Questions due tonight

LEARNING OBJECTIVES When you complete this chapter, you should be able to:

� Explain the justification for regulatory and administrative searches. � Describe regulatory and administrative searches. � Describe consent searches and the issues associated with them.


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Actions Based on Administrative Justification and Consent






Introduction: Casting Off the Fourth Amendment’s Restraints

Actions Based on Administrative Justification Inventories

Vehicle Inventories Person Inventories

Inspections Home Inspections Business Inspections Fire Inspections International Mail Inspections

Checkpoints Border Checkpoints Illegal Immigrant Checkpoints Sobriety Checkpoints License and Safety Checkpoints Crime Investigation Checkpoints Other Types of Checkpoints Unconstitutional Checkpoints

School Discipline Locker Checks and Drug Dog “Sniffs”

“Searches” of Government Employees’ Offices Drug and Alcohol Testing

Drug and Alcohol Testing of Employees Drug and Alcohol Testing of Hospital Patients Drug and Alcohol Testing of School Students

Probation and Parole Supervision More Latitude at the State Level Police/Probation Partnerships Parole Supervision

Consent Searches Voluntariness Scope Limitations Third-Party Consent “Knock and Talk”

Summary Key Terms Key Cases Review Questions Web Links and Exercises


Casting Off the Fourth Amendment’s Restraints

As mentioned in Chapter 3, actions based on administrative justifications are those in which the primary purpose is noncriminal. They resemble searches because they intrude on people’s privacy—and can lead to the discovery of evidence. Technically, however, they are not searches. Instead of being based on probable cause or reasonable suspicion, administrative actions invoke a balancing test, weighing citizens’ privacy interests against the interest to ensure public safety. When the latter outweighs the former, an administrative “search” is allowed, subject to certain limitations (e.g., department policy). This chapter briefly introduces several types of actions that the Supreme Court has authorized based on administrative justification.


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South Dakota v. Opperman (428 U.S. 364 [1976])

214 Part 2 • Search and Seizure

This chapter also introduces the topic of consent searches. When a person gives valid consent to search, neither a warrant nor probable cause is required. Closely tied to consent searches is the controversial police practice known as “knock and talk.” The consent search section also delves into third-party consent or the extent to which one person can grant consent to have another person’s property searched. Consent fits nicely in this chapter because neither it nor actions based on administrative justification require probable cause—or any real measure of proof that a crime is being or has been committed.


The Supreme Court has authorized numerous varieties of actions under the administra- tive justification exception to the Fourth Amendment’s probable cause and warrant requirements. Sometimes they are described as special needs beyond law enforcement searches; other times, they are called regulatory searches. To avoid confusion, this book lumps all of them under the category of 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. Note that when the term “search” appears in quotes, it is because while a particular action may look like a search, it is not the same as a true Fourth Amendment search.


Like seizures based on plain view, inventories can be viewed as another fallback measure. An inventory can be of a vehicle and/or of a person’s personal items. Usually, a search occurs under the automobile exception (in the case of an automobile) or a search incident to arrest (when a person is involved), and an inventory is taken after the fact for the purpose of developing a record of what items have been taken into custody. Both types of inventories are fallbacks in the sense that they often occur after an earlier search.

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/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.” Thus, even though an inventory can be perceived as a fallback measure, which permits a search when probable cause is lacking, it cannot be used in lieu of a regular search requiring probable cause.

Why did the Court opt for another standard besides probable cause for the inventory, despite the fact that it is still a “search” in the conventional sense of the term? The Court noted that the probable cause requirement of the Fourth Amendment is “unhelpful” in the context of administrative care-taking functions (e.g., inventories) because the concept of probable cause is linked to criminal investigations. Probable cause is irrelevant with this type of administrative action, “particularly when no claim is made that the protective procedures are a subterfuge for criminal investigations” (p. 371).

The Court offered three reasons in support of vehicle inventories. First, an inventory protects the owner’s property while it is in police custody. Second, an inventory protects the police against claims of lost or stolen property. Finally, an inventory protects the police and public from dangerous items (e.g., weapons) that might be concealed in a car.


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Illinois v. Lafayette (462 U.S. 640 [1983])

Colorado v. Bertine (479 U.S. 367 [1987])

Chapter 7 • Actions Based on Administrative Justification and Consent 215

Note that inventories include containers. That is, the police may examine any container discovered during the course of a vehicle inventory, but this should be mandated by departmental procedures. This was the decision reached in Colorado v. Bertine (479 U.S. 367 [1987]). That decision also helped the police insofar as 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” (p. 373).

In Bertine, the Court also rejected an argument that car owners should be able to make their own arrangements if their vehicles are impounded (e.g., have it towed by a private company, have a friend drive it home). The Court stated, “The reasonableness of any particular governmental activity does not necessarily or invariably turn on the existence of alternative ‘less intrusive’ means” (p. 374).

Reading Opperman and Bertine would suggest that inventories are relatively standard and intended mainly to take note of a car’s contents. However, in Michigan v. Thomas (458 U.S. 259 [1982]), the Supreme Court concluded that the police could go even further. In that case, officers found a loaded .38 revolver in one of the impounded vehicle’s air vents. The Court upheld the officers’ actions because marijuana had been found in the vehicle shortly before the gun was detected.

In conclusion, two important issues must be understood with regard to vehicle inventories. First, if during the course of a valid inventory, the police discover evidence that gives rise to probable cause to search, then a more extensive search is permissible. However, according to Carroll v. United States (267 U.S. 132 [1925]), discussed in Chapter 5, one of the requirements for such action to be constitutional is the impracticality of securing a warrant.

Second, despite the Supreme Court’s apparent willingness to give police wide latitude with vehicle inventories, what makes them constitutional is clear guidelines as to how the inventory should be conducted. In other words, the Court has authorized inventories without probable cause or a warrant only if, in addition to the other require- ments discussed earlier, it is conducted in accordance with clear departmental policies and procedures. Requiring the police to follow appropriate policies minimizes discretion and the concern that inventories may be used for criminal investigation purposes. The inventory search policy from the Pine Bluff, Arkansas, Police Department’s Policy and Procedure Manual is reprinted in Figure 7.1.

PERSON INVENTORIES The inventory exception to the Fourth Amendment’s warrant requirement applies in the case of a person inventory, as well. The action permitted is 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. According to the Court:

Consistent with the Fourth Amendment, it is reasonable for police to search the personal effects of a person under lawful arrest as part of the routine administrative procedure at a police station incident to booking and jailing the suspect. The justification for such searches does not rest on probable cause, and hence the absence of a warrant is immaterial to the reasonableness of the search. Here, every consideration of orderly police administration— protection of a suspect’s property, deterrence of false claims of theft against the police, security, and identification of the suspect—benefiting both the police and the public points toward the appropriateness of the examination of respondent’s shoulder bag. (pp. 643–648)


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216 Part 2 • Search and Seizure





Chief of Police John E. Howell


ISSUE DATE 02/19/2008



FIGURE 7.1 Vehicle Inventory Policy (Pine Bluff, AR, Police Department)



1. The Impoundment of motor vehicles shall be accomplished by the use of contract commercial towing services, towing vehicles, and impoundment lots as authorized by this law enforcement agency. All towing agencies must be a member of the Arkansas Towing and Recovery Board, certified for and display inspection documentation indicating they are authorized for non-consent towing.

2. Vehicles impounded by or otherwise taken into the custody by this agency shall be inventoried in a manner consistent with this agencies policy on motor vehicle inventories as stated in Section F of this policy. a. Inventories should be performed at the scene or at a safe place nearby whenever this can be done

safely and effectively. b. A Pine Bluff Police Department wrecker log will be completed on any impounded motor vehicles. c. Motor vehicles shall not be impounded for purposes other than those defined by statute or ordinance,

(e.g., not as a form of punishment, or as a means of conducting vehicle searches when probable cause does not exist or consent to search cannot be obtained).

3. When impoundments are necessary, the operator and any passengers should not be stranded. Officers shall take those measures necessary to ensure that the operator and any passengers of the vehicle are offered transportation. To include but not limited to: a. Call a taxi cab for them. b. Call a friend or relative to pick them up. c. With supervisor approval, transport them to the nearest reasonably safe location.

4. If the driver/owner or passenger(s) decline assistance with transportation and the vehicle is towed at the direction of an officer for any reason, the officer shall document their refusal on an original Information/Incident Report, as Supplemental to and existing Information/Incident Report, or on an Accident Report, whichever is appropriate to the circumstances.

5. Vehicle operators may be permitted to remove unsecured valuables of a non-evidentiary nature from the vehicle prior to its removal for impoundment. The nature of these valuables shall be noted on the appropriate reporting document.

6. Impounded vehicles shall be released to owners with proof of ownership and personal identification, and following proof of payment of any impoundment, storage, or related fees and taxes.

Source: Reprinted courtesy of Pine Bluff, AR, Police Department. IS B

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Camara v. Municipal Court (387 U.S. 523 [1967])

Chapter 7 • Actions Based on Administrative Justification and Consent 217

It is important to understand that an inventory of person must follow a lawful arrest, so the probable cause to search requirement is essentially satisfied at the arrest stage.

The Supreme Court’s decision in Opperman, discussed in the vehicle inventory section, has essentially been extended to person inventories. That is, as part of invento- rying a person’s possessions pursuant to a valid arrest, the police may also examine containers. The Court felt that it would be unduly burdensome on the police to require them to distinguish between which containers may or may not contain evidence of criminal activity.


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 that the justification for such searches is the “invasion versus need” balancing act—that is, the benefits of some inspections outweigh the costs of inconveniencing certain segments of the population. Most of these exceptions to the warrant requirement are based on the Court’s decision in Camara v. Municipal Court (387 U.S. 523 [1967]), where it was concluded that “there can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails” (pp. 536–537).

HOME INSPECTIONS Two types of home inspection have been authorized by the 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]), for example, the Court upheld the constitutionality of a statute designed to punish property holders for failing to cooperate with warrantless health and safety inspections. The Court noted that such inspections “touch at most upon the periphery of the important interests safeguarded by the Fourteenth Amendment’s protection against official intrusion” (p. 367). In 1967, however, the Court overruled the Frank decision in Camara v. Municipal Court (387 U.S. 523 [1967]).

In Camara, the Court noted that nonconsensual administrative inspections of private residences amount to a significant intrusion upon the interests protected by the Fourth Amendment. Today, a warrant is required for authorities to engage in a home inspection. However, the meaning of probable cause in such a warrant differs from that discussed earlier. The Court has stated that if an area “as a whole” needs inspection, based on factors such as the time, age, and condition of the building, then the probable cause requirement will be satisfied. The key is that probable cause in the inspection context is not individualized as in the typical warrant. That is to say, inspections of this sort are geared toward buildings, not persons.

A second type of home inspection is a welfare inspection. 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.


Inventoried and Inventoried Again

At the time of the defendant’s arrest, police officers invento- ried his automobile and seized several items. Approximately eight hours after the car was impounded, an officer, without obtaining a warrant, searched the car a second time, seizing

additional evidence. Note that both searches were inventory searches. Do these searches appear, as many courts have stated it, to “pass Fourth Amendment muster”? What if only the second search was deemed unconstitutional?

Wyman v. James (400 U.S. 309 [1971])


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Colonnade Catering Corp. v. United States (397 U.S. 72 [1970])

218 Part 2 • Search and Seizure

The purpose of such inspections is to ensure that welfare recipients are conforming with applicable guidelines and rules. The Court declared that welfare inspections are not searches within the meaning of the Fourth Amendment, which means they can be conducted without a warrant or probable cause. Of course, such inspections should be based on neutral criteria and should not mask intentions to look for evidence of criminal activity.

BUSINESS INSPECTIONS Far more case law exists in the arena of business inspections. See v. City of Seattle (387 U.S. 541 [1967]), which was a companion case to Camara, was one of the first to focus on the constitutionality of business inspections. See involved a citywide inspection of businesses for fire code violations. 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” (p. 543) and therefore that warrants were required to engage in business inspections.

However, 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 refusal to allow warrantless entries of liquor stores by government inspectors. According to the Court:

We agree that Congress has broad power to design such powers of inspection under the liquor laws as it deems necessary to meet the evils at hand. The gen- eral rule laid down in See v. City of Seattle . . . —“that administrative entry, without consent, upon the portions of commercial premises which are not open to the public may only be compelled through prosecution or physical force within the framework of a warrant procedure”—is therefore not applica- ble here. In See, we reserved decision on the problems of “licensing programs” requiring inspections, saying they can be resolved “on a case-by-case basis under the general Fourth Amendment standard of reasonableness.” . . . What we said in See reflects this Nation’s traditions that are strongly opposed to


Welfare-Related Home Inspections

These are the paraphrased facts from a real case, Calabretta v. Floyd (189 F.3d 808 [9th Cir. 1999]): An anonymous party called the Department of Social Services and said that she was awakened by a child screaming “No, Daddy, no” at 1:30 a.m. at the Calabretta home. Four days after the call, a social worker went to the Calabretta home to investigate. Mrs. Calabretta, the mother, refused to let the social worker in. Then, 10 days after the first visit, the social worker returned to the Calabretta house with a police officer. The officer met the social worker at the Calabretta house, knowing nothing about the case except that he had been assigned to assist her. She told him that they had received a report of the children crying, and he understood her to mean that they might have been beaten. When the police officer knocked on the door of the home, Mrs. Calabretta responded but did not open the door. The police officer said they were checking on the children’s welfare because someone had reported

children crying. Mrs. Calabretta still did not open the door and said she was uncomfortable letting them in without her husband at home. The police officer had the opinion that any check on the welfare of children involved an exigent circumstance and thus that no search warrant was needed. Once the two gained entry, the social worker took the children into one room while the officer remained in another room with the mother. The social worker asked the 12-year-old to pull down the 3-year-old’s pants to check for bruises on her buttocks. The 12-year-old refused and the 3-year-old began crying. At that point, the mother rushed in. The social worker then demanded that the mother pull down the 3-year-old’s pants, which she did. There were no bruises. The Calabrettas sued the social worker, the police officer, and other defendants for, among other things, a violation of their Fourth Amendment rights. Was the entrance into the Calabretta home constitutional?


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United States v. Biswell (406 U.S. 311 [1972])

Chapter 7 • Actions Based on Administrative Justification and Consent 219

using force without definite authority to break down doors. We deal here with the liquor industry long subject to close supervision and inspection. As respects that industry, and its various branches including retailers, Congress has broad authority to fashion standards of reasonableness for searches and seizures. (pp. 76–77)

Similarly, in United States v. Biswell (406 U.S. 311 [1972]), the Court upheld the war- rantless inspection of a firearms dealership. In Biswell, the Court observed that “[w]hen a dealer chooses to engage in this pervasively regulated business and to accept a federal license, he does so with the knowledge that his business records, firearms and ammunition will be subject to effective inspection” (p. 311). A key restriction on this ruling, however, is that authorities cannot use unauthorized force for the purpose of gaining entrance.

In a later case, Donovan v. Dewey (452 U.S. 494 [1981]), the Court modified the closely regulated business exception. The Court decided that it is not enough that an industry is “pervasively regulated” for the business inspection exception to apply. Three additional criteria must be met: (1) the government must have a “substantial” interest in the activity at stake; (2) warrantless searches must be necessary to the effective enforcement of the law; and (3) the inspection protocol must provide “a constitutionally adequate substitute for a warrant.”

The Court clarified the Dewey criteria in New York v. Burger (482 U.S. 691 [1987]). In that case, the Court upheld the warrantless inspection of a vehicle junkyard for the purpose of identifying “vehicle dismantlers.” Justice Blackman noted that Dewey’s first criterion was satisfied because vehicle theft was a serious problem in New York. The second criterion was satisfied because surprise inspections were necessary if stolen vehicles and parts were to be identified, and the third criterion—adequate substitute— was satisfied because junkyard operators were notified that inspections would be unan- nounced and conducted during normal business hours. In the Court’s words:

The New York regulatory scheme satisfies the three criteria necessary to make reasonable warrantless inspections pursuant to [the statute in question]. First, the State has a substantial interest in regulating the vehicle-dismantling and automobile-junkyard industry because motor vehicle theft has increased in the State and because the problem of theft is associated with this industry . . . Second, regulation of the vehicle-dismantling industry reasonably serves the State’s substantial interest in eradicating automobile theft . . . [and third, the statute] provides a “constitutionally adequate substitute for a warrant.” . . . . The statute informs the operator of a vehicle dismantling business that inspec- tions will be made on a regular basis . . . . Thus, the vehicle dismantler knows that the inspections to which he is subject do not constitute discretionary acts by a government official but are conducted pursuant to the statute. (pp. 708–709)


Business Inspections

Komfortable Kitty Drug Company manufactures and pack- ages veterinary drugs. Several times during a one-year pe- riod, Federal Drug Administration (FDA) agents inspected the company’s premises to ensure compliance with the Food, Drug, and Cosmetic Act (actual legislation). The agents cited Komfortable Kitty for several violations. Drugs that were

allegedly in violation of the act were seized pursuant to an in rem arrest warrant (i.e., a warrant authorizing the arrest of property). Altogether, over $100,000 worth of drugs and equipment were seized. Komfortable Kitty has contested the constitutionality of the seizure. Does the company have a valid case?


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United States v. Ramsey (431 U.S. 606 [1977])

Michigan v. Tyler (436 U.S. 499 [1978])

220 Part 2 • Search and Seizure

It is important to point out, though, that when business inspections become non regulatory (e.g., for the purpose of criminal investigation/prosecution), then a warrant is required (see G.M. Leasing Corp. v. United States, 429 U.S. 338 [1977]).

FIRE INSPECTIONS In Michigan v. Tyler (436 U.S. 499 [1978]), the Supreme Court authorized the warrantless inspection of a burned building/residence (i.e., fire inspec- tion) immediately after the fire has been put out. The key is that the inspection must be contemporaneous, not several days or weeks after the fire. The justification offered by the Court was that it is necessary to determine the cause of a fire as soon as possible after it has been extinguished. A warrant in such an instance, felt the Court, would be unduly burdensome.

In a related case, Michigan v. Clifford (464 U.S. 287 [1984]), the Court decided on the constitutionality of a warrantless arson-related inspection that was conducted five hours after the fire was extinguished. While the inspection began as just that, when evidence of arson was found, a more extensive search was conducted. The Court required a warrant because the officials engaging in the search admitted it was part of a criminal investigation. According to the Court:

The warrantless intrusion into the upstairs regions of the Clifford house presents a telling illustration of the importance of prior judicial review of proposed administrative searches. If an administrative warrant had been obtained in this case, it presumably would have limited the scope of the proposed investigation and would have prevented the warrantless intrusion into the upper rooms of the Clifford home. An administrative search into the cause of a recent fire does not give fire officials license to roam freely through the fire victim’s private residence. (p. 298)

Interestingly, in Clifford, the Court stated that “the home owner is entitled to reasonable advance notice that officers are going to enter his premises for the purposes of ascertaining the cause of the fire” (p. 303), which suggests that notice, but not a warrant, is required for the typical fire inspection. More extensive searches, however, still require warrants supported by probable cause.

INTERNATIONAL MAIL INSPECTIONS The Supreme Court has permitted government officials to open incoming international mail. For example, 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. Considering these factors, the Supreme Court upheld the warrantless search:

The border-search exception is grounded in the recognized right of the sover- eign to control, subject to substantive limitations imposed by the Constitution, who and what may enter the country. It is clear that there is nothing in the rationale behind the bordersearch exception which suggests that the mode of entry will be critical. It was conceded at oral argument that customs officials could search, without probable cause and without a warrant, envelopes carried by an entering traveler, whether in his luggage or on his person. . . . Surely no different constitutional standard should apply simply because the envelopes were mailed, not carried. The critical fact is that the envelopes cross the border and enter this country, not that they are brought in by one mode of transportation rather than another. It is their entry into this country from without it that makes a resulting search “reasonable.” (p. 620)


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Chapter 7 • Actions Based on Administrative Justification and Consent 221


Several types of checkpoints are constitutionally permissible without warrants. A checkpoint is a means of investigating a large number of people and should be distinguished from an inspection. Whereas an inspection targets particular homes and/or businesses, a checkpoint possesses an element of randomness—or total predictability. Either everyone is stopped or every nth person (e.g., every tenth person) is stopped. A checkpoint is similar to an investigation insofar as its purpose is not criminal in the sense that a typical search is. And to the extent that some checkpoints border on looking for evidence of crime (e.g., illegal immigrants), they are often justified because they are not based on individualized suspicion.

BORDER CHECKPOINTS In Carroll v. United States (267 U.S. 132 [1925]), the Supreme Court stated that brief border detentions are constitutionally permissible. Further, it is in the inter- est of “national self protection” to permit government officials to require “one entering the country to identify himself as entitled to come in . . . ” (p. 154). More recently, in United States v. Montoya de Hernandez (473 U.S. 531 [1985]), the Court reaffirmed the need for war- rantless border inspections: “Routine searches of the persons and effects of entrants [at the border] are not subject to any requirement of reasonable suspicion, probable cause, or a warrant . . . [O]ne’s expectation of privacy [is] less at the border” (p. 538). The Court wrote:

[This case reflects] longstanding concern for the protection of the integrity of the border. This concern is, if anything, heightened by the veritable national crisis in law enforcement caused by smuggling of illicit narcotics . . . and in particular by the increasing utilization of alimentary canal smuggling. This desperate practice appears to be a relatively recent addition to the smugglers’ repertoire of deceptive practices, and it also appears to be exceedingly difficult to detect. (pp. 538–539)

Border checkpoints have also been upheld on U.S. waterways (United States v. Villamonte-Marquez, 462 U.S. 579 [1983]), at highway checkpoints well inside the international borders (Almeida-Sanchez v. United States, 413 U.S. 266 [1973]), and at inter- national airports (Illinois v. Andreas, 463 U.S. 765 [1983]). According to a recent Supreme Court decision (United States v. Flores-Montano, 541 U.S. 149 [2004]), it also appears that more than just a detention is permissible at the border. In that case, the Supreme Court sanctioned the removal, disassembly, and reassembly of a vehicle’s fuel tank.

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” (p. 565). 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” (p. 559). 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” (p. 557). Importantly, law enforcement officers must have justification to examine the bags and personal effects of individuals who are stopped at immigration checkpoints (or during any immigration check) (Bond v. United States, 529 U.S. 334 [2000]).

United States v. Martinez-Fuerte (428 U.S. 543 [1976])


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Michigan Dept. of State Police v. Sitz (496 U.S. 444 [1990])

222 Part 2 • Search and Seizure

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. The Court weighed the magnitude of the governmental interest in eradicating the drunk-driving problem against the slight intrusion to motorists stopped briefly at such checkpoints. Key to the constitutionality of Michigan’s checkpoint were two additional factors: (1) evenhandedness was ensured because the locations of the checkpoints were chosen pursuant to written guidelines and every driver was stopped; and (2) the officers themselves were not given discretion to decide whom to stop. Significantly, the checkpoint was deemed constitutional even though motorists were not notified of the upcoming checkpoint or given an opportunity to turn around and go the other way. According to the Court:

No one can seriously dispute the magnitude of the drunken driving problem or the State’s interest in eradicating it. Media reports of alcohol-related death and mutilation on the Nation’s roads are legion. The anecdotal is confirmed by the statistical. . . . For decades, this Court has “repeatedly lamented the tragedy.” . . . Conversely, the weight bearing on the other scale—the measure of the intrusion on motorists stopped briefly at sobriety checkpoints—is slight. . . . In sum, the balance of the State’s interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the state program. We therefore hold that it is consistent with the Fourth Amendment. (pp. 451–455)

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 purpose of checking their drivers’ licenses. The Court’s reasoning is interesting:

An individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation. Automobile travel is a basic, perva- sive, and often necessary mode of transportation to and from one’s home, workplace, and leisure activities. Many people spend more hours each day traveling in cars than walking on the streets. Undoubtedly, many find a greater sense of security and privacy in traveling in an automobile than they do in exposing themselves by pedestrian or other modes of travel. Were the


Detecting Illegal Aliens

The U.S. Border Patrol relies on checkpoints north of the Mexican border to look for illegal aliens. (In California, these can be found as far as 90 miles north of the border.) These checkpoints are often stationed in the middle of major freeways, where every car must slow down and, at a mini- mum, be waved through by one of several agents standing between the lanes. In addition, there is little, if any, opportunity

to exit the freeway in order to avoid the checkpoints. Can these checkpoints be considered administrative? What if, instead of having the cars slow down, the border patrol required all vehicles to stop, at which point they would briefly search the trunk, cargo compartment (i.e., for a pickup truck, van, or tractor trailer), and so on in an effort to detect illegal aliens? Could they legally do this?


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individual subject to unfettered governmental intrusion every time he entered an automobile, the security guaranteed by the Fourth Amendment would be seriously circumscribed. . . . Accordingly, we hold that except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not regis- tered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of the law, stopping an automobile and detaining the driver in order to check his driver’s license and the registration of the automobile are unreasonable under the Fourth Amendment. (pp. 662–663)

The Court did note, however, that “this holding does not preclude the State of Delaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion” (p. 663). In particular, “Questioning of all oncoming traffic at roadblock-type stops is one possible alternative” (p. 663). If officers stopped every fifth, tenth, or twentieth vehicle, then this action would probably conform to the Court’s requirement that roadblocks and checkpoints restrict individual officers’ discretion to the fullest extent possible. See Figure 7.2 for an example of a vehicle safety checkpoint policy.





Chief of Police John E. Howell


ISSUE DATE 02/19/2008



FIGURE 7.2 Vehicle Safety Checkpoint Policy (Pine Bluff, AR, Police Department)

I. POLICY This agency has a primary mission of creating a safer environment for the citizens within this commu- nity. In furtherance of this mission, this agency shall periodically conduct a vehicle safety checkpoint as directed by the Chief or his or her designee. All vehicle safety checkpoint operations shall be closely supervised as assigned by the Chief or his or her designee. The directives, as stated within this policy, shall be applied as a standard operating procedure in providing guidance to agency personnel in conducting all vehicle safety checkpoints. This policy applies only to vehicle safety checkpoints. It does not apply to sobriety checkpoints, drug interdiction checkpoints, or roadblocks for other purposes.

II. PURPOSE To increase the effectiveness of this agency in checking for unsafe vehicles traveling upon the roadways. Vehicle safety checkpoints will also allow this agency the opportunity to periodically concentrate its efforts in checking for violations of Arkansas traffic and regulatory laws that will ultimately increase the safety of the citizens within the community.

Figure 7.2 continued


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III. PROCEDURES: A. A decision to implement a vehicle safety checkpoint operation must be approved either by the Chief or

his or her designee. B. The maximum duration of any vehicle safety checkpoint operation shall be four hours unless

otherwise directed by the Chief or his or her designee. C. A safety checkpoint operation shall only be conducted by utilizing the proper equipment. The

following shall be considered as being proper equipment: 1. At least three marked patrol units equipped with emergency lights, siren and communications

devices. One of these marked units shall be positioned at the checkpoint central location and shall have emergency lights operational during the checkpoint operation. The other two patrol units shall be positioned at each end of the checkpoint area. Other patrol units, for prisoner transport, shall be called to the checkpoint area if necessary.

2. At least one portable sign (when traffic is only stopped one way) to be placed alongside the roadway approximately 300 feet from the checkpoint area. The letters on the sign shall be large enough so that passing motorists are able to read it easily. The sign shall display the following messages: a. NOTICE———You are now entering a vehicle safety checkpoint under the direction of the Pine

Bluff Police Department. b. Be prepared to stop.

3. When traffic is being stopped from both directions a second sign shall be utilized and displayed as stated above.

4. A vehicle safety checkpoint operation shall only be conducted by assigning the appropriate number of personnel. The following shall be considered an appropriate number of personnel: a. At least two or three officers (depending on the time of day and the traffic flow) conducting the

checkpoint in full departmental uniform or in clothing, as approved by an immediate supervisor, that identifies him or her as a law enforcement officer. Two officers shall be utilized to approach the vehicles stopped and one officer will be utilized to take any enforcement action as necessary.

b. At least one officer or a properly trained K-9 and K-9 handler occupying the other marked units. These officers shall be in full departmental uniform or in clothing, as approved by an immediate supervisor that identifies him or her as a law enforcement officer.

5. A supervisor as assigned by the Chief or his or her designee. 6. Law Enforcement officers of this agency participating in a vehicle safety checkpoint operation

shall: a. Establish a checkpoint only in an area where there is complete visibility for a minimum of 500

feet from both directions of oncoming traffic to the checkpoint area. b. Establish a checkpoint whereby all vehicles or a designated number, every third vehicle for

instance, is stopped. The Chief of Police or other supervisor assigned to the operation shall make a decision as to how the checkpoint will be conducted at the scene.

c. Cautiously approach all vehicles and be particularly alert to suspicious movements or actions of the vehicle occupants. Policy 403 Page 3

d. Allow the driver and occupants to remain inside their vehicle unless their removal from the vehicle is necessary due to facts leading the officer to reasonably suspect that:

i. A crime has been or is being committed; ii. The vehicle occupant(s) presents some danger to the officer or others; or

iii. The person is armed and presently dangerous.


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e. Courteously advise the driver of the vehicle the following: This is a vehicle safety checkpoint being conducted by the Pine Bluff Police Department. We are checking vehicles for the safety of all motorists within the city of Pine Bluff.

f. Advise the operator of the vehicle to provide a driver’s license, vehicle registration, and proof of vehicle insurance. Also advise the vehicle operator that a brief vehicle safety inspection, checking the general condition of the motor vehicle, will be completed.

g. Complete the vehicle/document inspection and take any enforcement action deemed necessary or appropriate. Drivers of vehicles for which enforcement action is necessary will be directed to a “pull off area” that has been established prior to the beginning of the checkpoint operation. A pull off area is defined as a location such as the following:

i. The shoulder of the roadway that is wide enough that three or more vehicles can be parked in a safe manner.

ii. A parking area that can be utilized either by permission of the owner or a business parking lot for which the business is closed.

iii. The pull off area is necessary to avoid any lane blockage for prolonged periods and to provide for motorists and officer safety.

h. After completing the document/vehicle inspection or taking enforcement action and no arrests are made, law enforcement officers shall:

i. Thank the vehicle operator/occupants for the cooperation extended. ii. Promptly release the vehicle and occupants.

i. The additional patrol unit(s), positioned at each end of the checkpoint area, shall provide back-up for the officers conducting the checkpoint and shall conduct traffic stops in a situation where a vehicle, after observing the portable signs, takes evasive action to avoid entering the checkpoint area.

7. Upon completion of a vehicle safety checkpoint operation, all signs will be removed from alongside the roadway and returned to agency storage. Policy 403 Page 4

8. Agency personnel assigned to a vehicle safety checkpoint operation must first attend a briefing for which a supervisor or designee will further familiarize personnel with agency operational procedures, discuss the location of the checkpoint and emphasize officer safety.

9. Information about any vehicle safety checkpoint operation, or subsequent arrests or seizures as a result of the operation, will be released to the news media in accordance with departmental policy concerning Freedom of Information.

10. At the conclusion of a vehicle safety checkpoint operation, the Chief or supervising officer in charge will assign one of the officers involved in the checkpoint to complete a full report outlining the details associated with the operation. The report shall include the date, time, and location of the checkpoint; personnel assigned including the use of a K-9 and in what capacity each individual was utilized; results of the operation such as, arrests made, searches conducted and items seized subsequent to the search; and any other information specific to the particular event.

11. A completed report shall be forwarded to the supervising officer making the assignment. The supervising officer shall forward a copy to the Criminal Investigation Division for investigative purposes if necessary. The original report shall be filed within the Police Department in accor- dance with departmental filing procedures.

12. Law enforcement officers of this agency may conduct a Vehicle Checkpoint operation in conjunction with other law enforcement agencies within the City only if the cooperating agency will agree to comply with the specific requirements set forth within this policy.

Source: Reprinted courtesy of Pine Bluff, AR, Police Department.


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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. In Lidster, police briefly detained motorists to ask them if they had any information about a hit-and-run accident between a vehicle and a bicycle that had taken place a week before at the same location. A driver entered the checkpoint, swerved, and nearly hit an officer. He was stopped and subjected to a field sobriety test. He was convicted of drunk-driving and later challenged the constitutionality of the checkpoint. The Supreme Court disagreed, thus permitting yet another type of checkpoint.

OTHER TYPES OF CHECKPOINTS Still other types of checkpoints have come to the Supreme Court’s attention. In United States v. Villamonte-Marquez, for example, the Court distinguished stops of boats on water from stops of vehicles on land. In that case, customs officers stopped and boarded a person’s boat to inspect documents in accordance with 19 U.S.C. Section 1581(a), which permits officers to board any vessel, at any time, without justification, to examine the vessel’s manifest or other docu- ments. While onboard the defendant’s boat, one of the customs officers smelled what he thought was marijuana. Looking through an open hatch, the officer spotted bales that turned out to contain marijuana. The Court noted that fixed checkpoints are not possible, given the expansiveness of open water, so it relied on different reasoning. The Court noted that boardings such as that in Villamonte-Marquez are essential to ensure enforcement of the law in waters, “where the need to deter or apprehend drug smugglers is great” (p. 593). Key restrictions the Court did impose, though, were that such detentions be brief and limited to the inspection of documents. The reason the seizure of the marijuana was upheld in Villamonte-Marquez was that the contraband was in plain view.

Airport checkpoints are also authorized, and there is no need for probable cause or reasonable suspicion in such situations. According to the Ninth Circuit, “The need to prevent airline hijacking is unquestionably grave and urgent. . . . A pre-boarding screening of all passengers and carry-on 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]). Another court reached a similar conclusion (United States v. Lopez, 328 F. Supp. 1077 [E.D.N.Y. 1971]). And the Fifth Circuit’s opinion in United States v. Skipwith (482 F.2d 1272 [5th Cir. 1971]) is particularly helpful:

[T]he intrusion which the airport search imposes on the public is not insubstan- tial. It is inconvenient and annoying, in some cases it may be embarrassing, and at times it can be incriminating. There are several factors, however, which make this search less offensive to the searched person than similar searches in other contexts. One such factor is the almost complete absence of any stigma attached to being subjected to search at a known, designated airport search point. . . . In addition, the offensiveness of the screening process is somewhat mitigated by the fact that the person to be searched must voluntarily come to and enter the search area. He has every opportunity to avoid the procedure by not entering the boarding area. Finally, the circumstances under which the airport search is conducted make it much less likely that abuses will occur. Unlike searches conducted on dark and lonely streets at night where often the officer and the subject are the only witnesses, these searches are made under supervision and not far from the scrutiny of the traveling public. Moreover, the airlines, which have their representatives present, have a

Illinois v. Lidster (540 U.S. 419 [2004])


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definite and substantial interest in assuring that their passengers are not unnecessarily harassed. The officers conducting the search under these cir- cumstances are much more likely to be solicitous of the Fourth Amendment rights of the traveling public than in more isolated, unsupervised surroundings. (pp. 1275–1276)

Note that airport screenings are now conducted by public as opposed to private actors. Prior to the September 11, 2001, terrorist attacks on the World Trade Center and the Pentagon, airport inspections were conducted by private security companies. Now, they are conducted by Transportation Safety Administration (TSA) officials, who are employed by the federal government. This change is of no consequence to the constitu- tionality of airport screenings, however, even though such inspections are today sometimes more intrusive than prior to September 11 (e.g., “shoe searches” and searches at the boarding gate in addition to at the main security checkpoint).

UNCONSTITUTIONAL CHECKPOINTS The administrative rationale is not acceptable, by comparison, to detect evidence of criminal activity. This was the decision reached in City of Indianapolis v. 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. Here is how the Supreme Court described the checkpoints:

The city of Indianapolis operated a checkpoint program under which the police, acting without individualized suspicion, stopped a predetermined number of vehicles at roadblocks in various locations on city roads for the primary purpose of the discovery and interdiction of illegal narcotics. Under the program, at least one officer would (1) approach each vehicle, (2) advise the driver that he or she was being stopped briefly at a drug checkpoint, (3) ask the driver to produce a driver’s license and the vehicle’s registration, (4) look for signs of impairment, and (5) conduct an open-view examination of the vehicle from the outside. In addition, a narcotics-detection dog would walk around the outside of each stopped vehicle. (p. 32)

The Court held that stops such as those conducted during Indianapolis’s check- point operations require individualized suspicion. In addition, “because the checkpoint program’s primary purpose [was] indistinguishable from the general interest in crime control” (p. 44), it was deemed violative of the Fourth Amendment.

School Discipline

Public school administrators and teachers may “search” a student without a warrant if they possess 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” (p. 381). This was the decision reached in New Jersey v. T.L.O. (469 U.S. 325 [1985]). In T.L.O., a high school student was caught smoking in a school bathroom (in violation of school policy) and was sent to the vice principal. When the vice principal searched the student’s purse for cigarettes, he also found evidence implicating the student in the sale of marijuana. The Court held that the evidence was admissible because the administra- tor had sufficient justification to search the purse for evidence concerning the school’s antismoking policy.

New Jersey v. T.L.O. (469 U.S. 325 [1985])


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A Constitutionally Valid Checkpoint?

The facts from an actual case follow. Was this action constitutional?

During the spring and summer of 1992, street crime, including four drive-by shootings, esca- lated in the Soundview neighborhood of the Bronx. In response, the 43rd precinct instituted the so-called Watson Avenue Special Operation. This involved a temporary vehicular checkpoint in an eight square-block narcotics-ridden area where most of the drive-by shootings had taken place. The checkpoint was to be active three days a week on a random basis and for approximately six hours a day, primarily in the evening hours. When the checkpoint was in operation, officers manning the barricade were to stop every vehicle

seeking to enter the area in order to ascertain the driver’s connection to the neighborhood. Drivers who approached the checkpoint were to be allowed to avoid questioning by driving around the area or by parking their cars and entering the area on foot. Area residents and commercial vehicles were to be allowed into the neighbor- hood. Officers manning the barricades were verbally instructed that they could also allow cars dropping off small children or visiting the local church to enter the area. Other than that, vehicles were not permitted beyond the barricades. The operation was in effect for six weeks, between August 26 and October 10, 1992 (Maxwell v. City of New York, 102 F.3d 664 [2d Cir. 1996], p. 665).

LOCKER CHECKS AND DRUG DOG “SNIFFS” A handful of lower court decisions concern inspections of public school students’ lockers as well as drug dog “sniffs” for the purpose of detecting illicit drugs. First, random, suspicionless 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 (see Commonwealth v. Cass, 709 A.2d 350 [Pa. 1998]). However, “searches” of specific lockers would still be subject to the reasonableness test set forth in T.L.O.

In support of its decision in T.L.O., the Court noted that a warrant requirement “would unduly interfere with the maintenance of the swift and informal disciplinary procedures needed in the schools . . . [and] . . . the substantial need of teachers and admin- istrators for freedom to maintain order in the schools” (p. 376). The majority further stated that 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’ ” (p. 341).

There are important limits on school discipline searches, especially in light of the Supreme Court’s decision in Safford Unified School District v. Redding (No. 08-479 [2009]). In that case, Savana Redding, an eighth grader, was “strip searched” by school officials on a belief that she was in possession of certain nonprescription medications, in violation of school policy. Writing for the majority, Justice Souter found that the search violated the Fourth Amendment because there was no “ . . . indication of danger to the students from the power of the drugs or their quantity and any reason to suppose that (Redding) was carrying pills in her underwear.” More than just reasonable suspicion is necessary, then, to support particularly intrusive searches of this nature—for school discipline, but also in the workplace.

Note that T.L.O. concerns students in kindergarten through grade 12. A different story emerges in the context of public and private universities. The courts have generally held that the Fourth Amendment is applicable at the university level. That is, for university personnel to conduct searches of students’ dorm rooms, lockers, and so on, some level of justification is required.


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With regard to the use of drug dogs, the Fifth Circuit held that so-called sniffs of lockers and cars in public schools are constitutional (Horton v. Goose Creek Independent School District, 690 F.2d 470 [5th Cir. 1982]). The court reasoned that lockers and cars were inanimate objects located in a public place.

Then there is the Seventh Circuit’s controversial holding in Doe v. Renfrow (631 F.2d 91 [7th Cir. 1980]) that the exploratory sniffing of students (as opposed to their property) was not a search. The Seventh Circuit affirmed the lower federal court’s observation that “the presence of the canine team for several minutes was a minimal intrusion at best and not so serious as to invoke the protections of the Fourth Amendment” (Doe v. Renfrow, 475 F. Supp. 1012 [1979], p. 1020). In another appellate court case, though, the Ninth Circuit held that dog sniffs of students’ possession implicate the Fourth Amendment and require probable cause (B.C. v. Plumas Unified School District, 192 F.3d 1260 [9th Cir. 1999]). This is a disagreement between federal circuits that is ripe for some Supreme Court resolution.

“Searches” of Government Employees’ Offices

In a case very similar to T.L.O., although not involving a public school student, the Court held that neither a warrant nor probable cause was required to “search” a gov- ernment 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” (O’Connor v. Ortega, 480 U.S. 709 [1987]). Justice O’Connor summarized the Court’s reasoning: “[T]he delay in correcting the employee misconduct caused by the need for probable cause rather than reasonable suspicion will be translated into tangible and often irreparable damage to the agency’s work, and ultimately to the public interest” (p. 724). It is important to note, however, that the Court was limiting its decision strictly to work-related matters: “[W]e do not address the appropriate standard when an employee is being investigated for criminal misconduct or breaches of other nonwork-related statutory or regulatory standards” (p. 729). The Court further noted in Ortega that the appropriate standard by which to judge such “searches” is reas- onableness:

We hold, therefore, that public employer intrusions on the constitutionally protected privacy interests of government employees for noninvestigatory, work-related purposes, as well as for investigations of work-related mis- conduct, should be judged by the standard of reasonableness under all the circumstances. Under this reasonableness standard, both the inception and the scope of the intrusion must be reasonable. (pp. 725–726)

Recently, the Supreme Court was confronted with the question of whether a police officer’s employer could examine the content of messages sent via a pager. Ontario, California, police officers were given department-issued pagers. When one of them exceeded the number of allotted monthly messages, the department acquired tran- scripts of the officer’s messages, learned that some of them were sexually explicit, and then disciplined the officer accordingly. He sued under Section 1983, alleging his Fourth Amendment rights were violated. However, the Supreme Court disagreed, holding that the department’s “search” of the pager message contents was reasonable (City of Ontario v. Quon, No. 08-1332 [2010]).

At the risk of confusing matters, it should be pointed out that reasonableness in the context of public school student and government employee “searches” is not the same as reasonable suspicion. The latter refers to a certain level of suspicion, while the former focuses on the procedural aspects of the actions in question (e.g., Did authorities go too far in


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Searches of Government Employees

Federal law enforcement agents suspected that several employees in a government agency were engaged in criminal wrongdoing. Several of the agency’s records were subpoenaed. To ensure that the records were being prepared in accordance with the subpoena, the agents visited the government agency. During the course of their visit, the director of the agency was

asked to open an employee’s office. Upon looking in the employee’s office, the agents found incriminating documents and seized them. They also searched the employee’s file cabinet and found more incriminating documents, which were also seized. Is this a valid search of a government employee’s office, as authorized by O’Connor v. Ortega (480 U.S. 709 [1987])?

looking for evidence?). The distinction between reasonableness and reasonable suspicion is a subtle but important one—hence, the reason for discussing disciplinary and work-related “searches” in the section on administrative justification.

Perhaps more important, none of the foregoing applies to individuals employed in private companies. The reason for this should be fairly clear: Private employees work for private employers, the latter not being bound by the strictures of the Fourth Amendment. Stated simply, private employers can search private employees’ lockers, desks, and the like without infringing on any constitutional rights.

Drug and Alcohol Testing

The Supreme Court has, especially recently, decided on the constitutionality of drug and alcohol testing programs. Three lines of cases can be discerned: (1) employee testing, (2) hospital patient testing, and (3) school student testing. Cases involving drug and alcohol testing of each of these three groups are reviewed in the following subsections.

DRUG AND ALCOHOL TESTING OF EMPLOYEES The Supreme Court has permitted war- rantless, suspicionless 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, citing two reasons for its decision. The first was deterrence; without suspicionless drug testing, there would be no deterrent to employ- ees to stay off drugs. The second reason was that drug testing promotes businesses’ interest in obtaining accurate information about accidents and who is responsible. In Skinner, Justice Stevens made this observation:

Most people—and I would think most railroad employees as well—do not go to work with the expectation that they may be involved in a major accident, particularly one causing such catastrophic results as loss of life or the release of hazardous material requiring an evacuation. Moreover, even if they are conscious of the possibilities that such an accident might be a contributing factor, if the risk of serious personal injury does not deter their use of these substances, it seems highly unlikely that the additional threat of loss of employment would have any effect on their behavior. (p. 634)

Two interesting limitations should be noted about both these cases. The first is that the Court did not decide whether warrantless, suspicionless drug testing could be used


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for law enforcement purposes. Rather, such testing was held to be constitutional for regulatory reasons. Second, both cases focused on federal regulations: Federal Railroad Administration guidelines in Skinner and U.S. Customs Service Policy in National Treasury Employees Union. Left open was the question of private business policy. Nevertheless, the courts have since upheld drug and alcohol testing of teachers, police officers, and several other groups.1

This line of cases would seem to suggest that employee drug testing is becoming increasingly common across the United States. While it is certainly true that more employees are subject to drug testing now than in the past, the Supreme Court has clearly stated that certain drug testing policies are unconstitutional. For example, in Chandler v. Miller (520 U.S. 305 [1997]), the Court struck down a Georgia statute that required every person seeking nomination or election to undergo a test for illegal drugs.

DRUG AND ALCOHOL TESTING OF HOSPITAL PATIENTS In a recent case, Ferguson v. Charleston (532 U.S. 67 [2001]), the Supreme Court addressed the constitutionality of drug testing of hospital patients. In the fall of 1988, staff at the Charleston, South Carolina, public hospital became concerned over the apparent increase in the use of cocaine by patients who were receiving prenatal treatment. Staff at the hospital approached the city and agreed to cooperate in prosecuting pregnant mothers who tested positive for drugs. A task force was set up, consisting of hospital personnel, police, and other local officials. The task force formulated a policy for how to conduct the tests, preserve the evidence, and use it to prosecute those who tested positive. Several women tested positive for cocaine. The question before the Supreme Court was, Is the Fourth Amendment violated when hospital personnel, working with the police, test pregnant mothers for drug use without their consent? Not surprisingly, the Court answered “yes”:

Because the hospital seeks to justify its authority to conduct drug tests and to turn the results over to police without the patients’ knowledge or consent, this case differs from the four previous cases in which the Court considered whether comparable drug tests fit within the closely guarded category of constitutionally permissible suspicionless searches . . . . Those cases employed a balancing test weighing the intrusion on the individual’s privacy interest against the “special needs” that supported the program. The invasion of privacy here is far more substantial than in those cases. In previous cases, there was no misunderstanding about the purpose of the test or the potential use of the test results, and there were protections against the dissemination of the results to third parties. Moreover, those cases involved disqualification from eligibility for particular benefits, not the unauthorized dissemination of test results. The critical difference, however, lies in the nature of the “special needs” asserted. In each of the prior cases, the “special need” was one divorced from the State’s general law enforcement interest. Here, the policy’s central and indispensable feature from its inception was the use of law enforcement to coerce patients into substance abuse treatment. (pp. 77–78)

1 P. T. Bookspan, “Jar Wars: Employee Drug Testing, the Constitution, and the American Drug Problem,” American Criminal Law Review 26 (1988): 359–400.


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Drug Testing of Students

The school board approved a policy prohibiting a high school student from participating in any extracurricular activities or driving to and from school unless the student and his or her parent or guardian consented to and passed tests for drugs, alcohol, and tobacco in random, unannounced urinalysis examinations. (Extracurricular activities include not only athletic teams but also organizations such as the student council, foreign language clubs, and so on.) When consent for testing

had been given and the individuals had taken and passed the tests, then participation in the extracurricular organizations or driving to and from school would be permitted. The testing was to be conducted by Acme Toxicology Services, which would collect the samples, and the local hospital’s laboratory services division, which would perform the tests. Can this type of random, suspicionless drug testing be considered an administrative search?

DRUG AND ALCOHOL TESTING OF SCHOOL STUDENTS The Supreme Court has recently extended its drug testing decisions to include public school students. Specifically, in Vernonia School District 47J v. Acton (515 U.S. 646 [1995]), the Court upheld a random drug testing program for school athletes. The program had been instituted because the district had been experiencing significant student drug use. Under the program, all students who wished to play sports were required to be tested at the beginning of the season and then retested randomly later in the season. The Court noted that athletes enjoy a lesser expecta- tion of privacy, given the semipublic nature of locker rooms, which is where the testing took place. Also, athletes are often subject to other intrusions, including physical exams, so drug testing involved a “negligible” privacy intrusion, according to the Court.

Even more recently, the Supreme Court affirmed Vernonia School District. The case of Board of Education v. Earls (536 U.S. 822 [2002]) dealt with another student drug testing policy. The Student Activities Drug Testing Policy, implemented by the Board of Education of Independent School District no. 92 of Pottawatomie County, required students who participate in extracurricular activities to submit to random, suspicionless drug tests. Urine tests were intended to detect the use of illegal drugs. Together with their parents, two students, Lindsay Earls and Daniel James, brought a Section 1983 lawsuit against the school district, alleging that the drug testing policy violated the Fourth Amendment, as incorporated to the states through the due process clause of the Fourteenth Amendment. The district court found in favor of the school district, but the Tenth Circuit Court reversed the decision, holding that the policy violated the Fourth Amendment. It concluded that random, suspicionless drug tests would only be permissible if there were some identifiable drug abuse problem. However, the Supreme Court held that random, suspicionless drug testing of students who participate in extracurricular activities “is a reasonable means of furthering the School District’s important interest in preventing and deterring drug use among its schoolchildren and does not violate the Fourth Amendment” (p. 822).

Probation and Parole Supervision

A person on probation enjoys a lesser expectation of privacy than the typical citizen. 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. The majority (of only five justices) concluded that probation supervision “is a ‘special need’ of the State permitting a degree of impingement upon privacy that would not be constitutional if applied to the public at large” (p. 875). The same principle almost certainly applies to parolees, but the Supreme Court has not addressed this issue.

The Court has also ruled that evidence seized by parole officers during an illegal search and seizure need not be excluded at a parole revocation hearing (see Pennsylvania

Vernonia School District 47J v. Acton (515 U.S. 646 [1995])


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Chapter 7 • Actions Based on Administrative Justification and Consent 233

Board of Probation and Parole v. Scott, 524 U.S. 357 [1998]). This latter decision can be inter- preted to mean that the exclusionary rule does not apply in parole revocation hearings. A warrant requirement, the Court noted, “would both hinder the function of state parole systems and alter the traditionally flexible, administrative nature of parole revocation proceedings” (p. 364).

More recently, in United States v. Knights (534 U.S. 112 [2001]), the Supreme Court held that warrantless searches of probationers are permissible not only for probation- related purposes (e.g., to ensure that probation conditions are being conformed with) but also for investigative purposes. In that case, a probationer was suspected of vandalizing utility company facilities. A police detective searched the probationer’s residence and found incriminating evidence. The Supreme Court held that “[t]he warrantless search of Knights, supported by reasonable suspicion and authorized by a probation condition, satisfied the Fourth Amendment” (p. 112).

Needless to say, all three of the aforementioned decisions do not provide a great deal of guidance to probation officers on the streets. Griffin, for example, dealt with the constitu- tionality of one statute in one state. This means that probation officers are mostly forced to turn to state-level supreme court decisions for guidance. The California Supreme Court has offered some clarification with regard to searches-and-seizures by probation officers that the Supreme Court has not; but of course, its decisions are limited to California. Some interesting decisions from that state are worth considering, nonetheless.

MORE LATITUDE AT THE STATE LEVEL Probation officers are often given even more latitude at the state level. For example, two weeks after the Supreme Court decided Griffin, the California Supreme Court decided People v. Bravo (738 P.2d 336 [Cal. 1987]), cert. denied, 485 U.S. 904 [1988]). The issue in that case was the constitutionality of a warrantless search conducted in accordance with a probation contract that required the probationer to “sub- mit his person and property to search or seizure at any time of the day or night by any law enforcement officer with or without a warrant” (p. 337, n. 1). Relying on the U.S. Supreme Court’s decision in Schneckloth v. Bustamonte (412 U.S. 218 [1973]), California’s high court ruled that because the search was conducted pursuant to the probationer’s voluntary consent (i.e., consent given when the probationer agreed to the terms specified in the probation contract), it would violate the Fourth Amendment only if it exceeded the scope of the probationer’s consent. The same holds true even for searches of probationers by other peace officers. However, the court also stated that probation searches of the type arising in Bravo can only be conducted for “legitimate law enforcement purposes” and not “for harassment or . . . arbitrary and capricious reasons” (p. 342).

Notwithstanding the restrictions just mentioned, the California Supreme Court requires no justification for probation searches. In fact, the California courts have distin- guished Griffin by arguing that it only applies to searches conducted pursuant to a regu- latory scheme, in which the administrative justification balancing act comes into play. For example, in In re Marcellus L. (279 Cal. Rptr. 901 [Ct. App. 1991]), the court of appeal for California’s first district found that Griffin does not apply when the probationer expressly agrees to consent to searches as a condition of probation: “[T]he authority to search [in Griffin] existed by way of [Wisconsin’s] regulation, not because the defendant specifically agreed to submit to warrantless, unexpected searches” (p. 940).

POLICE/PROBATION PARTNERSHIPS A controversial practice closely connected to searches of probationers comes in the form of police/probation partnerships, a cutting-edge law enforcement strategy now being experimented with across the country. An example of one such 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


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A person who is on probation enjoys a lesser expectation of privacy than the average citizen.

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 like this seven nights a week.

Another example of a police/probation partnership in action is the IMPACT project in San Bernardino, California. The program was virtually identical to Boston’s. One difference was that the teams consisted of one San Bernardino police officer and one San Bernardino County probation officer. (Probation is a county-level function in California.) Also, all new probationers were under scrutiny.

What makes these and other police/probation partnerships interesting from a Fourth Amendment standpoint are the search-and-seizure implications. On one hand, these partnerships may be highly effective crime-reduction mechanisms. On the other hand, critics of police/probation partnerships claim that they are little more than a method of circumventing the Fourth Amendment’s probable cause and warrant requirements. In other words, critics claim that police officers use probation officers as “stalking horses” to skirt the Fourth Amendment. The California Supreme Court’s Bravo decision (discussed earlier), for example, permits warrantless, suspicionless searches of probationers, even by police officers.

Here again, due process and crime control collide. Police/probation partnerships may effectively reduce crime, but they may also compromise due process. Someday, the constitutionality of these partnerships will be decided in court. Most likely, the U.S. Supreme Court will decide on the matter in the near future. The Fourth Amendment implications are simply too serious to ignore.


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Florida v. Jimeno (500 U.S. 248 [1991])

Schneckloth v. Bustamonte (412 U.S. 218 [1973])

Samson v. California (547 U.S. 843 [2006])

Chapter 7 • Actions Based on Administrative Justification and Consent 235

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” (p. 843). What was the Court’s logic for this decision? It stated, “Parolees, 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” (p. 843).


Technically, most administrative exceptions to having a warrant require no justification. Rather, the courts focus on public safety versus individual privacy. That said, there is one clear-cut situation in which absolutely no justification or balancing act is required in order to decide on the constitutionality of a search. That situation is consent. 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. Consent searches must be voluntary, so several cases have focused on the meaning of that term. Other cases have defined the scope of consent searches, and still others have focused on whether a third-party individual can give consent in order to subject another person’s private effects to a search.


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]). When does duress or coercion take place? There is no clear answer to this question. 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]).

Importantly, consent to search may be valid even if the consenting party is unaware of the fact that he or she can refuse consent (Schneckloth v. Bustamonte). As the Court stated in Ohio v. Robinette (519 U.S. 33 [1996]), “[J]ust as it ‘would be thoroughly impractical to impose on the normal consent search the detailed requirements of an effective warning,’ so too would it be unrealistic to require police officers to always inform detainees that they are free to go before a consent to search may be deemed involuntary” (pp. 39–40). This view was recently reaffirmed in United States v. Drayton (536 U.S. 194 [2002]), a case involving consent searches of bus passengers. Nevertheless, the issue of one’s awareness of the right to refuse consent is still factored into the totality of circumstances analysis (e.g., United States v. Mendenhall, 446 U.S. 544 [1980]), although ignorance of the right to refuse is not enough, in and of itself, to render consent involuntary.

To err on the side of constitutionality, many police departments have suspects complete “consent to search” forms. An example of one such form, from the San Bernardino, California, Police Department, is shown in Figure 7.3.

Scope Limitations

The scope of a consent search is limited to the terms of the consent. In other words, the person giving consent delineates the scope. This was the decision reached in the case of Florida v. Jimeno (500 U.S. 248 [1991]). For example, if a person tells the police “You may look around,” it does not necessarily mean the police can look anywhere for evidence of criminal activity.


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236 Part 2 • Search and Seizure

FIGURE 7.3 Example of a Consent to Search Form

Crime Report No.____________


I, ______________________ give the San Bernardino Police Department my consent to search the below listed property.

Address: _________________________________City _______________________________

_____________________ Country _______________________________________________

Address: _______________________________City _________________________________

_______________________________ Country _____________________________________

Vehicle/s: Make __________Year ________________Veh. Lic. # _________________

Make _______________Year ________________Veh. Lic. # ____________

Other: ___________________________________________________________________________






Signed: ___________________

Date: ________________ Time: ___________________

Witness ________________ Witness ___________________

Source: San Bernardino, California, Police Department. Reprinted with permission.

Another issue concerning the scope of a consent search is whether consent can be withdrawn once given. In State v. Brochu (237 A.2d 418 [Me. 1967]), the Maine Supreme Court held that a defendant’s consent to search his house for evidence of his wife’s murder did not extend to another search carried out the day after he was arrested as a suspect. Thus, although the man did not expressly request that the search be terminated, the Maine court still decided that consent had been terminated. The Supreme Court has not directly decided whether consent can be withdrawn, however.

Third-Party Consent

A handful of Supreme Court cases have focused on whether a third party (the third party being someone other than the authority asking for consent to search and the individual whose property he or she hopes to search) can give consent to have another person’s property searched (e.g., a landlord consenting to have a tenant’s apartment searched;


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Illinois v. Rodriguez (497 U.S. 177 [1990])

United States v. Matlock (415 U.S. 164 [1974])

Chapter 7 • Actions Based on Administrative Justification and Consent 237


What Constitutes Voluntary Consent?

Here are some interesting facts from a real-world case: Several undercover police officers went to the apartment where it was believed a robbery suspect was hiding out. They did not have probable cause that the suspect was at that location, and indeed, they did not even know the suspect’s name, so no warrant was obtained. Rather, the visit was to be merely investigative, and it was hoped that enough information would be gleaned from the visit so a valid warrant could be obtained. The officers knocked on the apartment door, and the man who answered the door

fit the description of the suspect. The officers identified themselves, arrested the man, and conducted a protective sweep of the apartment, fearing that other dangerous indi- viduals may be present. Once the premises had been secured, the officers asked the suspect, who was seated at a table in handcuffs, to sign a “consent to search” form. The suspect said, “You go ahead and search, but I ain’t signing nothing.” Setting aside the issue of the constitutionality of the arrest and protective sweep, was the suspect’s consent voluntary?


Scope of Consent

Hector Lopez is stopped by the highway patrol for speeding. The officer who approaches his car asks if he will consent to a search of his vehicle. As reinforcements arrive, the officer states that they are concerned about drug smuggling on this stretch of freeway. Lopez gives consent and says, “Yes, you can search my car,” and so the officers subject the car to an intensive search. They remove every bag and every moveable item from

the vehicle and scrutinize each one carefully. They further check the spare tire compartment, engine compartment, and glove box and even the panels providing access to lighting, electrical, and so on. Have the officers exceeded the scope of Lopez’s consent? What if, instead, Lopez stated, “Yes you can search my car, but I’m late for a doctor’s appointment, so I have to leave in no more than five minutes”?

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. The reason children cannot give consent is that they are considered incompetent to give voluntary consent, given their age.

More confusing is the situation of a roommate, former girlfriend, friend, or extended family member. 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 (e.g., the room- mate) is not present (United States v. Matlock, 415 U.S. 164 [1974]). According to the Court, common authority rests on “mutual use of the property by persons generally having joint access or control for most purposes” (p. 172, n. 7). Thus, a third party could give consent to have a shared bathroom searched but not to have his or her roommate’s bedroom searched. What happens, however, if the nonconsenting party is present and affirmatively objects to the search? The courts are divided on this issue.

There are some clear-cut situations, in which two people possess common author- ity over a particular area, but what happens when it is not clear to officers at the scene whether common authority exists? In response to this question, 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 (Illinois v. Rodriguez, 497 U.S. 177 [1990]). The test for reasonableness in this situation, according to


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238 Part 2 • Search and Seizure

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?” (p. 179). Rodriguez involved consent given by a former girlfriend who possessed apparent authority to grant consent because she still had a key to her ex-boyfriend’s apartment.

Still other cases have focused on whether third-party individuals can give con- sent. Most cannot. For example, a landlord cannot give consent to search property rented to another person (Stoner v. California, 376 U.S. 483 [1964]), one lessor cannot give consent to search the premises of another lessor (United States v. Impink, 728 F.2d 1228 [9th Cir. 1985]), hotel clerks cannot give consent to search guests’ rooms (Stoner v. California), and college officials cannot give consent to search students’ dormitories (Piazzola v. Watkins, 442 F.2d 284 [5th Cir. 1971]). Note, however, that consent given by the driver of a vehicle to search any part of the vehicle is valid even if the driver is not the owner of the vehicle (United States v. Morales, 861 F.2d 396 [3rd Cir. 1988]).

What if both parties who have common authority are present when the police request consent, but one of them refuses consent and the other gives it? This issue came up in the case of Georgia v. Randolph (547 U.S. 103 [2006]), a case in which police were called to the scene of a domestic dispute. When the officers asked for consent to search, the husband unequivocally refused, but the wife readily consented. The officers took the wife up on her consent, searched the premises, and found cocaine. The husband was sought to have the cocaine excluded from his subsequent trial, but a Georgia trial court denied his motion. The Georgia Supreme Court reversed and the U.S. Supreme Court affirmed, holding that “a physically present co-occupant’s stated refusal to permit entry renders warrantless entry and search unreasonable and invalid” (p. 103).

“Knock and Talk”

So-called “knock and talk” consent searches are popular with law enforcement officers because of the difficulty of securing warrants in particular instances. The typical “knock and talk” scenario plays out when police officers approach someone’s house, knock on the front door, and request consent to search the home. In State v. Smith (488 S.E.2d 210 [N.C. 1997]), the North Carolina Supreme Court described the procedure as follows:

The “knock and talk” procedure is a tactic used by law enforcement . . . when they get information that a certain person has drugs in a residence but the officers don’t have probable cause for a search warrant. The officers then proceed to the residence, knock on the door, and ask to be admitted inside. Thereafter gaining entry, the officers inform the person that they’re investi- gating information that drugs are in the house. The officers then ask for permission to search and apparently are successful in many cases in getting the occupant’s “apparent consent.” (p. 212)

“Knock and talk” searches are controversial because they are not predicated on war- rants, probable cause, or both. Such searches strike at the cardinal Fourth Amendment principle that “physical entrance into the home of another without a warrant is the chief evil the Fourth Amendment has sought to alleviate” (Payton v. New York, 445 U.S. 573 [1980], p. 585). What makes “knock and talk” legal, in the strictest sense, however, is that the subsequent search is based on consent. Of course, though, the extent to which ordi- nary people are aware of their right to refuse consent is not altogether clear. To date, the Supreme Court has not ruled on the constitutionality of “knock and talk” practices. More than likely, the tactic will continue as long as consent is validly obtained. See Figure 7.4 for a list of questions that are commonly raised during a “knock and talk” situation.


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Chapter 7 • Actions Based on Administrative Justification and Consent 239

FIGURE 7.4 Questions Often Raised with Regard to “Knock and Talk” Searches

1. How is it known what was said? The wording used by the officer to gain consent is of paramount importance.

2. To what extent was a show of authority relied on by the officer? A show of authority may diminish voluntariness.

3. What is the scope of the search? The scope may be limited by the wording used by the officer or the consenting party.

4. Can the party that gives consent also terminate consent? Generally, yes, but who is to be trusted: the officer(s) or the consenting party?

5. What if the officer threatens to obtain a warrant? Doing so diminishes voluntariness, if not eliminates it.

6. What if the officer makes false statements to gain entry? There is no prohibition against using false statements, but doing so diminishes voluntariness.

7. Should the consenting party be advised of his or her Miranda rights? Giving the Miranda warnings is not necessary unless a custodial interrogation takes place.

8. Can a third party give consent? A third party can give consent only if he or she has authority (or apparent authority) to do so.

9. What if the consenting party is intoxicated? This factors into the voluntariness determination.

10. What if, during the course of a “knock and talk” procedure, exigent circumstances develop? A full search would be permissible under such circumstances.


The Bounds of “Knock and Talk”

In response to a neighbor’s complaint, two police officers arrive at a home where there is clearly a loud party taking place. They knock on the door and a person who is visibly intoxicated asks in a slurred manner, “What can I do for you, officers?” The officers respond, “We have received a complaint about the noise coming from your house. Would you please tone it down?” The drunk person at the door responds, “Yup, no problem.” At that point, the officers ask, “Do you mind if we

come in and take a look around?” The drunk responds, “Will you get a search warrant if I refuse?” The officers, in turn, respond, “Yes, we will.” The drunk then gives the officers per- mission to enter. Is doing so acceptable? In particular, assuming the officers do not have probable cause to get a warrant but rather lied in an effort to gain entry, will any contraband that might turn up during the course of the search be considered admissible in a criminal trial?



Actions based on administrative justification and con- sent require 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.

Actions based on administrative justification are rich in variety. They have been labeled special needs searches and regulatory searches, but to promote clarity,


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240 Part 2 • Search and Seizure

this chapter has used the language administrative justifica- tion to refer to all such actions. The most common actions based on administrative justification are inventories, inspections, checkpoints, school discipline, “searches” of government employees’ offices, drug and alcohol test- ing, and parole and probation supervision.


Inventories fall into two categories: (1) vehicle inven- tories 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 code inspection, requires a specific type of warrant, but a 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 sanc- tioned by 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 mainly for the purpose of identifying incoming individ- uals. 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. Checkpoints for determining sobriety, as well as license and safety checkpoints, are constitutionally permissible but must also conform to department policies. Other types of checkpoints, such as airport security checkpoints, have been acknowledged by the Supreme Court and deemed constitutional. Checkpoints intended for the sole purpose of detecting criminal activity are unconsti- tutional, however.

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. A traditional Fourth Amendment approach has been adopted for searches of college students. Drug dog “sniffs” of public school students have not been ruled on by the Supreme Court. For now, it appears that the police have fairly wide latitude in this area.

“Searches” of government employees’ offices are permissible with neither a warrant nor probable cause but must amount to noninvestigatory work- related intrusions or investigatory searches for evidence of suspected work-related employee mis- conduct. When the object of interest in the “search” is evidence of non-work-related criminal misconduct, a warrant is required. None of the foregoing applies to private employees. That is, private employees do not enjoy Fourth Amendment protection because their employers are not government actors.

As for drug and alcohol testing, employees and public school students can be screened for sub- stance use but only by properly trained individuals following appropriate policies (e.g., nurses). Hospital patients, however, cannot be subjected to drug and alcohol testing. Probation supervision permits warrantless searches premised on reason- able grounds. Some state Supreme Court decisions have suggested that no justification is necessary— that such searches are consented to as a result of the probation agreement.


Consent searches are constitutional, but consent must be voluntary, as determined by the totality of circum- stances. 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 controver- sial 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. This concludes Part II, the section on search-and-seizure. Figure 7.5 briefly summarizes, in question-and-answer format, the issues discussed in this and the last four chapters. It serves as a helpful guide for determining the consti- tutionality of searches, seizures, and similar types of law enforcement action.


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Chapter 7 • Actions Based on Administrative Justification and Consent 241

FIGURE 7.5 Guide to the Fourth Amendment

A. Does the Fourth Amendment apply? Each of the questions 1–4 must be answered yes for the amendment to apply.

1. Does the person have standing? 2. Is the evidence in question a person, house, paper, or effect? 3. Is the conduct governmental? 4. Has a reasonable expectation of privacy been infringed upon, or has a seizure

occurred? If all of the questions were answered yes, then proceed to B.

B. Was the conduct in question justified? 1. Identify the type of intrusion (e.g., search, stop, arrest, nonsearch). 2. For the type identified, identify the level of justification required (e.g., probable

cause, reasonable suspicion, administrative justification). If there is a mismatch, between the type and level of justification, then the conduct in question was not justified. If there is not a mismatch, go to C.

C. Was a warrant required? If yes, answer questions 1–3. If no, move to D.

1. Was it issued by a neutral and detached magistrate? 2. Was it supported by probable cause? 3. Was the particularity requirement satisfied? All three questions must be answered yes for the warrant to be valid.

D. If a warrant was not required, were the prerequisites met for a warrantless search or seizure? The answer to this question requires revisiting the material set forth in this and earlier chapters.

E. Any no answers and/or inappropriate justification will result in exclusion of evidence.

Key Terms

apparent authority 237 checkpoints 221 closely regulated

business 218

common authority 237 consent search 235 drug and alcohol

testing 230

“knock and talk” 238 person inventory 215 police/probation

partnerships 233

school disciplinary “searches” 227

vehicle inventory 214

Key Cases


• South Dakota v. Opperman, 428 U.S. 364 (1976) • Colorado v. Bertine, 479 U.S. 367 (1987) • Illinois v. Lafayette, 462 U.S. 640 (1983)


• Camara v. Municipal Court, 387 U.S. 523 (1967) • Wyman v. James, 400 U.S. 309 (1971) • Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970)


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242 Part 2 • Search and Seizure

• United States v. Biswell, 406 U.S. 311 (1972) • Michigan v. Tyler, 436 U.S. 499 (1978) • United States v. Ramsey, 431 U.S. 606 (1977)


• United States v. Martinez-Fuerte, 428 U.S. 543 (1976) • Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990) • Illinois v. Lidster, 540 U.S. 419 (2004) • City of Indianapolis v. Edmond, 531 U.S. 32 (2000)

Other Administrative Searches

• New Jersey v. T.L.O., 469 U.S. 325 (1985) • O’Connor v. Ortega, 480 U.S. 709 (1987)

• Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 (1989)

• Ferguson v. Charleston, 532 U.S. 67 (2001) • Vernonia School District 47J v. Acton, 515 U.S. 646 (1995) • Board of Education v. Earls, 536 U.S. 822 (2002) • Griffin v. Wisconsin, 483 U.S. 868 (1987) • Samson v. California, 547 U.S. 843 (2006)


• Schneckloth v. Bustamonte, 412 U.S. 218 (1973) • Florida v. Jimeno, 500 U.S. 248 (1991) • United States v. Matlock, 415 U.S. 164 (1974) • Illinois v. Rodriguez, 497 U.S. 177 (1990)

Review Questions

1. In what ways do actions based on administrative justifi- cation get around the requirements of the Fourth Amendment?

2. What types of inventories have been permitted by the Supreme Court? Explain the restrictions on each.

3. What types of inspections have been permitted by the Supreme Court? Explain the restrictions on each.

4. Distinguish between border checkpoints and illegal immigrant checkpoints.

5. Are sobriety and license and safety checkpoints valid? If so, when?

6. At what point do checkpoints become unconstitutional? 7. What are school disciplinary searches? What, if any,

justification is required to conduct such searches?

8. Under what circumstances are suspicionless searches of government employees’ offices constitutional?

9. Summarize the Supreme Court case law involving drug testing.

10. Explain the Supreme Court’s decision in Griffin v. Wisconsin. How influential is this case in terms of proba- tion supervision?

11. Why are police/probation partnerships controversial? 12. Summarize the requirements for a valid consent search. 13. Under what circumstances can a third party give

consent to have another person’s property searched? 14. Explain the law enforcement practice known as “knock

and talk.”

Web Links and Exercises

1. Border checkpoints: Read the Government Accountability Office’s report concerning the performance of border checkpoints, particularly those located in interior areas.

URL: (accessed February 16, 2011).

2. Vehicle checkpoints: Read about the opposition to vehi- cle checkpoints. Are the critics’ argument meritorious?

Suggested URL: (accessed February 16, 2011)

3. Virtual strip searches: Read about how advanced imag- ing technology works.

Suggested URL: index.shtm (accessed February 16, 2011)

4. Police/probation partnerships: Read about varieties of police/probation partnerships. Which is likely to be most effective?

URL: (accessed February 16, 2011).

5. Consent searches: Read Carl Benoit’s article about consent searches. Focus closely on the section about a “physically present objector.” What rules should officers follow?

URL: law-enforcement-bulletin/2008-pdfs/july08leb.pdf/ at_download/file (accessed February 16, 2011)


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Criminal Procedure: From First Contact to Appeal, Fourth Edition, by John L. Worrall. Published by Pearson. Copyright © 2012 by Pearson Education, Inc.