I. When Does the Fourth Amendment Apply?... 1 Government Action..1 Expectation of Privacy 1 Seizure.3

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1 Fourth Amendment: A Primer on Search & Seizure Law Maine Federal Defender s Office David Beneman, FD & Katlyn Davidson, Esq. Wednesday, January 20, 2010 I. When Does the Fourth Amendment Apply?... 1 Government Action..1 Expectation of Privacy 1 Seizure.3 II. When Is a Seizure Illegal Under the Fourth Amendment? 3 Probable Cause to Arrest 3 Arrest Warrant 4 III. When Is a Search Illegal Under the Fourth Amendment?.4 Search Warrant 4 Probable Cause to Search 5 Good Faith Reliance...5 Execution of Warrant..5 IV. Exceptions to the Warrant Requirement... 6 Consent...6 Plain View...7 Investigative Detention (Terry Stop & Frisk).7 Search Incident to Arrest 8 Exigent Circumstances 9 Automobile Exception..10 Inventory Searches 10 Special Needs Searches.10 Border Searches...11 V. What is the Remedy for an Illegal Search or Seizure?...11 Exclusionary Rule.11 Knock & Announce Exception.12 Independent Source Rule..12 Inevitable Discovery.12

2 I. WHEN DOES THE FOURTH AMENDMENT APPLY? (1) General Rule: The protections of the Fourth Amendment apply only when the search or seizure is the product of government action AND the search or seizure violates an individual s reasonable expectation of privacy. (2) Government Action v. Private Action: Intrusions by private actors are not protected and evidence derived from private intrusions is not covered by the exclusionary rule. 1 a. Private action amounts to government action when the totality of the circumstances indicates that the private actor was acting as an instrument or agent of the government. 2 For example, public school teachers are government actors and a private employer performing drug testing mandated by government regulations qualifies as government action. 3 b. Private action can become government action when government actors exceed the scope of the initial search performed by the private actor. 4 (3) Reasonable Expectation of Privacy: To determine whether there is a legitimate expectation of privacy, the item at issue must satisfy an objective and subjective standard. a. Objective Standard: Society must accept the expectation of privacy as reasonable. 5 Common Examples of Expectation of Privacy: 1. An individual s home and the curtilage. 2. Items, although out in public, that the owner seeks to preserve as private, such as items enclosed in a purse or duffle bag. 6 Common Examples of NO Expectation of Privacy: These are recognized as sufficiently public in nature that they carry no reasonable expectation of privacy. 1. Items available to the public, such as in a store Records given voluntarily to a private institution, such as a bank Physical characteristics constantly exposed to the public, such as one s voice and handwriting. 9 1 Burdeau v. McDowell, 256 U.S. 465 (1921); Coolidge v. New Hampshire, 403 U.S. 443 (1971); Walter v. United States, 447 U.S. 649 (1980). 2 Coolidge v. New Hampshire, 403 U.S. 443 (1971). 3 Board of Education v. Earls, 536 U.S. 822 (2002); Skinner v. Railway Labor Executives Ass n, 489 U.S. 602 (1989) 4 United States v. Jacobsen, 466 U.S. 109 (1984). 5 Katz v. United States, 389 U.S. 347 (1967) 6 Bond v. United States, 529 U.S. 334 (2000) 7 Maryland v. Macon, 472 U.S. 463 (1985) 8 United States v. Miller, 425 U.S. 435 (1976) 9 United States v. Dionisio, 410 U.S. 1 (1973); United States v. Mara, 410 U.S. 291 (1973) 1

3 i. More intrusive physical characteristics, such as scrapings from fingernails are considered to be private Abandoned property including garbage left at the curb Observations made from flying in public air space Open fields, including anything that can be seen in or across, even if efforts are made to isolate the fields from public use Investigatory devices used by police, such as a telescope or GPS unit used to track whereabouts of a container on commercial property or a vehicle. 14 i. BUT trackers and thermal imaging used to track activity in one s home violates the expectation of privacy Use of dogs to perform a sniff test. 16 Upcoming Supreme Court Case - City of Ontario v. Quon: The Supreme Court will decide this term whether an employee has an expectation of privacy in text messages sent on government provided pagers. The government s policy allowed light personal use of the pagers but reserved the right to monitor network activity, stating employees should have no expectation of privacy in their use. The Ninth Circuit had ruled in favor of the employee, finding review of the messages violated his constitutional privacy rights. b. Subjective Standard (Standing): The individual asserting an illegal search or seizure must also have an actual or personal expectation of privacy in the place or thing searched or seized. 17 Overnight guests have an expectation of privacy in another s home but individuals who are merely present at the time do not. 18 Passengers do not have a personal expectation of privacy in the search of a car that they do not own. 19 Recent Supreme Court Development - Brendlin v. California: Passengers of a car have standing to claim an unlawful seizure during a traffic stop (despite lacking ownership of the stopped vehicle) and then can successfully claim that a subsequent search of their person and of the car is illegal as fruits of the illegal seizure Cupp v. Murphy, 412 U.S. 291 (2003) 11 California v. Greenwood, 486 U.S. 35 (1988) 12 California v. Ciraolo, 476 U.S. 207 (1986); Florida v. Riley, 488 U.S. 445 (1989). 13 Oliver v. United States, 466 U.S. 170 (1984). 14 United States v. Knotts, 460 U.S. 276 (1983); United States v. Karo, 468 U.S. 705 (1984). 15 Kyllo v. United States, 533 U.S. 27 (2001) 16 United States v. Place, 462 U.S. 696 (1983); United States v. Caballes, 543 U.S. 405 (2005) 17 Rakas v. Illinois, 439 U.S. 128 (1978); Bond v. United States, 529 U.S. 334 (2000). 18 Minnesota v. Olson, 495 U.S. 91 (1990); Minnesota v. Carter, 525 U.S. 83 (1998). 19 Rakas v. Illinois, 439 U.S. 128 (1978). 20 Brendlin v. California, 551 U.S. 249 (2007). 2

4 (4) Seizure Standards: a. Seizure of an Item: Seizure of an item occurs when there is some meaningful interference with individual s possessory interest in the item. 21 b. Seizure of a Person: A person is seized when, given the totality of the circumstances, a reasonable person would have believed she was not free to leave. 22 For a seizure to occur, there must be some use of physical force however slight OR some show of authority, but in the case of a show of authority, alone, an individual is not seized if he does not submit. 23 NO Seizure When: 1. Consensual encounter with police Police do not need to have a basis to suspect an individual; they can ask questions, ask for identification, and ask for consent to search without the encounter amounting to seizure IF a reasonable person would still feel free to deny the requests Officers not brandishing a weapon, or not blocking egress are factors that go against finding of seizure. 26 Unreasonable Seizure When: 1. Absent probable cause or judicial authorization, involuntary removal of a suspect from his home to the police station was an unreasonable seizure. 27 II. WHEN IS A SEIZURE ILLEGAL UNDER THE FOURTH AMENDMENT? (1) General Rule: A seizure (arrest) is illegal under the Fourth Amendment when not supported by probable cause. (2) Probable Cause to Arrest: Probable cause to arrest or to obtain an arrest warrant exists when, at the moment of arrest, officers have knowledge of facts and circumstances, grounded in reasonably trustworthy information, that are sufficient to warrant a prudent person in believing the individual committed the offense. 28 a. Common Enterprise Theory: When contraband is found in a vehicle, probable cause can exist to arrest all co-occupants of the vehicle even without evidence linking any of the occupants to the contraband under a common enterprise theory 21 United States v. Karo, 468 U.S. 705 (1989). 22 United States v. Mendenhall, 446 U.S. 544 (1980). 23 California v. Hodari D, 499 U.S. 621 (1991) 24 United States v. Drayton, 536 U.S. 194 (2002) 25 United States v. Drayton, 536 U.S. 194 (2002) 26 United States v. Drayton, 536 U.S. 194 (2002) 27 Kaupp v. Texas, 538 U.S. 626 (2003) 28 Beck v. Ohio, 379 U.S. 89 (1964). 3

5 based on the co-occupant status and the fact that all denied knowing about the contraband. 29 BUT note: Common enterprise can be extinguished if there are facts available that single out the guilty person. 30 b. Subjective Reason Irrelevant: The arresting officer s subjective reason for the arrest does not matter so long as facts exist to support probable cause for any offense; the two do not need to be closely related. 31 (3) Exceptions to Probable Cause Requirement a. Detention Pursuant to Execution of Search Warrant: Police may detain occupants of a residence without probable cause while they execute a search warrant for that residence; the search itself justifies the detention. 32 b. Investigative Detention: (see later section on search warrant exceptions) c. Exigent Circumstances/Hot Pursuit: (see later section on search warrant exceptions) (4) Arrest Warrant: An arrest warrant is not required for an arrest in a public place IF the arrest is supported by probable cause. 33 An arrest warrant is required to make an arrest in the suspect s home. 34 To arrest an individual in a third party s home, either an arrest warrant, or probable cause to arrest and a search warrant of the home are required. 35 III. WHEN IS A SEARCH ILLEGAL UNDER THE FOURTH AMENDMENT? (1) General Rule: A search is illegal if not supported by a facially valid warrant or execution of the warrant is improper. A warrantless search is per se unreasonable unless it satisfies one of the specific delineated exceptions (see below). (2) Requirements for a Facially Valid Warrant: To be valid, the warrant must be issued by a neutral and detached judicial officer, 36 contain probable cause supported by an oath or affirmation, and state with particularity the place to be searched or items to be seized (applies equally to arrest warrants) Maryland v. Pringle, 540 U.S. 366 (2003) 30 United States v. Di Re, 332 U.S. 581 (1948) 31 Devenpeck v. Alford, 543 U.S. 146 (2004) 32 Muehler v. Mena, 544 U.S. 93 (2005) 33 United States v. Watson, 423 U.S. 411 (1976); Devenpeck v. Alford, 543 U.S. 146 (2004) 34 Payton v. New York, 445 U.S. 573 (1980); Kirk v. Louisiana, 536 U.S. 635 (2002) 35 Steagald v. United States, 451 U.S. 204 (1981) 36 Coolidge v. New Hampshire, 403 U.S. 443 (1971); Lo-Ji Sales v. New York, 442 U.S. 319 (1979); Connally v. Georgia, 429 U.S. 245 (1977) 37 Steele v. United States, 267 U.S. 498 (1925); Marron v. United States, 275 U.S. 192 (1927) 4

6 a. Probable Cause to Search: Whether, given all the circumstances, there is a fair probability that contraband, evidence, or an individual will be found in the area searched. 38 In deciding whether probable cause exists, the judicial officer need only make a common sense decision whether the information in the supporting affidavit meets the probable cause standard. 39 b. Particularity: An attached affidavit can only save a warrant s lack of particularity when the warrant explicitly incorporates the attached affidavit by reference. 40 c. Good Faith Reliance: A facially invalid warrant can be saved and the evidence derived from it admissible if the officers executing the warrant reasonably or in good faith relied on the warrant. 41 Good Faith reliance will save a warrant containing reasonable errors in the description of the place searched, resulting in a search of an incorrect location. 42 Recent Supreme Court Development - Herring v. United States: 43 Good faith reliance will save execution of an outstanding arrest warrant where that warrant was in fact invalid because of a negligent bookkeeping error by another officer. Herring notes that good faith reliance does not apply if it is shown that the officer operating the system is reckless or knowingly making false entries. 44 Good Faith Reliance Does NOT Apply When: The warrant is so lacking in probable cause that no officer could reasonably rely on it. 45 (3) Execution of the Warrant: Execution of a search warrant is improper if the search exceeds the scope of the warrant OR officers violate the knock and announce rule. a. Exceeding the Scope of the Warrant: Police generally cannot exceed the terms of the warrant and execution of the warrant must be related to the warrant s objectives. 46 b. Knock and Announce Rule: Before executing a warrant, officers must announce their presence. The reasonableness of the knock and announce will be judged on the facts known to the officers at the time Illinois v. Gates, 462 U.S. 213 (1983); Massachusetts v. Upton, 466 U.S. 727 (1984). 39 Illinois v. Gates, 462 U.S. 213 (1983) 40 Groh v. Ramirez, 540 U.S. 551 (2004). 41 United States v. Leon, 486 U.S. 897 (1984); Massachusetts v. Sheppard, 468 U.S. 981 (1984) 42 Maryland v. Garrison, 480 U.S. 79 (1987) 43 Herring v. United States, 129 S.Ct. 694 (2009) 44 See also Arizona v. Evans, 514 U.S. 1 (1995)(finding good faith reliance applied to an outstanding arrest warrant that has been quashed but was not known due to a clerical error) 45 United States v. Leon, 486 U.S. 897 (1984) 46 Marron v. United States, 275 U.S. 192 (1927); Wilson v. Lane, 526 U.S. 603 (1999) 5

7 The Knock and Announce Rule is not required when doing so would be futile, dangerous, or risk destruction of evidence BUT officers must have a reasonable suspicion of such consequences to justify a no-knock warrant. 48 IV. EXCEPTIONS TO THE WARRANT REQUIREMENT (1) General Rule: Warrantless searches and seizures are per se unreasonable unless the search or seizure satisfies one of the delineated exceptions to the warrant requirement. (2) Consent: A individual with authority can waive the warrant requirement and consent to a warrantless search IF the consent is knowing and voluntary under the totality of the circumstances. 49 a. Voluntary Standard: It is the government s burden to prove consent is voluntary. 50 Wording matters: How the discourse is characterized can make a difference. For example, being asked to accompany the police versus being told to do so can determine whether consent is voluntary. 51 Right to Refuse: Being advised of the right to refuse one s consent is NOT dispositive for determining voluntariness; it is just one factor to be considered. 52 Consent is NOT Voluntary When: 1. Consent is coerced by explicit or implicit means or if the government asserts or threatens its legal authority, such as consent or we ll get a warrant Waking someone in the middle of the night to discuss a murder investigation and, when he consents, escorting him to the car handcuffed, barefoot, and still in pajamas is not voluntary. 54 b. Scope of Consent: The consenting party can limit the scope of consent to search, but if the party does not, officers can search anything reasonably within the scope of the expressed intent of the search. 55 Consenting to a search of one s car for narcotics includes search of containers within the car unless the party explicitly excludes those items from his consent United States v. Banks, 538 U.S. 626 (2003) 48 Richardson v. Wisconsin, 520 U.S. 385 (1997); United States v. Ramirez, 523 U.S. 65 (1998) 49 United States v. Drayton, 536 U.S. 194 (2002); Georgia v. Randolph, 547 U.S. 103 (2006) 50 Bumper v. North Carolina, 391 U.S. 543 (1968) 51 United States v. Mendenhall, 446 U.S. 544 (1980) 52 United States v. Drayton, 536 U.S. 194 (2002) 53 Schnecklots v. Bustamonte, 412 U.S. 218 (1973); Bumper v. North Carolina, 391 U.S. 543 (1968); Kaupp v. Texas, 538 U.S. 626 (2003). 54 Kaupp v. Texas, 528 U.S. 626 (2003) 55 Florida v. Jimeno, 500 U.S. 248 (1991); Walters v. United States, 447 U.S. 649 (1980) 56 Florida v. Jimeno, 500 U.S. 248 (1991) 6

8 Subsequent searches of an individual s property after the individual gave initial consent most likely will exceed the scope of initial consent, especially if subsequent searches are for different purpose. 57 c. Third Party Consent: Actual Authority: For a third party to validly consent to a search, the third party must have common authority over the area or property to be searched. 58 o The government bears the burden to prove common authority. 59 o Does NOT include hotel managers, landlords, and other nonresident people despite having a property interest in the location. 60 Joint property: The refusing party trumps the consenting party when the refusing party is physically present and vehemently objects to the consenting party. 61 Apparent Authority: Warrantless search based on consent will be valid even if the consenting party did not have actual authority IF consenting party had apparent authority and officers reasonably relied on that appearance of authority. 62 (3) Plain View: A warrantless seizure of evidence is lawful IF the officers are lawfully in the place where the items are in plain view AND the items are immediately apparent as evidence or contraband. 63 a. Immediately Apparent: Satisfied by probable cause. 64 b. NOT Plain View When: If officers have to manipulate the object, even by minimal movement, in order for its incriminating nature to become readily apparent, it is considered to be a search beyond plain view and will NOT satisfy the plain view exception unless there is probable cause. 65 (4) Investigative Detention (Terry Stops & Frisks): A person can be seized without a warrant AND without probable cause only when officers have a reasonable articulable suspicion that the person is or was involved in criminal activity. A limited pat down search or frisk of that person can occur ONLY if the officer reasonably believes the person is armed and dangerous Shamaeizadeh v. Cunigan, 338 F.3d 535 (6 th Cir. 2003); United States v. McMullin, 576 F.3d 810 (8 th Cir. 2009) 58 Illinois v. Rodriguez, 497 U.S. 17 (1990) 59 Illinois v. Rodriguez, 497 U.S. 17 (1990) 60 Stoner v. California, 376 U.S. 483 (1964); Chapman v. United States, 365 U.S. 610 (1961) 61 Georgia v. Randolph, 547 U.S. 103 (2006) 62 Illinois v. Rodriguez, 497 U.S. 17 (1990) 63 Horton v. California, 496 U.S. 128 (1990) 64 Texas v. Brown, 460 U.S. 730 (1983) 65 Arizona v. Hicks, 480 U.S. 321 (1987); see also United States v. Zavala, 541 F.3d 562 (5 th Cir. 2008). 66 Terry v. Ohio, 392 U.S. 1 (1968) 7

9 a. Reasonable Articulable Suspicion: Specific and articulable facts that lead the officer to believe criminal activity is present. 67 Examples of Articulable Suspicion: 1. Unprovoked flight from officers in a high crime area is reasonable articulable suspicion. 68 Examples that are NOT Articulable Suspicion: 1. Anonymous tip, by itself, that a specified person is carrying a gun NOT sufficient to justify a Terry stop, by itself Refusal to cooperate not enough to justify stop. 70 b. Terry Frisk: Contraband that is not a weapon can be seized during a Terry frisk ONLY if the contraband was not manipulated - i.e., did not exceed the pat down for weapons. The contraband must be immediately recognizable as such. 71 c. Special Case of Vehicles: The same standard of reasonable articulable suspicion to detain a person also applies to stopping vehicles. 72 All persons in the vehicle are seized during a traffic stop. 73 Officer can permissibly order passengers and the driver out or into the car during the stop. 74 Officers can question suspect about issues unrelated to purpose of the stop BUT it cannot result in prolonging the detention unnecessarily. 75 Scope of Frisk: Includes areas of the vehicle capable of storing or hiding a weapon. 76 Recent Supreme Court Development - Arizona v. Johnson: Officers do not need independent articulable suspicion of criminal activity to justify a frisk of the passengers but officers DO need reason to believe passengers are armed and dangerous. 77 (5) Search Incident to Arrest: A warrantless search incident to an arrest is lawful IF the search is contemporaneous with the arrest AND the arrest itself is lawful (i.e. supported by probable cause). 78 a. Actual Arrest: The arrest must actually happen for the search to be lawful; having the authority or right to arrest is not enough. For example, issuing a 67 Terry v. Ohio, 392 U.S. 1 (1968) 68 Illinois v. Wardlow, 528 U.S. 119 (2000) 69 Florida v. J.L., 529 U.S. 266 (2000) 70 Florida v. Bostick, 501 U.S. 429 (1991) 71 Minnesota v. Dickerson, 508 U.S. 366 (1993) 72 United States v. Arvizu, 534 U.S. 266 (2002); Delaware v. Prouse, 440 U.S. 648 (1979) 73 Brendlin v. Califonia, 551 U.S. 249 (2007) 74 Maryland v. Wilson, 519 U.S. 408 (1997); Pennsylvania v. Mimms, 434 U.S. 106 (1977) 75 Muehler v. Mena, 544 U.S. 93 (2005); Arizona v. Johnson; 129 S. Ct. 781 (2009) 76 Michigan v. Long, 463 U.S (1983) 77 Arizona v. Johnson, 129 S. Ct. 781 (2009) 78 Draper v. United States, 358 U.S. 307 (1959); United States v. Robinson, 414 U.S. 218 (1973) 8

10 citation for a traffic violation instead of arresting the individual where there is statutory authority to arrest does not justify a search. 79 Recent Supreme Court Development - Virginia v. Moore: Officer s arrest of a motorist for driving with a suspended license was not illegal even though the state statute only authorized issuance of citation because the arrest was supported by probable cause. 80 b. Scope of the Search: Search is limited to the wingspan or grabbing space of the arrestee. 81 Search can include all containers on arrestee s person. 82 If arrest occurs in the home, police can search area within the immediate control of arrestee. If the police have reasonable suspicion that others are located or hiding on the premises and they pose a danger, the police can perform a warrantless protective sweep limited to a brief inspection of areas in the home that could hide someone. 83 o BUT if the arrest occurs just outside the home, a search of the home is not allowed under this exception. 84 c. Search of Vehicles: Incident to a lawful arrest, the scope of the search is broader than if the arrest occurred in the home or elsewhere. Recent Supreme Court Development - Arizona v. Gant: Search of vehicle incident to recent occupant s arrest is legal ONLY if arrestee is unsecured and within reaching distance of the passenger compartment at the time of search. Overruled Thornton and NY v. Belton that allowed search regardless of rationale. (6) Exigent Circumstances: A warrantless search is legal when circumstances require officers to act or respond immediately or otherwise risk danger to themselves or to the public, risk the destruction of evidence, or risk the escape of a suspect ( hot pursuit ). A warrantless arrest in the home is also legal under this exception. a. Exigency must be actual: The urgency must be real and obvious; factors that contribute to that include seriousness of the crime and whether suspect is carrying a weapon Knowles v. Iowa, 525 U.S. 113 (1998) 80 Virgina v. Moore (2008); see also Atwater v. City of Lago Vista, 532 U.S. 318 (2001)(statutory authority to arrest, even based on minor crime, officer can arrest offender without violating 4 th Amendment) 81 Chimel v. California, 395 U.S. 752 (1969) 82 United States v. Robinaon, 414 U.S. 218 (1973); Gustafson v. Florida, 414 U.S. 260 (1973) 83 Chimel v. California, 395 U.S. 752 (1969); Maryland v. Buie, 494 U.S. 325 (1990) 84 Vale v. Louisiana, 399 U.S. 30 (1970) 85 Minnesota v. Olson, 495 U.S. 91 (1990) 9

11 Objective Standard: The officer s subject motive or intent is irrelevant. 86 Hot Pursuit: There must be immediate and continuous pursuit of a person from the scene of a serious crime; a minor crime does not entitle officers to enter a home. 87 Destruction of Evidence: Officers must have an objectively reasonable basis to believe evidence would be destroyed. If so, a temporary seizure of the individual is justified until a search warrant is obtained. 88 Exigency Terminates: Then a warrant is required for any further searches or seizures. 89 (7) Automobile Exception: A warrantless search of a vehicle is legal when there is probable cause that the vehicle or something within the vehicle contains evidence of a crime. 90 a. Vehicle Must be Mobile: Includes any vehicle capable of mobility such as boats, planes, and mobile homes IF located in a place not regularly used as a residence. 91 b. Scope of Search: Any container within the vehicle and trunk can be searched if probable cause exists, including containers that belong to passengers that could conceal the evidence sought. 92 During a traffic stop, there must be probable cause that contraband is inside the car to allow a warrantless automobile exception vehicle search, even if officers had probable cause to stop the vehicle. 93 (8) Inventory Searches: Warrantless inventory search of an arrestee s vehicle or personal belongings are legal IF the search is conducted in good faith and follows regular established procedures. 94 a. Good Faith Standard: The purpose of the search is reasonably related to some reason other than looking for evidence of a crime, such as protection of the arrestee s property and protection of the state against claims of theft or damage. 95 (9) Special Needs Searches: To qualify as a special need, the objective for suspicionless searches or seizures must satisfy a government interest beyond ordinary criminal wrongdoing; it cannot have a criminal purpose Brigham City, Utah v. Stuart, 531 U.S. 398 (2006) 87 Welsh v. Wisconsin, 466 U.S. 740 (1984) 88 Illinois v. McArthur, 531 U.S. 326 (2001) 89 Mincey v. Arizona, 437 U.S. 385 (1978) 90 Chambers v. Maroney, 399 U.S. 42 (1970); Carroll v. United States, 276 U.S. 132 (1925) 91 California v. Carney, 471 U.S. 386 (1985) 92 California v. Acevedo, 500 U.S. 565 (1991); Wyoming v. Houghton, 526 U.S. 295 (1999) 93 Whren v. United States, 517 U.S. 806 (1996) 94 Colorado v. Bertine, 479 U.S. 367 (1987) 95 Colorado v. Bertine, 479 U.S. 367 (1987); Florida v. Wells, 495 U.S. 1 (1990) 96 City of Indianapolis v. Edmond, 531 U.S. 32 (2000). 10

12 a. Balancing Test: The Government interest must be a real, current problem that suspicionless searches can sufficiently address AND that interest must be balanced against the privacy interest at stake and the degree of intrusion the search will cause. 97 b. Examples of Permissible Special Needs Searches: Drug testing of students involved in extracurricular activities, such as sports is reasonable. 98 Road block for drunk driving or for investigating an accident that occurred a week prior in same location. 99 Suspicionless search of parolees. 100 Search of probationer s home based on reasonable suspicion. 101 (10) Border Searches: Warrantless searches of persons and property when entering the country are legal, even without any individualized or reasonable suspicion. 102 Reasonable suspicion is not required to search a vehicle provided that the search does not impair the functioning or safety of the vehicle or the search is not particularly invasive or offensive, such as a strip search. 103 V. WHAT IS THE REMEDY FOR AN ILLEGAL SEARCH OR SEIZURE? (1) Exclusionary Rule: The remedy for an illegal search or seizure is suppression of that evidence or evidence derived from the illegal search or seizure such that it cannot be used in the Government s case-in-chief in a criminal trial. 104 a. Purging the taint: If a Mirandized statement was made following an illegal arrest, it could be suppressed as a fruit of the poisonous tree, but it will not be suppressed if it is shown that there is a break in the causal link between the illegality and the statement or derivative evidence. 105 Factors to Determine If the Causal Link is Broken: Amount of time between illegality and statement. 2. Any intervening circumstances. 3. Severity of the initial illegality. (2) Exceptions to the Exclusionary Rule: 97 Chandler v. Miller, 520 U.S. 305 (1997); Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie County v. Earls, 536 U.S. 822 (2002) 98 Board of Education v. Earls, 536 U.S. 822 (2002); Veronia School District v. Acton, 515 U.S. 646 (1995) 99 Illinois v. Lidster, 540 U.S. 419 (2004) 100 Samson v. California, 547 U.S. 843 (2006) 101 United States v. Knight, 543 U.S. 112 (2001); Griffin v. Wisconsin, 483 U.S. 868 (1987) 102 United States v. Montoya de Hernandez, 473 U.S. 531 (1985) 103 United States v. Flores-Montano, 541 U.S. 149 (2004) 104 Wong Sun v. United States, 371 U.S. 471 (1963) 105 Brown v. Illinois, 422 U.S. 590 (1975) 106 Brown v. Illinois, 422 U.S. 590 (1975); Kaupp v. Texas, 538 U.S. 626 (2003) 11

13 a. Knock and Announce: Failure to follow the knock and announce requirement does NOT result in suppression of evidence; the rule is only meant to protect officers and is intended as a means to deter 4 th Amendment violations. 107 b. Independent Source Rule: Evidence obtained in violation of the 4 th Amendment will NOT be suppressed if it can be shown that the evidence was seized by another separate and distinct means independent of the original illegality, such as a parallel process initiated by other officers. 108 c. Inevitable Discovery: Evidence will not be suppressed when the evidence would have been discovered despite initial illegality, such as a massive ongoing search within close proximity to the location where evidence was found. 107 Hudson v. Michigan, 547 U.S. 586 (2006) 108 Murray v. United States, 487 U.S. 533 (1988) 109 Nix v. Williams, 467 U.S. 431 (1984) 110 Our thanks to AFD Andrea George for her work, SEARCHES, SEIZURES AND STATEMENTS The Busy Lawyer s Handbook on the 4th, 5th & 6th Amendments, and to AFD Stephen Sady for his work, DEVELOPMENTS IN FEDERALSEARCH AND SEIZURE LAW, both available at 12