Chapter 6. Search and Seizure

• Author: Ken Wallentine
• Pages: 133-177

133

CHAPTER 6

SEARCH AND SEIZURE

Constitutional Parameters of Warrants and Warrantless

Searches

What constitutes a “search” under the Fourth

Amendment?

Activities considered not to be searches

Abandoned property

Canine sniff

Open field

Aerial surveillance

Plain view

Plain smell

Plain hearing

Private citizen search

Field test

Overview of Warrant Clause Exceptions

Consent

Automobile

Plain touch

Search incident to a lawful arrest

Administrative searches

Administrative searches of personal effects, desks, and

lockers

Administrative security screening

Inventory and community care-taking

Exigent circumstances

Evanescent evidence

Special government needs

Probation and parole searches

Inmate and cell searches

Visitor searches

Miscellaneous exceptions

CHAPTER SIX134

Constitutional Parameters of Warrants and

Warrantless Searches

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, sup-

ported by oath or affirmation, and particularly de-

scribing the place to be searched, and the persons or

things to be seized.

UNITED STATES CONSTITUTION

Fourth Amendment

The Fourth Amendment is the basic restriction on all searches

by police. It applies equally to state and federal officers.

Wolf v. Colorado

, 338 U.S. 25 (1949). There are two distinct

clauses in the Fourth Amendment: one contains a prohibi-

tion on unreasonable searches and seizures, and the other a

requirement of probable cause for all search warrants.

Searches conducted without a warrant are presumed to be

unlawful.

Mincey v. Arizona

, 437 U.S. 385 (1978). This

means that the prosecution bears the burden of showing that

a warrantless search falls under an established exception to

the warrant requirement of the Fourth Amendment.

Welsh v.

Wisconsin

, 466 U.S. 740 (1984). This chapter first addresses

activities that are not searches under the Fourth Amendment

and then activities that are excepted from the warrant re-

quirement of the Fourth Amendment.

What constitutes a “search” under the Fourth

Amendment?

Unless a person has a legitimate expectation of privacy,

there can be no “search” protected by the Fourth Amend-

ment. Items found in plain view or abandoned are not con-

sidered products of a search, since the target has not

demonstrated an expectation of privacy. A person cannot

challenge the legality of a search unless the person has a

legitimate expectation of privacy in the area that is searched.

Minnesota v. Carter

, 525 U.S. 83 (1998). Having a legiti-

mate expectation of privacy is often referred to as having

“standing” to contest the search.

An expectation of privacy arises in many different con-

texts. For example, courts have recognized the following as

having legitimate expectations of privacy: body fluids, skin,

SEARCH AND SEIZURE 135

and cell samples,

Skinner v. Railway Labor Executives’ Ass’n

,

489 U.S. 602 (1989); containers intended to shield the view

of contents,

United States v. Ross

, 456 U.S. 798 (1982);

homes,

United States v. U.S. District Court

, 407 U.S. 297

(1972); curtilage of a home,

United States v. Dunn

, 480 U.S.

294 (1987); heat emanating from a home,

Kyllo v. United

States

, 553 U.S. 27 (2001); mail contents (not information

on the outside of mail),

United States v. Van Leeuwen

, 397

U.S. 249 (1970); a makeshift tent pitched on public lands,

United States v. Sandoval

, 200 F.3d 659 (9th Cir. 2000); and

hotel rooms,

Stoner v. California

, 376 U.S. 483 (1964).

The following areas or activities have been found not to

hold a legitimate expectation of privacy: two persons stand-

ing in a one-person restroom for an extended time,

United

States v. Hill

, 393 F.3d 839 (8th Cir. 2005); sound of a person’s

voice,

United States v. Dionisio

, 410 U.S. 1 (1973); a per-

son on a “banned” list visiting public housing,

State v. Oien

,

717 N.W.2d 593 (N.D. 2006); a squatter in an abandoned

residence,

Whiting v. State

, 885 A.2d 785 (Md. 2005); com-

mon areas of an apartment complex,

United States v. Barnes

,

399 F. Supp. 2d 169 (W.D.N.Y. Oct. 31, 2005); fingerprints,

Davis v. Mississippi

, 394 U.S. 721 (1969); handwriting,

United States v. Mara

, 410 U.S. 19 (1973); exterior of a car

and vehicle identification number,

New York v. Class

, 475

U.S. 106 (1986); portion of a car’s interior visible through

windows,

Texas v. Brown

, 460 U.S. 730 (1983); trash left at

the curb,

California v. Greenwood

, 486 U.S. 35 (1988); and

prison cells,

Hudson v. Palmer

, 468 U.S. 517 (1984).

Activities considered not to be searches

Because of the lack of a legitimate expectation of privacy,

a number of law enforcement activities that may (or may

not) lead to the collection of evidence are not considered

searches. These activities include inspection of abandoned

property, canine sniff, views of an open field, aerial surveil-

lance, plain view, plain smell, plain hearing, and field tests

to determine drug identification. One other activity that is

not a search (for purposes of the Fourth Amendment) is a

search by a private citizen. The Fourth Amendment applies

only to government officers and agents.

Abandoned property

When an owner voluntarily abandons property, the owner

surrenders any privacy expectation. Property may be aban-