Investigations and police practices

• Pages: 3-268

I. INVESTIGATIONS AND POLICE PRACTICES

OVERVIEW OF THE FOURTH AMENDMENT

The Fourth Amendment to the United States Constitution governs all searches and

seizures conducted by government agents.

1

The Amendment contains two separate

clauses: (1) a prohibition against unreasonable searches and seizures, and (2) a

requirement that probable cause support each warrant that is issued.

2

Strictly speak-

ing, the Amendment requires neither a warrant nor probable cause to support a search

or seizure.

3

Nevertheless, the Supreme Court has imposed a presumptive warrant

requirement for searches and seizures

4

and generally requires probable cause for a

warrantless search or seizure to be “reasonable.”

5

The Court, however, has developed

several exceptions to the warrant and probable cause requirements.

6

An unlawful search or seizure neither precludes prosecution nor invalidates a sub-

sequent conviction.

7

Rather, the most common remedy for a Fourth Amendment vio-

lation is the suppression of illegally seized evidence.

8

Government Action. The Fourth Amendment applies to searches and seizures per-

formed by public officers acting in an official capacity or private parties acting at the

direction of a government authority.

9

Although a search or seizure conducted by a

I. INVESTIGATIONS AND

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1. The Fourth Amendment provides: “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.”U.S. CONST. amend. IV. The Fourth Amendment is applicable to state

officials through the Due Process Clause of the Fourteenth Amendment. See Wolf v. Colo., 338 U.S. 25, 27-28

(1949), overruled on other grounds by Mapp v. Ohio, 367 U.S. 643 (1961).

2. See U.S. CONST. amend. IV.

3. See Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652-53 (1995) (“[T]he ultimate measure of the

constitutionality of a governmental search [or seizure] is ‘reasonableness.’ . . . [A] warrant is not required to

establish the reasonableness of all government searches [and seizures]; and . . . probable cause is not invariably

required either.”); see also Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (“[B]ecause the ultimate

touchstone of the [4th] Amendment is ‘reasonableness,’ the warrant requirement is subject to certain

exceptions.”).

4. See Katz v. U.S., 389 U.S. 347, 357 (1967); see also Riley v. Cal., 573 U.S. 373, 382 (2014) (4th

Amendment requires warrant for search or seizure absent “a specific exception to the warrant requirement”);

Mo. v. McNeely, 569 U.S. 141, 148 (2013) (4th Amendment requires warrant for searches or seizures unless

recognized exception applies); City of Ontario v. Quon, 560 U.S. 746, 760 (2010) (4th Amendment requires

warrant for searches or seizures conducted by government officials acting in their capacity as employers unless

recognized exception applies).

5. See Carroll v. U.S., 267 U.S. 132, 155-56 (1925) (probable cause requires reasonableness for warrantless

searches and seizures); see also Hill v. Cal., 401 U.S. 797, 804 (1971) (“[S]ufficient probability, not certainty,

is the touchstone of reasonableness under the [4th] Amendment . . . .”).

6. These exceptions are discussed in WARRANTLESS SEARCHES AND SEIZURES in this Part.

7. See Gerstein v. Pugh, 420 U.S. 103, 118-19 (1975); see also INS v. Lopez-Mendoza, 468 U.S. 1032, 1040

(1984) (illegal arrest did not invalidate subsequent deportation hearing).

8. See Weeks v. U.S., 232 U.S. 383, 398 (1914) (barring use in federal courts of evidence seized by federal

officers in violation of 4th Amendment), overruled on other grounds by Mapp v. Ohio, 367 U.S. 643 (1961);

see also Mapp, 367 U.S. at 655 (barring use in state courts of evidence seized in violation of 4th Amendment).

This doctrine is discussed more fully in THE EXCLUSIONARY RULE in this Part.

9. See Skinner v. Ry. Lab. Exec.’s Ass’n, 489 U.S. 602, 613-14 (1989) (4th Amendment applies to “certain

arbitrary and invasive acts by officers of the Government or those acting at their direction”); see also City of

Ontario v. Quon, 560 U.S. 746, 755-56 (2010) (government’s actions as employer are subject to 4th

Amendment restrictions); Ferguson v. City of Charleston, 532 U.S. 67, 76 (2001) (state hospital employees are

state actors subject to 4th Amendment restrictions); N.J. v. T.L.O., 469 U.S. 325, 336 (1985) (public school

officials are state actors subject to 4th Amendment restrictions); see, e.g., U.S. v. Doe, 61 F.3d 107, 109 n.3 (1st

Cir. 1995) (nongovernmental personnel manning airport security checkpoints are state actors when conducting

searches per FAA’s administrative directives); Cassidy v. Chertoff, 471 F.3d 67, 74 (2d Cir. 2006) (ferry

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operators are state actors when conducting legally required searches of passenger automobiles and bags per

Coast Guard approved plan); Reedy v. Evanson, 615 F.3d 197, 225 (3d Cir. 2010) (medical personnel are state

actors when drawing and testing blood per officer’s direction); U.S. v. Simons, 206 F.3d 392, 396-98 (4th Cir.

2000) (information technology analysts are state actors when contracting with and directed by government

officers to inspect employees’ computer activity); Marks v. Hudson, 933 F.3d 481, 486 (5th Cir. 2019) (social

workers are state actors when investigating child abuse allegations); U.S. v. Hardin, 539 F.3d 404, 420 (6th Cir.

2008) (apartment manager is state actor when complying with officer’s suggestion to enter suspect’s

apartment); U.S. v. Shelton, 997 F.3d 749, 778 (7th Cir. 2021) (coworker is state actor when searching

another’s office under direction of FBI); U.S. v. Pulido-Ayala, 892 F.3d 315, 318-19 (8th Cir. 2018) (trained

police canine is state actor when directed to investigate by police officer); George v. Edholm, 752 F.3d 1206,

1215-16 (9th Cir. 2014) (private doctor is state actor when assisted and encouraged by police in searching

patient’s rectum for cocaine); U.S. v. Ackerman, 831 F.3d 1292, 1295-97 (10th Cir. 2016) (nonprofit

organization is state actor when required by statute to find and report child pornography to law enforcement).

But see, e.g., Coolidge v. N.H., 403 U.S. 443, 487-90 (1971) (plurality opinion) (defendant’s wife not state

actor because no evidence of coercion, domination, or subtle direction of wife’s actions by police), overruled in

part on other grounds by Horton v. Cal., 496 U.S. 128 (1990); U.S. v. Powell, 925 F.3d 1, 5 (1st Cir. 2018)

(chat website not state actor when sending incriminating screenshots of child pornography to national

organization as required by statute); U.S. v. DiTomasso, 932 F.3d 58, 65-67 (2d Cir. 2019) (chat website not

state actor when monitoring chat for reasons other than “to ferret out evidence of criminal activity”); Harvey v.

Plains Twp. Police Dep’t, 421 F.3d 185, 196 (3d Cir. 2005) (landlord not state actor when opening door to

allow tenant’s ex-boyfriend and accompanying police officer to retrieve personal possessions); U.S. v. Fall, 955

F.3d 363, 367-69 (4th Cir. 2020) (houseguest not state actor when discovered child pornography on laptop and

reported it to police); U.S. v. Reddick, 900 F.3d 636, 639 (5th Cir. 2018) (technology company not state actor

when monitoring for and reporting child pornography content uploaded to its cloud computing software); U.S.

v. Miller, 982 F.3d 412, 418-20 (6th Cir. 2020) (Google not state actor when scanning for and reporting child

pornography in customers’ email files); U.S. v. Bebris, 4 F.4th 551, 562 (7th Cir. 2021) (private social media

company not state actor when using image-recognition technology to identify and report child pornography

transmitted through private messaging system); U.S. v. Suellentrop, 953 F.3d 1047, 1050 (8th Cir. 2020)

(houseguest not state actor when voluntarily unlocking and searching homeowner’s cell phone and doing it

again with police present); U.S. v. Tosti, 733 F.3d 816, 821-22 (9th Cir. 2013) (computer technician not state

actor when calling police after finding child pornography); U.S. v. Benoit, 713 F.3d 1, 10 (10th Cir. 2013)

(girlfriend not state actor when finding child pornography on partner’s computer because no intent to aid

police); U.S. v. Castaneda, 997 F.3d 1318, 1328 (11th Cir. 2021) (friends not state actors when they discovered

and reported child pornography found on defendant’s computer).

The Fourth Amendment does not directly govern the conduct of tribal governments. See U.S v. Bryant, 579

U.S. 140, 149 (2016); see also Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978) (“[T]ribes have

historically been regarded as unconstrained by those constitutional provisions framed specifically as limitations

on federal or state authority.”). However, the Indian Civil Rights Act imposes restrictions on tribal

governments identical to those contained in the Fourth Amendment. 25 U.S.C. § 1302(a)(2); See Santa Clara

Pueblo, 436 U.S. at 57 & n.8. Fourth Amendment protections do not apply to government action against

nonresidents outside the United States without substantial and voluntary connections to the United States. See

U.S. v. Verdugo-Urquidez, 494 U.S. 259, 274-75 (1990) (4th Amendment not implicated when U.S. and

Mexican officials searched Mexican citizen’s properties in Mexico); see, e.g., U.S. v. Vilches-Navarrete, 523

F.3d 1, 12-13 (1st Cir. 2008) (4th Amendment not implicated when U.S. Coast Guard acted against Chilean

suspect on Honduran ship in international waters); U.S. v. Hasbajrami, 945 F.3d 641, 664-65 (2d Cir. 2019)

(4th Amendment not implicated when U.S. government collected “emails of foreign individuals located

abroad”); U.S. v. Inigo, 925 F.2d 641, 656 (3d Cir. 1991) (4th Amendment not implicated when nonresident’s

property seized on foreign soil); U.S. v. Rojas, 812 F.3d 382, 397-98 (5th Cir. 2016) (4th Amendment not

implicated when Colombian National Police performed wiretap search of Colombian citizens involved in drug

conspiracy); U.S. v. Mohamud, 843 F.3d 420, 439 (9th Cir. 2016) (4th Amendment not implicated when

foreign citizen with no substantial connection to U.S. seized in foreign country); U.S. v. Cabezas-Montano, 949

F.3d 567, 594 (11th Cir. 2020) (4th Amendment not implicated when Ecuadorian citizen with no substantial

connection to U.S. arrested in international waters without presentment to magistrate judge for 49 days).

In addition, Fourth Amendment protections do not apply to a foreign government’s independent,

extraterritorial action against United States citizens. See, e.g., U.S. v. Valdivia, 680 F.3d 33, 51-52 (1st Cir.

2012) (4th Amendment not implicated when Aruban authorities conducted wiretap with minimal involvement

by U.S. agents); U.S. v. Getto, 729 F.3d 221, 231-34 (2d Cir. 2013) (4th Amendment not implicated when

Israeli authorities’ surveilled U.S. citizen without U.S. control or direction); U.S. v. Odoni, 782 F.3d 1226,

1238 (11th Cir. 2015) (4th Amendment not implicated when British authorities seized electronic data files of

U.S. citizen on British soil). However, the Fourth Amendment does apply to United States government action

4 51 Geo. L.J. Ann. Rev. Crim. Proc. (2022)

private party not acting as a government agent is shielded from Fourth Amendment

scrutiny, any subsequent government search or seizure that exceeds the scope of the

initial private search must comply with the Fourth Amendment.

10

Conduct Constituting a Search or Seizure. A search is a governmental intrusion

onto private property for the purpose of obtaining information

11

or a governmental

violation of a person’s legitimate expectation of privacy.

12

The Supreme Court has

I. INVESTIGATIONS AND

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against United States citizens abroad. See Reid v. Covert, 354 U.S. 1, 5 (1957) (“[W]e reject the idea that when

the United States acts against citizens abroad it can do so free of the Bill of Rights.”); see also Verdugo-

Urquidez, 494 U.S. at 283 n.7 (Brennan, J., dissenting) (“[T]he rule, accepted by every Court of Appeals to

have considered the question, [is] that the [4th] Amendment applies to searches conducted by the United States

Government against United States citizens abroad.”); see, e.g., U.S. v. Vilar, 729 F.3d 62, 86 (2d Cir. 2013) (4th

Amendment implicated when U.S. and British authorities searched U.S. citizens’ warehouse in U.K.); U.S. v.

Baker, 609 F.2d 134, 140 (5th Cir. 1980) (4th Amendment implicated when U.S. Coast Guard searched vessel

of American citizens outside territorial sea of U.S.); U.S. v. Stokes, 726 F.3d 880, 891 (7th Cir. 2013) (4th

Amendment implicated when U.S. officials searched U.S. citizen’s home in Thailand with Thai authorities);

U.S. v. Juda, 46 F.3d 961, 968 (9th Cir. 1995) (4th Amendment implicated when DEA installed transmitter on

vessel in Australian port to track U.S. citizens).

10. See U.S. v. Jacobsen, 466 U.S. 109, 117-18 (1984); see also Walter v. U.S., 447 U.S. 649, 657 (1980)

(4th Amendment violated when federal agents exceeded scope of private search by unsealing and screening

films not previously screened by private employees); see, e.g., U.S. v. D’Andrea, 648 F.3d 1, 9 (1st Cir. 2011)

(4th Amendment violated when agents from state’s department of social services obtained child pornography

photographs, exceeding scope of tipster’s search); U.S. v. Runyan, 275 F.3d 449, 464 (5th Cir. 2001) (4th

Amendment violated when police examined computer disks not examined by defendant’s estranged wife); U.S.

v. Lichtenberger, 786 F.3d 478, 488 (6th Cir. 2015) (4th Amendment violated when police officer searched

additional photographs of child pornography on defendant’s laptop); U.S. v. Rouse, 148 F.3d 1040, 1041-42

(8th Cir. 1998) (4th Amendment violated when officers searched suspect’s luggage and found items not

previously discovered in airline employee’s search); U.S. v. Mulder, 808 F.2d 1346, 1348-49 (9th Cir. 1987)

(4th Amendment violated when police sent pills discovered by hotel staff to toxicology lab for analysis); U.S.

v. Ackerman, 831 F.3d 1292, 1305-07 (10th Cir. 2016) (4th Amendment violated when government agent

opened email and viewed attachments unexamined by AOL); U.S. v. Sparks, 806 F.3d 1323, 1335 (11th Cir.

2015) (4th Amendment violated when officers viewed second video on defendant’s cell phone that private party

never saw), overruled on other grounds by U.S. v. Ross, 963 F.3d 1056 (11th Cir. 2020). But see, e.g., U.S. v.

Rivera-Morales, 961 F.3d 1, 10-15 (1st Cir. 2020) (4th Amendment not violated when police viewed only the

video given to them and previously seen by defendant’s wife); U.S. v. Knoll, 116 F.3d 994, 997-98 (2d Cir.

1997) (4th Amendment not violated when government requested documents stolen from defendant’s office

because burglars had previously viewed all requested documents); U.S. v. Williams, 41 F.3d 192, 196-97 (4th

Cir. 1994) (4th Amendment not violated when police searched cocaine packages plainly viewable in suitcase

after airport employee conducted independent search); U.S. v. Oliver, 630 F.3d 397, 408 (5th Cir. 2011) (4th

Amendment not violated when police read notebook unread by defendant’s girlfriend, but girlfriend’s search

made notebook’s contents obvious); U.S. v. Bowers, 594 F.3d 522, 526-27 (6th Cir. 2010) (4th Amendment not

violated when officer re-examined materials initially searched by private party); U.S. v. Ringland, 966 F.3d

731, 736-37 (8th Cir. 2020) (4th Amendment not violated when police “searched only the same files that

Google searched”); U.S. v. Tosti, 733 F.3d 816, 821-22 (9th Cir. 2013) (4th Amendment not violated when

police enlarged thumbnail images of photos previously viewed by private party because evidence of illegal

activity discernible in unenlarged thumbnail images); U.S. v. Benoit, 713 F.3d 1, 10-11 (10th Cir. 2013) (4th

Amendment not violated when police officer “passively viewed”electronic file that reporting parties had

already viewed); U.S. v. Sparks, 806 F.3d 1323, 1334-35 (11th Cir. 2015) (4th Amendment not violated when

officer only viewed photos included in private search), overruled on other grounds by U.S. v. Ross, 963 F.3d

1056 (11th Cir. 2020).

11. See Collins v. Va., 138 S. Ct. 1663, 1670 (2018) (“When a law enforcement officer physically intrudes

on the curtilage to gather evidence, a search within the meaning of the [4th] Amendment has occurred.”); see

also Grady v. N.C., 575 U.S. 306, 308 (2015) (search when state placed tracking device on convicted sex

offender to monitor defendant’s movements); Fla. v. Jardines, 569 U.S. 1, 8-10 (2013) (search when officer

used drug sniffing dog on front porch of home, intruding onto defendant’s property to determine whether drugs

were in home); U.S. v. Jones, 565 U.S. 400, 404-05 (2012) (search when officers attached GPS device to

vehicle exterior, intruding on defendant’s private property to track defendant’s movements); see, e.g., Whalen

v. McMullen, 907 F.3d 1139, 1150-51 (9th Cir. 2018) (search when officer lied to homeowner about purpose of

visit to enter and gather evidence for fraud investigation).

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