Miller: Jenna, last New Year’s Eve police officers were stopping motorist on the highway in order to determine whether they’d been drinking and were sober enough to drive. That was a seizure under the 4th Amendment. Stopping was not an option for the motorist; however, the officers did not have reasonable suspicion to believe that the drivers had been drinking before they were stopped. In other words, the officers did not have any type of individualized suspicion that the motorist were, or had been committing a crime. Now I thought that Terry v. Ohio required some type of articulable basis of criminal activity before officers could seize someone.
Solari: Well that’s not always the case. The Supreme Court in Terry v. Ohio just reiterated the rule that all searches and seizures be reasonable. A Terry Stop is one type of reasonable seizure. A Terry type seizure, as we know, requires reasonable suspicion that the person stopped is committing, is about to commit, or has committed a crime.
The type of seizure you’re referring to is another reasonable seizure under the 4th Amendment. It’s called a sobriety check point. Now it’s true the officers stopped motorist at sobriety check points without any individualized suspicion; however, the seizure’s still reasonable. Here’s why. It’s because the primary purpose of this inspection-type seizure isn’t to stop the motorist and look for evidence of criminal wrong doing. What would you say is the primary purpose of a sobriety check-point, if you had to say?
Miller: I guess to determine whether the driver is too drunk to drive.
Solari: Exactly. Now the Supreme Court’s never approved suspicionless seizures even vehicle check points for the primary purpose of detecting evidence of ordinary criminal wrong doing, but the sobriety check point is a brief seizure. As you said, the primary purpose of this inspection is to promote roadway safety, which is a legitimate government function.
Drivers can also be stopped at driver’s license and registration check points. And again, those seizures are without any individualized suspicion that any of the motorists are doing anything wrong. The primary purpose of a driver’s license and registration check point is just to ensure that drivers are capable of driving and that their vehicles are road worthy.
Miller: What about border searches?
Solari: Border searches are also reasonable inspections. Travelers can be stopped at our nation’s borders and searched. What would you say is the primary purpose of a border inspection?
Miller: To ensure that the people coming across the border are entitled to enter our country.
Solari: Exactly. And don’t forget - custom officials can also inspect property coming across our borders to ensure it’s something we’ll allow in.
Miller: Now do these stop and inspect type inspections have any common type of characteristics?
Solari: They do, and we talked about one already. The primary purpose of a suspicionless “stop and inspect” type seizure is not to gather evidence of criminal activity. The inspection serves some other important government interest; like keeping our roads safe and making sure people and property coming across our borders is authorized to do that. Now another common characteristic of these inspections is a Standard Operating Procedure - an SOP. In order to show the government’s serving some substantial government interest, and not just searching for evidence, officers should have some type of SOP telling them exactly how to conduct this inspection. So for example, at the sobriety check point we talked about, the location of the check point itself is selected in advance. A predetermined number of vehicles are stopped at the check point and each stop is conducted in the same manner. Finally, the stop is brief. It’s just long enough for the officer to ask the drivers a few questions and determine whether the driver’s under the influence.
Miller: Now what happens if officers discover evidence of a crime during one of these inspections?
Solari: Good question. Although the primary purpose of the inspection isn’t to locate evidence of a crime, officers certainly aren’t required to ignore evidence they do see during a valid inspection. Remember the Plain View Doctrine. Evidence discovered during a valid inspection is admissible under the Plain View exception to the warrant requirement. So for example, when an officer stops a motorist at a sobriety check point he might smell the odor of alcohol on the driver’s breathe. Now the incriminating nature of that particular smell should be readily apparent, suggesting to the officer that the driver’s been drinking alcohol and might be impaired. The valid inspection put the officer in a place where he could not only see, but also access that evidence. The officer now has developed individualized suspicion that the driver’s committing a crime, DUI. Based on that evidence, the officer now has reasonable suspicion and can detain the driver further, past the time necessary for the sobriety check point. He’s just transitioned into a Terry Stop. Now the officer’s no longer conducting an inspection and if the officer of course can develop probable cause during that Terry Stop that the driver’s under the influence of alcohol, now he can go ahead and make an arrest.
That same Plain View analogy of course can be used to seize a bag of marijuana sitting on the front seat of the car. Of course, that’s assuming the contraband or the criminal nature of that substance in the bag is readily apparent to the officer when he or she sees it. The valid check point put the officer in a position where he or she can see the evidence. The officer can also access the evidence, without a warrant, because the officer has probable cause to believe that this is a mobile conveyance, that it’s in a public place, and that it contains evidence of crime.
Miller: What if an officer stops a motorist at a sobriety check point, but doesn’t follow the Standard Operating Procedure he’s given? For an example, suppose the officer opens the trunk of a car at a sobriety check point.
Solari: Well like a lawyer, I’ll answer your question with a question. Why did the officer pop the trunk? Did the officer do that for the primary purpose of the inspection? I doubt that an SOP, for a sobriety check point would authorize the officer to open the trunk of the car; but, popping the trunk might be necessary to conduct a thorough inspection at the border.
Let’s get back to your example with the sobriety check point. Once the officer starts to deviate from the SOP by going into the trunk, it doesn’t appear he’s inspecting for sobriety. That looks like a search for evidence. Once the officer starts to search for evidence, of course, he has to come up with another basis, a legal basis, for opening the trunk. So perhaps the officer can get the driver’s consent to pop the trunk.
In your previous example, you described a situation where the officer saw a bag he reasonably believed to be marijuana sitting on the front seat of the car. With that evidence, the driver has PC that the vehicle contains marijuana. Now he can search the car’s trunk without a warrant under that Mobile Conveyance exception to the warrant requirement. With that exception the officer can search the car any place where the evidence might reasonable be found. If we’re talking about marijuana that certainly includes the trunk.
Miller: Now we were both on active duty in the military. After a young enlisted person finishes his boot camp, he or she’s going to move into a barracks room. I know from experience that service person’s may have an expectation of privacy in their barracks room. These rooms that I’m talking about, they look like hotel rooms, two service persons are typically assigned to a room. Each roommate has a key. The roommates are told to keep their doors locked and other people do not enter the room without consent. Our military courts have even found a reasonable expectation of privacy in a barracks room under those conditions. Nonetheless, I also know that when ordered, senior sergeants or petty officers inspect barracks rooms. The inspectors enter those barracks rooms, without any probable cause that the rooms contained evidence of crime. How can these government agents intrude into a barracks room without probable cause supporting a warrant?
Solari: Well they’re conducting military inspections. A valid military inspection is another reasonable exception to the probable cause and warrant requirement of the 4th Amendment.
Miller: You said valid inspection a few times. Now that leads me to believe that there might be invalid inspections.
Solari: Right. The inspection can’t just be an excuse or a ruse to perform a search for evidence of crime. A valid inspection has to be one that serves a substantial government interest other than general crime control. If the court finds the primary purpose of the inspection is simply to look for criminal evidence, the court’s going to suppress that evidence unless the government obtained a warrant or can show some other reasonable basis for that intrusion. I mean think about it, if you had to say, what would you say’s the primary purpose of a health and comfort inspection in the military barracks?
Miller: To determine the health, the comfort, and the military fitness of the command.
Solari: Sure. During a valid military inspection, the inspector’s are walking through barracks rooms not to search for evidence of a crime to prosecute someone, but to determine whether the troops are fit for duty.
Now to transition a little bit, certain civilian businesses are considered closely regulated businesses and are also subject to warrantless inspections. Let’s talk about some of those. Some closely regulated businesses are sporting good stores that sell fire arms, coal mining companies, trucking companies. The government has an interest insuring that coal mines are safe, that trucks are highway worthy, and that firearms are only being sold to people who are authorized to buy them.
Miller: Are there any government restrictions on inspections of that type?
Solari: Yes, there are. Warrantless inspections of those closely regulated businesses still have to be reasonable. To be reasonable, there has to be a regulatory scheme in place. That scheme should satisfy a substantial government interest and a warrantless inspection must be necessary to satisfy the regulatory scheme. For example, unannounced inspections might be necessary to make sure that regulations are being strictly followed. Finally, the regulatory scheme, which is established by statute, actually serves as a substitute for the warrant. It advises the owner that his business is subject to inspection by law. It defines the scope of that inspection and in doing, it limits the discretion of that inspector.
Miller: You said that closely regulatory businesses may be subject to warrantless inspections. Does that mean that other businesses may not be so closely regulated and perhaps require a warrant?
Solari: Yes, warrants may be required even for inspections. If the regulatory scheme does not authorize warrantless searches, the inspection may require an administrative search warrant. The administrative search warrant doesn’t require probable cause in the traditional criminal law sense, meaning PC to believe that evidence of crime will be located in that place to be searched. It requires reason to believe that the inspector has a valid public interest other than general crime control to authorize the entry. For example the probable cause may be to enter a business to check compliance with building codes. The magistrate would issue a warrant for the inspection based on a showing of that authority and necessity.
Miller: Jenna let’s take a break. When we come back we’ll talk about inventories.
Solari: Alright that sounds great. Before we go though, if any of you out there want to listen to some more of our Podcasts you can find them at www.fletc.gov/training/programs/legal-division/podcasts