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eign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border, should, by now, require no extended demonstration.’’ 276 Authorized by the First Congress, 277 the customs search in these circumstances requires no warrant, no probable cause, not even the showing of some degree of suspicion that accompanies even investigatory stops. 278 Moreover, while prolonged detention of travelers beyond the routine customs search and inspection must be justified by the Terry standard of reasonable suspicion having a particularized and objective basis, 279 Terry protections as to the length and intrusiveness of the search do not apply. 280 Inland stoppings and searches in areas away from the borders are a different matter altogether. Thus, in Almeida-Sanchez v. United States, 281 the Court held that a warrantless stop and search VerDate Apr<15>2004 09:55 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00049 Fmt 8222 Sfmt 8222 C:\CONAN\CON028.SGM PRFM99 PsN: CON028 1330 AMENDMENT 4—SEARCHES AND SEIZURE tion that searches by such roving patrols were the only effective means to police border smuggling. Id. at 285. Justice Powell, concurring, argued in favor of a general, administrative warrant authority not tied to particular vehicles, much like the type of warrant suggested for noncriminal administrative inspections of homes and commercial establishments for health and safety purposes, id. at 275, but the Court has not yet had occasion to pass on a specific case. See United States v. Martinez- Fuerte, 428 U.S. 543, 547 n.2, 562 n.15 (1976). 282 United States v. Ortiz, 422 U.S. 891 (1975). 283 United States v. Brignoni-Ponce, 422 U.S. 873 (1975). However, stopping of defendant’s car solely because the officers observed the Mexican appearance of the occupants was unjustified. Id. at 886. Contrast United States v. Cortez, 449 U.S. 411 (1981), where border agents did have grounds for reasonable suspicion that the vehicle they stopped contained illegal aliens. 284 United States v. Martinez-Fuerte, 428 U.S. 543 (1976). The Court deemed the intrusion on Fourth Amendment interests to be quite limited, even if officers acted on the basis of the Mexican appearance of the occupants in referring motorists to a secondary inspection area for questioning, whereas the elimination of the practice would deny to the Government its only practicable way to apprehend smuggled aliens and to deter the practice. Similarly, outside of the border/aliens context, the Court has upheld use of fixed ‘‘sobriety’’ checkpoints at which all motorists are briefly stopped for preliminary questioning and observation for signs of intoxication. Michigan Dep’t of State Police v. Sitz, 496 U.S. 444 (1990). 285 265 U.S. 57 (1924). See also Air Pollution Variance Bd. v. Western Alfalfa Corp., 416 U.S. 86 (1974). of defendant’s automobile on a highway some 20 miles from the border by a roving patrol lacking probable cause to believe that the vehicle contained illegal aliens violated the Fourth Amendment. Similarly, the Court invalidated an automobile search at a fixed checkpoint well removed from the border; while agreeing that a fixed checkpoint probably gave motorists less cause for alarm than did roving patrols, the Court nonetheless held that the invasion of privacy entailed in a search was just as intrusive and must be justified by a showing of probable cause or consent. 282 On the other hand, when motorists are briefly stopped, not for purposes of a search but in order that officers may inquire into their residence status, either by asking a few questions or by checking papers, different results are achieved, so long as the stops are not truly random. Roving patrols may stop vehicles for purposes of a brief inquiry, provided officers are ‘‘aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion’’ that an automobile contains illegal aliens; in such a case the interference with Fourth Amendment rights is ‘‘modest’’ and the law enforcement interests served are significant. 283 Fixed checkpoints provide additional safeguards; here officers may halt all vehicles briefly in order to question occupants even in the absence of any reasonable suspicion that the particular vehicle contains illegal aliens. 284 ‘‘Open Fields’’.—In Hester v. United States, 285 the Court held that the Fourth Amendment did not protect ‘‘open fields’’ and that, VerDate Apr<15>2004 09:55 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00050 Fmt 8222 Sfmt 8222 C:\CONAN\CON028.SGM PRFM99 PsN: CON028 AMENDMENT 4—SEARCHES AND SEIZURE 1331 286 389 U.S. 347, 353 (1967). Cf. Cady v. Dombrowski, 413 U.S. 433, 450 (1973) (citing Hester approvingly). 287 466 U.S. 170 (1984) (approving warrantless intrusion past no trespassing signs and around locked gate, to view field not visible from outside property). 288 Id. at 178. See also California v. Greenwood, 486 U.S. 35 (1988) (approving warrantless search of garbage left curbside ‘‘readily accessible to animals, children, scavengers, snoops, and other members of the public’’). 289 United States v. Dunn, 480 U.S. 294 (1987) (space immediately outside a barn, accessible only after crossing a series of ‘‘ranch-style’’ fences and situated onehalf mile from the public road, constitutes unprotected ‘‘open field’’). 290 California v. Ciraolo, 476 U.S. 207 (1986). Activities within the curtilage are nonetheless still entitled to some Fourth Amendment protection. The Court has described four considerations for determining whether an area falls within the curtilage: proximity to the home, whether the area is included within an enclosure also surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to shield the area from view of passersby. United States v. Dunn, 480 U.S. 294 (1987) (barn 50 yards outside fence surrounding home, used for processing chemicals, and separated from public access only by a series of livestock fences, by a chained and locked driveway, and by one-half mile’s distance, is not within curtilage). 291 Florida v. Riley, 488 U.S. 445 (1989) (view through partially open roof of greenhouse). 292 Dow Chemical Co. v. United States, 476 U.S. 227 (1986) (suggesting that aerial photography of the curtilage would be impermissible). therefore, police searches in such areas as pastures, wooded areas, open water, and vacant lots need not comply with the requirements of warrants and probable cause. The Court’s announcement in Katz v. United States 286 that the Amendment protects ‘‘people not places’’ cast some doubt on the vitality of the open fields principle, but all such doubts were cast away in Oliver v. United States. 287 Invoking Hester’s reliance on the literal wording of the Fourth Amendment (open fields are not ‘‘effects’’) and distinguishing Katz, the Court ruled that the open fields exception applies to fields that are fenced and posted. ‘‘[A]n individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home.’’ 288 Nor may an individual demand privacy for activities conducted within outbuildings and visible by trespassers peering into the buildings from just outside. 289 Even within the curtilage and notwithstanding that the owner has gone to the extreme of erecting a 10-foot high fence in order to screen the area from ground-level view, there is no reasonable expectation of privacy from naked-eye inspection from fixed-wing aircraft flying in navigable airspace. 290 Similarly, naked-eye inspection from helicopters flying even lower contravenes no reasonable expectation of privacy. 291 And aerial photography of commercial facilities secured from ground-level public view is permissible, the Court finding such spaces more analogous to open fields than to the curtilage of a dwelling. 292 ‘Plain View’.—Somewhat similar in rationale is the rule that objects falling in the ‘plain view’ of an officer who has a right to VerDate Apr<15>2004 09:55 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00051 Fmt 8222 Sfmt 8222 C:\CONAN\CON028.SGM PRFM99 PsN: CON028 1332 AMENDMENT 4—SEARCHES AND SEIZURE 293 Washington v. Chrisman, 455 U.S. 1 (1982) (officer lawfully in dorm room may seize marijuana seeds and pipe in open view); United States v. Santana, 427 U.S. 38 (1976) (‘plain view’ justification for officers to enter home to arrest after observing defendant standing in open doorway); Harris v. United States, 390 U.S. 234 (1968) (officer who opened door of impounded automobile and saw evidence in plain view properly seized it); Ker v. California, 374 U.S. 23 (1963) (officers entered premises without warrant to make arrest because of exigent circumstances seized evidence in plain sight). Cf. Coolidge v. New Hampshire, 403 U.S. 443, 464-73 (1971), and id. at 510 (Justice White dissenting). Maryland v. Buie, 494 U.S. 325 (1990) (items seized in plain view during protective sweep of home incident to arrest); Texas v. Brown, 460 U.S. 730 (1983) (contraband on car seat in plain view of officer who had stopped car and asked for driver’s license); New York v. Class, 475 U.S. 106 (1986) (evidence seen while looking for vehicle identification number). There is no requirement that the discovery of evidence in plain view must be ‘inadvertent.’ See Horton v. California, 496 U.S. 128 (1990) (in spite of Amendment’s particularity requirement, officers with warrant to search for proceeds of robbery may seize weapons of robbery in plain view). 294 Steele v. United States, 267 U.S. 498 (1925) (officers observed contraband in view through open doorway; had probable cause to procure warrant). Cf. Taylor v. United States, 286 U.S. 1 (1932) (officers observed contraband in plain view in garage, warrantless entry to seize was unconstitutional). 295 Arizona v. Hicks, 480 U.S. 321 (1987) (police lawfully in apartment to investigate shooting lacked probable cause to inspect expensive stereo equipment to record serial numbers). 296 Illinois v. Andreas, 463 U.S. 765, 771 (1983) (locker customs agents had opened, and which was subsequently traced). Accord, United States v. Jacobsen, 466 U.S. 109 (1984) (inspection of package opened by private freight carrier who notified drug agents). 297 469 U.S. 325 (1985). 298 Id. at 336. 299 Id. at 340. be in the position to have that view are subject to seizure without a warrant 293 or that if the officer needs a warrant or probable cause to search and seize his lawful observation will provide grounds therefor. 294 The plain view doctrine is limited, however, by the probable cause requirement: officers must have probable cause to believe that items in plain view are contraband before they may search or seize them. 295 The Court has analogized from the plain view doctrine to hold that once officers have lawfully observed contraband, ‘‘the owner’s privacy interest in that item is lost,’’ and officers may reseal a container, trace its path through a controlled delivery, and seize and reopen the container without a warrant. 296 Public Schools.—In New Jersey v. T.L.O., 297 the Court set forth the principles governing searches by public school authorities. The Fourth Amendment applies to searches conducted by public school officials because ‘‘school officials act as representatives of the State, not merely as surrogates for the parents.’’ 298 However, ‘‘the school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject.’’ 299 Neither the warrant requirement nor the probable cause standard is appro- VerDate Apr<15>2004 09:55 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00052 Fmt 8222 Sfmt 8222 C:\CONAN\CON028.SGM PRFM99 PsN: CON028 AMENDMENT 4—SEARCHES AND SEIZURE 1333 300 This single rule, the Court explained, will permit school authorities ‘‘to regulate their conduct according to the dictates of reason and common sense.’’ 469 U.S. at 343. Rejecting the suggestion of dissenting Justice Stevens, the Court was ‘‘unwilling to adopt a standard under which the legality of a search is dependent upon a judge’s evaluation of the relative importance of various school rules.’’ Id. at n.9. 301 469 U.S. at 342. 302 Id. 303 480 U.S. 709 (1987). 304 480 U.S. at 725. Not at issue was whether there must be individualized suspicion for investigations of work-related misconduct. 305 This position was stated in Justice O’Connor’s plurality opinion, joined by Chief Justice Rehnquist and by Justices White and Powell. 306 480 U.S. at 732 (Scalia, J., concurring in judgment). 307 Hudson v. Palmer, 468 U.S. 517, 526 (1984). priate, the Court ruled. Instead, a simple reasonableness standard governs all searches of students’ persons and effects by school authorities. 300 A search must be reasonable at its inception, i.e., there must be ‘‘reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.’’ 301 School searches must also be reasonably related in scope to the circumstances justifying the interference, and ‘‘not excessively intrusive in light of the age and sex of the student and the nature of the infraction.’’ 302 In applying these rules, the Court upheld as reasonable the search of a student’s purse to determine whether the student, accused of violating a school rule by smoking in the lavatory, possessed cigarettes. The search for cigarettes uncovered evidence of drug activity held admissible in a prosecution under the juvenile laws. Government Offices.—Similar principles apply to a public employer’s work-related search of its employees’ offices, desks, or file cabinets, except that in this context the Court distinguished searches conducted for law enforcement purposes. In O’Connor v. Ortega, 303 a majority of Justices agreed, albeit on somewhat differing rationales, that neither a warrant nor a probable cause requirement should apply to employer searches ‘‘for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct.’’ 304 Four Justices would require a case-by-case inquiry into the reasonableness of such searches; 305 one would hold that such searches ‘‘do not violate the Fourth Amendment.’’ 306 Prisons and Regulation of Probation.—Searches of prison cells by prison administrators are not limited even by a reasonableness standard, the Court having held that ‘‘the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell.’’ 307 Thus, prison administrators may conduct random ‘‘shakedown’’ searches of inmates’ cells without the need to adopt any established practice or plan, and inmates must VerDate Apr<15>2004 09:55 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00053 Fmt 8222 Sfmt 8222 C:\CONAN\CON028.SGM PRFM99 PsN: CON028 1334 AMENDMENT 4—SEARCHES AND SEIZURE 308 483 U.S. 868 (1987) (search based on information from police detective that there was or might be contraband in probationer’s apartment). 309 483 U.S. at 873-74. 310 Id. at 718, 721. 311 489 U.S. 602 (1989). 312 489 U.S. 656 (1989). 313 489 U.S. at 628. look to the Eighth Amendment or to state tort law for redress against harassment, malicious property destruction, and the like. Neither a warrant nor probable cause is needed for an administrative search of a probationer’s home. It is enough, the Court ruled in Griffin v. Wisconsin, that such a search was conducted pursuant to a valid regulation that itself satisfies the Fourth Amendment’s reasonableness standard (e.g., by requiring ‘‘reasonable grounds’’ for a search). 308 ‘‘A State’s operation of a probation system, like its operation of a school, government office or prison, or its supervision of a regulated industry, . . . presents ‘special needs’ beyond normal law enforcement that may justify departures from the usual warrant and probable cause requirements.’’ 309 ‘‘Probation, like incarceration, is a form of criminal sanction,’’ the Court noted, and a warrant or probable cause requirement would interfere with the ‘‘ongoing [non-adversarial] supervisory relationship’’ required for proper functioning of the system. 310 Drug Testing.—In two 1989 decisions the Court held that no warrant, probable cause, or even individualized suspicion is required for mandatory drug testing of certain classes of railroad and public employees. In each case, ‘‘special needs beyond the normal need for law enforcement’’ were identified as justifying the drug testing. In Skinner v. Railway Labor Executives’ Ass’n, 311 the Court upheld regulations requiring railroads to administer blood, urine, and breath tests to employees involved in certain train accidents or violating certain safety rules; upheld in National Treasury Employees Union v. Von Raab 312 was a Customs Service screening program requiring urinalysis testing of employees seeking transfer or promotion to positions having direct involvement with drug interdiction, or to positions requiring the incumbent to carry firearms. The Court in Skinner found a ‘‘compelling’’ governmental interest in testing the railroad employees without any showing of individualized suspicion, since operation of trains by anyone impaired by drugs ‘‘can cause great human loss before any signs of impairment become noticeable.’’ 313 By contrast, the intrusions on privacy were termed ‘‘limited.’’ Blood and breath tests were passed off as routine; the urine test, while more intrusive, was deemed permissible because of the ‘‘diminished expectation of privacy’’ in employees having some responsibility for safety in a pervasively regulated indus- VerDate Apr<15>2004 09:55 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00054 Fmt 8222 Sfmt 8222 C:\CONAN\CON028.SGM PRFM99 PsN: CON028 AMENDMENT 4—SEARCHES AND SEIZURE 1335 314 Id. at 628. 315 Id. at 631-32. 316 Von Raab, 489 U.S. at 670-71. Dissenting Justice Scalia discounted the ‘‘feeble justifications’’ relied upon by the Court, believing instead that the ‘‘only plausible explanation’’ for the drug testing program was the ‘‘symbolism’’ of a government agency setting an example for other employers to follow. 489 U.S. at 686-87. 317 Id. at 672. 318 515 U.S. 646 (1995). 319 Id. at 661. 320 Id. try. 314 The lower court’s emphasis on the limited effectiveness of the urine test (it detects past drug use but not necessarily the level of impairment) was misplaced, the Court ruled. It is enough that the test may provide some useful information for an accident investigation; in addition, the test may promote deterrence as well as detection of drug use. 315 In Von Raab the governmental interests underlying the Customs Service’s screening program were also termed ‘‘compelling’’: to ensure that persons entrusted with a firearm and the possible use of deadly force not suffer from drug-induced impairment of perception and judgment, and that ‘‘front-line [drug] interdiction personnel [be] physically fit, and have unimpeachable integrity and judgment.’’ 316 The possibly ‘‘substantial’’ interference with privacy interests of these Customs employees was justified, the Court concluded, because, ‘‘[u]nlike most private citizens or government employees generally, they have a diminished expectation of privacy.’’ 317 Emphasizing the ‘‘special needs’’ of the public school context, reflected in the ‘‘custodial and tutelary’’ power that schools exercise over students, and also noting schoolchildren’s diminished expectation of privacy, the Court in Vernonia School District v. Acton 318 upheld a school district’s policy authorizing random urinalysis drug testing of students who participate in interscholastic athletics. The Court redefined the term ‘‘compelling’’ governmental interest. The phrase does not describe a ‘‘fixed, minimum quantum of governmental concern,’’ the Court explained, but rather ‘‘describes an interest which appears important enough to justify the particular search at hand.’’ 319 Applying this standard, the Court concluded that ‘‘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 . . . or deterring drug use by engineers and trainmen.’’ 320 On the other hand, the interference with privacy interests was not great, the Court decided, since schoolchildren are routinely required to submit to various physical examinations and vaccinations. Moreover, ‘‘[l]egitimate privacy expectations are even less [for] student athletes, since they normally suit up, shower, and dress in locker rooms that afford no privacy, VerDate Apr<15>2004 09:55 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00055 Fmt 8222 Sfmt 8222 C:\CONAN\CON028.SGM PRFM99 PsN: CON028 1336 AMENDMENT 4—SEARCHES AND SEIZURE 321 Id. at 657. 322 Id. at 665. 323 520 U.S. 305 (1997). 324 Ferguson v. City of Charleston, 532 U.S. 67 (2001). 325 532 U.S. at 79. 326 Olmstead v. United States, 277 U.S. 438 (1928). and since they voluntarily subject themselves to physical exams and other regulations above and beyond those imposed on nonathletes.’’ 321 The Court ‘‘caution[ed] against the assumption that suspicionless drug testing will readily pass muster in other contexts,’’ identifying as ‘‘the most significant element’’ in Vernonia the fact that the policy was implemented under the government’s responsibilities as guardian and tutor of schoolchildren. 322 In two more recent cases, the Court found that there were no ‘‘special needs’’ justifying random testing. Georgia’s requirement that candidates for state office certify that they had passed a drug test, the Court ruled in Chandler v. Miller 323 was ‘‘symbolic’’ rather than ‘‘special.’’ There was nothing in the record to indicate any actual fear or suspicion of drug use by state officials, the required certification was not well designed to detect illegal drug use, and candidates for state office, unlike the customs officers held subject to drug testing in Von Raab, are subject to ‘‘relentless’’ public scrutiny. In the second case, a city-run hospital’s program for drug screening of pregnant patients suspected of cocaine use was invalidated because its purpose was to collect evidence for law enforcement. 324 In the previous three cases in which random testing had been upheld, the Court pointed out, the ‘‘special needs’’ asserted as justification were ‘‘divorced from the general interest in law enforcement.’’ 325 By contrast, the screening program’s focus on law enforcement brought it squarely within the Fourth Amendment’s restrictions. Electronic Surveillance and the Fourth Amendment The Olmstead Case.—With the invention of the microphone, the telephone, and the dictograph recorder, it became possible to ‘‘eavesdrop’’ with much greater secrecy and expediency. Inevitably, the use of electronic devices in law enforcement was challenged, and in 1928 the Court reviewed convictions obtained on the basis of evidence gained through taps on telephone wires in violation of state law. On a five-to-four vote, the Court held that wiretapping was not within the confines of the Fourth Amendment. 326 Chief Justice Taft, writing the opinion of the Court, relied on two lines of argument for the conclusion. First, inasmuch as the Amendment was designed to protect one’s property interest in his premises, there was no search so long as there was no physical trespass on VerDate Apr<15>2004 09:55 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00056 Fmt 8222 Sfmt 8222 C:\CONAN\CON028.SGM PRFM99 PsN: CON028 AMENDMENT 4—SEARCHES AND SEIZURE 1337 327 Among the dissenters were Justice Holmes, who characterized ‘‘illegal’’ wiretapping as ‘‘dirty business,’’ id. at 470, and Justice Brandeis, who contributed to his opinion the famous peroration about government as ‘‘the potent, the omnipresent, teacher’’ which ‘‘breeds contempt for law’’ among the people by its example. Id. at 485. More relevant here was his lengthy argument rejecting the premises of the majority, an argument which later became the law of the land. (1) ‘‘To protect [the right to be left alone], every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.’’ Id. at 478. (2) ‘‘There is, in essence, no difference between the sealed letter and the private telephone message. . . . The evil incident to invasion of the privacy of the telephone is far greater than that involved in tampering with the mails. Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded and all conversations between them upon any subject . . . may be overheard.’’ Id. at 475-76. 328 Ch. 652, 48 Stat. 1103 (1934), providing, inter alia, that ‘‘. . . no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, purport, effect, or meaning of such intercepted communication to any person.’’ Nothing in the legislative history indicated what Congress had in mind in including this language. The section, which appeared at 47 U.S.C. § 605, was rewritten by Title III of the Omnibus Crime Act of 1968, 82 Stat. 22, § 803, so that the ‘‘regulation of the interception of wire or oral communications in the future is to be governed by’’ the provisions of Title III. S. Rep. No. 1097, 90th Cong., 2d Sess. 107-08 (1968). 329 302 U.S. 379 (1937). Derivative evidence, that is, evidence discovered as a result of information obtained through a wiretap, was similarly inadmissible, Nardone v. United States, 308 U.S. 338 (1939), although the testimony of witnesses might be obtained through the exploitation of wiretap information. Goldstein v. United States, 316 U.S. 114 (1942). Eavesdropping on a conversation on an extension telephone with the consent of one of the parties did not violate the statute. Rathbun v. United States, 355 U.S. 107 (1957). 330 Weiss v. United States, 308 U.S. 321 (1939). premises owned or controlled by a defendant. Second, all the evidence obtained had been secured by hearing, and the interception of a conversation could not qualify as a seizure, for the Amen

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