SEARCH AND SEIZURE: A GUIDE TO RULES,
REQUIREMENTS,
TESTS, DOCTRINES, AND EXCEPTIONS
This information comes from Professor Mark Stevens of
California State University at Fresno. It is an excellent
summary of search and seizure.
A SEARCH is by definition an invasion of privacy. Prior to Katz v. U.S. (1967), privacy was defined
in terms of the trespass doctrine, but since then, a "reasonable expectation of privacy" doctrine
has prevailed. Only what people themselves deem "private" and what society recognizes as
private are protected. The Fourth Amendment does NOT protect against all invasions of
privacy; it only forbids unreasonable searches and seizures.
Technically, the Fourth Amendment says that all searches are to be conducted under authority
of a warrant (the warrant rule). Warrants can be issued to search premises (dwellings),
vehicles, or persons. The Fourth Amendment also states that probable cause (the probable
cause requirement) should form the basis of warrants, supported by oath or affirmation. There
are different definitions of probable cause, from what a person of reasonable caution or
prudence would believe in connection with a crime or criminal offender to what would make a
reasonable person to more probably than not believe a guilty rather than innocent
interpretation of facts, hearsay, or a combination of the two. The trend is toward the "more
probable than not" test. For example, in informant law, the Aguilar test (1964) was established
approving anonymous informant tips if (a) it could be shown the informant was reliable, and
(b) some underlying information could be provided to show how the informant reached the
information in their tip. This two-pronged test was replaced by a "totality of circumstances"
test in Illinois v. Gates (1983) in which a reviewing magistrate uses practical common-sense,
given all the circumstances set forth in the affidavit, to decide if there is a fair probability that
contraband or evidence of a crime will be found in a particular place.
Warrants must be executed promptly (within 48 hours in some states; at least within 10 days in
other states) and not usually at night or on Sundays unless otherwise stated. So-called "noknock warrants" can be issued if the "exigent circumstances" test is met; i.e., evidence can be
easily destroyed or flushed, a hostage situation exists, and the case involves explosives,
emergencies, danger to officers, or unusual circumstances. All warrants, not just no-knock
warrants, authorize the use of force to enter a dwelling if police are denied entrance or no one
is there to admit them. The "demand and refusal" element of the "knock and announce" rule
has been eliminated. A warrant must include a street address and description of the location;
e.g., 110 S. Main, a two-story white house. A warrant for one side of a duplex does not authorize
search of the other side, and the same is true of apartments. A warrant must describe as fully as
possible all the things to be looked for in connection with a crime that has been committed or is
about to be committed. The descriptions must be specific; e.g., one black 21' Panasonic TV,
serial number 63412X. The described item(s) are usually provided in boilerplate fashion on the
warrant form itself (with an indication to strike inapplicable paragraphs). Finally, a valid
warrant must be signed by a judge. The most important thing about searches is that their scope
must be narrow. General, exploratory searches are unconstitutional.
A SEIZURE is by definition the deprivation of liberty, or the enjoyment in exercising dominion
or control over a thing, be it property or person. Police can temporarily seize private property
for about 14 days (this varies from jurisdiction to jurisdiction), and usually hold it indefinitely if
it is material evidence in a criminal case. Temporary seizure or detention of a person is allowed
for shorter periods of time, usually 72 hours. Asset forfeiture laws have been recently applied
in criminal cases, to show that crime does not pay. While these are technically civil law
procedures that exist on both federal and state levels, seized property can be auctioned off for
money to fund the criminal justice system, or in some cases, used by the police departments
themselves in operations; e.g., as an undercover vehicle. With asset forfeiture, the crime must
fall under the R.I.C.O. (Racketeer Influenced Corrupt Organization) Act, or be part of on
ongoing criminal enterprise designed to be profitable, such as drug dealing. In most cases, a
person who has had their assets seized under forfeiture laws must make a showing of good
cause why the property should be returned in civil court within 90 days.
The EXCLUSIONARY RULE and common law time frames provide protection against
unreasonable seizures. The purpose of the exclusionary rule (briefly, evidence illegally obtained
cannot be legally admitted), first created by Weeks v. U.S. (1914) and made applicable to the
states via Mapp v. Ohio (1961) is often misunderstood. It is NOT designed to protect the
constitutional rights of suspects, but to penalize police and deter police misconduct. The
exclusionary rule is a judicial mandate designed to help professionalize the police; it's a social
experiment, not a guarantee of constitutional safeguards. It's a rather harsh rule, the reasoning
being that it is better to let some of the guilty go free so that the majority of people would
benefit from more thorough and professional police work. The Court appears to be waiting for
social science to answer when this goal is reached, but it represents an under-researched topic
in Justice Studies, if indeed, it is researchable at all. The exclusionary rule also subsumes the
FRUIT OF THE POISONOUS TREE DOCTRINE, first established in Silverthorne Lumber Co. v. U.S.
(1920). According to this doctrine, not only is evidence illegally seized inadmissible, but any
evidence or testimony obtained later as a result of the illegally seized evidence is inadmissible.
This has been somewhat weakened by the good faith exception (explained below), but it
basically means that any secondary, incriminating facts or leads discovered later in a case from
an earlier, illegal seizure are inadmissible. If the "tree" is tainted, the "fruits" are also tainted.
This usually results in not enough evidence to go to trial. One loophole is the purged taint
exception, which applies if the defendant broke the chain of evidence themself, and came
forward with new evidence, like a spontaneous confession, about a related crime. Another
loophole is the inevitable discovery doctrine (also explained below).
EXCEPTIONS
For many reasons, not necessarily only because of harshness, there have evolved numerous
EXCEPTIONS (precedents) to the warrant rule and the exclusionary rule. Often, these
precedents are interrelated in actual police practice. These are listed below by their technical
names in alphabetical order:
Automobile Search Exception--first established in Carroll v. U.S. (1925) as part of Prohibition-era
laws allowing roadblocks and checkpoints. Later, amended to allow free and unfettered
passage on public highways. Police can generally open luggage and parcels in the passenger
compartment; a search of the trunk requires special justification. However, Chambers v.
Moroney (1970) ruled that an automobile search need not be made immediately. All that is
necessary in a probable cause stop is to confiscate the parked vehicle after the driver has been
arrested, take it to headquarters, and do a complete inventory on its contents. Any and all
evidence found in the vehicle can be legally seized. Inventory and search are technically
different, but in practice, both are done at the same time. (See Moving Vehicle/Probable Cause
Doctrine and Inventory Search Exception).
Border Search Exception--the basic idea here is that special attention should be paid to a
nation’s borders and certain transportation routes. For this reason, immigration points and
international airports can search and seize (for as long as 16 hours) on the basis of reasonable
suspicion rather than probable cause. Also allowed is "drug courier profiling" of suspicious
persons that may be transporting contraband along a commonly used Interstate or airport for
drug trafficking. Profiling stops have also been authorized for people who appear to be
soliciting prostitutes.
Chimel Rule--briefly, a warrantless search is allowed if incidental (simultaneous) to a lawful
arrest, i.e., serving an arrest warrant without a search warrant. Only the area under a suspect’s
immediate control can be searched, and this can be for evidence that has nothing to do with
the cause for arrest. Also a "protective sweep search" is appropriate for dwelling areas, such as
closets or closed doors for hidden attackers. Comes from Chimel v. California (1969), a case
where police literally ransacked a house. Also applies to hot pursuit or chase situations where
suspect can be taken back to show spot where weapon or drugs were discarded, but this more
often involves a public safety exception to the Miranda rule. Strip searches (down to the
underwear) can ONLY be done when the prisoner is in a secure facility. Vehicles used to
transport prisoners MUST be searched prior and after transport in order to prove something
was discarded during transport. Cavity searches can be done at booking, but are best left to
medical personnel, but some departments allow officers to do them.
Consent Search Exception--A person who possesses common authority or has frequent access
over the premises; e.g., girlfriend, landlord, etc. can authorize a consent search within limits
(NOT the whole house) if their waiver of rights is voluntary (they understand it can be revoked
at anytime during the search) and made intelligently (NOT just in acquiescence or mere
submission to police authority). Many departments require signing a Miranda-type consent
form. Silence, simple nodding of the head, or waving the police in an open door is NOT consent.
Crime Scene Search Exception--Police have enormous powers regarding the securing of crime
scenes. They can order people to move or not to move about. They can "freeze" suspicious
situations. They can commandeer (immediately seize) property, vehicles, or residences for
evidence, transport, or temporary headquarters. Force can also be used to prevent
contamination of the scene. A restriction at crime scenes and other searches is the elephant in a
matchbox doctrine, which requires searchers consider the probable size and shape of the
evidence they seek, since large objects cannot be concealed in tiny areas. Ignoring this doctrine
usually results in leaving the place a shambles.
Emergency Situation Exception--The letter of the law regarding warrants need not be applied
strictly in situations with probable cause and no time to secure a warrant; e.g., shots being fired
or a person screaming. Applies to searches that must be conducted immediately, and has been
extended to include fingernail scrapings, blood samples, and urine tests. A danger to life, or
danger of escape should exist, but most often, used in situations where delay would cause
destruction or removal of evidence.
Good Faith Doctrine--originally emerged as exception to exclusionary rule and is now the most
rapidly expanding exception. It was first applied when police executed what they believed to
be valid warrants later overturned on technical grounds due to fault of the issuing magistrate
in assessing probable cause and nexus (the connection between PC and accused’ participation
in elements of criminal offense). Based on two cases in 1984, U.S. v. Leon and Massachusetts v.
Sheppard, the doctrine holds that if police are truly unaware they are violating someone’s 4th
Amendment rights, the evidence can be admitted anyway. Has been extended somewhat to
apply in situations where police acting "under color of law" due to existence of a specific state
statute; e.g., safety inspections, proceeding with a warrantless search because application of
the exclusionary rule in these situations does not coincide with purpose (deterrence) of the
exclusionary rule.
Inevitable Discovery Doctrine--designed as a built-in loophole to the fruit of the poisonous tree
doctrine. Based on Nix v. Williams (1984), the doctrine holds that if illegally obtained evidence
would in all likelihood eventually have been discovered anyway, it is admissible. For example, if
police obtained an illegal confession and cooperation from a suspect in locating where bodies
were buried, AND police were conducting their own independent search of an area for bodies
but had given up, the help of the suspect in locating the bodies would be a natural extension of
proper police methods as if the police had never terminated their search. Although the
confession is illegal, the dead bodies are admissible evidence. The reasoning behind inevitable
discovery (not to be confused with inadvertent discovery in Plain View Doctrine) is to restore
police to the same position they would have been if no police error or misconduct had
occurred.
Inventory Search Exception--When police take custody of property, proper inventory
procedures allow searches to protect the owner’s property, protect the department from
disputes and claims, protect the police and public from danger (check for bombs, etc.), and to
determine the owner’s identity. Also called Impoundment Doctrine because anytime police
confiscate something that has been abandoned, is blocking traffic, is illegally parked, or has
been left without a driver after the driver has been arrested (see Automobile Exception), police
are usually required by law or regulation to search the contents while impounding it. Colorado
v. Burtine (1987) does not give police carte blanche authority to search all impounded objects
indiscriminately, only when a specific inventory is justified.
Moving Vehicle/Probable Cause Doctrine--an automobile, truck, van, motorhome, boat, airplane
or other movable object can be searched IF there is (a) probable cause (b) the vehicle is moving
or about to be moved, and (c) a warrant cannot be readily obtained. Every part of the vehicle
can be searched, including closed containers in the trunk, although special justification is
needed for trunks. Diminished expectations of privacy are assumed to exist with moving
vehicles. Probable cause can be easily established via police dogs, who have a sense of smell six
million times greater than that of a human.
Open Fields Doctrine--only houses, papers, effects and "curtilage" are protected; open fields
even if amounting to trespass are NOT. Areas outside the "curtilage" can be searched; e.g., a
barn 50 yards away. "Curtilage" may or may not be a fence. It depends on (a) proximity to
house (b) whether area is within an enclosure surrounding the home (c) the uses to which the
area is put, and (d) any steps taken to protect the area from observation. For example, a
garbage or trash can placed out on the curb is NOT protected; a garbage or trash can on the
porch needs a warrant to be searched. From Oliver v. U.S. (1984) and upheld in U.S. v. Dunn
(1992). Abandoned effects, wastepaper baskets, and public places, including bathroom stalls,
are NOT protected.
Plain View Doctrine--this refers to police use of their senses: sight, hearing, smell, taste, and
touch. Anything detected by these means does NOT have Fourth Amendment protection if
officers are lawfully present when they detect something by these means. A number of
subdoctrines have developed, such as "plain feel", "plain smell", and "plain hearing", and the
current controversy is whether electronic aids for the senses constitute a search or should be
part of the Plain View Doctrine. In general, evidence of ANOTHER crime that is immediately
observable without a search is seizable. In 1971, the standard was "inadvertent discovery" (not
necessarily looking for anything incriminating; e.g., looking inside car to read VIN number or fix
fuse and seeing weapon under dashboard or car seat) but due to courts being unable to define
"inadvertent discovery", this standard was abolished in Horton v. California (1990) and replaced
with a three-prong test: (a) officer engaged in lawful activity at the time; (b) the object’s
incriminating character was immediately apparent and not concealed, and (c) the officer had
lawful access to the object and it was discovered accidentally. For example, in a roadside stop,
the driver opens a glove box to get their registration or proof of insurance, and the officer
views what in his or her experience looks like a container of drugs or a weapon.
Private Individual Search Exception--If the police come upon evidence obtained by employees
of a private carrier, such as Federal Express, bicycle delivery, rental car or limousine service (to
name a few), or private security (hotel detectives, department store security guards, etc.) no
warrant is required and the evidence is admissible. Such private individuals are not subject to
the same Fourth Amendment provisions as government officials. This exception applies only if
the private search for evidence is made without the knowledge or participation of a
government agent. This exception applies to residences as well as public places. If, for example,
a girlfriend makes a private inspection of her boyfriend’s closet, finds stolen guns, and turns
them over to police, the evidence is admissible against the boyfriend. Where controversy exists
is in the definition of "government officials". Certain quasi-public police departments (i.e., port
police, transit police) are allowed to do warrantless searches, and the Court has held that
probation officers, although government officials for most purposes, have the right to justify
searches under less than probable cause.
Stop & Frisk Rule (Terry v. Ohio)-- a frisk or patdown of the outer clothing is NOT technically a
search, but whenever police restrain a person’s freedom to walk away, a seizure has occurred.
To frisk, police must have "reasonable suspicion" (not merely a can’t-put-into-words hunch) and
the frisk must be for weapons only, unless under the plain feel exception. Furtive movements,
inappropriate attire, carrying suspicious objects, vague answers to questions, refusal to
identify oneself, and appearing to be out of place are all grounds for articulable suspicion. This
has been extended to roadside stops, luggage, suspicion of narcotics possession (in many
cases, also requiring a trained dog to establish probable cause). Often produces evidence other
than weapons that come into "plain view", demonstrating the interrelationships among these
precedents.
Student Search Exception--The Court has maintained that schools, in order to maintain an
atmosphere of learning, must have eased restrictions on search by school officials. The
standard is reasonableness under all circumstances, which means that there must be reason to
believe a search would turn up evidence, the procedure must be related to the search for
evidence (and not for disciplinary purposes), and the search is not intrusive nor discriminatory
on the basis of age, sex, or race. Numerous cases upheld, but New Jersey v. T.L.O. (1985) is
significant.