Search and Seizure
      History and Scope of the Amendment
            History
            Scope of the Amendment
            The Interest Protected
            Arrests and Other Detentions
            Searches and Inspections in Noncriminal Cases
      Searches and Seizures Pursuant to Warrant
            Issuance by Neutral Magistrate
            Probable Cause
            Particularity
            First Amendment Bearing on Probable Cause and Particularity
            Property Subject to Seizure
            Execution of Warrants
      Valid Searches and Seizures Without Warrants
            Detention Short of Arrest: Stop-and-Frisk
            Search Incident to Arrest
            Vehicular Searches
            Vessel Searches
            Consent Searches
            Border Searches
            ``Open Fields''
            ``Plain View''
            Public Schools
            Government Offices
            Prisons and Regulation of Probation
            Drug Testing
      Electronic Surveillance and the Fourth Amendment
            The Olmstead Case
            Federal Communications Act
            Nontelephonic Electronic Surveillance
            The Berger and Katz Cases
            Warrantless ``National Security'' Electronic Surveillance
      Enforcing the Fourth Amendment: The Exclusionary Rule
            Alternatives to the Exclusionary Rule
            Development of the Exclusionary Rule
            The Foundations of the Exclusionary Rule
            Narrowing Application of the Exclusionary Rule
            Operation of the Rule: Standing

History. -- Few provisions of the Bill of Rights grew so directly out of the experience of the colonials as the Fourth Amendment, embodying as it did the protection against the utilization of the ``writs of assistance.'' But while the insistence on freedom from unreasonable searches and seizures as a fundamental right gained expression in the Colonies late and as a result of experience,\1\ there was also a rich English experience to draw on. ``Every man's house is his castle'' was a maxim much celebrated in England, as was demonstrated in Semayne's Case, decided in 1603.\2\ A civil case of execution of process, Semayne's Case nonetheless recognized the right of the homeowner to defend his house against unlawful entry even by the King's agents, but at the same time recognized the authority of the appropriate officers to break and enter upon notice in order to arrest or to execute the King's process. Most famous of the English cases was Entick v. Carrington,\3\ one of a series of civil actions against state officers who, pursuant to general warrants, had raided many homes and other places in search of materials connected with John Wilkes' polemical pamphlets attacking not only governmental policies but the King himself.\4\

NOTES:

\2\5 Coke's Rep. 91a, 77 Eng. Rep. 194 (K.B. 1604). One of the most forceful expressions of the maxim was that of William Pitt in Parliament in 1763: ``The poorest man may in his cottage bid defiance to all the force of the crown. It may be frail--its roof may shake--the wind may blow through it--the storm may enter, the rain may enter--but the King of England cannot enter--all his force dares not cross the threshold of the ruined tenement.''

\3\19 Howell's State Trials 1029, 95 Eng. 807 (1705).

\4\See also Wilkes v. Wood, 98 Eng. 489 (C.P. 1763); Huckle v. Money, 95 Eng. Rep. 768 (K.B. 1763), aff'd 19 Howell's State Trials 1002, 1028; 97 Eng. Rep. 1075 (K.B. 1765).

Entick, an associate of Wilkes, sued because agents had forcibly broken into his house, broken into locked desks and boxes, and seized many printed charts, pamphlets and the like. In an opinion sweeping in terms, the court declared the warrant and the behavior it authorized subversive ``of all the comforts of society,'' and the issuance of a warrant for the seizure of all of a person's papers rather than only those alleged to be criminal in nature ``contrary to the genius of the law of England.''\5\ Besides its general character, said the court, the warrant was bad because it was not issued on a showing of probable cause and no record was required to be made of what had been seized. Entick v. Carrington, the Supreme Court has said, is a ``great judgment,'' ``one of the landmarks of English liberty,'' ``one of the permanent monuments of the British Constitution,'' and a guide to an understanding of what the Framers meant in writing the Fourth Amendment.\6\

NOTES:

\6\Boyd v. United States, 116 U.S. 616, 626 (1886).

In the colonies, smuggling rather than seditious libel afforded the leading examples of the necessity for protection against unreasonable searches and seizures. In order to enforce the revenue laws, English authorities made use of writs of assistance, which were general warrants authorizing the bearer to enter any house or other place to search for and seize ``prohibited and uncustomed'' goods, and commanding all subjects to assist in these endeavors. The writs once issued remained in force throughout the lifetime of the sovereign and six months thereafter. When, upon the death of George II in 1760, the authorities were required to obtain the issuance of new writs, opposition was led by James Otis, who attacked such writs on libertarian grounds and who asserted the invalidity of the authorizing statutes because they conflicted with English constitutionalism.\7\ Otis lost and the writs were issued and utilized, but his arguments were much cited in the colonies not only on the immediate subject but also with regard to judicial review.

NOTE:

Scope of the Amendment. -- The language of the provision which became the Fourth Amendment underwent some modest changes on its passage through the Congress, and it is possible that the changes reflected more than a modest significance in the interpretation of the relationship of the two clauses. Madison's introduced version provided ``The rights to be secured in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.''\8\ As reported from committee, with an inadvertent omission corrected on the floor,\9\ the section was almost identical to the introduced version, and the House defeated a motion to substitute ``and no warrant shall issue'' for ``by warrants issuing'' in the committee draft. In some fashion, the rejected amendment was inserted in the language before passage by the House and is the language of the ratified constitutional provision.\10\

NOTES:

\9\The word ``secured'' was changed to ``secure'' and the phrase ``against unreasonable searches and seizures'' was reinstated. Id. at 754 (August 17, 1789).

\10\Id. It has been theorized that the author of the defeated revision, who was chairman of the committee appointed to arrange the amendments prior to House passage, simply inserted his provision and that it passed unnoticed. N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 101-03 (1937).

As noted above, the noteworthy disputes over search and seizure in England and the colonies revolved about the character of warrants. There were, however, lawful warrantless searches, primarily searches incident to arrest, and these apparently gave rise to no disputes. Thus, the question arises whether the Fourth Amendment's two clauses must be read together to mean that the only searches and seizures which are ``reasonable'' are those which meet the requirements of the second clause, that is, are pursuant to warrants issued under the prescribed safeguards, or whether the two clauses are independent, so that searches under warrant must comply with the second clause but that there are ``reasonable'' searches under the first clause which need not comply with the second clause.\11\ This issue has divided the Court for some time, has seen several reversals of precedents, and is important for the resolution of many cases. It is a dispute which has run most consistently throughout the cases involving the scope of the right to search incident to arrest.\12\ While the right to search the person of the arrestee without a warrant is unquestioned, how far afield into areas within and without the control of the arrestee a search may range is an interesting and crucial matter.

NOTES:

\12\Approval of warrantless searches pursuant to arrest first appeared in dicta in several cases. Weeks v. United States, 232 U.S. 383, 392 (1914); Carroll v. United States, 267 U.S. 132, 158 (1925); Agnello v. United States, 269 U.S. 20, 30 (1925). Whether or not there is to be a rule or a principle generally preferring or requiring searches pursuant to warrant to warrantless searches, however, has ramifications far beyond the issue of searches pursuant to arrest. United States v. United States District Court, 407 U.S. 297, 320 (1972).

The Court has drawn a wavering line.\13\ In Harris v. United States,\14\ it approved as ``reasonable'' the warrantless search of a four-room apartment pursuant to the arrest of the man found there. A year later, however, a reconstituted Court majority set aside a conviction based on evidence seized by a warrantless search pursuant to an arrest and adopted the ``cardinal rule that, in seizing goods and articles, law enforcement agents must secure and use search warrants wherever reasonably practicable.''\15\ This rule was set aside two years later by another reconstituted majority which adopted the premise that the test ``is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.'' Whether a search is reasonable, the Court said, ``must find resolution in the facts and circumstances of each case.''\16\ However, the Court soon returned to its emphasis upon the warrant. ``The [Fourth] Amendment was in large part a reaction to the general warrants and warrantless searches that had so alienated the colonists and had helped speed the movement for independence. In the scheme of the Amendment, therefore, the requirement that `no Warrants shall issue, but upon probable cause,' plays a crucial part.''\17\ Therefore, ``the police must, whenever practicable, obtain advance judicial approval of searches and seizures through a warrant procedure.''\18\ Exceptions to searches under warrants were to be closely contained by the rationale undergirding the necessity for the exception, and the scope of a search under one of the exceptions was similarly limited.\19\

NOTES:

\14\331 U.S. 145 (1947).

\15\Trupiano v. United States, 334 U.S. 699, 705 (1948). See also McDonald v. United States, 335 U.S. 451 (1948).

\16\United States v. Rabinowitz, 339 U.S. 56, 66 (1950).

\17\Chimel v. California, 395 U.S. 752, 761 (1969).

\18\Terry v. Ohio, 392 U.S. 1, 20 (1968). In United States v. United States District Court, 407 U.S. 297, 321 (1972), Justice Powell explained that the ``very heart'' of the Amendment's mandate is ``that where practical, a governmental search and seizure should represent both the efforts of the officer to gather evidence of wrongful acts and the judgment of the magistrate that the collected evidence is sufficient to justify invasion of a citizen's private premises or conversation.'' Thus, what is ``reasonable'' in terms of a search and seizure derives content and meaning through reference to the warrant clause. Coolidge v. New Hampshire, 403 U.S. 443, 473-84 (1971). See also Davis v. Mississippi, 394 U.S. 721, 728 (1969); Katz v. United States, 389 U.S. 347, 356-58 (1967); Warden v. Hayden, 387 U.S. 294, 299 (1967).

\19\Chimel v. California, 395 U.S. 752, 762-64 (1969) (limiting scope of search incident to arrest). See also United States v. United States District Court, 407 U.S. 297 (1972) (rejecting argument that it was ``reasonable'' to allow President through Attorney General to authorize warrantless electronic surveillance of persons thought to be endangering the national security); Katz v. United States, 389 U.S. 347 (1967) (although officers acted with great self-restraint and reasonably in engaging in electronic seizures of conversations from telephone booth, self-imposition was not enough and magistrate's judgment required); Preston v. United States, 376 U.S. 364 (1964) (warrantless search of seized automobile not justified because not within rationale of exceptions to warrant clause). There were exceptions, e.g., Cooper v. California, 386 U.S. 58 (1967) (warrantless search of impounded car was reasonable); United States v. Harris, 390 U.S. 234 (1968) (warrantless inventory search of automobile).

During the 1970s the Court was closely divided on which standard to apply.\20\ For a while, the balance tipped in favor of the view that warrantless searches are per se unreasonable, with a few carefully prescribed exceptions.\21\ Gradually, guided by the variable expectation of privacy approach to coverage of the Fourth Amendment, the Court broadened its view of permissible exceptions and of the scope of those exceptions.\22\

NOTES:

\21\E.g., G.M. Leasing Corp. v. United States, 429 U.S. 338, 352-53 (1977) (unanimous); Marshall v. Barlow's, Inc., 436 U.S. 307, 312 (1978); Michigan v. Tyler, 436 U.S. 499, 506 (1978); Mincey v. Arizona, 437 U.S. 385, 390 (1978) (unanimous); Arkansas v. Sanders, 442 U.S. 743, 758 (1979); United States v. Ross, 456 U.S. 798, 824-25 (1982).

\22\E.g., Chambers v. Maroney, 399 U.S. 42 (1970) (warrantless search of automobile taken to police station); Texas v. White, 423 U.S. 67 (1975) (same); New York v. Belton, 453 U.S. 454 (1981) (search incident to arrest); United States v. Ross, 456 U.S. 798 (1982) (automobile search at scene). On the other hand, the warrant-based standard did preclude a number of warrantless searches. E.g., Almeida- Sanchez v. United States, 413 U.S. 266 (1973) (warrantless stop and search of auto by roving patrol near border); Marshall v. Barlow's, Inc., 436 U.S. 307 (1978) (warrantless administrative inspection of business premises); Mincey v. Arizona, 437 U.S. 385 (1978) (warrantless search of home that was ``homicide scene'').

By 1992, it was no longer the case that the ``warrants-with- narrow-exceptions'' standard normally prevails over a ``reasonableness'' approach.\23\ Exceptions to the warrant requirement have multiplied, tending to confine application of the requirement to cases that are exclusively ``criminal'' in nature. And even within that core area of ``criminal'' cases, some exceptions have been broadened. The most important category of exception is that of administrative searches justified by ``special needs beyond the normal need for law enforcement.'' Under this general rubric the Court has upheld warrantless searches by administrative authorities in public schools, government offices, and prisons, and has upheld drug testing of public and transportation employees.\24\ In all of these instances the warrant and probable cause requirements are dispensed with in favor of a reasonableness standard that balances the government's regulatory interest against the individual's privacy interest; in all of these instances the government's interest has been found to outweigh the individual's. The broad scope of the administrative search exception is evidenced by the fact that an overlap between law enforcement objectives and administrative ``special needs'' does not result in application of the warrant requirement; instead, the Court has upheld warrantless inspection of automobile junkyards and dismantling operations in spite of the strong law enforcement component of the regulation.\25\ In the law enforcement context, where search by warrant is still the general rule, there has also been some loosening of the requirement. For example, the Court has shifted focus from whether exigent circumstances justified failure to obtain a warrant, to whether an officer had a ``reasonable'' belief that an exception to the warrant requirement applied;\26\ in another case the scope of a valid search ``incident to arrest,'' once limited to areas within the immediate reach of the arrested suspect, was expanded to a ``protective sweep'' of the entire home if arresting officers have a reasonable belief that the home harbors an individual who may pose a danger.\27\

NOTES:

\24\See various headings infra under the general heading ``Valid Searches and Seizures Without Warrants.''

\25\New York v. Burger, 482 U.S. 691 (1987).

\26\Illinois v. Rodriguez, 497 U.S. 177 (1990).

\27\Maryland v. Buie, 494 U.S. 325 (1990).

Another matter of scope recently addressed by the Court is the category of persons protected by the Fourth Amendment--who constitutes ``the people.'' This phrase, the Court determined, ``refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with [the United States] to be considered part of that community.''\28\ The Fourth Amendment therefore does not apply to the search and seizure by United States agents of property that is owned by a nonresident alien and located in a foreign country. The community of protected people includes U.S. citizens who go abroad, and aliens who have voluntarily entered U.S. territory and developed substantial connections with this country. There is no resulting broad principle, however, that the Fourth Amendment constrains federal officials wherever and against whomever they act.

NOTE:

The Interest Protected. -- For the Fourth Amendment to be applicable to a particular set of facts, there must be a ``search'' and a ``seizure,'' occurring typically in a criminal case, with a subsequent attempt to use judicially what was seized. Whether there was a search and seizure within the meaning of the Amendment, whether a complainant's interests were constitutionally infringed, will often turn upon consideration of his interest and whether it was officially abused. What does the Amendment protect? Under the common law, there was no doubt. Said Lord Camden in Entick v. Carrington:\29\ ``The great end for which men entered in society was to secure their property. That right is preserved sacred and incommunicable in all instances where it has not been taken away or abridged by some public law for the good of the whole. . . . By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set foot upon my ground without my license but he is liable to an action though the damage be nothing . . . .'' Protection of property interests as the basis of the Fourth Amendment found easy acceptance in the Supreme Court\30\ and that acceptance controlled decision in numerous cases.\31\ For example, in Olmstead v. United States,\32\ one of the two premises underlying the holding that wiretapping was not covered by the Amendment was that there had been no actual physical invasion of the defendant's premises; where there had been an invasion, a technical trespass, electronic surveillance was deemed subject to Fourth Amendment restrictions.\33\ The Court later rejected this approach, however. ``The premise that property interests control the right of the Government to search and seize has been discredited. . . . We have recognized that the principal object of the Fourth Amendment is the protection of privacy rather than property, and have increasingly discarded fictional and procedural barriers rested on property concepts.''\34\ Thus, because the Amendment ``protects people, not places,'' the requirement of actual physical trespass is dispensed with and electronic surveillance was made subject to the Amendment's requirements.\35\

NOTES:

\30\Boyd v. United States, 116 U.S. 616, 627 (1886); Adams v. New York, 192 U.S. 585, 598 (1904).

\31\Thus, the rule that ``mere evidence'' could not be seized but rather only the fruits of crime, its instrumentalities, or contraband, turned upon the question of the right of the public to possess the materials or the police power to make possession by the possessor unlawful. Gouled v. United States, 255 U.S. 298 (1921), overruled by Warden v. Hayden, 387 U.S. 294 (1967). See also Davis v. United States, 328 U.S. 582 (1946). Standing to contest unlawful searches and seizures was based upon property interests, United States v. Jeffers, 342 U.S. 48 (1951); Jones v. United States, 362 U.S. 257 (1960), as well as decision upon the validity of a consent to search. Chapman v. United States, 365 U.S. 610 (1961); Stoner v. California, 376 U.S. 483 (1964); Frazier v. Culp, 394 U.S. 731, 740 (1969).

\32\277 U.S. 438 (1928). See also Goldman v. United States, 316 U.S. 129 (1942) (detectaphone placed against wall of adjoining room; no search and seizure).

\33\Silverman v. United States, 365 U.S. 505 (1961) (spike mike pushed through a party wall until it hit a heating duct).

\34\Warden v. Hayden, 387 U.S. 294, 304 (1967).

\35\Katz v. United States, 389 U.S. 347, 353 (1967). But see California v. Hodari D., 499 U.S. 621, 626 (1991) (Fourth Amendment ``seizure'' of the person is the same as a common law arrest; there must be either application of physical force or submission to the assertion of authority).

The test propounded in Katz is whether there is an expectation of privacy upon which one may ``justifiably'' rely.\36\ ``What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.''\37\ That is, the ``capacity to claim the protection of the Amendment depends not upon a property right in the invaded place but upon whether the area was one in which there was reasonable expectation of freedom from governmental intrusion.''\38\

NOTES:

\37\Id. at 351-52.

\38\Mancusi v. DeForte, 392 U.S. 364, 368 (1968) (official had a reasonable expectation of privacy in an office he shared with others, although he owned neither the premises nor the papers seized). Minnesota v. Olson, 495 U.S. 91 (1990) (overnight guest in home has a reasonable expectation of privacy). Cf. Rakas v. Illinois, 439 U.S. 128 (1978).

The two-part test that Justice Harlan suggested in Katz\39\ has purported to guide the Court in its deliberations, but its consequences are unclear. On the one hand, there is no difference in result between many of the old cases premised on property concepts and more recent cases in which the reasonable expectation of privacy flows from ownership concepts.\40\ On the other hand, many other cases have presented close questions that have sharply divided the Court.\41\ The first element, the ``subjective expectation'' of privacy, has largely dwindled as a viable standard, because, as Justice Harlan noted in a subsequent case, ``our expectations, and the risks we assume, are in large part reflections of laws that translate into rules the customs and values of the past and present.''\42\ As for the second element, whether one has a ``legitimate'' expectation of privacy that society finds ``reasonable'' to recognize, the Court has said that ``[l]egitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.''\43\ Thus, protection of the home is at the apex of Fourth Amendment coverage because of the right associated with ownership to exclude others;\44\ but ownership of other things, i.e., automobiles, does not carry a similar high degree of protection.\45\ That a person has taken normal precautions to maintain his privacy, that is, precautions customarily taken by those seeking to exclude others, is usually a significant factor in determining legitimacy of expectation.\46\ Some expectations, the Court has held, are simply not those which society is prepared to accept.\47\ While perhaps not clearly expressed in the opinions, what seems to have emerged is a balancing standard, which requires ``an assessing of the nature of a particular practice and the likely extent of its impact on the individual's sense of security balanced against the utility of the conduct as a technique of law enforcement.'' As the intrusions grow more extensive and significantly jeopardize the sense of security of the individual, greater restraint of police officers through the warrant requirement may be deemed necessary.\48\ On the other hand, the Court's solicitude for law enforcement objectives may tilt the balance in the other direction.

NOTES:

\40\E.g., Alderman v. United States, 394 U.S. 165 (1969) (home owner could object to electronic surveillance of conversations emanating from his home, even though he was not party to the conversations).

\41\E.g., Rakas v. Illinois, 439 U.S. 128 (1978) (4-1-4 decision: passengers in automobile who own neither the car nor the property seized had no legitimate expectation of privacy in areas searched).

\42\United States v. White, 401 U.S. 745, 786 (1971). See Smith v. Maryland, 442 U.S. 735, 740 n.5 (1979) (government could not condition ``subjective expectations'' by, say, announcing that henceforth all homes would be subject to warrantless entry, and thus destroy the ``legitimate expectation of privacy'').

\43\Rakas v. Illinois, 439 U.S. 128, 144 n.12 (1978).

\44\E.g., Alderman v. United States, 394 U.S. 165 (1969); Mincey v. Arizona, 437 U.S. 385 (1978); Payton v. New York, 445 U.S. 573 (1980).

\45\E.g., United States v. Ross, 456 U.S. 798 (1982). See also Donovan v. Dewey, 452 U.S. 594 (1981) (commercial premises); Maryland v. Macon, 472 U.S. 463 (1985) (no legitimate expectation of privacy in denying to undercover officers allegedly obscene materials offered to public in bookstore).

\46\E.g., United States v. Chadwick, 433 U.S. 1, 11 (1977); Katz v. United States, 389 U.S. 347, 352 (1967). But cf. South Dakota v. Opperman, 428 U.S. 364 (1976) (no legitimate expectation of privacy in automobile left with doors locked and windows rolled up). In Rawlings v. Kentucky, 448 U.S. 98 (1980), the fact that defendant had dumped a cache of drugs into his companion's purse, having known her for only a few days and knowing others had access to the purse, was taken to establish that he had no legitimate expectation the purse would be free from intrusion.

\47\E.g., United States v. Miller, 425 U.S. 435 (1976) (bank records); Smith v. Maryland, 442 U.S. 735 (1979) (numbers dialed from one's telephone); Hudson v. Palmer, 468 U.S. 517 (1984) (prison cell); Illinois v. Andreas, 463 U.S. 765 (1983) (shipping container opened and inspected by customs agents and resealed and delivered to the addressee); California v. Greenwood, 486 U.S. 35 (1988) (garbage in sealed plastic bags left at curb for collection). \48\United States v. White, 401 U.S. 745, 786-87 (1971) (Justice Harlan dissenting).

Application of this balancing test, because of the Court's weighing in of law enforcement investigative needs\49\ and the Court's subjective evaluation of privacy needs, has led to the creation of a two-tier or sliding-tier scale of privacy interests. The privacy test was originally designed to permit a determination that a Fourth Amendment protected interest had been invaded.\50\ If it had been, then ordinarily a warrant was required, subject only to the narrowly defined exceptions, and the scope of the search under those exceptions was ``strictly tied to and justified by the circumstances which rendered its initiation permissible.''\51\ But the Court now uses the test to determine whether the interest invaded is important or persuasive enough so that a warrant is required to justify it;\52\ if the individual has a lesser expectation of privacy, then the invasion may be justified, absent a warrant, by the reasonableness of the intrusion.\53\ Exceptions to the warrant requirement are no longer evaluated solely by the justifications for the exception, e.g., exigent circumstances, and the scope of the search is no longer tied to and limited by the justification for the exception.\54\ The result has been a considerable expansion, beyond what existed prior to Katz, of the power of police and other authorities to conduct searches.

NOTES:

\50\Katz v. United States, 389 U. S. 347, 351-52 (1967).

\51\Terry v. Ohio, 392 U.S. 1, 19 (1968).

\52\The prime example is the home, so that for entries either to search or to arrest, ``the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.'' Payton v. New York, 445 U.S. 573, 590 (1980); Steagald v. United States, 451 U.S. 204, 212 (1981). And see Mincey v. Arizona, 437 U.S. 385 (1978).

\53\One has a diminished expectation of privacy in automobiles. Arkansas v. Sanders, 442 U.S. 753, 761 (1979) (collecting cases); United States v. Ross, 456 U.S. 798, 804-09 (1982). A person's expectation of privacy in personal luggage and other closed containers is substantially greater than in an automobile, United States v. Chadwick, 433 U.S. 1, 13 (1977); Arkansas v. Sanders, 442 U.S. 753 (1979), although if the luggage or container is found in an automobile as to which there exists probable cause to search, the legitimate expectancy diminishes accordingly. United States v. Ross, supra. There is also a diminished expectation of privacy in a mobile home parked in a parking lot and licensed for vehicular travel. California v. Carney, 471 U.S. 386 (1985) (leaving open the question of whether the automobile exception also applies to a ``mobile'' home being used as a residence and not adapted for immediate vehicular use).

\54\E.g., Texas v. White, 423 U.S. 67 (1975) (if probable cause to search automobile existed at scene, it can be removed to station and searched without warrant); United States v. Robinson, 414 U.S. 218 (1973) (once an arrest has been validly made, search pursuant thereto is so minimally intrusive in addition that scope of search is not limited by necessity of security of officer); United States v. Edwards, 415 U.S. 800 (1974) (incarcerated suspect; officers need no warrant to take his clothes for test because little additional intrusion). But see Ybarra v. Illinois, 444 U.S. 85 (1979) (officers on premises to execute search warrant of premises may not without more search persons found on premises).

Arrests and Other Detentions. -- That the Fourth Amendment was intended to protect against arbitrary arrests as well as against unreasonable searches was early assumed by Chief Justice Marshall\55\ and is now established law.\56\ At the common law, it was proper to arrest one who had committed a breach of the peace or a felony without a warrant,\57\ and this history is reflected in the fact that the Fourth Amendment is satisfied if the arrest is made in a public place on probable cause, regardless of whether a warrant has been obtained.\58\ However, in order to effectuate an arrest in the home, absent consent or exigent circumstances, police officers must have a warrant.\59\ The Fourth Amendment applies to ``seizures'' and it is not necessary that a detention be a formal arrest in order to bring to bear the requirements of warrants or probable cause in instances in which warrants may be forgone.\60\ Some objective justification must be shown to validate all seizures of the person, including seizures that involve only a brief detention short of arrest, although the nature of the detention will determine whether probable cause or some reasonable and articulable suspicion is necessary.\61\

NOTES:

\56\Giordenello v. United States, 357 U.S. 480, 485-86 (1958); United States v. Watson, 423 U.S. 411, 416-18 (1976); Payton v. New York, 445 U.S. 573, 583-86 (1980); Steagald v. United States, 451 U.S. 204, 211-13 (1981).

\57\1 J. Stephen, A History of the Criminal Law of England 193 (1883).

\58\United States v. Watson, 423 U.S. 411 (1976). See also United States v. Santana, 427 U.S. 38 (1976) (sustaining warrantless arrest of suspect in her home when she was initially approached in her doorway and then retreated into house). However, a suspect arrested on probable cause but without a warrant is entitled to a prompt, nonadversary hearing before a magistrate under procedures designed to provide a fair and reliable determination of probable cause in order to keep the arrestee in custody. Gerstein v. Pugh, 420 U.S. 103 (1975).

\59\Payton v. New York, 445 U.S. 573 (1980) (voiding state law authorizing police to enter private residence without a warrant to make an arrest); Steagald v. United States, 451 U.S. 204 (1981) (officers with arrest warrant for A entered B's home without search warrant and discovered incriminating evidence; violated Fourth Amendment in absence of warrant to search the home); Hayes v. Florida, 470 U.S. 811 (1985) (officers went to suspect's home and took him to police station for fingerprinting).

\60\United States v. Mendenhall, 446 U.S. 544, 554 (1980) (opinion of Justice Stewart) (``[A] person has been `seized' within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave''). See also Reid v. Georgia, 448 U.S. 438 (1980); United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975); Terry v. Ohio, 392 U.S. 1, 16-19 (1968). Apprehension by the use of deadly force is a seizure subject to the Fourth Amendment's reasonableness requirement. See, e.g., Tennessee v. Garner, 471 U.S. 1 (1985) (police officer's fatal shooting of a fleeing suspect); Brower v. County of Inyo, 489 U.S. 593 (1989) (police roadblock designed to end car chase with fatal crash).

\61\Adams v. Williams, 407 U.S. 143, 146-49 (1972); Delaware v. Prouse, 440 U.S. 648, 661 (1979); Brown v. Texas, 443 U.S. 47, 51 (1979); Reid v. Georgia, 448 U.S. 438, 440 (1980); Michigan v. Summers, 452 U.S. 692 (1981).

Until relatively recently, the legality of arrests was seldom litigated in the Supreme Court because of the rule that a person detained pursuant to an arbitrary seizure--unlike evidence obtained as a result of an unlawful search--remains subject to custody and presentation to court.\62\ But the application of self-incrimination and other exclusionary rules to the States and the heightening of their scope in state and federal cases alike brought forth the rule that verbal evidence, confessions, and other admissions, like all derivative evidence obtained as a result of unlawful seizures, could be excluded.\63\ Thus, a confession made by one illegally in custody must be suppressed, unless the causal connection between the illegal arrest and the confession had become so attenuated that the latter should not be deemed ``tainted'' by the former.\64\ Similarly, fingerprints and other physical evidence obtained as a result of an unlawful arrest must be suppressed.\65\

NOTES:

\63\Wong Sun v. United States, 371 U.S. 471 (1963). Such evidence is the ``fruit of the poisonous tree,'' Nardone v. United States, 308 U.S. 338, 341 (1939), that is, evidence derived from the original illegality. Previously, if confessions were voluntary for purposes of the self-incrimination clause, they were admissible notwithstanding any prior official illegality. Colombe v. Connecticut, 367 U.S. 568 (1961).

\64\Although there is a presumption that the illegal arrest is the cause of the subsequent confession, the presumption is rebuttable by a showing that the confession is the result of ``an intervening . . . act of free will.'' Wong Sun v. United States, 371 U.S. 471, 486 (1963). The factors used to determine whether the taint has been dissipated are the time between the illegal arrest and the confession, whether there were intervening circumstances (such as consultation with others, Miranda warnings, etc.), and the degree of flagrancy and purposefulness of the official conduct. Brown v. Illinois, 422 U.S. 590 (1975) (Miranda warnings alone insufficient); Dunaway v. New York, 442 U.S. 200 (1979); Taylor v. Alabama, 457 U.S. 687 (1982). In Johnson v. Louisiana, 406 U.S. 356 (1972), the fact that the suspect had been taken before a magistrate who advised him of his rights and set bail, after which he confessed, established a sufficient intervening circumstance.

\65\Davis v. Mississippi, 394 U.S. 721 (1969); Taylor v. Alabama, 457 U.S. 687 (1982). In United States v. Crews, 445 U.S. 463 (1980), the Court, unanimously but for a variety of reasons, held proper the identification in court of a defendant, who had been wrongly arrested without probable cause, by the crime victim. The court identification was not tainted by either the arrest or the subsequent in-custody identification. See also Hayes v. Florida, 470 U.S. 811, 815 (1985), suggesting in dictum that a ``narrowly circumscribed procedure for fingerprinting detentions on less than probable cause'' may be permissible.

Searches and Inspections in Noncriminal Cases. -- Certain early cases held that the Fourth Amendment was applicable only when a search was undertaken for criminal investigatory purposes,\66\ and the Supreme Court until recently employed a reasonableness test for such searches without requiring either a warrant or probable cause in the absence of a warrant.\67\ But in 1967, the Court held in two cases that administrative inspections to detect building code violations must be undertaken pursuant to warrant if the occupant objects.\68\ ``We may agree that a routine inspection of the physical condition of private property is a less hostile intrusion than the typical policeman's search for the fruits and instrumentalities of crime. . . . But we cannot agree that the Fourth Amendment interests at stake in these inspection cases are merely `peripheral.' It is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.''\69\ Certain administrative inspections utilized to enforce regulatory schemes with regard to such items as alcohol and firearms are, however, exempt from the Fourth Amendment warrant requirement and may be authorized simply by statute.\70\

NOTES:

\67\Abel v. United States, 362 U.S. 217 (1960); Frank v. Maryland, 359 U.S. 360 (1959); Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186 (1946).

\68\Camara v. Municipal Court, 387 U.S. 523 (1967) (home); See v. City of Seattle, 387 U.S. 541 (1967) (commercial warehouse).

\69\Camara v. Municipal Court, 387 U.S. 523, 530 (1967).

\70\Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970); United States v. Biswell, 406 U.S. 311 (1972). Colonnade, involving liquor, was based on the long history of close supervision of the industry. Biswell, involving firearms, introduced factors that were subsequently to prove significant. Thus, while the statute was of recent enactment, firearms constituted a pervasively regulated industry, so that dealers had no reasonable expectation of privacy, inasmuch as the law provides for regular inspections. Further, warrantless inspections were needed for effective enforcement of the statute.

Camara and See were reaffirmed in Marshall v. Barlow's, Inc.,\71\ in which the Court held violative of the Fourth Amendment a provision of the Occupational Safety and Health Act which authorized federal inspectors to search the work area of any employment facility covered by the Act for safety hazards and violations of regulations, without a warrant or other legal process. The liquor and firearms exceptions were distinguished on the basis that those industries had a long tradition of close government supervision, so that a person in those businesses gave up his privacy expectations. But OSHA was a relatively recent statute and it regulated practically every business in or affecting interstate commerce; it was not open to a legislature to extend regulation and then follow it with warrantless inspections. Additionally, OSHA inspectors had unbounded discretion in choosing which businesses to inspect and when to do so, leaving businesses at the mercy of possibly arbitrary actions and certainly with no assurances as to limitation on scope and standards of inspections. Further, warrantless inspections were not necessary to serve an important governmental interest, inasmuch as most businesses would consent to inspection and it was not inconvenient to require OSHA to resort to an administrative warrant in order to inspect sites where consent was refused.\72\

NOTES:

\72\Administrative warrants issued on the basis of less than probable cause but only on a showing that a specific business had been chosen for inspection on the basis of a general administrative plan would suffice. Even without a necessity for probable cause, the requirement would assure the interposition of a neutral officer to establish that the inspection was reasonable and was properly authorized. Id. at 321, 323. The dissenters objected that the warrant clause was being constitutionally diluted. Id. at 325. Administrative warrants were approved also in Camara v. Municipal Court, 387 U.S. 523, 538 (1967). Previously, one of the reasons given for finding administrative and noncriminal inspections not covered by the Fourth Amendment was the fact that the warrant clause would be as rigorously applied to them as to criminal searches and seizures. Frank v. Maryland, 359 U.S. 360, 373 (1959). See also Almeida-Sanchez v. United States, 413 U.S. 266, 275 (1973) (Justice Powell concurring) (suggesting a similar administrative warrant procedure empowering police and immigration officers to conduct roving searches of automobiles in areas near the Nation's borders); id. at 270 n.3 (indicating that majority Jusitces were divided on the validity of such area search warrants); id. at 288 (dissenting Justice White indicating approval); United States v. Martinez-Fuerte, 428 U.S. 543, 547 n.2, 562 n.15 (1976).

In Donovan v. Dewey,\73\ however, Barlow's was substantially limited and a new standard emerged permitting extensive governmental inspection of commercial property,\74\ absent warrants. Under the Federal Mine Safety and Health Act, governing underground and surface mines (including stone quarries), federal officers are directed to inspect underground mines at least four times a year and surface mines at least twice a year, pursuant to extensive regulations as to standards of safety. The statute specifically provides for absence of advanced notice and requires the Secretary of Labor to institute court actions for injunctive and other relief in cases in which inspectors are denied admission. Sustaining the statute, the Court proclaimed that government had a ``greater latitude'' to conduct warrantless inspections of commercial property than of homes, because of ``the fact that the expectation of privacy that the owner of commercial property enjoys in such property differs significantly from the sanctity accorded an individual's home, and that this privacy interest may, in certain circumstances, be adequately protected by regulatory schemes authorizing warrantless inspections.''\75\

NOTES:

\74\There is no suggestion that warrantless inspections of homes is broadened. Id. at 598, or that warrantless entry under exigent circumstances is curtailed. See, e.g., Michigan v. Tyler, 436 U.S. 499 (1978) (no warrant required for entry by firefighters to fight fire; once there, firefighters may remain for reasonable time to investigate the cause of the fire).

\75\Donovan v. Dewey, 452 U.S. 594, 598-99 (1981).

Dewey was distinguished from Barlow's in several ways. First, Dewey involved a single industry, unlike the broad coverage in Barlow's. Second, the OSHA statute gave minimal direction to inspectors as to time, scope, and frequency of inspections, while FMSHA specified a regular number of inspections pursuant to standards. Third, deference was due Congress' determination that unannounced inspections were necessary if the safety laws were to be effectively enforced. Fourth, FMSHA provided businesses the opportunity to contest the search by resisting in the civil proceeding the Secretary had to bring if consent was denied.\76\ The standard of a long tradition of government supervision permitting warrantless inspections was dispensed with, because it would lead to ``absurd results,'' in that new and emerging industries posing great hazards would escape regulation.\77\ Dewey suggests, therefore, that warrantless inspections of commercial establishments are permissible so long as the legislature carefully drafts its statute.

NOTES:

\77\Donovan v. Dewey, 452 U.S. 594, 606 (1981). Duration of regulation will now be a factor in assessing the legitimate expectation of privacy of a business. Ibid. Accord, New York v. Burger, 482 U.S. 691 (1987) (although duration of regulation of vehicle dismantling was relatively brief, history of regulation of junk business generally was lengthy, and current regulation of dismantling was extensive).

Dewey was applied in New York v. Burger\78\ to inspection of automobile junkyards and vehicle dismantling operations, a situation where there is considerable overlap between administrative and penal objectives. Applying the Dewey three-part test, the Court concluded that New York has a substantial interest in stemming the tide of automobile thefts, that regulation of vehicle dismantling reasonably serves that interest, and that statutory safeguards provided adequate substitute for a warrant requirement. The Court rejected the suggestion that the warrantless inspection provisions were designed as an expedient means of enforcing the penal laws, and instead saw narrower, valid regulatory purposes to be served: e.g., establishing a system for tracking stolen automobiles and parts, and enhancing the ability of legitimate businesses to compete. ``[A] State can address a major social problem both by way of an administrative scheme and through penal sanctions,'' the Court declared; in such circumstances warrantless administrative searches are permissible in spite of the fact that evidence of criminal activity may well be uncovered in the process.\79\

NOTES:

\79\482 U.S. at 712 (emphasis original).

In other contexts, the Court has also elaborated the constitutional requirements affecting administrative inspections and searches. Thus, in Michigan v. Tyler,\80\ it subdivided the process by which an investigation of the cause of a fire may be conducted. Entry to fight the fire is, of course, an exception based on exigent circumstances, and no warrant or consent is needed; firemen on the scene may seize evidence relating to the cause under the plain view doctrine. Additional entries to investigate the cause of the fire must be made pursuant to warrant procedures governing administrative searches. Evidence of arson discovered in the course of such an administrative inspection is admissible at trial, but if the investigator finds probable cause to believe that arson has occurred and requires further access to gather evidence for a possible prosecution, he must obtain a criminal search warrant.\81\

NOTES:

\81\The Court also held that, after the fire was extinguished, if fire investigators were unable to proceed at the moment, because of dark, steam, and smoke, it was proper for them to leave and return at daylight without any necessity of complying with its mandate for administrative or criminal warrants. Id. at 510-11. But cf. Michigan v. Clifford, 464 U.S. 287 (1984) (no such justification for search of private residence begun at 1:30 p.m. when fire had been extinguished at 7 a.m.).

One curious case has approved a system of ``home visits'' by welfare caseworkers, in which the recipients are required to admit the worker or lose eligibility for benefits.\82\

NOTE:

In addition, there are now a number of situations, some of them analogous to administrative searches, where ```special needs' beyond normal law enforcement . . . justify departures from the usual warrant and probable cause requirements.''\83\ In one of these cases the Court, without acknowledging the magnitude of the leap from one context to another, has taken the Dewey/Burger rationale--developed to justify warrantless searches of business establishments--and applied it to justify the significant intrusion into personal privacy represented by urinalysis drug testing. Because of the history of pervasive regulation of the railroad industry, the Court reasoned, railroad employees have a diminished expectation of privacy that makes mandatory urinalysis less intrusive and more reasonable.\84\

NOTES:

\84\Skinner, supra n.83, 489 U.S. at 627.

With respect to automobiles, the holdings are mixed. Random stops of automobiles to check drivers' licenses, vehicle registrations, and safety conditions were condemned as too intrusive; the degree to which random stops would advance the legitimate governmental interests involved did not outweigh the individual's legitimate expectations of privacy.\85\ On the other hand, in South Dakota v. Opperman,\86\ the Court sustained the admission of evidence found when police impounded an automobile from a public street for multiple parking violations and entered the car to secure and inventory valuables for safekeeping. Marijuana was discovered in the glove compartment.

NOTES:

\86\428 U.S. 364 (1976). See also Cady v. Dombrowski, 413 U.S. 433 (1973) (sustaining admission of criminal evidence found when police conducted a warrantless search of an out-of-state policeman's automobile following an accident, in order to find and safeguard his service revolver). The Court in both cases emphasized the reduced expectation of privacy in automobiles and the noncriminal purposes of the searches.

Emphasis upon the necessity of warrants places the judgment of an independent magistrate between law enforcement officers and the privacy of citizens, authorizes invasion of that privacy only upon a showing that constitutes probable cause, and limits that invasion by specification of the person to be seized, the place to be searched, and the evidence to be sought.\87\ While a warrant is issued ex parte, its validity may be contested in a subsequent suppression hearing if incriminating evidence is found and a prosecution is brought.\88\

NOTES:

\88\Most often, in the suppression hearings, the defendant will challenge the sufficiency of the evidence presented to the magistrate to constitute probable cause. Spinelli v. United States, 393 U.S. 410 (1969); United States v. Harris, 403 U.S. 573 (1971). He may challenge the veracity of the statements used by the police to procure the warrant and otherwise contest the accuracy of the allegations going to establish probable cause, but the Court has carefully hedged his ability to do so. Franks v. Delaware, 438 U.S. 154 (1978). He may also question the power of the official issuing the warrant, Coolidge v. New Hampshire, 403 U.S. 443, 449-53 (1971), or the specificity of the particularity required. Marron v. United States, 275 U.S. 192 (1927).

Issuance by Neutral Magistrate. -- In numerous cases, the Court has referred to the necessity that warrants be issued by a ``judicial officer'' or a ``magistrate.''\89\ ``The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers.''\90\ These cases do not mean that only a judge or an official who is a lawyer may issue warrants, but they do stand for two tests of the validity of the power of the issuing party to so act. ``He must be neutral and detached, and he must be capable of determining whether probable cause exists for the requested arrest or search.''\91\ The first test cannot be met when the issuing party is himself engaged in law enforcement activities,\92\ but the Court has not required that an issuing party have that independence of tenure and guarantee of salary which characterizes federal judges.\93\ And in passing on the second test, the Court has been essentially pragmatic in assessing whether the issuing party possesses the capacity to determine probable cause.\94\

NOTES:

\90\Johnson v. United States, 333 U.S. 10, 13-14 (1948).

\91\Shadwick v. City of Tampa, 407 U.S. 345, 354 (1972).

\92\Coolidge v. New Hampshire, 403 U.S. 443, 449-51 (1971) (warrant issued by state attorney general who was leading investigation and who as a justice of the peace was authorized to issue warrants); Mancusi v. DeForte, 392 U.S. 364, 370-72 (1968) (subpoena issued by district attorney could not qualify as a valid search warrant); Lo-Ji Sales v. New York, 442 U.S. 319 (1979) (justice of the peace issued open-ended search warrant for obscene materials, accompanied police during its execution, and made probable cause determinations at the scene as to particular items).

\93\Jones v. United States, 362 U.S. 257, 270-71 (1960) (approving issuance of warrants by United States Commissioners, many of whom were not lawyers and none of whom had any guarantees of tenure and salary); Shadwick v. City of Tampa, 407 U.S. 345 (1972) (approving issuance of arrest warrants for violation of city ordinances by city clerks who were assigned to and supervised by municipal court judges). The Court reserved the question ``whether a State may lodge warrant authority in someone entirely outside the sphere of the judicial branch. Many persons may not qualify as the kind of `public civil officers' we have come to associate with the term `magistrate.' Had the Tampa clerk been entirely divorced from a judicial position, this case would have presented different considerations.'' Id. at 352. \94\Id. at 350-54 (placing on defendant the burden of demonstrating that the issuing official lacks capacity to determine probable cause). See also Connally v. Georgia, 429 U.S. 245 (1977) (unsalaried justice of the peace who receives a sum of money for each warrant issued but nothing for reviewing and denying a warrant not sufficiently detached).

Probable Cause. -- The concept of ``probable cause'' is central to the meaning of the warrant clause. Neither the Fourth Amendment nor the federal statutory provisions relevant to the area define ``probable cause;'' the definition is entirely a judicial construct. An applicant for a warrant must present to the magistrate facts sufficient to enable the officer himself to make a determination of probable cause. ``In determining what is probable cause . . . [w]e are concerned only with the question whether the affiant had reasonable grounds at the time of his affidavit . . . for the belief that the law was being violated on the premises to be searched; and if the apparent facts set out in the affidavit are such that a reasonably discreet and prudent man would be led to believe that there was a commission of the offense charged, there is probable cause justifying the issuance of a warrant.''\95\ Probable cause is to be determined according to ``the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.''\96\ Warrants are favored in the law and utilization of them will not be thwarted by a hypertechnical reading of the supporting affidavit and supporting testimony.\97\ For the same reason, reviewing courts will accept evidence of a less ``judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant.''\98\ Courts will sustain the determination of probable cause so long as ``there was substantial basis for [the magistrate] to conclude that'' there was probable cause.\99\

NOTES:

\96\Brinegar v. United States, 338 U.S. 160, 175 (1949).

\97\United States v. Ventresca, 380 U.S. 102, 108-09 (1965).

\98\Jones v. United States, 362 U.S. 257, 270-71 (1960).

\99\Aguilar v. Texas, 378 U.S. 108, 111 (1964). It must be emphasized that the issuing party ``must judge for himself the persuasiveness of the facts relied on by a [complainant] to show probable cause.'' Giordenello v. United States, 357 U.S. 480, 486 (1958). An insufficient affidavit cannot be rehabilitated by testimony after issuance concerning information possessed by the affiant but not disclosed to the magistrate. Whiteley v. Warden, 401 U.S. 560 (1971).

Much litigation has concerned the sufficiency of the complaint to establish probable cause. Mere conclusory assertions are not enough.\100\ In United States v. Ventresca,\101\ however, an affidavit by a law enforcement officer asserting his belief that an illegal distillery was being operated in a certain place, explaining that the belief was based upon his own observations and upon those of fellow investigators, and detailing a substantial amount of these personal observations clearly supporting the stated belief, was held to be sufficient to constitute probable cause. ``Recital of some of the underlying circumstances in the affidavit is essential,'' the Court said, observing that ``where these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause,'' the reliance on the warrant process should not be deterred by insistence on too stringent a showing.\102\

NOTES:

\101\380 U.S. 102 (1965).

\102\Id. at 109.

Requirements for establishing probable cause through reliance on information received from an informant has divided the Court in several cases. Although involving a warrantless arrest, Draper v. United States\103\ may be said to have begun the line of cases. A previously reliable, named informant reported to an officer that the defendant would arrive with narcotics on a particular train, and described the clothes he would be wearing and the bag he would be carrying; the informant, however, gave no basis for his information. FBI agents met the train, observed that the defendant fully answered the description, and arrested him. The Court held that the corroboration of part of the informer's tip established probable cause to support the arrest. A case involving a search warrant, Jones v. United States,\104\ apparently utilized a test of considering the affidavit as a whole to see whether the tip plus the corroborating information provided a substantial basis for finding probable cause, but the affidavit also set forth the reliability of the informer and sufficient detail to indicate that the tip was based on the informant's personal observation. Aguilar v. Texas\105\ held insufficient an affidavit which merely asserted that the police had ``reliable information from a credible person'' that narcotics were in a certain place, and held that when the affiant relies on an informant's tip he must present two types of evidence to the magistrate. First, the affidavit must indicate the informant's basis of knowledge--the circumstances from which the informant concluded that evidence was present or that crimes had been committed--and, second, the affiant must present information which would permit the magistrate to decide whether or not the informant was trustworthy. Then, in Spinelli v. United States,\106\ the Court applied Aguilar in a situation in which the affidavit contained both an informant's tip and police information of a corroborating nature.

NOTES:

\104\362 U.S. 257 (1960).

\105\378 U.S. 108 (1964).

\106\393 U.S. 410 (1969). Both concurring and dissenting Justices recognized tension between Draper and Aguilar. See id. at 423 (Justice White concurring), id. at 429 (Justice Black dissenting and advocating the overruling of Aguilar).

The Court rejected the ``totality'' test derived from Jones and held that the informant's tip and the corroborating evidence must be separately considered. The tip was rejected because the affidavit contained neither any information which showed the basis of the tip nor any information which showed the informant's credibility. The corroborating evidence was rejected as insufficient because it did not establish any element of criminality but merely related to details which were innocent in themselves. No additional corroborating weight was due as a result of the bald police assertion that defendant was a known gambler, although the tip related to gambling. Returning to the totality test, however, the Court in United States v. Harris\107\ approved a warrant issued largely on an informer's tip that over a two-year period he had purchased illegal whiskey from the defendant at the defendant's residence, most recently within two weeks of the tip. The affidavit contained rather detailed information about the concealment of the whiskey, and asserted that the informer was a ``prudent person,'' that defendant had a reputation as a bootlegger, that other persons had supplied similar information about him, and that he had been found in control of illegal whiskey within the previous four years. The Court determined that the detailed nature of the tip, the personal observation thus revealed, and the fact that the informer had admitted to criminal behavior by his purchase of whiskey were sufficient to enable the magistrate to find him reliable, and that the supporting evidence, including defendant's reputation, could supplement this determination.

NOTES:

The Court expressly abandoned the two-part Aguilar-Spinelli test and returned to the ``totality of the circumstances'' approach to evaluate probable cause based on an informant's tip in Illinois v. Gates.\108\ The main defect of the two-part test, Justice Rehnquist concluded for the Court, was in treating an informant's reliability and his basis for knowledge as independent requirements. Instead, ``a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.''\109\ In evaluating probable cause, ``[t]he task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.''\110\

NOTES:

\109\462 U.S. at 213.

\110\462 U.S. at 238.

Particularity.--``The requirement that warrants shall particularily describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.''\111\ This requirement thus acts to limit the scope of the search, inasmuch as the executing officers should be limited to looking in places where the described object could be expected to be found.\112\

NOTES:

\112\``This Court has held in the past that a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope. Kremen v. United States, 353 U.S. 346 (1957); Go-Bart Importing Co. v. United States, 282 U.S. 344, 356-58 (1931); see United States v. Di Re, 332 U.S. 581, 586-87 (1948). The scope of the search must be `strictly tied to and justified by' the circumstances which rendered its initiation permissible. Warden v. Hayden, 387 U.S. 294, 310 (1967) (Mr. Justice Fortas concurring); see, e.g., Preston v. United States, 376 U.S. 364, 367-368 (1964); Agnello v. United States, 296 U.S. 20, 30-31 (1925).'' Terry v. Ohio, 392 U.S. 1, 18-19, (1968). See also Andresen v. Maryland, 427 U.S. 463, 470-82 (1976), and id. at 484, 492-93 (Justice Brennan dissenting). In Stanley v. Georgia, 394 U.S. 557, 569 (1969), Justices Stewart, Brennan, and White would have based decision on the principle that a valid warrant for gambling paraphernalia did not authorize police upon discovering motion picture films in the course of the search to project the films to learn their contents.

First Amendment Bearing on Probable Cause and Particularity. -- Where the warrant process is used to authorize seizure of books and other items entitled either to First Amendment protection or to First Amendment consideration, the Court has required government to observe more exacting standards than in other cases.\113\ Seizure of materials arguably protected by the First Amendment is a form of prior restraint that requires strict observance of the Fourth Amendment. At a minimum, a warrant is required, and additional safeguards may be required for large-scale seizures. Thus, in Marcus v. Search Warrant,\114\ the seizure of 11,000 copies of 280 publications pursuant to warrant issued ex parte by a magistrate who had not examined any of the publications but who had relied on the conclusory affidavit of a policeman was voided. Failure to scrutinize the materials and to particularize the items to be seized was deemed inadequate, and it was further noted that police ``were provided with no guide to the exercise of informed discretion, because there was no step in the procedure before seizure designed to focus searchingly on the question of obscenity.''\115\ A state procedure which was designed to comply with Marcus by the presentation of copies of books to be seized to the magistrate for his scrutiny prior to issuance of a warrant was nonetheless found inadequate by a plurality of the Court, which concluded that ``since the warrant here authorized the sheriff to seize all copies of the specified titles, and since [appellant] was not afforded a hearing on the question of the obscenity even of the seven novels [seven of 59 listed titles were reviewed by the magistrate] before the warrant issued, the procedure was . . . constitutionally deficient.''\116\ Confusion remains, however, about the necessity for and the character of prior adversary hearings on the issue of obscenity. In a later decision the Court held that, with adequate safeguards, no pre-seizure adversary hearing on the issue of obscenity is required if the film is seized not for the purpose of destruction as contraband (the purpose in Marcus and A Quantity of Books), but instead to preserve a copy for evidence.\117\ It is constitutionally permissible to seize a copy of a film pursuant to a warrant as long as there is a prompt post- seizure adversary hearing on the obscenity issue. Until there is a judicial determination of obscenity, the Court advised, the film may continue to be exhibited; if no other copy is available either a copy of it must be made from the seized film or the film itself must be returned.\118\

NOTES:

\114\367 U.S. 717 (1961). See Kingsley Books v. Brown, 354 U.S. 436 (1957).

\115\Marcus v. Search Warrant, 367 U.S. 717, 732 (1961).

\116\A Quantity of Books v. Kansas, 378 U.S. 205, 210 (1964).

\117\Heller v. New York, 413 U.S. 483 (1973).

\118\Id. at 492-93. But cf. New York v. P.J. Video, Inc., 475 U.S. 868, 875 n.6 (1986), rejecting the defendant's assertion, based on Heller, that only a single copy rather than all copies of allegedly obscene movies should have been seized pursuant to warrant.

The seizure of a film without the authority of a constitutionally sufficient warrant is invalid; seizure cannot be justified as incidental to arrest, inasmuch as the determination of obscenity may not be made by the officer himself.\119\ Nor may a warrant issue based ``solely on the conclusory assertions of the police officer without any inquiry by the [magistrate] into the factual basis for the officer's conclusions.''\120\ Instead, a warrant must be ``supported by affidavits setting forth specific facts in order that the issuing magistrate may `focus searchingly on the question of obscenity.'''\121\ This does not mean, however, that a higher standard of probable cause is required in order to obtain a warrant to seize materials protected by the First Amendment. ``Our reference in Roaden to a `higher hurdle . . . of reasonableness' was not intended to establish a `higher' standard of probable cause for the issuance of a warrant to seize books or films, but instead related to the more basic requirement, imposed by that decision, that the police not rely on the `exigency' exception to the Fourth Amendment warrant requirement, but instead obtain a warrant from a magistrate . . . .'''\122\

NOTES:

\120\Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 637 (1968) (per curiam).

\121\New York v. P.J. Video, Inc., 475 U.S. 868, 873-74 (1986) (quoting Marcus v. Search Warrant, 367 U.S. 717, 732 (1961)).

\122\New York v. P.J. Video, Inc., 475 U.S. 868, 875 n.6 (1986).

In Stanford v. Texas,\123\ a seizure of more than 2,000 books, pamphlets, and other documents pursuant to a warrant which merely authorized the seizure of books, pamphlets, and other written instruments ``concerning the Communist Party of Texas'' was voided. ``[T]he constitutional requirement that warrants must particularly describe the `things to be seized' is to be accorded the most scrupulous exactitude when the `things' are books, and the basis for their seizure is the ideas which they contain. . . . No less a standard could be faithful to First Amendment freedoms.''\124\

NOTES:

\124\Id. at 485-86. See also Marcus v. Search Warrant, 367 U.S. 717, 723 (1961).

However, the First Amendment does not bar the issuance or execution of a warrant to search a newsroom to obtain photographs of demonstrators who had injured several policemen, although the Court appeared to suggest that a magistrate asked to issue such a warrant should guard against interference with press freedoms through limits on type, scope, and intrusiveness of the search.\125\

NOTE:

Property Subject to Seizure. -- There has never been any doubt that search warrants could be issued for the seizure of contraband and the fruits and instrumentalities of crime.\126\ But in Gouled v. United States,\127\ a unanimous Court limited the classes of property subject to seizures to these three and refused to permit a seizure of ``mere evidence,'' in this instance defendant's papers which were to be used as evidence against him at trial. The Court recognized that there was ``no special sanctity in papers, as distinguished from other forms of property, to render them immune from search and seizure,''\128\ but their character as evidence rendered them immune. This immunity ``was based upon the dual, related premises that historically the right to search for and seize property depended upon the assertion by the Government of a valid claim of superior interest, and that it was not enough that the purpose of the search and seizure was to obtain evidence to use in apprehending and convicting criminals.''\129\ More evaded than followed, the ``mere evidence'' rule was overturned in 1967.\130\ It is now settled that such evidentiary items as fingerprints,\131\ blood,\132\ urine samples,\133\ fingernail and skin scrapings,\134\ voice and handwriting exemplars,\135\ conversations,\136\ and other demonstrative evidence may be obtained through the warrant process or without a warrant where ``special needs'' of government are shown.\137\

NOTES:

\127\255 U.S. 298 (1921). United States v. Lefkowitz, 285 U.S. 452 (1932), applied the rule in a warrantless search of premises. The rule apparently never applied in case of a search of the person. Cf. Schmerber v. California, 384 U.S. 757 (1966).

\128\Gouled v. United States, 255 U.S. 298, 306 (1921).

\129\Warden v. Hayden, 387 U.S. 294, 303 (1967). See Gouled v. United States, 255 U.S. 298, 309 (1921). The holding was derived from dicta in Boyd v. United States, 116 U.S. 616, 624-29 (1886).

\130\Warden v. Hayden, 387 U.S. 294 (1967). Justice Douglas dissented, wishing to retain the rule, id. at 312, and Justice Fortas with Chief Justice Warren concurred in the result while apparently wishing to retain the rule in warrant cases. Id. at 310, 312.

\131\Davis v. Mississippi, 394 U.S. 721 (1969).

\132\Schmerber v. California, 384 U.S. 757 (1966). Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (1989) (warrantless blood testing for drug use by railroad employee involved in accident).

\133\Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (1989) (warrantless drug testing of railroad employee involved in accident).

\134\Cupp v. Murphy, 412 U.S. 291 (1973) (sustaining warrantless taking of scrapings from defendant's fingernails at the stationhouse, on the basis that it was a very limited intrusion and necessary to preserve evanescent evidence).

\135\United States v. Dionisio, 410 U.S. 1 (1973); United States v. Mara, 410 U.S. 19 (1973) (both sustaining grand jury subpoenas to produce voice and handwriting exemplars; no reasonable expectation of privacy with respect to those items).

\136\Berger v. New York, 388 U.S. 41, 44 n.2 (1967). See also id. at 97 n.4, 107-08 (Justices Harlan and White concurring), 67 (Justice Douglas concurring).

\137\Another important result of Warden v. Hayden is that third parties not suspected of culpability in crime are subject to the issuance and execution of warrants for searches and seizures of evidence. Zurcher v. Stanford Daily, 436 U.S. 547, 553-60 (1978). Justice Stevens argued for a stiffer standard for issuance of warrants to nonsuspects, requiring in order to invade their privacy a showing that they would not comply with a less intrusive method, such as a subpoena. Id. at 577 (dissenting).

However, some medically assisted bodily intrusions have been held impermissible, e.g., forcible administration of an emetic to induce vomiting,\138\ and surgery under general anesthetic to remove a bullet lodged in a suspect's chest.\139\ Factors to be weighed in determining which medical tests and procedures are reasonable include the extent to which the procedure threatens the individual's safety or health, ``the extent of the intrusion upon the individual's dignitary interests in personal privacy and bodily integrity,'' and the importance of the evidence to the prosecution's case.\140\

NOTES:

\139\Winston v. Lee, 470 U.S. 753 (1985).

\140\Winston v. Lee, 470 U.S. 753, 761-63 (1985). Chief Justice Burger concurred on the basis of his reading of the Court's opinion ``as not preventing detention of an individual if there are reasonable grounds to believe that natural bodily functions will disclose the presence of contraband materials secreted internally.'' id. at at 767. Cf. United States v. Montoya de Hernandez, 473 U.S. 531 (1985).

In Warden v. Hayden,\141\ Justice Brennan for the Court cautioned that the items there seized were not ```testimonial' or `communicative' in nature, and their introduction therefore did not compel respondent to become a witness against himself in violation of the Fifth Amendment. . . . This case thus does not require that we consider whether there are items of evidential value whose very nature precludes them from being the object of a reasonable search and seizure.'' This merging of Fourth and Fifth Amendment considerations derived from Boyd v. United States,\142\ the first case in which the Supreme Court considered at length the meaning of the Fourth Amendment. Boyd was a quasi-criminal proceeding for the forfeiture of goods alleged to have been imported in violation of law, and concerned a statute which authorized court orders to require defendants to produce any document which might ``tend to prove any allegation made by the United States.''\143\ That there was a self-incrimination problem the entire Court was in agreement, but Justice Bradley for a majority of the Justices also utilized the Fourth Amendment.

NOTES:

\142\116 U.S. 616 (1886).

\143\Act of June 22, 1874, Sec. 5, 18 Stat. 187.

While the statute did not authorize a search but instead compulsory production, the Justice concluded that the law was well within the restrictions of the search and seizure clause.\144\ With this point established, the Justice relied on Lord Camden's opinion in Entick v. Carrington\145\ for the proposition that seizure of items to be used as evidence only was impermissible. Justice Bradley announced that the ``essence of the offence'' committed by the Government against Boyd ``is not the breaking of his doors, and the rummaging of his drawers . . . but it is the invasion of his indefeasible right of personal security, personal liberty and private property. . . . Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man's own testimony or of his private papers to be used as evidence to convict him of crime or to forfeit his goods, is within the condemnation of that judgment. In this regard the Fourth and Fifth Amendments run almost into each other.''\146\

NOTES:

\145\Howell's State Trials 1029, 95 Eng. Rep. 807 (1765).

\146\Boyd v. United States, 116 U.S. 616, 630 (1886).

While it may be doubtful that the equation of search warrants with subpoenas and other compulsory process ever really amounted to much of a limitation,\147\ the present analysis of the Court dispenses with any theory of ``convergence'' of the two Amendments.\148\ Thus, in Andresen v. Maryland,\149\ police executed a warrant to search defendant's offices for specified documents pertaining to a fraudulent sale of land, and the Court sustained the admission of the papers discovered as evidence at his trial. The Fifth Amendment was inapplicable, the Court held, because there had been no compulsion of defendant to produce or to authenticate the documents.\150\ As for the Fourth Amendment, inasmuch as the ``business records'' seized were evidence of criminal acts, they were properly seizable under the rule of Warden v. Hayden; the fact that they were ``testimonial'' in nature, records in the defendant's handwriting, was irrelevant.\151\ Acknowledging that ``there are grave dangers inherent in executing a warrant authorizing a search and seizure of a person's papers,'' the Court's response was to observe that while some ``innocuous documents'' would have to be examined to ascertain which papers were to be seized, authorities, just as with electronic ``seizures'' of conversations, ``must take care to assure that they are conducted in a manner that minimizes unwarranted intrusions upon privacy.''\152\

NOTES:

\148\Andresen v. Maryland, 427 U.S. 463 (1976); Fisher v. United States, 425 U.S. 391, 405-14 (1976). Fisher states that ``the precise claim sustained in Boyd would now be rejected for reasons not there considered.'' Id. at 408.

\149\427 U.S. 463 (1976).

\150\Id. at 470-77.

\151\Id. at 478-84.

\152\Id. at 482 n.11. Minimization, as required under federal law, has not proved to be a significant limitation. Scott v. United States, 425 U.S. 917 (1976).

Although Andresen was concerned with business records, its discussion seemed equally applicable to ``personal'' papers, such as diaries and letters, as to which a much greater interest in privacy most certainly exists. The question of the propriety of seizure of such papers continues to be the subject of reservation in opinions,\153\ but it is far from clear that the Court would accept any such exception should the issue be presented.\154\

NOTES:

\154\See Note, Formalism, Legal Realism, and Constitutionally Protected Privacy Under the Fourth and Fifth Amendments, 90 Harv. L. Rev. 945 (1977).

Execution of Warrants. -- The manner of execution of warrants is generally governed by statute and rule, as to time of execution,\155\ method of entry, and the like. It was a rule at common law that before an officer could break and enter he must give notice of his office, authority, and purpose and must in effect be refused admittance,\156\ and until recently this has been a statutory requirement in the federal system\157\ and generally in the States. In Ker v. California,\158\ the Court considered the rule of announcement as a constitutional requirement, although a majority there found circumstances justifying entry without announcement. Recent federal laws providing for the issuance of warrants authorizing in certain circumstances ``no-knock'' entries to execute warrants will no doubt present the Court with opportunities to explore the configurations of the rule of announcement.\159\ A statute regulating the expiration of a warrant and issuance of another ``should be liberally construed in favor of the individual.''\160\ Similarly, inasmuch as the existence of probable cause must be established by fresh facts, so the execution of the warrant should be done in timely fashion so as to ensure so far as possible the continued existence of probable cause.\161\

NOTES:

\156\Semayne's Case, 5 Coke's Rep. 91a, 77 Eng. Rep. 194 (K.B. 1604).

\157\18 U.S.C. Sec. 3109. See Miller v. United States, 357 U.S. 301 (1958); Wong Sun v. United States, 371 U.S. 471 (1963).

\158\374 U.S. 23 (1963). Ker was an arrest warrant case, but no reason appears for differentiating search warrants. Eight Justices agreed that federal standards should govern and that the rule of announcement was of constitutional stature, but they divided 4-to-4 whether entry in this case had been pursuant to a valid exception. Justice Harlan who had dissented from the federal standards issue joined the four finding a justifiable exception to carry the result.

\159\In narcotics cases, magistrates are authorized to issue ``no-knock'' warrants if they find there is probable cause to believe (1) the property sought may, and if notice is given, will be easily and quickly destroyed or (2) giving notice will endanger the life or safety of the executing officer or another person. 21 U.S.C. Sec. 879(b). See also D.C. Code, Sec. 23-591.

\160\Sgro v. United States, 287 U.S. 206 (1932).

\161\Id.

In executing a warrant for a search of premises and of named persons on the premises, police officers may not automatically search someone else found on the premises.\162\ If they can articulate some reasonable basis for fearing for their safety they may conduct a ``patdown'' of the person, but in order to search they must have probable cause particularized with respect to that person. However, in Michigan v. Summers,\163\ the Court held that officers arriving to execute a warrant for the search of a house could detain, without being required to articulate any reasonable basis and necessarily therefore without probable cause, the owner or occupant of the house, whom they encountered on the front porch leaving the premises. Applying its intrusiveness test,\164\ the Court determined that such a detention, which was ``substantially less intrusive'' than an arrest, was justified because of the law enforcement interests in minimizing the risk of harm to officers, facilitating entry and conduct of the search, and preventing flight in the event incriminating evidence is found.\165\ Also, under some circumstances officers may search premises on the mistaken but reasonable belief that the premises are described in an otherwise valid warrant.\166\

NOTES:

\163\452 U.S. 692 (1981).

\164\Supra, p.1208. See Michigan v. Summers, 452 U.S. 692, 696- 701 (1981).

\165\Id. at 701-06. Ybarra was distinguished on the basis of its greater intrusiveness and the lack of sufficient connection with the premises. Id. at 695 n.4. By the time Summers was searched, police had probable cause to do so. Id. at 695. The warrant here was for contraband, id. at 701, and a different rule possibly may apply with respect to warrants for other evidence.

\166\Maryland v. Garrison, 480 U.S. 79 (1987) (officers reasonably believed there was only one ``third floor apartment'' in city row house when in fact there were two).

Although for purposes of execution, as for many other matters, there is little diffence between search warrants and arrest warrants, one notable difference is that the possession of a valid arrest warrant cannot authorize authorities to enter the home of a third party looking for the person named in the warrant; in order to do that, they need a search warrant signifying that a magistrate has determined that there is probable cause to believe the person named is on the premises.\167\

NOTE:

While the Supreme Court stresses the importance of warrants and has repeatedly referred to searches without warrants as ``exceptional,''\1\ it appears that the greater number of searches, as well as the vast number of arrests, take place without warrants. The Reporters of the American Law Institute Project on a Model Code of Pre- Arraignment Procedure have noted ``their conviction that, as a practical matter, searches without warrant and incidental to arrest have been up to this time, and may remain, of greater practical importance'' than searches pursuant to warrants. ``[T]he evidence on hand . . . compel[s] the conclusion that searches under warrants have played a comparatively minor part in law enforcement, except in connection with narcotics and gambling laws.''\2\

Nevertheless, the Court frequently asserts that ``the most basic constitutional rule in this area is that `searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a few specially established and well-delineated exceptions.''\3\ The exceptions are said to be ``jealously and carefully drawn,''\4\ and there must be ``a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.''\5\ While the record does indicate an effort to categorize the exceptions, the number and breadth of those exceptions have been growing.

NOTES:

\2\American Law Institute, A Model Code of Pre-Arraignment Procedure, Tent. Draft No. 3 (Philadelphia: 1970), xix.

\3\Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)); G.M. Leasing Corp. v. United States, 429 U.S. 338, 352-53, 358 (1977).

\4\Jones v. United States, 357 U.S. 493, 499 (1958).

\5\McDonald v. United States, 335 U.S. 451, 456 (1948). In general, with regard to exceptions to the warrant clause, conduct must be tested by the reasonableness standard enunciated by the first clause of the Amendment, Terry v. Ohio, 392 U.S. 1, 20 (1968), and the Court's development of its privacy expectation tests, supra, pp.1206-09, substantially changed the content of that standard.