Constitutional search of property without a warrant

Municipal Court , housing inspectors were allowed to use what the Court called "administrative warrants"—orders authorizing the random selection of some buildings for code inspection. Such administrative warrants are sometimes used, as in Camara , to enforce building and fire codes, but not for much else. The police are not allowed to use administrative warrants when enforcing criminal law. The justification of this state of affairs is that police officers investigating crime tend to have more power than other government officials: the police can break down doors, use force even deadly force to subdue suspects, and, in some cases, they may destroy suspects' property if that is a necessary consequence of the search for evidence.

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Other government officials tend not to have those powers. Consequently ordinary citizens tend not to find a building code inspection as frightening as a police search or arrest. The distinct legal requirements reflect those differences in official power and in the fear that such power inspires.

Criminal Rights

The second issue, when are warrants required, is more complicated. In summary, warrants are required when the police search a home or an office, unless the search must happen immediately, and there is no opportunity to obtain a warrant.

Warrants are also required for wiretaps—a special category covered along with most computer searches by federal statute. Outside those categories warrants are almost never required. There is a slightly more elaborate way to put the point. Until recently the Supreme Court said that warrants were required for all searches and seizures, save those that fell within some exception to that requirement. The classic statement of this rule, and the classic defense of a broad warrant requirement, was penned by Justice Robert H.

Jackson in Johnson v. United States Today, the Court uses different language, emphasizing not the second half of the Fourth Amendment's text, but the first the ban on "unreasonable searches and seizures". See Indianapolis v. Edmond Notwithstanding this change in legal rhetoric, the old categories, a warrant requirement with a list of exceptions, still exist. The scope of the requirement is defined by the many exceptions to it. The major ones are these:.

Exigent circumstances. The police need not get a warrant when doing so is practically impossible. Arrests outside the home. The police must have probable cause to justify the arrest, but they need not have a warrant. Searches incident to arrest. This means a search of the arrestee's person and any baggage he or she may be carrying; if the person is in a car when arrested, the officer may search the passenger compartment of the car though not the trunk. Inventory searches. The police may seize any belongings the arrestee has in his possession at the time of arrest including his car , bring those items back to the police station, and make a record of them and their contents.

Cars, including their trunks, may be searched without warrants, as long as the searching officers have probable cause. Street stops and frisks. Officers are allowed to detain a suspect for a brief period, and to frisk him for weapons, given reasonable suspicion of criminal activity. In addition to these exceptions, there are several categories of searches that involve government officials other than police officers e. Such searches generally do not require warrants. That list of exceptions and special categories aside, other searches and seizures do require warrants.

Notice, however, that the major categories of searches and seizures that do not appear on the above list are searches of homes, arrests within homes, searches of private offices or other privately owned buildings other than for fire inspection and the like , and wiretaps. The overwhelming majority of search and arrest warrants are issued in such cases because, apart from such cases, warrants are almost never required.

A generation ago those propositions were widely contested; the scope of the warrant requirement was the subject of a great deal of litigation, including a number of Supreme Court decisions. That is no longer the case. Today Fourth Amendment litigation focuses on warrant less searches and seizures. The Searches and Seizures Clause—the first half of the Fourth Amendment's text—is now the primary source of Fourth Amendment litigation and commentary. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jur The occupant had been arrested and removed and it was true, the Court observed, that a person legally taken into custody has a lessened right of privacy in his person, but he does not have a lessened right of privacy in his entire house.

And, in United States v. Chimel has, however, been qualified by another consideration. Belton held that police officers who had made a valid arrest of the occupant of a vehicle could make a contemporaneous search of the entire passenger compartment of the automobile, including containers found therein. In the early days of the automobile, the Court created an exception for searches of vehicles, holding in Carroll v.

United States that vehicles may be searched without warrants if the officer undertaking the search has probable cause to believe that the vehicle contains contraband. The Court explained that the mobility of vehicles would allow them to be quickly moved from the jurisdiction if time were taken to obtain a warrant. It travels public thoroughfares where both its occupants and its contents are in plain view. By contrast, fixed-checkpoint stops in the absence of any individualized suspicion have been upheld for purposes of promoting highway safety or policing the international border, but not for more generalized law enforcement purposes.

Although officers who have stopped a car to issue a routine traffic citation may conduct a Terry -type search, even including a pat-down of driver and passengers if there is reasonable suspicion that they are armed and dangerous, they may not conduct a full-blown search of the car unless they exercise their discretion to arrest the driver instead of issuing a citation. Police in undertaking a warrantless search of an automobile may not extend the search to the persons of the passengers therein unless there is a reasonable suspicion that the passengers are armed and dangerous, in which case a Terry patdown is permissible, or unless there is individualized suspicion of criminal activity by the passengers.

Not only is the warrant requirement inap-plicable to brief stops of vessels, but also none of the safeguards applicable to stops of automobiles on less than probable cause are necessary predicates to stops of vessels. In United States v. Villamonte-Marquez , the Court upheld a random stop and boarding of a vessel by customs agents, lacking any suspicion of wrongdoing, for purpose of inspecting documentation. The reason why random stops of vehicles have been held impermissible under the Fourth Amendment , the Court explained, is that stops at fixed checkpoints or roadblocks are both feasible and less subject to abuse of discretion by authorities.

Fourth Amendment rights, like other con-stitutional rights, may be waived, and one may consent to a search of his person or premises by officers who have not complied with the Amendment. Actual knowledge of the right to refuse consent is not essential for a search to be found voluntary, and police therefore are not required to inform a person of his rights, as through a Fourth Amendment version of Miranda warnings.

Additional issues arise in determining the validity of consent to search when consent is given not by the suspect, but by a third party. A person at the threshold of a residence could not confidently conclude he was welcome to enter over the express objection of a present co-tenant. Expectations may change, however, if the objecting co-tenant leaves, or is removed from, the premises with no prospect of imminent return.

Inland stoppings and searches in areas away from the borders are a different matter altogether. Thus, in Almeida-Sanchez v. 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. In Hester v. United States. In New Jersey v. The search for cigarettes uncovered evidence of drug activity held admissible in a prosecution under the juvenile laws.

In Safford Unified School District 1 v. Redding , a student found in possession of prescription ibuprofen pills at school stated that the pills had come from another student, year-old Savana Redding. The purchase price of the original item, less any money paid to government entities, such as filing fees or taxes, or to other third parties with a role in processing your order, will be credited to your LegalZoom account.

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Fourth Amendment | The National Constitution Center

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Media Library: Fourth Amendment

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