THE FOURTH AMENDMENT

SEARCH

AND

SEIZURE

THE 4TH AMENDMENT TO THE U.S. CONSTITUTION

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.

WHAT’S CONSIDERED REASONABLE??

- 1967: KATZ V U.S. (Sets the precedence on ‘Reasonable’)- FBI tap on public pay phone- “Using a phone booth with doors closed, the subject

had a reasonable expectation of privacy.”- 1986: CA. V CIRAOLO

- Can law enforcement fly over a person’s property to follow up on an anonymous tip that an illegal growing operation is occurring?

- 1988: GREENWOOD V CALIFORNIA- Is it unreasonable to search a person’s garbage on the

curb?

Are the following searches

REASONSABLE?

Edward Coolidge was arrested in connection with the Murder of a 14-year-old girl. The Attorney General of the state of New Hampshire, authorized by state law to issue search warrants as a justice of the peace, issued a search warrant for Coolidge’s car. It was believed that the car was used by Coolidge on the night of the murder. The same Attorney General took personal charge of the case and he later served as chief prosecutor at Coolidge’s trial. Coolidge argued that the search warrant was illegal because it was issued by someone involved in the actual investigation of the case, not by a neutral and fair judge.

QUESTION:

WAS THE WARRANT LEGAL?

THE DECISION

COOLDIGE v. NEW HAMPSHIRE (1971)

The warrant was illegal. The issuing judge must be impartial and detached…. Not a part of the investigation and prosecution

Police got a warrant to arrest Archie Hill. Police went to Hill’s apartment and found there a man who fit the description,exactly, of Hill. The man claimed to be a Mr. Miller, not Hill.Nevertheless, they arrested the man as Hill and searched the apartment, finding a pistol, and a loaded ammunition clip. Police later find out that the man really was Miller, not Hill. They later arrested Hill and used the pistol found in his apartment to convict him of a robbery charge. Hill objected to the search of his apartment, since it was Miller, not Hill, that the police found there.

QUESTION:

WAS THE SEARCH LEGAL?

THE DECISION

HILL v. CALIFORNIA

(1971)

The search was legal. The police had probable cause and had acted upon that probability. The 4th Amendment doesn’t require certainty – only probability. The police acted in good faith.

Police got a warrant to arrest Ted Chimel for the burglary of a coin shop. They went to his home, arrested him, and then, without a search warrant, proceeded to search the entire three-bedroom house, including the attic, the garage, and a small workshop. During the search, the police found some of the stolen coins. Chimel objected to the search. He agreed that the police had a right to arrest him, but argued that if they wanted to search his entire house, they should have gotten a search warrant.

QUESTION:

WAS THE SEARCH LEGAL WITHOUT A WARRANT?

THE DECISION:

CHIMEL v. CALIFORNIA

(1969)

A search without a warrant and incident to arrest must be limited to the suspect and the immediate area around him. The search was illegal – the police had time after the arrest to get a search warrant to search the entire house.

Having some information that Antonio Rochin was selling narcotics, police went to his house. Finding the outside door open, they entered and then forced open the door to Rochin’s room on the second floor. Inside they found Rochin sitting partly dressed on the side of the bed. On a night stand beside the bed, the police saw two capsules and asked “Whose stuff is this?” Rochin grabbed the capsules and swallowed them. Police jumped on Rochin and tried to get the capsules out of his mouth.

When that failed, he was handcuffed, taken to a hospital, and at the direction of the police, had his stomach pumped. Among the substances brought up out of Rochin’s stomach were two capsules which proved to contain morphine. Rochin was convicted of drug possession. He objected on the ground that police had no right to forcibly pump his stomach and to do so was unreasonable search.

QUESTION:

WAS THIS AN UNREASONABLE SEARCH?

THE DECISION:

ROCHIN v. CALIFORNIA

(1952)

The search was illegal. The methods used offended the court’s sense of justice.

A truck driver by the name of Paul Breithaupt was involved in an automobile accident in which three people were killed. Police at the scene found Breithaupt unconscious, his eyes glassy and bloodshot, and a nearly-empty liquor bottle in his truck.

Breithaupt was brought to a hospital where, while unconscious, a blood sample was taken from his body. The blood contained a high enough percentage of alcohol to indicate that Breithaupt was intoxicated. He was convicted of manslaughter. He objected to the use of the blood test as evidence against him. He claimed that it was gotten as a result of an unreasonable search.

QUESTION:

WAS THIS SEARCH, UNDER THESE CIRCUMSTANCES,

UNREASONABLE?

THE DECISION:

BREITHAUPT v. ABRAM

(1957)

The search was reasonable. The methods used did not involve Rochin-type coercion or brutality.

Police arrested Armando Schmerber at a hospital while he was receiving treatment for injuries received in a accident involving a car that he had apparently been driving. At the direction of a police officer, a blood sample was then taken from Schmerber against his wishes.

The blood test revealed enough alcohol in his blood to make him legally intoxicated and he was later convicted of driving under the influence of an intoxicating liquor. He objected to the use of the blood test as evidence against him. He claimed it was gotten as a result of an unreasonable search.

QUESTION:

WAS A SEARCH, UNDER THESE CIRCUMSTANCES, UNREASONABLE?

THE DECISION:

SCHMERBER v. CALIFORNIA

(1966)

The search was reasonable. There was no undue coercion or brutality.

In an attempt to get evidence of adultery by his wife so he could get a divorce, Abraham Sackler illegally forced his way into the apartment his wife was living in, separate from him. With the evidence he obtained, he applied for a divorce. His wife objected on the grounds that Sackler entered her apartment illegally and therefore, the search was unreasonable.

QUESTION:

WAS THIS SEARCH UNREASONBLE?

DECISION:

SACKLER v. SACKLER

(1964)

The search was reasonable. The 4th Amendment applies only to governmental searches and seizures, not searches and seizures by private persons.

Mexican police, alerted by U.S. agents to Henry Brulay’s smuggling activities, searched Brulay’s car and house in Tijuana, Mexico and found evidence which led to his conviction. Brulay objected to the search because the Mexican police did not have a warrant and, therefore, the search was unreasonable.

QUESTION:

WAS THE SEARCH UNREASONABLE?

DECISION:

BRULAY v. U.S.

(1967)

The search was unreasonable. The 4th Amendment does not apply to officials of foreign governments.

Police looked through three open garbage cans a few feet from the back porch of Robert Edwards’ house. They found evidence of narcotics and Edwards was arrested, tried, and convicted. Edwards objected to the search of his garbage cans an unreasonable search.

QUESTION:

WAS A SEARCH, UNDER THESE CIRCUMSTANCES,

UNREASONBLE?

DECISION:

PEOPLE V. EDWARDS

(1969)

The search was unreasonable – garbage cans on a defendant’s property and garbage does not become public property until it had been picked up by sanitation workers. The police could not see the marijuana in the garbage can without rummaging through the garbage first. The police committed a trespass.

Based on information they had received form an informant, the police arrested James Draper on drug charges. He objected on the grounds that because the information gotten by the police was from an informant, it was hearsay and therefore not good enough information to establish probable cause. Therefore, he argued, the search following the arrest was unreasonable.

QUESTION:

WAS THIS SEARCH, FOLLOWING THE ARREST,

REASONABLE?

DECISION:

DRAPER v. U.S.

(1959)

Information obtained from a proven, reliable informant is good enough to establish probable cause in order to obtain a search warrant.

Following the killing of a police officer, the police arrested John Smith. They learned that Smith had been recently shot and that the bullet was still in his body. They also knew that, before he died, the police officer had shot the man who killed him. The police asked for a search warrant which would allow a police doctor to operate on Smith to remove the bullet. Smith objected on the grounds that the search would be unreasonable.

QUESTION:

WAS A SEARCH OF THIS NATURE UNREASONBALE,

CONSIDERING THE CIRCUMSTANCES?

DECISION:

PEOPLE v. SMITH

(1974)

The search warrant request was denied. The operation would be an invasion of privacy. The operation was potentially dangerous and not necessary for the patient’s continued good health.

Willie Robinson, Jr. was arrested for driving his car after his driver’s license had been revoked. Following the arrest, Robinson was completely searched and a package containing heroin was found in an inside coat pocket. Robinson was also charged with possession of drugs.

QUESTION:

WAS THE SEARCH OF ROBINSON LEGAL WITHOUT

A WARRANT?

DECISION:

U.S. v. ROBINSON

(1973)

The Supreme Court ruled, in this case, that once a police officer legally arrests a person, the officer may search that person fully, and the fact that the arrest was for a traffic offense only made no difference. However, the Court has indicated that individual states are free to set up stricter requirements regarding searches based on an arrest for a traffic offense.

New York State, in the decision People v. Kelly (1974), ruled that the police cannot conduct a full search of a person arrested for a traffic violation. However, a full search of a suspect may be made as incident to an arrest of any other nature.

Officer McFadden, a Cleveland, Ohio plainclothes detective, became suspicious of two men standing on a street corner in the downtown area at about 2:30 in the afternoon. One of the suspects walked up the street, peered into a store, walked on, started back, lolled in the same store, and then joined and talked to his companion. The other suspect repeated this behavior, and between then the two men went through this performance about a dozen times.

They also talked to a third man and then followed him up to the street about ten minutes after he left. The officer, thinking that the suspects were “casing” the store for stickup and might be armed, followed and confronted the three men as they were talking again. He identified himself and asked the suspects for their names. The men only mumbled something and the officer spun one of the suspects around and patted his breast pocket. He felt a pistol, which he removed. He arrested the suspect, who was charged with carrying a concealed weapon.

QUESTION:

WAS THIS SEARCH LEGAL WITHOUT A WARRANT?

DECISION:

TERRY v. OHIO

(1968)

Where a police officer observes unusual conduct which leads him to reasonably conclude that criminal activity may be, or about to be, taking place and that the persons with whom he is dealing may be armed and dangerous, he is entitled, for the protection of himself and others in the area, to conduct a carefully limited frisk of the outer clothing of such persons in an attempt to discover weapons which might be used against him.

Police brought Daniel Murphy to the police station for questioning after his wife had been found slain. The police suspected Murphy of killing his wife, and they wanted to scrape underneath his fingernails. Mrs.Murphy had been strangled, and the person who did it would probably have small pieces of skin under the fingernails. Although Murphy had come to the station voluntarily, he refused to allow the scraping of his nails. Police scraped his nails anyway. They found traces of skin, blood, and strands of the fabric from Mrs.Murphy’s nightgown. Murphy was arrested for murder.

QUESTION:

WAS THIS SEARCH LEGAL WITHOUT A WARRANT?

DECISION:

CUPP v. MURPHY

(1973)

The Supreme Court ruled that such a search was legal, since this type of evidence will disappear quickly if it is not secured. Similar reasoning would uphold a test to determine the percentage of alcohol in a suspect’s bloodstream.

THE FOLLOWING DO NOT HAVE CASE NAMES YET PROVIDE A GLIMPSE AT MORE LEGAL RULINGS DEALING WITH SEARCH AND SEIZURE

Harriet Burr had spent the last few weeks in Europe and her plane had just landed at JFK Airport in New York. While going through Customs, her luggage was searched and nothing was found. Then the Customs Inspector examined her ski poles. They came apart and packages of heroin were found inside them. She was arrested for possession of drugs.

QUESTION:

WAS THIS SEARCH LEGAL WITHOUT A WARRANT?

The “right” to enter the United States is not a right but a privilege. As such, the government has a right to conduct a search at Customs for whatever reason it wants. There need not be any reason for a search at all. Only when a Customs search is so outrageous as to offend common standards of decency (e.g. – a strip search followed by a probe of every orifice of the body) will be considered illegal. Almost all Customs searches have been ruled legal.

Officer Michael Brand was on patrol one afternoon when he spotted an escaped convict coming out of a telephone booth. Officer Brand chased the escaped convict, tackled him,and placed him under arrest. After arresting and handcuffing him, Officer Brand searched his clothes and found a gun in the convict’s jacket.

QUESTION:

WAS THIS SEARCH LEGAL WITHOUT A WARRANT?

A police officer has a legal right to search a person after legally arresting him. This is known as a “search incident to arrest”. As long as the arrest is legal, the search of the person arrested and the area immediately around him which follows, is legal without a warrant.

Adam Smith was at home when two police officers rang his doorbell and identified themselves. They said the wanted to speak to him. Smith let them in and asked what they wanted. They said they had information that stolen jewelry and furs were hidden in the apartment. They asked permission to search the apartment.

Smith said, “Okay, go ahead, look all you want.” They conducted their search and found some furs and jewelry. Smith said they belonged to his wife. The police nevertheless arrested Smith for possession of stolen merchandise.

QUESTION:

WAS THIS SEARCH LEGAL WITHOUT A WARRANT?

No search warrant is needed if the person consents to have himself or his property searched. The consent must be freely given and the person who gives consent must be legally able to give consent.(A husband or wife can give consent for their spouse, but children cannot give consent for their parents. A landlord cannot give consent for a search of a tenant’s apartment.

The police chased a man, who had just held up a bank with a gun, into an apartment building and up to the third floor. The robber entered an apartment and shut the door. The police forced their way into the apartment and arrested the robber.

QUESTION:

WAS THIS SEARCH (the entrance into the apartment) LEGAL WITHOUT A WARRANT?

A close pursuit search such as this one is legal, since the officer was chasing the suspect, knew for a fact that he was in the apartment and knew that he had a gun. It would be unreasonable to expect police in this situation to stop and take the time to get a search warrant.

A police officer on patrol passes by a parked car. As he passes by, he looks into the car through the closed window and sees a shotgun on the back seat. At this point, the owner of the car returns and is asked if he has a license for the gun. When he says that he doesn’t, he is arrested.

QUESTION:

WAS THE SEARCH (looking into the car) LEGAL WITHOUT

A WARRANT?

The search is legal. Looking at objects plain and open view is not a search.