Crim B4
Chapter 7
Admin. Justification & Consent
CHAPTER OVERVIEW
An explanation the justification for regulatory and administrative searches: Actions based on administrative justification and consent requires neither reasonable suspicion nor probable cause. The term administrative justification is something of a euphemism. It is not really justification at all. Actions based on administrative justification require that the government’s interest in protecting public safety outweighs individual privacy interests.
Consent searches, in contrast, need to be predicated on little more than validly given consent.
The second section describes the regulatory and administrative searches. Inventories fall into two categories: (1) vehicle inventories and (2) person inventories. A vehicle inventory must follow a lawful impoundment, be of a routine nature, follow department policy, and not be used as a pretext concealing an investigative police motive. A person inventory is justified on similar grounds, except that it must be preceded by a lawful arrest. Four types of inspections have been recognized by the U.S. Supreme Court. First, a general home inspection, such as a building code inspection, requires a specific type of warrant, but welfare inspection, conducted for the purpose of determining compliance with welfare conditions, requires no warrant. Second, an inspection of a closely regulated business is permissible without a warrant if (1) the government has a substantial interest in the activity at stake; (2) the search promotes effective enforcement of the law; and (3) the inspection protocol provides a constitutionally adequate substitute for a warrant. Third, a fire inspection, usually tied to an arson investigation, is permissible without a warrant but must be contemporaneous to the fire. Finally, authorities may open and inspect international mail without a warrant.
Several types of checkpoints have also been sanctioned by the Supreme Court. In general, for a checkpoint to conform to constitutional requirements, it must be minimally intrusive, brief, and not directly tied to a criminal investigation. More specifically, checkpoints at the nation’s borders, well inside the borders, at airports, and on the nation’s waterways are permissible but are limited to the purpose of identifying incoming individuals. Illegal alien checkpoints are permissible without a warrant or probable cause for the purpose of detecting illegal aliens entering the country but must conform to established policies and procedures.
School disciplinary “searches” are constitutionally permissible, but they must be reasonable. Random, suspicionless locker inspections are permissible but only with ample notice to students. The foregoing applies only to schools for kindergarten through grade 12.
The third section of this chapter describes consent searches and the issues associated with them. Consent searches are constitutional, but consent must be voluntary, as determined by the totality of circumstances. The scope of a consent search is defined by the person giving consent. Third parties can give consent if they have actual or apparent authority over the premises or property to be searched. A controversial law enforcement practice tied to consent searches is “knock and talk,” a strategy in which police seek to gain consent to enter a residence for the purpose of detecting evidence of criminal activity.
ACTIONS BASED ON ADMINISTRATIVE JUSTIFICATION
The Supreme Court has authorized many types of actions under the administrative justification exception to the Fourth Amendment’s probable cause and warrant requirements. This chapter groups all of them under the category of actions based on administrative justification. The actions that are considered include (1) inventories, (2) inspections, (3) checkpoints, (4) school discipline, (5) “searches” of government employees’ offices, (6) drug and alcohol testing, and (7) parole and probation supervision.
Inventories
Inventories can be viewed as another type of fallback measure. An inventory can be of a vehicle or of a person’s personal items. Usually, when a search occurs under the automobile exception or as a search incident to arrest, an inventory is taken after the fact for the purpose of developing a record of what items have been taken into custody.
Vehicle Inventories.
A vehicle inventory occurs in a number of situations, usually after a car has been impounded for traffic or parking violations. In South Dakota v. Opperman, 428 U.S. 364 (1976), the Supreme Court held that a warrantless inventory is permissible on administrative or regulatory grounds. However, it must (1) follow a lawful impoundment; (2) be of a routine nature, following standard operating procedures; and (3) not be a “pretext concealing an investigatory police motive.”
In Colorado v. Bertine, 479 U.S. 367 (1987), an officer opened a closed backpack during an inventory search and found drugs. Bertine is also significant in that the Court refused to alter the vehicle inventory exception to the Fourth Amendment when secure impound facilities are accessible. As the Court stated, “[T]he security of the storage facility does not completely eliminate the need for inventorying; the police may still wish to protect themselves or the owners of the lot against false claims of theft or dangerous instrumentalities.”
Person Inventories.
The inventory exception to the Fourth Amendment’s warrant requirement also applies in the case of a person inventory, often called an arrest inventory. The general rule is that the police may search an arrestee and his or her personal items, including containers found in his or her possession, as part of a routine inventory incident to the booking and jailing procedure. As decided in Illinois v. Lafayette, 462 U.S. 640 (1983), neither a search warrant nor probable cause is required.
Inspections
A variety of inspections is permissible without a warrant or probable cause. For all practical purposes, they are “searches.” Even so, the courts have continually stressed the “invasion versus need” balancing act—that is, the benefits of some inspections outweigh the costs of inconveniencing certain segments of the population.
Home Inspections.
Two types of home inspection have been considered by the Supreme Court. The first concerns health and safety inspections of residential buildings, such as public housing units. In Frank v. Maryland, 359 U.S. 360 (1959), the Court upheld the constitutionality of a statute designed to punish property holders for failing to cooperate with warrantless health and safety inspections.
The Supreme Court has held that inspections of the homes of welfare recipients do not require a warrant, however. In Wyman v. James, 400 U.S. 309 (1971), the Supreme Court upheld the constitutionality of a statute that allowed welfare caseworkers to make warrantless visits to the homes of welfare recipients. The purpose of such inspections is to ensure that welfare recipients are conforming to applicable guidelines and rules.
Business Inspections.
In See v. City of Seattle, 387 U.S. 541 (1967), The Court noted that “[t]he businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property” and therefore warrants were required for business inspections.
Soon after See, the Court created what came to be known as the closely regulated business exception to the warrant requirement set forth in Camara and See. Specifically, in Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970), the Court upheld a statute criminalizing the refusal to allow warrantless entries of liquor stores by government inspectors.
Fire Inspections.
In Michigan v. Tyler, 436 U.S. 499 (1978), the Supreme Court authorized the warrantless inspection of a burned residence (a fire inspection) immediately after the fire had been put out. The key fact in the holding is that the inspection must be contemporaneous, not several days or weeks after the fire.
International Mail Inspections.
In United States v. Ramsey, 431 U.S. 606 (1977), customs agents opened mail that was coming into the United States from Thailand, a known source of drugs. Further, the agents felt that a specific envelope was heavier than what would have been considered usual.
Checkpoints
A checkpoint is a means of investigating a large number of people, and is distinguished from an inspection, which involves a single building or entity. Several types of checkpoints are constitutionally permissible without warrants. Whereas an inspection targets particular homes and/or businesses, a checkpoint possesses an element of randomness. Either everyone is stopped or every nth person (such as every tenth person) is stopped. A checkpoint is similar to an inspection insofar as its purpose is usually not criminal, as in a typical search by police.
Border Checkpoints.
In Carroll v. United States, 267 U.S. 132 (1925), the Supreme Court stated that brief border detentions are constitutionally permissible. Further, the Court stated that it is in the interest of “national self-protection” to permit government officials to require “one entering the country to identify him as entitled to come in . . .”
Illegal Immigrant Checkpoints.
In United States v. Martinez-Fuerte, 428 U.S. 543 (1976), the Court upheld the decision of the Immigration and Naturalization Service (INS) to establish roadblocks near the Mexican border for the purpose of discovering illegal aliens. The Court offered a number of reasons for its decision. First, “[t]he degree of intrusion upon privacy that may be occasioned by a search of a house hardly can be compared with the minor interference with privacy resulting from the mere stop for questioning as to residence.” Second, motorists could avoid the checkpoint if they so desired. Third, the Court noted that the traffic flow near the border was heavy, so individualized suspicion was not possible. Fourth, the location of the roadblock was not decided by the officers in the field “but by officials responsible for making overall decisions.” Finally, a requirement that such stops be based on probable cause “would largely eliminate any deterrent to the conduct of well-disguised smuggling operations, even though smugglers are known to use these highways regularly.”
Sobriety Checkpoints.
In Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990), the Court upheld a warrantless, suspicionless checkpoint designed to detect evidence of drunk driving. In that case, police checkpoints were set up, at which all drivers were stopped and briefly (approximately 25 seconds) observed for signs of intoxication. If such signs were found, the driver was detained for sobriety testing, and if the indication was that the driver was intoxicated, an arrest was made.
License and Safety Checkpoints.
In Delaware v. Prouse, 440 U.S. 648 (1979), the Supreme Court held that law enforcement officials cannot randomly stop drivers for the single purpose of checking their drivers’ licenses and registration.
Crime Investigation Checkpoints.
In Illinois v. Lidster, 540 U.S. 419 (2004), the Supreme Court decided that checkpoints are also authorized for officers to ask questions related to crimes that had occurred earlier at the same area.
Other Types of Checkpoints.
Still other types of checkpoints have been considered by the Supreme Court. In United States v. Villamonte-Marquez, for example, the Court distinguished stops of boats on water from stops of vehicles on land.
Airport checkpoints are also authorized, with no need for probable cause or reasonable suspicion. According to the Ninth Circuit, “The need to prevent airline hijacking is unquestionably grave and urgent. . . . A pre-boarding screening of all passengers and carryon articles sufficient in scope to detect the presence of weapons or explosives is reasonably necessary to meet the need” (United States v. Davis, 482 F.2d 893 [9th Cir. 1973]).
Unconstitutional Checkpoints.
In conducting a checkpoint, the administrative rationale is not acceptable if it is relied upon in order to detect evidence of criminal activity. This was emphasized in City of Indianapolisv. Edmond, 531 U.S. 32 (2000), a case in which the Supreme Court decided whether a city’s suspicionless checkpoints for detecting illegal drugs were constitutional.
School Discipline
Public school administrators and teachers may “search” a student without a warrant if they have reasonable suspicion that the action will yield evidence that the student has violated the law or is violating the law or rules of the school. However, such school discipline “searches” must not be “excessively intrusive in light of the age and sex of the students and the nature of the infraction.” This was the decision reached in New Jersey v. T.L.O., 469 U.S. 325 (1985).
The reasonableness test for school disciplinary “searches” involves a twofold inquiry: “First, one must consider ‘whether the . . . action was justified at its inception . . . ’ second, one must determine whether the search as actually conducted ‘was reasonably related in scope to the circumstances which justified the interference in the first place’. ”
Locker Checks and Drug Dog “Sniffs.”
Random locker inspections are generally permissible, assuming the students have been given some notification in advance that their lockers are subject to inspection at any time, however, “searches” of specific lockers would still be subject to the reasonableness test set forth in T.L.O.
“Searches” of Government Employees’ Offices
In O’Connor v. Ortega, 480 U.S. 709(1987), the Court held that neither a warrant nor probable cause was required to “search” a government employee’s office, but the “search” must be “a noninvestigatory work-related intrusion or an investigatory search for evidence of suspected work-related employee misfeasance.”
Drug and Alcohol Testing
As drug and alcohol testing has become increasingly common at schools and workplaces, the Supreme Court has turned its attention to the constitutionality of these practices. Three lines of cases can be discerned: (1) employee testing, (2) hospital patient testing, and (3) school student testing.
Drug and Alcohol Testing of Employees.
In Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 (1989) and National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989), the Court upheld the constitutionality of certain regulations that permit drug and alcohol testing. The Court cited two reasons for its decision. The first was deterrence—without suspicionless drug testing, there would be no deterrent to employees to stay off drugs. The second reason was that drug testing promotes businesses’ interest in obtaining accurate information about accidents and who is responsible.
Drug and Alcohol Testing of Hospital Patients.
In Ferguson v. Charleston, 532 U.S. 67 (2001), the Supreme Court addressed the constitutionality of drug testing of hospital patients.
Drug and Alcohol Testing of Public School Students.
In Vernonia School District 47J v. Acton, 515 U.S. 646 (1995), the Court upheld a random drug testing program for school athletes.
In Board of Education v. Earls, 536 U.S. 822 (2002), the case dealt with another student drug testing policy.
Probation and Parole Supervision
A person on probation enjoys a lesser expectation of privacy than the typical citizen, and therefore enjoys a lesser degree of protection from government searches. In Griffin v. Wisconsin, 483 U.S. 868 (1987), the Supreme Court held that a state law or agency rule permitting probation officers to search a probationer’s home without a warrant and based on reasonable suspicion was constitutional.
Police–Probation Partnerships.
Police–probation partnerships, is a cutting-edge law enforcement strategy now being experimented with across the country. An example of this approach is Boston’s Operation Night Light. The program began in 1992 as an informal collaboration between probation officers and Boston’s Anti-Gang Violence Unit. Teams composed of one probation officer and two police officers serving as backup make surprise visits to the homes, schools, and worksites of high-risk youth probationers, mostly during the hours of 7 p.m. to midnight. The program grew to the extent that 50 police officers and 50 probation officers worked together in this program seven nights a week.
Parole Supervision.
In Samson v. California, 547 U.S. 843 (2006), the Supreme Court extended its earlier probation decision to parole supervision. It held that “[t]he Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee.” It’s rationale for this decision was that “[p]arolees, who are on the ‘continuum’ of state-imposed punishments, have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is.”
CONSENT SEARCHES
When a person consents to a search, no justification is required. This is known as a consent search. Cases involving consent searches can be placed into three categories, focusing on (1) whether consent is voluntary, (2) the scope of the search, and (3) whether a third-party individual can give consent to the search of another person.
Voluntariness
The general rule is that validly obtained consent justifies a warrantless search, with or without probable cause. However, for consent to be valid, it must be voluntary. Consent cannot be “the result of duress or coercion, express or implied” (Schneckloth v. Bustamonte, 412 U.S. 218 [1973]). However, there is no bright-line test as to whether there has been sufficient duress or coercion to render the consent involuntary. Instead, the Court has opted for a totality of circumstances test. This test requires looking at the surrounding circumstances of the consent, including whether a show of force was made; whether the person’s age, mental condition, or intellectual capacities inhibited understanding; whether the person is or was in custody; and/or whether consent was granted “only after the official conducting the search [had] asserted that he possesses a warrant” (Bumper v. North Carolina, 391 U.S 543 [1968]).
Scope Limitations
The person giving consent determines the limits of the consent search.
Third-Party Consent
Examples of third parties include a landlord consenting to have a tenant’s apartment searched, or parents consenting to have their child’s room searched. As far as the immediate family is concerned, there are several general rules: (1) Wives and husbands can give consent to have their partners’ property searched and (2) parents can give consent to have their children’s property searched, but (3) children cannot give consent to have their parents’ property searched. Children cannot give consent because they are considered incompetent to give voluntary consent, given their age.
Two important Supreme Court cases are relevant here. First, third-party consent can be given if (1) the third-party individual possesses “common authority” over the area to be searched and (2) the nonconsenting party (such as the roommate) is not present (United States v. Matlock, 415 U.S. 164 [1974]). According to the Court, commonauthority rests on “mutual use of the property by persons generally having joint access or control for most purposes.” Thus, a third party could give consent to have a shared bathroom searched but not to have his or her roommate’s bedroom searched.
The Supreme Court has held that the warrantless entry of private premises by police officers is valid if based on the apparent authority doctrine. In other words, a warrantless entry of a residence is valid if it is based on the consent of a person whom the police reasonably believe has authority to grant consent, even if their beliefs are ultimately erroneous. In Illinois v. Rodriguez, 497 U.S. 177 (1990), consent was given by a former girlfriend who possessed apparent authority to grant consent because she still had a key to her ex-boyfriend’s apartment. The test for reasonableness in this situation, according to the Court, is as follows: “[W]ould the facts available to the officer at the moment [of the entry] . . . warrant a man of reasonable caution in the belief that the consenting party had authority over the premises?”