Chapter 6. Search and Seizure

AuthorKen Wallentine
Constitutional Parameters of Warrants and Warrantless
What constitutes a “search” under the Fourth
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
Plain touch
Search incident to a lawful arrest
Administrative searches
Administrative searches of personal effects, desks, and
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
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.
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
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.
, 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
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,
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);
United States v. U.S. District Court
, 407 U.S. 297
(1972); curtilage of a home,
United States v. Dunn
294 (1987); heat emanating from a home,
Kyllo v. United
, 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,
States v. Hill
, 393 F.3d 839 (8th Cir. 2005); sound of a person’s
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
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
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-

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