Some of the greatest controversies surrounding the 4th Amendment have involved trying to determine when a warrant is not required for a search or seizure. In each case, the courts must decide when the people’s right “to be secure in their persons, houses, papers, and effects” is outweighed by some competing interest, such as the effective enforcement of the law or the safety of the police or the community. A regulatory agency, for instance, may search certain buildings randomly and without “probable cause” in order to ensure that safety codes are met. And police may arrest a person outside of his home without a warrant as long as they have probable cause to believe that he has committed a crime. They may also search property without a warrant if “exigent circumstances” exist—situations in which time is of the essence, for example, when people are in danger or evidence is being destroyed. In addition, the police have some discretionary powers to search automobiles (which can be easily moved), to conduct searches “incident to arrest” (to “frisk” suspects to make sure they are not armed), and to search prisons and jails.
Police are granted exceptions to search automobiles without a warrant when they have probable cause. These searches are often justified because the police must impound a vehicle for extended periods, and it is in their interests to ensure that there are no dangerous materials in the car. In addition, the police are held responsible for the contents of a car while it is in their custody, so it is in their interest to know what they are protecting. But moving vehicles have long been treated as a separate class of property subject to warrantless search. As early as 1925, Chief Justice Taft articulated the difference in Carroll v. United States. Noting that the First Congress drew a distinction between the searches of ships and homes in the Collection Act of 1789, he concluded that the Court was justified in distinguishing between “the necessity for a search warrant between goods subject to forfeiture, when concealed in a dwelling house or similar place, and like goods in course of transportation and concealed in a movable vessel where they readily could be put out of reach of a search warrant.” The grounds for drawing a distinction between moving vehicles and other forms of property have changed, but the distinction itself has a long history.
The police are given wide latitude to conduct searches “incident to an arrest.” These searches can include the vicinity wherein an arrest takes place or the “frisking” of the suspect himself. These actions are generally—though not always—defended as a means to protect the arresting officer from weapons that might be within reach of a suspect. But these searches often yield evidence of a crime, and such evidence has successfully been used against a suspect during trial. The police also have the power to seize anything in the suspect’s possession at the time of arrest, including his or her car.
In Hudson v. Palmer (1984), Chief Justice Burger stated that “the 4th Amendment has no applicability to a prison cell.” While it may seem obvious that the rights to privacy are among the many rights curtailed when a convict is punished for a crime, this deprivation has been upheld even for persons jailed on suspicion of very minor infractions. In one recent case, Florence v. Board of Chosen Freeholders (2012), Albert Florence claimed a violation of his 4th Amendment rights because he was subjected to two strip searches after being arrested for failure to pay a fine for a traffic violation (although not legally relevant, it is interesting to note that the fine had already been paid at the time he was arrested). The Court decided that such searches were not unreasonable under the 4th Amendment. Justice Kennedy, delivering the opinion of the Court, asserted that any rule that required prison officials to separate those prisoners likely to be carrying contraband from those who were not would be “unworkable” in practice: “The record provides evidence that the seriousness of an offense is a poor predictor of who has contraband and that it would be difficult in practice to determine whether individual detainees fall within the proposed exemption.”
Recent controversy over the meaning of “unreasonable searches” has been sparked in response to the heightened security at airports following the 9/11 terrorist attacks. New body scanners are able to create what are essentially nude images of passengers, images which are then viewed by anonymous TSA agents. Passengers may opt out of being scanned, but those who do so (and those who are flagged due to an irregularity in the electronic screening process) must submit to “enhanced pat-downs.” These physical searches require federal agents to feel a passenger’s groin area and place their hands between a woman’s breasts. Instances of unwanted touching that under other circumstances would be subject to criminal prosecution are now often required if a passenger wishes to board a plane. One outraged San Diego man told an airport security screener “if you touch my junk I’ll have you arrested.” The man ultimately chose to forfeit his airline ticket rather than submit to the pat-down.
In a 1973 Ninth Circuit Court of Appeals case, United States v. Davis, random airport searches (which at the time typically included only metal detectors and rummaging through carry-on baggage) were upheld because they were “administrative screenings” designed to prevent weapons from entering planes; they were not designed to find evidence of criminality. One important consideration in Davis was that a person may avoid screening altogether by electing not to fly. The Court ruled, however, that “to meet the test of reasonableness [under the 4th Amendment], an administrative screening search must be as limited in its intrusiveness as is consistent with satisfaction of the administrative need that justifies it.” The question is: Does society’s admittedly compelling interest in safe air travel justify the intrusiveness of today’s TSA procedures?