5.9 Miscellaneous Search and Seizure Problems

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

5.9 MISCELLANEOUS SEARCH AND SEIZURE PROBLEMS

5.901 Searches by Private Parties. The Fourth Amendment, like all constitutional prohibitions, is directed at restraining the activities of government officials. ⁴³⁶ Although difficult factual judgments must be made in certain cases concerning the government-private party status of certain persons, such as "private" police forces ⁴³⁷ or other relationships that may make

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private parties "agents" ⁴³⁸ of the government, the most difficult analytical problem is whether the deterrent purposes of the exclusionary rule would be undermined if courts routinely permitted the government to use the fruits of private-party searches. ⁴³⁹ The answer from most courts has been that the activities of private parties that produce evidence subsequently used by the government in criminal or civil proceedings are not subject to the exclusionary rule, even though the activity by the private party that produced the evidence would have been illegal if conducted by government agents. ⁴⁴⁰ The proscriptions of the Fourth Amendment apply to the government at large, however, not just to law enforcement officials, so that the amendment also extends to government employees such as teachers and administrative personnel. ⁴⁴¹

In Burke v. Commonwealth, ⁴⁴² the Virginia Court of Appeals held that a search by a private citizen does not involve the Fourth Amendment and that the exclusionary rule does not apply to evidence discovered during such a search. A search by a private security guard, in the absence of an agency relationship with the police, is not governed by the Fourth Amendment. In Debroux v. Commonwealth, ⁴⁴³ the court confirmed the general rule that private security guards registered with the state pursuant to section 9-183.3 (now section 9.1-139) of the Virginia Code are not, on that basis alone, state actors.

5.902 Airport Security Measures. A number of courts have looked at the activities of government and quasi-government officials who screen airline passengers to prevent aircraft hijacking. ⁴⁴⁴ Most cases have upheld the various screening devices, although the theories used by the

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courts have varied. The cases validate such activities as selective searches conducted on the basis of a profile, routine searches of carry-on luggage, and compulsory passage through the magnetometer. There is variation, however, among courts concerning the administration of these programs, including whether it is necessary to clearly inform the prospective passenger of the option not to be subjected to the screening by not boarding the aircraft ⁴⁴⁵ and whether the police may frisk immediately if the passenger sets off the metal detector, as opposed to first requiring a second passage through the device. ⁴⁴⁶

5.903 Searches by Public School Authorities. In New Jersey v. T.L.O., ⁴⁴⁷ the Supreme Court held that searches by public school authorities, while governed by the Fourth Amendment, are not held to the strict warrant and probable cause requirements imposed in other situations. The Court ruled that under normal circumstances, a search of a student by a teacher or other school official is "reasonable" when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or school rules. The reasonableness of the scope of the search is judged by whether it is related to the objectives of the search and is not excessively intrusive in light of the age and sex of the student and the nature of the infraction. ⁴⁴⁸ Although this case involved the search of a purse, the Court noted that its decision did not address limitations on searches of lockers, desks, or other school property, nor did it consider searches conducted by school officials in conjunction with or at the behest of the police.

5.904 Drug Testing. In recent years, employers and others, such as prisons and schools, have conducted random testing for the presence of drugs. In the case of purely private institutions, in the absence of significant government involvement, no Fourth Amendment issues are presented. ⁴⁴⁹ Governmental testing of its employees and testing of private employees pursuant to governmental direction, however, create significant Fourth Amendment issues since drug testing by obtaining urine samples constitutes a "search." ⁴⁵⁰ Nonetheless, mandatory drug testing is not to be judged by the

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normal strict standards of the Fourth Amendment but is to be gauged by a more general standard of "reasonableness," taking into consideration the job responsibility, empirical data concerning the need for testing, and the level of discretion exercised by the employer in selecting employees for testing. ⁴⁵¹ Limited drug testing in the public schools was approved in Vernonia School District 47J v. Acton. ⁴⁵² The Acton decision was applied in Board of Education v. Earls, ⁴⁵³ where the United States Supreme Court upheld mandatory and random drug testing of all students participating in competitive extracurricular activities under a testing scheme that was carefully designed to limit the scope of testing and the distribution of test results.

5.905 Pretextual Police Motive. Defendants have attempted to invalidate police evidence-gathering activities in a variety of contexts on the ground that, while the activity complained of might have been valid if undertaken for one reason, the officers were, in fact, acting for other illicit reasons. This is often referred to as a "pretextual" motive. In Scott v. United States, ⁴⁵⁴ the Supreme Court held that police actions are to be tested under a standard of objective reasonableness without regard to the underlying intent or motivation of the officers involved. Whether a constitutional violation has occurred turns on an objective assessment of the officers' actions in light of the facts and circumstances confronting them at that time and not on their actual state of mind at the time the challenged action was taken. ⁴⁵⁵ Thus, if the officers' actions are permissible when objectively viewed (that is, there are facts supporting the officers' conduct), their actions will not be invalidated simply because it is alleged that they, in fact, acted for other impermissible reasons. ⁴⁵⁶ Likewise, the police may use the opportunity presented by a lawful activity (for example, a lawful arrest) to learn more about an activity for which they have no probable cause to act. ⁴⁵⁷ The absence of probable cause to arrest for the particular crime for which the defendant was arrested

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does not create an invalid arrest if, at the time, the officer had sufficient information to arrest for another crime. ⁴⁵⁸

5.906 Roadblocks. The Supreme Court has long recognized the right of the government to stop citizens and others at the various entry points into the United States without regard to individualized or particularized suspicion. ⁴⁵⁹ Early decisions also hinted that, under carefully constrained circumstances that limited the exercise of official discretion and minimized the scope of the intrusion, the police might be able to detain motorists on the open highway without regard to individualized or particularized suspicion. ⁴⁶⁰ In Michigan Department of State Police v. Sitz, ⁴⁶¹ the Supreme Court upheld the validity of a sobriety checkpoint at which the police stopped and briefly detained all motorists approaching the checkpoint. The court used a three-part analysis, weighing the gravity of the public concern served by the seizure, the degree to which the seizure advanced the public interest, and the severity of the interference with individual freedom.

The Sitz ruling casts doubt on two Virginia Supreme Court decisions. In Simmons v. Commonwealth⁴⁶² the Virginia Supreme Court invalidated a roadblock established for the purpose of checking equipment and registration. The court found that the roadblock was not carried out pursuant to an explicit plan or practice containing neutral...