AMENDMENT IV
Search and Seizure
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The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall
not be violated, and no Warrants shall issue, but upon probable cause, supported
by Oath or affirmation, and particularly describing the place to be searched,
and the persons or things to be seized. ”
The Fourth Amendment to the United States Constitution is one of the provisions
included in the Bill of Rights. The Amendment guards against unreasonable
searches and seizures, and was originally designed as a response to the
controversial writs of assistance (a type of general search warrant), which were
a significant factor behind the American Revolution.
Ratified: December 15, 1791
Note: 'The right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be
seized.'
To pass muster under the Fourth Amendment, detention must be 'reasonable. '
See U.S. v. Montoya de Hernandez, 473 U.S. 531, 542-44 ('85) (analyzing
constitutionality of length of traveler's border detention under Fourth
Amendment reasonableness standard); Caban, 728 F.2d at 75 (considering
whether duration of border detention without a hearing was reasonable).
In the context of a criminal arrest, a detention of longer than 48 hours
without a probable cause determination violates the Fourth Amendment as a
matter of law in the absence of a demonstrated emergency or other
extraordinary circumstance. See County of Riverside v. McLaughlin, 111 S.Ct.
1661, 670 ('91). However, the Supreme Court arrived at this rule by
considering the time it takes to complete administrative steps typically
incident to arrest. See id.
Unreasonable Searches And Seizures.
Non-consensual extraction of blood implicates Fourth Amendment
privacy
rights. Skinner v. Railway Labor Executives' Ass'n, 489
U.S. 602, 16 ('89) ('this physical intrusion, penetrating beneath the skin,
infringes [a reasonable] expectation of privacy'); Schmerber v. California,
384 U.S. 757, 67 ('66) (compulsory blood test 'plainly involves the broadly
conceived reach of a search and seizure under the Fourth Amendment').' '[f]or
the Fourth Amendment does not proscribe all searches and seizures, but only
those that are unreasonable.' Skinner, 489 U.S. at 619; accord Vernonia
School Dist. 47J v. Acton, No. 95-590, 1995 WL 373274, at
*3 (June 26,'95) ('the ultimate measure of the constitutionality of a
governmental search is `reasonableness''). A search's reasonableness under
the Fourth Amendment generally depends on whether the search was made
pursuant to a warrant issued upon probable cause. U.S. v. Place, 462 U.S.
696, 701 ('83).
Even in the law enforcement context, the State may interfere with an
individual's Fourth Amendment interests with less than probable cause and
without a warrant if the intrusion is only minimal and is justified by law
enforcement purposes. E.g.,
Michigan
State Police Dept v. Sitz, 496 U.S. 444, 450 ('90); Terry
v. Ohio, 392 U.S. 1, 20 ('68).
The gathering of fingerprint evidence from 'free persons' constitutes a
sufficiently significant interference with individual expectations of
privacy that law enforcement officials are required to demonstrate that they
have probable cause, or at least an articulable suspicion, to believe that
the person committed a criminal offense and that the fingerprinting will
establish or negate the person's connection to the offense. See Hayes v.
Florida, 470 U.S. 811, 813-18 ('85); Davis v. Mississippi, 394 U.S. 721,
726-28 ('69).
Nevertheless, everyday 'booking' procedures routinely require even the
merely accused to provide fingerprint identification, regardless of whether
investigation of the crime involves fingerprint evidence. See Smith v. U.S.,
324 F.2d 879, 882 (D.C. Cir.'63) (Burger, J.) ('it is elementary that a
person in lawful custody may be required to submit to . . . fingerprinting .
. . as part of the routine identification processes'); Napolitano v. U.S.,
340 F.2d 313, 314 (1st Cir.'65) ('Taking fingerprints [prior to bail] is
universally standard procedure, and no violation of constitutional
rights.'). Thus, in the fingerprinting context, there exists a
constitutionally significant distinction between the gathering of
fingerprints from free persons to determine their guilt of an unsolved
criminal offense and the gathering of fingerprints for identification
purposes from persons within the lawful custody of the state.
Although the drawing of blood from free persons generally requires a warrant
supported by probable cause to believe that a person has committed a
criminal offense and that his blood will reveal evidence relevant to that
offense, see Schmerber, 384 U.S. at 768-71; U.S. v. Chapel, ___ F.3d ___,
slip op. at 5753-54 (9th Cir.'95) (en banc), the absence of such a warrant
does not a fortiori establish a violation of the plaintiffs' Fourth
Amendment rights.
The Supreme Court has noted repeatedly that the drawing of blood constitutes
only a minimally intrusive search. Skinner, 489 U.S. at 625 (blood tests do
not 'infringe significant privacy interests'); Winston v. Lee, 470 U.S. 753,
62 ('85) (not 'an unduly extensive imposition'); Schmerber, 384 U.S. at 771
('commonplace'); Breithaupt v. Abram, 352 U.S. 432, 36 ('57) ('routine' and
'would not be considered offensive by even the most delicate').
'An essential purpose of a warrant requirement is to protect privacy
interests by assuring citizens subject to a search or seizure that such
intrusions are not the random or arbitrary acts of government agents.'
Skinner, 489 U.S. at 421-2 (holding that a warrant was not required in part
because 'in light of the standardized nature of the tests and the minimal
discretion vested in those charged with administering the program, there are
virtually no facts for a neutral magistrate to evaluate'). The Supreme Court
recently reaffirmed and expanded the principle first enunciated in Skinner,
stating that, in some contexts, 'testing based on `suspicion' of [wrongful
activity] would not be better, but worse' than suspicionless testing. Acton,
1995 WL 373274, at *8. In Acton, the Supreme Court upheld as constitutional
a
school
district's practice of conducting random, suspicionless
urine testing of school athletes for drug use. The Court rejected the
proposition that the school district could conduct such testing only if
school officials had suspicion that a specific athlete was using drugs,
holding that this alternative 'entails substantial difficulties -- if it is
indeed practicable at all.' Id. Accusatory drug testing would 'transform[]
the process into a badge of shame' and would increase the risk that school
officials would impose testing arbitrarily upon disfavored, but not
drug-using, students. Id.
Except in certain narrowly limited cases, the Court repeatedly has stated
its 'insist[ence] upon probable cause as a minimum requirement for a
reasonable search permitted by the Constitution.' Chambers v. Moreny, 399
U.S. 42, 51 ('70). Because '[t]he integrity of an individual's person is a
cherished value in our society,' searches that invade bodily integrity
cannot be executed as mere fishing expeditions to acquire useful evidence:
'The interests in human dignity and privacy which the Fourth Amendment
protects forbid any such intrusions on the mere chance that desired evidence
might be obtained.' Schmerber, 384 U.S. at 772, 769-70.
Only when law enforcement faces an exigent circumstance, such as a need to
preserve evanescent blood alcohol evidence, and has probable cause to link
the sought-after information to a crime under investigation is it
constitutional to conduct nonconsensual blood testing without a warrant. Id.
at 770-71. Therefore, forced extraction of blood not only 'implicates the
Fourth Amendment,' as the majority notes, but also falls squarely within the
area
of
privacy interests for which the traditional probable cause
requirement determines reasonableness in the law enforcement context. Forced
blood extraction intrudes on the private personal sphere and infringes upon
an individual's 'most personal and deep-rooted expectations of privacy.'
Winston v. Lee, 470 U.S. 753, 60 ('85).
Searches Involving Intrusions Beyond The Body's Surface.
Schmerber v. California, 384 U.S. 757, 69 ('66). The Schmerber Court posed
two questions: (1) whether the police were justified in imposing a
nonconsensual blood test and (2) whether the procedures themselves were
reasonable. Id. at 768. In answering the first question, the Court
recognized that it was 'writ[ing] on a clean slate' regarding the treatment
of searches that involve intrusions into the human body. Id. at 767-8. It
concluded that such searches require probable cause. Id. at 770-1.
Similarly, the Supreme Court in Winston v. Lee, 470 U.S. 753 ('85),
recognized that Schmerber's threshold standard was a requirement of probable
cause 'where intrusions into the human body are concerned,' which implicate
'deep-rooted expectations of privacy.' Id. at 761, 760. The Winston Court
then acknowledged `other factors'' [b]eyond these standards' that must be
considered in determining whether a particular intrusion is reasonable:
whether 'the procedure threatens the safety or health of the individual' and
'the extent of the intrusion upon the individual's dignitary interests.' Id.
at 761 (emphasis added). In regard to the additional 'dignitary' factor
(beyond the threshold inquiry of invasion of bodily integrity), the Winston
Court noted Schmerber's recognition that blood extraction is not 'an unduly
extensive imposition.' Id. at 762. The Court contrasted this lesser bodily
invasion, which the Schmerber Court had upheld upon demonstration of
probable cause, with the more drastic measure of dangerous surgery to recoup
criminal evidence, which the Winston Court concluded would violate the
individual's Fourth Amendment rights even when supported by probable cause.
Thus again, the context of the quotation demonstrates that the Court places
blood extraction squarely within the probable cause requirement because it
is an invasion of bodily integrity, while at the same time acknowledging
that it is a less extensive imposition on dignitary interests than surgical
removal of a bullet.
Investigatory Stops Of Motorists At Sobriety Checkpoints.
The unique situation in which the Supreme Court has approved suspicionless
searches in the traditional law enforcement context. See Michigan Dep't of
State Police v. Sitz, 496 U.S. 444 ('90). The Sitz Court relied on
well-settled law that motorists have a lessened expectation of privacy
regarding stops and visual searches of automobiles on the nation's roadways.
Id. at 450 (explaining the importance of the context of 'police stops of
motorists on public highways'). At these sobriety checkpoints, which
motorists may choose to avoid, only the initial brief stop and preliminary
questioning may take place without individualized suspicion: 'more extensive
field sobriety testing' requires justification. Id. at 450-2.
Like the highway sobriety checkpoints, the 'special needs beyond normal law
enforcement' rationale supports searches on lesser grounds than probable
cause only in a very few, carefully tailored regulatory contexts that do not
involve apprehension of criminal perpetrators. See, e.g., National Treasury
Employees Union v. Von Raab, 489 U.S. 656, 65-66 ('89) (applying the special
needs exception to suspicionless quasi-consensual drug testing of Customs
Service employees seeking transfer to positions having a direct involvement
in drug interdiction).
The special needs exception covers testing which 'is not designed to serve
the ordinary needs of law enforcement [because] . . . results may not be
used in criminal prosecution.' Von Raab, 489 U.S. at 666 (emphases added).
Even so, a search in the special needs context almost always requires
individualized suspicion. See, e.g., Portillo v. U.S. Dist. Court, 15 F.3d
819, 823 (9th Cir.'94) (requiring individualized suspicion for urinalysis
testing under the probationer special needs exception). The rare special
needs cases which do not require individualized suspicion involve persons
who voluntarily participate in a highly regulated context. See, e.g., Von
Raab, at 671, 677 (noting that 'certain forms of employment may diminish
privacy expectations' for the 'employees who seek to be promoted' to certain
positions); Vernonia School Dist. v. Acton, 1995 WL 373274, *6-*7 (U.S. June
26, '95) (noting that schools are highly regulated and 'like adults who
choose to participate in a `closely regulated industry,' students who
voluntarily participate in school athletics have reason to expect intrusions
upon normal rights and privileges, including privacy').
Nonetheless, routine searches that intrude into prisoners' bodies without
probable cause may be upheld only when the search is undertaken pursuant to
a valid prison regulation that is reasonably related to a legitimate
penological objective. Turner v. Safley, 482 U.S. 78, 87-91 ('87); see,
e.g., Walker v. Sumner, 917 F.2d 382, 387 (9th Cir.'90) (remanding for
evidence of a specific penological objective because 'general protestations
of concern for the welfare of the citizens of Nevada and the prison
community are simply insufficient to render the involuntary seizure of blood
specimens, even from prison inmates, constitutionally reasonable').
Individuals have a categorically different and lesser expectation of privacy
in their fingerprints, visual images, or voice prints -- even when their
production is compelled -- because they are personal attributes that are
routinely exposed to the public at large in daily life. Katz v. U.S., 389
U.S. 347, 51 ('67) (finding a lesser expectation of privacy in personal
effects that 'a person knowingly exposes to the public, even in his own home
or office').
The Fourth Amendment provides no protection for what 'a person knowingly
exposes to the public'. Like a man's facial characteristics, or handwriting,
his voice is repeatedly produced for others to hear. No person can have a
reasonable expectation that others will not know the sound of his voice, any
more than he can reasonably expect that his face will be a mystery to the
world.
The required disclosure of a person's voice is thus immeasurably further
removed from the Fourth Amendment protection than was the intrusion into the
body effected by the blood extraction in Schmerber . . . . Rather, this is
like the fingerprinting in Davis, . . . [which] 'involves none of the
probing into an individual's private life and thoughts that marks an
interrogation or search.' U.S. v. Dionisio, 410 U.S. 1, 14-15 ('73) (quoting
Katz v. U.S., 389 U.S. 347, 51 ('67), and Davis v. Mississippi, 394 U.S.
721, 27 ('69)) (emphases added).
'Fingerprinting' - like the compelled production of other aspects of an
individual's identification that are routinely exposed to and superficially
observable by the public at large, such as voice prints, handwriting
exemplars, and photographs - simply belongs to a different category of
search that 'represents a much less serious intrusion upon personal
security than other types of searches and detentions.'
Hayes v. Florida, 470 U.S. 811, 14 ('85).*fn10 The majority's analysis
obliterates this critical constitutional distinction between coerced
fingerprinting and blood extraction for DNA genetic pattern analysis.
Blanket Searches.
Blanket searches are unreasonable, however 'evenhanded' they may be, in the
traditional criminal law enforcement context. See, e.g., Ybarra v. Illinois,
444 U.S. 85, 91-2, 92 n.4 ('79) (invalidating a blanket patdown search of
all patrons in a tavern, even though there was probable cause to search the
bartender and the premises). The ill that the Fourth Amendment prevents is
not merely the arbitrariness of police discretion to single out individuals
for attention, but also the unwarranted domination and control of the
citizenry through fear of baseless but 'evenhanded' general police searches.
In Zurcher, the Supreme Court held that a search of the offices of a
university newspaper, which was not involved in any
criminal activity, for photographs of demonstrators who had assaulted police
officers did not offend the Fourth Amendment's ban against unreasonable
searches and seizures. The court concluded: '[T]he Amendment has not been a
barrier to warrants to search property on which there is probable cause to
believe that fruits, instrumentalities, or evidence of crime is located,
whether or not the owner or possessor of the premises to be searched is
himself reasonably suspected of complicity in the crime being investigated.'
Zurcher v.
Stanford Daily ('78) 436 U.S. 547, 549-50.
Fourth Amendment protects the 'right of the people to be secure in their
persons . . . against unreasonable searches and seizures.' The essence of
that protection is a prohibition against some modes of law enforcement
because the cost of police intrusion into personal liberty is too high, even
though the intrusion undoubtedly would result in an enormous boon to the
public if the efficient apprehension of criminals were the sole criterion to
be considered. 'The easiest
course for [law enforcement] officials is not always one
that our Constitution allows them to take.' Wolfish, 441 U.S. at 595
(Stevens, dissenting).
A permanent resident alien is entitled to constitutional protection. See
Landon v. Plasencia, 459 U.S. 21, 32-4 ('82) ('[O]nce an alien gains
admission to our country and begins to develop the ties that go with
permanent residence, his constitutional status changes accordingly.'). In
particular, to Fourth Amendment protection against unlawful seizures. See
Benitez-Mendez v. INS, 760 F.2d 907, 09-10 (9th Cir.'85) (finding that INS
seizure of alien violated Fourth Amendment); see also INS v. Delgado, 466
U.S. 210, 213 n.1, 215-21 ('84) (considering whether questioning of resident
aliens by INS agents amounted to seizure for purposes of Fourth Amendment);
Martinez v. Nygaard, 831 F.2d 822, 824, 826-28 (9th Cir.'87) (analyzing
whether seizures of three resident aliens complied with Fourth Amendment).
The Constitution reserves many rights for those suspected of crime. One of the fears of the Framers was that the government could act however it wished by simply saying an individual was a suspected criminal. Many of the rights in the Constitution and the Bill of Rights, such as habeas corpus, the right to remain silent, and the right to an attorney, are designed to ensure that those accused of a crime are assured of those rights.
Police were able to take advantage of the fact that not everyone knows their rights by heart. In fact, it is likely that most citizens could name a few of their rights as accused criminals, but not all of them. The police's position was that if the accused, for example, spoke about a crime without knowing that they did not need to, that it was the person's fault for not invoking that right, even if they did not know, or did not remember, that they had that right.
This was the crux of the issue in Miranda v Arizona. In 1963, Ernesto Miranda was accused of kidnapping and raping an 18-year-old, mildly retarded woman. He was brought in for questioning, and confessed to the crime. He was not told that he did not have to speak or that he could have a lawyer present. At trial, Miranda's lawyer tried to get the confession thrown out, but the motion was denied. In 1966, the case came in front of the Supreme Court. The Court ruled that the statements made to the police could not be used as evidence, since Miranda had not been advised of his rights.
Since then, before any pertinent questioning of a suspect is done, the police have been required to recite the Miranda warning. The statement, reproduced below, exists in several forms, but all have the key elements: the right to remain silent and the right to an attorney. These are also often referred to as the "Miranda rights." When you have been read your rights, you are said to have been "Mirandized."
Note that one need not be Mirandized to be arrested. There is a difference between being arrested and being questioned. Also, basic questions, such as name, address, and Social Security number do not need to be covered by a Miranda warning. The police also need not Mirandize someone who is not a suspect in a crime.
As for Ernesto Miranda, his conviction was thrown out, though he did not become a free man. The police had other evidence that was independent of the confession, and when Miranda was tried a second time, he was convicted again. After release from prison, Miranda was killed in a barroom brawl in 1976.
The following is a minimal Miranda warning, as outlined in the Miranda v Arizona case.
The following is a much more verbose Miranda warning, designed to cover all bases that a detainee might encounter while in police custody. A detainee may be asked to sign a statement acknowledging the following.
MIRANDA RIGHTS
Miranda v. Arizona, 384 U.S. 436 (1966)
