Constitutional law 14th edition jacqueline kanovitz pdf

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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

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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

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121 TERMS AND CONCEPTS

ipatory search warrant --oarent authority

::.:~ ·ainer

::.: raband __ ·rage

lly valid warrant

(of a crime) (of an il legal search

-· eizure) :: _ 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, = able.

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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 white 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- veillance outside Sam 's home. He waited on the street outside Sam's house each morning, followed Sam to his office, waited 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 would 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- :- with 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 ~ Clueso 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.

big 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

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

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

- but 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 whether 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 wrong 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 wall 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 where Sam was standing, but the du Chump painting was nowhere to be seen . However, he spotted a set of finger paints, which 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 with 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 what appeared to .be several ounces of marijuana that was wedged behind it and seized that as well. Sam's motion to suppress the

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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 reasonable 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:.

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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 Lisa 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. Ohio9 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.

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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 _

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~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 knowingly = ":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

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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 violate 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 clothing19 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 Amendment does not treat the following activities as searches:

: '"'-arc hes and se izures performed by p rivate parties without government :xnp licity

_aorches and seizures of abandoned property - estigation of matters exposed to public view ::~ ine inspections to detect for the presence of narcotics.

-:msearches

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

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

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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

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_·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 for 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

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184 CONSTITUTIONAL LAW FOR CRIMINAL JusTICE § 4.3

Figure 4.2 Essentials for a Lawful Search

For a search to be lawful. the officer must:

l . act under a recognized source of search authority, and 2. confine the search activity to authorized search boundaries. Grounds for search authority and search boundaries vary with the purpose of the 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.

Figure 4.3 Categories of Searches

CATEGORY PURPOSE OF SEARCH GROUNDS FOR CONDUCTING

Full Search Gather evidence Search warrant or recognized exception to warrant requirement

Limited Disarm person to protect Reasonable susp ic ion that a person ' ' Weapons officer's safety lawfully deta ined is armed and

Search dangerous

Inventory Catalogue property that Authority to impound and Search police have taken into adherence to police department

custody regulations governing conduct of inventory searches

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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

- order 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. 51 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

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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 for - 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 when:

police obtain consent from someone who has authority to give it the search is conducted as an incident to a lawful custodial arrest police have probable cause to bel ieve that a motor vehic le contains property they may lawfully seize police are confronted with exigent circumstances that requ ire immediate warrantless 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 _ joint 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,