5.9 MISCELLANEOUS SEARCH AND SEIZURE PROBLEMS

• Jurisdiction: Virginia
• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2025 Ed.)

5.9 MISCELLANEOUS SEARCH AND SEIZURE PROBLEMS

5.901 Searches by Private Parties.

The Fourth Amendment seeks to restrain the activities of government agents. ¹²⁵⁹ Difficult factual analyses must be made in cases regarding the government-private party status of certain individuals, such as "private" police forces ¹²⁶⁰ or other circumstances that may make private parties "agents" ¹²⁶¹ of the government. However, the most difficult analytical problem is whether the exclusionary rule serves its deterrent purposes or if the exclusionary rule would be undermined if the courts permitted the government to use the evidence procured by private-party searches. ¹²⁶² Most courts have held that the activities of private parties that produce evidence later used by the government in criminal or civil proceedings are not subject to the exclusionary rule, even if the conduct by the private party would have been impermissible if conducted by government agents. ¹²⁶³ Fourth Amendment limitations apply to the government at large, however, not just to law enforcement officials. Therefore, the Fourth Amendment also extends to government employees such as teachers and administrative personnel. ¹²⁶⁴

In Burke v. Commonwealth, ¹²⁶⁵ the Virginia Court of Appeals held that a search by a private citizen does not contemplate the Fourth Amendment and that the exclusionary rule does not apply to evidence discovered during such a search. A search conducted by a private security guard, without any agency relationship with law enforcement, is also not governed by the Fourth Amendment. In Debroux v. Commonwealth, ¹²⁶⁶ 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, generally speaking, state actors.

5.902 Airport Security Measures.

Several courts have examined the manner in which the government and quasi-government officials screen airline passengers to prevent hijacking. ¹²⁶⁷ Most cases have upheld the various screening devices, although the constitutional justifications for their use have varied. The cases permit selective searches conducted on the basis of a profile, routine searches of carry-on luggage, and compulsory passage through a magnetometer. Courts vary with respect to the administration of these screening efforts, including whether potential passengers must be informed of the option not to be subjected to screening by not boarding the aircraft ¹²⁶⁸ and whether the police may frisk immediately if the passenger sets off the metal detector, instead of first requiring a second passage through the device. ¹²⁶⁹ A person does not impliedly consent to a search by being a passenger. Because "an administrative screening search must be as limited in its intrusiveness as is consistent with satisfaction of the administrative need that justifies it," each person must be able to "avoid search by electing not to board the aircraft." ¹²⁷⁰

5.903 Searches by Public School Authorities.

In New Jersey v. T.L.O., ¹²⁷¹ the Supreme Court held that searches by public school authorities, while controlled by the Fourth Amendment, are subject to less stringent, or perhaps diluted, warrant and probable cause requirements applied elsewhere. Notably, the search at issue occurred in a high school, as opposed to a public university predominantly attended by adults, where a student's purse was searched. The Court held that, while the Fourth Amendment applies to searches by school authorities, the search could be conducted without a warrant or full probable cause. The search of a student by school personnel is justifiable when there are "reasonable grounds . . . that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school." ¹²⁷² Further, a search is permissible when the scope of the search is "reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction." ¹²⁷³ A "strip search" of a student alleged to have possessed Advil in violation of school policy was deemed to be too intrusive because the "content of the suspicion failed to match the degree of intrusion." ¹²⁷⁴ However, a search of her backpack and outer clothing would have been acceptable. ¹²⁷⁵

5.904 Drug Testing.

Public and private employers sometimes institute policy to conduct routine or random drug screens on employees. When private employers institute such a policy, presupposing there is not significant government involvement, the Fourth Amendment is not implicated. ¹²⁷⁶ However, governmental testing of its employees and testing of private employees pursuant to governmental direction do present Fourth Amendment issues because drug testing requires obtaining a sample (for example, urine) that constitutes a "search." ¹²⁷⁷ Required drug testing is not determined by typical standards of the Fourth Amendment but rather by a more general standard of "reasonableness," taking into consideration the employee's responsibilities, empirical data concerning the necessity of testing, and the discretion associated with an employer selecting employees for testing. ¹²⁷⁸

5.905 Pretextual Police Motive.

The United States Supreme Court has made clear that an officer's subjective motivation for a traffic stop, including pretextual stops, is permissible and irrelevant to the Fourth Amendment analysis as long as, when objectively evaluated, there is sufficient probable cause or reasonable articulable suspicion to justify the stop. ¹²⁷⁹ In Scott v. United States, ¹²⁸⁰ the 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. In Whren v. United States, ¹²⁸¹ the Court held that applicable "cases foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved. . . . Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis." Similarly, police may, by means of a lawful arrest, use the opportunity to learn more about an activity for which they have no probable cause to act. ¹²⁸² The absence of probable cause to arrest for the particular crime for which the defendant was arrested also does not create an invalid arrest if, at the time, the officer had sufficient information to arrest for another crime. ¹²⁸³

5.906 Roadblocks and Checkpoints.

Roadblocks, in contrast to checkpoints, are used when law enforcement seeks to discover and apprehend a person involved in a particular crime in the area. In City of Indianapolis v. Edmond, ¹²⁸⁴ the United States Supreme Court held that law enforcement may not stop motorists at roadblocks established for drug interdiction purposes. The Court noted that if police were permitted to institute roadblocks for those purposes, "there would be little check on the ability of the authorities to construct roadblocks for almost any conceivable law enforcement purpose." ¹²⁸⁵

However, the Supreme Court of Virginia approved a roadblock designed to investigate a murder that had recently occurred where the perpetrator's identity and whereabouts were unknown. The court cited Edmond's language, permitting roadblocks for emergency circumstances even if its purpose is to investigate ordinary criminal wrongdoing. ¹²⁸⁶

The court stated that the legitimacy of a roadblock is determined by evaluating:

(1) the gravity of the public concerns served by the seizure, (2) the degree to which the seizure advances the public interest, and (3) the severity of the interference with individual liberty. A roadblock is not an unconstitutional infringement on an individual's privacy if it is "carried out pursuant to a plan or practice which is explicit, contains neutral criteria, and limits the conduct of the officers undertaking the roadblock." ¹²⁸⁷

In Simmons v. Commonwealth, ¹²⁸⁸ the Virginia Supreme Court invalidated a roadblock to check equipment and registration. The court found that the roadblock was not executed pursuant to an explicit plan containing neutral criteria limiting the conduct and discretion of the officers involved in the roadblock. The court held that the roadblock in question violated the Fourth Amendment even though all automobiles were stopped.

Checkpoints, as opposed to roadblocks, are employed by law enforcement, typically, to ensure driver sobriety at fixed and temporary locations. Checkpoints do constitute a seizure when a defendant stops. ¹²⁸⁹ In Michigan Department of State Police v. Sitz, ¹²⁹⁰ the Supreme Court upheld the use of a sobriety checkpoint where law enforcement stopped and briefly detained all motorists approaching the checkpoint. The court used a three-factor analysis weighing the gravity of the public concern (namely, drunk driving) served by the seizure, the degree to which the seizure advanced the public interest, and the severity of the interference with individual freedom.

Checkpoints are constitutional when there is a neutral plan in place that limits law enforcement officers' conduct and discretion on-scene. ¹²⁹¹ Officers must not be stripped of all discretion, but rather they must not be permitted to have "unbridled discretion" where their conduct is "completely at liberty: unrestrained, ungoverned, unchecked." ¹²⁹²

Evasion of a checkpoint may constitute reasonable articulable suspicion to stop the vehicle at issue. However, "a driver's undertaking a lawful driving maneuver which has the effect of avoiding a checkpoint does not, standing alone and without more, furnish reasonable suspicion of possible criminal activity." ¹²⁹³ However, turning into a private driveway, hesitating, looking at the officers, and stopping the vehicle approximately 75 yards from the checkpoint was sufficient cause to stop the vehicle. ¹²⁹⁴ Conversely, a lawful turn 350...