search and seizure guide

8/9/2019 Search and Seizure Guide

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SEARCH AND SEIZURE: A GUIDE TO RULES, REQUIREMENTS, TESTS,

DOCTRINES, AND EXCEPTIONS"The young man knows the rules, but the old man knows the exceptions"(Oliver Wendell

Holmes)

ASEARCH is by definition an invasion ofprivacy. Prior toKatz v. U.S. (1967), privacywas 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 invasions of privacy; and in

the almost 40 years sinceKatz, the Supreme Court has held steadfast to apresumption of

unreasonableness whenever privacy expectations are violated in a warrantless search or

surveillance situation. It is important to note that the issue of concern is privacy

expectation, and not the actual intrusion (trespass), be it physical or electronic. In terms of

Supreme Court jurisprudence, this means that a very strict interpretation of the Fourth

Amendment is followed: "The right ofthe people to be secure in their persons, houses, papers

and effects, against unreasonable searches and seizures, shall not be violated, and no Warrantshall issue, but upon probable cause, supported by Oath or affirmation, and particularlydescribing the place to be searched, and the persons orthings to be seized." InKatz, the

government argued that it could police itself and that good intentions should outweigh any

constitutional precondition for always getting a warrant, but the Supreme Court rejected

those arguments. However, there clearly are exceptions, such as consent, emergency,

search incident to arrest, motor vehicle, and inventory, as well as special circumstances in

fires and disasters. This lecture explores some of those exceptions.

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 in the form of an affidavit. 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, theAguilar test(1964) was established approving anonymous informanttips 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 testwas replaced by a "totality of circumstances" test in Illinois v.

Gates (1983) in which a reviewing magistrate uses practical common-sense, given all thecircumstances 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. They

also become "stale" or too old to use after about 90 days (federal procedures may or may

not be similar in some states). So-called "no-knock warrants" can be issued if the


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"exigent circumstances" test is met; i.e., evidence can be easily destroyed or flushed, ahostage 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,

however, as has the whole "knock and announce" exception since a 2006 Supreme Courtdecision calledHudson v. Michigan which essentially held that the social costs of letting

criminals go free on a technicality are greater than the costs to dignity and privacy. 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, and nowarrant should be used for anything having the appearance of a "fishing expedition."

A SEIZURE is by definition the deprivation ofliberty, 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 apply to criminal cases, and among other things are intended to show thatcrime 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 some version

of a R.I.C.O. (Racketeer Influenced Corrupt Organization) Act, or be part of on ongoing

criminal enterprise designed to be profitable, such as drug trafficking. 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

Although Anglo-American common law has always had a tradition of protection against

unreasonable search and seizure, the United States of America has gone one step further

and created the uniquely American EXCLUSIONARY RULE (the countries of Venezuelaand the Philippines being the only two nations with something similar). The exclusionary

rule (stated briefly is to say: evidence illegally obtained is inherently untrustworthy and

cannot be legally admitted) was first created by Weeks v. U.S. (1914) and made applicable

to the states viaMapp v. Ohio (1961). It 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


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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 in justice studies, if indeed, it is researchable at all.

The exclusionary rule also subsumes the FRUIT OF THE POISONOUS TREE

DOCTRINE, first established inSilverthorne Lumber Co. v. U.S. (1920). According to thisdoctrine, 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 thegood 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. Another 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. Yet

another loophole is the inevitable discovery doctrine (also explained later).

An additional reason why the United States has an exclusionary rule is because criminalprocedure rules in the United States are mostly judge-made. In other countries, both

investigative and procedural rules usually come from the executive or legislative branch,

not the courts. In the U.S., judges (and only judges) are deemed expert enough to interpret

the Fourth, Fifth, Sixth, and Fourteenth Amendments. In fact, the exclusionary rule is the

one and only remedy that judges can completely control. Judges cannot control the other,

more executive, ways of enforcing good criminal investigations, such as lawsuits, the flow of

criminal prosecutions, and internal discipline. In many ways, the exclusionary rule exists

as a way for the judicial branch to exercise the same kind of action that the executive

branch ought to be exercising. The exclusionary rule allows the judicial branch to exert its

authority over the other branches. It can be seen as a by-product of the separation of

powers. The same courts that create the rules control the remedy. In a nation so largelycontrolled by judge-made law, it is only inevitable that those judges would need a

mechanism to enforce judge-created rules even when they were unpopular and conflicted

with what other branches of government would want done. The exclusionary rule provides

the only way for judges to do that, and hence, it will likely exist for some time even though

it has no basis in the Constitution.

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 bytheir technical names in alphabetical order:

Automobile Search Exception--first established in Carroll v. U.S. (1925) as part ofProhibition-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


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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 paidto a nations 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 alawful arrest, i.e., serving an arrest warrant without a search warrant. Only the area under

a suspects immediate control can be searched, and this can be for evidence that hasnothing 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 hasfrequent 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 thesecuring of crime scenes. Depending upon jurisdiction, they can order people to move or

not move about, "freeze" suspicious situations, and commandeer (immediately seize)property, vehicles, or residences for evidence, transport, or temporary headquarters. Force

can also be used to prevent contamination of the scene. One of the more interesting legal

restrictions 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. The key case in regard to crime scene search exceptions is

Mincey v. Arizona (1978), in which police held an exhaustive, intrusive, protracted 4-day


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search to retrieve evidence in connection with investigating the circumstances of an

officer's death. The Supreme Court found this unreasonable, not necessarily in terms of

time, but because of the zeal which police departments express in investigating the death of

one of their own. Overzealous investigation to convict a cop killer is unconstitutional, and

likewise, there is no murder scene exception. However, the Supreme Court held that

warrantless searches at a crime scene can be done if someone is in need of immediate aid ora killer is still on the premises. TheMincey decision has been upheld by subsequent case

law (e.g., Thompson v. Louisiana 1984;Michigan v. Clifford1984; and Flippo v. West

Virginia 1999), with Cliffordsending the message that even arson cases do not provide a

license to roam freely.

Emergency Situation Exception--The letter of the law regarding warrants need notbe 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. There are alsoscenarios involving a terrorist attack or other disasters, and in such situations, it is likely

the rules governing crime scene exceptions would apply. This means that overzealousness

must be avoided, and therefore, some police departments have policies (not necessarily

constitutionally required, but based on preventing conflict of interest) prohibiting first

responders from being part of the investigative search team. Such first responders would

be assigned to crowd control or other peripheral duties, for example. A warrantless

investigation under emergency conditions would basically meet constitutional requirements

if it was conducted with the primary purposes of ascertaining the cause, bringing the

emergency under control, and keeping the response within the scope of what is necessary to

address the emergency. Legal reasoning recognizes, however, that exigent circumstances

exist in almost every emergency. For example, the courts have concluded that emergencysituations involving endangerment to life fall squarely within the EXIGENT

CIRCUMSTANCES exception (U.S. v. Holloway 2002), thatthere is no absolute test for

determining whether exigent circumstances are present because such a determination

ultimately depends on the unique facts of each case (U.S. v. Gray 1999), and that the

specific facts of each case are usually so various that no template is likely to producesounder results than examining the totality of circumstances" (Brigham City v. Stuart2006).

Nevertheless, police departments are under some obligation to ensure that policies and

procedures are in place, ensuring that adequate and proper guidance is provided to officers

on what constitutes an emergency or exigent circumstance.

Good Faith Doctrine--originally emerged as exception to exclusionary rule and is nowthe most rapidly expanding exception. It was first applied when police executed what theybelieved 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 andMassachusetts v. Sheppard, the doctrine holds that if police are truly unaware

they are violating someones 4th Amendment rights, the evidence can be admitted anyway.

Has been extended somewhat to apply in situations where police acting "under color of


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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 ANOTHERcrime 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 inHorton v. California (1990) and replaced with a three-prong test: (a) officerengaged in lawful activity at the time; (b) the objects 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 byemployees 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

boyfriends 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, transitpolice) 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 NOTtechnically a search, but whenever police restrain a persons freedom to walk away, a

seizure has occurred. To frisk, police must have "reasonable suspicion" (not merely a

cant-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 tomaintain an atmosphere of learning, must have eased restrictions on search by school

officials. The standard isreasonableness under all circumstances, which means that


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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.

INTERNET RESOURCESAbout.com Civil Liberties Guide to Search and Seizure

FBI Law Enforcement Bulletin article on Search and Seizure at Crisis Scenes

LII Supreme Court Decisions

Nolo's Understanding Search and Seizure Law

PRINTED RESOURCES

Bloom, R. (2003).Searches, Seizures, andWarrants. Westport, CT: Greenwood.

Bridegam, M. & Marzilli, A. (Eds.) (2004).Search and Seizure. NY: Chelsea House

Publishers.

Creamer, S. (1980). The Law of Arrest, Search and Seizure. NY: Holt.

Dash, S. (2004).T

he Intruders: Unreasonable Search and Seizure from King John to JohnAshcroft. New Brunswick, NJ: Rutgers Univ. Press.

McWhirter, D. (1994).Search, Seizure, and Privacy. Phoenix: Oryx Press.

Rutledge, D. (2001).Search and Seizure Handbook: For Law Officers. Belmont, CA:

Wadsworth.

Wetterer, C. (1998). The Fourth Amendment: Search and Seizure. Berkeley Heights, NJ:

Enslow Publishers.

Last updated: July 21, 2008

Not an official webpage of APSU, copyright restrictions apply, see Megalinks in Criminal

JusticeO'Connor, T. (Date of Last Update at bottom of page). In Part of web cited(Windows name for file at top of

browser), MegaLinks in Criminal Justice. Retrieved from http://www.apsu.edu/oconnort/rest of URL accessed

on today's date.

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