1 Chapter 11 Evidence is Admissible if Obtained During an Administrative Function Under the “Special Needs” of Government Evidence is Admissible if Obtained During an Administrative Function Under the “Special Needs” of Government

2 “Special needs” search & seizure issues “Special needs” search & seizure issues Special needs of the government to ensure public safety Special needs of the government to ensure public safety Special “regulatory” needs Special “regulatory” needs Private businesses are NOT covered by the 4th Amendment provisions. Private businesses are NOT covered by the 4th Amendment provisions.

3 Examples of “Special” searches Security Screening at Airports, Courthouses, and public buildings or places Security Screening at Airports, Courthouses, and public buildings or places Border searches, customs, and INS Border searches, customs, and INS Roadblocks, DUI “Checkpoints” Roadblocks, DUI “Checkpoints” Drug trafficking? K-9’s? Drug trafficking? K-9’s? Fire, Health, Motor Vehicle, Education, and Housing Inspections Fire, Health, Motor Vehicle, Education, and Housing Inspections

4 Circumstances where special needs would justify suspicion-less highway stops Detecting drunk drivers Detecting drunk drivers Verifying driver’s licenses and vehicle registration Verifying driver’s licenses and vehicle registration Intercepting illegal aliens on border highways Intercepting illegal aliens on border highways Apprehending fleeing criminals Apprehending fleeing criminals Thwarting terrorist activity or attack Thwarting terrorist activity or attack

5 In 1987, the U.S. Supreme Court held that… In 1987, the U.S. Supreme Court held that… “Probable cause standard is peculiarly related to criminal investigations” and “Probable cause standard is peculiarly related to criminal investigations” and “may be unhelpful in analyzing the reasonableness of routine administrative functions.” “may be unhelpful in analyzing the reasonableness of routine administrative functions.” Evidence is admissible if obtained during an administrative function under the “Special Needs” of government

6 Thousands of administrative searches and functions are conducted every day by local, state, and federal employees. Thousands of administrative searches and functions are conducted every day by local, state, and federal employees. The majority of these employees are not law enforcement officers. The majority of these employees are not law enforcement officers. They are not conducting criminal investigations but are conducting administrative functions that are related to the special needs of the government and the community. They are not conducting criminal investigations but are conducting administrative functions that are related to the special needs of the government and the community.

7 Examples of searches without probable cause or search warrants of “Closely regulated businesses” Search warrants are generally required for the administrative searches of commercial properties. However, search warrants are not required for searches of “closely regulated” industries. Search warrants are generally required for the administrative searches of commercial properties. However, search warrants are not required for searches of “closely regulated” industries.

8 U.S. Supreme Court in 1987 case of New York v. Burger, 482 U.S.691, 107 S.Ct requirements are needed: 1. There must be a “substantial” government interest that informs the business operator of the “regulatory scheme” to which the inspection is to be made. 2. The inspection without a search warrant must be “necessary to further the regulatory scheme.”

9 3. The regulatory law must perform the two basic functions of a search warrant (a) It must advise the business owner that a search is to be made pursuant to the law. (b) The law must limit the discretion of the inspecting officers.

10 Drug Testing? With or without “reasonable suspicion?” With or without “reasonable suspicion?” Private businesses may test employees without it! Private businesses may test employees without it! Government employees must be tested under three conditions, with reasonable suspicion: Government employees must be tested under three conditions, with reasonable suspicion: To ensure that the employee has “unimpeachable integrity and judgment” To ensure that the employee has “unimpeachable integrity and judgment” To enhance public safety To enhance public safety Protecting truly sensitive information Protecting truly sensitive information

11 School-Related Drug Testing School boards may require random drug testing of student athletes. School boards may require random drug testing of student athletes. They may also require random drug testing of students participating in extracurricular activities. They may also require random drug testing of students participating in extracurricular activities.

12 Work-Related Searches in Government Offices Private employers may make work-related searches of employees’ desks, files, and company-owned computers as they wish. Private employers may make work-related searches of employees’ desks, files, and company-owned computers as they wish. Public supervisors have wide latitude to search public employee’s offices, desks, and files without a search warrant or probable cause. Public supervisors have wide latitude to search public employee’s offices, desks, and files without a search warrant or probable cause.

13 Ortega Rule Work related searches in public safety or government offices Work related searches in public safety or government offices Wide latitude to search, but... Wide latitude to search, but... Greater justification needed to search “personal items” Greater justification needed to search “personal items” Briefcase, handbag, backpack, etc. Briefcase, handbag, backpack, etc.

14 Identification Checkpoints in Public Housing Projects Due to excessive illegal drug use and associated violence, residents are issued identification cards and may be stopped, usually at the entrance to a housing project. Due to excessive illegal drug use and associated violence, residents are issued identification cards and may be stopped, usually at the entrance to a housing project. More and more states are holding that these checkpoints are a violation of the Fourth Amendment. More and more states are holding that these checkpoints are a violation of the Fourth Amendment.

15 Border Searches In U.S. v. Arnold (9 th Cir., 2008), the court held that federal border agents did not need particular suspicion to view laptop computer files. In U.S. v. Arnold (9 th Cir., 2008), the court held that federal border agents did not need particular suspicion to view laptop computer files.

16 Sham Roadblocks These roadblocks have been upheld by the courts. These roadblocks have been upheld by the courts. Law enforcement may post fake notices about drug checkpoints so motorists will discard drugs and be observed doing so by law enforcement officers. Law enforcement may post fake notices about drug checkpoints so motorists will discard drugs and be observed doing so by law enforcement officers.

17 Correctional Programs, Hearings These and other requirements may cause prison inmates to incriminate themselves. These and other requirements may cause prison inmates to incriminate themselves. In U.S. v. Knight (2002), the Supreme Court held that persons on probation and parole had diminished privacy interest. In U.S. v. Knight (2002), the Supreme Court held that persons on probation and parole had diminished privacy interest. Therefore, officers were justified to stop and search based on reasonable suspicion that the person was engaged in criminal activity. Therefore, officers were justified to stop and search based on reasonable suspicion that the person was engaged in criminal activity.

18 However, in Samson v. CA (2006), the Supreme Court held that law enforcement officers may conduct suspicionless searches of parolees, as they are still under the “control” of the prison system. However, in Samson v. CA (2006), the Supreme Court held that law enforcement officers may conduct suspicionless searches of parolees, as they are still under the “control” of the prison system.

19 Obtaining Evidence in Foreign Countries This is especially important for finding and prosecuting terrorists. This is especially important for finding and prosecuting terrorists. It is also extremely difficult in some jurisdictions. It is also extremely difficult in some jurisdictions. MLATs (Mutual Legal Assistance Treaties) are used to obtain evidence in a number of countries. MLATs (Mutual Legal Assistance Treaties) are used to obtain evidence in a number of countries.