9 minute read

Search and Seizure

Further Readings

Fourth Amendment Protections
Many issues in criminal procedure have complicated roots, and though the questions surrounding the issue of search and seizure are themselves complex, theConstitution's primary regulations regarding it can be found in a single amendment, the Fourth. The amendment states that "The right of the people to besecure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, butupon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The wording of the Fourth Amendment may seem fairly straightforward, but it has given rise to endless debate about such key issues as the exact definitionof probable cause. Nor does it address the myriad other questions which arise in the ordinary course of law enforcement: does the law officer have to obtain the warrant before the arrest? What if this makes it impossible tocatch the suspect, who might have a chance to flee while the officer is busyobtaining a warrant? What if the officer sees something without even havingto search--for example, he or she stops someone for speeding and notices a bag of cocaine sitting on the passenger seat? What happens to evidence obtainedby less-than-legal means? These are some questions that have been addressedin cases testing the Fourth Amendment; likewise changes in society and technology have required examination of issues such as automobile searches, mandatory drug testing, and electronic wiretapping.
Search and Seizure Before the 1960s
Like books or songs, some constitutional amendments are more "popular"--i.e.,they have been the subject of more Supreme Court cases--than others; and likewise amendments enjoy periods of greater or lesser attention from the legalcommunity. The Fourteenth Amendment, for instance, has had several periods ofenormous "popularity" since its adoption in 1868: in the late 1800s, it wasused to protect corporate interests, and in the 1960s and 1970s, it was wielded on behalf of civil rights and civil liberties. As for the Fourth Amendment, it had been all but ignored until the 1880s. It did not become a pressing matter until the 1960s, and it was subjected to a significant challenge in the1980s.
In its first important search and seizure case, Boyd v. United States(1886), the Court read the Fourth and Fifth Amendments together and linked the right against unreasonable search and seizure with the right against self-incrimination. "[T]he seizure of a man's private books and papers to be used in evidence against him," the Court held, would not be "substantially different from compelling him to be a witness against himself." Almost an entire generation passed until the Court again addressed a significant search and seizure issue, and in Adams v. New York (1904) it proved less vigilant withregard to Fourth Amendment protections. In the latter ruling, it held that only when the defendant is required to undertake a "positive act"--e.g., to actually show a law enforcement officer his private books and papers--would thisconstitute unlawful search and seizure.
The issue of unlawfully obtained evidence came to the forefront with Weeksv. United States (1914), in which the Court held that such evidence would be inadmissable in a federal court. This was the "exclusionary rule," providing for the exclusion of evidence obtained illegally. Yet this restriction,as the ruling in Wolf v. People of the State of Colorado in 1949 indicated, did not apply to the states, and would not until 1961.
One of the primary requirements for lawful search and seizure, of course, isthe issuance of a warrant according to constitutional guidelines. For instance, the magistrate who issues the warrant must be "neutral and detached," as the Court stated in a 1948 ruling--i.e., the judge must not have any vested interest in the arrest or conviction of the suspect. In Brinegar v. United States (1949), the Court noted that a warrant balanced the "often opposinginterests" of individual liberty on the one hand, and public safety on the other. But warrants have to be followed strictly: as was stated in the opinionfor Gouled v. United States (1921), which held that law officers could only seize "instrumentalities" of crime, as well as the products of crime,but not "mere evidence." Hence officers could seize an illegal drug lab or the products thereof, but they could not simply go on a hunt for anything to corroborate their case against the suspect.
The Exclusionary Rule and Other Holdings of the Warren Court
The Fourth Amendment first came to prominence in an era of high regard for property rights, when a largely conservative Court in the late 1800s and early1900s tended to rule in favor of business interests. Concerns over search andseizure entered a second phase during the 1960s, and this time the issue's champions were much further to the left politically. Perhaps the most important Fourth Amendment ruling of that decade came in 1961, with Mapp v. Ohio, in which the Court overturned its earlier holding in Wolf, and applied the exclusionary rule to state governments as well as to the federal government. To do otherwise, the Court ruled, would be to render the Fourth Amendment "`a form of words,' valueless and undeserving of mention in a perpetualcharter of inestimable human liberties."
In Wong Sun v. United States (1963), the Court addressed the issue ofa warrantless search and seizure. The Court held that when an officer apprehends a criminal in the middle of committing a crime, there are certain types of search and seizure that may be permissible. Nonetheless, with its holding in Wong Sun, the Court made it clear that "the requirements of reliability and particularity of the information on which an officer may act... surely cannot be less stringent [in cases of warrantless arrest] than where an arrest warrant is obtained. Otherwise, a principal incentive now existing for the procurement of arrest warrants would be destroyed." In other words, a law officer would be tempted to violate Fourth Amendment requirements in order toobtain evidence, and then claim that no warrant was required.
Decisions such as that in Wong Sun tended to suggest, in the wake of Mapp, a tightening of possible government loopholes for violation of Fourth Amendment rights. In Aguilar v. Texas (1964), the Court established stricter standards with regard to the use of information provided to police by informants, and in Katz v. United States (1967), it ruled that electronic eavesdropping by means of a recording device on the outside of a telephone booth constituted illegal search and seizure.
With Katz, once again Fourth Amendment issues seemed to be merging with Fifth Amendment concerns regarding self-incrimination. Yet even as Fourth Amendment protections were increasing on some fronts, they were decreasing onothers. Terry v. Ohio (1968), nicknamed the Stop and Frisk Case, provided for situations in which police could stop and frisk a suspect on the street, a measure which the Court deemed a positive alternative to arrestas a means of short-term detention. Some rulings seemed like plain common sense: thus in Camara v. Municipal Court (1967), the Court allowed safetyinspections of dwellings even when there was no evidence of existing building code violations. But with such 1970s cases as United States v. Robinson (1973), authorizing search of anyone under lawful custodial arrest, and Delaware v. Prouse (1979), which permitted law officers to stop vehicles to check license and registration even without evidence of any violation, the Court signalled a growing trend toward favoring police interests in Fourth-Amendment cases.
Search and Seizure vs. Law and Order: the 1980s and 1990s
In the early 1990s, President Bill Clinton raised hackles among civil libertarians for his advocacy of routine searches of public housing, as well as "roving wiretaps"--the use of a warrant as a basis to tap all of a suspect's phones, rather than the one on which police had probable cause to believe they would obtain information of criminal activity. But reaction to these abrogations of Fourth Amendment rights was relatively limited. There were a number of reasons for this lack of outcry, not least of which was the fact that escalating concerns regarding crime had overtaken the preoccupation with constitutional liberties which had animated a more carefree era.
Times had changed: the drug culture of the 1960s had spawned a much more sinister version, surrounding cocaine and its derivative, crack, in the 1980s and1990s. Public housing, much of it established during the wave of optimism that characterized the 1960s "War on Poverty," had long since ceased to be regarded as a solution to poverty. People tended to regard housing projects as breeding grounds for crime and drugs, and with the very idea of the welfare state on the decline, sweeping searches of public housing projects seemed justified. Likewise in the area of wiretapping, advocates of law and order could point to the FBI's enormous success in gathering evidence against the Gambino crime family during the late 1980s and early 1990s, an effort which led to thedownfall of crime boss John Gotti.
Perhaps typical of the attitude toward search and seizure cases in the 1980sand 1990s was the Court's ruling in Richards v. Wisconsin (1997). Thecase involved a "no knock entry" into a suspect's hotel room, which represented a departure from the "knock and announce" requirement implied in the Court's 1995 Wilson v. Arkansas ruling. In the case of suspected drug dealer Steiney Richards, the Madison, Wisconsin, police asserted that if they had"knocked and announced" prior to their 1992 arrest of the suspect in his hotel room, he would have had time to flush the evidence down the toilet. The Court agreed, thus limiting its earlier Wilson holding in light of what Justice John Paul Stevens referred to as "today's drug culture."
The "knock and announce" requirement had its roots, like much of U.S. constitutional law, in British common law. By the time of Wilson, the federalgovernment as well as thirty-four states and the District of Columbia had their own "knock and announce" rules. Likewise there were exceptions, as notedin Richards. These included the "Apprehension of Peril" exception, which pertains when officers have reason to believe that announcing their presence would bring harm to themselves or to others (e.g., a shootout); the "Useless Gesture" exception, triggered when the occupants of a dwelling already know that the officer is coming in, and why; and the "Destruction of Evidence" exception, which applied in Richards.
In light of the government's competing needs to support public safety while protecting individual liberties, it is understandable why such exceptions should be made. Nonetheless, the ruling in Richards highlights--at least,in the view of some civil libertarians--the toll which may be taken on individual rights because of "today's drug [and crime] culture." Some proposed legislation resulting from the decision includes mandatory drug testing, which came to the forefront during the 1980s "War on Drugs"; and one of the bills introduced by the then-new Republican majority in Congress in 1995, the Exclusionary Rule Reform Act of 1995--nicknamed the "Take Back Our Streets Act." It reflected the disgust many citizens felt with the continued spread of crime, which many attributed to the lax judicial attitude that had followed in the wake of the Warren Court.

Additional topics

Law Library - American Law and Legal InformationFree Legal Encyclopedia: Roberts v. United States Jaycees to Secretary of State