Criminal Procedure: Theory and Practice, Second Edition by Jefferson L. Ingram

1. Criminal Procedure: Theory and Practice, Second EditionbyJefferson L. Ingram Chapter 8: Special Problem Searches: Administrative, Inventory, School, Airport, Work, Border and National Security Searches

2. 1. Introduction to Administrative, Special Needs, Inventory, School, Airport and Work Searches • State and local governments and the federal government need to collect data: • To enforce regulations • To implement social programs. • To develop and structure public policy. • To keep society safe from threats. • To protect property • To otherwise meet governmental goals. • Data collection includes “special needs” searches.

3. 1. Introduction to Administrative, Special Needs, Inventory, School, Airport and Work Searches(cont.) • Special needs searches include: • Residential searches for zoning compliance. • Workplace scrutiny of businesses and industry: • For safety, regulatory, and fire issues. • Searches of closely regulated industries. • Public school searches for safety reasons. • Assuring safety in transportation industry.

4. 1. Introduction to Administrative, Special Needs, Inventory, School, Airport and Work Searches(cont.) • Warrantless special needs searches have been approved. • Random searches of public school athletes. • Inspections of closely regulated industries. • Food and health emergencies. • Limitations on warrantless searches: • Blood draws on pregnant women for drugs. • Drug interdiction motor vehicle roadblocks.

5. 1. Introduction to Administrative, Special Needs, Inventory, School, Airport and Work Searches(cont.) • Warrantless searches permitted or required: • Airline passengers and employees. • Federal employees seeking transfer or promotion who carry firearms. • Federal employees who deal with drug interdiction. • Railroad employees involved in a reportable accident. • Persons crossing international border.

6. 2. Administrative Searches • Governments are empowered with the authority to promote: • the general welfare, • public health, • and safety. • Assurance of meeting goals may require searches. • Fourth Amendment regulates these searches.

7. 2. Administrative Searches cont.) • Require probable cause and warrant or consent. • Administrative probable cause: lower standard than criminal probable cause. • May be based on passage of time. • Condition of buildings in area. • Nature of the building. • Need not depend on specific conditions.

8. 3. Administrative Searches of Ordinary Businesses and Industries • Reduced Fourth Amendment protections for: • Businesses. • Commercial operations. • Industrial settings. • Laws often require inspections. • Businesses can insist on warrant.

9. 4. Administrative Searches of Closely Regulated Industries • Some or all areas may be searched without a warrant. • Traditionally, manufacturing, transport, or sale of intoxicating beverages qualified. • Manufacturing of firearms or explosives or their transport or sale qualified as a closely regulated industry.

10. 4. Administrative Searches of Closely Regulated Industries (cont.) • General Rule: Persons and corporations engaged in closely regulated businesses or industries possess a significantly reduced expectation of privacy under the Fourth Amendment.

11. 5. Ordinary Commercial Business: Search Warrant Required • General Rule: Consent or warrant needed to conduct searches. • Marshall v. Barlow’s: OSHA inspectors required to obtain warrant to search for regulatory compliance. • No warrant needed to inspect goat cheese operation to enforce Virginia health code. • Operation considered a heavily regulated business. • Difficult to distinguish some ordinary businesses from heavily regulated ones.

12. 6. Administrative Searches of Homes: No Warrant Originally Required • In Frank v. Maryland, upheld a conviction for refusal by private home occupier to permit a warrantless housing inspection. • Frank held: no warrant required for administrative searches of private homes.

13. 7. A Change in Requirements: Searches of Private Premises Require Warrants • Camara v. Municipal Court overruled Frank: held that occupant could demand warrant from building inspector. • Warrantless administrative searches are significant intrusions on occupants who have expectation of privacy. • Camara developed “watered-down” probable cause for administrative searches.

14. Facts: Camara sued to prevent his prosecution for failing to allow warrantless inspection of his premises. He contended, the inspectors needed a warrant to enter. Issue: As a general rule, does a municipal zoning inspector need a warrant to enter private premises? Held: Yes. Rationale: Fourth Amendment protects persons from government intrusions, even ones not seeking criminal evidence. Under Frank v. Maryland, only way to test legality risks criminal punishment. Since this was significant intrusion, a warrant was required. Case 8.1, Leading Case Brief: Camara v. v. Municipal Court, 387 U.S. 523(1967).

15. 7. A Change in Requirements: Searches of Private Premises Require Warrants (cont.) • Administrative probable cause defined: • Probable cause may “be based upon the passage of time, the nature of the building (e.g., a multi-family apartment house), or the condition of the entire area, but they will not necessarily depend upon specific knowledge of the condition of the particular dwelling.” Camara v. Municipal Court, 387 U.S. 523 at 538.

16. 7. A Change in Requirements: Searches of Private Premises Require Warrants (cont.) • Administrative probable cause: easy to meet the standard. • Court weighs government need against expectation of privacy and usually issues warrant. • Probable cause based on complaints by citizens and employees, labor unions, or on governmental program being enforced.

17. 8. Administrative Searches: Reasonable under the Fourth Amendment • Administrative searches implicate the Fourth Amendment. • Lower standard of probable cause: • Easy to meet. • Specificity required under criminal probable cause is not necessary. • Relaxed standard is reasonable since search is not directed at criminal wrongdoing.

18. 9. Inventory Searches: Probable Cause not Required • Probable cause excused: • Police have duty to preserve property. • Search not looking for criminal evidence. • Inventory may involve purse, backpack, automobile, or other valuable. • If criminal evidence surfaces: • Admissible in evidence.

19. 10. Vehicle Inventory Searches • Vehicle inventory search considered reasonable. • Protect property from destruction or loss. • Protect police from false claims of loss. • Protect custodians of evidence from harm from inventoried property. • Probable cause not required.

20. Facts: A DUI arrest netted police Bertine’s car. Inventory search, pursuant to policy, revealed illegal recreational drugs. No probable cause to search; only inventory search. Policy gave officers some discretion. Issue: Does inventory policy giving some discretion to police officer violate the Fourth Amendment? Held: No. Rationale: Inventory search need outweighs defendant’s interest in privacy when police have custody of property. It is reasonable to safeguard property of which police have possession. Some discretion concerning when to seize property and when to make other arrangements does not make inventory policy unreasonable. Case 8.2, Leading Case Brief: Colorado v. v. Bertine, 497 U.S. 367(1987).

21. 11. Inventory Searches of Motor Vehicles: Written Policy Required • Police agency must have and follow inventory policy regularly. • Otherwise, search unreasonable due to lack of standards. • Florida v. Wells: case reversed because Florida Highway Patrol had no inventory policy. • Absence of inventory policy permitted officers to snoop without any lawful purpose. • Failure to follow policy: exclusion of evidence.

22. 12. Inventory searches of Personal Property • Routine inventory following arrest includes: • Arrestee’s personal property. • Contents of arrestee’s clothing. • Arrestee’s purse, shoulder bag, man bag, backpack, and other possessions. • Inventory permitted even if whole item would fit property bag. • Personal property inventory: probable cause not required.

23. 12. Inventory searches of Personal Property (cont.) • In Illinois v. Lafayette, the Court approved an inventory search of arrestee’s back pack after his arrest for disorderly conduct. • Following departmental policy, police found drugs during a search. • Evidence properly admissible.

24. 13. School Searches Must Be Based on Fourth Amendment Reasonableness • Children and adults possess Fourth Amendment rights. • Schools have legitimate interests in: • Enforcing school rules. • Assuring drug-free athletes and club members. • Ensuring compliance with criminal laws. • Standard for search: Reasonable suspicion.

25. 14. Public School Drug Searches: Drug Testing of Athletes • In Vernonia School District 47J v. Acton, Court approveddrug testing. • Students had developed drug problems. • Testing of athletes once prior to season, then randomly. • Required parental and student consent. • Court found reduced expectation of privacy among athletes. • Shower together and suit up together.

26. 15. Public School Drug Searches: Suspicionless Testing of Nonathletes • Public school: required drug tests as pre-condition to extracurricular activity participation. • Student and parental consent required. • In Board of Education v. Earles, court approved drug testing for all extracurricular participants. • No need to show drug abuse problems.

27. Facts: To join in any extracurricular activity, students and parents had to consent to drug testing. School had no history of drug problems. Students argued that some individual suspicion was required. Issue: Are nonathlete student civil rights, protected under Fourth Amendment, violated by requiring drug testing? Held: No. Rationale: Court followed earlier case, Vernonia, and balanced school duties against privacy interests of students. Some activities may involve undress and travel. Urine collection is done reasonably. School has duty to protect all students from harm and drug testing is one way to help assure safety of all students. Case 8.3, Leading Case Brief: Board of Education v. Earls, 536 U.S. 822(2002).

28. 16. Government Searches in the Workplace • Fourth Amendment: Full application to federal and state employees. • Suspicionless drug testing permitted: • When employee seeks transfer/promotion. • And job involves firearms or drug interdiction. • Supreme Court balanced government needs against worker privacy interests.

29. 17. Government-mandated Private Employer Searches • Fourth Amendment controls if government requires search: • Employer is “long arm” of the government. • Federal Railroad Safety Act of 1970 allowed government to require private employer to drug test employees: • Blood and urine tested. • After “reportable” major event.

30. 17. Government-mandated Private Employer Searches (cont.) • In Skinner v. Railway Labor Executives’ Association, Court determined: • Warrant requirement impractical. • Individualizes suspicion would not work. • Drug testing was not undue burden. • Court found drug testing was reasonable under Fourth Amendment.

31. Facts: Law granted federal government power to order drug checks of private railroad employees upon specified occurrences. No individualized suspicion required. Workers argued violation of their Fourth Amendment rights. Issue: Can government order private employer to drug test employees? Held: Yes. Rationale: Fourth Amendment applies. Government has compelling need to assure safety and these intrusions are regulated and limited. Probable cause and warrant would not work well under these circumstances. On balance, suspicionless drug testing is reasonable. Case 8.4, Leading Case Brief: Skinner v. Railway Labor Executives’ Association, 489 U.S. 602(1989).

32. 18. Airport, Subway, and Transportation Searches: Generally Founded on Theory of Consent • Airplane hijackings and terrorist activities dictate passenger screenings. • Weigh the need against passenger privacy. • Find firearms, explosives, noxious materials. • Deemed reasonable based on consent. • Luggage search by airline or government is reasonable. • Passenger can choose to consent or to not travel by air.

33. 18. Airport, Subway, and Transportation Searches: Generally Founded on Theory of Consent (cont.) • Circuit court approved random New York subway searches by police to deter terrorists. • Terrorists could inflict catastrophic injuries. • Targeted subway riders carrying packages. • Subway passenger consents or does not use the subway. • Search fit special need, foiling terrorists.

34. 19. Border Searches: Sovereignty and the Fourth Amendment • Federal government has right to: • Control items entering the nation. • Regulate items leaving the country. • Border searches do not require: • Any probable cause. • Any reasonable suspicion. • Any reason whatsoever. • Suspected smugglers can be detained for lengthy periods until concerns resolved.

35. 19. Border Searches: Sovereignty and the Fourth Amendment (cont.) • Fixed roadway checkpoints leading from border allow government scrutiny. • Reduced screening only unless probable cause matures. • Where federal officers patrol border areas and nearby roads: • May only stop vehicles where “reasonable suspicion” exists. • Must suspect persons are illegal aliens or carrying contraband.

36. 20. National Security and Antiterrorism Searches • After 2001, Congress strengthened the Foreign Intelligence Surveillance Act (FISA). • Allowed enhanced electronic surveillance. • Attorney general asks FISA court for warrant to intercept foreign intelligence. • Warrant application essentially provides probable cause.

37. 20. National Security and Antiterrorism Searches (cont.) • The president authorized the National Security Agency (NSA) to begin intercepts between terrorists under: • Terrorist Surveillance Program (TSP). • Several plaintiffs sued to end TSP. • Federal government eventually won.

38. 20. National Security and Antiterrorism Searches (cont.) • Congress passed the Protect America Act of 2007 for six months. • Allowed government to intercept e-mails, telephone calls, and other communication. • One party had to involve foreign destination. • Congress and the executive branch failed to agree on extension of Protect America Act. • Law expired in 2008.

39. Summary • Special needs searches involve: • Administrative searches. • Inventory searches. • Airport and subway searches. • Limited workplace searches. • Fourth Amendment regulates special needs searches. • National security searches implicate Fourth Amendment when persons within U.S. involved.