The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Fourth Amendment, U.S. Constitution, 1791
Lee Arbetman and Michelle Perry
The U.S. Constitution is a carefully balanced document, designed for a strong and flexible national government but limited and fair to protect the rights of its citizens. Through the genius of this document, America has survived the bumps and bruises of more than two hundred years of its experiment with constitutional democracy. One aspect of the Constitution, the Fourth Amendment, is of particular interest to many Americans because it protects our right to privacy (vis a vis our government) and sets certain standards for the conduct of police.
Written originally in response to violations of privacy by an intrusive British government during colonial times, the Fourth Amendment is used today to both justify and protest various police procedures-some unknown in colonial times. The British government had issued general warrants, known as writs of assistance, to search colonists' homes for contraband, even when no information was presented to authorities to justify a search.1 No limits were placed on what items the authorities could search for and subsequently seize. Given this history, it is not surprising that the core concern of the Fourth Amendment, as summed up by Justice Felix Frankfurter, is "the security of one's privacy against arbitrary intrusion by the police."2
Judicial interpretation of the Fourth Amendment today provides one of the clearest possible examples of the Constitution as a "living" document, where broad provisions are continually applied to complicated new situations. We can be certain that neither the drafters of the amendment, nor citizens in the late 18th century, anticipated how protection against "unreasonable searches and seizures" would be applied to wire taps, low-flying helicopters searching out marijuana plants, or urine tests of public school athletes, whether or not they are suspected of using drugs or alcohol.
The contemporary meaning of the Fourth Amendment continues to unfold through decisions of the U.S. Supreme Court. These decisions attempt to balance the legitimate interests of law enforcement against the reasonable expectations of privacy of individual citizens. In striking this careful balance, both the Supreme Court justices and the American public seem willing today to sacrifice some aspects of privacy in the expectation of increasing public safety. In making this choice, some would say that we are forgetting our nation's history, while others would argue that we are protecting our collective future.
There is great public debate today about search and seizure laws. A 1993 survey concluded: "Americans want so badly to put criminals behind bars that they're willing to sacrifice constitutional rights if it will help make the streets safer. That's how deep the fear is."3 Some see the limits imposed on search and seizure as protecting the rights of criminals at the expense of innocent citizens. Others see limiting police searches and seizures as protecting innocent citizens from blanket suspicion and loss of the orderly administration of justice.
The following review of Fourth Amendment case law sets forth several tests by which privacy has been established, denied, or forfeited, and the social context in which those tests have been applied.
The Fourth Amendment in the Courts
Over the years, courts have frequently been called upon to apply the Fourth Amendment to police conduct. While judges tend to emphasize that search and seizure decisions are decided on a case-by-case basis, a careful examination of the facts in each instance allows some principles to be discerned in the existing body of Fourth Amendment case law.
The typical Fourth Amendment case arises when a defendant in a criminal case alleges that the police (government) seizure of evidence has violated his or her constitutional rights. At a pre-trial hearing, called a motion to suppress, the defendant challenges the police actions, while the state (the prosecutor) defends the search as reasonable and not in violation of the Fourth Amendment. If the evidence is deemed to violate the Constitution, then the Exclusionary Rule comes into play.
The Exclusionary Rule is the remedy created by the U.S. Supreme Court for Fourth Amendment (and certain other constitutional) violations. This rule has always been controversial. Its critics argue that it only protects criminals. Its supporters argue that it serves as an effective deterrent to police misconduct, and that use of illegally obtained evidence would harm the integrity of the judicial system.
What is a Search?
A careful reading of the language of the Fourth Amendment reveals that only unreasonable searches are prohibited. So the central question in many cases focuses on the reasonableness of the search. Before getting to the issue of reasonableness, however, the defendant must show that a search in fact occurred, and that the search was conducted by the government-most often by the police. For example, if a neighbor comes into your house and takes your CD player, this is a crime; but it is not a violation of the Fourth Amendment (unless the neighbor was acting as an agent of the state). Although there was a search, there was no "state action."
The U.S. Supreme Court helped define the concept of search in the case of Katz v United States.4 In Katz, the government introduced tape recordings of the defendant's phone conversations obtained through a wire tap on a public phone booth. Katz was subsequently convicted of eight counts of transmitting wagering information by telephone-in other words, gambling. Katz objected to the introduction in court of a normally private conversation, arguing that the wire tap was analogous to a search and, therefore, the government should first have obtained a search warrant. The Court agreed that the wire tap was a search under the Fourth Amendment. The Court held that a search is an intrusion into an area covered by a reasonable expectation of privacy (in this instance, a private phone conversation). A search does not require a physical entry. The government can search with wire taps, X-ray machines, and telescopes.
What is a Reasonable Search?
If the defendant proves both state action and the existence of a search, then the police are held to the Fourth Amendment's standard of reasonableness. The text of the amendment suggests that one way to meet this standard is to execute the search based on a warrant "supported by oath or affirmation, and particularly describing the place to be searched and the persons and things to be seized." Another way is to require either that the search fit into one of the exceptions to the warrant requirement or that the case give rise to a new exception to the warrant requirement.
An additional way to interpret reasonableness is to weigh, in each case, the legitimate law enforcement interests of the government against the individual's reasonable expectation of privacy. This case-by-case approach gives the government more flexibility and may make search and seizure law less predictable. Such a balancing test also invites consideration of the importance of the state's interest in stopping crime and reducing violence.
When is a Warrant Not Required?
While there is a judicial preference for warrants (in terms of separation of powers, warrants act as a check on the power of the executive branch by the judicial branch), the U.S. Supreme Court has never required all searches to be supported by a valid warrant. In fact, a number of exceptions to the warrant requirement have been developed. Among the most important in use today are:
These exceptions are judicially created categories designed to accommodate the legitimate needs of law enforcement as balanced against the individual's right to be free from unreasonable searches and seizures. Searches falling into these categories are deemed reasonable, even though warrantless.
However, the increase in violent crime and the parallel response of law enforcement in the last quarter of this century has made it very difficult to fit search and seizure cases into a neat analytic model. That would mean requiring a valid warrant unless the search clearly fits into one of the recognized exceptions.
The lingering question remains: what is reasonable? For example, a recent U.S. Supreme Court case involved a police officer who was patting down a suspect during a stop and frisk situation. Technically, there is no probable cause for a full-scale search at this point, because there is only a suspicion that a person is acting dangerously. What should happen if the police, in patting the person down for a weapon, come across an object that "feels" like an illegal substance-in this case, drugs? Clearly, the police do not have to take the drugs to ensure their safety as they continue their investigation. But does the Constitution require them to turn a blind eye?
In 1993, the U.S. Supreme Court created a new exception called the "plain touch" or "plain feequot; exception, by combining the rationales from the "plain view" and "stop and frisk" exceptions. Under this new exception, officers are allowed to seize evidence they may discover during a pat-down frisk, when it is immediately apparent to the officer that the evidence is connected to a crime.5
What is Probable Cause?
While some cases raise the question of when a warrant is needed, others involve an even more fundamental aspect of the Fourth Amendment: What is probable cause? In United States v Sokolow, the Court held: "The Fourth Amendment requires some minimal level of objective justification for making the stop .... That level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence. We have held that probable cause means a fair probability that contraband or evidence of a crime will be found ..." (emphasis added).6 The concept of probable cause as "fair probability" has been used both in search cases and as the basis for determining the validity of an arrest, which is a seizure of a person under the Fourth Amendment.
But what happens if government takes steps to stop drugs or drunk driving and has no evidence at all that the individual affected by the government's action will provide evidence of a crime? Two recent cases shed light on the Court's current direction.
In the late 1980s, the State of Michigan instituted a policy of random sobriety checkpoints administered by the state police. A motorist who was stopped by the state police at one of the checkpoints challenged the policy as violative of the Fourth Amendment, since there was no individualized suspicion of drunk driving (i.e., no probable cause). The U.S. Supreme Court found this policy and the police conduct to be reasonable because the low level of "fear and surprise" a law-abiding motorist would experience is only a minimal intrusion on privacy. The lack of any probable cause or individualized suspicion was deemed inconsequential by the Court due to the magnitude of the state's interest in reducing drunk driving.7
In 1995, the Court ruled that individual student athletes in public schools could be randomly ordered to submit to drug testing, without the school having any individual suspicion of drug use by the student. Requiring students to submit to such a test is a search under the Fourth Amendment, and the Court found the search reasonable because the state has a strong interest in reducing adolescent drug use. In addition, according to the Court, the student athletes already had lower expectations of privacy (required physical examinations, special rules about personal conduct, communal undress to shower, etc.).8
There is a theme to these recent cases: with violence, crime, and attendant drug and alcohol use at unacceptable levels, there is a willingness on the part of the present Supreme Court to lower constitutional barriers to law enforcement in order to win the "war" on illegal drug and alcohol use. While not all legal commentators support the trend represented in these U.S. Supreme Court decisions, there appears to be an emerging consensus among the public favoring relaxed rules on police conduct in search and seizure situations. A 1993 survey found that 54 percent of Americans favor giving police broader powers to stop and search suspects, and 58 percent of those surveyed favored allowing improperly obtained evidence to be used more frequently in criminal trials.9
Was the police search of the garbage illegal? Should the evidence from that search have been allowed to be the basis for a search warrant that resulted in Greenwood's conviction? This case was appealed to the U.S. Supreme Court, and the justices split and came up with two different opinions.
The plastic garbage bags were closed containers that one could not see through. Therefore, they are no different from other containers that, in prior cases, the Court has held may only be opened after the police obtain a search warrant.
We believe that allowing the search of trash bags without a warrant would paint a grim picture of our society. It would be a society that says it is unreasonable to expect privacy in personal effects sealed in a container and disposed of in a manner that will commingle it with the trash of others. Consequently, we hold that the search was illegal under the Fourth Amendment and that the items should not have been used to convict Greenwood.
People are protected by the Fourth Amendment's freedom from unreasonable search and seizure only if they have a "reasonable expectation of privacy" with respect to what is being searched. It is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and others. They have also been left there so that a third party, a trash collector, can take them and perhaps sort through them.
In prior cases, this Court has held that a person has no expectation of privacy in information he voluntarily turned over to third parties. For example, in one case, the Court ruled that the police could install a device at phone company offices that recorded the phone numbers a suspect called. In another case, warrantless airplane surveillance of a fenced backyard was allowed for purposes of detecting marijuana cultivation. The police should be allowed to gather evidence that any member of the public could also see and gather. Therefore, we hold that the trash collected may be used as evidence against Greenwood.
a.What are the two strongest arguments in Opinion A? Why?
b.What are the two strongest arguments in Opinion B? Why?
c.Which opinion do you agree with? Give your reasons.
d.Which opinion do you think represents the majority view of the U.S. Supreme Court in this case?
e.What is the importance of allowing the evidence from the search of the garbage to be used in the case against Greenwood? Could he be arrested and convicted without the evidence?
f.Can a private citizen go through someone's trash without violating the law? What if a reporter does it to gather information for a news article? Do you see a difference between open and closed trash?
The Supreme Court decided this issue in California v. Greenwood, 486 U.S. 35 (1988). Research the case in a law library. What other arguments do you find in the judicial opinions expressed on both sides of this question? Do you agree with the Supreme Court decision?
The testing procedure was to work this way. The student selected is accompanied by a school official of the same sex to the bathroom, provided with an empty specimen bottle, and allowed to enter the lavatory and close the door to produce a sample. The monitor stands outside the door and checks the temperature of the sample by hand to assure its genuineness.
The sample is marked with the student's ID number (no names are used with the samples) and sent to a private laboratory for evaluation. If it tests positive, it is sent to a second laboratory and put through a more expensive and more accurate test. If it still tests positive, the student and parent are notified and asked to supply any evidence that might provide an innocent explanation for the result (for example, evidence that the student was taking a prescription drug).
If there is no satisfactory explanation, the student is suspended from participation in a portion of the varsity competitions held during the athletic season. A first offense results in suspension from 30% of the remaining contests; a second offense, in suspension from 50% of the remaining games; and a third offense, in a complete suspension from sports for the year. Students who violate this policy are also referred to a drug education course. No other penalties are imposed.
After learning of the drug-testing program at an organizational meeting, two female swimmers decided not to go out for the team. They then brought a lawsuit in federal court claiming that the school's program violated their rights.
a.Why did the school decide to implement the drug-testing program?
b.What legal issue is involved in this case?
c.What arguments could the student athletes make in attacking the school's policy?
d.What arguments could the school make in defending its policy?
e.Is the school's policy reasonable or unreasonable? Consider the policy, along with policies 2, 3 and 4 below, in terms of their reasonableness. Place the number of each policy on the accompanying continuum where you believe it belongs. What makes some of the policies more reasonable than others?
1.Student athletes are tested for drugs as described in this problem.
2.In a school where there has been some violence, metal detectors are installed at all outside doors. All students and staff members must pass through the detectors each day to enter the school.
3.A large urban school system institutes a policy of random drug-testing of all high school students.
4.A large urban school system only tests a student for drugs when there is a reasonable suspicion that the individual student is using drugs.
The case described above was filed as Schall v Tippecanoe County School Corporation, 864 F.2d 1309 (7th Circuit 1988). Research the case in a law library. What arguments were made on both sides of this question? Do you agree with the court's decision?
1. Alfredo Garcia, "Toward an Integrated Vision of Criminal Procedural Rights: A Counter to Judicial and Academic Nihilism," 77 Marquette Law Review 1, 9 (1993).
2. Garcia quoting Wolf v Colorado, 338 U.S. 25, 27 (1949).
3. James Patterson and Peter Kim, The Second American Revolution (NY: Wm. Morrow and Company, 1994), 165.
4. Katz v United States, 389 U.S. 347, 88 S. Ct. 507 (1967).
5. Minnesota v Dickerson, 508 U.S. 366 (1993).
6. United States v Sokolow, 490 U.S. 1, 7 (1989).
7. Michigan v Sitz, 496 U.S. 444 (1990).
8. Vernonia v Acton, 115 S. Ct. 2386 (1995).
9. Patterson and Kim, 163, 165.
Lee Arbetman, Staff Director of Street Law, Inc. (formerly the National Institute for Citizen Education in the Law [NICEL]) in Washington, D.C., is Adjunct Professor of Law at Georgetown University Law Center and co-author of Street Law: A Course in Practical Law (West Publishing Company, 5th edition, 1994).
Michelle Perry, a third year law student at George Washington University Law School, Washington, D.C., was a legal intern at Street Law, Inc. in summer1996.