Detention of nonoccu-

- requires reasonable suspicion that they are connected to the crime,295 but even - cupants may be detained long enough to establish their identity and the reason - eir presence. 296

- · Authority to Frisk Persons Present During the Execution of a Search Warrant

_-\uthority to detain persons present on the premises covered by a search warrant : include the authority to frisk them. A frisk requires reasonable suspicion. 297 In

a v. Jllinois, 298 police prior to executing a warrant to search a tavern and the bar- for drugs frisked all of the patrons. A pat down of Ybarra yielded six packets of

in. The Supreme Court held the pat down was not justified because the presence in ·em covered by a narcotics search warrant does not furnish reasonable suspicion

_frisk. ?resence in a crack house is an entirely different matter. Guns and weapons are

-~ :y known to be used in narcotics trafficking and, unlike the patrons of a public

,

230 CoNSTITUTIONAL LAw FOR CRIMINAL JusTicE §·!:.-

tavern, there are no innocent explanations for a person' s presence there. The paten · dangers associated with execution of drug search warrants have persuaded a growi::= number of courts to uphold frisks of all persons encountered on the premises, based this fact alone. 299 In the words of an Ohio court: 300

It is common knowledge that in t his day and age a nd in th is area. drugs a nd weap- ons are frequently fou nd in close proxim ity . . . ; therefore, alth ough the search war- rant d id not specifically authorize a search for weapons, the trial court could have concl uded t hat it was reasonable fo r t he police, out of concern for t heir own safety, to perform a Terry frisk for weapons upon anyone p resent in a suspected crack house.

The bottom line is that police do not have automatic authority to frisk all persons present during the execution of a search warrant unless the place to be searched hap- pens to be a crack house. Otherwise individualized reasonable suspicion of weapo- possession is necessary.

3. Authority to Search the Occupants for the Objects Described in the Warrant

A premises search warrant covers things, not people. People encountered on the premises are not like containers that police are free to search at will. The search o-= persons is permitted only: (1) when the search warrant expressly confers this authority (2) the search is conducted as an incident to a lawful arrest, or (3) there is probab'" cause to believe that the person searched has objects described in the warrant on him..

Authorization under the search warrant. A search warrant can authorize the search of persons, as well as locations.301 If police have advance knowledge that individ- uals likely to be in possession of objects of the kind listed in the warrant will be presen- on the premises during the search, they should name them in their application and see1' authority to search them. While courts may, under limited circumstances, issue a warran: to search "all persons present" at a particular location, such warrants are valid only whe:: there is probable cause to believe that all persons present at that location at the time o-" the search are likely to be involved in the crime and have evidence of it on their per- sons.302 This situation generally exists only when the location is a crack house. 303

Searches incident to an arrest. Persons encountered on the premises may also be searched when police have probable cause to arrest them. 304 A search may qualify as "incident" to an arrest, even though it precedes the arr; st, if police have probable cause before the search is undertaken.305 However, police should k eep in mind that presence on the premises covered by a search warrant does not automatically supply grounds for an arrest. •

Probable cause to believe that objects of the kind listed in the warrant are on the person searched. The last ground arises when police have probable cause to believe that the person searched has objects described in the warrant on his/her person. A noted authority on the law of search and seizure306 writes that the

- 6 SEARCH AND SEIZURE

. . . requ isit e p robable cause is most likely to be deemed present if the person searched lives at the p lace searched, was implicated by the search warrant affida- vit in th e c ri mes under investigation, had engaged in suspic io us o r incriminati ng c onduct, or was found in the immediate proximity of contraband in open view. 307

231

A person standing next to a table full of drugs, for example, can be searched. We - now to search authority that arises pursuant to an arrest warrant.

Search of Premises Pursuant to an Arrest Warrant

Under the Payton rule discussed in Chapter 3, a person cannot be arrested inside own home without an arrest warrant. 308 If the home belongs to someone else, a h warrant is also required. 309 Both warrants confer authority to perform a cursory 1 inspection of places inside the home where the person to be arrested could

- yo Once the suspect is found and placed under arrest, two new grounds for search - rity arise. Police are entitled to perform a protective sweep and a search incident

e arrest.

1. Protective Sweeps

A protective sweep consists of a cursory visual inspection of closets and other -es immediately adjoining the place of arrest in which accomplices and others who

_=-a danger to the officers could be hiding. 311 Authority to conduct a protective sweep - - as an automatic incident of arrests made inside a dwelling and does not require - nable suspicion that potential attackers are, in fact, present. 312 However, such sus-

- n is necessary to conduct a broader sweep. 313 Protective sweeps may last no longer - necessary to dispel any suspicion of danger, and in any event no longer than it

- to complete the arrest and depart from the premises.

2. Search Incident to Arrest Made Inside a Dwelling

':\n en an arrest is made inside a dwelling, the scope of the search is confined to the _ :mder the arrested person's immediate control, defined as "the area from within

: he might gain possession of a weapon or destructible evidence."314 Police may omatically search this area. A search is permitted only if the arrestee is unsecured

- i thin reaching distance of this area at the time of the search. 315 If a more complete · ses search is needed, police may take reasonable precautions to secure the prem- ut must then apply for a search warrant. 316

16 -Entry and Search of Premises Without a Warrant

:bere are only two justifications for searching protected premises without a search :mt: exigent circumstances and consent. 317

,

232 CoNSTITUTIONAL LAw FOR CRIMINAL JusTicE § -:1:.:

Figure 4. 16 Exigent Circumstances Exception

The exigent circumstances excepti o n authorizes the police to make a warra ntless entry when :

l. they have reason to believe that life or p roperty is in imminent danger or that c serious crime is in progress

2. they have reason to believe that evidence will be destroyed or removed unless th ey act im m ed ia tely or

3. they are in hot p ursu it of a fe lon who flees a nd takes refuge inside.

A. Grounds for Warrantless Entry Under the Exigent Circumstances Exception

Films and television programs regularly portray police officers burs tin.= through the door in the nick of time to save a victim, but never show them waitin~ nervously outside the magistrate's door for a search warrant. That is because th~ Fourth Amendment excuses the police from obtaining a warrant when they ar;: confronted with an emergency that requires immediate action . There are an endless number of emergencies that can justify an immediate warrantless entry. Fires/ shootings, 319 domestic violence reports ,32 0 screams, 321 hot pursuit of danger ous criminals, 322 the belief that a burglary is in progress, 323 concerns for the safety o""' children324 or colleagues inside, 325 and fears that evidence is about to be destroyed}-- are just a few.

Exigent means urgent. The exigent circumstances exception to the warrant require- ment deals with urgent circumstances in which there is no time to obtain a warrant..;=- There are three broad categories of cases that come within this exception. Failure t obtain a warrant before entering a residence is excused when police reasonably be lien· that: (1) lives or property are in imminent danger or that a serious crime is in prog- ress ,328 (2) evidence will be destroyed or moved if they postpone taking action until a search warrant can be obtained,329 or (3) they are in hot pursuit of a felon who flees an takes refuge inside. 33 0

B. Exigent Circumstances and the Plain View Exception

Discovery of incriminating evidence while on the premises generally provides the context in which questions about the exigent circumstance s exception arise. Two police officers, patrolling a residential neighborhood in the early hoUrs of the morning, see a man run up a path leading to a dark residence, strike the main door with his shoulder. force it open, and enter without turning on the lights. Believing that a burglary is in progress and that lives and property are in danger, the police stop the car, follow the man into the house, and guess what? It turns out that the man was entering his own house, but the police, while on the premises investigating, see a large quantity of mar- ijuana in plain view.

6 SEARCH AND SEIZURE 233

This scenario requires the court to determine whether the entry was justified by =ent circumstances,331 because if the initial intrusion that brings the police in contact - evidence is lawful, they immediately recognize its incriminating nature, and they _ab le to gain physical access without violating the Fourth Amendment, they may

e it under the plain view exception. 332

Search Activi ty Permitted Under the Exigent Circumstances Exception

When an entry is made under the exigent circumstances exception, search author- - - limited to actions immediately necessary to address the exigency that justified the

_-. 333 As to what the police may do once inside, one authority writes:

(T) his must be assessed upon a case-by-case basis, taking into account the type of eme rgency which appeared to be present . .. . The officer's post-entry co nd uct 'llust be carefu lly limited to achieving the objective w hich justified the entry. 334

For example, if the entry is made to render emergency assistance, the officer is ·ed to determining whether someone is in need of aid and providing it. 335 When the : is to prevent destruction of evidence, the police may perform a cursory visual

:;;xction of rooms , closets, and other locations in which persons who might destroy "Yidence could hide. 336 If the evidence sought is discovered in plain view while a rming a cursory visual inspection, the police may seize it under the plain view

::rille. If no evidence is discovered, the police may secure the premises, but must apply for a search warrant. 337

Police may not deviate to investigate unrelated matters; they must stick to address- e exigency that justified their entry. In Arizona v. Hicks , 338 a bullet was fired through oor of the defendant's apartment, striking and injuring a man in the apartment

- w . The police entered the defendant's apartment and, while searching for the shooter - the weapon, noticed some very expensive stereo equipment that seemed out of -e. Acting on a hunch that the equipment was stolen, they turned the stereo around

- read the serial numbers to a radio operator who confirmed that it was stolen. The _ erne Court held that, while the initial entry was justified by exigent circumstances,

- · g the stereo around to read the serial numbers resulted in an additional search _ ated to the exigency that justified the entry and violated the Fourth Amendment.

Entry to Prevent Imminent Destruction of Evidence

Police may enter a person's home without a warrant to prevent destruction of evi- -e if they have: (1) probable cause to secure a search warrant and (2) an objectively

- nable belief that there are persons inside who will destroy the evidence if they do not ..;ght now. 339 When both conditions are present, police may enter for the limited purpose -ecuring the premises while they apply for a search warrant, but must postpone the

h until after a warrant is obtained. 340 Entry even for this limited purpose is not

rfl

234 CONSTITUTIONAL LAW FOR CRIMINAL JuSTICE § 4.16

permitted if the risk of destruction can be adequately controlled by conducting a perimeter stakeout (i.e., sealing off the premises and preventing anyone from entering).34 1

E. Police-Created Exigent Circumstances

In Kentucky v. King, 342 the Supreme Court was asked to decide whether police can rely on the exigent circumstances exception to justify entering a home without a warrant when the exigent circumstances are police-created. In King, police followed a drug dealer into an apartment building after watching him engage in a controlled sale of crack cocaine with a police informant. They lost sight of him, but heard a door slam and mis- takenly assumed that he had entered the apartment on the left because they smelled a strong odor of marijuana wafting around door. They pounded on the door and shouted "Police! " No one answered, but they heard movement inside that they interpreted as an attempt to destroy drug-related evidence . The officers kicked in the door and found the Hollis King and two companions smoking marijuana, along with a cache of drugs. The trial court denied King 's motion to suppress, finding that the police were justified in entering his apartment without a warrant to prevent destruction of evidence. King argued on appeal that the exigent circumstances exception did not apply because the officers created the exigency by pounding on his door and shouting "Police!" The attempted destruction of evidence would never have occurred had this not happened. Since the exigent circumstances were police-created, the police were barred from relying on the exigent circumstances exception to justify entering his home without a warrant.

The Supreme Court disagreed, holding that the pertinent question was not whether the actions of the police caused the attempted destruction of evidence, but whether their prior actions were lawful under the Fourth Amendment. Police may enter a home with- out a warrant to prevent destruction of evidence so long as they do not cause the attempted destruction of evidence "by engaging or threatening to engage in conduct that violates the Fourth Amendment. "

Applying the test to the facts , the Court concluded that the prior actions of the police were lawful. In knocking on the defendant's door and requesting an opportunity to speak with him, they did nothing more than a private citizen might do . The defendant was not obliged to open his door. He could have stood on his constitutional right and told the police that he would not let them in unless they returned with a search warrant. However, he did not do this . Instead, he attempted to dispose of drug-related evidence. " Occupants who choose not to stand on their constitutional rights, but instead elect to destroy evidence have only themselves to -b lame for the warrantless exigent- circumstances search that may ensue. "

F. Analysis of A Final Tail A Final Tail contains two examples of the exigent circumstances exception. The

first occurred when Officer Goodfellow burst into Mrs. Metzger 's garage and the sec- ond when he pursued her into her home . Officer Goodfellow was justified in bursting

I

SEARCH AND SEIZURE 235

:y(ys. Metzger's garage without a warrant because he had probable cause to believe - Snowball was inside and, at the moment of entry, he had reason to believe that

- wball was about to be destroyed. He had just confirmed that the pet collars found C3 previous day belonged to cats that had mysteriously disappeared; moments later, he ~ed that Snowball had disappeared, too; Goodfellow had previously seen the grind- g machines inside Mrs. Metzger's barn and garage; and now he heard them start up

begin humming. In his mind, there was only one explanation that could account for - bizarre sequence of events. Snowball was about to be ground up and would be no

-.Jre by the time he returned with a search warrant. Snowball was more than just a -r;;-· 343 he was evidence of criminal activity. Consequently, Goodfellow was justified in --illing in to prevent what he believed was the imminent destruction of evidence.

Mrs. Metzger's retreat into her home to avoid arrest provided the second occasion : applying the exigent circumstances exception. This time the exception concerned _: pursuit. Officer Goodfellow encountered Mrs. Metzger outside her home, where he - empted to arrest her. She could not defeat his attempt by fleeing inside. Officer Good- =:low was entitled to pursue her. 344

Officer Goodfellow did a commendable job of complying with the Fourth Amend- t. Unfortunately, no medals are given for capturing little old ladies who love animals.

Consent

Consent affords the second and only other justification for entering protected ::emises without a search warrant. Actual consent is necessary to enter a home or its _:rrtilage . A fiction known as implied consent is used to justify warrantless inspections : business premises to determine compliance with government regulations.

1. Actual Consent

Police are always free to walk up to a suspect 's door, ring the bell, and ask for _ rmission to enter. A warrantless entry is justified when police receive knowing, vol-

tary, and intelligent consent345 from someone who has authority. 346

The person answering the door does not have to be informed of the right to refuse order for the consent to be valid. 347 Concealment of police identity does not destroy

_o nsent. 348 However, there are limits on allowable police duplicity. Police may not :"cure admission by misrepresenting that they have a warrant349 or by threatening to btain one when they lack grounds. 350 To be effective, the consent must be given by

- meone who has actual or apparent authority. 351

The boundaries of the search are determined by the authorization that has been ~·ven. 352 Police may only look in places and for things that a reasonable officer would _ lieve are within the scope of the consent. 353 The consenter also controls the duration f the search. The consenter can limit the duration at the outseC54 or ask police to leave any time. 355 However, after the police discover incriminating evidence, it is generally

-oo late, because at this point other warrant exceptions generally arise.

,

236 CONSTITUTIONAL LAW FOR CRIMINAL JuSTICE

2. Implied Consent-Statutory Authority and Administrative Searches

§ 4.1 7

The Fourth Amendment permits warrantless inspections of business premises to determine compliance with government regulations. 356 This exception to the warran requirement rests on the fiction of implied consent. The warrantless inspection per- formed by the official from the Board of Food Safety can be justified on this basis. The theory proceeds as follows. When Mrs . Metzger began producing sausages, she knew that food service is a heavily regulated industry and that the regulations often include periodic, unannounced inspections. Consequently, when she went into business, she impliedly consented to this practice and is in no position to complain that her Fourth Amendment rights were violated when an official from the Board of Food Safety arrived and demanded to inspect her sausage production facilities.

§ 4.17 The Exclusionary Rule

The principal remedy for unconstitutional police action is to exclude the illegally obtained evidence from admission in a criminal prosecution. The remedy serves tv;o purposes: to undo the damage that the defendant has suffered by preventing illegally seized evidence from being used against her,357 and to discourage police from future violations by depriving them of the fruits of their transgressions.358

The exclusion of evidence is a c ri minal defendant's remedy for po li ce violati o ns of his or her constit utional ri ghts.

A. History of the Exclusionary Rule

The exclusionary rule has been attacked ever since its recognition, but no one has ever summarized the frustration that many feel about the rule better than Justice (th Judge) Cardozo did in his opinion in People v. Defore,359 when he lamented: "Th"' criminal is to go free because the constable has blundered."

In recent years, the Supreme Court has attempted to balance the costs to the crim- inal justice system inherent in allowing the guilty to "go free" against the benefits of discouraging police violations of the Constitution. In the'" process, it has reshaped th rule and created many exceptions to it. As you read through the following materials.. ask whether it is still the case today that the criminal who would otherwise have beer; convicted "goes free" simply because "the constable has blundered."

1. Recognition and Framing of the Rule

The Supreme Court first announced the exclusionary rule in Weeks v. Uni te, States . 360 In that case, a federal marshal working with state police entered Weeks -

- I SEARCH AND SEIZURE 237

-e without a warrant and seized his private papers-some of which showed that _ was guilty of running an illegal lottery. Prior to trial, Weeks moved unsuccess-

-- to have the prosecution return the papers to him to prevent the prosecution using them. The Supreme Court overturned the conviction, but not because

::--eks had a constitutional right to suppress evidence seized in violation of the - Jrth Amendment. Reversal was required because the defendant had a constitu-

al right to the return of his property, which was violated when the prosecution : ed to give it back. 361

It was not until the Court.'s later decisions that it came to regard suppression itself - e proper remedy for an illegal search and seizure. 362 However, the rule lost its

cterization as a constitutional right and became simply a judicially created remedy an illegal search and seizure that judges could apply or refuse to apply, depending ·hether it furthered the deterrent goals of the exclusionary rule. 363 This remains the

_ ·ailing view today. 364

2. Application of the Rule to the States

The exclusionary rule originally applied only to evidence seized by federal author- -.

365 It was not until almost 50 years after Weeks that the Supreme Court finally made ~exclusionary rule binding on the states in the now famous case of Mapp v. Ohio. 366

- =-facts of the case were particularly egregious and highlighted the need for suppres- as a remedy to curb police abuses. J1app involved a prosecution for the possession of obscene materials . Police offi-

- initially sought entry after learning that an unnamed person, wanted for question- = in connection with a recent bombing, might be hiding in Mapp's home, and that =also had a large amount of revolutionary literature. Mapp refused to admit them -· out a warrant, so the officers left and returned three hours later with a fake war-

When Mapp demanded to see it, a scuffle ensued, in which Mapp was forcibly - ued and placed under arrest. Police officers proceeded to scour the home. The :zene materials for which Mapp was eventually charged were found in a locked

in her basement. f aced with these facts, the Supreme Court ruled that a mandatory exclusionary

=was necessary:

lhe ignoble shortcut to conviction left open to the State tends to destroy the entire system of constitutiona l restra ints on wh ich the liberties of the people rest . Having onc e recognized th at the right to privacy embodied in the Fourth Amendment is enforceable against the States, and that the right to be secure against rude inva- : ns of p ri vacy by state officers is, therefore, constitutional in origin, we can no

nger permit that right to remain an empty p romise . Because it is enforceable in e same manner and to like effect as other basic rights secured by the Due Process

Cla use, we can no longer permit it to be revocable at t he whim of any police offi- :::e r who, in the name of law enforcement itself, chooses to suspend its enjoyment. 367

~

238 CoNSTITUTIONAL LAw FOR CRIMINAL JusTicE §4.r

Since Mapp v. Ohio, suppression of illegally obtained evidence has been required in both federal and state courts.

B. Scope of the Rule

The defendant's right to suppression includes not only evidence uncovered during an illegal search or seizure but also any other evidence that police discover as a resul of it. 368 This is known as the "fruit of the poisonous tree doctrine," or the Wong Sun doctrine-after the case in which it was recognized. The recognition of the fruit of the poisonous tree doctrine means that illegal police activity can have far-ranging effects on a prosecution. Once police obtain evidence by violating the Fourth Amendment, the prosecution will not only lose the benefit of that evidence; it will bear the burden of showing that all other evidence that it seeks to introduce was acquired from a source untainted by the illegal evidence-gathering activity. 369

C. Standing to Assert the Rule The exclusionary rule is a remedy for criminal defendants whose Fourth Amend-

ment rights have been violated. Because it is a remedy (rather than a general prohibition on the use of illegally obtained evidence), only a defendant whose rights were violated when police obtained the evidence can demand suppression. 370 If the illegally obtained evidence is offered against a person whose rights were not violated, the person has no standing to complain.

Suppose, for example, that police break into Mary Wanna's home without a war- rant or probable cause, looking for evidence of drug trafficking. While inside, they find five kilograms of cocaine and a photograph of her brother Sam cultivating a marijuana garden in his basement. Based on the photograph, police obtain a warrant for Sam 's home. They seize the plants and a photograph depicting Mary assisting Sam in his basement operation. Mary is charged on both cocaine and marijuana counts . She will "walk" on both counts because all the evidence against her derives either directly (the cocaine) or indirectly (the photographs linking her to Sam's marijuana operations) fro m the illegal search of her home . Sam, on the other hand, is going to jail because the police did not violate his Fourth Amendment rights. He cannot complain that police acquired probable cause for his search warrant and some of the evidence used against him by violating his sister Mary 's rights.

D. Exceptions to the Rule Because the Supreme Court has come to regard the exclusionary rule as a judge-

made remedy, rather than a constitutional right, it has recognized a number of excep- tions based on whether the rule will have an appreciable deterrent effect in a given situation and whether this benefit outweighs the cost of suppressing reliable evidence and letting a guilty person go free.

-4.17 SEARCH AND SEIZURE 239

- g ure 4.17 Exceptions to the Exclusionary Ru le

Suppression is not required if:

l . the same evidence inevitably would have been discovered through lawful means 2. the officer acted in objective good faith; 3. the illegality re lated on ly to the manner of entering to execute a val id search

warrant; the evidence is offered for the limited purpose of impeaching (i.e., discrediting) the defendant's own test1mony; or the evidence is offered in a proceeding other than the defendant's criminal trial.

1. Inevitable Discovery /Independent Source Exception

Because the exclusionary rule is designed to undo the effects of a Fourth Amend- -ent violation and to discourage future violations, the Supreme Court has determined

t suppression is not required in cases in which the police obtain no advantage from ::ir unlawful conduct. Accordingly, illegally obtained evidence will be admitted if the

secution can show that the same evidence inevitably would have found its way into e hands of the police through lawful means in the absence of the illegal discovery.

-- reasoning behind this exception is that the government should not be better off as :-esult of unlawful activity, but neither should it be worse off. 371

The inevitable discovery exception often works in conjunction with the inventory h exception to wash out earlier errors committed by the police. For example, if the

· e perform an overly broad motor vehicle search after arresting a motorist, but the e evidence inevitably would have been discovered during a routine inventory h, the evidence is admissible because the police did not reap any advantage from

~ wrongdoing. 372

2. Good Faith Exception

The exclusionary rule cannot deter all violations of the Fourth Amendment because ental violations occur no matter how hard police try to avoid them. Because the -ionary rule only applies when suppression will have a deterrent effect, the rule does ply when the officer who violated the Fourth Amendment acted in objective good To be acting in objective good faith, the officer must reasonably believe that she is lying with the Fourth Amendment.

-:be most important application of the good faith exception involves reasonable e on a facially valid warrant that is later determined to be defective. 373 The recognized this application in United States v. Leon. 374 In Leon, police officers

__ ·gating suspected drug activity prepared an affidavit stating facts that they ·ed established probable cause to search Leon 's home for drugs. The magistrate ·ed the affidavit, found probable cause, and issued a search warrant. At a later

,

240 CONSTITUTIONAL LAW FOR CRIMINAL JuSTICE § 7 -

suppression hearing, the trial court ruled that the magistrate 's finding of probable ca··- was erroneous and suppressed the evidence . On appeal, the Supreme Court accep~ that probable cause was lacking, but held that the exclusionary rule did not ap because the officers conducting the search reasonably believed that the search wa was valid. 375 Where an officer reasonably believes that she is acting under a valid wa-- rant, the exclusionary rule does not apply because there is misconduct that can ~ _ deterred.

The early cases applying the good faith exception followed a common pattern. It= unconstitutionality of the search was caused by the mistake of a third party on whos~ judgment the officer reasonably relied. In Leon , the mistake was made by the magi'- trate who issued the search warrant. The officer relied on the magistrate 's determinati of probable cause and, as a result, reasonably believed that his conduct was la Since the officer was blameless, the exclusionary rule did not apply because there w- - no wrongful conduct that could be deterred. This pattern was also present in Illin ois Krull, 376 the second case in which the Supreme Court applied the good faith exceptio In Krull, the mistake was made by the legislature. The legislature enacted an unconst ·- tutional procedural statute. The officer reasonably relied on the statute in performing - search. The Court ruled that the exclusionary rule does not apply when police condu a search in reliance on a procedural statute that is subsequently held unconstitutionaL

In Arizona v. Evans ,377 the mistake was made by a court clerk. Police ran a warrarr~ check during a routine traffic stop and received a computer report that there was ru:. outstanding warrant for the driver 's arrest. They made an arrest and conducted a searc in reliance on this report. The report turned out to be inaccurate. The warrant had be quashed 17 days earlier, but the court clerk had failed to notify the police departmen The Court ruled that the good faith exception applies when an officer makes an arreJ. based on a reasonable, but mistaken, belief that there is an outstanding warrant autho- rizing the arrest. The Court stressed the fact that the mistake was made by a persor: outside law enforcement, stating that the exclusionary rule was designed to deter "police misconduct, not mistakes by court employees. "

In Herring v. United States,378 the Supreme Court broke new grounds. The facts were superficially similar to Arizona v. Evans-an arrest was made in reliance on an erroneous computer report that there was an outstanding warrant-but there was one key difference. The error was made by a police employee . The police department had been notified of the warrant's recall, but the recall information was not entered into the police database due to the carelessness of a police employee. By the time the error was discov- ered, the defendant had already been searched, and methamphetamine and a pistol had been found in his possession. The Court held that the good faith exception applied, even though the unconstitutional arrest was caused by a police error, because the error resulted in " isolated negligence attenuated from the arrest. " The Court noted that suppression i "not an automatic consequence of a Fourth Amendment violation." "To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system." The Court observed that the deterrence value of suppression

§ 4.17 SEARCH AND SEIZURE 241

varies "with the culpability of the law enforcement conduct" at issue. Suppression is justified when the Fourth Amendment violation results from "deliberate, reckless, or grossly negligent conduct, or in some circumstances, recurring or systemic negligence," but not when it results from "isolated negligence attenuated from the arrest," as occurred here. Applying the exclusionary rule would not deter isolated acts of bad record keeping and any minimal deterrence that might result from applying the exclusionary rule was outweighed by the heavy cost of excluding reliable evidence.

Herring is a game changer on several scores. First, it requires trial courts to con- duct a cost-benefit analysis to d~termine whether the exclusionary rule should be applied. To justify suppression, the deterrence benefits must be real and must outweigh the heavy costs to the legal system of suppressing highly probative and trustworthy evidence. Second, the fact that the Fourth Amendment violation results from police error does not automatically require suppression. Whether suppression is required depends on the degree of culpability. 379 Suppression is required when the Fourth Amendment violation results from "deliberate, reckless, or grossly negligent conduct," but not when it results from nonrecurring acts of negligence because the marginal deterrence achieved by excluding evidence based on negligent mistakes is not suffi- cient to overcome the social costs of exclusion.

The big question left unanswered is whose negligent mistakes does the good faith exception excuse? Only negligent mistakes that are "attenuated from the arrest" (the type that occurred in Herring) or also negligent mistakes of the officer who made the arrest, such as mistakes in determining the existence of probable cause and reasonable suspicion? If the ruling applies only to the former, Herring's impact on existing law will be relatively minor. If it applies to the latter, the decision will have far-reaching onsequences. Exclusionary sanctions will be reserved for extreme cases where the onduct of the police is grossly negligent or worse. Such cases are rare since most

officers genuinely try to comply with the Fourth Amendment and when they overstep the Fourth Amendment, it is because they have made an honest mistake.

3. Illegality in the Manner of Entering to Execute a Valid Search Warrant

Suppression is not required where the illegality relates to the manner of entry to execute a valid warrant. In Hudson v. Michigan, 380 police waited only three to five sec- onds after knocking before entering through the defendant's unlocked front door to execute a search warrant. They discovered large quantities of drugs and a loaded fire - arm, which the defendant sought to suppress on the grounds that the premature entry ·iolated his Fourth Amendment rights . His motion was denied, he was convicted, and

he appealed. The Supreme Court began by stating that the exclusionary rule should be applied only when the deterrence benefits from applying the rule exceed the social ~osts. The deterrence benefits from applying the exclusionary rule to knock and announce violations381 were, in the court's view, negligible since the failure of knock does not lead to discovery of incriminating evidence that could not have been obtained

,

242 CONSTITUTIONAL LAW FOR CRIMINAL JuSTICE § ·L

lawfully. "Whether that preliminary misstep had occurred or not, the police would ha,-:- executed the warrant, and would have discovered the gun and drugs inside the house.

On the cost side, the Supreme Court found that the social costs of applying tb.:: exclusionary rule to knock and announce violations were considerable. In addition - the loss of evidence and the accompanying risk of setting guilty criminals free, app - cation of the exclusionary rule would open a floodgate to endless allegations that poti~~ did not wait long enough, and would discourage police from making a timely entr: after knocking and announcing their presence for fear that a later court might agre02

Putting all this together, the Court concluded that the exclusionary rule should not ,_.~ applied to knock and announce violations because social costs of applying the rule w~ considerably greater than the deterrence benefits.

4. Impeachment

The exclusionary rule prevents the prosecution from offering illegally obtain-- evidence to prove its case. However, if the defendant takes the witness stand and co mits perjury, the prosecution may offer the evidence for the limited purpose of impeac~.: ing (i.e., discrediting) the defendant's own testimony. 382 Impeachment consists -· offering evidence that contradicts the defendant's testimony for the sake of showic...= that the defendant is lying. The exception for impeachment is narrow because it applies only if the defendant takes the stand and gives contradictory testimony at the trial an..:: as is explained in later chapters, the defendant is not required to testifY.

5. Use Outside Criminal Trials

The only kind of proceeding in which the exclusionary rule applies is a crirnin:... trial. 383 The Supreme Court has repeatedly declined to extend the rule to other proceei- ings. Thus, for example, illegally obtained evidence can be offered in grand jury ptl.j- ceedings,384 parole hearings, 385 civil trials, 386 and administrative hearings fc- deportation.387 The Court has limited the exclusionary rule to the criminal trial becaus it believes that suppression in other contexts has no deterrent effect. Its reasoning is when police intentionally violate the Fourth Amendment, they do so in order to ob evidence for a conviction, not to convince a grand jury that a criminal should be pros ecuted, or an immigration official that an alien should be deported. Because the Co believes that the Fourth Amendment's deterrent policy would not be served under thes- circumstances, it refuses to apply the rule.

§ 4.18 Summary and Practical Suggestions

The Fourth Amendment prohibits unreasonable searches and seizures. A sea occurs whenever police invade a suspect's reasonable expectation of privacy, either . physically intruding into a constitutionally protected location (i.e., persons, house-5

SEARCH AND SEIZURE 243

rs, and effects) or by committing a technological invasion of privacy. A seizure ~ when police commit a meaningful interference with a suspect's possessory

·.:rest in property. Minor interferences with possession do not trigger Fourth Amend- t protection. The Fourth Amendment generally requires a search warrant before police may h for or seize property for use as evidence. A search warrant protects against gen-

-earches by interposing between a citizen and the police the disinterested determi- on of a neutral, detached magistrate that there is probable cause for the search and

_ specifying where the police may search or what they may search for. The warrant's :zription of the place to be searched limits the scope of the search to locations where

police have demonstrated probable cause to believe that the objects of the search = -- ely to be found. The description ofthe things to be seized limits the intensity of = search activity to that necessary to uncover the items listed in the warrant. Police =- owed to search for evidence without a warrant in four situations: consent, searches _ ent to a lawful arrest, exigent circumstances, and vehicle searches. The Fourth -endment also allows warrantless limited weapons searches and inventory searches.

Property may be seized for various reasons, the most common being to use it as """nee. When the purpose of the seizure is to obtain criminal evidence, the Fourth

- dment requires probable cause to believe that the property is connected to a crime : either a search warrant describing it or discovery in plain view. There are four

_ _ ~1 categories of articles that may be seized: fruits of crime, instrumentalities of . contraband, and "mere evidence." The "plain view" doctrine allows police to

-" evidence without a warrant when they discover it in plain view without violating -=-ourthAmendment and immediately develop probable cause to believe that it con-

the fruits , instruments, or evidence of a crime or contraband. Brief, limited es are permitted on a lesser showing. When the police have probable cause to

::-·e that a container houses criminal evidence or contraband, they may seize it ut a warrant, but must obtain a warrant before opening and searching it. Police

_ ct on reasonable suspicion in seizing containers for the purpose of subjecting :o a canine examination for illegal drugs, but the period of detention must be brief. 'y, police may impound property without a warrant under various circumstances

_ ted to the discovery of evidence . • n en evidence is obtained in violation of these requirements, the exclusionary

"_ plies . Under this rule, a person whose Fourth Amendment rights have been vio- ~ ~an move to have all resulting evidence excluded from his or her criminal trial.

- = are a number of exceptions to this rule, the most important of which allows --ion of evidence obtained in violation of the Fourth Amendment as long as the ~made a reasonable, good faith error.

- tz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). alifornia v. Greenwood, 486 U.S. 35, 108 S. Ct. 1625, 100 L . Ed. 2d 30 (1988) .