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Excerpted From: Georgetown University and The Georgetown Law Journal, Warrantless Searches and Seizures, 49 Georgetown Law Journal Annual Review of Criminal Procedure 51 (2020) (276 Footnotes) (Full Document- Check Library)



Under the Fourth Amendment, every search or seizure by a government agent must be reasonable. In general, searches and seizures are unreasonable and invalid unless based on probable cause and executed pursuant to a warrant. However, certain kinds of searches and seizures are valid as exceptions to the probable cause and warrant requirements, including investigatory stops, investigatory detentions of property, warrantless arrests and searches, searches incident to valid arrests, seizures of items in plain view, searches and seizures justified by exigent circumstances, consensual searches, searches of vehicles, searches of containers, inventory searches, border searches, searches at sea, administrative searches, and searches in which the special needs of law enforcement make the probable cause and warrant requirements impracticable.

Investigatory Stops of Persons. (See Full Document for Citations)


A seizure occurs when a reasonable person would not feel (1) “free to leave” or (2) “free to decline the officers' requests or otherwise terminate the encounter.” This standard is objective--it relies on whether a reasonable person would believe they are not free to leave rather than the suspect's subjective beliefs. Investigatory stops--brief seizures by police officers that fall short of traditional arrests--are governed by the Fourth Amendment and are lawful when justified by an officer's reasonable suspicion that an individual is engaged in criminal activity. Reasonable suspicion, a lesser standard than probable cause, exists when an officer can “point to specific and articulable facts, which, taken together with rational inferences from those facts, reasonably warrant th[e] intrusion.” A factor contributing to reasonable suspicion cannot be discounted just because there is an innocent explanation for the factor. Inarticulable hunches or generalized suspicions are insufficient. In adopting this formulation, the Supreme Court in Terry v. Ohio emphasized the importance of balancing “the need to search [or seize] against the invasion which the search [or seizure] entails.”

To determine whether reasonable suspicion existed at the time of the encounter, courts use a “totality of the circumstances” test. Police may stop and question a person--on foot or in a vehicle--for a limited period of time when they reasonably suspect that the person is engaged in criminal activity. The requirements for performing an investigatory frisk are discussed later in this Section.

Generally, investigatory stops are valid only if the suspicion is objectively reasonable. An officer's subjective intentions are irrelevant to the constitutionality of an investigatory stop under the Fourth Amendment. The primary bases for reasonable suspicion are a police officer's personal observations. and the officer's knowledge obtained or imputed from others that a crime has been committed. Courts, reasoning that an experienced officer can infer criminal activity from conduct that may seem innocuous to a lay observer, afford considerable deference to the observations and conclusions of the police.

Isolated or minimal instances of innocent activity are insufficient to constitute reasonable suspicion, but several apparently innocent activities taken together may meet the required standard.

Reliable information from an informant may also create reasonable suspicion and justify an investigatory stop. Courts assess the reliability of an informant's tip on a sliding scale: greater corroboration is necessary to justify acting on a tip from an unknown informant or an informant of uncertain trustworthiness; less corroboration suffices if the information is from a known source or a source that has proven previously trustworthy.

The presence of a suspect in a high-crime neighborhood does not, standing alone, justify a seizure. Courts may use this factor, however, in assessing the totality of circumstances surrounding a seizure. For example, a suspect's unprovoked flight upon seeing the police can justify a seizure when it occurs in a high-crime neigh-borhood. Generalized suspicion of criminal activity based solely on race does not justify a seizure.

Police activities during an investigatory stop must be reasonably related to the circumstances that initially justified the stop. During a lawful investigatory stop, police may ask questions or request documents to establish a person's identity and to confirm or dispel suspicions of criminal activity. If reasonable suspicion does not exist, police may still order occupants out of a vehicle they have lawfully stopped. In addition to detentions that are justified in the absence of a warrant, a detention may be justified because a valid warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants on or in the immediate vicinity of the premises while the search is conducted.

When the police hold a suspect beyond the amount of time necessary to effectuate the purpose of the stop, the seizure becomes an arrest and must be supported by probable cause. The Supreme Court has declined to establish a bright-line rule to determine when an investigatory stop becomes an arrest. Instead, whether an investigatory stop has become an arrest is decided on a case-by-case basis. In making such decisions, courts consider the diligence of police in resolving their reasonable suspicion as quickly as possible, the scope and nature of the restraints placed on an individual's liberty, and whether police transported the individual to another location. The mere existence of a less intrusive means of investigation does not make a detention unreasonable. When a detainee's own actions contribute to the duration of a stop, a longer detention may be reasonable.

Under Terry, a police officer who makes an investigatory stop may conduct a limited pat-down, or frisk, of a suspect's outer clothing if the officer has reasonable suspicion that the suspect is armed and dangerous. The frisk may be conducted only if the officer has a reasonable belief that the detainee poses a threat to the officer's safety or the safety of others. Its scope must be limited to a search for weapons and may not be used to search for evidence of criminal activity.

Investigatory Detentions of Property. Under the Fourth Amendment, seizures of property in which a person has a legitimate privacy interest are valid only when police reasonably suspect that the property contains evidence of criminal activity. Seizures of property that is abandoned, in plain view, or obtained by consent are valid because the Fourth Amendment does not protect voluntarily surrendered privacy interests. When evaluating the reasonableness of a seizure of property, courts consider the duration and intrusiveness of the seizure, including how quickly police conducted their investigation of the seized property and whether police moved the seized property to a different location after seizing it.

Although brief seizures of property are valid if based on reasonable suspicion, a subsequent search of seized property is generally valid only if executed pursuant to a warrant issued upon probable cause.


Warrantless Arrests and Searches (See Full Document for Citations)


In certain circumstances, a law enforcement officer may lawfully arrest a person without an arrest warrant. An officer may conduct a warrantless arrest if (1) the officer has probable cause to believe the arrestee has committed an offense in the officer's presence, (2) the officer has probable cause to believe the arrestee has committed a felony and the arrest occurs in a public place, or (3) the officer has probable cause for an arrest and the circumstances are “exigent.” After making a warrantless arrest, an officer must promptly secure a judicial determination of probable cause. The probable cause required to make a lawful warrantless arrest is identical to the probable cause required to secure an arrest warrant.

A warrant is, however, needed for an officer to enter and arrest a suspect in their home, unless (1) there is consent, or (2) there are exigent circumstances such as fear of imminent destruction of evidence, hot pursuit, or imminent threats to the safety of the public or officers. Courts disapprove of police conduct that creates exigent circumstances to justify a warrantless arrest in a suspect's home, but will often sustain such arrests when the police can demonstrate that their actions were motivated by legitimate law enforcement needs.

The special protections afforded to dwellings extend to rented premises, hotel rooms, and temporary residential arrangements, but not beyond the premises to hallways, common areas, areas outside the home's curtilage, or areas where there is no legitimate expectation of privacy. Even with an arrest warrant, police may not enter the home of a third person to arrest an individual not residing there unless the police have a search warrant, consent, or there are exigent circumstances. However, these protections extend only to the third-party resident and may not be asserted vicariously by the individual named in the arrest warrant. In determining whether the arrestee's Fourth Amendment rights are violated by a search or seizure in a third party's home, Payton controls.

Searches Incident to Valid Arrests.   (See Full Document for Citations)


When conducted incident to a lawful custodial arrest, a full search of the arrestee's person for both weapons and evidence is permitted. In addition, police may search containers and other items found on the arrestee's person and any items or areas within the person's immediate control at the time of the arrest. However, the search of the arrestee's person may not be unreasonably intrusive.

When police make a valid arrest of a recent occupant of a vehicle, police may search the passenger compartment of the vehicle only (1) “when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle” or (2) “when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” Authorization to search a vehicle's passenger compartment also extends to any containers found therein.

Although police must conduct searches incident to arrest reasonably promptly, substantial delay may be appropriate based on the circumstances surrounding a particular arrest. Searches incident to arrest conducted immediately before formal arrest are valid only if probable cause to arrest existed prior to the search. If the probable cause to arrest derives from a warrantless search, then the search is not justifiable as a search incident to arrest.

In general, an arrest does not justify a search of the arrestee's entire home. However, officers may conduct a limited protective sweep of “closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.” This sweep may extend to a non-adjoining area only if officers have a “reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.” The protective sweep may only entail a cursory inspection of those spaces in which a person may be found and cannot last longer than is reasonably necessary to dispel suspicion of danger.


Seizures of Items in Plain View. (See Full Document for Citations) 


In certain situations, police may seize evidence that is in plain view without a warrant. First, the police must not “violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed.” Thus, police may lawfully seize evidence in plain view when executing a search warrant or arrest warrant and when conducting a lawful warrantless search. Second, the incriminating character of the evidence seized must be immediately apparent, and police may not disturb or further investigate an item to discern its evidentiary value without probable cause. To establish probable cause, however, police may engage in certain investigatory actions not considered a search under the Fourth Amendment.

Warrantless seizures of evidence based on the plain view doctrine may be valid even if the officers expected to find the seized evidence. The plain view doctrine also permits police to seize a container if its incriminating character is immediately apparent, and police may search inside the container if its contents are in plain view. In Minnesota v. Dickerson, the Court expanded the plain view doctrine to include a “plain touch” corollary. The Supreme Court has endorsed a “plain smell” test, and several courts have adopted a “plain hearing” test.


Exigent Circumstances.    (See Full Document for Citations)


Government agents may conduct a warrantless search or seizure if (1) probable cause supports the search or seizure, and (2) “exigent circumstances” exist. Exigent circumstances include imminent destruction of evidence, a threat to the safety of law enforcement officers or the general public, “hot pursuit” of a suspect by police, or likelihood that a suspect will flee before the officer can obtain a warrant.

If exigent circumstances do not compel an immediate warrantless search, police may secure a residence to prevent destruction or removal of evidence before obtaining a search warrant.

If police reasonably believe that their safety or the safety of others is threatened, they may enter a dwelling and conduct a search as broad as necessary to alleviate the danger. If officers reasonably believe inherently dangerous items are present, they may search in places where those items could reasonably be found. The police may also enter a residence in order to render emergency aid to victims or those imminently threatened with harm. Extremely dangerous conditions may create exigent circumstances that justify warrantless entry of a home. Other dangers to the public, such as fires or potential fires, may also constitute exigent circumstances that justify a warrantless entry. Officials at the scene of a fire or explosion do not need a warrant to remain in the building for a reasonable time after the fire has been extinguished to investigate the cause, to search for victims, or to prevent further dam age. However, once the cause has been established, officials must secure a warrant to conduct a further search for evidence.

Warrantless searches may also be justified by the exigency of hot pursuit if the pursuing officers have probable cause to arrest the fleeing suspect. The Supreme Court has stated that “hot pursuit” means some sort of chase, but it need not be an “extended hue and cry in and about [the] public streets.” The hot pursuit justification for a search is valid only if officers make an immediate and continuous pursuit of the suspect from the crime scene. The scope of a search justified by hot pursuit is only as broad as necessary to prevent the suspect from resisting arrest or escaping.

A warrantless entry or arrest may be justified if the police have reason to believe that a suspect will flee before the police can obtain a warrant. The scope of such a search is only as broad as necessary to prevent the suspect from resisting arrest or escaping. Beyond the specific examples of exigent circumstances listed above, courts consider several factors to decide whether a search or seizure is justified by exigent circumstances. First, courts consider the gravity of the offense that prompts the search or seizure. Second, courts consider whether the police conducted the search or seizure in a reasonable manner, which requires the police to show that a telephone warrant was unavailable or impractical. Third, courts consider whether the police impermissibly engaged or threatened to engage in conduct that violates the Fourth Amendment to create an exigency and subsequently use that exigency to justify a warrantless search or seizure. However, police generally do not have a duty to alleviate potential exigencies. To determine whether exigent circumstances justify a warrantless entry, courts examine the totality of circumstances during the period immediately preceding the entry.


Consent Searches.   (See Full Document for Citations)


government officials may conduct a search without a warrant or probable cause based upon an individual's consent only if that consent (1) was voluntary and (2) came from someone authorized to give it. Any evidence discovered during a lawful consent search may be seized and admitted at trial. Consent may be express or implied and need not be knowing or intelligent, even though it constitutes a waiver of Fourth Amendment rights.

To determine whether consent was given voluntarily, courts examine the totality of the circumstances. Factors that weigh on the court's determination of voluntariness include: (1) the consenting individual had or reasonably should have had knowledge of the constitutional right to refuse consent; (2) the consenting individual's age, intelligence, education, and linguistic ability; (3) the degree to which the consenting individual cooperates with the police; (4) the consenting individual's attitude about the likelihood of the discovery of contraband; and (5) the length of detention and the nature of questioning, including whether police commit or threaten physical punishment or other coercive behavior.

No single factor is dispositive in assessing voluntariness. Moreover, the influence of drugs, intoxication, and mental agitation do not automatically render consent involuntary. Additionally, persons in lawfully-detained vehicles need not be advised that they are free to leave before giving voluntary consent. The prosecution bears the burden of proving voluntary consent. Whether consent was voluntary is a question of fact reviewed under a clearly erroneous standard.

Consent is not voluntary if given only in acquiescence to a claim of lawful authority. Therefore, a search may not be justified based on consent given only after the official conducting the search asserts possession of a warrant or the possibility of obtaining a warrant if necessary. In addition, consent cannot justify a search conducted in reliance upon a warrant if a court subsequently determines that the warrant was invalid.

Consent to search is invalid if an illegal search or seizure occurred before consent was given. If, however, consent to search is given under conditions sufficiently attenuated from an illegal arrest or search, evidence discovered during the subsequent search will not be suppressed.

In addition to express consent, consent may be implied by the circumstances surrounding the search, the person's prior actions or agreements, or the person's failure to object to the search.

Consent can be given from either the defendant or an authorized third party. Valid consent can be given by anyone with a reasonable expectation of privacy in the place or effects being searched, anyone with common authority, or anyone with a sufficient relationship to the place or effects being searched. However, if two residents are present during the search of their dwelling, and one expressly denies consent, the other's consent is not valid. Courts recognize common authority to consent in each person whose mutual use of the property demonstrates “joint access or control for most purposes.” The law presumes that other users of the property assume the risk that areas under common control may be searched. The prosecution bears the burden of establishing that common authority exists.

Moreover, a warrantless search is valid when law enforcement relies on a person's “apparent authority” to consent to the search if the reliance is in good faith and is reasonable based on all facts known by police at the time of the search. Some courts have held that even if a third party is acting as an informant or other agent of the government, that person may still consent to a warrantless search if otherwise empowered to consent.

The scope of a consent search may not exceed the scope of the consent given. The scope of consent is determined by asking how a reasonable person would have understood the conversation between the officer and person who gave the consent at the time consent was given.

The express object of a search defines the scope of consent, unless the person who gave consent expressly limits the search's scope.

Consent to search may be revoked if a person effectively withdraws consent before police complete the search; police may not continue to search based on prior, withdrawn consent.


Vehicle Searches  (See Full Document for Citations)


In general, the Fourth Amendment does not require that police obtain a warrant to search an automobile when they have probable cause to believe it contains contraband or evidence of criminal activity. This exception to the warrant requirement--the “automobile exception”--stems from both the inherent mobility of vehicles and the reduced expectation of privacy that results from their pervasive regulation. Even if a vehicle's mobility is temporarily restricted or potential drivers have been secured, many circuits have held that warrantless searches are still valid. The automobile exception has been applied to motorhomes and portable campers, as well as planes, trains, and water-going vessels.

If police have probable cause to search an entire vehicle, they may search all compartments, containers, and packages within the vehicle, including those belonging to passengers. In California v. Acevedo, the Supreme Court confronted a variant of this scenario: Police had probable cause to believe that a particular container--a brown sack--held contraband, and they watched the defendant place the container in the trunk of his car. Although a warrant is generally required to search containers, the Court held that, when placed in a vehicle, a container may be searched on probable cause alone. In addition, the police may search a particular part of the vehicle if there is probable cause to believe the container will be found there, but a search of the entire vehicle is unlawful absent probable cause to search the entire vehicle.

Vehicle searches performed after exigent circumstances have passed are valid as long as the police legitimately could have searched the automobile at some point. In Chambers v. Maroney, the Supreme Court upheld the warrantless seizure and subsequent search of a car at a police station because there was probable cause at the time of the stop to justify an immediate search. Moreover, in Florida v. Meyers, the Court upheld the warrantless search of an impounded car that had already been subject to a legitimate search.

An officer with probable cause to believe that a driver has violated a traffic law may temporarily detain the driver--regardless of the officer's motivations or suspicions may conduct a limited search of the driver and vehicle for weapons if the officer reasonably believes that the driver is potentially dangerous. Absent a reasonable belief of potential danger, an officer may not search the passenger compartment of an arrested driver's vehicle unless the officer reasonably believes that it may contain evidence of the offense for which the driver is being arrested, or the arrestee has physical access to the passenger compartment during the search. Officers may conduct a drug-detection dog sniff test on a car during a lawful traffic stop, but they may not prolong an otherwise completed traffic stop.

Legal challenges to the validity of a search under this exception are typically considered by the courts only if brought by the owner or by an operator with legitimate possession of the vehicle.


Container Searches  (See Full Document for Citations)


When police have reasonable suspicion that evidence of criminal activity or contraband is located in a movable container, they may secure the container to prevent its loss or destruction or to perform a dog-sniff test. However, a warrant is required to search the container unless an exception to the warrant requirement applies. The police may conduct a warrantless search of any container located in an automobile if probable cause exists to search the container itself or the automobile as a whole. Similarly, no warrant is necessary to search a container if its illicit contents are in plain view or may be inferred from the container's outward characteristics, if the container is abandoned, or if the container search is simply repeated to the extent of a previously conducted private search.

Other exceptions to the warrant requirement may apply after a lawful seizure of an individual or a container. For example, following a custodial arrest, the police may search any container within the arrestee's “immediate control,” including those on the arrestee's person and those found in an “area from within which [the arrestee] might gain possession of a weapon or destructible evidence.” In the automobile context, the Supreme Court has interpreted this to mean the area that the suspect can reach if unsecured at the time of the search. Containers can also be searched if police have reason to believe they contain evidence of the crime for which the suspect was arrested.


Cell Phone Searches  (See Full Document for Citations)


In general, before searching a cell phone seized incident to an arrest, police must get a warrant unless the government's interests are so compelling that a search would be reasonable. The government's interests in protecting officer safety and in preventing destruction of evidence are not sufficient to justify a warrantless search of cell phone data.


Inventory Searches  (See Full Document for Citations)


After lawfully taking custody of property, police may conduct a warrantless search of that property if the owner's diminished expectation of privacy is outweighed by the government's interest in satisfying one of three purposes: (1) protecting the owner's property while it is in police custody; (2) protecting the police against claims of lost or stolen property; or (3) protecting the police from potential danger. Because the justification for the search is the production of an inventory of the container's contents, police may not conduct an inventory search in bad faith or solely for investigative purposes. Nevertheless, an inventory search may be justified by legitimate inventory purposes despite the presence of additional investigative motives.

Inventory searches are only valid if conducted according to standardized criteria and procedures. Within the framework of these criteria, however, officers may exercise discretion to determine the appropriateness and scope of an inventory search, and they are not required to use the least intrusive means to secure property lawfully in their possession.

Courts have upheld inventory searches of vehicles lawfully in police custody, including searches of the passenger compartment, glove compartment, trunk (with some exceptions), engine compartment, and any containers in the vehicle. Police may search containers and items in the possession of lawfully detained individuals. In addition, government officials may inspect seemingly abandoned property to determine the owner's identity, to protect public safety, or to inventory the property for safekeeping.


Border Searches  (See Full Document for Citations)


The Fourth Amendment does not require warrants for routine stops and searches at borders because the state and its public officials have the right to protect the United States by stopping and examining persons and property entering or leaving the country. Under this “border search” exception to the warrant requirement, routine border stops and searches of persons, luggage, personal effects, and vehicles may be conducted without probable cause or reasonable suspicion. Detention beyond a routine customs stop and search, however, requires at least a reasonable suspicion of wrongdoing. Although the Supreme Court has not stated what distinguishes a routine from a nonroutine border search, circuit courts have examined several factors in making such a determination. Most searches of persons, luggage, personal effects, and vehicles are found to be sufficiently nonintrusive and, therefore, qualify as routine border searches. Circuit courts generally agree that strip searches, X-ray examinations of persons, and body-cavity searches are “nonroutine” and thus require reasonable suspicion.

The border search exception also applies to searches conducted at the “functional equivalent” of a border, which has been construed as the first practical detention point after a border crossing or a final port of entry. Under the “extended border search” doctrine adopted by several circuits, government officials may conduct a warrantless search beyond the border, or its functional equivalent, if there is (1) “reasonable certainty” or a “high degree of probability” that a border was crossed; (2) “reasonable certainty” that no change in the object of the search has occurred between the time of crossing and the search; and (3) “reasonable suspicion” that criminal activity is occurring.

The border search exception allows the government to conduct warrantless searches of persons who appear to be undocumented immigrants. In United States v. Martinez-Fuerte, the Supreme Court held that government officials may, without individualized suspicion, briefly stop vehicles at a permanent border checkpoint and question the driver and passengers. The vehicle and its occupants may also be selectively referred to a secondary checkpoint for further questioning without individualized suspicion. Any detention or search beyond this point must be justified by consent or probable cause.

Under certain circumstances, a border search for undocumented immigrants may justify use of a roving border patrol. Roving border patrol agents may stop a vehicle if specific articulable facts, together with rational inferences derived from those facts, provide reasonable suspicion that the vehicle contains undocumented immigrants. The officer who stops the vehicle may inquire about citizenship, immigration status, and suspicious circumstances, but any further detention or search must be based on consent or probable cause.


Searches at Sea  (See Full Document for Citations)


Coast Guard and customs officers are authorized by statute to board any vessel in U.S. territorial waters to conduct routine document and safety inspections without a warrant or suspicion of criminal activity if the vessel is subject to the jurisdiction or operation of U.S. law. Such document and safety inspections are limited to examining documents, visiting the vessel's public areas, examining safety equipment, and entering the hold to obtain the main-beam number. Once on board, increased suspicion of illegal activity may authorize officers to expand the search or seize the vessel. Statutes authorizing searches at sea generally do not limit how frequently officers may search an individual vessel. Warrantless document and safety inspections may be conducted even if the inspectors also suspect criminal activity.

Because there is a reasonable expectation of privacy in nonpublic areas of the vessel with limited common access, warrantless searches that extend beyond document and safety inspections require some particularized suspicion of wrongdoing. Limited searches of domestic vessels beyond document and safety inspections require reasonable suspicion of criminal activity, whereas full “stem-to-stern” searches require probable cause.

Customs officials are authorized to conduct document and safety inspections of foreign or domestic vessels located (1) in the United States, (2) within customs waters, (3) within a “customs-enforcement area,” or (4) in any “other authorized place.” Customs officers are not generally authorized to search vessels on the high seas. However, they are authorized to board and examine a “hovering vessel” wherever it is found, including on the high seas. Customs officers may also pursue a fleeing vessel beyond customs waters if the vessel was originally hailed within customs waters.

Because Coast Guard officers are considered customs officers, they may act pursuant to the statutory authority granted to customs officials. Unlike other customs officials, however, the Coast Guard may conduct inspections of vessels under jurisdiction of the United States on the high seas.

Foreign vessels within the territorial waters of the United States may also be boarded for document and safety inspections without reasonable suspicion of criminal activity. Coast Guard officers may board and search a foreign vessel on the high seas if they have reasonable suspicion that the vessel is subject to jurisdiction of the United States and has violated United States law, or if the flag state of the vessel consents. Government officials may board a “[v]essel without nationality” to determine its true identity. Additionally, true “vessels without nationality” may be treated as if they are United States vessels and are subject to jurisdiction and laws of the United States.



Administrative Searches  (See Full Document for Citations)


Search warrants are generally required for administrative fire, health, or safety inspections of residential or private commercial property. Even where a warrant is not required, there must be some opportunity for precompliance review before a neutral decisionmaker, unless there is consent or an exigent circumstance. The probable cause requirement for administrative warrants is less stringent than it is for criminal investigations because the privacy interests at stake are considered less important. An administrative search is valid if there is evidence of an existing violation or if the search is conducted pursuant to a general, neutral administrative plan. An administrative search is invalid if its sole or primary purpose is to seek evidence of criminal activity. However, a combination of administrative and criminal investigatory purposes is acceptable as long as officials have a valid basis for the administrative search independent of their suspicion of criminal activity. Also, if a valid administrative search discloses evidence of criminal activity, the evidence may be seized under the plain view exception to the warrant requirement.

The Supreme Court has upheld warrantless administrative searches of closely or “pervasively” regulated businesses. The justification for this exception to the warrant requirement is that individuals doing business in a closely regulated industry have a reduced expectation of privacy. Whether an industry is closely regulated depends on the “pervasiveness and regularity of the ... regulation” and the effect of such regulation on the privacy expectations of persons doing business in the industry. A warrantless administrative search of a closely regulated business is reasonable if (1) there is a substantial state interest behind the regulatory scheme; (2) the search is necessary to further that scheme; and (3) the authorizing statute is an adequate substitute for the warrant requirement because it gives notice to business owners and limits the discretion of those performing the search.


Special Needs Searches.  (See Full Document for Citations)


The Supreme Court has held that certain programmatic searches do not require a warrant or probable cause when they are conducted in furtherance of a government “special need” other than the investigation of criminal activity. These “special needs” searches are evaluated under a two-pronged approach. First, they must further a “special need [], beyond the normal need for law enforcement,” which would be jeopardized by a warrant or probable cause requirement. To qualify as a special need, a government interest must be a real, current, or vital problem that the proposed search effectively addresses. Second, if there is a special need, and the individualized suspicion requirement would jeopardize that need, courts evaluate the reasonableness of the search by balancing the nature of the intrusion on the privacy interest at stake against the government interest served by the search. Determining whether special needs searches are permissible is therefore heavily fact- and case-specific.

Special needs searches have been permitted in several distinct areas. For example, the Supreme Court has upheld programmatic, suspicionless drug testing of government employees as a type of special needs search. The interest in public safety served by testing government employees often outweighs the intrusion on the employees' privacy interests. Yet, even unintrusive drug testing is invalid if the government does not show that there is an immediate public safety concern and that the search in question effectively addresses the concern.

Warrantless searches of the homes and property of parolees and probationers have also been permitted if they are reasonable under the totality of the circumstances. Such searches do not require probable cause, but they must be conducted in furtherance of the state's special need to supervise parolees and probationers and thus must be related to parole or probation conditions.

Collection of DNA from individuals who have been arrested is permitted without a warrant as part of a routine booking process. Law enforcement's strong interest in identifying arrestees outweighs the privacy interests of individuals who have been arrested on probable cause.

The Supreme Court has also upheld searches of public employees' offices as special needs searches. Even if a public employee has a reasonable expectation of privacy in the particular workplace area searched, probable cause of a crime is not required for a government search of a workplace conducted either for “noninvestigatory, work-related purposes” or in the course of “investigations of work-related misconduct.”


Abandoned Property.   (See Full Document for Citations)


Warrants are not required for searches and seizures of abandoned property. By voluntarily abandoning property, an individual forfeits any reasonable expectation of privacy in that property, even if he or she retains an ownership interest in it. order was granted.

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