Additional issues arise in determining the validity of consent to search when consent is given not by the suspect but by a third party. In the earlier cases, third party consent was deemed sufficient if that party ''possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.'' 85 Now, however, actual common authority over the premises is no longer required; it is enough if the searching officer had a reasonable but mistaken belief that the third party had common authority and could consent to the search. 86
Border Searches .--''That searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border, should, by now, require no extended demonstration.'' 87 Authorized by the First Congress, 88 the customs search in these circumstances requires no warrant, no probable cause, not even the showing of some degree of suspicion that accompanies even investigatory stops. 89 Moreover, while prolonged detention of travelers beyond the routine customs search and inspection must be justified by the Terry standard of reasonable suspicion having a particularized and objective basis, 90 Terry protections as to the length and intrusiveness of the search do not apply. 91
Inland stoppings and searches in areas away from the borders are a different matter altogether. Thus, in Almeida-Sanchez v. United States, 92 the Court held that a warrantless stop and search of defendant's automobile on a highway some 20 miles from the border by a roving patrol lacking probable cause to believe that the vehicle contained illegal aliens violated the Fourth Amendment. Similarly, the Court invalidated an automobile search at a fixed checkpoint well removed from the border; while agreeing that a fixed checkpoint probably gave motorists less cause for alarm than did roving patrols, the Court nonetheless held that the invasion of privacy entailed in a search was just as intrusive and must be justified by a showing of probable cause or consent. 93 On the other hand, when motorists are briefly stopped, not for purposes of a search but in order that officers may inquire into their residence status, either by asking a few questions or by checking papers, different results are achieved, so long as the stops are not truly random. Roving patrols may stop vehicles for purposes of a brief inquiry, provided officers are ''aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion'' that an automobile contains illegal aliens; in such a case the interference with Fourth Amendment rights is ''modest'' and the law enforcement interests served are significant. 94 Fixed checkpoints provide additional safeguards; here officers may halt all vehicles briefly in order to question occupants even in the absence of any reasonable suspicion that the particular vehicle contains illegal aliens. 95
''Open Fields.'' --In Hester v. United States, 96 the Court held that the Fourth Amendment did not protect ''open fields'' and that, therefore, police searches in such areas as pastures, wooded areas, open water, and vacant lots need not comply with the requirements of warrants and probable cause. The Court's announcement in Katz v. United States 97 that the Amendment protects ''people not places'' cast some doubt on the vitality of the open fields principle, but all such doubts were cast away in Oliver v. United States. 98 Invoking Hester's reliance on the literal wording of the Fourth Amendment (open fields are not ''effects'') and distinguishing Katz, the Court ruled that the open fields exception applies to fields that are fenced and posted. ''[A]n individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home.'' 99 Nor may an individual demand privacy for activities conducted within outbuildings and visible by trespassers peering into the buildings from just outside. 100 Even within the curtilage and notwithstanding that the owner has gone to the extreme of erecting a 10- foot high fence in order to screen the area from ground-level view, there is no reasonable expectation of privacy from naked-eye inspection from fixed-wing aircraft flying in navigable airspace. 101 Similarly, naked-eye inspection from helicopters flying even lower contravenes no reasonable expectation of privacy. 102 And aerial photography of commercial facilities secured from ground-level public view is permissible, the Court finding such spaces more analogous to open fields than to the curtilage of a dwelling. 103
''Plain View.'' --Somewhat similar in rationale is the rule that objects falling in the ''plain view'' of an officer who has a right to be in the position to have that view are subject to seizure without a warrant 104 or that if the officer needs a warrant or probable cause to search and seize his lawful observation will provide grounds therefor. 105 The plain view doctrine is limited, however, by the probable cause requirement: officers must have probable cause to believe that items in plain view are contraband before they may search or seize them. 106
The Court has analogized from the plain view doctrine to hold that once officers have lawfully observed contraband, ''the owner's privacy interest in that item is lost,'' and officers may reseal a container, trace its path through a controlled delivery, and seize and reopen the container without a warrant. 107
Public Schools .--In New Jersey v. T.L.O., 108 the Court set forth the principles governing searches by public school authorities. The Fourth Amendment applies to searches conducted by public school officials because ''school officials act as representatives of the State, not merely as surrogates for the parents.'' 109 However, ''the school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject.'' 110 Neither the warrant requirement nor the probable cause standard is appropriate, the Court ruled. Instead, a simple reasonableness standard governs all searches of students' persons and effects by school authorities. 111 A search must be reasonable at its inception, i.e., there must be ''reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.'' 112 School searches must also be reasonably related in scope to the circumstances justifying the interference, and ''not excessively intrusive in light of the age and sex of the student and the nature of the infraction.'' 113 In applying these rules, the Court upheld as reasonable the search of a student's purse to determine whether the student, accused of violating a school rule by smoking in the lavatory, possessed cigarettes. The search for cigarettes uncovered evidence of drug activity held admissible in a prosecution under the juvenile laws.
Government Offices .--Similar principles apply to a public employer's work-related search of its employees' offices, desks, or file cabinets, except that in this context the Court distinguished searches conducted for law enforcement purposes. In O'Connor v. Ortega, 114 a majority of Justices agreed, albeit on somewhat differing rationales, that neither a warrant nor a probable cause requirement should apply to employer searches ''for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct.'' 115 Four Justices would require a case-by-case inquiry into the reasonableness of such searches; 116 one would hold that such searches ''do not violate the Fourth Amendment.'' 117
Prisons and Regulation of Probation .--Searches of prison cells by prison administrators are not limited even by a reasonableness standard, the Court having held that ''the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell.'' 118 Thus, prison administrators may conduct random ''shakedown'' searches of inmates' cells without the need to adopt any established practice or plan, and inmates must look to the Eighth Amendment or to state tort law for redress against harassment, malicious property destruction, and the like.
Neither a warrant nor probable cause is needed for an administrative search of a probationer's home. It is enough, the Court ruled in Griffin v. Wisconsin, that such a search was conducted pursuant to a valid regulation that itself satisfies the Fourth Amendment's reasonableness standard (e.g., by requiring ''reasonable grounds'' for a search). 119 ''A State's operation of a probation system, like its operation of a school, government office or prison, or its supervision of a regulated industry, . . . presents 'special needs' beyond normal law enforcement that may justify departures from the usual warrant and probable cause requirements.'' 120 ''Probation, like incarceration, is a form of criminal sanction,'' the Court noted, and a warrant or probable cause requirement would interfere with the ''ongoing [non- adversarial] supervisory relationship'' required for proper functioning of the system. 121
Drug Testing .--In two 1989 decisions the Court held that no warrant, probable cause, or even individualized suspicion is required for mandatory drug testing of certain classes of railroad and public employees. In each case, ''special needs beyond the normal need for law enforcement'' were identified as justifying the drug testing. In Skinner v. Railway Labor Executives' Ass'n, 122 the Court upheld regulations requiring railroads to administer blood, urine, and breath tests to employees involved in certain train accidents or violating certain safety rules; upheld in National Treasury Employees Union v. Von Raab 123 was a Customs Service screening program requiring urinalysis testing of employees seeking transfer or promotion to positions having direct involvement with drug interdiction, or to positions requiring the incumbent to carry firearms. The Court in Skinner found a ''compelling'' governmental interest in testing the railroad employees without any showing of individualized suspicion, since operation of trains by anyone impaired by drugs ''can cause great human loss before any signs of impair ment become noticeable.'' 124 By contrast, the intrusions on privacy were termed ''limited.'' Blood and breath tests were passed off as routine; the urine test, while more intrusive, was deemed permissible because of the ''diminished expectation of privacy'' in employees having some responsibility for safety in a pervasively regulated industry. 125 The lower court's emphasis on the limited effectiveness of the urine test (it detects past drug use but not necessarily the level of impairment) was misplaced, the Court ruled. It is enough that the test may provide some useful information for an accident investigation; in addition, the test may promote deterrence as well as detection of drug use. 126 In Von Raab the governmental interests underlying the Customs Service's screening program were also termed ''compelling'': to ensure that persons entrusted with a firearm and the possible use of deadly force not suffer from drug-induced impairment of perception and judgment, and that ''front-line [drug] interdiction personnel [be] physically fit, and have unimpeachable integrity and judgment.'' 127 The possibly ''substantial'' interference with privacy interests of these Customs employees was justified, the Court concluded, because, ''[u]nlike most private citizens or government employees generally, they have a ''diminished expectation of privacy.'' 128
Emphasizing the ''special needs'' of the public school context, reflected in the ''custodial and tutelary'' power that schools exercise over students, and also noting schoolchildren's diminished expectation of privacy, the Court in Vernonia School District v. Acton Supp.7 upheld a school district's policy authorizing random urinalysis drug testing of students who participate in interscholastic athletics. The Court redefined the term ''compelling'' governmental interest. The phrase does not describe a ''fixed, minimum quantum of governmental concern,'' the Court explained, but rather ''describes an interest which appears important enough to justify the particular search at hand.'' Supp.8 Applying this standard, the Court concluded that ''deterring drug use by our Nation's schoolchildren is at least as important as enhancing efficient enforcement of the Nation's laws against the importation of drugs . . . or deterring drug use by engineers and trainmen.'' Supp.9 On the other hand, the interference with privacy interests was not great, the Court decided, since schoolchildren are routinely required to submit to various physical examinations and vaccinations. Moreover, ''[l]egitimate privacy expectations are even less [for] student athletes, since they normally suit up, shower, and dress in locker rooms that afford no privacy, and since they voluntarily subject themselves to physical exams and other regulations above and beyond those imposed on non-athletes. The Court ''caution[ed] against the assumption that suspicionless drug testing will readily pass muster in other contexts,'' identifying as ''the most significant element'' in Vernonia the fact that the policy was implemented under the government's responsibilities as guardian and tutor of schoolchildren. Supp.10
[Footnote 84] On Lee v. United States, 343 U.S. 747 (1952); Lopez v. United States, 373 U.S. 427 (1963); Hoffa v. United States, 385 U.S. 293 (1966); Lewis v. United States, 385 U.S. 206 (1966); United States v. White, 401 U.S. 745 (1971). Cf. Osborn v. United States, 385 U.S. 323 (1966) (prior judicial approval obtained before wired informer sent into defendant's presence). Problems may be encountered by police, however, in special circumstances. See Messiah v. United States, 377 U.S. 201 (1964); United States v. Henry, 447 U.S. 264 (1980); United States v. Karo, 468 U.S. 705 (1984) (installation of beeper with consent of informer who sold container with beeper to suspect is permissible with prior judicial approval, but use of beeper to monitor private residence is not).
[Footnote 85] United States v. Matlock, 415 U.S. 164, 171 (1974) (valid consent by woman with whom defendant was living and sharing the bedroom searched). See also Chapman v. United States, 365 U.S. 610 (1961) (landlord's consent insufficient); Stoner v. California, 376 U.S. 483 (1964) (hotel desk clerk lacked authority to consent to search of guest's room); Frazier v. Culp, 394 U.S. 731 (1969) (joint user of duffel bag had authority to consent to search).
[Footnote 86] Illinois v. Rodriguez, 497 U.S. 177 (1990). See also Florida v. Jimeno, 500 U.S. 248, 251 (1991) (it was ''objectively reasonable'' for officer to believe that suspect's consent to search his car for narcotics included consent to search containers found within the car).
[Footnote 87] United States v. Ramsey, 431 U.S. 606, 616 (1977) (sustaining search of incoming mail). See also Illinois v. Andreas, 463 U.S. 765 (1983) (opening by customs inspector of locked container shipped from abroad).
[Footnote 88] Act of July 31, 1789, ch.5, Sec. Sec. 23, Sec. 24, 1 Stat. 43. See 19 U.S.C. Sec. Sec. 507, 1581, 1582.
[Footnote 90] United States v. Montoya de Hernandez, 473 U.S. 531 (1985) (approving warrantless detention incommunicado for more than 24 hours of traveler suspected of alimentary canal drug smuggling).
[Footnote 91] Id. A traveler suspected of alimentary canal drug smuggling was strip searched, and then given a choice between an abdominal x-ray or monitored bowel movements. Because the suspect chose the latter option, the court disavowed decision as to ''what level of suspicion, if any, is required for . . . strip, body cavity, or involuntary x-ray searches.'' Id. at 541 n.4.
[Footnote 92] 413 U.S. 266 (1973). Justices White, Blackmun, Rehnquist, and Chief Justice Burger would have found the search reasonable upon the congressional determination that searches by such roving patrols were the only effective means to police border smuggling. Id. at 285. Justice Powell, concurring, argued in favor of a general, administrative warrant authority not tied to particular vehicles, much like the type of warrant suggested for noncriminal administrative inspections of homes and commercial establishments for health and safety purposes, id. at 275, but the Court has not yet had occasion to pass on a specific case. See United States v. Martinez-Fuerte, 428 U.S. 543, 547 n.2, 562 n.15 (1976).
[Footnote 94] United States v. Brignoni-Ponce, 422 U.S. 873 (1975). However, stopping of defendant's car solely because the officers observed the Mexican appearance of the occupants was unjustified. Id. at 886. Contrast United States v. Cortez, 449 U.S. 411 (1981), where border agents did have grounds for reasonable suspicion that the vehicle they stopped contained illegal aliens.
[Footnote 95] United States v. Martinez-Fuerte, 428 U.S. 543 (1976). The Court deemed the intrusion on Fourth Amendment interests to be quite limited, even if officers acted on the basis of the Mexican appearance of the occupants in referring motorists to a secondary inspection area for questioning, whereas the elimination of the practice would deny to the Government its only practicable way to apprehend smuggled aliens and to deter the practice. Similarly, outside of the border/aliens context, the Court has upheld use of fixed ''sobriety'' checkpoints at which all motorists are briefly stopped for preliminary questioning and observation for signs of intoxication. Michigan Dep't of State Police v. Sitz, 496 U.S. 444 (1990).
[Footnote 99] Id. at 178. See also California v. Greenwood, 486 U.S. 35 (1988) (approving warrantless search of garbage left curbside ''readily accessible to animals, children, scavengers, snoops, and other members of the public'').
[Footnote 100] United States v. Dunn, 480 U.S. 294 (1987) (space immediately outside a barn, accessible only after crossing a series of ''ranch-style'' fences and situated one-half mile from the public road, constitutes unprotected ''open field'').
[Footnote 101] California v. Ciraolo, 476 U.S. 207 (1986). Activities within the curtilage are nonetheless still entitled to some Fourth Amendment protection. The Court has described four considerations for determining whether an area falls within the curtilage: proximity to the home, whether the area is included within an enclosure also surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to shield the area from view of passersby. United States v. Dunn, 480 U.S. 294 (1987) (barn 50 yards outside fence surrounding home, used for processing chemicals, and separated from public access only by series of livestock fences, by chained and locked driveway, and by one-half mile's distance, is not within curtilage).
[Footnote 104] Washington v. Chrisman, 455 U.S. 1 (1982) (officer lawfully in dorm room may seize marijuana seeds and pipe in open view); United States v. Santana, 427 U.S. 38 (1976) (''plain view'' justification for officers to enter home to arrest after observing defendant standing in open doorway); Harris v. United States, 390 U.S. 234 (1968) (officer who opened door of impounded automobile and saw evidence in plain view properly seized it); Ker v. California, 374 U.S. 23 (1963) (officers entered premises without warrant to make arrest because of exigent circumstances seized evidence in plain sight). Cf. Coolidge v. New Hampshire, 403 U.S. 443, 464 -73 (1971), and id. at 510 (Justice White dissenting). Maryland v. Buie, 494 U.S. 325 (1990) (items seized in plain view during protective sweep of home incident to arrest); Texas v. Brown, 460 U.S. 730 (1983) (contraband on car seat in plain view of officer who had stopped car and asked for driver's license); New York v. Class, 475 U.S. 106 (1986) (evidence seen while looking for vehicle identification number). There is no requirement that the discovery of evidence in plain view must be ''inadvertent.'' See Horton v. California, 496 U.S. 128 (1990) (in spite of Amendment's particularity requirement, officers with warrant to search for proceeds of robbery may seize weapons of robbery in plain view).
[Footnote 105] Steele v. United States, 267 U.S. 498 (1925) (officers observed contraband in view through open doorway; had probable cause to procure warrant). Cf. Taylor v. United States, 286 U.S. 1 (1932) (officers observed contraband in plain view in garage, warrantless entry to seize was unconstitutional).
[Footnote 107] Illinois v. Andreas, 463 U.S. 765, 771 (1983) (locker customs agents had opened, and which was subsequently traced). Accord, United States v. Jacobsen, 466 U.S. 109 (1984) (inspection of package opened by private freight carrier who notified drug agents).
[Footnote 109] Id. at 336 (1984).
[Footnote 110] Id. at 340.
[Footnote 111] This single rule, the Court explained, will permit school authorities ''to regulate their conduct according to the dictates of reason and common sense.'' 469 U.S. at 343 . Rejecting the suggestion of dissenting Justice Stevens, the Court was ''unwilling to adopt a standard under which the legality of a search is dependent upon a judge's evaluation of the relative importance of various school rules.'' Id. at n.9.
[Footnote 113] Id.
[Footnote 116] This position was stated in Justice O'Connor's plurality opinion, joined by Chief Justice Rehnquist and by Justices White and Powell.
[Footnote 121] Id. at 718, 721.
[Footnote 125] Id. at 628.
[Footnote 126] Id. at 631-32.
[Footnote 127] Von Raab, 489 U.S. at 670 -71. Dissenting Justice Scalia discounted the ''feeble justifications'' relied upon by the Court, believing instead that the ''only plausible explanation'' for the drug testing program was the ''symbolism'' of a government agency setting an example for other employers to follow. 489 U.S. at 686 -87.
[Footnote 128] Id. at 672.
[Footnote 7 (1996 Supplement)] 115 S. Ct. 2386 (1995).
[Footnote 8 (1996 Supplement)] Id. at 2394-95.
[Footnote 9 (1996 Supplement)] Id. at 2395.
[Footnote 10 (1996 Supplement)] Id. at 2396.
[Footnotes 129-130] Deleted in 1996 Supplement.