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72
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
.,
3. What the Fourth Amendment requires for a police officer to have authority to: (1) search for
evidence, (2) perform a limited weapons search, and (3) perform an inventory search.
4. The grounds for search authority, and the scope and intensity of search activity authorized
for each of the various searches discussed in this chapter; namely, searches under the
5. What the Fourth Amendment requires for police to have authority to seize property for each
Students are likely to find the material in this chapter difficult. We have attempted to compensate
for the complexity by repeating central concepts at various points in the chapter.
Discussion Outline
§4.1 Overview of the Law of Search and Seizure
A. The Curious Case of the Artless Art Thief
B. The Fourth Amendment is triggered only when police investigative activity constitutes either
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1. A search
§4.2 Search Defined
The section defines a search and explores the boundaries between search and nonsearch activity.
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
B. Fourth Amendment Interpretation from Olmstead to Katz.
The Supreme
intrusions into constitutionally protected locations (i.e., locations mentioned in the text of the
1. Olmstead v. New York (Part II, Chapter 5). Police, having neither probable cause nor a
2. Katz v. United States (Part II, Chapter 5). Police hid a tape recorder on the top of a
C. Search defined
A search
by physically entering a constitutionally protected location or using technological devices that
invade privacy.
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1. Physical entry into a constitutionally protected location. The Fourth Amendment
mentions four broad categories of locations that are entitled to protection. All four are
locations in which there are strong privacy interests.
a.
clothing.
2. Use of surveillance technologies that invade privacy. Use of technological devices to
D.
The Fourth Amendment definition of a search has two components: (1) police activity that
(2) i
1. Police activity. The Fourth Amendment only regulates the activities of the government.
2. Invasion . The following activities are
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
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.
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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, 5.7.
i. Illinois v. Caballes (Part II, Chapter 3) No Fourth Amendment justification is
required to walk drug-detection dogs around vehicles stopped for a traffic
E. Review Questions 1 - 8 test understanding of this material.
§ 4.3 Sources of Search Authority
A. For a search to be lawful, the officer must:
1. Act under a recognized source of search authority. What is necessary to have search
authority varies with the purpose of the search. The three main purposes for searching
2. Confine the search activity within authorized search boundaries. Each ground for search
B. Full Searches. Searches conducted to gather criminal evidence are called full searches, short
-
Amendment requires a search warrant or a recognized exception to the warrant requirement.
1. 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
2. Searches under the Authority of a Warrant
a. The Supreme Court has expressed a strong preference that searches for evidence be
conducted under the authority of a search warrant.
b. Grounds for search authority. To obtain a search warrant, the officer must
3. Evidentiary searches conducted under an exception to the warrant requirement
There are four exceptions to the warrant requirement that allow evidentiary searches: (1)
consent, (2) searches incident to a lawful custodial arrest, (3) exigent circumstances, and
(4) the motor vehicle exception. These exceptions are discussed in greater detail later in
this chapter.
a. Consent searches
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 premises, vehicle, or
i. Florida v. Jimeno (Part II) is the leading Supreme Court case on the scope of
a consent search. An officer stopped a motorist on a routine traffic stop and,
after issuing a citation, asked for permission to search the car for narcotics. The
motorist consented. The officer then went to the passenger side, opened the
door, and noticed a folded, brown paper bag on the floorboard. He found a
kilogram of cocaine inside, and arrested the motorist for possession with intent
to distribute cocaine. The motorist moved to suppress the cocaine on the
b. Search incident to a lawful custodial arrest
Grounds for search authority. A lawful custodial confers automatic authority to
The need to prevent
persons under arrest from grabbing a weapon or destroying evidence provides the
justification for this source of warrantless search authority.
i. United States v. Robinson (Part II). [This case may be discussed here or at §§
4.8 or 4.10 of this outline]. After arresting Robinson for driving without a
license, the officer searched his person, pockets, and their contents and found
14 gelatin capsules of heroin in a cigarette pack. The issue before the Supreme
Court was whether probable cause to believe that the search will turn up
criminal evidence or a weapon is necessary to search an arrested indiv
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c. Vehicle searches based on probable cause to believe that the vehicle contains
Grounds for search authority. Police may conduct a warrantless search of a motor
vehicle whenever they have probable cause to believe that the vehicle contains
i. Wyoming v. Houghton (Part II) holds that the search authority of the police
under the motor vehicle exception extends to articles owned by passengers
whom police have no grounds to suspect of anything. Analysis of this case
appears in §4.11 of this outline; for those desiring a more abbreviated coverage,
it may be covered here.
d. Exigent circumstances
Grounds for search authority. Police are allowed to enter private premises without a
search warrant when they are confronted with exigent circumstances that create an
C. Limited weapons searches. The purpose of a limited weapons search is to disarm a suspect so
that police can conduct an investigation without fear for their safety. There are three kinds of
limited weapons searches frisks (covered in § 4.7), vehicular weapons searches (covered in
§4.10), and protective sweeps (§ 4.15).
D. Inventory searches of impounded property. After lawfully impounding a vehicle or taking an
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§4.4 Seizures of Things under the Fourth Amendment
There are four reasons for seizing property: (1) to use it as evidence, (2) to detain it while
A. Seizure defined
1. A seizure occurs, for Fourth Amendment purposes, when police commit a meaningful
interference possessory rights in property. The key terms are
a. Meaningful interference. To constitute a meaningful interference with possession,
the police must deprive the suspect of dominion and control over the property, such
B. Seizure of property for use as evidence. Seizure of property for use as evidence requires: (1)
probable cause to believe that the property is connected to a crime, and (2) either a search
warrant describing it or a plain view discovery.
1. To satisfy the first requirement, police must have probable cause to believe that the
object constitutes:
a. the fruits of a crime, such as stolen goods;
2. Police must, in addition, have a search warrant describing the object or discover the
object in plain view during a lawful search.
a. Seizure under a warrant listing the object. A valid search warrant listing an object
satisfies both requirements for a lawful seizure because the magistrate has already
b. 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 come into
plain view during a lawful search. For evidence to be considered in plain view,
three things are necessary:
i. 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,
ii. Second, the criminal nature of the evidence must
which is another way of saying that the officer must acquire probable cause to
iii. Finally, the officer must have a lawful right of access to the object or, in other
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
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
view doctrine to apply.
i. Arizona v. Hicks (Part II). A police officer made a warrantless exigent
circumstances entry into an apartment in search of a person who fired a shot
through the floor. While on the premises, he noticed some very expensive
ii. 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
listing items including: a bluish-gray windbreaker jacket with pockets in the
front and rear; a dark pair of shorts; tannish Reebok shoes; and a ball hat with
logo. Before the warrant was executed, the officers were told that the defendant
warrant might be located. While executing the warrant, one of the officers
authority. The plain view doctrine permits police to seize an object without a
warrant when: (1) the initial intrusion that brings the officer in contact with the
object is lawful, (2) the officer develops probable cause to believe that the
object is connect
lawful search authority, and (3) the officer is able to gain access to the object
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The distinguishing feature between this case and the previous one is that the officer
in Weinbender had the authority to remove the object and examine it because he
thought it was a pipe bomb, one of the objects listed in the warrant. The officer in
Arizona v. Hicks, in contrast, had no authority to turn the stereo around and examine
the serial number because this action had nothing to do with the reason he was on
the premises.
iii. State v. Wilson (Part II), discussed in §4.7, illustrates the corollary to the
mention this doctrine now, but we recommend deferring discussion until §4.7.
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 applies for a search warrant or (2) to conduct a brief investigation into their
1. Temporary seizures pending the issuance of a search warrant
Police may seize a container while applying for a search warrant to examine the
2. Brief, limited seizures for investigation
a. Based on the principles established in Terry v. Ohio, police may seize an object for
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b. United States v. Place (Part II; Chapter 3). Drug enforcement agents may detain
lugg
c. 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
D. Seizures of vehicles and personal belongings for impoundment
1. The Fourth Amendment does not require probable cause or a warrant to seize property
for a noninvestigative reason, such as to impound it.
2. Once property is impounded, a search will be conducted to produce an inventory. The
E. Review Questions 13 - 21 test understanding of this material.
F. Additional Review Questions
1.
piano, saw a plastic bag of marijuana on top of a desk in the living room. She seized the
2. Sam was on a Greyhound bus that pulled into a rest stop. After all of the passengers had
exited the bus to buy refreshments, stretch their legs, and do other things, Officer Green
boarded the bus with Buff, a trained drug detection dog, and performed a drug sweep.
The sweep consisted of removing all bags located in overhead compartments, placing
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§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 all respects but one. Probable cause for a search warrant requires probable
B. Form and content of the warrant. The Fourth Amendment requires that a search warrant
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
C. The facially valid warrant. A warrant that appears on its face to contain a particularized
Even if the warrant is later ruled invalid, evidence seized under a facially valid warrant will
1. A search warrant must be executed without unreasonable delay because the facts that
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.
E. Review Questions 22 - 27 test understanding of this material.
The remaining sections in this chapter relate the concepts discussed above to the three
§4.6 Searches Involving Persons and Objects under Their Immediate Control
§4.7 The Terry Search Revisited
A. Grounds for search authority. A protective weapons search requires both: (1) a lawful stop
based on reasonable suspicion of criminal activity and (2) a reasonable suspicion that the
B. Search boundaries. The purpose of a Terry weapons frisk is to protec so
that the officer can pursue the investigation without fear of violence not to discover
evidence of crime.
1. Scope. A Terry
2. Intensity. The intensity of a Terry
clothing and making a cursory examination of the contents of containers. If the officer
3. Seizure of evidence in plain view during a Terry pat-down search. Although police
officers may not initiate a pat-down search solely because they suspect that a detainee
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a. State v. Wilson (Part II): Officer Faulkenberry detained Wilson for investigation,
based on a reasonable suspicion that Wilson was engaged in drug trafficking. While
conducting a lawful pat-
that he believed was crack cocaine, and reached in and retrieved it. The court held
that the crack cocaine was properly seized, distinguishing Minnesota v. Dickerson
based on the differences in testimony both officers gave about how they reached the
conclusion that the object felt was crack cocaine. In Dickerson, the officer testified
that he felt a small lump in t
C. Review Question 28 tests understanding of this material.
§4.8 Search Following a Custodial Arrest
A. Grounds for search authority. Authority to perform a search incident to arrest arises
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
person and containers , measured as of the time of the search.
1. . Police have broad authority to search the
arrest . Their authority extends to articles intimately associated
with his or her person that were on or carried by him (clothing, wallet or handbag, and
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a. United States v. Robinson (Part II) (This case is discussed above in §4.3 of this
and articles on or
2. Search of articles not associated with the person that are under the arrested person
immediate control. Searches incident to arrest may not extend beyond the area under the
area, such as backpacks, suitcases, and automobiles, 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 no longer has access to them, a search warrant will
be necessary to search them.
a. Chimel v. California. (Part II). This is the case that
D. Inventory searches incident to booking an arrestee into jail. During routine booking
impounded and an inventory search will be performed. The purpose of an inventory search is
not to discover evidence. The purpose is to sec
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 non-investigative
purpose, probable cause and a search warrant are not required. However, inventory
E. Searches preceding an arrest. A search conducted immediately before an arrest can qualify
as a search incident to arrest only if grounds for making the arrest already exist and do not
depend on the fruits of the search.
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§4.9 Searches Involving Vehicles
A. Most motor vehicle searches are conducted without a warrant. There are four theories for
B. Review Question 31 tests understanding of this material.
§4.10 Searches of Vehicles Pursuant to Detention or Arrest
A. Terry vehicle weapons search
2. Search boundaries. Police are limited to a cursory visual inspection of areas and
B. Vehicle searches incident to the custodial arrest of an occupant. Police may search the
interior compartment of a vehicle incident to arrest of a vehicle occupant or recent occupant only
if:
1. The arrestee is unsecured and within reaching distance at the time of the search. (This
2. Police have reason to believe that evidence relevant to the crime of arrest might be found
in the vehicle. The offense for which the arrest is made is the most important
3. Search boundaries. When a vehicle search is authorized, search authority extends to the
entire passenger compartment (i.e., seats, floor, glove compartments, consoles, etc.) and
everything inside (i.e., luggage, handbags, boxes, bags, briefcases, clothing, etc.) that is
capable of housing the objects of their search, but not to the engine area or trunk.
Arizona v. Gant (Part II). Gant was arrested for driving with a suspended license,
handcuffed, and locked in the back of a patrol car. Police then searched the interior
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C. Review Question 33 tests understanding of this material.
§4.11
A. Grounds for search authority. Police may search a motor vehicle without a warrant whenever
they have probable cause to believe that contraband or criminal evidence is located inside.
B. Search boundaries. Search authority extends to the entire vehicle from bumper to bumper.
Police may search any part of the vehicle passenger compartment, glove compartment,
trunk, under seats, behind panels, etc. in which the objects of their search could fit. They
may also look inside packages and containers, regardless of their ownership.
1. Wyoming v. Houghton [Part II]. A police officer noticed a hypodermic syringe in the
on. When the driver
admitted that he used the syringe to shoot drugs, the officer had probable cause to
believe that there were illegal drugs in the car, activating the motor vehicle exception to
C. Timing of search. The search may be conducted at the scene or later when the vehicle
reaches the impoundment lot. The timing of the search has virtually no bearing on validity
§4.12 Inventory Searches of Impounded Vehicles
A. Grounds for search authority. For an inventory search to satisfy Fourth Amendment
requirements: (1) police must have legal authority to impound the vehicle, (2) the decision to
