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Valid Searches and Seizures Without Warrants
While the Supreme Court stresses the importance of warrants and has repeatedly referred to searches without warrants as ''exceptional,''1 it appears that the greater number of searches, as well as the vast number of arrests, take place without warrants. The Reporters of the American Law Institute Project on a Model Code of Pre- Arraignment Procedure have noted ''their conviction that, as a practical matter, searches without warrant and incidental to arrest have been up to this time, and may remain, of greater practical importance'' than searches pursuant to warrants. ''[T]he evidence on hand . . . compel the conclusion that searches under warrants have played a comparatively minor part in law enforcement, except in connection with narcotics and gambling laws.''2 Nevertheless, the Court frequently asserts that ''the most basic constitutional rule in this area is that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a few specially established and well-delineated exceptions.''3 The exceptions are said to be ''jealously and carefully drawn,''4 and there must be ''a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.''5 While the record does indicate an effort to categorize the exceptions, the number and breadth of those exceptions have been growing.
Detention Short of Arrest: Stop-and-Frisk.--Arrests are subject to the requirements of the Fourth Amendment, but the courts have followed the common law in upholding the right of police officers to take a person into custody without a warrant if they have probable cause to believe that the person to be arrested has committed a felony or has committed a misdemeanor in their presence.6 The probable cause is, of course, the same standard required to be met in the issuance of an arrest warrant, and must be satisfied by conditions existing prior to the policeman's stop, what is discovered thereafter not sufficing to establish retroactively reasonable cause.7 There are, however, instances when a policeman's suspicions will have been aroused by someone's conduct or manner, but probable cause for placing such a person under arrest will be lacking.8 In Terry v. Ohio,9 the Court almost unanimously approved an on-the-street investigation by a police officer which involved ''patting down'' the subject of the investigation for weapons.
The case arose when a police officer observed three individuals engaging in conduct which appeared to him, on the basis of training and experience, to be the ''casing'' of a store for a likely armed robbery; upon approaching the men, identifying himself, and not receiving prompt identification, the officer seized one of the men, patted the exterior of his clothes, and discovered a gun. Chief Justice Warren for the Court wrote that the Fourth Amendment was applicable to the situation, applicable ''whenever a police officer accosts an individual and restrains his freedom to walk away.''10 Since the warrant clause is necessarily and practically of no application to the type of on-the-street encounter present in Terry, the Chief Justice continued, the question was whether the policeman's actions were reasonable. The test of reasonableness in this sort of situation is whether the police officer can point to ''specific and articulable facts which, taken together with rational inferences from those facts,'' would lead a neutral magistrate on review to conclude that a man of reasonable caution would be warranted in believing that possible criminal behavior was at hand and that both an investigative stop and a ''frisk'' was required.11 Inasmuch as the conduct witnessed by the policeman reasonably led him to believe that an armed robbery was in prospect, he was as reasonably led to believe that the men were armed and probably dangerous and that his safety required a ''frisk.'' Because the object of the ''frisk'' is the discovery of dangerous weapons, ''it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.''12 If, in the course of a weapons frisk, ''plain touch'' reveals presence of an object that the officer has probable cause to believe is contraband, the officer may seize that object.Supp.3 The Court viewed the situation as analogous to that covered by the ''plain view'' doctrine: obvious contraband may be seized, but a search may not be expanded to determine whether an object is contraband.Supp.4
Terry did not pass on a host of problems, including the grounds that could permissibly lead an officer to momentarily stop a person on the street or elsewhere in order to ask questions rather than frisk for weapons, the right of the stopped individual to refuse to cooperate, and the permissible response of the police to that refusal. Following that decision, the standard for stops for investigative purposes evolved into one of ''reasonable suspicion of criminal activity.'' That test permits some stops and questioning without probable cause in order to allow police officers to explore the foun dations of their suspicions.13 While not elaborating a set of rules governing the application of the tests, the Court was initially restrictive in recognizing permissible bases for reasonable suspicion.14 Extensive instrusions on individual privacy, e.g., transportation to the stationhouse for interrogation and fingerprinting, were invalidated in the absence of probable cause.15 More recently, however, the Court has taken less restrictive approaches.16
It took the Court some time to settle on a test for when a ''seizure'' has occurred, and the Court has recently modified its approach. The issue is of some importance, since it is at this point that Fourth Amendment protections take hold. The Terry Court recognized in dictum that ''not all personal intercourse between policemen and citizens involves 'seizures' of persons,'' and suggested that ''[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred.''17 Years later Justice Stewart proposed a similar standard, that a person has been seized ''only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.''18 This reasonable perception standard was subse quently endorsed by a majority of Justices,19 and was applied in several cases in which admissibility of evidence turned on whether a seizure of the person not justified by probable cause or reasonable suspicion had occurred prior to the uncovering of the evidence. No seizure occurred, for example, when INS agents seeking to identify illegal aliens conducted work force surveys within a garment factory; while some agents were positioned at exits, others systematically moved through the factory and questioned employees.20 This brief questioning, even with blocked exits, amounted to ''classic consensual encounters rather than Fourth Amendment seizures.''21 The Court also ruled that no seizure had occurred when police in a squad car drove alongside a suspect who had turned and run down the sidewalk when he saw the squad car approach. Under the circumstances (no siren, flashing lights, display of a weapon, or blocking of the suspect's path), the Court concluded, the police conduct ''would not have communicated to the reasonable person an attempt to capture or otherwise intrude upon [one's] freedom of movement.''22
Soon thereafter, however, the Court departed from the Mendenhall reasonable perception standard and adopted a more formalistic approach, holding that an actual chase with evident intent to capture did not amount to a ''seizure'' because the suspect did not comply with the officer's order to halt. Mendenhall, said the Court in California v. Hodari D., stated a ''necessary'' but not a ''sufficient'' condition for a seizure of the person through show of authority.23 A Fourth Amendment ''seizure'' of the person, the Court determined, is the same as a common law arrest; there must be either application of physical force (or the laying on of hands), or submission to the assertion of authority.24 Indications are, however, that Hodari D. does not signal the end of the reasonable perception standard, but merely carves an exception applicable to chases and perhaps other encounters between suspects and police.
Later in the same term the Court ruled that the Mendenhall ''free-to-leave'' inquiry was misplaced in the context of a police sweep of a bus, but that a modified reasonable perception approach still governed.25 In conducting a bus sweep, aimed at detecting illegal drugs and their couriers, police officers typically board a bus during a stopover at a terminal and ask to inspect tickets, identification, and sometimes luggage of selected passengers. The Court did not focus on whether an ''arrest'' had taken place, as adherence to the Hodari D. approach would have required, but instead suggested that the appropriate inquiry is ''whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter.''26 ''When the person is seated on a bus and has no desire to leave,'' the Court explained, ''the degree to which a reasonable person would feel that he or she could leave is not an accurate measure of the coercive effect of the encounter.''27
Valid Searches and Seizures Without Warrants
While the Supreme Court stresses the importance of warrants and has repeatedly referred to searches without warrants as ''exceptional,''1 it appears that the greater number of searches, as well as the vast number of arrests, take place without warrants. The Reporters of the American Law Institute Project on a Model Code of Pre- Arraignment Procedure have noted ''their conviction that, as a practical matter, searches without warrant and incidental to arrest have been up to this time, and may remain, of greater practical importance'' than searches pursuant to warrants. ''[T]he evidence on hand . . . compel
Detention Short of Arrest: Stop-and-Frisk.--Arrests are subject to the requirements of the Fourth Amendment, but the courts have followed the common law in upholding the right of police officers to take a person into custody without a warrant if they have probable cause to believe that the person to be arrested has committed a felony or has committed a misdemeanor in their presence.6 The probable cause is, of course, the same standard required to be met in the issuance of an arrest warrant, and must be satisfied by conditions existing prior to the policeman's stop, what is discovered thereafter not sufficing to establish retroactively reasonable cause.7 There are, however, instances when a policeman's suspicions will have been aroused by someone's conduct or manner, but probable cause for placing such a person under arrest will be lacking.8 In Terry v. Ohio,9 the Court almost unanimously approved an on-the-street investigation by a police officer which involved ''patting down'' the subject of the investigation for weapons.
The case arose when a police officer observed three individuals engaging in conduct which appeared to him, on the basis of training and experience, to be the ''casing'' of a store for a likely armed robbery; upon approaching the men, identifying himself, and not receiving prompt identification, the officer seized one of the men, patted the exterior of his clothes, and discovered a gun. Chief Justice Warren for the Court wrote that the Fourth Amendment was applicable to the situation, applicable ''whenever a police officer accosts an individual and restrains his freedom to walk away.''10 Since the warrant clause is necessarily and practically of no application to the type of on-the-street encounter present in Terry, the Chief Justice continued, the question was whether the policeman's actions were reasonable. The test of reasonableness in this sort of situation is whether the police officer can point to ''specific and articulable facts which, taken together with rational inferences from those facts,'' would lead a neutral magistrate on review to conclude that a man of reasonable caution would be warranted in believing that possible criminal behavior was at hand and that both an investigative stop and a ''frisk'' was required.11 Inasmuch as the conduct witnessed by the policeman reasonably led him to believe that an armed robbery was in prospect, he was as reasonably led to believe that the men were armed and probably dangerous and that his safety required a ''frisk.'' Because the object of the ''frisk'' is the discovery of dangerous weapons, ''it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.''12 If, in the course of a weapons frisk, ''plain touch'' reveals presence of an object that the officer has probable cause to believe is contraband, the officer may seize that object.Supp.3 The Court viewed the situation as analogous to that covered by the ''plain view'' doctrine: obvious contraband may be seized, but a search may not be expanded to determine whether an object is contraband.Supp.4
Terry did not pass on a host of problems, including the grounds that could permissibly lead an officer to momentarily stop a person on the street or elsewhere in order to ask questions rather than frisk for weapons, the right of the stopped individual to refuse to cooperate, and the permissible response of the police to that refusal. Following that decision, the standard for stops for investigative purposes evolved into one of ''reasonable suspicion of criminal activity.'' That test permits some stops and questioning without probable cause in order to allow police officers to explore the foun dations of their suspicions.13 While not elaborating a set of rules governing the application of the tests, the Court was initially restrictive in recognizing permissible bases for reasonable suspicion.14 Extensive instrusions on individual privacy, e.g., transportation to the stationhouse for interrogation and fingerprinting, were invalidated in the absence of probable cause.15 More recently, however, the Court has taken less restrictive approaches.16
It took the Court some time to settle on a test for when a ''seizure'' has occurred, and the Court has recently modified its approach. The issue is of some importance, since it is at this point that Fourth Amendment protections take hold. The Terry Court recognized in dictum that ''not all personal intercourse between policemen and citizens involves 'seizures' of persons,'' and suggested that ''[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred.''17 Years later Justice Stewart proposed a similar standard, that a person has been seized ''only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.''18 This reasonable perception standard was subse quently endorsed by a majority of Justices,19 and was applied in several cases in which admissibility of evidence turned on whether a seizure of the person not justified by probable cause or reasonable suspicion had occurred prior to the uncovering of the evidence. No seizure occurred, for example, when INS agents seeking to identify illegal aliens conducted work force surveys within a garment factory; while some agents were positioned at exits, others systematically moved through the factory and questioned employees.20 This brief questioning, even with blocked exits, amounted to ''classic consensual encounters rather than Fourth Amendment seizures.''21 The Court also ruled that no seizure had occurred when police in a squad car drove alongside a suspect who had turned and run down the sidewalk when he saw the squad car approach. Under the circumstances (no siren, flashing lights, display of a weapon, or blocking of the suspect's path), the Court concluded, the police conduct ''would not have communicated to the reasonable person an attempt to capture or otherwise intrude upon [one's] freedom of movement.''22
Soon thereafter, however, the Court departed from the Mendenhall reasonable perception standard and adopted a more formalistic approach, holding that an actual chase with evident intent to capture did not amount to a ''seizure'' because the suspect did not comply with the officer's order to halt. Mendenhall, said the Court in California v. Hodari D., stated a ''necessary'' but not a ''sufficient'' condition for a seizure of the person through show of authority.23 A Fourth Amendment ''seizure'' of the person, the Court determined, is the same as a common law arrest; there must be either application of physical force (or the laying on of hands), or submission to the assertion of authority.24 Indications are, however, that Hodari D. does not signal the end of the reasonable perception standard, but merely carves an exception applicable to chases and perhaps other encounters between suspects and police.
Later in the same term the Court ruled that the Mendenhall ''free-to-leave'' inquiry was misplaced in the context of a police sweep of a bus, but that a modified reasonable perception approach still governed.25 In conducting a bus sweep, aimed at detecting illegal drugs and their couriers, police officers typically board a bus during a stopover at a terminal and ask to inspect tickets, identification, and sometimes luggage of selected passengers. The Court did not focus on whether an ''arrest'' had taken place, as adherence to the Hodari D. approach would have required, but instead suggested that the appropriate inquiry is ''whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter.''26 ''When the person is seated on a bus and has no desire to leave,'' the Court explained, ''the degree to which a reasonable person would feel that he or she could leave is not an accurate measure of the coercive effect of the encounter.''27