CRJ 395: Constitutional Law and the Criminal Justice System - Fourth Amendment

The fundamental rules of search and seizure

• There must be governmental action

• The person making the challenge must have standing (that is, the conduct violates the challenger’s reasonable expectation of privacy)

  • A situation in which 1) a person has exhibited actual subjective expectation of privacy and 2) the expectation is one that society is prepared to recognize as reasonable

    • Often an implied right that falls within the shadow of other specified rights (penumbra)

• A person whose privacy is being violated can only challenge their own violation, not someone else’s and someone else can’t challenge that violation.

Katz Test

1. Subjective Expectation of Privacy: Did the individual have a subjective expectation of privacy in the place or thing searched?

2. Objective Expectation of Privacy: Is society willing to recognize that expectation of privacy as reasonable?

Scope of Searches

• Unrestrained general searches offend our sense of justice

• All searches must be limited in scope

• General searches are unconstitutional and never legal

• All warrants must state what they are specifically looking for

All searches with a warrant must be based on:

• Probable cause

• Supported by oath and affirmation

• Particularly describing the place to be searched, and

• The persons or things to be seized

Searches with a warrant

• After officers have obtained their search warrant, they must execute it in a timely manner

• They must not use excessive force to execute the warrant

• There is limited authority to detain the occupants of the premise during the search

• Officers can search only the areas where they reasonably believe that specified items might be found

• If the warrant states only one specific item be sought, once it is located, the search must end

Can the government seize any contraband or other evidence of a crime found during a search with a warrant, even though it was not specified?

Yes. Contraband is anything that is illegal for people to own or have in their possession, so the government cant seize any contraband or other evidence of a crime.

The contraband does not need to be described in the warrant or be related to the crime described in the warrant.

Plain view doctrine.

Officers are often protected with qualified immunity.

Exemption of a public official from civil liability for actions performed during the course of his or her job unless they violate a “clearly established” constitutional or statutory right.

What are the types of searches that can be done without a warrant?

1. Consent searches

2. Frisks for officer safety

3. Plain view/plain feel

4. Incident to arrest

5. Automobile exception

6. Exigent circumstances

7. Open fields/abandoned properties/public places

Consent searches

• If an individual gives voluntary consent for the police to search, the police may do so without a warrant

• Any evidence found will be admissible in court

• The person may revoke the search at anytime

• Only the person whose constitutional rights might be threatened by a search can give consent

• Fourth Amendment rights are specific to the person and may not be raised on behalf of someone else or in some abstract, theoretical way

• Consent to search an individual must be given by that individual

When can individuals not give valid consent?

• Landlord/tenant. Even though the landlord is the legal owner, they lack the authority to offer consent to a search of a tenant’s premises or a seizure of the tenant’s property.

• Hotel employee/hotel guest. The Supreme Court extended the principles above to hotel employees as well. Only the tenant or hotel guest can give consent.

Frisks as an exception to a warrant

• If an officer suspects a person is presently armed and dangerous, a frisk may be conducted without a warrant.

• A frisk is authorized by the circumstances of an investigative stop, only a limited pat-down of the detainee’s outer clothing for the officer’s safety is authorized.

• Factors contributing to the decision to frisk include:

  • Suspects that flee

  • A bulge in the clothing

  • Suspect’s hand concealed in a pocket

  • Being in a known high crime area and suspect would likely involve a weapon

• The plain view doctrine: any unconcealed evidence that officers see while engaged in a lawful activity may be seized and is admissible in court.

Once a person is taken into custody lawfully, they permit a complete search for two reasons:

1. officer safety

2. evidence and other contraband should be recovered

Automobile exception

• If a governmental agent has probable cause to believe that the vehicle contains contraband or evidence or a crime, then no warrant is needed.

• Basis for this exception: cars are mobile. In the time it would take to get a warrant, the car, driver, and the contraband or evidence would long be gone.

• Vehicles are more mobile than houses and justify different rules. They can be searched without a warrant provided:

  • There is probable cause to believe that the vehicle’s contents violate the law,

  • and the vehicle would be gone before a search warrant could be obtained.

Exigent Circumstances

• The courts have recognized that sometimes situations will arise that reasonably require immediate action before evidence may be destroyed. These circumstances include:

  • Danger or physical harm to officers or others

  • Danger or destruction of evidence

  • Driving while intoxicated

  • Hot-pursuit situations

  • Individuals requiring rescuing

Open fields

• Land beyond that normally associated with the use of that land, that is, underdeveloped land, can be searched without a warrant

  • Public view and public places

Border searches

• Searchers of persons, belongings, and vehicles at international borders are reasonable

• The father a person gets from the border, the more traditional search and seizure requirements come back into play.

• Routine searches at US international borders require no objective justification, probable cause, or warrant

• The border search exception applies equally to persons entering or exiting the country

Plain view/plain feel

If an officer sees something or feels something that trains them to believe reasonably that it is contraband, they can expand to a fuller search.

Special Needs Searches

• These are limited searches that the court considers reasonable because societal needs are thought to outweigh the individual’s normal expectation of privacy:

  • Prison

  • Probation and parole searches

  • Drug testing for certain occupations

  • Administrative searches of closely regulated businesses

  • Community caretaking searches

  • Public school searches

Electronics and Privacy Interest

• Electronic eavesdropping to search people, their luggage, where they live, their bodies, homes, hotel rooms, businesses, obtaining evidence from a person’s body (urine testing), or surgical removal of a bullet lodged within a person, are all cases that have been held to constitute searches under the Fourth Amendment

• Physical presence is not required to constitute a search

• In each case, the person has a reasonable expectation of privacy

• As such, a warrant is generally required

Title III of the Omnibus Crime Control and Safe Streets Act of 1965

• Prohibits the interception of phone conversations unless one party to the conversation consents.

• To obtain an electronic-surveillance warrant, or wiretap order, probable cause that a person is engaging in particular communications must be established by the court, and normal investigative procedures must have already been tried.