Search and Seizure (Update 1)

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Since 1985 the Supreme Court has refined and expanded upon previously articulated exceptions to the search warrant requirement, the probable cause requirement, and the exclusionary rule. Few decisions have addressed novel issues or fashioned new approaches to the fourth amendment.

Earlier cases, beginning with camara v. municipal court, (1967) and terry v. ohio (1968), established that a warrant and probable cause may not be needed when a search is undertaken primarily for noncriminal purposes or is limited in scope. Rather, the essential criterion of the Fourth Amendment is "reasonableness," which requires balancing the intrusiveness of a particular category of search against the special law enforcement needs served by the search. In recent years, the Court has increasingly applied a balancing test to permit the government to conduct warrantless searches and searches with less than probable cause, in pursuit of special law enforcement interests aimed at particular groups, including government employees, schoolchildren, probationers, prisoners, and automobile owners.

Two recent decisions upholding government employee drug testing programs illustrate both the advantages and the difficulties of a balancing approach to the Fourth Amendment. Balancing is attractive because it permits the Court to give a full account of competing interests and to adjust constitutional limitations accordingly. In skinner v. railway labor executives association (1989), which upheld mandatory blood and urine testing of all railroad workers involved in train accidents or certain safety violations, the Court engaged in a two-stage analysis. First, the pervasively regulated nature of the railroad industry and railroad employees' awareness of the testing regime lessened the employees' reasonable expectation of privacy concerning their bodily fluids. Second, the government's interest in deterrence and detection of drug use by railroad workers, in order to ensure safety on the railroads, was sufficiently compelling to outweigh any residue of legitimate privacy expectations with respect to testing of bodily fluids.

The limitations of balancing analysis become apparent in a companion case, national treasury employees v. von raab (1989). At issue in Von Raab was a more sweeping program that required drug testing of all Customs Service employees hired or promoted into positions in which they would carry guns or come into contact with drugs. Yet Skinner—which, like all balancing opinions, was inherently fact-specific and conclusory—shed little light on how Von Raab should be resolved. Ultimately, a bare majority upheld the Customs Service program, concluding that the government's special need for honest "frontline offices" in the midst of a national illicit drug crisis outweighed any individual Customs Service employee's expectation of privacy. For Justice antonin scalia, in dissent, the balance came out differently in Von Raab because there was no record of a history of substance abuse in the Customs Service, as there had been in the railroad industry of Skinner. Yet others might strike the opposite balance, upholding the program in Von Raab but not that in Skinner, on the ground that the Customs Service program contained a significant internal limitation not present in the railroad program: that the government could not use drug test results in criminal prosecutions.

The Customs Service program is almost unique in actually prohibiting introduction of acquired evidence in criminal trials, but in several other recent search cases the Court has invoked government interests other than criminal prosecution. Noncriminal motivation was critical in the school search case newjerseyv. t. l. o. (1984). in the court's view, the special interest of school authorities in maintaining order permits them to search a student when there are "reasonable" grounds for believing the search will yield evidence of a violation of a law or a school rule and the search is not especially intrusive.T.L.O. expressly withheld judgment as to whether the police, as opposed to school officials, could likewise conduct school searches without a warrant and on less than probable cause. Yet, in New York v. Burger (1987), the Court permitted evidence seized from automobile junkyards in warrantless administrative searches conducted by police officers to be used for penal, as well as administrative, purposes because the two purposes were sufficiently related.

The government's interest in effective supervision of particular groups was also determinative in Griffin v. Wisconsin (1987), which held that probation officers may search probationers' homes if there are "reasonable grounds" to suspect a probation violation, and in O'Connor v. Ortega (1987), which held that government supervisors may search employee offices for "work-related purposes" (in this case, to investigate alleged misconduct). The Court has declined to establish an explicit middle-tier cause standard somewhere between probable cause and the Terry "reasonable suspicion" standard. Nevertheless, the "reasonable scope" test of T.L.O. may implicitly create such an intermediate standard governing focused searches for primarily noncriminal purposes.

In several other recent cases, the Court has refused to impose Fourth Amendment limitations on particular categories of investigative activity on the basis that the activities at issue were not "searches" at all under the Fourth Amendment. In California v. Ciraolo (1985) and Florida v. Riley (1989), the Court concluded that there are no Fourth Amendment restrictions on aerial surveillance from publicly navigable airspace (by plane and by helicopter, respectively). In california v. greenwood (1988) the Court agreed with the great majority of lower courts in holding that police need neither particularized suspicion nor a warrant to seize trash placed for roadside pickup. In each of these cases, the Court applied the two-pronged test set forth in katz v. united states (1967) for determining when government action invades privacy protected by the Fourth Amendment: first, whether the individual has an actual expectation of privacy and, second, whether any such expectation of privacy is reasonable or legitimate. The majority in each case concluded that any expectation of privacy was not one "the society" at large was prepared to accept as reasonable. The Court made clear that state law is not controlling either as to the creation of privacy expectations or as to their reasonableness, although FAA regulations apparently are highly relevant to both prongs of the test. Despite the invocation of Katz, each decision is more persuasive by analogy to the pre-Katz test for determining what constitutes a search under the Fourth Amendment: whether there has been a trespass upon traditionally recognized property interests.

The Supreme Court has continued to cast an unfavorable eye on the exclusionary rule, which precludes admission at trial of evidence obtained through an illegal search or seizure. Previously, in nix v. williams (1984), the Court had ruled that illegally seized evidence is admissible if it would have been "inevitably discovered" through an "independent source." In Murray v. United States (1988), a four-Justice majority (Justices william j. brennan and anthony kennedy not participating) applied the logic of the inevitable discovery and "independent source" exceptions to permit admission of evidence first viewed in an illegal search as long as the evidence was subsequently seized pursuant to an independently valid search warrant. The moral hazard of these two exceptions to the exclusionary rule is especially apparent in Murray, which may be read to provide an incentive to make an illegal search to determine whether obtaining a search warrant later would be worthwhile. Yet the Court is intent upon reminding us that there is also hazard—to society at large and to the integrity of criminal trials—in suppressing probative evidence, especially where probable cause existed apart from any illegal search.

The Court has also expanded the exclusionary rule's good faith exception, first developed in United States v. Leon (1984), to include warrantless administrative searches authorized by statutes later held to be unconstitutional; Illinois v. Krull (1987) held that the exception applies whenever the police officer acts "in good-faith reliance on an apparently valid statute." Krull thus signals a departure from Leon, which had given much weight to institutional considerations justifying reliance on search warrants issued by neutral, independent judicial officers. As Justice sandra day o'connor indicated in dissent for herself and three others, legislative schemes authorizing warrantless searches do not invite such reliance, because legislators are not expected to operate as independent, politically detached interpreters of the Constitution.

Some recent cases have articulated the new Fourth Amendment standards. In Winston v Lee (1984) the Court recognized that the Fourth Amendment may prohibit as unreasonable certain forms of search and seizure (in this case extracting a bullet from the body) even when there is probable cause. Similarly, tennessee v. garner (1984) held that the shooting death of a fleeing felon is an unreasonable form of seizure, even though there was probable cause to believe that the burglary invloved violence or that the felon otherwise presented a threat to someone's physical safety.

It was unclear after Garner whether successful termination of freedom of movement is a sine qua non for a "seizure" under the Fourth Amendment. The majority in Michigan v. Chesternut (1988) rejected both the state's argument that no seizure occurs "until an individual stops in response" to a show of authority and the defendant's contention that a seizure occurs as soon as the police "pursue" an individual; rather, the Court appeared to reaffirm the test of Florida v. Royer (1983) and Immigration and Naturalization Service v. Delgado (1984): there is a seizure when the police's actions would cause a reasonable person to believe she is not free to leave. During the term after Chesternut, however, in Brower v. County of Inyo (1989), a bare majority of the Court concluded that a seizure under the Fourth Amendment does not occur until there is an actual "termination of freedom through intentionally applied means."

In other cases, the Court has refused to develop new Fourth Amendment principles. United States v. Sokolow (1989) declined to hold a stop unconstitutional merely because it was based on a drug-courier profile; as long as there is Terry 's "reasonable suspicion" in the particular case, the police may stop the suspect. In United States v. Verdugo-Urquidez (1990), the Court refused to apply Fourth Amendment limitations to U.S. law enforcement agents operating against aliens in foreign jurisdictions.

Kate Stith

(see also: Fourth Amendment.)


Goldstein, Abraham S. 1987 The Search Warrant, the Magistrate, and Judicial Review. New York University Law Review 62:1173–1217.

Grano, Joseph 1984 Probable Cause and Common Sense: A Reply to the Critics of Illinois v. Gates. University of Michigan Journal of Law Reform 17:465–521.

Kamisar, Yale 1987 Comparative Reprehensibility and the Fourth Amendment Exclusionary Rule. University of Michigan Law Review 86:1–50.