The Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers, and effects” from unreasonable search or seizure. In general, this means police cannot search your property, or take it as evidence, without a warrant or probable cause. But determining exactly what “unreasonable” means has been the job of the Supreme Court.
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation
Certain early cases held that the Fourth Amendment was applicable only when a search was undertaken for criminal investigatory purposes.1 And until recently, the Supreme Court employed a reasonableness test for such searches without requiring either a warrant or probable cause in the absence of a warrant.2 But, in 1967, the Court in two cases held that administrative inspections to detect building code violations must be undertaken pursuant to warrant if the occupant objects.3
“We may agree that a routine inspection of the physical condition of private property is a less hostile intrusion than the typical policeman’s search for the fruits and instrumentalities of crime. But we cannot agree that the Fourth Amendment interests at stake in these inspection cases are merely ‘peripheral.’ It is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.4 Certain administrative inspections used to enforce regulatory schemes with regard to such items as alcohol and firearms are, however, exempt from the Fourth Amendment warrant requirement and may be authorized simply by statute.”5
Camara and See were reaffirmed in Marshall v. Barlow’s, Inc.,6 in which the Court held to violate the Fourth Amendment a provision of the Occupational Safety and Health Act that authorized federal inspectors to search the work area of any employment facility covered by the Act for safety hazards and violations of regulations, without a warrant or other legal process. The liquor and firearms exceptions were distinguished on the basis that those industries had a long tradition of close government supervision, so that a person in those businesses gave up his privacy expectations. But OSHA was a relatively recent statute and it regulated practically every business in or affecting interstate commerce; it was not open to a legislature to extend regulation and then follow it with warrantless inspections. Additionally, OSHA inspectors had unbounded discretion in choosing which businesses to inspect and when to do so, leaving businesses at the mercy of possibly arbitrary actions and certainly with no assurances as to limitation on scope and standards of inspections. Further, warrantless inspections were not necessary to serve an important governmental interest, as most businesses would consent to inspection and it was not inconvenient to require OSHA to resort to an administrative warrant in order to inspect sites where consent was refused.7
In Donovan v. Dewey,8 however, the Court seemingly limited Barlow’s reach and articulated a new standard that appeared to permit extensive governmental inspection of commercial property without a warrant. Under the Federal Mine Safety and Health Act, governing underground and surface mines (including stone quarries), federal officers are directed to inspect underground mines at least four times a year and surface mines at least twice a year, pursuant to extensive regulations as to standards of safety. The statute specifically provides for the absence of advanced notice and requires the Secretary of Labor to institute court actions for injunctive and other relief in cases in which inspectors are denied admission. Sustaining the statute, the Court proclaimed that government had a greater latitude to conduct warrantless inspections of commercial property than of homes, because of the fact that the expectation of privacy that the owner of commercial property enjoys in such property differs significantly from the sanctity accorded an individual’s home, and that this privacy interest may, in certain circumstances, be adequately protected by regulatory schemes authorizing warrantless inspections.9
Dewey was distinguished from Barlow’s in several ways. First, Dewey involved a single industry, unlike the broad coverage in Barlow’s. Second, the OSHA statute gave minimal direction to inspectors as to time, scope, and frequency of inspections, while FMSHA specified a regular number of inspections pursuant to standards. Third, deference was due Congress’s determination that unannounced inspections were necessary if the safety laws were to be effectively enforced. Fourth, FMSHA provided businesses the opportunity to contest the search by resisting in the civil proceeding the Secretary had to bring if consent was denied.10 The standard of a long tradition of government supervision permitting warrantless inspections was dispensed with because it would lead to absurd results, in that new and emerging industries posing great hazards would escape regulation.11
Dewey was applied in New York v. Burger12 to inspection of automobile junkyards and vehicle dismantling operations, a situation where there is considerable overlap between administrative and penal objectives. Applying the Dewey three-part test, the Court concluded that New York has a substantial interest in stemming the tide of automobile thefts, that regulation of vehicle dismantling reasonably serves that interest, and that statutory safeguards provided an adequate substitute for a warrant requirement. The Court rejected the suggestion that the warrantless inspection provisions were designed as an expedient means of enforcing the penal laws, and instead saw narrower, valid regulatory purposes to be served, such as establishing a system for tracking stolen automobiles and parts and enhancing the ability of legitimate businesses to compete. A State can address a major social problem both by way of an administrative scheme and through penal sanctions, the Court declared; in such circumstances warrantless administrative searches are permissible in spite of the fact that evidence of criminal activity may well be uncovered in the process.13
Most recently, however, in City of Los Angeles v. Patel, the Court declined to extend the more relaxed standard applicable to searches of closely regulated businesses to hotels when invalidating a Los Angeles ordinance that gave police the ability to inspect hotel registration records without advance notice and carried a six-month term of imprisonment and a $1,000 fine for hotel operators who failed to make such records available.14 The Patel Court, characterizing inspections pursuant to this ordinance as administrative searches,15 held that a hotel owner must be afforded an opportunity to have a neutral decision maker review an officer’s demand to search the registry before he or she faces penalties for failing to comply for such a search to be permissible under the Fourth Amendment.16 In so doing, the Court expressly declined to treat the hotel industry as a closely regulated industry subject to the more relaxed standard applied in Dewey and Burger on the grounds that doing so would permit what has always been a narrow exception to swallow the rule.17 The Court emphasized that, over the prior 45 years, it had recognized only four industries as having such a history of government oversight that no reasonable expectation of privacy . . . could exist for a proprietor over the stock of such an enterprise.18 These four industries involve liquor sales, firearms dealing, mining, and running an automobile junkyard, and the Court distinguished hotel operations from these industries, in part, because nothing inherent in the operation of hotels poses a clear and significant risk to the public welfare.19
However, the Court also suggested that, even if hotels were to be seen as pervasively regulated, the Los Angeles ordinance would still be deemed unreasonable because (1) there was no substantial government interest informing the regulatory scheme; (2) warrantless inspections were not necessary to further the government’s purpose, and (3) the inspection program did not provide, in terms of the certainty and regularity of its application, a constitutionally adequate substitute for a warrant.20
In other contexts, not directly concerned with whether an industry is comprehensively regulated, the Court has also elaborated the constitutional requirements affecting administrative inspections and searches. In Michigan v. Tyler,21 for example, it subdivided the process by which an investigation of the cause of a fire may be conducted. Entry to fight the fire is, of course, an exception based on exigent circumstances, and no warrant or consent is needed; firefighters on the scene may seize evidence relating to the cause under the plain view doctrine. Additional entries to investigate the cause of the fire must be made pursuant to warrant procedures governing administrative searches. Evidence of arson discovered in the course of such an administrative inspection is admissible at trial, but if the investigator finds probable cause to believe that arson has occurred and requires further access to gather evidence for a possible prosecution, he must obtain a criminal search warrant.22
One curious case has approved a system of home visits by welfare caseworkers, in which the recipients are required to admit the worker or lose eligibility for benefits.23 In another unusual case, the Court held that a sheriff’s assistance to a trailer park owner in disconnecting and removing a mobile home constituted a seizure of the home.24
In addition, there are now a number of situations, some of them analogous to administrative searches, where ‘special needs’ beyond normal law enforcement . . . justify departures from the usual warrant and probable cause requirements.25 In one of these cases the Court, without acknowledging the magnitude of the leap from one context to another, has taken the Dewey/Burger rationale—developed to justify warrantless searches of business establishments—and applied it to justify the significant intrusion into personal privacy represented by urinalysis drug testing. Because of the history of pervasive regulation of the railroad industry, the Court reasoned, railroad employees have a diminished expectation of privacy that makes mandatory urinalysis less intrusive and more reasonable.26
With respect to automobiles, the holdings are mixed. Random stops of automobiles to check drivers’ licenses, vehicle registrations, and safety conditions were condemned as too intrusive; the degree to which random stops would advance the legitimate governmental interests involved did not outweigh the individual’s legitimate expectations of privacy.27 On the other hand, in South Dakota v. Opperman,28 the Court sustained the admission of evidence found when police impounded an automobile from a public street for multiple parking violations and entered the car to secure and inventory valuables for safekeeping. Marijuana was discovered in the glove compartment.
There has never been any doubt that search warrants could be issued for the seizure of contraband and the fruits and instrumentalities of crime.29 But, in Gouled v. United States,30 a unanimous Court limited the classes of property subject to seizures to these three and refused to permit a seizure of mere evidence, in this instance papers of the defendant that were to be used as evidence against him at trial. The Court recognized that there was no special sanctity in papers, as distinguished from other forms of property, to render them immune from search and seizure,31 but their character as evidence rendered them immune. This immunity was based upon the dual, related premises that historically the right to search for and seize property depended upon the assertion by the Government of a valid claim of superior interest, and that it was not enough that the purpose of the search and seizure was to obtain evidence to use in apprehending and convicting criminals.32 More evaded than followed, the mere evidence rule was overturned in 1967.33 It is now settled that such evidentiary items as fingerprints,34 blood,35 urine samples,36 fingernail and skin scrapings,37 voice and handwriting exemplars,38 conversations,39 and other demonstrative evidence may be obtained through the warrant process or without a warrant where special needs of government are shown.40
However, some medically assisted bodily intrusions have been held impermissible, e.g., forcible administration of an emetic to induce vomiting,41 and surgery under general anesthetic to remove a bullet lodged in a suspect’s chest.42 Factors to be weighed in determining which medical tests and procedures are reasonable include the extent to which the procedure threatens the individual’s safety or health, the extent of the intrusion upon the individual’s dignitary interests in personal privacy and bodily integrity, and the importance of the evidence to the prosecution’s case.43
In Warden v. Hayden,44 Justice Brennan for the Court cautioned that the items there seized were not ‘testimonial’ or ‘communicative’ in nature, and their introduction, therefore, did not compel respondent to become a witness against himself in violation of the Fifth Amendment. This case thus does not require that we consider whether there are items of evidential value whose very nature precludes them from being the object of a reasonable search and seizure. This merging of Fourth and Fifth Amendment considerations derived from Boyd v. United States,45 the first case in which the Supreme Court considered at length the meaning of the Fourth Amendment. Boyd was a quasi-criminal proceeding for the forfeiture of goods alleged to have been imported in violation of law and concerned a statute that authorized court orders to require defendants to produce any document that might tend to prove any allegation made by the United States.46 The entire Court agreed that there was a self-incrimination problem, but Justice Bradley for a majority of the Justices also used the Fourth Amendment.
Although the statute did not authorize a search but instead compelled the production of documents, the Justice concluded that the law was well within the restrictions of the Search and Seizure Clause.47 With this point established, the Justice relied on Lord Camden’s opinion in Entick v. Carrington48 for the proposition that seizure of items to be used as evidence only was impermissible. Justice Bradley announced that the essence of the offense committed by the government against Boyd is not the breaking of his doors and the rummaging of his drawers but it is the invasion of his indefeasible right of personal security, personal liberty, and private property. Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man’s own testimony or of his private papers to be used as evidence to convict him of crime or to forfeit his goods is within the condemnation of that judgment. In this regard, the Fourth and Fifth Amendments run almost into each other.49
Although it may be doubtful that the equation of search warrants with subpoenas and other compulsory processes ever really amounted to much of a limitation,50 the Court currently dispenses with any theory of convergence of the two amendments.51 Thus, in Andresen v. Maryland,52 police executed a warrant to search the defendant’s offices for specified documents pertaining to a fraudulent sale of land, and the Court sustained the admission of the papers discovered as evidence at his trial. The Fifth Amendment was inapplicable, the Court held, because there had been no compulsion of defendant to produce or to authenticate the documents.53 As for the Fourth Amendment, because the business records seized were evidence of criminal acts, they were properly seizable under the rule of Warden v. Hayden; the fact that they were testimonial in nature (records in the defendant’s handwriting) was irrelevant.54 Acknowledging that there are grave dangers inherent in executing a warrant authorizing a search and seizure of a person’s papers, the Court observed that, although some innocuous documents would have to be examined to ascertain which papers were to be seized, authorities, just as with electronic seizures of telephone conversations, must take care to assure that [searches] are conducted in a manner that minimizes unwarranted intrusions upon privacy.55
Although Andresen was concerned with business records, its discussion seemed equally applicable to personal papers, such as diaries and letters, as to which a much greater interest in privacy exists. The question of the propriety of seizure of such papers continues to be the subject of reservation in opinions,56 but it is far from clear that the Court would accept any such exception should the issue be presented.57
1. In re Strouse, 23 F. Cas. 261 (No. 13,548) (D. Nev. 1871); In re Meador, 16 F. Cas. 1294, 1299 (No. 9375) (N.D. Ga. 1869).
5. Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970); United States v. Biswell, 406 U.S. 311 (1972). Colonnade, involving liquor, was based on the long history of close supervision of the industry. Biswell, involving firearms, introduced factors that were subsequently to prove significant. Thus, although the statute was of recent enactment, firearms constituted a pervasively regulated industry, so that dealers had no reasonable expectation of privacy because the law provides for regular inspections. Further, warrantless inspections were needed for effective enforcement of the statute.
6. 436 U.S. 307 (1978). Dissenting, Justice Stevens, with Justices Rehnquist and Blackmun, argued that not the warrant clause but the reasonableness clause should govern administrative inspections. Id. at 325.
7. Administrative warrants issued on the basis of less than probable cause but only on a showing that a specific business had been chosen for inspection on the basis of a general administrative plan would suffice. Even without a necessity for probable cause, the requirement would assure the interposition of a neutral officer to establish that the inspection was reasonable and was properly authorized. 436 U.S. at 321, 323. The dissenters objected that the warrant clause was being constitutionally diluted. Id. at 325. Administrative warrants were approved also in Camara v. Municipal Court, 387 U.S. 523, 538 (1967). Previously, one of the reasons given for finding administrative and noncriminal inspections not covered by the Fourth Amendment was the fact that the warrant clause would be as rigorously applied to them as to criminal searches and seizures. Frank v. Maryland, 359 U.S. 360, 373 (1959). See also Almeida-Sanchez v. United States, 413 U.S. 266, 275 (1973) (Justice Powell concurring) (suggesting a similar administrative warrant procedure empowering police and immigration officers to conduct roving searches of automobiles in areas near the Nation’s borders); id. at 270 n.3 (indicating that majority Justices were divided on the validity of such area search warrants); id. at 288 (dissenting Justice White indicating approval); United States v. Martinez-Fuerte, 428 U.S. 543, 547 n.2, 562 n.15 (1976).
8. 452 U.S. 594 (1981).
10. 452 U.S. at 596–97, 604–05. Pursuant to the statute, however, the Secretary has promulgated regulations providing for the assessment of civil penalties for denial of entry and Dewey had been assessed a penalty of $1,000. Id. at 597 n.3. It was also true in Barlow’s that the government resorted to civil process upon refusal to admit. 436 U.S. at 317 & n.12.
11. Donovan v. Dewey, 452 U.S. 594, 606 (1981). Duration of regulation will now be a factor in assessing the legitimate expectation of privacy of a business. Id. Accord, New York v. Burger, 482 U.S. 691 (1987) (although the duration of regulation of vehicle dismantling was relatively brief, history of the regulation of junk business generally was lengthy, and current regulation of dismantling was extensive).
12. 482 U.S. 691 (1987).
13. 482 U.S. at 712.
14. 135 S. Ct. 2443, 2444 (2015). Patel involved a facial, rather than an as-applied, challenge to the Los Angeles ordinance. The Court clarified that facial challenges under the Fourth Amendment are not categorically barred or especially disfavored. Id. at 2449. Some had apparently taken the Court’s earlier statement in Sibron v. New York, 392 U.S. 40 (1968), that [t]he constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case, id. at 59, to foreclose facial Fourth Amendment challenges. Patel, 135 S. Ct. at 2449. However, the Patel Court construed Sibron’s language to mean only that claims for facial relief under the Fourth Amendment are unlikely to succeed when there is substantial ambiguity as to what conduct a statute authorizes. Id.
15. Patel, 135 S. Ct. at 2452.
16. Id. at 2453. The Court further noted that actual pre-compliance review need only occur in those rare instances where a hotel owner objects to turning over the registry and that the Court has never attempted to prescribe the exact form of such review. Id. at 2452–53.
17. Id. at 2454–55.
18. Id. (quoting Barlow’s, 436 U.S. at 313).
19. Id. The majority further stated that the existence of regulations requiring hotels to maintain licenses, collect taxes, and take other actions did not establish a comprehensive scheme of regulation distinguishing hotels from other industries. Id. at 2455. It also opined that the historical practice of treating hotels as public accommodations does not necessarily mean that hotels are to be treated as comprehensively regulated for purposes of warrantless searches. Id. at 2454–55.
20. Id. at 2456. Specifically, the Court noted that the government’s alleged interest in ensuring that hotel operators not falsify their records, as they could if given an opportunity for pre-compliance review, applied to every recordkeeping requirement. Id. The Court similarly noted that there were other ways to further the city’s interest in warrantless inspections (e.g., ex parte warrants) and that the ordinance failed to sufficiently constrain a police officer’s discretion as to which hotels to search and under what circumstances. Id.
21. 436 U.S. 499 (1978).
22. The Court also held that, after the fire was extinguished, if fire investigators were unable to proceed at the moment, because of dark, steam, and smoke, it was proper for them to leave and return at daylight without any necessity of complying with its mandate for administrative or criminal warrants. 436 U.S. at 510–11. But cf. Michigan v. Clifford, 464 U.S. 287 (1984) (no such justification for search of private residence begun at 1:30 p.m. when fire had been extinguished at 7 a.m.).
23. Wyman v. James, 400 U.S. 309 (1971). It is not clear what rationale the majority used. It appears to have proceeded on the assumption that a home visit was not a search and that the Fourth Amendment does not apply when criminal prosecution is not threatened. Neither premise is valid under Camara and its progeny, although Camara preceded Wyman. Presumably, the case would today be analyzed under the expectation of privacy/need/structural protection theory of the more recent cases.
24. Soldal v. Cook County, 506 U.S. 56, 61 (1992) (home was not only seized, it literally was carried away, giving new meaning to the term ‘mobile home’).
25. City of Ontario v. Quon, 560 U.S. 746 (2010) (reasonableness test for obtaining and reviewing transcripts of on-duty text messages of police officer using government-issued equipment); Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (administrative needs of probation system justify warrantless searches of probationers’ homes on less than probable cause); Hudson v. Palmer, 468 U.S. 517, 526 (1984) (no Fourth Amendment protection from search of prison cell); New Jersey v. T.L.O., 469 U.S. 325 (1985) (simple reasonableness standard governs searches of students’ persons and effects by public school authorities); O’Connor v. Ortega, 480 U.S. 709 (1987) (reasonableness test for work-related searches of employees’ offices by government employer); Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989) (neither probable cause nor individualized suspicion is necessary for mandatory drug testing of railway employees involved in accidents or safety violations). All of these cases are discussed infra under the general heading Valid Searches and Seizures Without Warrants.
26. Skinner, 489 U.S. at 627.
27. Delaware v. Prouse, 440 U.S. 648 (1979). Standards applied in this case had been developed in the contexts of automobile stops at fixed points or by roving patrols in border situations. Almeida-Sanchez v. United States, 413 U.S. 266 (1973); United States v. Brignoni-Ponce, 422 U.S. 873 (1975); United States v. Ortiz, 422 U.S. 891 (1975); United States v. Martinez-Fuerte, 428 U.S. 543 (1976).
28. 428 U.S. 364 (1976). See also Cady v. Dombrowski, 413 U.S. 433 (1973) (sustaining admission of criminal evidence found when police conducted a warrantless search of an out-of-state policeman’s automobile following an accident, in order to find and safeguard his service revolver). The Court in both cases emphasized the reduced expectation of privacy in automobiles and the noncriminal purposes of the searches.
29. United States v. Lefkowitz, 285 U.S. 452, 465–66 (1932). Of course, evidence seizable under warrant is subject to seizure without a warrant in circumstances in which warrantless searches are justified.
30. 255 U.S. 298 (1921). United States v. Lefkowitz, 285 U.S. 452 (1932), applied the rule in a warrantless search of premises. The rule apparently never applied in case of a search of the person. Cf. Schmerber v. California, 384 U.S. 757 (1966).
32. Warden v. Hayden, 387 U.S. 294, 303 (1967). See Gouled v. United States, 255 U.S. 298, 309 (1921). The holding was derived from dicta in Boyd v. United States, 116 U.S. 616, 624–29 (1886).
35. Schmerber v. California, 384 U.S. 757 (1966); Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989) (warrantless blood testing for drug use by railroad employee involved in accident).
36. Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989) (warrantless drug testing of railroad employee involved in accident).
37. Cupp v. Murphy, 412 U.S. 291 (1973) (sustaining warrantless taking of scrapings from defendant’s fingernails at the station house, on the basis that it was a very limited intrusion and necessary to preserve evanescent evidence).
38. United States v. Dionisio, 410 U.S. 1 (1973); United States v. Mara, 410 U.S. 19 (1973) (both sustaining grand jury subpoenas to produce voice and handwriting exemplars, as no reasonable expectation of privacy exists with respect to those items).
39. Berger v. New York, 388 U.S. 41, 44 n.2 (1967). See also id. at 97 n.4, 107–08 (Justices Harlan and White concurring), 67 (Justice Douglas concurring).
40. Another important result of Warden v. Hayden is that third parties not suspected of culpability in crime are subject to the issuance and execution of warrants for searches and seizures of evidence. Zurcher v. Stanford Daily, 436 U.S. 547, 553–60 (1978). Justice Stevens argued for a stiffer standard for issuance of warrants to nonsuspects, requiring in order to invade their privacy a showing that they would not comply with a less intrusive method, such as a subpoena. Id. at 577 (dissenting).
43. Winston v. Lee, 470 U.S. 753, 761–63 (1985). Chief Justice Burger concurred on the basis of his reading of the Court’s opinion as not preventing detention of an individual if there are reasonable grounds to believe that natural bodily functions will disclose the presence of contraband materials secreted internally. Id. at 767. Cf. United States v. Montoya de Hernandez, 473 U.S. 531 (1985).
44. 387 U.S. 294, 302–03 (1967). Seizure of a diary was at issue in Hill v. California, 401 U.S. 797, 805 (1971), but it had not been raised in the state courts and was deemed waived.
45. 116 U.S. 616 (1886).
46. Act of June 22, 1874, § 5, 18 Stat. 187.
48. Howell’s State Trials 1029, 95 Eng. Rep. 807 (1765).
51. Andresen v. Maryland, 427 U.S. 463 (1976); Fisher v. United States, 425 U.S. 391, 405–14 (1976). Fisher states that the precise claim sustained in Boyd would now be rejected for reasons not there considered. Id. at 408.
52. 427 U.S. 463 (1976).
53. 427 U.S. at 470–77.
54. 427 U.S. at 478–84.
55. 427 U.S. at 482, n.11. Minimization, as required under federal law, has not proved to be a significant limitation. Scott v. United States, 425 U.S. 917 (1976).
56. E.g., United States v. Miller, 425 U.S. 435, 440, 444 (1976); Fisher v. United States, 425 U.S. 391, 401 (1976); California Bankers Ass'n v. Shultz, 416 U.S. 21, 78–79 (1974) (Justice Powell concurring).
57. See, Note, Formalism, Legal Realism, and Constitutionally Protected Privacy Under the Fourth and Fifth Amendments, 90 Harv. L. Rev. 945 (1977).