Search & Seizure

Probable Cause & the 4th Amendment

The cases that define the 4th amendment illustrate the dynamic tension between the need to secure evidence to convict law breakers and the federal and state constitutional protection of a citizen’s reasonable expectation of privacy.
  1. What Constitutes a Search?
  2. What Constitutes a Seizure?
Intrusion by a government actor into a citizen's or agency's personal property or affects, where the citizen has a legitimate expectation of privacy.

The first requirement for a search is government action, because private intrusions, no matter how invasive, do not implicate the fourth amendment. Burdeau v. McDowell, 256 U.S. 465 (1921). The products of private searches are not covered by the exclusionary rule. Walter v. United States, 447 U.S. 649 (1980).

The second requirement is the citizen has to have a legitimate expectation of privacy in the place or item being searched. California v. Greenwood, 486 U.S. 35 (1988) (The Court approved warrantless police searches of trash left in garbage bags at the curb in front of the defendant's house.); California v. Ciraolo, 476 U.S. 207 (1986) (The Court found unreasonable the defendant's expectation of privacy from surveillance by airplane 1,000 feet over his fenced backyard.); Florida v. Riley, 488 U.S. 445 (1989) (The Court allowed surveillance of backyard by helicopter hovering at 400 feet not a search.)

Of interest is the court's unwillingness to protect the space around the item being searched. The drug sniffing dog does not violated a person's fourth amendment right to privacy because the dog is just smelling the air around an item, alerting if there maybe contraband. The space around the item is free to be searched by smell, sight, touch or sound.

In Illinois v. Caballes, 543 U.S. 405 (2005), the Supreme Court held that use of a narcotics-detection dog around a lawfully stopped car does not implicate the fourth amendment because it only reveals the presence of contraband. Also, the dog sniff was lawful because it did not extend the duration of the lawful traffic stop. Id.

However, in United States v. Place, 462 U.S. 696 (1983), the 90-minute detention of the luggage for the sniff test was unreasonable.

When it comes to sight, the item must be viewable without the police intervention. The Supreme Court delivered a singularly favorable decision on the definition of a search in Arizona v. Hicks, 480 U.S. 321 (1987). In Hicks, the police were lawfully present in the defendant's apartment and saw electronic equipment that the officer suspected was stolen. The officer moved a turntable to read and record serial numbers that established that the equipment was stolen. Justice Scalia wrote for the majority that even the minimal movement of the equipment constituted a search beyond plain view and, in the absence of probable cause, the evidence must be suppressed.

A officer using the sense of touch may not manipulate an item to determine its contents. In Bond v. United States, 529 U.S. 334 (2000), the court held that an officer's physical manipulation of the outside of stowed luggage on a bus was a search that violated the fourth amendment.