[Constitution of the United States of America:  Analysis, and Interpretation - 1992 Edition ]
[Amendments to the Constitution]
[Fourth Amendment - Search and Seizure]
[From the U.S. Government Printing Office, www.gpo.gov]

[[Page 1197]]

                            FOURTH AMENDMENT


                           SEARCH AND SEIZURE



        Search and Seizure........................................  1199
        History and Scope of the Amendment........................  1199
                History...........................................  1199
                Scope of the Amendment............................  1200
                The Interest Protected............................  1205
                Arrests and Other Detentions......................  1209
                Searches and Inspections in Noncriminal Cases.....  1211
        Searches and Seizures Pursuant to Warrant.................  1215
                Issuance by Neutral Magistrate....................  1216
                Probable Cause....................................  1217
                Particularity.....................................  1220
                First Amendment Bearing on Probable Cause and 
                    Particularity.................................  1221
                Property Subject to Seizure.......................  1223
                Execution of Warrants.............................  1226
        Valid Searches and Seizures Without Warrants..............  1228
                Detention Short of Arrest: Stop-and-Frisk.........  1229
                Search Incident to Arrest.........................  1234
                Vehicular Searches................................  1238
                Vessel Searches...................................  1241
                Consent Searches..................................  1242
                Border Searches...................................  1243
                ``Open Fields''...................................  1245
                ``Plain View''....................................  1246
                Public Schools....................................  1246
                Government Offices................................  1247
                Prisons and Regulation of Probation...............  1247
                Drug Testing......................................  1248
        Electronic Surveillance and the Fourth Amendment..........  1250
                The Olmstead Case.................................  1250
                Federal Communications Act........................  1251
                Nontelephonic Electronic Surveillance.............  1251
                The Berger and Katz Cases.........................  1252
                Warrantless ``National Security'' Electronic 
                    Surveillance..................................  1255
        Enforcing the Fourth Amendment: The Exclusionary Rule.....  1257
                Alternatives to the Exclusionary Rule.............  1257
                Development of the Exclusionary Rule..............  1258
                The Foundations of the Exclusionary Rule..........  1262
                Narrowing Application of the Exclusionary Rule....  1264
                Operation of the Rule: Standing...................  1269

[[Page 1199]]
                            FOURTH AMENDMENT
                           SEARCH AND SEIZURE


  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.

                           SEARCH AND SEIZURE

      History and Scope of the Amendment

        History.--Few provisions of the Bill of Rights grew so directly 
out of the experience of the colonials as the Fourth Amendment, 
embodying as it did the protection against the utilization of the 
``writs of assistance.'' But while the insistence on freedom from 
unreasonable searches and seizures as a fundamental right gained 
expression in the Colonies late and as a result of experience,\1\ there 
was also a rich English experience to draw on. ``Every man's house is 
his castle'' was a maxim much celebrated in England, as was demonstrated 
in Semayne's Case, decided in 1603.\2\ A civil case of execution of 
process, Semayne's Case nonetheless recognized the right of the 
homeowner to defend his house against unlawful entry even by the King's 
agents, but at the same time recognized the authority of the appropriate 
officers to break and enter upon notice in order to arrest or to execute 
the King's process. Most famous of the English cases was Entick v. 
Carrington,\3\ one of a series of civil actions against state officers 
who, pursuant to general warrants, had raided many homes and other 
places in search of materials

[[Page 1200]]
connected with John Wilkes' polemical pamphlets attacking not only 
governmental policies but the King himself.\4\

        \1\Apparently the first statement of freedom from unreasonable 
searches and seizures appeared in The Rights of the Colonists and a List 
of Infringements and Violations of Rights, 1772, in the drafting of 
which Samuel Adams took the lead. 1 B. Schwartz, The Bill of Rights: A 
Documentary History 199, 205-06 (1971).
        \2\5 Coke's Rep. 91a, 77 Eng. Rep. 194 (K.B. 1604). One of the 
most forceful expressions of the maxim was that of William Pitt in 
Parliament in 1763: ``The poorest man may in his cottage bid defiance to 
all the force of the crown. It may be frail--its roof may shake--the 
wind may blow through it--the storm may enter, the rain may enter--but 
the King of England cannot enter--all his force dares not cross the 
threshold of the ruined tenement.''
        \3\19 Howell's State Trials 1029, 95 Eng. 807 (1705).
        \4\See also Wilkes v. Wood, 98 Eng. 489 (C.P. 1763); Huckle v. 
Money, 95 Eng. Rep. 768 (K.B. 1763), aff'd 19 Howell's State Trials 
1002, 1028; 97 Eng. Rep. 1075 (K.B. 1765).

        Entick, an associate of Wilkes, sued because agents had forcibly 
broken into his house, broken into locked desks and boxes, and seized 
many printed charts, pamphlets and the like. In an opinion sweeping in 
terms, the court declared the warrant and the behavior it authorized 
subversive ``of all the comforts of society,'' and the issuance of a 
warrant for the seizure of all of a person's papers rather than only 
those alleged to be criminal in nature ``contrary to the genius of the 
law of England.''\5\ Besides its general character, said the court, the 
warrant was bad because it was not issued on a showing of probable cause 
and no record was required to be made of what had been seized. Entick v. 
Carrington, the Supreme Court has said, is a ``great judgment,'' ``one 
of the landmarks of English liberty,'' ``one of the permanent monuments 
of the British Constitution,'' and a guide to an understanding of what 
the Framers meant in writing the Fourth Amendment.\6\

        \5\5 Eng. Rep. 817, 818.
        \6\Boyd v. United States, 116 U.S. 616, 626 (1886).

        In the colonies, smuggling rather than seditious libel afforded 
the leading examples of the necessity for protection against 
unreasonable searches and seizures. In order to enforce the revenue 
laws, English authorities made use of writs of assistance, which were 
general warrants authorizing the bearer to enter any house or other 
place to search for and seize ``prohibited and uncustomed'' goods, and 
commanding all subjects to assist in these endeavors. The writs once 
issued remained in force throughout the lifetime of the sovereign and 
six months thereafter. When, upon the death of George II in 1760, the 
authorities were required to obtain the issuance of new writs, 
opposition was led by James Otis, who attacked such writs on libertarian 
grounds and who asserted the invalidity of the authorizing statutes 
because they conflicted with English constitutionalism.\7\ Otis lost and 
the writs were issued and utilized, but his arguments were much cited in 
the colonies not only on the immediate subject but also with regard to 
judicial review.

        \7\The arguments of Otis and others as well as much background 
material are contained in Quincy's Massachusetts Reports, 1761-1772, 
App. I, pp. 395-540, and in 2 Legal Papers of John Adams 106-47 (Wroth & 
Zobel eds., 1965). See also Dickerson, Writs of Assistance as a Cause of 
the American Revolution, in The Era of the American Revolution: Studies 
Inscribed to Evarts Boutell Greene 40 (R. Morris, ed., 1939).

        Scope of the Amendment.--The language of the provision which 
became the Fourth Amendment underwent some modest

[[Page 1201]]
changes on its passage through the Congress, and it is possible that the 
changes reflected more than a modest significance in the interpretation 
of the relationship of the two clauses. Madison's introduced version 
provided ``The rights to be secured in their persons, their houses, 
their papers, and their other property, from all unreasonable searches 
and seizures, shall not be violated by warrants issued without probable 
cause, supported by oath or affirmation, or not particularly describing 
the places to be searched, or the persons or things to be seized.''\8\ 
As reported from committee, with an inadvertent omission corrected on 
the floor,\9\ the section was almost identical to the introduced 
version, and the House defeated a motion to substitute ``and no warrant 
shall issue'' for ``by warrants issuing'' in the committee draft. In 
some fashion, the rejected amendment was inserted in the language before 
passage by the House and is the language of the ratified constitutional 

        \8\1 Annals of Congress 434-35 (June 8, 1789).
        \9\The word ``secured'' was changed to ``secure'' and the phrase 
``against unreasonable searches and seizures'' was reinstated. Id. at 
754 (August 17, 1789).
        \10\Id. It has been theorized that the author of the defeated 
revision, who was chairman of the committee appointed to arrange the 
amendments prior to House passage, simply inserted his provision and 
that it passed unnoticed. N. Lasson, The History and Development of the 
Fourth Amendment to the United States Constitution 101-03 (1937).

        As noted above, the noteworthy disputes over search and seizure 
in England and the colonies revolved about the character of warrants. 
There were, however, lawful warrantless searches, primarily searches 
incident to arrest, and these apparently gave rise to no disputes. Thus, 
the question arises whether the Fourth Amendment's two clauses must be 
read together to mean that the only searches and seizures which are 
``reasonable'' are those which meet the requirements of the second 
clause, that is, are pursuant to warrants issued under the prescribed 
safeguards, or whether the two clauses are independent, so that searches 
under warrant must comply with the second clause but that there are 
``reasonable'' searches under the first clause which need not comply 
with the second clause.\11\ This issue has divided the Court for some 
time, has

[[Page 1202]]
seen several reversals of precedents, and is important for the 
resolution of many cases. It is a dispute which has run most 
consistently throughout the cases involving the scope of the right to 
search incident to arrest.\12\ While the right to search the person of 
the arrestee without a warrant is unquestioned, how far afield into 
areas within and without the control of the arrestee a search may range 
is an interesting and crucial matter.

        \11\The amendment was originally in one clause as quoted above; 
it was the insertion of the defeated amendment to the language which 
changed the text into two clauses and arguably had the effect of 
extending the protection against unreasonable searches and seizures 
beyond the requirements imposed on the issuance of warrants. It is also 
possible to read the two clauses together to mean that some seizures 
even under warrants would be unreasonable, and this reading has indeed 
been effectuated in certain cases, although for independent reasons. 
Boyd v. United States, 116 U.S. 616 (1886); Gouled v. United States, 255 
U.S. 298 (1921), overruled by Warden v. Hayden, 387 U.S. 294 (1967); but 
see id. at 303 (reserving the question whether ``there are items of 
evidential value whose very nature precludes them from being the object 
of a reasonable search and seizure.'')
        \12\Approval of warrantless searches pursuant to arrest first 
appeared in dicta in several cases. Weeks v. United States, 232 U.S. 
383, 392 (1914); Carroll v. United States, 267 U.S. 132, 158 (1925); 
Agnello v. United States, 269 U.S. 20, 30 (1925). Whether or not there 
is to be a rule or a principle generally preferring or requiring 
searches pursuant to warrant to warrantless searches, however, has 
ramifications far beyond the issue of searches pursuant to arrest. 
United States v. United States District Court, 407 U.S. 297, 320 (1972).

        The Court has drawn a wavering line.\13\ In Harris v. United 
States,\14\ it approved as ``reasonable'' the warrantless search of a 
four-room apartment pursuant to the arrest of the man found there. A 
year later, however, a reconstituted Court majority set aside a 
conviction based on evidence seized by a warrantless search pursuant to 
an arrest and adopted the ``cardinal rule that, in seizing goods and 
articles, law enforcement agents must secure and use search warrants 
wherever reasonably practicable.''\15\ This rule was set aside two years 
later by another reconstituted majority which adopted the premise that 
the test ``is not whether it is reasonable to procure a search warrant, 
but whether the search was reasonable.'' Whether a search is reasonable, 
the Court said, ``must find resolution in the facts and circumstances of 
each case.''\16\ However, the Court soon returned to its emphasis upon 
the warrant. ``The [Fourth] Amendment was in large part a reaction to 
the general warrants and warrantless searches that had so alienated the 
colonists and had helped speed the movement for independence. In the 
scheme of the Amendment, therefore, the requirement that `no Warrants 
shall issue, but upon probable cause,' plays a crucial part.''\17\ 
Therefore, ``the police must, whenever practicable, obtain advance 
judicial approval of searches and seizures through a warrant 
procedure.''\18\ Exceptions to searches under warrants were to

[[Page 1203]]
be closely contained by the rationale undergirding the necessity for the 
exception, and the scope of a search under one of the exceptions was 
similarly limited.\19\

        \13\Compare Marron v. United States, 275 U.S. 192 (1927), with 
Go-Bart Importing Co. v. United States, 282 U.S. 344 (1931), and United 
States v. Lefkowitz, 285 U.S. 452 (1932).
        \14\331 U.S. 145 (1947).
        \15\Trupiano v. United States, 334 U.S. 699, 705 (1948). See 
also McDonald v. United States, 335 U.S. 451 (1948).
        \16\United States v. Rabinowitz, 339 U.S. 56, 66 (1950).
        \17\Chimel v. California, 395 U.S. 752, 761 (1969).
        \18\Terry v. Ohio, 392 U.S. 1, 20 (1968). In United States v. 
United States District Court, 407 U.S. 297, 321 (1972), Justice Powell 
explained that the ``very heart'' of the Amendment's mandate is ``that 
where practical, a governmental search and seizure should represent both 
the efforts of the officer to gather evidence of wrongful acts and the 
judgment of the magistrate that the collected evidence is sufficient to 
justify invasion of a citizen's private premises or conversation.'' 
Thus, what is ``reasonable'' in terms of a search and seizure derives 
content and meaning through reference to the warrant clause. Coolidge v. 
New Hampshire, 403 U.S. 443, 473-84 (1971). See also Davis v. 
Mississippi, 394 U.S. 721, 728 (1969); Katz v. United States, 389 U.S. 
347, 356-58 (1967); Warden v. Hayden, 387 U.S. 294, 299 (1967).
        \19\Chimel v. California, 395 U.S. 752, 762-64 (1969) (limiting 
scope of search incident to arrest). See also United States v. United 
States District Court, 407 U.S. 297 (1972) (rejecting argument that it 
was ``reasonable'' to allow President through Attorney General to 
authorize warrantless electronic surveillance of persons thought to be 
endangering the national security); Katz v. United States, 389 U.S. 347 
(1967) (although officers acted with great self-restraint and reasonably 
in engaging in electronic seizures of conversations from telephone 
booth, self-imposition was not enough and magistrate's judgment 
required); Preston v. United States, 376 U.S. 364 (1964) (warrantless 
search of seized automobile not justified because not within rationale 
of exceptions to warrant clause). There were exceptions, e.g., Cooper v. 
California, 386 U.S. 58 (1967) (warrantless search of impounded car was 
reasonable); United States v. Harris, 390 U.S. 234 (1968) (warrantless 
inventory search of automobile).

        During the 1970s the Court was closely divided on which standard 
to apply.\20\ For a while, the balance tipped in favor of the view that 
warrantless searches are per se unreasonable, with a few carefully 
prescribed exceptions.\21\ Gradually, guided by the variable expectation 
of privacy approach to coverage of the Fourth Amendment, the Court 
broadened its view of permissible exceptions and of the scope of those 

        \20\See, e.g., Almeida-Sanchez v. United States, 413 U.S. 266 
(1973), Justices Stewart, Douglas, Brennan, and Marshall adhered to the 
warrant-based rule, while Justices White, Blackmun, and Rehnquist, and 
Chief Justice Burger placed greater emphasis upon the question of 
reasonableness without necessary regard to the warrant requirement. Id. 
at 285. Justice Powell generally agreed with the former group of 
Justices, id. at 275 (concurring).
        \21\E.g., G.M. Leasing Corp. v. United States, 429 U.S. 338, 
352-53 (1977) (unanimous); Marshall v. Barlow's, Inc., 436 U.S. 307, 312 
(1978); Michigan v. Tyler, 436 U.S. 499, 506 (1978); Mincey v. Arizona, 
437 U.S. 385, 390 (1978) (unanimous); Arkansas v. Sanders, 442 U.S. 743, 
758 (1979); United States v. Ross, 456 U.S. 798, 824-25 (1982).
        \22\E.g., Chambers v. Maroney, 399 U.S. 42 (1970) (warrantless 
search of automobile taken to police station); Texas v. White, 423 U.S. 
67 (1975) (same); New York v. Belton, 453 U.S. 454 (1981) (search 
incident to arrest); United States v. Ross, 456 U.S. 798 (1982) 
(automobile search at scene). On the other hand, the warrant-based 
standard did preclude a number of warrantless searches. E.g., Almeida-
Sanchez v. United States, 413 U.S. 266 (1973) (warrantless stop and 
search of auto by roving patrol near border); Marshall v. Barlow's, 
Inc., 436 U.S. 307 (1978) (warrantless administrative inspection of 
business premises); Mincey v. Arizona, 437 U.S. 385 (1978) (warrantless 
search of home that was ``homicide scene'').

        By 1992, it was no longer the case that the ``warrants-with-
narrow-exceptions'' standard normally prevails over a ``reasonableness'' 
approach.\23\ Exceptions to the warrant requirement have

[[Page 1204]]
multiplied, tending to confine application of the requirement to cases 
that are exclusively ``criminal'' in nature. And even within that core 
area of ``criminal'' cases, some exceptions have been broadened. The 
most important category of exception is that of administrative searches 
justified by ``special needs beyond the normal need for law 
enforcement.'' Under this general rubric the Court has upheld 
warrantless searches by administrative authorities in public schools, 
government offices, and prisons, and has upheld drug testing of public 
and transportation employees.\24\ In all of these instances the warrant 
and probable cause requirements are dispensed with in favor of a 
reasonableness standard that balances the government's regulatory 
interest against the individual's privacy interest; in all of these 
instances the government's interest has been found to outweigh the 
individual's. The broad scope of the administrative search exception is 
evidenced by the fact that an overlap between law enforcement objectives 
and administrative ``special needs'' does not result in application of 
the warrant requirement; instead, the Court has upheld warrantless 
inspection of automobile junkyards and dismantling operations in spite 
of the strong law enforcement component of the regulation.\25\ In the 
law enforcement context, where search by warrant is still the general 
rule, there has also been some loosening of the requirement. For 
example, the Court has shifted focus from whether exigent circumstances 
justified failure to obtain a warrant, to whether an officer had a 
``reasonable'' belief that an exception to the warrant requirement 
applied;\26\ in another case the scope of a valid search ``incident to 
arrest,'' once limited to areas within the immediate reach of the 
arrested suspect, was expanded to a ``protective sweep'' of the entire 
home if arresting officers have a reasonable belief that the home 
harbors an individual who may pose a danger.\27\

        \23\Of the 1992 Justices, only Justice Stevens has frequently 
sided with the warrants-with-narrow-exceptions approach. See, e.g., 
Illinois v. Rodriguez, 497 U.S. 177, 189 (Justice Stevens joining 
Justice Marshall's dissent); New Jersey v. T.L.O., 469 U.S. 325, 370 
(1985) (Justice Stevens dissenting); California v. Acevedo, 500 U.S. 
565, 585 (1991) (Justice Stevens dissenting).
        \24\See various headings infra under the general heading ``Valid 
Searches and Seizures Without Warrants.''
        \25\New York v. Burger, 482 U.S. 691 (1987).
        \26\Illinois v. Rodriguez, 497 U.S. 177 (1990).
        \27\Maryland v. Buie, 494 U.S. 325 (1990).

        Another matter of scope recently addressed by the Court is the 
category of persons protected by the Fourth Amendment--who constitutes 
``the people.'' This phrase, the Court determined, ``refers to a class 
of persons who are part of a national community or who have otherwise 
developed sufficient connection with [the United States] to be 
considered part of that community.''\28\ The Fourth Amendment therefore 
does not apply to the search and seizure by

[[Page 1205]]
United States agents of property that is owned by a nonresident alien 
and located in a foreign country. The community of protected people 
includes U.S. citizens who go abroad, and aliens who have voluntarily 
entered U.S. territory and developed substantial connections with this 
country. There is no resulting broad principle, however, that the Fourth 
Amendment constrains federal officials wherever and against whomever 
they act.

        \28\United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990).

        The Interest Protected.--For the Fourth Amendment to be 
applicable to a particular set of facts, there must be a ``search'' and 
a ``seizure,'' occurring typically in a criminal case, with a subsequent 
attempt to use judicially what was seized. Whether there was a search 
and seizure within the meaning of the Amendment, whether a complainant's 
interests were constitutionally infringed, will often turn upon 
consideration of his interest and whether it was officially abused. What 
does the Amendment protect? Under the common law, there was no doubt. 
Said Lord Camden in Entick v. Carrington:\29\ ``The great end for which 
men entered in society was to secure their property. That right is 
preserved sacred and incommunicable in all instances where it has not 
been taken away or abridged by some public law for the good of the 
whole. . . . By the laws of England, every invasion of private property, 
be it ever so minute, is a trespass. No man can set foot upon my ground 
without my license but he is liable to an action though the damage be 
nothing . . . .'' Protection of property interests as the basis of the 
Fourth Amendment found easy acceptance in the Supreme Court\30\ and that 
acceptance controlled decision in numerous cases.\31\ For example, in 
Olmstead v. United States,\32\ one of the two premises underlying the 
holding that wiretapping was not covered by the Amendment was that there 
had been no actual physical invasion of the defendant's premises; where 
there had been an invasion, a technical trespass, electronic 
surveillance was deemed subject to

[[Page 1206]]
Fourth Amendment restrictions.\33\ The Court later rejected this 
approach, however. ``The premise that property interests control the 
right of the Government to search and seize has been discredited. . . . 
We have recognized that the principal object of the Fourth Amendment is 
the protection of privacy rather than property, and have increasingly 
discarded fictional and procedural barriers rested on property 
concepts.''\34\ Thus, because the Amendment ``protects people, not 
places,'' the requirement of actual physical trespass is dispensed with 
and electronic surveillance was made subject to the Amendment's 

        \29\19 Howell's State Trials 1029, 1035, 95 Eng. Reg. 807, 817-
18 (1765).
        \30\Boyd v. United States, 116 U.S. 616, 627 (1886); Adams v. 
New York, 192 U.S. 585, 598 (1904).
        \31\Thus, the rule that ``mere evidence'' could not be seized 
but rather only the fruits of crime, its instrumentalities, or 
contraband, turned upon the question of the right of the public to 
possess the materials or the police power to make possession by the 
possessor unlawful. Gouled v. United States, 255 U.S. 298 (1921), 
overruled by Warden v. Hayden, 387 U.S. 294 (1967). See also Davis v. 
United States, 328 U.S. 582 (1946). Standing to contest unlawful 
searches and seizures was based upon property interests, United States 
v. Jeffers, 342 U.S. 48 (1951); Jones v. United States, 362 U.S. 257 
(1960), as well as decision upon the validity of a consent to search. 
Chapman v. United States, 365 U.S. 610 (1961); Stoner v. California, 376 
U.S. 483 (1964); Frazier v. Culp, 394 U.S. 731, 740 (1969).
        \32\277 U.S. 438 (1928). See also Goldman v. United States, 316 
U.S. 129 (1942) (detectaphone placed against wall of adjoining room; no 
search and seizure).
        \33\Silverman v. United States, 365 U.S. 505 (1961) (spike mike 
pushed through a party wall until it hit a heating duct).
        \34\Warden v. Hayden, 387 U.S. 294, 304 (1967).
        \35\Katz v. United States, 389 U.S. 347, 353 (1967). But see 
California v. Hodari D., 499 U.S. 621, 626 (1991) (Fourth Amendment 
``seizure'' of the person is the same as a common law arrest; there must 
be either application of physical force or submission to the assertion 
of authority).

        The test propounded in Katz is whether there is an expectation 
of privacy upon which one may ``justifiably'' rely.\36\ ``What a person 
knowingly exposes to the public, even in his own home or office, is not 
a subject of Fourth Amendment protection. But what he seeks to preserve 
as private, even in an area accessible to the public, may be 
constitutionally protected.''\37\ That is, the ``capacity to claim the 
protection of the Amendment depends not upon a property right in the 
invaded place but upon whether the area was one in which there was 
reasonable expectation of freedom from governmental intrusion.''\38\

        \36\389 U.S. at 353. Justice Harlan, concurring, formulated a 
two pronged test for determining whether the privacy interest is 
paramount: ``first that a person have exhibited an actual (subjective) 
expectation of privacy and, second, that the expectation be one that 
society is prepared to recognize as `reasonable.''' Id. at 361.
        \37\Id. at 351-52.
        \38\Mancusi v. DeForte, 392 U.S. 364, 368 (1968) (official had a 
reasonable expectation of privacy in an office he shared with others, 
although he owned neither the premises nor the papers seized). Minnesota 
v. Olson, 495 U.S. 91 (1990) (overnight guest in home has a reasonable 
expectation of privacy). Cf. Rakas v. Illinois, 439 U.S. 128 (1978).

        The two-part test that Justice Harlan suggested in Katz\39\ has 
purported to guide the Court in its deliberations, but its consequences 
are unclear. On the one hand, there is no difference in result between 
many of the old cases premised on property concepts and more recent 
cases in which the reasonable expectation of

[[Page 1207]]
privacy flows from ownership concepts.\40\ On the other hand, many other 
cases have presented close questions that have sharply divided the 
Court.\41\ The first element, the ``subjective expectation'' of privacy, 
has largely dwindled as a viable standard, because, as Justice Harlan 
noted in a subsequent case, ``our expectations, and the risks we assume, 
are in large part reflections of laws that translate into rules the 
customs and values of the past and present.''\42\ As for the second 
element, whether one has a ``legitimate'' expectation of privacy that 
society finds ``reasonable'' to recognize, the Court has said that 
``[l]egitimation of expectations of privacy by law must have a source 
outside of the Fourth Amendment, either by reference to concepts of real 
or personal property law or to understandings that are recognized and 
permitted by society.''\43\ Thus, protection of the home is at the apex 
of Fourth Amendment coverage because of the right associated with 
ownership to exclude others;\44\ but ownership of other things, i.e., 
automobiles, does not carry a similar high degree of protection.\45\ 
That a person has taken normal precautions to maintain his privacy, that 
is, precautions customarily taken by those seeking to exclude others, is 
usually a significant factor in determining legitimacy of 
expectation.\46\ Some expectations, the Court has held, are simply not 
those which society is prepared to accept.\47\ While perhaps not

[[Page 1208]]
clearly expressed in the opinions, what seems to have emerged is a 
balancing standard, which requires ``an assessing of the nature of a 
particular practice and the likely extent of its impact on the 
individual's sense of security balanced against the utility of the 
conduct as a technique of law enforcement.'' As the intrusions grow more 
extensive and significantly jeopardize the sense of security of the 
individual, greater restraint of police officers through the warrant 
requirement may be deemed necessary.\48\ On the other hand, the Court's 
solicitude for law enforcement objectives may tilt the balance in the 
other direction.

        \39\Justice Harlan's opinion has been much relied upon. E.g., 
Terry v. Ohio, 392 U.S. 1, 19 (1968); Rakas v. Illinois, 439 U.S. 128, 
143-144 n.12 (1978); Smith v. Maryland, 442 U.S. 735, 740-41 (1979); 
United States v. Salvucci, 448 U.S. 83, 91-92 (1980); Rawlings v. 
Kentucky, 448 U.S. 98, 105-06 (1980).
        \40\E.g., Alderman v. United States, 394 U.S. 165 (1969) (home 
owner could object to electronic surveillance of conversations emanating 
from his home, even though he was not party to the conversations).
        \41\E.g., Rakas v. Illinois, 439 U.S. 128 (1978) (4-1-4 
decision: passengers in automobile who own neither the car nor the 
property seized had no legitimate expectation of privacy in areas 
        \42\United States v. White, 401 U.S. 745, 786 (1971). See Smith 
v. Maryland, 442 U.S. 735, 740 n.5 (1979) (government could not 
condition ``subjective expectations'' by, say, announcing that 
henceforth all homes would be subject to warrantless entry, and thus 
destroy the ``legitimate expectation of privacy'').
        \43\Rakas v. Illinois, 439 U.S. 128, 144 n.12 (1978).
        \44\E.g., Alderman v. United States, 394 U.S. 165 (1969); Mincey 
v. Arizona, 437 U.S. 385 (1978); Payton v. New York, 445 U.S. 573 
        \45\E.g., United States v. Ross, 456 U.S. 798 (1982). See also 
Donovan v. Dewey, 452 U.S. 594 (1981) (commercial premises); Maryland v. 
Macon, 472 U.S. 463 (1985) (no legitimate expectation of privacy in 
denying to undercover officers allegedly obscene materials offered to 
public in bookstore).
        \46\E.g., United States v. Chadwick, 433 U.S. 1, 11 (1977); Katz 
v. United States, 389 U.S. 347, 352 (1967). But cf. South Dakota v. 
Opperman, 428 U.S. 364 (1976) (no legitimate expectation of privacy in 
automobile left with doors locked and windows rolled up). In Rawlings v. 
Kentucky, 448 U.S. 98 (1980), the fact that defendant had dumped a cache 
of drugs into his companion's purse, having known her for only a few 
days and knowing others had access to the purse, was taken to establish 
that he had no legitimate expectation the purse would be free from 
        \47\E.g., United States v. Miller, 425 U.S. 435 (1976) (bank 
records); Smith v. Maryland, 442 U.S. 735 (1979) (numbers dialed from 
one's telephone); Hudson v. Palmer, 468 U.S. 517 (1984) (prison cell); 
Illinois v. Andreas, 463 U.S. 765 (1983) (shipping container opened and 
inspected by customs agents and resealed and delivered to the 
addressee); California v. Greenwood, 486 U.S. 35 (1988) (garbage in 
sealed plastic bags left at curb for collection).
        \48\United States v. White, 401 U.S. 745, 786-87 (1971) (Justice 
Harlan dissenting).

        Application of this balancing test, because of the Court's 
weighing in of law enforcement investigative needs\49\ and the Court's 
subjective evaluation of privacy needs, has led to the creation of a 
two-tier or sliding-tier scale of privacy interests. The privacy test 
was originally designed to permit a determination that a Fourth 
Amendment protected interest had been invaded.\50\ If it had been, then 
ordinarily a warrant was required, subject only to the narrowly defined 
exceptions, and the scope of the search under those exceptions was 
``strictly tied to and justified by the circumstances which rendered its 
initiation permissible.''\51\ But the Court now uses the test to 
determine whether the interest invaded is important or persuasive enough 
so that a warrant is required to justify it;\52\ if the individual has a 
lesser expectation of privacy, then the invasion may be justified, 
absent a warrant, by the reasonableness of the intrusion.\53\ Exceptions 
to the warrant requirement are no

[[Page 1209]]
longer evaluated solely by the justifications for the exception, e.g., 
exigent circumstances, and the scope of the search is no longer tied to 
and limited by the justification for the exception.\54\ The result has 
been a considerable expansion, beyond what existed prior to Katz, of the 
power of police and other authorities to conduct searches.

        \49\E.g., Robbins v. California, 453 U.S. 420, 429, 433-34 
(1981) (Justice Powell concurring), quoted approvingly in United States 
v. Ross, 456 U.S. 798, 815-16 & n.21 (1982).
        \50\Katz v. United States, 389 U. S. 347, 351-52 (1967).
        \51\Terry v. Ohio, 392 U.S. 1, 19 (1968).
        \52\The prime example is the home, so that for entries either to 
search or to arrest, ``the Fourth Amendment has drawn a firm line at the 
entrance to the house. Absent exigent circumstances, that threshold may 
not reasonably be crossed without a warrant.'' Payton v. New York, 445 
U.S. 573, 590 (1980); Steagald v. United States, 451 U.S. 204, 212 
(1981). And see Mincey v. Arizona, 437 U.S. 385 (1978).
        \53\One has a diminished expectation of privacy in automobiles. 
Arkansas v. Sanders, 442 U.S. 753, 761 (1979) (collecting cases); United 
States v. Ross, 456 U.S. 798, 804-09 (1982). A person's expectation of 
privacy in personal luggage and other closed containers is substantially 
greater than in an automobile, United States v. Chadwick, 433 U.S. 1, 13 
(1977); Arkansas v. Sanders, 442 U.S. 753 (1979), although if the 
luggage or container is found in an automobile as to which there exists 
probable cause to search, the legitimate expectancy diminishes 
accordingly. United States v. Ross, supra. There is also a diminished 
expectation of privacy in a mobile home parked in a parking lot and 
licensed for vehicular travel. California v. Carney, 471 U.S. 386 (1985) 
(leaving open the question of whether the automobile exception also 
applies to a ``mobile'' home being used as a residence and not adapted 
for immediate vehicular use).
        \54\E.g., Texas v. White, 423 U.S. 67 (1975) (if probable cause 
to search automobile existed at scene, it can be removed to station and 
searched without warrant); United States v. Robinson, 414 U.S. 218 
(1973) (once an arrest has been validly made, search pursuant thereto is 
so minimally intrusive in addition that scope of search is not limited 
by necessity of security of officer); United States v. Edwards, 415 U.S. 
800 (1974) (incarcerated suspect; officers need no warrant to take his 
clothes for test because little additional intrusion). But see Ybarra v. 
Illinois, 444 U.S. 85 (1979) (officers on premises to execute search 
warrant of premises may not without more search persons found on 

        Arrests and Other Detentions.--That the Fourth Amendment was 
intended to protect against arbitrary arrests as well as against 
unreasonable searches was early assumed by Chief Justice Marshall\55\ 
and is now established law.\56\ At the common law, it was proper to 
arrest one who had committed a breach of the peace or a felony without a 
warrant,\57\ and this history is reflected in the fact that the Fourth 
Amendment is satisfied if the arrest is made in a public place on 
probable cause, regardless of whether a warrant has been obtained.\58\ 
However, in order to effectuate an arrest in the home, absent consent or 
exigent circumstances, police officers must have a warrant.\59\ The 
Fourth Amendment applies to ``seizures'' and it is not necessary that a 
detention be a formal arrest in order to bring to bear the requirements 
of warrants or probable cause in instances in which warrants may be 
forgone.\60\ Some

[[Page 1210]]
objective justification must be shown to validate all seizures of the 
person, including seizures that involve only a brief detention short of 
arrest, although the nature of the detention will determine whether 
probable cause or some reasonable and articulable suspicion is 

        \55\Ex parte Burford, 7 U.S. (3 Cr.) 448 (1806).
        \56\Giordenello v. United States, 357 U.S. 480, 485-86 (1958); 
United States v. Watson, 423 U.S. 411, 416-18 (1976); Payton v. New 
York, 445 U.S. 573, 583-86 (1980); Steagald v. United States, 451 U.S. 
204, 211-13 (1981).
        \57\1 J. Stephen, A History of the Criminal Law of England 193 
        \58\United States v. Watson, 423 U.S. 411 (1976). See also 
United States v. Santana, 427 U.S. 38 (1976) (sustaining warrantless 
arrest of suspect in her home when she was initially approached in her 
doorway and then retreated into house). However, a suspect arrested on 
probable cause but without a warrant is entitled to a prompt, 
nonadversary hearing before a magistrate under procedures designed to 
provide a fair and reliable determination of probable cause in order to 
keep the arrestee in custody. Gerstein v. Pugh, 420 U.S. 103 (1975).
        \59\Payton v. New York, 445 U.S. 573 (1980) (voiding state law 
authorizing police to enter private residence without a warrant to make 
an arrest); Steagald v. United States, 451 U.S. 204 (1981) (officers 
with arrest warrant for A entered B's home without search warrant and 
discovered incriminating evidence; violated Fourth Amendment in absence 
of warrant to search the home); Hayes v. Florida, 470 U.S. 811 (1985) 
(officers went to suspect's home and took him to police station for 
        \60\United States v. Mendenhall, 446 U.S. 544, 554 (1980) 
(opinion of Justice Stewart) (``[A] person has been `seized' within the 
meaning of the Fourth Amendment only if, in view of all the 
circumstances surrounding the incident, a reasonable person would have 
believed that he was not free to leave''). See also Reid v. Georgia, 448 
U.S. 438 (1980); United States v. Brignoni-Ponce, 422 U.S. 873, 878 
(1975); Terry v. Ohio, 392 U.S. 1, 16-19 (1968). Apprehension by the use 
of deadly force is a seizure subject to the Fourth Amendment's 
reasonableness requirement. See, e.g., Tennessee v. Garner, 471 U.S. 1 
(1985) (police officer's fatal shooting of a fleeing suspect); Brower v. 
County of Inyo, 489 U.S. 593 (1989) (police roadblock designed to end 
car chase with fatal crash).
        \61\Adams v. Williams, 407 U.S. 143, 146-49 (1972); Delaware v. 
Prouse, 440 U.S. 648, 661 (1979); Brown v. Texas, 443 U.S. 47, 51 
(1979); Reid v. Georgia, 448 U.S. 438, 440 (1980); Michigan v. Summers, 
452 U.S. 692 (1981).

        Until relatively recently, the legality of arrests was seldom 
litigated in the Supreme Court because of the rule that a person 
detained pursuant to an arbitrary seizure--unlike evidence obtained as a 
result of an unlawful search--remains subject to custody and 
presentation to court.\62\ But the application of self-incrimination and 
other exclusionary rules to the States and the heightening of their 
scope in state and federal cases alike brought forth the rule that 
verbal evidence, confessions, and other admissions, like all derivative 
evidence obtained as a result of unlawful seizures, could be 
excluded.\63\ Thus, a confession made by one illegally in custody must 
be suppressed, unless the causal connection between the illegal arrest 
and the confession had become so attenuated that the latter should not 
be deemed ``tainted'' by the former.\64\ Similarly, fingerprints and 
other physical evidence obtained as a result of an unlawful arrest must 
be suppressed.\65\

        \62\Ker v. Illinois, 119 U.S. 436, 440 (1886); see also Albrecht 
v. United States, 273 U.S. 1 (1927); Frisbie v. Collins, 342 U.S. 519 
        \63\Wong Sun v. United States, 371 U.S. 471 (1963). Such 
evidence is the ``fruit of the poisonous tree,'' Nardone v. United 
States, 308 U.S. 338, 341 (1939), that is, evidence derived from the 
original illegality. Previously, if confessions were voluntary for 
purposes of the self-incrimination clause, they were admissible 
notwithstanding any prior official illegality. Colombe v. Connecticut, 
367 U.S. 568 (1961).
        \64\Although there is a presumption that the illegal arrest is 
the cause of the subsequent confession, the presumption is rebuttable by 
a showing that the confession is the result of ``an intervening . . . 
act of free will.'' Wong Sun v. United States, 371 U.S. 471, 486 (1963). 
The factors used to determine whether the taint has been dissipated are 
the time between the illegal arrest and the confession, whether there 
were intervening circumstances (such as consultation with others, 
Miranda warnings, etc.), and the degree of flagrancy and purposefulness 
of the official conduct. Brown v. Illinois, 422 U.S. 590 (1975) (Miranda 
warnings alone insufficient); Dunaway v. New York, 442 U.S. 200 (1979); 
Taylor v. Alabama, 457 U.S. 687 (1982). In Johnson v. Louisiana, 406 
U.S. 356 (1972), the fact that the suspect had been taken before a 
magistrate who advised him of his rights and set bail, after which he 
confessed, established a sufficient intervening circumstance.
        \65\Davis v. Mississippi, 394 U.S. 721 (1969); Taylor v. 
Alabama, 457 U.S. 687 (1982). In United States v. Crews, 445 U.S. 463 
(1980), the Court, unanimously but for a variety of reasons, held proper 
the identification in court of a defendant, who had been wrongly 
arrested without probable cause, by the crime victim. The court 
identification was not tainted by either the arrest or the subsequent 
in-custody identification. See also Hayes v. Florida, 470 U.S. 811, 815 
(1985), suggesting in dictum that a ``narrowly circumscribed procedure 
for fingerprinting detentions on less than probable cause'' may be 


[[Page 1211]]

        Searches and Inspections in Noncriminal Cases.--Certain early 
cases held that the Fourth Amendment was applicable only when a search 
was undertaken for criminal investigatory purposes,\66\ and the Supreme 
Court until recently employed a reasonableness test for such searches 
without requiring either a warrant or probable cause in the absence of a 
warrant.\67\ But in 1967, the Court held in two cases that 
administrative inspections to detect building code violations must be 
undertaken pursuant to warrant if the occupant objects.\68\ ``We may 
agree that a routine inspection of the physical condition of private 
property is a less hostile intrusion than the typical policeman's search 
for the fruits and instrumentalities of crime. . . . But we cannot agree 
that the Fourth Amendment interests at stake in these inspection cases 
are merely `peripheral.' It is surely anomalous to say that the 
individual and his private property are fully protected by the Fourth 
Amendment only when the individual is suspected of criminal 
behavior.''\69\ Certain administrative inspections utilized to enforce 
regulatory schemes with regard to such items as alcohol and firearms 
are, however, exempt from the Fourth Amendment warrant requirement and 
may be authorized simply by statute.\70\

        \66\In re Strouse, 23 Fed. Cas. 261 (No. 13,548) (D. Nev. 1871); 
In re Meador, 16 Fed. Cas. 1294, 1299 (No. 9375) (N.D. Ga. 1869).
        \67\Abel v. United States, 362 U.S. 217 (1960); Frank v. 
Maryland, 359 U.S. 360 (1959); Oklahoma Press Pub. Co. v. Walling, 327 
U.S. 186 (1946).
        \68\Camara v. Municipal Court, 387 U.S. 523 (1967) (home); See 
v. City of Seattle, 387 U.S. 541 (1967) (commercial warehouse).
        \69\Camara v. Municipal Court, 387 U.S. 523, 530 (1967).
        \70\Colonnade Catering Corp. v. United States, 397 U.S. 72 
(1970); United States v. Biswell, 406 U.S. 311 (1972). Colonnade, 
involving liquor, was based on the long history of close supervision of 
the industry. Biswell, involving firearms, introduced factors that were 
subsequently to prove significant. Thus, while the statute was of recent 
enactment, firearms constituted a pervasively regulated industry, so 
that dealers had no reasonable expectation of privacy, inasmuch as the 
law provides for regular inspections. Further, warrantless inspections 
were needed for effective enforcement of the statute.

        Camara and See were reaffirmed in Marshall v. Barlow's, 
Inc.,\71\ in which the Court held violative of the Fourth Amendment a 
provision of the Occupational Safety and Health Act which authorized 
federal inspectors to search the work area of any employment facility 
covered by the Act for safety hazards and violations of regulations, 
without a warrant or other legal process. The liquor

[[Page 1212]]
and firearms exceptions were distinguished on the basis that those 
industries had a long tradition of close government supervision, so that 
a person in those businesses gave up his privacy expectations. But OSHA 
was a relatively recent statute and it regulated practically every 
business in or affecting interstate commerce; it was not open to a 
legislature to extend regulation and then follow it with warrantless 
inspections. Additionally, OSHA inspectors had unbounded discretion in 
choosing which businesses to inspect and when to do so, leaving 
businesses at the mercy of possibly arbitrary actions and certainly with 
no assurances as to limitation on scope and standards of inspections. 
Further, warrantless inspections were not necessary to serve an 
important governmental interest, inasmuch as most businesses would 
consent to inspection and it was not inconvenient to require OSHA to 
resort to an administrative warrant in order to inspect sites where 
consent was refused.\72\

        \71\436 U.S. 307 (1978). Dissenting, Justice Stevens, with 
Justices Rehnquist and Blackmun, argued that not the warrant clause but 
the reasonableness clause should govern administrative inspections. Id. 
at 325.
        \72\Administrative warrants issued on the basis of less than 
probable cause but only on a showing that a specific business had been 
chosen for inspection on the basis of a general administrative plan 
would suffice. Even without a necessity for probable cause, the 
requirement would assure the interposition of a neutral officer to 
establish that the inspection was reasonable and was properly 
authorized. Id. at 321, 323. The dissenters objected that the warrant 
clause was being constitutionally diluted. Id. at 325. Administrative 
warrants were approved also in Camara v. Municipal Court, 387 U.S. 523, 
538 (1967). Previously, one of the reasons given for finding 
administrative and noncriminal inspections not covered by the Fourth 
Amendment was the fact that the warrant clause would be as rigorously 
applied to them as to criminal searches and seizures. Frank v. Maryland, 
359 U.S. 360, 373 (1959). See also Almeida-Sanchez v. United States, 413 
U.S. 266, 275 (1973) (Justice Powell concurring) (suggesting a similar 
administrative warrant procedure empowering police and immigration 
officers to conduct roving searches of automobiles in areas near the 
Nation's borders); id. at 270 n.3 (indicating that majority Jusitces 
were divided on the validity of such area search warrants); id. at 288 
(dissenting Justice White indicating approval); United States v. 
Martinez-Fuerte, 428 U.S. 543, 547 n.2, 562 n.15 (1976).

        In Donovan v. Dewey,\73\ however, Barlow's was substantially 
limited and a new standard emerged permitting extensive governmental 
inspection of commercial property,\74\ absent warrants. Under the 
Federal Mine Safety and Health Act, governing underground and surface 
mines (including stone quarries), federal officers are directed to 
inspect underground mines at least four times a year and surface mines 
at least twice a year, pursuant to extensive regulations as to standards 
of safety. The statute specifically provides for absence of advanced 
notice and requires the Secretary of Labor to institute court actions 
for injunctive and other relief in

[[Page 1213]]
cases in which inspectors are denied admission. Sustaining the statute, 
the Court proclaimed that government had a ``greater latitude'' to 
conduct warrantless inspections of commercial property than of homes, 
because of ``the fact that the expectation of privacy that the owner of 
commercial property enjoys in such property differs significantly from 
the sanctity accorded an individual's home, and that this privacy 
interest may, in certain circumstances, be adequately protected by 
regulatory schemes authorizing warrantless inspections.''\75\

        \73\452 U.S. 594 (1981).
        \74\There is no suggestion that warrantless inspections of homes 
is broadened. Id. at 598, or that warrantless entry under exigent 
circumstances is curtailed. See, e.g., Michigan v. Tyler, 436 U.S. 499 
(1978) (no warrant required for entry by firefighters to fight fire; 
once there, firefighters may remain for reasonable time to investigate 
the cause of the fire).
        \75\Donovan v. Dewey, 452 U.S. 594, 598-99 (1981).

        Dewey was distinguished from Barlow's in several ways. First, 
Dewey involved a single industry, unlike the broad coverage in Barlow's. 
Second, the OSHA statute gave minimal direction to inspectors as to 
time, scope, and frequency of inspections, while FMSHA specified a 
regular number of inspections pursuant to standards. Third, deference 
was due Congress' determination that unannounced inspections were 
necessary if the safety laws were to be effectively enforced. Fourth, 
FMSHA provided businesses the opportunity to contest the search by 
resisting in the civil proceeding the Secretary had to bring if consent 
was denied.\76\ The standard of a long tradition of government 
supervision permitting warrantless inspections was dispensed with, 
because it would lead to ``absurd results,'' in that new and emerging 
industries posing great hazards would escape regulation.\77\ Dewey 
suggests, therefore, that warrantless inspections of commercial 
establishments are permissible so long as the legislature carefully 
drafts its statute.

        \76\Id. at 596-97, 604-05. Pursuant to the statute, however, the 
Secretary has promulgated regulations providing for the assessment of 
civil penalties for denial of entry and Dewey had been assessed a 
penalty of $1,000. Id. at 597 n.3. It was also true in Barlow's that the 
Government resorted to civil process upon refusal to admit. 436 U.S. at 
317 & n.12.
        \77\Donovan v. Dewey, 452 U.S. 594, 606 (1981). Duration of 
regulation will now be a factor in assessing the legitimate expectation 
of privacy of a business. Ibid. Accord, New York v. Burger, 482 U.S. 691 
(1987) (although duration of regulation of vehicle dismantling was 
relatively brief, history of regulation of junk business generally was 
lengthy, and current regulation of dismantling was extensive).

        Dewey was applied in New York v. Burger\78\ to inspection of 
automobile junkyards and vehicle dismantling operations, a situation 
where there is considerable overlap between administrative and penal 
objectives. Applying the Dewey three-part test, the Court concluded that 
New York has a substantial interest in stemming the tide of automobile 
thefts, that regulation of vehicle dismantling reasonably serves that 
interest, and that statutory safeguards provided adequate substitute for 
a warrant requirement. The Court rejected the suggestion that the 
warrantless inspection provisions

[[Page 1214]]
were designed as an expedient means of enforcing the penal laws, and 
instead saw narrower, valid regulatory purposes to be served: e.g., 
establishing a system for tracking stolen automobiles and parts, and 
enhancing the ability of legitimate businesses to compete. ``[A] State 
can address a major social problem both by way of an administrative 
scheme and through penal sanctions,'' the Court declared; in such 
circumstances warrantless administrative searches are permissible in 
spite of the fact that evidence of criminal activity may well be 
uncovered in the process.\79\

        \78\482 U.S. 691 (1987).
        \79\482 U.S. at 712 (emphasis original).

        In other contexts, the Court has also elaborated the 
constitutional requirements affecting administrative inspections and 
searches. Thus, in Michigan v. Tyler,\80\ it subdivided the process by 
which an investigation of the cause of a fire may be conducted. Entry to 
fight the fire is, of course, an exception based on exigent 
circumstances, and no warrant or consent is needed; firemen on the scene 
may seize evidence relating to the cause under the plain view doctrine. 
Additional entries to investigate the cause of the fire must be made 
pursuant to warrant procedures governing administrative searches. 
Evidence of arson discovered in the course of such an administrative 
inspection is admissible at trial, but if the investigator finds 
probable cause to believe that arson has occurred and requires further 
access to gather evidence for a possible prosecution, he must obtain a 
criminal search warrant.\81\

        \80\436 U.S. 499 (1978).
        \81\The Court also held that, after the fire was extinguished, 
if fire investigators were unable to proceed at the moment, because of 
dark, steam, and smoke, it was proper for them to leave and return at 
daylight without any necessity of complying with its mandate for 
administrative or criminal warrants. Id. at 510-11. But cf. Michigan v. 
Clifford, 464 U.S. 287 (1984) (no such justification for search of 
private residence begun at 1:30 p.m. when fire had been extinguished at 
7 a.m.).

        One curious case has approved a system of ``home visits'' by 
welfare caseworkers, in which the recipients are required to admit the 
worker or lose eligibility for benefits.\82\

        \82\Wyman v. James, 400 U.S. 309 (1971). It is not clear what 
rationale the majority utilized. It appears to have proceeded on the 
assumption that a ``home visit'' was not a search and that the Fourth 
Amendment does not apply when criminal prosecution is not threatened. 
Neither premise is valid under Camara and its progeny, although Camara 
preceded Wyman. Presumably, the case would today be analyzed under the 
expectation of privacy/need/structural protection theory of the more 
recent cases.

        In addition, there are now a number of situations, some of them 
analogous to administrative searches, where ```special needs' beyond 
normal law enforcement . . . justify departures from the usual warrant 
and probable cause requirements.''\83\ In one of these

[[Page 1215]]
cases the Court, without acknowledging the magnitude of the leap from 
one context to another, has taken the Dewey/Burger rationale--developed 
to justify warrantless searches of business establishments--and applied 
it to justify the significant intrusion into personal privacy 
represented by urinalysis drug testing. Because of the history of 
pervasive regulation of the railroad industry, the Court reasoned, 
railroad employees have a diminished expectation of privacy that makes 
mandatory urinalysis less intrusive and more reasonable.\84\

        \83\Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) 
(administrative needs of probation system justify warrantless searches 
of probationers' homes on less than probable cause); Hudson v. Palmer, 
468 U.S. 517, 526 (1984) (no Fourth Amendment protection from search of 
prison cell); New Jersey v. T.L.O., 469 U.S. 325 (1985) (simple 
reasonableness standard governs searches of students' persons and 
effects by public school authorities); O'Connor v. Ortega, 480 U.S. 709 
(1987) (reasonableness test for work-related searches of employees' 
offices by government employer); Skinner v. Railway Labor Executives' 
Ass'n, 489 U.S. 602 (1989) (neither probable cause nor individualized 
suspicion is necessary for mandatory drug testing of railway employees 
involved in accidents or safety violations). All of these cases are 
discussed infra under the general heading ``Valid Searches and Seizures 
Without Warrants.''
        \84\Skinner, supra n.83, 489 U.S. at 627.

        With respect to automobiles, the holdings are mixed. Random 
stops of automobiles to check drivers' licenses, vehicle registrations, 
and safety conditions were condemned as too intrusive; the degree to 
which random stops would advance the legitimate governmental interests 
involved did not outweigh the individual's legitimate expectations of 
privacy.\85\ On the other hand, in South Dakota v. Opperman,\86\ the 
Court sustained the admission of evidence found when police impounded an 
automobile from a public street for multiple parking violations and 
entered the car to secure and inventory valuables for safekeeping. 
Marijuana was discovered in the glove compartment.

        \85\Delaware v. Prouse, 440 U.S. 648 (1979). Standards applied 
in this case had been developed in the contexts of automobile stops at 
fixed points or by roving patrols in border situations. Almeida-Sanchez 
v. United States, 413 U.S. 266 (1973); United States v. Brignoni-Ponce, 
422 U.S. 873 (1975); United States v. Ortiz, 422 U.S. 891 (1975); United 
States v. Martinez-Fuerte, 428 U.S. 543 (1976).
        \86\428 U.S. 364 (1976). See also Cady v. Dombrowski, 413 U.S. 
433 (1973) (sustaining admission of criminal evidence found when police 
conducted a warrantless search of an out-of-state policeman's automobile 
following an accident, in order to find and safeguard his service 
revolver). The Court in both cases emphasized the reduced expectation of 
privacy in automobiles and the noncriminal purposes of the searches.

                            FOURTH AMENDMENT

                           SEARCH AND SEIZURE

      Searches and Seizures Pursuant to Warrant

        Emphasis upon the necessity of warrants places the judgment of 
an independent magistrate between law enforcement officers and the 
privacy of citizens, authorizes invasion of that privacy only upon a 
showing that constitutes probable cause, and limits that invasion by 
specification of the person to be seized, the place to be

[[Page 1216]]
searched, and the evidence to be sought.\87\ While a warrant is issued 
ex parte, its validity may be contested in a subsequent suppression 
hearing if incriminating evidence is found and a prosecution is 

        \87\While the exceptions may be different as between arrest 
warrants and search warrants, the requirements for the issuance of the 
two are the same. Aguilar v. Texas, 378 U.S. 108, 112 n.3 (1964). Also, 
the standards by which the validity of warrants are to be judged are the 
same, whether federal or state officers are involved. Ker v. California, 
374 U.S. 23 (1963).
        \88\Most often, in the suppression hearings, the defendant will 
challenge the sufficiency of the evidence presented to the magistrate to 
constitute probable cause. Spinelli v. United States, 393 U.S. 410 
(1969); United States v. Harris, 403 U.S. 573 (1971). He may challenge 
the veracity of the statements used by the police to procure the warrant 
and otherwise contest the accuracy of the allegations going to establish 
probable cause, but the Court has carefully hedged his ability to do so. 
Franks v. Delaware, 438 U.S. 154 (1978). He may also question the power 
of the official issuing the warrant, Coolidge v. New Hampshire, 403 U.S. 
443, 449-53 (1971), or the specificity of the particularity required. 
Marron v. United States, 275 U.S. 192 (1927).

        Issuance by Neutral Magistrate.--In numerous cases, the Court 
has referred to the necessity that warrants be issued by a ``judicial 
officer'' or a ``magistrate.''\89\ ``The point of the Fourth Amendment, 
which often is not grasped by zealous officers, is not that it denies 
law enforcement the support of the usual inferences which reasonable men 
draw from evidence. Its protection consists in requiring that those 
inferences be drawn by a neutral and detached magistrate instead of 
being judged by the officer engaged in the often competitive enterprise 
of ferreting out crime. Any assumption that evidence sufficient to 
support a magistrate's disinterested determination to issue a search 
warrant will justify the officers in making a search without a warrant 
would reduce the Amendment to a nullity and leave the people's homes 
secure only in the discretion of police officers.''\90\ These cases do 
not mean that only a judge or an official who is a lawyer may issue 
warrants, but they do stand for two tests of the validity of the power 
of the issuing party to so act. ``He must be neutral and detached, and 
he must be capable of determining whether probable cause exists for the 
requested arrest or search.''\91\ The first test cannot be met when the 
issuing party is himself engaged in law enforcement activities,\92\

[[Page 1217]]
but the Court has not required that an issuing party have that 
independence of tenure and guarantee of salary which characterizes 
federal judges.\93\ And in passing on the second test, the Court has 
been essentially pragmatic in assessing whether the issuing party 
possesses the capacity to determine probable cause.\94\

        \89\United States v. Lefkowitz, 285 U.S. 452, 464 (1932); 
Giordenello v. United States, 357 U.S. 480, 486 (1958); Jones v. United 
States, 362 U.S. 257, 270 (1960); Katz v. United States, 389 U.S. 347, 
356 (1967); United States v. United States District Court, 407 U.S. 297, 
321 (1972); United States v. Chadwick, 433 U.S. 1, 9 (1977); Lo-Ji Sales 
v. New York, 442 U.S. 319, 326 (1979).
        \90\Johnson v. United States, 333 U.S. 10, 13-14 (1948).
        \91\Shadwick v. City of Tampa, 407 U.S. 345, 354 (1972).
        \92\Coolidge v. New Hampshire, 403 U.S. 443, 449-51 (1971) 
(warrant issued by state attorney general who was leading investigation 
and who as a justice of the peace was authorized to issue warrants); 
Mancusi v. DeForte, 392 U.S. 364, 370-72 (1968) (subpoena issued by 
district attorney could not qualify as a valid search warrant); Lo-Ji 
Sales v. New York, 442 U.S. 319 (1979) (justice of the peace issued 
open-ended search warrant for obscene materials, accompanied police 
during its execution, and made probable cause determinations at the 
scene as to particular items).
        \93\Jones v. United States, 362 U.S. 257, 270-71 (1960) 
(approving issuance of warrants by United States Commissioners, many of 
whom were not lawyers and none of whom had any guarantees of tenure and 
salary); Shadwick v. City of Tampa, 407 U.S. 345 (1972) (approving 
issuance of arrest warrants for violation of city ordinances by city 
clerks who were assigned to and supervised by municipal court judges). 
The Court reserved the question ``whether a State may lodge warrant 
authority in someone entirely outside the sphere of the judicial branch. 
Many persons may not qualify as the kind of `public civil officers' we 
have come to associate with the term `magistrate.' Had the Tampa clerk 
been entirely divorced from a judicial position, this case would have 
presented different considerations.'' Id. at 352.
        \94\Id. at 350-54 (placing on defendant the burden of 
demonstrating that the issuing official lacks capacity to determine 
probable cause). See also Connally v. Georgia, 429 U.S. 245 (1977) 
(unsalaried justice of the peace who receives a sum of money for each 
warrant issued but nothing for reviewing and denying a warrant not 
sufficiently detached).

        Probable Cause.--The concept of ``probable cause'' is central to 
the meaning of the warrant clause. Neither the Fourth Amendment nor the 
federal statutory provisions relevant to the area define ``probable 
cause;'' the definition is entirely a judicial construct. An applicant 
for a warrant must present to the magistrate facts sufficient to enable 
the officer himself to make a determination of probable cause. ``In 
determining what is probable cause . . . [w]e are concerned only with 
the question whether the affiant had reasonable grounds at the time of 
his affidavit . . . for the belief that the law was being violated on 
the premises to be searched; and if the apparent facts set out in the 
affidavit are such that a reasonably discreet and prudent man would be 
led to believe that there was a commission of the offense charged, there 
is probable cause justifying the issuance of a warrant.''\95\ Probable 
cause is to be determined according to ``the factual and practical 
considerations of everyday life on which reasonable and prudent men, not 
legal technicians, act.''\96\ Warrants are favored in the law and 
utilization of them will not be thwarted by a hypertechnical reading of 
the sup

[[Page 1218]]
porting affidavit and supporting testimony.\97\ For the same reason, 
reviewing courts will accept evidence of a less ``judicially competent 
or persuasive character than would have justified an officer in acting 
on his own without a warrant.''\98\ Courts will sustain the 
determination of probable cause so long as ``there was substantial basis 
for [the magistrate] to conclude that'' there was probable cause.\99\

        \95\Dumbra v. United States, 268 U.S. 435, 439, 441 (1925). 
``[T]he term `probable cause'. . . means less than evidence which would 
justify condemnation.'' Lock v. United States, 11 U.S. (7 Cr.) 339, 348 
(1813). See Steele v. United States, 267 U.S. 498, 504-05 (1925). It may 
rest upon evidence which is not legally competent in a criminal trial, 
Draper v. United States, 358 U.S. 307, 311 (1959), and it need not be 
sufficient to prove guilt in a criminal trial. Brinegar v. United 
States, 338 U.S. 160, 173 (1949). See United States v. Ventresca, 380 
U.S. 102, 107-08 (1965).
        \96\Brinegar v. United States, 338 U.S. 160, 175 (1949).
        \97\United States v. Ventresca, 380 U.S. 102, 108-09 (1965).
        \98\Jones v. United States, 362 U.S. 257, 270-71 (1960).
        \99\Aguilar v. Texas, 378 U.S. 108, 111 (1964). It must be 
emphasized that the issuing party ``must judge for himself the 
persuasiveness of the facts relied on by a [complainant] to show 
probable cause.'' Giordenello v. United States, 357 U.S. 480, 486 
(1958). An insufficient affidavit cannot be rehabilitated by testimony 
after issuance concerning information possessed by the affiant but not 
disclosed to the magistrate. Whiteley v. Warden, 401 U.S. 560 (1971).

        Much litigation has concerned the sufficiency of the complaint 
to establish probable cause. Mere conclusory assertions are not 
enough.\100\ In United States v. Ventresca,\101\ however, an affidavit 
by a law enforcement officer asserting his belief that an illegal 
distillery was being operated in a certain place, explaining that the 
belief was based upon his own observations and upon those of fellow 
investigators, and detailing a substantial amount of these personal 
observations clearly supporting the stated belief, was held to be 
sufficient to constitute probable cause. ``Recital of some of the 
underlying circumstances in the affidavit is essential,'' the Court 
said, observing that ``where these circumstances are detailed, where 
reason for crediting the source of the information is given, and when a 
magistrate has found probable cause,'' the reliance on the warrant 
process should not be deterred by insistence on too stringent a 

        \100\Byars v. United States, 273 U.S. 28 (1927) (affiant stated 
he ``has good reason to believe and does believe'' that defendant has 
contraband materials in his possession); Giordenello v. United States, 
357 U.S. 480 (1958) (complainant merely stated his conclusion that 
defendant had committed a crime). See also Nathanson v. United States, 
290 U.S. 41 (1933).
        \101\380 U.S. 102 (1965).
        \102\Id. at 109.

        Requirements for establishing probable cause through reliance on 
information received from an informant has divided the Court in several 
cases. Although involving a warrantless arrest, Draper v. United 
States\103\ may be said to have begun the line of cases. A previously 
reliable, named informant reported to an officer that the defendant 
would arrive with narcotics on a particular train, and described the 
clothes he would be wearing and the bag he

[[Page 1219]]
would be carrying; the informant, however, gave no basis for his 
information. FBI agents met the train, observed that the defendant fully 
answered the description, and arrested him. The Court held that the 
corroboration of part of the informer's tip established probable cause 
to support the arrest. A case involving a search warrant, Jones v. 
United States,\104\ apparently utilized a test of considering the 
affidavit as a whole to see whether the tip plus the corroborating 
information provided a substantial basis for finding probable cause, but 
the affidavit also set forth the reliability of the informer and 
sufficient detail to indicate that the tip was based on the informant's 
personal observation. Aguilar v. Texas\105\ held insufficient an 
affidavit which merely asserted that the police had ``reliable 
information from a credible person'' that narcotics were in a certain 
place, and held that when the affiant relies on an informant's tip he 
must present two types of evidence to the magistrate. First, the 
affidavit must indicate the informant's basis of knowledge--the 
circumstances from which the informant concluded that evidence was 
present or that crimes had been committed--and, second, the affiant must 
present information which would permit the magistrate to decide whether 
or not the informant was trustworthy. Then, in Spinelli v. United 
States,\106\ the Court applied Aguilar in a situation in which the 
affidavit contained both an informant's tip and police information of a 
corroborating nature.

        \103\358 U.S. 307 (1959). For another case applying essentially 
the same probable cause standard to warrantless arrests as govern 
arrests by warrant, see McCray v. Illinois, 386 U.S. 300 (1967) 
(informant's statement to arresting officers met Aguilar probable cause 
standard). See also Whitely v. Warden, 401 U.S. 560, 566 (1971) 
(standards must be ``at least as stringent'' for warrantless arrest as 
for obtaining warrant).
        \104\362 U.S. 257 (1960).
        \105\378 U.S. 108 (1964).
        \106\393 U.S. 410 (1969). Both concurring and dissenting 
Justices recognized tension between Draper and Aguilar. See id. at 423 
(Justice White concurring), id. at 429 (Justice Black dissenting and 
advocating the overruling of Aguilar).

        The Court rejected the ``totality'' test derived from Jones and 
held that the informant's tip and the corroborating evidence must be 
separately considered. The tip was rejected because the affidavit 
contained neither any information which showed the basis of the tip nor 
any information which showed the informant's credibility. The 
corroborating evidence was rejected as insufficient because it did not 
establish any element of criminality but merely related to details which 
were innocent in themselves. No additional corroborating weight was due 
as a result of the bald police assertion that defendant was a known 
gambler, although the tip related to gambling. Returning to the totality 
test, however, the Court in United States v. Harris\107\ approved a 
warrant issued largely on an informer's tip that over a two-year period 
he had purchased illegal whiskey from the defendant at the defendant's 
residence, most re

[[Page 1220]]
cently within two weeks of the tip. The affidavit contained rather 
detailed information about the concealment of the whiskey, and asserted 
that the informer was a ``prudent person,'' that defendant had a 
reputation as a bootlegger, that other persons had supplied similar 
information about him, and that he had been found in control of illegal 
whiskey within the previous four years. The Court determined that the 
detailed nature of the tip, the personal observation thus revealed, and 
the fact that the informer had admitted to criminal behavior by his 
purchase of whiskey were sufficient to enable the magistrate to find him 
reliable, and that the supporting evidence, including defendant's 
reputation, could supplement this determination.

        \107\403 U.S. 573 (1971). See also Adams v. Williams, 407 U.S. 
143, 147 (1972) (approving warrantless stop of motorist based on 
informant's tip that ``may have been insufficient'' under Aguilar and 
Spinelli as basis for warrant).

        The Court expressly abandoned the two-part Aguilar-Spinelli test 
and returned to the ``totality of the circumstances'' approach to 
evaluate probable cause based on an informant's tip in Illinois v. 
Gates.\108\ The main defect of the two-part test, Justice Rehnquist 
concluded for the Court, was in treating an informant's reliability and 
his basis for knowledge as independent requirements. Instead, ``a 
deficiency in one may be compensated for, in determining the overall 
reliability of a tip, by a strong showing as to the other, or by some 
other indicia of reliability.''\109\ In evaluating probable cause, 
``[t]he task of the issuing magistrate is simply to make a practical, 
commonsense decision whether, given all the circumstances set forth in 
the affidavit before him, including the `veracity' and `basis of 
knowledge' of persons supplying hearsay information, there is a fair 
probability that contraband or evidence of a crime will be found in a 
particular place.''\110\

        \108\462 U.S. 213 (1983) (Justice Rehnquist's opinion of the 
Court was joined by Chief Justice Burger and by Justices Blackmun, 
Powell, and O'Connor. Justices Brennan, Marshall, and Stevens dissented.
        \109\462 U.S. at 213.
        \110\462 U.S. at 238.

        Particularity.--``The requirement that warrants shall 
particularily describe the things to be seized makes general searches 
under them impossible and prevents the seizure of one thing under a 
warrant describing another. As to what is to be taken, nothing is left 
to the discretion of the officer executing the warrant.''\111\ This 
requirement thus acts to limit the scope of the search, inasmuch as the 
executing officers should be limited to

[[Page 1221]]
looking in places where the described object could be expected to be 

        \111\Marron v. United States, 275 U.S. 192, 196 (1927). See 
Stanford v. Texas, 379 U.S. 476 (1965). Of course, police who are 
lawfully on the premises pursuant to a warrant may seize evidence of 
crime in ``plain view'' even if that evidence is not described in the 
warrant. Coolidge v. New Hampshire, 403, U.S. 443, 464-71 (1971).
        \112\``This Court has held in the past that a search which is 
reasonable at its inception may violate the Fourth Amendment by virtue 
of its intolerable intensity and scope. Kremen v. United States, 353 
U.S. 346 (1957); Go-Bart Importing Co. v. United States, 282 U.S. 344, 
356-58 (1931); see United States v. Di Re, 332 U.S. 581, 586-87 (1948). 
The scope of the search must be `strictly tied to and justified by' the 
circumstances which rendered its initiation permissible. Warden v. 
Hayden, 387 U.S. 294, 310 (1967) (Mr. Justice Fortas concurring); see, 
e.g., Preston v. United States, 376 U.S. 364, 367-368 (1964); Agnello v. 
United States, 296 U.S. 20, 30-31 (1925).'' Terry v. Ohio, 392 U.S. 1, 
18-19, (1968). See also Andresen v. Maryland, 427 U.S. 463, 470-82 
(1976), and id. at 484, 492-93 (Justice Brennan dissenting). In Stanley 
v. Georgia, 394 U.S. 557, 569 (1969), Justices Stewart, Brennan, and 
White would have based decision on the principle that a valid warrant 
for gambling paraphernalia did not authorize police upon discovering 
motion picture films in the course of the search to project the films to 
learn their contents.

        First Amendment Bearing on Probable Cause and Particularity.--
Where the warrant process is used to authorize seizure of books and 
other items entitled either to First Amendment protection or to First 
Amendment consideration, the Court has required government to observe 
more exacting standards than in other cases.\113\ Seizure of materials 
arguably protected by the First Amendment is a form of prior restraint 
that requires strict observance of the Fourth Amendment. At a minimum, a 
warrant is required, and additional safeguards may be required for 
large-scale seizures. Thus, in Marcus v. Search Warrant,\114\ the 
seizure of 11,000 copies of 280 publications pursuant to warrant issued 
ex parte by a magistrate who had not examined any of the publications 
but who had relied on the conclusory affidavit of a policeman was 
voided. Failure to scrutinize the materials and to particularize the 
items to be seized was deemed inadequate, and it was further noted that 
police ``were provided with no guide to the exercise of informed 
discretion, because there was no step in the procedure before seizure 
designed to focus searchingly on the question of obscenity.''\115\ A 
state procedure which was designed to comply with Marcus by the 
presentation of copies of books to be seized to the magistrate for his 
scrutiny prior to issuance of a warrant was nonetheless found inadequate 
by a plurality of the Court, which concluded that ``since the warrant 
here authorized the sheriff to seize all copies of the specified titles, 
and since [appellant] was not afforded a hearing on the question of the 
obscenity even of the seven novels [seven of 59 listed titles were 
reviewed by the magistrate] before the warrant issued, the procedure was 
. . . constitutionally

[[Page 1222]]
deficient.''\116\ Confusion remains, however, about the necessity for 
and the character of prior adversary hearings on the issue of obscenity. 
In a later decision the Court held that, with adequate safeguards, no 
pre-seizure adversary hearing on the issue of obscenity is required if 
the film is seized not for the purpose of destruction as contraband (the 
purpose in Marcus and A Quantity of Books), but instead to preserve a 
copy for evidence.\117\ It is constitutionally permissible to seize a 
copy of a film pursuant to a warrant as long as there is a prompt post-
seizure adversary hearing on the obscenity issue. Until there is a 
judicial determination of obscenity, the Court advised, the film may 
continue to be exhibited; if no other copy is available either a copy of 
it must be made from the seized film or the film itself must be 

        \113\Marcus v. Search Warrant, 367 U.S. 717, 730-31 (1961); 
Stanford v. Texas, 379 U.S. 476, 485 (1965).
        \114\367 U.S. 717 (1961). See Kingsley Books v. Brown, 354 U.S. 
436 (1957).
        \115\Marcus v. Search Warrant, 367 U.S. 717, 732 (1961).
        \116\A Quantity of Books v. Kansas, 378 U.S. 205, 210 (1964).
        \117\Heller v. New York, 413 U.S. 483 (1973).
        \118\Id. at 492-93. But cf. New York v. P.J. Video, Inc., 475 
U.S. 868, 875 n.6 (1986), rejecting the defendant's assertion, based on 
Heller, that only a single copy rather than all copies of allegedly 
obscene movies should have been seized pursuant to warrant.

        The seizure of a film without the authority of a 
constitutionally sufficient warrant is invalid; seizure cannot be 
justified as incidental to arrest, inasmuch as the determination of 
obscenity may not be made by the officer himself.\119\ Nor may a warrant 
issue based ``solely on the conclusory assertions of the police officer 
without any inquiry by the [magistrate] into the factual basis for the 
officer's conclusions.''\120\ Instead, a warrant must be ``supported by 
affidavits setting forth specific facts in order that the issuing 
magistrate may `focus searchingly on the question of obscenity.'''\121\ 
This does not mean, however, that a higher standard of probable cause is 
required in order to obtain a warrant to seize materials protected by 
the First Amendment. ``Our reference in Roaden to a `higher hurdle . . . 
of reasonableness' was not intended to establish a `higher' standard of 
probable cause for the issuance of a warrant to seize books or films, 
but instead related to the more basic requirement, imposed by that 
decision, that the police not rely on the `exigency' exception to the 
Fourth Amendment warrant requirement, but instead obtain a warrant from 
a magistrate . . . .'''\122\

        \119\Roaden v. Kentucky, 413 U.S. 496 (1973). See also Lo-Ji 
Sales v. New York, 442 U.S. 319 (1979); Walter v. United States, 447 
U.S. 649 (1980). These special constraints are inapplicable when obscene 
materials are purchased, and there is consequently no Fourth Amendment 
search or seizure. Maryland v. Macon, 472 U.S. 463 (1985).
        \120\Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 637 (1968) 
(per curiam).
        \121\New York v. P.J. Video, Inc., 475 U.S. 868, 873-74 (1986) 
(quoting Marcus v. Search Warrant, 367 U.S. 717, 732 (1961)).
        \122\New York v. P.J. Video, Inc., 475 U.S. 868, 875 n.6 (1986).

[[Page 1223]]

        In Stanford v. Texas,\123\ a seizure of more than 2,000 books, 
pamphlets, and other documents pursuant to a warrant which merely 
authorized the seizure of books, pamphlets, and other written 
instruments ``concerning the Communist Party of Texas'' was voided. 
``[T]he constitutional requirement that warrants must particularly 
describe the `things to be seized' is to be accorded the most scrupulous 
exactitude when the `things' are books, and the basis for their seizure 
is the ideas which they contain. . . . No less a standard could be 
faithful to First Amendment freedoms.''\124\

        \123\379 U.S. 476 (1965).
        \124\Id. at 485-86. See also Marcus v. Search Warrant, 367 U.S. 
717, 723 (1961).

        However, the First Amendment does not bar the issuance or 
execution of a warrant to search a newsroom to obtain photographs of 
demonstrators who had injured several policemen, although the Court 
appeared to suggest that a magistrate asked to issue such a warrant 
should guard against interference with press freedoms through limits on 
type, scope, and intrusiveness of the search.\125\

        \125\Zurcher v. Stanford Daily, 436 U.S. 547 (1978). See id. at 
566 (containing suggestion mentioned in text), and id. at 566 (Justice 
Powell concurring) (more expressly adopting that position). In the 
Privacy Protection Act, Pub. L. No. 96-440, 94 Stat. 1879 (1980), 42 
U.S.C. Sec. 2000aa, Congress provided extensive protection against 
searches and seizures not only of the news media and news people but 
also of others engaged in disseminating communications to the public, 
unless there is probable cause to believe the person protecting the 
materials has committed or is committing the crime to which the 
materials relate.

        Property Subject to Seizure.--There has never been any doubt 
that search warrants could be issued for the seizure of contraband and 
the fruits and instrumentalities of crime.\126\ But in Gouled v. United 
States,\127\ a unanimous Court limited the classes of property subject 
to seizures to these three and refused to permit a seizure of ``mere 
evidence,'' in this instance defendant's papers which were to be used as 
evidence against him at trial. The Court recognized that there was ``no 
special sanctity in papers, as distinguished from other forms of 
property, to render them immune from search and seizure,''\128\ but 
their character as evidence rendered them immune. This immunity ``was 
based upon the dual, related premises that historically the right to 
search for and seize property depended upon the assertion by the 
Government of a valid claim of superior interest, and that it was not 
enough that the purpose of the search and seizure was to obtain evidence 
to use in appre

[[Page 1224]]
hending and convicting criminals.''\129\ More evaded than followed, the 
``mere evidence'' rule was overturned in 1967.\130\ It is now settled 
that such evidentiary items as fingerprints,\131\ blood,\132\ urine 
samples,\133\ fingernail and skin scrapings,\134\ voice and handwriting 
exemplars,\135\ conversations,\136\ and other demonstrative evidence may 
be obtained through the warrant process or without a warrant where 
``special needs'' of government are shown.\137\

        \126\United States v. Lefkowitz, 285 U.S. 452, 465-66 (1932). Of 
course, evidence seizable under warrant is subject to seizure without a 
warrant in circumstances in which warrantless searches are justified.
        \127\255 U.S. 298 (1921). United States v. Lefkowitz, 285 U.S. 
452 (1932), applied the rule in a warrantless search of premises. The 
rule apparently never applied in case of a search of the person. Cf. 
Schmerber v. California, 384 U.S. 757 (1966).
        \128\Gouled v. United States, 255 U.S. 298, 306 (1921).
        \129\Warden v. Hayden, 387 U.S. 294, 303 (1967). See Gouled v. 
United States, 255 U.S. 298, 309 (1921). The holding was derived from 
dicta in Boyd v. United States, 116 U.S. 616, 624-29 (1886).
        \130\Warden v. Hayden, 387 U.S. 294 (1967). Justice Douglas 
dissented, wishing to retain the rule, id. at 312, and Justice Fortas 
with Chief Justice Warren concurred in the result while apparently 
wishing to retain the rule in warrant cases. Id. at 310, 312.
        \131\Davis v. Mississippi, 394 U.S. 721 (1969).
        \132\Schmerber v. California, 384 U.S. 757 (1966). Skinner v. 
Railway Labor Executives' Ass'n, 489 U.S. 602 (1989) (warrantless blood 
testing for drug use by railroad employee involved in accident).
        \133\Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 
(1989) (warrantless drug testing of railroad employee involved in 
        \134\Cupp v. Murphy, 412 U.S. 291 (1973) (sustaining warrantless 
taking of scrapings from defendant's fingernails at the stationhouse, on 
the basis that it was a very limited intrusion and necessary to preserve 
evanescent evidence).
        \135\United States v. Dionisio, 410 U.S. 1 (1973); United States 
v. Mara, 410 U.S. 19 (1973) (both sustaining grand jury subpoenas to 
produce voice and handwriting exemplars; no reasonable expectation of 
privacy with respect to those items).
        \136\Berger v. New York, 388 U.S. 41, 44 n.2 (1967). See also 
id. at 97 n.4, 107-08 (Justices Harlan and White concurring), 67 
(Justice Douglas concurring).
        \137\Another important result of Warden v. Hayden is that third 
parties not suspected of culpability in crime are subject to the 
issuance and execution of warrants for searches and seizures of 
evidence. Zurcher v. Stanford Daily, 436 U.S. 547, 553-60 (1978). 
Justice Stevens argued for a stiffer standard for issuance of warrants 
to nonsuspects, requiring in order to invade their privacy a showing 
that they would not comply with a less intrusive method, such as a 
subpoena. Id. at 577 (dissenting).

        However, some medically assisted bodily intrusions have been 
held impermissible, e.g., forcible administration of an emetic to induce 
vomiting,\138\ and surgery under general anesthetic to remove a bullet 
lodged in a suspect's chest.\139\ Factors to be weighed in determining 
which medical tests and procedures are reasonable include the extent to 
which the procedure threatens the individual's safety or health, ``the 
extent of the intrusion upon the individual's dignitary interests in 
personal privacy and bodily integrity,'' and the importance of the 
evidence to the prosecution's case.\140\

        \138\Rochin v. California, 342 U.S. 165 (1952).
        \139\Winston v. Lee, 470 U.S. 753 (1985).
        \140\Winston v. Lee, 470 U.S. 753, 761-63 (1985). Chief Justice 
Burger concurred on the basis of his reading of the Court's opinion ``as 
not preventing detention of an individual if there are reasonable 
grounds to believe that natural bodily functions will disclose the 
presence of contraband materials secreted internally.'' id. at at 767. 
Cf. United States v. Montoya de Hernandez, 473 U.S. 531 (1985).


[[Page 1225]]

        In Warden v. Hayden,\141\ Justice Brennan for the Court 
cautioned that the items there seized were not ```testimonial' or 
`communicative' in nature, and their introduction therefore did not 
compel respondent to become a witness against himself in violation of 
the Fifth Amendment. . . . This case thus does not require that we 
consider whether there are items of evidential value whose very nature 
precludes them from being the object of a reasonable search and 
seizure.'' This merging of Fourth and Fifth Amendment considerations 
derived from Boyd v. United States,\142\ the first case in which the 
Supreme Court considered at length the meaning of the Fourth Amendment. 
Boyd was a quasi-criminal proceeding for the forfeiture of goods alleged 
to have been imported in violation of law, and concerned a statute which 
authorized court orders to require defendants to produce any document 
which might ``tend to prove any allegation made by the United 
States.''\143\ That there was a self-incrimination problem the entire 
Court was in agreement, but Justice Bradley for a majority of the 
Justices also utilized the Fourth Amendment.

        \141\387 U.S. 294, 302-03 (1967). Seizure of a diary was at 
issue in Hill v. California, 401 U.S. 797, 805 (1971), but it had not 
been raised in the state courts and was deemed waived.
        \142\116 U.S. 616 (1886).
        \143\Act of June 22, 1874, Sec. 5, 18 Stat. 187.

        While the statute did not authorize a search but instead 
compulsory production, the Justice concluded that the law was well 
within the restrictions of the search and seizure clause.\144\ With this 
point established, the Justice relied on Lord Camden's opinion in Entick 
v. Carrington\145\ for the proposition that seizure of items to be used 
as evidence only was impermissible. Justice Bradley announced that the 
``essence of the offence'' committed by the Government against Boyd ``is 
not the breaking of his doors, and the rummaging of his drawers . . . 
but it is the invasion of his indefeasible right of personal security, 
personal liberty and private property. . . . Breaking into a house and 
opening boxes and drawers are circumstances of aggravation; but any 
forcible and compulsory extortion of a man's own testimony or of his 
private papers to be used as evidence to convict him of crime or to 
forfeit his goods, is within the condemnation of that judgment. In this 
regard the Fourth and Fifth Amendments run almost into each 

        \144\Boyd v. United States, 116 U.S. 616, 622 (1886).
        \145\Howell's State Trials 1029, 95 Eng. Rep. 807 (1765).
        \146\Boyd v. United States, 116 U.S. 616, 630 (1886).

        While it may be doubtful that the equation of search warrants 
with subpoenas and other compulsory process ever really amounted

[[Page 1226]]
to much of a limitation,\147\ the present analysis of the Court 
dispenses with any theory of ``convergence'' of the two Amendments.\148\ 
Thus, in Andresen v. Maryland,\149\ police executed a warrant to search 
defendant's offices for specified documents pertaining to a fraudulent 
sale of land, and the Court sustained the admission of the papers 
discovered as evidence at his trial. The Fifth Amendment was 
inapplicable, the Court held, because there had been no compulsion of 
defendant to produce or to authenticate the documents.\150\ As for the 
Fourth Amendment, inasmuch as the ``business records'' seized were 
evidence of criminal acts, they were properly seizable under the rule of 
Warden v. Hayden; the fact that they were ``testimonial'' in nature, 
records in the defendant's handwriting, was irrelevant.\151\ 
Acknowledging that ``there are grave dangers inherent in executing a 
warrant authorizing a search and seizure of a person's papers,'' the 
Court's response was to observe that while some ``innocuous documents'' 
would have to be examined to ascertain which papers were to be seized, 
authorities, just as with electronic ``seizures'' of conversations, 
``must take care to assure that they are conducted in a manner that 
minimizes unwarranted intrusions upon privacy.''\152\

        \147\E.g., Oklahoma Press Pub Co. v. Walling, 327 U.S. 186, 209-
09 (1946).
        \148\Andresen v. Maryland, 427 U.S. 463 (1976); Fisher v. United 
States, 425 U.S. 391, 405-14 (1976). Fisher states that ``the precise 
claim sustained in Boyd would now be rejected for reasons not there 
considered.'' Id. at 408.
        \149\427 U.S. 463 (1976).
        \150\Id. at 470-77.
        \151\Id. at 478-84.
        \152\Id. at 482 n.11. Minimization, as required under federal 
law, has not proved to be a significant limitation. Scott v. United 
States, 425 U.S. 917 (1976).

        Although Andresen was concerned with business records, its 
discussion seemed equally applicable to ``personal'' papers, such as 
diaries and letters, as to which a much greater interest in privacy most 
certainly exists. The question of the propriety of seizure of such 
papers continues to be the subject of reservation in opinions,\153\ but 
it is far from clear that the Court would accept any such exception 
should the issue be presented.\154\

        \153\E.g., United States v. Miller, 425 U.S. 435, 440, 444 
(1976); Fisher v. United States, 425 U.S. 391, 401 (1976); California 
Bankers Ass'n v. Shultz, 416 U.S. 21, 78-79 (1974) (Justice Powell 
        \154\See Note, Formalism, Legal Realism, and Constitutionally 
Protected Privacy Under the Fourth and Fifth Amendments, 90 Harv. L. 
Rev. 945 (1977).

        Execution of Warrants.--The manner of execution of warrants is 
generally governed by statute and rule, as to time of execution,\155\ 
method of entry, and the like. It was a rule at common law

[[Page 1227]]
that before an officer could break and enter he must give notice of his 
office, authority, and purpose and must in effect be refused 
admittance,\156\ and until recently this has been a statutory 
requirement in the federal system\157\ and generally in the States. In 
Ker v. California,\158\ the Court considered the rule of announcement as 
a constitutional requirement, although a majority there found 
circumstances justifying entry without announcement. Recent federal laws 
providing for the issuance of warrants authorizing in certain 
circumstances ``no-knock'' entries to execute warrants will no doubt 
present the Court with opportunities to explore the configurations of 
the rule of announcement.\159\ A statute regulating the expiration of a 
warrant and issuance of another ``should be liberally construed in favor 
of the individual.''\160\ Similarly, inasmuch as the existence of 
probable cause must be established by fresh facts, so the execution of 
the warrant should be done in timely fashion so as to ensure so far as 
possible the continued existence of probable cause.\161\

        \155\Rule 41(c), Federal Rules of Criminal Procedure, provides, 
inter alia, that the warrant shall command its execution in the daytime, 
unless the magistrate ``for reasonable cause shown'' directs in the 
warrant that it be served at some other time. See Jones v. United 
States, 357 U.S. 493, 498-500 (1958); Gooding v. United States, 416 U.S. 
430 (1974). The rule is more relaxed for narcotics cases. 21 U.S.C. 
Sec. 879(a).
        \156\Semayne's Case, 5 Coke's Rep. 91a, 77 Eng. Rep. 194 (K.B. 
        \157\18 U.S.C. Sec. 3109. See Miller v. United States, 357 U.S. 
301 (1958); Wong Sun v. United States, 371 U.S. 471 (1963).
        \158\374 U.S. 23 (1963). Ker was an arrest warrant case, but no 
reason appears for differentiating search warrants. Eight Justices 
agreed that federal standards should govern and that the rule of 
announcement was of constitutional stature, but they divided 4-to-4 
whether entry in this case had been pursuant to a valid exception. 
Justice Harlan who had dissented from the federal standards issue joined 
the four finding a justifiable exception to carry the result.
        \159\In narcotics cases, magistrates are authorized to issue 
``no-knock'' warrants if they find there is probable cause to believe 
(1) the property sought may, and if notice is given, will be easily and 
quickly destroyed or (2) giving notice will endanger the life or safety 
of the executing officer or another person. 21 U.S.C. Sec. 879(b). See 
also D.C. Code, Sec. 23-591.
        \160\Sgro v. United States, 287 U.S. 206 (1932).

        In executing a warrant for a search of premises and of named 
persons on the premises, police officers may not automatically search 
someone else found on the premises.\162\ If they can articulate some 
reasonable basis for fearing for their safety they may conduct a 
``patdown'' of the person, but in order to search they must have 
probable cause particularized with respect to that person. However, in 
Michigan v. Summers,\163\ the Court held that officers arriving to 
execute a warrant for the search of a house could detain, without being 
required to articulate any reasonable basis and necessarily therefore 
without probable cause, the owner or occupant of the house, whom they 
encountered on the front porch

[[Page 1228]]
leaving the premises. Applying its intrusiveness test,\164\ the Court 
determined that such a detention, which was ``substantially less 
intrusive'' than an arrest, was justified because of the law enforcement 
interests in minimizing the risk of harm to officers, facilitating entry 
and conduct of the search, and preventing flight in the event 
incriminating evidence is found.\165\ Also, under some circumstances 
officers may search premises on the mistaken but reasonable belief that 
the premises are described in an otherwise valid warrant.\166\

        \162\Ybarra v. Illinois, 444 U.S. 85 (1979) (patron in a bar), 
relying on and reaffirming United States v. Di Re, 332 U.S. 581 (1948) 
(occupant of vehicle may not be searched merely because there are 
grounds to search the automobile).
        \163\452 U.S. 692 (1981).
        \164\Supra, p.1208. See Michigan v. Summers, 452 U.S. 692, 696-
701 (1981).
        \165\Id. at 701-06. Ybarra was distinguished on the basis of its 
greater intrusiveness and the lack of sufficient connection with the 
premises. Id. at 695 n.4. By the time Summers was searched, police had 
probable cause to do so. Id. at 695. The warrant here was for 
contraband, id. at 701, and a different rule possibly may apply with 
respect to warrants for other evidence.
        \166\Maryland v. Garrison, 480 U.S. 79 (1987) (officers 
reasonably believed there was only one ``third floor apartment'' in city 
row house when in fact there were two).

        Although for purposes of execution, as for many other matters, 
there is little diffence between search warrants and arrest warrants, 
one notable difference is that the possession of a valid arrest warrant 
cannot authorize authorities to enter the home of a third party looking 
for the person named in the warrant; in order to do that, they need a 
search warrant signifying that a magistrate has determined that there is 
probable cause to believe the person named is on the premises.\167\

        \167\Steagald v. United States, 451 U.S. 204 (1981). An arrest 
warrant is a necessary and sufficient authority to enter a suspect's 
home to arrest him. Payton v. New York, 445 U.S. 573 (1980).
                            FOURTH AMENDMENT

                           SEARCH AND SEIZURE

      Valid Searches and Seizures Without Warrants

        While the Supreme Court stresses the importance of warrants and 
has repeatedly referred to searches without warrants as 
``exceptional,''\1\ it appears that the greater number of searches, as 
well as the vast number of arrests, take place without warrants. The 
Reporters of the American Law Institute Project on a Model Code of Pre-
Arraignment Procedure have noted ``their conviction that, as a practical 
matter, searches without warrant and incidental to arrest have been up 
to this time, and may remain, of greater practical importance'' than 
searches pursuant to warrants. ``[T]he evidence on hand . . . compel[s] 
the conclusion that searches under warrants have played a comparatively 
minor part in law enforcement, except in connection with narcotics and 
gambling laws.''\2\

[[Page 1229]]
Nevertheless, the Court frequently asserts that ``the most basic 
constitutional rule in this area is that `searches conducted outside the 
judicial process, without prior approval by judge or magistrate, are per 
se unreasonable under the Fourth Amendment--subject only to a few 
specially established and well-delineated exceptions.''\3\ The 
exceptions are said to be ``jealously and carefully drawn,''\4\ and 
there must be ``a showing by those who seek exemption . . . that the 
exigencies of the situation made that course imperative.''\5\ While the 
record does indicate an effort to categorize the exceptions, the number 
and breadth of those exceptions have been growing.

        \1\E.g., Johnson v. United States, 333 U.S. 10, 14 (1948); 
McDonald v. United States, 335 U.S. 451, 453 (1948); Camara v. Municipal 
Court, 387 U.S. 523, 528-29 (1967); G.M. Leasing Corp. v. United States, 
429 U.S. 338, 352-53, 355 (1977).
        \2\American Law Institute, A Model Code of Pre-Arraignment 
Procedure, Tent. Draft No. 3 (Philadelphia: 1970), xix.
        \3\Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971) 
(quoting Katz v. United States, 389 U.S. 347, 357 (1967)); G.M. Leasing 
Corp. v. United States, 429 U.S. 338, 352-53, 358 (1977).
        \4\Jones v. United States, 357 U.S. 493, 499 (1958).
        \5\McDonald v. United States, 335 U.S. 451, 456 (1948). In 
general, with regard to exceptions to the warrant clause, conduct must 
be tested by the reasonableness standard enunciated by the first clause 
of the Amendment, Terry v. Ohio, 392 U.S. 1, 20 (1968), and the Court's 
development of its privacy expectation tests, supra, pp.1206-09, 
substantially changed the content of that standard.

        Detention Short of Arrest: Stop-and-Frisk.--Arrests are subject 
to the requirements of the Fourth Amendment, but the courts have 
followed the common law in upholding the right of police officers to 
take a person into custody without a warrant if they have probable cause 
to believe that the person to be arrested has committed a felony or has 
committed a misdemeanor in their presence.\6\ The probable cause is, of 
course, the same standard required to be met in the issuance of an 
arrest warrant, and must be satisfied by conditions existing prior to 
the policeman's stop, what is discovered thereafter not sufficing to 
establish retroactively reasonable cause.\7\ There are, however, 
instances when a policeman's suspicions will have been aroused by 
someone's conduct or manner, but probable cause for placing such a 
person under arrest will be lacking.\8\ In Terry v. Ohio,\9\ the Court 
almost unanimously approved an on-the-street investigation by a police 
officer which involved ``patting down'' the subject of the investigation 
for weapons.

        \6\United States v. Watson, 423 U.S. 411 (1976). See supra, 
        \7\Henry v. United States, 361 U.S. 98 (1959); Johnson v. United 
States, 333 U.S. 10, 16-17 (1948); Sibron v. New York, 392 U.S. 40, 62-
63 (1968).
        \8\``The police may not arrest upon mere suspicion but only on 
`probable cause.''' Mallory v. United States, 354 U.S. 449, 454 (1957).
        \9\392 U.S. 1 (1968). Only Justice Douglas dissented. Id. at 35.

        The case arose when a police officer observed three individuals 
engaging in conduct which appeared to him, on the basis of training and 
experience, to be the ``casing'' of a store for a likely armed robbery; 
upon approaching the men, identifying himself, and not receiving prompt 
identification, the officer seized one of the men,

[[Page 1230]]
patted the exterior of his clothes, and discovered a gun. Chief Justice 
Warren for the Court wrote that the Fourth Amendment was applicable to 
the situation, applicable ``whenever a police officer accosts an 
individual and restrains his freedom to walk away.''\10\ Since the 
warrant clause is necessarily and practically of no application to the 
type of on-the-street encounter present in Terry, the Chief Justice 
continued, the question was whether the policeman's actions were 
reasonable. The test of reasonableness in this sort of situation is 
whether the police officer can point to ``specific and articulable facts 
which, taken together with rational inferences from those facts,'' would 
lead a neutral magistrate on review to conclude that a man of reasonable 
caution would be warranted in believing that possible criminal behavior 
was at hand and that both an investigative stop and a ``frisk'' was 
required.\11\ Inasmuch as the conduct witnessed by the policeman 
reasonably led him to believe that an armed robbery was in prospect, he 
was as reasonably led to believe that the men were armed and probably 
dangerous and that his safety required a ``frisk.'' Because the object 
of the ``frisk'' is the discovery of dangerous weapons, ``it must 
therefore be confined in scope to an intrusion reasonably designed to 
discover guns, knives, clubs, or other hidden instruments for the 
assault of the police officer.''\12\

        \10\Id. at 16. See id. at 16-20.
        \11\Id. at 20, 21, 22.
        \12\Id. at 23-27, 29. See also Sibron v. New York, 392 U.S. 40 
(1968) (after policeman observed defendant speak with several known 
narcotics addicts, he approached him and placed his hand in defendant's 
pocket, thus discovering narcotics; impermissible, because he lacked 
reasonable basis for frisk and in any event his search exceeded 
permissible scope of weapons frisk); Adams v. Williams, 407 U.S. 143 
(1972) (acting on tip that defendant was sitting in his car with 
narcotics and firearm, police approached, asked defendant to step out, 
and initiated frisk and discovered weapon when he merely rolled window 
down; justifiable); Pennsylvania v. Mimms, 434 U.S. 106 (1977) (after 
validly stopping car, officer required defendant to get out of car, 
observed bulge under his jacket, and frisked him and seized weapon; 
while officer did not suspect driver of crime or have an articulable 
basis for safety fears, safety considerations justified his requiring 
driver to leave car).

        Terry did not pass on a host of problems, including the grounds 
that could permissibly lead an officer to momentarily stop a person on 
the street or elsewhere in order to ask questions rather than frisk for 
weapons, the right of the stopped individual to refuse to cooperate, and 
the permissible response of the police to that refusal. Following that 
decision, the standard for stops for investigative purposes evolved into 
one of ``reasonable suspicion of criminal activity.'' That test permits 
some stops and questioning without probable cause in order to allow 
police officers to explore the foun

[[Page 1231]]
dations of their suspicions.\13\ While not elaborating a set of rules 
governing the application of the tests, the Court was initially 
restrictive in recognizing permissible bases for reasonable 
suspicion.\14\ Extensive instrusions on individual privacy, e.g., 
transportation to the stationhouse for interrogation and fingerprinting, 
were invalidated in the absence of probable cause.\15\ More recently, 
however, the Court has taken less restrictive approaches.\16\

        \13\In United States v. Cortez, 449 U.S. 411 (1981), a unanimous 
Court attempted to capture the ``elusive concept'' of the basis for 
permitting a stop. Officers must have ``articulable reasons'' or 
``founded suspicions,'' derived from the totality of the circumstances. 
``Based upon that whole picture the detaining officer must have a 
particularized and objective basis for suspecting the particular person 
stopped of criminal activity.'' Id. at 417-18. The inquiry is thus quite 
fact-specific. In the anonymous tip context, the same basic approach 
requiring some corroboration applies regardless of whether the standard 
is probable cause or reasonable suspicion; the difference is that less 
information, or less reliable information, can satisfy the lower 
standard. Alabama v. White, 496 U.S. 325 (1990).
        \14\E.g., Brown v. Texas, 443 U.S. 47 (1979) (individual's 
presence in high crime area gave officer no articulable basis to suspect 
him of crime); Delaware v. Prouse, 440 U.S. 648 (1979) (reasonable 
suspicion of a license or registration violation is necessary to 
authorize automobile stop; random stops impermissible); United States v. 
Brignoni-Ponce, 422 U.S. 873 (1975) (officers could not justify random 
automobile stop solely on basis of Mexican appearance of occupants); 
Reid v. Georgia, 448 U.S. 438 (1980) (no reasonable suspicion for 
airport stop based on appearance that suspect and another passenger were 
trying to conceal the fact that they were travelling together). But cf. 
United States v. Martinez-Fuerte, 428 U.S. 543 (1976) (halting vehicles 
at fixed checkpoints to question occupants as to citizenship and 
immigration status permissible, even if officers should act on basis of 
appearance of occupants).
        \15\Davis v. Mississippi, 394 U.S. 721 (1969); Dunaway v. New 
York, 442 U.S. 200 (1979).
        \16\See, e.g., United States v. Hensley, 469 U.S. 221 (1985) 
(reasonable suspicion to stop a motorist may be based on a ``wanted 
flyer'' as long as issuance of the flyer has been based on reasonable 
suspicion); United States v. Sokolow, 490 U.S. 1, (1989) (airport stop 
based on drug courier profile may rely on a combination of factors that 
individually may be ``quite consistent with innocent travel'').

        It took the Court some time to settle on a test for when a 
``seizure'' has occurred, and the Court has recently modified its 
approach. The issue is of some importance, since it is at this point 
that Fourth Amendment protections take hold. The Terry Court recognized 
in dictum that ``not all personal intercourse between policemen and 
citizens involves `seizures' of persons,'' and suggested that ``[o]nly 
when the officer, by means of physical force or show of authority, has 
in some way restrained the liberty of a citizen may we conclude that a 
`seizure' has occurred.''\17\ Years later Justice Stewart proposed a 
similar standard, that a person has been seized ``only if, in view of 
all of the circumstances surrounding the incident, a reasonable person 
would have believed that he was not free to leave.''\18\ This reasonable 
perception standard was subse

[[Page 1232]]
quently endorsed by a majority of Justices,\19\ and was applied in 
several cases in which admissibility of evidence turned on whether a 
seizure of the person not justified by probable cause or reasonable 
suspicion had occurred prior to the uncovering of the evidence. No 
seizure occurred, for example, when INS agents seeking to identify 
illegal aliens conducted work force surveys within a garment factory; 
while some agents were positioned at exits, others systematically moved 
through the factory and questioned employees.\20\ This brief 
questioning, even with blocked exits, amounted to ``classic consensual 
encounters rather than Fourth Amendment seizures.''\21\ The Court also 
ruled that no seizure had occurred when police in a squad car drove 
alongside a suspect who had turned and run down the sidewalk when he saw 
the squad car approach. Under the circumstances (no siren, flashing 
lights, display of a weapon, or blocking of the suspect's path), the 
Court concluded, the police conduct ``would not have communicated to the 
reasonable person an attempt to capture or otherwise intrude upon 
[one's] freedom of movement.''\22\

        \17\392 U.S. at 19, n.16.
        \18\United States v. Mendenhall, 446 U.S. 544, 554 (1980).
        \19\See, e.g., Florida v. Royer, 460 U.S. 491 (1983), in which 
there was no opinion of the Court, but in which the test was used by the 
plurality of four, id. at 502, and also endorsed by dissenting Justice 
Blackmun, id. at 514.
        \20\INS v. Delgado, 466 U.S. 210 (1984).
        \21\Id. at 221.
        \22\Michigan v. Chesternut, 486 U.S. 567, 575 (1988).

        Soon thereafter, however, the Court departed from the Mendenhall 
reasonable perception standard and adopted a more formalistic approach, 
holding that an actual chase with evident intent to capture did not 
amount to a ``seizure'' because the suspect did not comply with the 
officer's order to halt. Mendenhall, said the Court in California v. 
Hodari D., stated a ``necessary'' but not a ``sufficient'' condition for 
a seizure of the person through show of authority.\23\ A Fourth 
Amendment ``seizure'' of the person, the Court determined, is the same 
as a common law arrest; there must be either application of physical 
force (or the laying on of hands), or submission to the assertion of 
authority.\24\ Indications are, however, that Hodari D. does not signal 
the end of the reasonable perception standard, but merely carves an 
exception applicable to chases and perhaps other encounters between 
suspects and police.

        \23\499 U.S. 621, 628 (1991). As in Michigan v. Chesternut, 
supra n.22, the suspect dropped incriminating evidence while being 
        \24\Adherence to this approach would effectively nullify the 
Court's earlier position that Fourth Amendment protections extend to 
``seizures that involve only a brief detention short of traditional 
arrest.'' United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975), 
quoted in INS v. Delgado, 466 U.S., 210, 215 (1984).

        Later in the same term the Court ruled that the Mendenhall 
``free-to-leave'' inquiry was misplaced in the context of a police

[[Page 1233]]
sweep of a bus, but that a modified reasonable perception approach still 
governed.\25\ In conducting a bus sweep, aimed at detecting illegal 
drugs and their couriers, police officers typically board a bus during a 
stopover at a terminal and ask to inspect tickets, identification, and 
sometimes luggage of selected passengers. The Court did not focus on 
whether an ``arrest'' had taken place, as adherence to the Hodari D. 
approach would have required, but instead suggested that the appropriate 
inquiry is ``whether a reasonable person would feel free to decline the 
officers' requests or otherwise terminate the encounter.''\26\ ``When 
the person is seated on a bus and has no desire to leave,'' the Court 
explained, ``the degree to which a reasonable person would feel that he 
or she could leave is not an accurate measure of the coercive effect of 
the encounter.''\27\

        \25\Florida v. Bostick, (1991).
        \26\Id. at 2387.
        \27\Id. The Court asserted that the case was ``analytically 
indistinguishable from Delgado. Like the workers in that case [subjected 
to the INS ``survey'' at their workplace], Bostick's freedom of movement 
was restricted by a factor independent of police conduct--i.e., by his 
being a passenger on a bus.'' Id.

        A Terry search need not be limited to a stop and frisk of the 
person, but may extend as well to a protective search of the passenger 
compartment of a car if an officer possesses ``a reasonable belief, 
based on specific and articulable facts . . . that the suspect is 
dangerous and . . . may gain immediate control of weapons.''\28\ How 
lengthy a Terry detention may be varies with the circumstances. In 
approving a 20-minute detention of a driver made necessary by the 
driver's own evasion of drug agents and a state police decision to hold 
the driver until the agents could arrive on the scene, the Court 
indicated that it is ``appropriate to examine whether the police 
diligently pursued a means of investigation that was likely to confirm 
or dispel their suspicions quickly, during which time it was necessary 
to detain the defendant.''\29\

        \28\Michigan v. Long, 463 U.S. 1032 (1983) (suspect appeared to 
be under the influence of drugs, officer spied hunting knife exposed on 
floor of front seat and searched remainder of passenger compartment). 
Similar reasoning has been applied to uphold a ``protective sweep'' of a 
home in which an arrest is made if arresting officers have a reasonable 
belief that the area swept may harbor another individual posing a danger 
to the officers or to others. Maryland v. Buie, 494 U.S. 325 (1990).
        \29\United States v. Sharpe, 470 U.S. 675, 686 (1985). A more 
relaxed standard has been applied to detention of travelers at the 
border, the Court testing the reasonableness in terms of ``the period of 
time necessary to either verify or dispel the suspicion.'' United States 
v. Montoya de Hernandez, 473 U.S. 531, 544 (1985) (approving warrantless 
detention for more than 24 hours of traveler suspected of alimentary 
canal drug smuggling).

        Similar principles govern detention of luggage at airports in 
order to detect the presence of drugs; Terry ``limitations applicable to 
investigative detentions of the person should define the permissible 
scope of an investigative detention of the person's luggage on

[[Page 1234]]
less than probable cause.''\30\ The general rule is that ``when an 
officer's observations lead him reasonably to believe that a traveler is 
carrying luggage that contains narcotics, the principles of Terry . . . 
would permit the officer to detain the luggage briefly to investigate 
the circumstances that aroused his suspicion, provided that the 
investigative detention is properly limited in scope.''\31\ Seizure of 
luggage for an expeditious ``canine sniff'' by a dog trained to detect 
narcotics can satisfy this test even though seizure of luggage is in 
effect detention of the traveler, since the procedure results in 
``limited disclosure,'' impinges only slightly on a traveler's privacy 
interest in the contents of personal luggage, and does not constitute a 
search within the meaning of the Fourth Amendment.\32\ By contrast, 
taking a suspect to an interrogation room on grounds short of probable 
cause, retaining his air ticket, and retrieving his luggage without his 
permission taints consent given under such circumstances to open the 
luggage, since by then the detention had exceeded the bounds of a 
permissible Terry investigative stop and amounted to an invalid 
arrest.\33\ But the same requirements for brevity of detention and 
limited scope of investigation are apparently inapplicable to border 
searches of international travelers, the Court having approved a 24-hour 
detention of a traveler suspected of smuggling drugs in her alimentary 

        \30\United States v. Place, 462 U.S. 696, 709 (1983).
        \31\Id. at 706.
        \32\462 U.S. at 707. However, the search in Place was not 
expeditious, and hence exceeded Fourth Amendment bounds, when agents 
took 90 minutes to transport luggage to another airport for 
administration of the canine sniff.
        \33\Florida v. Royer, 460 U.S. 491 (1983). On this much the 
plurality opinion of Justice White (id. at 503), joined by three other 
Justices, and the concurring opinion of Justice Brennan (id. at 509) 
were in agreement.
        \34\United States v. Montoya de Hernandez, 473 U.S. 531 (1985).

        Search Incident to Arrest.--The common-law rule permitting 
searches of the person of an arrestee as an incident to the arrest has 
occasioned little controversy in the Court.\35\ The dispute has centered 
around the scope of the search. Since it was the stated general rule 
that the scope of a warrantless search must be strictly tied to and 
justified by the circumstances which rendered its justification 
permissible, and since it was the rule that the justification of a 
search of the arrestee was to prevent destruction of evidence and to 
prevent access to a weapon,\36\ it was argued to the court that a search 
of the person of the defendant arrested for a traffic offense, which 
discovered heroin in a crumpled cigarette package, was impermissible, 
inasmuch as there could have been no

[[Page 1235]]
destructible evidence relating to the offense for which he was arrested 
and no weapon could have been concealed in the cigarette package. The 
Court rejected this argument, ruling that ``no additional 
justification'' is required for a custodial arrest of a suspect based on 
probable cause.\37\

        \35\Weeks v. United States, 232 U.S. 383, 392 (1914); Carroll v. 
United States, 267 U.S. 132, 158 (1925); Agnello v. United States, 269 
U.S. 20, 30 (1925).
        \36\Terry v. Ohio, 392 U.S. 1, 19 (1968); Chimel v. California, 
395 U.S. 752, 762, 763 (1969).
        \37\United States v. Robinson, 414 U.S. 218, 235 (1973). See 
also id. at 237-38 (Justice Powell concurring). The Court applied the 
same rule in Gustafson v. Florida, 414 U.S. 260 (1973), involving a 
search of a motorist's person following his custodial arrest for an 
offense for which a citation would normally have issued. Unlike the 
situation in Robinson, police regulations did not require the Gustafson 
officer to take the suspect into custody, nor did a departmental policy 
guide the officer as to when to conduct a full search. The Court found 
these differences inconsequential, and left for another day the problem 
of pretextual arrests in order to obtain basis to search. Soon 
thereafter, the Court upheld conduct of a similar search at the place of 
detention, even after a time lapse between the arrest and search. United 
States v. Edwards, 415 U.S. 800 (1974).

        However, the Justices have long found themselves embroiled in 
argument about the scope of the search incident to arrest as it extends 
beyond the person to the area in which the person is arrested, most 
commonly either his premises or his vehicle. Certain early cases went 
both ways on the basis of some fine distinctions,\38\ but in Harris v. 
United States,\39\ the Court approved a search of a four-room apartment 
pursuant to an arrest under warrant for one crime and in which the 
search turned up evidence of another crime. A year later, in Trupiano v. 
United States,\40\ a raid on a distillery resulted in the arrest of a 
man found on the premises and a seizure of the equipment; the Court 
reversed the conviction because the officers had had time to obtain a 
search warrant and had not done so. ``A search or seizure without a 
warrant as an incident to a lawful arrest has always been considered to 
be a strictly limited right. It grows out of the inherent necessities of 
the situation at the time of the arrest. But there must be something 
more in the way of necessity than merely a lawful arrest.''\41\ This 
decision was overruled in United States v. Rabinowitz,\42\ in which 
officers arrested defendant in his one-room office pursuant to an arrest 
warrant and proceeded to search the room completely. The Court observed 
that the issue was not whether the officers had the time and opportunity 
to obtain a search warrant but whether the search incident to arrest was 
reasonable. Though Rabinowitz referred to searches of the area within 
the arrestee's ``immediate control,''\43\ it

[[Page 1236]]
provided no standard by which this area was to be determined, and 
extensive searches were permitted under the rule.\44\

        \38\Compare Marron v. United States, 275 U.S. 192 (1927), with 
Go-Bart Importing Co. v. United States, 282 U.S. 344 (1931), and United 
States v. Lefkowitz, 285 U.S. 452 (1932).
        \39\331 U.S. 145 (1947).
        \40\334 U.S. 699 (1948).
        \41\Id. at 708.
        \42\339 U.S. 56 (1950).
        \43\Id. at 64.
        \44\Cf. Chimel v. California, 395 U.S. 752, 764-65 & n.10 
(1969). But in Kremen v. United States, 353 U.S. 346 (1957), the Court 
held that the seizure of the entire contents of a house and the removal 
to F.B.I. offices 200 miles away for examination, pursuant to an arrest 
under warrant of one of the persons found in the house, was 
unreasonable. In decisions contemporaneous to and subsequent to Chimel, 
applying pre-Chimel standards because that case was not retroactive, 
Williams v. United States, 401 U.S. 646 (1971), the Court has applied 
Rabinowitz somewhat restrictively. See Von Cleef v. New Jersey, 395 U.S. 
814 (1969), which followed Kremen; Shipley v. California, 395 U.S. 818 
(1969), and Vale v. Louisiana, 399 U.S. 30 (1970) (both involving 
arrests outside the house with subsequent searches of the house); 
Coolidge v. New Hampshire, 403 U.S. 443, 455-57 (1971). Substantially 
extensive searches were, however, approved in Williams v. United States, 
401 U.S. 646 (1971), and Hill v. California, 401 U.S. 797 (1971).

        In Chimel v. California,\45\ however, a narrower view was 
asserted, the primacy of warrants was again emphasized, and a standard 
by which the scope of searches pursuant to arrest could be ascertained 
was set out. ``When an arrest is made, it is reasonable for the 
arresting officer to search the person arrested in order to remove any 
weapons that the latter might seek to use in order to resist arrest or 
effect his escape. Otherwise, the officer's safety might well be 
endangered, and the arrest itself frustrated. In addition, it is 
entirely reasonable for the arresting officer to search for and seize 
any evidence on the arrestee's person in order to prevent its 
concealment or destruction. And the area into which an arrestee might 
reach in order to grab a weapon or evidentiary items must, of course, be 
governed by a like rule. A gun on a table or in a drawer in front of one 
who is arrested can be as dangerous to the arresting officer as one 
concealed in the clothing of the person arrested. There is ample 
justification, therefore, for a search of the arrestee's person and the 
area `within his immediate control'--construing that phrase to mean the 
area from within which he might gain possession of a weapon or 
destructible evidence.

        \45\395 U.S. 752 (1969).

        ``There is no comparable justification, however, for routinely 
searching any room other than that in which an arrest occurs--or, for 
that matter, for searching through all the desk drawers or other closed 
or concealed areas in that room itself. Such searches, in the absence of 
well-recognized exceptions, may be made only under the authority of a 
search warrant.''\46\

        \46\Id. at 762-63.

        Although the viability of Chimel had been in doubt for some time 
as the Court refined and applied its analysis of reasonable

[[Page 1237]]
and justifiable expectations of privacy,\47\ it has in some but not all 
contexts survived the changed rationale. Thus, in Mincey v. Arizona,\48\ 
the Court rejected a state effort to create a ``homicide-scene'' 
exception for a warrantless search of an entire apartment extending over 
four days. The occupant had been arrested and removed and it was true, 
the Court observed, that a person legally taken into custody has a 
lessened right of privacy in his person, but he does not have a lessened 
right of privacy in his entire house. And, in United States v. 
Chadwick,\49\ emphasizing a person's reasonable expectation of privacy 
in his luggage or other baggage, the Court held that, once police have 
arrested and immobilized a suspect, validly seized bags are not subject 
to search without a warrant.\50\ Police may, however, in the course of 
jailing an arrested suspect conduct an inventory search of the 
individual's personal effects, including the contents of a shoulder bag, 
since ``the scope of a station-house search may in some circumstances be 
even greater than those supporting a search immediately following 

        \47\Supra, pp.1206-09. See, e.g., Coolidge v. New Hampshire, 403 
U.S. 443, 492, 493, 510 (1971), in which the four dissenters advocated 
the reasonableness argument rejected in Chimel.
        \48\437 U.S. 385 (1978). The expectancy distinction is at 391.
        \49\433 U.S. 1 (1977). Defendant and his luggage, a footlocker, 
had been removed to the police station, where the search took place.
        \50\If, on the other hand, a sealed shipping container had 
already been opened and resealed during a valid customs inspection, and 
officers had maintained surveillance through a ``controlled delivery'' 
to the suspect, there is no reasonable expectation of privacy in the 
contents of the container and officers may search it, upon the arrest of 
the suspect, without having obtained a warrant. Illinois v. Andreas, 463 
U.S. 765 (1983).
        \51\Illinois v. LaFayette, 462 U.S. 640, 645 (1983) (inventory 
search) (following South Dakota v. Opperman, 428 U.S. 364 (1976)). 
Similarly, an inventory search of an impounded vehicle may include the 
contents of a closed container. Colorado v. Bertine, 479 U.S. 367 
(1987). Inventory searches of closed containers must, however, be guided 
by a police policy containing standardized criteria for exercise of 
discretion. Florida v. Wells, 495 U.S. 1 (1990).

        Still purporting to reaffirm Chimel, the Court in New York v. 
Belton\52\ held that police officers who had made a valid arrest of the 
occupant of a vehicle could make a contemporaneous search of the entire 
passenger compartment of the automobile, including containers found 
therein. Believing that a fairly simple rule understandable to 
authorities in the field was desirable, the Court ruled ``that articles 
inside the relatively narrow compass of the passenger compartment of an 
automobile are in fact generally, if not inevitably, within `the area 
into which an arrestee might reach in order to grab a weapon or 
evidentiary ite[m].'''\53\

        \52\453 U.S. 454 (1981).
        \53\Id. at 460 (quoting Chimel v. California, 395 U.S. 752, 763 
(1969)). In this particular instance, Belton had been removed from the 
automobile and handcuffed, but the Court wished to create a general rule 
removed from the fact-specific nature of any one case. ```Container' 
here denotes any object capable of holding another object. It thus 
includes closed or open glove compartments, consoles, or other 
receptacles located anywhere within the passenger compartment, as well 
as luggage, boxes, bags, clothing, and the like. Our holding encompasses 
only the interior of the passenger compartment of an automobile and does 
not encompass the trunk.'' Id. at 460-61 n.4.


[[Page 1238]]

        Chimel has, however, been qualified by another consideration. 
Not only may officers search areas within the arrestee's immediate 
control in order to alleviate any threat posed by the arrestee, but they 
may extend that search if there may be a threat posed by ``unseen third 
parties in the house.'' A ``protective sweep'' of the entire premises 
(including an arrestee's home) may be undertaken on less than probable 
cause if officers have a ``reasonable belief,'' based on ``articulable 
facts,'' that the area to be swept may harbor an individual posing a 
danger to those on the arrest scene.\54\

        \54\Maryland v. Buie, 494 U.S. 325, 334 (1990). This ``sweep'' 
is not to be a full-blown, ``top-to-bottom'' search, but only ``a 
cursory inspection of those spaces where a person may be found.'' Id. at 

        Vehicular Searches.--In the early days of the automobile the 
Court created an exception for searches of vehicles, holding in Carroll 
v. United States\55\ that vehicles may be searched without warrants if 
the officer undertaking the search has probable cause to believe that 
the vehicle contains contraband. The Court explained that the mobility 
of vehicles would allow them to be quickly moved from the jurisdiction 
if time were taken to obtain a warrant.\56\

        \55\267 U.S. 132 (1925). Carroll was a Prohibition-era liquor 
case, whereas a great number of modern automobile cases involve drugs.
        \56\Id. at 153. See also Husty v. United States, 282 U.S. 694 
(1931); Scher v. United States, 305 U.S. 251 (1938); Brinegar v. United 
States, 338 U.S. 160 (1949). All of these cases involved contraband, but 
in Chambers v. Maroney, 399 U.S. 42 (1970), the Court, without 
discussion, and over Justice Harlan's dissent, id. at 55, 62, extended 
the rule to evidentiary searches.

        Initially the Court limited Carroll's reach, holding 
impermissible the warrantless seizure of a parked automobile merely 
because it is movable, and indicating that vehicles may be stopped only 
while moving or reasonably contemporaneously with movement.\57\ Also, 
the Court ruled that the search must be reasonably contemporaneous with 
the stop, so that it was not permissible to remove the vehicle to the 
stationhouse for a warrantless search at the convenience of the 

        \57\Coolidge v. New Hampshire, 403 U.S. 443, 458-64 (1971). This 
portion of the opinion had the adherence of a plurality only, Justice 
Harlan concurring on other grounds, and there being four dissenters. Id. 
at 493, 504, 510, 523.
        \58\Preston v. United States, 376 U.S. 364 (1964); Dyke v. 
Taylor Implement Mfg. Co., 391 U.S. 216 (1968).

        The Court next developed a reduced privacy rationale to 
supplement the mobility rationale, explaining that ``the configuration, 
use, and regulation of automobiles often may dilute the reasonable

[[Page 1239]]
expectation of privacy that exists with respect to differently situated 
property.''\59\ ```One has a lesser expectation of privacy in a motor 
vehicle because its function is transportation and it seldom serves as 
one's residence or as the repository of personal effects. . . . It 
travels public thoroughfares where both its occupants and its contents 
are in plain view.'''\60\ While motor homes do serve as residences and 
as repositories for personal effects, and while their contents are often 
shielded from public view, the Court extended the automobile exception 
to them as well, holding that there is a diminished expectation of 
privacy in a mobile home parked in a parking lot and licensed for 
vehicular travel, hence ``readily mobile.''\61\

        \59\Arkansas v. Sanders, 442 U.S. 753, 761 (1979).
        \60\Cardwell v. Lewis, 417 U.S. 583, 590 (1974) (plurality 
opinion), quoted in United States v. Chadwick, 433 U.S. 1, 12 (1977). 
See also United States v. Ortiz, 422 U.S. 891, 896 (1975); United States 
v. Martinez-Fuerte, 428 U.S. 543, 561 (1976); South Dakota v. Opperman, 
428 U.S. 364, 367-68 (1976); Robbins v. California, 453 U.S. 420, 424-25 
(1981); United States v. Ross, 456 U.S. 798, 807 n.9 (1982).
        \61\California v. Carney, 471 U.S. 386, 393 (1985) (leaving open 
the question of whether the automobile exception also applies to a 
``mobile'' home being used as a residence and not ``readily mobile'').

        The reduced expectancy concept has broadened police powers to 
conduct automobile searches without warrants, but they still must have 
probable cause to search a vehicle\62\ and they must have some 
``articulable suspicion'' of criminal activity in order to make random 
stops of vehicles on the roads.\63\ By contrast, fixed-checkpoint stops 
in the absence of any individualized suspicion have been upheld.\64\ 
Once police have validly stopped a vehicle, they may also, based on 
articulable facts warranting a reasonable belief that weapons may be 
present, conduct a Terry-type protective search of those portions of the 
passenger compartment in which a weapon could be placed or hidden.\65\ 
And, in the absence of such reasonable suspicion as to weapons, police 
may seize contraband

[[Page 1240]]
and suspicious items ``in plain view'' inside the passenger 

        \62\Almeida-Sanchez v. United States, 413 U.S. 266 (1973) 
(roving patrols); United States v. Ortiz, 422 U.S. 891 (1975). Cf. 
Colorado v. Bannister, 449 U.S. 1 (1980).
        \63\Delaware v. Prouse, 440 U.S. 648 (1979) (random stops of 
motorists to check driver's license and registration papers and safety 
features of cars); United States v. Brignoni-Ponce, 422 U.S. 873 (1975) 
(roving patrols in areas near international borders on look-out for 
illegal aliens). In Prouse, the Court cautioned that it was not 
precluding the States from developing methods for spot checks that 
involve less intrusion or that do not involve unconstrained exercise of 
discretion. 440 U.S. at 648.
        \64\Michigan Dep't of State Police v. Sitz, 496 U.S. 444 (1990) 
(upholding a sobriety checkpoint at which all motorists are briefly 
stopped for preliminary questioning and observation for signs of 
intoxication). See also United States v. Martinez-Fuerte, 428 U.S. 543 
(1976) (upholding border patrol checkpoint, over 60 miles from the 
border, for questioning designed to apprehend illegal aliens).
        \65\Michigan v. Long, 463 U.S. 1032, 1049 (1983) (holding that 
contraband found in the course of such a search is admissible).
        \66\Texas v. Brown, 460 U.S. 730 (1983). Similarly, since there 
is no reasonable privacy interest in the vehicle identification number, 
required by law to be placed on the dashboard so as to be visible 
through the windshield, police may reach into the passenger compartment 
to remove items obscuring the number and may seize items in plain view 
while doing so. New York v. Class, 475 U.S. 106 (1986).

        Once police have probable cause to believe there is contraband 
in a vehicle, they may remove it from the scene to the stationhouse in 
order to conduct a search, without thereby being required to obtain a 
warrant. ``[T]he justification to conduct such a warrantless search does 
not vanish once the car has been immobilized; nor does it depend upon a 
reviewing court's assessment of the likelihood in each particular case 
that the car would have been driven away, or that its contents would 
have been tampered with, during the period required for the police to 
obtain a warrant.''\67\ The Justices were evenly divided, however, on 
the propriety of warrantless seizure of an arrestee's automobile from a 
public parking lot several hours after his arrest, its transportation to 
a police impoundment lot, and the taking of tire casts and exterior 
paint scrapings.\68\ Because of the lessened expectation of privacy, 
inventory searches of impounded automobiles are justifiable in order to 
protect public safety and the owner's property, and any evidence of 
criminal activity discovered in the course of the inventories is 
admissible in court.\69\

        \67\Michigan v. Thomas, 458 U.S. 259, 261 (1982). See also 
Chambers v. Maroney, 399 U.S. 42 (1970); Texas v. White, 423 U.S. 67 
(1975); United States v. Ross, 456 U.S. 798, 807 n.9 (1982).
        \68\Cardwell v. Lewis, 417 U.S. 583 (1974). Justice Powell 
concurred on other grounds.
        \69\Cady v. Dombrowski, 413 U.S. 433 (1973); South Dakota v. 
Opperman, 428 U.S. 364 (1976). See also Cooper v. California, 386 U.S. 
58 (1967); United States v. Harris, 390 U.S. 234 (1968). Police, in 
conducting an inventory search of a vehicle, may open closed containers 
in order to inventory contents. Colorado v. Bertine, 479 U.S. 367 

        It is not lawful for the police in undertaking a warrantless 
search of an automobile to extend the search to the passengers 
therein.\70\ But because passengers in an automobile have no reasonable 
expectation of privacy in the interior area of the car, a warrantless 
search of the glove compartment and the spaces under the seats, which 
turned up evidence implicating the passengers, invaded no Fourth 
Amendment interest of the passengers.\71\ Luggage and other closed 
containers found in automobiles may also be subjected to warrantless 
searches based on probable cause, the same rule now applying whether the 
police have probable cause to search

[[Page 1241]]
only the containers\72\ or whether they have probable cause to search 
the automobile for something capable of being held in the container.\73\

        \70\United States v. Di Re, 332 U.S. 581 (1948). While Di Re is 
now an old case, it appears still to control. See Ybarra v. Illinois, 
444 U.S. 85, 94-96 (1979).
        \71\Rakas v. Illinois, 439 U.S. 128 (1978).
        \72\California v. Acevedo, 500 U.S. 565 (1991) (overruling 
Arkansas v. Sanders, 442 U.S. 753 (1979).
        \73\United States v. Ross, 456 U.S. 798 (1982). A Ross search of 
a container found in an automobile need not occur soon after its 
seizure. United States v. Johns, 469 U.S. 478 (1985) (three-day time 
lapse). See also Florida v. Jimeno, 500 U.S. 248 (1991) (consent to 
search automobile for drugs constitutes consent to open containers 
within the car that might contain drugs).

        Vessel Searches.--Not only is the warrant requirement 
inapplicable to brief stops of vessels, but also none of the safeguards 
applicable to stops of automobiles on less than probable cause are 
necessary predicates to stops of vessels. In United States v. 
Villamonte-Marquez,\74\ the Court upheld a random stop and boarding of a 
vessel by customs agents, lacking any suspicion of wrongdoing, for 
purpose of inspecting documentation. The boarding was authorized by 
statute derived from an act of the First Congress,\75\ and hence had 
``an impressive historical pedigree'' carrying with it a presumption of 
constitutionality. Moreover, ``important factual differences between 
vessels located in waters offering ready access to the open sea and 
automobiles on principal thoroughfares in the border area'' justify 
application of a less restrictive rule for vessel searches. The reason 
why random stops of vehicles have been held impermissible under the 
Fourth Amendment, the Court explained, is that stops at fixed 
checkpoints or roadblocks are both feasible and less subject to abuse of 
discretion by authorities. ``But no reasonable claim can be made that 
permanent checkpoints would be practical on waters such as these where 
vessels can move in any direction at any time and need not follow 
established `avenues' as automobiles must do.''\76\ Because there is a 
``substantial'' governmental interest in enforcing documentation laws, 
``especially in waters where the need to deter or apprehend smugglers is 
great,'' the Court found the ``limited'' but not ``minimal'' intrusion 
occasioned by boarding for documentation inspection to be 
reasonable.\77\ Dis

[[Page 1242]]
senting Justice Brennan argued that the Court for the first time was 
approving ``a completely random seizure and detention of persons and an 
entry onto private, noncommercial premises by police officers, without 
any limitations whatever on the officers' discretion or any safeguards 
against abuse.''\78\

        \74\462 U.S. 579 (1983). The opinion of the Court, written by 
Justice Rehnquist, was joined by Chief Justice Burger and by Justices 
White, Blackmun, Powell, and O'Connor. Justice Brennan's dissent was 
joined by Justice Marshall and, on mootness but not on the merits, by 
Justice Stevens.
        \75\19 U.S.C. Sec. 1581(a), derived from Sec. 31 of the Act of 
Aug. 4, 1790, ch.35, 1 Stat. 164.
        \76\462 U.S. at 589. Justice Brennan's dissent argued that a 
fixed checkpoint was feasible in this case, involving a ship channel in 
an inland waterway. id. at at 608 n.10. The fact that the Court's 
rationale was geared to the difficulties of law enforcement in the open 
seas suggests a reluctance to make exceptions to the general rule. Note 
as well the Court's later reference to this case as among those 
``reflect[ing] longstanding concern for the protection of the integrity 
of the border.'' United States v. Montoya de Hernandez, 473 U.S. 531, 
538 (1985).
        \77\462 U.S. at 593.
        \78\462 U.S. at 598. Justice Brennan contended that all previous 
cases had required some ``discretion-limiting'' feature such as a 
requirement of probable cause, reasonable suspicion, fixed checkpoints 
instead of roving patrols, and limitation of border searches to border 
areas, and that these principles set forth in Delaware v. Prouse (supra 
p.1239, n.63) should govern. 462 U.S. at 599, 601.

        Consent Searches.--Fourth Amendment rights, like other 
constitutional rights, may be waived, and one may consent to search of 
his person or premises by officers who have not complied with the 
Amendment.\79\ The Court, however, has insisted that the burden is on 
the prosecution to prove the voluntariness of the consent\80\ and 
awareness of the right of choice.\81\ Reviewing courts must determine on 
the basis of the totality of the circumstances whether consent has been 
freely given or has been coerced. Actual knowledge of the right to 
refuse consent is not essential to the issue of voluntariness, and 
therefore police are not required to acquaint a person with his rights, 
as through a Fourth Amendment version of Miranda warnings.\82\ But 
consent will not be regarded as voluntary when the officer asserts his 
official status and claim of right and the occupant yields to these 
factors rather than makes his own determination to admit officers.\83\ 
When consent is obtained through the deception of an undercover officer 
or an informer gaining admission without, of course, advising a suspect 
who he is, the Court has held that the suspect has simply assumed the 
risk that an invitee would betray him, and evidence obtained through the 
deception is admissible.\84\

        \79\Amos v. United States, 255 U.S. 313 (1921); Zap v. United 
States, 328 U.S. 624 (1946); Schneckloth v. Bustamonte, 412 U.S. 218 
        \80\Bumper v. North Carolina, 391 U.S. 543 (1968).
        \81\Johnson v. United States, 333 U.S. 10, 13 (1948).
        \82\Schneckloth v. Bustamonte, 412 U.S. 218, 231-33 (1973).
        \83\Amos v. United States, 255 U.S. 313 (1921); Johnson v. 
United States, 333 U.S. 10 (1948); Bumper v. North Carolina, 391 U.S. 
543 (1968).
        \84\On Lee v. United States, 343 U.S. 747 (1952); Lopez v. 
United States, 373 U.S. 427 (1963); Hoffa v. United States, 385 U.S. 293 
(1966); Lewis v. United States, 385 U.S. 206 (1966); United States v. 
White, 401 U.S. 745 (1971). Cf. Osborn v. United States, 385 U.S. 323 
(1966) (prior judicial approval obtained before wired informer sent into 
defendant's presence). Problems may be encountered by police, however, 
in special circumstances. See Messiah v. United States, 377 U.S. 201 
(1964); United States v. Henry, 447 U.S. 264 (1980); United States v. 
Karo, 468 U.S. 705 (1984) (installation of beeper with consent of 
informer who sold container with beeper to suspect is permissible with 
prior judicial approval, but use of beeper to monitor private residence 
is not).

        Additional issues arise in determining the validity of consent 
to search when consent is given not by the suspect but by a third

[[Page 1243]]
party. In the earlier cases, third party consent was deemed sufficient 
if that party ``possessed common authority over or other sufficient 
relationship to the premises or effects sought to be inspected.''\85\ 
Now, however, actual common authority over the premises is no longer 
required; it is enough if the searching officer had a reasonable but 
mistaken belief that the third party had common authority and could 
consent to the search.\86\

        \85\United States v. Matlock, 415 U.S. 164, 171 (1974) (valid 
consent by woman with whom defendant was living and sharing the bedroom 
searched). See also Chapman v. United States, 365 U.S. 610 (1961) 
(landlord's consent insufficient); Stoner v. California, 376 U.S. 483 
(1964) (hotel desk clerk lacked authority to consent to search of 
guest's room); Frazier v. Culp, 394 U.S. 731 (1969) (joint user of 
duffel bag had authority to consent to search).
        \86\Illinois v. Rodriguez, 497 U.S. 177 (1990). See also Florida 
v. Jimeno, 500 U.S. 248, 251 (1991) (it was ``objectively reasonable'' 
for officer to believe that suspect's consent to search his car for 
narcotics included consent to search containers found within the car).

        Border Searches.--``That searches made at the border, pursuant 
to the longstanding right of the sovereign to protect itself by stopping 
and examining persons and property crossing into this country, are 
reasonable simply by virtue of the fact that they occur at the border, 
should, by now, require no extended demonstration.''\87\ Authorized by 
the First Congress,\88\ the customs search in these circumstances 
requires no warrant, no probable cause, not even the showing of some 
degree of suspicion that accompanies even investigatory stops.\89\ 
Moreover, while prolonged detention of travelers beyond the routine 
customs search and inspection must be justified by the Terry standard of 
reasonable suspicion having a particularized and objective basis,\90\ 
Terry protections as to the length and intrusiveness of the search do 
not apply.\91\

        \87\United States v. Ramsey, 431 U.S. 606, 616 (1977) 
(sustaining search of incoming mail). See also Illinois v. Andreas, 463 
U.S. 765 (1983) (opening by customs inspector of locked container 
shipped from abroad).
        \88\Act of July 31, 1789, ch.5, Sec. Sec. 23, Sec. 24, 1 Stat. 
43. See 19 U.S.C. Sec. Sec. 507, 1581, 1582.
        \89\Carroll v. United States, 267 U.S. 132, 154 (1925); United 
States v. Thirty-Seven Photographs, 402 U.S. 363, 376 (1971); Almeida-
Sanchez v. United States, 413 U.S. 266, 272 (1973).
        \90\United States v. Montoya de Hernandez, 473 U.S. 531 (1985) 
(approving warrantless detention incommunicado for more than 24 hours of 
traveler suspected of alimentary canal drug smuggling).
        \91\Id. A traveler suspected of alimentary canal drug smuggling 
was strip searched, and then given a choice between an abdominal x-ray 
or monitored bowel movements. Because the suspect chose the latter 
option, the court disavowed decision as to ``what level of suspicion, if 
any, is required for . . . strip, body cavity, or involuntary x-ray 
searches.'' Id. at 541 n.4.

        Inland stoppings and searches in areas away from the borders are 
a different matter altogether. Thus, in Almeida-Sanchez v.

[[Page 1244]]
United States,\92\ the Court held that a warrantless stop and search of 
defendant's automobile on a highway some 20 miles from the border by a 
roving patrol lacking probable cause to believe that the vehicle 
contained illegal aliens violated the Fourth Amendment. Similarly, the 
Court invalidated an automobile search at a fixed checkpoint well 
removed from the border; while agreeing that a fixed checkpoint probably 
gave motorists less cause for alarm than did roving patrols, the Court 
nonetheless held that the invasion of privacy entailed in a search was 
just as intrusive and must be justified by a showing of probable cause 
or consent.\93\ On the other hand, when motorists are briefly stopped, 
not for purposes of a search but in order that officers may inquire into 
their residence status, either by asking a few questions or by checking 
papers, different results are achieved, so long as the stops are not 
truly random. Roving patrols may stop vehicles for purposes of a brief 
inquiry, provided officers are ``aware of specific articulable facts, 
together with rational inferences from those facts, that reasonably 
warrant suspicion'' that an automobile contains illegal aliens; in such 
a case the interference with Fourth Amendment rights is ``modest'' and 
the law enforcement interests served are significant.\94\ Fixed 
checkpoints provide additional safeguards; here officers may halt all 
vehicles briefly in order to question occupants even in the absence of 
any reasonable suspicion that the particular vehicle contains illegal 

        \92\413 U.S. 266 (1973). Justices White, Blackmun, Rehnquist, 
and Chief Justice Burger would have found the search reasonable upon the 
congressional determination that searches by such roving patrols were 
the only effective means to police border smuggling. Id. at 285. Justice 
Powell, concurring, argued in favor of a general, administrative warrant 
authority not tied to particular vehicles, much like the type of warrant 
suggested for noncriminal administrative inspections of homes and 
commercial establishments for health and safety purposes, id. at 275, 
but the Court has not yet had occasion to pass on a specific case. See 
United States v. Martinez-Fuerte, 428 U.S. 543, 547 n.2, 562 n.15 
        \93\United States v. Ortiz, 422 U.S. 891 (1975).
        \94\United States v. Brignoni-Ponce, 422 U.S. 873 (1975). 
However, stopping of defendant's car solely because the officers 
observed the Mexican appearance of the occupants was unjustified. Id. at 
886. Contrast United States v. Cortez, 449 U.S. 411 (1981), where border 
agents did have grounds for reasonable suspicion that the vehicle they 
stopped contained illegal aliens.
        \95\United States v. Martinez-Fuerte, 428 U.S. 543 (1976). The 
Court deemed the intrusion on Fourth Amendment interests to be quite 
limited, even if officers acted on the basis of the Mexican appearance 
of the occupants in referring motorists to a secondary inspection area 
for questioning, whereas the elimination of the practice would deny to 
the Government its only practicable way to apprehend smuggled aliens and 
to deter the practice. Similarly, outside of the border/aliens context, 
the Court has upheld use of fixed ``sobriety'' checkpoints at which all 
motorists are briefly stopped for preliminary questioning and 
observation for signs of intoxication. Michigan Dep't of State Police v. 
Sitz, 496 U.S. 444 (1990).


[[Page 1245]]

        ``Open Fields.''--In Hester v. United States,\96\ the Court held 
that the Fourth Amendment did not protect ``open fields'' and that, 
therefore, police searches in such areas as pastures, wooded areas, open 
water, and vacant lots need not comply with the requirements of warrants 
and probable cause. The Court's announcement in Katz v. United 
States\97\ that the Amendment protects ``people not places'' cast some 
doubt on the vitality of the open fields principle, but all such doubts 
were cast away in Oliver v. United States.\98\ Invoking Hester's 
reliance on the literal wording of the Fourth Amendment (open fields are 
not ``effects'') and distinguishing Katz, the Court ruled that the open 
fields exception applies to fields that are fenced and posted. ``[A]n 
individual may not legitimately demand privacy for activities conducted 
out of doors in fields, except in the area immediately surrounding the 
home.''\99\ Nor may an individual demand privacy for activities 
conducted within outbuildings and visible by trespassers peering into 
the buildings from just outside.\100\ Even within the curtilage and 
notwithstanding that the owner has gone to the extreme of erecting a 10-
foot high fence in order to screen the area from ground-level view, 
there is no reasonable expectation of privacy from naked-eye inspection 
from fixed-wing aircraft flying in navigable airspace.\101\ Similarly, 
naked-eye inspection from helicopters flying even lower contravenes no 
reasonable expectation of privacy.\102\ And aerial photography of 
commercial facilities secured from ground-level public view is 
permissible, the

[[Page 1246]]
Court finding such spaces more analogous to open fields than to the 
curtilage of a dwelling.\103\

        \96\265 U.S. 57 (1924). See also Air Pollution Variance Bd. v. 
Western Alfalfa Corp., 416 U.S. 86 (1974).
        \97\389 U.S. 347, 353 (1967). Cf. Cady v. Dombrowski, 413 U.S. 
433, 450 (1973) (citing Hester approvingly).
        \98\466 U.S. 170 (1984) (approving warrantless intrusion past no 
trespassing signs and around locked gate, to view field not visible from 
outside property).
        \99\Id. at 178. See also California v. Greenwood, 486 U.S. 35 
(1988) (approving warrantless search of garbage left curbside ``readily 
accessible to animals, children, scavengers, snoops, and other members 
of the public'').
        \100\United States v. Dunn, 480 U.S. 294 (1987) (space 
immediately outside a barn, accessible only after crossing a series of 
``ranch-style'' fences and situated one-half mile from the public road, 
constitutes unprotected ``open field'').
        \101\California v. Ciraolo, 476 U.S. 207 (1986). Activities 
within the curtilage are nonetheless still entitled to some Fourth 
Amendment protection. The Court has described four considerations for 
determining whether an area falls within the curtilage: proximity to the 
home, whether the area is included within an enclosure also surrounding 
the home, the nature of the uses to which the area is put, and the steps 
taken by the resident to shield the area from view of passersby. United 
States v. Dunn, 480 U.S. 294 (1987) (barn 50 yards outside fence 
surrounding home, used for processing chemicals, and separated from 
public access only by series of livestock fences, by chained and locked 
driveway, and by one-half mile's distance, is not within curtilage).
        \102\Florida v. Riley, 488 U.S. 445 (1989) (view through 
partially open roof of greenhouse).
        \103\Dow Chemical Co. v. United States, 476 U.S. 227 (1986) 
(suggesting that aerial photography of the curtilage would be 

        ``Plain View.''--Somewhat similar in rationale is the rule that 
objects falling in the ``plain view'' of an officer who has a right to 
be in the position to have that view are subject to seizure without a 
warrant\104\ or that if the officer needs a warrant or probable cause to 
search and seize his lawful observation will provide grounds 
therefor.\105\ The plain view doctrine is limited, however, by the 
probable cause requirement: officers must have probable cause to believe 
that items in plain view are contraband before they may search or seize 

        \104\Washington v. Chrisman, 455 U.S. 1 (1982) (officer lawfully 
in dorm room may seize marijuana seeds and pipe in open view); United 
States v. Santana, 427 U.S. 38 (1976) (``plain view'' justification for 
officers to enter home to arrest after observing defendant standing in 
open doorway); Harris v. United States, 390 U.S. 234 (1968) (officer who 
opened door of impounded automobile and saw evidence in plain view 
properly seized it); Ker v. California, 374 U.S. 23 (1963) (officers 
entered premises without warrant to make arrest because of exigent 
circumstances seized evidence in plain sight). Cf. Coolidge v. New 
Hampshire, 403 U.S. 443, 464-73 (1971), and id. at 510 (Justice White 
dissenting). Maryland v. Buie, 494 U.S. 325 (1990) (items seized in 
plain view during protective sweep of home incident to arrest); Texas v. 
Brown, 460 U.S. 730 (1983) (contraband on car seat in plain view of 
officer who had stopped car and asked for driver's license); New York v. 
Class, 475 U.S. 106 (1986) (evidence seen while looking for vehicle 
identification number). There is no requirement that the discovery of 
evidence in plain view must be ``inadvertent.'' See Horton v. 
California, 496 U.S. 128 (1990) (in spite of Amendment's particularity 
requirement, officers with warrant to search for proceeds of robbery may 
seize weapons of robbery in plain view).
        \105\Steele v. United States, 267 U.S. 498 (1925) (officers 
observed contraband in view through open doorway; had probable cause to 
procure warrant). Cf. Taylor v. United States, 286 U.S. 1 (1932) 
(officers observed contraband in plain view in garage, warrantless entry 
to seize was unconstitutional).
        \106\Arizona v. Hicks, 480 U.S. 321 (1987) (police lawfully in 
apartment to investigate shooting lacked probable cause to inspect 
expensive stereo equipment to record serial numbers).

        The Court has analogized from the plain view doctrine to hold 
that once officers have lawfully observed contraband, ``the owner's 
privacy interest in that item is lost,'' and officers may reseal a 
container, trace its path through a controlled delivery, and seize and 
reopen the container without a warrant.\107\

        \107\Illinois v. Andreas, 463 U.S. 765, 771 (1983) (locker 
customs agents had opened, and which was subsequently traced). Accord, 
United States v. Jacobsen, 466 U.S. 109 (1984) (inspection of package 
opened by private freight carrier who notified drug agents).

        Public Schools.--In New Jersey v. T.L.O.,\108\ the Court set 
forth the principles governing searches by public school authorities. 
The Fourth Amendment applies to searches conducted by public school 
officials because ``school officials act as representatives of the

[[Page 1247]]
State, not merely as surrogates for the parents.''\109\ However, ``the 
school setting requires some easing of the restrictions to which 
searches by public authorities are ordinarily subject.''\110\ Neither 
the warrant requirement nor the probable cause standard is appropriate, 
the Court ruled. Instead, a simple reasonableness standard governs all 
searches of students' persons and effects by school authorities.\111\ A 
search must be reasonable at its inception, i.e., there must be 
``reasonable grounds for suspecting that the search will turn up 
evidence that the student has violated or is violating either the law or 
the rules of the school.''\112\ School searches must also be reasonably 
related in scope to the circumstances justifying the interference, and 
``not excessively intrusive in light of the age and sex of the student 
and the nature of the infraction.''\113\ In applying these rules, the 
Court upheld as reasonable the search of a student's purse to determine 
whether the student, accused of violating a school rule by smoking in 
the lavatory, possessed cigarettes. The search for cigarettes uncovered 
evidence of drug activity held admissible in a prosecution under the 
juvenile laws.

        \108\469 U.S. 325 (1985).
        \109\Id. at 336 (1984).
        \110\Id. at 340.
        \111\This single rule, the Court explained, will permit school 
authorities ``to regulate their conduct according to the dictates of 
reason and common sense.'' 469 U.S. at 343. Rejecting the suggestion of 
dissenting Justice Stevens, the Court was ``unwilling to adopt a 
standard under which the legality of a search is dependent upon a 
judge's evaluation of the relative importance of various school rules.'' 
Id. at n.9.
        \112\469 U.S. at 342.

        Government Offices.--Similar principles apply to a public 
employer's work-related search of its employees' offices, desks, or file 
cabinets, except that in this context the Court distinguished searches 
conducted for law enforcement purposes. In O'Connor v. Ortega,\114\ a 
majority of Justices agreed, albeit on somewhat differing rationales, 
that neither a warrant nor a probable cause requirement should apply to 
employer searches ``for noninvestigatory, work-related purposes, as well 
as for investigations of work-related misconduct.''\115\ Four Justices 
would require a case-by-case inquiry into the reasonableness of such 
searches;\116\ one would hold that such searches ``do not violate the 
Fourth Amendment.''\117\

        \114\480 U.S. 709 (1987).
        \115\480 U.S. at 725. Not at issue was whether there must be 
individualized suspicion for investigations of work-related misconduct.
        \116\This position was stated in Justice O'Connor's plurality 
opinion, joined by Chief Justice Rehnquist and by Justices White and 
        \117\480 U.S. at 732 (Scalia, J., concurring in judgment).

        Prisons and Regulation of Probation.--Searches of prison cells 
by prison administrators are not limited even by a reasonableness 
standard, the Court having held that ``the Fourth Amendment

[[Page 1248]]
proscription against unreasonable searches does not apply within the 
confines of the prison cell.''\118\ Thus, prison administrators may 
conduct random ``shakedown'' searches of inmates' cells without the need 
to adopt any established practice or plan, and inmates must look to the 
Eighth Amendment or to state tort law for redress against harassment, 
malicious property destruction, and the like.

        \118\Hudson v. Palmer, 468 U.S. 517, 526 (1984).

        Neither a warrant nor probable cause is needed for an 
administrative search of a probationer's home. It is enough, the Court 
ruled in Griffin v. Wisconsin, that such a search was conducted pursuant 
to a valid regulation that itself satisfies the Fourth Amendment's 
reasonableness standard (e.g., by requiring ``reasonable grounds'' for a 
search).\119\ ``A State's operation of a probation system, like its 
operation of a school, government office or prison, or its supervision 
of a regulated industry, . . . presents `special needs' beyond normal 
law enforcement that may justify departures from the usual warrant and 
probable cause requirements.''\120\ ``Probation, like incarceration, is 
a form of criminal sanction,'' the Court noted, and a warrant or 
probable cause requirement would interfere with the ``ongoing [non-
adversarial] supervisory relationship'' required for proper functioning 
of the system.\121\

        \119\483 U.S. 868 (1987) (search based on information from 
police detective that there was or might be contraband in probationer's 
        \120\483 U.S. at 873-74.
        \121\Id. at 718, 721.

        Drug Testing.--In two 1989 decisions the Court held that no 
warrant, probable cause, or even individualized suspicion is required 
for mandatory drug testing of certain classes of railroad and public 
employees. In each case, ``special needs beyond the normal need for law 
enforcement'' were identified as justifying the drug testing. In Skinner 
v. Railway Labor Executives' Ass'n,\122\ the Court upheld regulations 
requiring railroads to administer blood, urine, and breath tests to 
employees involved in certain train accidents or violating certain 
safety rules; upheld in National Treasury Employees Union v. Von 
Raab\123\ was a Customs Service screening program requiring urinalysis 
testing of employees seeking transfer or promotion to positions having 
direct involvement with drug interdiction, or to positions requiring the 
incumbent to carry firearms. The Court in Skinner found a ``compelling'' 
governmental interest in testing the railroad employees without any 
showing of individualized suspicion, since operation of trains by anyone 
impaired by drugs ``can cause great human loss before any signs of 

[[Page 1249]]
ment become noticeable.''\124\ By contrast, the intrusions on privacy 
were termed ``limited.'' Blood and breath tests were passed off as 
routine; the urine test, while more intrusive, was deemed permissible 
because of the ``diminished expectation of privacy'' in employees having 
some responsibility for safety in a pervasively regulated industry.\125\ 
The lower court's emphasis on the limited effectiveness of the urine 
test (it detects past drug use but not necessarily the level of 
impairment) was misplaced, the Court ruled. It is enough that the test 
may provide some useful information for an accident investigation; in 
addition, the test may promote deterrence as well as detection of drug 
use.\126\ In Von Raab the governmental interests underlying the Customs 
Service's screening program were also termed ``compelling'': to ensure 
that persons entrusted with a firearm and the possible use of deadly 
force not suffer from drug-induced impairment of perception and 
judgment, and that ``front-line [drug] interdiction personnel [be] 
physically fit, and have unimpeachable integrity and judgment.''\127\ 
The possibly ``substantial'' interference with privacy interests of 
these Customs employees was justified, the Court concluded, because, 
``[u]nlike most private citizens or government employees generally, they 
have a ``diminished expectation of privacy.''\128\

        \122\489 U.S. 602 (1989).
        \123\489 U.S. 656 (1989).
        \124\489 U.S. at 628.
        \125\Id. at 628.
        \126\Id. at 631-32.
        \127\Von Raab, 489 U.S. at 670-71. Dissenting Justice Scalia 
discounted the ``feeble justifications'' relied upon by the Court, 
believing instead that the ``only plausible explanation'' for the drug 
testing program was the ``symbolism'' of a government agency setting an 
example for other employers to follow. 489 U.S. at 686-87.
        \128\Id. at 672.

        So far the Court has not ruled on a random drug testing program, 
having since Skinner and Von Raab refused to hear other challenges to 
drug testing.\129\ Answers to remaining questions, e.g.,

[[Page 1250]]
whether other drug testing programs not so closely tied to safety and 
security concerns serve ``compelling'' governmental interests, whether 
other classes of employees have a diminished expectation of privacy, and 
whether more intrusive testing procedures are permissible,\130\ must 
therefore await future litigation.

        \129\See, e.g., Policemen's Benevolent Ass'n Local 318 v. 
Township of Washington, 850 F.2d 133 (3d Cir. 1988), cert. denied 490 
U.S. 1004 (1989) (random urinalysis testing of police officers upheld); 
Copeland v. Philadelphia Police Dep't, 840 F.2d 1139 (3d Cir. 1988), 
cert. denied 490 U.S. 1004 (upholding testing of police officer based on 
``reasonable suspicion''); Alverado v. WPPSS, 759 P.2d 427 (Wash. 1988), 
cert. denied 490 U.S. 1004 (upholding pre-employment drug screening for 
nuclear power plant workers); Harmon v. Thornburgh, 878 F.2d 484 (D.C. 
Cir. 1989), cert. denied sub nom. Bell v. Thornburgh, 493 U.S. 1056 
(1990) (approving random testing of Department of Justice employees with 
top secret security clearances); National Fed'n of Fed. Employees v. 
Cheney, 892 F.2d 98 (D.C. Cir. 1989) cert. denied 493 U.S. 1056 (1990) 
(upholding random testing of U.S. Army civilian employees in 
``critical'' jobs, e.g., aircraft crews and mechanics, security guards, 
and drug counselors); Guiney v. Roache, 873 F.2d 1557 (1st Cir. 1989), 
cert. denied 493 U.S. 963 (upholding random testing of Boston police 
officers who carry firearms or participate in drug interdiction); AFGE 
v. Skinner, 885 F.2d 884 (D.C. Cir. 1989), cert. denied 493 U.S. 923 
(1990) (upholding random drug testing of three categories of DOT 
employees: motor vehicle operators, hazardous material inspectors, and 
aircraft mechanics); Jones v. McKenzie, 833 F.2d 335 (D.C. Cir. 1987), 
vacated and remanded sub nom. Jenkins v. Jones, 490 U.S. 1001 (1989) 
(court of appeals had upheld testing of school bus drivers only in the 
context of a routine medical exam).
        \130\In Skinner the Court emphasized that the FRA regulations 
``do not require'' direct observation by a monitor (although, as the 
dissent pointed out, 489 U.S. at 646, the FRA Field Manual did so 
require) and that the sample is collected ``in a medical environment'' 
(id. at 626); the Customs screening program at issue in Von Raab 
similarly did not require direct observation of urination, and in 
addition gave job applicants advance notice of testing.

                            FOURTH AMENDMENT

                           SEARCH AND SEIZURE

      Electronic Surveillance and the Fourth Amendment

        The Olmstead Case.--With the invention of the microphone, the 
telephone, and the dictograph recorder, it became possible to 
``eavesdrop'' with much greater secrecy and expediency. Inevitably, the 
use of electronic devices in law enforcement was challenged, and in 1928 
the Court reviewed convictions obtained on the basis of evidence gained 
through taps on telephone wires in violation of state law. On a five-to-
four vote, the Court held that wiretapping was not within the confines 
of the Fourth Amendment.\131\ Chief Justice Taft, writing the opinion of 
the Court, relied on two lines of argument for the conclusion. First, 
inasmuch as the Amendment was designed to protect one's property 
interest in his premises, there was no search so long as there was no 
physical trespass on premises owned or controlled by a defendant. 
Second, all the evidence obtained had been secured by hearing, and the 
interception of a conversation could not qualify as a seizure, for the 
Amendment referred only to the seizure of tangible items. Furthermore, 
the violation of state law did not render the evidence excludible, since 
the exclusionary rule operated only on evidence seized in violation of 
the Constitution.\132\

        \131\Olmstead v. United States, 277 U.S. 438 (1928).
        \132\Among the dissenters were Justice Holmes, who characterized 
``illegal'' wiretapping as ``dirty business,'' id. at 470, and Justice 
Brandeis, who contributed to his opinion the famous peroration about 
government as ``the potent, the omnipresent, teacher'' which ``breeds 
contempt for law'' among the people by its example. Id. at 485. More 
relevant here was his lengthy argument rejecting the premises of the 
majority, an argument which later became the law of the land. (1) ``To 
protect [the right to be left alone], every unjustifiable intrusion by 
the Government upon the privacy of the individual, whatever the means 
employed, must be deemed a violation of the Fourth Amendment.'' Id. at 
478. (2) ``There is, in essence, no difference between the sealed letter 
and the private telephone message. . . . The evil incident to invasion 
of the privacy of the telephone is far greater than that involved in 
tampering with the mails. Whenever a telephone line is tapped, the 
privacy of the persons at both ends of the line is invaded and all 
conversations between them upon any subject . . . may be overheard.'' 
Id. at 475-76.


[[Page 1251]]

        Federal Communications Act.--Six years after the decision in the 
Olmstead case, Congress enacted the Federal Communications Act and 
included in Sec. 605 of the Act a broadly worded proscription on which 
the Court seized to place some limitation upon governmental 
wiretapping.\133\ Thus, in Nardone v. United States,\134\ the Court held 
that wiretapping by federal officers could violate Sec. 605 if the 
officers both intercepted and divulged the contents of the conversation 
they overheard, and that testimony in court would constitute a form of 
prohibited divulgence. Such evidence was therefore excluded, although 
wiretapping was not illegal under the Court's interpretation if the 
information was not used outside the governmental agency. Because 
Sec. 605 applied to intrastate as well as interstate transmissions,\135\ 
there was no question about the applicability of the ban to state police 
officers, but the Court declined to apply either the statute or the due 
process clause to require the exclusion of such evidence from state 
criminal trials.\136\ State efforts to legalize wiretapping pursuant to 
court orders were held by the Court to be precluded by the fact that 
Congress in Sec. 605 had intended to occupy the field completely to the 
exclusion of the States.\137\

        \133\Ch.652, 48 Stat. 1103 (1934), providing, inter alia, that 
''. . . no person not being authorized by the sender shall intercept any 
communication and divulge or publish the existence, contents, purport, 
effect, or meaning of such intercepted communication to any person.'' 
Nothing in the legislative history indicated what Congress had in mind 
in including this language. The section, which appeared at 47 U.S.C. 
Sec. 605, was rewritten by Title III of the Omnibus Crime Act of 1968, 
82 Stat. 22, Sec. 803, so that the ``regulation of the interception of 
wire or oral communications in the future is to be governed by'' the 
provisions of Title III. S. Rep. No. 1097, 90th Cong., 2d Sess. 107-08 
        \134\302 U.S. 379 (1937). Derivative evidence, that is, evidence 
discovered as a result of information obtained through a wiretap, was 
similarly inadmissible, Nardone v. United States, 308 U.S. 338 (1939), 
although the testimony of witnesses might be obtained through the 
exploitation of wiretap information. Goldstein v. United States, 316 
U.S. 114 (1942). Eavesdropping on a conversation on an extension 
telephone with the consent of one of the parties did not violate the 
statute. Rathbun v. United States, 355 U.S. 107 (1957).
        \135\Weiss v. United States, 308 U.S. 321 (1939).
        \136\Schwartz v. Texas, 344 U.S. 199 (1952). At this time, 
evidence obtained in violation of the Fourth Amendment could be admitted 
in state courts. Wolf v. Colorado, 338 U.S. 25 (1949). Although Wolf was 
overruled by Mapp v. Ohio, 367 U.S. 643 (1961), it was some seven years 
later and after wiretapping itself had been made subject to the Fourth 
Amendment that Schwartz was overruled in Lee v. Florida, 392 U.S. 378 
        \137\Bananti v. United States, 355 U.S. 96 (1957).

        Nontelephonic Electronic Surveillance.--The trespass rationale 
of Olmstead was utilized in cases dealing with ``bugging'' of premises 
rather than with tapping of telephones. Thus, in Goldman v. United 
States,\138\ the Court found no Fourth Amendment violation when a 
listening device was placed against a party wall so

[[Page 1252]]
that conversations were overheard on the other side. But when officers 
drove a ``spike mike'' into a party wall until it came into contact with 
a heating duct and thus broadcast defendant's conversations, the Court 
determined that the trespass brought the case within the Amendment.\139\ 
In so holding, the Court, without alluding to the matter, overruled in 
effect the second rationale of Olmstead, the premise that conversations 
could not be seized.

        \138\316 U.S. 129 (1942).
        \139\Silverman v. United States, 365 U.S. 505 (1961). See also 
Clinton v. Virginia, 377 U.S. 158 (1964) (physical trespass found with 
regard to amplifying device stuck in a partition wall with a thumb 

        The Berger and Katz Cases.--In Berger v. New York,\140\ the 
Court confirmed the obsolesence of the alternative holding in Olmstead 
that conversations could not be seized in the Fourth Amendment 
sense.\141\ Berger held unconstitutional on its face a state 
eavesdropping statute under which judges were authorized to issue 
warrants permitting police officers to trespass on private premises to 
install listening devices. The warrants were to be issued upon a showing 
of ``reasonable ground to believe that evidence of crime may be thus 
obtained, and particularly describing the person or persons whose 
communications, conversations or discussions are to be overheard or 
recorded.'' For the five-Justice majority, Justice Clark discerned 
several constitutional defects in the law. ``First, . . . eavesdropping 
is authorized without requiring belief that any particular offense has 
been or is being committed; nor that the `property' sought, the 
conversations, be particularly described.

        \140\388 U.S. 41 (1967).
        \141\Id. at 50-53.

        ``The purpose of the probable-cause requirement of the Fourth 
Amendment to keep the state out of constitutionally protected areas 
until it has reason to believe that a specific crime has been or is 
being committed is thereby wholly aborted. Likewise the statute's 
failure to describe with particularity the conversations sought gives 
the officer a roving commission to `seize' any and all conversations. It 
is true that the statute requires the naming of `the person or persons 
whose communications, conversations or discussions are to be overheard 
or recorded. . . .' But this does no more than identify the person whose 
constitutionally protected area is to be invaded rather than 
`particularly describing' the communications, conversations, or 
discussions to be seized. . . . Secondly, authorization of eavesdropping 
for a two-month period is the equivalent of a series of intrusions, 
searches, and seizures pursuant to a single showing of probable cause. 
Prompt execution is also avoided. During such a long and continuous (24 
hours a day) period the con

[[Page 1253]]
versations of any and all persons coming into the area covered by the 
device will be seized indiscriminately and without regard to their 
connection with the crime under investigation. Moreover, the statute 
permits. . . extensions of the original two-month period--presumably for 
two months each--on a mere showing that such extension is `in the public 
interest.'. . . Third, the statute places no termination date on the 
eavesdrop once the conversation sought is seized. . . . Finally, the 
statute's procedure, necessarily because its success depends on secrecy, 
has no requirement for notice as do conventional warrants, nor does it 
overcome this defect by requiring some showing of special facts. On the 
contrary, it permits unconsented entry without any showing of exigent 
circumstances. Such a showing of exigency, in order to avoid notice, 
would appear more important in eavesdropping, with its inherent dangers, 
than that required when conventional procedures of search and seizure 
are utilized. Nor does the statute provide for a return on the warrant 
thereby leaving full discretion in the officer as to the use of seized 
conversations of innocent as well as guilty parties. In short, the 
statute's blanket grant of permission to eavesdrop is without adequate 
judicial supervision or protective procedures.''\142\

        \142\Id. at 58-60. Justice Stewart concurred because he thought 
that the affidavits in this case had not been sufficient to show 
probable cause, but he thought the statute constitutional in compliance 
with the Fourth Amendment. Id. at 68. Justice Black dissented, arguing 
that the Fourth Amendment was not applicable to electronic eavesdropping 
but that in any event the ``search'' authorized by the statute was 
reasonable. Id. at 70. Justice Harlan dissented, arguing that the 
statute with its judicial gloss was in compliance with the Fourth 
Amendment. Id. 89. Justice White thought both the statute and its 
application in this case were constitutional. Id. at 107.

        Both Justices Black and White in dissent accused the Berger 
majority of so construing the Fourth Amendment that no wiretapping-
eavesdropping statute could pass constitutional scrutiny,\143\ and in 
Katz v. United States,\144\ the Court in an opinion by one of the Berger 
dissenters, Justice Stewart, modified some of its language and pointed 
to Court approval of some types of statutorily-authorized electronic 
surveillance. Just as Berger had confirmed that one rationale of the 
Olmstead decision, the inapplicability of ``seizure'' to conversations, 
was no longer valid, Katz disposed of the other rationale. In the latter 
case, officers had affixed a listening device to the outside wall of a 
telephone booth regularly used by Katz and activated it each time he 
entered; since there had been no physical trespass into the booth, the 
lower courts held the Fourth Amendment not relevant. The Court 
disagreed, saying that ``once it is recognized that the Fourth Amendment 
protects peo

[[Page 1254]]
ple--and not simply `areas'--against unreasonable searches and seizures, 
it becomes clear that the reach of that Amendment cannot turn upon the 
presence or absence of a physical intrusion into any given 
enclosure.''\145\ Because the surveillance of Katz's telephone calls had 
not been authorized by a magistrate, it was invalid; however, the Court 
thought that ``it is clear that this surveillance was so narrowly 
circumscribed that a duly authorized magistrate, properly notified of 
the need for such investigation, specifically informed of the basis on 
which it was to proceed, and clearly apprised of the precise intrusion 
it would entail, could constitutionally have authorized, with 
appropriate safeguards, the very limited search and seizure that the 
Government asserts in fact took place.''\146\ The notice requirement, 
which had loomed in Berger as an obstacle to successful electronic 
surveillance, was summarily disposed of.\147\ Finally, Justice Stewart 
observed that it was unlikely that electronic surveillance would ever 
come under any of the established exceptions so that it could be 
conducted without prior judicial approval.\148\

        \143\Id. at 71, 113.
        \144\389 U.S. 347 (1967).
        \145\Id. at 353. ``We conclude that the underpinnings of 
Olmstead and Goldman have been so eroded by our subsequent decisions 
that the `trespass' doctrine there enunciated can no longer be regarded 
as controlling. The Government's activities in electronically listening 
to and recording the petitioner's words violated the privacy upon which 
he justifiably relied while using the telephone booth and thus 
constituted a `search and seizure' within the meaning of the Fourth 
Amendment.'' Id.
        \146\Id. at 354. The ``narrowly circumscribed'' nature of the 
surveillance was made clear by the Court in the immediately preceding 
passage. ``[The Government agents] did not begin their electronic 
surveillance until investigation of the petitioner's activities had 
established a strong probability that he was using the telephone in 
question to transmit gambling information to persons in other States, in 
violation of federal law. Moreover, the surveillance was limited, both 
in scope and in duration, to the specific purpose of establishing the 
contents of the petitioner's unlawful telephonic communications. The 
agents confined their surveillance to the brief periods during which he 
used the telephone booth, and they took great care to overhear only the 
conversations of the petitioner himself.'' Id. For similar emphasis upon 
precision and narrow circumscription, see Osborn v. United States, 385 
U.S. 323, 329-30 (1966).
        \147\``A conventional warrant ordinarily serves to notify the 
suspect of an intended search . . . . In omitting any requirement of 
advance notice, the federal court . . . simply recognized, as has this 
Court, that officers need not announce their purpose before conducting 
an otherwise authorized search if such an announcement would provoke the 
escape of the suspect or the destruction of critical evidence.'' 389 
U.S. at 355 n.16.
        \148\Id. at 357-58. Justice Black dissented, feeling that the 
Fourth Amendment applied only to searches for and seizures of tangible 
things and not conversations. Id. at 364. Two ``beeper'' decisions 
support the general applicability of the warrant requirement if 
electronic surveillance will impair legitimate privacy interests. 
Compare United States v. Knotts, 460 U.S. 276 (1983) (no Fourth 
Amendment violation in relying on a beeper, installed without warrant, 
to aid in monitoring progress of a car on the public roads, since there 
is no legitimate expectation of privacy in destination of travel on the 
public roads), with United States v. Karo, 468 U.S. 705 (1984) (beeper 
installed without a warrant may not be used to obtain information as to 
the continuing presence of an item within a private residence).


[[Page 1255]]

        Following Katz, Congress enacted in 1968 a comprehensive statute 
authorizing federal officers and permitting state officers pursuant to 
state legislation complying with the federal law to seek warrants for 
electronic surveillance to investigate violations of prescribed classes 
of criminal legislation.\149\ The Court has not yet had occasion to pass 
on the federal statute and to determine whether its procedures and 
authorizations comport with the standards sketched in Osborn, Berger, 
and Katz or whether those standards are somewhat more flexible than they 
appear to be on the faces of the opinions.\150\

        \149\Title III of the Omnibus Crime Control and Safe Streets Act 
of 1968, 82 Stat. 211, 18 U.S.C. Sec. Sec. 2510-20.
        \150\The Court has interpreted the statute several times without 
reaching the constitutional questions. United States v. Kahn, 415 U.S. 
143 (1974); United States v. Giordano, 416 U.S. 505 (1974); United 
States v. Chavez, 416 U.S. 562 (1974); United States v. Donovan, 429 
U.S. 413 (1977); Scott v. United States, 436 U.S. 128 (1978); Dalia v. 
United States, 441 U.S. 238 (1979); United States v. New York Telephone 
Co., 434 U.S. 159 (1977); United States v. Caceres, 440 U.S. 741 (1979). 
Dalia supra, did pass on one constitutional issue, whether the Fourth 
Amendment mandated specific warrant authorization for a surreptitious 
entry to install an authorized ``bug.'' See also Smith v. Maryland, 442 
U.S. 735 (1979) (no reasonable expectation of privacy in numbers dialed 
on one's telephone, so Fourth Amendment does not require a warrant to 
install ``pen register'' to record those numbers).

        Warrantless ``National Security'' Electronic Surveillance.--In 
Katz v. United States,\151\ Justice White sought to preserve for a 
future case the possibility that in ``national security cases'' 
electronic surveillance upon the authorization of the President or the 
Attorney General could be permissible without prior judicial approval. 
The Executive Branch then asserted the power to wiretap and to ``bug'' 
in two types of national security situations, against domestic 
subversion and against foreign intelligence operations, first basing its 
authority on a theory of ``inherent'' presidential power and then in the 
Supreme Court withdrawing to the argument that such surveillance was a 
``reasonable'' search and seizure and therefore valid under the Fourth 
Amendment. Unanimously, the Court held that at least in cases of 
domestic subversive investigations, compliance with the warrant 
provisions of the Fourth Amendment was required.\152\ Whether or not a 
search was

[[Page 1256]]
reasonable, wrote Justice Powell for the Court, was a question which 
derived much of its answer from the warrant clause; except in a few 
narrowly circumscribed classes of situations, only those searches 
conducted pursuant to warrants were reasonable. The Government's duty to 
preserve the national security did not override the gurarantee that 
before government could invade the privacy of its citizens it must 
present to a neutral magistrate evidence sufficient to support issuance 
of a warrant authorizing that invasion of privacy.\153\ This protection 
was even more needed in ``national security cases'' than in cases of 
``ordinary'' crime, the Justice continued, inasmuch as the tendency of 
government so often is to regard opponents of its policies as a threat 
and hence to tread in areas protected by the First Amendment as well as 
by the Fourth.\154\ Rejected also was the argument that courts could not 
appreciate the intricacies of investigations in the area of national 
security nor preserve the secrecy which is required.\155\

        \151\389 U.S. 347, 363-64 (1967) (concurring opinion). Justices 
Douglas and Brennan rejected the suggestion. Id. at 359-60 (concurring 
opinion). When it enacted its 1968 electronic surveillance statute, 
Congress alluded to the problem in ambiguous fashion, 18 U.S.C. 
Sec. 2511(3), which the Court subsequently interpreted as having 
expressed no congressional position at all. United States v. United 
States District Court, 407 U.S. 297, 302-08 (1972).
        \152\United States v. United States District Court, 407 U.S. 297 
(1972). Chief Justice Burger concurred in the result and Justice White 
concurred on the ground that the 1968 law required a warrant in this 
case, and therefore did not reach the constitutional issue. Id. at 340. 
Justice Rehnquist did not participate. Justice Powell carefully noted 
that the case required ``no judgment on the scope of the President's 
surveillance power with respect to the activities of foreign powers, 
within or without this country.'' Id. at 308.
        \153\The case contains a clear suggestion that the Court would 
approve a congressional provision for a different standard of probable 
cause in national security cases. ``We recognize that domestic security 
surveillance may involve different policy and practical considerations 
from the surveillance of `ordinary crime.' The gathering of security 
intelligence is often long range and involves the interrelation of 
various sources and types of information. The exact targets of such 
surveillance may be more difficult to identify than in surveillance 
operations against many types of crimes specified in Title III. Often, 
too, the emphasis of domestic intelligence gathering is on the 
prevention of unlawful activity or the enhancement of the Government's 
preparedness for some future crisis or emergency. . . . Different 
standards may be compatible with the Fourth Amendment if they are 
reasonable both in relation to the legitimate need of Government for 
intelligence information and the protected rights of our citizens. For 
the warrant application may vary according to the governmental interest 
to be enforced and the nature of citizen rights deserving protection. 
. . . It may be that Congress, for example, would judge that the 
application and affidavit showing probable cause need not follow the 
exact requirements of Sec. 2518 but should allege other circumstances 
more appropriate to domestic security cases. . . .'' Id. at 322-23.
        \154\Id. at 313-24.
        \155\Id. at 320.

        The question of the scope of the President's constitutional 
powers, if any, remains judicially unsettled.\156\ Congress has acted, 
however, providing for a special court to hear requests for warrants for 
electronic surveillance in foreign intelligence situations, and 
permitting the President to authorize warrantless surveillance to

[[Page 1257]]
acquire foreign intelligence information provided that the 
communications to be monitored are exclusively between or among foreign 
powers and there is no substantial likelihood any ``United States 
person'' will be overheard.\157\

        \156\See United States v. Butenko, 494 F.2d 593 (3d Cir.), cert. 
denied, 419 U.S. 881 (1974); Zweibon v. Mitchell, 516 F.2d 594 (D.C. 
Cir. 1975), cert. denied, 425 U.S. 944 (1976), appeal after remand 565 
F.2d 742 (D.C. Cir. 1977), on remand, 444 F. Supp. 1296 (D.D.C. 1978), 
aff'd. in part, rev'd. in part, 606 F.2d 1172 (D.C. Cir. 1979), cert. 
denied, 453 U.S. 912 (1981); Smith v. Nixon, 606 F.2d 1183 (D.C. Cir. 
1979), cert. denied, 453 U.S. 912 (1981); United States v. Truong Dinh 
Hung, 629 F.2d 908 (4th Cir. 1980), after remand, 667 F.2d 1105 (4th 
Cir. 1981); Halkin v. Helms, 690 F.2d 977 (D.C. Cir. 1982).
        \157\Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 
95-511, 92 Stat. 1797, 50 U.S.C. Sec. Sec. 1801-1811. See United States 
v. Belfield, 692 F.2d 141 (D.C. Cir. 1982) (upholding constitutionality 
of disclosure restrictions in Act).

                            FOURTH AMENDMENT

                           SEARCH AND SEIZURE

      Enforcing the Fourth Amendment: The Exclusionary Rule

        A right to be free from unreasonable searches and seizures is 
declared by the Fourth Amendment, but how one is to translate the 
guarantee into concrete terms is not specified. Several possible methods 
of enforcement have been suggested over time; however, the Supreme Court 
has settled, not without dissent, on only one as an effective means to 
make real the right.

        Alternatives to the Exclusionary Rule.--Theoretically, there are 
several alternatives to the exclusionary rule. An illegal search and 
seizure may be criminally actionable and officers undertaking one thus 
subject to prosecution, but the examples when officers are criminally 
prosecuted for overzealous law enforcement are extremely rare.\158\ A 
policeman who makes an illegal search and seizure is subject to internal 
departmental discipline which may be backed up in the few jurisdictions 
which have adopted them by the oversight of and participation of police 
review boards, but again the examples of disciplinary actions are 
exceedingly rare.\159\ Persons who have been illegally arrested or who 
have had their privacy invaded will usually have a tort action available 
under state statutory or common law.

        \158\Edwards, Criminal Liability for Unreasonable Searches and 
Seizures, 41 Va. L. Rev. 621 (1955).
        \159\Goldstein, Police Policy Formulation: A Proposal for 
Improving Police Performance, 65 Mich. L. Rev. 1123 (1967).

        Moreover, police officers acting under color of state law who 
violate a person's Fourth Amendment rights are subject to a suit for 
damages and other remedies\160\ under a civil rights statute in federal 
courts.\161\ While federal officers and others acting under color of 
federal law are not subject jurisdictionally to this statute,

[[Page 1258]]
the Supreme Court has recently held that a right to damages for 
violation of Fourth Amendment rights arises by implication out of the 
guarantees secured and that this right is enforceable in federal 
courts.\162\ While a damage remedy might be made more effectual,\163\ a 
number of legal and practical problems stand in the way.\164\ Police 
officers have available to them the usual common-law defenses, most 
important of which is the claim of good faith.\165\ Federal officers are 
entitled to qualified immunity based on an objectively reasonable belief 
that a warrantless search later determined to violate the Fourth 
Amendment was supported by probable cause or exigent circumstances.\166\ 
And on the practical side, persons subjected to illegal arrests and 
searches and seizures are often disreputable persons toward whom juries 
are unsympathetic, or they are indigent and unable to bring suit. The 
result, therefore, is that the Court has emphasized exclusion of 
unconstitutionally seized evidence in subsequent criminal trials as the 
only effective enforcement method.

        \160\If there are continuing and recurrent violations, federal 
injunctive relief would be available. Cf. Lankford v. Gelston, 364 F.2d 
197 (4th Cir. 1966); Wheeler v. Goodman, 298 F. Supp. 935 (preliminary 
injunction), 306 F. Supp. 58 (permanent injunction) (W.D.N.C. 1969), 
vacated on jurisdictional grounds, 401 U.S. 987 (1971).
        \161\42 U.S.C. Sec. 1983 (1964). See Monroe v. Pape, 365 U.S. 
167 (1961). In some circumstances, the officer's liability may be 
attributed to the municipality. Monell v. New York City Dep't of Social 
Services, 436 U.S. 658 (1978). These claims that officers have used 
excessive force in the course of an arrest or investigatory stop are to 
be analyzed under the Fourth Amendment, not under substantive due 
process. The test is ``whether the officers' actions are `objectively 
reasonable' under the facts and circumstances confronting them.'' Graham 
v. Connor, 490 U.S. 386, 397 (1989).
        \162\Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 
(1971). The possibility had been hinted at in Bell v. Hood, 327 U.S. 678 
        \163\See, e.g., Chief Justice Burger's dissent in Bivens v. Six 
Unknown Fed. Narcotics Agents, 403 U.S. 388, 411, 422-24 (1971), which 
suggests suit against the Government in a special tribunal and the 
abolition of the exclusionary rule.
        \164\Foote, Tort Remedies for Police Violations of Individual 
Rights, 39 Minn. L. Rev. 493 (1955).
        \165\This is the rule in actions under 42 U.S.C. Sec. 1983, 
Pierson v. Ray, 386 U.S. 547 (1967), and on remand in Bivens the Court 
of Appeals promulgated the same rule to govern trial of the action. 
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 
456 F.2d 1339 (2d Cir. 1972).
        \166\Anderson v. Creighton, 483 U.S. 635 (1987). The dissenting 
Justices argued, inter alia, that such a principle is more appropriately 
applied as an affirmative defense, thereby allowing resolution of 
factual disputes prior to determining objective reasonableness of an 
officer's actions. 483 U.S. at 655 (Stevens, J.). See also Malley v. 
Briggs, 475 U.S. 335, 345 (1986) (qualified immunity protects police 
officers who applied for a warrant unless ``a reasonably well-trained 
officer in [the same] position would have known that his affidavit 
failed to establish probable cause and that he should not have applied 
for a warrant'').

        Development of the Exclusionary Rule.--Exclusion of evidence as 
a remedy for Fourth Amendment violations found its beginning in Boyd v. 
United States,\167\ which, as was noted above, involved not a search and 
seizure but a compulsory production of business papers which the Court 
likened to a search and seizure. Further, the Court analogized the Fifth 
Amendment's self-incrimination provision to the Fourth Amendment's 
protections to derive a rule which required exclusion of the compelled 
evidence because the defendant had been compelled to incriminate himself 
by producing it.\168\ The Boyd case was closely limited to its facts and 

[[Page 1259]]
exclusionary rule based on Fourth Amendment violations was rejected by 
the Court a few years later, with the Justices adhering to the common-
law rule that evidence was admissible however acquired.\169\

        \167\116 U.S. 616 (1886).
        \168\``We have already noticed the intimate relation between the 
two Amendments. They throw great light on each other. For the 
`unreasonable searches and seizures' condemned in the Fourth Amendment 
are almost always made for the purpose of compelling a man to give 
evidence against himself, which in criminal cases is condemned in the 
Fifth Amendment; and compelling a man in a criminal case to be a witness 
against himself, which is condemned in the Fifth Amendment, throws light 
on the question as to what is an `unreasonable search and seizure' 
within the meaning of the Fourth Amendment. And we have been unable to 
perceive that the seizure of a man's private books and papers to be used 
in evidence against him is substantially different from compelling him 
to be a witness against himself. We think it is within the clear intent 
and meaning of those terms.'' Id. at 633. It was this utilization of the 
Fifth Amendment's clearly required exclusionary rule, rather than one 
implied from the Fourth, on which Justice Black relied and absent a 
Fifth Amendment self-incrimination violation he did not apply such a 
rule. Mapp v. Ohio, 367 U.S. 643, 661 (1961) (concurring opinion); 
Coolidge v. New Hampshire, 403 U.S. 443, 493, 496-500 (1971) (dissenting 
opinion). The theory of a ``convergence'' of the two Amendments has now 
been disavowed by the Court. Supra, pp.1225-26.
        \169\Adams v. New York, 192 U.S. 585 (1904). Since the case 
arose from a state court and concerned a search by state officers, it 
could have been decided simply by holding that the Fourth Amendment was 
inapplicable. See National Safe Deposit Co. v. Stead, 232 U.S. 58, 71 

        Nevertheless, ten years later the common-law view was itself 
rejected and an exclusionary rule propounded in Weeks v. United 
States.\170\ Weeks had been convicted on the basis of evidence seized 
from his home in the course of two warrantless searches; some of the 
evidence consisted of private papers like those sought to be compelled 
in the Boyd case. Unanimously, the Court held that the evidence should 
have been excluded by the trial court. The Fourth Amendment, Justice Day 
said, placed on the courts as well as on law enforcement officers 
restraints on the exercise of power compatible with its guarantees. 
``The tendency of those who execute the criminal laws of the country to 
obtain convictions by means of unlawful searches and enforced 
confessions . . . should find no sanction in the judgment of the courts 
which are charged at all times with the support of the Constitution and 
to which people of all conditions have a right to appeal for the 
maintenance of such fundamental rights.''\171\ The ruling is ambiguously 
based but seems to have had as its foundation an assumption that 
admission of illegally-seized evidence would itself violate the 
Amendment. ``If letters and private documents can thus be seized and 
held and used in evidence against a citizen accused of an offense, the 
protection of the Fourth Amendment declaring his right to be secured 
against such searches and seizures is of no value, and, so far as those 
thus placed are concerned, might as well be stricken from the Constitu

[[Page 1260]]
tion. The efforts of the courts and their officials to bring the guilty 
to punishment, praiseworthy as they are, are not to be aided by the 
sacrifice of those great principles established by years of endeavor and 
suffering which have resulted in their embodiment in the fundamental law 
of the land.''\172\

        \170\232 U.S. 383 (1914).
        \171\Id. at 392.
        \172\Id. at 393.

        Because the Fourth Amendment did not restrict the actions of 
state officers,\173\ there was no question about the application of an 
exclusionary rule in state courts\174\ as a mandate of federal 
consitutional policy.\175\ But in Wolf v. Colorado,\176\ a unanimous 
Court held that freedom from unreasonable searches and seizures was such 
a fundamental right as to be protected against state violations by the 
due process clause of the Fourteenth Amendment.\177\ However, the Court 
held that the right thus guaranteed did not require that the 
exclusionary rule be applied in the state courts, since there were other 
means to observe and enforce the right. ``Granting that in practice the 
exclusion of evidence may be an effective way of deterring unreasonable 
searches, it is not for this Court to condemn as falling below the 
minimal standards assured

[[Page 1261]]
by the Due Process Clause a State's reliance upon other methods which, 
if consistently enforced, would be equally effective.''\178\

        \173\Smith v. Maryland, 59 U.S. (18 How.) 71, 76 (1855); 
National Safe Deposit Co. v. Stead, 232 U.S. 58, 71 (1914). See supra, 
        \174\The history of the exclusionary rule in the state courts 
was surveyed by Justice Frankfurter in Wolf v. Colorado, 338 U.S. 25, 
29, 33-38 (1949). The matter was canvassed again in Elkins v. United 
States, 364 U.S. 206, 224-32 (1960).
        \175\During the period in which the Constitution did not impose 
any restrictions on state searches and seizures, the Court permitted the 
introduction in evidence in federal courts of items seized by state 
officers which had they been seized by federal officers would have been 
inadmissible, Weeks v. United States, 232 U.S. 383, 398 (1914), so long 
as no federal officer participated in the search, Byars v. United 
States, 273 U.S. 28 (1927), or the search was not made on behalf of 
federal law enforcement purposes. Gambino v. United States, 275 U.S. 310 
(1927). This rule became known as the ``silver platter doctrine'' after 
the phrase coined by Justice Frankfurter in Lustig v. United States, 338 
U.S. 74, 78-79 (1949): ``The crux of that doctrine is that a search is a 
search by a federal official if he had a hand in it; it is not a search 
by a federal official if evidence secured by state authorities is turned 
over to the federal authorities on a silver platter.'' In Elkins v. 
United States, 364 U.S. 206 (1960), the doctrine was discarded by a 
five-to-four majority which held that inasmuch as Wolf v. Colorado, 338 
U.S. 25 (1949), had made state searches and seizures subject to federal 
constitutional restrictions through the Fourteenth Amendment's due 
process clause, the ``silver platter doctrine'' was no longer 
constitutionally viable. During this same period, since state courts 
were free to admit any evidence no matter how obtained, evidence 
illegally seized by federal officers could be used in state courts, 
Wilson v. Schnettler, 365 U.S. 381 (1961), although the Supreme Court 
ruled out such a course if the evidence had first been offered in a 
federal trial and had been suppressed. Rea v. United States, 350 U.S. 
214 (1956).
        \176\338 U.S. 25 (1949).
        \177\``The security of one's privacy against arbitrary intrusion 
by the police--which is at the core of the Fourth Amendment--is basic to 
a free society. It is therefore implicit in `the concept of ordered 
liberty' and as such enforceable against the States through the Due 
Process Clause.'' Id. at 27-28.
        \178\Id. at 31. Justices Douglas, Murphy, and Rutledge dissented 
with regard to the issue of the exclusionary rule and Justice Black 

        It developed, however, that the Court had not vested in the 
States total discretion in regard to the admissibility of evidence, as 
the Court proceeded to evaluate under the due process clause the methods 
by which the evidence had been obtained. Thus, in Rochin v. 
California,\179\ evidence of narcotics possession had been obtained by 
forcible administration of an emetic to defendant at a hospital after 
officers had been unsuccessful in preventing him from swallowing certain 
capsules. The evidence, said Justice Frankfurter for the Court, should 
have been excluded because the police methods were too objectionable. 
``This is conduct that shocks the conscience. Illegally breaking into 
the privacy of the petitioner, the struggle to open his mouth and remove 
what was there, the forcible extraction of his stomach's contents . . . 
is bound to offend even hardened sensibilities. They are methods too 
close to the rack and screw.''\180\ The Rochin standard was limited in 
Irvine v. California,\181\ in which defendant was convicted of 
bookmaking activities on the basis of evidence secured by police who 
repeatedly broke into his house and concealed electronic gear to 
broadcast every conversation in the house. Justice Jackson's plurality 
opinion asserted that Rochin had been occasioned by the element of 
brutality, and that while the police conduct in Irvine was blatantly 
illegal the admissibility of the evidence was governed by Wolf, which 
should be consistently applied for purposes of guidance to state courts. 
The Justice also entertained considerable doubts about the efficacy of 
the exclusionary rule.\182\ Rochin emerged as the standard, however, in 
a later case in which the Court sustained the admissibility of the 
results of a blood test administered while defendant was unconscious in 
a hospital following a traffic accident, the Court observing the routine 
nature of the test and the minimal intrusion into bodily privacy.\183\

        \179\342 U.S. 165 (1952). The police had initially entered 
defendant's house without a warrant. Justices Black and Douglas 
concurred in the result on self-incrimination grounds.
        \180\Id. at 172.
        \181\347 U.S. 128 (1954).
        \182\Id. at 134-38. Justice Clark, concurring, announced his 
intention to vote to apply the exclusionary rule to the States when the 
votes were available. Id. at 138. Justices Black and Douglas dissented 
on self-incrimination grounds, id. at 139, and Justice Douglas continued 
to urge the application of the exclusionary rule to the States. Id. at 
149. Justices Frankfurter and Burton dissented on due process grounds, 
arguing the relevance of Rochin. Id. at 142.
        \183\Breithaupt v. Abram, 352 U.S. 432 (1957). Chief Justice 
Warren and Justices Black and Douglas dissented. Though a due process 
case, the results of the case have been reaffirmed directly in a Fourth 
Amendment case. Schmerber v. California, 384 U.S. 757 (1966).


[[Page 1262]]

        Then, in Mapp v. Ohio,\184\ the Court held that the exclusionary 
rule should and did apply to the States. It was ``logically and 
constitutionally necessary,'' wrote Justice Clark for the majority, 
``that the exclusion doctrine--an essential part of the right to 
privacy--be also insisted upon as an essential ingredient of the right'' 
to be secure from unreasonable searches and seizures. ``To hold 
otherwise is to grant the right but in reality to withhold its privilege 
and enjoyment.''\185\ Further, the Court then held that since illegally-
seized evidence was to be excluded from both federal and state courts, 
the standards by which the question of legality was to be determined 
should be the same, regardless of whether the court in which the 
evidence was offered was state or federal.\186\

        \184\367 U.S. 643 (1961).
        \185\Id. at 655-56. Justice Black concurred, doubting that the 
Fourth Amendment itself compelled adoption of an exclusionary rule but 
relying on the Fifth Amendment for authority. Id. at 661. Justice 
Stewart would not have reached the issue but would have reversed on 
other grounds, id. at 672, while Justices Harlan, Frankfurter, and 
Whittaker dissented, preferring to adhere to Wolf. Id. at 672. Justice 
Harlan advocated the overruling of Mapp down to the conclusion of his 
service on the Court. See Coolidge v. New Hampshire, 403 U.S. 443, 490 
(1971) (concurring opinion).
        \186\Ker v. California, 374 U.S. 23 (1963).

        The Foundations of the Exclusionary Rule.--Important to 
determination of such questions as the application of the exclusionary 
rule to the States and the ability of Congress to abolish or to limit it 
is the fixing of the constitutional source and the basis of the rule. 
For some time, it was not clear whether the exclusionary rule was 
derived from the Fourth Amendment, from some union of the Fourth and 
Fifth Amendments, or from the Court's supervisory power over the lower 
federal courts. It will be recalled that in Boyd\187\ the Court fused 
the search and seizure clause with the provision of the Fifth Amendment 
protecting against compelled self-incrimination. Weeks v. United 
States,\188\ though the Fifth Amendment was mentioned, seemed to be 
clearly based on the Fourth Amendment. Nevertheless, in opinions 
following Weeks the Court clearly identified the basis for the 
exclusionary rule as the self-incrimination clause of the Fifth 
Amendment.\189\ Then in

[[Page 1263]]
Mapp v. Ohio,\190\ the Court tied the rule strictly to the Fourth 
Amendment, finding exclusion of evidence seized in violation of the 
Amendment to be the ``most important constitutional privilege'' of the 
right to be free from unreasonable searches and seizures, finding that 
the rule was ``an essential part of the right of privacy'' protected by 
the Amendment.

        \187\Boyd v. United States, 116 U.S. 616 (1886).
        \188\232 U.S. 383 (1914). Defendant's room had been searched and 
papers seized by officers acting without a warrant. ``If letters and 
private documents can thus be seized and held and used in evidence 
against a citizen accused of an offense, the protection of the Fourth 
Amendment declaring his right to be secure against such searches and 
seizures is of no value, and, so far as those thus placed are concerned, 
might as well be stricken from the Constitution.'' Id. at 393.
        \189\E.g., Gouled v. United States, 255 U.S. 298, 306, 307 
(1921); Amos v. United States, 255 U.S. 313, 316 (1921); Agnello v. 
United States, 269 U.S. 20, 33-34 (1925); McGuire v. United States, 273 
U.S. 95, 99 (1927). In Olmstead v. United States, 277 U.S. 438, 462 
(1928), Chief Justice Taft ascribed the rule both to the Fourth and the 
Fifth Amendments, while in dissent Justices Holmes and Brandeis took the 
view that the Fifth Amendment was violated by the admission of evidence 
seized in violation of the Fourth. Id. at 469, 478-79. Justice Black was 
the only modern proponent of this view. Mapp v. Ohio, 367 U.S. 643, 661 
(1961) (concurring opinion); Coolidge v. New Hampshire, 403 U.S. 443, 
493, 496-500 (1971) (dissenting opinion). See, however, Justice Clark's 
plurality opinion in Ker v. California, 374 U.S. 23, 30 (1963), in which 
he brought up the self-incrimination clause as a supplementary source of 
the rule, a position which he had discarded in Mapp.
        \190\367 U.S. 643, 656 (1961). Wolf v. Colorado, 338 U.S. 25, 28 
(1949), also ascribed the rule to the Fourth Amendment exclusively.

        ``This Court has ever since [Weeks was decided in 1914] required 
of federal law officers a strict adherence to that command which this 
Court has held to be a clear, specific, and constitutionally required--
even if judicially implied--deterrent safeguard without insistence upon 
which the Fourth Amendment would have been reduced to a `form of 
words.'''\191\ It was a necessary step in the application of the rule to 
the States to find that the rule was of constitutional origin rather 
than a result of an exercise of the Court's supervisory power over the 
lower federal courts, inasmuch as the latter could not constitutionally 
be extended to the state courts.\192\ In fact, Justice Frankfurter 
seemed to find the exclusionary rule to be based on the Court's 
supervisory powers in Wolf v. Colorado\193\ in declining to extend the 
rule to the States. That the

[[Page 1264]]
rule is of constitutional origin Mapp establishes, but this does not 
necessarily establish that it is immune to statutory revision.

        \191\Mapp v. Ohio, 367 U.S. 643, 648 (1961) (emphasis supplied).
        \192\An example of an exclusionary rule not based on 
constitutional grounds may be found in McNabb v. United States, 318 U.S. 
332 (1943), and Mallory v. United States, 354 U.S. 449 (1957), in which 
the Court enforced a requirement that arrestees be promptly presented to 
a magistrate by holding that incriminating admissions obtained during 
the period beyond a reasonable time for presentation would be 
inadmissible. The rule was not extended to the States, cf. Culombe v. 
Connecticut, 367 U.S. 568, 598-602 (1961), but the Court's resort to the 
self-incrimination clause in reviewing confessions made such application 
irrelevant in most cases in any event. For an example of a transmutation 
of a supervisory rule into a constitutional rule, see McCarthy v. United 
States, 394 U.S. 459 (1969), and Boykin v. Alabama, 395 U.S. 238 (1969).
        \193\Weeks ``was not derived from the explicit requirements of 
the Fourth Amendment; . . . The decision was a matter of judicial 
implication.'' 338 U.S. 25, 28 (1949). Justice Black was more explicit. 
``I agree with what appears to be a plain implication of the Court's 
opinion that the federal exclusionary rule is not a command of the 
Fourth Amendment but is a judicially created rule of evidence which 
Congress might negate.'' Id. at 39-40. He continued to adhere to the 
supervisory power basis in strictly search-and-seizure cases, Berger v. 
New York, 388 U.S. 41, 76 (1967) (dissenting), except where self-
incrimination values were present. Mapp v. Ohio, 367 U.S. 643, 661 
(1961) (concurring). And see id. at 678 (Justice Harlan dissenting); 
Elkins v. United States, 364 U.S. 206, 216 (1960) (Justice Stewart for 
the Court).

        Suggestions appear in a number of cases, including Weeks, to the 
effect that admission of illegally-seized evidence is itself 
unconstitutional.\194\ These were often combined with a rationale 
emphasizing ``judicial integrity'' as a reason to reject the proffer of 
such evidence.\195\ Yet the Court permitted such evidence to be 
introduced into trial courts, when the defendant lacked ``standing'' to 
object to the search and seizure which produced the evidence\196\ or 
when the search took place before the announcement of the decision 
extending the exclusionary rule to the States.\197\ At these times, the 
Court turned to the ``basic postulate of the exclusionary rule itself. 
The rule is calculated to prevent, not to repair. Its purpose is to 
deter--to compel respect for the constitutional guaranty in the only 
effectively available way--by removing the incentive to disregard 
it.''\198\ ``Mapp had as its prime purpose the enforcement of the Fourth 
Amendment through the inclusion of the exclusionary rule within its 
rights. This, it was found, was the only effective deterrent to lawless 
police action. Indeed, all of the cases since Wolf requiring the 
exclusion of illegal evidence have been based on the necessity for an 
effective deterrent to illegal police action.''\199\

        \194\``The tendency of those who execute the criminal laws of 
the country to obtain convictions by means of unlawful searches and 
enforced confessions . . . should find no sanction in the judgment of 
the courts which are charged at all times with the support of the 
Constitution . . . .'' Weeks v. United States, 232 U.S. 383, 392 (1914). 
In Mapp v. Ohio, 367 U.S. 643, 655, 657 (1961), Justice Clark maintained 
that ``the Fourth Amendment include[s] the exclusion of the evidence 
seized in violation of its provisions'' and that it, and the Fifth 
Amendment with regard to confessions ``assures . . . that no man is to 
be convicted on unconstitutional evidence.'' In Terry v. Ohio, 392 U.S. 
1, 12, 13 (1968), Chief Justice Warren wrote: ``Courts which sit under 
our Constitution cannot and will not be made party to lawless invasions 
of the constitutional rights of citizens by permitting unhindered 
governmental use of the fruits of such invasions. . . . A ruling 
admitting evidence in a criminal trial . . . has the necessary effect of 
legitimizing the conduct which produced the evidence.''
        \195\Elkins v. United States, 364 U.S. 206, 222-23 (1960); Mapp 
v. Ohio, 367 U.S. 643, 660 (1961). See McNabb v. United States, 318 U.S. 
332, 339-40 (1943).
        \196\Infra, pp.1269-70.
        \197\Linkletter v. Walker, 381 U.S. 618 (1965).
        \198\Elkins v. United States, 364 U.S. 206, 217 (1960).
        \199\Linkletter v. Walker, 381 U.S. 618, 636-37 (1965). The 
Court advanced other reasons for its decision as well. Id. at 636-40.

        Narrowing Application of the Exclusionary Rule.--For as long as 
we have had the exclusionary rule, critics have attacked it, challenged 
its premises, disputed its morality.\200\ By the early

[[Page 1265]]
1980s a majority of Justices had stated a desire either to abolish the 
rule or to sharply curtail its operation,\201\ and numerous opinions had 
rejected all doctrinal bases save that of deterrence.\202\ At the same 
time, these opinions voiced strong doubts about the efficacy of the rule 
as a deterrent, and advanced public interest values in effective law 
enforcement and public safety as reasons to discard the rule altogether 
or curtail its application.\203\ Thus, the Court emphasized the high 
costs of enforcing the rule to exclude reliable and trustworthy 
evidence, even when violations have been technical or in good faith, and 
suggested that such use of the rule may well ``generat[e] disrespect for 
the law and administration of justice,''\204\ as well as free guilty 
defendants.\205\ No longer does the Court declare that ``[t]he essence 
of a provision forbidding the acquisition of evidence in a certain way 
is that not merely evidence so acquired shall not be used before the 
Court but that it shall not be used at all.''\206\

        \200\Among the early critics were Judge Cardozo, People v. 
Defore, 242 N.Y. 13, 21, 150 N.E. 585, 587 (1926) (the criminal will go 
free ``because the constable has blundered''); and Dean Wigmore. 8 J. 
Wigmore, A Treatise on the Anglo-American System of Evidence 2183-84 (3d 
ed. 1940). For extensive discussion of criticism and support, with 
citation to the literature, see 1 Wayne R. LaFave, Search and Seizure--A 
Treatise on the Fourth Amendment Sec. 1.2 (2d ed. 1987).
        \201\E.g., Stone v. Powell, 428 U.S. 465, 496 (1976) (Chief 
Justice Burger: rule ought to be discarded now, rather than wait for a 
replacement as he argued earlier); id. at 536 (Justice White: modify 
rule to admit evidence seized illegally, but in good faith); Schneckloth 
v. Bustamonte, 412 U.S. 218, 261 (1973) (Justice Powell); Brown v. 
Illinois, 422 U.S. 590, 609 (1975) (Justice Powell); Robbins v. 
California, 453 U.S. 420, 437 (1981) (Justice Rehnquist); California v. 
Minjares, 443 U.S. 916 (1979) (Justice Rehnquist joined by Chief Justice 
Burger); Coolidge v. New Hampshire, 403 U.S. 443, 510 (1971) (Justice 
Blackmun joining Justice Black's dissent that ``the Fourth Amendment 
supports no exclusionary rule'').
        \202\E.g., United States v. Janis, 428 U.S. 433, 446 (1976) 
(deterrence is the ``prime purpose'' of the rule, ``if not the sole 
one.''); United States v. Calandra, 414 U.S. 338, 347-48 (1974); United 
States v. Peltier, 422 U.S. 531, 536-39 (1975); Stone v. Powell, 428 
U.S. 465, 486 (1976); Rakas v. Illinois, 439 U.S. 128, 134 n.3, 137-38 
(1978); Michigan v. DeFillippo, 443 U.S. 31, 38 n.3 (1979). Thus, 
admission of the fruits of an unlawful search or seizure ``work[s] no 
new Fourth Amendment wrong,'' the wrong being ``fully accomplished by 
the unlawful search or seizure itself,'' United States v. Calandara, 
supra, 354, and the exclusionary rule does not ``cure the invasion of 
the defendant's rights which he has already suffered.'' Stone v. Powell, 
supra, 540 (Justice White dissenting). ``Judicial integrity'' is not 
infringed by the mere admission of evidence seized wrongfully. ``[T]he 
courts must not commit or encourage violations of the Constitution,'' 
and the integrity issue is answered by whether exclusion would deter 
violations by others. United States v. Janis, supra, at 458 n.35; United 
States v. Calandra, supra, at 347, 354; United States v. Peltier, supra, 
at 538; Michigan v. Tucker, 417 U.S. 433, 450 n.25 (1974).
        \203\United States v. Janis, 428 U.S. 433, 448-54 (1976), 
contains a lengthy review of the literature on the deterrent effect of 
the rule and doubts about that effect. See also Stone v. Powell, 428 
U.S. 465, 492 n.32 (1976).
        \204\Stone v. Powell, 428 U.S. at 490, 491.
        \205\Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 
416 (1971) (Chief Justice Burger dissenting).
        \206\Silverthorne Lumber Co. v. United States 251 U.S. 385, 392 

        Although the exclusionary rule has not been completely 
repudiated, its utilization has been substantially curbed. Initial 
decisions chipped away at the rule's application. Defendants who 

[[Page 1266]]
were not subjected to illegal searches and seizures may not object to 
the introduction against themselves of evidence illegally obtained from 
co-conspirators or codefendants,\207\ and even a defendant whose rights 
have been infringed may find the evidence coming in, not as proof of 
guilt, but to impeach his testimony.\208\ Defendants who have been 
convicted after trials in which they were given a full and fair 
opportunity to raise claims of Fourth Amendment violations may not 
subsequently raise those claims on federal habeas corpus because of the 
costs overweighing the minimal deterrent effect.\209\ Evidence obtained 
through a wrongful search and seizure may sometimes be used in the 
criminal trial, if the prosecution can show a sufficient attenuation of 
the link between police misconduct and obtaining of the evidence.\210\ 
If an arrest or a search which was valid at the time it was effectuated 
becomes bad through the subsequent invalidation of the statute under 
which the arrest or search was made, evidence obtained thereby is 
nonetheless admissible.\211\ A grand jury witness was not permitted to

[[Page 1267]]
refuse to answer questions on the ground that they were based on 
evidence obtained from an unlawful search and seizure,\212\ and federal 
tax authorities were permitted to use in a civil proceeding evidence 
found to have been unconstitutionally seized from defendant by state 

        \207\E.g., Rakas v. Illinois, 439 U.S. 128 (1978); United States 
v. Salvucci, 448 U.S. 83 (1980); Rawlings v. Kentucky, 448 U.S. 98 
(1980). In United States v. Payner, 447 U.S. 727 (1980), the Court held 
it impermissible for a federal court to exercise its supervisory power 
to police the administration of justice in the federal system to 
suppress otherwise admissible evidence on the ground that federal agents 
had flagrantly violated the Fourth Amendment rights of third parties in 
order to obtain evidence to use against others when the agents knew that 
the defendant would be unable to challenge their conduct under the 
Fourth Amendment.
        \208\United States v. Havens, 446 U.S. 620 (1980); Walder v. 
United States, 347 U.S. 62 (1954). Cf. Agnello v. United States, 269 
U.S. 20 (1925) (now vitiated by Havens). The impeachment exception 
applies only to the defendant's own testimony, and may not be extended 
to use illegally obtained evidence to impeach the testimony of other 
defense witnesses. James v. Illinois, 493 U.S. 307 (1990).
        \209\Stone v. Powell, 428 U.S. 465 (1976).
        \210\Wong Sun v. United States, 371 U.S. 471, 487-88 (1963); 
Alderman v. United States, 394 U.S. 165, 180-85 (1969); Brown v. 
Illinois, 422 U.S. 590 (1975); Taylor v. Alabama, 457 U.S. 687 (1982). 
United States v. Ceccolini, 435 U.S. 268 (1978), refused to exclude the 
testimony of a witness discovered through an illegal search. Because a 
witness was freely willing to testify and therefore more likely to come 
forward, the application of the exclusionary rule was not to be tested 
by the standard applied to exclusion of inanimate objects. Deterrence 
would be little served and relevant and material evidence would be lost 
to the prosecution. In New York v. Harris, 495 U.S. 14 (1990), the Court 
refused to exclude a station-house confession made by a suspect whose 
arrest at his home had violated the Fourth Amendment because, even 
though probable cause had existed, no warrant had been obtained. And in 
Segura v. United States, 468 U.S. 796 (1984), evidence seized pursuant 
to warrant obtained after an illegal entry was admitted because there 
had been an independent basis for issuance of a warrant. This rule 
applies as well to evidence observed in plain view during the initial 
illegal search. Murray v. United States, 487 U.S. 533 (1988). See also 
United States v. Karo, 468 U.S. 705 (1984) (excluding consideration of 
tainted evidence, there was sufficient untainted evidence in affidavit 
to justify finding of probable cause and issuance of search warrant).
        \211\Michigan v. DeFillippo, 443 U.S. 31 (1979) (statute 
creating substantive criminal offense). Statutes that authorize 
unconstitutional searches and seizures but which have not yet been 
voided at the time of the search or seizure may not create this effect, 
however, Torres v. Puerto Rico, 442 U.S. 465 (1979); Ybarra v. Illinois, 
444 U.S. 85 (1979). This aspect of Torres and Ybarra was to a large 
degree nullified by Illinois v. Krull, 480 U.S. 340 (1987), rejecting a 
distinction between substantive and procedural statutes and holding the 
exclusionary rule inapplicable in the case of a police officer's 
objectively reasonable reliance on a statute later held to violate the 
Fourth Amendment.
        \212\United States v. Calandra, 414 U.S. 338 (1974).
        \213\United States v. Janis, 428 U.S. 433 (1976). Similarly, the 
rule is inapplicable in civil proceedings for deportation of aliens. INS 
v. Lopez-Mendoza, 468 U.S. 1032 (1984).

        The most severe curtailment of the rule came in 1984 with 
adoption of a ``good faith'' exception. In United States v. Leon,\214\ 
the Court created an exception for evidence obtained as a result of 
officers' objective, good-faith reliance on a warrant, later found to be 
defective, issued by a detached and neutral magistrate. Justice White's 
opinion for the Court\215\ could find little benefit in applying the 
exclusionary rule where there has been good-faith reliance on an invalid 
warrant. Thus, there was nothing to offset the ``substantial social 
costs exacted by the [rule].''\216\ ``The exclusionary rule is designed 
to deter police misconduct rather than to punish the errors of judges 
and magistrates,'' and in any event the Court considered it unlikely 
that the rule could have much deterrent effect on the actions of truly 
neutral magistrates.\217\ Moreover, the Court thought that the rule 
should not be applied ``to deter objectively reasonable law enforcement 
activity,'' and that ``[p]enalizing the officer for the magistrate's 
error . . . cannot logically contribute to the deterrence of Fourth 
Amendment violations.''\218\ The Court also suggested some circumstances 
in which courts would be unable to find that officers' reliance on a 
warrant was objectively reasonable: if the officers have been 
``dishonest or reckless in preparing their affidavit,'' if it should 
have been obvious that the magistrate had ``wholly abandoned'' his 
neutral role, or if the warrant was obviously deficient on its face 
(e.g., lacking in particularity). The Court

[[Page 1268]]
applied the Leon standard in Massachusetts v. Sheppard,\219\ holding 
that an officer possessed an objectively reasonable belief that he had a 
valid warrant after he had pointed out to the magistrate that he had not 
used the standard form, and the magistrate had indicated that the 
necessary changes had been incorporated in the issued warrant.

        \214\468 U.S. 897 (1984). The same objectively reasonable 
``good-faith'' rule now applies in determining whether officers 
obtaining warrants are entitled to qualified immunity from suit. Malley 
v. Briggs, 475 U.S. 335 (1986).
        \215\The opinion was joined by Chief Justice Burger, and by 
Justices Blackmun, Powell, Rehnquist, and O'Connor. Justice Blackmun 
also added a separate concurring opinion. Dissents were filed by Justice 
Brennan, joined by Justice Marshall, and by Justice Stevens.
        \216\468 U.S. at 907.
        \217\468 U.S. at 916-17.
        \218\468 U.S. at 919, 921.
        \219\468 U.S. 981 (1984).

        The Court then extended Leon to hold that the exclusionary rule 
is inapplicable to evidence obtained by an officer acting in objectively 
reasonable reliance on a statute later held violative of the Fourth 
Amendment.\220\ Justice Blackmun's opinion for the Court reasoned that 
application of the exclusionary rule in such circumstances would have no 
more deterrent effect on officers than it would when officers reasonably 
rely on an invalid warrant, and no more deterrent effect on legislators 
who enact invalid statutes than on magistrates who issue invalid 

        \220\Illinois v. Krull, 480 U.S. 340 (1987). The same difficult-
to-establish qualifications apply: there can be no objectively 
reasonable reliance ``if, in passing the statute, the legislature wholly 
abandoned its responsibility to enact constitutional laws,'' or if ``a 
reasonable officer should have known that the statute was 
unconstitutional.'' 480 U.S. at 355.
        \221\Dissenting Justice O'Connor disagreed with this second 
conclusion, suggesting that the grace period ``during which the police 
may freely perform unreasonable searches . . . creates a positive 
incentive [for legislatures] to promulgate unconstitutional laws,'' and 
that the Court's ruling ``destroys all incentive on the part of 
individual criminal defendants to litigate the violation of their Fourth 
Amendment rights'' and thereby obtain a ruling on the validity of the 
statute. 480 U.S. at 366, 369.

        It is unclear from the Court's analysis in Leon and its progeny 
whether a majority of the Justices would also support a good-faith 
exception for evidence seized without a warrant, although there is some 
language broad enough to apply to warrantless seizures.\222\ It is also 
unclear what a good-faith exception would mean in the context of a 
warrantless search, since the objective reasonableness of an officer's 
action in proceeding without a warrant is already taken into account in 
determining whether there has been a Fourth Amendment violation.\223\ 
The Court's increasing willingness to uphold warrantless searches as not 
``unreasonable'' under the Fourth

[[Page 1269]]
Amendment, however, may reduce the frequency with which the good-faith 
issue arises in the context of the exclusionary rule.\224\

        \222\The whole thrust of analysis in Leon dealt with 
reasonableness of reliance on a warrant. The Court several times, 
however, used language broad enough to apply to warrantless searches as 
well. See, e.g., 468 U.S. at 909 (quoting Justice White's concurrence in 
Illinois v. Gates): ``the balancing approach that has evolved . . . 
`forcefully suggest[s] that the exclusionary rule be more generally 
modified to permit the introduction of evidence obtained in the 
reasonable good-faith belief that a search or seizure was in accord with 
the Fourth Amendment'''; and id. at at 919: ``[the rule] cannot be 
expected, and should not be applied, to deter objectively reasonable law 
enforcement activity.''
        \223\See Yale Kamisar, Gates, ``Probable Cause,'' ``Good 
Faith,'' and Beyond, 69 Iowa L. Rev. 551, 589 (1984) (imposition of a 
good-faith exception on top of the ``already diluted'' standard for 
validity of a warrant ``would amount to double dilution'').
        \224\See, e.g., Illinois v. Rodriguez, 497 U.S. 177 (1990) 
(upholding search premised on officer's reasonable but mistaken belief 
that a third party had common authority over premises and could consent 
to search); Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (no 
requirement of knowing and intelligent waiver in consenting to 
warrantless search); New York v. Belton, 453 U.S. 454 (1981) (upholding 
warrantless search of entire interior of passenger car, including closed 
containers, as incident to arrest of driver); United States v. Ross, 456 
U.S. 798 (1982) (upholding warrrantless search of movable container 
found in a locked car trunk).

        Operation of the Rule: Standing.--The Court for a long period 
followed a rule of ``standing'' by which it determined whether a party 
was the appropriate person to move to suppress allegedly illegal 
evidence. Akin to Article III justiciability principles, which emphasize 
that one may ordinarily contest only those government actions that harm 
him, the standing principle in Fourth Amendment cases ``require[d] of 
one who seeks to challenge the legality of a search as the basis for 
suppressing relevant evidence that he allege, and if the allegation be 
disputed that he establish, that he himself was the victim of an 
invasion of privacy.''\225\ The Court recently has departed from the 
concept of ``standing'' to telescope the inquiry into one inquiry rather 
than two. Finding that ``standing'' served no useful analytical purpose, 
the Court has held that the issue of exclusion is to be determined 
solely upon a resolution of the substantive question whether the 
claimant's Fourth Amendment rights have been violated. ``We can think of 
no decided cases of this Court that would have come out differently had 
we concluded . . . that the type of standing requirement . . . 
reaffirmed today is more properly subsumed under substantive Fourth 
Amendment doctrine. Rigorous application of the principle that the 
rights secured by this Amendment are personal, in place of a notion of 
`standing,' will produce no additional situations in which evidence must 
be excluded. The inquiry under either approach is the same.''\226\ One 
must therefore show that ``the disputed search and seizure has infringed 
an interest of the defendant which the Fourth Amendment was designed to 

        \225\Jones v. United States, 362 U.S. 257, 261 (1960). That is, 
the movant must show that he was ``a victim of search or seizure, one 
against whom the search was directed, as distinguished from one who 
claims prejudice only through the use of evidence gathered as a 
consequence of search or seizure directed at someone else.'' Id. See 
Alderman v. United States, 394 U.S. 165, 174 (1969).
        \226\Rakas v. Illinois, 439 U.S. 128, 139 (1978).
        \227\Id. at 140.

        The Katz reasonable expectation of privacy rationale has now 
displaced property-ownership concepts which previously might have 
supported either standing to suppress or the establishment of an 
interest that has been invaded. Thus, it is no longer sufficient

[[Page 1270]]
to allege possession or ownership of seized goods to establish the 
interest, if a justifiable expectation of privacy of the defendant was 
not violated in the seizure.\228\ Also, it is no longer sufficient that 
one merely be lawfully on the premises in order to be able to object to 
an illegal search; rather, one must show some legitimate interest in the 
premises that the search invaded.\229\ The same illegal search might, 
therefore, invade the rights of one person and not of another.\230\ 
Again, the effect of the application of the privacy rationale has been 
to narrow considerably the number of people who can complain of an 
unconstitutional search.

        \228\Previously, when ownership or possession was the issue, 
such as a charge of possessing contraband, the Court accorded 
``automatic standing'' to one on the basis, first, that to require him 
to assert ownership or possession at the suppression hearing would be to 
cause him to incriminate himself with testimony that could later be used 
against him, and, second, that the government could not simultaneously 
assert that defendant was in possession of the items and deny that it 
had invaded his interests. Jones v. United States, 362 U.S. 257, 261-265 
(1960). See also United States v. Jeffers, 342 U.S. 48 (1951). But in 
Simmons v. United States, 390 U.S. 377 (1968), the Court held 
inadmissible at the subsequent trial admissions made in suppression 
hearings. When it then held that possession alone was insufficient to 
give a defendant the interest to move to suppress, because he must show 
that the search itself invaded his interest, the second consideration 
was mooted as well, and thus the ``automatic standing'' rule was 
overturned. United States v. Salvucci, 448 U.S. 83 (1980) (stolen checks 
found in illegal search of apartment of the mother in defendant, in 
which he had no interest; defendant could not move to suppress on the 
basis of the illegal search); Rawlings v. Kentucky, 448 U.S. 98 (1980) 
(drugs belonging to defendant discovered in illegal search of friend's 
purse, in which he had no privacy interest; admission of ownership 
insufficient to enable him to move to suppress).
        \229\Rakas v. Illinois, 439 U.S. 128 (1978) (passengers in 
automobile had no privacy interest in interior of the car; could not 
object to illegal search). Jones v. United States, 362 U.S. 257 (1960), 
had established rule that anyone legitimately on the premises could 
object; the rationale was discarded but the result in Jones was 
maintained because he was there with permission, he had his own key, his 
luggage was there, he had the right to exclude and therefore a 
legitimate expectation of privacy. Similarly maintained were the results 
in United States v. Jeffers, 342 U.S. 48 (1951) (hotel room rented by 
defendant's aunts to which he had a key and permission to store things); 
Mancusi v. DeForte, 392 U.S. 364 (1968) (defendant shared office with 
several others; though he had no reasonable expectation of absolute 
privacy, he could reasonably expect to be intruded on only by other 
occupants and not by police).
        \230\E.g., Rawlings v. Kentucky, 448 U.S. 98 (1980) (fearing 
imminent police search, defendant deposited drugs in companion's purse 
where they were discovered in course of illegal search; defendant had no 
legitimate expectation of privacy in her purse, so that his Fourth 
Amendment rights were not violated, although hers were).