Describe regulatory and administrative searches.

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LEARNING OBJECTIVES When you complete this chapter, you should be able to:

� Explain the justification for regulatory and administrative searches. � Describe regulatory and administrative searches. � Describe consent searches and the issues associated with them.


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Criminal Procedure: From First Contact to Appeal, Fourth Edition, by John L. Worrall. Published by Pearson. Copyright © 2012 by Pearson Education, Inc.



Actions Based on Administrative Justification and Consent






Introduction: Casting Off the Fourth Amendment’s Restraints

Actions Based on Administrative Justification Inventories

Vehicle Inventories Person Inventories

Inspections Home Inspections Business Inspections Fire Inspections International Mail Inspections

Checkpoints Border Checkpoints Illegal Immigrant Checkpoints Sobriety Checkpoints License and Safety Checkpoints Crime Investigation Checkpoints Other Types of Checkpoints Unconstitutional Checkpoints

School Discipline Locker Checks and Drug Dog “Sniffs”

“Searches” of Government Employees’ Offices Drug and Alcohol Testing

Drug and Alcohol Testing of Employees Drug and Alcohol Testing of Hospital Patients Drug and Alcohol Testing of School Students

Probation and Parole Supervision More Latitude at the State Level Police/Probation Partnerships Parole Supervision

Consent Searches Voluntariness Scope Limitations Third-Party Consent “Knock and Talk”

Summary Key Terms Key Cases Review Questions Web Links and Exercises


Casting Off the Fourth Amendment’s Restraints

As mentioned in Chapter 3, actions based on administrative justifications are those in which the primary purpose is noncriminal. They resemble searches because they intrude on people’s privacy—and can lead to the discovery of evidence. Technically, however, they are not searches. Instead of being based on probable cause or reasonable suspicion, administrative actions invoke a balancing test, weighing citizens’ privacy interests against the interest to ensure public safety. When the latter outweighs the former, an administrative “search” is allowed, subject to certain limitations (e.g., department policy). This chapter briefly introduces several types of actions that the Supreme Court has authorized based on administrative justification.


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Criminal Procedure: From First Contact to Appeal, Fourth Edition, by John L. Worrall. Published by Pearson. Copyright © 2012 by Pearson Education, Inc.

South Dakota v. Opperman (428 U.S. 364 [1976])

214 Part 2 • Search and Seizure

This chapter also introduces the topic of consent searches. When a person gives valid consent to search, neither a warrant nor probable cause is required. Closely tied to consent searches is the controversial police practice known as “knock and talk.” The consent search section also delves into third-party consent or the extent to which one person can grant consent to have another person’s property searched. Consent fits nicely in this chapter because neither it nor actions based on administrative justification require probable cause—or any real measure of proof that a crime is being or has been committed.


The Supreme Court has authorized numerous varieties of actions under the administra- tive justification exception to the Fourth Amendment’s probable cause and warrant requirements. Sometimes they are described as special needs beyond law enforcement searches; other times, they are called regulatory searches. To avoid confusion, this book lumps all of them under the category of administrative justification. The actions that are considered include (1) inventories; (2) inspections; (3) checkpoints; (4) school discipline; (5) “searches” of government employees’ offices; (6) drug and alcohol testing; and (7) parole and probation supervision. Note that when the term “search” appears in quotes, it is because while a particular action may look like a search, it is not the same as a true Fourth Amendment search.


Like seizures based on plain view, inventories can be viewed as another fallback measure. An inventory can be of a vehicle and/or of a person’s personal items. Usually, a search occurs under the automobile exception (in the case of an automobile) or a search incident to arrest (when a person is involved), and an inventory is taken after the fact for the purpose of developing a record of what items have been taken into custody. Both types of inventories are fallbacks in the sense that they often occur after an earlier search.

VEHICLE INVENTORIES A vehicle inventory occurs in a number of situations, usually after a car has been impounded for traffic or parking violations. In South Dakota v. Opperman (428 U.S. 364 [1976]), the Supreme Court held that a warrantless inventory is permissible on administrative/regulatory grounds. However, it must (1) follow a lawful impoundment; (2) be of a routine nature, following standard operating procedures; and (3) not be a “pretext concealing an investigatory police motive.” Thus, even though an inventory can be perceived as a fallback measure, which permits a search when probable cause is lacking, it cannot be used in lieu of a regular search requiring probable cause.

Why did the Court opt for another standard besides probable cause for the inventory, despite the fact that it is still a “search” in the conventional sense of the term? The Court noted that the probable cause requirement of the Fourth Amendment is “unhelpful” in the context of administrative care-taking functions (e.g., inventories) because the concept of probable cause is linked to criminal investigations. Probable cause is irrelevant with this type of administrative action, “particularly when no claim is made that the protective procedures are a subterfuge for criminal investigations” (p. 371).

The Court offered three reasons in support of vehicle inventories. First, an inventory protects the owner’s property while it is in police custody. Second, an inventory protects the police against claims of lost or stolen property. Finally, an inventory protects the police and public from dangerous items (e.g., weapons) that might be concealed in a car.


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Criminal Procedure: From First Contact to Appeal, Fourth Edition, by John L. Worrall. Published by Pearson. Copyright © 2012 by Pearson Education, Inc.

Illinois v. Lafayette (462 U.S. 640 [1983])

Colorado v. Bertine (479 U.S. 367 [1987])

Chapter 7 • Actions Based on Administrative Justification and Consent 215

Note that inventories include containers. That is, the police may examine any container discovered during the course of a vehicle inventory, but this should be mandated by departmental procedures. This was the decision reached in Colorado v. Bertine (479 U.S. 367 [1987]). That decision also helped the police insofar as the Court refused to alter the vehicle inventory exception to the Fourth Amendment when secure impound facilities are accessible. As the Court stated, “[T]he security of the storage facility does not completely eliminate the need for inventorying; the police may still wish to protect themselves or the owners of the lot against false claims of theft or dangerous instrumentalities” (p. 373).

In Bertine, the Court also rejected an argument that car owners should be able to make their own arrangements if their vehicles are impounded (e.g., have it towed by a private company, have a friend drive it home). The Court stated, “The reasonableness of any particular governmental activity does not necessarily or invariably turn on the existence of alternative ‘less intrusive’ means” (p. 374).

Reading Opperman and Bertine would suggest that inventories are relatively standard and intended mainly to take note of a car’s contents. However, in Michigan v. Thomas (458 U.S. 259 [1982]), the Supreme Court concluded that the police could go even further. In that case, officers found a loaded .38 revolver in one of the impounded vehicle’s air vents. The Court upheld the officers’ actions because marijuana had been found in the vehicle shortly before the gun was detected.

In conclusion, two important issues must be understood with regard to vehicle inventories. First, if during the course of a valid inventory, the police discover evidence that gives rise to probable cause to search, then a more extensive search is permissible. However, according to Carroll v. United States (267 U.S. 132 [1925]), discussed in Chapter 5, one of the requirements for such action to be constitutional is the impracticality of securing a warrant.

Second, despite the Supreme Court’s apparent willingness to give police wide latitude with vehicle inventories, what makes them constitutional is clear guidelines as to how the inventory should be conducted. In other words, the Court has authorized inventories without probable cause or a warrant only if, in addition to the other require- ments discussed earlier, it is conducted in accordance with clear departmental policies and procedures. Requiring the police to follow appropriate policies minimizes discretion and the concern that inventories may be used for criminal investigation purposes. The inventory search policy from the Pine Bluff, Arkansas, Police Department’s Policy and Procedure Manual is reprinted in Figure 7.1.

PERSON INVENTORIES The inventory exception to the Fourth Amendment’s warrant requirement applies in the case of a person inventory, as well. The action permitted is often called an arrest inventory. The general rule is that the police may search an arrestee and his or her personal items, including containers found in his or her possession, as part of a routine inventory incident to the booking and jailing procedure. As decided in Illinois v. Lafayette (462 U.S. 640 [1983]), neither a search warrant nor probable cause is required. According to the Court:

Consistent with the Fourth Amendment, it is reasonable for police to search the personal effects of a person under lawful arrest as part of the routine administrative procedure at a police station incident to booking and jailing the suspect. The justification for such searches does not rest on probable cause, and hence the absence of a warrant is immaterial to the reasonableness of the search. Here, every consideration of orderly police administration— protection of a suspect’s property, deterrence of false claims of theft against the police, security, and identification of the suspect—benefiting both the police and the public points toward the appropriateness of the examination of respondent’s shoulder bag. (pp. 643–648)


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216 Part 2 • Search and Seizure





Chief of Police John E. Howell


ISSUE DATE 02/19/2008



FIGURE 7.1 Vehicle Inventory Policy (Pine Bluff, AR, Police Department)



1. The Impoundment of motor vehicles shall be accomplished by the use of contract commercial towing services, towing vehicles, and impoundment lots as authorized by this law enforcement agency. All towing agencies must be a member of the Arkansas Towing and Recovery Board, certified for and display inspection documentation indicating they are authorized for non-consent towing.

2. Vehicles impounded by or otherwise taken into the custody by this agency shall be inventoried in a manner consistent with this agencies policy on motor vehicle inventories as stated in Section F of this policy. a. Inventories should be performed at the scene or at a safe place nearby whenever this can be done

safely and effectively. b. A Pine Bluff Police Department wrecker log will be completed on any impounded motor vehicles. c. Motor vehicles shall not be impounded for purposes other than those defined by statute or ordinance,

(e.g., not as a form of punishment, or as a means of conducting vehicle searches when probable cause does not exist or consent to search cannot be obtained).

3. When impoundments are necessary, the operator and any passengers should not be stranded. Officers shall take those measures necessary to ensure that the operator and any passengers of the vehicle are offered transportation. To include but not limited to: a. Call a taxi cab for them. b. Call a friend or relative to pick them up. c. With supervisor approval, transport them to the nearest reasonably safe location.

4. If the driver/owner or passenger(s) decline assistance with transportation and the vehicle is towed at the direction of an officer for any reason, the officer shall document their refusal on an original Information/Incident Report, as Supplemental to and existing Information/Incident Report, or on an Accident Report, whichever is appropriate to the circumstances.

5. Vehicle operators may be permitted to remove unsecured valuables of a non-evidentiary nature from the vehicle prior to its removal for impoundment. The nature of these valuables shall be noted on the appropriate reporting document.

6. Impounded vehicles shall be released to owners with proof of ownership and personal identification, and following proof of payment of any impoundment, storage, or related fees and taxes.

Source: Reprinted courtesy of Pine Bluff, AR, Police Department. IS B

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Criminal Procedure: From First Contact to Appeal, Fourth Edition, by John L. Worrall. Published by Pearson. Copyright © 2012 by Pearson Education, Inc.

Camara v. Municipal Court (387 U.S. 523 [1967])

Chapter 7 • Actions Based on Administrative Justification and Consent 217

It is important to understand that an inventory of person must follow a lawful arrest, so the probable cause to search requirement is essentially satisfied at the arrest stage.

The Supreme Court’s decision in Opperman, discussed in the vehicle inventory section, has essentially been extended to person inventories. That is, as part of invento- rying a person’s possessions pursuant to a valid arrest, the police may also examine containers. The Court felt that it would be unduly burdensome on the police to require them to distinguish between which containers may or may not contain evidence of criminal activity.


A variety of inspections is permissible without a warrant or probable cause. For all practical purposes, they are “searches.” Even so, the courts have continually stressed that the justification for such searches is the “invasion versus need” balancing act—that is, the benefits of some inspections outweigh the costs of inconveniencing certain segments of the population. Most of these exceptions to the warrant requirement are based on the Court’s decision in Camara v. Municipal Court (387 U.S. 523 [1967]), where it was concluded that “there can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails” (pp. 536–537).

HOME INSPECTIONS Two types of home inspection have been authorized by the Court. The first concerns health and safety inspections of residential buildings, such as public housing units. In Frank v. Maryland (359 U.S. 360 [1959]), for example, the Court upheld the constitutionality of a statute designed to punish property holders for failing to cooperate with warrantless health and safety inspections. The Court noted that such inspections “touch at most upon the periphery of the important interests safeguarded by the Fourteenth Amendment’s protection against official intrusion” (p. 367). In 1967, however, the Court overruled the Frank decision in Camara v. Municipal Court (387 U.S. 523 [1967]).

In Camara, the Court noted that nonconsensual administrative inspections of private residences amount to a significant intrusion upon the interests protected by the Fourth Amendment. Today, a warrant is required for authorities to engage in a home inspection. However, the meaning of probable cause in such a warrant differs from that discussed earlier. The Court has stated that if an area “as a whole” needs inspection, based on factors such as the time, age, and condition of the building, then the probable cause requirement will be satisfied. The key is that probable cause in the inspection context is not individualized as in the typical warrant. That is to say, inspections of this sort are geared toward buildings, not persons.

A second type of home inspection is a welfare inspection. In Wyman v. James (400 U.S. 309 [1971]), the Supreme Court upheld the constitutionality of a statute that allowed welfare caseworkers to make warrantless visits to the homes of welfar