James R. Balmforth: Search And Seizure Issues And The Fourth Amendment

The Fourth Amendment (Amendment IV) to the United States Constitution is part of the Bill of Rights. It prohibits unreasonable searches and seizures. In addition, it sets requirements for issuing warrants: warrants must be issued by a judge or magistrate, justified by probable cause, supported by oath or affirmation, and must particularly describe the place to be searched and the persons or things to be seized. Fourth Amendment case law deals with three main issues: what government activities are “searches” and “seizures”, what constitutes probable cause to conduct searches and seizures, and how violations of Fourth Amendment rights should be addressed. Early court decisions limited the amendment’s scope to physical intrusion of property or persons, the Supreme Court held that its protections extend to intrusions on the privacy of individuals as well as to physical locations. A warrant is needed for most search and seizure activities, but the Court has carved out a series of exceptions for consent searches, motor vehicle searches, evidence in plain view, exigent circumstances, border searches, and other situations.

The Fourth Amendment was adopted in response to the abuse of the writ of assistance, a type of general search warrant issued by the British government, and a major source of tension in pre-Revolutionary America. The Fourth Amendment was introduced in Congress in 1789 by James Madison, along with the other amendments in the Bill of Rights, in response to Anti-Federalist objections to the new Constitution. Congress submitted the amendment to the states on September 28, 1789. By December 15, 1791, the necessary three-fourths of the states had ratified it. On March 1, 1792, Secretary of State Thomas Jefferson announced that it was officially part of the Constitution. Because the Bill of Rights did not initially apply to state or local governments, and federal criminal investigations were less common in the first century of the nation’s history, there is little significant case law for the Fourth Amendment before the 20th century. The right of the people to be secure in their persons, houses, papers, and effects,[a] against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions.

All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities, prescribed by the laws. Fourth Amendment case law deals with three central issues: what government activities constitute “search” and “seizure”; what constitutes probable cause for these actions; how violations of Fourth Amendment rights should be addressed. The Fourth Amendment typically requires “a neutral and detached authority interposed between the police and the public”, and it is offended by “general warrants” and laws that allows searches to be conducted “indiscriminately and without regard to their connection with crime under investigation”, for the “basic purpose of the Fourth Amendment, which is enforceable against the States through the Fourteenth, through its prohibition of ‘unreasonable’ searches and seizures is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.”

The Fourth Amendment has been held to mean that a search or an arrest generally requires a judicially sanctioned warrant, because the basic rule under the Fourth Amendment is that arrests and “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable”. In order for such a warrant to be considered reasonable, it must be supported by probable cause and be limited in scope according to specific information supplied by a person (usually a law enforcement officer) who has sworn by it and is therefore accountable to the issuing court. The Supreme Court further held in Chandler v. Miller (1997): “To be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing. But particularized exceptions to the main rule are sometimes warranted based on ‘special needs, beyond the normal need for law enforcement’. When such ‘special needs’ are alleged, courts must undertake a context-specific inquiry, examining closely the competing private and public interests advanced by the parties.” The amendment applies to governmental searches and seizures, but not those done by private citizens or organizations who are not acting on behalf of a government.

Search

One threshold question in the Fourth Amendment jurisprudence is whether a “search” has occurred. Initial Fourth Amendment case law hinged on a citizen’s property rights that is, when the government physically intrudes on “persons, houses, papers, or effects” for the purpose of obtaining information, a “search” within the original meaning of the Fourth Amendment has occurred. Early 20th-century Court decisions, held that Fourth Amendment rights applied in cases of physical intrusion, but not to other forms of police surveillance (e.g., wiretaps). A “search” occurs for purposes of the Fourth Amendment when the government violates a person’s “reasonable expectation of privacy”. Katz’s reasonable expectation of privacy thus provided the basis to rule that the government’s intrusion, though electronic rather than physical, was a search covered by the Fourth Amendment, and thus necessitated a warrant. The Court said that it was not recognizing any general right to privacy in the Fourth Amendment, and that this wiretap could have been authorized if proper procedures had been followed. This decision in Katz was later developed into the now commonly used two-prong test, adopted in Smith v. Maryland (1979), for determining whether a search has occurred for purposes of the Fourth Amendment:

• a person “has exhibited an actual (subjective) expectation of privacy”; and

• society is prepared to recognize that this expectation is (objectively) reasonable.

The Supreme Court has held that the Fourth Amendment does not apply to information that is voluntarily shared with third parties. In Utah, the Court held individuals have no “legitimate expectation of privacy” regarding the telephone numbers they dial because they knowingly give that information to telephone companies when they dial a number. In certain situations, law enforcement may perform a search when they have a reasonable suspicion of criminal activity, even if it falls short of probable cause necessary for an arrest.

Seizure

The Fourth Amendment proscribes unreasonable seizure of any person, person’s home (including its curtilage) or personal property without a warrant. A seizure of property occurs when there is “some meaningful interference with an individual’s possessory interests in that property”, such as when police officers take personal property away from an owner to use as evidence, or when they participate in an eviction. The amendment also protects against unreasonable seizure of persons, including a brief detention. A seizure does not occur just because the government questions an individual in a public place. The exclusionary rule would not bar voluntary answers to such questions from being offered into evidence in a subsequent criminal prosecution. The person is not being seized if his freedom of movement is not restrained. The government may not detain an individual even momentarily without reasonable, objective grounds, with few exceptions. His refusal to listen or answer does not by itself furnish such grounds. When a person is arrested and taken into police custody, he has been seized (i.e., a reasonable person who is handcuffed and placed in the back of a police car would not think they were free to leave). A person subjected to a routine traffic stop on the other hand, has been seized, but is not “arrested” because traffic stops are a relatively brief encounter and are more analogous to a Terry stop than to a formal arrest. If a person is not under suspicion of illegal behavior, a law enforcement official is not allowed to place an individual under arrest simply because this person does not wish to state his identity, provided specific state regulations do not specify this to be the case. A search incidental to an arrest that is not permissible under state law does not violate the Fourth Amendment, so long as the arresting officer has probable cause.

Warrant

Under the Fourth Amendment, law enforcement must receive written permission from a court of law, or otherwise qualified magistrate, to lawfully search and seize evidence while investigating criminal activity. A court grants permission by issuing a writ known as a warrant. A search or seizure is generally unreasonable and unconstitutional if conducted without a valid warrant and the police must obtain a warrant whenever practicable. Searches and seizures without a warrant are not considered unreasonable if one of the specifically established and well-delineated exceptions to the warrant requirement applies. These exceptions apply “only in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable”. In these situations where the warrant requirement doesn’t apply a search or seizure nonetheless must be justified by some individualized suspicion of wrongdoing. However, the Supreme Court carved out an exception to the requirement of individualized suspicion. It ruled that, “In limited circumstances, where the privacy interests implicated by the search are minimal and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion” a search [or seizure] would still be reasonable.

Probable Cause

The standards of probable cause differ for an arrest and a search. The government has probable cause to make an arrest when “the facts and circumstances within their knowledge and of which they had reasonably trustworthy information” would lead a prudent person to believe that the arrested person had committed or was committing a crime. Probable cause to arrest must exist before the arrest is made. Evidence obtained after the arrest may not apply retroactively to justify the arrest. When police conduct a search, the amendment requires that the warrant establish probable cause to believe that the search will uncover criminal activity or contraband. They must have legally sufficient reasons to believe a search is necessary. Exceptions to the warrant requirement

Consent

If a party gives consent to a search, a warrant is not required. There are exceptions and complications to the rule, including the scope of the consent given, whether the consent is voluntarily given, and whether an individual has the right to consent to a search of another’s property.

Exigent Circumstances

Law enforcement officers may also conduct warrantless searches in several types of exigent circumstances where obtaining a warrant is dangerous or impractical. The Court also allowed a search of arrested persons in to preserve evidence that might otherwise be destroyed and to ensure suspects were disarmed. A subset of exigent circumstances is the debated community caretaking exception. The Supreme Court has held that individuals in automobiles have a reduced expectation of privacy, because vehicles generally do not serve as residences or repositories of personal effects, and vehicles “can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.”[120] Vehicles may not be randomly stopped and searched; there must be probable cause or reasonable suspicion of criminal activity. Items in plain view may be seized; areas that could potentially hide weapons may also be searched. With probable cause to believe evidence is present, police officers may search any area in the vehicle. However, they may not extend the search to the vehicle’s passengers without probable cause to search those passengers or consent from the passengers. A common law rule permits searches incident to an arrest without a warrant. This rule has been applied in American law, and has a lengthy common law history. The justification for such a search is to prevent the arrested individual from destroying evidence or using a weapon against the arresting officer by disarming the suspect. The Supreme Court ruled that “both justifications for the search-incident-to-arrest exception are absent and the rule does not apply”, when “there is no possibility” that the suspect could gain access to a weapon or destroy evidence. Border search exception despite the foregoing citation the Fourth Amendment prohibitions against unreasonable searches and seizures nonetheless apply to the contents of all communications, whatever the means, because, “a person’s private communications are akin to personal papers.” Fourth Amendment reasonableness is the point at which the Utah government’s interest advanced by a particular search or seizure outweighs the loss of individual privacy or freedom of movement that attends the government’s action.

The Exclusionary Rule

One way courts enforce the Fourth Amendment is through the use of the exclusionary rule. The rule provides that evidence obtained through a violation of the Fourth Amendment is generally not admissible by the prosecution during the defendant’s criminal trial. The exclusionary rule and its effectiveness have often been controversial, particularly since its 1961 application to state proceedings. Critics charge that the rule hampers police investigation and can result in freeing guilty parties convicted on reliable evidence; other critics state that the rule has not been successful in deterring illegal police searches. Proponents argue that the number of criminal convictions overturned under the rule has been minimal and that no other effective mechanism exists to enforce the Fourth Amendment.

The Supreme Court has also held the exclusionary rule to not apply in the following circumstances:
• evidence illegally seized by a “private actor” (i.e., not a governmental employee)
• tax hearings
• evidence collected by Utah Customs agents
• deportation hearings
• evidence seized by probation or parole officers
• probation or parole revocation hearings

When is a Warrant Not Required?

While there is a judicial preference for warrants (in terms of separation of powers, warrants act as a check on the power of the executive branch by the judicial branch), the Supreme Court has never required all searches to be supported by a valid warrant. In fact, a number of exceptions to the warrant requirement have been developed. Among the most important in use today are:

• searches incident to a lawful arrest (allowing the police to search a lawfully arrested person and the area immediately surrounding that person for weapons or hidden evidence that might be destroyed)
• consent searches (allowing the police to search without probable cause with an individual’s voluntary permission)
• plain view searches (allowing the police to seize an object related to criminal activity when it is in the “plain view” of the officer)
• stop and frisk (allowing the police to pat down-frisk-an individual for weapons when the police believe the person is acting suspiciously and likely to be armed)
• hot pursuit (allowing the police to make a warrantless entry into a building when freshly pursuing a fleeing felony suspect)
• automobile searches (allowing the police to search a car when they have probable cause without first obtaining a warrant because of the inherent mobility of a car)
• inventory searches (allowing the police or corrections officials to conduct a warrantless inventory search to make a list of the arrestee’s belongings in order to protect the officials against later claims of theft of property)
• border and airport searches (allowing police and customs officials to make warrantless searches, including limited searches without any probable cause)
• exigent circumstances (allowing the police to search without a warrant when confronted with an emergency such as evidence about to be destroyed)

These exceptions are judicially created categories designed to accommodate the legitimate needs of law enforcement as balanced against the individual’s right to be free from unreasonable searches and seizures. Searches falling into these categories are deemed reasonable, even though warrantless. However, the increase in violent crime and the parallel response of law enforcement in the last quarter of this century has made it very difficult to fit search and seizure cases into a neat analytic model. That would mean requiring a valid warrant unless the search clearly fits into one of the recognized exceptions.

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