Conducting Constitutional Searches

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© 2015 Cengage Learning
Prepared by Tony Wolusky, J.D. , Metropolitan State University of Denver
Chapter 9
Conducting
Constitutional
Searches

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 What are the fundamental rules of search and
seizure under the 4th
Amendment?
1. There must be governmental action.
2. 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) that 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).

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 Unrestrained general searches offend our
sense of justice.
 All searches must be limited in scope.
 General searches are unconstitutional and
never legal.

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 All searches with a warrant must be based
on:
o Probable cause
o Supported by oath and affirmation
o Particularly describing the place to be
searched, and
o The persons or things to be seized

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 Facts: Prohibition agents had a warrant for intoxicating
liquor and their manufacture. They noticed a ledger
showing inventories of liquors, receipts, expenses,
including gifts to police officers, and other things relating
to the business.
 Issues: Can the ledger be seized since it wasn't listed on
the warrant?
 Holding: Yes.
 Rationale: The ledger was closely related to the
business of the illegal business.

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 New York v. Belton (1981)
o Landmark case for the warrantless search of a vehicle
incident to arrest.
• Court held that when an officer has made a lawful custodial
arrest of the occupant of an automobile, he may search the
passenger compartment.
• He may also examine the contents of any containers found
within the compartment.
• If the container is within reach of the arrestee, so also will
containers in it be within his reach.

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 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 premises during the search.

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 Officers can only search the areas where they
reasonably believe the specified items might be
found.
 If the warrant states only one specific item be
sought, once it is located, the search must end.
 Officers often are protected with qualified
immunity.
o 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.

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 The government can also seize any contraband or
other evidence of a crime found during a search
with a warrant, even though it was not specified.
o Contraband is anything that is illegal for people to own
or have in their possession.
 The contraband does not need to be described in
the warrant or be related to the crime described in
the warrant.
o Plain view doctrine

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 Allows civil inspections of private property to
determine compliance with government
rules, regulations and city ordinances.
o Examples include fire building codes
 These can also be obtained so government
agents can conduct routine inspections
when occupants refuse their entry.

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 Facts: Police visited Biswell, a pawn shop operator who was federally
licensed to deal in sporting weapons. They identified themselves,
inspected Biswell's books and requested entry into a locked gun
storeroom. Biswell asked whether the agents had a search warrant,
and the principle investigator responded that they did not, but that
section 923(g) of the Gun Control Act of 1968 authorized such
inspections without a search warrant. There the agents found and
seized two sawed-off rifles, items Biswell was not licensed to possess.
 Issues: Did the warrantless search violate the Fourth Amendment?
 Holding: No.
 Rationale: Inspections pertaining to the sale of illegal firearms are
justified and that limited threats such as this inspection to the gun
dealer’s expectation of privacy are reasonable.

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 The 4th
Amendment prefers a warrant because it
necessitates judicial review of government action.
 The Supreme Court has defined some searches without a
warrant to be reasonable under the 4th
Amendment
guidelines:
o Consent search,
o frisks,
o plain feel/plain view,
o incident to arrest,
o automobile exception,
o exigent circumstances,
o open fields,
o abandoned property
o and public places.

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 If an individual gives voluntary consent for the police to
search, the police may 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.
 4th
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.

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 Facts: The home that a robbery suspect was leasing was
searched by the police after obtaining the consent to enter
the home from somebody who lived with the suspect.
 Issues: Was the consent valid under the 4th
Amendment?
 Holding: Yes.
 Rationale: The Court observed that recent decisions
“clearly indicate that the consent of one who possesses
common authority over premises or effects is valid as
against the absent, nonconsenting person with whom that
authority is shared.”

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 Examples of instances when individuals
cannot give valid consent to search:
o 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.
o Hotel employee/hotel guest
• Supreme Court extended the principles above to
hotel employees as well.
• Only the tenant or hotel guest can give consent.

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 If an officer suspects a person is presently armed and
dangerous, a frisk may 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:
 Suspect that flees.
 A bulge in the clothing.
 Suspect’s hand concealed in a pocket.
 Being in a known high crime area and suspect crime would likely
involve a weapon.

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 Facts: Officer conducted a frisk. The search revealed no
weapons, but the officer felt a small lump in respondent's
jacket pocket, believed it to be a lump of crack cocaine upon
examining it with his fingers, and then reached into the
pocket and retrieved a small bag of cocaine.
 Issues: Was the seizure lawful without a warrant?
 Holding: Yes.
 Rationale: As long as the narcotics are instantly
recognizable by plain feel or plain touch. Ultimately, if, in the
lawful course of a frisk, officers feel something that training
and experience causes them to believe is contraband, there
is probable cause to expand the search and seize the object.

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 The plain view doctrine says that unconcealed evidence
that officers see while engaged in a lawful activity may be
seized and is admissible in court.
o For example, if a government official is invited into a person’s
home, and the officer sees illegal drugs on the table, the drugs can
be seized.
 Technology is impacting 4th
Amendment case law.
 Thermal imaging devices.
 Kyllo v. United States (2001)
o Was a search warrant needed for police to scan a home from the
street and compare that infrared image to other buildings?
o This action is considered a search under the Fourth Amendment
and requires a warrant.

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 Once a person has been lawfully taken into custody by the
police, U.S. law recognizes the necessity of permitting a
complete search for two reasons:
1. Officer safety
2. Evidence and other contraband should be recovered
 Chimel v. California (1969)
o Searches after an arrest must be immediate and must be limited
to the area within the person’s wingspan.
• The area within a person’s reach or immediate control.
 Schmerber v. California (1966)
o Absent the exigent circumstances, a search intrusive as drawing
blood would not be permissible without a warrant.

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 This exception states that if a governmental agent
has probable cause to believe the vehicle contains
contraband or evidence or a crime, no warrant is
needed.
 Why?
o Cars are mobile.
o In the time it would take to get a warrant, the
car, driver and contraband or evidence could be
long gone.

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 Facts: Prohibition officers saw Carroll, suspected of alcohol sales,
driving on the highway. They gave chase, pulled them over, searched
the car and found illegal liquor. The National Prohibition Act allowed
warrantless searches of vehicles for alcohol.
 Issues: Was a warrant necessary?
 Holding: No.
 Rationale: Vehicles are more mobile than homes and justify different
rules. They can be searched without a warrant provided:
1. There is probable cause to believe the vehicle’s contents violate
the law, and
2. The vehicle would be gone before a search warrant could be
obtained.
 For an officer to search a vehicle without a warrant, they must have
probable cause to believe the vehicle contains contraband or evidence.

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 The courts have recognized that sometimes situations will
arise that reasonably require immediate action before
evidence may be destroyed.
 These circumstances include:
o Danger or physical harm to officer or others.
o Danger or destruction of evidence.
o Driving while intoxicated.
o Hot-pursuit situations.
o Individuals requiring rescuing.

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 The courts have extended the plain view doctrine stating
that anything held out to the public is not protected by the
4th
Amendment because no reasonable expectation of
privacy exists.
 “Open fields”- holds that land beyond that normally
associated with the use of that land, that is, undeveloped
land, can be searched without a warrant.
 California v. Ciraolo (1986)
o Police looking from the air into a suspect’s backyard does not
violate the 4th
Amendment because it is open to public view from
the air.

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 Searches of persons, belongings and vehicles at
international borders are reasonable under the 4th
Amendment.
 The farther a person gets from the border, the more
traditional search and seizure requirements come back
into play.
 United States v. Montoya de Hernandez (1985)
o Routine searches at a U.S. international border require no objective
justification, probable cause or warrant.
 Quinones-Ruiz v. United States (1994)
o The border search exception applies equally to persons entering or
exiting the country.

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 These are limited searches that the court
considers reasonable because societal needs are
thought to outweigh the individual’s normal
expectation of privacy:
o Prison
o Probation and parole searches
o Drug testing for certain occupations
o Administrative searches of closely regulated businesses
o Community caretaking searches
o Public school searches

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 Electronic eavesdropping to searches of people, their
luggage, where they live, and 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 4th
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.

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