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 U.S. Constitution is the main limitation on the government's police powers set forth in the Constitution. Part of the original Bill of Rights, it derives from the Founding Father's vehement opposition to the abusive general warrants used by British officials during the period leading up to the American Revolution. The Fourth Amendment originally only limited the federal government but was applied to the states ("incorporated" into the Fourteenth Amendment's due process clause) by the Supreme Court in Mapp v. Ohio (1961). Because the Fourth Amendment is implicated in essentially every interaction between government and citizens, it has been the source of more litigation, both criminal and civil, than any other constitutional provision. The legal doctrines, tests, rules, and exceptions applicable to the Fourth Amendment are enormous in scope and complexity. Although some issues are straightforward, the Fourth Amendment is one of the most challenging areas of the law.
For general discussions of the search and seizure clause, see here, and the warrant clause, see here (both from the Heritage Foundation).
The U.S. Supreme Court has addressed Fourth Amendment issues in four recent cases: United States v. Jones (2012), Riley v. California (2014), Florence v. Board of Chosen Freeholders (2012), and Plumhoff v. Rickard (2014).
United States v. Jones
The question in Jones was "whether the attachment of a Global-Positioning-System (GPS) tracking device to an individual's vehicle, and subsequent use of that device to monitor the vehicle's movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment." The Supreme Court (in an opinion written by Justice Scalia and joined or concurred in by all justices) said yes.
The facts of the case were as follows:
In 2004 respondent Antoine Jones, owner and operator of a nightclub in the District of Columbia, came under suspicion of trafficking in narcotics and was made the target of an investigation by a joint FBI and Metropolitan Police Department task force. Officers employed various investigative techniques, including visual surveillance of the nightclub, installation of a camera focused on the front door of the club, and a pen register and wiretap covering Jones’s cellular phone.
Based in part on information gathered from these sources, in 2005 the Government applied to the United States District Court for the District of Columbia for a warrant authorizing the use of an electronic tracking device on the Jeep Grand Cherokee registered to Jones’s wife. A warrant issued, authorizing installation of the device in the District of Columbia and within 10 days.
On the 11th day, and not in the District of Columbia but in Maryland, agents installed a GPS tracking device on the undercarriage of the Jeep while it was parked in a public parking lot. Over the next 28 days, the Government used the device to track the vehicle’s movements, and once had to replace the device’s battery when the vehicle was parked in a different public lot in Maryland. By means of signals from multiple satellites, the device established the vehicle’s location within 50 to 100 feet, and communicated that location by cellular phone to a Government computer. It relayed more than 2,000 pages of data over the 4-week period.
Jones was charged with various narcotics crimes by the federal goverment. Before trial, he moved to suppress the evidence obtained through the GPS device. The district court granted the motion only in part, suppressing the data obtained while the vehicle was parked in the garage adjoining Jones' residence. The court held the remaining evidence admissible because "a person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another." Ultimately, Jones was found guilty at trial and sentenced to life in prison. On appeal, the U.S. Court of Appeals for the District of Columbia reversed the conviction because of admission of the evidence obtained by warrantless use of the GPS device which, it said, violated the Fourth Amendment. The government then appealed to the Supreme Court.
The Court began its opinion by noting that a person's automobile constitutes an "effect" covered by the Fourth Amendment. (Although the Jeep was registered to Jones' wife, he was the "exclusive driver" and it was assumed by the courts that he had standing to assert a Fourth Amendment challenge to the installation and use of the GPS device.) The Court then framed this case, conceptually, as "[t]he Government physically occupied private property for the purpose of obtaining information." This constituted a common law trespass that triggers Fourth Amendment protection, regardless of whether or not Jones had any "reasonable expectation of privacy" in his movements on public streets. As the Court explained:
The Government contends that the Harlan standard shows that no search occurred here, since Jones had no “reasonable expectation of privacy” in the area of the Jeep accessed by Government agents (its underbody) and in the locations of the Jeep on the public roads, which were visible to all. But we need not address the Government’s contentions, because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, we must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo, supra, at 34. As explained, for most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (“persons, houses, papers, and effects”) it enumerates. Katz did not repudiate that understanding.
In this case, "[b]y attaching the device to the Jeep, officers encroached on a protected area." Because they did not attach the device in accordance with the warrant, the search of the vehicle was invalid. (The Supreme Court did not address whether the placement of the device was otherwise "reasonable" under the Fourth Amendment because the government procedurally waived this argument.) The Supreme Court affirmed the court of appeals' decision to reverse the conviction.
Importantly, the Jones decision has been misunderstood by lay persons to mean that the Fourth Amendment absolutely prohibits the government from using GPS devices to track a suspect's movements; this is not correct. All that Jones stands for is that the use of such a device is a search that must be properly authorized, for example, by first obtaining a warrant.
Riley v. California
The question in Riley (which involved two cases) was "whether the police may, without a warrant, search digital information on a cell phone seized from an individual who has been arrested." The Supreme Court (in an opinion written by Chief Justice Roberts and joined or concurred in by all justices) said no. The Court's concluding paragraph summarized its position:
Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life." The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple -- get a warrant.
The particular facts of the two cases at issue in Riley are not crucial to understanding the Court's decision. In each case, a criminal suspect was arrested and the police searched his cell phone in connection with his arrest and without first obtaining a warrant. The police then used information obtained from the cell phone to further implicate the suspect in various criminal activities.
As the Supreme Court explained, the "ultimate touchstone" of the Fourth Amendment is "reasonableness." When a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, "reasonableness generally requires the obtaining of a judicial warrant." There are many exceptions to the warrant requirement, however, including the search incident to arrest exception. This exception, which was pronounced by the Supreme Court in Chimel v. California (1969), states that: "When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction." A later case, United States v. Robinson (1973), ruled that it was permissible for an arresting officer to remove and inspect a crumpled up cigarette package that the suspect had in his pocket. Subsequent lower court cases extended these decisions to other items seized from an arrested person, including wallets and purses.
The question in Riley was whether a cell phone was simply the modern equivalent of a wallet or purse and likewise may be opened and searched by the police incident to arrest: "These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life . . . ." The Court decided that the reasoning set forth in Chimel and Robinson does not apply to cell phones. As the Court explained:
Robinson concluded that the two risks identified in Chimel -- harm to officers and destruction of evidence -- are present in all custodial arrests. There are no comparable risks when the search is of digital data. In addition, Robinson regarded any privacy interests retained by an individual after arrest as significantly diminished by the fact of the arrest itself. Cell phones, however, place vast quantities of personal information literally in the hands of individuals. A search of the information on a cell phone bears little resemblance to the type of brief physical search considered in Robinson.
We therefore decline to extend Robinson to searches of data on cell phones, and hold instead that officers must generally secure a warrant before conducting such a search.
Nevertheless, the Court agreed that police officers were allowed to search the physical aspects of cell phones to ensure they did not contain weapons or contraband. The Court also agreed that cell phones could be seized and preserved for later examination pursuant to a warrant. Lastly, the Court acknowledged that there may be some situations where an immediate, warrantless search of a cell phone might be necessary. In such situations, the search would be justified by the exigent circumstances doctrine. Importantly, Riley does not stand for the proposition that "the information on a cell phone is immune from search"; rather, the holding of the case is that "a warrant is generally required before such a search, even when a cell phone is seized incident to arrest."
Florence v. Board of Chosen Freeholders
The issue in Florence was whether a pretrial detainee who had been arrested for a minor infraction could be strip searched at a detention facility, without individualized suspicion that he was carrying weapons or contraband, as part of a general policy of strip searching prisoners before they enter the general inmate population. The Supreme Court (in an opinion written by Justice Kennedy and joined or concurred in by Justices Roberts, Scalia, Alito, and Thomas, with Justices Breyer, Ginsberg, Sotomayor, and Kagan dissenting) said yes.
The Court described the meaning of "strip search":
The opinions in earlier proceedings, the briefs on file, and some cases of this Court refer to a “strip search.” The term is imprecise. It may refer simply to the instruction to remove clothing while an officer observes from a distance of, say, five feet or more; it may mean a visual inspection from a closer, more uncomfortable distance; it may include directing detainees to shake their heads or to run their hands through their hair to dislodge what might be hidden there; or it may involve instructions to raise arms, to display foot insteps, to expose the back of the ears, to move or spread the buttocks or genital areas, or to cough in a squatting position. In the instant case, the term does not include any touching of unclothed areas by the inspecting officer. There are no allegations that the detainees here were touched in any way as part of the searches.
At the start of its analysis, the Court emphasized that "[t]he difficulties of operating a detention center must not be underestimated by the courts" and that "[m]aintaining safety and order at these institutions requires the expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to the problems they face." Consequently, the basic rule is that "a regulation impinging on an inmate's constitutional rights must be upheld if it is reasonably related to legitimate penological interests." Previously, in the case of Bell v. Wolfish (1979), the Supreme Court upheld a policy in federal prisons whereby pretrial detainees were subject to a visual strip search after every contact visit with a person from outside the institution. Based on this earlier decision and other precedents, the Court upheld the strip search policy being challenged in the Florence case.
The question here is whether undoubted security imperatives involved in jail supervision override the assertion that some detainees must be exempt from the more invasive search procedures at issue absent reasonable suspicion of a concealed weapon or other contraband. The Court has held that deference must be given to the officials in charge of the jail unless there is “substantial evidence” demonstrating their response to the situation is exaggerated. Petitioner has not met this standard, and the record provides full justifications for the procedures used.
According to the Court, the strip search policy was a reasonable measure to combat the smuggling of weapons, drugs, and other contraband, to identify gang members who needed to be separated from each other, and to identify inmates with injuries who needed treatment. Moreover, the Court agreed that it was "reasonable" for the prison officials to conclude that an individualized approach to strip searching, rather than a blanket policy, "would be unworkable." In sum, "the search procedures at the Burlington County DetentionCenter and the Essex County Correctional Facility struck a reasonable balance between inmate privacy and the needs of the institutions" and, therefore, did not violate the Fourth Amendment.
Importantly, both Chief Justice Roberts and Justice Alito wrote concurring opinions "emphasiz[ing] the limits of today's holding." As Justice Alito stated, the decision is only that "jail administrators may require all arrestees who are committed to the general population of a jail to undergo visual strip searches not involving physical contact by corrections officers." The Florence case does not hold that, in the absence of individualized suspicion, all persons who are arrested may be strip searched by the police.
Plumhoff v. Rickard
The question in Plumhoff was whether the defendant police officers used excessive force in violation of the Fourth Amendment when they used lethal force (15 gun shots) to stop, and kill, a fleeing motorist. The Supreme Court (in an opinion written by Justice Alito and joined or concurred in by all justices) said no.
The facts of the case were described by the Court as follows:
Near midnight on July 18,2004, Lieutenant Joseph Forthman of the West Memphis, Arkansas, Police Department pulled over a white Honda Accord because the car had only one operating headlight. Donald Rickard was the driver of the Accord, and Kelly Allen was in the passenger seat. Forthman noticed an indentation, "roughly the size of a head or a basketball" in the windshield of the car. He asked Rickard if he had been drinking, and Rickard responded that he had not. Because Rickard failed to produce his driver’s license upon request and appeared nervous, Forthman asked him to step out of the car. Rather than comply with Forthman’s request, Rickard sped away.
Forthman gave chase and was soon joined by five other police cruisers driven by Sergeant Vance Plumhoff and Officers Jimmy Evans, Lance Ellis, Troy Galtelli, and John Gardner. The officers pursued Rickard east on Interstate 40 toward Memphis, Tennessee. While on I–40, they attempted to stop Rickard using a “rolling roadblock,” but they were unsuccessful. The District Court described the vehicles as “swerving through traffic at high speeds,” and respondent does not dispute that the cars attained speeds over 100 miles per hour. During the chase, Rickard and the officers passed more than two dozen vehicles.
Rickard eventually exited I–40 in Memphis, and shortly afterward he made “a quick right turn,” causing “contact[to] occu[r]” between his car and Evans’ cruiser. As a result of that contact, Rickard’s car spunout into a parking lot and collided with Plumhoff ’s cruiser. Now in danger of being cornered, Rickard put his car into reverse “in an attempt to escape.” As he did so, Evans and Plumhoff got out of their cruisers and approached Rickard’s car, and Evans, gun in hand, pounded on the passenger-side window. At that point, Rickard’s car “made contact with” yet another police cruiser. Rickard’s tires started spinning, and his car “was rocking back and forth,” indicating that Rickard was using the accelerator even though his bumper was flush against a police cruiser. At that point, Plumhoff fired three shots into Rickard’s car. Rickard then “reversed in a 180 degree arc” and “maneuvered onto” another street, forcing Ellis to “step to his right to avoid the vehicle.” As Rickard continued “fleeing down” that street, Gardner and Galtelli fired 12 shots toward Rickard’s car, bringing the total number of shots fired during this incident to 15. Rickard then lost control of the car and crashed into a building. Rickard and Allen both died from some combination of gunshot wounds and injuries suffered in the crash that ended the chase.
Rickard's surviving daughter filed the lawsuit against the defendant police officers, under 42 U.S.C. s. 1983, alleging that they used excessive force in violation of the Fourth Amendment. (The case did not involve any claims asserted by Allen's survivors.)
The relevant legal principles were summarized by the Court as follows:
A claim that law-enforcement officers used excessive force to effect a seizure is governed by the Fourth Amendment’s “reasonableness” standard. See Graham v. Connor, 490 U. S. 386 (1989); Tennessee v. Garner, 471 U. S. 1 (1985). In Graham, we held that determining the objective reasonableness of a particular seizure under the Fourth Amendment “requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” 490 U. S., at 396 (internal quotation marks omitted). The inquiry requires analyzing the totality of the circumstances. See ibid. We analyze this question from the perspective “of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Ibid. We thus “allo[w] for the fact that police officers are often forced to make split-second judgments -- in circumstances that are tense, uncertain, and rapidly evolving -- about the amount of force that isnecessary in a particular situation.” Id., at 396–397.
The Court then discussed a prior case, Scott v. Harris (2007), in which it ruled that "a police officer's attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death." The Court explained that the Constitution does not require police officers "to allow fleeing suspects to get away whenever they drive so recklessly that they put other people's lives in danger," which the Court called "impunity-earned-by-recklessness." Consequently, police officers may use lethal force, if reasonably necessary, to stop fleeing suspects who lead the police on high-speed car chases. Based on this precedent, the Court concluded that the police officers did not use "excessive force" when they shot at Rickard's car, killing him and his passenger.
We see no basis for reaching a different conclusion here. As we have explained, the chase in this case exceeded 100 miles per hour and lasted over five minutes. During that chase, Rickard passed more than two dozen other vehicles, several of which were forced to alter course. Rickard’s outrageously reckless driving posed a grave public safety risk. And while it is true that Rickard’s car eventually collided with a police car and came temporarily to a near standstill, that did not end the chase. Less than three seconds later, Rickard resumed maneuvering his car. Just before the shots were fired, when the front bumper of his car was flush with that of one of the police cruisers, Rickard was obviously pushing down on the accelerator because the car’s wheels were spinning, and then Rickard threw the car into reverse “in an attempt to escape.” Thus, the record conclusively disproves respondent’s claim that the chase in the present case was already over when petitioners began shooting. Under the circumstances at the moment when the shots were fired, all that a reasonable police officer could have concluded was that Rickard was intent on resuming his flight and that, if he was allowed to do so, he would once again pose a deadly threat for others on the road. Rickard’s conduct even after the shots were fired -- as noted, he managed to drive away despite the efforts of the police to block his path -- underscores the point. In light of the circumstances we have discussed, it is beyond serious dispute that Rickard’s flight posed a grave public safety risk, and here, as in Scott, the police acted reasonably in using deadly force to end that risk.
But what about the 15 shots? The plaintiff argued that the degree of force was excessive and that "even if the officers were permitted to fire their weapons, they went too far when they fired as many rounds as they did." Not surprisingly, the Court rejected this argument, stating: "It stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended."