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CONSTITUTIONAL LAW FOR CRIMINAL JUSTICE,

FOURTEENTH EDITION

BY JACQUELINE R. KANOVITZ

INSTRUCTOR’S GUIDE

Note: Cases that appear in Part II of the textbook are noted in boldface.

Chapter 4

Search and Seizure

Objectives

This chapter completes the analysis of the Fourth Amendment begun in Chapter 3, which explored the

Fourth Amendment authority of police to seize persons. This chapter investigates their authority to search

persons, places, and things, and to seize things. The student should leave this chapter with a thorough

understanding of the following:

1. The historical reasons that led the Framers to limit the authority of the police to search for and seize

evidence.

2. When police evidence-gathering involves neither a search nor a seizure and, accordingly, is “free zone”

7. The Fourth Amendment exclusionary rule and its various recognized exceptions.

Students are likely to find the material in this chapter difficult. I have attempted to compensate for the

complexity by repeating central concepts at various points in the chapter.

Discussion Outline

[PowerPoint Slides 1 and 2 contain book and chapter title information.]

PowerPoint Slide 3. Introduction

The right of the people to be secure in their persons, houses, papers, and

§ 4.1 Overview of the Law of Search and Seizure

PowerPoint Slide 4. Overview of Search and Seizure Law

• A search occurs when police:

§ 4.2 Search Defined

A. The Fourth Amendment was adopted in response to British search practices under general warrants

and writs of assistance. General warrants and writs of assistance authorized British customs officials

to enter homes and rummage through the contents for anything incriminating, without grounds for

B. Fourth Amendment Interpretation from Olmstead to Katz.

The Supreme Court originally defined the term “search” as protecting only against physical intrusions

C. Search defined. A search today can occur in one of two ways.

1. Physically intruding into a constitutionally protected location.

PowerPoint Slide 5. Protected Locations

The Fourth Amendment protects

• Persons

o Parts of the body and clothing not exposed to the public

• Houses

2. Infringe on a suspect’s reasonable expectation of privacy.

PowerPoint Slide 6. Nonsearch Investigative Activity

The Fourth Amendment does not treat the following activities as

searches:

D. Nonsearches (“free zone” activity)

The definition of a search has two components: (1) police activity that (2) intruded on a suspect’s

property or privacy. If either component is missing, there is no search.

1. Police activity. The Fourth Amendment regulates only the activities of the government. Searches

a. Observation of matters in open view. Anything that can be seen, heard, or smelled by members

of the public from a vantage point where the officer is lawfully present is said to be in “open

view.” Observation of matters in open view is not a search. Flashlights, telescopes, cameras,

binoculars, and aerial surveillance may be used to enhance an officer’s ability to make an

observation from a lawful vantage point.

▪ Bond v. United States (Part II). Squeezing of soft luggage in an exploratory manner to

b. Abandoned property. Abandoned property is also fair game because people who abandon

property relinquish both their property rights and their privacy interest in it.

▪ California v. Greenwood (Part II). Rummaging through a suspect’s garbage for evidence

c. Canine examinations. A dog sniff is not a search because it reveals nothing about the contents

of the object sniffed other than the presence of drugs, a contraband item in which suspects

have no legitimate expectation of privacy. Canine examinations are discussed in greater depth

in §§4.4 and 5.7 of the textbook.

e. Duplication of private-party searches. Police duplication of a private party search is not a

search if it goes no further than the search it follows, because the duplication does not invade

PowerPoint Slide 7. Lawful Searches

For a search to be lawful under the Fourth Amendment, police must:

• act under a recognized source of authority, and

• confine their search activity to authorized search boundaries

§ 4.3 Sources of Search Authority

PowerPoint Slide 8. Searches Conducted to Gather Evidence

Police must obtain a search warrant to conduct a full search, except

when they:

• Obtain consent from someone who has the authority to give it

A. Full searches. Searches conducted to gather criminal evidence are called full searches, short for “full-

blown.” When the purpose of the search is to obtain evidence, the Fourth Amendment requires a search

warrant or a recognized exception to the warrant requirement.

▪ Flippo v. West Virginia (Part II). This case makes a point that needs to be driven home at the

beginning of the chapter. Police need a search warrant to search for evidence unless an

B. Exceptions to the warrant requirement for full searches

There are four exceptions to the warrant requirement that allow full searches: (1) consent, (2) searches

incident to a lawful custodial arrest, (3) the motor vehicle exception, and (4) exigent circumstances.

Consent is the only exception the needs to be covered here. The other three are covered in greater depth

later in this chapter, so it is best to briefly mention them here and leave the serious discussion until

later

1. Consent

Grounds for search authority. Only the suspect or a person who has (or reasonably appears to

have) joint access, control, and mutual use of the property may give a valid consent to search. The

consent of one occupant is sufficient unless another occupant who is present on the scene objects

C. Searches conducted for other purposes

PowerPoint Slide 9. Searches Conducted for Other Purposes

Searches conducted for other purposes, such as to disarm suspects

§ 4.4 Seizures of Things under the Fourth Amendment

PowerPoint Slide 10. Seizure

A seizure, in the Fourth Amendment sense, occurs when police commit

• a meaningful interference with

• a person’s possessory interest in property

A. Seizure defined

1. A seizure occurs, for Fourth Amendment purposes, when police commit a meaningful interference

with a person’s possessory rights in property. The key terms are “meaningful interference” and

“possessory rights.”

a. Meaningful interference. To constitute a meaningful interference with possession, the police

must deprive the suspect of dominion and control over the property, such as by removing it

B. Seizure for use as evidence

PowerPoint Slide 11. Seizure for Use as Evidence

To seize property for use as evidence, police must have

1) Probable cause to believe that the object constitutes:

• fruits of a crime

2) And either a search warrant describing it OR a discovery in plain

view

1. Seizure of evidence in plain view. The only time police are allowed to seize evidence without a

search warrant describing it is when the evidence comes into plain view during a lawful search.

For evidence to be considered in plain view, three things are necessary.

PowerPoint Slide 12. Evidence in Plain View

Evidence is considered in plain view only if:

• The officer is lawfully present at the place of discovery

• The object’s criminal nature is immediately apparent

• The officer can obtain physical access without violating the

Fourth Amendment

a. First, police must have a legitimate reason for being present at the precise location where

the discovery is made or, as the first requirement is often stated, the initial intrusion that

b. Second, the criminal nature of the evidence must be “immediately apparent,” which is

another way of saying that the officer must acquire probable cause to believe that the

c. Finally, the officer must have a lawful right of access to the object or, in other words, be

Deciding whether an officer made a discovery in plain view calls for application of the rules

on search authority and search boundaries. The next two cases illustrate application of the

plain view doctrine. In discussing these cases, ask students the following questions: (1) Was

the officer engaged in lawful search activity when he discovered the object? (2) If so, what

was the basis for the officer’s search authority? (3) What are the boundaries for this kind of

search? (4) Did the officer acquire probable cause to associate the object with a crime without

exceeding these boundaries? The answers to the first and last questions must be “yes” for the

plain view doctrine to apply.

▪ Arizona v. Hicks (Part II). A police officer made a warrantless exigent circumstances

▪ United States v. Weinbender (Part II). This case can be discussed here or with

§4.15; discussing it here has the advantage of reinforcing understanding of the plain

view doctrine. Police obtained a search warrant for Weinbender’s home, listing

articles of clothing. Before the warrant was executed, the officers were told that the

defendant had several “hiding places” in his basement in which the items listed in

the warrant might be located. While executing the warrant, one of the officers entered

a basement closet, removed a picture hanging on a wall, and found a loose piece cut

in the drywall. Upon removing the loose drywall and shining a flashlight in, the

officer discovered a metal object that he thought was a pipe bomb (but which turned

out to be homemade silencer). Weinbender was prosecuted for unlawful possession

of the silencer. He argued that suppression of the silencer was required because it

was not listed in the warrant. The court rejected this argument, finding that the police

had the authority to seize the silencer because it came into plain view while they were

▪ State v. Vessel (Part II) deals with the “plain touch doctrine,” which is a corollary

to the “plain view doctrine.” You may want to briefly mention this doctrine now, but

could defer discussion until §4.7. The “plain touch” doctrine operates in the context

of Terry frisks. To justify seizing non-dangerous contraband discovered during a

Terry frisk, the officer must: (1) have grounds to conduct a Terry frisk, (2) discover

There are other reasons for seizing property besides use as evidence. Each reason comes with its own

set rules.

PowerPoint Slide 13. Seizure for Other Reasons

1) Seizure pending issuance of search warrant

C. Brief, limited seizures. Brief, limited seizures are generally used to detain closed containers like

briefcases, suitcases, and mailed parcels, either: (1) to prevent them from being moved while the officer

1. Temporary seizures pending the issuance of a search warrant

Police may seize a container while applying for a search warrant to examine the contents, when:

2. Brief, limited seizures for investigation

a. Based on the principles established in Terry v. Ohio, police may seize an object for

investigation when they have reasonable suspicion that it contains criminal evidence or

▪ United States v. Place (Part II; Chapter 3). Drug enforcement agents may detain luggage

in a traveler’s possession when their observations lead them to reasonably believe that the

b. No suspicion is required to perform a canine examination if it can be performed without

seizing the property. Police, for example, do not need reasonable suspicion to walk a drug–

D. Seizures of vehicles and personal belongings for impoundment

1. The Fourth Amendment does not require probable cause or a warrant when property is seized for

a noninvestigative reason, such as to impound it.

4.12.)

PowerPoint Slide 14. Search Warrant

A search warrant requires:

• Affidavit under oath

§ 4.5 The Fourth Amendment Search Warrant

A. Application for a search warrant. Application for a search warrant is made by preparing a sworn

affidavit. The affidavit requirements for a search warrant are identical to those for an arrest warrant in

B. Form and content of the warrant. The Fourth Amendment requires that a search warrant “particularly

describe” the place(s) to be searched and the items to be seized. The purpose of this requirement is to

prevent general searches. The particularity requirement operates to confine the search to locations in

which, and articles for which, probable cause to search has been established.

1. Particularized description of the place to be searched. The search warrant must describe the place

2. Particularized description of the things to be seized. A particularized description of the things to

C. The facially valid warrant. A warrant that appears on its face to contain a particularized description of

the place to be searched and the objects to be seized is called “facially valid.” Even if the warrant is

later ruled invalid, evidence seized under a facially valid warrant will be admissible as long as the

executing officer had a good faith, reasonable belief in the warrant’s validity. (See §4.17.)

D. Execution of search warrants. The requirements for executing search warrants are identical to those

for executing arrest warrants, except that:

1. A search warrant must be executed without unreasonable delay because the facts that supported

the magistrate’s determination of probable cause to believe that the object of the search is located

2. After completing the search, police must prepare an inventory of the property seized, give the

owner a copy, and then return the warrant, together with a copy of the inventory, to the judge

designated in the warrant. This requirement is not constitutionally based.

The remaining sections in this chapter relate the concepts discussed above to the three general settings

§ 4.6 Searches Involving Persons and Objects under Their Immediate Control

Most searches involving persons and objects under their immediate control are performed without a warrant

under the exceptions for weapons frisks, searches incident to arrest, or inventory searches incident to

booking a person into jail.

PowerPoint Slide 15. Weapon Frisk

• Weapon frisks require:

§ 4.7 The Terry Search Revisited

A. Grounds for search authority. A protective weapons search requires both: (1) a lawful stop based on

B. Search boundaries. The purpose of a Terry weapons frisk is to protect the officer’s safety so that the

officer can pursue the investigation without fear of violence—not to discover evidence of crime.

1. Scope. A Terry frisk is limited to the suspect’s person and containers within grabbing distance that

the officer has reason to believe contain a weapon.

2. Intensity. The intensity of a Terry frisk is limited to patting down the suspect’s outer clothing and

3. Seizure of evidence in plain view during a Terry patdown search. Although police officers may

not initiate a patdown search solely because they suspect that a detainee has contraband on his or

▪ State v. Vessel (Part II). Plain feel doctrine applied where officer conducting a lawful

patdown, encountered a spherical object protruding from the defendant’s inner, left thigh area

PowerPoint Slide 16. Search Incident to an Arrest

• Search of an arrestee’s person

o Authorized whenever police make a lawful custodial arrest

for any offense

§ 4.8 Search Following a Custodial Arrest

A. Justification for the search incident arrest exception to warrant requirement. Protect officer safety and

prevent destruction and concealment of evidence.

B. Grounds for the search. Grounds for the search arise whenever an officer makes a lawful custodial

arrest for any offense, including a traffic violation.

B. Search boundaries. The purposes of the search are to prevent the arrestee from gaining access to a

weapon or destroying evidence. Search authority, accordingly, extends only to the arrestee’s person

and containers within arm’s reach, measured as of the time of the search.

1. Searches of the arrested individual’s person. Police have broad authority to search the arrested

individual’s person. Their authority extends to articles intimately associated with the arrested

▪ United States v. Robinson (Part II). Police may search the arrested individual’s person

whenever they make a lawful custodial lawful custodial arrest for any offense, including

driving without a license, which was the offense of arrest in this case. Probable cause to believe

▪ Riley v. California (Part II). Authority to search an arrested individual’s person incident to

arrest does not extend to his or her cell phone. The Supreme Court gave two reasons: (1) Cell

2. Searches of articles not associated with the arrested individual person. Articles not associated

with the arrested individual person that are located within the area under the arrested person’s

control, such as backpacks, suitcases, and duffle bags, may be searched only if the arrestee is

unsecured and within reaching distance of them when they are searched. After police have secured

the arrestee so that he or she no longer has access to them, a search warrant will be necessary to

search them.

Caveat: This area of the law is not as certain as this outline makes it out to be. The Supreme Court

has not yet decided whether Arizona v. Gant applies outside the vehicle context. The better

reasoned cases believe that it does, and this outline is prepared on that assumption.

▪ Chimel v. California (Part II). This is the case that established the “immediate control test.”

D. Inventory searches incident to booking an arrestee into jail. During routine booking procedures

incident to incarceration, the suspect’s clothing and other possessions will be impounded and an

inventory search will be performed. The purpose of an inventory search is not to discover evidence.

The purpose is to secure the arrestee’s valuables, protect the police department against false claims of

theft, and prevent weapons and contraband from being introduced into the jail community.

1. Grounds for search authority. Because inventory searches serve a noninvestigative purpose,

probable cause and a search warrant are not required. The only thing the Fourth Amendment

2. Search boundaries. Police may examine the arrestee’s possessions as thoroughly, but only as

thoroughly, as the department’s inventory procedures allow. If evidence of a crime comes into

plain view without exceeding the boundaries of the department’s inventory procedures, police may

seize it.

E. Searches preceding an arrest. A search conducted immediately before an arrest can qualify as a search

incident to arrest so long as probable cause for the arrest already exists and does not depend on the

fruits of the search.

PowerPoint Slide 17. Motor Vehicle Searches

There are four theories besides consent for searching motor vehicles

§ 4.9 Overview of Vehicle Searches

§ 4.10 Searches of Vehicles Pursuant to Detention or Arrest

PowerPoint Slide 18. Vehicle Limited Weapons Search

• When police have reasonable suspicion that there are weapons

inside a lawfully stopped vehicle, they may perform a cursory

visual inspection of areas inside the passenger in which a weapon

would fit.

PowerPoint Slide 19. Vehicle Searches Incident to the Arrest of an Occupant