Fourth Amendment: Crim Pro
Fourth Amendment: Crim Pro
A. Government Action
1. The Fourth Amendment applies only to government, not private, conduct.
This amendment was intended as a restraint on the activities of sovereign
authorities only [Burdeau v. McDowell, 256 U.S. 465 (1921)].
2. Where the actor is an agent of the federal, state, or local government (as
well as some civil authorities), this requirement is met.
3. When a private party acting on his own acquires evidence that the government
later seeks to introduce in a criminal prosecution, neither the Fourth Amendment
nor the exclusionary rule is triggered. However, when a private party acts
at the direction of a government agent or pursuant to an official policy, any
search conducted and evidence seized is subject to Fourth Amendment scrutiny
[Skinner v. Railway Labor Executives Association, 489 U.S. 602 (1989)].
EXAMPLE: A police officer’s demand that an airline employee inspect a
passenger’s bag before flight will make the actions of the private actor a
public action and, therefore, subject to the Fourth Amendment.
365
366
NOTE The requirements for an arrest warrant are virtually identical to the
requirements for a search warrant.
367
368
369
(a) The frisk may also extend to the interior of a car where the
suspect is sitting [Michigan v. Long, 463 U.S. 1032 (1983)].
(b) If, during the frisk for weapons, the officer feels items that
reasonably feel like a weapon or contraband, such as crack
cocaine, the officer may seize the items, even if they turn
out to be something other than weapons or contraband
[Minnesota v. Dickerson, 508 U.S. 366 (1993)].
(c) A minimum level of justification must exist for reasonable
suspicion; presence in an area alone is not enough, but
common sense behaviors can be enough to warrant a stop-
and-frisk [Illinois v. Wardlow, 528 U.S. 119 (2000)].
NOTE Flight is not enough for probable cause but is enough for reasonable suspicion.
370
371
NOTE A person in a closed telephone booth does have an actual (subjective) and
reasonable expectation of privacy such that the attachment of electronic
eavesdropping devices on the exterior of the phone booth constitutes an
impermissible search [Katz v. United States, 389 U.S. 347 (1967)].
372
NOTE The open fields away from a home are not close or “intimate” enough to the
home to provide protection from government interference or surveillance [Oli-
ver v. United States, 466 U.S. 170 (1984)].
373
D. Warranted Actions
1. The Fourth Amendment prohibits only federal law enforcement officials from
conducting unreasonable searches and seizures. The prohibition is equally
applicable to state law enforcement personnel by virtue of the Fourteenth
Amendment. However, the Fourth Amendment allows federal and state law
enforcement officers to conduct reasonable searches and seizures.
2. A search conducted by a government authority without a warrant is
presumptively invalid unless it falls within a specifically carved-out excep-
tion [Katz v. United States, 389 U.S. 347 (1967)]. Thus, a reasonable
search under the Fourth Amendment must be conducted either pursuant to
a warrant or under an exception to the warrant requirement.
3. Search and Arrest Warrants
a. A warrant is a judicial authorization for police action, either to search a partic-
ular place (search warrant) or to arrest a particular person (arrest warrant).
(1) A search warrant must be issued by a neutral and detached magis-
trate after an adequate showing of probable cause, and must describe
with particularity the place to be searched and items to be seized.
(2) An arrest warrant also must be issued by a neutral and detached
magistrate after an adequate showing of probable cause, and
must describe the identity of the suspect either by name or a
reasonably specific description, so that the officers may locate
the suspect with reasonable effort.
4. Searches Pursuant to a Warrant
a. Warrant Requirements
(1) The warrant must be issued by a neutral and detached magis-
trate who reviews evidence submitted by police officers and
determines that there is probable cause to issue the warrant
[Giordenello v. United States, 357 U.S. 480 (1958)].
(a) A justice of the peace who also happens to be the state
attorney general is not neutral and detached [Coolidge v.
New Hampshire, 403 U.S. 443 (1971)].
(b) However, a court clerk is a neutral judicial officer regarding
warrants for city ordinance violations [Shadwick v. City of
Tampa, 407 U.S. 345 (1972)].
(c) A warrant is invalid if the magistrate takes a monetary
reward in return for issuing the warrant [Connelly v. Georgia,
429 U.S. 245 (1977)].
(d) A neutral magistrate may not “supervise” the scope of the
search [Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979)].
(2) Either oral testimony or an affidavit must set forth the facts or
circumstances relied upon by the magistrate, who must then
374
375
376
(4) When police do not obtain a search warrant or an arrest warrant until
after they enter the defendant’s home and conduct a search, such
a search is not permissible under the Fourth Amendment absent
exigent circumstances, even when the police believe that they have
probable cause to search [Kirk v. Louisiana, 536 U.S. 635 (2002)].
(5) Unless an exception to the warrant requirement is applicable, a
search (or arrest) conducted pursuant to an invalid warrant will
generally constitute a violation of the Fourth Amendment.
(a) A search conducted pursuant to an invalid warrant does
not always make the evidence inadmissible under the
exclusionary rule. Evidence seized by police acting in good
faith on the basis of an objectively valid warrant is admis-
sible if the actual invalidity is due to an error by the issuing
magistrate [United States v. Leon, 468 U.S. 897 (1984);
Massachusetts v. Sheppard, 468 U.S. 981 (1984)].
EXAM TIP Warrantless searches are generally unconstitutional unless they fall within one of
the following warrant exceptions, which are described further below: (1) searches
incident to a lawful arrest; (2) automobile exception; (3) plain view; (4) consent;
(5) searches pursuant to a stop; (6) hot pursuit; or (7) exigent circumstances.
377
(b) When police officers merely issue a traffic citation and do not
make an arrest, they may not search the driver or the car for
contraband [Knowles v. Iowa, 525 U.S. 113 (1998)].
(c) A search incident to a lawful arrest must be contemporaneous
to the arrest [United States v. Chadwick, 433 U.S. 1 (1977)] and
may even precede it [Rawlings v. Kentucky, 448 U.S. 98 (1980)].
(d) When the offense in question authorizes a full custodial arrest,
a search incident to that arrest may follow, even when the police
do not fear for their safety or believe contraband will be found.
EXAMPLE: A search of a defendant’s pack of cigarettes which
contained heroin was held to be lawful as incident to his arrest for
a traffic violation [United States v. Robinson, 414 U.S. 218 (1973)].
EXAMPLE: A driver was ordered out of his vehicle and a full
search was held lawful, even though the arrest was only for a
traffic violation [Pennsylvania v. Mimms, 434 U.S. 106 (1977)].
(e) The warrantless search and seizure of digital contents of
a cell phone during an arrest is unconstitutional [Riley v.
California, 134 S. Ct. 2473 (2014)].
(2) Automobile Exception
(a) The automobile exception is based on the idea that a lesser
expectation of privacy exists in an automobile, boat, or airplane
than in one’s home or personal property [United States v.
Chadwick, 433 U.S. 1 (1977)]. Additionally, the inherent mobility
of vehicles requires prompt action by law enforcement.
1) The use of drug-sniffing dogs trained to detect contraband,
but not other items, does not invade the privacy rights of the
suspect [Illinois v. Caballes, 543 U.S. 405 (2005)]. A trained
dog’s alert provides probable cause to search a vehicle for
narcotics [Florida v. Harris, 133 S. Ct. 1050 (2013)].
(b) The Supreme Court has ruled that once the police have
probable cause to search the moving or temporarily stopped
vehicle, they may seize the vehicle and search it later,
even if there is sufficient time to obtain a warrant between
the seizure of the vehicle and the subsequent search
[Chambers v. Maroney, 399 U.S. 42 (1970)].
(c) The police may inspect a container within an automobile
if they have probable cause to believe the container has
contraband or evidence, even where the police do not
have probable cause to search the entire car [California v.
Acevedo, 500 U.S. 565 (1991)].
(d) Warrantless search and seizure of items from an automobile
may be justified under several scenarios, including [United
States v. Martinez-Fuerte, 428 U.S. 543 (1976)]:
1) a search incident to a lawful arrest;
378
2) plain view;
3) an inventory search following a lawful impounding; or
a) If the police lawfully impound a vehicle, they may
conduct a routine inventory search. Because the
reason for the search is not criminal investigation,
the police do not need probable cause or a warrant
to justify the search [South Dakota v. Opperman,
428 U.S. 364 (1967)]. Such a search is justified:
i) to safeguard the defendant’s property; and
ii) to protect the police against false claims of theft.
b) However, in some jurisdictions, the police must give
the subject the option of having someone pick up
the car for him or allowing him to park and secure it
himself, instead of conducting an inventory search.
4) a border search.
a) Congress has granted the executive plenary authority
to conduct routine searches and seizures at the
border, or at fixed checkpoints near the border,
without probable cause or a warrant, in order to regu-
late the collection of duties and to prevent the intro-
duction of contraband into the United States [United
States v. Flores-Montano, 541 U.S. 149 (2004)].
b) Reasonable suspicion is required for searches that
are unusually intrusive, such as a body cavity search
or a search that results in destruction of property [Id].
(e) There are only limited circumstances under which the police
may conduct a warrantless search of a parked vehicle. In
such a case, because of the decreased threat of mobility,
there would likely be ample time to obtain a search warrant.
Thus, a search warrant must be obtained unless the purpose
of the search is not criminal investigation.
(f) Where probable cause to conduct a warrantless search
exists, the police may search the entire vehicle, including
closed containers and luggage, to find the objects for
which the probable cause existed [United States v. Ross.
456 U.S. 798 (1982)].
1) The Supreme Court has held it to be an improper
invasion of privacy to open a footlocker without a
warrant, even thought he item was obtained from an
automobile over which the police had custody [United
States v. Chadwick, 433 U.S. 1 (1977)].
(g) A mere lawful stop based on reasonable suspicion of a
criminal violation can ripen into probable cause sufficient for
a warrantless search.
379
380
381
(e) Police may seize any contraband that comes into plain view
while searching within the scope of the special needs inspection,
even if the contraband is unrelated to the public safety concern.
(f) Police officers may not randomly stop a vehicle to check
the license and registration without a reasonable suspicion
of wrongdoing.
EXAM TIP Because a special needs stop is a seizure, if it is unreasonable (not based on
a valid special needs justification), any evidence it leads to will be tainted by
the stop. However, if it is reasonable, any subsequent search or seizure will be
unaffected by the stop, even if the evidence is unrelated to the special need.
382
383
384
385
386
387
388
c. Government Employers
(1) The Supreme Court has held that, when conducted for a “nonin-
vestigatory, work-related purpose” or for the “investigation of
work-related misconduct,” a government employer’s warrantless
search employee electronic communications is reasonable if it
is “justified at its inception” and if “the measures adopted are
reasonably related to the objectives of the search and not exces-
sively intrusive in light of the circumstances giving rise to the
search” [City of Ontario v. Quon, 560 U.S. 746 (2010); O’Conner
v. Ortega, 480 U.S. 709 (1987) (plurality opinion)].
EXAMPLE: In City of Ontario v. Quon [560 U.S. 746 (2010)], the
city of Ontario, California issued pagers to its police department.
The contract with the service provider specified a monthly charac-
ter limit for the pagers, with extra fees incurred for going over. After
several months of overages by Quon and others, the police chief
requested from the service provider, and received, transcripts of
the pagers from Quon and another employee. The purpose of this
request was to determine whether the messages were work-relat-
ed—and so the monthly character limit was too low—or whether
the overages were for personal messages. The transcripts re-
vealed many messages that were not work-related, and some that
were sexually explicit, and the officers in question were disciplined.
The officers filed suit alleging that the city violated their Fourth
Amendment rights by obtaining the transcripts. The Supreme Court
held that while Quon had a reasonable expectation of privacy in
the text messages, because the search was reasonable and for
a work-related purpose under the O’Conner approach, it did not
violate the petitioners’ Fourth Amendment rights.
389