CRIMINAL PROCEDURE. Peter Preiser*

Transcription

1 CRIMINAL PROCEDURE Peter Preiser* I. FOURTH AMENDMENT A. Warrants, Probable Cause And Special Needs, Beyond the Normal Need for Law Enforcement The single most important development in fourth amendment search and seizure procedure this year is the blossoming of a new comprehensive rationale to justify exceptions to the search warrant and probable cause requirements for a full-blown search by governmental authorities: the doctrine of "special needs, beyond the normal need for law enforcement." Twenty years ago the United States Supreme Court decided (or appeared to decide) that the warrant and probable cause requirements of the fourth amendment' should apply to routine administrative inspections.' However, in order to fashion a rationale for application of these two fundamental controls on police investigation to the broader context of other governmental activities, the Court had to perform surgery on the common understanding of both the warrant requirement and the concept of probable cause.' Ironically, that effort has spawned a rubric for sidestepping these same two safeguards (warrant and probable cause) in present-day government searches conducted for purposes other than enforcement of criminal statutes. This was first utilized by the Court for that purpose in 1985 to sustain the right of a high school official to search a student's purse" and it came to full bloom this Survey year in three Supreme Court opinions sustaining warrantless * Professor of Law, Union University, Albany Law School; Member of the New York Bar. 1. "[N]o Warrants shall issue, but upon probable cause." U.S. CONST. amend. IV, d Camara v. Municipal Court, 387 U.S. 523 (1967) (inspection of residential premises); See v. City.of Seattle, 387 U.S. 541 (1967) (inspection of commercial building). 3. The fourth amendment safeguards against unreasonable searches and seizures. Thus, as stated in Camara, the Court saw its judicial. task as entailing "translation of [this] abstract prohibition.., into workable guidelines" for the warrant and probable cause require~ ments, Camara, 387 U.S. at New Jersey v. T.L.O., 469 U.S. 325 (1985). 237

2 238 Syracuse Law Review [Vol. 39:237 searches on less than probable cause: O'Connor v. Ortega', New York v. Burger", and Griffin v. Wisconsin 7 The Court's decision of twenty years ago, Camara v. Municipal Court, departed from the view that the fourth amendment was focused upon police invasions of privacy to acquire evidence for criminal prosecution, and its corollary that governmental invasions for administrative purposes impinged only upon more peripheral, less important fourth amendment concerns." Under that view, the warrant requirement was construed as a safeguard for the primary concern (searches for evidence of crime) and was inapplicable to routine administrative inspections. 10 Rejecting this notion, the Court in Camara opined that the fourth amendment is concerned with security and privacy and that these interests do not vary with the objective of the governmental invasion." Thus, an exception to the warrant requirement should not depend upon the purpose of the search, but rather upon whether it is reasonable to dispense with the need for a warrant." The Court then addressed the argument that the public need for the inspection makes it reasonable to recognize an exception to the warrant requirement, and it answered that contention by observing that the reasonable method of serving the public need is to permit a warrantless search "[where] the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search."13 This formulation, developed to show that warrants are appropriate even where the search is not aimed at acquisition of criminal evidence, is the one the Court now applies in the cases to be covered herein to support 5. O'Connor v. Ortega, 107 S. Ct (1987) (supervisor's search of a public employee's office, desk and file cabinets), 6. New York v. Berger, 107 S. Ct (1987) (police search of an automobile junkyard pursuant to a regulatory statute). 7. Griffin v. Wisconsin, 107 S. Ct (1987) (probation officer's search of a probationer's home) U.S. 523 (1967). 9. Frank v. Maryland, 359 U.S. 360, (1959). 10. See id. As stated by one commentator: "The practical effect of the priority of interests as announced in Frank was that the reach of constitutional protections regarding search depended upon whether the search was part of a criminal investigation which might lead to prosecution." W.R. LAFAVE, SEARCH AND SEIZURE 10.1(a) (2d ed. 1987). 11. The Court remarked: "It is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior." Camara, 387 U.S. at Id. at Id. at 533.

3 1988] Criminal Procedure 239 the holdings that warrants are not necessary for the searches made. Turning to the issue of probable cause, the Court recognized the incompatibility of the textual requirement of probable cause for a warrant" with the justification for a routine administrative inspection (where there need not even be suspicion of a violation), and therefore it reformulated the requirement of probable cause by converting that term to a surrogate for "the constitutional mandate of reasonableness."" It then observed that "unfortunately, there can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails,"' and found that the need to search could be shown by means other than knowledge of a specific unlawful circumstance or condition.'7 This new balancing test-the need to search versus the invasion which the search entails-was applied by the Court the very next year in an entirely different context-the constitutionality of "stop and frisk" procedures (the socalled "Terry" detention)'8-and has been applied generally to measure the legitimacy of brief, limited invasions on less than probable cause from that time to the present.'8 However prior to 1985 it never has been applied in the context of a full scale search on less than probable cause! In 1985 the Court decided New Jersey u. T.L.O. 21 and applied both of the tests formulated in Camara to determine whether a full-scale investigatory search of a high school student by a school official violated her fourth amendment rights. The student, T.L.O, together with a companion, was reported by a teacher for smoking in the lavatory. The two were taken before an assistant vice principal and, in response to his questioning, the companion admitted the violation. T.L.O., however, denied she had been smoking and claimed that she did not smoke at all. The official then demanded that T.L.O. hand over her purse and, when she complied, he opened it, found a pack of cigarettes, confronted her with same, and accused her of having lied to him. In the course of removing 14. See US. CONST. amend. IV, d Camara, 387 U.S. at [d. at [d. 18. See Terry v. Ohio, 392 U.S. 1, (1968), 19. See TL.O., 469 U.S. at (Brennan, J., dissenting), 20. [d U.S. :325 (1985).

4 240 Syracuse Law Review [Vol. 39:237 the pack of cigarettes from her purse, he noticed a package of cigarette rolling papers, which, in his experience, were associated with use of marijuana. Suspecting that a closer examination of the purse might yield further evidence of drug use, he searched it thoroughly and found evidence that implicated T.L.O. in drug dealing and led to her adjudication as a juvenile delinquent for that conduct. The Court, after holding that the fourth amendment applies to searches of students by school authorities,22 proceeded to the problem of how to handle the warrant and probable cause components. Explaining that the warrant requirement is "unsuited to the school environment," the Court pointed out that "requiring a teacher to obtain a warrant before searching a child suspected of an infraction of school rules (or of the criminal law) would unduly interfere with the swift and informal disciplinary procedures needed in the schools,"23 and then announced: "Just as we have in other cases dispensed with the warrant requirement when 'the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search,' Camara u Municipal Court, we hold today that school officials need not obtain a warrant before searching a student who is under their authority."" The Court then moved on to the probable cause requirement, and, after noting that "probable cause is not an irreducible requirement of a valid search, ".. proceeded to apply the standard of reasonableness articulated in the Camara balancing formulation 2 as refined III Terry u. Ohio 27 to arrive at the following formulation: Determining the reasonableness of any search involves a twofold inquiry: first, one must consider 'whether the... action was justified at its inception,' Terry u. Ohio, 392 U.S., at 20; second, one must determine whether the search as actually conducted 'was reasonably related in scope to the circumstances which justified the interference in the first place.'" Analyzing the facts of the case in terms of the test articulated, the 22. Id. at Id. at Id. (citation omitted) Of course in Camara the Court did not dispense with the warrant requirement. 25. Id. 26. "balancing the need to search against the invasion the search entails," Id. at See supra note U.S. at 341.

5 1988] Criminal Procedure 241 Court found that reasonable suspicion justified the action taken. Before turning to the cases decided this Survey year that build upon this, it is necessary to note Justice Blackmun's concurring opinion. 2 ' He was troubled by the implication in the Court's opinion that the Camara balancing test is the rule rather than the exception. For Justice Blackmun, the balance was prescribed by the Framers of the Constitution in the requirement that a search is reasonable only if supported by a judicial warrant on probable cause. 30 While he agreed that these safeguards should not be required in the present case, he maintained that justification for dispensing with them had to be governed by a discernible principle, which he defined as follows: "Only in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable, is a court entitled to substitute its balancing of interests for that of the Framers."31 This "special needs" rationale has now been adopted by the Court as an overall governing justification for warrantless searches on less than probable cause. Moreover, as one looks at the three cases decided this year, it is difficult to draw a substantive distinction between the pre-camara view that the warrant and probable cause requirements apply basically as safeguards in the context of criminal investigatory searches" and the present view that the warrant and probable cause requirements need not apply where there are special needs beyond the normal need for law enforcement. In the first of the three cases, O'Connor v. Ortega," the Court dealt with the search of a state employee's office, desk, and file cabinets by a team of fellow employees designated by an administrative superior to conduct an investigation of the employee's work-related activities. The employee had been placed on leave and was, at the time, barred from the employer's premises. All nine members of the Court recognized a fourth amendment expectation of privacy in some of the areas and effects searched; thus the basic issue was whether probable cause and a warrant are required." 29. Id. at Id. 31. See id. at 351 (emphasis added), 32. See supra notes 9-10 and accompanying text S. Ct (1987). 34. See id. at

6 242 Syracuse Law Review [Vol. 39:237 Here the justices focused upon the new "special needs, beyond the normal need for law enforcement" rubric to arrive at a decision." A four justice plurality opinion by Justice O'Connor 36 held that "special needs" should be determined by applying the Camara balancing tests to both the warrant and the probable cause requirements, substantially as the Court had done in deciding the T.L. O. case.'7 The plurality concluded that "requiring an employer to obtain a warrant whenever the employer wished 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 unduly burdensome."" It then turned to the question of probable cause and opined that employer intrusions into offices and office furniture "involve a relatively limited invasion of employee privacy," because the areas invaded "are provided to the employees for the sole purpose of facilitating the work of an agency," and "[tlhe employee may avoid exposing personal belongings at work by simply leaving them at home."" Balancing "the substantial government interests in the efficient and proper operation of the workplace" against the limited invasion that such searches entail, the plurality held that "special needs, beyond the normal need for law enforcement" justify application of "the standard of reasonableness" rather than probable cause! A concurring opinion by Justice Scalia generally agreed with this approach." He held, however, that the identity of the searcher is irrelevant." In his opinion, it makes no difference whether the searcher is the employer or a police officer: "government searches to retrieve work-related materials or to investigate-searches of the sort that are regarded as reasonable and normal in the private employer context-do not violate the fourth amendment."" Thus, a majority of five justices have approved warrantless invasions of employee privacy by governmental employers for work-related purposes, which includes work-related misconduct when there are reasonable grounds for 35. [d. at See id. at See id. at [d. at [d. at [d. 41. [d. at See id. 43. Id. at 1506 (emphasis added).

7 1988] Criminal Procedure 243 suspecting that a search is necessary." A four justice dissent by Justice Blackmun, author of the "special needs" concept, took issue with the plurality's application of that test." He argued that the plurality had simply grafted the "special needs" language on to the analysis used by the Court in T.L:O" and had committed the same error he had criticized there. He pointed out that the "special needs" test was intended as a criterion of whether the court should proceed to balancing (rather than as a component of the balancing process itself) and that no special need was shown in the facts of the case at bar to justify balancing. 47 The second of the three cases, New York u. Burger! involved the warrantless search of an automobile junkyard by police officers who relied for their authority upon a statute that requires licensed vehicle dismantlers to: (a) maintain a book containing records of vehicles and parts in their possession; (b) produce the book for inspection upon request of an agent of the Commissioner of Motor Vehicles or of any police officer during regular and usual business hours; and (c) permit the agent or officer to examine any vehicles or parts of vehicles that are subject to the record keeping requirements and are on the premises.. The officers, assigned to the auto crimes division and detailed to inspect vehicle disillantlers' yards, entered defendant's yard where numerous vehicles and parts of vehicles were visible.' Upon inquiry, they were advised by the defendant that he was not licensed to dismantle vehicles and that he did not have the required record book of vehicles and parts." An officer then told him that they were going to make an inspection 44. Due to the fact that there was individualized suspicion of misconduct in this case, as there was in T.L.D. see 469 U.S. at 325, the Court did not consider here, or there, whether individualized suspicion is an essential element of the standard of reasonableness. See O'Connor, 107 S. Ct. at O'Connor, 107 S. Ct. at See T.L.O.,489 U.S. at The dissent noted that the employee was on administrative leave and was not permitted to enter the employer's grounds. Thus "[t]here was no special practical need that might have justified dispensing with the warrant and probable cause requirement." O'Connor, 107 S. Ct. at 1511 (Blackmun, J., dissenting). 48. See Burger, 107 S. Ct (1987). 49, N.Y. VEH, & 'fraf. LAW 415-a(5) (McKinney 1986 & Supp. 1988); see Burger, 107 S. Ct. at See Burger, 107 S. Ct. at !. See id.

8 244 Syracuse Law Review [Vol. 39:237 pursuant to the section in question and, as a result thereof, they discovered stolen property.6' The New York Court of Appeals held that, regardless of the junkyard's status as a closely regulated business," the statute violates the fourth amendment because it authorizes warrantless "searches undertaken solely to uncover evidence of criminality and not to enforce a comprehensive regulatory scheme. "54 Thus it is, "in reality, designed simply to give the police an expedient means of enforcing penal sanctions for stolen property. "56 Acknowledging that the statute contains some suggestion of an administrative scheme by imposing licensing and recordkeeping requirements and authorizing unannounced visits to inspect books and records, the Court of Appeals nevertheless found a significant difference, because the statute at issue here: (a) unlike other administrative statutes, is not limited to inspection by administrative agents but includes inspection by police; and (b) permits a search of the premises notwithstanding the absence of the required records against which the findings of the search could be compared. 6 The Supreme Court reversed. Justice Blackmun, writing for the Court, began the analysis by noting that the exception to the warrant requirement for closely regulated business is justified as reasonable on the ground that it is a "special need" search. 67 He then recast the three criteria that have served to define the validity 52. See id. 53. See id. at The Court has recognized that "legislative schemes authorizing warrantless administrative searches of commercial property do not necessarily violate the Fourth Amendment," if the commercial property is "closely regulated," because in such cases the history of government oversight is such that there is no reasonable expectation of privacy. Donovan v. Dewey, 452 U.S. 594, 598 (1981); see also supra note 6 and accompanying text. 54. People v. Burger, 67 N.Y.2d 338, 344, 493 N.E.2d 926, 929, 502 N.Y.S.2d 702, 705 (1986). 55. [d. 56. A broader provision contained in the New York City Charter was invalidated at the same time. Id. However, since the Court found the inspection valid under the state law authorization, it did not consider the constitutionality of the City Charter provision. See Burger, 107 S. Ct. at 2644 n "[WJe conclude that, as in other situations of 'special need,' see New Jersey u. T.L.O., 469 U.S. 325, 353 (1985) (parallel citation omitted) (opinion concurring in the judgment), where the privacy interests of the owner are weakened and the government interests in regulating particular businesses are concomitantly heightened, a warrantless inspection of commercial premises may well be reasonable within the meaning of the Fourth Amendment." Burger, 107 S. Ct. at 2643.

9 1988] Criminal Procedure 245 of warrantless searches of closely regulated businesses by treating them as limitations upon the reasonableness of this type of search under the "special needs" doctrine" and proceeded to a comparison of the statute at issue with those criteria."' Finding that the statute meets those standards, he came at last to the objections held fatal by the New York Court of Appeals. GO Here he reasoned as follows: a state can address a problem by both administrative and penal measures that have the same ultimate purpose-e.g., control of automobile theft-but which have different subsidiary purposes and prescribe different methods of addressing the problem. 61 The statute in issue serves the legitimate regulatory "purposes of maintaining junkyards in the hands of legitimate-business persons and of tracing vehicles that pass through these businesses." 2 These aims are served not only by comparison of records kept by junkyard operators with their actual inventories, but also by conducting inspections when an operator fails to produce the required records. "Forbidding inspecting officers from examining the inventory in this situation would permit an illegitimate vehicle dismantler to thwart the purposes of the administrative scheme and would have the absurd result of subjecting his counterpart 58. In Donovan v. Dewey, 452 U.S. 594 (1981), the Court characterized the closely regulated business search as "an exception to the warrant requirement" [d. at 600. The Court described its prior opinions justifying the exception as: "[MakingJ clear that a warrant may not be constitutionally required when Congress has reasonably determined that warrantless searches are necessary to further a regulatory scheme and the federal regulatory presence is sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes." ld. The Court then went on to apply criteria for determining whether this test has been met. These were summarized in Burger as being: 1) a substantial government interest that informs the regulatory scheme pursuant to which the inspection is made; 2) warrantless inspections must be necessary to further the regulatory scheme; and 3) statutory provisions that inform the property owner that there will be periodic inspections for specific purposes which will be carefully limited in time, place and scope. See Burger, 107 S. Ct. at 2644 (citing Donovan v. Dewey, 452 U.S. 594 (1981». However, whereas in Donovan the three criteria were utilized to conceptually define the exception to the normal warrant requirement, in Burger the exception itself was conceptually broadened-i.e., under the notion of special needs-and the three criteria were applied as a limitation upon the reach of that more general doctrine in the context of administrative inspection searches. See Burger, 107 S. Ct. at See id. at See id. at See id. 62. See id. at 2650.

10 246 Syracuse Law Review [VoL 39:237 who maintained records to a more extensive search. ".3 The fact that an inspector may discover evidence of crime in the course of an administrative search does not render the search suspect;"' and the fact that police officers are authorized to conduct the search is not fatal either, because police have "numerous duties in addition to those associated with traditional police work." Indeed, "[s]o long as a regulatory scheme is properly administrative, it is not rendered illegal by the fact that the inspecting officer has the power to arrest individuals for violations other than those created by the scheme itself."" Two important new developments emerge from this opinion. First, the previously recognized exception to the warrant requirement for closely regulated businesses now has gained a doctrinal justification by virtue of its inclusion under the umbrella of "special needs, beyond the normal need for law enforcement." Second, and more importantly, the application of the "special needs" doctrine to a full-blown search has been expanded from the context of situations where there is a nexus between the operational responsibilities of the searcher and the place where the search takes place-e.g., a school official searching at a school"7 and an employer searching offices and desks at a workplace for work-related purposes "-to a new category: searches that serve regulatory purposes; as opposed to those aimed at enforcing penal laws through criminal prosecution and sanctions." This, it is submitted, looks somewhat as if the Court has returned to a position close to the one it rejected in Camara. The pre-camara position, articulated in Frank u. Maryland, was that the warrant clause did not apply to administrative inspections, because they are not conducted for the purpose of acquiring evidence for criminal prosecution.' In Camara, the Court rejected this criminal-noncriminal distinction,71 and now the Court returns to it in the context of closely regulated businesses. There is of 63. See id. at 265l. 64. See id. 65. See id. 66. See id. 67. See New Jersey v. T.L.O., 469 U.S. 325 (1985). 68. See O'Connor v. Ortega, 107 S. Ct (1987). 69. See Burger, 107 S. Ct. at See supra notes 9-10 and text accompanying note See supra note 11 and text accompanying notes

11 1988] Criminal Procedure 247 course a vast difference between inspection of a private dwelling-as was at issue in Frank and Camara-and inspection of a closely regulated business-as was at issue in Burger. Indeed, as Justice Blackmun pointed out in Burger, the inclusion of closely regulated businesses in the category of places subject to "special needs" warrantless regulatory searches rests upon the fact that the owner or operator of such a place has a reduced expectation of privacy.72 Thus, if diminished expectation of privacy is to be a sine qua non for negation of Camara, the "special needs" justification simply and logically substitutes that element-reduced expectation of privacy-for the pre-camara element-lesser protection against noncriminal searches-in the case of administrative inspection invasions. But, if reduced expectation of privacy is not required for application of the "special needs" doctrine to administrative invasions, then the Court will have moved much closer to its pre Camara position. That next step was taken in Griffin u. Wisconsin. 73 Here the Court dealt with a search conducted pursuant to a state probation agency regulation that permits a probation officer to make a warrantless search of a probationer's home, provided a supervisor approves and there are reasonable grounds to believe contraband will be found. 7 ' The state's highest court had upheld the regulation and had found that the justification for the search, a "tip from a police detective that [the probationer] 'had' or 'may have had' an illegal weapon at his home," sufficed as "reasonable grounds."" The Supreme Court affirmed, reserving the question of whether the search would have been valid absent the regulation. 7 Thus, the issue was whether the regulation, as interpreted by the state's highest court, satisfies the fourth amendment's requirement of reasonableness. 77 If it does, then a search carried out pursuant to its provisions satisfies the fourth amendment. The analysis commenced with the premise that "[a] probationer's home, like anyone else's, is protected by the fourth 72. Burger, 107 S. Ct. at See Griffin v. Wisconsin, 107 S. Ct (1987). 74. See id. at See id. at i6. See id. at '77. See id.

12 I I 248 Syracuse Law Review [Vol. 39:237 amendment's requirement that searches be 'reasonable'."7. The Court, however, immediately noted that, although this protection usually includes a warrant based upon probable cause, "we have permitted exceptions when 'special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.' "7. Then, heeding the point made by Justice Blackmun in O'Connor u. Ortega (dissenting),' the Court proceeded to determine whether probation supervision is a "special need" that permits deviation from the warrant and probable cause requirements. 8l Finding that probation supervision "is a 'special need' of the State permitting a degree of impingement upon privacy that would not be constitutional if applied to the public at large,"82 the opinion went on to the question of whether the permissible degree had been exceeded." Applying the two standards derived from Camara, the Court determined that: (a) the burden of obtaining a warrant would be likely to frustrate the governmental purpose behind the search, '4 and (b) there is a need for performing this sort of search on less than probable cause. so Four justices dissented.'" Justice Blackmun, joined by Justice Marshall,87 agreed that this was a "special needs" situation, but 78. [d. (emphasis added). 79. [d. at (citing New Jersey v. T.L.O., 469 U.S. 325 (1985); O'Connor v. Ortega. 107 S. Ct (1987); New York v. Burger, 107 S. Ct (1987)). 80. See O'Connor v. Ortega, 107 S. Ct. 1492, 1511 (1987); see also supra note 44 and accompanying text. 8!. See Griffin, 107 S. Ct. at [d. at [d. 84. Compare the Camara language in the text accompanying note 13, supra, with the following language in Griffin: "A warrant requirement would interfere to an appreciable degree with the probation system." Griffin, 107 S. Ct. at Substituting the Camara standard of "reasonableness" for the constitution's textual standard of probable cause, the Court found that a search based upon a policeman's unsubstantiated tip is reasonable due to the particular needs of the probation supervision function. More specifically, the Court opined that: (a) a probable cause requirement would reduce the deterrent effect of probation supervision; (b) probation officers usually have personal information about probationers that can be used for assessment of tips; (c) a requirement of probable cause would be unrealistic and destructive of the ongoing supervisory relationship (citing to O'Connor v. Ortega, 107 S. Ct (1987) and New Jersey v. T.L.O., 469 U.S. 325 (1985»; and (d) the necessity of having the ability to act before a probationer does damage to himself or society, because a probationer is in need of rehabilitation and is more likely than the ordinary citizen to violate the law. See Griffin, 107 S. Ct. at See id. at See id.

13 1988] Criminal Procedure 249 nevertheless maintained that a warrant should be required. 8 He pointed out that the closely regulated business inspection cases, such as Burger, are inapposite because they rest upon a diminished expectation of privacy for such enterprises. 8 In Justice Blackmun's view, the concession to "special needs" for this type of search should be met by lowering the level of suspicion required for a warrant-however not so far as it was lowered here. o Significantly, the majority criticized Justice Blackmun's solution on the ground of a hitherto unarticulated constitutional distinction between a "judicial warrant" and an "administrative warrant." ' Pointing out that Justice Blackmun would require the "judicial warrant" mandated by the Constitution and that such warrants cannot be issued on less than probable cause, ' the majority stated: While it is possible to say that Fourth Amendment reasonableness demands probable cause without a judicial warrant, the reverse runs up against the constitutional provision that 'no Warrants shall issue, but upon probable cause.' Amdt. 4. The Constitution prescribes, in other words, that where the matter is of such a nature as to require a judicial warrant, it is also of such a nature as to require probable cause. Although we have arguably come to permit an exception to that prescription for administrative search warrants, which may but do not necessarily have to be issued by courts, we have never done so for constitutionally man dated judicial warrants." Thus it appears that the warrant required by the Camara case is not the warrant contemplated in the warrant clause of the fourth amendment; and, if this be so, then reciprocally, the warrant clause of the fourth amendment does not apply to routine administrative inspections. What, then, has become of Camara? Has it been overruled sub silentio? Probably not. An administrative warrant still 88. See id. at [d. at [d. at Justice Brennan joined the dissent on the issue of the need for a warrant and on another issue dealing with the failure of the probation department to comply with the regulation. Justice Stevens wrote separately, stating simply that the information conveyed to the probation officer was not sufficient for a warrantless, non-consensual search of a private home. See id. at See id. at See id. 93. [d. at (footnotes omitted),

14 250 Syracuse law Review [Vol. 39:237 may have a role to play in determining whether or not particular invasions of privacy and security are reasonable. In other words, absent an acceptable substitute that makes the authority for the search as well as its purpose and scope clear to the citizen, ' or where the government cannot establish that "the burdeij'oloh, taining a warrant is likely to frustrate the governmental purpose behind the search," ' the Court may continue to require an administrative warrant to establish the reasonableness of the invasion. In summary, it appears that the "special needs" doctrine now serves as a key to unlock the warrant clause bar to. a warrantless search. It may be called into action simply by showing that the government has a need to search for a purpose other than acquisition of evidence to prosecute a crime. s Once that special need is found to exist, the Court will proceed to apply the Camara rationale to determine whether it is reasonable to permit the invasion: (a) without express authorization of a neutral and detached official-i.e., whether an administrative warrant is required; 7 and (b) on the basis of the circumstances-showing less than probable cause-asserted as justification therefor. Accordingly, it seems that the Court has come close to a return to the Frank u. Maryland position that the warrant clause of the fourth amendment applies only to invasions aimed at criminal law enforcement, and that it has used the rationale of the case that overruled Frank-i.e., Camara-to do so. Moreover, that 94. Examples of such a substitute would be: pervasive regulation; see New York v. Burger, 107 S. Ct. 2636, 2643 (1987); the right of the employer to search on its premises for work-related material; see O'Connor v. Ortega, 107 S. Ct (1987); or, as Griffin v. Wisconsin indicates, the supervisory relationship between a probationer and the probation agency; see Griffin, 107 S. Ct. at L 95. See Camara, 387 U.S. at 534; see also supra note 13 and accompanying text. 96. For example, probation "[s]upervision... is a 'special need' of the State permitting a degree of impingement upon privacy that wouid not be constitutional if applied to the public at large." Griffin, 107 S. Ct. at Although the Court has not expressly so stated, the distinction between administra~ tive and judicial warrants implies that, if an administrative warrant is required, the issuing official need not be a judicial officer and perhaps could be a supervisory employee in the agency seeking to make the inspection or search. See Griffin, 107 S. Ct. at 3170, n.5. Here it should be noted that at least for due process purposes, the Court has made it clear that a "neutral and detached" decision maker may be an employee of the agency that is charged with administering the function involved. See, e.g., Parham v. J.R U.S. 584, 607 (1979); Morrissey v. Brewer, 408 U.S. 471, 486 (1972); Goldberg v. Kelly, 397 U.S. 254, 271 (1970) U.S. 360 (1959). 99. See id. at

15 1988] Criminal Procedure 251 rationale has formed a bedrock for support of a general doctrine of warrantless searches. Thus, the reasoning used in Camara to demonstrate that a warrant and probable cause ought to be required for a routine administrative search is now the basis for dispensing with those safeguards in the very context to which the Camara opinion sought to extend them-i.e., searches for purposes other than the acquisition of criminal evidence. In passing, it should be noted that the Griffin holding itself will not affect present New York practice regarding searches of probationers and parolees (or of the premises in which they reside). The New York Court of Appeals has never interpreted either the federal or the state constitution as requiring a warrant for a search by a probation or a parole officer of the residence of a person under his supervision. The test in New York has been whether the search is rationally and substantially related to the officer's duty.loo Searches of probationers (as distinguished from parolees), however, are governed by a statute that requires a judicial search order based upon reason to believe the probationer has violated a condition of the sentence. lol B. Standing The Court of Appeals has established a new ground for standing in search and seizure suppression cases that resembles a narrow version of the old "automatic standing" rule recently abrogated under both federal constitutional and New York practice.,o2 A defendant will now be permitted to advance a suppression claim without regard to whether his personal right to privacy or security was invaded in cases where a charge of possession of a prohibited article is based upon defendant's proximity to the article at the 100. See, e.g., People v. Huntley, 43 N.Y.2d 175, 181, 371 N.E.2d 794, 797, 401 N.Y.S.2d 31, 34 (1977) See N.Y. CRIM. PROC. LAW (3) (McKinney 1982 & Supp. 1988); see also People v. Jackson, 46 N.Y.2d 171, 385 N.E.2d 621, 412 N.Y.S.2d 884 (1978) See People v. Millan, 69 N.Y.2d 514, 519, 508 N.E.2d 903, 516 N.y.s.2d 168 (1987). Under the automatic standing rule a defendant charged with a possessory crime was permitted to raise a fourth amendment challenge to a search without regard to whether his OWl\ right to privacy or security had been invaded. As the Court of Appeals observes, the rule was abrogated for federal constitutional purposes in United States v. Salvucci, 448 U.S. 83 (1980) and New York followed suit for state constitutional purposes in People v. Ponder, 54 N.Y.2d 160, 429 N.E.2d 735, 445 N.Y.S.2d 57 (1981).

16 252 Syracuse Law Review [Vol. 39:237 time it is discovered by the police.'o3 This new development was introduced without explanation in a memorandum late last year reversing the decisions of both the trial court and the First Department upon summary consideration of the appeal.'o, The defendant there, charged with possession of a weapon, challenged the lawfulness of the search of his companion that resulted in discovery of the weapon and the court simply observed: "Inasmuch as the People rely upon the discovery of the starter pistol on [the companion] as the basis for the arrest of defendant-that defendant constructively possessed the weapon concealed on [the companion's] person-defendant has standing to contest the frisk of [the companion]."'o. The court unveiled the rationale for this result in a full opinion this year in People v. Millan. los Here the police stopped a taxicab, ordered the three passengers out, searched the passenger compartment, and discovered a gun!07 The two lower courts, relying upon Rakas v. Illinois,'os held the passengers had no right of privacy in the area searched and therefore had no standing to contest the lawfulness of the police action!o. But the Court of Appeals found it unnecessary to address the question of whether a passenger in a taxicab has a right of privacy in the passenger compartment!'" It noted instead that the charge against defendant was founded solely upon the statutory presumption that the presence of a firearm in an automobile is presumptive evidence of its possession by all persons occupying that vehicle at the time it is found,'" and held that it simply "offends fundamental tenets of fairness inherent in New York criminal jurisprudence" to permit the People to "use the legal fiction of consttuctive possession to prosecute all passengers, conscious or not of the gun's existence, and yet deny those it accuses a right to question the actions of its agents in conducting the search. " See Millan, 69 N.Y.2d at 519, 508 N.E.2d at 905, 516 N.Y.S.2d at See People v. Mosley, 68 N.Y.2d 881, 501 N.E.2d 580, 508 N.Y.S.2d 931 (1986) Id. at 883, 501 N.E.2d at 581, 508 N.Y.S.2d at N.Y.2d 514, 508 N.E.2d 903, 516 N.Y.S.2d See id. at 517, 508 N.E.2d at 904,516 N.Y.S.2d at U.S. 128 (1978) See Million, 69 N.Y.2d at 518, 508 N.E.2d at , 516 N.Y.S.2d at 170. HO. See id. at 520 n.5, 508 N.E.2d at 906 n.5, 516 N. Y.S.2d at 171 n See id. at , 508 N.E.2d at 905, 516 N.Y.S.2d at 170; see also N.Y. PENAL LAW (3) (McKinney Supp. 1987). H2. See Millan, 69 N.Y.2d at 520, 508 N.E.2d at 906, 516 N.y.s.2d at 171.

17 1988J Criminal Procedure 253 The Millan reversal also was based upon an alternative holding which may be of even greater significance. The court held that a passenger in a vehicle has standing to contest police conduct if either the stopping of the vehicle or the passenger's removal from it is unreasonable.i13 In such case, the event or events immediately following the unreasonable conduct would be part of "one continuous chain of events" unless there were some factor "to show that the taint of the allegedly improper stop had become attenuated, that the gun would have been independently discovered or that for any other reason the gun was not 'come at by exploitation of that illegality.' "'14 Thus a passenger can avoid the effect of the RakaslI' holding, which denies standing due to lack of an expectation of privacy in the interior of the vehicle,li6 by challenging the stop or the order to get out and then showing that the discovery of the evidence is the direct result of that unreasonable conduct. C. Inevitable Discovery Inevitable discovery is one of the exceptions to the rule that evidence obtained by invasion of a defendant's rights will be suppressed to prevent its use to convict him of a crime. Under modern rationale, suppression is viewed as a judicially created remedy designed to deter agents of the sovereign from violating laws that protect the rights of citizens.li7 In order to make this remedy effective, it is applied not only to evidence garnered as a direct consequence of unlawful conduct (primary evidence), but also to evidence obtained as an indirect product of the illegality-i.e., evidence obtained as a result of knowledge imparted by unlawfully obtained information (secondary evidence).li6 Thus, the "high social cost" that results from suppression-"letting persons obviously guilty go unpunished for their crimes" -is accepted so that "the prosecution is not to be put in a better position than it would have been in if no illegality had transpired."ll9 However, in view of that cost, courts are careful to balance the scales so as to assure 113. See id. at , 508 NE.2d at ,516 N.Y.S.2d at [d. at 521, 508 N.E.2d at 907, 516 N.y.s.2d at See Rakas v. Illinois, 439 U.S. 128 (1978) See id. at Il? United States v. Calandra, 414 U.S. 338, (1974) See Wong Sun v. United States, 371 U.S. 471, (1963) Nix v. Williams, 467 U.S. 431, (1984).

18 254 Syracuse Law Review [Vol. 39:237 that "the prosecution is not put in a worse position simply because of some earlier police error or misconduct. "'20 Consequently, the evidence itself is not rendered inherently tainted by the unlawful means involved in its discovery. It simply is inaccessible to the extent required by the suppression remedy. Thus, if the prosecution can advance as a reason for lifting the bar of that remedy some circumstance that shows its application to the facts goes beyond the core objective of the remedy as a deterrent, the bar will be lifted. One such circumstance is "inevitable discovery," which entails a showing "by 'a very high degree of probability' that the evidence sought to be suppressed would have been discovered irrespective of the initial wrong."'2' In such case suppression would not merely return the prosecution to the position it would have been in absent the wrong; it would place the prosecution in a worse position because it would bar the use of evidence that would have been discovered anyway, without regard to the invasion of defendant's rights.'22 In People v. Stith,'2' the Court of Appeals adopted a significant limitation upon the inevitable discovery exception to the exclusionary rule. It held that the exception is not to be applied to primary evidence and thus limited its applicability to situations where evidence is discovered as a result of what was derived from the primary evidence-i.e., secondary evidence.'2. The case involved a truck that was stopped for speeding.'2. Having been asked to produce the registration, the driver was searching through piles of papers strewn about the cab when one of the officers became impatient, ordered the driver out of the cab, and entered the cab to conduct his own search.'2. In the course of that search the officer found a gun, and arrested the driver for unlawful possession of the samey7 A subsequent radio check revealed that the truck was stolen. '28 The defendant moved for suppression of the gun and 120. Id. at People v. Stith, 69 N.Y.2d 313, 318, 506 N.E.2d 911, 913, 514 N.Y.S.2d 201, 203 (1987) (citation omitted) See id. at 319, 506 N.E.2d at 915, 514 N.Y.S.2d at N.Y.2d 313, 506 N.E.2d 911, 514 N.Y.S.2d 201 (1987) See id. at , 506 N.E.2d at 914,514 N.Y.S.2d at See id. at , 506 N.E.2d at 912, 514 N.Y.S.2d at See id See id. at 317, 506 N.E.2d at 912, 514 N.Y.S.2d at See id., 506 N.E.2d at 913, 514 N.Y.S.2d at 203.

19 1988] Criminal Procedure 255 both the trial court and the Third Department applied the inevitable discovery exception, reasoning that a radio check would have been made in any event and that, upon learning the truck was stolen, the police would have arrested the defendant, impounded the truck, and discovered the gun in an inventory search." The Court of Appeals reversed, noting initially that although the inevitable discovery exception is well established law in this state,130 "our court has never applied the rule where, as here, the evidence sought to be suppressed is the very evidence obtained in the illegal search. "131 The court then reviewed its cases to illustrate that, in each situation where the exception had been utilized, the evidence involved was obtained indirectly as a result of leads or information gained from the primary evidence. I32 The court's rationale for a distinction that permits application of the exception to secondary evidence, but negates its use for primary evidence is based upon the fact that primary evidence is the direct product of the police misconduct. I33 Although it is true that there are recognized exceptions to avoid suppression of primary evidence, they are based upon circumstances that attenuate the connection between the illegal conduct and the evidence. Inevitable discovery is not one of these. Under that exception "it can never be claimed that a lapse of time or the occurrence of intervening events has attenuated the connection between the evidence ultimately acquired and the initial misconduct."134 Therefore, any application of the inevitable discovery exception to primary evidence effects "what would amount to a post hoc rationalization of the initial wrong" and would '" encourage unlawful searches in the hope that probable cause would be developed after the fact.' "135 II. FIFTH AMENDMENT (CUSTODIAL STATEMENTS) This was a quiet year for the New York Court of Appeals in the realm of custodial statements. The only significant holding in See ;d. at 319, 506 N.E.2d at 914, 514 N.Y.S.2d at See ;d. at 318, 506 N.E.2d at 913, 514 N.Y.S.2d at See ;d., 506 N.E.2d at ,514 N.Y.S.2d at See ;d. at , 506 N.E.2d at 914, 514 N.Y.S.. 2d at See ;d. at 319, 506 N.E.2d at 914, 514 N.Y.S.2d at See id See id. at , 506 N.E.2d at 914, 514 N.Y.S.2d at (quotation not attributed).

20 256 Syracuse law Review [Vol. 39:237 volved the question of whether Miranda warnings must be given to a suspect in custody before administration of physical coordination tests to determine whether he is intoxicated.''' The defendant argued that the use of the results of the tests violated his privilege against self-incrimination under both the federal and New York State constitutions.''' Rejecting this claim, the court pointed out that the privilege is limited to compulsion of testimonial or communicative evidence and that, in order to fall within this category, the tests would have to reveal defendant's subjective knowledge or thought processes."" These tests simply conveyed information to the police through observation of the defendant's bodily responses and their ability to compare them with the responses of a sober person."" The United States Supreme Court produced four significant new rulings dealing with the question of whether statements made to or in the presence of the police should be suppressed under one form or another of the claim that they were coerced. 140 In Colorado v. Connelly!" the Court considered the admissibility of homicide confessions, made both before and during custody, prompted by defendant's psychotic delusion that the voice of God had commanded him to either confess or commit suicide.''' Reversing the high court of Colorado, the Supreme Court held that both the confession and the Miranda waiver were not rendered involuntary by the compulsion caused through the delusion.''' The salient facts were as follows. The defendant walked up to a police officer on a street in Denver, Colorado and announced that he had murdered someone and wanted to talk about it.''' The officer advised him of the Miranda rights and defendant replied that he understood and still wanted to talk.'" A detective and a sergeant were summoned and they too advised defendant of the 136. People v. Hager, 69 N.Y.2d 141, 505 N.E.2d 237, 512 N.Y.S.2d 794 (1987) See id. at 142, 505 N.E.2d at 238, 512 N.Y.S.2d at See id See id See Arizona v. Mauro, 107 S. Ct (1987); Colorado v. Spring, 107 S.Ct. 851 (1987); Connecticut v. Barrett, 107 S. Ct. 828 (1987); Colorado v. Connelly, 107 S. Ct. 515 (1986) See Colorado v. Connelly, 107 S. Ct. 515 (1986) See id. at See id. at See id. at See id.