In some instances the Fourth Amendment is not applicable at all—open fields, abandoned property—areas where there is no reasonable expectation of privacy.

The material in this section helps answer the question: Is the Fourth Amendment Applicable?

Searches where PC is not needed include plain view, open fields, search incident to arrest, consent searches, inventory searches, inspections and regulatory searches, and border searches.

Plain view is not even considered a search.

If something can be seen form an area open to the public, there has been no search.

To be a search, there must be a violation of the reasonable expectation of privacy.

Once contraband located in a private area is observed from a public area, the police may need a warrant to seize the property.

Under the plain view doctrine, if the police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, it may then be seized without a warrant.

The rationale of the Plain View Doctrine is that if contraband is left in open view and is observed by the police officer from a lawful vantage point, there has been no invasion of a legitimate expectation of privacy and thus no "search" has taken place within the meaning of the Fourth Amendment.

An item is considered to be in plain view when the common means of enhancing the senses, such as a flashlight or binoculars, are used.

If the device in a particular circumstance is highly intrusive, however, it may be considered a search.

For example, using a high powered telescope to determine what a person is reading in a high rise apartment building.

The use of drug dogs to detect the odor of narcotics in a suitcase is not a search because it exposes only contraband and other items remain hidden.

The search was much less intrusive than an officer digging through the luggage.

The U.S. SC has held that open fields are not protected by the Fourth Amendment.

Accordingly, police officers may enter and search unoccupied or undeveloped areas.

The rationale for open fields is that only "homes, persons, effects, and papers" are protected by the Fourth Amendment and there is a lesser expectation of privacy in open fields.

Open Fields includes forests, fields, etc.

Officers may still search the field without PC or a warrant, except for the curtilage

A border search is a superficial search or inspection without PC or warrant of persons, vehicles, and property entering the US.

The purpose of these searches is to combat smuggling and theft problems at international borders, sea ports, and airports.

The SC held that border searches are inherently reasonable under the constitution without the need for warrant or PC.

Any person entering the US is subject to search, that is, visitors, employees, transportation workers, and citizens re-entering the US.

The border area is any place that is the functional equivalent of the border, for example, the first airport where the plane lands or established inspection station s near borders.

Customs/immigration searches away from borders have been curtailed by the courts.

Checkpoint stops, for brief routine questioning 60 miles from the border without a particular reason have been upheld.

Searches without a reasonable suspicion at checkpoints located a distance from the border are not permissible.

A Roving patrol cannot justify detaining a vehicle near the border merely because the occupants "looked Mexican."

Health and safety inspections are different from normal searches and seizures in that their primary purpose is for reasons other than to discover evidence of criminal activity.

They are, however, subject to the limitations set forth in the 4^th Amendment.

Generally, a warrant is required, except in emergency situations.

A showing of PC is not needed if the inspection is part of a general "neutral" enforcement plan.

In certain businesses, because of the need of closer supervision by government, a warrant may not be required—liquor sales, etc.

Generally a warrant is not required for administrative/code inspections when the business is closely regulated if the interest served by the regulations advance a substantial social interest.

That is, to protect health or safety of employees and the warrantless entries are necessary to enforce the regulations.

Administrators may search students without a warrant and such searches area generally based only on reasonable suspicion that the search will turn up information indicating that the student has violated the law or school rules.

The search, under the circumstances, should not be excessively intrusive, taking into consideration the age and sex of the student.

The Court upheld a requirement for random drug testing of students who wished to participate in athletic programs.

There was a legitimate need for the testing and the testing was done in an indiscriminate manner.

The interest of the state outweighed the relatively limited privacy interest invaded.

The warrantless, suspiciousness testing of blood, breath and urine of public employees for evidence of drug or alcohol use was upheld by the SC.

To permit such tests there must be a significant link between the employees job performance and the need to test for drugs.

Care is required to guard the personal dignity and privacy of the tested employee.

A standard condition of parole release agreement is that the parolee is subject to being searched at any time without a warrant and with no requirement for PC.

Generally fo9r a search based on this condition to be admissible, the search must be directly an closely related to a parole supervision purpose.

Not all probation agreements contain a search condition.

If there is no search condition, the normal rules of search and seizure apply.

If there is a search condition, the terms of the condition must be followed to justify the search on the basis of the condition.

A person being jailed or already in confinement may be searched without a warrant if it is reasonably necessary to provide for the security of the institution and the public.

The SC stated in US v. Palmer, the Prisoner has no reasonable expectation of privacy in a prison cell.

Prior to 9-11-01, the courts upheld the reasonableness of subjecting anyone who travels on an airplane to search by metal detectors and x-ray equipment before the person is allowed to board the plane.

Since 9-11, the courts have expanded this broad search authority to include persons. There are 3 reasons:

It is necessary to prevent hijacking and bombing

The passenger "consents" to the search as a condition of air travel

The intrusion is limited only to a search for weapons or explosives.

Federal rules do not recognize an expectation of privacy in business, financial, telephone, and post office box records.

Accordingly, no warrant is required to search these records. Many states do require warrants.

A person may waive his or her constitutional rights and consent to a search.

To constitute consent, there must be a voluntary, duress free permission to search.

The question of whether the consent was voluntary depends on all the surrounding circumstances.

There is no requirement that police advise a person of their constitutional rights prior to obtaining permission to search.

An undercover officer may deceive a person regarding his or her identity when obtaining consent to enter a home.

The fact that the consent was given by mistake or as the direct result of police deception does not make the entry unlawful unless the deception is unreasonably fraudulent—misplaced trust doctrine.

Consent given based on the officer’s false statement that he had a warrant was not a valid consent search.

Effective consent may be given only by the suspect or someone who possesses common authority to the premises or effects in question (co-occupant).

Common authority involves the mutual use or control of the property.

For example, a wife or live-in girlfriend can give consent to search a drug dealer’s home.

At a suppression hearing, Burton’s counsel claimed that Burton had withdrawn his consent and thus the search was illegal since there was no probable cause to search.

The court disagreed.

The court held that to be an effective withdrawal of consent, there must be an unequivocal conduct that is inconsistent with the consent to search previously given.

The police tried to use hyppolite’s refusal to consent to a search to establish PC.

The court ruled that refusal to consent could not be used to establish PC—that would destroy the protections of the Fourth Amendment.

What good is a right that is taken away the moment you invoke it?

The defendant Morning and a person named Leon-Yanez shared the same house.

A federal agent asked Morning to consent to a search of the house.

She said she’d prefer they get a warrant.

The agent then got permission to search the house form Leon-Yanez.

Since Leon-Yanez lived there, he could give permission to search the common areas of the house.

The scope of a consent search is limited by the physical bounds for which the consent was granted.

A consent search given by a third party does not depend on whether the third party had authority to give consent.

What matters is the apparent authority of that third party.

When the person actually giving the consent had no authority to do so but told the police she lived there and had a key, the police mistake was reasonable.

In the area of technological information gathering and surveillance, there are no clear general rules. Each activity must be examined separately to determine if the activities are protected by the Fourth Amendment.

A pen register is a device that records all numbers dialed from the monitored telephone, whether or not the call is complete.

The police may install a pen register on a targets telephone without a warrant.

The rationale is that a person has no legitimate privacy interest in information that he or she voluntarily conveys to another.

The caller assumes the risk that when he or she calls a number that the other person or the telephone company will furnish the fact of the call to the government.

In US v. Karo, the police used a beeper to follow the movements of an ether drum as Karo transported it to and through various houses.

The court held that the monitoring of property in public was legal, but when the property was withdrawn from public view into a home, then there was a reasonable expectation of privacy—a search.

In Riley, the court held that a helicopter sighting of contraband was legal.

In this case the helicopter was flying at 500 ft.

The court, however, hinted that it may have reached a different decision of the surveillance revealed "intimate details" connected with the home.

A defendant cannot raise the Fourth Amendment objection unless he or she demonstrates that his or her rights under the amendment were violated.

For example, the police may violate Edward's rights to obtain evidence that may be used against Thomas as long as Thomas's rights were not violated.

The supreme court held that a person does not have standing to object to an unreasonable search or seizure merely because he was the target or focus of the police activity.

The court decided that the capacity of a person to contest a search—standing—depends on whether the person who claims the protection of the 4^th had a legitimate expectation of privacy in the area searched.

As noted earlier, the Katz decision defined a search in terms of someone having a reasonable expectation of privacy.

Rakas requires that person to be the defendant.

Did Defendants take measures to ensure their privacy?

Was the item in plain view?

Was the area searche din a private dwelling or within curtilage?

Was the defendant legitimately on the premises searched?

Did the defendant have exclusive control over the area searched?

In the Olson case, the defendant was an overnight guest in the house that was searched.

The court held that because of his status as an overnight guest, he had a right to a reasonable expectation of privacy although he was not the sole occupant of the house at the time of the search.

The court concluded that a person does not have standing to raise a 4^th amendment claim merely because the seized evidence was obtained unlawfully from a co-conspirator.

The two most frequent situations in which the police are allowed to search without a warrant but with probable cause are

searches under exigent circumstances

Exigent circumstances exception is based on the idea that in some situations it is impractical for the police to get a warrant.

It would be impractical to get a warrant

The emergency that justifies the warrantless search also defines the limits of the search

The PC requirement must still be examined—the police must either meet PC or meet one of the exceptions to the requirement for PC

For example, the police need to take a blood sample for the presence of alcohol, and if they wait for a warrant, the alcohol will be metabolized.

A person’s body constitutes a "significantly heightened privacy"—there must be justification to believe that the intrusion will result in evidence.

The intrusion must also be in accordance with accepted medical practice—no getting blood with your pocket knife on the side of the highway

The courts have upheld the warrantless searches of vehicles based on the premise that there is a lesser expectation of privacy in a vehicle than in a home or office and that the mobility of the vehicle makes the logistics of obtaining a warrant more difficult.

In most situations, while the court have excused the warrant requirements, the police must establish the existence of PC.

Henry v. US: "the fact that the suspects were in an automobile is not enough."

Traffic of vehicle code violations will provide sufficient basis to detain a vehicle, as demonstrated in Baker.

The court upheld the search.

The traffic stop was not an illegal pretext stop to search for evidence of an unrelated crime.

Once the officer had identified one of the occupants and noticed the clothes, he had sufficient additional evidence to constitute PC to search the vehicle.

Normally a driver may be detained pursuant to a traffic stop only as long as is necessary to issue a citation or warn the driver regarding the traffic violation.

If upon stopping the vehicle, the officer discovers facts sufficient to constitute reasonable suspicion regarding criminal activity, the officer may then detain the vehicle and its occupants for investigation for a reasonable amount of time.

Unless prohibited by state law, if the officer has PC to search a vehicle, the officer may search any closed container found anywhere in the vehicle.

The automobile exception also applies to motor homes when operated on the highways—those on blocks are homes

When an arrest of occupants in a vehicle occurs, the officer may search the vehicle without PC.

If the vehicle has been abandoned, the owner loses his or her reasonable expectation of privacy and the abandoned vehicle may be searched by the police without PC

If a vehicle has been legally repossessed, an officer may search the vehicle with permission of the repossession agency.

In most cases, the officer must have at least a "reasonable suspicion" to stop a car on the public roads and detain its occupants.

According, roadblocks that indiscriminately stop cars are normally improper.

Exceptions to this rule are those general roadblocks established for a special purpose.

Many states permit sobriety checkpoints.

The SC decided that drug checkpoints on public streets violated the 4^th amendment.

The city had created roadblocks where the police would peer into cars to look for drugs.

An administrative Inventory occurs when the officers inventory the contents of a vehicle for purposes other than the search for evidence of a crime.

The police may inventory a vehicle that has been lawfully impounded

Most follow standard agency inventory procedures

Must be in good faith—not a pretext

May open any type of closed container

May be done only after the vehicle is in police custody—which can be on the side of the road

It is reasonable for the police to make a full-body search of an individual incident to a lawful arrest.

If the arrest is legal, PC is not needed to search the arrested individual.

The officer may search any area within the immediate control of the person.

Example: if the police arrest an individual in his home, the police may search that portion of the home within the immediate control of the accused—the room in which the arrest occurs.

The reason for this is to keep the suspect from grabbing a weapon or destroying Evidence

It does not matter that the search or the area occurs after the accused is under control and cannot possibly reach those areas nearby.

The fact that the accused was handcuffed and his or hear reach was impaired was held not to limit the permissible area of the search.

If a person is arrested in a car, police may search the entire passenger compartment of a vehicle.

The search incident to an arrest must be at the same location and the same time, or very nearly.

If the search comes before the arrest, it will not be a valid as a search incident to an arrest unless PC for the arrest existed at the time of the search.

Before 1968, there was a "bright line" between what was a search and what was not—either the 4^th Amendment was evoked or it was not.

The Terry case developed the concept of stop and frisk.

A stop and frisk is less than an arrest.

In Terry, an officer observed terry and two other men walking back and forth in front of a store.

The officer decided that the men were casing the store for a possible robbery.

When he approached them and asked for ID, he received only mumbled replies.

He then grabbed terry, turned him around, and patted him down.

The officer found a pistol in Terry’s pocket.

The court upheld the search and found no 4^th amendment violation.

Holding: a police officer may temporarily detain a person for questioning if the officer has a reasonable suspicion that criminal activity may be involved.

The officer may pat down for weapons only if the officer has the additional reasonable suspicion that the pat down is necessary for safety reasons.

A warrantless protective sweep of a residence by the police who are making a lawful arrest in the residence is considered to be legal if the police have reasonable suspicion that the residence may contain an individual who poses a danger to the officer or others.

The sweep should be quick and limited search of the premises and narrowly confined to cursory visual inspection of those places where an individual may be hiding.