Chapter 9 - Conducting Constitutional Searches

© 2015 Cengage Learning

Prepared by Tony Wolusky, J.D. , Metropolitan State University of Denver

Chapter 9 Conducting

Constitutional Searches


What are the fundamental rules of search and seizure under the 4th Amendment?1. There must be governmental action.2. The person making the challenge must have standing,

that is, the conduct violates the challenger’s reasonable expectation of privacy. a situation in which (1) a person has exhibited actual (subjective)

expectation of privacy and (2) that expectation is one that society is prepared to recognize as reasonable.

Often an implied right that falls within the shadow of other specified rights (penumbra).


Unrestrained general searches offend our sense of justice.

All searches must be limited in scope.

General searches are unconstitutional and never legal.


All searches with a warrant must be based on:o Probable causeo Supported by oath and affirmationo Particularly describing the place to

be searched, ando The persons or things to be seized


Facts: Prohibition agents had a warrant for intoxicating liquor and their manufacture. They noticed a ledger showing inventories of liquors, receipts, expenses, including gifts to police officers, and other things relating to the business.

Issues: Can the ledger be seized since it wasn't listed on the warrant?

Holding: Yes. Rationale: The ledger was closely related to

the business of the illegal business.


New York v. Belton (1981)o Landmark case for the warrantless search of a

vehicle incident to arrest.• Court held that when an officer has made a lawful

custodial arrest of the occupant of an automobile, he may search the passenger compartment.

• He may also examine the contents of any containers found within the compartment.

• If the container is within reach of the arrestee, so also will containers in it be within his reach.


After officers have obtained their search warrant they must execute it in a timely manner.

They must not use excessive force to execute the warrant.

There is limited authority to detain the occupants of the premises during the search.


Officers can only search the areas where they reasonably believe the specified items might be found.

If the warrant states only one specific item be sought, once it is located, the search must end.

Officers often are protected with qualified immunity.o Exemption of a public official from civil liability for

actions performed during the course of his or her job unless they violate a “clearly established” constitutional or statutory right.


The government can also seize any contraband or other evidence of a crime found during a search with a warrant, even though it was not specified.o Contraband is anything that is illegal for people

to own or have in their possession. The contraband does not need to be

described in the warrant or be related to the crime described in the warrant.o Plain view doctrine


Allows civil inspections of private property to determine compliance with government rules, regulations and city ordinances.o Examples include fire building codes

These can also be obtained so government agents can conduct routine inspections when occupants refuse their entry.


Facts: Police visited Biswell, a pawn shop operator who was federally licensed to deal in sporting weapons. They identified themselves, inspected Biswell's books and requested entry into a locked gun storeroom. Biswell asked whether the agents had a search warrant, and the principle investigator responded that they did not, but that section 923(g) of the Gun Control Act of 1968 authorized such inspections without a search warrant. There the agents found and seized two sawed-off rifles, items Biswell was not licensed to possess.

Issues: Did the warrantless search violate the Fourth Amendment?

Holding: No. Rationale: Inspections pertaining to the sale of illegal firearms

are justified and that limited threats such as this inspection to the gun dealer’s expectation of privacy are reasonable.


The 4th Amendment prefers a warrant because it necessitates judicial review of government action.

The Supreme Court has defined some searches without a warrant to be reasonable under the 4th Amendment guidelines:o Consent search, o frisks, o plain feel/plain view, o incident to arrest, o automobile exception, o exigent circumstances, o open fields, o abandoned property o and public places.


If an individual gives voluntary consent for the police to search, the police may so without a warrant.

Any evidence found will be admissible in court. The person may revoke the search at anytime. Only the person whose constitutional rights might be

threatened by a search can give consent. 4th Amendment rights are specific to the person and may

not be raised on behalf of someone else or in some abstract, theoretical way.

Consent to search an individual must be given by that individual.


Facts: The home that a robbery suspect was leasing was searched by the police after obtaining the consent to enter the home from somebody who lived with the suspect.

Issues: Was the consent valid under the 4th Amendment?

Holding: Yes. Rationale: The Court observed that recent

decisions “clearly indicate that the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared.”


Examples of instances when individuals cannot give valid consent to search:o Landlord/tenant• Even though the landlord is the legal owner, they

lack the authority to offer consent to a search of a tenant’s premises or a seizure of the tenant’s property.

o Hotel employee/hotel guest• Supreme Court extended the principles above to

hotel employees as well.• Only the tenant or hotel guest can give consent.


If an officer suspects a person is presently armed and dangerous, a frisk may conducted without a warrant.

A frisk is authorized by the circumstances of an investigative stop, only a limited pat-down of the detainee’s outer clothing for the officer’s safety is authorized.

Factors contributing to the decision to frisk include: Suspect that flees. A bulge in the clothing. Suspect’s hand concealed in a pocket. Being in a known high crime area and suspect crime would

likely involve a weapon.


Facts: Officer conducted a frisk. The search revealed no weapons, but the officer felt a small lump in respondent's jacket pocket, believed it to be a lump of crack cocaine upon examining it with his fingers, and then reached into the pocket and retrieved a small bag of cocaine.

Issues: Was the seizure lawful without a warrant? Holding: Yes. Rationale: As long as the narcotics are instantly

recognizable by plain feel or plain touch. Ultimately, if, in the lawful course of a frisk, officers feel something that training and experience causes them to believe is contraband, there is probable cause to expand the search and seize the object.


The plain view doctrine says that unconcealed evidence that officers see while engaged in a lawful activity may be seized and is admissible in court.o For example, if a government official is invited into a person’s

home, and the officer sees illegal drugs on the table, the drugs can be seized.

Technology is impacting 4th Amendment case law. Thermal imaging devices. Kyllo v. United States (2001)

o Was a search warrant needed for police to scan a home from the street and compare that infrared image to other buildings?

o This action is considered a search under the Fourth Amendment and requires a warrant.


Once a person has been lawfully taken into custody by the police, U.S. law recognizes the necessity of permitting a complete search for two reasons:1. Officer safety2. Evidence and other contraband should be recovered

Chimel v. California (1969)o Searches after an arrest must be immediate and must be

limited to the area within the person’s wingspan.• The area within a person’s reach or immediate control.

Schmerber v. California (1966)o Absent the exigent circumstances, a search intrusive as

drawing blood would not be permissible without a warrant.


This exception states that if a governmental agent has probable cause to believe the vehicle contains contraband or evidence or a crime, no warrant is needed.

Why?o Cars are mobile.o In the time it would take to get a warrant,

the car, driver and contraband or evidence could be long gone.


Facts: Prohibition officers saw Carroll, suspected of alcohol sales, driving on the highway. They gave chase, pulled them over, searched the car and found illegal liquor. The National Prohibition Act allowed warrantless searches of vehicles for alcohol.

Issues: Was a warrant necessary? Holding: No. Rationale: Vehicles are more mobile than homes and justify

different rules. They can be searched without a warrant provided:1. There is probable cause to believe the vehicle’s contents

violate the law, and2. The vehicle would be gone before a search warrant could

be obtained. For an officer to search a vehicle without a warrant, they must

have probable cause to believe the vehicle contains contraband or evidence.


The courts have recognized that sometimes situations will arise that reasonably require immediate action before evidence may be destroyed.

These circumstances include:o Danger or physical harm to officer or others.o Danger or destruction of evidence.o Driving while intoxicated.o Hot-pursuit situations.o Individuals requiring rescuing.


The courts have extended the plain view doctrine stating that anything held out to the public is not protected by the 4th Amendment because no reasonable expectation of privacy exists.

“Open fields”- holds that land beyond that normally associated with the use of that land, that is, undeveloped land, can be searched without a warrant.

California v. Ciraolo (1986)o Police looking from the air into a suspect’s backyard does not

violate the 4th Amendment because it is open to public view from the air.


Searches of persons, belongings and vehicles at international borders are reasonable under the 4th Amendment.

The farther a person gets from the border, the more traditional search and seizure requirements come back into play.

United States v. Montoya de Hernandez (1985)o Routine searches at a U.S. international border require no

objective justification, probable cause or warrant. Quinones-Ruiz v. United States (1994)o The border search exception applies equally to persons

entering or exiting the country.


These are limited searches that the court considers reasonable because societal needs are thought to outweigh the individual’s normal expectation of privacy:o Prison o Probation and parole searcheso Drug testing for certain occupationso Administrative searches of closely regulated businesseso Community caretaking searcheso Public school searches


Electronic eavesdropping to searches of people, their luggage, where they live, and their bodies, homes, hotel rooms, businesses, obtaining evidence from a person’s body (urine testing), or surgical removal of a bullet lodged within a person are all cases that have been held to constitute searches under the 4th Amendment.

Physical presence is not required to constitute a search. In each case, the person has a reasonable expectation

of privacy. As such, a warrant is generally required.


Title III of the Omnibus Crime Control and Safe Streets Act of 1965o Prohibits the interception of phone conversations unless

one party to the conversation consents. To obtain an electronic-surveillance warrant, or

wiretap order, probable cause that a person is engaging in particular communications must be established by the court, and normal investigative procedures must have already been tried.

Education

Chapter 9 - Conducting Constitutional Searches