Download Hatton W. Sumners Supreme Court Case Book Fourth Amendment

Hatton W. Sumners
Supreme Court Case Book
Fourth Amendment
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Hatton W. Sumners
Supreme Court Case Book
Fourth Amendment
Weeks v. United States (1914)................................................................................5
Wolf v. Colorado (1949) .........................................................................................7
Mapp v. Ohio (1961)................................................................................................10
Massachusetts v. Sheppard (1984) .........................................................................22
Hudson v. Michigan (2006) .....................................................................................26
Herring v. U.S (2009) ..............................................................................................29
Scott v. Harris (2007) ..............................................................................................31
Brendlin v. California (2007) ....................................................................................33
Safford Unified School District v. Redding (2009) ...................................................35
Arizona v. Gant (2009) ............................................................................................38
Arizona v. Johnson (2009) ......................................................................................39
Kentucky v. King (2011) ..........................................................................................40
Davis v. United States (2011)..................................................................................43
Florence v. Board of Freeholders of County of Burlington (2012) ...........................45
United States v. Jones (2012) .................................................................................48
Cases Involving Searches without Warrants
Automobile Searches
Carroll v. United States (1925) ................................................................................51
Henry v. United States (1959) .................................................................................51
Delaware v. Prouse (1979)......................................................................................51
Maryland v. Wilson (1997).......................................................................................52
Wyoming v. Houghton (1999)..................................................................................53
Indianapolis v. Edmond (2000)................................................................................54
Illinois v. Lidster (2004) ...........................................................................................54
Illinois v. Caballes (2005) ........................................................................................55
Consent Searches
Warden v. Hayden (1967) .......................................................................................56
Coolidge v. New Hampshire (1971) ........................................................................56
Schneckloth v. Bustamonte (1973) .........................................................................57
Georgia v. Randolph (2006) ....................................................................................58
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Investigative Detentions and “Pat Downs”
Terry v. Ohio (1968) ................................................................................................61
Illinois v. Wardlow (2000) ........................................................................................62
Florida v. J.L. (2000) ...............................................................................................64
Bond v. U.S. (2000) .................................................................................................65
Hiibel v. Nevada (2004) ...........................................................................................67
Search Incident to a Valid Arrest
Chimel v. California (1969) ......................................................................................70
Border Searches
United States v. Amado Martinez-Fuerte (1976) .....................................................71
Some Other Recent Issues
Winston v. Lee (1985) .............................................................................................72
Atwater v. City of Lago Vista (2001) ........................................................................74
Kyllo v. U.S (2001) ..................................................................................................81
Ontario v. Quon (2010)............................................................................................82
Florida v. Jardines (2013)........................................................................................85
Missouri v. McNeely (2012) .....................................................................................87
Maryland v. King (2013) ..........................................................................................93
Searches and Seizures in Public Schools
New Jersey v. TLO (1985) ......................................................................................97
Vernonia School District v. Acton (1995) .................................................................101
Pottawatomie v. Earls (2002) ..................................................................................106
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FREMONT WEEKS v. UNITED STATES
232 U. S. 383, No. 461
Argued and submitted December 2 and 3, 1913
Decided February 24, 1914
On December 21, 1911, Fremont Weeks was arrested, without a warrant, at his place of
employment. At about the same time, other officers went to Weeks’ home, and being
told by a neighbor where a key was kept, and entered the house. They searched
Weeks’ room and took several items, turning them over to the United States marshal.
Police officers returned later that same day and, in response to a knock on the door,
were admitted by someone in the house. This time after another non-warranted search,
the officers took additional items and again gave them to the marshal.
Weeks filed a petition, asking that the items be returned to him. The district attorney
returned part of the property taken and retained certain items to use as evidence in the
trial against Weeks.
After the jury had been sworn and before any evidence had been given, the defendant
again urged the court to order the return of his property, which was denied. Upon the
introduction of the papers during the trial, the defendant again objected on the grounds
that the papers had been obtained without a search warrant. The court also overruled
this objection.
At common law, seizure of evidence by illegal means did not affect its admissibility at
trial because of the view that physical evidence was the same however it was obtained.
The Fourth Amendment to the U. S. Constitution took its origin in the determination of
the framers to provide for the securing to the people, those safeguards which had grown
up in England to protect the people from unreasonable searches and seizures, by which
there had been invasions of the home and privacy of the citizens, and the seizure of
their private papers in support of charges made against them. On Fourth Amendment
grounds, Weeks took his case to the United States Supreme Court.

ISSUE: Does the Fourth Amendment prohibit the admission of evidence seized
without a warrant in federal courts?
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WEEKS v. UNITED STATES (1914)
Decision
The Supreme Court, in this case, ruled that evidence obtained in disregard of Fourth
Amendment standards is inadmissible in federal court. This sanction has come to be
known as the exclusionary rule, which deters federal law enforcement personnel from
violating the amendment by disqualifying the fruit of an illegal search.
Justice Day delivered the opinion of the Court. He wrote:
The effect of the 4th Amendment is to put the courts of the United States
and Federal officials, in the exercise of their power and authority, under
limitations and restraints as to the exercise of such power and authority,
and to forever secure the people, their persons, houses, papers, and
effects, against all unreasonable searches and seizures under the guise of
law. This protection reaches all alike, whether accused of crime or not,
and the duty of giving to it force and effect is obligatory upon all intrusted
under our Federal system with the enforcement of the laws. The tendency
of those who execute the criminal laws of the country to obtain conviction
by means of unlawful seizures and execute the criminal laws of the
country to obtain conviction by means of unlawful seizures and enforced
confessions, the latter often obtained after subjecting accused persons to
unwarranted practices destructive of rights secured by the Federal
Constitution, should find no sanction in the judgments of the courts, which
are charged at all times with the support of the Constitution, and to which
people of all conditions have a right to appeal for the maintenance of such
fundamental rights.
Addressing this particular case, Justice Day continued:
... If letters and private documents can thus be seized and held and used
in evidence against a citizen accused of an offense, the protection of the
4th Amendment ... is of no value, and, so far as those thus placed are
concerned, might as well be stricken from the Constitution. The efforts of
the courts and their officials to bring the guilty to punishment, praiseworthy
as they are, are not to be aided by the sacrifice of those great principles
established by years of endeavor and suffering which have resulted in
their embodiment in the fundamental law of the land. The United States
marshal could have invaded the house of the accused when armed with a
warrant issued as required by the Constitution, upon sworn information,
and describing with reasonable particularity the thing for which the search
was to be made. Instead, he acted without sanction of law, doubtless
prompted by the desire to bring further proof to the aid of the government,
and under color of his office undertook to make a seizure of private papers
in direct violation of the constitutional prohibition against such action. ...
To sanction such proceedings would be to affirm by judicial decision a
manifest neglect, if not an open defiance, of the prohibitions of the
Constitution, intended for the protection of the people against such
unauthorized action.
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WOLF v. THE PEOPLE OF THE STATE OF COLORADO
338 U. S. 25, Nos. 17 & 18
Argued October 19, 1948
Decided June 27, 1949
At common law, seizures of evidence by illegal means did not affect its admissibility at
trial because of the view that physical evidence was the same however it was obtained.
The Fourth Amendment provides, “The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures shall not be
violated ....” By its terms people cannot claim immunity from all searches and seizures,
but only those falling short of a standard of reasonableness. The general command of
the Fourth Amendment is that evidence be obtained in a reasonable fashion and that
warrants—for both searches and arrests—not be issued unless probable cause has first
been established.
In 1914, the United States Supreme Court ruled in the case of Weeks v. United States
that evidence obtained in disregard of Fourth Amendment standards was inadmissible
in federal court. This sanction became known as the exclusionary rule.
In the current case the petitioner was convicted of a crime in a state court on evidence
obtained by an unreasonable search and seizure. Under the Weeks decision, evidence
so obtained by federal officers could not be used against the defendant in federal
courts.

ISSUE: Does the Fourteenth Amendment Due Process Clause incorporate the
Fourth Amendment prohibition against unreasonable searches and seizures to
state courts? Does the exclusionary rule, which forbids evidence obtained by
unreasonable search and seizure, apply to state courts through the Fourteenth
Amendment?
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WOLF v. COLORADO (1949)
Decision
Thirty-five years after Weeks v. U.S., the Supreme Court discussed the effect of the
Fourth Amendment on states through the operation of the Due Process Clause of the
Fourteenth Amendment. Justice Frankfurter, speaking for the Court in the five-to-four
decision, said:
... The knock at the door, whether by day or by night, as a prelude to a
search without authority of law but solely on the authority of the police, did
not need the commentary of recent history to be condemned as
inconsistent with the conception of human rights enshrined in the history
and the basic constitutional documents of English-speaking peoples.
Accordingly, we have no hesitation in saying that were a State
affirmatively to sanction such police incursion into privacy it would run
counter to the guarantee of the Fourteenth Amendment. But the ways of
enforcing such a basic right raise questions of a different order. How such
arbitrary conduct should be checked, what remedies against it should be
afforded, the means by which the right should be made effective, are all
questions that are not to be so dogmatically answered as to preclude the
varying solutions which spring from an allowable range of judgment on
issues not susceptible of quantitative solution..
...
... We cannot brush aside the experience of State which deem the
incidence of such conduct by the police too slight to call for a deterrent
remedy not by way of disciplinary measures but by overriding the relevant
rules of evidence. There are, moreover, reasons by excluding evidence
unreasonable obtained by the federal police which are less compelling in
the case of police under State or local authority. The public opinion of a
community can far more effectively be exerted against oppressive conduct
on the part of the police directly responsible to the community itself than
can local opinion, sporadically aroused, be brought to bear upon remote
authority pervasively exerted throughout the country.
According to Justice Frankfurter, seventeen states followed the Weeks doctrine and
imposed an exclusionary rule, thirty states did not.
After declaring that the “security of one’s privacy against arbitrary intrusion by the
police” is “implicit in ‘the concept of ordered liberty’ and as such enforceable against the
States through the Due Process Clause,” ... and announcing that it “stoutly adhere[d]” to
the Weeks decision, the Court decided that the Weeks exclusionary rule would not then
be imposed upon the States as “an essential ingredient of the right.”
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Justice Black wrote a concurring opinion in which he agreed with the Court but wanted
to add that he felt the “Fourteenth Amendment was intended to make the Fourth
Amendment in its entirety applicable to the states.”
Justice Douglas, joined by Justice Murphy, dissented, stating “... the Fourth Amendment
is applicable to the States.”
can go this far and yet be unwilling to make the step which can give some meaning to
the pronouncements it utters.”
Justice Rutledge also dissented.
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DOLLREE MAPP v. OHIO
367 U. S. 643, 81 S.Ct. 1684, 6 L.Ed. 2d 694
Argued March 29, 1961
Decided June 19, 1961
Prior to 1914, illegally seized evidence was admitted into evidence on the principle that
the conviction of an accused person had higher priority than the right of an accused. In
a unanimous ruling in 1914, the U. S. Supreme Court determined in Weeks v. United
States that evidence seized without a warrant could not be used in a federal criminal
trial. Thus was born the federal Exclusionary Rule. An important quotation from the
Court's opinion in the Weeks case follows:
If letters and documents can thus be seized and held and used in
evidence against a citizen accused of an offense, the protection of the
Fourth Amendment declaring his right to be secure against such searches
and seizures is of no value, and, so far as those thus placed are
concerned, might as well be stricken from the Constitution. The efforts of
the courts and their officials to bring the guilty to punishment, praiseworthy
as they are, are not to be aided by the sacrifice of those great principles
established by years of endeavor and suffering which have resulted in
their embodiment in the fundamental law of the land.
On May 23, 1957, three Cleveland police officers arrived at 19-year-old Dollree Mapp's
home looking for a person wanted for questioning in connection with a recent bombing.
Mapp, who had phoned her attorney, refused to admit the police. They notified their
headquarters, and the officers began surveillance.
Three hours later, four more officers arrived and knocked on the door. When Mapp did
not immediately answer, the police forced the door and entered. Mapp, from halfway up
the stairs, demanded to see a search warrant. One of the officers held up a piece of
paper, claiming it was the warrant. Mapp snatched the paper and stuffed it into her
blouse. After a scuffle, the officers recovered the paper and handcuffed Mapp.
Mapp, still handcuffed, was forced upstairs, whereupon the police began to search the
entire house. During this time, Mapp's attorney arrived but was refused entrance or
access to his client. The police found no bombing suspect, but in the course of their
search, they turned up some obscene books, possession of which was a violation of an
Ohio statute.
At her trial, no search warrant was ever produced, nor was the failure to produce one
explained. Following her conviction in the criminal court in Cleveland, Mrs. Mapp's
attorneys appealed her case to the Ohio appellate court and then to the Supreme Court
of Ohio. In that court, they were not able to get her conviction overturned, so they
appealed the case to the U. S. Supreme Court.
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
ISSUE: Does the Fourth Amendment, as applied to the states through the Due
Process Clause of the Fourteenth Amendment, prohibit the use of illegally seized
evidence in state court?
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MAPP v. OHIO (1961)
Decision
Justice Clark, speaking for the majority, posed the issues in this case as follows:
At the trial no search warrant was produced by the prosecution, nor was
the failure to produce one explained or accounted for.... The Ohio
Supreme Court believed a "reasonable argument" could be made that the
conviction should be reversed "because the `methods' employed to obtain
the (evidence) ... were such as to `offend "a sense of justice,"' "but the
court found determinative the fact that the evidence had not been taken
"from defendant's person by the use of brutal or offensive physical force
against defendant." ...
The state says that even if the search were made without authority, or
otherwise unreasonable, it is not prevented from using the
unconstitutionally seized evidence at trial, citing Wolf v. Colorado (1949),
in which this Court did indeed hold "that in a prosecution in a State court
for a State crime the Fourteenth Amendment does not forbid the
admission of evidence obtained by an unreasonable search and seizure."
... On this appeal, of which we have noted probable jurisdiction, it is urged
once again that we review that holding.
In other words, the majority is going to take another look at a precedent (Wolf v.
Colorado) upon which the state of Ohio based its arguments and the Ohio Supreme
Court based its decisions.
I.
Seventy-five years ago, in Boyd v. United States, considering the Fourth
and Fifth Amendments as running "almost into each other" on the facts
before it, this Court held that the doctrines of those Amendments:
"apply to all invasions on the part of the government and its employes of
the sanctity of a man's home and the privacies of life. It is not the
breaking of his doors, and the rummaging of his drawers, that constitutes
the essence of the offence; but it is the invasion of his indefeasible right of
personal security, personal liberty and private property.... Breaking into a
house and opening boxes and drawers are circumstances of aggravation;
but any forcible and compulsory extortion of a man's own testimony or of
his private papers to be used as evidence to convict him of crime or to
forfeit his goods, is within the condemnation ... (of those Amendments)."
The Court noted that "constitutional provisions for the security of person
and property should be liberally construed .... It is the duty of courts to be
watchful for the constitutional rights of the citizen, and against any stealthy
encroachments thereon."
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In this jealous regard for maintaining the integrity of individual rights, the
Court gave life to Madison's prediction that "independent tribunal of justice
... will be naturally led to resist every encroachment upon rights expressly
stipulated for in the Constitution by the declaration of rights." ...
Concluding, the Court specifically referred to the use of the evidence there
seized as "unconstitutional."
Less than 30 years after Boyd, this Court, in Weeks v. United States,
stated that "the Fourth Amendment ... put the courts of the United States
and Federal officials, in the exercise of their power and authority, under
limitations and restraints (and) ... forever secure(d) the people, their
persons, houses, papers and effects against all unreasonable searches
and seizures undue the guise of law ... and the duty of giving to it force
and effect is obligatory upon all entrusted under our Federal system with
the enforcement of the laws."
Specifically dealing with the use of the evidence unconstitutionally seized,
the Court concluded:
"If letters and private documents can thus be seized and held and used in
evidence against a citizen accused of an offense, the protection of the
Fourth Amendment declaring his right to be secure against such searches
and seizures is of no value, and, so far as those thus placed are
concerned, might as well be stricken from the Constitution. The efforts of
the courts and their officials to bring the guilty to punishment, praiseworthy
as they are, are not to be aided by the sacrifice of those great principles
established by years of endeavor and suffering which have resulted in
their embodiment in the fundamental law of the land."
Finally, the Court in that case clearly stated that use of the seized
evidence involved "a denial of the constitutional rights of the accused." ...
Thus, in the year 1914, in the Weeks case, this Court "for the first time"
held that "in a federal prosecution the Fourth Amendment barred the use
of evidence secured through an illegal search and seizure ...."
Part I of the Court's opinion applies the Fourth Amendment to federal officials. In Part II
that follows, Justice Clark applies it to state officials.
II.
In 1949, 35 years after Weeks was announced, this Court, in Wolf v.
Colorado, supra, discussed the effect of the Fourth Amendment upon the
States through the operation of the Due Process Clause of the Fourteenth
Amendment. It said:
"(W)e have no hesitation in saying that were a State affirmatively to
sanction such police incursion into privacy it would run counter to the
guarantee of the Fourteenth Amendment."
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Nevertheless, after declaring that the "security of one's privacy against
arbitrary intrusion by the police" is "implicit in `the concept of ordered
liberty' and as such enforceable against the States through the Due
Process Clause," ... and announcing that it "stoutly adhere(d)" to the
Weeks decision, the Court decided that the Weeks exclusionary rule
would not then be imposed upon the States as "an essential ingredient of
the right." ... The Court's reason for not considering essential to the right
to privacy, as a curb imposed upon the States by the Due Process Clause,
that which decades before had been posited as part and parcel of the
Fourth Amendment's limitations upon federal encroachment of individual
privacy, were bottomed on factual considerations ....
At this point the opinion discusses the experiences of the states with illegal searches
and seizures. Justice Clark pointed out that twenty-three states have experimented with
laws imposing criminal liability on those who maliciously procure search warrants, on
magistrates who issue search warrants without supporting affidavits, on officers who
willfully exceed the authority of the search warrant, and on officers who search with no
warrant or with an invalid warrant. Finding these remedies "worthless and futile," more
than half of those states have turned to the exclusionary rule as the only effective
remedy against unreasonable searches and seizures. Under this rule, evidence illegally
seized is excluded from the trial.
III.
Today we once again examine Wolf's constitutional documentation of the
right to privacy free from unreasonable state intrusion, and, after its dozen
years on our books, are led by it to close the only courtroom door
remaining open to evidence secured by official lawlessness in flagrant
abuse of that basic right, reserved to all persons as a specific guarantee
against that very same unlawful conduct. We hold that all evidence
obtained by searches and seizures in violation of the Constitution is, by
that same authority, inadmissible in a state court.
IV.
Since the Fourth Amendment's right of privacy has been declared
enforceable against the States the Due Process Clause of the Fourteenth,
it is enforceable against them by the same sanction of exclusion as is
used against the Federal Government. Were it otherwise, then just as
without the Weeks rule the assurance against unreasonable federal
searches and seizures would be "a form of words," valueless and
undeserving of mention in a perpetual charter of inestimable human
liberties, so too, without that rule the freedom from state invasions of
privacy would be so ephemeral and so neatly severed from its conceptual
nexus with the freedom from all brutish means of coercing evidence as not
to merit this Court's high regard as a freedom "implicit in the concept of
ordered liberty." ... This Court has not hesitated to enforce as strictly
against the States as it does against the Federal Government the rights of
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free speech and of a free press, the rights to notice and to a fair, public
trial, including, as it does, the right not to be convicted by use of a coerced
confession, however logically relevant it be, and without regard to its
reliability.... Why should not the same rule apply to what is tantamount to
coerced testimony by way of unconstitutional seizure of goods, papers,
effects, documents, etc? We find that, as to the Federal Government, the
Fourth and Fifth Amendments and, as to the States, the freedom from
unconscionable invasions of privacy and the freedom from convictions
based upon coerced confessions do enjoy an “intimate relation” in their
perpetuation of “principles of humanity and civil liberty (secured) ... only
after years of struggle....” They express “supplementing phases of the
same constitutional purpose--to maintain inviolate large areas of personal
privacy....” The philosophy of each Amendment and of each freedom is
complementary to, although not dependent upon, that of the other in its
sphere of influence--the very least that together they assure in either
sphere is that no man is to be convicted on unconstitutional evidence....
In this portion of the opinion, the Court joins the Fourth and Fifth Amendments of the Bill
of Rights in its explanation of the right to privacy.
V.
Moreover, our holding that the exclusionary rule is an essential part of
both the Fourth and Fourteenth Amendments is not only the logical dictate
of prior cases, but it also makes good sense. There is no war between the
Constitution and common sense. Presently, a federal prosecutor may
make no use of evidence illegally seized, but a State's attorney across the
street may, although he supposedly is operating under the enforceable
prohibitions of the same Amendment. Thus the State, by admitting
evidence unlawfully seized, serves to encourage disobedience to the
Federal Constitution which it is bound to uphold.
Moreover, as was said in Elkins, “[T]he very essence of a healthy
federalism depends upon the avoidance of needless conflict between
state and federal courts.”... Such a conflict, hereafter needless, arose this
very Term, in Wilson v. Schnettler, ... in which, ... we gave full recognition
to our practice in this regard by refusing to restrain a federal officer from
testifying in a state court as to evidence unconstitutionally seized by him in
the performance of his duties. Yet the double standard recognized until
today hardly put such a thesis into practice. In nonexclusionary States,
federal officers, being human, were by it invited to and did, as our cases
indicate, step across the street to the State’s attorney with their
unconstitutionally seized evidence. Prosecution on the basis of that
evidence was then had in a state court in utter disregard of the
enforceable Fourth Amendment. If the fruits of an unconstitutional search
had been inadmissible in both state and federal courts, this inducement to
evasion would have been sooner eliminated....
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Federal-state cooperation in the solution of crime under constitutional
standards will be promoted, if only by recognition of their now mutual
obligation to respect the same fundamental criteria in their approaches.
“However much in a particular case insistence upon such rules may
appear as a technicality that inures to the benefit of a guilty person, the
history of the criminal law proves that tolerance of shortcut methods in law
enforcement impairs its enduring effectiveness.” ... Denying shortcuts to
only one of two
cooperating law enforcement agencies tends naturally to breed legitimate
suspicion of “working arrangements” whose results are equally tainted....
There are those who say, as did Justice (then Judge) Cardozo, that under
our constitutional exclusionary doctrine "[t]he criminal is to go free
because the constable has blundered." ... In some cases this will
undoubtedly be the result. But, as was said in Elkins, "there is another
consideration--the imperative of judicial integrity." ... The criminal goes
free, if he must, but it is the law that sets him free.
Nothing can destroy a government more quickly than its failure to observe
its own laws, or worse, its disregard of the charter of its own existence. As
Mr. Justice Brandeis, dissenting, said in Olmstead v. United States, "Our
Government is the potent, the omnipresent teacher. For good or for ill, it
teaches the whole people by its example.... If the Government becomes a
lawbreaker, it breeds contempt for law; it invites every man to become a
law unto himself; it invites anarchy."
The ignoble shortcut to conviction left open to the State tends to destroy
the entire system of constitutional restraints on which the liberties of the
people rest. Having once recognized that the right to privacy embodied in
the Fourth Amendment is enforceable against the States, and that the
right to be secure against rude invasions of privacy by state officers is,
therefore, constitutional in origin, we can no longer permit that right to
remain an empty promise. Because it is enforceable in the same manner
and to like effect as other basic rights secured by the Due Process
Clause, we can no longer permit it to be revocable at the whim of any
police officer, who, in the name of the law enforcement itself, chooses to
suspend its enjoyment. Our decision, founded on reason and truth, gives
to the individual no more than that which the Constitution guarantees him,
to the police officer no less than that to which
honest law enforcement is entitled, and, to the courts, that judicial integrity
so necessary in the true administration of justice.
The Supreme Court ruled that the evidence against Dollree Mapp should have been
excluded because the Cleveland police had violated the First and Fourteenth
Amendments. The Court's opinion, however, makes no reference to the issue of
obscenity, even though all the briefs by the attorneys had emphasized this issue.
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THE CONCURRING OPINIONS
In his concurring opinion on the Mapp case Justice Black wrote:
Reflection on the problem, however, in the light of cases coming before
the Court since Wolf, has led me to conclude that when the Fourth
Amendment's ban against unreasonable searches and seizures is
considered together with the Fifth Amendment's ban against compelling
self-incrimination, a constitutional basis emerges which not only justifies
but actually requires the exclusionary rule.
Justice Douglas, who also concurred with the majority opinion, wrote:
As stated in the Weeks case, if evidence seized in violation of the Fourth
Amendment can be used against an accused, "his right to be secure
against such searches and seizures is of no value, and ... might as well be
stricken from the Constitution" ...
When we allowed States to give constitutional sanction to the "shabby
business" of unlawful entry into a home ... we did indeed rob the Fourth
Amendment of much meaningful force. There are, of course, other
theoretical remedies. One is disciplinary action within the hierarchy of the
police system, including prosecution of the police officer for a crime. Yet
as Mr. Justice Murphy said in Wolf v. Colorado, ... "Self-scrutiny is a lofty
ideal, but its exaltation reaches new heights if we expect a District
Attorney to prosecute himself or his associates for well-meaning violations
of the search and seizure clause during a raid the District Attorney or his
associates have ordered."
The only remaining remedy, if exclusion of the evidence is not required, is
an action of trespass by the homeowner against the offending officer. Mr.
Justice Murphy showed how onerous and difficult it would be for the
citizen to maintain that action and how meagre the relief even if the citizen
prevails....
The truth is that trespass actions against officers who make unlawful
searches and seizures are mainly illusory remedies.
Moreover, continuance of Wolf v. Colorado in its full vigor breeds the
unseemly shopping around.... Once evidence, inadmissible in a federal
court, is admissible in a state court a "double standard" exists which, as
the Court points out, leads to "working arrangements" that undercut
federal policy and reduce some aspects of law enforcement to shabby
business. The rule that supports that practice does not have the force of
reason behind it.
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Justice Stewart also wrote as follows:
Agreeing fully with Part I of Mr. Justice Harlan's dissenting opinion, I
express no view as to the merits of the constitutional issue which the
Court today decides. I would, however, reverse the judgment in this case,
because I am persuaded that the provision of 2905.34 of the Ohio Revised
Code, upon which the petitioner's conviction was based, is, in the words of
Mr. Justice Harlan, not "consistent with the rights of free thought and
expression assured against state action by the Fourteenth Amendment."
Here is a noteworthy point.
Justice Stewart found the Ohio obscenity law
unconstitutional because it violated freedom of thought and expression, an issue, which
the majority did not consider. He also agreed with part of the reasoning of the
dissenting opinion.
THE DISSENTING OPINION
Justice Harlan wrote the dissenting opinion in the Mapp case, which was joined by
Justices Frankfurter and Whittaker.
In overruling the Wolf case the Court, in my opinion, has forgotten the
sense of judicial restraint which, with due regard for stare decisis, is one
element that should enter into deciding whether a past decision of this
Court should be overruled. Apart from that I also believe that the Wolf rule
represents sounder Constitutional doctrine than the new rule which now
replaces it.
There are two differing philosophies concerning the court's role in deciding issues. One
is judicial restraint, which is mentioned above. The other is judicial activism, which the
passage above criticizes without mentioning it by name.
I.
From the Court's statement of the case one would gather than the central,
if not controlling, issue on this appeal is whether illegally state-seized
evidence is Constitutionally admissible in a state prosecution, an issue
which would of course face us with the need for re-examining Wolf.
However, such is not the situation. For, although that question was
indeed raised here and below among appellant's subordinate points, the
new and pivotal issue brought to the Court by this appeal is whether
2905.34 of the Ohio Revised Code making criminal the mere knowing
possession or control of obscene material, and under which appellant has
been convicted, is consistent with the rights of free thought and
expression assured against state action by the Fourteenth Amendment.
That was the principal issue which was decided by the Ohio Supreme
Court, which was tendered by appellant's Jurisdictional Statement, and
which was briefed and argued in this Court.
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In this posture of things, I think it fair to say that five members of this Court
have simply "reached out" to overrule Wolf. With all respect for the views
of the majority, and recognizing that stare decisis carries different weight
in Constitutional adjudication than it does in unconstitutional decision, I
can perceive no justification for regarding this case as an appropriate
occasion for re-examining Wolf.
The action of the Court finds no support in the rule that decision of
Constitutional issues should be avoided wherever possible. For in
overruling Wolf, the Court, instead of passing upon the validity of Ohio’s
2905.34, has simply chosen between two Constitutional questions.
Moreover, I submit that it has chosen the more difficult and less
appropriate of the two questions. The Ohio statute which, as construed by
the State Supreme Court, punishes knowing possession or control of
obscene material, irrespective of the purposes of such possession or
control (with exceptions not here applicable) and irrespective of whether
the accused had any reasonable opportunity to rid himself of the material
after discovering that it was obscene, surely presents a Constitutional
question which is both simpler and less far-reaching than the question
which the Court decides today. It seems to be that justice might well have
been done in this case without overturning a decision on which the
administration of criminal law in many of the States has long justifiably
relied.
Since the demands of the case before us do not require us to reach the
question of the validity of Wolf, I think this case furnishes a singularly
inappropriate occasion for reconsideration of that decision, if
reconsideration is indeed warranted. Even the most cursory examination
will reveal that the doctrine of the Wolf case has been of continuing
importance in the administration of state criminal law....
Justice Harlan went on to say that in the lower courts the issue of overruling the Wolf
case had not been adequately briefed or argued. Therefore, either the case should be
reargued on that point or the court should wait for another properly argued case to
reach its docket.
I am bound to say that what has been done is not likely to promote respect
either for the Court’s adjudicatory process or for the stability of its
decisions. Having been unable, however, to persuade any of the majority
to a different procedural course, I now turn to the merits of the present
decision.
Justice Harlan argued that the federal system permits the states to manage their
problems of criminal law enforcement without the Supreme Court's stamp of approval or
disapproval.
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The preservation of a proper balance between state and federal
responsibility in the administration of criminal justice demands patience on
the part of those who might like to see things move faster among the
States in this respect. Problems of criminal law enforcement vary widely
from State to State. One State, in considering the totality of its legal
picture, may conclude that the need for embracing the Weeks
(exclusionary) rule is pressing because other remedies are unavailable or
inadequate to secure compliance with the substantive Constitutional
principle involved. Another, though equally solicitous of Constitutional
rights, may choose to pursue one purpose at a time, allowing all evidence
relevant to guilt to be brought into a criminal trial, and dealing with
Constitutional infractions by other means. Still another may consider the
exclusionary rule too rough-and-ready a remedy, in that it reaches only
unconstitutional intrusions which eventuate in criminal prosecution of the
victims. Further, a State after experimenting with the Weeks rule for a
time may, because of unsatisfactory experience with it, decide to revert to
a non-exclusionary rule. And so on.... For us the question remains, as it
has always been, one of state power, not one of passing judgment on the
wisdom of one state course or another. In my view this Court should
continue to forbear from fettering the States with an adamant rule which
may embarrass them in coping with their own peculiar problems in
criminal law enforcement.
Further, we are told that imposition of the Weeks rule on the States makes
“very good sense,” in that it will promote recognition by state and federal
officials of their “mutual obligation to respect the same fundamental
criteria” in their approach to law enforcement, and will avoid A ‘needless
conflict between state and federal courts,’....
A state conviction comes to us as the complete product of a sovereign
judicial system. Typically a case will have been tried in a trial court, tested
in some final appellate court, and will go no further. In the comparatively
rare instance when a conviction is reviewed by us on due process grounds
we deal then with a finished product in the creation of which we are
allowed no hand, and our task, far from being one of over-all supervision,
is, speaking generally, restricted to a determination of whether the
prosecution was Constitutionally fair. The specifics of trial procedure,
which in every mature legal system will vary greatly in detail, are within the
sole competence of the States. I do not see how it can be said that a trial
becomes unfair simply because a State determines that evidence may be
considered by the trier of fact, regardless of how it was obtained, if it is
relevant to the one issue with which the trial is concerned, the guilt or
innocence of the accused. Of course, a court may use its procedures as
an incidental means of pursuing other ends than the correct resolution of
the controversies before it. Such indeed is the Weeks rule, but if a State
does not choose to use its courts in this way, I do not believe that this
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Court is empowered to impose this much-debated procedure on local
courts, however efficacious we may consider the Weeks rule to be as a
means of securing Constitutional rights....
I regret that I find so unwise a principle and so inexpedient in policy a
decision motivated by the high purpose of increasing respect for
Constitutional rights. But in the last analysis I think this Court can
increase respect for the Constitution only if it rigidly respects the
limitations which the Constitution places upon it, and respects as well the
principles inherent in its own processes. In the present case I think we
exceed both, and that our voice becomes only a voice of power, not of
reason.
SUMMARY
The anatomy of Mapp v. Ohio discloses the workings of the judicial process from the
arrest to the Supreme Court's ruling. What we have seen is a set of procedures
designed to determine both the facts in a case and the principles of law applicable to
the issues. In this case, the process from beginning to the end took four years.
Obviously, due process of law can be a slow, deliberate, and costly procedure.
One might ask how Mrs. Mapp could afford the lawyers and the appeal. She had to
have some assistance in her quest for justice. It was the American Civil Liberties Union
and its affiliate, the Ohio Civil Liberties Union, which helped to finance the case through
the courts.
Why did these organizations intervene in what seems to be a rather ordinary criminal
case? The answer to this question can be found in the issues raised in the proceeding.
The first dealt with obscenity, and the second focused on the exclusionary rule. It was
in this second issue that the American Civil Liberties Union saw the making of a
landmark ruling. If they could persuade the Supreme Court to extend the exclusionary
rule to state police, then illegally seized evidence would have to be excluded from state
courts as well as from the federal courts. The same rule of law would apply to all police
officials. They took the chance and won. Mapp v. Ohio became a landmark ruling in
the same sense that Gideon v. Wainwright and In re Gault were. Each of these cases
announced a new principle of law guaranteeing a constitutional right to the accused.
Each of these cases added a new dimension to the concept of justice as due process of
law in criminal and juvenile proceedings.
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MASSACHUSETTS v. OSBORNE SHEPPARD
468 U. S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737
Argued January 17, 1984
Decided July 5, 1984
The badly burned body of Sandra Boulware was discovered in a vacant lot in the
Roxbury section of Boston at approximately 5:00 a.m., Saturday, May 5, 1979. An
autopsy revealed that Boulware had died of multiple compound skull fractures caused
by blows to the head. After a brief investigation, the police decided to question one of
the victim's boyfriends, Osborne Sheppard. Sheppard told the police that he had last
seen the victim on Tuesday night and that he had been at a card game from 9:00 p.m.
Friday until 5:00 a.m. Saturday. He identified several people who would be willing to
substantiate his alibi.
When interviewing the people with whom Sheppard said he had been playing cards,
police learned that although Sheppard was at the card game, he had borrowed an
automobile at about 3:00 a.m. Saturday to give two men a ride home. Even though the
trip normally took only 15 minutes, Sheppard did not return with the car until nearly 5:00
a.m. On Saturday morning, police officers talked with the owner of the car Sheppard
had borrowed. The car owner consented to an inspection of the vehicle, and police
found bloodstains and pieces of hair on the rear bumper and within the trunk
compartment. In addition, the officers noticed strands of wire in the trunk similar to wire
officers found on and near the body of the victim. The owner of the car told the officers
that when he last used the car on Friday night, shortly before Sheppard borrowed it, he
had placed articles in the trunk and had not noticed any stains on the bumper or in the
trunk.
On the basis of the evidence gathered in the investigation, a police detective drafted an
affidavit to support an application for an arrest warrant and a search warrant authorizing
the search of Sheppard's residence. The affidavit stated that the police wished to
search for certain described items, including clothing of the victim and a blunt
instrument that might have been used on the victim. The police officer showed the
affidavit to the district attorney and his first assistant, along with a sergeant, all of whom
concluded that it set forth probable cause for the search and the arrest. It was Sunday
and the local court was closed, so the police had a difficult time finding a warrant
application form. The detective finally found a warrant form previously used in another
district to search for controlled substances. After making some changes in the form with
a typewriter, the detective presented it and the affidavit to a judge at his residence,
informing him that the warrant form might need to be further changed. The judge took
the form, made some changes on it, and dated and signed the warrant. However, he
did not change the portion of the warrant, which continued to authorize a search for
controlled substances, nor did he alter the form so as to incorporate the affidavit. The
judge then informed the officer that the warrant was sufficient authority to carry out the
requested search.
Officers took the two documents and proceeded to Sheppard's residence.
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subsequent search was limited to the items listed in the affidavit, and several
incriminating pieces of evidence were discovered. Sheppard was then charged with
first-degree murder.
At a pretrial suppression hearing, the trial judge ruled that even though the warrant was
defective under the Fourth Amendment in that it did not particularly describe the items
to be seized, the incriminating evidence could be admitted because the police had acted
in good faith in executing what they reasonably thought was a valid warrant. At the
subsequent trial, Sheppard was convicted.
Upon appeal, Sheppard argued that the evidence obtained pursuant to the defective
warrant should have been suppressed. The Massachusetts Supreme Judicial Court
agreed but concluded that although "the police conducted the search in a good faith
belief ... the search was lawful and authorized by the warrant issued by the judge."
However, they determined that the evidence had to be excluded because the U. S.
Supreme Court had not recognized a good-faith exception to the exclusionary rule.
On the same day as they heard this case, the Supreme Court also heard arguments on
United States v. Leon, in which the issue was basically the same.

ISSUE: Is evidence obtained as the result of a search warrant issued with an
incorrect form a violation of the Fourth Amendment if the police reasonably
believed the warrant to be valid?
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MASSACHUSETTS v. SHEPPARD (1984)
Decision
The Supreme Court created a "good faith" exception to the exclusionary rule in its
decision in this case, announced in conjunction with United States v. Leon. The Court
held that the exclusionary rule should not apply when police officers had an objectively
reasonable basis for belief that the warrant authorized the search they conducted.
Justice White delivered the opinion of the Court. He stated:
Having already decided that the exclusionary rule should not be applied
when the officer conducting the search acted in objectively reasonable
reliance on a warrant issued by a detached and neutral magistrate that
subsequently is determined to be invalid, the sole issue before us in this
case is whether the officers reasonably believed that the search they
conducted was authorized by a valid warrant.... Both the trial court and a
majority of the Supreme Judicial Court concluded that there was. We
agree.
... Sheppard contends that since (the police officer) knew the warrant form
was defective, he should have examined it to make sure that the
necessary changes had been made. However, that argument is based on
the premise that (the officer) had a duty to disregard the judge's assurance
that the requested search would be authorized and the necessary
changes would be made.... we refuse to rule that an officer is required to
disbelieve a judge who has just advised him, by word and by action, that
the warrant he possesses authorizes him to conduct the search he has
requested.
... the police conduct in this case clearly was objectively reasonable and
largely error-free. An error of constitutional dimensions may have been
committed with respect to the issuance of the warrant, but it was the
judge, not the police officers, who made the critical mistake.... federal law
does not require the exclusion of the disputed evidence in this case. The
judgment of the Supreme Judicial Court is therefore reversed, and the
case is remanded for further proceedings not inconsistent with this
opinion.
Justice Stevens filed an opinion concurring in the judgment. Justice Brennan filed a
dissenting opinion in which Justice Marshall joined (see dissent of Justice Brennan in U.
S. v. Leon).
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NOTE: These two cases, Massachusetts v. Sheppard and United States v. Leon, were handed
down the same day, July 5, 1984. They dealt with the same issue: The Good Faith Exception
to the Exclusionary Rule of the Fourth Amendment. Justice White wrote the majority opinion in
both cases, while Justices Brennan and Marshall dissented in both cases. Justice Stevens also
dissented in the case of U. S. v. Leon, but concurred with the majority in Massachusetts v.
Sheppard.
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BOOKER T. HUDSON, JR. v. MICHIGAN
# 04-1360
Argued January 9, 2006, Reargued May 18, 2006
Decided June 15, 2006
Police officers generally are required to give a suspect a chance to voluntarily admit
them inside his or her home before entering and searching it, even with a warrant.
Since Thirteenth Century England, police have observed this “knock-and-announce”
rule. The rule is based on the idea of home privacy and Fourth Amendment protection
against unreasonable searches. It requires police to knock, announce themselves, and
wait a “reasonable” time, usually around twenty seconds, before entering.
In August 1998, police, with a warrant to search for drugs and guns, arrived at Booker
Hudson’s front door. They did not knock but called out their presence, waited three to
five seconds, and then burst through the unlocked door. Police found five rocks of
crack cocaine in Hudson’s pocket and more drugs and a gun elsewhere in the house.
Hudson was charged with possession of cocaine with intent to deliver and illegal firearm
possession.
Hudson’s attorney moved to suppress the evidence found in the home, arguing that
police had violated Hudson’s Fourth Amendment rights by not knocking before entering
the home. The prosecutor in the case conceded the officers violated the knock-andannounce requirement.
The trial judge ruled the evidence should be suppressed and dismissed the charges
against Hudson. But when appealed to the Michigan Court of Appeals, the case was
reversed. After a retrial, Hudson was sentenced to eighteen months probation. This
time the case was affirmed by the state appellate court.
In Weeks v. United States (1914), the U.S. Supreme Court adopted the federal
exclusionary rule. This rule disallows illegally seized evidence to be used at trial. In
1961, in Mapp v. Ohio, the Supreme Court made the exclusionary rule binding on the
states through the Fourteenth Amendment Due Process Clause.

ISSUE: Is a police failure to “knock and announce” before entering a home in
violation of the Fourth Amendment prohibition against illegal search and seizure?
May evidence obtained under such circumstances be used in court?
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BOOKER T. HUDSON, JR. v. MICHIGAN
Decision
Evidence seized at a home may be used in a trial even if police failed to knock and
announce their presence, according to the Supreme Court. Justice Scalia, in the fiveto-four decision, acknowledged that such entries are unconstitutional but explained that
they are not serious enough to invoke the traditional sanction for unlawful searches,
which is exclusion of the evidence they yield. Scalia noted that the Court has allowed
“many situations in which it is not necessary to knock and announce.” He continued:
… We require only that police “have a reasonable suspicion … under the
particular circumstances” that one of these grounds for failing to knock
and announce exists, and we have acknowledged that “[t]his showing is
not high.”
When the knock-and-announce rule does apply, it is not easy to determine
precisely what officers must do. How many seconds’ wait are too few? ….
Scalia explained three purposes behind the knock-and-announce rule: keeping
surprised occupants from reflexively attacking intruding police; sparing residents the
cost of repairing broken doors; and safeguarding “elements of privacy and dignity.” But
the rule “has never protected … one’s interest in preventing the government” from
obtaining evidence listed in a warrant, Justice Scalia wrote. Had police obeyed the rule,
it might have delayed their entry by several more seconds, but they would have found
the evidence anyway.
Therefore, Scalia concluded:
What the knock-and-announce rule has never protected … is one’s
interest in preventing the government from seeing or taking evidence
described in a warrant. Since the interests that were violated in this case
have nothing to do with the seizure of the evidence, the exclusionary rule
is inapplicable.
Noting that the purpose of the exclusionary rule was to deter constitutional violations by
making them costly for the prosecution, Justice Scalia said there was less need for
deterrence today, when the police are better trained and when the ability to bring civil
rights suits against the government has greatly expanded. The conditions that made
deterrence necessary “in different contexts and long ago” no longer exist, Justice Scalia
said, adding that a strict application of the exclusionary rule as envisioned by the Court
in 1961 “would be forcing the public today to pay for the sins and inadequacies of a
legal regime that existed almost half a century ago.”
In a concurring opinion, Justice Kennedy said he wished to underscore the point that
“the continued operation of the exclusionary rule, as settled and defined by our
precedents, is not in doubt.” Kennedy agreed with Scalia that police are sufficiently
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deterred from improper searches by the right of occupants to sue under civil rights law.
Justice Breyer, writing for the dissenters, called the decision “doubly troubling.” He said
the majority opinion “represents a significant departure from the court’s precedents.
And it weakens, perhaps destroys, much of the practical value of the Constitution’s
knock-and-announce protection.”
Breyer was joined by Justices Stevens, Souter and Ginsburg. He called the majority’s
argument “an argument against the Fourth Amendment’s exclusionary principle itself,”
adding, “And it is an argument that this court until now has consistently rejected.”
Breyer continued:
…[O]ur Fourth Amendment traditions place high value upon protecting
privacy in the home. They emphasize the need to assure that its
constitutional protections are effective, lest the Amendment ‘sound the
word of promise to the ear but break it to the hope.’ They include an
exclusionary principle, which since Weeks has formed the centerpiece of
the criminal law’s effort to ensure the practical reality of those promises….
Regarding civil rights lawsuits, Breyer countered that such cases are rare and often do
not bring much relief for victims.
The case was first argued in January when Justice O’Connor was on the Court and
reargued after her retirement when Justice Alito was seated.
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BENNIE D. HERRING v. UNITED STATES
No. 07-513
Argued October 7, 2008
Decided January 14, 2009
In Mapp v. Ohio (1961), the Supreme Court adopted the exclusionary rule as a national
Fourth Amendment standard. The exclusionary rule says that evidence illegally seized
by law enforcement officers in violation of a suspect's right to be free from unreasonable
searches and seizures cannot be used against the suspect in a criminal prosecution.
The Court acknowledged that the rule might let some criminals go free, but it
underscored that it was more important to compel the nation’s police forces to obey the
law.
On July 7, 2004, Bennie Herring, a convicted felon, went to the county sheriff’s office to
retrieve something from his impounded truck. An investigator, knowing of Herring’s
criminal background, asked the county’s warrant clerk to check for any outstanding
warrants that might be out for Herring. The clerk found none in that county, but in
checking further the clerk found an active arrest warrant for Herring’s failure to appear
on a felony charge in a neighboring county. After receiving a faxed copy of the warrant,
the investigator followed Herring as he left the impound lot, pulled him over, and
arrested him. A search incident to the arrest revealed drugs and a pistol, which felon is
not allowed to have in his possession.
The warrant, however, had been recalled five months earlier but mistakenly not
removed from the computer system. This fact was discovered within five-to-ten minutes
after Herring’s arrest. Herring was indicted in the U.S. District Court for illegally
possessing the gun and drugs. He moved to suppress the evidence on the ground that
his initial arrest had been illegal because the warrant had been rescinded. The district
court denied the motion because the arresting officers had acted in a good-faith belief
that the warrant was still outstanding. The Eleventh Circuit found the arresting officers
“were entirely innocent of any wrongdoing or carelessness.”
In 1983, a young lawyer in the Reagan White House was hard at work on a “campaign
to amend or abolish the exclusionary rule.” That young lawyer, John G. Roberts, Jr.,
was Chief Justice of the U. S. Supreme Court when the Herring case appeared before
the Court in 2008.

ISSUE: Does a court violate the Fourth Amendment rights of a criminal
defendant by introducing evidence obtained through a police search based on an
arrest warrant that had been recalled but was negligently allowed to remain
active in the computer system at the time of the search? Does the exclusionary
rule apply in this case?
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HERRING v. UNITED STATES (2009)
Decision
Chief Justice Roberts chose to write the majority opinion in this five-to-four decision
himself. He explained, “To trigger the exclusionary rule, police conduct must be
sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable
that such deterrence is worth the price paid by the justice system.” Roberts declared
that evidence need not necessarily be disqualified if it was illegally obtained because of
errors in police data bases. Isolated mistakes of this sort, he insisted, are not among
the exclusionary rule’s “core concerns.”
Affirming the lower court’s decision for the U.S., Roberts wrote:
The fact that a Fourth Amendment violation occurred—that a search or
arrest was unreasonable—does not necessarily mean that the
exclusionary rule applies…. Indeed, exclusion “has always been our last
resort, not our first impulse” .…
First, the exclusionary rule is not an individual right and applies only where
it “result[s] in appreciable deterrence.” … We have repeatedly rejected
the argument that exclusion is a necessary consequence of a Fourth
Amendment violation….
In addition, the benefits of deterrence must outweigh the costs. … The
principal cost of applying the rule is, of course, letting guilty and possibly
dangerous defendants go free—something that “offends basic concepts of
the criminal justice system.” …
Roberts was joined by Justices Scalia, Kennedy, Thomas and Alito in his majority
opinion.
Justice Ginsburg was joined by Justices Stevens, Souter and Breyer in her dissent.
She pointed out that an intact exclusionary rule provides a strong incentive for police
compliance with respect to the Fourth Amendment, and its erosion in this case was not
warranted. She wrote, “[T]he ‘most serious impact’ of the Court’s holding will be on
innocent persons ‘wrongfully arrested based on erroneous information [carelessly
maintained] in a computer data base.’”
Justice Breyer, in addition to joining Ginsburg’s dissent, also filed a separate dissenting
opinion that was joined by Souter. He argued that the Court should move away from its
reliance on analyzing the degree of police culpability when determining whether the
exclusionary rule applies, but rather draw a bright line between errors made by record
keepers and those made by police officers.
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TIMOTHY SCOTT v. VICTOR HARRIS
No. 05-1631
Argued February 26, 2007
Decided April 30, 2007
One night in March, 2001, a police officer clocked nineteen-year-old Victor Harris’
Cadillac going 73 mph in a 55 mph speed zone. The officer pursued Harris with
flashing lights but Harris refused to stop.
Another officer, Timothy Scott, heard about the chase on his radio and joined the
pursuit. At one point, Harris’ car collided with Scott’s police car and then sped off again.
Because of the high speed of Harris’ car, Scott waited until no other motorists were
close and rammed his front bumper into Harris’ car. This maneuver was intended to
end the chase, and it did.
Harris, who was not wearing a seatbelt, lost control of the car, which careened down an
embankment. Because of the crash, Harris became paralyzed from the neck down. No
one else was injured.
Harris filed a federal lawsuit against Scott, claiming that Scott had violated his Fourth
Amendment protections against unreasonable seizure when Scott used his car as
excessive force against him during the pursuit. A grainy nighttime video was used
during the trial that showed Harris’s car racing down narrow, two-lane roads in the dead
of night at high rates of speed as it swerved around more than a dozen other cars,
crossed the double-yellow line, ran multiple red lights, and forced cars traveling in both
directions to the shoulders of the road to avoid being hit.
The federal district court ruled against Scott. The Eleventh Circuit Court upheld this
decision, and then Scott asked the United States Supreme Court to rule.

Under Fourth Amendment protections, can a police officer take actions that place
a fleeing motorist at risk of serious injury or death in order to stop the motorist’s
flight from endangering the lives of innocent bystanders?
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SCOTT v. HARRIS (2007)
Decision
The Supreme Court ruled, eight-to-one, that Scott had acted reasonably under the Fourth
Amendment. After viewing the video of the chase, Scalia stated that Scott’s decision to force
Harris off the road was “reasonable” so as to protect pedestrians and other motorists from “a
Hollywood-style car chase of the most frightening sort, placing police officers and innocent
bystanders alike at great risk of serious injury.” Scalia noted that from the appeals court
decision, “one gets the impression that [Harris}, rather than fleeing from police, was attempting
to pass his driving test.”
In determining the reasonableness of Scott’s actions, Scalia continued:
… [W]e must consider the risk of bodily harm that Scott’s actions posed to
[Harris] in light of the threat to the public that Scott was trying to eliminate.
Although there is no obvious way to quantify the risks on either side, it is clear
from the videotape that respondent posed an actual and imminent threat to the
lives of any pedestrians who might have been present, to other civilian motorists,
and to the officers involved in the chase…. We think it appropriate in this
process to take into account not only the number of lives at risk, but also their
relative culpability. In was [Harris], after all, who intentionally placed himself and
the public in danger by unlawfully engaging in the reckless, high-speed flight that
ultimately produced the choice between two evils that Scott confronted….
The majority opinion ended with a “sensible rule:”
… A police officer’s attempt to terminate a dangerous high-speed car chase that
threatens the lives of innocent bystanders does not violate the Fourth
Amendment, even when it places the fleeing motorist at risk of serious injury or
death.
In his concurrence, Justice Breyer cautioned that the new rule set forth in this case was “too
absolute,” arguing that, “whether a high-speed chase violates the Fourth Amendment may well
depend upon more circumstances than the majority’s rule reflects.” In a separate concurrence,
Justice Ginsburg made clear that she did not “read today’s decision as articulating a
mechanical, per se rule.”
In his dissent, Justice Stevens mused:
What would have happened if the police had decided to abandon the chase? We
now know that they could have apprehended [Harris] later because they had his
license plate number. Even if that were not true …, the use of deadly force in
this case was no more appropriate than the use of a deadly weapon against a
fleeing felon….
Stevens concluded:
… [T]he risks inherent in justifying unwarranted police conduct on the basis of
unfounded assumptions are unacceptable, particularly when less drastic
measures … or a simple warning issued from a loudspeaker—could have
avoided such a tragic result….
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BRUCE EDWARD BRENDLIN v. CALIFORNIA
No. 06-8120
Argued April 23, 2007
Decided June 18, 2007
Early in the morning on November 27, 2001, in Yuba City, California, Bruce Brendlin
was a passenger in a car that police stopped. A temporary permit was visible in the
rear window, but police said they pulled the car over to check whether the registration
was valid. The state later conceded that the stop was invalid because the police
officers knew, from an encounter earlier that day, that the registration was in order.
Upon stopping the car, one of the officers recognized Mr. Brendlin as a parole violator
and, after verifying that there was a warrant out for his arrest, placed him under arrest.
A search of the car and of Brendlin himself turned up more than twelve grams of
marijuana and materials used to manufacture methamphetamine.
At his trial, Brendlin argued that the evidence should be suppressed as the result of the
unlawful stop. After losing the motion, he pleaded guilty and was sentenced to four
years in prison.
The California Court of Appeal reversed the denial of the suppression of the evidence,
holding that Brendlin was seized by the traffic stop, which they determined to be
unlawful. But the California Supreme Court held that Brendlin was not the target of the
stop and that until the officer recognized and arrested him, he had not been “seized.”

ISSUE: Is a passenger in a car subject to a traffic stop detained for purposes of
the Fourth Amendment?
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BRENDLIN v. CALIFORNIA (2007)
Decision
In its unanimous decision, the United States Supreme Court determined that a
passenger in a car stopped by the police has a Fourth Amendment right to challenge
the legality of the stop. Justice Souter, writing for the Court, said that a police stop
results in a seizure of the passengers no less than of the driver. Souter wrote:
The State concedes that the police had no adequate justification to pull
the car over, but argues that the passenger was not seized and thus
cannot claim that the evidence was tainted by an unconstitutional stop.
We resolve this question by asking whether a reasonable person in
Brendlin’s position when the car stopped would have believed himself free
to “terminate the encounter” between the police and himself. We think
that in these circumstances any reasonable passenger would have
understood the police officers to be exercising control to the point that no
one in the car was free to depart without police permission.
A traffic stop necessarily curtails the travel a passenger has chosen just
as much as it halts the driver, diverting both from the stream of traffic to
the side of the road, and the police activity that normally amounts to
intrusion on “privacy and personal security” does not normally …
distinguish between passenger and driver….
The Court left open the question whether a passenger in a taxicab is “seized” when the
cab is pulled over because the expectations of cab passengers and the police in such
situations may be different than when the car pulled over is a private vehicle.
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SAFFORD UNIFIED SCHOOL DISTRICT #1 ET AL.
v. APRIL REDDING
No. 08-479, Argued April 21, 2009,
Decided June 25, 2009
Savana Redding
In 1985, the U.S. Supreme Court for the first time, in New Jersey v. TLO, specifically
applied the Fourth Amendment’s protection against unreasonable searches to students.
The case involved a student whose purse was searched after she was caught smoking
in a restroom. The Court upheld the search, yet emphasized that students have
legitimate expectations of privacy, and judges should balance school interest in
enforcing rules to protect all students with individual privacy rights. The justices held
that a proper balance of student and school needs requires that a school official’s
search of a student and her property at a school is constitutional if, and only if, the
search meets the Fourth Amendment generalized requirement of reasonableness. The
question remains as to what is “reasonable.”
In 1995 and 2002 rulings, the Supreme Court upheld drug testing of urine—considered
a type of “search”—for students involved in athletics and other extracurricular activities.
In those cases, the justices in the majority emphasized the importance of deterring
student drug use.
In 2003, school officials at Safford Middle School in Arizona, unnerved by the relatively
recent drug-related death of one of its students, learned that a student had brought to
school, in violation of school policy, some pain tablets that could only be obtained with a
doctor’s prescription. Four 400-mg ibuprofen pills and one 200-mg over-the-counter
blue naproxen pill were traced to or found in the possession of a student named
Marissa. When questioned, Marissa told school authorities that another student,
Savana Redding, an eighth grade honor student, had given her the pills, along with a
black planner. When the planner was seized from Marissa and searched, officials found
several knives, lighters, a permanent marker and a cigarette.
School officials then questioned Savana, who admitted having loaned Marissa the
planner, but denied having any knowledge about, or involvement with, bringing the pills
or other contraband to school. Seemingly unpersuaded by these denials, the school
authorities asked for and obtained Savana’s permission to search her backpack, but the
search turned up nothing.
A nurse and administrative assistant, both women, then took Savana in the nurse’s
office where they asked the girl to take off her shoes and socks, then her shirt and
pants. The two women next asked Savana to pull open her bra and panties so they
could see whether she was hiding any pills—again, no pills were found. Savana
reported afterward that the search was methodical and humiliating.
On her daughter’s behalf, Savana’s mother sued the school district and various school
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district officials in federal court, alleging that a Fourth Amendment violation had
occurred. The district court ruled for the school, but that ruling was reversed by an en
banc Ninth Circuit Court. The appeals court called Savana’s ordeal “a grossly intrusive
search of a middle-school girl to locate pills with the potency of two over-the-counter
Advil capsules.”

ISSUES: Does the Fourth Amendment prohibit school officials from strip
searching students when school officials are acting on a reasonable suspicion
that the student brought forbidden prescription drugs to school?
Are school officials individually liable for damages in a lawsuit?
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SAFFORD UNIFIED SCHOOL DISTRICT #1 ET AL. v. APRIL REDDING (2009)
Decision
The Supreme Court held, by an eight-to-one vote, that school officials violated the
Fourth Amendment rights of Savana Redding when they searched her underwear for
drugs forbidden by the school district. The Court emphasized the difference between
the reasonableness of a routine search of a backpack and a search that exposes a
student’s private parts. Souter explained:
… Marissa’s statement that the pills came from Savana was … sufficiently
plausible to warrant suspicion that Savana was involved in pill distribution.
This suspicion of [the assistant principal’s] was enough to justify a
search of Savana’s backpack and outer clothing….
But school officials did not have sufficient suspicion to warrant extending the search of
Savana to her underwear, the decision explained. With Justice Souter writing for the
majority, the Court reiterated that, based on a reasonable suspicion, search measures
used by school officials to find contraband must be “reasonably related to the objectives
of the search and not excessively intrusive in light of the age and sex of the student and
the nature of the infraction.” Souter continued:
…[W]hat was missing from the suspected facts that pointed to Savana
was any indication of danger to the students from the power of the drugs
or their quantity, and any reason to suppose that Savana was carrying
pills in her underwear. We think that the combination of these deficiencies
was fatal to finding the search reasonable.
Souter was joined by Chief Justice Roberts and Associate Justices Scalia, Kennedy,
Breyer and Alito, and in part by Justices Stevens and Ginsburg.
Justice Stevens, in a separate opinion, concurred in part and dissented in part. He,
joined by Justice Ginsburg, agreed that the strip search was unconstitutional. He stated
that:
… I have long believed that “[i]t does not require a constitutional scholar to
conclude that a nude search of a 13-year old child is an invasion of constitutional
rights of some magnitude.” …
Justice Thomas concurred in the judgment in part and dissented in part. He argued that
the judiciary should not meddle with decisions school administrators make that are in
the interest of keeping their schools safe. Thomas said, “It is a mistake for judges to
assume the responsibility for deciding which school rules are important enough to allow
for invasive searches and which rules are not.”
In a separate vote of seven-to-two, the Court said that because rulings in this area of
the law have not been clear, Safford officials are shielded from financial responsibility
for their actions. Stevens and Ginsburg dissented from that part of the ruling.
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ARIZONA v. GANT
No. 07-542
Argued October 7, 2008
Decided April 21, 2009
Police arrested Rodney Gant for driving with a suspended license. During a warrantless
search of Gant’s car incident to his arrest, officers found a weapon and cocaine. Gant
moved to suppress this evidence; the court denied his motion, and he was convicted of
possession of drugs and drug paraphernalia.
Gant claims the search was unreasonable under the Fourth Amendment because he
was arrested for an unrelated charge and because neither the officer’s safety nor the
integrity of the evidence was imperiled. The State of Arizona argues that the Court
should adopt a clear, bright-line rule that automatically permits officers to conduct a
vehicle search contemporaneous to an arrest. The outcome of this case will affect law
enforcement officers’ conduct during motor vehicle stops and accompanying arrests and
vehicle searches.
The question presented to the U.S. Supreme Court was whether the Fourth Amendment
requires law enforcement officers to demonstrate a threat to their safety or a need to
preserve evidence related to the crime of arrest in order to justify a warrantless
vehicular search incident to arrest conducted after the vehicle’s recent occupants have
been arrested and secured.
In a five-to-four ruling, the Supreme Court affirmed the ruling by the Arizona Supreme
Court, which overturned the conviction and prison sentence. Justice Stevens, writing
for the majority, explained, “Although we have recognized that a motorist’s privacy
interest in his vehicle is less substantial than in his home, the former interest is
nevertheless important and deserving of constitutional protection.”
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ARIZONA v. JOHNSON
No. 07-1122
Argued December 9, 2008
Decided January 26, 2009
After stopping a car for a routine traffic violation in April 2002, Tucson police officer
Maria Trevizo said she decided to search passenger Lemon M. Johnson because he
was wearing gang colors and appeared dangerous. The pat-down search produced a
gun and marijuana, and Johnson was convicted in county court.
Johnson appealed, arguing that evidence against him should have been suppressed
because the search was unconstitutional. The Arizona Court of Appeals agreed and
overruled the lower court. The Arizona Supreme Court declined to review the case.
The question presented is whether, in the context of a vehicular stop for a minor traffic
infraction, an officer may conduct a pat-down search of a passenger when the officer
has a reasonable basis to believe the passenger might be armed and presently
dangerous, but had no reasonable grounds to believe that the passenger is committing,
or has committed, a criminal offense.
On January 26, 2009, the Supreme Court ruled unanimously that a police officer may
search a suspect during a routine traffic stop if she believes that suspect may be armed
and dangerous but has no justifiable reason to believe that they are committing a crime.
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KENTUCKY v. HOLLIS DESHAUN KING
No. 09-127
Argued January 12, 2011
Decided May 15, 2011
Police officers set up a controlled buy of crack cocaine outside an apartment complex in
Lexington, Kentucky. After witnessing a drug deal in the parking lot, police officers
followed the suspect into the apartment building. Just as they entered the breezeway of
the apartment complex, they heard a door shut and detected a strong odor of burnt
marijuana. There were two apartments, and officers didn’t know which one the suspect
had entered. Fearing that whoever was inside was trying to get rid of incriminating
evidence, police knocked on the door and shouted “police, police.” As soon as the
officers started banging on the door they heard sounds that led them to believe that
drug-related evidence was about to be destroyed. Receiving no response, they kicked
the door in and entered. They found, not the original suspect but three other people,
one of whom was smoking marijuana. Upon finding a variety of drugs and drug
paraphernalia in the apartment, police arrested Hollis Deshaun King.
Police eventually entered the other apartment. Inside, they found the suspected drug
dealer who was the initial target of their investigation.
King claimed that entry into the apartment violated his Fourth Amendment rights
because there were no exigent circumstances, which permitted officers to enter without
a warrant. The trial count found the warrantless search was justified by the smell of
marijuana, failure to respond to the officers’ knock, and the movement inside the
apartment. King was convicted of trafficking and possession of illegal drugs, which was
reversed by the Kentucky Supreme Court.

Issue: Under the Fourth Amendment, may police officers’ conduct a warrantless
search of a private dwelling when the police officers think exigent circumstances
exist?
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KENTUCKY v. KING (2011)
Decision
In an eight-to-one vote, the Supreme Court reversed the Kentucky Supreme Court
ruling, saying there was no violation of King’s constitutional rights because the police
acted reasonably. Justice Alito wrote for the majority and began:
“It is a ‘basic principle of Fourth Amendment law” we have often said, “that
searches and seizures inside a home without a warrant are presumptively
unreasonable.” … But we have also recognized that this presumption may
be overcome in some circumstances because “[t]he ultimate touchstone of
the Fourth Amendment is ‘reasonableness.”
Justice Alito said that police officers do not violate the Fourth Amendment ban on
unreasonable searches by kicking down a door after the occupants of an apartment
react to hearing that officers are there by seeming to destroy evidence. He continued:
,,,[I]n the vast majority of cases in which evidence is destroyed by persons
who are engaged in illegal conduct, the reason for the destruction is fear
that the evidence will fall into the hands of law enforcement. Destruction of
evidence issues probably occur most frequently in drug cases because
drugs may be easily destroyed by flushing them down a toilet or rinsing
them down a drain. Persons in possession of valuable drugs are unlikely
to destroy them unless they fear discovery by the police. …
Alito continued, explaining that people have no obligation to respond to the knock or, if
they do open the door, allow the police to come in. He said, “Occupants who choose
not to stand on their constitutional rights but instead elect to attempt to destroy evidence
have only themselves to blame for the warrantless exigent-circumstances search that
may ensue.”
The opinion was a narrow one, and Justice Alito was careful to say that the Court was
not deciding whether an emergency justifying an exception to the warrant requirement
actually existed. It assumed there was good reason to think evidence was being
destroyed, and asked only whether the conduct of the police had impermissibly caused
the destruction. Alito explained, “Where, as here, the police did not create the exigency
by engaging or threatening to engage in conduct that violates the Fourth Amendment,
warrantless entry to prevent the destruction of evidence is reasonable and thus
allowed.” In general, he wrote, “the exigent circumstances rule should not apply where
the police, without a warrant or any legally sound basis for a warrantless entry, threaten
that they will enter without permission unless admitted.”
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Only Justice Ginsburg dissented, saying:
The Court today arms the police with a way routinely to dishonor the
Fourth Amendment’s warrant requirement in drug cases. In lieu of
presenting their evidence to a neutral magistrate police officers may now
knock, listen, then break the door down, nevermind that they had ample
time to obtain a warrant. …
Ginsburg then asked the question, “How ‘secure’ do our homes remain if police, armed
with no warrant, can pound on doors at will and, on hearing sounds indicative of things
moving, forcibly enter and search for evidence of unlawful activity?”
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WILLIE GENE DAVIS v. UNITED STATES
No. 09-11328
Argued March 21, 2011
Decided June 16, 2011
During a routine traffic stop in Greenville, Alabama in 2007, a police officer asked the
vehicle’s only passenger for his name. The passenger identified himself by the name of
“Ernest Harris.” The officer could smell alcohol on the passenger’s breath and noticed
that he was fidgeting with his jacket pockets. The officer asked the passenger to step
out of the car. As he exited the vehicle, he started to take off his jacket and was told by
the officer to leave it on. But he removed the jacket anyway and left it behind on the car
seat. The officer asked a crowd of bystanders if his real name was Harris, and they
responded that it was actually Davis. Davis was arrested for giving a false name,
handcuffed, and placed in the back of the patrol car. When the driver of the vehicle
failed a field sobriety test, she was arrested for driving while intoxicated and placed in a
separate patrol car. Once the vehicle’s occupants had been secured, the officer
searched the car and found a revolver in one of Davis‘ jacket pockets.
After his indictment for possessing a firearm, Davis filed a motion to suppress the gun.
The district court denied his motion on the ground that the gun was found during a valid
search incident to arrest, and Davis was convicted and sentenced to prison.
In 2009, the U.S. Supreme Court handed down its decision in Arizona v. Gant, in which
it determined that, “Police may search a vehicle incident to a recent occupant’s arrest
only if the arrestee is within reaching distance of the passenger compartment at the time
of the search or it is reasonable to believe the vehicle contains evidence of the offense
of arrest.” Davis appealed his conviction based on that decision.

Issue: Did the search of Davis‘ jacket that was located in the vehicle violate the
Fourth Amendment in light of Arizona v. Gant?
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DAVIS v. UNITED STATES (2011)
Decision
In a seven-to-two opinion written by Justice Alito, the Supreme Court ruled that
evidence obtained from a search that was lawful when it was conducted need not be
suppressed if the Supreme Court later determines that searches of that sort violate the
Fourth Amendment. Alito said the purposes of the exclusionary rule, which can require
the suppression of evidence obtained through police misconduct, would not be served
by applying the new decision retroactively to suppress evidence. “[T]he exclusionary
rule is designed to deter police misconduct rather than to punish the errors of judges,”
continuing, “About all that exclusion would deter in this case is conscientious police
work,” Alito wrote.
Alito concluded:
It is one thing for the criminal ‘to go free because the constable has
blundered.’ … It is quite another to set the criminal free because the
constable has scrupulously adhered to governing law. Excluding evidence
in such cases deters no police misconduct and imposes substantial social
costs. We therefore hold that when the police conduct a search in
objectively reasonable reliance on binding appellate precedent, the
exclusionary rule does not apply. …
Justice Alito was joined by Chief Justice Roberts and Associate Justices Scalia,
Kennedy, Thomas, and Kagan.
Justice Sotomayor filed an opinion concurring in the judgment.
Justice Breyer, joined by Justice Ginsburg, dissented, saying that the majority opinion
was part of a trend to “undermine the exclusionary rule.” He wrote:
If the Court means what it says, what will happen to the exclusionary rule, a
rule that the Court adopted nearly a century ago for federal courts, … and
made applicable to state courts a half century ago through the Fourteenth
Amendment …? …
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FLORENCE v. BORAD OF CHOSEN FREHOLDERS OF
COUNTY OF BURLINGTON
566 U.S. ____ 2012
A New Jersey state trooper arrested Albert Florence after a traffic stop when the
trooper’s check of a statewide computer database found a bench warrant issued for
Florence’s arrest after he failed to appear at a hearing to enforce a fine. Florence was
detained initially in the County Detention Center and later in a County Correctional
Facility but was released once authorities discovered that the fine had been paid. Like
every other incoming detainee, at the first facility, Florence had to shower with a
delousing agent, and, as he disrobed, authorities checked him for scars, marks, gang
tattoos, and contraband. Florence asserts that he also had to open his mouth, lift his
tongue, hold out his arms, and lift his genitals. At the second facility, like all other
detainees, Florence had to disrobe while an officer checked him for body markings and
contraband. An officer looked at his ears, nose, mouth, hair, scalp, fingers, hands,
armpits, and other body openings. After a mandatory shower, Florence also claims that
he was required to lift his genitals and to turn around and cough while squatting.
Florence filed an action in a U. S. District Court in which he alleged violations of the
Fourth and Fourteenth Amendments. He argued that individuals arrested for minor
offenses cannot be subjected to invasive searches unless jail officials have reason to
suspect concealment of weapons, drugs, or other contraband. The District Court
granted summary judgment for Florence and ruled that a “strip search” of nonindictable
offenders without reasonable suspicion is a violation of the Fourth Amendment. The U.
S. Court of Appeals reversed the District Court’s judgment, and Florence appealed to
the Supreme Court.
Issue: Are a defendant’s constitutional rights under the Fourth and Fourteenth
Amendments violated when a defendant not arrested for serious offenses, or
offenses involving weapons or drugs, is subjected to an invasive “strip search”
even though officials have no reasonable suspicion to believe that the defendant
is concealing weapons, drugs, or other contraband?
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FLORENCE v. BORAD OF CHOSEN FREHOLDERS OF COUNTY OF
BURLINGTON
DECISION
By a 5-4 vote the Supreme Court affirmed the judgment of the Court of Appeals and
ruled that the search procedures at issue struck a reasonable balance between
defendants’ privacy rights and the needs of the institutions and thus there was no
violation of the Fourth and Fourteenth Amendments. Justice Kennedy delivered the
opinion of the Court except for Part IV of his opinion. Chief Justice Roberts and Justices
Scalia and Alito joined Kennedy’s opinion in full. Justice Thomas joined all of Kennedy’s
opinion except for Part IV. Roberts and Alito also authored concurring opinions. Justice
Breyer dissented and authored a dissenting opinion which Justices Ginsburg,
Sotomayor, and Kagan joined.
Justice Kennedy wrote: “Correctional officials have a legitimate interest, indeed a
responsibility, to insure that jails are not made less secure by reason of what new
detainees may carry in on their bodies. Facility personnel, other inmates, and the
detainee himself or herself may be in danger if these threats are introduced into the jail
population. … In addressing this type of constitutional claim courts must defer to the
judgment of correctional officials unless the record contains substantial evidence
showing their policies are an unnecessary or unjustified response to problems of jail
security. That necessary showing has not been made in this case. … The difficulties
of operating a detention center must not be underestimated by the courts. … The need
for a particular search must be balanced against the resulting invasion of personal
rights. … People detained for minor offenses can turn out to be the most devious and
dangerous criminals. … Jails can be even more dangerous than prisons because
officials there know so little about the people they admit at the outset.” … (Part IV:
“This case does not require the Court to rule on the types of searches that would be
reasonable in instances where, for example, a detainee will be held without assignment
to the general jail population and without substantial contact with other detainees. …
The circumstances before the Court, however, do not present the opportunity to
consider a narrow exception of the sort Justice Alito describes … which might restrict
whether an arrestee whose detention has not yet been reviewed by a magistrate, or
other judicial officer, and who can be held in available facilities removed from the
general population, may be subjected to the types of searches at issue here. …
Petitioner’s amici raise concerns about instances of officers engaging in intentional
humiliation and other abusive practices. … There also may be legitimate concerns
about the invasiveness of searches that involve the touching of detainees. These issues
are not implicated on the facts of this case, however, and it is unnecessary to consider
them here.”)
In a concurring opinion, Chief Justice Roberts wrote: “I join the opinion of the Court.
As with Justice Alito, however, it is important for me that the Court does not foreclose
the possibility of an exception to the rule it announces. Justice Kennedy explains that
the circumstances before it do not afford an opportunity to consider that possibility. …
Those circumstances include the facts that Florence was detained not for a minor traffic
offense but instead pursuant to a warrant for his arrest, and that there was apparently
no alternative, if Florence were to be detained, to holding him in the general jail
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population.”
In his concurring opinion, Justice Alito wrote: “I join the opinion of the Court but
emphasize the limits of today’s holding. The Court holds that jail administrators may
require all arrestees who are committed to the general population of a jail to
undergo visual strip searches not involving physical contact by corrections officers. …
It is important to note, however, that the Court does not hold that it is always
reasonable to conduct a full strip search of an arrestee whose detention has not been
reviewed by a judicial officer and who could be held in available facilities apart from the
general population.
In his dissenting opinion, Justice Breyer wrote: “… the searches here involve close
observation of the private areas of a person’s body and for that reason constitute a far
more serious invasion of that person’s privacy. … In my view, such a search of an
individual arrested for a minor offense that does not involve drugs or violence – say a
traffic offense, a regulatory offense, an essentially civil matter, or any other such
misdemeanor – is an ‘unreasonable search’ forbidden by the Fourth Amendment,
unless prison authorities have reasonable suspicion to believe that the individual
possesses drugs or other contraband. … Those confined in prison retain basic
constitutional rights. … I believe that the ‘invasion of personal rights’ here is very
serious and lacks need or justification … at least as to the category of minor offenders
at issue.”
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UNITED STATES v. JONES
565 U. S. ___ (2012)
In 2004 Antoine Jones, who owned and operated a nightclub in the District of Columbia,
was suspected of trafficking in narcotics and became the target of an investigation by a
joint FBI and Metropolitan Police Department task force. Investigating officers
employed a variety of techniques including visual surveillance of the nightclub, a
camera focused on the club’s front door, and a pen register and wiretap of Jones’ cell
phone. In 2005, based in part on information gathered through these means, the
government applied to the U. S. District Court for the District of Columbia for a warrant
authorizing the installation of a GPS tracking device on a vehicle registered to Jones’
wife. The District Court issued the warrant authorizing the device’s installation in the
District of Columbia and within 10 days. On the 11th day, and not in the District but in
Maryland, agents installed the device, and over the next 28 days used it to trace the
vehicle’s movements. The government obtained a multiple-count indictment charging
Jones and several co-conspirators with conspiracy to distribute and possess with intent
to distribute cocaine and cocaine base. Before trial, Jones’ lawyers filed a motion to
suppress evidence obtained through use of the GPS. The District Court agreed to
suppress evidence obtained from the GPS while the vehicle was parked at Jones’
residence but ruled that the rest of the evidence obtained through use of the device was
admissible since Jones had “no reasonable expectation of privacy” while the vehicle
was on the public streets. Jones was convicted in the District Court, but the D. C. Court
of Appeals reversed his conviction when it ruled that evidence seized through
warrantless use of the GPS was inadmissible under the Fourth Amendment. The U. S.
appealed to the Supreme Court.
Issue: Is evidence obtained through warrantless use of a GPS device while a
vehicle is in the public streets inadmissible in court under the Fourth
Amendment’s protection against unreasonable searches and seizures?
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UNITED STATES v. JONES
DECISION
The Supreme Court unanimously affirmed the Court of Appeals’ judgment and thus
ruled that evidence obtained through the warrantless use of a GPS device while a
vehicle is in the public streets is a search and seizure and is inadmissible in court
against the accused under the Fourth Amendment. Justice Scalia wrote the opinion of
the Court which Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor
joined. Justice Sotomayor authored a concurring opinion. Justice Alito also wrote a
concurring opinion which Justices Ginsburg, Breyer, and Kagan joined.
Justice Scalia wrote: “The Government physically occupied private property for the
purpose of obtaining information. We have no doubt that such a physical intrusion would
have been considered a ‘search’ within the meaning of the Fourth Amendment when it
was adopted. … The Government contends … that no search occurred here, since
Jones had no ‘reasonable expectation of privacy’ in the area of the Jeep accessed by
Government agents (its underbody) and in the location of the Jeep on the public roads,
which was visible to all. … By attaching the device to the Jeep, officers encroached on
a protected area.” Concurring, Justice Sotomayor wrote: “The Government usurped
Jones’ property for the purpose of conducting surveillance on him, thereby invading
privacy interests long afforded, and undoubtedly entitled to, Fourth Amendment
protection.
… Of course, the Fourth Amendment is not concerned only with
trespassory intrusions on property. … Rather, even in the absence of trespass, ‘a
Fourth Amendment search occurs when the Government violates a subjective
expectation of privacy that society recognizes as reasonable.’ … When the
Government physically invades personal property to gather information, a search
occurs. The reaffirmation of that principle suffices to decide this case.
… GPS
monitoring generates a precise, comprehensive record of a person’s public movements
that reflects a wealth of detail about his familial, political, professional, religious, and
sexual associations. … Awareness that the Government may be watching chills
associational and expressive freedoms. … I would ask whether people reasonably
expect that their movements will be recorded and aggregated in a manner that enables
the Government to ascertain, more or less at will, their political and religious beliefs,
sexual habits, and so on.” Concurring, Justice Alito wrote: “Ironically, the Court has
chosen to decide this case based on 18th century tort law. By attaching a small GPS
device to the underside of the vehicle that respondent drove, the law enforcement
officers in this case engaged in conduct that might have provided grounds in 1791for a
suit for trespass to chattels. And for this reason, the Court concludes, the installation
and use of the GPS device constituted a search. This holding, in my judgment, is
unwise. It strains the language of the Fourth Amendment; it has little if any support in
current Fourth Amendment case law; and it is highly artificial. I would analyze the
question presented in this case by asking whether respondent’s reasonable
expectations of privacy were violated by the long-term monitoring of the movements of
the vehicle he drove. The Fourth Amendment prohibits ‘unreasonable searches and
seizures,’ and the Court makes very little effort to explain how the attachment or use of
the GPS device fits within these terms. … Katz v United States (1967) finally did away
with the old approach, holding that a trespass was not required for a Fourth Amendment
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violation. … I conclude that the lengthy monitoring that occurred in this case constituted
a search under the Fourth Amendment. I therefore agree with the majority that the
decision of the Court of Appeals must be affirmed.”
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VI.
CASES INVOLVING SEARCHES WITHOUT
WARRANTS*
A. AUTOMOBILE SEARCHES
1. Carroll v. U.S., 267 U.S. 132, 45 S.Ct. 280 (1925): Police had long
suspected Carroll of being a bootlegger of illegal liquor and had tried
unsuccessfully several times to stop his car. One evening officers
stopped Carroll’s car as he was returning to Grand Rapids from Detroit.
They searched it extensively without a warrant, tearing apart seats and
other automobile components. When they discovered illegal whiskey,
Carroll was arrested. He was subsequently convicted of transporting
intoxicating liquor. Carroll appealed his conviction, arguing that the
evidence was the result of an illegal search of his vehicle without probable
cause and also without a valid search warrant.
When the case got to the U.S. Supreme Court, his conviction was upheld.
The Court ruled that officers did have probable cause to stop him and did
not need a search warrant, stressing that automobiles, unlike houses, are
highly mobile entities, and therefore the police were authorized to search a
car before its occupants could destroy any illegal contraband.
2. Henry v. U.S., 361 U.S. 98, 80 S.Ct. 168 (1959): As Henry and a
companion loaded several boxes into Henry’s automobile, FBI agents who
happened to be nearby observed the action. They approached the two
men, asking them about the boxes. The men were searched and detained
while the agents determined whether the merchandise was stolen. Upon
determining that the merchandise was, indeed, stolen, the FBI agents
placed the two men under arrest for interstate transportation of stolen
radios. After being convicted in a federal district court, Henry and his
companion appealed on the basis that the FBI agents lacked probable
cause to conduct a warrantless search of Henry’s vehicle. They argued
that a visual inspection of the boxes and their contents was not proof that
they were stolen.
The U.S. argued that since the radios were
subsequently proven in court to be stolen, the end justified the means.
The U.S. Supreme Court overturned the conviction, concluding that “an
arrest is not justified by what the subsequent search discloses.” The
Court also stated, “It is better, so the Fourth Amendment teaches, that the
guilty sometimes go free than that citizens be subject to easy arrest.”
3. State of Delaware v. Willian J. Prouse, III, 440 U.S. 648, 59 L.Ed 2d
660, 99 S.Ct. 1391 (1979): A New Castle County, Delaware police officer
stopped an automobile in which Prouse was a passenger. The officer had
observed nothing illegal about the vehicle or the way it was being driven,
but simply stopped the car to routinely check for a driver’s license and
vehicle registration. As he walked toward the stopped vehicle, the officer
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smelled marijuana. When he reached the car he could see the drug in
plain view on the floor of the vehicle. Prouse was charged with marijuana
possession and filed a motion to suppress the evidence on the basis that
the officer had no probable cause to stop him in the first place, so all
evidence found should have been suppressed. The trial court granted the
motion, and the Delaware Supreme Court affirmed.
The U.S. Supreme Court also agreed with Prouse, saying that officers
must have probable cause in order to stop vehicles. With this case, the
Court invalidated random stops by police to check the validity of driver’s
licenses and auto registrations. This case, however, did not make spot
checks of vehicles unconstitutional. The Supreme Court allowed stops
when there is “at least articulable and reasonable suspicion that a motorist
is unlicensed or that an automobile is not registered, or that either the
vehicle or an occupant is otherwise subject to seizure for violation of a
law, stopping an automobile and detaining the driver in order to check his
driver’s license and the registration of the automobile are unreasonable
under the Fourth Amendment.” The Court encouraged states to develop
methods for spot checks that involve less intrusiveness, such as the
questioning of all oncoming traffic at roadblock-type stops.
In 1990 the Supreme Court heard the case of Michigan v. Sitz, 496 U. S.
444. The Court, in a five-to-four ruling, found that the state does not
violate the Fourth nor the Fourteenth Amendment when it operates
highway sobriety checkpoints under guidelines set by Michigan.
Balancing the state’s interest in preventing drunken driving and the
individual intrusion on those motorists who are briefly stopped weighs in
favor of the state program, determined the plurality of the Court.
4.
Maryland v. Wilson, No. 95-1268 (1997): A Maryland state trooper
observed a passenger car driving faster than the posted speed limit. The
car had no regular license tag, but there was a torn piece of paper
indicating that it was a rental car dangling from the car’s rear. The trooper
signaled the car to pull over, which it eventually did. There were three
occupants in the car, and two passengers turned to look at the trooper
several times, repeatedly ducking below sight level and then reappearing.
As the officer approached the car on foot, the driver alighted and met him
halfway. The driver was trembling and appeared extremely nervous, but
produced a valid driver’s license. The officer instructed the driver to return
to the car and get the rental documents, which he did. During this
encounter, the officer noticed that the front-seat passenger, Jerry Lee
Wilson, was sweating and also appeared extremely nervous. While the
driver was sitting in the driver’s seat looking for the rental papers, the
trooper ordered Wilson out of the car. When Wilson exited the car, a
quantity of crack cocaine fell to the ground. Wilson was then arrested and
charged with possession of cocaine with intent to distribute. Before he
was tried, Wilson moved to suppress the evidence, arguing that being
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ordered out of the car constituted an unreasonable seizure under the
Fourth Amendment because he was a passenger and not suspected of
wrongdoing.
The Supreme Court determined that wWhen making a routine traffic stop,
police can order passengers as well as the driver out of the car, by a vote
of seven-to-two. The Court said that the need for police to maintain
control over a traffic stop scene for their own safety justifies the “minimal”
intrusion on the privacy of a passenger, even when the passenger is not
suspected of any wrongdoing.
“Regrettable, traffic stops may be
dangerous encounters,” wrote Chief Justice Rehnquist.
5.
Wyoming v. Sandra Houghton, No. 98-184, (1999): Wyoming State
police pulled a driver over for speeding and having a faulty brake light on
his car. Sandra Houghton was a passenger in the front seat of the car.
While questioning the driver, the officer noticed a hypodermic syringe in
his shirt pocket. After obtaining gloves from his patrol car, the officer
instructed the driver to step out of the car and place the syringe on the
hood. The officer then asked him why he had a syringe, and he candidly
stated that he had used it to take drugs.
Backup officers ordered the passengers out of the car and asked them for
identification. Houghton falsely identified herself and stated she did not
have any identification. Searching the passenger compartment of the car,
an officer found a purse on the back seat, which Houghton claimed was
hers. The purse contained a wallet with a driver’s license, identifying her..
The officer also found a pouch containing drug paraphernalia and a
syringe containing methamphetamine. Houghton admitted ownership,
which was also found to contain drug paraphernalia and a syringe of
methamphetamine. One of the officers also found fresh needle-track
marks on Houghton’s arms. He placed her under arrest.
Houghton was charged with felony possession of methamphetamine.
Upon a motion to suppress all evidence obtained from the purse because
of Fourth and Fourteenth Amendment violations, the court held that the
officer had probable cause to search the car and any containers therein.
A jury convicted Houghton as charged.
The Supreme Court was asked to determine if the “automobile exception”
to the Fourth Amendment warrant requirement, as made applicable to
states through the Fourteenth Amendment, allows police officers to
conduct a warrantless search of a passenger’s personal belongings after a
vehicle has been lawfully stopped for traffic violations.
In a six-to-three opinion, the Supreme Court determined that police
officers with probable cause to search a car may also inspect passengers’
belongings found in the car that are capable of concealing the object of
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the search. Justice Scalia, who wrote the majority opinion, stated, “It is
uncontested ... that the police officers had probable cause to believe there
were illegal drugs in the car....”
6.
City of Indianapolis v. Edmond, No. 99-1020 (2000): In 1998, the City of
Indianapolis began to operate vehicle checkpoints in an effort to curb the
distribution of unlawful drugs. A predetermined number of vehicles was to
be stopped. Pulling over cars in sequence, the driver was advised that he
or she was being stopped at a drug checkpoint and asked to produce a
driver’s license and automobile registration. The officer then walked a
specially trained dog around the car to sniff for drugs. The officer also
watched for signs of impairment and conducted an open-view examination
of the vehicle from the outside. Further searches could only be conducted
if suspicion developed. Absent reasonable suspicion or probable cause,
each stop would be five minutes or less, and most stops took under three
minutes. Checkpoints were usually operated during daylight hours and
identified with lighted signs.
James Edmond was stopped at a checkpoint and then filed a lawsuit on
behalf of all motorists who had been stopped or were subject to being
stopped in the future at the drug checkpoints. They claimed that the
roadblocks violated the Fourth Amendment of the United States
Constitution.
In answering the question of whether random roadblocks, not based on
suspicion of individual wrongdoing, violate the Fourth Amendment
prohibition against unreasonable search and seizure, by a six-to-three
majority, the Supreme Court held that the City of Indianapolis violated the
Fourth Amendment rights of drivers whom the police stopped. In her
majority opinion, Justice O’Connor stated that the purpose of the
checkpoint made all the difference. She wrote: We have never approved
a checkpoint program whose primary purpose was to detect evidence of
ordinary criminal wrongdoing.
Rather, our checkpoint cases have
recognized only limited exceptions to the general rule that a seizure must
be accompanied by some measure of individualized suspicion....
7.
Illinois v. Lidster, No. 02-1060, (2004): A hit-and-run driver struck and
killed a 70-year-old who was bicycling on an Illinois highway.
Investigating the case, local police set up a checkpoint in an attempt to
obtain information about the incident. As each car drove up to the
checkpoint, an officer would stop it for ten to fifteen seconds, asking
whether they had seen anything relating to the accident. Each driver was
handed a flyer requesting assistance in identifying the vehicle and driver in
the accident. As Lidster approached the checkpoint, his van swerved,
nearly hitting one of the officers. When an officer smelled alcohol on
Lidster’s breath, he was directed to a side street and administered a
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sobriety test. As a result, he was tried and convicted of driving while
under the influence of alcohol. The Supreme Court was asked if an
investigatory checkpoint conducted by police violates the Fourth
Amendment privilege against unreasonable search and seizure.
The Supreme Court found for the state by a vote of six-to-three. Justice
Breyer, writing the majority opinion, began by explaining why the Court’s
ruling in Indianapolis v. Edmond does not apply in this case: The stop’s
primary law enforcement purpose was not to determine whether a
vehicle’s occupants were committing a crime, but to ask vehicle
occupants, as
members of the public, for their help in providing information about a crime
in all likelihood committed by others.
Considering the “reasonableness” of this checkpoint stop, Breyer wrote:
The relevant public concern was grave. Police were investigating a crime
that had resulted in human death. No one denies the police’s need to
obtain more information at that time. And the stop’s objective was to help
find the perpetrator of a specific and known crime, not of unknown crimes
of a general sort…. Most importantly, the stops interfered only minimally
with liberty of the sort of the Fourth Amendment seeks to protect.
8.
Illinois v. Caballes, No. 03-0923, (2005): A state trooper stopped
Caballes for speeding and requested his driver’s license, vehicle
registration and proof of insurance, all of which were produced. He also
asked Caballes to move his car out of traffic and then to get into the squad
car. He informed Caballes that he was going to give him a written
warning. The officer asked Caballes if he could check his vehicle and
whether he had had any previous arrests. Caballes refused to allow his
vehicle to be searched and denied having any previous arrests. As the
officer wrote out the warning ticket, he checked Caballes’ information with
the police dispatcher. Information from the dispatcher showed that
Caballes had had two prior arrests for distribution of marijuana.
A second trooper, who had overheard the transmission with the
dispatcher, arrived on the scene with a drug-detection dog. After walking
around Caballes’ car and based on the canine’s alert, marijuana was
discovered in the trunk. Caballes was arrested and charged with one
count of marijuana trafficking. Prior to trial, Caballes’ motion to suppress
the evidence found in the trunk of his car was denied. Caballes was
convicted and sentenced.
On appeal, Caballes’ lawyers argued that the motion to suppress should
have been granted because the trooper had prolonged the stop based on
time required to complete the paperwork. They also argued that there
was no probable cause to search the vehicle, given the unreliability of dog
alerts.
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In a six-to-two decision, the Supreme Court sided with Illinois police. This
decision gave police broader search powers in traffic stops by ruling that
drug-sniffing dogs can be used to search motorists even if officers have no
reason to suspect they may have narcotics.
Justice Stevens wrote for the majority, stating: [C]onducting a dog sniff
would not change the character of a traffic stop that is lawful at its
inception and otherwise executed in a reasonable manner, unless the dog
sniff itself infringed respondent’s constitutionally protected interest in
privacy. Our cases hold that it did not.
B.
CONSENT SEARCHES
1.
Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642 (1967): Police received
information regarding a cab company robbery. An eyewitness had
followed the suspect (Hayden) to a house and reported the information to
the police. When the police went to the house, a woman answered the
door, and upon receiving consent to enter from the woman, went inside.
Once inside the house, police found a shotgun and pistol, clothes fitting
the robber’s description, and a bag containing money with the cab
company name on it. Hayden was arrested and subsequently convicted in
a Maryland state court of armed robbery.
Hayden appealed the
conviction, arguing that the police had no right to enter his home without a
search warrant that had been issued on the basis of probable cause.
The U.S. Supreme Court ruled (five-to-four) that when police are chasing
a suspect and he runs into a building, they are not compelled to risk losing
him by having to go back to get a warrant. They stressed that the test is
immediacy; the more remote in time the sequence of events becomes, the
faster this exception fades. The Supreme Court considered an even more
important consideration that Mrs. Hayden gave her permission for the
police to enter the house and to conduct a search of it. Thus, the Court
ruled, consent provides an additional exception to the exclusionary rule
that would ordinarily require a search warrant before incriminating
evidence can be searched for and seized.
2.
Coolidge v. New Hampshire, 403 U.S. 443, 29 L.Ed 2d 564, 91 S.Ct.
2022 (1971): A fourteen-year-old Manchester, New Hampshire girl had
been called by a man who said he wanted her to work as a babysitter.
Her body was discovered thirteen days later. During their investigation,
the police obtained evidence that implicated Edward Coolidge in the
crime. Two witnesses told police that on the night the girl disappeared
and at the site where her body was eventually found, they had assisted a
man in a parked 1951 Pontiac similar to the one owned by Coolidge.
Coolidge was questioned by police and given a lie-detector test, and
officers went to Coolidge’s home and questioned his wife concerning the
murder. After informing the officers that her husband had not been at
home on the night of the murder, and after being asked whether her
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husband owned any guns, the wife took her husband’s four guns out of a
closet and gave them to the officers. Asked what clothes her husband
had worn on the night of the murder, the wife produced some of his
clothing and voluntarily handed it over to the police. She believed that she
had nothing to hide, and her motive in producing the guns and clothing
was to clear her husband. A laboratory test of the guns revealed that one
of them was used to kill the girl, although conflicting test results were later
presented at the trial. This and other evidence was brought before the
attorney general of the state who was in charge of the investigation and
who subsequently helped prosecute the case. Acting in his capacity also
as a justice of the peace, he issued an arrest warrant and four search
warrants, including one authorizing seizure of Coolidge’s car.
The police then arrested Coolidge at his home and had the Pontiac, which
was parked in the driveway at the time, towed to the police station where it
was searched and vacuumed. At the accused’s murder trial in a New
Hampshire state court, vacuum sweepings obtained from the car were
admitted in evidence against Coolidge, as were clothing and one of the
guns, which his wife had given to the police. He was convicted of murder,
and the New Hampshire Supreme Court affirmed the conviction. When
appealing to the U.S. Supreme Court, Coolidge argued that the warrant
authorizing the seizure and search of his automobile was invalid because
it had been issued by someone with direct and substantial interest in the
outcome of the proceedings instead of by a “neutral and detached
magistrate,” as required by the Fourth and Fourteenth Amendments.
The U.S. Supreme Court (five-to-four) reversed and remanded the case.
The evidence that was seized on the basis of the search warrant was
suppressed because a neutral and detached magistrate had not issued it.
However, the evidence provided by Coolidge’s wife was allowed because
it was the result of consent and did not require a warrant. The Supreme
Court stressed the fact that the attorney general was not a “neutral and
detached” party and thus was not in the position of issuing a valid search
warrant in this particular case. The Supreme Court made clear that the
independent role of the magistrate must be preserved to insure judicial
oversight of police operations so that constitutional guarantees may be
scrupulously observed. Coolidge’s conviction was upheld upon retrial in
New Hampshire court.
3.
Schneckloth v. Bustamonte, 412 U.S. 281, 36 L. Ed 2d 854, 93 S.Ct.
2041 (1973): At about 2:40 am, police observed an automobile with a
broken license plate light and a headline burned out and stopped it.
Seven men were in the car. The driver failed to produce a driver’s license
and was asked to step out of the car together with several other
occupants. One passenger, Alcala, had a driver’s license and told police
that the automobile belonged to his brother. The officers asked if they
could search the vehicle, and Alcala consented. Prior to the search, no
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one was threatened with arrest, and in fact, the car owner’s brother helped
in the search by opening the trunk and the glove compartment. While
conducting their search, the officers discovered stolen checks from a car
wash and arrested one of the passengers, Bustamonte. Bustamonte was
later convicted of possessing checks with intent to defraud. He appealed,
seeking to have the checks suppressed as evidence against him. The
California Court of Appeal affirmed the conviction, and the California
Supreme Court denied review.
Bustamonte then petitioned the U.S. District Court for the Northern District
of California for habeas corpus, but this court denied the petition. The
Ninth Circuit Court, however, reversed, holding that in order for consent to
the search to be held voluntary, it must be found that the person who
consented knew that he had a right to refuse. On certiorari, the U.S.
Supreme Court reversed the circuit court’s decision. Justice Stewart,
writing for the Court, expressed the views that it was unnecessary for the
state to establish that the person who consented to the search knew that
he had a right to refuse such consent, and that the requirement of a
knowing and intelligent waiver of constitutional rights, while applicable to
constitutional guarantees involving the preservation of a fair trial for a
criminal defendant, was not applicable to the Fourth Amendment guaranty
against an unreasonable search. In other words, Alcala, who had
constructive possession of the car, was in the position to give police
consent to conduct the search. Therefore, evidence they discovered was
valid and had not violated Bustamonte’s Fourth Amendment rights.
4.
Georgia v. Scott Randolph (No. 04-1067 Argued November 8, 2005,
Decided March 22, 2006)
The Supreme Court determined in 1990 that the “Fourth Amendment
recognizes a valid warrantless entry and search of premises when police
obtain the voluntary consent of an occupant who shares … authority over
the area in common with a co-occupant who later objects to the use of
evidence so obtained” (Illinois v. Rodriguez).
In 2001, Janet Randolph called police to report a domestic disturbance
and asked them to come to the Americus, Georgia, home she shared with
her husband. The two had been separated, but two days prior to the
phone call she had moved back into their home. It is unknown whether
she returned to attempt a reconciliation with her husband or simply went
back to pick up some of her possessions.
When the police arrived, Janet complained that her husband, a cocaine
user, had taken their son. Soon after, Scott Randolph returned home,
telling police he had taken their son for fear his wife would again take him
out of the country. He also denied using drugs and claimed that it was
actually his wife who abused drugs and alcohol. Officers asked to search
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the home, but Scott Randolph said no. So the officer asked the wife, who
said yes. She led police to their bedroom, where officers found a straw
coated with a powdery substance which later proved to be cocaine.
Janet later withdrew her consent, but the evidence had already been
seized. Police obtained a search warrant on the cocaine they had
discovered and charged Scott with drug possession. Randolph argued
that the search was invalid because he had refused consent.
The trial court in Georgia rejected his claim because, it said, the wife had
authority to admit police to their joint residence. Siding with Scott
Randolph, the appellate court ruled that police must defer to an objecting
occupant’s position when two people have equal use and control of the
home. According to the appellate court, police could not violate Scott’s
privacy rights, especially when a disgruntled wife consented over his
objections.
The state Supreme Court agreed by a four-to-three vote, explaining that
while Mrs. Randolph could have let the police in when her husband was
absent, he was present in this case and therefore had the right to bar their
entry. Only if there was an emergency, such as the threat of domestic
violence, could police enter over his objections.

ISSUE: Is the Fourth Amendment prohibition against unreasonable
search and seizure violated when police search a home after being
given permission to search by one spouse but denied permission by
the other when both are present?
Georgia v. Randolph Decision: Writing for the five-to-three majority,
Justice Souter said the search was unreasonable, given the objections of
the husband. He wrote:
… [I]t is fair to say that a caller standing at the door of
shared premises would have no confidence that one
occupant’s invitation was a sufficiently good reason to enter
when a fellow tenant stood there saying, “stay out.” Without
some very good reason, no sensible person would go inside
under those conditions. Fear for the safety of the occupant
issuing the invitation, or someone else inside, would be
thought to justify entry, but the justification then would be the
personal risk, the threats to life or limb, not the disputed
invitation.
…[W]hen people living together disagree over the use of
their common quarters, a resolution must come through
voluntary accommodation, not by appeals to authority….
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Justice Souter continued:
Since the co-tenant wishing to open the door to a third party
has no recognized authority in law or social practice to
prevail over a present and objecting co-tenant, his disputed
invitation, without more, gives a police officer no better claim
to reasonableness in entering than the officer would have in
the absence of any consent at all…. We have, after all, lived
our whole national history with an understanding of “the
ancient adage that a man’s home is his castle” ….
Disputed permission is thus no match for this central value of
the Fourth Amendment, and the State’s other countervailing
claims do not add up to outweigh it…..
“We therefore hold,” Souter wrote, “that a warrantless search of a shared
dwelling for evidence over the express refusal of consent by a physically
present resident cannot be justified as reasonable as to him on the basis
of consent given to the police by another resident.”
Justices Breyer, Kennedy, and Ginsburg joined the majority opinion, as
did Justice Stevens, who explained himself in a concurring opinion:
At least since 1604 it has been settled that in the absence of
exigent circumstances, a government agent has no right to
enter a “house” or “castle” unless authorized to do so by a
valid warrant…. Every occupant of the home has a right—
protected by the Fourth Amendment since 1791—to refuse
entry….
Justice Breyer noted in another concurrence that “the objecting party was
present and made his objection known clearly and directly to the officers
seeking to enter the house.” While he pronounced himself satisfied with
the court’s holding, he said the outcome might well be different in the
context of domestic abuse, in which police entry even over one spouse’s
objection could be reasonable.
Chief Justice Roberts filed his first dissenting opinion in this case, in which
he wrote:
A warrantless search is reasonable if police obtain the
voluntary consent of a person authorized to give it. Cooccupants have “assumed the risk that one of their number
might permit [a] common area to be searched” … Just as
Mrs. Randolph could have walked upstairs, come down, and
turn her husband’s cocaine straw over to the police, she can
consent to police entry and search of what is, after all, her
home, too.
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“The fact is that a wide variety of differing social situations can readily be
imagined, giving rise to quite different social expectations,” Chief Justice
Roberts said. For example, he continued, “A guest who came to celebrate
an occupant’s birthday, or one who had traveled some distance for a
particular reason, might not readily turn away simply because of a
roommate’s objection.”
Justice Alito did not participate in the case because he was not on the
Court when it was argued.
C.
INVESTIGATIVE DETENTIONS AND “PAT DOWNS”
1.
Terry v. Ohio (392 U.S. 1, 20 L.Ed. 2d 889, 88 S.Ct. 1868, Argued
December 12, 1967 Decided June 10, 1968)
Terry and two companions were observed by a veteran, plain
clothes policeman while they were on a Cleveland street corner.
The three men moved up and down the street, looking in store
windows, returning frequently to the corner and conversing. They
did this for a total of about twenty-four time.
The officer was
suspicious of the behavior of the men and confronted them,
identifying himself as a police officer. He patted down Terry and
discovered a revolver. The three men were taken to the police
station and charged with carrying a concealed weapon.
Before the trial, the defense moved to suppress the weapons.
Though the trial court rejected the prosecution theory that the guns
had been seized during a search incident to a lawful arrest, the
court denied the defense motion and admitted the weapons into
evidence. The court ruled on the ground that the officer had cause
to believe that Terry was acting suspiciously, that the interrogation
was warranted, and that the officer, for his own protection, had the
right to pat down the outer clothing of the men, having reasonable
cause to believe that they might have been armed. The court
distinguished between an investigatory “stop and an arrest, and
between a “frisk” of the outer clothing for weapons and a full-blown
search for evidence of a crime. Terry was subsequently convicted
and sentenced to three years in jail. He appealed, and the U.S.
Supreme Court eventually heard the case.

ISSUE: Was the search and seizure of Terry and the other men in
violation of the Fourth Amendment?
Terry v. Ohio Decision: The Supreme Court (eight-to-one) upheld
Terry’s conviction, determining that police officers may “stop and
frisk” suspects as a means of protecting themselves and
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determining whether suspicious persons may be armed and poses
a danger to them. The officers, however, must be operating on the
basis of an actual suspicion, not merely a hunch.
Attempting to focus narrowly on the facts of this particular case, the Court
found that the officer acted on more than a "hunch" and that "a reasonably
prudent man would have been warranted in believing [Terry] was armed
and thus presented a threat to the officer's safety while he was
investigating his suspicious behavior." The Court found that the searches
undertaken were limited in scope and designed to protect the officer's
safety incident to the investigation.
NOTE: In 2009, the Supreme Court decided in Arizona v. Johnson (07-1122), that a
Terry “pat-down” of a vehicle passenger is allowed when a police officer on the scene
believes that the officer’s safety or that of the public may be at risk, even if police have
no basis for believing that the passenger has done or is about to do anything criminal.
2. Illinois v. William (aka Sam) Wardlow (No. 98-1036 Argued November 2, 1999,
Decided January 12, 2000)
In Terry v. Ohio, 1968, the United States Supreme Court ruled that a
warrantless, brief detention and search of a person acting suspiciously is
allowable under the Fourth Amendment prohibition against unreasonable
search and seizure. The “reasonable suspicion” standard is less demanding
than probable cause but requires at least a minimal level of objective
justification for making a stop.
About mid-day on September 9, 1995, an eight-officer, four-car caravan patrol
team of the Chicago Police Department drove through an area known for
heavy narcotics trafficking in order to investigate drug transactions. The
officers were traveling together because they anticipated encountering a large
number of people in the area, including drug customers and individuals
serving as lookouts. Riding in the fourth car, Officer Nolan observed Sam
Wardlow standing alone next to a building and holding an opaque bag.
Wardlow looked in the direction of the officers, turned and ran. Nolan then
exited his car and stopped Wardlow, immediately conducting a pat-down
search for weapons, as allowed under Terry v. Ohio. During the frisk, Officer
Nolan squeezed the bag Wardlow was carrying and felt a heavy, hard object
similar to the shape of a gun. When Nolan opened the bag, he discovered a
.38 caliber handgun with five live rounds of ammunition. Wardlow was placed
under arrest.
The Illinois trial court denied Wardlow’s motion to disallow the evidence
discovered during the search, finding the gun was recovered during a lawful
stop and frisk. Wardlow as subsequently convicted of unlawful use of a
weapon by a felon and sentenced to two years in prison. The Illinois
Appellate Court reversed the conviction, concluding that the gun should have
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been suppressed because Officer Nolan did not have reasonable suspicion
sufficient to justify an investigative stop under the Terry ruling. When
appealed to the Illinois Supreme Court, it was determined that sudden flight in
such an area does not create a reasonable suspicion justifying a Terry stop.
Illinois appealed that decision to the United States Supreme Court.

ISSUE: Does flight at the sight of a police officer, along with other
factors, constitute enough justification for police to conduct a limited
“pat-down” under the Fourth Amendment?
Illinois v. Wardlow Decision: The Supreme Court, in overturning the Illinois Supreme
Court, ruled that flight at the mere sight of a police officer could, when combined with
other factors, be suspicious enough to justify the police in conducting a stop-and-frisk
search. The majority, in an opinion written by Chief Justice Rehnquist, held that the
man’s presence in an area known for heavy narcotics trafficking, combined with his
unprovoked flight, justified the search. The opinion, while broad enough to permit
interpretation by the police over how much weight to attach to the element of flight,
stopped short of giving police a blanket right to stop anyone who runs after seeing the
police. Rehnquist wrote:
... Our cases have ... recognized that nervous, evasive behavior is a
pertinent factor in determining reasonable suspicion. Headlong flight-wherever it occurs--is the consummate act of evasion; it is not necessarily
indicative of wrongdoing, but it is certainly suggestive of such.... Thus,
the determination of reasonable suspicion must be based on
commonsense judgments and inferences about human behavior....
In justifying the Terry stop, Rehnquist concluded:
... The Terry stop is a far more minimal intrusion, simply allowing the
officer to briefly investigate further. If the officer does not learn facts
rising to the level of probable cause, the individual must be allowed to go
on his way. But in this case the officers found respondent in possession
of a handgun, and arrested him for violation of an Illinois firearm statute....
Associate Justices O’Connor, Scalia, Kennedy and Thomas joined the Chief Justice
in the majority.
The dissenters agreed with the Court’s decision not to adopt a rule that would always
authorize officers to stop people who run at the sight of police. But the four, in an
opinion by Justice Stevens, disagreed with the majority’s conclusion that Chicago
police were justified in stopping Wardlow. Stevens said the known facts of the case
were too ambiguous to justify the conclusion that the officer had the required level of
suspicion under the Fourth Amendment prohibition against unreasonable searches.
Stevens indicated that the officer’s testimony about what actually happened was too
vague to support a finding of reasonable suspicion, writing:
[T]he Court concludes that Officer Nolan had reasonable suspicion to
stop respondent. In this respect, my view differs from the Court’s. The
entire justification for the stop is articulated in the brief testimony of
Officer Nolan. Some facts are perfectly clear; others are not. This factual
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insufficiency leads me to conclude that the Court’s judgment is mistaken.
Justice Stevens specifically mentioned that Officer Nolan could not recall whether he
was in a marked or unmarked car or whether any of the other three cars in the
caravan were marked. He also did not testify whether anyone else was nearby
Wardlow or if the address where Wardlow was first seen was the intended
destination of the caravan. Testimony also was not given as to the speed the
officers were driving, whether Wardlow appeared to notice the other patrol cars, or
exactly at which point Wardlow began to run. Stevens therefore concluded:
... The adverse inference is based entirely on the officer’s statement: “He
looked in our direction and began fleeing.” No other factors sufficiently
support a finding of reasonable suspicion....
Associate Justices Souter, Ginsburg and Breyer joined Stevens.
3.
Florida v. J. L. (No. 98-1993, Argued February 29, 2000 Decided March 28, 2000)
On October 13, 1995, an anonymous caller reported to the Miami-Dade
Police that a young African American male, standing at a particular bus
stop and wearing a plaid shirt, was carrying a gun. No audiotape of the call
was kept, and nothing was known about the informant.
When two officers arrived at the bus stop a few minutes after the
anonymous call, they found three African American males there. One of
the three, J. L., was wearing a plaid shirt. Apart from the tip, the officers
had no reason to suspect any of the three of illegal conduct. The officers
did not see a firearm, and none of the three made threatening or otherwise
unusual movements. One of the officers approached J. L., told him to put
his hands up, frisked him and seized a gun from his pocket. The second
officer frisked the other two individuals but found nothing.
At the time of the arrest, J. L. was not quite sixteen years of age. He was
charged under state law with carrying a concealed firearm without a license
and possessing a firearm while under the age of eighteen. He moved to
suppress the gun as the “fruit of an unlawful search,” and the trial judge
granted his motion. The state intermediate appellate court reversed, but
the Florida Supreme Court held the search to be invalid under the Fourth
Amendment.

ISSUE: Is an anonymous tip that a certain person is carrying a gun
sufficient, without further evidence, to justify a police officer’s stop
and frisk of that person, under the Fourth Amendment privilege
against unreasonable search and seizure?
Florida v. J. L. Decision: Writing for a unanimous Court, Justice Ginsburg
went back to 1968 and the case of Terry v. Ohio. In that case, the
Supreme Court determined that when an officer reasonably believes that a
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suspect may be armed and dangerous, he “is entitled for the protection of
himself and others” to “conduct a carefully limited search of the outer
clothing of such persons in an attempt to discover weapons.”
Ginsburg, in comparing this case to Terry, stated that the information that
J. L. might be carrying a weapon came not from the officer’s own
observation but from an unknown caller. She quoted Adams v. Williams,
1972, which stated, “an anonymous tip alone seldom demonstrates the
informant’s basis of knowledge or veracity.” Ginsburg went on to explain
that there might be circumstances whereby an anonymous tip might be
sufficient for a search if further evidence is also presented. In 1990, the
Supreme Court ruled in Alabama v. White that it was reasonable to search
the suspect after an anonymous tip and further corroborating evidence.
However, she explained:
The tip in the instant case lacked the moderate indicia of
reliability present in White and essential to the Court’s
decision in that case. The anonymous call concerning J. L.
provided no predictive information and therefore left the
police without means to test the informant’s knowledge or
credibility. That the allegation about the gun turned out to be
correct does not suggest that the officers, prior to the frisks,
had a reasonable basis for suspecting J. L. of engaging in
unlawful conduct: The reasonableness of official suspicion
must be measured by what the officers knew before they
conducted their search ....
Justice Ginsburg ended her remarks by making it clear that this decision
was a limited one. She wrote:
... We speak in today’s decision only of cases in which the
officer’s authority to make the initial stop is at issue. In that
context, we hold that an anonymous tip lacking indicia of
reliability of the kind contemplated in Adams and White does
not justify a stop and frisk whenever and however it alleges
the illegal possession of a firearm.
Justice Kennedy wrote a concurring opinion, in which Chief Justice
Rehnquist joined him. He added the fact that “there are many indicia of
reliability respecting anonymous tips that we have yet to explore in our
cases.”
4.
Steven Dewayne Bond v. United States (No. 98-9349, Argued February 29,
2000 Decided April 17, 2000)
Steven Dewayne Bond was a passenger on a Greyhound bus that left
California bound for Little Rock, Arkansas. The bus stopped, as it was
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required to do, at the permanent Border Patrol checkpoint in Sierra
Blanca, Texas. Border Patrol Agent Cesar Cantu boarded the bus to
check the immigration status of its passengers. After reaching the back of
the bus, having satisfied himself that the passengers were lawfully in the
United States, Cantu began walking toward the front. Along the way, he
squeezed the soft luggage which passengers had placed in the overhead
storage space above the seats.
Bond was seated close to the back of the bus. As Agent Cantu inspected
the luggage above Bond’s seat, he noticed that a green canvas bag
contained a “brick-like” object. Bond admitted the bag was his and agreed
to allow Cantu to open it. Upon opening the bag, Cantu discovered a
“brick” of methamphetamine, wrapped in duct tape until it was ovalshaped. It had then been rolled in a pair of pants.
After being indicted for conspiracy to possess, and possession with intent
to distribute, methamphetamine, Bond moved to suppress the drugs. He
argued that Cantu had conducted an illegal search of his bag, but his
motion was denied. Bond was then found guilty on both counts and
sentenced to 57 months in prison.
Upon appeal to the Court of Appeals, the United States argued that other
passengers had access to Bond’s bag. Bond answered by arguing that
Agent Cantu manipulated the bag in a way that passengers would not.
The Court of Appeals rejected this argument, holding that Agent Cantu’s
manipulation of the bag was not a search within the meaning of the Fourth
Amendment. The United States Supreme Court granted certiorari.

ISSUE: Does physical manipulation of a bus passenger’s
carry-on luggage by a law enforcement officer violate the Fourth
Amendment prohibition against unreasonable searches?
Bond v. U. S. Decision:
In a seven-to-two decision, the Supreme Court
reversed the decision by the circuit court, finding that Bond’s Fourth Amendment
privilege against unreasonable searches had been violated. Chief Justice
Rehnquist wrote the majority opinion, in which he compared this case to two
previous Fourth Amendment cases. He wrote:
... The Government relies on our decisions in California v. Ciraolo
and Florida v. Riley (1989), for the proposition that matters open
to public observation are not protected by the Fourth Amendment.
In Ciraolo, we held that police observation of a backyard from a
plane flying at an altitude of 1,000 feet did not violate a reasonable
expectation of privacy. Similarly, in Riley, we relied on Ciraolo to
hold that police observation of a greenhouse in a home’s curtilage
from a helicopter passing at an altitude of 400 feet did not violate
the Fourth Amendment. We reasoned that the property was “not
necessarily protected from inspection that involves no physical
invasion,” and determined that because any member of the public
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could have lawfully observed the defendants’ property by flying
overhead, the defendants’ expectation of privacy was “not
reasonable and not one ‘that society is prepared to honor.’”
The chief justice then explained that the current case differs from Ciraolo and
Riley because those cases involved only visual observation. He felt that this
case more closely paralleled Terry v. Ohio, 1968, stating:
[I]n Terry v. Ohio, we stated that a “careful exploration of the outer
surfaces of a person’s clothing all over his or her body” is a
“serious intrusion upon the sanctity of the person, which may inflict
great indignity and arouse strong resentment, and is not to be
undertaken lightly.”
Although Agent Cantu did not “frisk”
petitioner’s person, he did conduct a probing tactile examination of
petitioner’s carry-on luggage. Obviously, petitioner’s bag was not
part of his person. But travelers are particularly concerned about
their carry-on luggage; they generally use it to transport personal
items that, for whatever reason, they prefer to keep close at hand.
Rehnquist concluded the majority opinion by summarizing how he and the other
justices voting with him (Stevens, O’Connor, Kennedy, Souter, Thomas and
Ginsburg) analyze Fourth Amendment questions:
... First, we ask whether the individual, by his conduct, has
exhibited an actual expectation of privacy.... Here, petitioner
sought to preserve privacy by using an opaque bag and placing
that bag directly above his seat. Second, we inquire whether the
individual’s expectation of privacy is “one that society is prepared
to recognize as reasonable.” When a bus passenger places a bag
in an overhead bin, he expects that other passengers or bus
employees may move it for one reason or another. Thus, a bus
passenger clearly expects that his bag may be handled. He does
not expect that other passengers or bus employees will, as a
matter of course, feel the bag in an exploratory manner. But this
is exactly what the agent did here. We therefore hold that the
agent’s physical manipulation of petitioner’s bag violated the
Fourth Amendment.
Justice Breyer, joined by Justice Scalia, dissented. Breyer expressed strongly
that travelers do not have “reasonable expectation” that “strangers will not push,
pull, prod, squeeze, or otherwise manipulate his luggage ....” Breyer continued,
“... in determining whether an expectation of privacy is reasonable, it is the effect,
not the purpose, that matters.”
5.
Larry Hiibel v. Sixth Judicial District Court of Nevada, Humbolt
County, et al. (No. 03-5554, Argued March 22, 2004 Decided June 21, 2004)
In Brown v. Texas (1979), the Supreme Court declared that a suspect was
not required to comply with a police officer’s demand that he identify
himself, when the police officer had stopped Brown on a “hunch.” The
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Court expressly reserved the question as to whether an individual must
identify himself in the context of a lawful investigation.
On May 21, 2000, the sheriff’s department in Humboldt County, Nevada,
received a call reporting an assault. When Deputy Lee Dove arrived at
the scene, he found a truck parked on the side of a road with a man
standing next to the truck and a woman sitting inside. Dove approached
the man, later identified as local ranch hand Larry Hiibel. After asking for
identification eleven times without response, the officer placed Hiibel
under arrest.
A Nevada law says that an officer can detain any citizen, anywhere, at any
time, if “reasonable suspicion” exists that the person “has committed, is
committing or is about to commit a crime.” The law also says that any
person so detained must identify himself or herself.
t trial, Dove testified that Hiibel had appeared “intoxicated, aggressive and
moody.” He also testified that he didn’t know if Hiibel was wanted on an
outstanding warrant. “I went ahead and put him in handcuffs so I could
secure him for my safety,” Dove testified.
The justice of the peace determined that Hiibel’s failure to identify himself
had “obstructed and delayed” Dove as a police officer trying to do his job,
convicted him of a misdemeanor offense of resisting a police officer and
fined him $250 plus an administrative fee of $70.
Hiibel appealed and the Sixth Judicial District Court ruled it was
“reasonable and necessary” for Dove to request identification from Hiibel
because there had been a call of domestic violence and because Dove
had believed Hiibel was driving under the influence. The court decided
that it was “crucial for the safety of an officer and possible victims” to know
the identity of a person suspected of battery, domestic violence and
driving under the influence. A divided Nevada Supreme Court affirmed by
a vote of four-to-three.

ISSUE: Is it a violation of the Fourth Amendment protection
against unreasonable searches and seizures to require
someone to identify himself or herself when stopped by police?
Is the Fifth Amendment privilege not to incriminate oneself
violated when the police require a suspect to give his or her
name?
Hiibel v. Nevada Decision: The Supreme Court, in a five-to-four decision,
found for the state. People who have given the police some reason to
suspect that they may be involved in a crime can be required to identify
themselves unless their very name would be incriminating, the Supreme
Court ruled.
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Justice Kennedy’s majority opinion rejected both constitutional
arguments, at least as they applied to Hiibel. As a Fourth Amendment
matter, Kennedy said, the demand to identify oneself is a logical corollary
to the circumstances of a valid police stop, as described by the Court in
its 1968 decision, Terry v. Ohio. That decision permits a police officer to
briefly detain, question and conduct a pat-down search of a person
whose behavior has given rise to “reasonable suspicion,” short of the
probable cause necessary for a formal arrest. Such an encounter is
widely known as a “Terry stop.”
“Obtaining a suspect’s name in the course of a Terry stop serves
important government interests,” Kennedy said. He continued:
Knowledge of identity may inform an officer that a suspect is
wanted for another offense, or has a record of violence or
mental disorder. On the other hand, knowing identity may
help clear a suspect and allow the police to concentrate their
efforts elsewhere. Identity may prove particularly important
in cases such as this, where the police are investigating
what appears to be a domestic assault. Officers called to
investigate domestic disputes need to know whom they are
dealing with in order to assess the situation, the threat to
their own safety, and possible danger to the potential victim.
Justice Kennedy therefore concluded, “A state law requiring a suspect to
disclose his name in the course of a valid Terry stop is consistent with
Fourth Amendment prohibitions against unreasonable searches and
seizures.”
Regarding Mr. Hiibel’s Fifth Amendment challenge to the law, Justice
Kennedy stated, “The Fifth Amendment prohibits only compelled
testimony that is incriminating.” He concluded:
In this case petitioner’s refusal to disclose his name was not
based on any articulated real and appreciable fear that his
name would be used to incriminate him, or that it “would
furnish a link in the chain of evidence needed to prosecute”
him.... At best we can tell, petitioner refused to identify
himself only because he thought his name was none of the
officer’s business....
Justice Kennedy noted, “answering a request to disclose a name is likely
to be so insignificant in the scheme of things as to be incriminating only
in unusual circumstances.”
This provoked a stinging dissent from Justice Stevens, who said there
was no basis for assuming that names were generally nonincriminating
or would not usually furnish a “link in the chain of evidence.” “Why else
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would an officer ask for it?” Justice Stevens asked, adding, “Indeed, if we
accept the predicate for the court’s holding, the statute requires nothing
more than a useless invasion of privacy.” Stevens explained:
... A name can provide the key to a broad array of
information about the person, particularly in the hands of a
police officer with access to a range of law enforcement
databases.
And that information, in turn, can be
tremendously useful in a criminal prosecution. It is therefore
quite wrong to suggest that a person’s identity provides a
link in the chain to incriminating evidence “only in unusual
circumstances.”
In a separate dissenting opinion, Justice Breyer said that despite the lack
of a formal precedent directly on the point, there was a “generation-old”
understanding that people subjected to Terry stops were not required to
answer any questions. Breyer explained:
... Can a State, in addition to requiring a stopped individual
to answer “What’s your name?” also require an answer to
“What’s your license number?” or “Where do you live?” Can
a police officer, who must know how to make a Terry stop,
keep track of the constitutional answers? After all, answers
to any of these questions may, or may not, incriminate,
depending upon the circumstances.
Justices Ginsburg and Souter joined Breyer’s dissenting opinion. Chief
Justice Rehnquist and Associate Justices O’Connor, Scalia and Thomas
joined Justice Kennedy’s majority opinion.
D.
SEARCHES INCIDENT TO A VALID ARREST
Chimel v. California, 395 U.S. 752, 23 L Ed 2d 685, 89 S.Ct. 2034
(1969): Chimel was suspected of being involved in a burglary of a coin
shop. Police officers obtained a valid arrest warrant and went to Chimel’s
home. Chimel’s wife admitted them to the house. When he returned from
work, police served the arrest warrant and placed Chimel under arrest.
For about an hour they searched his entire three-bedroom house,
including the attic, the garage, a small workshop, and various drawers. In
the attic, the police found some of the stolen coins. The coins were
subsequently used against Chimel in court, and he was convicted.
The U.S. Supreme Court (seven-to-two) overturned his conviction, stating
that the police search of Chimel’s residence was well beyond the scope of
the arrest warrant, which should have included only the suspect and the
area from within which he might have obtained either a weapon or
something that could have been used as evidence against him. The
police should have obtained a search warrant, but they had not. The
Supreme Court said that with an arrest warrant, police are permitted to
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search only the defendant’s person and the area within the immediate
vicinity. Thus, they may search the room where the suspect is arrested
but cannot extend their search to other areas of his residence without a
valid search warrant.
NOTE: In 2009, in Arizona v. Gant (07-542), the Supreme Court held that
the Fourth Amendment requires law enforcement officers to demonstrate
an actual and continuing threat to their safety, or a need to preserve
evidence related to the crime from tampering, in order to justify a
warrantless vehicular search incident to arrest conducted after the
vehicle’s recent occupants have been arrested and secured.
E.
BORDER SEARCHES
U.S. v. Amado Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L Ed 2d
1116 (1976):
The Border Patrol established permanent checkpoints for illegal Mexican
aliens at various places along major interstate highways between Mexico
and the U.S.. Martinez-Fuerte was arrested at one of these checkpoints
for transporting illegal aliens. He sought at his trial to suppress the
testimony of the aliens on the ground that the operation of the checkpoint
violated his Fourth Amendment rights. He lost the motion and was
convicted. Martinez-Fuerte then appealed to the Ninth Circuit Court,
which reversed his conviction.
The U.S. Supreme Court reversed the judgment of the circuit court,
upholding Martinez-Fuerte’s conviction. Justice Powell, writing for the
Court, stated that such permanent checkpoint stops, particularly in view of
their location and notoriety for illegal alien trafficking, are not in violation of
Fourth Amendment rights. Such checkpoints are permissible and need
not be authorized by a judicial warrant. Even if stops are conducted
because persons appear to have Mexican ancestry, that does not make
such checkpoints and searches unconstitutional.
F.
PLAIN VIEW SEARCHES
NOTE: An officer can conduct warrantless searches when exigent
circumstances exist. If an officer faces an emergency or has probable
cause to believe evidence may be destroyed (swallowed, for instance), he
or she may take what action is necessary to prevent the evidence from
being destroyed.
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VII.
SOME OTHER RECENT ISSUES
A.
Andrew J. Winston, Sheriff and Aubrey M. Davis, Jr. v. Rudolph Lee, Jr.
470 U. S. 753, 105 S.Ct. 1611, 84 L Ed 2d 662, Argued October 31, 1984
Decided March 20, 1985
At approximately 1:00 am on July 18, 1982, Ralph E. Watkinson was closing his
shop for the night. As he was locking the door, he observed someone with a gun
coming toward him from across the street. Watkinson was ordered to freeze but
instead fired his own gun. The other person returned his fire and Watkinson was
hit in the legs, while the other individual, who appeared to Watkinson to be
wounded in his left side, ran from the scene. Police were called, and after
informing police that he thought he had wounded the assailant in the chest, the
victim was taken to a hospital for treatment.
About twenty minutes later, Rudolph Lee was found by the police a few blocks
away from the shooting, suffering from a bullet wound in the chest. He was then
taken for treatment to the same hospital that Watkinson had previously been
taken. At the hospital, Watkinson identified Lee as the assailant. After a further
investigation, Lee was charged with attempted robbery and malicious wounding.
A court order was requested by the Commonwealth of Virginia for doctors to
remove the bullet from Lee’s chest for evidence to be used against Lee. There
was some uncertainty as to how dangerous the surgery might be, but it was
agreed that a general anesthetic would be necessary. The state trial judge
granted the motion to require the surgery, but after the Virginia Supreme Court
denied petitions for writs of prohibition and/or habeas corpus Lee brought action
in the United States District Court to desist the pending operation on Fourth
Amendment grounds. The United States District Court ordered the surgery to be
halted, and a divided panel of the Court of Appeals affirmed this decision for the
Fourth Circuit. The case was then appealed to the United States Supreme
Court, which granted certiorari.

ISSUE: Does compelling surgical intrusion into an individual’s body in order to
obtain evidence in a criminal case violate the Fourth Amendment prohibition
against unreasonable search and seizure?
Winston v. Lee (1985) Decision: The Supreme Court agreed with Lee, saying
that the surgery would be an unreasonable search under the Fourth Amendment.
Justice Brennan was joined in the seven-to-two opinion by Chief Justice Burger
and Associate Justices White, Marshall, Powell, Stevens, and O’Connor in his
majority opinion, in which he wrote that the surgery would intrude substantially on
Lee’s privacy since the state had failed to demonstrate a compelling need for the
bullet. Brennan wrote:
The reasonableness of surgical intrusions beneath the skin
depends on a case-by-case approach, in which the individual’s
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interests in privacy and security are weighed against society’s
interests in conducting the procedure. In a given case, the question
whether the community’s need for evidence outweighs the
substantial privacy interests at stake is a delicate one admitting of
few categorical answers....
Brennan compared the reasonableness of the surgery, as compared to the
state’s need to perform the operation, stating:
... When conducted with the consent of the patient, surgery
requiring general anesthesia is not necessarily demeaning or
intrusive. In such a case, the surgeon is carrying out the patient’s
own will concerning the patient’s body and the patient’s right to
privacy is therefore preserved. In this case, however ... the
Commonwealth proposes to take control of respondent’s body, to
“drug this citizen--not yet convicted of a criminal offense--with
narcotics and barbiturates into a state of unconsciousness,” and
then to search beneath his skin for evidence of a crime. This kind
of surgery involves a virtually total divestment of respondent’s
ordinary control over surgical probing beneath his skin.
The other part of the balance concerns the Commonwealth’s need
to intrude into respondent’s body to retrieve the bullet. The
Commonwealth claims to need the bullet to demonstrate that it was
fired from Watkinson’s gun, which in turn would show that
respondent was the robber who confronted Watkinson. However,
although we recognize the difficulty of making determinations in
advance as to the strength of the case against respondent,
petitioners’ assertions of a compelling need for the bullet are hardly
persuasive....
In weighing the various factors in this case, we therefore reach the
same conclusion as the courts below. The operation sought will
intrude substantially on respondent’s protected interests. The
medical risks of the operation, although apparently not extremely
severe, are subject of considerable dispute; the very uncertainty
militates against finding the operation to be “reasonable.” In
addition, the intrusion on respondent’s privacy interests entailed by
the operation can only be characterized as severe....
Justice Brennan then concluded that “The Fourth Amendment is a vital
safeguard of the right of the citizen to be free from unreasonable
governmental intrusions into any area in which he has a reasonable
expectation of privacy.”
Chief Justice Burger, in addition to joining the majority, wrote a concurring
opinion in which he stated:
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I join because I read the Court’s opinion as not preventing detention
of an individual if there are reasonable grounds to believe that
natural bodily functions will disclose the presence of contraband
materials secreted internally.
Justices Blackmun and Rehnquist also concurred in the judgment.
B.
Gail Atwater v. City of Lago Vista, et al.
No. 99-1408, Argued December 4, 2000
Decided April 24, 2001
On March 26, 1997, Gail Atwater and her two children, Mac (age three) and
Anya (age five), were returning home from Anya’s soccer practice. Mac’s
favorite toy--a black bat with suction cup attached--hung outside on a window
of the family’s 1993 Dodge pickup. They were several miles from home when
Mac noticed his bat was gone. Retracing her route, Atwater drove while the
children looked out the passenger-side front seat window for the toy. Atwater
had allowed the children to get out of their seat belts so they could lean over
and look for the toy while she drove no more than fifteen miles per hour in a
residential area.
Texas law requires drivers and passengers to wear seat belts, and violators
are subject to be arrested and fined a maximum of $50 per violation. Failure
to wear a seat belt is a misdemeanor but allows the police officer the
discretion to issue a citation for the offense or to make a custodial arrest.
Several weeks earlier, Atwater had been stopped by Officer Bart Turek, at
that time a Lago Vista police officer, but the incident did not result in a ticket.
In fact, until March 26, 1997, Atwater had received only one traffic citation in
her life, a ticket, more than ten years earlier, for failure to signal a lane
change.
While the Atwaters were searching for the toy on March 26, Turek, then a
deputy for the county sheriff’s department, again stopped Atwater after
noticing that she and the children were not wearing seat belts. Turek
approached the truck and “yell[ed]” something to the effect of “[w]e’ve met
before” and “[y]ou’re going to jail.” Atwater explained that the belts were off so
the children could look for a lost toy. Turek asked for Atwater’s license and
proof of insurance, and she explained that she didn’t have them because her
purse had been stolen several days earlier. Turek said that he had “heard
that story two-hundred times,” decided she was endangering her children,
and arrested her not only for the seat belt violations, but also for not having
her license and proof of insurance.
Atwater asked to take her “frightened, upset, and crying” children to a friend’s
house nearby, but Turek told her, “[y]ou’re not going anywhere.” Some
neighborhood children who happened to witness the event summoned
Atwater’s friend, who soon arrived to take charge of the children. Atwater
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was then handcuffed behind her back and placed in the police car. Ironically,
Turek did not secure Atwater in a seat belt for the drive to the station, nor did
he inform her of her rights
At the police station, Atwater was forced to empty her pockets, remove her
shoes, jewelry, and eyeglasses, and have her picture taken. She was then
placed alone in a jail cell for about an hour before being taken to a magistrate,
who informed her of her rights and the charges against her. Atwater was
charged with driving without her seat belt fastened, failing to secure her
children in seat belts, driving without a license, and failing to provide proof of
insurance. She was released after posting a $310 bond and returned to the
scene of the arrest, only to find that her car had been towed.
She later pleaded no contest to the seat belt violations and paid a $50 fine
plus $150 in court costs. The charges of driving without a license and proof
of insurance were dismissed.
Atwater then reported the incident to city officials, who did not address her
complaint. In August 1997, Atwater and her husband, Michael Haas, sued
the city in a Texas state court, alleging that the incident caused her and her
children extreme emotional distress, requiring medication and counseling.
(Because of the incident, both of the children became terrified at the sight of
any police car.)
The city removed the suit to the United States District Court for the Western
District of Texas. In February the federal district court judge dismissed the
case, stating that the lawsuit should never have been filed and was poorly
litigated once it was. In dismissing the case, the judge wrote, “Suits such as
this are the bane of the American legal system.”
Angered when the city demanded that Atwater pay its legal fees and sign an
apology, she appealed to the Fifth Circuit Court. In February 1999, the
appeals court voted three-to-zero that the case had been wrongly dismissed,
but the city requested a full panel of judges on the Fifth Circuit to rehear the
case. In November 1999, they ruled against Atwater eleven-to-six. Relying
on Whren v. U.S. (1996), the Fifth Circuit Court observed that, although the
Fourth Amendment generally requires a balancing of individual and
governmental interests, where “an arrest is based on probable cause then
with rare exceptions ... the result of that balancing is not in doubt.”
Three months later Atwater filed an appeal with the United States Supreme
Court, and the case was accepted.

ISSUE: Does the Fourth Amendment, either by incorporating common-law
restrictions on misdemeanor arrests or otherwise, limit police officers’ authority to
arrest without warrant for minor criminal offenses?
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Atwater v. Lago Vista Decision: This was the first time the Supreme Court
had decided a case involving the constitutionality of a warrantless arrest for a
misdemeanor offense, and the Court was sharply divided (five-to-four) in the
matter. They found that a police officer who observes someone breaking a
law, even a minor infraction for which the maximum penalty is a small fine,
can make a full custodial arrest without violating the Fourth Amendment
prohibition against unreasonable seizure. The opinion was that Officer Turek
may have used poor judgment when he chose to take Atwater to jail instead
of writing her a ticket, but arresting her did not violate Atwater’s constitutional
protection against unreasonable searches and seizures.
Justice Souter was joined in the majority by the four most conservative
justices, with whom he is almost always at odds in divided cases: Chief Justice
Rehnquist and Associate Justices Scalia, Thomas and Kennedy.
During oral arguments, Souter had pressed Atwater’s lawyer for information
about how widespread a problem such arrests were and appeared
unpersuaded that there was a problem for the Supreme Court to fix. Noting
that some states had passed laws to limit police authority to make arrests for
minor offenses, Souter wrote in his opinion that this trend, as well as the
“good sense” and “political accountability” of local officials, should take care of
any problem.
At oral arguments, Ms. Atwater’s lawyer had argued that under early English
law, ordinary misdemeanors were not seen as justifying arrest without some
other element, like a breach of the peace. Justice Souter rejected this
argument as a basis for finding that the Constitution’s framers would have
regarded such arrests as constitutionally unreasonable, saying that the
historical evidence was ambiguous.
Souter said the British Parliament,
before the founding of the United States, allowed arrests for all sorts of minor
offenses without violence, including night walking, game playing, cursing and
negligent carriage-driving. Souter stated:
Sir William Blackstone and Sir Edward East might ... be counted on
Atwater’s side, although they spoke only to the sufficiency of
breach of the peace as a condition to warrantless misdemeanor
arrest, not to its necessity.
... [T]he legal background of any conception of reasonableness the
Fourth Amendment’s Framers might have entertained would have
included English statutes, some centuries old, authorizing peace
officers (and even private persons) to make warrantless arrests for
all sorts of relatively minor offenses unaccompanied by violence.
The so-called “nightwalker” statutes are perhaps the most notable
examples. From the enactment of the Statute of Winchester in
1285, through its various readoptions and until its repeal in 1827,
night watchmen were authorized and charged “as ... in Times past”
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to “watch the Town continually all Night, from the Sun-setting unto
the Sunrising” and were directed that “if any Stranger do pass by
them, he shall be arrested until Morning.”... [T]he Statute of
Winchester “was made” not in derogation but rather “in affirmance
of the common law,” for “every private person may by the common
law arrest any suspicious night-walker, and detain him till he give
good account of himself....”
Continuing with the history lesson, Souter gave examples through the centuries:
... One 16th-century statute ... authorized peace officers to arrest
persons playing unlawful game[s] like bowling, tennis, dice, and
cards, and for good measure extended the authority beyond
players to include persons “haunting” the “houses, places and
alleys where such games shall be suspected to be holden,
exercised, used or occupied.” A 17th-century act empowered “any
person ... whatsoever to seize and detain any ... hawker, pedlar,
petty chapman, or other trading person” found selling without a
license. And 18th-century statutes authorized the warrantless
arrest of “rogues, vagabonds, beggars, and other idle and
disorderly persons” (defined broadly to include jugglers, palmreaders, and unlicensed play-actors)....
...
The significance of these early English statutes lies not in proving
that any common-law rule barring warrantless misdemeanor arrests
that might have existed would have been subject to statutory
override.... The point is that the statutes riddle Atwater’s supposed
common-law rule with enough exceptions to unsettle any
contention that the law of the mother country would have left the
Fourth Amendment’s Framers of a view that it would necessarily
have been unreasonable to arrest without warrant for a
misdemeanor unaccompanied by real or threatened violence.
The majority opinion also explained that by examining early American
evidence they came to the same conclusion:
... Atwater has cited no particular evidence that those who framed
and ratified the Fourth Amendment sought to limit peace officers’
warrantless misdemeanor arrest authority to instances of actual
breach of the peace, and our own review of the recent and
respected compilations of framing-era documentary history has
likewise failed to reveal any such design.... Nor have we found in
any of the modern historical accounts of the Fourth Amendment’s
adoption any substantial indication that the Framers intended such
a restriction....
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... During the period leading up to and surrounding the framing of
the Bill of Rights, colonial and state legislatures, like Parliament
before them, regularly authorized local peace officers to make
warrantless misdemeanor arrests without conditioning statutory
authority on breach of peace....
Nor does Atwater’s argument from tradition pick up any steam from
the historical record as it has unfolded since the framing, there
being no indication that her claimed rule has ever become “woven
... into the fabric” of American law. The story, on the contrary, is of
two centuries of uninterrupted (and largely unchallenged) state and
federal practice permitting warrantless arrests for misdemeanors
not amounting to or involving breach of the peace.
Souter explained that the laws in all fifty states and in the District of Columbia
allowed “warrantless misdemeanor arrests by at least some peace officers
without requiring any breach of peace, as do a host of congressional
enactments.” He continued:
If we were to derive a rule exclusively to address the uncontested
facts of this case, Atwater might well prevail. She was a known and
established resident of Lago Vista with no place to hide and no
incentive to flee, and common sense says she would almost
certainly have buckled up as a condition of driving off with a
citation. In her case, the physical incidents of arrest were merely
gratuitous humiliations imposed by a police officer who was (at
best) exercising extremely poor judgment...
Justice Souter continued by explaining that what happened to Atwater,
however, did not violate the Fourth Amendment because it was based on
probable cause. He said that to “mint a new rule of constitutional law” would
be to turn many ordinary arrests into occasions for constitutional litigation,
stating:
But we have traditionally recognized that a responsible Fourth
Amendment balance is not well served by standards requiring
sensitive, case-by-case determinations of government need, lest
every discretionary judgment in the field be converted into an
occasion for constitutional review. Often enough, the Fourth
Amendment has to be applied on the spur (and in the heat) of the
moment, and the object in implementing its command of
reasonableness is to draw standards sufficiently clear and simple to
be applied with a fair prospect of surviving judicial second-guessing
months and years after an arrest or search is made. Courts
attempting to strike a reasonable Fourth Amendment balance thus
credit the government’s side with an essential interest in readily
administrable rules....
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The majority opinion therefore concluded that “Atwater’s arrest satisfied
constitutional requirements” even though it may have been “inconvenient and
embarrassing.”
This case fractured the Court’s usual alliances, provoking a dissenting opinion
by Justice O’Connor, who warned that “such unbounded discretion” for the
police “carries with it grave potential for abuse.” Associate Justices Stevens,
Ginsburg and Breyer joined Justice O’Connor, who is most often allied with the
more conservative group, in her dissent. An insight into what O’Connor’s
ultimate decision was going to be occurred during oral arguments, when she
exclaimed to Ms. Atwater’s lawyer, “You’ve got the perfect case.”
O’Connor, writing for the minority, said that the Court’s ruling was in conflict
with protections against unreasonable search and seizure guaranteed by the
Bill of Rights. “The court recognizes that the arrest of Gail Atwater was a
‘pointless indignity’ that served no discernible state interest ... and yet holds
that her arrest was constitutionally permissible. The Court’s position is
inconsistent with the explicit guarantee of the Fourth Amendment,” O’Connor
wrote.
In 1996 the Court ruled in Whren v. U.S. that as long as a police officer had an
objective reason for stopping a driver, the officer’s subjective motive was irrelevant.
Justice O’Connor referred to that decision in the present case, saying that “it is
precisely because these motivations are beyond our purview that we must vigilantly
ensure that officers’ post-stop actions which are properly within our reach comport
with the Fourth Amendment’s guarantee of reasonableness.”
O’Connor gave an alternate solution to the majority opinion:
... I would require that when there is probable cause to believe that
a “fine-only offense” has been committed, the police officer should
issue a citation unless the officer is “able to point to specific and
articulable facts which, taken together with rational inferences from
those facts, reasonably warrant [the additional] intrusion” of a full
custodial arrest.
Justice O’Connor clearly felt that the police officer should have simply cited
Atwater. She wrote:
Citing Atwater surely would have served the children’s interests
well. It would have taught Atwater to ensure that her children were
buckled up in the future. It also would have taught the children an
important lesson in accepting responsibility and obeying the law.
Arresting Atwater, though, taught the children an entirely different
lesson: that “the bad person could just as easily be the policeman
as it could be the most horrible person they could imagine.”
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Although race was not an issue in this case, O’Connor saw a correlation to the
problem of racial profiling by law enforcement officers:
... [A]s the recent debate over racial profiling demonstrates all too
clearly, a relatively minor traffic infraction may often serve as an
excuse for stopping and harassing an individual. After today, the
arsenal available to any officer extends to a full arrest and the
searches permissible concomitant to that arrest. An officer’s
subjective motivations for making a traffic stop are not relevant
considerations in determining the reasonableness of the stop. ...
But it is precisely because these motivations are beyond our
purview that we must vigilantly ensure that officers’ poststop
actions--which are properly within our reach—comport with the
Fourth Amendment’s guarantee of reasonableness.
She warned that giving the police “such unbounded discretion carries with it
grave potential for abuse.” O’Connor continued, “After today, the arsenal
available to any officer extends to a full arrest and the searches permissible”
under that arrest.
NOTE: On May 29, 2001, the United States Supreme Court announced its
decision in Arkansas v. Sullivan. This case involved Sullivan being stopped for
speeding and having an improperly tented windshield. Police then conducted
a search of his vehicle and found drugs and suspected drug paraphernalia.
Sullivan moved to suppress the evidence on the basis that his arrest was
merely “a pretext and sham to search” him, and therefore violated the Fourth
and Fourteenth Amendments. The state courts had found for Sullivan and
ruled that the evidence was improperly seized and his arrest illegal.
In a per curiam opinion, the United States Supreme Court reversed. Justice
Ginsburg, joined by Justices Stevens, O’Connor and Breyer, wrote a
concurring opinion, in which she stated:
In Atwater, which recognized no constitutional limitation on arrest
for a fine-only misdemeanor offense, this Court relied in part on a
perceived “dearth of horribles demanding redress.” Although I
joined a dissenting opinion questioning the relevance of the Court’s
conclusion on that score, I hope the Court’s perception proves
correct. But if it does not, if experience demonstrates “anything like
an epidemic of unnecessary minor-offense arrests,” I hope the
Court will reconsider its recent precedent.
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B.
Danny Lee Kyllo v. U.S.
No. 99-8508, Argued February 20, 2001
Decided June 11, 2001
The U.S. Department of the Interior came to suspect that marijuana was being
grown in a home belonging to Danny Kyllo. In January, 1992, a thermal imaging
scan showed that the roof over the garage and a side wall of his home were
hotter than the rest of the house. A relatively new technology, thermal imaging
converts radiation into images based on the degree of heat. The scan took only a
few minutes and was performed from a vehicle while it was parked across the
street from Kyllo’s house. Agents concluded from the scan that Kyllo was using
special lights to grow marijuana. Using that imaging data as well as tips from
informants and utility bills, agents obtained a search warrant from a federal
judge. When the house was searched, more than one hundred marijuana plants
were found.
Kyllo pled guilty to manufacturing marijuana but reserved the right to challenge
the trial judge’s denial of his motion to suppress the evidence from the thermal
scan. The U.S. Court of Appeals for the Ninth Circuit rejected this claim, ruling
that Kyllo had no reasonable expectation of privacy in the heat escaping from his
home because he had made no attempt to conceal it.

ISSUE: Does the use of a thermal-imaging device aimed at a private
home from a public street to detect relative amounts of heat within the
home constitute a “search” within the meaning of the Fourth
Amendment?
Kyllo v. U.S. Decision: Police may not routinely use a heat-sensing device to see
if marijuana may be growing inside a private home, the Supreme Court ruled.
Justice Scalia, who attached great importance to the sanctity of the home, wrote
the five-to-four decision. Scalia said police may not explore details of what goes
on there—even from the outside—without first going before a judge to obtain a
search warrant.
“In the home, our cases show, all details are intimate details, because the entire
area is held safe from prying government eyes,” wrote Scalia, who was joined by
Justices Souter, Thomas, Ginsburg and Breyer.
Homeowners should not be “at the mercy of advancing technology,” Scalia said.
“While the technology used in the present case was relatively crude, the rule we
adopt must take account of more sophisticated systems that are already in use or
in development,” he wrote.
Scalia rejected the federal government’s arguments that the thermal imaging was
constitutional because it did not focus on “private activities” in “private areas” of
the house. He responded that “The Fourth Amendment’s protection of the home
has never been tied to measurement of the quality or quantity of information
obtained.” Scalia explained:
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Limiting the prohibition of thermal imaging to “intimate details”
would not only be wrong in principle; it would be impractical in
application, failing to provide “a workable accommodation between
the needs of law enforcement and the interests protected by the
Fourth Amendment. ... The Agema Thermovision 210 might
disclose, for example, at what hour each night the lady of the house
takes her daily sauna and bath--a detail that many would consider
"intimate;” and a much more sophisticated system might detect
nothing more intimate than the fact that someone left a closet light
on. We could not, in other words, develop a rule approving only
that through-the-wall surveillance which identifies objects no
smaller than 36 by 36 inches, but would have to develop a
jurisprudence specifying which home activities are “intimate” and
which are not. And even when (if ever) that jurisprudence were
fully developed, no police officer would be able to know in advance
whether his through-the-wall surveillance picks up “intimate”
details--and thus would be unable to know in advance whether it is
constitutional.
In reversing the ruling, the high court reiterated that “the Fourth Amendment
draws a firm line at the entrance of the house.” Scalia continued, “That line ...
must be not only firm but also bright—which requires clear specification of those
methods of surveillance that require a warrant.”
Dissenting justices noted that the infrared camera in the case measured the heat
emitted from the exterior of the home. The dissent, in an opinion written by Justice
Stevens, distinguished between surveillance that goes “through the wall” to detect
activities and mere scrutiny of emissions effectively “in plain view” that are
interpreted by police. Stevens wrote:
... I believe that the supposedly “bright-line” rule the Court has
created in response to its concerns about future technological
developments is unnecessary, unwise, and inconsistent with the
Fourth Amendment.
Because the thermal imaging in Kyllo’s case was deemed “an unlawful search,” a
lower court judge would have to determine whether, without the scan evidence,
the warrant would have been issued. Kyllo’s original five-year sentence was
reduced on other grounds, and at the time of the decision he had been free,
under court supervision, for nine years.
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CITY OF ONTARIO v. JEFF QUON
No. 08-1332
Argued April 19, 2010, Decided June 17, 2010
Jeff Quon was employed by the Ontario, California, Police Department as a police
sergeant and member of the department’s Special Weapons and Tactics (SWAT)
Team. In 2001 the city issued pagers that were capable of sending and receiving text
messages to Quon and other SWAT Team members in order to help them respond to
emergency situations.
A city policy on computer, Internet and e-mail use made it clear that the city had the
right to monitor communications. The policy allowed “light personal communications”
but said “users should have no expectation of privacy or confidentiality.” Sergeant
Quon signed a statement agreeing to the policy, and employees were told verbally that
the text-messaging pagers were considered e-mail and subject to the general policy.
The city made it clear to employees, including Quon, that anyone who exceeded a
monthly text message character allotment on the pagers would be required to reimburse
the city.
Concerned that the employees were being charged for work-related overages led
Quon’s supervisors to try and determine whether the existing limit was too low, or if the
overages were for personal messages. During this audit, it was discovered that many
of the messages sent and received on Quon’s pager were not work-related, and some
were sexually explicit. It was determined that Quon sent or received 456 messages
during one month, of which no more than 57 were work-related. The report concluded
that Quon had violated police department rules, and he was disciplined.
Sergeant Quon, his (now) former wife and mistress sued the department, saying their
Fourth Amendment rights had been violated. The district court entered judgment in
favor of the defendants after determining that the city had a good work-related reason to
audit the messages.
On appeal, the U.S. Court of Appeals for the Ninth Circuit reversed the decision, saying
that there were less intrusive ways to conduct the audit.

ISSUES: Does a city employee have a reasonable expectation of privacy, as
provided by the Fourth Amendment, in text messages transmitted on a cityissued pager when the police department has no official privacy policy for the
pagers?
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ONTARIO v.QUON (2010)
Decision
In a unanimous opinion written by Justice Kennedy, the Supreme Court ruled that the
police department did not violate the constitutional privacy rights of an employee when it
audited the text messages on a city-issued pager. The decision did not address the
privacy rights of people employed by private companies, nor did it decide the rights of
the people with whom the employee had communicated.
Kennedy wrote in his opinion that “The Court must proceed with care when considering
the whole concept of privacy expectations in communications made on electronic
equipment owned by a government employer.” He continued:
… Cell phone and text message communications are so pervasive that
some persons may consider them to be essential means or necessary
instruments for self-expression, even self-identification.
That might
strengthen the case for an expectation of privacy. On the other hand, the
ubiquity of those devices has made them generally affordable, so one
could counter that employees who need cell phones or similar devices for
personal matters can purchase and pay for their own. And employer
policies concerning communications will of course shape the reasonable
expectations of their employees, especially to the extent that such policies
are clearly communicated.
“Because the search was motivated by a legitimate work-related purpose, and because
it was not excessive in scope, the search was reasonable,” wrote Justice Kennedy. The
city “had a legitimate interest in ensuring that employees were not being forced to pay
out of their own pockets for work-related expenses, or on the other hand that the city
was not paying for extensive personal communications.”
Justice Kennedy emphasized that this ruling was narrow, explaining “It is preferable to
dispose of this case on narrower grounds.”
In his concurrence, Justice Scalia criticized that approach. “Applying the Fourth
Amendment to new technologies may sometimes be difficult, but when it is necessary to
decide a case, we have no choice,” Justice Scalia wrote. “The-times-they-are-achangin’ is a feeble excuse for disregard of duty.”
Justice Stevens also wrote a concurring opinion, joining the Court’s opinion in full.
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FLORIDA v. JARDINES
569 U. S. ___ (2013)
Facts: After receiving an anonymous tip that Joelis Jardines was growing marijuana in
his home, a team made up of Miami-Dade County police and officers of the federal Drug
Enforcement Administration (DEA) conducted a warrantless surveillance of Jardines’
home. One of the detectives present was a trained canine handler. He was
accompanied by a dog which had been trained to detect the scent of marijuana,
cocaine, heroin, and other drugs and to indicate the presence of such by certain
behavioral changes which the handler would recognize. The dog was allowed to sniff
around the exterior of the home and at the front door. After sniffing at the base of the
front door and apparently smelling one of the scents he had been trained to detect, the
dog sat, the behavior he had been trained to display after discovering the presence of
narcotics. Using this information, police then applied for and received a warrant to
search Jardines’ residence. When the police arrived with the warrant to search the
home, Jardines tried to flee and was arrested. The police found marijuana plants in the
home and charged Jardines accordingly. At his trial in a Florida court, Jardines
successfully moved to suppress this evidence as a result of an unreasonable search
and seizure and thus a violation of the Fourth Amendment. A Florida Court of Appeals
reversed the trial court’s judgment. However, the Florida Supreme Court overturned the
decision of the Court of Appeals. That court reasoned that using the dog to obtain the
evidence used against Jardines was a search unsupported by probable cause, and
thus, the warrant obtained based on information gathered by the canine’s search was
invalid. Florida appealed to the U. S. Supreme Court.
Issue: Does bringing a drug-sniffing dog to the front door of a home constitute a
Fourth Amendment search and thus require a warrant?
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FLORIDA v. JARDINES (2013)
Decision
By a 5-4 vote, the Supreme Court affirmed the judgment of the Florida Supreme Court
and thus answered “yes” to the question raised. Using a drug-sniffing dog to discover
evidence is a search under the Fourth Amendment and thus requires a warrant.
Evidence used against Jardines had been illegally seized.
Justice Scalia authored the opinion of the Court which Justices Thomas,
Ginsburg, Sotomayor, and Kagan joined. Scalia writes: “But when it comes to the
Fourth Amendment, the home is first among equals. At the Amendment’s ‘very core’
stands ‘the right of a man to retreat into his own home and there be free from
unreasonable governmental intrusion.’ … We therefore regard the area ‘immediately
surrounding and associated with the home’ --- what our cases call the curtilage --- as
‘part of the home itself for Fourth Amendment purposes.’ … Since the officers’
investigation took place in a constitutionally protected area, we turn to the question of
whether it was accomplished through an unlicensed physical intrusion. … As it is
undisputed that the detectives had all four of their feet and all four of their companion’s
firmly planted on the constitutionally protected extension of Jardines’ home, the only
question is whether he had given his leave (even implicitly) for them to do so. He had
not. … A police officer not armed with a warrant may approach a home and knock,
precisely because that is ‘no more than any private citizen might do.’ But introducing a
trained police dog to explore the area around the home in hopes of discovering
incriminating evidence is something else. There is no customary invitation to do that. …
we need not decide whether the officers’ investigation of Jardines’ home violated his
expectation of privacy under Katz. One virtue of the Fourth Amendment’s propertyrights baseline is that it keeps easy cases easy. … The government’s use of trained
police dogs to investigate the home and its immediate surroundings is a ‘search’ within
the meaning of the Fourth Amendment.”
Justice Kagan concurred in an opinion joined by Justices Ginsburg and Sotomayor.
Justice Kagan writes: “For me, a simple analogy clinches this case --- and does so on
privacy as well as property grounds. A stranger comes to the front door of your home
carrying super-high-powered binoculars. He doesn’t knock or say hello. Instead, he
stands on the porch and uses the binoculars to peer through your windows, into your
home’s furthest corners. It doesn’t take long (the binoculars are really very fine): In just
a couple of minutes, his uncommon behavior allows him to learn details of your life you
disclose to no one. Has he ‘trespassed’ on your property, exceeding the license you
have granted to members of the public to, say, drop off the mail or distribute campaign
flyers? Yes, he has. And has he also invaded your ‘reasonable expectation of privacy,’
… Yes, of course, he has done that too. That case is this case in every way that
matters. Here, police officers came to Joelis Jardines’ door with a supersensitive
instrument, which they deployed to detect things inside that they could not perceive
unassisted. The equipment they used was animal, not mineral. But … that is of no
significance in determining whether a search occurred. … Like the binoculars, a drugdetection dog is a specialized device for discovering objects not in plain view (or plain
smell). And as in the hypothetical above, that device was aimed here at a home --- the
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most private and inviolate (or so we expect) of all the places and things the Fourth
Amendment protects. Was this activity a trespass? Yes, as the Court holds today. Was
it also an invasion of privacy? Yes, that as well. The Court today treats this case under
a property rubric; I write separately to note that I could just as happily have decided it by
looking to Jardines’ privacy interests. … If we had decided this case on privacy
grounds, we would have realized that Kyllo v United States, 523 U. S. 27 (2001),
already resolved it. The Kyllo Court held that police officers conducted a search when
they used a thermal-imaging device to detect heat emanating from a private home, even
though they committed no trespass. … That ‘firm’ and ‘bright’ rule governs this case:
The police officers here conducted a search because they used a ‘device … not in
general public use’ (a trained drug-detection dog) to ‘explore details of the home’ (the
presence of certain substances) that they would not otherwise have discovered without
entering the premises.”
Justice Alito dissented and wrote a dissenting opinion which Chief Justice
Roberts and Justices Kennedy and Breyer joined. Alito writes: “The Court’s decision
in this important Fourth Amendment case is based on a putative rule of trespass law
that is nowhere to be found in the annals of Anglo-American jurisprudence. …
According to the Court, however, the police officer in this case … committed a trespass
because he was accompanied during his otherwise lawful visit to the front door of
respondent’s house by his dog … the Court has been unable to find a single case --from the United States or any other common-law nation --- that supports the rule on
which its decision is based. Thus, trespass law provides no support for the Court’s
holding today. The Court’s decision is also inconsistent with the reasonableexpectations-of-privacy test that the Court adopted in Katz v United States. … The
Court concludes that the conduct in this case was a search because Detective Bartelt
exceeded the boundaries of the license to approach the house that is recognized by the
law of trespass, but the Court’s interpretation of the scope of that license is unfounded.
… gathering evidence --- even damning evidence --- is a lawful activity that falls within
the scope of the license to approach. And when officers walk up to the front door of a
house, they are permitted to see, hear, and smell whatever can be detected from a
lawful vantage point. … Detective Bartelt did not exceed the scope of the license to
approach respondent’s front door. … What the Court must fall back on, then, is the
particular instrument that Detective Bartelt used to detect the odor of marijuana, namely,
his dog. But in the entire body of common-law decisions, the Court has not found a
single case holding that a visitor to the front door of a home commits a trespass if the
visitor is accompanied by a dog on a leash. … If bringing a tracking dog to the front
door of a home constituted a trespass, one would expect at least one case to have
arisen during the past 800 years. But the Court has found none. For these reasons, the
real law of trespass provides no support for the Court’s holding today. … I see no basis
for concluding that the occupants of a dwelling have a reasonable expectation of privacy
in odors that emanate from the dwelling and reach spots where members of the public
may lawfully stand. … Contrary to the interpretation propounded by the concurrence,
Kyllo is best understood as a decision about the use of new technology. … A dog,
however, is not a new form of ‘technology or a device.’ … The conduct of the police
officer in this case did not constitute a trespass and did not violate respondent’s
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reasonable expectations of privacy. I would hold that this conduct was not a search, and
I therefore respectfully dissent.”
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MISSOURI v. MCNEELY
569 U. S. ___ (2013)
Facts: A Missouri highway patrolman stopped Tyler McNeely for speeding and
repeatedly crossing the centerline at 2:08 A. M. The officer noticed several signs of
intoxication, including bloodshot eyes, slurred speech, and the smell of alcohol on
McNeely’s breath. After ordering McNeely to get out of his truck, the officer noted that
he was unsteady on his feet. The officer then subjected McNeely to a battery of fieldsobriety tests on which he performed poorly. McNeely declined to use a portable breathtest device designed to measure his blood alcohol concentration (BAC). The officer
arrested McNeely and started to transport him to the police station. After McNeely again
indicated that he would not submit to the breath-test device, the officer changed
directions and took McNeely to a hospital. At the hospital, the officer asked McNeely if
he would consent to a blood test and explained to him that under state law if he refused,
this would lead to the immediate revocation of his driver’s license for one year and could
be used against him in a future prosecution. McNeely still refused. Without McNeely’s
consent and without a warrant, the officer directed a hospital lab technician to take a
blood sample from McNeely. Laboratory testing measured McNeely’s BAC at 0.154
percent, well above the legal limit of 0.08 percent. As a result of his two prior drunkdriving convictions, McNeely was charged with a Class D felony under Missouri law
which carries a maximum imprisonment of four years. McNeely moved to have the
blood test results suppressed, arguing that taking his blood without his consent and
without a warrant violated his Fourth Amendment rights. A Missouri trial court agreed,
and the Missouri Supreme Court upheld the trial court’s judgment. Missouri appealed to
the U. S. Supreme Court.
Issue: Without consent and without a warrant, may a law enforcement officer
obtain a blood sample from a driver believed to be intoxicated under the exigent
circumstances exception to the Fourth Amendment’s warrant requirement?
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MISSOURI v. MCNEELY (2013)
Decision
By a 5-4 vote, the Supreme Court affirmed the judgment of the Missouri Supreme Court
and thus, for this particular case, answered “No” to the question raised. McNeely’s
Fourth Amendment rights in this instance had been violated.
Justice Sotomayor announced the judgment of the Court and authored the
opinion of the Court. Justices Scalia, Ginsburg, and Kagan joined all parts of
Sotomayor’s opinion of the Court. Sotomayor writes: “In Schmerber v California, 384 U.
S. 757 (1966), this Court upheld a warrantless blood test of an individual arrested for
driving under the influence of alcohol because the officer ‘might reasonably have
believed that he was confronted with an emergency, in which the delay necessary to
obtain a warrant, under the circumstances, threatened the destruction of evidence.’ …
The question presented here is whether the natural metabolization of alcohol in the
bloodstream presents a per se exigency that justifies an exception to the Fourth
Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving
cases. We conclude that it does not, and we hold, consistent with general Fourth
Amendment principles, that exigency in this context must be determined case by case
based on the totality of the circumstances. ... In those drunk-driving investigations
where police officers can reasonably obtain a warrant before a blood sample can be
drawn without significantly undermining the efficacy of the search, the Fourth
Amendment mandates that they do so. … The state’s proposed per se rule also fails to
account for advances in the 47 years since Schmerber was decided that allow for the
more expeditious processing of warrant applications, particularly in contexts like drunkdriving investigations where the evidence offered to establish probable cause is simple.
… Well over a majority of states allow police officers or prosecutors to apply for search
warrants remotely through various means, including telephonic or radio communication,
electronic communication such as e-mail, and video conferencing. … While the desire
for a bright-line rule is understandable, the Fourth Amendment will not tolerate adoption
of an overly broad categorical approach that would dilute the warrant requirement in a
context where significant privacy interests are at stake.”
Justice Kennedy wrote an opinion in which he concurred in part and joined all but
Parts II C and III of Sotomayor’s opinion of the Court. Kennedy writes: “The
repeated insistence … that every case be determined by its own circumstances is
correct, of course, as a general proposition; yet it ought not to be interpreted to indicate
this question is not susceptible of rules and guidelines that can give important, practical
instruction to arresting officers, instruction that in any number of instances would allow a
warrantless blood test in order to preserve the critical evidence. … And this Court, in
due course, may find it appropriate and necessary to consider a case permitting it to
provide more guidance than it undertakes to give today. … the instant case, by reason
of the way in which it was presented and decided in the state courts, does not provide a
framework where it is prudent to hold any more than that always dispensing with a
warrant for a blood test when a driver is arrested for being under the influence of alcohol
is inconsistent with the Fourth Amendment.”
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Chief Justice Roberts, joined by Justices Breyer and Alito, wrote an opinion
concurring in part and dissenting in part. Roberts writes: “A police officer reading
this Court’s opinion would have no idea – no idea – what the Fourth Amendment
requires of him, once he decides to obtain a blood sample from a drunk driving suspect
who has refused a breathalyzer test. I have no quarrel with the Court’s ‘totality of the
circumstances’ approach as a general matter; that is what our cases require. But the
circumstances in drunk driving cases are often typical, and the Court should be able to
offer guidance on how police should handle cases like the one before us. In my view,
the proper rule is straightforward. Our cases establish that there is an exigent
circumstances exception to the warrant requirement. That exception applies when there
is a compelling need to prevent the imminent destruction of important evidence, and
there is no time to obtain a warrant. The natural dissipation of alcohol in the
bloodstream constitutes not only the imminent but ongoing destruction of critical
evidence. That would qualify as an exigent circumstance, except that there may be time
to secure a warrant before blood can be drawn. If there is, an officer must seek a
warrant. If an officer could reasonably conclude that there is not, the exigent
circumstances exception applies by its terms, and the blood may be drawn without a
warrant. … The reasonable belief that critical evidence is being destroyed gives rise to a
compelling need for blood draws in cases like this one. Here, in fact, there is not simply
a belief that any alcohol in the bloodstream will be destroyed; it is a biological certainty.
… Obtaining a blood sample from a suspected drunk driver differs from other exigent
circumstances cases. Importantly, there is typically delay between the moment a drunk
driver is stopped and the time his blood can be drawn. … In this case, for example,
approximately 25 minutes elapsed between the time the police stopped McNeely and
the time his blood was drawn. … The question presented is whether a warrantless
blood draw is permissible under the Fourth Amendment ‘based upon the natural
dissipation of alcohol in the bloodstream.’ The majority answers ‘It depends,’ and so do
I. The difference is that the majority offers no additional guidance, merely instructing
courts and police officers to consider the totality of the circumstances. I believe more
meaningful guidance can be provided about how to handle the typical cases, and
nothing about the question presented prohibits affording that guidance. … Simply put,
when a drunk driving suspect fails field sobriety tests and refuses a breathalyzer,
whether a warrant is required for a blood draw should come down to whether there is
time to secure one. Schmerber itself provides support for such an analysis. The Court
there made much of the fact that ‘there was no time to seek out a magistrate and secure
a warrant.’ It did so in an era when cell phones and e-mail were unknown. It follows
quite naturally that if cell phones and e-mail mean that there is time to contact a
magistrate and secure a warrant, that must be done. At the same time, there is no need
to jettison the well-established exception for the imminent destruction of evidence, when
the officers are in a position to do something about it.… Because the Missouri courts did
not apply the rule I describe above, and because this Court should not do so in the first
instance, I would vacate and remand for further proceedings in the Missouri courts.”
Justice Thomas wrote a dissenting opinion. Thomas writes: “Because the body’s
natural metabolization of alcohol inevitably destroys evidence of the crime, it constitutes
an exigent circumstance. As a result, I would hold that a warrantless blood draw does
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not violate the Fourth Amendment. … As relevant in this case, officers may also
conduct a warrantless search when they have probable cause to believe that failure to
act would result in ‘imminent destruction of evidence.’ … The rapid destruction of
evidence acknowledged by the parties, the majority, and Schmerber’s exigency
determination occurs in every situation where police have probable cause to arrest a
drunk driver. In turn, that destruction of evidence implicates the exigent-circumstances
doctrine. … Nothing in the Fourth Amendment requires officers to allow evidence
essential to enforcement of drunk-driving laws to be destroyed while they wait for a
warrant to issue. … The Court should not adopt a rule that requires police to guess
whether they will be able to obtain a warrant before ‘too much’ evidence is destroyed,
for the police lack reliable information concerning the relevant variables. … A rule that
requires officers (and ultimately courts) to balance transportation delays, hospital
availability, and access to magistrates is not a workable rule for cases where natural
processes inevitably destroy the evidence with every passing minute.”
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MARYLAND v. KING
569 U. S. ___ (2013)
Facts: In 2003 a man armed with a gun and concealing his face broke into a woman’s
home in Maryland and raped her. Police were unable to identify or apprehend the guilty
party based on any description or other evidence in their possession, but they did obtain
a sample of the assailant’s DNA from the victim. In 2009, Alonzo King, Jr. was arrested
in Maryland and charged with first- and second-degree assault for menacing a group of
people with a shotgun. As part of a routine booking procedure for serious offenses
pursuant to Maryland’s DNA Collection Act, a sample of King’s DNA was taken by
applying a cotton swab to the inside of his cheeks. This DNA was uploaded to the
Maryland DNA database, and a few weeks later King’s DNA was matched to the DNA
taken from the 2003 Maryland rape victim. This forensic evidence was presented to a
grand jury which indicted King for the rape. After obtaining a search warrant, police then
took a second sample of DNA from King, which once more matched the DNA evidence
from the rape victim. King moved to suppress the DNA evidence on the grounds that
Maryland’s DNA Collection Act violated the Fourth Amendment. A judge of a Maryland
Circuit Court ruled that the Maryland law was constitutional. King pleaded not guilty to
the rape charge, but he was convicted and sentenced to life in prison without the
possibility of parole. Reviewing King’s rape conviction, a divided Maryland Court of
Appeals overturned King’s conviction and declared portions of the Maryland law
authorizing collection of DNA from those arrested for felony offenses unconstitutional. A
majority of the Court of Appeals concluded that the DNA swab was an unreasonable
search in violation of the Fourth Amendment because King’s “expectation of privacy is
greater than the state’s purported interest in using King’s DNA to identify him.” Federal
and state courts have reached different conclusions as to whether the Fourth
Amendment forbids collecting and analyzing DNA samples from persons arrested, but
not yet convicted, of felony offenses. The U. S. Supreme Court granted certiorari to
address this question.
Issue: When police make an arrest supported by probable cause for a serious
offense, is taking and analyzing a cheek swab of the arrestee’s DNA a reasonable
and legitimate booking procedure under the Fourth Amendment?
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MARYLAND v. KING (2013)
DECISION
By a 5-4 vote, the Supreme Court reversed the judgment of the Maryland Court of
Appeals and thus answered “yes” to the question raised. When police make an arrest
supported for probable cause for a serious offense, taking and analyzing a cheek swab
of the arrestee’s DNA, like fingerprinting and photographing, is a legitimate, reasonable
booking procedure under the Fourth Amendment.
Justice Kennedy wrote the opinion of the Court which Chief Justice Roberts and
Justices Thomas, Breyer, and Alito joined. Kennedy writes: “… the utility of DNA
identification in the criminal justice system is already undisputed.” … He points out that
the Maryland law “limits the information added to a DNA database and how it may be
used. Specifically, ‘only DNA records that directly relate to the identification of
individuals shall be collected and stored.’ No purpose other than identification is
permissible … The officers involved in taking and analyzing respondent’s DNA sample
complied with the Act in all respects. … The procedure is quick and painless … it
requires no ‘surgical intrusion beneath the skin’ … and it poses no ‘threat to the health
or safety’ of arrestees … Twenty-eight states and the Federal Government have
adopted laws similar to the Maryland Act authorizing the collection of DNA from some or
all arrestees. … ‘The Fourth Amendment’s proper function is to constrain, not against all
intrusions as such, but against intrusions which are not justified in the circumstances, or
which are made in an improper manner.’ … ‘As the text of the Fourth Amendment
indicates, the ultimate measure of the constitutionality of a governmental search is
reasonableness.’ … An assessment of reasonableness to determine the lawfulness of
requiring this class of arrestees to provide a DNA sample is central to the instant case.
The legitimate government interest served by the Maryland DNA Collection Act is one
that is well established: the need for law enforcement officers in a safe and accurate
way to process and identify the persons and possessions they must take into custody.
… An individual’s identity is more than just his name or Social Security number, and the
government’s interest in identification goes beyond ensuring that the proper name is
typed on the indictment. … A suspect’s criminal history is a critical part of his identity
that officers should know when processing him for detention. … In this respect the only
difference between DNA analysis and the accepted use of fingerprint databases is the
unparalleled accuracy DNA provides. … The DNA collected from arrestees is an
irrefutable identification of the person from whom it was taken. … an arrestee’s past
conduct is essential to an assessment of the danger he poses to the public, and this will
inform a court’s determination whether the individual should be released on bail. …
Knowing that the defendant is wanted for a previous violent crime based on DNA
identification is especially probative of the court’s consideration of ‘the danger of the
defendant to the alleged victim, another person, or the community.’ … Finally, in the
interests of justice, the identification of an arrestee as the perpetrator of some heinous
crime may have the salutary effect of freeing a person wrongfully imprisoned for the
same offense. … In the balance of reasonableness required by the Fourth Amendment,
therefore, the Court must give great weight both to the significant government interest at
stake in the identification of arrestees and to the unmatched potential of DNA
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identification to serve that interest. … The government interest must outweigh the
degree to which the search invades an individual’s legitimate expectations of privacy. In
considering those expectations in this case, however, the necessary predicate of a valid
arrest for a serious offense is fundamental. … The reasonableness of any search must
be considered in the context of the person’s legitimate expectations of privacy. … Once
an individual has been arrested on probable cause for a dangerous offense that may
require detention before trial, however, his or her expectations of privacy and freedom
from police scrutiny are reduced. … A brief intrusion of an arrestee’s person is subject
to the Fourth Amendment, but a swab of this nature does not increase the indignity
already attendant to normal incidents of arrest.”
Justice Scalia dissented and authored a dissenting opinion which Justices
Ginsburg, Sotomayor, and Kagan joined. Justice Scalia writes: “The Fourth
Amendment forbids searching a person for evidence of a crime when there is no basis
for believing the person is guilty of the crime or is in possession of incriminating
evidence. That prohibition is categorical and without exception; it lies at the very heart of
the Fourth Amendment. Whenever this Court has allowed a suspicionless search, it has
insisted upon a justifying motive apart from the investigation of crime. It is obvious that
no such noninvestigative motive exists in this case. The Court’s assertion that DNA is
being taken, not to solve crimes, but to identify those in the State’s custody, taxes the
credulity of the credulous. And the Court’s comparison of Maryland’s DNA searches to
other techniques, such as fingerprinting, can seem apt only to those who know no more
than today’s opinion has chosen to tell them about how those DNA searches actually
work. … It is only when a governmental purpose aside from crime-solving is at stake
that we engage in the free-form ‘reasonableness’ inquiry that the Court indulges at
length today. To put it another way, both the legitimacy of the Court’s method and the
correctness of its outcome hinge entirely on the truth of a single proposition: that the
primary purpose of these DNA searches is something other than simply discovering
evidence of criminal wrongdoing. As I detail below, that proposition is wrong. … The
Court hastens to clarify that it does not mean to approve invasive surgery on arrestees
or warrantless searches of their homes. That the Court feels the need to disclaim these
consequences is as damning a criticism of its suspicionless-search regime as any I can
muster. And the Court’s attempt to distinguish those hypothetical searches from this real
one is unconvincing. … At any rate, all this discussion is beside the point. No matter the
degree of invasiveness, suspicionless searches are never allowed if their principal end
is ordinary crime-solving. … Sensing (correctly) that it needs more, the Court elaborates
at length the ways that the search here served the special purpose of ‘identifying’ King.
But that seems to me quite wrong – unless what one means by ‘identifying’ someone is
‘searching for evidence that he has committed crimes unrelated to the crime of his
arrest.’ … If identifying someone means finding out what unsolved crimes he has
committed, then identification is indistinguishable from the ordinary law-enforcement
aims that have never been thought to justify a suspicionless search. … The portion of
the Court’s opinion that explains the identification rationale is strangely silent on the
actual workings of the DNA search at issue here. To know those facts is to be instantly
disabused of the notion that what happened had anything to do with identifying King. …
The truth known to Maryland and increasingly to the reader: this search had nothing to
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do with establishing King’s identity. … Is not taking DNA samples the same, asks the
Court, as taking a person’s photograph? No – because that is not a Fourth Amendment
search at all. It does not involve a physical intrusion onto the person… … What DNA
adds – what makes it a valuable weapon in the law enforcement arsenal – is the ability
to solve unsolved crimes, by matching old crime-scene evidence against the profiles of
people whose identities are already known. That is what was going on when King’s
DNA was taken, and we should not disguise the fact. Solving unsolved crimes is a noble
objective, but it occupies a lower place in the American pantheon of noble objectives
than the protection of our people from suspicionless law-enforcement searches. The
Fourth Amendment must prevail. … Make no mistake about it: As an entirely predictable
consequence of today’s decision, your DNA can be taken and entered into a national
DNA database if you are ever arrested, rightly or wrongly, and for whatever reason. …
All parties concede that it would have been entirely permissible, as far as the Fourth
Amendment is concerned, for Maryland to take a sample of King’s DNA as a
consequence of his conviction for second-degree assault. So the ironic result of the
Court’s error is this: The only arrestees to whom the outcome here will ever make a
difference are those who have been acquitted of the crime of arrest (so that their DNA
could not have been taken upon conviction). In other words, this Act manages to burden
uniquely the sole group for whom the Fourth Amendment’s protections ought to be most
jealously guarded: people who are innocent of the state’s accusations. … Perhaps the
construction of such a genetic panopticon is wise. But I doubt that the proud men who
wrote the charter of our liberties would have been so eager to open their mouths for
royal inspection.”
NOTE: Justice Alito called Maryland v King “perhaps the most important criminal
procedure case that this Court has heard in decades.”
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VIII. SEARCHES AND SEIZURES IN PUBLIC SCHOOLS
A. New Jersey v. T.L.O.
469 U. S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720, Argued March 28, 1984 Reargued October 2,
1984
Decided January 15, 1985
On March 7, 1980, a teacher at Piscataway High School in Middlesex County,
New Jersey, discovered two girls smoking in a lavatory. One of the two girls
was Terry Lee Owens, a 14-year-old freshman. Since smoking violation a
school rule, the teacher took the two girls to the principal's office, where they
met with assistant vice principal Theodore Choplick. In response to
questioning, Terry Lee Owens' companion admitted that she had violated the
rule, but Owens denied that she had been smoking and further claimed that
she did not smoke at all.
Mr. Choplick asked Owens to come into his office and demanded to see her
purse. Opening the purse, he found a pack of cigarettes along with a
package of cigarette rolling papers. In his experience, possession of rolling
papers was closely associated with the use of marijuana. Suspecting that a
closer examination of the purse might yield further evidence of drug use, Mr.
Choplick searched the purse thoroughly. He found a small amount of
marijuana, a pipe, a number of empty plastic bags, a substantial quantity of
money in one-dollar bills, an index card that appeared to be a list of students
who owed Owens money, and two letters that implicated her in marijuana
dealing. Owens received a three-day suspension from school for smoking
cigarettes in a nonsmoking area and a seven-day suspension for possession
of marijuana.
Mr. Choplick notified the student's mother and turned over the evidence of
drug dealing to the police. When taken to the police station, Owens
confessed to selling marijuana at the school. On the basis of the confession
and the evidence seized, the state brought delinquency charges against
Owens in juvenile court. At the juvenile court proceeding, Owens moved to
suppress the evidence of the search. She argued that her confession should
also be suppressed as it was tainted by the unlawful search. The Juvenile
Court held that, although the Fourth Amendment applied to searches by
school officials, this search was based on reasonable suspicion and adjudged
Owens to be a delinquent. The Appellate Division of the New Jersey Superior
Court concluded that there had been no Fourth Amendment violation.
However, it vacated the adjudication of delinquency and returned the case to
the lower court to determine whether her confession had been voluntary and
knowingly made or whether it had been coerced under the Fifth Amendment.
The New Jersey Supreme Court reversed the trial court holding, determining
that the Fourth Amendment protection against warrantless searches applied
to searches by school officials and that evidence from an illegal search should
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be suppressed. The state of New Jersey appealed to the U.S. Supreme
Court.
 ISSUE: Are students protected by the Fourth Amendment from
warrantless searches by school officials?
New Jersey v. T.L.O. Decision: The U. S. Supreme Court found that, while
the Fourth Amendment's prohibition on unreasonable searches and seizures
applies to searches conducted by public school officials, the search of T.L.O.'s
purse was reasonable. The decision of the Supreme Court of New Jersey was
reversed, and the evidence was held to be admissible in the juvenile court
proceedings. Justice White wrote the opinion of the Court, and Justices
Powell and Blackmun filed concurring opinions. Justices Brennan, Marshall,
and Stevens concurred in part and dissented in part.
Justice White wrote:
We granted certiorari in this case to examine the appropriateness
of the exclusionary rule as a remedy for searches carried out in
violation of the Fourth Amendment by public school authorities….
In a footnote, Justice White commented:
In holding that the search of T.L.O.'s purse did not violate the
Fourth Amendment, we do not implicitly determine that the
exclusionary rule applies to the fruits of unlawful searches
conducted by school authorities. The question whether evidence
should be excluded from a criminal proceeding involves two
discrete inquires: whether the evidence was seized in violation of
the Fourth Amendment, and whether the exclusionary rule is the
appropriate remedy for the violation. Neither question is logically
antecedent to the other, for a negative answer to either question is
sufficient to dispose of the case. Thus, our determination that the
search at issue in this case did not violate the Fourth Amendment
implies no particular resolution of the question of the applicability of
the exclusionary rule.
Continuing with the opinion of the Court, White wrote:
Although this Court may take notice of the difficulty of maintaining
discipline in the public schools today, the situation is not so dire that
students in the schools may claim no legitimate expectations of
privacy....
Students ... must bring to school not only the supplies needed for
their studies, but also keys, money, and the necessaries of
personal hygiene and grooming. In addition, students may carry on
their persons or in purses or wallets such nondisruptive yet highly
personal items as photographs, letters, and diaries....
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Against the child's interest in privacy must be set the substantial
interest of teachers and administrators in maintaining discipline in
the classroom and on school grounds ....
It is evident that the school setting requires some easing of the
restrictions to which searches by public authorities are ordinarily
subject....
Ordinarily, a search ... must be based upon "probable cause"....
However, "probable cause" is not an irreducible requirement of a
valid search. The fundamental command of the Fourth Amendment
is that searches and seizures be reasonable, and although "both
the concept of probable cause and the requirement of a warrant
bear on the reasonableness of a search, ... in certain limited
circumstances neither is required."
... [T]he legality of a search of a student should depend simply on
the reasonableness ... of the search.... Such a search will be
permissible ... when the measures adopted are reasonably related
to the objectives of the search and not excessively intrusive in light
of the age and sex of the student and the nature of the infraction.
Justice Powell concurred, joined by Justice O'Connor:
… I would place greater emphasis ... on the special characteristics
of elementary and secondary schools that make it unnecessary to
afford students the same constitutional protections granted adults
and juveniles in a nonschool setting….
... officers have the responsibility to investigate criminal activity....
Rarely does this type of adversarial relationship exist between
school authorities and pupils. Instead, there is a commonality of
interests between teachers and their pupils. The attitude of the
typical teacher is one of personal responsibility for the student's
welfare as well as for his education….
Justice Brennan, with whom Justice Marshall joined, concurred in part and
dissented in part:
... Teachers, like all other government officials, must conform their
conduct to the Fourth Amendment's protections of personal privacy
and personal security....
I do not, however, otherwise join the Court's opinion. Today's
decision sanctions school officials to conduct full-scale searches on
a "reasonableness" standard whose only definite content is that it is
not the same test as the "probable cause" standard found in the
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text of the Fourth Amendment....
In a footnote, Justice Brennan wrote the following description of a purse:
A purse typically contains items of highly personal nature.
Especially for shy or sensitive adolescents, it could prove extremely
embarrassing for a teacher or principal to rummage through its
contents, which could include notes from friends, fragments of love
poems, caricatures of school authorities, and items of personal
hygiene.
Justices Brennan, Marshall, and Stevens agreed with the majority opinion that
the Fourth Amendment applied to school setting. Their point of departure was
the application of the amendment. For the majority, the test was reasonable
suspicion; for the dissenters, the test was probable cause, a stricter standard
than reasonable suspicion. Justice Stevens wrote:
… I continue to believe that the Court has unnecessarily and
inappropriately reached out to decide a constitutional question.... I
fear that the concerns that motivated the Court's activism have
produced a holding that will permit school administrators to search
students suspected of violating only the most trivial school
regulations and guidelines for behavior....
Schools are places where we inculcate the values essential to the
meaningful exercise of rights and responsibilities by a selfgoverning citizenry. If the Nation's students can be convicted
through the use of arbitrary methods destructive of personal liberty,
they cannot help but feel that they have been dealt with unfairly.
The application of the exclusionary rule in criminal proceedings
arising from illegal school searches makes an important statement
to young people that "our society attaches serious consequences to
a violation of constitutional rights," and that this is a principle of
"liberty and justice for all."
Justice Stevens concluded his remarks with the following:
The schoolroom is the first opportunity most citizens have to
experience the power of government. Through it passes every
citizen and public official, from schoolteachers to policemen and
prison guards. The values they learn there, they take with them in
life. One of our most cherished ideals is the one contained in the
Fourth Amendment: that the government may not intrude on the
personal privacy of its citizens without a warrant or compelling
circumstance. The Court's decision today is a curious moral for the
Nation's youth. Although the search of T.L.O.'s purse does not
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trouble today's majority, I submit that we are not dealing with
"matters relatively trivial to the welfare of the Nation. There are
village tyrants as well as
village Hampdens, but none who acts under color of law is beyond
reach of the Constitution." West Virginia State Board of Education
v. Barnette, 1943.
NOTE: After the Supreme Court announced its decision in the case, the parents
of Terry Lee Owens filed a civil case against the school district and won. Terry
completed the school year in which the incident occurred and made a “B” in the
course taught by the teacher who discovered her smoking in the restroom. The
teacher left teaching after that year because she was afraid for her family.
(Information from Thomas A. Jacobs, J.D., author of What Are My Rights?.)
B.
Vernonia School District 47J v. Wayne Acton, et ix. etc.
(515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed. 2d 564, Argued March 28, 1995
Decided June 26, 1995
Vernonia School District was located in a small logging community of
Vernonia, Oregon. School sports played an important role in the town’s life,
and student athletes were admired in their schools and community.
Drugs had never been a major problem in Vernonia schools until the mid-tolate 1980's, when teachers and administrators observed a sharp increase in
drug use. Students began to speak out about their attraction to the drug
culture and to boast that there was nothing the school could do about it.
Between 1988 and 1989 the number of disciplinary referrals in Vernonia
schools rose to more than twice the number reported in the early 1980's,
and several students were suspended. Students became increasingly rude
during class, and outbursts of profane language became common.
Small groups of students were observed by a teacher “passing joints back
and forth” across the street at a restaurant before school and during school
hours. Another group was caught skipping school and using drugs at one
of the students’ houses. Several students actually admitted their drug use
to school officials, and one student presented himself to his teacher as
“clearly obviously inebriated” and had to be sent home. Another student
was observed dancing and singing at the top of his voice in the back of the
classroom; when the teacher asked what was going on, he replied, “Well,
I’m just high on life.”
Student athletes were found to be among the drug users and, in fact, were
the leaders of the drug culture. The District became concerned that drug
use might increase risks of sports-related injuries when at least one severe
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injury was attributed to the effects of drug use. Coaches observed various
omissions of safety procedures and misexecutions by athletes.
Initially, the District responded to the drug problem by offering special
classes, speakers, and presentations designed to deter drug use. It even
brought in a specially trained dog to detect drugs, but the drug problem
persisted. At that point, District officials began considering a drug-testing
program. They held a parent “input night” to discuss the proposed Student
Athlete Drug Policy, and the parents in attendance gave their unanimous
approval. The school board approved the policy to begin in the fall of 1989.
Its purpose was to prevent student athletes from using drugs, to protect
their health and safety, and to provide drug users with assistance programs.
The policy, as adopted, applied to all students participating in interscholastic
athletics. Students wishing to play sports had to sign a form consenting to
the testing and obtain the written consent of their parents. Athletes were
tested at the beginning of the season for their sport, and during the season
the names of athletes were placed in a “pool” from which names of 10
percent of the athletes were blindly drawn for random testing. Students to
be tested were notified and required to complete a control form bearing an
assigned number. Students taking prescription medicine had to provide a
copy of the prescription of a doctor’s authorization. Urine samples were
sent to an independent laboratory and tested for amphetamines, cocaine,
and marijuana. The laboratory’s procedures were 99.94 percent accurate,
and the District followed strict procedures regarding the chain of custody
and access to test results. The laboratory did not know the identity of the
students whose samples it tested. Only the superintendent, principals, viceprincipals, and athletic directors had access to test results, which were not
kept for more than one year.
If a sample tested positive, a second test was administered to confirm the
results. If the second test was negative, no further action was taken. If
positive, the athlete’s parents were notified and a meeting was scheduled
between the student, parents and principal. At the meeting the student was
given the option of (1) participating for six weeks in an assistance program
that included weekly urinalysis, or (2) suffering suspension from athletics for
the remainder of the current season and the next athletic season. The
student was then retested prior to the start of the next athletic season for
which he or she was eligible. Results of a second offense resulted in
automatic imposition of option (2), and a third offense resulted in
suspension for the remainder of the season, in addition to the next two
athletic seasons.
In the fall of 1991, James Acton, a seventh-grader, signed up to play
football at one of the District’s grade schools. Because he and his parents
refused to sign the testing consent forms, he was denied the right to
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participate. (There was no suspicion that James was using drugs.) The
Actons filed a lawsuit on the grounds that the district policy violated the
Fourth and Fourteenth Amendments to the United States Constitution and
the Oregon Constitution. The case was dismissed after a bench trial, but
the United States Court of Appeals for the Ninth Circuit reversed, holding
that the policy violated both the Fourth and Fourteenth Amendments and
the Oregon Constitution. The case was then appealed by the school district
to the United States Supreme Court.

ISSUE: Is random drug testing of student athletes a violation of the
Fourth and Fourteenth Amendment prohibitions against
unreasonable searches?
Vernonia v. Acton Decision: Upholding a random drug-testing program for the
first time, the Supreme Court ruled that public school officials could require
student athletes to submit to a random urinalysis as a condition of being allowed
to play interscholastic sports. Justice Scalia delivered the opinion of the six-tothree Court, in which Chief Justice Rehnquist and Justices Kennedy, Thomas,
Ginsburg, and Breyer joined.
Justice Scalia quoted from previous Supreme Court cases in writing the majority
opinion:
As the text of the Fourth Amendment indicates, the ultimate
measure of the constitutionality of a governmental search is
“reasonableness.” At least in a case such as this ... whether a
particular search meets the reasonableness standard “is judged by
balancing its intrusion on the individual’s Fourth Amendment
interests against its promotion of legitimate governmental interests.”
(Skinner v. Railway Labor Executives’ Assn., 1989, quoting
Delaware v. Prouse, 1979)....
In his opinion for the Court, Justice Scalia said the Vernonia school district’s
program was “reasonable and hence constitutional” for three reasons, the first
being a decreased expectation of privacy by school athletes:
The first factor to be considered is the nature of the privacy interest
upon which the search here at issue intrudes. The Fourth
Amendment does not protect all subjective expectations of privacy,
but only those that society recognizes as “legitimate.” (New Jersey
v. T.L.O., 1985)....
Legitimate privacy expectations are even less with regard to
student athletes. School sports are not for the bashful. They
require “suiting up” before each practice or event, and showering
and changing afterwards. Public school locker rooms, the usual
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sites for these activities, are not notable for the privacy they afford.
The locker rooms in Vernonia are typical ... there is “an element of
‘communal undress’ inherent in athletic participation.” (Schaill v.
Tippecanoe County School Corp., 1988)
Secondly, Justice Scalia said, the testing program was designed to be as
unobtrusive as possible. Scalia continued by stating that:
... it is significant that the tests at issue here look only for drugs,
and not for whether the student is, for example, epileptic, pregnant,
or diabetic…. Moreover, the drugs for which the samples are
screened are standard, and do not vary according to the identity of
the student. And finally, the results of the tests are disclosed only
to a limited class of school personnel who have a need to know;
and they are not turned over to law enforcement authorities or used
for any internal disciplinary function….
Finally, Justice Scalia indicated that the program served the school district’s
important interest in combating drug abuse in an effective manner. The majority
opinion concluded with the following summary:
That the nature of the concern is important--indeed, perhaps
compelling—can hardly be doubted. Deterring drug use by our
Nation’s schoolchildren is at least as important as enhancing
efficient enforcement of the Nation’s laws against the importation of
drugs....
School years are the time when the physical,
psychological, and addictive effects of drugs are most severe....
And of course the effects of a drug-infested school are visited not
just upon the users, but upon the entire student body and faculty,
as the educational process is disrupted. In the present case,
moreover, the necessity for the State to act is magnified by the fact
that this evil is being visited not just upon individuals at large, but
upon children for whom it has undertaken a special responsibility of
care and direction. Finally ... this program is directed more
narrowly to drug use by school athletes, where the risk of
immediate physical harm to a drug user or those with whom he is
playing his sport is particularly high....
Taking into account all the factors we have considered above--the
decreased expectation of privacy, the relative unobtrusiveness of
the search, and the severity of the need met by the search—we
conclude Vernonia’s policy is reasonable and hence constitutional.
Justice Ginsburg, in a concurring opinion, added:
... I comprehend the Court’s opinion as reserving the question
whether the District, on no more than the showing made here,
constitutionally could impose routine drug testing not only on those
seeking to engage with others in team sports, but on all students
required to attend school....
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Justice O’Connor, with whom Justices Stevens and Souter joined, dissented,
indicating that it would have been more reasonable for school officials to limit
drug testing to those students who were disciplinary problems than random
testing of all student athletes. Excerpts from O’Connor’s dissent are as follows:
The population of our Nation’s public schools, grades 7 through 12,
numbers around 18 million…. By the reasoning of today’s decision,
the millions of these students who participate in interscholastic
sports, an overwhelming majority of whom have given school
officials no reason whatsoever to suspect they use drugs at school,
are open to an intrusive bodily search….
In light of all [the] evidence of drug use by particular students, there
is a substantial basis for concluding that a vigorous regime of
suspicion-based testing ... would have gone a long way toward
solving Vernonia’s school drug problem while preserving the Fourth
Amendment rights of James Acton and others like him. And were
there any doubt about such a conclusion, it is removed by
indications in the record that suspicion-based testing could have
been supplemented by an equally vigorous campaign to have
Vernonia’s parents encourage their children to submit to the
District’s voluntary drug testing program....
...[I]ntrusive, blanket searches of schoolchildren, most of whom are
innocent, for evidence of serious wrongdoing are not part of any
traditional school function of which I am aware. Indeed, many
schools, like many parents, prefer to trust their children unless
given reason to do otherwise. As James Acton’s father said on the
witness stand, “[suspicionless testing] sends a message to children
that are trying to be responsible citizens… that they have to prove
that they’re innocent ..., and I think that kind of sets a bad tone for
citizenship.”
... The best proof that the District’s testing program is to … some
extent accusatory can be found in James Acton’s own explanation
on the witness stand as to why he did not want to submit to drug
testing: “Because I feel that they have no reason to think I was
taking drugs.” It is hard to think of a manner of explanation that
resonates more intensely in our Fourth Amendment tradition than
this….
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B.
Board of Education of Independent School District No. 92 of Pottawatomie
County v. Lindsay Earls, et al.
(536 U.S. __, 122 S.Ct. 2559, 153 L.Ed. 2d 735 Argued March 19, 2002
Decided June 27, 2002)
In 1995, the Supreme Court decided its only case (Vernonia v. Acton) dealing with
suspicionless drug testing in a public school setting. The justices in that case
upheld testing of athletes in an Oregon district, where athletes were blamed for
discipline problems resulting from drug use. The Court, however, stopped short of
endorsing far-reaching drug testing.
Tecumseh, Oklahoma, is a rural community located approximately forty miles
southeast of Oklahoma City. In the fall of 1998, the public school district in
Tecumseh adopted the Student Activities Drug Testing Policy, which required
high and middle school students who participated in any competitive
extracurricular activity to submit to random drug testing. Students refusing to
take the drug tests were barred from their chosen activity. Students testing
positive for drugs were required to attend counseling sessions and quit using
drugs to remain involved in the extracurricular activities.
The policy was applied only to competitive extracurricular activities, and random
drug testing occurred eight times during the 1998-1999 school year.
Approximately 500 students were tested, and three or four tested positive for
drugs. Test results were placed in confidential files separate from other student
files.
Lindsay Earls was an honor student active in the school choir, band, National Honor
Society and the Academic Team, and Daniel James was a fellow student who sought to
participate in the academic team. In 1999, they challenged the drug testing policy by
filing suit in federal court against the school district and the school board. They believed
the Fourth Amendment protects members of non-athletic activities from the suspicionless,
mandatory urinalysis. Furthermore, they said, the school had not demonstrated a
“special need” for drug testing sufficient to override Fourth Amendment protections. In
fact, the school district’s annual reports showed low and decreasing drug use over the
past decade.
The federal court, using the Supreme Court decision in Vernonia as a precedent, found in
favor of the school district, ruling the drug testing did not violate the Fourth Amendment
prohibition against unreasonable searches. This court noted that, although the school did
not show an unusual drug problem, there was a history of drug abuse and a “legitimate
cause for concern.”
In 2001, a divided Tenth Circuit Court of Appeals panel reversed, stating that the district
had no justification for drug testing because it had few problems in that area. School
officials appealed to the United States Supreme Court.

ISSUE: Is it a violation of the Fourth Amendment protection against
unreasonable searches and seizures for a public school district to
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enforce a policy requiring students who wish to participate in
extracurricular activities to submit to drug testing, if the policy is
supported by no more than negligible evidence of drug abuse
problems among students subject to the test?
Pottawatomie v. Earls Decision: In a five-to-four decision, the Supreme
Court upheld the widespread use of random drug testing in public school.
In his majority opinion, Justice Thomas emphasized the “custodial
responsibilities” of a public school system toward its students.
Thomas said the Tecumseh program was “entirely reasonable” in light of the
“nationwide epidemic of drug use” among school-age children. He wrote:
... While schoolchildren do not shed their constitutional rights when
they enter the schoolhouse [quoting Tinker v. Des Moines, 1969],
“Fourth Amendment rights . . . are different in public schools than
elsewhere; the ‘reasonableness’ inquiry cannot disregard the
schools’ custodial and tutelary responsibility for children.” ...In
particular, a finding of individualized suspicion may not be
necessary when a school conducts drug testing....
Thomas said that the differences between this case and the 1995 Vernonia case
were “not essential” and, in fact, “The health and safety risks identified in Vernonia
apply with equal force to Tecumseh’s children. Indeed, the nationwide drug
epidemic makes the war against drugs a pressing concern in every school.”
Justice Thomas continued:
... Vernonia did not require the school to test the group of students
most likely to use drugs, but rather considered the constitutionality
of the program in the context of the public school’s custodial
responsibilities. Evaluating the Policy in this context, we conclude
that the drug testing of Tecumseh students who participate in
extracurricular activities effectively serves the School District’s
interest in protecting the safety and health of its students.
Also signing the majority opinion was Chief Justice Rehnquist, along with
Associate Justices Scalia, Kennedy and Breyer.
Justice Breyer also wrote a concurring opinion. He stated that it was significant
that the program in the Tecumseh School District “preserves an option for a
conscientious objector” by allowing the student to refuse the testing by not
participating in the activity, which would be “less severe than expulsion from the
school.” Breyer also stated that an additional benefit of the policy to the student
was that:
It offers the adolescent a nonthreatening reason to decline his
friend’s drug-use invitations, namely, that he intends to play
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baseball, participate in debate, join the band, or engage in any one
of half a dozen useful, interesting, and important activities.
In a dissenting opinion, Ginsburg said the present case was significantly different
from Vernonia. Ginsburg wrote:
... The particular testing program upheld today is not reasonable, it
is capricious, even perverse: Petitioners’ policy targets for testing a
student population least likely to be at risk from illicit drugs and their
damaging effects....
In Vernonia, Ginsburg said, the Court “concluded that a public school district facing
a disruptive and explosive drug abuse problem sparked by members of its athletic
teams had ‘special needs’ that justified suspicionless testing of district athletes as
a condition of their athletic participation.” But, she said, the 1995 opinion “cannot
be read to endorse invasive and suspicionless drug testing of all students upon
any evidence of drug use, solely because drugs jeopardize the life and health of
those who use them.” She continued:
... While extracurricular activities are “voluntary” in the sense that
they are not required for graduation, they are part of the school’s
educational program.... Participation in such activities is a key
component of school life, essential in reality for students applying to
college, and, for all participants, a significant contributor to the
breadth and quality of the educational experience....
The dissenters emphasized that Vernonia and Tecumseh handled the potential
drug problem differently—Vernonia testing athletes only, while “Tecumseh
indiscriminately subjected to testing all participants in competitive extracurricular
activities.” The dissent went on to explain:
... The Vernonia district sought to test a subpopulation of students
distinguished by their reduced expectation of privacy, their special
susceptibility to drug-related injury, and their heavy involvement
with drug use. The Tecumseh district seeks to test a much larger
population associated with none of these factors. It does so,
moreover, without carefully safeguarding student confidentiality and
without regard to the program’s untoward effects. A program so
sweeping is not sheltered by Vernonia; its unreasonable reach
renders it impermissible under the Fourth Amendment.
Justice O’Connor, while joining Ginsburg’s dissent, wrote that Vernonia is the
Court’s precedent, and this case falls under that ruling. O’Connor, however,
dissented in Vernonia and indicated that she still believes it was wrongly decided.
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