Fourth Amendment — Scope of Protected Rights

Amdt4.3.1 Overview of Unreasonable Searches and Seizures

The Fourth Amendment prohibits unreasonable searches and seizures. For a judge to issue a search warrant, there must be probable cause and a particularized description of what is to be searched or seized. In Harris v. United States,¹ the Supreme Court approved as “reasonable” the warrantless search of a four-room apartment pursuant to the arrest of the man found there. A year later, the Court’s majority set aside a conviction based on evidence seized during 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.”²

This rule was set aside two years later, when the Court held that the test “is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.”³ Whether a search is reasonable, the Court said, “must find resolution in the facts and circumstances of each case.”⁴ The Court, however, returned to its emphasis upon a warrant in Chimel v. California.⁵ In Chimel, the Court held that “[t]he [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.”⁶ Therefore, the Court explained, “the police must, whenever practicable, obtain advance judicial approval of searches and seizures through a warrant procedure.”⁷ Search warrant exceptions would depend on the rationale for the exception, and the scope of such a search would be similarly limited.⁸

During the 1970s, the Court was closely divided on which standard to apply.⁹ For a while, the Court adopted the view that warrantless searches were per se unreasonable, with a few carefully prescribed exceptions.¹⁰ Gradually, however, guided by the variable-expectation-of-privacy approach to the Fourth Amendment’s coverage, the Court broadened its view of permissible exceptions and the scope of those exceptions.¹¹ In 1991, the Court held that “[t]he touchstone of the Fourth Amendment is reasonableness,” and that the Amendment “merely proscribes [state-initiated searches and seizures] which are unreasonable.”¹² By 1992, the “reasonableness” approach prevailed over the “warrants-with-narrow-exceptions” standard.¹³ The Court held that “reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances,” and the Court had “consistently eschewed bright-lines rules.”¹⁴ Since the 1990s, the Court has recognized more exceptions to the warrant requirement, tending to confine the warrant requirement to cases that are exclusively “criminal” in nature. Furthermore, even within that core area of “criminal” cases, the Court broadened some exceptions. Nevertheless, throughout the years, the Court has grappled with what constitutes a search¹⁵ or a seizure,¹⁶ what does it mean to establish probable cause,¹⁷ when are warrants necessary,¹⁸ and what are the various exceptions to the warrant requirement.

Administrative searches justified by “special needs beyond the normal need for law enforcement” are the most important exception to the warrant requirement.¹⁹ Under this general rubric the Court has upheld warrantless searches by administrative authorities in public schools,²⁰ government offices,²¹ and prisons,²² and drug testing of public and transportation employees.²³ 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. The breadth of the administrative search exception is shown by the fact overlapping law enforcement objectives and administrative “special needs” do not require a warrant; instead, the Court has upheld warrantless inspection of automobile junkyards and dismantling operations in spite of the strong law enforcement component of the regulation.²⁴

Although search warrants are generally required in law enforcement contexts, the Court has relaxed this requirement. For example, the Court expanded the scope of valid “incident to arrest” searches from areas within the immediate reach of the arrested suspect 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.²⁵ The Court has also recognized that exigent circumstances may justify officers performing a blood test on a motorist without a warrant to determine his or her blood alcohol concentration (BAC).²⁶ In another case, the Court shifted its focus from whether exigent circumstances justified an officer’s failure to obtain a warrant, to whether an officer had a “reasonable” belief that the circumstances constituted an exception to the warrant requirement.²⁷ The Court has also held exigent circumstances merited an exception even if police conduct had caused the exigency, so long as the police conduct was “reasonable” in that it neither threatened to violate nor violated the Fourth Amendment.²⁸

The Court has addressed the Fourth Amendment’s scope with respect to whom the Fourth Amendment protects; that is, who constitutes “the people,” reasoning that it “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.”²⁹ The Fourth Amendment therefore does not apply to the search and seizure by United States agents of property that is owned by a nonresident alien and located in a foreign country.³⁰ 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.³¹ There is no resulting broad principle, however, that the Fourth Amendment constrains federal officials wherever and against whomever they act.

Amdt4.3.2 Early Doctrine on Fourth Amendment

For the Fourth Amendment to apply, there must be a “search” and “seizure” with a subsequent attempt to use what was seized judicially.¹ Whether a search and seizure within the meaning of the Fourth Amendment has occurred, and whether a complainant’s interests were constitutionally infringed, often turns upon the complainant’s interest and whether the government officially abused it. In Entick v. Carrington, Lord Camden summarized British law on searches and seizures, writing:

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 . . . .²

The Court’s view of the Fourth Amendment as protecting property interests³ has informed its approach in numerous cases.⁴ For example, in Olmstead v. United States,⁵ the Court noted that the Fourth Amendment did not cover wiretapping because the defendant’s premises had not been physically invaded; the Court determined, however, that where there was an invasion—a technical trespass—the Fourth Amendment applied to electronic surveillance.⁶

With the invention of the microphone, telephone, and dictagraph recorder, government officers could “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 based on evidence gained by taps on telephone wires in violation of state law. On a 5-4 vote, the Court held that the Fourth Amendment did not cover wiretapping.⁷ Writing for the Court, Chief Justice William Taft relied on two lines of argument for the conclusion. First, because the Fourth Amendment was designed to protect one’s property interest in one’s premises, there was no search so long as there was no physical trespass on premises owned or controlled by the defendant.⁸ Second, the government had obtained all the evidence by listening, but intercepting a conversation could not qualify as a seizure because the Fourth Amendment referred only to seizing tangible items.⁹ Finally, violating state law did not render the evidence excludable, since the exclusionary rule operated only on evidence seized in violation of the Constitution.¹⁰

Six years after Olmstead, Congress enacted the Federal Communications Act (FCA). FCA Section 605 included a broadly worded proscription which the Court viewed as limiting governmental wiretapping.¹¹ Thus, in Nardone v. United States,¹² the Court held that wiretapping by federal officers could violate Section 605 if the officers both intercepted and divulged the contents of 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 Section 605 applied to intrastate as well as interstate transmissions,¹³ the ban appeared intended to govern state police officers, but the Court declined to apply either the statute or the due process clause to exclude such evidence from state criminal trials.¹⁴ The Court held that state efforts to legalize wiretapping pursuant to court orders to be precluded because Congress had intended to occupy the field completely through Section 605.¹⁵

The Court used Olmstead’s trespass rationale in cases concerning “bugging” premises rather than tapping telephones. Thus, in Goldman v. United States,¹⁶ the Court found no Fourth Amendment violation when a listening device was placed against a party wall in order to overhear conversations 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 Fourth Amendment.¹⁷ In so holding, the Court overruled, in effect, Olmstead’s second rationale that conversations could not be seized.

Amdt4.3.3 Katz and Reasonable Expectation of Privacy Test

Following Olmstead v. United States and Goldman v. United States, the Court determined in May 1967 that “[t]he premise that property interests control the right of the government to search and seize has been discredited” and that “the principal object of the Fourth Amendment is the protection of privacy rather than property.”¹ Overruling Olmstead and Goldman in December 1967, the Court dispensed with the requirement of actual physical trespass because the Fourth Amendment “protects people, not places” to make electronic surveillance subject to the Amendment’s requirements.²

The test, the Court propounded in Katz v. United States, examined the expectation of privacy upon which one may “justifiably” rely.³ The Court stated: “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.”⁴ 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.”⁵

In Kyllo v. United States,⁶ the Court revitalized Katz’s focus on privacy when it invalidated the warrantless use of a thermal imaging device directed at a private home from a public street. To limit police use of new technology that can “shrink the realm of guaranteed privacy,” the Court stated that “obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical ‘intrusion into a constitutionally protected area’ . . . constitutes a search—at least where (as here) the technology in question is not in general public use.”⁷ Relying on Katz, the Court rejected as “mechanical” the Government’s attempted distinction between off-the-wall and through-the-wall surveillance. Permitting all off-the-wall observations, the Court observed, “would leave the homeowner at the mercy of advancing technology—including technology that could discern all human activity in the home.” To some extent, the Court grounded its concern about privacy expectations in “Founding-era understandings,”⁸ explaining that the Fourth Amendment “seeks to secure ‘the privacies of life’ against ‘arbitrary power,’”⁹ and that “a central aim of the Framers was ‘to place obstacles in the way of a too permeating police surveillance.’”¹⁰

Although the Court strongly reaffirmed the sanctity of the home, protection of privacy in other contexts became more problematic. A two-part test that Justice John Harlan suggested in Katz often provided a starting point for analysis.¹¹ The first element, the “subjective expectation” of privacy, has largely dwindled as a viable standard, because, as Justice John 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.”¹² 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.”¹³

Thus, protecting the home is at the apex of Fourth Amendment coverage because of the right associated with ownership to exclude others;¹⁴ but ownership of other things, that is, automobiles, does not carry a similar high degree of protection.¹⁵ The Court usually considers whether a person has taken normal precautions to maintain his privacy—that is, precautions customarily taken by those seeking to exclude others—to be significant when determining legitimacy of expectation.¹⁶ On the other hand, the Court has held that “a person has no legitimate expectation of privacy in information he voluntarily provides to third parties.”¹⁷ Some expectations, the Court has held, are simply not among those that society is prepared to accept.¹⁸ In the context of rapidly evolving communications devices, the Court was reluctant to consider “the whole concept of privacy expectations,” preferring other decisional grounds. The Court stated: “The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.”¹⁹

The Court’s balancing standard required “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.” Whereas Justice John Harlan saw a greater need to restrain police officers from intruding on individual privacy through the warrant requirement,²⁰ the Court’s solicitude for law enforcement may have provided a counterbalance.

Weighing law enforcement investigative needs²¹ and privacy interests led the Court to apply a two-tier or sliding-tier scale of privacy interests. The Court originally designed the privacy test to determine whether the Fourth Amendment protected an interest.²² If so, then ordinarily a warrant was required, subject only to narrowly defined exceptions, and the scope of the search was “strictly tied to and justified by the circumstances which rendered its initiation permissible.”²³ The Court used the test to determine whether the interest invaded is important or persuasive enough to require a warrant;²⁴ if the individual has a lesser expectation of privacy, then the invasion may be justified, absent a warrant, by the reasonableness of the intrusion.²⁵ Exceptions to the warrant requirement are no longer evaluated solely by the justifications for the exception, for example, exigent circumstances, and the scope of the search is no longer tied to and limited by the justification for the exception.²⁶ The result has been a considerable expansion, beyond what existed prior to Katz, of the power of police and other authorities to conduct searches.

In Berger v. New York,²⁷ the Court confirmed the obsolescence of the alternative holding in Olmstead that conversations could not be seized in the Fourth Amendment sense.²⁸ 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.”²⁹ For the five-Justice majority, Justice Tom Clark invalidated the statute, explaining that wiretapping is a search and seizure within the meaning of the Fourth Amendment and, as such, there must be a showing of probable cause and the warrant must particularly describe the place to be searched and the persons or things to be seized, disallowing “general warrants.”³⁰

Amdt4.3.4 Current Doctrine on Searches and Seizures

In United States v. Jones,¹ the Court seemed to revitalize the significance of governmental trespass in determining whether a Fourth Amendment search has occurred. In Jones, the Court considered whether the attachment of a Global Positioning System (GPS) device to a car used by a suspected narcotics dealer and the monitoring of such device for twenty-eight days, constituted a search. Although the Court ruled unanimously that this month-long monitoring violated Jones’s rights, it splintered on the reasoning. A majority of the Court relied on the theory of common law trespass to find that attaching the device to the car represented a physical intrusion into Jones’s constitutionally protected “effect” or private property.² While this holding obviated the need to assess the month-long tracking under Katz’s reasonable expectation of privacy test, five Justices, who concurred either with the majority opinion or concurred with the judgment, would have held that long-term GPS tracking can implicate an individual’s expectation of privacy.³ Some have read these concurrences as partly premised on the idea that while government access to a small data set—for example, one trip in a vehicle—might not violate one’s expectation of privacy, aggregating a month’s worth of personal data allows the government to create a “mosaic” about an individual’s personal life that violates that individual’s reasonable expectation of privacy.⁴

The Court confirmed in Carpenter v. United States that the Fourth Amendment is implicated when government action violates individuals’ “reasonable expectation of privacy in the whole of their physical movements,” regardless of whether the challenged conduct constitutes a physical trespass.⁵ The Court held that the

government could not, without a warrant, access seven days of a defendant’s cell-site

location information, which is data that continuously tracks the location of a cell

phone.⁶ Observing that “historical cell-site records present even greater privacy

concerns than the GPS monitoring of a vehicle we considered in Jones,” the Court

highlighted the continuing importance of the expectations-of-privacy test.⁷ The Court

acknowledged that it had previously declined to extend Fourth Amendment protection

to information that a person had voluntarily given to a third party like a wireless

carrier, but declined to extend that line of cases to “the qualitatively different category

of cell-site records.”⁸

Amdt4.3.5 Open Fields Doctrine

In Hester v. United States,¹ 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 States² 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.³ Invoking Hester’s reliance on the literal wording of the Fourth Amendment (open fields are not “effects”) and distinguishing Katz, the Court in Oliver ruled that the open fields exception applies to fields that are fenced and posted. The Court held that “an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home.”⁴ The Court further explained that an individual may not demand privacy for activities conducted within outbuildings and visible by trespassers peering into the buildings from just outside.⁵ Even within the curtilage and notwithstanding that the owner has gone to the extreme of erecting a ten 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.⁶ Similarly, naked-eye inspection from helicopters flying even lower contravenes no reasonable expectation of privacy.⁷ Furthermore, aerial photography of commercial facilities secured from ground-level public view is permissible, the Court finding such spaces more analogous to open fields than to the curtilage of a dwelling.⁸

Amdt4.3.6.1 Inspections

Certain early cases held that the Fourth Amendment applied only when a search was undertaken for criminal investigatory purposes,¹ and the Supreme Court initially employed a reasonableness test for such searches without requiring either a warrant or probable cause in the absence of a warrant.² But, in 1967, the Court held in Camara v. Municipal Court and See v. City of Seattle that administrative inspections to detect building code violations require warrants if the occupant objects.³ The Supreme Court stated, “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.”⁴ In 1970 and 1972, however, the Supreme Court ruled certain administrative inspections used to enforce regulatory schemes with regard to alcohol and firearms, respectively, to be exempt from the Fourth Amendment warrant requirement and able to be authorized by statute.⁵

Reaffirming Camara and See in its 1978 Marshall v. Barlow’s, Inc. decision,⁶ the Court held that an Occupational Safety and Health Act (OSHA) provision that authorized federal inspectors to search work areas of employment facilities covered by OSHA for safety hazards and regulatory violations, without a warrant or other legal process violated the Fourth Amendment. The Court distinguished the liquor and firearms exceptions based on a long tradition of close government supervision in those industries, so that a person in those businesses gave up his privacy expectations. Noting that Congress had recently enacted OSHA, which regulated practically every business in or affecting interstate commerce, the Court reasoned that a legislature cannot extend regulation and then follow it with warrantless inspections. The Court further noted that 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 without assurances as to limitations on scope and standards of inspections. Further, warrantless inspections did not serve an important governmental interest, as the Court expected most businesses to consent to inspections and that OSHA could resort to an administrative warrant in order to inspect sites where a business refused consent.⁷

In Donovan v. Dewey,⁸ the Court clarified Barlow’s reach, articulating a new standard that appeared to permit some governmental inspection of commercial property without a warrant. Under the Federal Mine Safety and Health Act (FMSHA), governing underground and surface mines (including stone quarries), federal officers must inspect underground mines at least four times a year and surface mines at least twice a year, pursuant to extensive safety regulations. FMSHA specifically allowed inspections to be absent advanced notice and required the Secretary of Labor to institute court actions for injunctive and other relief if inspectors were denied admission. Sustaining FMSHA, the Court proclaimed that government had “greater latitude” to conduct warrantless inspections of commercial property than of homes, because “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.”⁹

The Court distinguished Dewey from Barlow’s in several ways. First, Dewey involved a single industry, unlike Barlow’s broad coverage. Second, OSHA 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, the Court deferred to Congress’s determination that unannounced inspections were necessary to enforce safety laws effectively. Fourth, FMSHA provided businesses an opportunity to contest the search in the civil proceeding the Secretary had to bring if the business denied consent.¹⁰ The Court explained that if only lengthy government supervision made warrantless inspections permissible, “absurd results would occur,” because “new and emerging industries . . . that pose enormous potential safety and health problems” would escape warrantless inspections.¹¹

Applying the Dewey three-part test in New York v. Burger¹² to automobile junkyard and vehicle dismantling operation inspections, for which administrative and penal objectives overlapped, the Court concluded that New York has a substantial interest in stemming automobile thefts, that regulating vehicle dismantling operations reasonably serves that interest, and that statutory safeguards provide adequate substitutes for a warrant requirement. The Court rejected the suggestion that the warrantless inspection provisions were designed as an expedient means to enforcing penal laws and instead saw them serving narrower, valid regulatory purposes, such as establishing a system for tracking stolen automobiles and parts, and enhancing legitimate businesses’ ability 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 even though they may uncover evidence of criminal activity.¹³

In its 2015 City of Los Angeles v. Patel decision, the Court declined to extend the “more relaxed standard” applying to searches of closely regulated businesses to hotels when it invalidated a Los Angeles ordinance that gave police the ability to inspect hotel registration records without advance notice and carried a 6-month term of imprisonment and a $1,000 fine for hotel operators who failed to make such records available.¹⁴ The Patel Court, characterizing inspections pursuant to this ordinance as “administrative searches,”¹⁵ held “that a hotel owner must be afforded an opportunity to have a neutral decision maker review an officer’s demand to search the registry before he or she faces penalties for failing to comply” for such a search to be permissible under the Fourth Amendment.¹⁶ In so doing, the Court expressly declined to treat the hotel industry as a “closely regulated” industry subject to the more relaxed standard applied in Dewey and Burger on the grounds that doing so would “permit what has always been a narrow exception to swallow the rule.”¹⁷ The Court emphasized that, over the prior forty-five years, it had recognized only four industries as having “such a history of government oversight that no reasonable expectation of privacy . . . could exist for a proprietor over the stock of such an enterprise.”¹⁸ These four industries involve liquor sales, firearms dealing, mining, and running an automobile junkyard, and the Court distinguished hotel operations from these industries, in part, because “nothing inherent in the operation of hotels poses a clear and significant risk to the public welfare.”¹⁹ However, the Court also suggested that, even if hotels were to be seen as pervasively regulated, the Los Angeles ordinance would still be deemed unreasonable because (1) there was no substantial government interest informing the regulatory scheme; (2) warrantless inspections were not necessary to further the government’s purpose; and (3) the inspection program did not provide, in terms of the certainty and regularity of its application, a constitutionally adequate substitute for a warrant.²⁰

In contexts not directly concerned with whether an industry is comprehensively regulated, the Court has elaborated the constitutional requirements affecting administrative inspections and searches. In Michigan v. Tyler,²¹ for example, the Court 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; fire fighters 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.²² In other cases, the Court approved a system of “home visits” by welfare caseworkers, where recipients must admit the worker or lose eligibility for benefits²³ and held that a sheriff ’s assistance to a trailer park owner in disconnecting and removing a mobile home constituted a “seizure” of the home.²⁴

The Court has recognized 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.”²⁵ In Skinner, the Court applied the Dewey/Burger warrantless search rationale to urinalysis drug testing, reasoning that, because of the history of pervasive regulation of the railroad industry, railroad employees have a diminished expectation of privacy, which makes mandatory urinalysis less intrusive and more reasonable.²⁶

With respect to automobiles, the Court has distinguished random automobile stops from activities to inventory and secure valuables and firearms. The Court held random stops of automobiles to check drivers’ licenses, vehicle registrations, and safety conditions to be 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.²⁷ In contrast, in South Dakota v. Opperman,²⁸ the Court sustained the admission of evidence that police found when they impounded an automobile from a public street for multiple parking violations and entered the car to secure and inventory valuables for safekeeping, discovering marijuana in the glove compartment. Further, in Cady v. Dumbrowski,²⁹ the Court upheld the constitutionality of a warrantless search of an out-of-state policeman’s automobile following an accident in order to find and safeguard his service revolver, which yielded criminal evidence.³⁰ The Court in Cady recognized that local police often engage in “community caretaking functions” that are “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute,”³¹ and in the context of “the extensive regulation of motor vehicles and traffic,” such a warrantless “caretaking ‘search’” of a vehicle that had been towed and stored at a garage was reasonable under the Fourth Amendment when undertaken to secure a firearm that could pose a risk to public safety.³²

In Caniglia v. Strom,³³ the Court declined to extend Cady beyond the automobile context. In Caniglia, police responded to a request for a welfare check of a potentially suicidal man at his home and, following removal of the man from his porch for a psychiatric evaluation at a hospital, conducted a warrantless search of the man’s home to seize firearms he might have used to harm himself or others.³⁴ The lower court concluded that the decision to remove the man and his firearms was permissible under the Fourth Amendment pursuant to “a freestanding community-caretaking” doctrine drawn from Cady “that justifies warrantless searches and seizures in the home.”³⁵ The Supreme Court disagreed.³⁶ The Court in Caniglia stated that Cady made an “unmistakable distinction between vehicles and homes,” noting that the location of the Cady search in an impounded vehicle rather than a home was “‘a constitutional difference’ that the [Cady] opinion repeatedly stressed.”³⁷ As such, the Court in Caniglia reiterated that “[w]hat is reasonable for vehicles is different from what is reasonable for homes,” clarifying that Cady did not suggest a broader “community caretaking” doctrine independently justifying warrantless searches in the home.³⁸

Amdt4.3.6.2 Property Subject to Seizure

While search warrants have long been issued to seize contraband and the fruits and instrumentalities of crime,¹ in 1921, a unanimous Court in Gouled v. United States,² limited property subject to seizures to contraband and the fruits and instrumentalities of crime and refused to permit a seizure of “mere evidence,” consisting of the defendant’s papers for use 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,”³ but their character as evidence rendered them immune. The Court explained that 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 apprehending and convicting criminals.”⁴

In 1967, the Court overturned the “mere evidence” rule in Warden v. Hayden.⁵ It is now settled that such evidentiary items as fingerprints,⁶ blood,⁷ urine samples,⁸ fingernail and skin scrapings,⁹ voice and handwriting exemplars,¹⁰ conversations,¹¹ and other demonstrative evidence may be obtained through the warrant process or without a warrant where “special needs” of government are shown.¹² However, the Court has held some medically assisted bodily intrusions impermissible, for example, forcible administration of an emetic to induce vomiting¹³ and surgery under general anesthetic to remove a bullet lodged in a suspect’s chest.¹⁴ In determining which medical tests and procedures are reasonable, the Court has considered 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.¹⁵

Amdt4.3.6.3 Property Seizures and Self-Incrimination Protections

The Supreme Court has distinguished the Fourth Amendment protection from unreasonable searches from the Fifth Amendment protection from self-incrimination. While the Court initially appeared to find some overlap between these two protections in its 1886 decision, Boyd v. United States,¹ the Court’s modern jurisprudence views the two Amendments as addressing different concerns.

In its first lengthy consideration of the Fourth Amendment, the Court addressed the protections the Fourth and Fifth Amendments afforded. In Boyd, the Government had alleged that goods had been imported illegally and were thereby subject to forfeiture pursuant to a quasi-criminal proceeding. In assessing the legality of a statute that authorized courts to require defendants to produce any document that might “tend to prove any allegation made by the United States,”² the Court unanimously agreed that there was a Fifth Amendment self-incrimination problem. Justice Joseph Bradley for a majority of the Court, however, also relied on the Fourth Amendment. Although the statute did not authorize a search but instead compelled production of documents, Justice Joseph Bradley concluded that the law was within Search and Seizure Clause restrictions.³ With this point established, Justice Joseph Bradley relied on Lord Camden’s opinion in Entick v. Carrington⁴ for the proposition that seizure of items to be used only as evidence was impermissible. Justice Joseph 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 other.⁵

Although it may be doubtful that equating search warrants with subpoenas and other compulsory process ever really amounted to much of a limitation,⁶ the Court currently dispenses with any theory of “convergence” of the two amendments.⁷ In Warden v. Hayden,⁸ Justice William Brennan for the Court cautioned that the items 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.”

Following Warden, police executed a warrant to search the defendant’s offices for specified documents pertaining to a fraudulent land sale in Andresen v. Maryland.⁹ The Andresen Court sustained the lower court’s admission of the papers discovered as evidence at the defendant’s trial. The Court held that the Fifth Amendment did not apply because the defendant had not been forced to produce or authenticate the documents.¹⁰ As for the Fourth Amendment, because the “business records” seized were evidence of criminal acts, the Court held that they could be seized under Warden v. Hayden; the fact that they were “testimonial” in nature (records in the defendant’s handwriting) was irrelevant.¹¹ Acknowledging that “there are grave dangers inherent in executing a warrant authorizing a search and seizure of a person’s papers,” the Court observed that, although some “innocuous documents” would have to be examined to ascertain which papers were to be seized, authorities, just as with electronic “seizures” of telephone conversations, “must take care to assure that [searches] are conducted in a manner that minimizes unwarranted intrusions upon privacy.”¹² As Andresen concerned business records, it is unclear whether its discussion equally applies to “personal” papers, such as diaries and letters, for which the privacy interest is greater.¹³

Amdt4.3.7 Unreasonable Seizures of Persons

That the Fourth Amendment was intended to protect against arbitrary arrests as well as against unreasonable searches was early assumed by Chief Justice John Marshall¹ and is now established law.² At common law, warrantless arrests of persons who had committed a breach of the peace or a felony were permitted,³ 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.⁴ To determine whether an officer has probable cause to make a warrantless arrest, courts consider the “totality of the circumstances,” examining “the events leading up to the arrest” and deciding “whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to” probable cause.⁵ Probable cause is not a “high bar,”⁶ requiring only a “probability or substantial chance of criminal activity, not an actual showing of such activity.”⁷ However, in order to effectuate an arrest in the home, absent consent or exigent circumstances, police officers must have a warrant.⁸

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 are not required.⁹ Some objective justification must be shown to validate all seizures of the person,¹⁰ 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 necessary.¹¹

The Fourth Amendment does not require an officer to consider whether to issue a citation rather than arresting (and placing in custody) a person who has committed a minor offense—even a minor traffic offense. In Atwater v. City of Lago Vista,¹² the Court, even while acknowledging that the case before it involved “gratuitous humiliations imposed by a police officer who was (at best) exercising extremely poor judgment,” refused to require that “case-by-case determinations of government need” to place traffic offenders in custody be subjected to a reasonableness inquiry, “lest every discretionary judgment in the field be converted into an occasion for constitutional review.”¹³ Citing some state statutes that limit warrantless arrests for minor offenses, the Court contended that the matter is better left to statutory rule than to application of broad constitutional principle.¹⁴ Thus, Atwater and County of Riverside v. McLaughlin¹⁵ together mean that—as far as the Constitution is concerned—police officers have almost unbridled discretion to decide whether to issue a summons for a minor traffic offense or whether instead to place the offending motorist in jail, where she may be kept for up to 48 hours with little recourse. Even when an arrest for a minor offense is prohibited by state law, the arrest will not violate the Fourth Amendment if it was based on probable cause.¹⁶

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.¹⁷ 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.¹⁸ 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.¹⁹ Similarly, fingerprints and other physical evidence obtained as a result of an unlawful arrest must be suppressed.²⁰

The Court has also recognized that the Fourth Amendment prohibits “unreasonable seizure[s] pursuant to legal process,” sometimes referred to as “malicious prosecution.”²¹ Malicious prosecution is actionable as a Fourth Amendment violation “to the extent that the defendant’s actions cause the plaintiff to be ‘seized’ without probable cause.”²² In Thompson v. Clark, a plaintiff brought a claim for malicious prosecution in violation of the Fourth Amendment under 42 U.S.C. § 1983.²³ When determining the elements of a constitutional tort claim under § 1983, the Court must first look to the elements of “the most analogous tort as of 1871, when § 1983 was enacted.”²⁴ In Thompson, the Court identified the tort of malicious prosecution as the most analogous to plaintiff ’s Fourth Amendment claim.²⁵ The Court held that a malicious prosecution may constitute a Fourth Amendment “seizure” for purposes of Section 1983 if the plaintiff proves the “favorable termination” of the underlying criminal case against him, a standard that does not require some affirmative indication of the plaintiff ’s innocence.²⁶