Crim B4
Chapter 3
Intro to Search & Seizure
CHAPTER OVERVIEW
The Fourth Amendment contains two basic clauses: The reasonableness clause, which
proscribes unreasonable searches and seizures, followed by the warrant clause, which
says that “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.”
A fundamental question has been raised about these two clauses. They are joined
in the text of the Fourth Amendment by the conjunction and, which has led to a great deal
of debate over whether the two clauses are related or separate. Some have argued that the
warrant clause gives meaning to the reasonableness clause, so that any search conducted
without a warrant is deemed unreasonable, and therefore unconstitutional.
Others have argued that the reasonableness clause and the warrant clause should
be read separately. Their position is that the reasonableness of a search should not depend
on whether a warrant was obtained or on whether there was a good excuse for not
obtaining a warrant. Instead, they believe that the courts should focus on the factual
circumstances justifying the search. They also believe, specifically, that the courts should
consider the manner in which the search was executed, not whether a warrant was
secured.
A third view, known as the warrant preference view, has come to the forefront in
recent years. As a result, much of the confusion surrounding the nexus of the
reasonableness clause and the warrant clause has been cleared up. As the Supreme Court
stated in Mincey v. Arizona, 437 U.S. 385(1978), “The Fourth Amendment proscribes all
unreasonable searches and seizures, and it is a cardinal principle that searches conducted
outside the judicial process, without prior approval by judge or magistrate, are per se
unreasonable under the Fourth Amendment, subject to a few specifically established and
well delineated exceptions.”
This chapter begins by introducing basic Fourth Amendment terminology,
focusing in particular on which police activities trigger the protections of the Fourth
Amendment and (2) what justification is required for the police to engage in certain types
of activities. Later chapters focus on the types of law enforcement activity authorized
(and not authorized) by the Fourth Amendment as well as on relevant procedures.
BASIC TERMINOLOGY
The Fourth Amendment protects persons, houses, papers, and effects from unreasonable
searches and seizures.

Person encompasses the individual as a whole, both internally and externally. An
arrest, for example, is a seizure of a person.

House is a term that is broadly construed to mean any structure that a person uses
as a residence (and frequently a business) on either a temporary or long-term
basis. A hotel room or its equivalent is considered a “house,” as it is a temporary
residence that enjoys Fourth Amendment protection. Also, a garage or other
structure not connected to a house can also fall within the meaning of a “house”
under the Fourth Amendment.

Papers and effects include nearly all personal items. Business records, letters,
diaries, memos, and countless other forms of tangible evidence can be defined as
papers. Effects are the catch-all category. Anything that is not a person, house, or
paper is probably an effect. Effects can include cars, luggage, clothing, weapons,
contraband, and the fruits of criminal activity.
A FRAMEWORK FOR ANALYZING THE FOURTH AMENDMENT

A search is an activity geared toward finding evidence to be used in a criminal
prosecution. To define when a search takes place, two important factors need to
be considered: whether the presumed search is a product of government action
and (2) whether the intrusion violates a person’s reasonable expectation of
privacy.

The term seizure has a dual meaning in criminal procedure. Property can be
seized as a result of a search is a seizure of property to be used as evidence.

The second stage in Fourth Amendment analysis focuses on the reasonableness of
the search or seizure. In other words, once the protections of the Fourth
Amendment are triggered, did the police act in line with Fourth Amendment
requirements? When the courts focus on the reasonableness of a search or seizure,
they speak in terms of justification. If the police (or other government actors)
engage in a search or seizure without justification, they violate the Fourth
Amendment. The only justification mentioned in the Fourth Amendment is
probable cause.
WHEN DOES A “SEARCH” OCCUR?

In Burdeau v. McDowell, 256 U.S. 465 (1921), the Supreme Court first
recognized that the Fourth Amendment does not apply to private individuals.

In Coolidge v. New Hampshire, 403 U.S. 443 (1971), the Court stated that if a
private person “wholly on [his] own initiative” turns over evidence to authorities,
“[t]here can be no doubt under existing law that the articles would later [be]
admissible in evidence.

In Walter v. United States, 447 U.S. 649 (1980), the Court ruled that “a wrongful
search and seizure conducted by a private party does not violate the Fourth
Amendment and . . . does not deprive the government of the right to use evidence
that it has acquired [from the third party] lawfully.”



What are Government Officials?
When Do Private Individuals Become Government Agents?
When Does a Private Search Become Governmental?
INFRINGEMENT ON A REASONABLE EXPECTATION OF PRIVACY
Prior to 1967, the definition of a search was closely tied to a person’s physical and
tangible property interests. Police action would only be deemed a search if it physically
infringed on an individual’s property.
In Katz v. United States, 389 U.S. 347 (1967), federal agents placed a listening device
outside a phone booth in which Katz was having a conversation.
In California v. Greenwood, 486 U.S. 35 (1988), the Supreme Court ruled that a Fourth
Amendment search or seizure occurs only when (1) the citizen has a manifested
subjective expectation of privacy and (2) the expectation of privacy is one that society
(through the eyes of a court) is willing to accept as objectively reasonable.
Undercover Agents and False Friends
Many government investigations are conducted by undercover agents or “false
friends” posing as others. Generally, whether the search is illegal turns on whether
the target of the investigation voluntarily disclosed information or turned over
materials. This issue came up in Hoffa v. United States, 385 U.S. 293 (1966).
United States v. On Lee, 343 U.S. 747 (1952) addressed the issue of whether an
undercover agent could wear a recording device during a conversation with a
suspected criminal. The majority ruled that this activity did not constitute a
search, again, because the informant was invited into the area where the
conversation took place. Justice Burton dissented, however, noting that the
recorder “amount[s] to [the agent] surreptitiously bringing [the police] with him.”
The majority countered by arguing that the listening device was simply designed
to improve the accuracy of the evidence obtained by the informant.
Abandoned Property
In California v. Greenwood, the Supreme Court reached the following decision:
[G]arbage bags left on or at the side of a public street are readily accessible to
animals, children, scavengers, snoops, and other members of the public.
Moreover, respondents placed their refuse at the curb for the express purpose
of conveying it to a third party, the trash collector, who might himself have
sorted through respondents’ trash or permitted others, such as the police, to do
so. Accordingly, having deposited their garbage in an area particularly suited
for public inspection and, in a manner of speaking, public consumption, for
the express purpose of having strangers take it, respondents could have no
reasonable expectation of privacy in the inculpatory items they discarded.
Privacy in One’s Physical Characteristics
The Supreme Court has also held that people’s physical characteristics, including
their voices, are knowingly exposed to the public and are thus outside the scope of
the Fourth Amendment. Physical attributes not on public display, however,
generally fall within the protection of the Fourth Amendment. Finally, the fact
that external physical characteristics are knowingly exposed does not mean that
the police are not restricted in other ways by the Fourth Amendment.
Open Fields and Curtilage
Curtilage is the “area to which extends the intimate activity associated with the
sanctity of man’s home and the privacies of life” (Oliver v. United States, 466
U.S. 170, 225 [1984]). By contrast, an open field is any unoccupied or
undeveloped real property falling outside the curtilage of a home. Open fields do
not enjoy Fourth Amendment protection, but homes and curtilage do.
Enhancement Devices
Enhancement devices can include flashlights, drug dogs, satellite photography,
thermal imagery, and so on. Whatever their form, the devices are designed to
enhance or replace the sensory abilities of the police, usually when police are
operating from an otherwise lawful vantage point. In determining what level of
sensory enhancement is appropriate, the courts generally give consideration to six
specific factors:
• The nature of the place surveilled
• The nature of the activity surveilled
• The care taken to ensure privacy
• The lawfulness of the vantage point
• The availability of sophisticated technology
• The extent to which the technology used enhances or replaces the natural
senses
In 2012, the Supreme Court was confronted with a similar scenario, this time
involving GPS monitoring. The government obtained a warrant to install a GPS
tracking device on a woman’s car. It authorized the device to be placed on the
vehicle within 10 days, and within the District of Columbia. The device was
actually placed on the vehicle on the 11th day, and in Maryland, in violation of
the warrant. Thus, the device was put on the vehicle without a warrant. The
government tracked the vehicle for 28 days and used information thereby
obtained to bring a case against the woman’s husband. The Supreme Court held
that “[t]he Government’s attachment of the GPS device to the vehicle, and its use
of that device to monitor the vehicle’s movements, constitutes a search under the
Fourth Amendment” (United States v. Jones, 565 U.S. ___ [2012]).
A slightly more controversial law enforcement tool is the drug-sniffing dog. Some
courts have ruled that their use does not trigger the Fourth Amendment under
certain circumstances (see United States v. Place, 462 U.S. 696 [1983]).
However, it has been argued that they do implicate the Fourth Amendment
because a drug dog’s senses are used to replace an officer’s senses.
WHEN DOES A “SEIZURE” OCCUR?
Seizure of Property
According to United States v. Jacobsen, 466 U.S. 109 (1984), a seizure of
property occurs “when there is some meaningful interference with an
individual’s possessory interest in that property.” In determining if a piece
of property is “seized,” courts often refer to actual and constructive
possessions. A piece of property is in a person’s actual possession if he or
she is physically holding or grasping the property. Constructive
possession, by comparison, refers to possession of property without
physical contact.
In Soldal v. Cook County, 506 U.S. 56 (1992), the question before the
Supreme Court was whether the Fourth Amendment applied when a
family’s trailer was removed from a trailer park. The Court held that the
Fourth Amendment applied, meaning a seizure occurred. There was no
search per se.
Seizure of Persons
A seizure of a person occurs when a police officer—by means of physical
force or show of authority—intentionally restrains an individual’s liberty
in such a manner that a reasonable person would believe that he or she is
not free to leave (see Terry v. Ohio, 392 U.S. 1[1968]; United States v.
Mendenhall, 446 U.S. 544 [1980]).
According to California v. Hodari D., 499 U.S. 621 (1991), when an
officer chases a suspect but does not lay hands on him or her, a seizure
does not occur until which point the suspect submits to police authority.
JUSTIFICATION

Teaching Note: Emphasize that the police need to have justification, or cause,
before they can conduct a search or a seizure. Justification needs to be in place a
priori—that is, before a person or evidence is sought in an area protected by the
Fourth Amendment. The police cannot conduct an illegal search to obtain
evidence and then argue after the fact that what they did was appropriate.
Probable cause is the only standard of justification mentioned in the Fourth
Amendment, but the Supreme Court has invoked the amendment’s reasonableness
clause to carve out exceptions to the probable cause requirement.
Probable Cause
Probable cause was formally defined in Beck v. Ohio, 379 U.S. 89 (1964)
as more than bare suspicion; it exists when “the facts and circumstances
within [the officers’] knowledge and of which they [have] reasonably
trustworthy information [are] sufficient to warrant a prudent man in
believing that the [suspect] had committed or was committing an offense.”
In Brinegar v. United States, 338 U.S. 160 (1949), the Court added, “The
substance of all the definitions of probable cause is a reasonable ground
for belief of guilt.”
Probable cause is always required in the following scenarios:
• Arrests with warrants
• Arrests without warrants
• Searches and seizures of property with warrants
• Searches and seizures of property without warrants
Informants and Other Third Parties
In Aguilar v. Texas, 378 U.S. 108 (1964), the Supreme Court ruled that an
affidavit based on a tip from an informant must show (1) sufficient
information to demonstrate how the informant reached his or her
conclusion and (2) sufficient information to establish the reliability of the
informant. The first prong asks, “Why should the police believe this
person?” and the second prong asks, “How does the informant know what
he or she claims to know?”
In Spinelli v. United States, 393 U.S. 410 (1969), the Supreme Court
clarified the meaning of the first prong. It concluded that insufficient
knowledge of the details of the reported criminal activity can be overcome
if “the tip describe[s] the accused’s criminal activity in sufficient detail
that the magistrate knows that he is relying on something more substantial
than a casual rumor . . . or an accusation based merely on an individual’s
general reputation” (p. 416).
In Illinois v. Gates, 462 U.S. 213 (1983), the Supreme Court basically
abandoned the two-pronged probable cause analysis and replaced it with a
totality of circumstances test. Thus, if “a particular informant is known for
the unusual reliability of his predictions of certain types of criminal
activities in a locality, his failure, in a particular case, to thoroughly set
forth the basis of his knowledge surely should not serve as an absolute bar
to a finding of probable cause based on his tip” (p. 233).
First-Hand Knowledge
In many cases the officer does not actually observe criminal behavior, but
he or she knows the suspect is in close proximity to criminal conduct. In
such cases, proximity to criminal conduct does not, by itself, give probable
cause to arrest (United States v. Di Re, 332 U.S. 581 [1948]).
Reasonable Reliance of Mistaken Information
If information supplied by an informant or by an officer’s firsthand
observations later proves to be false, the courts will uphold the arrest or
search, so long as the mistake was a reasonable one (Franks v. Delaware,
438 U.S. 154 [1978]). When such a mistake is deemed unreasonable,
however, the courts will almost always reach a different conclusion. An
example of an unreasonable mistake is a police officer’s reliance on an
informant who had provided false information on 50 previous occasions
(Albright v. Oliver, 510 U.S. 266 [1994]).
REASONABLE SUSPICION
Recognizing how essential these lesser intrusions are to the police mission, the Supreme
Court established in Terry v. Ohio, 392 U.S. 1 (1968) a different level of justification for
such activities, namely, reasonable suspicion. In Terry, an officer’s attention was drawn
to two men on a street corner that appeared to the officer to be “casing” a store for a
robbery.
There is no clear definition of reasonable suspicion, just as there is no clear definition of
probable cause. As the Supreme Court has stated:
courts have used a variety of terms to capture the elusive concept of what
cause is sufficient to authorize police to stop a person. Terms like
“articulable reasons” and “founded suspicion” are not self-defining; they
fall short of providing clear guidance dispositive of the myriad factual
situations that arise. But the essence of all that has been written is that the
totality of circumstances—the whole picture—must be taken into account.
Based upon that whole picture the detaining officers must have a
particularized and objective basis for suspecting theparticular person
stopped of criminal activity (United States v. Cortez, 449 U.S. 411
[1981]).
Likewise, in Alabama v. White, 496 U.S. 325, 330 (1990), the Supreme Court observed
that
[r]easonable suspicion is a less demanding standard than probable cause
not only in the sense that reasonable suspicion can be established with
information that is different but also in the sense that reasonable suspicion
can arise from information that is less reliable than that required to show
probable cause.

Teaching Note: Clarify that reasonable suspicion must be based on articulable
facts that connect the suspect to criminal activity. The key factor is knowledge of
articulable facts. An articulable fact is an event that is witnessed and can be
explained, as opposed to a gut reaction or a mere hunch.
ADMINISTRATIVE JUSTIFICATION
The administrative justification adopts a balancing approach, weighing the privacy
interests of individuals with the interests of society in preserving public safety. The
administrative form of justification was first adopted in Camara v. Municipal Court, 387
U.S. 523 (1967), which involved a health code inspection of residential dwelling units.
The Supreme Court held that such inspections were subject to Fourth Amendment
protection.