Search and seizure redefined

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Editor’s note: The commentary below is one in a continuing series that addresses the question: “How Does the Constitution Keep Up with the Times?” The essay is part of the Constitutionally Speaking civic engagement initiative, which is aimed at educating New Hampshire citizens young and old about constitutional issues and promoting the reintroduction of meaningful civics education into New Hampshire classrooms. The yearlong pilot project is a collaboration of the New Hampshire Supreme Court Society, the New Hampshire Humanities Council, and the University of New Hampshire School of Law. For more information, go to constitutionallyspeakingnh.com.

This term the U.S. Supreme Court will decide four criminal cases that will refine the boundary, in contemporary terms, between our freedom from unreasonable governmental searches and legitimate law enforcement investigative techniques. Each seeks judicial approval of the exercise of police powers as conforming to the contemporary understanding of the requirements of the Fourth Amendment. In unanimously affirming a search in one case just last month, the court adopted the state’s view in the first, and arguably easiest, of the four under review.

The Fourth Amendment was adopted in 1791 as a part of the Bill of Rights, to guard against the repugnant practice of general searches of citizens’ private “homes, papers, and effects.” British soldiers had engaged in such sweeping, house-to-house general searches. The framers therefore forbade all “unreasonable searches and seizures” and required that searches occur only after a warrant was issued by a neutral and detached magistrate. Such warrants must be based upon probable cause, i.e. reasonable grounds to believe that evidence of a crime could be found in a specific location. Of course it is not always possible to obtain a warrant before evidence is secreted or destroyed, and in the centuries since the enactment of the Fourth Amendment, the judiciary has recognized several exceptions to the warrant requirement based on emergency or exigent circumstances, or consent.

The searches in this term’s four cases rely on established exceptions to the warrant requirement where there is probable cause and evidence in plain view, motor vehicles, or other exigent circumstances involving too little time to obtain a warrant. They also involve new police techniques, some the result of evolving technologies.

The court has allowed searches of a mobile vehicle since 1925 if there is probable cause to believe there is evidence of a crime within it. In Florida v. Harris, the case decided last month, the police lawfully stopped a truck for an expired license plate and noticed a nervous driver with an open can of beer who refused a request to search the vehicle. When an officer had a dog trained to detect methamphetamines and other drugs circle the car, it alerted at the driver’s door. The officer then informed the driver he had probable cause, and searched the interior of the truck where numerous ingredients for making methamphetamines were discovered. A lower court invalidated the search, holding that to meet the constitutional standard the state must produce records of the dog’s qualifications, field experience and any other evidence of the dog’s reliability. The state argued that a well trained, certified drug detection dog can establish probable cause to search the truck, and the Supreme Court agreed.

In Florida v. Jardines, the police walked a drug detection trained dog to the front door of a home where they suspected marijuana was being grown. When the dog sniffed under the door it alerted by sitting down. The police knocked at the door, smelled marijuana, subsequently obtained a warrant based in part on the dog’s alert, and seized drugs from the house. The state argues that the dog was on the path to the front door, a place where the public is invited to be. Therefore, it reasons, the detection of contraband was permissible under the plain view doctrine, i.e. observation from a place where the police had a right to be is not an unreasonable search. This case does not involve the detection of private information from within the home, like thermal imaging, only the detection of contraband in which no right of privacy exists.

The other two cases implicate bodily privacy. Courts have long upheld statutes deeming the issuance of a driver’s license implied consent by the driver to take a breath or blood alcohol test. In Missouri v. McNeely the driver refused the breath test, so the officer drove the suspect directly to a hospital and within a half hour obtained a blood sample. The state argues the search was conducted in a reasonable manner by medical professionals, there was probable cause from the officer’s observations of erratic operation and the exigency that the blood alcohol level would dissipate at the rate of 0.015 to 0.018 percent per hour.

Maryland v. King involves a state law requiring that a DNA interior cheek swab be taken from all persons arrested for any crime. The sample is not analyzed until after the person is arraigned in court and probable cause for the charge is found. If the person is exonerated, the sample and test results must be destroyed. When the sample is analyzed it is run through a national database searching for a match of the DNA to any unsolved crimes. The state argues that the governmental interest in identifying the arrested person and solving crimes expeditiously outweighs the diminished privacy interest of a person under arrest. It also maintains that neither probable cause nor a warrant is required in all cases. For example, case law holds that finger printing is not a search.

(Gregory H. Smith served as a prosecutor and New Hampshire attorney general from 1980 to 1984. He is chairman of the Administrative and Regulatory Law Department in the Concord office of McLane, Graf, Raulerson & Middleton, concentrating in the firm’s government relations and environmental practices.)