Chapter Two Search and Seizure

1. Chapter Two Search and Seizure The right of the people to be secure in their persons, houses, papers, and effects, 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. —Fourth Amendment of the US Constitution (1791)

2. KEY WORDS Terms to understand for this chapter… • Magistrate • Open fields • Plain View Doctrine • Probable Cause • Search • Abandonment • Exclusionary Rule • Expectation of Privacy Zone • Fruits of the Poisonous Tree Doctrine • Independent State Grounds

3. OBJECTIVES After completing this chapter, you should be able to… • Discuss the purpose of the Exclusionary Rule. • Explain the Fruits of the Poisonous Tree Doctrine. • Define the protected areas and interests. • Explain the requirements for obtaining a search warrant. • Identify the restrictions on inspections and regulatory searches. • List the exceptions to the Fourth Amendment. • Explain the purpose of the Fourth Amendment.

4. History/Purpose of the 4th Amendment • From a criminal procedure perspective, the Fourthand Fifth Amendments contain the most important language in existence within the US legal structure. • Not all searches are prohibited, only those that are unreasonable. • Many times students or even professionals in the field lose sight of the rationale and reasons for the Fourth Amendment. • Asking the following questions in search/seizure situations will assist in analyzing this complex area:

5. History/Purpose of the 4th Amendment Search/Seizure Questions • Does the Fourth Amendment apply? • if it does not apply, the question of reasonableness and warrants and probable cause are irrelevant • If the Fourth Amendment does apply, has it been complied with? • If the Fourth Amendment does apply and has not been complied with, what sanctions will the court impose on any evidence seized in violation of the amendment? • Using this approach will help students to focus on the correct issues within this area of criminal procedure.

6. The twelve amendments submitted by the U.S. Congress in 1790 to safeguard the rights of individuals from the interferenceof the federal government. Ten of them were adopted in 1791 as the Bill of Rights. This document bears the signature of then Vice President John Adams. (Source: Getty Images Inc.Hutton Archive Photos.) History/Purpose of the 4th Amendment

7. History/Purpose of the 4th Amendment • When the US Constitution was being drafted very little thought was given to including a declaration of rights for individual citizens. • original state constitutions contained language purportedto protect individuals from undue government oppression • The ratification process produced a movement to include amendments in the form of a Bill of Rights. • The Fourth Amendment was based upon a distrust of government and a desire to prevent arbitrary actions. • it deals with the “seizures” of both persons and property

8. Exclusionary RuleWeeks v. US • In 1914, the US Supreme Court decided Weeks v. US, establishing the Exclusionary Rule and its applicability to the federal government. • local and federal law enforcement officers seized evidence from the home of the defendant • The Court excluded evidence seized by the federal officers, holding allowing it would defy prohibitions of the Constitution intended to protect people against such unauthorized actions. • local police were still able to conduct searches and seizures according to the rules established by the individual states

9. Exclusionary RuleWolf v. Colorado • In 1949, the Supreme Court ruled in Wolf v. Colorado, the first time the Court considered whether the Fourth Amendment should be imposed upon state proceedings. • using the Fourteenth Amendment due process clause • The Wolf Court reviewed the states’ acceptance of the Weeks doctrine and pointed out that at the time of the decision, thirty states rejected the concept. • The justices held that the Fourteenth Amendment does not forbid admission of evidence obtained in violationof the Fourth Amendment.

10. Exclusionary RuleMapp v. Ohio • In Mapp v. Ohio, the Court expressly overruled Wolf. • acknowledging Wolf was founded on factualconsiderations that lacked validity in today’s society • The Court found that in the years since its decision in Wolf, a number of states had accepted validity of the Exclusionary Rule. • experience had demonstrated other options and remedies to prevent illegal searches were worthless and futile • In Mapp, three Cleveland police officers arrived at Mapp’s home to search for a person who was wanted for questioning in connection with a recent bombing.

11. Police photo of Dolree (Dolly) Mapp.(Source: AP Wide World Photos.) Exclusionary RuleMapp v. Ohio • Upon arrival, the officers demanded entry, but Miss Mapp, after telephoning her attorney, refused to admit them without a search warrant. • The officers forced a door in thehouse & searched, finding obscene material in a trunk. • Mapp was charged with and convicted of possessionof obscene material. • at trial no search warrant was produced, nor was failureto produce one explained

12. Exclusionary RuleMapp v. Ohio • Overturning her conviction, the Supreme Court stated: • Moreover, our holding… is not only the logical dictate of prior cases but it also makes very good sense. • There is no war between the Constitution and common sense. Presently, a federal prosecutor may make no use of evidence illegally seized [because of Weeks], but a State’s attorney across the street may… • Thus the State, by admitting evidence unlawfully seized, serves to encourage disobedience to the Federal Constitution which it is bound to uphold…

13. Exclusionary RuleUS v. Leon • What happens if the officers conducting the search were acting in good faith, as in US v. Leon. • This questioned whether the Exclusionary Rule should be modified to allow evidence obtained by officers acting in reasonable reliance on a search warrant. • but ultimately found to be unsupported by probable cause • At trial, respondents filed motions to suppress evidence seized pursuant to a warrant and said that motions were granted in part based on the conclusion that the warrant was not supported by probable cause.

14. Exclusionary RuleUS v. Leon • The lower court affirmed and held that there was no good-faith exception to the Exclusionary Rule. • The US Supreme Court reversed this decision and held that the Exclusionary Rule should be modified so as not to bar evidence seized in good-faith reliance ona search warrant subsequently held to be defective. • The Court concluded that benefits produced by suppressing evidence on a subsequently invalidated warrant could not justify substantial costs of exclusion.

15. Fruits of the Poisonous Tree Doctrine • What happens if law enforcement violates the protections offered by the Fourth Amendment? • The most straightforward explanation is courts will not allow evidence obtained as a result of an illegal search. • one court stated: “The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court, but that it shall not be used at all.” • The Fruits of the Poisonous Tree Doctrine applies to searches, arrests, confessions, and other evidence-gathering activities of law enforcement.

16. Fruits of the Poisonous Tree DoctrineWong Sun v. US • Not all evidence is barred simply because it may have initially been gathered in violation of the Constitution. • In Wong Sun v. US, the Court held that the issue was whether the evidence can be admitted because it was obtained by means sufficiently distinguishable to be purged of the primary taint of illegality. • Another theory used to cleanse or avoid the Fruits of the Poisonous Tree Doctrine is the so-called Inevitable Discovery Rule. • which allows admission of evidence if it would havebeen found and discovered legally at a later time

17. Fruits of the Poisonous Tree DoctrineUS v. Patane • The Supreme Court has been hesitant to apply the rule to violations of the Miranda warning requirements. • In US v. Patane, the defendant violated a restraining order and officers were told that he, a convicted felon, illegally possessed a pistol. • they arrested Patane but were interrupted when they attempted to advise him of his Miranda rights • Asked about the gun, he revealed where it was.

18. Fruits of the Poisonous Tree DoctrineUS v. Patane • The Court noted that unlike unreasonable searches or the Self-Incrimination Clause, there was, with respect to mere failures to warn, nothing to deter since failure to give the Miranda warnings neither violated the Miranda rule or the Self-Incrimination Clause. • there was therefore no reason to apply the Fruit of the Poisonous Tree Doctrine • Suppression of evidence has always been the US Supreme Court’s last resort, not the first impulse.

19. Protected Areas and Interests • The language in the Amendment states that persons, houses, papers, and effects shall be protected or secure against unreasonable searches. • does that mean that a person can carry a bomb on anairplane without being searched? • can a person commit a crime inside his or her homeand be secure against a search? • The courts have established a “zone of constitutional protection” that surrounds a person and moves with that person wherever he or she travels.

20. Expectation of Privacy ZoneKatz v. US • In Katz v. US, the Court expanded the scope of the Fourth Amendment by establishing an “expectationof privacy zone” protected by the Constitution. • In Katz, the FBI attached a listening device to a public phone booth the defendant used for wagering calls. • The Court held that the Fourth Amendment protects people, not places, and test for expectation of privacyis based on two requirements: • a person exhibit actual or subjective expectation of privacy • the expectation is one that society is prepared to recognizeas reasonable

21. Exceptions to the Fourth Amendment Consent • If a party consents to a search, there are no Fourth Amendment protections. • whether consent is valid is a question of fact to be determined from the totality of the circumstances • The Supreme Court in Schneckloth v. Bustamonte held the subject’s knowledge or a right to refuse is not a requirement to establishing a voluntary search. • What if an undercover officer is invited into a home being used to distribute narcotics? • What happens when a third party gives consent?

22. Exceptions to the Fourth Amendment Consent • When a criminal gives consent to enter an area normally protected by the Fourth Amendment, knowing a result he will reveal criminal activity, such consent is not invalid. • merely because it was given to an undercover police officer • The Court has adopted a common authority test for third party consent, resting on mutual use of the property by persons generally having joint access or control for most purposes • it is reasonable to recognize that any of the coinhabitantshas the right to permit the inspection

23. Exceptions to the Fourth Amendment Consent • It is generally agreed that one spouse can give consent to search the family residence. • If a son or daughter is a minor, parents are presumed to be able to consent to a search of the child’s room. • Can a child consent to a search of the parents’ home? • if the child is older, courts generally uphold consent on the theory that older children acquire authority and discretion to admit whom they want into the family house • Property relationships raise special consent. • an owner may not consent to a search of the renter when he has given the renter exclusive possession of the property

24. Exceptions to the Fourth Amendment Plain View Doctrine • The Court has established an exception to the Fourth Amendment in the form of the Plain View Doctrine. • authorizes seizure of illegal evidence visible if the officer’s access to the object has a Fourth Amendment justification • How far does the expectation of privacy extend when dealing with the Plain View Doctrine? • Does a defendant growing marijuana in a fenced yard have right of privacy from a plane flying over? • in California v. Ciraolo, the Court held the defendantdid not have any reasonable expectation of privacy

25. Exceptions to the Fourth Amendment Abandonment • If a person abandons property, is there any continuing expectation of privacy regarding that property? • abandonment requires intent to give up all claimof ownership to the item or items • In California v. Greenwood, the Court held evidence of narcotic use obtained from garbage bags left for pickup by the trash collector was properly admitted. • since the defendant had evidenced an intent toabandon the property • What if a person checks out of a hotel room and leaves incriminating evidence in the room’s trash container?

26. Exceptions to the Fourth Amendment Abandonment • If someone checks out of a hotel and leaves property behind, there is no reasonable expectation of privacy. • once having checked out, the person has no authorityto prevent anyone from entering that room • Technically the manager now controls the room. • that person can grant police access to the abandonedroom and any evidence in the trash container

27. Exceptions to the Fourth Amendment Open Fields • In an early case dealing with seizure of evidence from an open field, Justice Holmes pointed out Fourth Amendment protection does not extend to open fields. • The concept of the sanctity of a person’s home developed during early times. • curtilage includes the home and land immediately surrounding it • The Court in Oliver v. US held that open fields do not provide the setting for those intimate activities that the Fourth Amendment was designed to protect.

28. Exceptions to the Fourth Amendment Businesses • Does a business owner have any protection/expectation of privacy within a commercial establishment open to the general public? • the question revolves around whether or not the activity engaged in by the police is classified as a search • Federal rules do not recognize an expectation of privacy in business, financial, telephone, and post office box records. • accordingly, no warrant is required to search these records • Most states require a warrant or subpoena to searchthe records.

29. Exceptions to the Fourth Amendment Vehicles • There is lesser expectation of privacy when dealing with vehicles. • If an officer is lawfully present at thevehicle and the observes or smellswhat is inside the vehicle, or evenexamines the exterior of the vehicle,such is not considered a searchwithin the Fourth Amendment. • if the officer intrudes into “protected”places, that activity may be classifiedas a search Police officer in civilian clothes searches a van in Kansas City, Missouri.

30. Exceptions to the Fourth Amendment Vehicles - New York v. Belton • The Court addressed the scope of a search incident to a lawful arrest in New York v. Belton. • it held when an officer has made an arrest, he may searchthe passenger compartment of that automobile including contents of any containers found within • Courts have relied on the fact that automobiles stopped on highways are movable, as well as stating thereis a lesser expectation of privacy for items carried within an automobile.

31. Exceptions to the Fourth Amendment Vehicles - Illinois v. Caballes • In Illinois v. Caballes the Court held police may use a drug dog outside a vehicle during a routine traffic stop. • even when police have no grounds to suspect illegal activity • The Court noted the use of a well-trained narcotics-detection dog during a lawful traffic stop generally did not implicate legitimate privacy interests. • the dog sniff was performed on the exterior of the carwhile he was lawfully seized for a traffic violation • Any intrusion on the respondent’s privacy expectations did not rise to the level of a constitutionally cognizable infringement.

32. Exceptions to the Fourth Amendment Tracking of Movements - US v. Karo • Is it a search to monitor the movements of a suspect? • law officers may surveil/follow a suspect withouthis/her knowledge/consent on public roads & property • In US v. Karo, the Supreme Court held use of a beeper attached to the suspect’s car was not a search. • because it did not infringe on any privacy interestand conveyed no protected information • The Court did hold monitoring of a beeper in a private residence, not open to visual surveillance, violates the rights of those with justifiable interest in privacy of the residence.

33. Exceptions to the Fourth Amendment Random Drug Testing • In Board of Education of Independent School Dist. No. 92 of Pottowotomie County v. Earls, the Supreme Court upheld a school district’s policy of requiring random drug testing as a condition for participating in interscholastic activities. • The Court held the Fourth Amendment was not violated because the school’s interest in protecting its students’ health and safety and in deterring drug usage served an important governmental concern. • the Court went on to state that there was a minimalinvasion of privacy caused by the tests

34. Exceptions to the Fourth Amendment Student Searches by Educators • In N.J. v. T. L. O., a student’s purse was searched after she was suspected of having cigarettes. • The principal discovered the student had the cigarettes in her possession, and discovered evidence of marijuana and a list of alleged users from the school. • the State of New Jersey brought delinquency charges • The US Supreme Court held the search did not violate the Fourth Amendment. • search by school officials was permissible when measures adopted were reasonably related to the objectives of the search and were not intrusive

35. Exceptions to the Fourth Amendment Student Searches by Educators • The Court noted that school officials need not obtain a warrant before searching students under their authority. • the need of teachers & administrators for freedom tomaintain order in schools does not require strictadherence to requirements of probable cause • School locker searches made under the auspices of a previously promulgated school locker search policy have been upheld as constitutional. [Zamora v. Pomeroy, 639 F.2d 662 (10th Cir. 1981)]. • an appellate court held school officials had authority to conduct a warrantless search of a locker after a drug dog’s positive response provided reasonable cause

36. Exceptions to the Fourth Amendment Highway Checkpoints • The Fourth Amendment does not treat a motorists car as his castle. • Law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking if he is willing to answer some questions, or putting questions to him if the person is willing to listen. • The US Supreme Court in Michigan State Police v. Sitz held that sobriety checkpoints were reasonable. • considering the increasing number of alcohol-relateddeaths and mutilations on the nation’s roads

37. Inspections and Regulatory Searches • These administrative searches fall outside the scope of day-to-day activities associated with law enforcement. • outside the scope of the protection of the Fourth Amendment and judged by a different standard • Courts have established a reasonable legislative or administrative standard for use in these situations. • less than Fourth Amendment probable cause requirements • It is a test that balances the need to search against the invasion that the search entails.

38. Inspections and Regulatory SearchesWelfare Inspection - Wyman v. James • Courts have considered that a visit by caseworkers toa welfare recipient’s home does not constitute asearch within the meaning of the Fourth Amendment. • In Wyman v. James, the US Supreme Court reasoned that a welfare recipient may be required to consent to such visits as a condition of continued receipt of benefits.

39. Inspections and Regulatory SearchesInspections at Fire Scenes • Can a fire inspector or an arson inspector remain in a building after a fire to conduct an investigation without obtaining a search warrant? • Clearly, fire personnel can enter a building to put out a fire, a form of emergency that is outside the protection of the Fourth Amendment. • Courts have stated that inspectors or firefighters can remain in a building once the fire is extinguished. • if they leave and desire to reenter, they must obtain a warrant

40. Inspections and Regulatory SearchesBorder Searches - US v. Ramsey • The Court held searches at the border are per se reasonable because of the right of a sovereign nation to protect itself by stopping and searching persons and property entering its soil. • searches of persons and property entering the country maybe made without obtaining a warrant or probable cause • This is balancing national interest in preventing illegal persons & goods from entering, against the limited intrusion that occurs when a person crosses the border. • authority to conduct suspicionless border inspections includes removal & disassembly of vehicle’s fuel tank

41. Inspections and Regulatory SearchesAirport Searches • In the late 60s, the US began searches of persons on airlines if they matched a predetermined profile. • this was abandoned in 1973, and all persons were requiredto pass through a magnetometer and have carry-on luggage X-rayed and/or inspected • Courts have upheld airport searches on the basis of balancing the need for the search with its limited scope. • Additionally, the search is limited to a certain process, and passengers have advance notice of its existence. • this notice allows them to avoid the search simplyby choosing not to fly

42. Inspections and Regulatory SearchesSearches of Prisoners • It has been said prisoners do not lose all of their Fourth Amendment rights because they are incarcerated. • however, the courts have ruled in favor of correctional institutions in a number of situations • A prisoner’s mail may be read; after a visit with friends or family, prisoners may be searched; and religious practices may be curtailed. • The courts balance security of the institution against the rights of the inmate. • it is said that courts are loath to second-guessprison administrators

43. Independent State Grounds • State constitutions may provide greater protection to than that provided by the US Constitution. • occurs when the state highest court decides an issue on independentstate grounds, as in the Sitz case • The US Supreme Court determined sobriety checkpoints did not violate the Fourth Amendment • state appellate court held they violated Article I, Section 11 of the Michigan Constitution William Joseph Brennan, Jr. (1906–1997) an Associate Justice of the Supreme Court of the United States from 1956 to 1990. He was known for his outspoken liberal views, including opposition to the death penalty and support for abortion rights.

44. Independent State Grounds • On appeal, the Michigan Supreme Court affirmed. • holding the checkpoints unconstitutional under the Michigan Constitution because there was no support in Michigan’s constitutional history for the proposition that police were permitted to engage in warrantless/suspicionless seizuresof automobiles in order to enforce criminal laws • The state court also held that the Michigan Constitution offered more protection than the US Constitution.

45. Probable CauseTwo Parts to the Fourth Amendment • In the event that a warrant is not used, the first part of the amendment enters play and requires the people be secure “against unreasonable searches and seizures.” • When a warrant is used, the second part requires that “no Warrants shall issue, but upon probable cause.” • For a search warrant to be valid, the issuing authority must find that there are statements or other evidence that establishes probable cause. • an objective test that requires facts to be such as would warrant a belief by a reasonable person that criminalconduct has occurred, or is about to occur

46. William H. Rehnquist was appointed to the Supreme Court by President Nixon.In 1986 President Ronald Reagan elevated him to Chief Justice.He served in that capacity until his death in 2005. Probable Cause • The Supreme Court has a long history of expressing a strong preference for the use ofsearch warrants. • warrants impose an orderlyprocess with an independent review by the judiciary • the Court gives moredeference to searchesconducted with a warrant

47. Probable Cause • Information from informants can complicate court evaluations of whether or not probable cause exists. • an informant is a person who learns of criminal conductby being involved in the criminal culture • the term does not refer to a citizen who is a witness or victim • The Court views witnesses/victims in a different light • witnesses or victims are are reciting informationthey observed regarding criminal activity • The knowledge or veracity of witnesses or victims is seldom questioned for purposes of probable cause.

48. Search With a Warrant • Courts prefer that a law enforcement officer obtain a search warrant, a process involving… • A neutral and detached magistrate. • An oath or affirmation. • Establishment of probable cause. • Particular description of the place to be searched. • Particular description of the items to be seized. • The time and manner of execution.

49. Search With a WarrantImportance of a Search Warrant • The US Supreme Court has indicated a strong preference for obtaining a search warrant prior to conducting a search. • in general police must get a warrant unless they cannot • In trial of a criminal case, searches conducted pursuant to a valid warrant are presumed to be legal. • the defendant has the burden of proof to establishthat the search was invalid • In the case of search without a warrant, the search is presumed to be invalid. • the prosecutor has the burden to establish the search as legal

50. Search With a WarrantA Neutral and Detached Magistrate • The Court has stated police & prosecutors cannot be expected to remain neutral when dealing with their own investigations. • A neutral and detached magistrate provides a fresh, unbiased determination regarding the sufficiency of the evidence supporting the request for the warrant. • The magistrate cannot receive any funds for issuing the warrant; else he/she has financial interest in the case. • nor can the magistrate be involved in the executionof the warrant