C HAPTER 2 F OURTH A MENDMENT OVERVIEW: T HE E XPECTATION OF P RIVACY CHAPTER OUTLINE

C HAPTER 2 F OURTH A MENDMENT OVERVIEW: T HE E XPECTATION OF P RIVACY CHAPTER OUTLINE COMMON LAW BACKGROUND INTERPRETING THE FOURTH AMENDMENT STATE ACTION DOCTRINE PROPERTY THEORY OF THE FOURTH AMENDMENT ELECTRONIC EAVESDROPPING DILEMMA FOURTH AMENDMENT REVOLUTION: FROM PROPERTY RIGHTS TO THE EXPECTATION OF PRIVACY APPLICATION OF THE EXPECTATION OF PRIVACY DOCTRINE SUMMARY HOLDINGS OF MAJOR CASES The law of search and seizure is based on the Fourth Amendment s prohibition of unreasonable search and seizures of persons, houses, papers and effects. It includes many topics because the amendment covers a large variety of functions performed by police and prosecutors, such as arrest, electronic eavesdropping, searches of homes and motor vehicles, and formally charging suspects with crimes. The Supreme Court has developed doctrines in each of these areas. Doctrines are sets of comprehensive rules, focusing on particular issues, that grow out of and are based on a series of specific case decisions. The following chapters, therefore, cover most of the important Fourth Amendment doctrines and subareas: state action, arrest, stop and frisk, plain view, consent, search warrant requirements, probable cause, standing, the hot pursuit warrant exception, the automobile search warrant exception, inventory searches, search incident to arrest, protective sweep, and special needs. The rules of each doctrinal area have to be understood in the context of the decisions and rules of specific cases. 19

20 CHAPTER TWO This chapter and the following chapters review cases and doctrines that provide a foundation for understanding the other search and seizure doctrines. This chapter provides a historical sketch of the development of the Fourth Amendment, and describes how the fundamental understanding of the protections it offers has shifted from one based to some degree on notions of property to one based more on the values of privacy and liberty summed up in the phrase expectation of privacy. Chapter 3 discusses the major remedy established by the Court the rule that incriminating evidence seized as the result of an illegal search and seizure cannot be allowed into evidence by a court to prove the guilt of the defendant. In a sense, the entire body of modern Fourth Amendment law, and each of its doctrines, rests on understanding these foundational matters. COMMON LAW BACKGROUND The Fourth Amendment consists of two clauses. The first, called the Reasonableness Clause, prohibits the government from committing unreasonable search and seizures of persons, houses, papers and effects. The second, or Warrant Clause, reads: 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. These protections grew out of English law, combined with the experience of North American colonists who rebelled against English rule. A major complaint of the 1760s was that British officers entered homes and warehouses to determine whether American colonists had paid taxes under the onerous Stamp Act. These intrusions violated the colonists profound legal and cultural attachment to land. English law from the Middle Ages on was based primarily on land. Land was the chief source of wealth and power until the Industrial Revolution. Owning land was a prerequisite to having political standing and the right to vote. Land was so important that it was believed a person s liberty was based on his or her ownership of an estate. The law of trespass was deemed a crucial protection of subjects. The English slogan, a man s home is his castle, summed up this mood. Until 1600, English law protected against private but not governmental intrusion into homes. This began to change as public opinion reflected the changing nature of English government from a royal autocracy to a constitutional monarchy. By 1760, unauthorized search by the government was recognized as the more serious problem. The illegality of government entry into private premises was made clear in an important decision of the English Court of King s Bench: Entick v. Carrington (1765). Agents of the Crown entered the homes of about fifty political opponents of George III to search for allegedly seditious pamphlets criticizing the King. The agents conducted thorough searches under the orders of high government officers. In fact, they were authorized to enter by warrants, not issued by judges, but by one of two Secretaries of State for England. The victims of the searches sued the agents, claiming they had no legal authority to break into private homes to look for the pamphlets. The court supported the homeowners and found that the searches were illegal they were not authorized by any specific act of Parliament or by judicial

FOURTH AMENDMENT OVERVIEW: THE EXPECTATION OF PRIVACY 21 warrant. The government argued that the searches were important to the security of the kingdom. The court dismissed this contention out of hand. Nor could the government rely on the argument that the government had conducted similar searches for almost a century because long usage does not make an illegal act legal. Entick secured the idea that the government (i.e., the executive branch) could not enter the homes and private premises of individuals at will. Having established the illegality of this kind of entry to search, the court found the agents liable to the homeowners and ordered them to pay civil damages in the amount of 100,000, an enormous sum. Although neither the royal government of England nor the person of the King could be sued because of the doctrine of sovereign immunity, the government did pay the award on behalf of its agents, and so Entick clearly placed a constitutional limit on unauthorized searches by the government. Part of the background of Entick is that criminal search warrants were a routine feature of English criminal procedure from early modern times. There were no organized police forces in England until the nineteenth century. When a constable sought to forcibly enter a home, he was treated as a private person and could be sued for trespass or illegal entry. In addition, constables, who were employed by judges, were seen as the dregs of society, and any attempt on their part to enter the home of a reasonably prosperous landowner was seen as an affront. Thus, for centuries, English judges issued search warrants to authorize constables to enter private homes to search for stolen goods. In the American colonies, English tax collectors generated ferocious unpopularity by entering the warehouses of merchants to discover whether they had paid taxes on their goods, as evidenced by stamps affixed to the goods. These new revenue laws were attacked physically (some tax collectors were tarred and feathered), politically (the colonists appealed to Parliament to repeal the taxes), and in court. The searches were authorized by broad search warrants called writs of assistance that allowed tax collectors to order local authorities to assist them. In 1761, leading Boston merchants went to court to demand that these writs be deemed in violation of fundamental English law (i.e., that they were unconstitutional). The writs were not based on individualized cause and had virtually no limits on what could be searched. Although the merchants lost the Writs of Assistance Case, the arguments inspired a young lawyer, future revolutionary, and future president of the United States, John Adams. After independence, Adams was the principal drafter of the Massachusetts Constitution, and his search and seizure provision became the model for the Fourth Amendment, which was drafted by James Madison. INTERPRETING THE FOURTH AMENDMENT As noted previously, the Fourth Amendment includes two clauses: the Reasonableness Clause and the Warrant Clause. The traditional way to understand the Fourth Amendment is that all searches conducted without a warrant (warrantless searches) are illegal and unconstitutional unless authorized by a judicial warrant. There are three traditional exceptions to this rule: An officer may search a person

22 CHAPTER TWO without a warrant after making an arrest (search incident to arrest), an officer may enter a premises without a warrant if the officer is chasing a person to arrest him or her (hot pursuit), and an officer may search a mobile vehicle that has been lawfully stopped without a warrant (vehicle or automobile exception). (These exceptions are explored in greater detail in later chapters.) In each exception, the officer must have probable cause for the search to be constitutional. Probable cause is a central concept that is studied in depth in Chapter 6. It is a level of evidence that must be held by a police officer (or a prosecutor or judge where relevant) that is sufficient to allow the officer to interfere with the liberty or privacy of a person, for example, by arresting the person or searching a package, automobile, or house. The understanding that warrantless searches are presumptively unconstitutional may be called the warrant-preference construction of the Fourth Amendment. The Supreme Court put it this way in Katz v. U.S. (1967): searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions. In U.S. v. Ventresca (1965), the Supreme Court expressed a preference for the search warrant by saying that in a close case it might uphold a search conducted under a warrant, but not a warrantless search, to encourage officers to apply to magistrates for warrants. This preference for a search warrant is based on (1) the long history of warrant use, (2) the Fourth Amendment s text, and (3) the policy and values that underlie the amendment. These values include personal autonomy, privacy, security, and freedom. The warrant-preference construction is believed to be a more liberal construction that tends to benefit the liberty of individuals. An alternate reading of the Fourth Amendment, the reasonableness construction, argues that the amendment s precise words do not require a search warrant. At rock bottom, the Supreme Court has ruled that every search or seizure must be reasonable. Under this construction, the Court held in Terry v. Ohio (1968) that a police officer can forcibly stop a person traditionally an arrest on evidence that does not rise to the level of probable cause. Probable cause is the evidentiary standard required in the Fourth Amendment for lawful warrants and has always been deemed the only proper basis for a lawful arrest. The Supreme Court got around this standard in Terry by redefining a temporary investigative stop as a governmental intrusion that is less than an arrest. The proponents of the reasonableness construction have never gone so far as to say that a search warrant is not usually required to authorize the search of a home. The reasonableness construction, however, has been advanced by a conservative Supreme Court in the years since 1970, to uphold a broad variety of warrantless searches and seizures that tend to favor the interests of the state over those of the individual. STATE ACTION DOCTRINE The Fourth Amendment applies only to the acts of government officials. A private person who enters the home of another may have committed a crime (e.g., breaking and entering) or a civil trespass but has not violated the owner s constitutional rights.

FOURTH AMENDMENT OVERVIEW: THE EXPECTATION OF PRIVACY 23 Likewise, a private person who detains or hits another person may be guilty of a crime (e.g., kidnapping, assault) or a civil tort (e.g., wrongful imprisonment, battery) but has not breached the Fourth Amendment. The provisions of the Bill of Rights were designed to limit the power and excesses of the government and its agents. Prior to the twentieth century, this distinction made little difference: A government officer who violated a resident s constitutional privacy could only be sanctioned in law by the same remedies as victims of torts committed by private persons a civil lawsuit for trespass asking for money damages (see Chapter 22). In 1914, the Supreme Court established the exclusionary rule for federal cases. That is, a court could not allow evidence seized in violation of the Fourth Amendment to be introduced into a trial to convict a defendant. (The exclusionary rule is discussed in detail in Chapter 3.) With the establishment of the exclusionary rule, it became important to distinguish between a private trespass and a Fourth Amendment violation by a state agent. Where a private person commits a trespass or burglary and obtains incriminating evidence, the government may have that evidence admitted at trial to convict the person who owned or possessed the incriminating goods (e.g., contraband such as drugs or stolen property). This rule was established in Burdeau v. McDowell (1921) shortly after the Court established the exclusionary rule. McDowell was a corporate manager fired for fraud. The company officers entered McDowell s private office, forced open his desk and safe, and found incriminating papers that linked McDowell to a fraudulent scheme. McDowell s secretary testified that the furniture in his private office belonged to him. The papers, obtained by what seemed to be a trespass to private property, were turned over to the U.S. Department of Justice, which planned to indict him. The Supreme Court ruled that the papers obtained by the company s officers could be used by the government to prosecute McDowell. The Court made it clear that no official of the Federal Government had anything to do with the wrongful seizure of the petitioner s property. It said that the protection of the Fourth Amendment applies to governmental action. Its origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies. McDowell could sue the company and its agents for trespass, but he had no claim to exclude the evidence from his prosecution because there was no invasion of the security afforded by the Fourth Amendment against unreasonable search and seizure, as whatever wrong was done was the act of individuals in taking the property of another. A number of lower court cases have ruled that where a private person acts as a proxy for the government, or on the command of law enforcement officers, state action exists, and the evidence is not admissible to prosecute a defendant. However, a simple request by a police officer for evidence that might be incriminating does not rise to the level of state action. In Coolidge v. New Hampshire (1971), a man was taken into custody on suspicion of committing a murder. That evening two police investigators went to Coolidge s home to speak with his wife. She admitted them voluntarily. They had no search warrant. In the course of their discussion, they

24 CHAPTER TWO asked whether Coolidge had any guns, and she said, Yes, I will get them in the bedroom. After further discussion, the police asked if they could take them and some clothing for testing; Mrs. Coolidge agreed and was given a receipt. The Supreme Court held, on these facts, that Mrs. Coolidge did not act as an instrument or agent of the state when she produced her husband s belongings. She was probably concerned to show that she had nothing to hide, but there was no misconduct on the part of the officers in exploiting this concern. [T]here is nothing constitutionally suspect in the existence, without more, of these incentives to full disclosure or active cooperation with the police.... [I]t is no part of the policy underlying the Fourth and Fourteenth Amendments to discourage citizens from aiding to the utmost of their ability in the apprehension of criminals. Also, these facts did not show that the officers conducted a search and seizure. If they had, a search warrant or subpoena would have been required to lawfully seize the guns and clothing. The Supreme Court has provided guidelines for police action when a private party turns suspicious evidence over to the police. When private individuals turn over suspicious items to police agents, the police may subject the items only to minimal investigation before requesting a search warrant. In one such case, the Federal Bureau of Investigation (FBI) was given films, not known to be pornographic, from an innocent, mistaken recipient. The FBI agents proceeded without a warrant to screen the films to determine their content. This screening was held to be state action because it went beyond what the private parties saw before turning over the evidence and was determined inadmissible (Walter v. U.S., 1980). In contrast, in U.S. v. Jacobsen (1984), four ziplocked plastic bags of a white powder were discovered by Federal Express employees in a damaged package. Officers of the Drug Enforcement Agency (DEA) were called in. One officer took a trace amount on the end of a knife from each of the four bags and conducted a chemical field-test that indicated the presence of cocaine. Other agents arrived and again conducted a second test. The packages were rewrapped, and the agents applied for a search warrant. The initial opening of the package was done by private persons. The warrantless examination of the package by DEA agents, which simply confirmed that the packages contained white powder, was proper because it was not a significant expansion of the earlier private search made by the FedEx employees. This was also true of the field testing. A chemical test that merely discloses whether or not a particular substance is cocaine does not compromise any legitimate interest in privacy. Possession of cocaine is illegal and determining that the powder is something else is not a further invasion of the person s privacy of the package, which had been opened by the action of private persons. Thus, this evidence was admissible. PROPERTY THEORY OF THE FOURTH AMENDMENT For many years Fourth Amendment law was tied to property concepts, especially the idea that a search and seizure involved a physical trespass onto a person s constitutionally protected area. This concept was based on traditional practice and on

FOURTH AMENDMENT OVERVIEW: THE EXPECTATION OF PRIVACY 25 the words of the Fourth Amendment, protecting persons, houses, papers and effects from unreasonable search and seizure. Yet, this thinking created problems when the Supreme Court in Olmstead v. U.S. (1928) held that wiretapping did not constitute a search and seizure. This withdrew constitutional protection from a vital area of privacy and caused many to understand that the Fourth Amendment did not protect all privacy interests but only those linked to property rights. As noted in the previous section, the Supreme Court established the exclusionary rule that illegally seized evidence cannot be used to convict a person in 1914 (Weeks v. U.S.) and confirmed the rule a few years later (Silverthorne Lumber Co. v. U.S., 1920) (see Chapter 3). Although the Weeks and Silverthorne cases seemed to indicate that what is important in Fourth Amendment cases is not the precise issue of claims to property itself, but the underlying policy of protecting the privacy and liberty rights of persons against improper governmental intrusion, the foundation of this area of law, the notion that a man s home is his castle, seemed to ground the Fourth Amendment in property rights. This idea was strengthened by the creation of the so-called mere evidence rule in Gouled v. U.S. (1921). In this case, search warrants were issued to seize papers that were not the direct fruits of the crime or an instrument used to commit the crime, but were only evidence of Gouled s fraudulent conspiracy. The Court made a common law rule, the mere evidence rule, part of the Fourth Amendment exclusionary rule by holding that these papers could not be admitted into evidence. The theory was that a person s property, even if it was evidence of a crime, was protected from seizure by the police unless it was the fruit of the crime, a weapon or instrumentality used to commit the crime, or contraband. The mere evidence rule showed that the Court at that time saw the rights protected by the Fourth Amendment as essentially resting on property. When the mere evidence rule was overturned in Warden v. Hayden (1967) (discussed later in this chapter), it signaled that the Fourth Amendment was no longer seen as resting on property interests, but rather on the right to be free from unwarranted interference in personal privacy and liberty by government officers. ELECTRONIC EAVESDROPPING DILEMMA The theory that the Fourth Amendment was based on property interests was at the heart of the Supreme Court s wiretapping decision of Olmstead v. U.S. (1928). Olmstead, a large-scale bootlegger, was convicted of violating the national prohibition law. Federal law enforcement agents set up a wiretap on a telephone line that ran between Olmstead s office and house, and overheard conversations for a period of months that were transcribed and admitted into evidence to convict him. No warrant was obtained to authorize the tap. Wiretapping was a state crime in Washington, where the investigation occurred. The agents never entered Olmstead s house or office; the tapping was performed on outdoor telephone lines. The Supreme Court ruled that wiretapping was not a search as contemplated by the Fourth Amendment.

26 CHAPTER TWO There was, therefore, no constitutional violation, and the evidence was admissible. The majority opinion of Chief Justice Taft noted that the constitutional exclusionary rule established in 1914 (discussed in Chapter 3) was an exception to the common law rule that allowed the in-court use of evidence against a criminal defendant, even if it was obtained by a trespass or criminal means. A major component of the majority s reasoning was that no violation of a person s Fourth Amendment rights occurred unless there has been an official search and seizure of his person, or such a seizure of his papers or his tangible material effects, or an actual physical invasion of his house or curtilage for the purpose of making a seizure. Also, There was no searching. There was no seizure. The evidence was secured by the use of the sense of hearing and that only. There was no entry of the houses or offices of the defendants. In other words, a search and seizure involved a gross physical invasion of a place or the apparent and tangible taking of a thing. Four justices dissented. Unlike the majority, they believed the constitutional policy of protecting individual liberty and privacy extended to an activity clearly meant to be kept private. The opinions of Justices Holmes and Brandeis expressed a strong concern for the Rule of Law, emphasizing that the government must follow the law, alluding to the state prohibition on wiretapping. Justice Butler, a conservative, forthrightly asserted that [t]apping the wires and listening in by the officers literally constituted a search for evidence in his dissent, but only Justice Stone joined this forward-looking position. The Olmstead decision was unpopular. More than half the states at that time outlawed secret wiretapping. The Federal Communications Act of 1934 stated that no person not being authorized by the sender shall intercept any communication and divulge or publish the existence,... substance,... or meaning of such intercepted communication to any person.... In 1937, the Supreme Court held that this provision applied to federal law enforcement officers and prohibited the divulging of wiretap information as evidence in a court to obtain a conviction (Nardone v. U.S., 1937). The act and the exclusionary rule of Nardone only applied to wiretaps they did not apply to bugging or to electronic eavesdropping with a microphone or a recorder unconnected to a telephone line. Although the Court, as well as many Americans, were nervous about government snooping, the Court was cautious about extending the Nardone wiretap exclusionary rule, based on an Act of Congress, to electronic bugging. This was followed by two decisions, based on the property concept of search and seizures, that produced inconsistent and unstable decisions. In Goldman v. U.S. (1942), federal agents investigated a bankruptcy fraud with the assistance of a willing informant who continued to negotiate with Goldman to obtain evidence for the prosecution. Federal agents were given access to an office adjoining the office of one of the conspirators. The agents used a device called a detectaphone, having a receiver so delicate as, when placed against the partition wall, to pick up sound waves originating in an adjoining office. The detectaphone was used and incriminating conversations were transcribed by a stenographer and introduced into evidence. The

FOURTH AMENDMENT OVERVIEW: THE EXPECTATION OF PRIVACY 27 Supreme Court ruled that because the use of the detectaphone involved no physical trespass into the room where the conspirator spoke, there was no Fourth Amendment violation. The argument that the conspirator intended his conversation to be private was dismissed by the Court, which instead held that the rule of Olmstead also applied to bugging that occurred without a trespass. In Silverman v. U.S. (1961), Washington, DC police investigating illegal gambling used a spike mike to overhear conversations in an adjoining rowhouse. The microphone was attached to a foot-long metal spike that was driven through the adjoining walls of the houses until it hit a heating duct, which converted the entire heating system of the house into a conductor of sound. Attorneys for Silverman argued that modern electronic eavesdropping devices would enable government agents to listen in on any private conversations and asked that Olmstead be overruled. The Supreme Court declined to do so but did find that the overhearing of illicit conversations in this case violated the Fourth Amendment because the eavesdropping was accomplished by means of an unauthorized physical penetration into the premises occupied by the petitioners. Although the Silverman ruling was logically consistent with the property-based theory of Olmstead and Goldman, this meant that the privacy and liberty of citizens depended on whether government agents could detect conversations by means of nonphysical intrusion. With the invention of parabolic microphones, this doctrine foretold of a future in which the privacy of conversations would depend only on the whim or forbearance of the government. The fine distinction between Goldman and Silverman was noted in a concurring opinion by Justice Douglas, stating that the invasion of privacy is as great in one case as in the other. FOURTH AMENDMENT REVOLUTION: FROM PROPERTY RIGHTS TO THE EXPECTATION OF PRIVACY The Supreme Court finally resolved the problem created in Olmstead by overruling it in Katz v. U.S. (1967), and in doing so recast the basis of Fourth Amendment law. Federal agents had probable cause to believe that Charles Katz was part of a conspiracy to illegally transmit gambling information. They placed an electronic microphone on the top of a public telephone booth and did not invade that area by driving it into the structure. The microphone was activated only when Katz used it at certain times of day corresponding to the time he would send the betting data. This practice seemed to be constitutional under the Goldman and Silverman rulings and, furthermore, did not infringe on the privacy of other users of the telephone booth. Nevertheless, the Supreme Court ruled that this electronic eavesdropping was an unconstitutional search and seizure. Justice Potter Stewart, in a memorable phrase, stated that the Fourth Amendment protects people, not places. The determining factor in ths case was not whether the phone booth was a constitutionally protected area but whether Katz acted in such a way as to exhibit a desire to keep his conversation private. The new criterion for deciding whether government

28 CHAPTER TWO action was a search and seizure, and if so whether it violated a person s Fourth Amendment rights, was the two-pronged expectation of privacy doctrine. The twofold requirement of the expectation of privacy doctrine is first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as reasonable (Katz v. U.S., Harlan, J., concurring). There was a search and seizure in Katz even in the absence of a physical penetration of a place. The Supreme Court probably delayed its decision to bring all forms of aural electronic eavesdropping within the Fourth Amendment until 1967 for reasons of policy. Electronic eavesdropping rather clearly invades genuine interests protected by the Bill of Rights freedom from government intrusion into one s liberty and privacy without just cause. Nevertheless, electronic eavesdropping is an important and perhaps essential law enforcement tool for investigating organized crime, white-collar crime, terrorism, bribery, and other major conspiracies. When a listening device is placed in a location, it picks up everything that is said. This is such a broad intrusion into the privacy of both innocent and suspected persons that it was believed electronic eavesdropping could never be constitutional. This is because a warrant authorizing a search and seizure must describe the place to be searched, and the persons or things to be seized with particularity. What the Supreme Court came to realize by 1967 was that it was possible for electronic eavesdropping search warrants to be drawn in a manner to narrow the listening so it would meet constitutional standards. In fact, in 1968, Congress passed a Crime Control Act that did just that and has been held constitutional. The result of these changes is that law enforcement officers must seek prior judicial approval for electronic eavesdropping via a warrant that meets the stringent criteria under the Crime Control Act. The Supreme Court revolutionized the interpretation of the Fourth Amendment in three other cases decided in 1967 and 1968. These cases have since influenced the law of search and seizure. Warden v. Hayden (1967) abolished the mere evidence rule of Gouled v. U.S. (1921). In Katz, the Court said in effect that (1) the property theory of the Fourth Amendment did not provide adequate protection to a suspect, and (2) instead of analyzing a search and seizure by examining property concepts, it was more meaningful to examine the actual interests involved individual liberty balanced against the state s need for effective law enforcement. In Hayden, police seized clothing that could be used to identify an alleged robber during a lawful search of Hayden s house. The Supreme Court held that the clothing could be seized by the police and held by the state for the duration of the prosecution to be used as evidence that a man wearing similar clothing was the perpetrator. The old rule (1) did not serve a defendant s legitimate privacy interest (i.e., seemed to give the defendant a windfall), (2) was based on outmoded property concepts, and (3) hampered the legitimate law enforcement interests of the state. The new rule better balanced the competing interests.

FOURTH AMENDMENT OVERVIEW: THE EXPECTATION OF PRIVACY 29 Next came Camara v. Municipal Court (1967), which expanded the Fourth Amendment protections of individuals by requiring a warrant for administrative searches. Camara did not deal with the expectation of privacy, but its ruling had a far-reaching effect on how the Supreme Court dealt with Fourth Amendment cases. Under previous case law, the Fourth Amendment was believed to apply only to searches by law enforcement officers aimed at detecting crimes. Searches of houses or business places conducted by administrative officers, primarily to enforce administrative regulations, were not considered Fourth Amendment searches. In Camara, the Court noted that Fourth Amendment s text applied to intrusions by any government officer into areas protected by the expectation of privacy. Entry by health, fire, or housing inspectors, for purposes of enforcing regulations, were now covered by the Fourth Amendment. This created a dilemma. Most administrative inspection programs are based not on particularized probable cause of a safety hazard in a particular place, but on administrative assessments that premises in an entire neighborhood need inspection. If a municipality had to get particularized probable cause for each house in the neighborhood, the inspection program would fail. The Court solved the problem by ruling that less specific administrative warrants could be issued based on general information about such area conditions as the age of buildings or the number of fires in a neighborhood. Probable cause was defined down so to speak. This solution, however, led the Court to think about the Fourth Amendment in more flexible terms. Camara opened the door to the general reasonableness construction of the amendment its decision rested on reading the Fourth Amendment text as not absolutely requiring traditional search warrants or particularized probable cause. Some searches are constitutional as long as they are, at minimum, reasonable. This relaxed mode of interpretation later allowed greater intrusion into areas of privacy by nonlaw enforcement officers under the special needs doctrine (see Chapter 11). The fourth case, Terry v. Ohio (1968), for the first time in American constitutional history, upheld temporary but forcible stops of persons even though the police officer did not have probable cause to believe the person committed a crime. A state deprivation of liberty could now be based on a lesser standard of evidence that came to be known as reasonable suspicion (see Chapter 9). The Terry decision strengthened the new modes of Fourth Amendment reasoning balancing interests between the state and the individual, flexibility, and reliance on the reasonableness clause. APPLICATION OF THE EXPECTATION OF PRIVACY DOCTRINE The expectation of privacy doctrine has been applied logically in numerous cases. Where there is an expectation of privacy, a search must be validated either by a judicial warrant or by some level of evidence where a warrantless search is reasonable. For example, a prisoner has no expectation of privacy in his or her prison cell.

30 CHAPTER TWO [S]ociety is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell. Correctional officers do not need a warrant or probable cause to search a cell. So-called cell shake-downs are a routine part of prison life and necessary for safety (Hudson v. Palmer, 1984). The Supreme Court has also upheld probation and parole conditions that allow correctional and law enforcement officers to enter the homes of probationers and parolees without warrants and on less than probable cause that a crime has been committed (Griffin v. Wisconsin, 1987; Pennsylvania Board of Probation and Parole v. Scott, 1998; U.S. v. Knights, 2001). In a number of cases, the Supreme Court has indicated that warrantless intrusions into the homes of free persons are unconstitutional. Thus, the police cannot scan the movement of an item in a home to which an electronic beeper has been attached (U.S. v. Karo, 1984) or apply a heat sensor (Kyllo v. U.S., 2001) without a search warrant. Furthermore, an arrest warrant is required to enter a suspect s home to arrest him or her (Payton v. New York, 1980). In Wilson v. Layne (1999), the Court held that police violated a householder s right to Fourth Amendment privacy by inviting a news reporter and photographer to join them in executing a legal warrant, even though no pictures were taken. The Court has decided cases under the expectation of privacy doctrine by examining the specific interests involved. For example, when it comes to private property, effects in Fourth Amendment terms, the Court held that the warrantless opening of a footlocker violated a person s privacy in the effect (U.S. v. Chadwick, 1977). Furthermore, it was constitutionally improper for a border guard to squeeze the outside of soft luggage to determine whether contraband was inside (Bond v. U.S., 2000). However, the Fourth Amendment does not prohibit police using drug-sniffing dogs to smell unopened containers because the canine cannot uncover any element of privacy except for specific contraband (U.S. v. Place, 1983). Also, if a person abandons property or does not exhibit an expectation of privacy over property, as in the case of leaving bags of trash curbside for trash pickup, the police may lawfully seize such property and search it for evidence of crimes without obtaining a warrant (California v. Hodari D., 1991; California v. Greenwood, 1988). There is a lesser expectation of privacy in an automobile than in a home (California v. Carney, 1985). The Supreme Court has found that at common law mobile vehicles could be stopped without a warrant and has generally extended this exception into the Fourth Amendment automobile exception (Carroll v. United States, 1925). Yet, the Court has applied the expectation of privacy doctrine to the stopping of automobiles by U.S. Border Patrol Officers, and later to all police agencies, and has found that the stopping of an automobile is a seizure and that it can cause annoyance or fright. Therefore, a warrantless stop of a vehicle must be justified by reasonable suspicion or probable cause of a traffic violation or crime (U.S. v. Brignoni-Ponce, 1975; Delaware v. Prouse, 1979). However, because a stop at a fixed checkpoint does not produce the same anxiety as that asso-

FOURTH AMENDMENT OVERVIEW: THE EXPECTATION OF PRIVACY 31 ciated with being stopped by a roving patrol, the expectation of privacy is less and the stop need not be justified by particularized suspicion (U.S. v. Martinez-Fuerte, 1976; Michigan Department of State Police v. Sitz, 1990). The Court has interpreted the expectation of privacy in ways that seem slanted to law enforcement in some cases. Rakas v. Illinois (1978), for example, held that a car s passenger does not have standing to object to a police search of the car and the seizure of evidence used to prosecute the passenger only the owner of the car had the right to claim an illegal search and seizure. In dissent, Justice White wrote that The Court today holds that the Fourth Amendment protects property, not people. He saw the majority s decision as a repudiation of Katz. In several cases, the Court held that low-flying airplanes and helicopters peering into backyards (the curtilage traditionally protected from warrantless entry) did not violate the expectation of privacy of the householders because that airspace is open to view by commercial aircraft. This reasoning seems result-oriented and dismissive of the personal liberties side of the balancing-of-interests reasoning exemplified by Katz and Warden v. Hayden. SUMMARY HOLDINGS OF MAJOR CASES Entick v. Carrington (1765) England. Government officers cannot forcibly enter a private premises unless authorized by a judicial warrant; officers can be sued for money damages for trespass if they illegally enter private premises to carry out their official functions. Burdeau v. McDowell (1921) Property seized illegally by a private party and not at the command of the government can be introduced into evidence to prosecute a defendant. The provisions of the Bill of Rights apply only to state action and are not designed to legally protect individuals from the illegal actions of private persons. Gouled v. U.S. (1921) Government officers may not seize mere property even if authorized by a search warrant or in an otherwise proper warrantless search because the government does not have a right to interfere with private property unless it is contraband, the fruits of a crime, or an instrumentality used to commit a crime. Later overruled. Olmstead v. U.S. (1928) Wiretapping is not a search or seizure under the Fourth Amendment because it does not involve physical intrusion into a person s constitutionally protected area. Later overruled. Coolidge v. New Hampshire (1972) It is not state action when police interview a witness who turns over evidence without being ordered to do so; this is not a Fourth Amendment seizure. Katz v. U.S. (1967) The proper basis of Fourth Amendment analysis is whether a person exhibits a subjective expectation of privacy, and this expectation is one that society is willing to accept as objectively reasonable. The property theory on which Fourth Amendment analysis had been conducted under Olmstead was substantially weakened. Warden v. Hayden (1967) The police may properly seize mere evidence ; Fourth Amendment cases are to be decided on the basis of the individual s interest in freedom weighed against legitimate law enforcement interests; Gouled v. U.S. (1921) overruled.

32 CHAPTER TWO Camara v. Municipal Court (1967) By requiring warrants for administrative searches, this case expanded the reach of the Fourth Amendment to protect against intrusion by all government officers; however, by allowing area warrants based on less than traditional probable cause, Camara legitimated reliance on the reasonableness clause and the reasonableness construction of the Fourth Amendment. Terry v. Ohio (1968) Held that the Fourth Amendment authorizes forcible but temporary police stops of individuals for field interrogation on the basis of reasonable suspicion, a lesser standard than traditional probable cause.