Category Archives: Fourth Amendment

Illinois v. Warlow: Flight from Police Officer and High Crime Area; Reasonable Suspicion (01/12/2000)

Illinois v. Wardlow

Is a person’s sudden and unprovoked flight from identifiable police officers, patrolling an area high in crime, sufficiently suspicious to justify the officers stopping  that person?

Argued: 11/02/1999

Decision Date: 01/12/2000

Decision Record: 5-4; yes

Justices in Favor: William Rehnquist, Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy, Clarence Thomas

Justices Dissenting: John Paul Stevens, David Souter, Ruth Bader Ginsburg, Stephen Breyer

Effect of the Decision

This case ruled that the nervous attitude of the person fleeing the high crime area was enough suspicion for the police officers to stop and search him.

In Favor

In the favoring side of this case, on the side of the state of Illinois, attorney Richard A. Devine argued, “On September 9th, 1995, when William Wardlow looked at Officer Nolan and took flight, the officer had reason to believe that there was a problem.

He pursued and stopped Wardlow to investigate and discovered a loaded gun in his possession.

The three key factors in this brief statement are flight from a clearly identified police officer without provocation.

These factors provided reasonable suspicion supporting a Terry stop.”


In the opposition, on the side of Wardlow, attorney Malcolm L. Stewart argued, “It’s certainly true, as respondent and his amici point out, that individuals may, on some occasions, have innocent motives for fleeing the police.

But the purpose of a Terry stop is not to apprehend individuals who are known to be guilty of criminal offenses; rather, it’s to provide a means by which police may resolve ambiguities in situations where they have reasonable… reason to suspect criminal activity, but lack probable cause to make an arrest.

And in our view, flight from identifiable police officers will ordinarily correlate sufficiently with likely involvement in criminal activity.”


On the side of the majority, Chief Justice William Rehnquist wrote the opinion for the court. He wrote, “Respondent and amici also argue that there are innocent reasons for flight from police and that, therefore, flight is not necessarily indicative of ongoing criminal activity. This fact is undoubtedly true, but does not establish a violation of the Fourth Amendment. Even in Terry, the conduct justifying the stop was ambiguous and susceptible of an innocent explanation. The officer observed two individuals pacing back and forth in front of a store, peering into the window and periodically conferring. Terry, 392 U.S., at 5—6. All of this conduct was by itself lawful, but it also suggested that the individuals were casing the store for a planned robbery. Terryrecognized that the officers could detain the individuals to resolve the ambiguity. Id., at 30.

    In allowing such detentions, Terry accepts the risk that officers may stop innocent people. Indeed, the Fourth Amendment accepts that risk in connection with more drastic police action; persons arrested and detained on probable cause to believe they have committed a crime may turn out to be innocent. The Terrystop is a far more minimal intrusion, simply allowing the officer to briefly investigate further. If the officer does not learn facts rising to the level of probable cause, the individual must be allowed to go on his way. But in this case the officers found respondent in possession of a handgun, and arrested him for violation of an Illinois firearms statute. No question of the propriety of the arrest itself is before us.”

In opposition, Justice John Paul Stevens wrote, “The State, along with the majority of the Court, relies as well on the assumption that this flight occurred in a high crime area. Even if that assumption is accurate, it is insufficient because even in a high crime neighborhood unprovoked flight does not invariably lead to reasonable suspicion. On the contrary, because many factors providing innocent motivations for unprovoked flight are concentrated in high crime areas, the character of the neighborhood arguably makes an inference of guilt less appropriate, rather than more so. Like unprovoked flight itself, presence in a high crime neighborhood is a fact too generic and susceptible to innocent explanation to satisfy the reasonable suspicion inquiry. See Brown v. Texas, 443 U.S. 47, 52 (1979); see also n. 15, supra.

    It is the State’s burden to articulate facts sufficient to support reasonable suspicion. Brown v. Texas, 443 U.S. 47, 52 (1979); see also Florida v. Royer, 460 U.S. 491, 500 (1983) (plurality opinion). In my judgment, Illinois has failed to discharge that burden. I am not persuaded that the mere fact that someone standing on a sidewalk looked in the direction of a passing car before starting to run is sufficient to justify a forcible stop and frisk.”

My Opinion:

In this case, I agree with the majority opinion. Wardlow fled an area with identifiable police officers around and high crime. It’s no wonder the police stopped him. By running from an area such as Chicago, that’s definitely enough reason for a police officer to stop him. It indicates fear and anxiousness. And that evidently leads to people thinking you may have done something bad or are planning to do something unacceptable by the police. This justifies and provides reasonable suspicion for the police officers to search Wardlow. This was not a violation of the Fourth Amendment.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

Vernonia School District v. Acton: Reasonable Random Drug Searches (06/26/1995)

Vernonia School District v. Acton

Does random drug testing of high school athletes violate the reasonable search and seizure clause of the Fourth Amendment?

Argued: 03/28/1995

Decision Date: 06/26/1995

Decision Record: 6-3; no

Justices in Favor: John Paul Stevens, Sandra Day O’Connor, David Souter

Justices Dissenting: William Rehnquist, Antonin Scalia, Anthony Kennedy, Clarence Thomas, Ruth Ginsburg, Stephen Breyer

Effect of the Decision

This case ruled that the random drug tests at the high school did not violate the Fourth Amendment.

In Favor

In the favoring side of this case, on the side of the Vernonia School District, attorney Timothy R. Voleprt argued, “The issue presented is whether a school district faced with a serious drug problem with student athletes at its core may reasonably require athletes to submit to drug testing absent individualized suspicion.

The hard evidence of drug use consists, Justice Souter, of observations on numerous occasions by a teacher of students smoking marijuana across the street, arrests of student athletes for using drugs, confiscation of drug paraphernalia on school grounds, admissions by students to the principal that they have used drugs, admissions by certain student athletes to the coaches that they had used drugs, coaches’ observations of marijuana coming from the room of athletes the day after a serious injury–“


In the opposition, on the side of the city of Acton, attorney Richard H. Seamon argued, “I’d like to begin by addressing a question that arose earlier.

The question was, if there was so much evidence of drug use in Vernonia, why wasn’t there enough individualized suspicion to make individualized suspicion-based testing effective?

That question is plainly relevant under the balancing approach this Court applied in Skinner and Von Raab, because even though the Court declined to impose a least intrusive means requirement in its analysis, it is plain that alternatives to suspicionless testing are relevant to decide whether suspicionless testing is actually necessary to further the governmental interest that is being asserted, and I think that the limitations of individualized suspicion testing are illustrated well on the facts of this case.

Some of the evidence concerned drug use by individual students, and would have permitted individualized suspicion-based testing of those students… for example, the students from whom drug paraphernalia was confiscated, the students who were seen smoking marijuana in the coffee shop across the street from the school, the students who were arrested for using intoxicants at a party during the school day.

But this was not the only relevant evidence in the record that there was a drug problem in Vernonia.

The school district witnessed a two to threefold increase in disciplinary problems over the course of a couple of years.

At the same time, it witnessed the rise of an apparent drug culture.

Students boasting about their use of drugs, whether true or false, was certainly relevant to the officials’ assessment of whether a drug problem existed, and finally, the organization of groups with names like The Drug Cartel.

Now, maybe the fact that a student belongs to a group called The Drug Cartel does not provide individualized reasonable suspicion for testing that individual.

That would be a debatable point.

But the fact that such a group springs into existence at the same time that there is a two to threefold increase in disciplinary problems, and teachers for the first time begin hearing students boasting about drug use and writing about it in essays that they hand in to be graded clearly is relevant in assessing the existence of a drug problem.”


On the side of the majority, Justice Antonin Scalia wrote the opinion for the court. He wrote, “Taking into account all the factors we have considered above–the decreased expectation of privacy, the relative unobtrusiveness of the search, and the severity of the need met by the search–we conclude Vernonia’s Policy is reasonable and hence constitutional.

We caution against the assumption that suspicionless drug testing will readily pass constitutional muster in other contexts. The most significant element in this case is the first we discussed: that the Policy was undertaken in furtherance of the government’s responsibilities, under a public school system, as guardian and tutor of children entrusted to its care. [n.4] Just as when the government conducts a search in its capacity as employer (a warrantless search of an absent employee’s desk to obtain an urgently needed file, for example), the relevant question is whether that intrusion upon privacy is one that a reasonable employer might engage in, see O’Connor v. Ortega480 U.S. 709(1987); so also when the government acts as guardian and tutor the relevant question is whether the search is one that a reasonable guardian and tutor might undertake. Given the findings of need made by the District Court, we conclude that in the present case it is.

We may note that the primary guardians of Vernonia’s schoolchildren appear to agree. The record shows no objection to this districtwide program by any parents other than the couple before us here–even though, as we have described, a public meeting was held to obtain parents’ views. We find insufficient basis to contradict the judgment of Vernonia’s parents, its school board, and the District Court, as to what was reasonably in the interest of these children under the circumstances.”

Then in dissent, Justice Sandra Day O’Connor wrote, “On this record, then, it seems to me that the far more reasonable choice would have been to focus on the class of students found to have violated published school rules against severe disruption in class and around campus, see Record, Exh. 2, at 9, 11–disruption that had a strong nexus to drug use, as the District established at trial. Such a choice would share two of the virtues of a suspicion based regime: testing dramatically fewer students, tens as against hundreds, and giving students control, through their behavior, over the likelihood that they would be tested. Moreover, there would be a reduced concern for the accusatory nature of the search, because the Court’s feared “badge of shame,” ante, at 17, would already exist, due to the antecedent accusation and finding of severe disruption. In a lesser known aspect of Skinner, we upheld an analogous testing scheme with little hesitation. See Skinner, 489 U. S., at 611 (describing ” `Authorization to Test for Cause’ ” scheme, according to which train operators would be tested “in the event of certain specific rule violations, including noncompliance with a signal and excessive speeding”).

It cannot be too often stated that the greatest threats to our constitutional freedoms come in times of crisis. But we must also stay mindful that not all government responses to such times are hysterical overreactions; some crises are quite real, and when they are, they serve precisely as the compelling state interest that we have said may justify a measured intrusion on constitutional rights. The only way for judges to mediate these conflicting impulses is to do what they should do anyway: stay close to the record in each case that appears before them, and make their judgments based on that alone. Having reviewed the record here, I cannot avoid the conclusion that the District’s suspicionless policy of testing all student athletes sweeps too broadly, and too imprecisely, to be reasonable under the Fourth Amendment.”

My Opinion:

In this case, I agree with the majority decision. The random drug searches did not violate the reasonable suspicion clause of the Fourth Amendment. The random drug searches were due to the official drug investigation. They discovered drugs and that’s enough suspicion for the authorities and police to perform random drug searches.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right


Kyllo v. United States: Unwarranted Thermal Search (06/11/01)

Kyllo v. United States

Does the use of a thermal-imaging device to detect heat emanating from a private home constitute as a violation of the Fourth Amendment?

Argued: 02/20/01

Decision Date: 06/11/01

Decision Record: 5-4; yes

Justices in Favor: Antonin Scalia, David Souter, Clarence Thomas, Ruth Ginsburg, Stephen Breyer

Justices Dissenting: William Rehnquist, John Paul Stevens, Sandra Day O’Connor, Anthony Kennedy

Effect of the Decision

This case clarifies that the use of a thermal-imaging device, or any other device used to conduct a search, even from outside the house, is considered unconstitutional if performed without a warrant.

In Favor

In representation of Kyllo, attorney Kenneth Lerner argued, “Our home is the basic refuge for all citizens.

It’s where we have our greatest expectations of privacy, where we are free to let down our guard, and where we should have our greatest feeling that we are free from government spying.

Unreasonable and unwarranted searching of the home is the chief evil that the Fourth Amendment protects us against, and it has a specific… the home itself has a specific mention in the Constitution, and as a bedrock principle, the home is a place where we have our most heightened expectations of privacy.

I think that is an incomplete view of thermal imaging because there would be no image at all if it weren’t for the thermodynamic process.

There must be a constant heat source to heat up the wall so that you will see it.

Therefore there is something behind the wall that provides and radiates heat to the wall, the wall reradiates it out, but if it’s not constant, if it’s not a dynamic process, you will not see anything, and therefore it is the purpose of the thermal imager and the function of the thermal imager is to detect what is beneath the surface by scanning that surface.”


Then in opposition, representing the United States, attorney Michael R. Dreeben claimed, “Thermal imaging senses heat gradients on the exterior of a surface, in this case the structure was a house.

It does not penetrate the walls of the house, it does not reveal particular objects or activities inside of a house, and the record in this case and the findings that the district court made indicate that it is not capable of doing so through walls of a house.

The question in this case is whether individuals have a reasonable and justifiable expectation of privacy in the heat that’s on the exterior surface of their walls.

We believe that they do not.

Heat loss is an inevitable feature of heat in a structure.

If a structure is generating heat, it will lose that heat, and everyone knows that.

That’s why there is an insulation industry.

In addition, heat loss is frequently observable without the aid of technology, as, for example, when snow melts on a roof.”


The majority opinion was written by Justice Scalia. He wrote, “We have said that the Fourth Amendment draws “a firm line at the entrance to the house,” Payton, 445 U.S., at 590. That line, we think, must be not only firm but also bright–which requires clear specification of those methods of surveillance that require a warrant. While it is certainly possible to conclude from the videotape of the thermal imaging that occurred in this case that no “significant” compromise of the homeowner’s privacy has occurred, we must take the long view, from the original meaning of the Fourth Amendment forward.

“The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens.” Carroll v. United States, 267 U.S. 132, 149 (1925).

Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a “search” and is presumptively unreasonable without a warrant.

Since we hold the Thermovision imaging to have been an unlawful search, it will remain for the District Court to determine whether, without the evidence it provided, the search warrant issued in this case was supported by probable cause–and if not, whether there is any other basis for supporting admission of the evidence that the search pursuant to the warrant produced.”

In respectful dissent, Justice Stevens said in his opinion, “The Court argues that the permissibility of “through-the-wall surveillance” cannot depend on a distinction between observing “intimate details” such as “the lady of the house [taking] her daily sauna and bath,” and noticing only “the nonintimate rug on the vestibule floor” or “objects no smaller than 36 by 36 inches.” Ante, at 10—11. This entire argument assumes, of course, that the thermal imager in this case could or did perform “through-the-wall surveillance” that could identify any detail “that would previously have been unknowable without physical intrusion.” Ante, at 11—12. In fact, the device could not, see n. 1, supra, and did not, see Appendix, infra, enable its user to identify either the lady of the house, the rug on the vestibule floor, or anything else inside the house, whether smaller or larger than 36 by 36 inches. Indeed, the vague thermal images of petitioner’s home that are reproduced in the Appendix were submitted by him to the District Court as part of an expert report raising the question whether the device could even take “accurate, consistent infrared images” of the outside of his house. Defendant’s Exhibit 107, p. 4. But even if the device could reliably show extraordinary differences in the amounts of heat leaving his home, drawing the inference that there was something suspicious occurring inside the residence–a conclusion that officers far less gifted than Sherlock Holmes would readily draw–does not qualify as “through-the-wall surveillance,” much less a Fourth Amendment violation.

Although the Court is properly and commendably concerned about the threats to privacy that may flow from advances in the technology available to the law enforcement profession, it has unfortunately failed to heed the tried and true counsel of judicial restraint. Instead of concentrating on the rather mundane issue that is actually presented by the case before it, the Court has endeavored to craft an all-encompassing rule for the future. It would be far wiser to give legislators an unimpeded opportunity to grapple with these emerging issues rather than to shackle them with prematurely devised constitutional constraints.”

My Opinion:

In this case, I agree with the majority decision. The thermal-imaging device used to perform a thermal search is still considered a violation of the Constitution. The search was performed without a warrant, and regardless of the fact that it was done outside, it allowed the searchers to search inside Kyllo’s property, which is evidently a violation of the Fourth Amendment right to “be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” They may not have been able to actually look inside, but it allowed them to find what they were looking for without a warrant, which is not constituted by the Fourth Amendment.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right


Terry v. Ohio: “Stop and Frisk” Under Probable Cause (06/10/1968)

Terry v. Ohio

Was the search and seizure of Terry and the other men in violation of the Fourth Amendment?

Argued: 12/12/1967

Decision Date: 06/10/1968

Decision Record: 8-1; no

Justices Plurality: Earl Warren, Hugo Black, John Harlan, William Brennan, Potter Stewart, Byron White, Abe Fortas, Thurgood Marshall

Justices Dissenting: William Douglas

Effect of the Decision

This case upholds that a “Stop and Frisk” performed by the police under the probable cause standard does not violate the Fourth Amendment.

In Favor

In representation of Terry, attorney Louis Stokes argued, “This case originally arose in the Common Pleas Court of Cuyahoga County, based upon the indictment for carrying a concealed weapon, in violation of Ohio Revised Code, Section 2923.01.

The defendant in this case filed a motion to suppress the evidence, and at the trial there was a hearing on the motion.

After hearing the motion, the motion was overruled and the case proceeded to trial.

This was a bench trial, jury having been waived.

After hearing the evidence, the motion originally filed was overruled again.

The defendant was convicted of carrying a concealed weapon.

The trial court ruled an opinion in this case, and we then appealed to the Court of Appeals for Cuyahoga County.

This court sustained and affirmed the conviction of the lower court.

This court also wrote an opinion.

Subsequently, application was made to the Ohio State Supreme Court for review, and that court dismissed the application for review stating: no debatable constitutional question.

This court granted certiorari.

The facts in this case are these and I think they are signally important, if we are to try to arrive at the proper verdict, with reference to this case.

This incident occurred at 2:30 in the afternoon, in broad daylight in the downtown section of Cleveland, Ohio.

The police officer in this case, one Martin McFadden, noticed two Negro males standing at the corner of Fourteenth Street, in the City of Cleveland, where Euclid Avenue and Huron Road intersect.

These two streets, if the court please, form a triangle at the apex of East Fourteenth Street — the police officer was approximately 100 feet away from where these two men were.”


Then in opposition, representing the state of Ohio, attorney Reuben M. Payne claims, “There it is indicated that after the officer had testified that he observed the conduct of these men, and that he had concluded that they were casing an establishment for a robbery, we find this quote appearing from the record, Question: Detective McFadden, can you tell us why you turned John Terry around facing the other two men, with you behind him?

Answer: Due to my observation, the observation on Huron Road of these two men, I felt as though they were going to pull a stick-up and they may have a gun.

That is supported and substantiated in the record of this particular case.

A question has been asked here, what is the difference between reasonable suspicion, and probable cause?

In one instance, in the arguments of the case before this court, the Court of Appeals in the Peters case, has said, it is that cause which is somewhat below probable cause on the scale of absolute knowledge of criminal activity.”


The majority opinion slip was written by Justice Earl Warren. He wrote, “We conclude that the revolver seized from Terry was properly admitted in evidence against him. At the time he seized petitioner and searched him for weapons, Officer McFadden had reasonable grounds to believe that petitioner was armed and dangerous, and it was necessary for the protection of himself and others to take swift measures to discover the true facts and neutralize the threat of harm if it materialized. The policeman carefully restricted his search to what was appropriate to the discovery of the particular items which he sought. Each case of this sort will, of course, have to be decided on its own facts. We merely hold today that, where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where, in the course of investigating this behavior, he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.”

Then in dissent, Justice William Douglas wrote, “In other words, police officers up to today have been permitted to effect arrests or searches without warrants only when the facts within their personal knowledge would satisfy the constitutional standard of probable cause. At the time of their ‘seizure’ without a warrant, they must possess facts concerning the person arrested that would have satisfied a magistrate that ‘probable cause’ was indeed present. The term ‘probable cause’ rings a bell of certainty that is not sounded by phrases such as ‘reasonable suspicion.’ Moreover, the meaning of ‘probable cause’ is deeply embedded in our constitutional history. As we stated in Henry v. United States:

The requirement of probable cause has roots that are deep in our history. The general warrant, in which the name of the person to be arrested was left blank, and the writs of assistance, against which James Otis inveighed, both perpetuated the oppressive practice of allowing the police to arrest and search on suspicion. Police control took the place of judicial control, since no showing of ‘probable cause’ before a magistrate was required.”

My Opinion:

In this case, I agree with the majority opinion. The Fourth Amendment clearly states for us to use the “probable cause” standard, which is what we are using out on the streets in the status quo. If the police have enough reason to constitute suspicion, then he or she has the right to stop the person and search them for weapons under the probable cause standard. Terry’s rights were not violated for his search was justified and the police had enough reason to believe that he and his friends possibly carried weapons on him.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

Katz v. United States: Wiretap Public Payphone (12/18/1967)

Katz v. United States

Does the Fourth Amendment protection against unreasonable searches and seizures require the police to obtain a search warrant in order to wiretap a public pay phone?

Argued: 10/17/1967

Decision Date: 12/18/1967

Decision Record: 7-1; no

Justices in Favor: Earl Warren, William Douglas, John Marshall, William Brennan, Potter Stewart, Byron White, Abe Fortas

Justices Dissenting: Hugo Black

Justice John Marshall did not partake in the decision of this case.

Effect of the Decision

This case clarifies that in order for the police to eavesdrop on anyone’s conversation, even in a public pay phone, you must require a search warrant like the Fourth Amendment says.

In Favor

In representation of Katz, attorney Harvey A. Schneider argued, “The facts of this case that is now before the Court are really quite simple.

The law applicable is something else again.

But the facts are as follows.

Mr. Katz was surveilled by agents of the Federal Bureau of Investigation for a period of approximately six days.

During that period of time, the surveillance was conducted by the use of a microphone being taped on top of a public telephone booth or a bank booth, so it was actually three booths.

One booth had been placed out of order by the telephone company and with the telephone company’s cooperation, the other two booths were used by Mr. Katz.

Sometimes he used one booth, sometimes he used another.

The tape was placed on top of the booth or the microphone was placed on top by a tape.

The FBI Agents had undoubtedly read their homework and had not physically penetrated into the area of the telephone booth.

Subsequently after about six days of surveillance, Mr. Katz was arrested.

He was then taken to his apartment building where his room was searched under a search warrant and numerous items were seized from Mr. Katz’s apartment.

The issues before the Court are fairly clear.

One, whether or not, the search and seizure or one of the interceptions of the telephone communications was prescribed by the Fourth Amendment; and two, whether or not, the warrant that was used to search his apartment building is constitutionally proper or constitutionally defective.”


Then in opposition, representing the United States, attorney John S. Martin, Jr. claims, “I think that the heart of petitioner’s argument to a certain extent is a radical change in the concept to the Fourth Amendment.

I think as Mr. Justice Brennan mentioned, it has been said in recent years that the Fourth Amendment protects more rights of privacy than rights in property.

However this Court has never held the right of privacy protected by the Fourth Amendment, does not exist within the framework of a constitutionally protected area.

As counsel mentioned, Mr. Justice Holmes speaking for unanimous Court, this Court’s opinion in Hester versus the United States, said very clearly, “The protections of the Fourth Amendment do not extend to an open field.

To adapt the test which counsel has suggested in this case would radically change the rules under which law enforcement has been operating for a long time with the approval of this Court, and I mean it in this sense.

It seems to me that to say that no matter where the activity takes place, it is protected by the Fourth Amendment.

The subjects to that Amendment not only the matter of what is overheard, but what is observed.

Assume, if you would please, the following situation.

Take the case that we have here.

And instead of the agents being interested in hearing what Mr. Marks said, but let’s assume it was a kidnapping case and they knew that this booth had been used on one occasion too by the kidnapper to call with regard to ransom.

And the kidnapper had scheduled to call for eight o’clock in the evening.

So as not to scare him off, the agents might station themselves in another building some distance away, and armed with binoculars perhaps even in infrared scope that would allow them to see at night, put this telephone booth under surveillance.

The kidnapper would approach that booth.

He might look around to make sure that he was secured, that nobody was observing him.

He would be wrong in his conclusion.

I assumed that under Mr. Mark’s — Mr. Schneider’s rationale that the fact that the agents saw him entered the booth, but they could not testify that that would be an unreasonable search and seizure.

I think that this Court has always recognized the doctrine.

That one is protected is the right to privacy which exists within a constitutionally protected area, within a home, within an office, some area in which the party involved has an interest.

It may not have to be a property interest of a tenant or an owner, maybe that of a guest in those premises.

But it exists only within the framework of a constitutionally protected area.

We submit on an analysis in that term what occurred here did not occur in a constitutionally protected area.

As we see it, there is no significant difference between the telephone booth involved in this case and an open field.

An occupant in a public telephone booth is just as subject to visual surveillance as a man standing in an open field.

These phone booths are neither designed nor are they considered to be totally sound proof.

It’s rather easy to overhear this I think all of us know.”


The majority opinion was written by Justice Stewart. He wrote, “These considerations do not vanish when the search in question is transferred from the setting of a home, an office, or a hotel room to that of a telephone booth. Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures. The government agents here ignored “the procedure of antecedent justification . . . that is central to the Fourth Amendment,’  a procedure that we hold to be a constitutional precondition of the kind of electronic surveillance involved in this case.”

In respectful dissent, Justice Black said in his opinion, “So far, I have attempted to state why I think the words of the Fourth Amendment prevent its application to eavesdropping. It is important now to show that this has been the traditional view of the Amendment’s scope since its adoption, and that the Court’s decision in this case, along with its amorphous holding in Berger last Term, marks the first real departure from that view.

The first case to reach this Court which actually involved a clear-cut test of the Fourth Amendment’s applicability to eavesdropping through a wiretap was, of course, Olmstead, supra. In holding that the interception of private telephone conversations by means of wiretapping was not a violation of the Fourth Amendment, this Court, speaking through Mr. Chief Justice Taft, examined the language of the Amendment and found, just as I do now, that the words could not be stretched to encompass overheard conversations:

The Amendment itself shows that the search is to be of material things — the person, the house, his papers or his effects. The description of the warrant necessary to make the proceeding lawful, is that it must specify the place to be searched and the person or things to be seized. . . .”

My Opinion:

In this case, I agree with the majority decision. Eavesdropping on one’s conversation, even in a public pay phone, is violating not only their privacy, but their Fourth Amendment rights, which clearly states, “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” By wiretapping a public pay phone to listen to a private conversation, you are not allowing them to be secure against “unreasonable searches,” much less use the information obtained unconstitutionally against them in court. Katz’s Fourth Amendment rights were infringed upon because eavesdropping on a conversation without a warrant to use against them in court is still considered an “unreasonable search.”

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right


Mapp v. Ohio: Illegally Obtained Evidence In Criminal Trial (06/19/1961)

Mapp v. Ohio

Should evidence obtained from performing a search in violation of the Fourth Amendment be inadmissable in a state criminal proceeding?

Argued: 03/29/1961

Decision Date: 06/19/1961

Decision Record: 6-3; yes

Justices in Favor: Earl Warren, Hugo Black, William Douglas, Tom Clark, William Brennan, Potter Stewart

Justices Dissenting: Felix Frankfurter, John Harlan, Charles Whittaker

Effect of the Decision

This case holds that any evidence that is obtained from performing an illegal search in violation of the Fourth Amendment cannot be used in a state criminal trial.

In Favor

In the representation of the side of Dollree Mapp, attorney A. L. Kearns said, “We have a situation here arising in Cuyahoga County, Ohio.

The defendant-appellant in this case was living in a residential neighborhood, owned her own home, and living there in a two-family house on the second floor, having rented the first floor to another tenant.

She lived there with a daughter approximately eleven years of age.

The evidence in this case disclosed that she is a woman without any record whatsoever from the criminal point of view — a decent, respectable American citizen.

One day these police officers of the City of Cleveland, three in number, and the record sets forth the occurrence, came to the house and wanted to be admitted for the purpose of making a search.

When they rapped at the door or rang the bell, she looked out the window and asked them what they wanted.

And they said that they wanted to search the house.

And she said that she would call her lawyer and see what he says.

Now, the evidence discloses that the police officers claimed that they were informed that there was some paraphernalia for the numbers game in the house, and they were also informed that a person wanted for questioning in a bombing was in the house.

She called her lawyer, Mr. Greene, who is my associate; and he said to her, if they have a search warrant, you permit them into the house.

So she told them that they’d have to have a search warrant.

One of the police officers then called his chief, a Lieutenant Cooney, and told him he couldn’t get into the house because they required a search warrant and within a few minutes thereafter, several zone cars with many police officers surrounded the house.

Then, the evidence discloses, at least two of the police officers who knew — one was Sergeant Delau — knew what he was there for, but made no effort to procure a search warrant, neither one of them did, but they testified that a search warrant was procured by a Lieutenant White.

Now, they didn’t know about it.

The evidence discloses that they were told that a search warrant had been procured.

When they came to the house with the search warrant and by the time or supposed search warrant, by the time they arrived, Mr. Greene was also there.

This Lieutenant White came and showed a piece of paper, and Mrs. Mapp demanded to see the paper and to read it to see what it was, which they refused to do, so she grabbed it out of his hand to look at it and then a scuffle started, and she put this piece of paper into her bosom. And very readily the police officer put his hands into her bosom and removed the paper, and thereafter, thereafter handcuffed her while the police officers started to search the house.

Now, the evidence in the case discloses that the State claims there were only seven police officers, some in uniform.

Mr. Greene, who was there and was not permitted entrance to the house, but was kept outside, says there were approximately twelve police officers in all.

Now, the evidence discloses that no search warrant existed. Although they claimed that there was a search warrant, there is absolutely no evidence of any magistrate that had been asked for a search warrant. There was no record of a search warrant.

We asked during the trial of the case that the search warrant be produced and it was not.

The fact of the matter is that our own Supreme Court found that it was very questionable as to whether there was a search warrant in this case.

It was a piece of white paper, but the police officers never produced it, because, as a matter of fact, if it please Your Honors, I waited in the trial of the case for Lieutenant White, who was supposed to be the man who procured the search warrant, to take the stand so that at least I could cross examine him as to where, when and how he procured the search warrant and what the search warrant contained, but the State was clever enough not to put him on the stand and no other police officer knew anything about it.”


Then in opposition, representing Ohio, attorney Bernard A. Berkman claims, “Before I get into the area which was allotted to me, I would like to say that the American Civil Liberties Union and its Ohio Affiliate, the Ohio Civil Liberties Union, is very clear, in response to the question which was directed to counsel for the appellant, that we are asking this Court to reconsider Wolf versus Colorado and to find that evidence which is unlawfully and illegally obtained should not be permitted into a state proceeding, and that its production is a violation of the Federal Constitution, the Fourth Amendment and the Fourteenth Amendment.

We have no hesitancy about asking the Court to reconsider it because we think that it is a necessary part of due process.

Our principal reason for appearing on behalf of the American Civil Liberties Union and its Ohio affiliate is to urge the unconstitutionality of the Ohio obscenity law, which is Section 2905, Subsection 34 of the Ohio Revised Code.”


The majority opinion was written by Justice Tom Clark. He wrote, “Since the Fourth Amendment’s right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth, it is enforceable against them by the same sanction of exclusion as is used against the Federal Government. Were it otherwise, then, just as without the Weeksrule the assurance against unreasonable federal searches and seizures would be “a form of words,” valueless and undeserving of mention in a perpetual charter of inestimable human liberties, so too, without that rule, the freedom from state invasions of privacy would be so ephemeral and so neatly severed from its conceptual nexus with the freedom from all brutish means of coercing evidence as not to merit this Court’s high regard as a freedom “implicit in the concept of ordered liberty.” At the time that the Court held in Wolf that the Amendment was applicable to the States through the Due Process Clause, the cases of this Court, as we have seen, had steadfastly held that as to federal officers the Fourth Amendment included the exclusion of the evidence seized in violation of its provisions. Even Wolf“stoutly adhered” to that proposition. The right to privacy, when conceded operatively enforceable against the States, was not susceptible of destruction by avulsion of the sanction upon which its protection and enjoyment had always been deemed dependent under the Boyd, Weeks and Silverthornecases. Therefore, in extending the substantive protections of due process to all constitutionally unreasonable searches — state or federal — it was logically and constitutionally necessary that the exclusion doctrine — an essential part of the right to privacy — be also insisted upon as an essential ingredient of the right newly recognized by the Wolf case. In short, the admission of the new constitutional r5ght by Wolf could not consistently tolerate denial of its most important constitutional privilege, namely, the exclusion of the evidence which an accused had been forced to give by reason of the unlawful seizure. To hold otherwise is to grant the right but, in reality, to withhold its privilege and enjoyment. Only last year, the Court itself recognized that the purpose of the exclusionary rule

is to deter — to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it.

Indeed, we are aware of no restraint, similar to that rejected today, conditioning the enforcement of any other basic constitutional right. The right to privacy, no less important than any other right carefully and particularly reserved to the people, would stand in marked contrast to all other rights declared as “basic to a free society.” Wolf v. Colorado, supra, at 27. This Court has not hesitated to enforce as strictly against the States as it does against the Federal Government the rights of free speech and of a free press, the rights to notice and to a fair, public trial, including, as it does, the right not to be convicted by use of a coerced confession, however logically relevant it be, and without regard to its reliability. (Rogers v. Richmond) And nothing could be more certain than that, when a coerced confession is involved, “the relevant rules of evidence” are overridden without regard to “the incidence of such conduct by the police,” slight or frequent. Why should not the same rule apply to what is tantamount to coerced testimony by way of unconstitutional seizure of goods, papers, effects, documents, etc.? We find that, as to the Federal Government, the Fourth and Fifth Amendments and, as to the States, the freedom from unconscionable invasions of privacy and the freedom from convictions based upon coerced confessions do enjoy an “intimate relation” in their perpetuation of “principles of humanity and civil liberty [secured] . . . only after years of struggle,” (Bram v. United States) They express “supplementing phases of the same constitutional purpose to maintain inviolate large areas of personal privacy.” (Feldman v. United States) The philosophy of each Amendment and of each freedom is complementary to, although not dependent upon, that of the other in its sphere of influence — the very least that together they assure in either sphere is that no man is to be convicted on unconstitutional evidence.”

Then in dissent, Justice John Harlan said, “In conclusion, it should be noted that the majority opinion in this case is, in fact, an opinion only for the judgment overruling Wolf, and not for the basic rationale by which four members of the majority have reached that result. For my Brother BLACK is unwilling to subscribe to their view that the Weeksexclusionary rule derives from the Fourth Amendment itself (see ante, p. 661), but joins the majority opinion on the premise that its end result can be achieved by bringing the Fifth Amendment to the aid of the Fourth. On that score I need only say that whatever the validity of the “Fourth-Fifth Amendment” correlation which the Boyd case found we have only very recently again reiterated the long-established doctrine of this Court that the Fifth Amendment privilege against self-incrimination is not applicable to the States. (Cohen v. Hurley)

I regret that I find so unwise in principle and so inexpedient in policy a decision motivated by the high purpose of increasing respect for Constitutional rights. But, in the last analysis, I think this Court can increase respect for the Constitution only if it rigidly respects the limitations which the Constitution places upon it, and respects as well the principles inherent in its own processes. In the present case, I think we exceed both, and that our voice becomes only a voice of power, not of reason.”

Finally, in a separate opinion, Justice Potter Stewart wrote, “Agreeing fully with Part I of MR. JUSTICE HARLAN’s dissenting opinion, I express no view as to the merits of the constitutional issue which the Court today decides. I would, however, reverse the judgment in this case, because I am persuaded that the provision of § 2905.34 of the Ohio Revised Code, upon which the petitioner’s conviction was based, is, in the words of MR. JUSTICE HARLAN, not “consistent with the rights of free thought and expression assured against state action by the Fourteenth Amendment.”

My Opinion:

In this case, I agree with the majority’s decision. Authorities performed an illegal search on Mapp and obtained evidence that they proceeded to attempt to use during the state criminal trial. The Fourth Amendment clearly protects all American citizens from unreasonable searches or seizures. The authorities warrantly searched a house, which compeltely violates the Fourth Amendment. A citizen’s constitutional right must be protected and if the evidence was unconstitutionally and unfairly retrieved, then it should definitely not be used in court.

The exclusionary rule, under the Fourth Amendment, also clearly states that all illegally obtained evidence may not be used in a court trial. This applies wholly in this case, because evidence was illegally acquired, as repeatedly stated, and authorties tried to use it against the defendant. This violated the exclusionary rule.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

New Jersey v. T.L.O.: Exclusionary Rule, Purse Search (01/15/1985)

New Jersey v. T.L.O.

Did the school administrators have the right to search T.L.O’s purse without violation of the exclusionary rule?

T.L.O. is the name of the respondent.

Argued: 03/28/1984

Reargued: 10/02/1984

Decision Date: 01/15/1985

Decision Record: 6-3; yes

Justices in Favor: Warren Burger, Byron White, Harry Blackmun, Lewis Powell, William Rehnquist, Sandra Day O’Connor

Justices Dissenting: William Brennan, Thurgood Marshall, John Paul Stevens

Effect of the Decision

This case shows that if schools receive some sort of evidence that a student may have been committing an illegal crime, this is enough reason to further search that student. The case also lead to the enforcement of the reasonable suspicion standard.

In Favor

In the representation of the side of New Jersey, attorney Allan J. Nodes argued, “In this case, the respondent was observed smoking a cigarette in a school restroom by a teacher.

The teacher took the student to the vice principal’s office and reported the incident to the vice principal.

After the teacher left, the student not only denied having smoked in the restroom but also stated that it couldn’t have been her because she didn’t even smoke.

After… following this statement, the vice principal asked for the student’s purse, and opened the student’s purse, finding a pack of cigarettes lying on the top.

He picked up the cigarettes and said something to the effect of,

‘You lied to me about smoking cigarettes.’

looked back in the purse, and saw rolling papers for cigarettes.

He believed these were indicative of the presence of drug paraphernalia in the purse, and continued to look through the purse.

He found marijuana and other indications that the marijuana was in the purse for purposes of distribution.

I don’t think there would be any distinction under New Jersey law between a minor consenting to a search and an adult consenting.

New Jersey has a slightly stricter standard than the federal standard concerning consent, and it would have been absolutely necessary that the juvenile be aware of her rights prior to the search taking place in order for it to be a consent search.

Because of this, the state has always conceded that it was not a consent search.”


Then in opposition, representing T.L.O., attorney Lois DeJulio claims, “This case arises in the factual setting of the public school system, but I would urge the Court not to let the context obscure the fact that the issues presented here are not ones of educational policy, but are rather ones of criminal law.

The question is not whether or under what circumstances schools may regulate the conduct of their students.

It is not whether this school may use certain types of evidence in its own internal disciplinary proceedings to form the basis for imposing school sanctions.

Rather, the question is whether a court of law may permit an individual to be convicted of a crime based upon evidence illegally seized from him by a government official.”


The majority opinion was written by Justice Byron White. He wrote, “Our conclusion that Mr. Choplick’s decision to open T.L.O.’s purse was reasonable brings us to the question of the further search for marihuana once the pack of cigarettes was located. The suspicion upon which the search for marihuana was founded was provided when Mr. Choplick observed a package of rolling papers in the purse as he removed the pack of cigarettes. Although T.L.O. does not dispute the reasonableness of Mr. Choplick’s belief that the rolling papers indicated the presence of marihuana, she does contend that the scope of the search Mr. Choplick conducted exceeded permissible bounds when he seized and read certain letters that implicated T.L.O. in drug dealing. This argument, too, is unpersuasive. The discovery of the rolling papers concededly gave rise to a reasonable suspicion that T.L.O. was carrying marihuana as well as cigarettes in her purse. This suspicion justified further exploration of T.L.O.’s purse, which turned up more evidence of drug-related activities: a pipe, a number of plastic bags of the type commonly used to store marihuana, a small quantity of marihuana, and a fairly substantial amount of money. Under these circumstances, it was not unreasonable to extend the search to a separate zippered compartment of the purse; and when a search of that compartment revealed an index card containing a list of “people who owe me money” as well as two letters, the inference that T.L.O. was involved in marihuana trafficking was substantial enough to justify Mr. Choplick in examining the letters to determine whether they contained any further evidence. In short, we cannot conclude that the search for marihuana was unreasonable in any respect.

Because the search resulting in the discovery of the evidence of marihuana dealing by T.L.O. was reasonable, the New Jersey Supreme Court’s decision to exclude that evidence from T.L.O.’s juvenile delinquency proceedings on Fourth Amendment grounds was erroneous.”

Then in dissent, Justice Thurgood Marshall said, “On my view, the presence of the word “unreasonable” in the text of the Fourth Amendment does not grant a shifting majority of this Court the authority to answer all Fourth Amendment questions by consulting its momentary vision of the social good. Full-scale searches unaccompanied by probable cause violate the Fourth Amendment. I do not pretend that our traditional Fourth Amendment doctrine automatically answers all of the difficult legal questions that occasionally arise. I do contend, however, that this Court has an obligation to provide some coherent framework to resolve such questions on the basis of more than a conclusory recitation of the results of a “balancing test.” The Fourth Amendment itself supplies that framework and because the Court today fails to heed its message, I must respectfully dissent.”

Also disagreeing with the majority opinion, Justice John Paul Stevens wrote, “The schoolroom is the first opportunity most citizens have to experience the power of government. Through it passes every citizen and public official, from schoolteachers topolicemen and prison guards. The values they learn there, they take with them in life. One of our most cherished ideals is the one contained in the Fourth Amendment: that the government may not intrude on the personal privacy of its citizens without a warrant or compelling circumstance. The Court’s decision today is a curious moral for the Nation’s youth. Although the search of T.L.O.’s purse does not trouble today’s majority, I submit that we are not dealing with “matters relatively trivial to the welfare of the Nation. There are village tyrants as well as village Hampdens, but none who acts under color of law is beyond reach of the Constitution.” West Virginia State Board of Education v. Barnette, 319 U.S. 624, 638 (1943).

I respectfully dissent.”

My Opinion:

In this case, I agree with the majority’s decision. The exclusionary rule applies only to evidence that has been illegally obtained. However, because the school authorities had already gotten a tip that T.L.O. was smoking in the bathroom, this resulted in the teacher physically going to the bathroom and seeing T.L.O. smoke in action. This was enough to justify a cursory search through her purse. After finding cigarette papers, this was enough evidence to allow them to search even further into her purse to see if there were any more hidden illegal item. Sure enough, they found marijuana.

This also did not violate the Fourth Amendment due to the fact that this was most definitely not an unreasonable search. The authorities had enough reason to justify their search of T.L.O’s purse. Had there been no evidence at all of T.L.O. smoking cigarettes in the school bathroom, then this could have been classified as an unreasonable search, and therefore a violation of the Fourth Amendment. However, this was not a search that was chosen randomly out of bias or anything else, so therefore, it was not a violation of any amendment, nor was the exclusionary rule applicable in this case.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right


Riley v. California: Warrantless Cell Phone Search (06/25/14)

Riley v. California

Was the evidence admitted at trial from Riley’s cell phone discovered through a search that violated his Fourth Amendment right to be free from unreasonable searches?

Argued: 04/29/2014

Decision Date: 06/25/2014

Decision Record: 9-0; yes

Justices in Favor: John Roberts (RC*), Antonin Scalia, Anthony Kennedy (LC), Clarence Thomas (R), Ruth Bader Ginsburg (L), Stephen Breyer (L), Samuel Alito (R), Sonia Sotomayor (L), Elena Kagan (LC)

Justices Dissenting: None


Effect of the Decision

This case holds that warrantless cell phone searches are a violation of the Fourth Amendment.


In Favor

In representation of Riley, attorney Jeffrey L. Fisher argued, “This case involves applying the core protection of the Fourth Amendment to a new factual circumstance.

It has always been the case that an occasion of an arrest did not give the police officers authority to search through the private papers and the drawers and bureaus and cabinets of somebody’s house, and that protection should not evaporate more than 200 years after the founding because we have the technological development of smartphones that have resulted in people carrying that information in their pockets.”


Then in opposition, representing the state of California, attorney Edward C. DuMont said, “As Mr. Fisher has said, if Mr. Riley had been carrying physical photographs in his pocket at the time of his arrest, there’s no dispute that arresting officers could have looked at those photographs to see whether they contained evidence of crime.

Now, what would have been reasonable in that situation does not become constitutionally unreasonable simply because Mr. Riley instead carried his photographs in digital form on a smartphone.

The shifted digital format does not make the photographs any less his papers.”


The majority in this case was unanimous on the side of Riley. In the opinion slip, written by Chief Justice John Roberts, he said, “

Our cases have recognized that the Fourth Amendment was the founding generation’s response to the reviled “general warrants” and “writs of assistance” of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity. Opposition to such searches was in fact one of the driving forces behind the Revolution itself. In 1761, the patriot James Otis delivered a speech in Boston denouncing the use of writs of assistance. A young John Adams was there, and he would later write that “[e]very man of a crowded audience appeared to me to go away, as I did, ready to take arms against writs of assistance.” 10 Works of John Adams 247–248 (C. Adams ed. 1856). According to Adams, Otis’s speech was “the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.” Id., at 248 (quoted in Boyd v. United States, 116 U. S. 616, 625 (1886) ).

Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life,” Boyd, supra, at 630. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.”

My Opinion:

In this case, I agree with the majority. A warrantless phone search violates a person’s Fourth Amendment rights, which protects a person from unreasonable searches. The Fourth Amendment also requires a warrant in order for the police to search someone or something. Not only does a warrantless phone search violate a person’s constitutional right, but also their privacy. Unless the police has a warrant to search the phone, then searching the phone would be considered a violation of one’s privacy.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right


Birchfield v. North Dakota: Warrantless Blood Tests (06/23/16)

Birchfield v. North Dakota

Should the Fourth Amendment permit warrantless breath tests that are incident to arrests for drunk driving, but not warrantless blood tests under the same circumstances?

See Fourth Amendment for more.

Argued: 4/20/16

Decision Date: 6/23/16

Decision Record: 7-1; yes

Justices in Favor: John Roberts (RC*), Samuel Alito (R), Anthony Kennedy (LC), Ruth Bader Ginsburg (L), Stephen Breyer (L), Sonia Sotomayor (L), Elena Kagan (LC)

Justices Dissenting: Clarence Thomas (R)


Effect of the Decision

This case allows the police to perform warrantless breath tests when there is a reasonable cause for the suspicion of drunk driving, but disallows warrantless blood tests under the same circumstances.


In Favor

In the defense of Mr. Birchfield, attorney Charles A. Rothfeld argued, “The fundamental problem with the statutes at issue in these three cases is that they make it a criminal offense to assert a constitutional right. Under laws of North Dakota and Minnesota, a person who is stopped on suspicion of impaired driving is obligated to take warrantless blood tests to determine the alcohol content of their blood. The States concede that these tests are searches under the meaning of the Fourth Amendment.

The United States and North Dakota appear to recognize that no exception under the recognized exceptions of the warrant requirement applies.

Nevertheless, a person is obligated to take this warrantless — to submit to this warrantless search, and is committing a criminal offense if he or she does not do so.”

Rothfeld stated that in North Dakota, Minnesota, and North Carolina, the law makes an exception for warrantless blood tests, because this question has never been brought up before in court.


In opposition, North Dakota’s attorney, Thomas R. McCarthy said, “The North Dakota statute strikes a bargain with individuals who wish to use the State’s public roads. Conditioning their use thereon, on consent to a blood-alcohol test, if arrested for drunk driving, the Court has held that this is a valid bargain, and that States may enforce it with the imposition of significant consequences, including license revocation and the use of test refusal as evidence in criminal proceedings.”

He was arguing that when the state provides the driver’s license, the new driver is consenting to warrantless blood tests.

Then attorney Kathryn Keena proceeded to defend Minnesota. “It may be possible to get a search warrant in every case, but if that’s what this Court is going to require, in Minnesota, we are going to be doing warrants and blood draws in every case. And that is not what this Court wants.”

After, in North Carolina’s defense, attorney Ian H. Gershengorn states, “It would be a mistake to have a warrant requirement. In the real world, I think it’s critically important that this Court not assume that warrants are available 24/7.

That is not the case in the real world. The Court knows that from the NHTSA studies that are in the record.

The North Carolina example is one. What the — what the study did there was compare three jurisdictions that were able to put in a warrant requirement against the nine jurisdictions that, for various resource reasons, availability of judges reasons and other reasons, were unable to do it. The experience of the park police, I can tell you in the wake of McNeely, is that while they can get the warrants 24/7 in Maryland, they have stopped doing blood draws, except in extraordinary cases in Virginia and D.C. because the magistrates are not available 24/7.”


The majority opinion paper, written by Samuel Alito, stated, “Blood tests, however, are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test. Respondents have offered no satisfactory justification for demanding the more intrusive alternative without a warrant. In instances where blood tests might be preferable—e.g., where substances other than alcohol impair the driver’s ability to operate a car safely, or where the subject is unconscious—nothing prevents the police from seeking a warrant or from relying on the exigent circumstances exception if it applies. Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. No warrant is needed in this situation.”

However, in the dissenting side, Clarence Thomas wrote, “The better (and far simpler) way to resolve these cases is by applying the per se rule that I proposed in McNeely. Under that approach, both warrantless breath and blood tests are constitutional because ‘the natural metabolization of [BAC] creates an exigency once police have probable cause to believe the driver is drunk. It naturally follows that police may conduct a search in these circumstances.’”

My Opinion:

I agree with the majority’s opinion in this case. The Fourth Amendment gives a person the constitutional right to privacy and to feel secure in their own persons, houses, papers, and effects, against unreasonable searches and seizures. Performing a warrantless blood test would be a violation of the Fourth Amendment constitutional right to feel secure in one’s own person. Blood exists within a person’s body, and therefore it would be unjust for law enforcement to extract one’s blood without a warrant.

Blood tests are considered more invasive, because the task performers are inserting a needle into a person’s body. On the other hand, in a breath test, the breath has left the body and has entered the public domain.

There was no logical argument presented supporting the supposition that the police are unable to obtain a warrant for a legal blood search within a reasonable period of time.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right