The Fourth Amendment and Airports (2016)

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4section explains that when the government conducts a valid administrative search, it discovers informa- tion lawfully, and once information is lawfully known it can also be used by law enforcement offi- cers to investigate suspected wrongdoing. Section IV then reviews how the courts con- sider administrative searches that are not valid. Under those circumstances information is discov- ered illegally, and law enforcement officers cannot rely on a constitutional violation as their basis for taking action. This section also reviews other aspects of law enforcement action at an airport. It notes Fourth Amendment concepts when officers respond to an airport disturbance and use infor- mant information from TSA and others. It also discusses the law enforcement basis for stopping passengers at airports to investigate suspicious activity and the basis for stopping baggage and other effects as well. This digest provides an overview of common Fourth Amendment principles that airport propri- etors may encounter. These principles serve as a starting point for additional research and may help focus an airport proprietor’s administrative and law enforcement actions. They also may provide a gen- eral understanding that is useful to an airport pro- prietor in other ways, such as when examining risk and liability issues. I. GENERAL FOURTH AMENDMENT OVERVIEW This section is a brief summary of basic Fourth Amendment principles that apply at airports and elsewhere. It is not a comprehensive review of Fourth Amendment issues, but instead focuses on core principles that may be important in an airport setting. Both law enforcement actions and adminis- trative inspection actions must address these basic principles. Airport attorneys may also need to use basic principles such as these to evaluate the Fourth Amendment implications of changing airport secu- rity practices, where new procedures can outpace court decisions. Readers who are already familiar with these core principles may wish to skim this sec- tion since it presents general information. A. Purpose of the Fourth Amendment The Fourth Amendment’s purpose is to protect against an arbitrary use of the government’s search and seizure power. That purpose grew out of the experiences of America’s early colonists. They were subject to writs of assistance imposed under English law that allowed government revenue officers to search suspected places based simply on the officer’s own discretion and to look randomly for smuggled goods, libel, or other potential crimes.5 The colonists pointed out that the arbitrary power exercised under such a writ placed “the liberty of every man in the hands of every petty officer,” and John Adams noted that opposition to these writs constituted the “first scene of the first act of opposition to the arbitrary claims of Great Britain” in the struggle for indepen- dence.6 Thus: To prevent the issue of general warrants on “loose, vague or doubtful bases of fact,” the Framers established the invio- lable principle that…“no Warrants shall issue, but upon probable cause…and particularly describing the…things to be seized.” That is, the police must articulate an adequate reason to search for specific items related to specific crimes.7 This purpose shaped the requirements drafted into the Fourth Amendment, and it continues to guide the amendment’s interpretation as courts evaluate new contexts and harmonize the amendment with other bodies of law. At its core, the amendment is a balance of several fundamental principles reflecting its purpose: every person’s individual right to secure privacy in a manner that society accepts as reason- able; the right to move about freely; the public’s inter- est in ensuring that government can pursue law enforcement effectively; and the Constitution’s guid- ing principle that government actions must be taken for a justifiable public purpose rather than for rea- sons that are arbitrary, capricious, or illegal.8 B. What Is a Fourth Amendment Intrusion? When the government pursues an intrusion, the courts first determine whether that intrusion is sub- ject to the Fourth Amendment’s protections before applying the standards required by the amendment. The Supreme Court begins by determining “whether the individual, by his conduct, has exhibited an actual expectation of privacy; that is, whether he has shown that ‘he [sought] to preserve [something] as private.’”9 5 See generally Boyd v. United States, 116 U.S. 616, 625 (1886) (discussing the early history of the Fourth Amend- ment). The Supreme Court has determined that this arbitrary practice of using general warrants was an abuse that had “gradually crept into the administration of pub- lic affairs” in the American colonies, and it diverged from English law, which required intrusions to be justified by “some public law for the good of the whole.” Id. at 627. 6 Id. at 625 (footnotes omitted). 7 Messerschmidt v. Millender, 132 S. Ct. 1235, 1253 (2012) (J. Sotomayor, dissenting) (alteration in original) (citations omitted) (noting the Fourth Amendment’s history and purpose). 8 See, e.g., Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 528 (1967) (discussing the purpose of the Fourth Amendment). 9 Bond v. United States, 529 U.S. 334, 338 (2000) (alter- nation in original) (quoting Smith v. Maryland, 442 U.S. 735, 740 (1979)) (considering privacy expectations for lug- gage traveling by bus).

5For example, the courts generally note that individu- als seek to secure privacy in their homes, but if an individual makes home activities visible to the public, he or she has not sought to preserve privacy and the Fourth Amendment does not provide protections.10 Thus, the courts have held that a government obser- vation made from a public space, such as from a public thoroughfare or from an aircraft in public airspace, is not a search under the Fourth Amendment because what a person knowingly exposes to the public is not a subject of Fourth Amendment protection.11 If an individual has made efforts to secure pri- vacy, the Court then inquires whether the individu- al’s expectation of privacy is “one that society is prepared to recognize as reasonable.”12 The Court typically begins this analysis by considering the property listed in the Fourth Amendment to be “encompassed by its protections: persons, houses, papers, and effects.”13 This list of protected things “establishes a simple baseline, one that for much of our history formed the exclusive basis for its protec- tions: When ‘the Government obtains information by physically intruding’ on persons, houses, papers, or effects, ‘a “search” within the original meaning of the Fourth Amendment’ has ‘undoubtedly occurred.’”14 Thus, many early Fourth Amendment cases focus extensively on property law concepts, such as trespass and licenses to use property.15 The Court has noted that an alignment between the laws of property and privacy is not surprising. “The law of property ‘naturally enough influence[s]’ our ‘shared social expectations’ of what places should be free from governmental incursions.”16 For example, one baseline identified by the amend- ment is people’s right to be secure in their “persons” against unreasonable government searches. The Court has determined that “[v]irtually any ‘intrusio[n] into the human body,’ will work an invasion of ‘cherished personal security’ that is subject to constitutional scru- tiny.”17 In addition, a “careful exploration of the outer surfaces of a person’s clothing all over his or her body”18 is a “serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.”19 Another Fourth Amendment baseline is the peo- ple’s right to be secure in their “houses.” The Court has noted that “the home is first among equals,” because society accepts “the right of a man to retreat into his own home and there be free from unreason- able governmental intrusion.”20 A home carries a presumption that searches are unreasonable with- out a warrant, although that presumption can be overcome.21 By contrast: An owner or operator of a business…has an expectation of privacy in commercial property, which society is prepared to consider to be reasonable…[but an] expectation of privacy in commercial premises…is different from, and indeed less than, a similar expectation in an individual’s home. This expectation is particularly attenuated in commercial prop- erty employed in “closely regulated” industries.22 But the Fourth Amendment does not protect these baseline properties as a duplication of prop- erty laws. Instead its purpose is to protect legitimate privacy interests. The Supreme Court has deter- mined that “property rights are not the sole mea- sure of Fourth Amendment violations.”23 Rather: [T]he Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessi- ble to the public, may be constitutionally protected.24 10 See, e.g., California v. Ciraolo, 476 U.S. 207 (1986) (upholding the use of evidence seen in a backyard from an aircraft in public airspace) (citing Katz v. United States, 389 U.S. 347 (1967), which determined an electronic tap outside a phone booth was a search). 11 Ciraolo, 476 U.S. at 213–214. 12 Bond, 529 U.S. at 338 (citation omitted). 13 Florida v. Jardines, 133 S. Ct. 1409, 1414 (2013) (inter- nal quotation marks omitted) (citation omitted) (considering the Fourth Amendment’s baseline list when determining that a dog and officer physically invaded a home’s curtilage). 14 Id. at 1414 (citing United States v. Jones, 132 S. Ct. 945, 950–951, n.3 (2012)). 15 See Jones, 132 S. Ct. at 949 (“[t]he text of the Fourth Amendment reflects its close connection to property…Con- sistent with this understanding, our Fourth Amendment jurisprudence was tied to common-law trespass, at least until the latter half of the 20th century”). 16 Jardines, 133 S. Ct. at 1419 (alternation in original) (quoting Georgia v. Randolph, 547 U.S. 103, 111 (2006)). 17 Maryland v. King, 133 S. Ct. 1958, 1969 (2013) (altera- tion in original) (citations omitted) (first quoting Schmerber v. California, 384 U.S. 757, 770 (1966); then quoting Cupp v. Murphy, 412 U.S. 291, 295 (1973)) (determining that the Fourth Amendment permitted a state to require DNA test- ing for arrestees). 18 Terry v. Ohio, 392 U.S. 1, 16 (1968) (upholding the need for “pat down” searches based on a reasonable suspicion in limited circumstances). 19 Id. at 17. 20 Jardines, 133 S. Ct. at 1414 (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)). 21 Michigan v. Fisher, 558 U.S. 45, 47 (2009) (considering exigencies that may overcome a presumption that searches and seizures inside a home require a warrant). 22 New York v. Burger, 482 U.S. 691, 699–700 (1987) (citations omitted) (upholding warrantless inspections of a regulated vehicle dismantling business under the “special needs” exception). 23 Soldal v. Cook County, Ill., 506 U.S. 56, 64 (1992) (inter- preting past cases addressing the role of property rights in a Fourth Amendment analysis). 24 Katz v. United States, 389 U.S. 347, 351 (1967) (citations omitted) (electronically listening to a phone conversation from outside a phone booth was a search).

6The amendment thus protects a right to secure per- sonal privacy in a manner that society accepts as rea- sonable against unreasonable government intrusions, and it states baseline properties where such an expec- tation is accepted. Societal expectations of privacy “add to the baseline,” but they do “not subtract anything from the Amendment’s protections ‘when the Govern- ment does engage in [a] physical intrusion of a consti- tutionally protected area.’”25 By recognizing that the Fourth Amendment protects legitimate expectations for securing privacy,26 the Court has embodied a “pres- ervation of past rights in our very definition of ‘reason- able expectation of privacy’” and preserved “that degree of privacy against government that existed when the Fourth Amendment was adopted.”27 The Court has identified some contexts where society does not accept an expectation of securing privacy as being reasonable. For example, generally the Court does not recognize an open field to be a context that is subject to Fourth Amendment protec- tions against intrusion. It has determined that an “open field is neither a ‘house’ nor an ‘effect,’ and, therefore, ‘the government’s intrusion upon the open fields is not one of those “unreasonable searches” proscribed by the text of the Fourth Amendment.’”28 In addition, there is simply “no basis for concluding that a police inspection of open fields accomplishes… an infringement” of “personal and societal values protected by the Fourth Amendment.”29 The Court has also determined that official con- duct that does not “compromise any legitimate inter- est in privacy” is not a search subject to the Fourth Amendment.30 For example: [A]ny interest in possessing contraband cannot be deemed “legitimate,” and thus, governmental conduct that only reveals the possession of contraband “compromises no legit- imate privacy interest.” This is because the expectation “that certain facts will not come to the attention of the authorities” is not the same as an interest in “privacy that society is prepared to consider reasonable.”31 The Court has further determined that a Fourth Amendment intrusion must be made for the pur- pose of obtaining information. “A trespass on ‘houses’ or ‘effects,’ or a Katz invasion of privacy, is not alone a search unless it is done to obtain infor- mation; and the obtaining of information is not alone a search unless it is achieved by such a trespass or invasion of privacy.”32 The Fourth Amendment thus first requires show- ing that a given context is subject to the amendment’s protections against unreasonable government intru- sions based on an individual’s actual efforts to secure privacy and society’s acceptance of those expecta- tions. The “test of legitimacy is not whether the indi- vidual chooses to conceal assertedly ‘private activity,’ but instead ‘whether the government’s intrusion infringes upon the personal and societal values pro- tected by the Fourth Amendment.’”33 The Fourth Amendment secures “the individual’s legitimate expectations that in certain places and at certain times he has ‘the right to be let alone….’”34 It “gener- ally protects the ‘security’ of ‘persons, houses, papers, and effects’ against official intrusions up to the point where the community’s need for evidence surmounts a specified standard, ordinarily ‘probable cause.’”35 At that point, “it is ordinarily justifiable for the commu- nity to demand that the individual give up some part of his interest in privacy and security to advance the community’s vital interests in law enforcement.”36 C. The Reasonableness Standard If the Fourth Amendment’s protections apply to a given context, the amendment’s text imposes two standards on intrusive government action to imple- ment its purpose of limiting that action to a justifi- able scope. The first standard contained in the text is a general standard that requires a search and sei- zure action to be reasonable. The Supreme Court has determined that “the ultimate touchstone of the Fourth Amendment is reasonableness.”37 25 Jardines, 133 S. Ct. at 1414 (alteration in original) (quoting United States v. Knotts, 460 U.S. 276, 286 (1983)). 26 United States v. Jones, 132 S. Ct. 945, 951 (2012) (determining that a GPS tracker physically invaded a vehicle to obtain information and was a search). 27 Id. at 950 (quoting Kyllo v. United States, 533 U.S. 27, 34 (2001) (determining that a GPS tracker physically invaded a vehicle to obtain information and was a search). 28 United States v. Dunn, 480 U.S. 294, 303–304 (1987) (quoting Oliver v. United States, 466 U.S. 170, 187 (1984)) (discussing factors affecting whether a place should be free from government intrusion) (observing the open area of a barn from an open field was not a search). See also Jones, 132 S. Ct. 945 (an information-gathering intrusion on an open field was not a Fourth Amendment search even though it was a property trespass under common law). 29 Oliver, 466 U.S. at 182–183. 30 Illinois v. Caballes, 543 U.S. 405, 408 (2005) (holding that the use of a canine to detect narcotics during a traffic stop did not violate the Fourth Amendment). 31 Id. at 408–409 (quoting United States v. Jacobsen, 466 U.S. 109, 123, 122 (1984)). 32 Jones, 132 S. Ct. at 951 n.5. 33 California v. Ciraolo, 476 U.S. 207, 212 (1986) (quot- ing Oliver v. United States, 466 U.S. 170, 181–183 (1984)). 34 Winston v. Lee, 470 U.S. 753, 758 (1985) (quoting Olmstead v. United States, 277 U.S. 438, 478 (1928)) (elaborating on the determination in Katz v. United States that the Fourth Amendment protects expecta- tions of privacy). 35 Id. at 759. 36 Id. 37 See, e.g., Fernandez v. California, 134 S. Ct. 1126, 1132 (2014).

7The Supreme Court uses several tests to evaluate what is reasonable. Initially, the Court will look “to the statutes and common law of the founding era to determine the norms that the Fourth Amendment was meant to preserve” when assessing whether cur- rent practices provide those historic protections.38 If this historical analysis does not give the Court “a conclusive answer” concerning what is reasonable, however, the Court then analyzes the government’s action “in light of traditional standards of reason- ableness ‘by assessing, on the one hand, the degree to which it [the action] intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’”39 That inquiry “requires a careful balanc- ing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake,” and the Court conducts that analysis based on “the totality of the circumstances.”40 Under a reasonableness analysis, the Court will consider the government’s reason for taking action and its manner of acting. The Court has deter- mined that to be “reasonable,” a government action usually must be justified as a measure that could resolve “some quantum of individualized suspi- cion.”41 For example, “the mere fact that law enforcement may be made more efficient [by a practice] can never by itself justify disregard of the Fourth Amendment.”42 The Court acknowledges, however, that the Fourth Amendment does not always require an individualized suspicion of wrongdoing. For example, in some contexts govern- ment action is reasonable when it is taken based on an objective standard to advance an important gov- ernment purpose (such as a regulatory inspection program to discover safety risks).43 The Court’s rea- sonableness analysis also requires actions to be reasonable during all phases of the action— “whether the officer’s action was justified at its inception, and whether it [the action taken] was reasonably related in scope to the circumstances which justified the interference in the first place.”44 When conducting this analysis, the Court consid- ers an officer’s actions objectively. That approach facilitates judicial review and provides “readily administrable rules” that officers can apply effec- tively in the field.45 The Court considers the perspec- tive “of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight,” and it takes into account “the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving….”46 Normally a reasonableness inquiry will not consider an officer’s own subjective beliefs. Reasonableness “is predominantly an objective inquiry.”47 “We ask whether ‘the circumstances, viewed objectively, jus- tify [the challenged] action.’ If so, that action was reasonable ‘whatever the subjective intent’ motivat- ing the relevant officials.”48 The Court’s reasonableness analysis also views government actions from the standpoint of practi- cal decisions that experienced officers make in the field, not decisions made with the legal precision of a court. The Court has noted that “[t]o be rea- sonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them ‘fair leeway for enforcing the law in the community’s protec- tion.’”49 The Court also does not consider whether an officer should have taken an action as long as the action taken was within the officer’s lawful range of discretion.50 The Fourth Amendment’s first standard is gen- eral in nature and can consider diverse factors to determine whether an intrusion is a reasonable use of government power in all respects and under all circumstances. It thus serves as a general safeguard against an arbitrary or otherwise unjustified use of government power, whether the government is 38 Virginia v. Moore, 553 U.S. 164, 168 (2008) (discuss- ing the steps to determine whether a search or seizure is unreasonable). 39 Id. at 171 (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)). 40 Plumhoff v. Rickard, 134 S. Ct. 2012, 2021 (2014) (citation omitted) (applying the balancing test to deter- mine reasonableness). 41 Skinner v. Railway Executives’ Ass’n, 489 U.S. 602, 624 (1989) (citation omitted) (discussing the Fourth Amendment’s reasonableness standard). 42 Bailey v. United States, 133 S. Ct. 1031, 1041 (2013) (citation omitted) (discussing interests in a law enforce- ment action). 43 See Maryland v. King, 133 S. Ct. 1958, 1969 (2013) (summarizing cases where warrantless searches were justified). 44 Terry v. Ohio, 392 U.S. 1, 20 (1968). 45 See Virginia v. Moore, 553 U.S. 164, 175 (2008). 46 Plumhoff v. Rickard, 134 S. Ct. 2012, 2020 (2014) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)) (con- sidering reasonableness). 47 Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011) (cita- tions omitted) (discussing the role of intent when deter- mining reasonableness). 48 Id. (quoting Scott v. United States, 436 U.S. 128, 138 (1978) and Whren v. United States, 517 U.S. 806, 814 (1996)). 49 See Heien v. North Carolina, 135 S. Ct. 530, 536 (2014) (quoting Brinegar v. United States, 338 U.S. 160, 176 (1949)). 50 See Atwater v. City of Lago Vista, 532 U.S. 318, 347 (2001) (determining that officers may determine to take actions within their lawful discretion).

8obtaining or executing a warrant, investigating wrongdoing in the field, or implementing a regula- tory inspection program. D. Specific Standards Based on Probable Cause Under the Fourth Amendment’s second require- ment, the government must set a specific standard in advance that limits the scope of a particular search or seizure action. To set that standard, “when- ever practicable, [the police must] obtain advance judicial approval of searches and seizures through the warrant procedure.”51 The Fourth Amendment requires a warrant to be based on probable cause, and the elements of “prob- able cause” differ for a seizure and for a search. Probable cause to make an arrest (a seizure) exists where “the facts and circumstances” within the offi- cers’ knowledge and “of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.”52 An offi- cer “has probable cause to conduct a search when the facts available to him would warrant a person of reasonable caution in the belief that contraband or evidence of a crime is present.”53 In that analysis, evidence of a crime includes evidence that consti- tutes criminal “fruits, instrumentalities or contra- band,” as well as “mere evidence” that “will aid in a particular apprehension or conviction.”54 A probable cause evaluation is guided by practi- cal considerations under the totality of the circum- stances rather than by applying a standard that is a “precise definition or quantification.”55 “‘Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence…have no place in the [probable-cause] decision.’ All we have required is the kind of ‘fair probability’ on which ‘reasonable and prudent [people,] not legal technicians, act.’”56 When deciding “whether the State has met this practical and common-sense standard, we have consistently looked to the totality of the circumstances…. We have rejected rigid rules, bright-line tests, and mechanistic inquiries in favor of a more flexible, all-things-considered approach.”57 “[P]robable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.”58 The Supreme Court has identified some factors that are relevant to determining whether probable cause exists under the totality of the circumstances. For example: The principal components of a determination of reasonable suspicion or probable cause will be the events which occurred leading up to the stop or search, and then the deci- sion whether these historical facts, viewed from the stand- point of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause.59 The Court does not consider “what a search does or does not turn up.”60 It considers the “facts available to the officer” that informed the officer’s belief, and it “does not demand any showing that such a belief be correct or more likely true than false.”61 The analysis requires “more than a bare suspicion” and “less than evidence which would justify condemnation or con- viction.” “The substance of all the definitions of prob- able cause is a reasonable ground for belief of guilt.”62 In addition, “the belief of guilt must be particularized with respect to the person to be searched or seized.”63 A “person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.”64 The Fourth Amendment identifies the warrant procedure as the means to establish probable cause. The Court has determined that “whenever practi- cable, [the police must] obtain advance judicial approval of searches and seizures through the war- rant procedure” and execute the warrant consis- tent with its stated standards.65 The warrant 57 Id. 58 Maryland v. Pringle, 540 U.S. 366, 370–371 (2003) (alteration in original) (citation omitted) (discussing the probable cause standard). 59 Ornelas v. United States, 517 U.S. 690, 696 (1996) (dis- cussing the probable cause standard). 60 Harris, 133 S. Ct. at 1059. 61 Texas v. Brown, 460 U.S. 730, 742 (1983) (discussing the probable cause standard). 62 Brinegar v. United States, 338 U.S. 160, 175 (1949) (quoting McCarthy v. De Armit, 99 Pa. 63, 69 (1881)). 63 Maryland v. Pringle, 540 U.S. 366, 371 (2003) (dis- cussing the probable cause standard). 64 Ybarra v. Illinois, 444 U.S. 85, 91 (1979) (determining there was no basis to search a person for being present with a suspect). 65 Terry v. Ohio, 392 U.S. 1, 20 (1968) (considering per- missible searches without a warrant). 51 Terry v. Ohio, 392 U.S. 1, 20 (1968) (considering when action without a warrant is permissible). 52 Beck v. Ohio, 379 U.S. 89, 91 (1964) (discussing the probable cause standard). 53 See Florida v. Harris, 133 S. Ct. 1050, 1055, 185 L. Ed. 2d 61 (2013) (citations omitted) (considering the probable cause standard for a search based on a canine’s alert dur- ing a traffic stop that established probable cause to search the car). 54 Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 307 (1967) (discussing the evidence subject to Fourth Amendment protections). 55 See generally Maryland v. Pringle, 540 U.S. 366, 371 (2003) (discussing the nature of the probable cause stan- dard). 56 Harris, 133 S. Ct. at 1055 (alteration in original) (quoting Illinois v. Gates, 462 U.S. 213, 235, 238 (1983)).

9requirement is one of the “fundamental distinc- tions between our form of government, where offi- cers are under the law, and the police-state where they are the law.”66 The function served by setting standards in a warrant is so important that the Court considers a warrantless search “per se unrea- sonable,” unless the Fourth Amendment does not apply or the circumstances fall within a recognized exception (and thus the government’s actions are limited in some other manner).67 The Supreme Court has determined “that in most instances failure to comply with the warrant require- ment can only be excused by exigent circum- stances.”68 In such circumstances, the “standards applicable to the factual basis supporting the offi- cer’s probable-cause assessment at the time of the challenged arrest and search are at least as strin- gent as the standards applied with respect to the magistrate’s assessment.”69 The law favors a magis- trate’s assessment. The fact that a neutral magis- trate has issued a warrant is the “clearest indication” that officers are acting in objective good faith.70 Any substantive discussion of warrant require- ments is beyond the scope of this summary. Briefly, however, the warrant process requires an officer to submit a sworn statement of the probable cause to take an action that contains sufficient information to provide a magistrate with “a substantial basis for determining the existence of probable cause.”71 “There are so many variables in the probable cause equation that one determination will seldom be a useful ‘precedent’ for another,” but “wholly conclu- sory” statements of probable cause or mere claims of “reliable information” will not meet the require- ment.72 The magistrate must have a substantial basis for concluding that probable cause existed, and the “usual inferences which reasonable men draw from evidence” must be “drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enter- prise of ferreting out crime.”73 The warrant process also considers a variety of other factors. For example, the process must con- sider the time when a warrant should be issued to address the evidence or fugitive being sought.74 The magistrate must also state with particularity the places to be searched or things to be seized for which there is probable cause.75 All this information must be stated in the warrant, not in accompanying docu- ments (although documents may be expressly incor- porated by reference and attached to the warrant).76 An executing officer is not required to present the property owner with a copy of the warrant before conducting the search or even after the search has ended. The Constitution protects property owners not by giving them license to engage the police in a debate over the basis for the warrant, but by interposing, ex ante, the “deliberate, impartial judgment of a judicial officer…between the citi- zen and the police,”…and by providing, ex post, a right to suppress evidence improperly obtained and a cause of action for damages.77 In summary, under the Fourth Amendment’s sec- ond requirement, the government must set a specific standard in advance that justifies and governs the scope of a particular action. Whenever practicable, the amendment requires a neutral magistrate to determine that there is probable cause for taking the action so that officers are not in the position of exercising discretion and imposing restraints upon themselves. The Court also recognizes that in some limited circumstances, the government can use other procedures to satisfy the Fourth Amendment’s concern for justifying and governing the scope of an action, such as in exigent circumstances or under an administrative program. E. Actions Seizing Persons and Property The seizure of a person “within the meaning of the Fourth and Fourteenth Amendments occurs when, taking into account all of the circumstances 66 Johnson v. United States, 333 U.S. 10, 17 (1948) (determining that an officer must have some valid basis for an intrusion). 67 Groh v. Ramirez, 540 U.S. 551, 573 (2004) (J. Thomas, dissenting) (noting the general rule requiring warrants and listing many of its exceptions). 68 Terry, 392 U.S. at 20. 69 Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 566 (1971) (discussing standards applicable to an offi- cer’s determination of probable cause). 70 Messerschmidt v. Millender, 132 S. Ct. 1235, 1245 (2012) (discussing the magistrate’s function in issuing a warrant). 71 See, e.g., Illinois v. Gates, 462 U.S. 213, 239 (1983) (dis- cussing information sufficient for a magistrate to deter- mine probable cause). 72 Id. at 238 n.11. 73 Id. at 240 (quoting Johnson v. United States, 333 U.S. 10, 13–14 (1948)) (discussing probable cause). See also Katz v. United States, 389 U.S. 347, 359 (1967) (J. Douglas, con- curring) (noting that under the Constitution’s separation of powers, the Executive Branch is “not supposed to be neu- tral and disinterested”). 74 See United States v. Grubbs, 547 U.S. 90, 96–97 (2006) (discussing the timing of issuing warrants). 75 See id. 76 See Groh v. Ramirez, 540 U.S. 551, 557 (2004) (dis- cussing information included in a warrant). 77 Grubbs, 547 U.S. at 99 (quoting Wong Sun v. United States, 371 U.S. 471, 481–482 (1963)) (considering war- rant requirements).

10 surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police pres- ence and go about his business.”78 This is an objec- tive test. It does not rely on the motivation of the officers, but on “how their actions would reasonably be understood.”79 The Supreme Court has noted examples of when police conduct may be understood as detaining (and thus seizing) a person, including “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.”80 But a seizure that is an “arrest requires either physical force…or, where that is absent, submission to the assertion of author- ity.”81 A show of authority that is ignored does not result in an arrest—“[t]here can be no arrest with- out either touching or submission.”82 An arrest also does not require taking the person into custody. Arrests must comply with the two standards required by the Fourth Amendment. All arrests must be based on probable cause, and the constitu- tional validity of an arrest depends on whether, at the moment of arrest, “the officers had probable cause to make it—whether…the facts and circum- stances within their knowledge and of which they had reasonably trustworthy information were suffi- cient to warrant a prudent man in believing that the petitioner [suspect] had committed or was commit- ting an offense.”83 The arrest can be made pursuant to a warrant, and in addition, “[a] warrantless arrest of an individual in a public place for a felony, or a misdemeanor committed in the officer’s presence, is consistent with the Fourth Amendment if the arrest is supported by probable cause.”84 To “determine whether an officer had probable cause to arrest an individual, we examine the events leading up to the arrest, and then decide ‘whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to’ probable cause” that is particular to the person arrested.85 An arrest must also meet the Fourth Amendment’s reason- ableness standard, under which the courts balance “the nature and quality of the intrusion on the indi- vidual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.”86 The courts have determined that the government may briefly detain persons based on less than probable cause under exigent cir- cumstances, as further discussed in the next part of the digest. The Supreme Court has determined that a vari- ety of circumstances constitute an unconstitutional manner of seizing a person. These include a “lengthy detention of luggage,” a “surgery under general anesthesia to obtain evidence, or [a] detention for fingerprinting without probable cause.”87 The Court has upheld other circumstances as constitutional, however, such as “the taking of fingernail scrapings from a suspect, an unannounced entry into a home to prevent the destruction of evidence, [and] admin- istrative housing inspections without probable cause to believe that a code violation will be found.”88 The Supreme Court also considers the degree of force used when seizing a person. It has determined that “notwithstanding probable cause to seize a sus- pect, an officer may not always do so by killing him.”89 The Court has acknowledged that historic common law allowed the use of whatever force was necessary to arrest a fleeing felon, but the Court has held that such a rule is no longer justified by condi- tions in society today.90 The Court thus examines the use of force, including deadly force, by weighing the risk of bodily harm to the suspect in light of the threat to the public that the officer was trying to eliminate.91 It conducts that analysis from the per- spective “of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”92 Its analy- sis also allows for “the fact that police officers are 78 Kaupp v. Texas, 538 U.S. 626, 629 (2003) (internal quotation marks omitted) (quoting Florida v. Bostick, 501 U.S. 429, 437 (1991)) (considering when a person is seized). 79 Id. at 632. 80 United States v. Mendenhall, 446 U.S. 544, 554 (1980) (determining that a woman acted voluntarily when con- senting to a search at an airport). 81 California v. Hodari D., 499 U.S. 621, 626 (1991) (deter- mining that a defendant was not seized until the police tackled). 82 Id. at 626–627. 83 Beck v. Ohio, 379 U.S. 89, 91 (1964) (considering the constitutional validity of an arrest). 84 Maryland v. Pringle, 540 U.S. 366, 370 (2003) (discuss- ing warrantless arrests). 85 Id. at 371 (quoting Ornelas v. United States, 517 U.S. 690, 696 (1996)). 86 Tennessee v. Garner, 471 U.S. 1, 8 (1985) (quoting United States v. Place, 462 U.S. 696, 703 (1983)) (bal- ancing interests involved in the use of deadly force). 87 Id. at 8 (citations omitted) (citing cases making these determinations). 88 Id. (citations omitted) (citing cases making these determinations). 89 Id. at 9. 90 Id. at 14–15. 91 Scott v. Harris, 550 U.S. 372, 383–384 (2007) (discuss- ing interest in the use of deadly force). 92 Plumhoff v. Rickard, 134 S. Ct. 2012, 2020 (2014) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)) (con- sidering reasonableness).

11 often forced to make split-second judgments—in cir- cumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is neces- sary in a particular situation.”93 A “‘seizure’ of property occurs when there is some meaningful interference with an individual’s pos- sessory interests in that property,”94 such as when the government takes “dominion and control” over a package for the government’s own purposes.95 The Supreme Court has noted that “[d]ifferent interests are implicated by a seizure than by a search. A sei- zure affects only the person’s possessory interests; a search affects a person’s privacy interests.”96 The Court has noted a number of requirements that are relevant to constitutionally seizing prop- erty. For example, seizing property must be based on probable cause. Thus, there must “be a nexus—auto- matically provided in the case of fruits, instrumen- talities or contraband—between the items seized and criminal behavior.”97 That nexus is automatic for contraband (items involved in the criminal con- duct itself) because possessing them “cannot be deemed ‘legitimate.’”98 In “the case of ‘mere evidence,’ probable cause must be examined in terms of cause to believe the evidence sought will aid in a particu- lar apprehension or conviction. In so doing, consider- ation of police purposes will be required.”99 For purposes of establishing probable cause, however, mere evidence “need not conclusively prove the ulti- mate fact in issue, but only have ‘any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence,’” consistent with evidentiary rules.100 When officers are seizing property, not only must there be probable cause to seize the item, the officers must also have a constitutional right to access the item. Both issues can be addressed in a warrant. But “in the absence of consent or a warrant permitting the seizure of the items in question, such seizures can be justified only if they meet the proba- ble-cause standard and if they are unaccompanied by unlawful trespass.”101 Officers must have a right of lawful access to the item seized even when it is in plain view.102 If offi- cers seize an item in plain view without a warrant, it is “an essential predicate to any valid warrant- less seizure of incriminating evidence that the offi- cer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed.”103 In addition, two other condi- tions must be satisfied to justify a warrantless sei- zure. “First, not only must the item be in plain view, its incriminating character must also be ‘immedi- ately apparent.’”104 “Second, not only must the offi- cer be lawfully located in a place from which the object can be plainly seen, but he or she must also have a lawful right of access to the [location of the] object itself.”105 If an officer has lawful access to view and seize an item, the officer’s discovery of that item need not be inadvertent.106 Even if the officer has a specific object in mind prior to the search, the Fourth Amendment “requires only that the steps preceding the seizure be lawful.”107 Thus, where access is lawful, any obvi- ously incriminating evidence found may be seized whether or not that evidence was listed in a war- rant.108 If officers can only conclude that there is probable cause to seize an item by making an addi- tional search, however, that particular search must first be constitutional.109 A variety of other principles apply to property seizures.110 101 Soldal v. Cook County, Ill., 506 U.S. 56, 66 (1992) (citations omitted) (discussing requirements for seizures). 102 Horton v. California, 496 U.S. 128, 135–136 (1990) (discussing the plain view doctrine). 103 Id. at 136. 104 Id. (quoting Arizona v. Hicks, 480 U.S. 321, 326–327 (1987) (the plain view doctrine cannot justify a seizure if the object’s incriminating character is not immediately apparent)). 105 Id. 106 Id. at 141. 107 Kentucky v. King, 131 S. Ct. 1849, 1858 (2011) (dis- cussing requirements for warrantless seizures). 108 See Horton, 496 U.S. at 142. 109 Arizona v. Hicks, 480 U.S. 321, 326 (1987) (deter- mining there must be probable cause to seize an item in plain view, and if a search is required to determine the item’s character, the search must be lawful). 110 For example, see Illinois v. Caballes, 543 U.S. 405, 407 (2005) (an initially lawful seizure can become uncon- stitutional due to its manner of execution); Segura v. United States, 468 U.S. 796, 810 (1984) (considering sei- zures of premises). 93 Id. (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)) (considering reasonableness). 94 United States v. Jacobsen, 466 U.S. 109, 113 (1984) (considering when a package was seized). 95 Id. at 120. 96 Segura v. United States, 468 U.S. 796, 860 (1984) (cita- tions omitted) (discussing the nature of a seizure). 97 Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 307 (1967) (rejecting a distinction between seizure of items of evidential value only and seizure of instrumentalities, fruits, or contraband). 98 Illinois v. Caballes, 543 U.S. 405, 408 (2005) (consider- ing conduct that does not compromise privacy interests). 99 Hayden, 387 U.S. at 307. 100 New Jersey v. T.L.O., 469 U.S. 325, 744–745 (1985) (quoting Fed. R. evid. 401) (discussing the meaning of mere evidence).

12 F. Exigent Circumstances Generally The Supreme Court recognizes that sometimes exigent circumstances call for limited but immedi- ate action by the government, and when the exi- gency justifies the action taken, the Court recognizes these circumstances as an exception that complies with the Fourth Amendment’s warrant require- ment. The Court reached this conclusion in Terry v. Ohio when determining at what point the Fourth Amendment becomes relevant when an officer stops an individual.111 The Supreme Court noted in Terry that the prob- able cause standard applies to most exigent circum- stances—“specific and articulable facts…taken together with rational inferences from those facts, [must] reasonably warrant that intrusion.”112 Where an officer “observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot” and that the rel- evant person “may be armed and presently danger- ous,” however, and the officer “investigating this behavior…identifies himself as a policeman and makes reasonable inquiries,” and where “nothing in the[se] initial stages…dispel[s] his reasonable fear for his own or others’ safety,” the officer can conduct a protective, “carefully limited search of the outer clothing of such persons” to discover weapons and can use any weapons seized as evidence.113 The Court subsequently determined that “[a] brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momen- tarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.”114 It then more clearly articulated that “a requirement of reasonable suspicion for stops” pro- tects the public interest and that “it is not ‘reasonable’ under the Fourth Amendment to make such stops on a random basis.”115 Such a stop must be “based on objective criteria, [or] the risk of arbitrary and abusive police practices exceeds tolerable limits.”116 In addition, “[s]o long as the officer is entitled to make a forcible stop, and has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose.”117 When conducting such a search, officers also “may seize nonthreatening contraband detected during a protective patdown search of the sort per- mitted by Terry.”118 Limited seizures from persons detained in these circumstances are “justified by such substantial law enforcement interests that they may be made on less than probable cause, so long as the police have an articulable basis for sus- pecting criminal activity.”119 The Supreme Court has explained the basis for the constitutionality of a detention under Terry and subsequent cases: The exception…rests on a balancing of the competing inter- ests to determine the reasonableness of the type of seizure involved within the meaning of “the Fourth Amendment’s general proscription against unreasonable searches and seizures.” We must balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion. When the nature and extent of the detention are minimally intrusive of the individual’s Fourth Amendment interests, the opposing law enforce- ment interests can support a seizure based on less than probable cause.120 The Court has cautioned that a detention based on reasonable suspicion must be brief and limited to the circumstances creating the need for the deten- tion, and thus there is no “hard-and-fast” time limit for such a stop.121 A detention that is not limited to those circumstances will become a de facto arrest: [I]f an investigative stop continues indefinitely, at some point it can no longer be justified as an investigative stop. But our cases impose no rigid time limitation on Terry stops…[while brevity] is an important factor in determin- ing whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion, we have emphasized the need to consider the law enforcement purposes to be served by the stop as well as the time reasonably needed to effectu- ate those purposes.122 111 Terry v. Ohio, 392 U.S. 1, 16 (1968) (determining that the Constitution allowed an officer to stop and frisk sus- pects based on a reasonable suspicion of wrongdoing). 112 Id. at 21. 113 Id. at 30–31. 114 Adams v. Williams, 407 U.S. 143, 146 (1972) (holding that an officer acted justifiably when he reached into a car and took a gun from a suspect because a credible infor- mant had disclosed the gun to the officer). 115 United States v. Brignoni-Ponce, 422 U.S. 873, 883 (1975) (considering what the Fourth Amendment requires to justify a stop and concluding that roving border patrols were not justified). 116 Brown v. Texas, 443 U.S. 47, 52 (1979) (citation omit- ted) (no facts supported an officer’s conclusion concerning suspicion). 117 Adams, 407 U.S. at 146. 118 Minnesota v. Dickerson, 508 U.S. 366, 373 (1993) (analogizing discoveries made by touch during a lawful stop to the plain view doctrine). 119 Michigan v. Summers, 452 U.S. 692, 699 (1981) (dis- cussing cases addressing a detention based on reasonable suspicion). 120 United States v. Place, 462 U.S. 696, 703 (1983) (quoting Terry v. Ohio, 392 U.S. 1, 20 (1968)) (determining that seizing a bag from a traveler at an airport was not a minimal intrusion and could not be justified based only on a reasonable suspicion). 121 United States v. Sharpe, 470 U.S. 675, 686 (1985) (discussing precedent establishing these principles). 122 Id. at 685.

13 G. Administrative Actions Generally The Supreme Court recognizes that searches and seizures conducted pursuant to an administrative program can constitute an exception if they satisfy the protective standards embodied in the Fourth Amendment. The Court has recognized this “admin- istrative search doctrine” in several contexts. Among them, it has identified an administrative exception when the government conducts inspections in sup- port of a “special need” beyond the normal needs of law enforcement, such as a regulatory drug testing program. It has also found an administrative excep- tion when the government establishes a checkpoint to administer “special law enforcement” concerns, such as sobriety checkpoints to remove drunk driv- ers. This exception is important to airports because airport inspection and screening programs rely on it for Fourth Amendment compliance, as further dis- cussed infra in Section III. To satisfy the Fourth Amendment under the administrative search doctrine, an administrative program must be governed by regulatory proce- dures that are limited in scope to accomplishing an important government purpose. The important purpose thus justifies the government’s proce- dures, and the procedures set a standard in advance that creates a protective safeguard con- sistent with the Fourth Amendment’s warrant and probable cause standards. An administrative program’s regulatory proce- dures serve the same function as a warrant. For example, obtaining a warrant serves to “advise the citizen that an intrusion is authorized by law and limited in its permissible scope and to interpose a neutral magistrate between the citizen and the law enforcement officer ‘engaged in the often competitive enterprise of ferreting out crime.’”123 An administra- tive program achieves these same objectives when it gives the public adequate notice of its requirements (such as for inspections or testing) and does not place discretion in the hands of field officers regarding how to implement the program. In those circumstances, an officer “does not make a discretionary determina- tion to search based on a judgment that certain con- ditions are present,” and as such “there are simply ‘no special facts for a neutral magistrate to evalu- ate.’”124 Thus, “a warrant would provide little or noth- ing in the way of additional protection of personal privacy” since the program’s administrative requirements already contain objective standards, authorized in advance, that officers implement.125 Similarly, standards set by regulatory procedures are more useful in an administrative search context than the probable-cause standard. “[T]he traditional probable-cause standard may be unhelpful in ana- lyzing the reasonableness of routine administrative functions, especially where the Government seeks to prevent the development of hazardous conditions or to detect violations that rarely generate articulable grounds for searching any particular place or per- son.”126 The probable-cause standard focuses on the likelihood of detecting individual violations sus- pected by an officer. No such cause exists, however, when the government conducts routine general screening to deter and reject hazardous conditions. Thus, an administrative program requires a differ- ent approach to effectively limit the scope of a differ- ent type of action. As the Supreme Court has noted, under the Fourth Amendment the government can act either “based on specific, objective facts indicat- ing that society’s legitimate interests require the seizure of the particular individual…[or] pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.”127 The Supreme Court has also discussed the types of administrative procedures that can effectively limit government actions consistent with Fourth Amendment requirements. For example, when con- sidering checkpoint programs for special law enforce- ment purposes, the Court has noted that some “forms of police activity, say, crowd control or public safety… [are] not the kind of event that involves suspicion, or lack of suspicion, of the relevant individual.”128 Thus, “[t]he principal protection of Fourth Amendment rights at checkpoints lies in appropriate limitations on the scope of the stop.”129 Such checkpoints will comply with constitutional standards when check- point locations are “selected pursuant to the guide- lines [predetermined by administrators], and uniformed police officers stop every approaching vehicle.”130 Objectively, the seizure involved in such a stop is minimal based on the duration and intensity of the investigation, and subjectively, this intrusion 123 Nat’l Treasury Emp.’s Union v. Von Raab, 489 U.S. 656, 667 (1989) (quoting Johnson v. United States, 333 U.S. 10, 14 (1948)) (considering the special needs of a regulatory drug testing program). 124 Id. (quoting South Dakota v. Opperman, 428 U.S. 364, 383 (1976)). 125 Id. at 667. 126 Id. at 668 (citations omitted). 127 Brown v. Texas, 443 U.S. 47, 51 (1979) (discussing seizure actions). 128 Illinois v. Lidster, 540 U.S. 419, 424–425 (2004) (uphold- ing a checkpoint stop that was implemented to ask motorists for information that might help solve a crime). 129 United States v. Martinez-Fuerte, 428 U.S. 543, 566–567 (1976) (upholding the use of fixed border patrol checkpoints, including secondary inspection procedures). 130 Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 453 (1990) (considering lawful checkpoint stops).

14 generates less concern because the checkpoint is vis- ible and less likely to frighten those passing by.131 The Court has also noted that these standardized roadblock operations are “markedly different from roving patrols, where the unbridled discretion of offi- cers in the field could result in unlimited interfer- ence with motorists’ use of the highways.”132 Although regulatory procedures can act as a sub- stitute for the Fourth Amendment’s warrant and probable cause requirements, administrative search programs must still meet the amendment’s stan- dards for reasonableness. The Supreme Court exam- ines their reasonableness at the programmatic level: Under the totality of the circumstances, it balances the government’s needs for the administrative action taken against the privacy concerns that the program intrudes upon. For example, when a gov- ernment program addresses “special needs,” such as inspecting for dangerous conditions, the Court may consider whether “the Government’s need to dis- cover such latent or hidden conditions, or to prevent their development, is sufficiently compelling to jus- tify the intrusion on privacy entailed by conducting such searches without any measure of individual- ized suspicion.”133 When considering checkpoints for special law enforcement concerns, the Court may consider “the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.”134 To evaluate the government’s interests under this balancing test, the Supreme Court determines whether the government’s needs justify the actions being taken without individualized suspicion. For example, the Court may consider how a particular search action, such as an airport inspection or check- point, addresses important safety concerns, pre- vents threats, or provides particular information that the police seek for a specific purpose.135 The government’s need must describe “an interest that appears important enough to justify the particular search at hand.”136 The Court may consider evidence of past problems that created a need for a program, but such a showing is not required. For example, a valid airport screening program does not turn on “whether significant numbers of putative air pirates are actually discovered by the searches conducted under the program.”137 Instead a lack of past inci- dents can be viewed as an indicator of the program’s success.138 The Court considers whether the pro- gram’s methods are a reasonably effective means of addressing the legitimate government interests at stake rather than effectively transferring “from politically accountable officials to the courts the decision as to which among reasonable alternative law enforcement techniques should be employed to deal with a serious public danger.”139 A reasonableness review also focuses on evidence that demonstrates the government’s primary pur- pose for its program.140 For example, the Court has determined that a checkpoint program cannot be jus- tified by a lawful secondary purpose because authori- ties could then establish checkpoints for virtually any purpose so long as they included a proper secondary purpose.141 The primary purpose of the checkpoint must be closely related to a specific problem that the checkpoint is designed to resolve, such as roadway safety or border patrol. The Supreme Court has “never approved a checkpoint program whose pri- mary purpose was to detect evidence of ordinary criminal wrongdoing,” and such a purpose requires “some measure of individualized suspicion.”142 The Court has determined that when officers are acting “pursuant to a general scheme without indi- vidualized suspicion,” the administrative program’s “programmatic purpose” must be their reason for acting.143 Usually the Court does not consider a gov- ernment official’s subjective purpose for acting when determining whether the action taken was objec- tively reasonable. An official’s subjective motives are also irrelevant under the administrative search doc- trine as long as the actions taken are actions that advance the purpose of the program rather than 131 Id. at 452–453. 132 City of Indianapolis v. Edmond, 531 U.S. 32, 50 (2000) (rejecting the use of a vehicle checkpoint to search for general crime). See also Delaware v. Prouse, 440 U.S. 648, 661 (1979) (discussing discretion in connection with checkpoint stops). 133 Nat’l Treasury Emp.’s Union v. Von Raab, 489 U.S. 656, 668 (1989) (considering the special needs of a regula- tory program). See also id. at 672 n.2 (citing cases discuss- ing checkpoint searches). 134 Brown v. Texas, 443 U.S. 47, 51 (1979) (determin- ing that officers could not arbitrarily stop an individual to check for identification). 135 See generally Michigan, 496 U.S. at 451–452 (con- sidering a checkpoint stop addressing highway safety and threats); Illinois v. Lidster, 540 U.S. 419, 427–428 (2004) (considering a checkpoint stop seeking information to help solve a crime). 136 Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 661 (1995) (determining the importance of a school’s student athlete drug policy). 137 Von Raab, 489 U.S. at 675 n.3. 138 Id. 139 See Michigan, 496 U.S. at 453. 140 See City of Indianapolis v. Edmond, 531 U.S. 32, 46 (2000) (requiring review of the primary programmatic purpose to justify a checkpoint program). 141 Id. 142 Id. at 41. 143 Id. at 45–46.

15 advancing some other purpose.144 The Fourth Amendment exception does “not apply where the officer’s purpose is not to attend to the special needs or to the investigation for which the administrative inspection is justified.”145 When an administrative search is validly conducted, any information discov- ered (such as contraband or evidence of a crime) is lawfully known to the government, and thus law enforcement officers can investigate it using mea- sures that the Fourth Amendment requires to jus- tify law enforcement action.146 The Supreme Court has ruled on the validity of administrative programs in a number of contexts. For example, it has upheld drug testing programs147 and a government audit program,148 and it deter- mined that a health inspection program would meet constitutional standards when adequate protections were present.149 The administrative search doctrine also justifies screening inspections at airports, as further discussed infra in Section III. H. The Exclusionary Rule and Exceptions As further discussed in this section, the exclu- sionary rule is a judicially created rule under which courts determine that the government may not use evidence that it obtained in violation of the Fourth Amendment. This concern exists both for evidence obtained directly from the impropriety and for evi- dence that is then obtained indirectly (sometimes referred to as the “fruit of the poisonous tree”). The Supreme Court’s discussion of the exclusionary rule’s purpose and application has varied over time. Under modern cases, the Court excludes evidence if it was obtained in violation of the Fourth Amend- ment, but under limited exceptions, it may deter- mine that using certain kinds of evidence at the prosecution stage is nonetheless reasonable even though the case involves a violation of Fourth Amendment standards. The Court recently explained the exclusionary rule’s historic context.150 It noted that the Court cre- ated the rule to compel respect for the constitutional guaranty of the Fourth Amendment, determining that this prudential doctrine was necessary to address a lack of Fourth Amendment language that expressly discusses suppressing evidence. The rule itself is “‘not a personal constitutional right,’ nor is it designed to ‘redress the injury’ occasioned by an unconstitutional search. …The rule’s sole purpose, we have repeatedly held, is to deter future Fourth Amendment violations [by law enforcement].”151 The Court also has “repeat- edly rejected efforts to expand the focus of the exclu- sionary rule beyond deterrence of culpable police conduct.”152 The Court applies the rule “[w]hen the police exhibit ‘deliberate,’ ‘reckless,’ or ‘grossly negli- gent’ disregard for Fourth Amendment rights, [because] the deterrent value of exclusion is strong and tends to outweigh the resulting costs.”153 The Court has also developed exceptions to this rule, however, that essentially consider whether allowing the use of certain evidence at the prosecu- tion stage would have the effect of perpetuating a Fourth Amendment violation from the investigation stage. At the investigation stage, standards estab- lish whether a search or seizure action is reason- able, and “[t]o be reasonable is not to be perfect.”154 The Fourth Amendment “allows for some mistakes on the part of government officials, giving them ‘fair leeway for enforcing the law in the community’s pro- tection.’”155 At the prosecution stage, however, secur- ing Fourth Amendment rights requires considering broader circumstances—whether tainted evidence is being used to obtain a conviction. The Court’s 144 Id. at 47–48. 145 Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2081 (2011) (explaining the role of an officer’s intent in a Fourth Amendment analysis). 146 See Illinois v. Lidster, 540 U.S. 419, 427 (2004) (upholding an arrest made during a valid roadway check- point program). 147 See Nat’l Treasury Emp.’s Union v. Von Raab, 489 U.S. 656, 668 (1989) (upholding regulatory drug testing program for Customs service employees); Skinner v. Rail- way Labor Executives’ Assoc., 489 U.S. 602, 679 (1989) (upholding a regulatory drug testing program for railroad employees). 148 See City of Ontario, Cal. v. Quon, 560 U.S. 746, 761 (2010) (considering a regulatory audit program). 149 See Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 532–533 (1967) (requiring the use of administrative warrants in conjunction with a program to inspect residences). In Camera, the court found that the practical effect of a residential health inspection program left residents subject to the discre- tion of officials in the field, and that such discretion was the very act for which the Fourth Amendment required limitations. It thus required officials to obtain “adminis- trative warrants” supported by probable cause to search residences, but it noted that “the facts that would justify an inference of ‘probable cause’ to make an inspection are clearly different from those that would justify such an inference where a criminal investigation has been under- taken.” See id. at 538. 150 See generally Davis v. United States, 131 S. Ct. 2419, 2426–2428 (2011) (discussing the history and purpose of the exclusionary rule). 151 Id. at 2426 (citations omitted) (quoting Stone v. Powell, 428 U.S. 465, 486 (1976)). 152 Id. at 2432. 153 Id. at 2427 (quoting Herring v. United States, 555 U.S. 135, 144 (2009)). 154 Heien v. North Carolina, 135 S. Ct. 530, 536 (2014) (considering the reasonableness standard). 155 Id. (quoting Brinegar v. United States, 388 U.S. 160, 176 (1949)).

16 exceptions essentially consider whether information that is material to the prosecution was obtained unreasonably and a conviction would rely on a Fourth Amendment violation. Among the exceptions to the rule, the Court con- siders issues of police good faith (or bad faith) under a “good-faith exception.” Under this exception, the Court has determined that “when the police act with an objectively ‘reasonable good-faith belief’ that their conduct is lawful, or when their conduct involves only simple, ‘isolated’ negligence” without evidence of deliberate or reckless action, the “deterrence ratio- nale loses much of its force” because the police con- duct was reasonable.156 This exception thus also recognizes that if the police act in bad faith, such as by acts that are pretextual or that recklessly disre- gard Fourth Amendment concerns, they have obtained information unreasonably, and the Court will not permit its use at the prosecution stage. To permit otherwise would honor a false appearance of police compliance when the actions are known to be unsound and would thus be arbitrary.157 The excep- tion recognizes that if the police act out of a good- faith belief that their actions comply with the Fourth Amendment, using those actions at the prosecution stage is not unreasonable or arbitrary. The Supreme Court has applied this “good faith exception” to the exclusionary rule to determine in a variety of circumstances that evidence did not need to be excluded. For example, it determined that evi- dence should not be excluded when an officer’s search or seizure action reasonably relied on the following: a search warrant that was subsequently invalidated,158 a statute that was subsequently invalidated,159 erroneous information concerning an arrest warrant in a database maintained by judicial employees,160 and binding appellate precedent.161 It also found that the police were objec- tively reasonable when they relied on a database where police employees erred in maintaining war- rant records and there was no reoccurring police negligence involved.162 These circumstances all involved an erroneous belief by the police that they had authority to act. Acts that later proved to be unauthorized could not proceed to prosecution (such as an arrest pursuant to a warrant that did not actually exist), but the Court allowed the prosecu- tion to use evidence of other crimes that the police obtained during a search made in the good-faith belief that they had authority to act.163 The Court has also identified an exception to the exclusionary rule when using evidence at the prosecu- tion stage does not exploit, and thus have the effect of perpetuating, a Fourth Amendment violation from the investigation stage. In these cases, the police may have obtained evidence in violation of the Fourth Amend- ment, but the Court determined that the violation essentially is not material to the prosecution, such as when the police also properly discovered the evidence independent of the violation or its independent discov- ery would have been inevitable, or when the evidence is too attenuated from the violation to retain a taint.164 Thus, the evidence used at the prosecution stage does 161 Davis, 131 S. Ct. 2419. 162 Herring v. United States, 555 U.S. 135 (2009) (deter- mining that a reasonably well-trained officer would not have known a neighboring agency’s database was inaccu- rate and that there were only negligent mistakes rather than systemic error or a reckless disregard). 163 See also Heien v. North Carolina, 135 S. Ct. 530 (2014) (an officer’s interpretation of a vague statute was objectively reasonable based on how the statute was writ- ten, not the officer’s lack of understanding, even though the person stopped may avoid criminal liability under the vague statute). 164 See generally Hudson v. Michigan, 547 U.S. 586, 592–593 (2006) (the inevitable discovery or independent source exception refers to a discovery that did or would have occurred despite the unlawful behavior and inde- pendently of that unlawful behavior); Nix v. Williams, 467 U.S. 431, 444 (1984) (evidence should be received if the prosecution can establish by a preponderance that the evidence inevitably would have been discov- ered by lawful means); Wong Sun v. United States, 371 U.S. 471, 487 (1963) (the question is, granting establish- ment of a primary illegality, whether evidence has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint); Nardone v. United States, 308 U.S. 338, 341 (1939) (a connection to illegally obtained evidence may become so attenuated as to dissipate the taint and it may be proved to have had an independent origin); Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920) (the government could use knowledge of matters gained from an independent source but could not pros- ecute based on knowledge gained by the government’s own wrongdoing). 156 Davis v. United States, 131 S. Ct. 2419, 2427–2428 (2011) (quoting United States v. Leon, 469 U.S. 897, 909, 919 (1984) and Herring v. United States, 555 U.S. 135, 137 (2009)). 157 See generally Boyd v. United States, 116 U.S. 616, 625 (1886) (explaining that due to abuses of law in the American colonies, the Fourth Amendment was adopted to prevent arbitrary government search and seizure actions); Davis, 131 S. Ct. at 2428 (an absence of police culpability dooms a claim for use of the exclusionary rule). 158 United States v. Leon, 468 U.S. 897 (1984) (in this case the officer’s reliance on the magistrate’s determina- tion of probable cause was objectively reasonable). 159 Illinois v. Krull, 480 U.S. 340 (1987) (an office’s reli- ance on a statute was objectively reasonable even though the statute was later found to be unconstitutional). 160 Arizona v. Evans, 514 U.S. 1 (1995) (finding no indi- cation that an officer was not acting objectively reason- ably when he relied on police computer records that were inaccurate).

17 not have the effect of perpetuating a Fourth Amend- ment violation. This exception does not focus on whether there is a causal relationship: [E]vidence is [not] ”fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”165 To determine whether that “taint” has been purged, the Court essentially isolates the Fourth Amendment violation and determines whether pur- suing the prosecution is reasonable absent those matters. For example, where the government agreed that police had misapplied “knock and announce” requirements and had entered a house in an illegal manner, the Court determined that this preliminary requirement for entry did not relate to obtaining the evidence found. “Whether that preliminary misstep had occurred or not, the police would have executed the warrant they had obtained, and would have dis- covered the gun and drugs inside the house.”166 In other words, the police obtained the evidence because they had a warrant based on probable cause, not because they entered without a sufficient announce- ment. Even where a police misstep is more directly connected to obtaining evidence, the Court has “never held that evidence is ‘fruit of the poisonous tree’ simply because ‘it would not have come to light but for the illegal actions of the police.’”167 Causation can be “too attenuated to justify exclusion.”168 The Supreme Court thus excludes evidence that is obtained by violating the Fourth Amendment, but in limited circumstances it will consider whether actions should constitute an exception to the exclu- sionary rule essentially because a violation is not material to the case and use of the evidence is rea- sonable. These limited exceptions help the Court determine the appropriate consequences of a Fourth Amendment violation in the criminal process by focusing on what effect that violation has in the prosecution’s case, and thus its effect on the inter- ests of the defendant and society. I. Liability for Fourth Amendment Violations Actions involving alleged Fourth Amendment vio- lations can take a variety of forms, but the Supreme Court recognizes two primary federal causes of action that allow individuals to pursue a civil law- suit to recover damages for a violation of their Fourth Amendment rights. The Court hears actions against state and local government actors under 42 U.S.C. § 1983.169 It also recognizes a cause of action against individual federal employees directly under the Fourth Amendment under a so-called Bivens action.170 42 U.S.C. Section 1983 states that: [e]very person who under color of any statute, ordinance, regulation, custom, or usage, or any State or Territory or the District of Columbia, subjects or causes to be subjected, any citizen of the United States or other person within the juris- diction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…. Under the U.S. Constitution’s Eleventh Amend- ment, this statute only allows a plaintiff to sue a state if the individual state has consented to such a lawsuit (including actions against state officials in their official capacity, which is considered a suit against the state).171 Local government entities, however, are not immune under the Eleventh Amendment. Those enti- ties are subject to suit for “monetary, declaratory, or injunctive relief where…the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers,” or a local “governmental ‘custom’ even though such cus- tom has not received formal approval through the body’s official decisionmaking channels.”172 The entity “cannot be held liable solely because it employs a tort- feasor…on a respondeat superior theory.”173 “Instead, it is when execution of a government’s policy or cus- tom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government 165 Hudson, 547 U.S. at 592 (quoting Wong Sun, 371 U.S. at 487–488). 166 Id. 167 Id. (quoting Segura v. United States, 468 U.S. 796, 815 (1984)). 168 Id. (citation omitted). 169 See Harlow v. Fitzgerald, 457 U.S. 800 (1982) (consid- ering Section 1983 principles, including qualified immuni- ty). See also Wilson v. Garcia, 471 U.S. 261 (1985) (discuss- ing the historic context of Section 1983 actions); Wilson v. Layne, 526 U.S. 603, 609 (1999) (determining there was no clearly established law in a qualified immunity analysis). 170 See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971) (determin- ing that a complaint alleging damages against an individ- ual federal employee under the Fourth Amendment stated a cause of action). 171 Will v. Michigan Dep’t. of State Police, 491 U.S. 58, 71 (1989) (holding that the State and State officials sued in their official capacities are immune from suit under the Eleventh Amendment). 172 Monell v. Dep’t of Social Services of City of New York, 436 U.S. 658, 690–691 (1978) (determining local govern- ment is subject to a Section 1983 action). 173 Id. at 691.