New Jersey v. T.L.O. (1985)

469 U.S. 325 (1985)

Vote: 6-3
Decision: Reversed
Majority: White, joined by Burger, Powell, Rehnquist, and O’Connor
Concurrence: Powell, joined by O’Connor
Concurrence: Blackmun
Concur/dissent: Brennan, joined by Marshall
Concur/dissent: Stevens, joined by Marshall and Brennan (Part I)

Justice WHITE delivered the opinion of the Court.

We granted certiorari in this case to examine the appropriateness of the exclusionary rule as a remedy for searches carried out in violation of the Fourth Amendment by public school authorities. Our consideration of the proper application of the Fourth Amendment to the public schools, however, has led us to conclude that the search that gave rise to the case now before us did not violate the Fourth Amendment. Accordingly, we here address only the questions of the proper standard for assessing the legality of searches conducted by public school officials and the application of that standard to the facts of this case.

On March 7, 1980, a teacher … in … N.J., discovered two girls smoking in a lavatory. One of the two girls was the respondent T.L.O., who at that time was a 14-year-old high school freshman. Because smoking in the lavatory was a violation of a school rule, the teacher took the two girls to the Principal’s office, where they met with Assistant Vice Principal Theodore Choplick. In response to questioning by Mr. Choplick, T.L.O. ‘s companion admitted that she had violated the rule. T.L.O., however, denied that she had been smoking in the lavatory and claimed that she did not smoke at all.

Mr. Choplick asked T.L.O. to come into his private office and demanded to see her purse. Opening the purse, he found a pack of cigarettes, which he removed from the purse and held before T.L.O. as he accused her of having lied to him. As he reached into the purse for the cigarettes, Mr. Choplick also noticed a package of cigarette rolling papers. In his experience, possession of rolling papers by high school students was closely associated with the use of marihuana. Suspecting that a closer examination of the purse might yield further evidence of drug use, Mr. Choplick proceeded to search the purse thoroughly. The search revealed a small amount of marihuana, a pipe, a number of empty plastic bags, a substantial quantity of money in one-dollar bills, an index card that appeared to be a list of students who owed T.L.O. money, and two letters that implicated T.L.O. in marihuana dealing.

Mr. Choplick notified T.L.O. ‘s mother and the police, and turned the evidence of drug dealing over to the police. At the request of the police, T.L.O.’s mother took her daughter to police headquarters, where T.L.O. confessed that she had been selling marihuana at the high school. On the basis of the confession and the evidence seized by Mr. Choplick, the State brought delinquency charges against T.L.O. … . Contending that Mr. Choplick’s search of her purse violated the Fourth Amendment, T.L.O. moved to suppress the evidence found in her purse as well as her confession, which, she argued, was tainted by the allegedly unlawful search. The Juvenile Court denied the motion to suppress.

… [T]he court concluded that the search conducted by Mr. Choplick was a reasonable one. The initial decision to open the purse was justified by Mr. Choplick’s well-founded suspicion that T.L.O. had violated the rule forbidding smoking in the lavatory. Once the purse was open, evidence of marihuana violations was in plain view, and Mr. Choplick was entitled to conduct a thorough search to determine the nature and extent of T.L.O.’s drug-related activities. Having denied the motion to suppress, the court on March 23, 1981, found T.L.O. to be a delinquent and on January 8th, 1982, sentenced her to a year’s probation.

On appeal from the final judgment of the Juvenile Court, a divided Appellate Division affirmed the trial court’s finding that there had been no Fourth Amendment violation … T.L.O. appealed the Fourth Amendment ruling, and the Supreme Court of New Jersey reversed the judgment of the Appellate Division and ordered the suppression of the evidence found in T.L.O.’s purse.

The New Jersey Supreme Court agreed with the lower courts that the Fourth Amendment applies to searches conducted by school officials. The court also rejected the State of New Jersey’s argument that the exclusionary rule should not be employed to prevent the use in juvenile proceedings of evidence unlawfully seized by school officials. Declining to consider whether applying the rule to the fruits of searches by school officials would have any deterrent value, the court held simply that the precedents of this Court establish that “if an official search violates constitutional rights, the evidence is not admissible in criminal proceedings.”

With respect to the question of the legality of the search before it, the court agreed with the Juvenile Court that a warrantless search by a school official does not violate the Fourth Amendment so long as the official “has reasonable grounds to believe that a student possesses evidence of illegal activity or activity that would interfere with school discipline and order.” However, the court, with two justices dissenting, sharply disagreed with the Juvenile Court’s conclusion that the search of the purse was reasonable. …

. …

We granted the State of New Jersey’s petition for certiorari. Although the State had argued in the Supreme Court of New Jersey that the search of T.L.O.’s purse did not violate the Fourth Amendment, the petition for certiorari raised only the question whether the exclusionary rule should operate to bar consideration in juvenile delinquency proceedings of evidence unlawfully seized by a school official without the involvement of law enforcement officers. When this case was first argued last Term, the State conceded for the purpose of argument that the standard devised by the New Jersey Supreme Court for determining the legality of school searches was appropriate and that the court had correctly applied that standard; the State contended only that the remedial purposes of the exclusionary rule were not well served by applying it to searches conducted by public authorities not primarily engaged in law enforcement.

Although we originally granted certiorari to decide the issue of the appropriate remedy in juvenile court proceedings for unlawful school searches, our doubts regarding the wisdom of deciding that question in isolation from the broader question of what limits, if any, the Fourth Amendment places on the activities of school authorities prompted us to order reargument on that question. Having heard argument on the legality of the search of T.L.O.’s purse, we are satisfied that the search did not violate the Fourth Amendment.

In determining whether the search at issue in this case violated the Fourth Amendment, we are faced initially with the question whether that Amendment’s prohibition on unreasonable searches and seizures applies to searches conducted by public school officials. We hold that it does.

It is now beyond dispute that “the Federal Constitution, by virtue of the Fourteenth Amendment, prohibits unreasonable searches and seizures by state officers.” Elkins v. United States (1960). …

. …

Equally indisputable is the proposition that the Fourteenth Amendment protects the rights of students against encroachment by public school officials. …

These two propositions—that the Fourth Amendment applies to the States through the Fourteenth Amendment, and that the actions of public school officials are subject to the limits placed on state action by the Fourteenth Amendment—might appear sufficient to answer the suggestion that the Fourth Amendment does not proscribe unreasonable searches by school officials. On reargument, however, the State of New Jersey has argued that the history of the Fourth Amendment indicates that the Amendment was intended to regulate only searches and seizures carried out by law enforcement officers; accordingly, although public school officials are concededly state agents for purposes of the Fourteenth Amendment, the Fourth Amendment creates no rights enforceable against them.

. …

… [T]his Court has never limited the Amendment’s prohibition on unreasonable searches and seizures to operations conducted by the police. Rather, the Court has long spoken of the Fourth Amendment’s strictures as restraints imposed upon “governmental action”—that is, “upon the activities of sovereign authority.” Burdeau v. McDowell (1921). Accordingly, we have held the Fourth Amendment applicable to the activities of civil as well as criminal authorities: building inspectors, see Camara v. Municipal Court (1967), Occupational Safety and Health Act inspectors, see Marshall v. Barlow’s Inc., (1978), and even firemen entering privately owned premises to battle a fire, see Michigan v. Tyler (1978), are all subject to the restraints imposed by the Fourth Amendment. As we observed in Camara v. Municipal Court, supra, “[t]he basic purpose of this Amendment, as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” Because the individual’s interest in privacy and personal security “suffers whether the government’s motivation is to investigate violations of criminal laws or breaches of other statutory or regulatory standards,” Marshall v. Barlow’s (1978), it would be “anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.” Camara v. Municipal Court. …

Notwithstanding the general applicability of the Fourth Amendment to the activities of civil authorities, a few courts have concluded that school officials are exempt from the dictates of the Fourth Amendment by virtue of the special nature of their authority over schoolchildren. Teachers and school administrators, it is said, act in loco parentis in their dealings with students: their authority is that of the parent, not the State, and is therefore not subject to the limits of the Fourth Amendment.

If school authorities are state actors for purposes of the constitutional guarantees of freedom of expression and due process, it is difficult to understand why they should be deemed to be exercising parental rather than public authority when conducting searches of their students. … Today’s public school officials do not merely exercise authority voluntarily conferred on them by individual parents; rather, they act in furtherance of publicly mandated educational and disciplinary policies. … In carrying out searches and other disciplinary functions pursuant to such policies, school officials act as representatives of the State, not merely as surrogates for the parents, and they cannot claim the parents’ immunity from the strictures of the Fourth Amendment.

. …

Although this Court may take notice of the difficulty of maintaining discipline in the public schools today, the situation is not so dire that students in the schools may claim no legitimate expectations of privacy. We have recently recognized that the need to maintain order in a prison is such that prisoners retain no legitimate expectations of privacy in their cells, but it goes almost without saying that “[t]he prisoner and the schoolchild stand in wholly different circumstances, separated by the harsh facts of criminal conviction and incarceration.” Ingraham v. Wright (1977).  We are not yet ready to hold that the schools and the prisons need be equated for purposes of the Fourth Amendment.

. …

How, then, should we strike the balance between the schoolchild’s legitimate expectations of privacy and the school’s equally legitimate need to maintain an environment in which learning can take place? It is evident that the school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject. The warrant requirement, in particular, is unsuited to the school environment: requiring a teacher to obtain a warrant before searching a child suspected of an infraction of school rules (or of the criminal law) would unduly interfere with the maintenance of the swift and informal disciplinary procedures needed in the schools. Just as we have in other cases dispensed with the warrant requirement when “the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search,” Camara v. Municipal Court, we hold today that school officials need not obtain a warrant before searching a student who is under their authority.

. …

We join the majority of courts that have examined this issue in concluding that the accommodation of the privacy interests of schoolchildren with the substantial need of teachers and administrators for freedom to maintain order in the schools does not require strict adherence to the requirement that searches be based on probable cause to believe that the subject of the search has violated or is violating the law. Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. Determining the reasonableness of any search involves a twofold inquiry: first, one must consider “whether the … action was justified at its inception,” Terry v. Ohio (1968); second, one must determine whether the search as actually conducted “was reasonably related in scope to the circumstances which justified the interference in the first place,”. Under ordinary circumstances, a search of a student by a teacher or other school official will be “justified at its inception” when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.

This standard will, we trust, neither unduly burden the efforts of school authorities to maintain order in their schools nor authorize unrestrained intrusions upon the privacy of schoolchildren. By focusing attention on the question of reasonableness, the standard will spare teachers and school administrators the necessity of schooling themselves in the niceties of probable cause and permit them to regulate their conduct according to the dictates of reason and common sense. At the same time, the reasonableness standard should ensure that the interests of students will be invaded no more than is necessary to achieve the legitimate end of preserving order in the schools.

There remains the question of the legality of the search in this case. We recognize that the “reasonable grounds” standard applied by the New Jersey Supreme Court in its consideration of this question is not substantially different from the standard that we have adopted today. Nonetheless, we believe that the New Jersey court’s application of that standard to strike down the search of T.L.O.’s purse reflects a somewhat crabbed notion of reasonableness. Our review of the facts surrounding the search leads us to conclude that the search was in no sense unreasonable for Fourth Amendment purposes.

. …

The New Jersey Supreme Court pointed to two grounds for its holding that the search for cigarettes was unreasonable. First, the court observed that possession of cigarettes was not in itself illegal or a violation of school rules. Because the contents of T.L.O.’s purse would therefore have “no direct bearing on the infraction” of which she was accused (smoking in a lavatory where smoking was prohibited), there was no reason to search her purse. Second, even assuming that a search of T.L.O.’s purse might under some circumstances be reasonable in light of the accusation made against T.L.O., the New Jersey court concluded that Mr. Choplick in this particular case had no reasonable grounds to suspect that T.L.O. had cigarettes in her purse. At best, according to the court, Mr. Choplick had “a good hunch.”

Of course, the New Jersey Supreme Court also held that Mr. Choplick had no reasonable suspicion that the purse would contain cigarettes. This conclusion is puzzling. A teacher had reported that T.L.O. was smoking in the lavatory. Certainly this report gave Mr. Choplick reason to suspect that T.L.O. was carrying cigarettes with her; and if she did have cigarettes, her purse was the obvious place in which to find them. Mr. Choplick’s suspicion that there were cigarettes in the purse was not an “inchoate and unparticularized suspicion or ‘hunch,’ ” Terry v. Ohio (1968); rather, it was the sort of “common-sense conclusio[n] about human behavior” upon which “practical people”—including government officials—are entitled to rely. United States v. Cortez, (1981). …

. …

Because the hypothesis that T.L.O. was carrying cigarettes in her purse was itself not unreasonable, it is irrelevant that other hypotheses were also consistent with the teacher’s accusation. Accordingly, it cannot be said that Mr. Choplick acted unreasonably when he examined T.L.O.’s purse to see if it contained cigarettes.

. …

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. Accordingly, the judgment of the Supreme Court of New Jersey is

Reversed.

Justice BRENNAN, with whom Justice MARSHALL joins, concurring in part and dissenting in part.

I fully agree with Part II of the Court’s opinion. Teachers, like all other government officials, must conform their conduct to the Fourth Amendment’s protections of personal privacy and personal security.

. …

I do not, however, otherwise join the Court’s opinion. Today’s decision sanctions school officials to conduct full-scale searches on a “reasonableness” standard whose only definite content is that it is not the same test as the “probable cause” standard found in the text of the Fourth Amendment. In adopting this unclear, unprecedented, and unnecessary departure from generally applicable Fourth Amendment standards, the Court carves out a broad exception to standards that this Court has developed over years of considering Fourth Amendment problems. Its decision is supported neither by precedent nor even by a fair application of the “balancing test” it proclaims in this very opinion.

Assistant Vice Principal Choplick’s thorough excavation of T.L.O. ‘s purse was undoubtedly a serious intrusion on her privacy. Unlike the searches in Terry v. Ohio (1972), the search at issue here encompassed a detailed and minute examination of respondent’s pocketbook, in which the contents of private papers and letters were thoroughly scrutinized. Wisely, neither petitioner nor the Court today attempts to justify the search of T.L.O.’s pocketbook as a minimally intrusive search in the Terry line. To be faithful to the Court’s settled doctrine, the inquiry therefore must focus on the warrant and probable-cause requirements

I agree that school teachers or principals, when not acting as agents of law enforcement authorities, generally may conduct a search of their students’ belongings without first obtaining a warrant. To agree with the Court on this point is to say that school searches may justifiably be held to that extent to constitute an exception to the Fourth Amendment’s warrant requirement. Such an exception, however, is not to be justified, as the Court apparently holds, by assessing net social value through application of an unguided “balancing test” in which “the individual’s legitimate expectations of privacy and personal security” are weighed against “the government’s need for effective methods to deal with breaches of public order.” The Warrant Clause is something more than an exhortation to this Court to maximize social welfare as we see fit. It requires that the authorities must obtain a warrant before conducting a full-scale search. The undifferentiated governmental interest in law enforcement is insufficient to justify an exception to the warrant requirement. Rather, some special governmental interest beyond the need merely to apprehend lawbreakers is necessary to justify a categorical exception to the warrant requirement. For the most part, special governmental needs sufficient to override the warrant requirement flow from “exigency”—that is, from the press of time that makes obtaining a warrant either impossible or hopelessly infeasible. …

To require a showing of some extraordinary governmental interest before dispensing with the warrant requirement is not to undervalue society’s need to apprehend violators of the criminal law. To be sure, forcing law enforcement personnel to obtain a warrant before engaging in a search will predictably deter the police from conducting some searches that they would otherwise like to conduct. But this is not an unintended result of the Fourth Amendment’s protection of privacy; rather, it is the very purpose for which the Amendment was thought necessary. Only where the governmental interests at stake exceed those implicated in any ordinary law enforcement context—that is, only where there is some extraordinary governmental interest involved—is it legitimate to engage in a balancing test to determine whether a warrant is indeed necessary.

. …

I emphatically disagree with the Court’s decision to cast aside the constitutional probable-cause standard when assessing the constitutional validity of a schoolhouse search. The Court’s decision jettisons the probable-cause standard—the only standard that finds support in the text of the Fourth Amendment—on the basis of its Rorschach-like “balancing test.” Use of such a “balancing test” to determine the standard for evaluating the validity of a full-scale search represents a sizable innovation in Fourth Amendment analysis. This innovation finds support neither in precedent nor policy and portends a dangerous weakening of the purpose of the Fourth Amendment to protect the privacy and security of our citizens. Moreover, even if this Court’s historic understanding of the Fourth Amendment were mistaken and a balancing test of some kind were appropriate, any such test that gave adequate weight to the privacy and security interests protected by the Fourth Amendment would not reach the preordained result the Court’s conclusory analysis reaches today. Therefore, because I believe that the balancing test used by the Court today is flawed both in its inception and in its execution,

I respectfully dissent.

JUSTICE STEVENS, with whom JUSTICE MARSHALL joins, and with whom JUSTICE BRENNAN joins as to Part I, concurring in part and dissenting in part.

Assistant Vice Principal Choplick searched T.L.O.’s purse for evidence that she was smoking in the girls’ restroom. Because T.L.O.’s suspected misconduct was not illegal and did not pose a serious threat to school discipline, the New Jersey Supreme Court held that Choplick’s search of her purse was an unreasonable invasion of her privacy and that the evidence which he seized could not be used against her in criminal proceedings. The New Jersey court’s holding was a careful response to the case it was required to decide.

. …

The New Jersey Supreme Court’s holding on this question is plainly correct. … [T]his case does not involve the use of evidence in a school disciplinary proceeding; the juvenile proceedings brought against T.L.O. involved a charge that would have been a criminal offense if committed by an adult. Accordingly, the exclusionary rule issue decided by that court and later presented to this Court concerned only the use in a criminal proceeding of evidence obtained in a search conducted by a public school administrator.

Having confined the issue to the law enforcement context, the New Jersey court then reasoned that this Court’s cases have made it quite clear that the exclusionary rule is equally applicable

“whether the public official who illegally obtained the evidence was a municipal inspector, See Camara [v. Municipal Court,] [1967]; a firefighter, Michigan v. Tyler, [1978]; or a school administrator or law enforcement official.”

It correctly concluded “that, if an official search violates constitutional rights, the evidence is not admissible in criminal proceedings.”

. …

The practical basis for this principle is, in part, its deterrent effect, and as a general matter it is tolerably clear to me, as it has been to the Court, that the existence of an exclusionary remedy does deter the authorities from violating the Fourth Amendment by sharply reducing their incentive to do so. …

Justice Brandeis was both a great student and a great teacher. It was he who wrote:

“Our Government is the potent, the onmipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”

Olmstead v. United States, (1928) (dissenting opinion). Those of us who revere the flag and the ideals for which it stands believe in the power of symbols. We cannot ignore that rules of law also have a symbolic power that may vastly exceed their utility.

Schools are places where we inculcate the values essential to the meaningful exercise of rights and responsibilities by a self-governing citizenry. If the Nation’s students can be convicted through the use of arbitrary methods destructive of personal liberty, they cannot help but feel that they have been dealt with unfairly. The application of the exclusionary rule in criminal proceedings arising from illegal school searches makes an important statement to young people that “our society attaches serious consequences to a violation of constitutional rights,” and that this is a principle of “liberty and justice for all.”

Thus, the simple and correct answer to the question presented by the State’s petition for certiorari would have required affirmance of a state court’s judgment suppressing evidence. … In characteristic disregard of the doctrine of judicial restraint, the Court avoided that result in this case by ordering reargument and directing the parties to address a constitutional question that the parties, with good reason, had not asked the Court to decide. Because judicial activism undermines the Court’s power to perform its central mission in a legitimate way, I dissented from the reargument order. …

. …

The Court embraces the standard applied by the New Jersey Supreme Court as equivalent to its own, and then deprecates the state court’s application of the standard as reflecting “a somewhat crabbed notion of reasonableness.” There is no mystery, however, in the state court’s finding that the search in this case was unconstitutional; the decision below was not based on a manipulation of reasonable suspicion, but on the trivial character of the activity that promoted the official search. …

In the view of the state court, there is a quite obvious and material difference between a search for evidence relating to violent or disruptive activity, and a search for evidence of a smoking rule violation. This distinction does not imply that a no-smoking rule is a matter of minor importance. Rather, like a rule that prohibits a student from being tardy, its occasional violation in a context that poses no threat of disrupting school order and discipline offers no reason to believe that an immediate search is necessary to avoid unlawful conduct, violence, or a serious impairment of the educational process.

. …

Like the New Jersey Supreme Court, I would view this case differently if the Assistant Vice Principal had reason to believe T.L.O.’s purse contained evidence of criminal activity, or of an activity that would seriously disrupt school discipline. There was, however, absolutely no basis for any such assumption — not even a “hunch.”

In this case, Mr. Choplick overreacted to what appeared to be nothing more than a minor infraction — a rule prohibiting smoking in the bathroom. … As far as the smoking infraction is concerned, the search for cigarettes merely tended to corroborate a teacher’s eyewitness account of T.L.O.’s violation of a minor regulation designed to channel student smoking behavior into designated locations. Because this conduct was neither unlawful nor significantly disruptive of school order or the educational process, the invasion of privacy associated with the forcible opening of T.L.O.’s purse was entirely unjustified at its inception.

. … The rule the Court adopts today is so open-ended that it may make the Fourth Amendment virtually meaningless in the school context. Although I agree that school administrators must have broad latitude to maintain order and discipline in our classrooms, that authority is not unlimited.

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 to policemen 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. …

I respectfully dissent.

Excerpted by Makenna Perry and Alex Nobiletti

Vernonia School District 47J v. Acton (1995)

515 U.S. 646 (1995)

Vote: 6-3
Decision: Vacate and remand
Majority: Scalia, joined by Rehnquist, Kennedy, Thomas, Ginsburg, and Breyer.
Concurrence: Ginsburg
Dissent: O’Connor, joined by Stevens and Souter

JUSTICE SCALIA delivered the opinion of the Court.

The Student Athlete Drug Policy adopted by School District 47J in the town of Vernonia, Oregon, authorizes random urinalysis drug testing of students who participate in the District’s school athletics programs. We granted certiorari to decide whether this violates the Fourth and Fourteenth Amendments to the United States Constitution.

. …

In the mid-to-Iate 1980’s … teachers and administrators observed a sharp increase in drug use. … Along with more drugs came more disciplinary problems.

Between 1988 and 1989 the number of disciplinary referrals in Vernonia schools rose to more than twice the number reported in the early 1980’s, and several students were suspended. …

Not only were student athletes included among the drug users but, as the District Court found, athletes were the leaders of the drug culture. This caused the District’s administrators particular concern, since drug use increases the risk of sports-related injury. …

. … According to the District Court:

“[T]he administration was at its wits end and … a large segment of the student body, particularly those involved in interscholastic athletics, was in a state of rebellion. Disciplinary actions had reached ‘epidemic proportions.’ The coincidence of an almost three-fold increase in classroom disruptions and disciplinary reports along with the staff’s direct observations of students using drugs or glamorizing drug and alcohol use led the administration to the inescapable conclusion that the rebellion was being fueled by alcohol and drug abuse as well as the student’s misperceptions about the drug culture.”

At that point, District officials began considering a drugtesting program. … Its expressed purpose is to prevent student athletes from using drugs, to protect their health and safety, and to provide drug users with assistance programs.

. … Students wishing to play sports must sign a form consenting to the testing and must obtain the written consent of their parents. Athletes are tested at the beginning of the season for their sport. …

The student to be tested completes a specimen control form which bears an assigned number. Prescription medications that the student is taking must be identified by providing a copy of the prescription or a doctor’s authorization. …

The samples are sent to an independent laboratory, which routinely tests them for amphetamines, cocaine, and marijuana. … The laboratory’s procedures are 99.94% accurate. The District follows strict procedures regarding the chain of custody and access to test results. The laboratory does not know the identity of the students whose samples it tests. … Only the superintendent, principals, viceprincipals, and athletic directors have access to test results. …

. …

In the fall of 1991, respondent James Acton, then a seventh grader, signed up to play football at one of the District’s grade schools. He was denied participation, however, because he and his parents refused to sign the testing consent forms. The Actons filed suit, seeking declaratory and injunctive relief from enforcement of the Policy on the grounds that it violated the Fourth and Fourteenth Amendments to the United States Constitution and Article I, § 9, of the Oregon Constitution. After a bench trial, the District Court entered an order denying the claims on the merits and dismissing the action. The United States Court of Appeals for the Ninth Circuit reversed, holding that the Policy violated both the Fourth and Fourteenth Amendments and Article I, § 9, of the Oregon Constitution. We granted certiorari.

The Fourth Amendment to the United States Constitution provides that the Federal Government shall not violate “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. …  ” We have held that the Fourteenth Amendment extends this constitutional guarantee to searches and seizures by state officers, Elkins v. United States, (1960), including public school officials, New Jersey v. T. L. 0., (1985). In Skinner v. Railway Labor Executives’ Assn., (1989), we held that state-compelled collection and testing of urine, such as that required by the Policy, constitutes a “search” subject to the demands of the Fourth Amendment.

As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is “reasonableness.” At least in a case such as this … whether a particular search meets the reasonableness standard “‘is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.'” Skinner, (quoting Delaware v. Prouse, (1979)). Where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, this Court has said that reasonableness generally requires the obtaining of a judicial warrant, Skinner. … But a warrant is not required to establish the reasonableness of all government searches; and when a warrant is not required … probable cause is not invariably required either. A search unsupported by probable cause can be constitutional, we have said, “when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.” Griffin v. Wisconsin, (1987)

We have found such “special needs” to exist in the public school context. There, the warrant requirement “would unduly interfere with the maintenance of the swift and informal disciplinary procedures [that are] needed,” and “strict adherence to the requirement that searches be based on probable cause” would undercut “the substantial need of teachers and administrators for freedom to maintain order in the schools.” T. L. 0.

The first factor to be considered is the nature of the privacy interest upon which the search here at issue intrudes. The Fourth Amendment does not protect all subjective expectations of privacy, but only those that society recognizes as “legitimate.” T. L. 0. What expectations are legitimate varies … In addition, the legitimacy of certain privacy expectations vis-a-vis the State may depend upon the individual’s legal relationship with the State. … Central, in our view, to the present case is the fact that the subjects of the Policy are (1) children, who (2) have been committed to the temporary custody of the State as schoolmaster.

Traditionally at common law, and still today, unemancipated minors lack some of the most fundamental rights of self-determination including … the right to come and go at will. They are subject, even as to their physical freedom, to the control of their parents or guardians. When parents place minor children in private schools for their education, the teachers and administrators of those schools stand in loco parentis over the children entrusted to them. In fact, the tutor or schoolmaster is the very prototype of that status. …

In T. L. O. we rejected the notion that public schools, like private schools, exercise only parental power over their students, which of course is not subject to constitutional constraints. Such a view of things, we said, “is not entirely ‘consonant with compulsory education laws,'” (quoting Ingraham v. Wright, (1977)), and is inconsistent with our prior decisions treating school officials as state actors for purposes of the Due Process and Free Speech Clauses. But while denying that the State’s power over schoolchildren is formally no more than the delegated power of their parents did not deny, but indeed emphasized, that the nature of that power is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults. While we do not, of course, suggest that public schools as a general matter have such a degree of control over children as to give rise to a constitutional “duty to protect,” DeShaney v. Winnebago County Dept. of Social Servs., (1989), we have acknowledged that for many purposes “school authorities ac[t] in loco parentis,” Bethel School Dist. No. 403 v. Fraser, (1986), with the power and indeed the duty to “inculcate the habits and manners of civility.” Thus, while children assuredly do not “shed their constitutional rights … at the schoolhouse gate,” Tinker v. Des Moines Independent Community School Dist., (1969), the nature of those rights is what is appropriate for children in school.

Fourth Amendment rights, no less than First and Fourteenth Amendment rights, are different in public schools than elsewhere; the “reasonableness” inquiry cannot disregard the schools’ custodial and tutelary responsibility for children. For their own good and that of their classmates, public school children are routinely required to submit to various physical examinations, and to be vaccinated against various diseases. … Particularly with regard to medical examinations and procedures, therefore, “students within the school environment have a lesser expectation of privacy than members of the population generally.” T. L. 0., (Powell, J., concurring).

Legitimate privacy expectations are even less with regard to student athletes. School sports are not for the bashful. They require “suiting up” before each practice or event, and showering and changing afterwards. Public school locker rooms, the usual sites for these activities, are not notable for the privacy they afford. …

There is an additional respect in which school athletes have a reduced expectation of privacy. By choosing to “go out for the team,” they voluntarily subject themselves to a degree of regulation even higher than that imposed on students generally. In Vernonia’s public schools, they must submit to a preseason physical exam (James testified that his included the giving of a urine sample), they must acquire adequate insurance coverage or sign an insurance waiver, maintain a minimum grade point average, and comply with any “rules of conduct, dress, training hours and related matters as may be established for each sport by the head coach and athletic director with the principal’s approval.” … [S]tudents who voluntarily participate in school athletics have reason to expect intrusions upon normal rights and privileges, including privacy.

Having considered the scope of the legitimate expectation of privacy at issue here, we turn next to the character of the intrusion that is complained of. We recognized in Skinner that collecting the samples for urinalysis intrudes upon “an excretory function traditionally shielded by great privacy.” We noted, however, that the degree of intrusion depends upon the manner in which production of the urine sample is monitored. … Under the District’s Policy, male students produce samples at a urinal along a wall. They remain fully clothed and are only observed from behind, if at all. Female students produce samples in an enclosed stall, with a female monitor standing outside listening only for sounds of tampering. These conditions are nearly identical to those typically encountered in public restrooms, which men, women, and especially schoolchildren use daily. Under such conditions, the privacy interests compromised by the process of obtaining the urine sample are in our view negligible.

The other privacy-invasive aspect of urinalysis is, of course, the information it discloses concerning the state of the subject’s body, and the materials he has ingested. In this regard it is significant that the tests at issue here look only for drugs, and not for whether the student is, for example, epileptic, pregnant, or diabetic. Moreover, the drugs for which the samples are screened are standard, and do not vary according to the identity of the student. And finally, the results of the tests are disclosed only to a limited class of school personnel who have a need to know; and they are not turned over to law enforcement authorities or used for any internal disciplinary function.

Respondents argue, however, that the District’s Policy is in fact more intrusive than this suggests, because it requires the students, if they are to avoid sanctions for a falsely positive test, to identify in advance prescription medications they are taking. We agree that this raises some cause for concern. … On the other hand, we have never indicated that requiring advance disclosure of medications is per se unreasonable. Indeed, in Skinner we held that it was not “a significant invasion of privacy.” It can be argued that, in Skinner, the disclosure went only to the medical personnel taking the sample, and the Government personnel analyzing it, and that disclosure to teachers and coaches-to persons who personally know the student-is a greater invasion of privacy. Assuming for the sake of argument that both those propositions are true, we do not believe they establish a difference that respondents are entitled to rely on here.

The General Authorization Form that respondents refused to sign, which refusal was the basis for James’s exclusion from the sports program, said only (in relevant part): “I … authorize the Vernonia School District to conduct a test on a urine specimen which I provide to test for drugs and/or alcohol use. I also authorize the release of information concerning the results of such a test to the Vernonia School District and to the parents and/or guardians of the student.” While the practice of the District seems to have been to have a school official take medication information from the student at the time of the test, that practice is not set forth in, or required by, the Policy, which says simply: “Student athletes who … are or have been taking prescription medication must provide verification (either by a copy of the prescription or by doctor’s authorization) prior to being tested.” It may well be that, if and when James was selected for random testing at a time that he was taking medication, the School District would have permitted him to provide the requested information in a confidential manner-for example, in a sealed envelope delivered to the testing lab. Nothing in the Policy contradicts that, and when respondents choose, in effect, to challenge the Policy on its face, we will not assume the worst. Accordingly, we reach the same conclusion as in Skinner: that the invasion of privacy was not significant.

Finally, we turn to consider the nature and immediacy of the governmental concern at issue here, and the efficacy of this means for meeting it. … Is there a compelling state interest here? Rather, the phrase describes an interest that appears important enough to justify the particular search at hand, in light of other factors that show the search to be relatively intrusive upon a genuine expectation of privacy. Whether that relatively high degree of government concern is necessary in this case or not, we think it is met.

That the nature of the concern is important-indeed, perhaps compelling-can hardly be doubted. … School years are the time when the physical, psychological, and addictive effects of drugs are most severe. … In the present case, moreover, the necessity for the State to act is magnified by the fact that this evil is being visited not just upon individuals at large, but upon children for whom it has undertaken a special responsibility of care and direction. Finally, it must not be lost sight of that this program is directed more narrowly to drug use by school athletes, where the risk of immediate physical harm to the drug user or those with whom he is playing his sport is particularly high. Apart from psychological effects, which include impairment of judgment, slow reaction time, and a lessening of the perception of pain, the particular drugs screened by the District’s Policy have been demonstrated to pose substantial physical risks to athletes. …

As for the immediacy of the District’s concerns: We are not inclined to question … the District Court’s conclusion that “a large segment of the student body, particularly those involved in interscholastic athletics, was in a state of rebellion,” … and that “the rebellion was being fueled by alcohol and drug abuse. … ” As to the efficacy of this means for addressing the problem: It seems to us self-evident that a drug problem largely fueled by the “role model” effect of athletes’ drug use, and of particular danger to athletes, is effectively addressed by making sure that athletes do not use drugs. Respondents argue that a “less intrusive means to the same end” was available, namely, “drug testing on suspicion of drug use.” We have repeatedly refused to declare that only the “least intrusive” search practicable can be reasonable under the Fourth Amendment. … It may be impracticable, for one thing, simply because the parents who are willing to accept random drug testing for athletes are not willing to accept accusatory drug testing for all students, which transforms the process into a badge of shame. Respondents’ proposal brings the risk that teachers will impose testing arbitrarily upon troublesome but not drug-likely students. It generates the expense of defending lawsuits that charge such arbitrary imposition, or that simply demand greater process before accusatory drug testing is imposed. And not least of all, it adds to the everexpanding diversionary duties of schoolteachers the new function of spotting and bringing to account drug abuse, a task for which they are ill prepared, and which is not readily compatible with their vocation. In many respects, we think, testing based on “suspicion” of drug use would not be better, but worse.

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.

. …

The Ninth Circuit held that Vernonia’s Policy not only violated the Fourth Amendment, but also, by reason of that violation, contravened Article I, § 9, of the Oregon Constitution. Our conclusion that the former holding was in error means that the latter holding rested on a flawed premise. We therefore vacate the judgment, and remand the case to the Court of Appeals for further proceedings consistent with this opinion.

It is so ordered.

JUSTICE O’CONNOR, with whom JUSTICE STEVENS and JUSTICE SOUTER join, dissenting.

. … By the reasoning of today’s decision, the millions of these students who participate in interscholastic sports, an overwhelming majority of whom have given school officials no reason whatsoever to suspect they use drugs at school, are open to an intrusive bodily search.

In justifying this result, the Court dispenses with a requirement of individualized suspicion on considered policy grounds. First, it explains that precisely because every student athlete is being tested, there is no concern that school officials might act arbitrarily in choosing whom to test. Second, a broad-based search regime, the Court reasons, dilutes the accusatory nature of the search. In making these policy arguments, of course, the Court sidesteps powerful, countervailing privacy concerns. Blanket searches, because they can involve “thousands or millions” of searches, “pos[e] a greater threat to liberty” than do suspicion-based ones, which “affec[t] one person at a time,” Illinois v. Krull, (1987) (O’CONNOR, J., dissenting). …

But whether a blanket search is “better” than a regime based on individualized suspicion is not a debate in which we should engage. In my view, it is not open to judges or government officials to decide on policy grounds which is better and which is worse. For most of our constitutional history, mass, suspicionless searches have been generally considered per se unreasonable within the meaning of the Fourth Amendment. And we have allowed exceptions in recent years only where it has been clear that a suspicionbased regime would be ineffectual. Because that is not the case here, I dissent.

Excerpted by Alex Nobiletti

Chambers v. Maroney (1970)

399 U.S. 42 (1970)

Vote: 8-0
Decision: Affirmed
Majority: White, joined by Black, Brennan, Burger, Douglas, Harlan, Marshall, and Stewart
Concurrence: Stewart
Concur/Dissent: Harlan
Not participating: Blackmun

MR. JUSTICE WHITE delivered the opinion of the Court.

The principal question in this case concerns the admissibility of evidence seized from an automobile, in which petitioner was riding at the time of his arrest, after the automobile was taken to a police station and was there thoroughly searched without a warrant. The Court of Appeals for the Third Circuit found no violation of petitioner’s Fourth Amendment rights. We affirm.

During the night of May 20, 1963, a Gulf service station in North Braddock, Pennsylvania, was robbed by two men, each of whom carried and displayed a gun. The robbers took the currency from the cash register; the service station attendant, one Stephen Kovacich, was directed to place the coins in his right-hand glove, which was then taken by the robbers. Two teenagers, who had earlier noticed a blue compact station wagon circling the block in the vicinity … then saw the station wagon speed away. … About the same time, they learned that the Gulf station had been robbed. They reported to police, who arrived immediately, that four men were in the station wagon and one was wearing a green sweater. Kovacich told the police that one of the men who robbed him was wearing a green sweater and the other was wearing a trench coat. A description of the car and the two robbers was broadcast over the police radio. Within an hour, a light blue compact station wagon answering the description and carrying four men was stopped by the police about two miles from the Gulf station. Petitioner was one of the men in the station wagon. He was wearing a green sweater, and there was a trench coat in the car. The occupants were arrested, and the car was driven to the police station. In the course of a thorough search of the car at the station, the police found … two .38-caliber revolvers … a right-hand glove containing small change, and certain cards bearing the name of Raymond Havicon, the attendant at a Boron service station in McKeesport, Pennsylvania, who had been robbed at gunpoint on May 13, 1963. In the course of a warrant-authorized search of petitioner’s home the day after petitioner’s arrest, police found and seized certain .38-caliber ammunition. …

Petitioner was indicted for both robberies. … [H]e was convicted of both robberies at the second trial. Both Kovacich and Havicon identified petitioner as one of the robbers. The materials taken from the station wagon were introduced into evidence, Kovacich identifying his glove and Havicon the cards taken in the May 13 robbery. The bullets seized at petitioner’s house were also introduced over objections of petitioner’s counsel. Petitioner was sentenced to a term of four to eight years’ imprisonment for the May 13 robbery and to a term of two to seven years’ imprisonment for the May 20 robbery. … Petitioner did not take a direct appeal from these convictions. In 1965, petitioner sought a writ of habeas corpus in the state court, which denied the writ after a brief evidentiary hearing; the denial of the writ was affirmed on appeal in the Pennsylvania appellate courts. Habeas corpus proceedings were then commenced in the United States District Court for the Western District of Pennsylvania. An order to show cause was issued. Based on the State’s response and the state court record, the petition for habeas corpus was denied without a hearing. The Court of Appeals for the Third Circuit affirmed, and we granted certiorari.

We pass quickly the claim that the search of the automobile was the fruit of an unlawful arrest. Both the courts below thought the arresting officers had probable cause to make the arrest. We agree. Having talked to the teen-age observers and to the victim Kovacich, the police had ample cause to stop a light blue compact station wagon carrying four men and to arrest the occupants, one of whom was wearing a green sweater and one of whom had a trench coat with him in the car.

Even so, the search that produced the incriminating evidence was made at the police station some time after the arrest, and cannot be justified as a search incident to an arrest:

“Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest.”

Preston v. United States (1964). Dyke v. Taylor Implement Mfg. Co. (1968), is to the same effect; the reasons that have been thought sufficient to justify warrantless searches carried out in connection with an arrest no longer obtain when the accused is safely in custody at the station house.

There are, however, alternative grounds arguably justifying the search of the car in this case. In Preston, the arrest was for vagrancy; it was apparent that the officers had no cause to believe that evidence of crime was concealed in the auto. In Dyke, the Court expressly rejected the suggestion that there was probable cause to search the car. Here, the situation is different, for the police had probable cause to believe that the robbers, carrying guns and the fruits of the crime, had fled the scene in a light blue compact station wagon which would be carrying four men, one wearing a green sweater and another wearing a trench coat. As the state courts correctly held, there was probable cause to arrest the occupants of the station wagon that the officers stopped; just as obviously was there probable cause to search the car for guns and stolen money.

In terms of the circumstances justifying a warrantless search, the Court has long distinguished between an automobile and a home or office. In Carroll v. United States (1925), the issue was the admissibility in evidence of contraband liquor seized in a warrantless search of a car on the highway. After surveying the law from the time of the adoption of the Fourth Amendment onward, the Court held that automobiles … may be searched without a warrant in circumstances that would not justify the search without a warrant of a house or an office, provided that there is probable cause to believe that the car contains articles that the officers are entitled to seize. The Court expressed its holding as follows:

“We have made a somewhat extended reference to these statutes to show that the guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the Government, as recognizing … it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.”

“Having thus established that contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant, we come now to consider under what circumstances such search may be made. … ”

. …

“The measure of legality of such a seizure is, therefore, that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes has contraband liquor therein which is being illegally transported.”

The Court also noted that the search of an auto on probable cause proceeds on a theory wholly different from that justifying the search incident to an arrest:

“The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.”

Finding that there was probable cause for the search and seizure at issue before it, the Court affirmed the convictions.

. …

. … Neither Carroll, nor other cases in this Court require or suggest that, in every conceivable circumstance, the search of an auto even with probable cause may be made without the extra protection for privacy that a warrant affords. But the circumstances that furnish probable cause to search a particular auto for particular articles are most often unforeseeable; moreover, the opportunity to search is fleeting, since a car is readily movable. Where this is true, as in Carroll and the case before us now, if an effective search is to be made at any time, either the search must be made immediately without a warrant or the car itself must be seized and held without a warrant for whatever period is necessary to obtain a warrant for the search.

In enforcing the Fourth Amendment’s prohibition against unreasonable searches and seizures, the Court has insisted upon probable cause as a minimum requirement for a reasonable search permitted by the Constitution. … [I]t has also required the judgment of a magistrate on the probable cause issue and the issuance of a warrant before a search is made. Only in exigent circumstances will the judgment of the police as to probable cause serve as a sufficient authorization for a search. Carroll holds a search warrant unnecessary where there is probable cause to search an automobile stopped on the highway; the car is movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained. Hence, an immediate search is constitutionally permissible. Arguably, because of the preference for a magistrate’s judgment, only the immobilization of the car should be permitted until a search warrant is obtained; arguably, only the “lesser” intrusion is permissible until the magistrate authorizes the “greater.” But which is the “greater” and which the “lesser” intrusion is itself a debatable question, and the answer may depend on a variety of circumstances. For constitutional purposes, we see no difference between … seizing and holding a car before presenting the probable cause issue to a magistrate and … carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.

On the facts before us, the blue station wagon could have been searched on the spot when it was stopped, since there was probable cause to search and it was a fleeting target for a search. The probable cause factor still obtained at the station house, and so did the mobility of the car, unless the Fourth Amendment permits a warrantless seizure of the car and the denial of its use to anyone until a warrant is secured. In that event, there is little to choose in terms of practical consequences between an immediate search without a warrant and the car’s immobilization until a warrant is obtained. The same consequences may not follow where there is unforeseeable cause to search a house. But, as Carroll, held, for the purposes of the Fourth Amendment, there is a constitutional difference between houses and cars.

. …

Affirmed.

Excerpted by Alex Nobiletti and Sloan Harmel

South Dakota v. Opperman (1976)

428 U.S. 364 (1976)

Vote: 5-4
Decision: Reversed and remanded
Majority: Burger, joined by Blackmun, Powell, Rehnquist, and Stevens
Concurrence: Powell
Dissent: White
Dissent: Marshall, joined by Brennan and Stewart

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

We review the judgment of the Supreme Court of South Dakota, holding that local police violated the Fourth Amendment to the Federal Constitution, as applicable to the States under the Fourteenth Amendment, when they conducted a routine inventory search of an automobile lawfully impounded by police for violations of municipal parking ordinances.

Local ordinances prohibit parking in certain areas of downtown Vermillion, S.D. between the hours of 2 am. and 6 a.m. During the early morning hours of December 10, 1973, a Vermillion police officer observed respondent’s unoccupied vehicle illegally parked in the restricted zone. At approximately 3 a.m., the officer issued an overtime parking ticket and placed it on the car’s windshield. The citation warned:

“Vehicles in violation of any parking ordinance may be towed from the area.”

At approximately 10 o’clock on the same morning, another officer issued a second ticket for an overtime parking violation. These circumstances were routinely reported to police headquarters, and after the vehicle was inspected, the car was towed to the city impound lot.

From outside the car at the impound lot, a police officer observed a watch on the dashboard and other items of personal property located on the back seat and back floorboard. At the officer’s direction, the car door was then unlocked and, using a standard inventory form pursuant to standard police procedures, the officer inventoried the contents of the car, including the contents of the glove compartment, which was unlocked. There he found marihuana contained in a plastic bag. All items, including the contraband, were removed to the police department for safekeeping. During the late afternoon of December 10, respondent appeared at the police department to claim his property. The marihuana was retained by police.

Respondent was subsequently arrested on charges of possession of marihuana. His motion to suppress the evidence yielded by the inventory search was denied; he was convicted after a jury trial and sentenced to a fine of $100 and 14 days’ incarceration in the county jail. On appeal, the Supreme Court of South Dakota reversed the conviction. The court concluded that the evidence had been obtained in violation of the Fourth Amendment prohibition against unreasonable searches and seizures. We granted certiorari, and we reverse.

This Court has traditionally drawn a distinction between automobiles and homes or offices in relation to the Fourth Amendment. Although automobiles are “effects,” and thus within the reach of the Fourth Amendment, Cady v. Dombrowski, (1973), warrantless examinations of automobiles have been upheld in circumstances in which a search of a home or office would not. …

The reason for this well settled distinction is twofold. First, the inherent mobility of automobiles creates circumstances of such exigency that, as a practical necessity, rigorous enforcement of the warrant requirement is impossible. … But the Court has also upheld warrantless searches where no immediate danger was presented that the car would be removed from the jurisdiction. … Besides the element of mobility, less rigorous warrant requirements govern because the expectation of privacy with respect to one’s automobile is significantly less than that relating to one’s home or office. In discharging their varied responsibilities for ensuring the public safety, law enforcement officials are necessarily brought into frequent contact with automobiles. Most of this contact is distinctly noncriminal in nature. Automobiles, unlike homes, are subjected to pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements. As an everyday occurrence, police stop and examine vehicles when license plates or inspection stickers have expired, or if other violations, such as exhaust fumes or excessive noise, are noted, or if headlights or other safety equipment are not in proper working order.

. …

In the interests of public safety … automobiles are frequently taken into police custody. … The authority of police to seize and remove from the streets vehicles … threatening public safety and convenience is beyond challenge.

When vehicles are impounded, local police departments generally follow a routine practice of securing and inventorying the automobiles’ contents. These procedures developed in response to three distinct needs: the protection of the owner’s property while it remains in police custody, United States v. Mitchell, (CA9 1972); the protection of the police against claims or disputes over lost or stolen property, United States v. Kelehar, (CA5 1972); and the protection of the police from potential danger, Cooper v. California [(1967)]. The practice has been viewed as essential to respond to incidents of theft or vandalism. In addition, police frequently attempt to determine whether a vehicle has been stolen, and thereafter abandoned.

These caretaking procedures have almost uniformly been upheld by the state courts, which, by virtue of the localized nature of traffic regulation, have had considerable occasion to deal with the issue. Applying the Fourth Amendment standard of “reasonableness,” the state courts have overwhelmingly concluded that, even if an inventory is characterized as a “search,” the intrusion is constitutionally permissible.

. …

. … These cases have recognized that standard inventories often include an examination of the glove compartment, since it is a customary place for documents of ownership and registration, as well as a place for the temporary storage of valuables.

The decisions of this Court point unmistakably to the conclusion reached by both federal and state courts that inventories pursuant to standard police procedures are reasonable. …

In applying the reasonableness standard adopted by the Framers, this Court has consistently sustained police intrusions into automobiles impounded or otherwise in lawful police custody where the process is aimed at securing or protecting the car and its contents. In Cooper v. California, the Court upheld the inventory of a car impounded under the authority of a state forfeiture statute. Even though the inventory was conducted in a distinctly criminal setting and carried out a week after the car had been impounded, the Court nonetheless found that the car search, including examination of the glove compartment where contraband was found, was reasonable under the circumstances. This conclusion was reached despite the fact that no warrant had issued and probable cause to search for the contraband in the vehicle had not been established. The Court said in language explicitly applicable here:

“It would be unreasonable to hold that the police, having to retain the car in their custody for such a length of time, had no right, even for their own protection, to search it.”

In the following Term, the Court in Harris v. United States, (1968), upheld the introduction of evidence, seized by an officer who, after conducting an inventory search of a car and while taking means to safeguard it, observed a car registration card lying on the metal stripping of the car door. Rejecting the argument that a warrant was necessary, the Court held that the intrusion was justifiable, since it was “taken to protect the car while it was in police custody.” Finally, in Cady v. Dombrowski [(1973)], the Court upheld a warrantless search of an automobile towed to a private garage even though no probable cause existed to believe that the vehicle contained fruits of a crime. The sole justification for the warrantless incursion was that it was incident to the caretaking function of the local police to protect the community’s safety. Indeed, the protective search was instituted solely because local police “were under the impression” that the incapacitated driver, a Chicago police officer, was required to carry his service revolver at all times; the police had reasonable grounds to believe a weapon might be in the car, and thus available to vandals. The Court carefully noted that the protective search was carried out in accordance with standard procedures in the local police department, a factor tending to ensure that the intrusion would be limited in scope to the extent necessary to carry out the caretaking function. …

The holdings in Cooper, Harris, and Cady point the way to the correct resolution of this [c]ase. None of the three cases, of course, involves the precise situation presented here; but, as in all Fourth Amendment cases, we are obliged to look to all the facts and circumstances of this case in light of the principles set forth in these prior decisions.

. …

The Vermillion police were indisputably engaged in a caretaking search of a lawfully impounded automobile. The inventory was conducted only after the car had been impounded for multiple parking violations. The owner, having left his car illegally parked for an extended period, and thus subject to impoundment, was not present to make other arrangements for the safekeeping of his belongings. The inventory itself was prompted by the presence in plain view of a number of valuables inside the car. As in Cady, there is no suggestion whatever that this … was a pretext concealing an investigatory police motive.

On this record, we conclude that … the conduct of the police was not “unreasonable” under the Fourth Amendment.

The judgment of the South Dakota Supreme Court is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN and MR. JUSTICE STEWART join, dissenting.

The Court today holds that the Fourth Amendment permits a routine police inventory search of the closed glove compartment of a locked automobile impounded for ordinary traffic violations. Under the Court’s holding, such a search may be made without attempting to secure the consent of the owner and without any particular reason to believe the impounded automobile contains contraband, evidence, or valuables, or presents any danger to its custodians or the public. Because I believe this holding to be contrary to sound elaboration of established Fourth Amendment principles, I dissent.

… [T]he requirement of a warrant aside, resolution of the question whether an inventory search of closed compartments inside a locked automobile can ever be justified as a constitutionally “reasonable” search depends upon a reconciliation of the owner’s constitutionally protected privacy interests against governmental intrusion, and legitimate governmental interests furthered by securing the car and its contents. … The Court fails clearly to articulate the reasons for its reconciliation of these interests in this case, but it is at least clear to me that the considerations alluded to by the Court … are insufficient to justify the Court’s result in this case.

To begin with, the Court appears to suggest by reference to a “diminished” expectation of privacy, that a person’s constitutional interest in protecting the integrity of closed compartments of his locked automobile may routinely be sacrificed to governmental interests requiring interference with that privacy that are less compelling than would be necessary to justify a search of similar scope of the person’s home or office. This has never been the law. The Court correctly observes that some prior cases have drawn distinctions between automobiles and homes or offices in Fourth Amendment cases; but even as the Court’s discussion makes clear, the reasons for distinction in those cases are not present here. Thus, Chambers v. Maroney, (1970), and Carroll v. United States, (1925), permitted certain probable cause searches to be carried out without warrants in view of the exigencies created by the mobility of automobiles, but both decisions reaffirmed that the standard of probable cause necessary to authorize such a search was no less than the standard applicable to search of a home or office. In other contexts, the Court has recognized that automobile travel sacrifices some privacy interests to the publicity of plain view. But this recognition, too, is inapposite here, for there is no question of plain view in this case. Nor does this case concern intrusions of the scope that the Court apparently assumes would ordinarily be permissible in order to insure the running safety of a car. While it may be that privacy expectations associated with automobile travel are in some regards less than those associated with a home or office, it is equally clear that “[t]he word automobile’ is not a talisman in whose presence the Fourth Amendment fades away … ,” Coolidge v. New Hampshire, (1971). Thus, we have recognized that “[a] search, even of an automobile, is a substantial invasion of privacy,” United States v. Ortiz, (1975) (emphasis added), and, accordingly, our cases have consistently recognized that the nature and substantiality of interest required to justify a search of private areas of an automobile is no less than that necessary to justify an intrusion of similar scope into a home or office. The Court’s opinion appears to suggest that its result may, in any event, be justified because the inventory search procedure is a “reasonable” response to

“three distinct needs: the protection of the owner’s property while it remains in police custody … ; the protection of the police against claims or disputes over lost or stolen property … ; and the protection of the police from potential danger.”

This suggestion is flagrantly misleading, however, because the record of this case explicitly belies any relevance of the last two concerns. In any event, it is my view that none of these “needs,” separately or together, can suffice to justify the inventory search procedure approved by the Court.

First, this search cannot be justified in any way as a safety measure, for — though the Court ignores it — the sole purpose given by the State for the Vermillion police’s inventory procedure was to secure valuables. Nor is there any indication that the officer’s search in this case was tailored in any way to safety concerns, or that ordinarily it is so circumscribed. Even aside from the actual basis for the police practice in this case, however, I do not believe that any blanket safety argument could justify a program of routine searches of the scope permitted here. As MR. JUSTICE POWELL recognizes, ordinarily “there is little danger associated with impounding unsearched automobiles.” Thus, while the safety rationale may not be entirely discounted when it is actually relied upon, it surely cannot justify the search of every car upon the basis of undifferentiated possibility of harm; on the contrary, such an intrusion could ordinarily be justified only in those individual cases where the officer’s inspection was prompted by specific circumstances indicating the possibility of a particular danger.

Second, the Court suggests that the search for valuables in the closed glove compartment might be justified as a measure to protect the police against lost property claims. Again, this suggestion is belied by the record, since — although the Court declines to discuss it — the South Dakota Supreme Court’s interpretation of state law explicitly absolves the police, as “gratuitous depositors,” from any obligation beyond inventorying objects in plain view and locking the car. Moreover … it may well be doubted that an inventory procedure would, in any event, work significantly to minimize the frustrations of false claims.

Finally, the Court suggests that the public interest in protecting valuables that may be found inside a closed compartment of an impounded car may justify the inventory procedure. I recognize the genuineness of this governmental interest in protecting property from pilferage. But even if I assume that the posting of a guard would be fiscally impossible as an alternative means to the same protective end, I cannot agree with the Court’s conclusion. The Court’s result authorizes — indeed it appears to require — the routine search of nearly every car impounded. In my view, the Constitution does not permit such searches as a matter of routine; absent specific consent, such a search is permissible only in exceptional circumstances of particular necessity.

It is at least clear that any owner might prohibit the police from executing a protective search of his impounded car, since, by hypothesis, the inventory is conducted for the owner’s benefit. Moreover, it is obvious that not everyone whose car is impounded would want it to be searched. … Nevertheless, according to the Court’s result, the law may presume that each owner in respondent’s position consents to the search. I cannot agree. In my view, the Court’s approach is squarely contrary to the law of consent; it ignores the duty, in the absence of consent, to analyze in each individual case whether there is a need to search a particular car for the protection of its owner which is sufficient to outweigh the particular invasion. It is clear to me under established principles that, in order to override the absence of explicit consent, such a search must at least be conditioned upon the fulfillment of two requirements. First, there must be specific cause to believe that a search of the scope to be undertaken is necessary in order to preserve the integrity of particular valuable property threatened by the impoundment. … Second, even where a search might be appropriate, such an intrusion may only follow the exhaustion and failure of reasonable efforts under the circumstances to identify and reach the owner of the property in order to facilitate alternative means of security or to obtain his consent to the search, for in this context the right to refuse the search remains with the owner.

Because the record in this case shows that the procedures followed by the Vermillion police in searching respondent’s car fall far short of these standards, in my view, the search was impermissible, and its fruits must be suppressed. …

Excerpted by Alex Nobiletti

California v. Acevedo (1991)

500 U.S. 565 (1991)

Vote: 6-3
Decision: Reversed and remanded
Majority: Blackmun, joined by Rehnquist, O’Connor, Scalia, Kennedy, and Souter
Concurrence: Scalia
Dissent: White
Dissent: Stevens, joined by Justice Marshall

JUSTICE BLACKMUN delivered the opinion of the Court.

This case requires us once again to consider the so-called “automobile exception” to the warrant requirement of the Fourth Amendment and its application to the search of a closed container in the trunk of a car.

On October 28, 1987, Officer Coleman … received a telephone call from a federal drug enforcement agent in Hawaii. The agent informed Coleman that he had seized a package containing marijuana which was to have been delivered to the Federal Express Office in Santa Ana and which was addressed to J.R. Daza … in that city. The agent arranged to send the package to Coleman instead. Coleman then was to take the package to the Federal Express office and arrest the person who arrived to claim it.

Coleman received the package on October 29, verified its contents, and took it to the Senior Operations Manager at the Federal Express office. At about 10:30 a.m. on October 30, a man, who identified himself as Jamie Daza, arrived to claim the package. He accepted it and drove to his apartment on West Stevens. He carried the package into the apartment.

At 11:45 a.m., officers observed Daza leave the apartment and drop the box and paper that had contained the marijuana into a trash bin. Coleman at that point left the scene to get a search warrant. …

At 12:30 p.m., respondent Charles Steven Acevedo arrived. He entered Daza’s apartment, stayed for about 10 minutes, and reappeared carrying a brown paper bag that looked full. The officers noticed that the bag was the size of one of the wrapped marijuana packages sent from Hawaii. Acevedo walked to a silver Honda in the parking lot. He placed the bag in the trunk of the car and started to drive away. Fearing the loss of evidence, officers in a marked police car stopped him. They opened the trunk and the bag, and found marijuana.

Respondent was charged in state court with possession of marijuana for sale. … He moved to suppress the marijuana found in the car. The motion was denied. …

The California Court of Appeal, Fourth District, concluded that the marijuana found in the paper bag in the car’s trunk should have been suppressed. The court concluded that the officers had probable cause to believe that the paper bag contained drugs, but lacked probable cause to suspect that Acevedo’s car, itself, otherwise contained contraband. Because the officers’ probable cause was directed specifically at the bag, the court held that the case was controlled by United States v. Chadwick, (1977), rather than by United States v. Ross, (1982). Although the court agreed that the officers could seize the paper bag, it held that, under Chadwick, they could not open the bag without first obtaining a warrant for that purpose. The court then recognized “the anomalous nature” of the dichotomy between the rule in Chadwick and the rule in Ross. That dichotomy dictates that, if there is probable cause to search a car, then the entire car — including any closed container found therein — may be searched without a warrant, but if there is probable cause only as to a container in the car, the container may be held, but not searched, until a warrant is obtained.

The Supreme Court of California denied the State’s petition for review. …

We granted certiorari to reexamine the law applicable to a closed container in an automobile. …

The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Contemporaneously with the adoption of the Fourth Amendment, the First Congress … distinguished between the need for a warrant to search for contraband concealed in “a dwelling house or similar place” and the need for a warrant to search for contraband concealed in a movable vessel. See Carroll v. United States, (1925). In Carroll, this Court established an exception to the warrant requirement for moving vehicles, for it recognized

“a necessary difference between a search of a store, dwelling house or other structure … and a search of a ship, motor boat, wagon or automobile … where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.”

It therefore held that a warrantless search of an automobile based upon probable cause to believe that the vehicle contained evidence of crime … did not contravene the Warrant Clause of the Fourth Amendment.

The Court refined the exigency requirement in Chambers v. Maroney, (1970), when it held that the existence of exigent circumstances was to be determined at the time the automobile is seized. … Following Chambers, if the police have probable cause to justify a warrantless seizure of an automobile on a public roadway, they may conduct either an immediate or a delayed search of the vehicle.

In United States v. Ross, decided in 1982, we held that a warrantless search of an automobile under the Carroll doctrine could include a search of a container or package found inside the car when such a search was supported by probable cause. …

. …

“[i]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.”

In Ross, therefore, we clarified the scope of the Carroll doctrine as properly including a “probing search” of compartments and containers within the automobile so long as the search is supported by probable cause.

In addition to this clarification, Ross distinguished the Carroll doctrine from the separate rule that governed the search of closed containers. The Court had announced this separate rule, unique to luggage and other closed packages, bags, and containers, in United States v. Chadwick, (1977). In Chadwick, federal narcotics agents had probable cause to believe that a 200-pound double-locked footlocker contained marijuana. The agents tracked the locker as the defendants removed it from a train and carried it through the station to a waiting car. As soon as the defendants lifted the locker into the trunk of the car, the agents arrested them, seized the locker, and searched it. …

The Court … reasoned, a person expects more privacy in his luggage and personal effects than he does in his automobile. Moreover, it concluded that, as “may often not be the case when automobiles are seized,” secure storage facilities are usually available when the police seize luggage. In Arkansas v. Sanders, (1979), the Court extended Chadwick’s rule to apply to a suitcase actually being transported in the trunk of a car. … Although the Court had applied the Carroll doctrine to searches of integral parts of the automobile itself, (indeed, in Carroll, contraband whiskey was in the upholstery of the seats), it did not extend the doctrine to the warrantless search of personal luggage

“merely because it was located in an automobile lawfully stopped by the police.”

Again, the Sanders majority stressed the heightened privacy expectation in personal luggage, and concluded that the presence of luggage in an automobile did not diminish the owner’s expectation of privacy in his personal items.

In Ross, the Court endeavored to distinguish between Carroll, which governed the Ross automobile search, and Chadwick, which governed the Sanders automobile search. It held that the Carroll doctrine covered searches of automobiles when the police had probable cause to search an entire vehicle, but that the Chadwick doctrine governed searches of luggage when the officers had probable cause to search only a container within the vehicle. Thus, in a Ross situation, the police could conduct a reasonable search under the Fourth Amendment without obtaining a warrant, whereas in a Sanders situation, the police had to obtain a warrant before they searched.

. …

The facts in this case closely resemble the facts in Ross. In Ross, the police had probable cause to believe that drugs were stored in the trunk of a particular car. Here, the California Court of Appeal concluded that the police had probable cause to believe that respondent was carrying marijuana in a bag in his car’s trunk. …

This Court in Ross rejected Chadwick’s distinction between containers and cars. It concluded that the expectation of privacy in one’s vehicle is equal to one’s expectation of privacy in the container, and noted that “the privacy interests in a car’s trunk or glove compartment may be no less than those in a movable container.” It also recognized that it was arguable that the same exigent circumstances that permit a warrantless search of an automobile would justify the warrantless search of a movable container. In deference to the rule of Chadwick and Sanders, however, the Court put that question to one side. It concluded that the time and expense of the warrant process would be misdirected if the police could search every cubic inch of an automobile until they discovered a paper sack, at which point the Fourth Amendment required them to take the sack to a magistrate for permission to look inside. We now must decide the question deferred in Ross: whether the Fourth Amendment requires the police to obtain a warrant to open the sack in a movable vehicle simply because they lack probable cause to search the entire car. We conclude that it does not.

. …

We now agree that a container found after a general search of the automobile and a container found in a car after a limited search for the container are equally easy for the police to store and for the suspect to hide or destroy. In fact, we see no principled distinction in terms of either the privacy expectation or the exigent circumstances between the paper bag found by the police in Ross and the paper bag found by the police here. Furthermore, by attempting to distinguish between a container for which the police are specifically searching and a container which they come across in a car, we have provided only minimal protection for privacy, and have impeded effective law enforcement.

The line between probable cause to search a vehicle and probable cause to search a package in that vehicle is not always clear, and separate rules that govern the two objects to be searched may enable the police to broaden their power to make warrantless searches and disserve privacy interests. … At the moment when officers stop an automobile, it may be less than clear whether they suspect with a high degree of certainty that the vehicle contains drugs in a bag or simply contains drugs. If the police know that they may open a bag only if they are actually searching the entire car, they may search more extensively than they otherwise would in order to establish the general probable cause required by Ross.

. …

Finally, the search of a paper bag intrudes far less on individual privacy than does the incursion sanctioned long ago in Carroll. In that case, prohibition agents slashed the upholstery of the automobile. This Court nonetheless found their search to be reasonable under the Fourth Amendment. If destroying the interior of an automobile is not unreasonable, we cannot conclude that looking inside a closed container is. … [W]e now hold that the Fourth Amendment does not compel separate treatment for an automobile search that extends only to a container within the vehicle.

. …

The interpretation of the Carroll doctrine set forth in Ross now applies to all searches of containers found in an automobile. In other words, the police may search without a warrant if their search is supported by probable cause. …

We reaffirm that principle. In the case before us, the police had probable cause to believe that the paper bag in the automobile’s trunk contained marijuana. That probable cause now allows a warrantless search of the paper bag. The facts in the record reveal that the police did not have probable cause to believe that contraband was hidden in any other part of the automobile and a search of the entire vehicle would have been without probable cause and unreasonable under the Fourth Amendment.

. …

Until today, this Court has drawn a curious line between the search of an automobile that coincidentally turns up a container and the search of a container that coincidentally turns up in an automobile. The protections of the Fourth Amendment must not turn on such coincidences. We therefore interpret Carroll as providing one rule to govern all automobile searches. The police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained.

The judgment of the California Court of Appeal is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.

It is so ordered.

JUSTICE STEVENS, with whom JUSTICE MARSHALL joins, dissenting.

At the end of its opinion, the Court pays lip service to the proposition that should provide the basis for a correct analysis of the legal question presented by this case: 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.'” Mincey v. Arizona, (1978), quoting Katz v. United States, (1967).”

Relying on arguments that conservative judges have repeatedly rejected in past cases, the Court today — despite its disclaimer to the contrary — enlarges the scope of the automobile exception to this “cardinal principle,” which undergirded our Fourth Amendment jurisprudence prior to the retirement of the author of the landmark opinion in United States v. Chadwick, (1977). As a preface to my response to the Court’s arguments, it is appropriate to restate the basis for the warrant requirement, the significance of the Chadwick case, and the reasons why the limitations on the automobile exception that were articulated in United States v. Ross, (1982), represent a fair accommodation between the basic rule requiring prior judicial approval of searches and the automobile exception.

The Fourth Amendment is a restraint on Executive power. The Amendment constitutes the Framers’ direct constitutional response to the unreasonable law enforcement practices employed by agents of the British Crown. Over the years … the Court has recognized the importance of this restraint as a bulwark against police practices that prevail in totalitarian regimes.

This history is, however, only part of the explanation for the warrant requirement. The requirement also reflects the sound policy judgment that, absent exceptional circumstances, the decision to invade the privacy of an individual’s personal effects should be made by a neutral magistrate, rather than an agent of the Executive. In his opinion for the Court in Johnson v. United States, [(1948)], Justice Jackson explained:

“The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate, instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.”

Our decisions have always acknowledged that the warrant requirement imposes a burden on law enforcement. And our cases have not questioned that trained professionals normally make reliable assessments of the existence of probable cause to conduct a search. We have repeatedly held, however, that these factors are outweighed by the individual interest in privacy that is protected by advance judicial approval. The Fourth Amendment dictates that the privacy interest is paramount, no matter how marginal the risk of error might be if the legality of warrantless searches were judged only after the fact.

. …

In its opinion today, the Court recognizes that the police did not have probable cause to search respondent’s vehicle, and that a search of anything but the paper bag that respondent had carried from Daza’s apartment and placed in the trunk of his car would have been unconstitutional. Moreover, as I read the opinion, the Court assumes that the police could not have made a warrantless inspection of the bag before it was placed in the car. Finally, the Court also does not question the fact that, under our prior cases, it would have been lawful for the police to seize the container and detain it (and respondent) until they obtained a search warrant. Thus, all of the relevant facts that governed our decisions in Chadwick and Sanders are present here, whereas the relevant fact that justified the vehicle search in Ross is not present.

The Court does not attempt to identify any exigent circumstances that would justify its refusal to apply the general rule against warrantless searches. Instead, it advances these three arguments: First, the rules identified in the foregoing cases are confusing and anomalous. Second, the rules do not protect any significant interest in privacy. And third, the rules impede effective law enforcement. None of these arguments withstands scrutiny.

. …

To the extent there was any “anomaly” in our prior jurisprudence, the Court has “cured” it at the expense of creating a more serious paradox. For surely it is anomalous to prohibit a search of a briefcase while the owner is carrying it exposed on a public street, yet to permit a search once the owner has placed the briefcase in the locked trunk of his car. One’s privacy interest in one’s luggage can certainly not be diminished by one’s removing it from a public thoroughfare and placing it — out of sight — in a privately owned vehicle. Nor is the danger that evidence will escape increased if the luggage is in a car, rather than on the street. In either location, if the police have probable cause, they are authorized to seize the luggage and to detain it until they obtain judicial approval for a search. Any line demarking an exception to the warrant requirement will appear blurred at the edges, but the Court has certainly erred if it believes that, by erasing one line and drawing another, it has drawn a clearer boundary.

. …

Even if the warrant requirement does inconvenience the police to some extent, that fact does not distinguish this constitutional requirement from any other procedural protection secured by the Bill of Rights. It is merely a part of the price that our society must pay in order to preserve its freedom. Thus, in a unanimous opinion that relied on both Johnson and Chadwick, Justice Stewart wrote:

“Moreover, the mere fact that law enforcement may be made more efficient can never, by itself, justify disregard of the Fourth Amendment. The investigation of crime would always be simplified if warrants were unnecessary. But the Fourth Amendment reflects the view of those who wrote the Bill of Rights that the privacy of a person’s home and property may not be totally sacrificed in the name of maximum simplicity in enforcement of the criminal law.” Mincey v. Arizona.

It is too early to know how much freedom America has lost today. The magnitude of the loss is, however, not nearly as significant as the Court’s willingness to inflict it without even a colorable basis for its rejection of prior law.

I respectfully dissent.

Excerpted by Alex Nobiletti

Illinois v. Caballes (2005)

543 U.S. 405 (2005)

Vote: 6-2
Decision: Vacated and remanded
Majority: Stevens, joined by O’Connor, Scalia, Kennedy, Thomas, and Breyer
Dissent: Souter
Dissent: Ginsburg, joined by Souter
Not participating: Rehnquist

JUSTICE STEVENS delivered the opinion of the Court.

Illinois State Trooper Daniel Gillette stopped respondent for speeding on an interstate highway. When Gillette radioed the police dispatcher to report the stop, a second trooper, Craig Graham, a member of the Illinois State Police Drug Interdiction Team, overheard the transmission and immediately headed for the scene with his narcotics-detection dog. When they arrived, respondent’s car was on the shoulder of the road and respondent was in Gillette’s vehicle. While Gillette was in the process of writing a warning ticket, Graham walked his dog around respondent’s car. The dog alerted at the trunk. Based on that alert, the officers searched the trunk, found marijuana, and arrested respondent. The entire incident lasted less than 10 minutes.

Respondent was convicted of a narcotics offense. … The trial judge denied his motion to suppress the seized evidence. … He held that the officers had not unnecessarily prolonged the stop and that the dog alert was sufficiently reliable to provide probable cause to conduct the search. Although the Appellate Court affirmed, the Illinois Supreme Court reversed, concluding that because the canine sniff was performed without any “ ‘specific and articulable facts’ ” to suggest drug activity, the use of the dog “unjustifiably enlarg[ed] the scope of a routine traffic stop into a drug investigation.”

The question on which we granted certiorari is narrow: “Whether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop.” Thus, we proceed on the assumption that the officer conducting the dog sniff had no information about respondent except that he had been stopped for speeding; accordingly, we have omitted any reference to facts about respondent that might have triggered a modicum of suspicion.

Here, the initial seizure of respondent when he was stopped on the highway was based on probable cause, and was concededly lawful. It is nevertheless clear that a seizure that is lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution. A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission. …

… [W]e accept the state court’s conclusion that the duration of the stop in this case was entirely justified by the traffic offense and the ordinary inquiries incident to such a stop.

Despite this conclusion, the Illinois Supreme Court held that the initially lawful traffic stop became an unlawful seizure solely as a result of the canine sniff that occurred. … That is, the court characterized the dog sniff as the cause rather than the consequence of a constitutional violation. In its view, the use of the dog converted the citizen-police encounter from a lawful traffic stop into a drug investigation, and because the shift in purpose was not supported by any reasonable suspicion that respondent possessed narcotics, it was unlawful. In our view, conducting a dog sniff would not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reasonable manner, unless the dog sniff itself infringed respondent’s constitutionally protected interest in privacy. Our cases hold that it did not.

Official conduct that does not “compromise any legitimate interest in privacy” is not a search subject to the Fourth Amendment. [US v.] Jacobsen [1984]. We have held that any interest in possessing contraband cannot be deemed “legitimate,” and thus, governmental conduct that only reveals the possession of contraband “compromises no legitimate privacy interest.” Ibid. This is because the expectation “that certain facts will not come to the attention of the authorities” is not the same as an interest in “privacy that society is prepared to consider reasonable.” Id. (punctuation omitted). In United States v. Place, (1983), we treated a canine sniff by a well-trained narcotics-detection dog as “sui generis” because it “discloses only the presence or absence of narcotics, a contraband item.” Respondent likewise concedes that “drug sniffs are designed, and if properly conducted are generally likely, to reveal only the presence of contraband.” Although respondent argues that the error rates, particularly the existence of false positives, call into question the premise that drug-detection dogs alert only to contraband, the record contains no evidence or findings that support his argument. Moreover, respondent does not suggest that an erroneous alert, in and of itself, reveals any legitimate private information, and, in this case, the trial judge found that the dog sniff was sufficiently reliable to establish probable cause to conduct a full-blown search of the trunk.

Accordingly, the use of a well-trained narcotics-detection dog—one that “does not expose noncontraband items that otherwise would remain hidden from public view,” Place, during a lawful traffic stop, generally does not implicate legitimate privacy interests. In this case, the dog sniff was performed on the exterior of respondent’s car while he was lawfully seized for a traffic violation. Any intrusion on respondent’s privacy expectations does not rise to the level of a constitutionally cognizable infringement.

. …

The judgment of the Illinois Supreme Court is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

JUSTICE GINSBURG, with whom JUSTICE SOUTER joins, dissenting.

Illinois State Police Trooper Daniel Gillette stopped Roy Caballes for driving 71 miles per hour in a zone with a posted speed limit of 65 miles per hour. Trooper Craig Graham of the Drug Interdiction Team heard on the radio that Trooper Gillette was making a traffic stop. Although Gillette requested no aid, Graham decided to come to the scene to conduct a dog sniff. Gillette informed Caballes that he was speeding and asked for the usual documents—driver’s license, car registration, and proof of insurance. Caballes promptly provided the requested documents but refused to consent to a search of his vehicle. After calling his dispatcher to check on the validity of Caballes’ license and for outstanding warrants, Gillette returned to his vehicle to write Caballes a warning ticket. Interrupted by a radio call on an unrelated matter, Gillette was still writing the ticket when Trooper Graham arrived with his drug-detection dog. Graham walked the dog around the car, the dog alerted at Caballes’ trunk, and, after opening the trunk, the troopers found marijuana.

The Supreme Court of Illinois held that the drug evidence should have been suppressed. … [T]he court employed a two-part test taken from Terry v. Ohio, (1968), to determine the overall reasonableness of the stop. The court asked first “whether the officer’s action was justified at its inception,” and second “whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” (quoting People v. Brownlee, (1999) (in turn quoting Terry)). “[I]t is undisputed,” the court observed, “that the traffic stop was properly initiated”; thus, the dispositive inquiry trained on the “second part of the Terry test,” in which “[t]he State bears the burden of establishing that the conduct remained within the scope of the stop.”

police did not detect the odor of marijuana in the car or note any other evidence suggesting the presence of illegal drugs.” Lacking “specific and articulable facts” supporting the canine sniff. (quoting Cox), the court ruled, “the police impermissibly broadened the scope of the traffic stop in this case into a drug investigation.” I would affirm the Illinois Supreme Court’s judgment and hold that the drug sniff violated the Fourth Amendment.

. …

The Court rejects the Illinois Supreme Court’s judgment and, implicitly, the application of Terry to a traffic stop converted, by calling in a dog, to a drug search. … Dog sniffs that detect only the possession of contraband may be employed without offense to the Fourth Amendment, the Court reasons, because they reveal no lawful activity and hence disturb no legitimate expectation of privacy.

In my view, the Court diminishes the Fourth Amendment’s force by abandoning the second Terry inquiry. … A drug-detection dog is an intimidating animal. Injecting such an animal into a routine traffic stop changes the character of the encounter between the police and the motorist. The stop becomes broader, more adversarial, and (in at least some cases) longer. Caballes—who, as far as Troopers Gillette and Graham knew, was guilty solely of driving six miles per hour over the speed limit—was exposed to the embarrassment and intimidation of being investigated, on a public thoroughfare, for drugs. Even if the drug sniff is not characterized as a Fourth Amendment “search,” the sniff surely broadened the scope of the traffic-violation-related seizure.

. …

The Illinois Supreme Court, it seems to me, correctly apprehended the danger in allowing the police to search for contraband despite the absence of cause to suspect its presence. Today’s decision, in contrast, clears the way for suspicionless, dog-accompanied drug sweeps of parked cars along sidewalks and in parking lots. … Nor would motorists have constitutional grounds for complaint should police with dogs, stationed at long traffic lights, circle cars waiting for the red signal to turn green.

. …

For the reasons stated, I would hold that the police violated Caballes’ Fourth Amendment rights when, without cause to suspect wrongdoing, they conducted a dog sniff of his vehicle. I would therefore affirm the judgment of the Illinois Supreme Court.

Excerpted by Alex Nobiletti

Maryland v. King (2013)

69 U.S. 435 (2013)

Vote: 5-4
Decision: Reversed
Majority: Kennedy, joined by Roberts, Thomas, Breyer, and Alito
Dissent: Scalia, joined by Ginsburg, Sotomayor, and Kagan

JUSTICE KENNEDY delivered the opinion of the Court.

In 2003 a man concealing his face and armed with a gun broke into a woman’s home in Salisbury, Maryland. He raped her. The police were unable to identify or apprehend the assailant … but they did obtain from the victim a sample of the perpetrator’s DNA.

In 2009 Alonzo King was arrested in Wicomico County, Maryland. … As part of a routine booking procedure for serious offenses, his DNA sample was taken by applying a cotton swab or filter paper—known as a buccal swab—to the inside of his cheeks. The DNA was found to match the DNA taken from the Salisbury rape victim. King was tried and convicted for the rape. …

The Court of Appeals of Maryland, on review of King’s rape conviction, ruled that the DNA taken when King was booked for the 2009 charge was an unlawful seizure because obtaining and using the cheek swab was an unreasonable search of the person. It set the rape conviction aside. This Court granted certiorari and now reverses the judgment of the Maryland court.

When King was arrested on April 10, 2009 … he was processed for detention. … Booking personnel used a cheek swab to take the DNA sample from him pursuant to provisions of the Maryland DNA Collection Act (or Act).

. …

Both federal and state courts have reached differing conclusions as to whether the Fourth Amendment prohibits the collection and analysis of a DNA sample from persons arrested, but not yet convicted, on felony charges. This Court granted certiorari to address the question. …

The advent of DNA technology is one of the most significant scientific advancements of our era. … Since the first use of forensic DNA analysis to catch a rapist and murderer in England in 1986, see J. Butler, Fundamentals of Forensic DNA Typing 5 (2009) (hereinafter Butler), law enforcement, the defense bar, and the courts have acknowledged DNA testing’s “unparalleled ability both to exonerate the wrongly convicted and to identify the guilty. It has the potential to significantly improve both the criminal justice system and police investigative practices.” District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 55 (2009).

The Act authorizes Maryland law enforcement authorities to collect DNA samples from “an individual who is charged with … a crime of violence or an attempt to commit a crime of violence; or … burglary or an attempt to commit burglary.” Maryland law defines a crime of violence to include murder, rape, first-degree assault … and a variety of other serious crimes. Once taken, a DNA sample may not be processed or placed in a database before the individual is arraigned (unless the individual consents). It is at this point that a judicial officer ensures that there is probable cause to detain the arrestee on a qualifying serious offense. …

The Act also limits the information added to a DNA database and how it may be used. Specifically, “[o]nly DNA records that directly relate to the identification of individuals shall be collected and stored.” No purpose other than identification is permissible. … The officers involved in taking and analyzing respondent’s DNA sample complied with the Act in all respects.

Respondent’s DNA was collected in this case using a common procedure known as a “buccal swab.” “Buccal cell collection involves wiping a small piece of filter paper or a cotton swab similar to a Q-tip against the inside cheek of an individual’s mouth to collect some skin cells.” Butler 86. …

Respondent’s identification as the rapist resulted in part through the operation of a national project to standardize collection and storage of DNA profiles. Authorized by Congress … the Combined DNA Index System (CODIS) connects DNA laboratories at the local, state, and national level. …

. …

All 50 States require the collection of DNA from felony convicts, and respondent does not dispute the validity of that practice. … At issue is a standard, expanding technology already in widespread use throughout the Nation.

Although the DNA swab procedure used here presents a question the Court has not yet addressed, the framework for deciding the issue is well established. The Fourth Amendment, binding on the States by the Fourteenth Amendment, provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” It can be agreed that using a buccal swab … is a search. …

. …

To say that the Fourth Amendment applies here is the beginning point, not the end of the analysis. … “As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is ‘reasonableness.’ ” Vernonia School Dist. 47J v. Acton, (1995). In giving content to the inquiry whether an intrusion is reasonable, the Court has preferred “some quantum of individualized suspicion … [as] a prerequisite to a constitutional search or seizure. But the Fourth Amendment imposes no irreducible requirement of such suspicion.” United States v. Martinez-Fuerte,(1976). …

In some circumstances, such as “[w]hen faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, the Court has found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable.” Illinois v. McArthur, (2001). …

The instant case can be addressed with this background. The Maryland DNA Collection Act provides that, in order to obtain a DNA sample, all arrestees charged with serious crimes must furnish the sample on a buccal. … The arrestee is already in valid police custody for a serious offense supported by probable cause. The DNA collection is not subject to the judgment of officers whose perspective might be “colored by their primary involvement in ‘the often competitive enterprise of ferreting out crime.’ ” Terry, (quoting Johnson v. United States, (1948)). …

Even if a warrant is not required, a search is not beyond Fourth Amendment scrutiny; for it must be reasonable in its scope and manner of execution. … An assessment of reasonableness to determine the lawfulness of requiring this class of arrestees to provide a DNA sample is central to the instant case.

The legitimate government interest served by the Maryland DNA Collection Act is one that is well established: the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody. … Even in that context, the Court has been clear that individual suspicion is not necessary. …

The “routine administrative procedure[s] at a police station house incident to booking and jailing the suspect” derive from different origins and have different constitutional justifications than, say, the search of a place, Illinois v. Lafayette, (1983). … When probable cause exists to remove an individual from the normal channels of society and hold him in legal custody, DNA identification plays a critical role in serving those interests.

First, “[i]n every criminal case, it is known and must be known who has been arrested and who is being tried.” Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty., (2004). An individual’s identity is more than just his name or Social Security number, and the government’s interest in identification goes beyond ensuring that the proper name is typed on the indictment. Identity has never been considered limited to the name on the arrestee’s birth certificate. …

A suspect’s criminal history is a critical part of his identity that officers should know when processing him for detention. … They use routine and accepted means as varied as comparing the suspect’s booking photograph to sketch artists’ depictions of persons of interest, showing his mugshot to potential witnesses, and of course making a computerized comparison of the arrestee’s fingerprints. … In this respect the only difference between DNA analysis and the accepted use of fingerprint databases is the unparalleled accuracy DNA provides.

The task of identification necessarily entails searching public and police records based on the identifying information. … The DNA collected from arrestees is an irrefutable identification of the person from whom it was taken. … A DNA profile is useful to the police because it gives them a form of identification to search the records already in their valid possession. In this respect the use of DNA for identification is no different than matching an arrestee’s face to a wanted poster of a previously unidentified suspect. … It uses a different form of identification than a name or fingerprint, but its function is the same.

Second, law enforcement officers bear a responsibility for ensuring that the custody of an arrestee does not create inordinate “risks for facility staff, for the existing detainee population, and for a new detainee.” Florence. DNA identification can provide untainted information to those charged with detaining suspects. …

. …

Third, looking forward to future stages of criminal prosecution, “the Government has a substantial interest in ensuring that persons accused of crimes are available for trials.” Bell v. Wolfish, (1979). A person who is arrested for one offense but knows that he has yet to answer for some past crime may be more inclined to flee the instant charges, lest continued contact with the criminal justice system expose one or more other serious offenses. …

Fourth, an arrestee’s past conduct is essential to an assessment of the danger he poses to the public, and this will inform a court’s determination whether the individual should be released on bail. … DNA identification of a suspect in a violent crime provides critical information to the police and judicial officials in making a determination of the arrestee’s future dangerousness. …

. …

Finally, in the interests of justice, the identification of an arrestee as the perpetrator of some heinous crime may have the salutary effect of freeing a person wrongfully imprisoned for the same offense. …

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Perhaps the most direct historical analogue to the DNA technology used to identify respondent is the familiar practice of fingerprinting arrestees. From the advent of this technique, courts had no trouble determining that fingerprinting was a natural part of “the administrative steps incident to arrest.” County of Riverside v. McLaughlin, (1991).

. …

By the middle of the 20th century, it was considered “elementary that a person in lawful custody may be required to submit to photographing and fingerprinting as part of routine identification processes.” Smith v. United States, (CADC 1963) (Burger, J.). …

DNA identification is an advanced technique superior to fingerprinting in many ways. … The additional intrusion upon the arrestee’s privacy beyond that associated with fingerprinting is not significant, and DNA is a markedly more accurate form of identifying arrestees. …

The respondent’s primary objection to this analogy is that DNA identification is not as fast as fingerprinting, and so it should not be considered to be the 21st-century equivalent. … The question of how long it takes to process identifying information obtained from a valid search goes only to the efficacy of the search for its purpose of prompt identification, not the constitutionality of the search. … Just as fingerprinting was constitutional. … DNA identification of arrestees is a permissible tool of law enforcement today. … By identifying not only who the arrestee is … the police can ensure that they have the proper person under arrest and that they have made the necessary arrangements for his custody. …

. …

By comparison to this substantial government interest and the unique effectiveness of DNA identification, the intrusion of a cheek swab to obtain a DNA sample is a minimal one. …

The reasonableness of any search must be considered in the context of the person’s legitimate expectations of privacy. …

The expectations of privacy of an individual taken into police custody “necessarily [are] of a diminished scope.”. …

In this critical respect, the search here at issue differs from the sort of programmatic searches of either the public at large or a particular class of regulated but otherwise law-abiding citizens. … When the police stop a motorist at a checkpoint … they intrude upon substantial expectations of privacy. So the Court has insisted on some purpose other than “to detect evidence of ordinary criminal wrongdoing” to justify these searches in the absence of individualized suspicion. Edmond. Once an individual has been arrested on probable cause for a dangerous offense … his or her expectations of privacy and freedom from police scrutiny are reduced. …

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In light of the context of a valid arrest supported by probable cause respondent’s expectations of privacy were not offended by the minor intrusion of a brief swab of his cheeks. By contrast, that same context of arrest gives rise to significant state interests in identifying respondent not only so that the proper name can be attached to his charges but also so that the criminal justice system can make informed decisions concerning pretrial custody. Upon these considerations the Court concludes that DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. …

The judgment of the Court of Appeals of Maryland is reversed.

It is so ordered.

Justice Scalia, with whom Justice Ginsburg, Justice Sotomayor, and Justice Kagan join, dissenting.

The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception. … Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime.

It is obvious that no such noninvestigative motive exists in this case. The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous. And the Court’s comparison of Maryland’s DNA searches to other techniques, such as fingerprinting, can seem apt only to those who know no more than today’s opinion has chosen to tell them about how those DNA searches actually work.

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. … No matter the degree of invasiveness, suspicionless searches are never allowed if their principal end is ordinary crime-solving. A search incident to arrest either serves other ends (such as officer safety, in a search for weapons) or is not suspicionless (as when there is reason to believe the arrestee possesses evidence relevant to the crime of arrest).

Sensing (correctly) that it needs more, the Court elaborates at length the ways that the search here served the special purpose of “identifying” King. But that seems to me quite wrong—unless what one means by “identifying” someone is “searching for evidence that he has committed crimes unrelated to the crime of his arrest.” At points the Court does appear to use “identifying” in that peculiar sense—claiming, for example, that knowing “an arrestee’s past conduct is essential to an assessment of the danger he poses.” If identifying someone means finding out what unsolved crimes he has committed, then identification is indistinguishable from the ordinary law-enforcement aims that have never been thought to justify a suspicionless search. …

The portion of the Court’s opinion that explains the identification rationale is strangely silent on the actual workings of the DNA search at issue here. To know those facts is to be instantly disabused of the notion that what happened had anything to do with identifying King.

King was arrested on April 10, 2009, on charges unrelated to the case before us. That same day, April 10, the police searched him and seized the DNA evidence at issue here. What happened next? Reading the Court’s opinion, particularly its insistence that the search was necessary to know “who [had] been arrested,” one might guess that King’s DNA was swiftly processed and his identity thereby confirmed. …

Nothing could be further from the truth. Maryland officials did not even begin the process of testing King’s DNA that day. …  … Maryland law forbids them to do so. A “DNA sample collected from an individual charged with a crime … may not be tested or placed in the statewide DNA data base system prior to the first scheduled arraignment date.” Md. Pub. Saf. Code Ann. §2–504(d)(1) (Lexis 2011) (emphasis added). And King’s first appearance in court was not until three days after his arrest. (I suspect, though, that they did not wait three days to ask his name or take his fingerprints.)

This places in a rather different light the Court’s solemn declaration that the search here was necessary so that King could be identified. … If the purpose of this Act is to assess “whether [King] should be released on bail,” why would it possibly forbid the DNA testing process to begin until King was arraigned?. … The truth, known to Maryland and increasingly to the reader: this search had nothing to do with establishing King’s identity.

It gets worse. King’s DNA sample was not received by the Maryland State Police’s Forensic Sciences Division until April 23, 2009—two weeks after his arrest. … It was not until August 4, 2009—four months after King’s arrest—that the forwarded sample … was matched with a sample taken from the scene of an unrelated crime years earlier.

A more specific description of exactly what happened at this point illustrates why, by definition, King could not have been identified by this match. The FBI’s DNA database (known as CODIS) consists of two distinct collections. One of them, the one to which King’s DNA was submitted, consists of DNA samples taken from known convicts or arrestees. I will refer to this as the “Convict and Arrestee Collection.” The other collection consists of samples taken from crime scenes; I will refer to this as the “Unsolved Crimes Collection.” The Convict and Arrestee Collection stores “no names or other personal identifiers of the offenders, arrestees, or detainees.” Rather, it contains only the DNA profile itself, the name of the agency that submitted it, the laboratory personnel who analyzed it, and an identification number for the specimen. This is because the submitting state laboratories are expected already to know the identities of the convicts and arrestees from whom samples are taken. (And, of course, they do.)

Moreover, the CODIS system works by checking to see whether any of the samples in the Unsolved Crimes Collection match any of the samples in the Convict and Arrestee Collection. That is sensible, if what one wants to do is solve those cold cases, but note what it requires: that the identity of the people whose DNA has been entered in the Convict and Arrestee Collection already be known. If one wanted to identify someone in custody using his DNA, the logical thing to do would be to compare that DNA against the Convict and Arrestee Collection. … But that is not what was done. And that is because this search had nothing to do with identification.

In fact, if anything was “identified” at the moment that the DNA database returned a match, it was not King. … Rather, what the August 4 match “identified” was the previously-taken sample from the earlier crime. That sample was genuinely mysterious to Maryland. …

That taking DNA samples from arrestees has nothing to do with identifying them is confirmed not just by actual practice (which the Court ignores) but by the enabling statute itself (which the Court also ignores). The Maryland Act at issue has a section helpfully entitled “Purpose of collecting and testing DNA samples.” (One would expect such a section to play a somewhat larger role in the Court’s analysis of the Act’s purpose—which is to say, at least some role.) That provision lists five purposes for which DNA samples may be tested. By this point, it will not surprise the reader to learn that the Court’s imagined purpose is not among them.

Instead, the law provides that DNA samples are collected and tested, as a matter of Maryland law, “as part of an official investigation into a crime.”. …  That is certainly how everyone has always understood the Maryland Act until today. … Even this Court’s order staying the decision below states that the statute “provides a valuable tool for investigating unsolved crimes and thereby helping to remove violent offenders from the general population”—with, unsurprisingly, no mention of identity.(Roberts, C. J., in chambers).

More devastating still for the Court’s “identification” theory, the statute does enumerate two instances in which a DNA sample may be tested for the purpose of identification: “to help identify human remains,” (emphasis added), and “to help identify missing individuals,” (emphasis added). No mention of identifying arrestees. …

The Maryland regulations implementing the Act confirm what is now monotonously obvious: These DNA searches have nothing to do with identification. For example, if someone is arrested and law enforcement determines that “a convicted offender Statewide DNA Data Base sample already exists” for that arrestee, “the agency is not required to obtain a new sample.” But how could the State know if an arrestee has already had his DNA sample collected, if the point of the sample is to identify who he is? Of course, if the DNA sample is instead taken in order to investigate crimes, this restriction makes perfect sense: Having previously placed an identified someone’s DNA on file to check against available crime-scene evidence, there is no sense in going to the expense of taking a new sample. Maryland’s regulations further require that the “individual collecting a sample … verify the identity of the individual from whom a sample is taken by name and, if applicable, State identification (SID) number.” (But how?) And after the sample is taken, it continues to be identified by the individual’s name, fingerprints, etc., —rather than (as the Court believes) being used to identify individuals. (“Records and specimen information shall be identified by … [the] [n]ame of the donor” (emphasis added)).

So, to review: DNA testing does not even begin until after arraignment and bail decisions are already made. The samples sit in storage for months, and take weeks to test. When they are tested, they are checked against the Unsolved Crimes Collection—rather than the Convict and Arrestee Collection, which could be used to identify them. The Act forbids the Court’s purpose (identification), but prescribes as its purpose what our suspicionless-search cases forbid (“official investigation into a crime”). Against all of that, it is safe to say that if the Court’s identification theory is not wrong, there is no such thing as error.

. …

. … The issue before us is not whether DNA can some day be used for identification; nor even whether it can today be used for identification; but whether it was used for identification here.

Today, it can fairly be said that fingerprints really are used to identify people—so well, in fact, that there would be no need for the expense of a separate, wholly redundant DNA confirmation of the same information. What DNA adds—what makes it a valuable weapon in the law-enforcement arsenal—is the ability to solve unsolved crimes. …

. …

The most regrettable aspect of the suspicionless search that occurred here is that it proved to be quite unnecessary. All parties concede that it would have been entirely permissible, as far as the Fourth Amendment is concerned, for Maryland to take a sample of King’s DNA as a consequence of his conviction for second-degree assault. So the ironic result of the Court’s error is this: The only arrestees to whom the outcome here will ever make a difference are those who have been acquitted of the crime of arrest (so that their DNA could not have been taken upon conviction). …

Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane … applies for a driver’s license, or attends a public school. … But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.

I therefore dissent, and hope that today’s incursion upon the Fourth Amendment … will some day be repudiated.

Excerpted by Alex Nobiletti