Search and Seizure - What Constitutes a Search

Favorable and Noteworthy Decisions in the Supreme Court and Federal Appellate Courts
By Don Samuel
Garland, Samuel & Loeb, P.C.
Sep 1, 2015

United States v. Jones, 132 S. Ct. 945 (2012)

The Supreme Court affirmed the decision of the D.C. Circuit in United States v. Maynard, though on somewhat different grounds. In the majority decision, the Court held that placing a GPS device on a car for the purpose of acquiring information constitutes a search for fourth amendment purposes. The Court held that placing the device on the car was a form of “trespass” and under traditional and historical Fourth Amendment jurisprudence, a trespass qualifies as a search if the trespass is conducted for the purpose of obtaining information. In a concurring opinion, which also garnered five votes, Justice Alito questioned the trespass theory, but held that the continuous monitoring of the defendant’s car for 28 days amounted to a search.

Florida v. Jardines, 133 S. Ct. 1409 (2013)

The police, based on an unverified tip, brought a drug-sniffing dog up the sidewalk to the front door of the defendant’s house. The dog alerted and the police then obtained a search warrant. The Supreme Court held that bringing the dog up to the front door was a search because it amounted to a trespass onto the defendant’s property for the purpose of conducting a search. The Court held that the police entered the cartilage of the home and, unlike open fields, this is an area of the home that must remain free from unwarranted intrusions by the police that are conducted for the purpose of searching for evidence.

Illinois v. Caballes, 125 S.Ct. 834 (2005)

The defendant was stopped for a routine speeding violation. While the car was stopped and the trooper was preparing a warning ticket, another officer walked a drug dog around the car. The dog alerted; the car was searched based on probable cause; drugs were found. The Supreme Court held that this was permissible. A dog alert is not a “search” and in this case, the time it took to walk the dog around the car did not prolong the stop. Thus, there was no Terry violation and no need for a warrant or an articulable suspicion to authorize the use of the dog.

United States v. Karo, 468 U.S. 705 (1984)

Officers conducted a search when they attached a device to a package taken inside a home that signaled when the package was opened.

Kyllo v. United States, 533 U.S. 27 (2001)

The Supreme Court held that law enforcement’s use of a sophisticated heat detecting device that could gather information regarding the interior of a home that could not otherwise have been obtained without a physical intrusion into the constitutionally protected area did constitute a search. Justice Scalia reasoned that the occupant of the house has a reasonable expectation of privacy regarding the interior of his home. This expectation cannot be defied or diminished by law enforcement’s use of sophisticated technology. The Court was not persuaded by the government’s argument that the heat that was detected was actually outside the house; or by the argument that no “intimate” details about the interior of the house were learned through the thermal imaging device.

Bond v. United States, 529 U.S. 334 (2000)

The defendant was a passenger on a bus and placed his duffel bag in an overhead rack. A law enforcement officer entered the bus and “physically manipulated” and squeezed the duffel bag. The Supreme Court held that feeling the bag in this manner constituted a search. The Court reasoned that just as a person has a right not to be frisked by police absent an articulable suspicion, a person has a right to expect that his belongings will not be frisked. The Court also acknowledged that other passengers could touch and feel the duffel bag and shove it aside when they placed their luggage in the same overhead rack, and to that extent, the police were not “touching” anything that was not otherwise subject to being touched by the public at large. The Court held, however, that a passenger has a reasonable expectation that other passengers — and hence the police — will not “feel the bag in an exploratory manner.” This is a reasonable expectation that was defied by the conduct of the police.

Klayman v. Obama, 957 F.Supp.2d 1 (D.D.C. 2013)

In a decision sure to be appealed, the District Court concludes that the NSA telephone data collection program probably violates the Fourth Amendment. The District Court held that the third-party rule announced in Smith v. Maryland, 442 U.S. 735 (1979), is obsolete in this new technological age where so much data about people is included in records maintained by service providers. The D.C. Circuit reversed in August, 2015, on the grounds that the plaintiff failed to established standing.

United States v. Davis, 690 F.3d 226 (4th Cir. 2012)

The police seized the defendant’s clothing from a hospital room and this was justified by the plain view exception. This seizure occurred after the defendant was victimized in a separate incident. After his clothes were seized the police extracted DNA from the clothing and tested it. That DNA was entered into a database. Years later, a carjacking occurred that was the subject of this prosecution. The DNA recovered from that crime matched the defendant’s DNA. The Fourth Circuit held that the earlier DNA extraction was a search. The court also held that the seach was not “reasonable.” However, the court ultimately concluded that law enforcement acted in good faith and therefore there exclusionary rule would not apply.

United States v. Sharp, 689 F.3d 616 (6th Cir. 2012)

During a canine walk-around, the dog jumped into the car and alerted. The Sixth Circuit held that this “entry” into the car did not amount to a search that invalidated the subsequent search that was based on the alert.

United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010)

The long-term use of a GPS device to track the movement of a suspect’s car constitutes a search that requires a search warrant. The GPS device in this case tracked the defendant’s car’s movement 24 hours per day for 28 days. This distinguishes the extent of the invasion of the expectation of privacy in United States v. Knotts. The court also relied on the Kyllo decision which held that a heat-seeking device was subject to the warrant requirement. Finally, the court cited such cases as Georgia v. Randolph, for the proposition that in deciding what is “reasonable” the court must consider the community standards and “societal understandings.”

United States v. Hardin, 539 F.3d 404 (6th Cir. 2008)

The police wanted to determine if a suspect was located in a particular apartment. They asked a maintenance man to go to the apartment and inform the occupants that he needed to enter to fix a plumbing problem. He did not obtain the occupants’ consent – he simply entered. He then left and told the police that the suspect was there. The Sixth Circuit held that this was not valid consent. First, there was, as a matter of fact, no consent given. Second, the use of a ruse, such as this, is not appropriate, because there was no need to use a ruse to avoid violence or danger. This is not a case in which the police already had probable cause to enter the house and used the ruse for safety purposes. Moreover, the apartment manager was acting as an agent of the police, so it triggered the exclusionary rule.

United States v. Askew, 529 F.3d 1119 (D.C. Cir. 2008) en banc

The police brought a defendant back to the scene of a robbery and unzipped his jacket so the witness could view his clothing under the jacket. The D.C. Circuit, en banc, held that this amounted to a search for Fourth Amendment purposes. The Court suggested that in some circumstances, unzipping a defendant’s jacket may be permissible in this situation, but that there was insufficient information known to the police in this case to justify this procedure.

United States v. Maple, 348 F.3d 260 (D.C. Cir. 2003)

The defendant was arrested in his car for speeding and driving with a suspended license. The officer decided not to impound the car and pulled it into a parking lot. He noticed a mobile phone on the floor and opened a console between the bucket seats for the purpose of hiding the phone in there. In the console, he discovered a gun. This amounted to a search and was unlawful. The fact that the officer was not looking for anything did not mean that it was not a “search.” The focus is on whether the actions of the government violate a subjective expectation of privacy that society recognizes as reasonable, not the state of mind of the officer.

United States v. Conner, 127 F.3d 663 (8th Cir. 1997)

The police received a tip that two burglars were at a motel. Six officers went to the motel and went to the room in front of which the burglars' car was parked. The police knocked on the door and yelled, "Open up." When one of the defendants opened the door, the police observed (through the open door) various coins (they knew a coin collection had been stolen in the burglary). The officers pulled their weapons and arrested both defendants. They then obtained a search warrant on the basis of what they observed in the room. The trial court correctly granted a motion to suppress. Though the police did not enter the room in order to see the coins, when they ordered the occupants to open the door, and thereby gained the ability to see in the room, this amounted to a search. Demanding that the occupants open the door did not amount to a consent search and there were no exigent circumstances necessitating the immediate entry into the room. The search pursuant to the search warrant was not salvaged by Leon, because the information contained in the application (the observations that were gained through the illegal entry), negated the existence of good faith. Finally, the officers would not have inevitably discovered the evidence, because absent the illegal entry, no other investigatory effort was underway to obtain a search warrant for the motel room.

United States v. Nicholson, 144 F.3d 632 (10th Cir. 1998)

A police officer “felt” the outside of the defendant’s carry-on and checked luggage on a bus in such a way that he was able to determine that the bags contained some tightly-wrapped bundles. While the touching of a bag’s exterior is not a search, in this case, the officer acknowledged that he “manipulated” the bags; this constituted a search. After having his suspicions aroused, the officer asked the bus passengers to whom the bag belonged. Nobody answered. Because of the initial illegal search, this did not amount to an abandonment of the property.

United States v. Doe, 61 F.3d 107 (1st Cir. 1995)

An airport security officer noticed a dense object in the defendant’s carry-on luggage. He pulled it out of the bag (which was legal) and handed it to a DEA agent. The agent then punctured the bag to field test the contents. This was an illegal search which required a warrant. Exigent circumstances and probable cause justify the seizure of a bag such as this, but does not justify opening the bag or removing the contents.

United States v. Knoll, 16 F.3d 1313 (2d Cir. 1994)

A private citizen burglarized an attorney’s office in order to find incriminating information to supply to the government. He removed boxes from the office and then brought some documents to the AUSA. The AUSA was not impressed and the burglar went back to the boxes and retrieved more documents. This further search of the boxes amounted to a search. It is not relevant that the boxes had already been removed from the office without government involvement. If the boxes had not yet been opened, then the opening of the boxes by the burglar may have been with government approval which would invoke the Fourth Amendment.

United States v. Pierre, 932 F.2d 377 (5th Cir. 1991)

An officer poked his head inside the window of the defendant’s car. This was a search according to the panel opinion, and because of the absence of any articulable suspicion, the ensuing consent was unlawful. The en banc court reversed, 958 F.2d 1304 (5th Cir. 1992): Even though sticking his head in the window may have amounted to a search, it was “reasonable.” The border patrol agent had the right to question the occupant of the rear of the car and to make eye contact with him, which required him to stick his head in the window.

United States v. Cuevas-Sanchez, 821 F.2d 248 (5th Cir. 1987)

The police placed a video camera on top of a light pole allowing the police to record all activities in the defendant’s backyard. Portions of the backyard were observable from the street; however, there was a ten-foot fence around the back yard. The Fifth Circuit holds that this is an unconstitutional search.

United States v. Concepcion, 942 F.2d 1170 (7th Cir. 1991)

The police conducted a search by placing a key into a keyhole in an effort to determine if the defendant resided at that location. The key had been seized from the defendant. Though the act of placing the key into the keyhole was a search, no warrant was required.

United States v. $277,000.00, 941 F.2d 898 (9th Cir. 1991)

In New York v. Class, 475 U.S. 106 (1986), the Supreme Court held that a police officer who had lawfully stopped a vehicle for a motor vehicle violation could move a piece of paper from the dashboard which was covering the VIN (in the process of moving the paper, the officer found a gun under the seat). The Court held that although this was a search, it was minimally intrusive and constitutionally permissible. Here, the defendant’s car was parked in his backyard. The police noted that the vehicle had a Mexican license plate. The police could not see the VIN because the car had an opaque car cover. The police removed the car cover and discovered that there were no VIN numbers. The cars were then impounded and a search of the vehicles unearthed the defendant currency. The Ninth Circuit holds that Class does not control. These vehicles were not on the highway, there were no motor vehicle infractions and the removal of the opaque car covers was a search.

United States v. Taketa, 923 F.2d 665 (9th Cir. 1991)

Federal agents entered the private office of a state law enforcement agent to determine whether he was engaged in illegal wiretapping. This was a reasonable search. However, after determining that the officer was engaged in misconduct, the agents then set up video surveillance equipment in the office. This was an illegal search. Once the investigation changed from a reasonable inquiry into work-related misconduct into a search for criminal evidence, a warrant was required.

United States v. Winsor, 846 F.2d 1569 (9th Cir. 1988)

Police officers who knew that a bank robbery suspect had entered a small residential hotel violated the defendant’s Fourth Amendment rights by knocking on the door of a specific room (a room they did not know he was in), requiring him to open the door and then submit to a search. The Ninth Circuit holds that the required opening of the hotel door represented a “search.” The Court then held that such a search could only be predicated on probable cause and the police did not have probable cause to believe that the suspect was in that particular room.

United States v. Cusumano, 67 F.3d 1497 (10th Cir. 1995)

The use of a thermal imager does amount to a search and, therefore, the government must obtain a search warrant prior to scanning a home with such a device. On re-hearing en banc, the court vacated this decision and did not reach the issue of whether an imager amounted to a search, concluding, instead, that there was sufficient probable cause to search the premises even without the thermal imager evidence. 83 F.3d 1247 (10th Cir. 1996).