Search and Seizure
by Patrick Fagan, 1997
University of Southern Mississippi
Reproduced Here with Permission
The United States Supreme Court and a few U.S. Appeals Courts have
adjudicated cases that revolve around search and seizure. Proper knowledge
of this issue will increase success in court for the law enforcement
officer. Several judicial reviews have been used in this article to form a
small guide for the police who effect search and seizures upon individuals
Often at the crux of a search and seizure is probable cause—apparent
and reliable facts that create a reasonable belief that a crime has been or
is being committed. Officers may now be held liable for technicalities
stemming from lack of probable cause. In Malley v. Briggs(1),
the Supreme Court decided that the police are not entitled to absolute
immunity from civil damages. A Rhode Island state trooper acted on a
court-approved wiretap that entailed the following short conversation:
Caller says, “I can’t believe I was token in front of Jimmy Briggs”
— caller states he passed it to Louisa. Paul says, “Nancy was sitting in
his lap rolling her thing.” Information gleaned from the wiretap
culminated with the arrest of at least twenty people but with no indictment
from the grand jury. The Chief Justices ruled that the trooper had failed to
establish proper probable cause to justify the affidavit. Although a judge
had authorized the warrant, a reasonable police officer should have known
that in this instance probable cause was insufficient. The police may no
longer rely blindly on the authority of a magistrate.
In any occurrence, articulable facts must be distinguished before
enacting a stop, and these facts must be expanded before a search and
seizure is conducted. A person may not be immediately searched once he is
detained. However, Terry v. Ohio(2)
allows for a protective pat down of a person’s clothing when suspicious
activity alerts the officer to some danger. Any search under Terry v. Ohio
must be used to discover weapons, though, not evidence of a crime.
In Minnesota v. Dickerson(3),
the defendant was seen evasively leaving a building known for cocaine
traffic. The officers ordered the man to stop and submitted him to a pat
A lump was detected in a coat pocket and manipulated by an officer during
the probe. The object was removed and identified as cocaine. This stop and
pat down was ruled constitutional, but the seizure of the drug was
suppressed. The officer never thought the lump to be a weapon; therefore,
the continued exploration of the pocket was unconstitutional. Only after its
illegal removal was the lump recognized as cocaine.
In Sibron v. New York(4),
a patrol officer observed Sibron in a restaurant with three known addicts.
Sibron was taken to the street by the officer to be questioned.. This
officer had not overheard any of Sibron’s conversation nor had he
witnessed any exchanges between Sibron and the addicts. Nevertheless, Sibron
was searched and heroin was retrieved from his pocket. The Supreme Court
ruled that no probable cause existed before the search, so the officer’s
justification to search for weapons was derogated. Chief Justice Warren
clarified the case succinctly:
police officer is not entitled to seize and search every person whom he sees
on the street or of whom he makes inquiries. Before he places a hand on the
person of a citizen in search of anything, he must have constitutionally
adequate, reasonable grounds for doing so. In the case of the
self-protective search for weapons, he must be able to point to particular
facts from which he reasonably inferred that the individual was armed and
To further examine the thin line as to what constitutes legal or illegal
probable cause, the Supreme Court adjudicated Brown v. Texas and Michigan v.
DeFillippo. In Brown v. Texas (5),
two police officers arrested a man who refused to identify himself and
explain what he was doing in an alley. The premise for the arrest was a
Texas statute that makes refusal of identity and address a criminal act.
However, the person must be lawfully stopped. The officers claimed that the
man had been approaching another bystander but upon observing the police, he
walked away in the opposite direction. Chief Burger stated that if any
suspicion of misconduct was missing, “the balance between the public
interest in crime prevention and appellant’s right to personal security
and privacy tilts in favor of freedom from police interference.” The
conviction was overturned.
Michigan v. DeFillippo(6)
was a similar case. Detroit police happened upon a man and a woman in an
alley. The woman was in the process of lowering her pants. Under a local
ordinance, police had the right to ask for identification in peculiar
situations such as this. Officers requested identity from the man, which was
adamantly refused. The police then conducted a pat down, which produced
narcotics. Chief Burger believed in this case that the officer had abundant
probable cause. He noted that the respondent’s “presence with a woman in
the circumstances described clearly was behavior warranting further
investigation under the ordinance, and respondent’s responses to the
request for identification constituted a refusal to identify himself as the
ordinance required.” In this instance the conviction was upheld.
Courts have not avoided automobile searches either. This type of
investigation often results in confusion with its applicability, but
warrantless searches may be conducted when they follow a lawful arrest or
when probable cause has been gathered.
New York v. Belton(7)
negated much of the confusion that derived from automobile searches.
Belton’s search was based on an examination of the passengers’
compartment that began after the occupants had been legally arrested and
placed in handcuffs on the sidewalk. A jacket containing cocaine was then
discovered inside the car. The Supreme Court found this search to be
constitutional and incident to a lawful arrest. Justice Stewart ruled that
police can search a passenger compartment of cars in any similar situation.
They may also examine the contents of any containers found inside that
compartment. Any container within may also be searched whether it is open or
closed, because the “justification for the search is not that the arrestee
has no privacy interest in the container, but that the lawful custodial
arrest justifies the infringement of any privacy interest the arrestee may
have.” The Justice went on to define a container as “any object capable
of holding another object. It includes closed or open glove compartments,
consoles, or other receptacles located anywhere within the passenger
compartment, as well as luggage, boxes, bags, clothing, and the like.”
United States v. Ross(8)
involved a much more extensive search. An informant gave District of
Columbia police a drug dealer’s description. The police also received
information that the dealer stored narcotics in his vehicle. This vehicle
was later located which precipitated the driver’s arrest. An officer
opened the trunk. Then he seized and opened a sealed paper bag that
contained heroin. The car was then driven to the local precinct where
another search—detailed but warrantless—instituted more inculpatory
evidence. Chief Justice Stevens said the following in the Court opinion:
police officers have probable cause to search an entire vehicle, they may
conduct a warrantless search of every part of the vehicle and its contents,
including all containers and packages, that may conceal the object of the
search. The scope of the search is not defined by the nature of the
container in which the contraband is secreted. Rather, it is defined by the
object of the search and the places in which there is probable cause to
believe that it may be found. For example, probable cause to believe that
undocumented aliens are being transported in a van will not justify a
warrantless search of a suitcase.
Collectively, the Court ruled that police in a legitimate stop of a
vehicle, and who have probable cause that illegal items are somewhere
within, may conduct a warrantless search. The search can be as powerful as
though it were issued by a magistrate. Some guidelines for the probable
cause were established:
probable cause determination must be based on objective facts that could
justify the issuance of a warrant by a magistrate, and not merely on the
subjective good faith of the police officers. As we have seen, good faith is
not enough to constitute probable cause. That faith must be grounded on
facts within knowledge of the officer which in the judgment of the court
would make his faith reasonable.
California v. Acevedo(9)
augmented the New York v. Belton case. A man carrying a small paper bag was
seen leaving an apartment known for cocaine activity. He placed the bag in
the trunk of his car. After driving away, police stopped the vehicle and
opened its trunk. The officers seized the bag and identified the contents as
marijuana. This case entitled police to conduct a warrantless search of any
container within an automobile if that container was thought to contain
incriminating evidence. In this instance, police had only probable cause to
search the bag, not the entire vehicle. Where a Belton search should follow
a lawful arrest, Acevedo grants a search of containers premised on probable
The Chief Justices did not give an acceptable time lapse between the
actual arrest and the vehicle search. However, in United States v. Sharpe(10)
the Court announced that police must pursue the investigation diligently for
a detention to remain permissible. In this case, the complainant was
detained for 20 minutes before the beginning of the vehicle’s search.
Still, the Supreme Court believed that the officer who conducted the matter
did so with no intentional delays. Also, in Florida v. Royer(11)
the Court held that “an investigative detention must be temporary and last
no longer than is necessary to effectuate the purpose of the stop.” For a
comparison, United States v. Place(12)
dealt with a detention that lasted for 90 minutes. A man’s luggage was
seized until a narcotics K9 was brought to the airport to confirm
officers’ suspicion of criminality. The police had prior knowledge of the
man’s arrival but had not prepared for the possible use of a drug dog.
Place was reversed.
The US Supreme Court has endured criticism that it is handcuffing the
police with search and seizure restrictions.
To the contrary, the consent
to search has become a very effective and important part of legal
search and seizures. This investigative tool is a boon from the higher
courts to the police in that it returns power for conducting warrantless
searches to patrol officers. That power is limited, but it is still powerful
and can be quite effective. It is more of a gift when one realizes that
suspects often grant permission to conduct a search regardless that they are
actually concealing incriminating evidence. Unlike other aspects of search
and seizure, the consent to search is not littered with technicalities that
protect criminals. Nevertheless, an improper consent must be and can
be avoided with the study of several cases.
The consent to search must be wholly voluntary. It may not be coerced or
implied in any manner. A trooper in South Carolina received some skepticism
from the Fourth Circuit Court of Appeals regarding his investigative ploy in
United States v Lattimore(13).
The trooper stopped Lattimore for speeding and then requested consent to
search Lattimore’s vehicle. Permission was granted verbally by Lattimore
to conduct the search, but the trooper asked him to sign a consent form
anyway. Lattimore signed it. The trooper conducted a search and discovered
95 grams of cocaine base and other drug paraphernalia.
While Lattimore and the trooper sat in the patrol car to prepare the
written consent, the trooper’s video camera recorded the following
Trooper: Okay, you
gave me a verbal consent, . . . this is written consent, okay. Let me
explain this paragraph right here. Says I have [in] no way forced you,
threatened you, . . . or compelled you ‘til [sic] I may search your
vehicle. You understand that?
Lattimore: Mm- hmm.
Trooper: I need your
signature or an X on the bottom. Again, it’s just giving me consent.
Lattimore: On that,
what’s the difference on that?
Trooper: What [do]
Lattimore: If I say
yes or I say no, it’s still ....
Trooper: Well, let me
explain something to you. I’m on a special team. I travel around the
state. This is all I do. I search-
Lattimore: Uh- huh. I
was watching that on . . .
Trooper: - - 97
percent of the cars I stop. It don’t matter if you’re 18 to 80 years
old, you’re black, white, red, Indian, Hispanic. I don’t care what you
are. That’s all I do. You say you saw it on the news?
[The two discuss a
television program showing highway patrol officers.]
Lattimore: Yeah, and
I seen where [sic] they pulled a guy over, and they, you know, asked him the
same thing you’re asking me- - whether they could search his car or not.
And, um, what’s the difference? If you do or you don’t, it’s gonna
happen anyway, right?
Trooper: Not really.
If you don’t, I feel you’re hiding something. Therefore, I’ll call a
drug dog right up the road to come down here and let him search your car.
what I’m saying. It don’t really make no difference.
Trooper: Well,- -
what I’m saying.
Trooper: - -
there’s certain reasons why we do that.
Although Lattimore’s conviction was upheld and his consent deemed
valid, the court remained wary with part of the trooper’s audio. Even if
the trooper had exceeded the proper limits for requesting the written
consent, which it did not, the Court claimed that the oral consent had been
legally established. It was United States v Thompson(14)
that declared refusal of written consent does not revoke oral consent.
Therefore, it was the trooper’s remark concerning the drug dog that
aroused the Court’s skepticism. The Court stated:
view of the Government’s concession that Trooper Frock did not possess the
reasonable suspicion necessary to detain Lattimore to permit the drug dog to
sniff his automobile, if Lattimore had not already given a voluntary oral
consent to the search, Trooper Frock’s assertion that he would ‘call a
drug dog’ to search the automobile if Lattimore refused written consent
would raise serious questions concerning the voluntaries of his consent.
Lattimore had also claimed that his detention was illegal because he was
stopped for a traffic violation and that the trooper had no adequate
probable cause to investigate for additional criminal activity. The Court
disagreed because the trooper requested consent after the citation was
issued and the ensuing conversation was consensual. Thus, the Court believed
that Lattimore was not being detained and that a reasonable person would
have felt free to decline the trooper’s request.
Another situation involving when a detainee may feel free to leave arose
in Ohio v Robinette(15).
Robinette was asked permission to search his car after a speeding citation
was issued. This case caused a great deal of controversy, for it appeared
that thousands of motorists were being delayed and subjected to a “fishing
expedition.” Despite some evidence that patrol officers in Ohio were
searching vehicles just to practice their “drug interdiction technique,”
the Supreme Court said that no officer had to inform a detainee beforehand
that the detainee was free to leave.
In Bumper v North Carolina(16),
the police were not as fortunate. The consent given was gained by coercion.
Mrs. Leath, the petitioner’s grandmother, was approached by four law
enforcement officers and informed that they had a warrant to search her
residence. The warrant was not read to her and she never saw this warrant.
She still allowed the police to conduct a search that eventually
produced incriminating evidence. At trial, the prosecution asserted that
although the police had a search warrant, the search was conducted based on
Mrs. Leath’s affirmative consent. The Supreme Court did not concur:
a prosecutor seeks to rely upon consent to justify the lawfulness of a
search, he has the burden of proving that the consent was, in fact, freely
and voluntarily given. This burden cannot be discharged by [391 U.S. 543,
549] showing no more than acquiescence to a claim of lawful authority.
search conducted in reliance upon a warrant cannot later be justified on the
basis of consent if it turns out that the warrant was invalid. The result
can be no different when it turns out that the State does not even attempt
to rely upon the validity of the warrant, [391 U.S. 543, 550] or fails to
show that there was, in fact, any warrant at all.
When a law enforcement
officer claims authority to search a home under a warrant, he announces in
effect that the occupant has no right to resist the search. The situation is
instinct with coercion—albeit colorably lawful coercion. Where there is
coercion there cannot be consent.
Thus far, only issues regarding consent to search that was granted
by the individual in question have been discussed. One should also consider
the guidelines pertaining to a second-party consenter. These guidelines
usually cause a dilemma that contains two court phrases: mistake of law and
mistake of fact.
Mistake of law is discussed in United States v Whitfield(17).
Whitfield’s mother refused to sign a written consent form but allowed FBI
agents to conduct a search of her son’s room. The agents had confirmed
that Mrs. Whitfield owned the home, her son was not paying rent, and his
bedroom door was not locked. Accordingly, the agents believed that they had
received legal consent. The Circuit Court of D.C. disagreed, however. This
appellate court proclaimed that although the agents truly believed Mrs.
Whitfield could gave consent, the agents had misinterpreted the law in this
situation because the mother had no authority to allow a search of her
Mistake of fact is discussed in Illinois v. Rodriguez(18).
Rodriguez had apparently beaten his girlfriend, Ms. Fischer, who had called
the police from her mother’s house. Ms. Fischer told the police that
Rodriguez was at their apartment and took the police to it. She took
a key from her purse, unlocked the door, and let them in. In the process of
arresting Rodriguez, the police observed, in plain view, cocaine and other
drug paraphernalia. It was learned at trial that Ms. Fischer had not lived
at Rodriguez’s apartment for at least a month, she had never contributed
to the rent, and she never told Rodriguez that she had a key to his
apartment. The Supreme Court held that these instances were mistakes of fact
and that the police reasonably believed Fischer could give a legitimate
A similar situation developed in People v Kramer(19).
Because Kramer was past-due three months with his rent, his landlord entered
Kramer’s apartment and saw some marijuana plants. Upon arrival, the police
were immediately taken to the apartment. Kramer was subsequently arrested.
The appellate court ruled that the police only assumed the landlord had
legal access to the apartment. Since landlords are not usually the proper
authority to grant a search of a tenant’s property, the police officers’
assumption was a mistake—a mistake of not gathering enough facts. The
court warned that “police officers may not always accept an invitation to
enter premises. Even if the consenter claims to live on the premises, the
officers must make further inquiry if the surrounding circumstances would
raise a doubt of that claim.”
Search and seizure is a powerful tool for law enforcement but one that
any person would take as a personal affront. Law enforcement personnel must
be educated with the legal and illegal procedures of this investigatory
process. This procedure is taken very seriously but the courts and the
legislature because search and seizure is so intrusive. For example, in
1995, a measure was introduced to the House of Representatives that would
change the Fourth Amendment somewhat. This bill would have allowed
unlawfully seized evidence to be considered in court if police had any
reasonable belief that they were acting legally. The bill was rejected
soundly with a vote of 303 to 121.
Search and seizure of the individual and of the automobile is a complex
issue in which the rules change often. Decisions of the US Supreme Court and
appeals courts involving the Fourth Amendment purport to guide police
conduct. Notwithstanding, the police should view the determinations of these
courts as a learning tool and continually educate themselves.
(1) Malley v. Briggs, 475
U.S. 335 (1986)
(2) Terry v. Ohio, 392 U.S. 1 (1968)
(3) Minnesota v. Dickerson (1993)
(4) Sibron v. New York, 392 U.S. 40 (1968)
(5) Brown v. Texas, 443 U.S. 47 (1979)
(6) Michigan v. DeFillippo, 443 U.S. 31
(7) New York v. Belton, 453 U.S. 454 (1981)
(8) United States v Ross 456 U.S. 798(1982)
(9) California v. Acevedo, 49 CrL 2210
(10) United States v. Sharpe, 470 U.S. 675 (1985)
(11) Florida v. Royer, 460 U.S. 491 (1983)
(12) United States v. Place, 462 U.S. 696 (1983)
(13) United States v Lattimore, 4th Cir. (June 1996)
(14) United States v
Thompson, 876 F.2d 1381, 1384 (8th Cir.) cert. denied, 493 U.S. 868 (1989)
(15) Ohio v. Robinette, ___ U.S. ___ (November1996)
(16) Bumper v. North Carolina, 391 U.S. 543 (1968)
(17) United States v Whitfield, 939 F.2d 1071 (D.C.
(18) Illinois v.
Rodriguez, 497 U.S. 177 (1990)
(19) People v Kramer, 562 N.E.2d 654 (Ill. App. 4 Dist.
Other cases of interest regarding
consent to search:
United States v. Watson, 423 U.S. 411 (1976)
Schneckloth v. Bustamonte, 412 U.S. 218 (1973)
Florida v. Jimeno, 500 U.S. 248 (1991)
Note: I wrote this article before I began college and as I was
leaving the law enforcement field. I stand by the content, but I think the
article demonstrates that it is written by someone with hands-on experience
and no scholarly background.
Patrick Fagan, email, October, 2001.