Effective 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 and vehicles.

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 down. 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:

The 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 dangerous.

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:

Where 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:

The 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 cause.

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 conversation:

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] you mean?

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.

Lattimore: That’s what I’m saying. It don’t really make no difference.

Trooper: Well,- -

Lattimore: That’s 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:

In 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:

When 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. 

A 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 son’s room.

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 consent.

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.
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(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 (1979)
(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 (1991)
(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. Cir. 1991)
(18) Illinois v. Rodriguez, 497 U.S. 177 (1990)
(19) People v Kramer, 562 N.E.2d 654 (Ill. App. 4 Dist. 1990)

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.