SEARCH AND SEIZURE Modern search-and-seizure theory, reflected in the statement that the Fourth Amendment “protects people, not places” (from Katz v. United States, 389 U.S. 347 ), means that not every trespass by law enforcement agents constitutes an unlawful search. But when police and other agents of the government intrude on property rights, the character of their trespass determines whether the owner’s expectations of privacy have been compromised. Attempts by federal and state courts to determine what legitimate property rights may be, and what constitutes a denial of those rights and becomes an unconstitutional invasion, have resulted in an almost daily examination of Fourth Amendment matters. The consequence has been a virtual tower of Babel when faced with deciphering search and seizure. This problem is further complicated by the fact that although many of the High Court’s statements on the Fourth Amendment have been policy setting in nature, the sweeping variety of circumstances to which the amendment’s protection might apply could not be anticipated. Many of these were left to the state and other federal courts to decide. In this behalf, what follows is a sampling of recent Fourth Amendment decisions, selected to demonstrate in part how broad the spectrum of search and seizure has become.
Garbage It has been the holding of a number of appellate courts that the Fourth Amendments gives individuals a privacy interest in their garbage when it is enclosed in opaque containers. Otherwise, police could learn about people’s activities, associations, and beliefs by indiscriminately rummaging through their garbage. If officers have probable cause to believe that incriminating evidence is contained in someone’s trash, the courts have ruled, they can obtain a search warrant (see, for example, State [Hawaii] v. Tanaka, 34 CrL 2277 ).
As the result of Supreme Court decisions during 1988, however, police who look for evidence of crime in trash or garbage cans appear to be free now to extend those searches beyond public property—such as the curb of a street—onto private residential property. The Supreme Court bypassed a test case on the issue, thus sending at least a temporary signal that a 1988 ruling on trash searched may be broader than it seemed initially.
On December 12, 1988, in an order containing no explanation or comment, the justices declined to review the case of Trahan v. Nebraska (44 CrL 4015), which involved a claim that police in Fremont, NE, had made a warrantless search of trash cans located just 4 feet from the door of a trailer home. The appeal in the case contended that the trash was located within the curtilage of the home and thus should have been beyond the reach of police acting without a warrant.
Trahan appeared to be a potential sequel to the court’s decision in the case of California v.Greenwood (43 CrL 3029), already discussed in the textbook. In that decision, the justices ruled—by a 6-2 vote—that the Fourth Amendment “does not . . . prohibit the warrantless search and seizure of garbage left for collection outside the curtilage of a home.” In the Greenwood case, the trash inspected by police without a warrant was placed on the curb at the side of a public street—that is, definitely on public property.
In another part of the majority opinion in the Greenwood case, the court declared that warrantless searches could be made into trash left “in an area particularly suited for public inspection . . . for the express purpose of having strangers take it.” Since someone’s private yard is not ordinarily a place suited for public inspection, that comment, too, implied that the decision should have been understood as applying only in an area beyond the curtilage of a home. The Greenwood decision, in fact, is formally reported in legal casebooks now as a ruling only on trash left outside the curtilage.
In Trahan, however, the Nebraska Supreme Court interpreted the decision more broadly. Thestate court said police do not need a warrant to go through the trash or garbage that has been left for collection at a designated location and accessible to the public. The court went on to indicate that it made no difference, constitutionally, whether the trash was within the curtilage of the defendant’s property, as long as it was placed where trash collectors normally would pick it up and where it was out in the open, accessible to the public.
The case involved Randall Trahan of Fremont, who was convicted of possessing cocaine, promoting gambling, and possessing gambling records. He was placed on three years’ probation. The case had begun when police got a tip that Trahan was engaged in an illegal bookmaking operation at his trailer home and at a local bar. On 10 different occasions, police went through the trash left outside the trailer home and outside the bar and found betting slips. They had no warrant on any of those occasions. On the basis of those discoveries, police then got a search warrant; while searching Trahan’s trailer, they found cocaine inside.
In his appeal to the Supreme Court, Trahan sought only to challenge the warrantless inspection of the trash left outside the trailer home. Trahan has use of an area extending to 12 feet behind the trailer—his yard, in effect. He left his garbage cans about 4 feet from the trailer home’s back door, and that is where police looked into them.
The sole question Trahan asked the justices to resolve was whether a private individual has a constitutionally protected expectation of privacy in “garbage that is left within the curtilage of his property.” State officials, opposing the appeal, did not contest that the trash was within the curtilage but rather argued that the facts were not distinguishable from those that existed in Greenwood. Since the Supreme Court refused to hear the case, there was no way to know what the justices may have thought of the case. But until another test case reaches the High Court involving trash within the curtilage, Trahan is the nearest thing to an indication in favor of searches of trash left outside someone’s door for the trash collector. It would appear that only if officers actuallyentered the dwelling, or some part of it, such as a porch, would they have crossed the constitutional line.
The U.S. Supreme Court handed down two recent decisions on the Fourth Amendment and traffic stops in Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484 (1998), and Atwater v. City of Lago Vista, 121 S.Ct. 1536 (2001).
Knowles v. Iowa Police officers making a routine traffic stop may (1) order out of a vehicle both the driver and any passengers, (2) perform a "pat-down" of a driver and any passenger upon reasonable suspicion that they may be armed and dangerous, (3) conduct a "Terry pat-down" of the passenger compartment of a vehicle upon reasonable suspicion that an occupant is dangerous and may gain immediate control of a weapon, and (4) even conduct a full search of the passenger compartment, including any containers therein, pursuant to a custodial arrest.
An Iowa policeman stopped petitioner Knowles for speeding and issued him a citation rather than arresting him. The officer then conducted a full search of the car, without either Knowles's consent or probable cause, found marijuana and a "pot pipe," and arrested Knowles. Before his trial on state drug charges, Knowles moved to suppress the evidence, arguing that because he had not been arrested, the search could not be sustained under the "search incident to arrest" exception recognized in United States v. Robinson, 414 U.S. 218, 38 L. Ed. 2d 427, 94 S. Ct. 467. The trial court denied the motion and found Knowles guilty, based on state law giving officers authority to conduct a full-blown search of an automobile and driver where they issue a citation instead of making a custodial arrest. In affirming, the Iowa Supreme Court applied its bright-line "search incident to citation" exception to the Fourth Amendment's warrant requirement, reasoning that as long as the officer had probable cause to make a custodial arrest, there need not in fact have been an arrest.
The search at issue, authorized as it was by state law, nonetheless violates the Fourth Amendment. Neither of the two historical exceptions for the "search incident to arrest" exception (see Robinson, supra, at 234), is sufficient to justify the search in the present case. First, the threat to officer safety from issuing a traffic citation is a good deal less than that in the case of a custodial arrest. While concern for safety during a routine traffic stop may justify the "minimal" additional intrusion of ordering a driver and passengers out of the car, it does not by itself justify the often considerably greater intrusion attending a full field-type search. Even without the search authority Iowa urges, officers have other, independent bases to search for weapons and protect themselves from danger. Second, the need to discover and preserve evidence does not exist in a traffic stop, for once Knowles was stopped for speeding and issued a citation, all evidence necessary to prosecute that offense had been obtained. Iowa's argument that a "search incident to citation" is justified because a suspect may try to hide evidence of his or her identity or of other crimes is unpersuasive. An officer may arrest a driver if the officer is not satisfied with the identification furnished, and the possibility that an officer would stumble onto evidence of an unrelated offense seems remote.
Atwater v. City of Lago Vista
A Texas statute (1) required front-seat car passengers to wear seatbelts if the car was equipped with such belts, (2) required drivers to secure with a seatbelt any small child riding in the front of a car, and (3) made a violation of either provision a misdemeanor punishable by a fine of not more than $50. A city police officer in Texas, having observed a woman driving a pickup truck without wearing a seatbelt—and with her 3-year-old son and 5-year-old daughter unsecured by seatbelts in the front seat—pulled the driver over. According to the driver's subsequent allegations, (1) the officer threatened to take the children into custody with the driver; (2) after a neighbor took charge of the children, the driver was handcuffed, placed in a squad car, and taken to the local police station; (3) officers at the station had the driver remove her shoes, jewelry, and glasses and empty her pockets; (4) the officers took the driver's photograph and placed her in a cell alone for about an hour; and (5) the driver was taken before a magistrate and released on $310 bond. The driver ultimately pleaded no contest to misdemeanor seatbelt offenses and paid a fine. The driver and her husband filed suit in a Texas state court under 42 USCS 1983 against the arresting officer, the city, and the city's chief of police. Among the driver's allegations was that the defendants had violated the driver's right under the federal Constitution's Fourth Amendment to be free from unreasonable seizures. The defendants removed the suit to the United States District Court for the Western District of Texas, which granted summary judgment for the defendants. A panel of the United States Court of Appeals for the Fifth Circuit, in reversing on appeal, concluded that an arrest for a first-time seatbelt offense was an unreasonable seizure within the meaning of the Fourth Amendment (165 F3d 380). However, the court of appeals, in vacating the panel's decision en banc and affirming the district court's judgment, reasoned that (1) it was undisputed that the officer had had probable cause to arrest the driver, and (2) there was no evidence in the record that the officer had conducted the arrest in an extraordinary manner unusually harmful to the driver's privacy interests (195 F3d 242).
The United States Supreme Court affirmed. In an opinion by Souter, joined by Rehnquist, Scalia, Kennedy, and Thomas, it was held that (1) if a police officer has probable cause to believe that an individual has committed even a very minor criminal offense in the officer's presence, then the officer is authorized—but not required—by the Fourth Amendment to make a custodial arrest without balancing costs and benefits or determining whether the arrest is in some sense necessary; and (2) under the circumstances presented, the driver's arrest satisfied the Fourth Amendment's requirements.
Three interesting cases decided in 1991 are presented below: Florida v. Bostick, a major U.S. Supreme Court ruling exhibited in the textbook; State v. Hyland, a Missouri case with circumstances similar to Bostick; and U.S. v. Giraldo, a U.S. district court case involving consent by false pretenses.
1. Florida v. Bostick (49 CrL 2270 ). The drug interdiction technique known as “working the buses” is not per se unconstitutional, a majority of the Supreme Court declared in this case. More precisely, a seizure does not inevitably occur within the meaning of the Fourth Amendment whenever police board a passenger bus during a stopover, approach passengers in their seats, and ask them questions and seek permission to search their luggage. Rather, the rule for bus encounters is the same as that for encounters between citizens and police in other public places: Under all the circumstances, would a reasonable person have felt free to decline the officers’ requests or end the encounter in another way?
In this Florida case, Broward County officers boarded a Miami-to-Atlanta bus stopped in Fort Lauderdale and, without particularized suspicion, engaged the defendant in conversation where he sat. After telling him that he could refuse, they requested his consent to search his bags. He assented, and they found cocaine in one bag. The trial court, without making factual findings, denied suppression, but the Florida Supreme Court eventually reversed that ruling. According to the majority, the state court essentially adopted a per se rule that a seizure occurs whenever police work the buses in such a fashion and that the lack of reasonable suspicion in such cases renders those seizures unconstitutional.
Justice O’Connor, speaking for the majority, rejected the notion that such random police encounters aboard buses necessarily constitute seizures. The High Court’s prior decisions make clear that a seizure does not occur each and every time an officer approaches and questions a person in public, she noted. The bare fact that the encounter in this case took place in the cramped confines of a bus does not render this situation qualitatively different, O’Connor said. Where the Florida Supreme Court went wrong, she explained, was in deeming such an encounter a seizure in every instance because a passenger whose bus is about to depart and whose luggage is aboard would not feel “free to leave” the vehicle. She stressed that a passenger on board a soon-to-depart bus will not feel free to leave whether or not the police are present. “Free to leave” is the wrong question in this setting, O’Connor reasoned; instead, the appropriate inquiry is whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter. She viewed this case as analytically indistinguishable from INS v. Delgado (466 U.S. 210 ), which held that factory employees were not “seized” for Fourth Amendment purposes when some immigration officials went through their workplace questioning workers about their status and others stood at the exits. Here, as in Delgado, any compunction an individual may have felt to remain rather than depart was the result of something other than the actions of law enforcement officials.
Given the absence of findings by the trial court, and the state supreme court’s reliance on the lone factor of the bus setting, the majority remanded the case for a determination of whether, under the totality of the circumstances, the defendant was seized when he consented to the search.
In response to the dissenters’ complaint that the majority allows the police to approach people at random and ask them potentially incriminating questions, O’Connor pointed out that this proposition is by no means novel.
Justice Marshall, joined in dissent by Justices Blackmun and Stevens, argued that this police tactic bears all the indicia of coercion and unjustified intrusion associated with the general warrant and violates the core values of the Fourth Amendment.
2. State v. Hyland (50 CrL 1103 ).A police officer who had been granted permission by a motorist to look inside a suitcase in his vehicle’s trunk to see if it contained clothes was not justified, upon observing clothing in the opened luggage, in reaching beneath the topmost garments and feeling around, a majority of the Missouri Court of Appeals held. Therefore, a package of marijuana the officer found under the clothing must be suppressed.
The devilishly difficult question posed by this case is whether the defendant, in allowing the officer to open the suitcase and look inside, implicitly consented to his rummaging through its contents, the majority said. It found guidance in Arizona v. Hicks (480 U.S. 321 ), which held that officers conducting an exigent circumstances search of premises conducted a further Asearch,” unrelated to the reason for the initial intrusion, by lifting a turntable sitting in plain view to see its serial number. What is important about Hicks, the majority pointed out, is that it held that merely moving the turntable several inches amounted to more than merely looking. In view of the Hicks rationale, the majority decided, acceding to the officer’s request to open and look in the suitcase did not amount to consent to search beneath the surface clothing.
The majority distinguished this case from Florida v. Jimeno (49 CrL 2175 ), which held that a motorist’s consent to an officer’s request to search his car for drugs was sufficient to permit a search of a closed bag in the vehicle. Jimeno indicated that a consent search may extend to things capable of containing its expressed object. Here, though, the officer never expressed an intention to search for any particular object, so the defendant cannot be deemed to have consented to a search beyond a superficial look inside the suitcase.
3. U.S. v. Giraldo (46 CrL 1464 ). A warrantless entry of an apartment effected by police officers who posed as gas company employees and falsely warned the defendant of a possible gas leak violated the Fourth Amendment, the U.S. District Court for the Eastern District of New York ruled. This case is distinguishable from the cases upholding residential entries gained by police using other sorts of deceptions, the court said, in that it involved a bogus claim that the defendant might be facing a life-threatening emergency. In this situation, the defendant’s decision to allow the agents to come in cannot be characterized as truly voluntary. Furthermore, permitting the police to engage in this type of ruse is contrary to public policy, because it might prompt people fearful of the government to bar officials seeking to protect them from a real emergency. Because the officers’ initial entry was unlawful, the court concluded, consent to search given them by the defendant shortly thereafter was invalid and drugs discovered by them must be suppressed.
Office Searches Although O’Connor v. Ortega (41 CrL 3001 ) was not a criminal case, it was nevertheless significant for criminal justice in that it reduced the scope of the Fourth Amendment protection against search and seizure with regard to workplace searches by public employers. The case inquired into a government employer’s search of a worker’s office and files, and the decision reflected some division among the justices as to how such cases ought to be handled. It is clear from the holding, however, that neither a warrant nor probable cause is necessary for a government employer to conduct a search that is appropriately initiated and reasonable in scope for the purpose of investigating work-related misconduct.
Magno J. Ortega, a physician and psychiatrist, was an employee of a California state hospital and had primary responsibility for training physicians in a psychiatric residency program. Hospital officials became concerned about possible improprieties in his management of the program, particularly with respect to his acquisition of a computer. In addition, there were charges against him concerning sexual harassment of female hospital employees and inappropriate disciplinary action against a resident. While he was on administrative leave pending investigation of the charges, hospital officials, allegedly in order to inventory and secure state property, searched his office. They seized personal items from his desk and file cabinets that were later used in administrative proceedings that resulted in his discharge. No formal inventory of the property in the office was ever made, and all the other papers in the office were merely placed in boxes for storage.
Dr. Ortega filed an action against the hospital officials in federal district court under 42 U.S.C. 1983, alleging that the search of his office violated the Fourth Amendment. On cross-motions for summary judgment, the district court concluded that the search was proper because there was a need to secure state property in the office. Affirming in part, reversing in part, and remanding the case, the court of appeals concluded that Ortega had a reasonable expectation of privacy in his office. The hospital officials, in turn, appealed, and the Supreme Court granted certiorari. In a 5-to-4 decision, the High Court ruled against Ortega, holding that public employers have “wide latitude” to search employees’ offices, desks, and files without warrants or probable cause to believe that the search will uncover evidence of wrongdoing.
Justice O’Connor, joined by the Chief Justice and Justices White and Powell, concluded the following:
1. Searches and seizures by government employers or supervisors of the private property of their employees are subject to Fourth Amendment restraints. An expectation of privacy in one’s place of work is based upon societal expectations that have deep roots in the history of the amendment. However, the operational realities of the workplace may make some public employees’ expectation of privacy unreasonable when intrusion is by a supervisor rather than a law enforcement official. Some government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable. Given the great variety of work environment in the public sector, the question whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis. Because the record did not reveal the extent to which hospital officials may have had work-related reasons to enter Dr. Ortega’s office, the Court of Appeals should have remanded the matter to the District Court for its further determination. However, a majority of this Court agrees with the determination of the Court of Appeals that Ortega had a reasonable expectation of privacy in his office. Regardless of any expectation of privacy in the office itself, the undisputed evidence supports the conclusion that Ortega had a reasonable expectation of privacy at least in his desk and file cabinets.
2. In determining the appropriate standard for a search conducted by a public employer in areas in which an employee has a reasonable expectation of privacy, what is a reasonable search depends on the context within which the search takes place, and requires balancing the employee’s legitimate expectation of privacy against the government’s need, supervision, control, and the efficient operation of the workplace. Requiring an employer to obtain a warrant whenever the employer wishes to enter an employee’s office, desk, or file cabinets for a work-related purpose would seriously disrupt the routine conduct of business and would be unreasonable. Moreover, requiring a probable cause standard for searches of the type at issue here would impose intolerable burdens on public employers. Their intrusions on the constitutionally protected privacy interests of government employees for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances. Under this standard, both the inception and the scope of the intrusion must be reasonable.