The 4th Amendment and Searches

The 4th Amendment and You

The 4th Amendment to the United States Constitution states,

“ 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.”

You have probably have had teachers teach about and make references to the U.S. Constitution many times throughout your educational career. However, most of them have probably never showed you how the 4th Amendment can protect you from the annoying government intrusions thousands of people your age experience every day. As I stated, on the home page, the mission of this website is to empower people your age with sufficient knowledge about the law so you can speak up when your rights have been infringed upon. If you do have a legal problem and get an attorney this information will enable you to ask good questions and understand the advice the attorney gives you. I have chosen some areas and issues related to the 4th Amendment searches and seizures that my students and people your age most frequently encounter.

Where Do I Have An Expectation of Privacy?

The U.S. Supreme Court has held that there are certain areas where you have an expectation of privacy. Katz v. U.S., 389 U.S. 347 (1967) In these areas where you have an expectation of privacy police may not search or seize your person or belongings without a warrant or one of the exceptions to the warrant requirement that will be discussed shortly. In Justice Harlan’s concurring opinion in Katz he laid out a two part test to determine if an individual had an expectation of privacy. He stated,

“ first, that a person have exhibited an actual expectation of privacy and second, that the expectation be one that society is prepared to recognize as reasonable.” Id.

There is another interesting area that deals with the expectation of privacy. The concept deals with the area surrounding your house. This area around your house is called the curtilage. You have an expectation of privacy in the area around your house.The U.S. Supreme Court laid out a four part test for your expectation of privacy in U.S. v. Dunn, 480 U.S. 294 (1987). The four parts to the test are:

1. How close to the home is the area claimed to be curtilage?,

2. Is the area included within an enclosure or fence that surrounds the home?,

3. What is the nature of how the area is used?, and

4. What steps has the person done to protect the area from observation by people passing the property?

What about my property?

The Fourth Amendment also protects property from unwanted government seizure. However, if you leave your property where there is very little expectation of privacy you will not be protected by the 4th Amendment. For example, if you leave your backpack on a table in a mall food court there is very little expectation of privacy and a seizure (search) by a government official (police officer) would not be in violation of your rights. Remember the 4th Amendment protects you from the actions of government officials’ not private individuals. The U.S. Supreme Court has held that there is no privacy interest in contraband, so if you had illegal drugs it would be legal for the police to seize the substance and test it to see if it was an illegal substance. U.S. v. Jacobson, 466 U.S. 109 (1984) Likewise you have no expectation of privacy in trash that you put out on the curb or in the apartment complex dumpster. California v. Greenwood, 486 U.S. 35 (1988).

What If the Police Can See the Items?

The U.S. Supreme Court has held that items that a police officer can see when the officer is in a position, that he can be in lawfully, may be seized and introduced as evidence. Harris v. U.S., 390 U.S. 234 (1968) However, if the object is in plain view, the officer must have a warrant to enter or one of the exceptions to the warrant requirement to enter and seize the property. Texas v. Brown, 460 U.S. 730 (1983) Police may use devices to enhance their view as long as it is a device that is in general public use. Kyllo v. U.S., 533 U.S. 27 (2001) The Court has also allowed police to use helicopters to observe what is on an individual’s property. Florida v. Riley, 488 U.S. 445 (1989) The Court has also upheld actions by the police when they are on the property for a legal reason and see some contraband in plain view.

What About Drug Dogs?

The U.S. Supreme Court has held that it is permissible for law enforcement officers to have a drug sniffing dog sniff outside a person’s car during a stop for a traffic ticket. Illinois v. Caballes, 543 U.S. (2005) However, there is some interesting information in all of the opinions written in this case. First, there is the issue of time. The state trooper with the dog arrived as the trooper who had pulled the car over was still writing the ticket. The K-9 officer just decided to walk the dog around the car and the dog indicated that there were drugs in the car. The majority opinion written by Justice Stevens specifically mentions that “the entire incident lasted less than 10 minutes”. The opinion also states, “ In an earlier case involving a dog sniff that occurred during an unreasonably prolonged traffic stop, the Illinois Supreme Court held that use of the dog and the subsequent discovery of contraband were the product of an unconstitutional seizure. People v Cox, 202 Ill. 2d 462. We may assume that a similar result would be warranted in this case if the dog sniff had been conducted while respondent was being unlawfully detained.”

What does all this mean?

It means that a traffic stop must still only last the amount of time needed to write the ticket for the traffic offense. Unfortunately, many police officers have not read the opinion because many of my students that have been pulled over recently are being told if they don’t consent to a search of their car they will have to wait for the K-9 unit to arrive so the dog can walk around their car. This is an unreasonable delay and a violation of the driver’s rights. Second, in the dissenting opinions in Illinois v. Caballes the justices who dissented point out how often drug sniffing dogs give false alerts. The majority opinion of the court points out the dog searches are allowed because the search only exposes the presence of illegal drugs which a person is not allowed to possess. The dissenting justices point out the flaw in this thinking in their opinions. They specifically mention the high error rate in drug sniffing dogs. Justice Souter’s dissenting opinion mentions studies and cases that have shown some drug dogs have an error rate between 7%-38%. Therefore, it makes very little sense to just say drug dogs will only alert to the presence of an illegal substance. We had a wonderful example of this at the school where I teach. The administration and the local police department decided to do a sweep of all of the parking lots(student, staff, and visitor) with drug sniffing dogs. The dogs alerted at the car of a student who everyone knows has never even thought of experimenting with drugs. Needless to say there was nothing in his car, but it is a wonderful example of error rate the Justice Souter mentions in his dissenting opinion. So, what does all of this mean to you. As of this point in time if you are stopped in your car it is permissible for the police to walk a drug sniffing dog around your car. HOWEVER, if it seems like it is taking a longer than normal time to write a ticket for driving 10 m.p.h. or some type of threat is used( give consent or we’ll get a dog) and it makes the length of the traffic stop longer than needed, your rights have been violated. I would recommend that you write a polite letter of complaint to the police department and mail a copy to your local American Civil Liberties Union office. If something illegal was found based on the questionable use of the drug sniffing dog, make sure you have a good defense attorney who will be comfortable aggressively arguing for the suppression of the evidence.

Police Stopping You and Asking You Questions

There are many times in your teen life when police may stop and ask you questions. Whether it’s at the mall, a school event, at a party, or any other time in your life, the 4th Amendment and legal precedents have established guidelines about what a police officer may do when they stop and ask you questions. The first question that you need to ask is,

“What’s a stop?”

The U.S. Supreme held in U.S. v. Mendenhall, 446 U.S. 544 (1980) that a person is seized when a person looking at all the circumstances surrounding the police encounter would feel that the individual the police had stopped was not free to leave. The Court further clarified this in Florida v. Bostick, 501 U.S. 429 (1991) when it stated, “ the appropriate inquiry is whether a reasonable person would feel free to decline the officers” requests or walk away from the police. Therefore, if police come up to ask you questions and you don’t feel like you are free to leave or ignore the officer, you have been stopped. These cases were very helpful because the U.S. Supreme Court stated in 1972 that it was okay to stop individuals. The U.S. Supreme Court established the standard that is used in these brief encounters in Terry v. Ohio, 407 U.S. 143 (1972). In this case the Supreme Court held that it was okay for police officers to stop an individual that they had a “reasonable suspicion” to believe might be involved in some criminal or suspicious conduct. Brown v. Texas, 443 U.S. 47 (1979) These decisions allow police officers to pat you down for their own safety during this type of brief questioning. This is often called “stop and frisk”.

The U.S. Supreme Court decided in Illinois v. Wardlow, 529 U.S. 119 (2000) that running when you see a police officer was enough to give police officers a “reasonable suspicion” to chase and question the person who ran. The police may also use a tip from an informant to establish the “reasonable suspicion” needed to stop an individual. However, the police must have evidence that the tip is reliable and that criminal activity is going on. Florida v. J.L., 529 U.S. 266 (2000) In 2004 the U.S. Supreme Court put more clarity on police stops. In Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177 (2004) the U.S. Supreme Court held that individuals stopped by police must identify themselves. This case did not establish that you must produce a license only that you must provide your name.

How Long Can I Be Stopped?

The police can only stop you for an amount of time that is reasonable in relation to the reason for the stop. U.S. v. Luckett, 484 F.2d 89 (9th Cir. 1973) Therefore if you are stopped for suspected vandalism you could be held for a reasonable amount of time to determine if you had vandalized property. On the other hand, if you were being stopped and given a citation for disturbing the peace, you could only be stopped as long as it takes to give you the citation for the offense.

Can I Be Searched When I’m Stopped?

Under Terry v. Ohio, 407 U.S. 143 (1972), the U.S. Supreme Court held that it was okay for police making a stop to frisk the individual to protect the officer’s safety. Officers are allowed to pat down the stopped person for weapons. The U.S. Supreme Court held in Ybarra v. Illinois, 444 U.S. 85 (1979) that a frisk may only take place if the officer has a reasonable belief that the individual is armed. Therefore a frisk of 4 fourteen year olds skateboarding in a park would be unreasonable unless the four individuals were in a neighborhood or area where fourteen year olds were typically armed. The Court has also held that if a police officer touches something that feels like contraband or evidence the officer may search further or seize the object. Minnesota v. Dickerson, 508 U.S. 366 (1993). The police can not search your belongings during a brief Terry stop. There has never been a case that has held that it is okay for police during a brief Terry stop and frisk, to search your belongings.

Probable Cause: The Key to Arresting and Searching

Probable Cause is a strange legal concept because it is the foundation of a police officer’s ability to arrest and search, but there is no good definition of probable cause. Probable cause is evidence that would lead a reasonable person to believe that the actions of the police officers were legal and did not infringe on the individual’s rights. In order to have the probable cause to arrest someone the police must have good evidence that a law has been broken and that the person the officer wants to arrest broke the law. In order to search a location there must be evidence that the items the police are looking for are connected to a crime and that the items will be found in the place the police want to search.

The legal standard that is used to determine if there is sufficient probable cause is a “totality of the circumstances” test. Illinois v. Gates, 462 U.S. 213 (1983) The judge or magistrate will look at all the evidence that the police have collected and determine if it is sufficient enough to issue a warrant.

How Is A Search Warrant Different than an Arrest Warrant?

A Search warrant will be issued by a judge or magistrate. The police must submit an affidavit. An affidavit is a legal document. In this document the police will describe the place they want to search, what items they believe are in the location, and what evidence supports the police officers belief that evidence of a crime will be found in that location. Once the police have received the warrant and begin their search, the police may also seize any contraband that might be in plain view. Police typically have to announce themselves before they search the location. However, the U.S. Supreme Court has held that if police believe that evidence might be destroyed or the police might be in danger then they may enter without announcing. Richards v. Wisconsin, 520 U.S. 385 (1997).

When conducting a search, the police may search a person who they have probable cause to arrest. However, if there is no probable cause to arrest an individual then the police will be limited to a Terry pat down of those individuals. If for some reason there is a flaw or error on the warrant the U.S. Supreme Court has allowed the search to stand because the officers were acting on the “good faith” that the warrant was sufficient. U.S. v. Leon, 468 U.S. 897 (1984) For example, if the police have properly investigated the house and undercover officers have purchased drugs from the home but a court worker accidentally types the wrong address on the warrant, the warrant is still good even though the warrant has the wrong address.

What is Needed for an Arrest Warrant?

There has never been a U.S. Supreme Court holding that forces police to have an arrest warrant prior to making an arrest. U.S. v. Watson, 423 U.S. 411 (1976) However, the U.S. Supreme Court has held that unless there is some exigent (emergency) circumstances police need an arrest warrant to enter a private home to arrest an individual. Payton v. New York, 445 U.S. 573 (1980) No arrest warrant is needed when the crime or offense is committed in the officer’s presence. Atwater v. City of Lago Vista, 532 U.S. 318 (2001) If you have been arrested without a warrant, the U.S. Supreme Court has held that there should be a prompt post-arrest determination of whether there was probable cause for the arrest. Gerstein v. Pugh, 420 U.S. 103 (1975)

Searching a Person After They Have Been Arrested

Once the police have arrested a person they may search that individual. In addition, when a person is arrested the police may also search the area “within his immediate control”. Chimel v. California, 395 U.S. 752 (1969) The Court’s rationale was that the person might be able to reach a weapon or destroy evidence, so it would be okay for the police to search the area immediately around the individual. This holding was more limiting than earlier decisions that allowed the police to search the entire place where the person was arrested.

The Car and It’s Passengers

A long time ago during Prohibition when people were transporting illegal liquor in vehicles the U.S. Supreme Court established the precedent that police only needed probable cause to search an automobile. Probable cause is met when the police have some idea that the car may have been or currently is involved in some illegal activity. For example, if a police officer pulls your car over for making an illegal lane change and when the officer approaches the car the officer notices some marijuana residue on the floor behind the driver’s seat he will have enough probable cause to search the car for illegal drugs. There have been many automobile search cases that have further clarified different types of automobile searches.

1. The police may search any closed containers in a car that might contain the illegal substances. U.S. v. Ross, 456 U.S. 798 (1982)

2. Police that have probable cause to search a car and containers in the car may search any containers or packages of the passengers that might contain the object of the search. Wyoming v. Houghton, 526 U.S. 295 (1999)

3. The police officer may order the driver and passengers out of the car to protect themselves. Pennsylvania v. Mimms, 434 U.S. 106 (1977) Maryland v. Wilson, 519 U.S. 408 (1997)

In Without a Warrant: Exigent Circumstances

There are some situations where police can enter your home without a warrant. These situations are referred to as exigent circumstances. Webster’s Dictionary defines exigent as follows. “Calling for immediate action or attention; urgent; critical.” In Illinois v. McArthur, 531 U.S. 326 (2001) the U.S. Supreme Court held that it is permissible for police to enter without a warrant if they reasonably fear that evidence of a crime will be destroyed if they don’t enter. Some cases have allowed police to enter where they believe that there may be a danger to someone’s life if they don’t act. Courts often stress that the danger must be something that is immediate. If the police are chasing a suspect they may go into a home to search for the suspect. The police may also search for any weapons that could harm them as they look for the suspect. Additional evidence or contraband that they find in places that might have held weapons can be used against the suspect. In one interesting case Mincey v. Arizona, 437 U.S. 385 (1978) the police stayed at the scene of a murder for a few days after the murder searching for evidence. The U.S. Supreme court held that the search was unconstitutional and that just because the home was the scene of a murder doesn’t give police the right to search the location.

What if you CONSENT to a search?

Most of the time police will try to get people your age to give consent to search. If you give your consent for a search then the police don’t have to worry about probable cause, warrants, exigent circumstances or any other issues. They have your permission to conduct the search and there is nothing else for them to consider. Many times the police will use threats or intimidation to coerce the consent. If the police have used these types of techniques you will have the ability to potentially get anything found in the search suppressed. The U.S. Supreme Court in Schneckloth v. Bustamonte, 412 U.S. 218 (1973) stated that whether or not the consent was coerced should be determined by looking at the totality of the circumstances surrounding the consenters interaction with the police to determine the validity of the consent. There have been other cases where the U.S. Supreme Court and other appellate courts have looked at situations where the police claim they have a warrant or the authority to search in order to get the individual’s consent to search. These situations are very fact specific and can change depending on the events that occurred in each situation. Therefore be careful if the police are claiming they have the authority to search and remember what you have already read about cars, houses, and your person and searches.

Can I only give consent for a search of a limited area?

Yes, When you consent to a search, you can limit the scope of the search. So, you might allow the police to come in your living room. If the police go beyond the living room they have gone beyond the area you provided consent for and it has become an illegal search.

Can someone else give consent for a search of my house, apartment, or room?

There are certain situations where someone else can give the police consent to search. These searches authorized by someone else are called searches with third party consent. There are a few more common situations that occur so we will look at those. – If the two people have the same ownership or authority over the area the police want to search either can give consent. For example if the police come to the house you and some friends are renting any of the residents of the house could give consent to search the common rooms like the living room and the kitchen. – Another roommate cannot give consent to search an area that they have no authority over. For example, if each roommate has their own bedroom, none of the other roommates can give consent to search a room other than their own. – If the police make a mistake and reasonably believe someone had joint authority to consent to the search but it turns out they did not have the authority to permit the search the search will be allowed. Illinois v. Rodriquez, 497 U.S. 177 (1990). – The Courts have held that it is permissible for school officials to enter a student’s dormitory room for inspections purposes, but may not give consent to a search for evidence related to a crime. Piazzola v. Watkins, 422 F.2d 284 (5th Cir. 1971) – A landlord may give consent to police to search common areas of the building and in a recent case a court upheld bringing a drug sniffing dog into a hallway in an apartment building to sniff outside the apartment doors. The dog identified one apartment and the dog’s identification of potential drugs in one apartment was used to get a warrant to search the apartment.

The Exclusionary Rule: What happens when your rights have been violated?

When the police have conducted an illegal search or seized evidence illegally, they have violated your Constitutional rights. Evidence collected during an illegal search can’t be used against you. The legal rule that has been established and reinforced through numerous appellate decisions that forbids police from using this illegally seized evidence is called the Exclusionary Rule. This rule only applies to evidence that was obtained in violation of that individual’s rights. So, Bill can try to have evidence excluded if the police illegally searched his home and are using evidence from his house against him. If the police search Bill’s friend Ashley’s house illegally and find evidence and are using it against Bill, there is nothing Bill can do because his 4th Amendment Rights don’t apply to his friend Ashley’s house. Some states have allowed individuals to challenge searches that have violated another individual’s rights. So, Bill might be able to challenge the search of Ashley’s home without a warrant. Therefore, it is necessary to make sure you ask your attorney how the courts in your state have interpreted the exclusionary rule. If you are a social guest staying at a friend’s home, you have the ability to challenge a warrantless entry of the premises.

Fruits of the poisonous tree – The above phrase “Fruits of the poisonous tree” was used by the U.S. Supreme Court in Silverthorne Lumber Co. v. U.S., 251 U.S. 385 (1920). In that case the Court stated in its decision that any evidence that was made possible by a violation of the individual’s Constitutional rights could not be used against them. Over the years there have been some changes made to this doctrine. If the police have another independent source for the information/evidence, the information can still be used. For example, Tim’s house is searched illegally and they find a computer and printer he is using to make counterfeit money. The computer and any files related to the counterfeiting would be suppressed. However, if Al his friend gives the police $400.00 in fake money that Tim made and will testify against him the police/prosecutor can go forward with the counterfeiting charges even though they cant’s use the computer and files. Another exception is if the evidence would have been inevitably discovered. This means that if the evidence would have been ultimately found it may be used against you. For example, if the police illegally searched a home and discovered a weapon used in a murder. The prosecutor would argue that they would have “inevitably discovered” the weapon because the homeowner was the primary suspect because he was the only employee fired that morning at work and the homeowner/suspect threatened and yelled a death threat at the boss as he left work. As you can see there is a desire on the part of appellate courts to give the police as much of a chance as possible to enforce the laws and put criminals behind bars.

The Good Faith Exception

The courts made it even easier when the United States Supreme Court created the “good faith” exception in United States v. Leon, 468 U.S. 897 (1984). In the opinion the Court stated, “so as not to bar the use in the prosecution’s case-in-chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause” the government will be allowed to use the evidence even if the warrant was somehow defective. It is important to understand that in the opinion the U.S. Supreme Court pointed out that the exclusionary rule is not required by the Fourth Amendment and that the exclusionary rule was created by courts. The Court stressed that the exclusionary rule should not be used to punish police officers when an error was made by a judge or magistrate in issuing a warrant. The Court did point out in the opinion that the exclusionary rule would not disappear. The “good faith” exception would not protect warrants based on false statements by police officers, or warrants issued by judges or magistrates that didn’t clearly look at the officers’ evidence and affidavits.

Sobriety Check Lanes and Other Searches Where Police Don’t Need a Warrant

There are some situations where police and other government officials don’t need a warrant to search.

1. A warrant is not needed to search a car or person coming across the border into our country.

2. Police may set up check points but there have been some cases that have placed some limitations on these checkpoints. Typically, checkpoints must stop all vehicles to be legally valid. Checkpoints have been allowed to check for sobriety to catch drunk drivers. Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990) Checkpoints have also been allowed to find witnesses to accidents or crimes. Illinois v. Lidster, 540 U.S. 419 (2004)

3. If a local government official like a building inspector or health inspector needs to enter your home to check for compliance with a local ordinance or law they do need a warrant. However, they do not need to show probable cause that you have violated the ordinance or law. Camara v. Municipal Court, 387 U.S. 523 (1967)