Is the Fourth Amendment Only about Reasonableness? Potential Implications of Samson v. California

by Jack E. Call
Professor of Criminal Justice
Radford University

            Even a cursory reading of the Fourth Amendment reveals that it has two distinct parts.  The first part (which could be called the Reasonableness Clause) prohibits the government from engaging in unreasonable searches and seizures.  The second part (which could be called the Warrant Requirements Clause) requires that the issuance of warrants be based upon probable cause and be specific as to the object and place of the search.

            Unfortunately, the Fourth Amendment is unclear about the connection between the Reasonableness Clause and the Warrant Requirements Clause.  Many (if not most) Supreme Court Justices have adhered historically to the view that, although the Fourth Amendment does not articulate it explicitly, it contains a warrant requirement or presumption.  Under this view, the Reasonableness Clause is influenced and informed by the Warrant Requirements Clause.  This view is also supported by the notion that warrants are preferred because they involve a probable cause determination by a neutral and detached judicial officer who does not have the personal stake in the outcome of a criminal investigation that police officers often acquire (understandably) during their investigations.

Under this view of the Fourth Amendment, searches must be conducted with a warrant unless they fall within a recognized exception to the warrant requirement.  For example, in Mincey v. Arizona,1 the Court indicates that “[t]he Fourth Amendment proscribes all unreasonable searches and seizures, and it is a cardinal principle that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment - subject only to a few specifically established and well-delineated exceptions.’" (Quoting from Katz. v. U.S.2).  Most textbooks dealing with Fourth Amendment law are organized around chapters dealing with the various so-called exceptions to the warrant requirement.

            However, there is an opposing view of the Amendment that holds that the Fourth Amendment requires only what it actually says it requires – that all searches be reasonable.  Under this view, the Reasonableness Clause and the Warrant Requirements Clause are unconnected, and neither influences the other.  Under this approach, the use of a warrant would (presumably) only be a factor to be considered in making the reasonableness determination.  During its last term, the Court decided a case, Samson v. California,3 that suggests the Court might be heading toward adoption of this reasonableness approach.

            In Samson, a police officer searched Samson without a warrant and without any suspicion that he was armed or possessed contraband or evidence of a crime.  His authority to conduct the search was grounded on a California statute that permits law enforcement officers to conduct warrantless, suspicionless searches of parolees.

            Justice Thomas wrote the opinion for the Court, upholding the search by a 6-3 vote.  The opinion traces the evolution of the case law in this area.  In Griffin v. Wisconsin,4 the Court upheld a warrantless search of a probationer by a probation officer based on at least some reason to think the probationer was in possession of a weapon in violation of his probation conditions.  This decision seemed to be based on “special [government] needs, beyond the normal need for law enforcement.”5  In U.S. v. Knights,6 the Court upheld another search of a probationer, again with some level of suspicion (reasonable suspicion) of wrongdoing, but this time the search was conducted by a law enforcement officer.  The search in Samson was not a search by a parole officer to insure that Samson was complying with the terms of his parole (which might have qualified it as a special needs search).  It was a search by a police officer hoping to find evidence of criminal activity, with no reason to think the parolee had contraband or evidence on his person.  Indeed, Justice Stevens indicates in his dissenting opinion (joined by Justices Breyer and Souter) that the Court’s ruling in Samson is the first time the Court has ever found that “a search supported by neither individualized suspicion nor ‘special needs’ is nonetheless ‘reasonable.’”

            The Court concluded in Samson that it should determine whether the search in that case was constitutional by applying the same balancing approach it had used in Knights.  Under that approach, the Court balanced “on the one hand, the degree to which [the search] intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.”7

            Applying that approach in Samson, the Court examined the privacy interest retained by Samson as a parolee.  The Court observed that parolees have lower expectations of privacy than probationers because they are closer to imprisonment.  It also noted that parolees, as a condition of their parole, agree to numerous restrictions, such as mandatory drug tests, frequent meetings with parole officers, and limitations to the persons with whom they may associate.  In addition, the California statute making parolees subject to warrantless, suspicionless searches was clearly expressed to Samson.  Given all these circumstances, the Court concluded that Samson “did not have an expectation of privacy that society would recognize as legitimate.”

            It is curious that the Court even continued with its analysis of the case after making this statement.  In the latter years of the Warren Court, the Court defined a search as an action of the government that intrudes upon a reasonable expectation of privacy.[8]  Given the Court’s conclusion that Samson had no legitimate expectation of privacy at all, the Court could simply have concluded that the officer’s perusal of Samson’s person for contraband or evidence of a crime was not a search as that term is used in the Fourth Amendment.

            Nevertheless, the Court continued with its balancing analysis.  The Court noted the large number of parolees in California, the high recidivism rate of parolees, and the “overwhelming interest” of the state in combating this recidivism.  The Court viewed the ability of the state to search parolees without a warrant or suspicion that they are concealing evidence of criminal activity as a sensible way of insuring that the state could effectively supervise its parolees.  Since Samson had no reasonable expectation of privacy at all as a parolee, this substantial government interest clearly outweighed his privacy interest.  Thus, the search was constitutional.

            Of course, the Court’s holding that police officers may search parolees without a warrant and without any reason to think they will find contraband or evidence of a crime is significant.  However, the remainder of this article will focus (briefly) on the significance of the Court’s application of a balancing approach in a case where, as Justice Stevens put it, there were neither special needs beyond the normal need for law enforcement nor individualized suspicion of wrongdoing.

            While the treatment of the Fourth Amendment in most contemporary criminal procedure textbooks is organized around discussion of exceptions to the warrant requirement and is based on the observation that the Supreme Court has traditionally adhered to a warrant requirement, nevertheless, many Supreme Court opinions make reference to reasonableness as the basic requirement of the Amendment.9  It can be argued that the warrant requirement (being more rule-oriented) provides greater protection to criminal defendants than does a reasonableness approach.  Nevertheless, even the Warren Court – not usually viewed as a friend of the police – sometimes took a reasonableness approach.  In Camara v. Municipal Court,10 for example, the Court used a balancing approach in holding that while housing inspectors need a warrant to conduct inspections of personal residences, the government’s great interest in insuring the safety of housing conditions justifies dispensing with a requirement that the government have probable cause to think that each  residence inspected is in violation of safety standards.

            In another very important case, familiar to lawyers and law enforcement officers alike, the Warren Court used a balancing approach to extend the authority of the police to detain suspicious persons temporarily.  In Terry v. Ohio,11 an officer had frisked three men he had observed engaging in a suspicious course of behavior that suggested they might be planning the robbery of a jewelry store.  The government conceded that the officer lacked probable cause to arrest or search the men.  Nevertheless, the Court held that, based on reasonable suspicion to think that “criminal activity was afoot,” the police could briefly detain a person thought to be involved in the potential criminal activity and frisk that person if there was also reasonable suspicion to think the person was armed.  In deciding to permit this seizure of a person lying somewhere between an arrest and a consensual encounter, the Court balanced “the need to search [or seize] against the invasion which the search [or seizure] entails" (quoting from Camara).  It concluded that the frisk of Terry on less than probable cause was justified because there “must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.”

            It is tempting to conclude that Terry represented a shift by the Court from a warrant requirement to a reasonableness approach.  However, in Terry itself, the Court was careful to point out that “[w]e do not retreat from our holdings that the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure …. or that in most instances failure to comply with the warrant requirement can only be excused by exigent circumstances.”  What’s more, there have been frequent references to the warrant requirement in many cases since Terry (although there have been frequent references to the reasonableness requirement as well).

            It is this vacillation between approaches that arguably makes the approach taken by the majority in Samson significant.  The Court stressed its use of the reasonable approach.  (“’Under our general Fourth Amendment approach’ we ‘examin[e] the totality of the circumstances’ to determine whether a search is reasonable within the meaning of the Fourth Amendment”).  Of equal importance, it did so in the face of the explicit challenge from Justice Stevens mentioned earlier, that this was the first case in which the Court has permitted a warrantless search in the absence of individualized suspicion, without invoking the special needs doctrine.12

            What difference, if any, will it make if the Court uses the opportunity provided by Samson to shift explicitly away from a warrant requirement in favor of a reasonableness approach?  Again, Samson is instructive.  In assessing the degree of intrusion caused by the search in this case, the Court examined a number of factors relating to the degree of privacy retained by a parolee – the view of parole as more like imprisonment than freedom, the presence of a statute giving police officers authority to search parolees without a warrant or suspicion of wrongdoing, the range of conditions to which parolees are subject, Samson’s “acceptance” of these conditions.  Similarly, while the Court quickly articulated the need to prevent recidivism by parolees as the government interest that is served by searches of parolees, it examined several factors in assessing the significance of that interest – the number of parolees in California, their recidivism rate, the types and seriousness of recidivism offenses, the incentive of parolees to conceal their wrongdoing, the ineffectiveness of planned random searches of parolees.

            This balancing approach would establish yet another “totality of circumstances” approach to restrictions on police actions (a favorite approach of the post-Warren Court).  The problems with this approach are two-fold.  First, it provides the police little guidance as to what behavior is permissible under the Fourth Amendment.  The Fourth Amendment law that currently exists under the warrant requirement is certainly not a model of either clarity or consistency, but it is certainly more rule-oriented (and thus comparatively clearer) than the reasonableness approach.  Totality of circumstances approaches result in cases that provide little guidance in future cases.  These cases are what lawyers call “fact-bound.”  They turn so much upon the specific facts of a given case that is very difficult to determine which of the facts are most important.  As one commentator once put it, everything is relevant, but nothing is dispositive.

            Second, a reasonableness, totality of circumstances approach gives trial judges great discretion.  Because the cases are so fact-bound and it is so difficult to determine which facts are most important, it is also more difficult for appellate courts to overturn the decisions of lower court judges.  Appellate courts like to be able to explain clearly the reasons for their decisions.  What’s more, they prefer that these reasons be easily understood by legal and lay readers alike.  (Admittedly, this is not always apparent.  Sometimes one reads an appellate opinion that leaves the reader feeling that it is an opinion only a lawyer could love).  Sometimes it is difficult for an appellate court to explain why a trial judge’s decision under a totality of circumstances test is being overturned without sounding as though it is simply because the appellate judges feel like substituting their judgment for that of the trial judge.

            Certainly, there are many uncertainties at this point in time.  Perhaps Samson does not portend a shift from the warrant requirement to a reasonableness approach.  Even if it does, perhaps the Court will incorporate much of existing law into its reasonableness calculations, thus leaving the present law largely unchanged.  Nevertheless, the language of Samson suggests that the potential for great change is there.  In addition, the Court has two new members – Chief Justice John Roberts and Associate Justice Samuel Alito.  Roberts replaced a very conservative predecessor (Chief Justice Rehnquist), and Alito replaced a relatively moderate Justice on Fourth Amendment matters (Justice O’Connor).  Thus, at first glance, it might appear that there is not much potential for significant change.  However, if they want to make a quick impact on Fourth Amendment law, the reasonableness approach could just prove to be the vehicle for accomplishing it.  It certainly bears watching.

[1] 437 U.S. 385 (1978).

[2] 389 U.S. 347 (1967).

[3] __ U.S. __, 126 S.Ct. 2193 (2006).

[4] 483 U.S. 868 (1987).

[5] This phrase comes from a growing number of so-called regulatory search cases in which the Supreme Court has dispensed with the warrant and/or individualized suspicion requirements because the objective of the search is something other than normal law enforcement.  In many (if not most) of these cases, the government official conducting the search was not a law enforcement officer.  For example, the Court dispensed with a warrant requirement when a public school principal searched a student (New Jersey v. T.L.O., 469 U.S. 325 (1985))  and when a public employer searched an employee’s work area (O’Connor v.Ortega, 107 S.Ct. 1492 (1987)).  However, in some of these cases, the searching official is a law enforcement officer (see, for example, Michigan v. Sitz, 496 U.S. 444 (1990)).

[6] 534 U.S. 112 (2001).

[7] Knights, pp. 118-19.

[8] Katz v. U.S., 389 U.S. 347 (1967).

[9] See, for example, California v. Acevedo, 500 U.S. 565 (1991)(J. Scalia, concurring).

[10] 387 U.S. 523 (1967).

[11] 392 U.S. 1 (1968).

[12] The special needs language was first used by the Court in New Jersey v. T.L.O,, 468 U.S. 1214 (1984).  There are clearly cases prior to 1984 in which warrantless, suspicionless searches were permitted without reference to “special needs,” but it can be argued that these cases fit within the special needs doctrine, even though the doctrine had not been developed as well as it has been since 1984.  This is not to imply that the special needs doctrine itself is fully and clearly articulated; only that it represents more of an effort to find common ground among a large variety of so-called regulatory search cases than existed previously.

Disclaimer:  The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.