AN OVERVIEW OF SUPREME COURT SEARCH AND SEIZURE DECISIONS FROM THE OCTOBER 1999 TERM
CRS Report for Congress
An Overview of Supreme Court Search and
Seizure Decisions from the October 1999 Term
September 15, 2000
Elizabeth B. Bazan
American Law Division
Congressional Research Service The Library of Congress
An Overview of Supreme Court Search and Seizure
Decisions from the October 1999 Term
In the October 1999 Term, the Supreme Court placed limits on the extent
to which intrusions into reasonable privacy interests in a number of situations may
withstand constitutional muster. Drawing upon Terry v. Ohio, 392 U.S. 1 (1968),
and its progeny, the Court in Florida v. J. L., ___ U.S. ___, 120 S. Ct. 1375 (2000),
held that a stop and frisk may not be justified by an anonymous tip, without more, that
a person in a given location and wearing specific clothes was carrying a gun. Such
a tip merely provided identifying information about the subject, but lacked sufficient
indicia of reliability as to the allegations of criminal activity. In Illinois v. Wardlow,
___ U.S. ___, 120 S. Ct. 673 (2000), the Court found that the headlong flight of a
subject in a high crime area upon seeing police was sufficient to support a stop and
In Flippo v. West Virginia, ___ U.S. ___, 120 S. Ct. 7 (1999), the Court relied
upon Mincey v. Arizona, 437 U.S. 385 (1978), in rejecting a "homicide crime scene
exception" to the warrant requirement of the Fourth Amendment. Finally, in Bond
v. United States, ___ U.S. ___, 120 S. Ct.1462 (2000), the Court found that a bus
passenger had a reasonable expectation of privacy in regard to opaque carry-on
luggage stored above the passenger's seat in an overhead compartment. Physical
manipulation of that luggage by a Border Patrol agent exceeded constitutionally
Florida v. J. L...............................................2
Illinois v. Wardlow..........................................4
Warrant Requirement–Homicide Crime Scene Search....................6
Flippo v. West Virginia.......................................6
Bond v. United States........................................7
Conclusion .................................................... 9
An Overview of Supreme Court Search and
Seizure Decisions from the October 1999 Term
The October 1999 Term afforded the United States Supreme Court an
opportunity to address four search and seizure cases. These cases were Florida v. J.
L., ___ U.S. ___, 120 S. Ct. 1375 (2000); Illinois v. Wardlow, ___ U.S. ___, 120 S.
Ct. 673 (2000); Flippo v. West Virginia, ___ U.S. ___, 120 S. Ct. 7 (1999); and
Bond v. United States, ___ U.S. ___, 120 S. Ct. 1462 (2000). Two of these decisions
involved investigative stops, one dealt with a proposed exception to the Fourth
Amendment warrant requirement, and one dealt with the constitutionality of a luggage
search on a bus. This report will examine these Fourth Amendment1 decisions.
The case that set the cornerstone in the area of investigative stops is the Supreme
Court’s 1968 decision in Terry v. Ohio, 392 U.S. 1 (1968), a case involving a stop
and frisk. In that case, a police officer observed three individuals conducting
themselves in a manner which, based upon the officer’s experience, appeared to
indicate that the individuals were “casing” a store as a possible armed robbery target.
The officer stopped the individuals and identified himself, but did not receive prompt
identification from the men he addressed. He then seized one of the men and patted
down the exterior of his clothes in search of weapons. In doing so, the officer found
a gun. The Court found Fourth Amendment rights implicated in this situation, where
“a police officer accosts an individual and restrains his freedom to walk away.”2 The
Court applied a reasonableness test, looking to whether the officer could point to
“specific and articulable facts which, taken together with rational inferences from
those facts,” that a neutral magistrate would conclude would lead a man of reasonable
caution to believe that possible criminal conduct was involved and that an
investigative stop and frisk were warranted.3 This case and its progeny have given
rise to the requirement that an investigative stop be supported by a reasonable
suspicion of criminal activity. The Court’s analysis in this area has been very fact
specific, examining the totality of the circumstances, and requiring the officer to have
1 The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated; and no
Warrants shall issue but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the persons or things to
2 392 U.S. at 16.
3 392 U.S. at 20-21.
articulable reasons or founded suspicion upon which to base his reasonable suspicion
of criminal activity.4 Two cases from the Court’s past term addressed investigative
Florida v. J. L.
In Florida v. J. L., supra, the Court considered the question “whether an
anonymous tip that a person is carrying a gun is, without more, sufficient to justify a
police officer’s stop and frisk of that person.”5 The Court held that it was not. The
police had received a telephone tip from an anonymous caller that a young black male
wearing a plaid shirt at a specific bus stop was carrying a gun. The call was
apparently not recorded, and no information was available regarding the informant.
After an unknown period of time, two officers were sent to the bus stop in response
to the call. There they found three young black men, one of whom, J. L., was
wearing a plaid shirt. The officers did not observe a firearm. Nor did J. L. make any
threatening or suspicious moves. One of the officers told J. L. to put his hands on the
bus stop, frisked him, and seized a gun from J. L.’s pocket. Although the police had
received no information about the other two young men, they were frisked by the
second officer. Nothing was found.
At the time of the stop and frisk, J. L. was almost 16. He was charged under
state law with possessing a firearm under the age of 18, and with carrying a concealed
firearm without a license. The defendant filed a motion to suppress the gun as the
fruit of an illegal search, and the trial court granted his motion. This decision was
reversed by an intermediate appellate court. The Supreme Court of Florida then
reversed the intermediate appellate court’s decision and held that the search violated
the Fourth Amendment. The Florida Supreme Court found no indicia of reliability in
the facts before it to give rise to a reasonable suspicion of criminal activity. Two of
the justices of the Supreme Court of Florida dissented on the theory that the safety
of the public and the police warranted a “firearm exception” to the general rule
foreclosing stop and frisks based upon an unsupported anonymous tip. The decision
of the Florida Supreme Court was in conflict with decisions in the U.S. Courts of
Appeals for the Seventh Circuit and the District of Columbia Circuit which found that
such investigative stops satisfied the Fourth Amendment’s requirements. The U.S.
Supreme Court granted certiorari and affirmed the Supreme Court of Florida’s
The U.S. Supreme Court noted that here the officers’ suspicion of criminal
activity stemmed solely from an uncorroborated anonymous tip from an unknown
location. The officers had no personal observations to support the suspicion that J.
L. was carrying a firearm. The Court distinguished this situation from that of a tip
from a known informant, “whose reputation can be assessed and who can be held
4 See, e.g., Alabama v. White, 496 U.S. 325, 110 S. Ct. 2412 (1990) (anonymous tip
corroborated by independent police work has indicia of reliability to provide reasonable
suspicion for an investigative stop); United States v. Sokolow, 490 U. S. 1, 109 S. Ct. 1581
(1989) (drug courier profile); United States v. Cortez, 449 U.S. 411 (1981); United States
v. Mendenhall, 446 U.S. 544 (1980).
5 120 S. Ct. 1375, 1377 (2000).
responsible if her allegations turn out to be fabricated, see Adams v. Williams, 407
U.S. 143, 146-147 . . . (1972).”6 The Court noted, however, that while “‘an
anonymous tip alone seldom demonstrates the informant’s basis of knowledge or
veracity,’ Alabama v. White, 496 U.S. at 329 . . ., there are situations in which an
anonymous tip, suitably corroborated, exhibits ‘sufficient indicia of reliability to
provide reasonable suspicion to make the investigatory stop.’ 496 U.S. at 327.”7
In the case before it, the Court found no such indicia of reliability. The call did
not afford the police any predictive information that would give the police a means
of testing the informant’s knowledge or credibility. Nor was this deficiency remedied
by the fact that the search produced a gun. The Court emphasized that:
The reasonableness of official suspicion must be measured by what the officers
knew before they conducted their search. All the police had to go on in this case
was the bare report of an unknown, unaccountable informant who neither
explained how he knew about the gun nor supplied any basis for believing he had
inside information about J. L. If White was a close case on the reliability of8
anonymous tips, this one surely falls on the other side of the line.
In J. L., the Court outlined the degree of reliability of an anonymous tip sufficient
to support a Terry stop. The accuracy of a description of a subject’s “readily
observable location and appearance” is reliable in the limited sense that it will help the
police identify the subject. In supporting an investigative stop, however, it is the
reliability of the tipster’s assertion of criminal activity that is critical.9
The Court in J. L. rejected an argument by the State of Florida and by the United
States as amicus that a “firearm exception” be created to the general standards for
pre-search reliability necessary to justify a stop and frisk. In so doing, the Court
noted that the reliance on “reasonable suspicion” to support a Terry stop instead of
the usual “probable cause” necessary to support other searches was responsive to the
concern over the danger to public safety posed by armed criminals. However, the
Court declined to go further, observing that an automatic “firearms exception” would
make it possible for a person to harass and embarrass another by calling in an
anonymous tip falsely stating that that person was carrying a firearm. The J. L. Court
also noted that once such an exception was in place, it would be difficult to limit it
just to firearms. Nor did J. L.’s age justify the search, for the gun tip was no more
reliable where it involved a person under the age of 21 than it would have been had
it involved an adult.
6 120 S. Ct. at 1378.
8 Id at 1379. White involved an anonymous tip that a woman was carrying cocaine and
predicting that she would leave a particular apartment building at a particular time, get into
a car matching a specific description, and drive to a specified motel. The woman did so. Only
after observing this behavior, did the police have a reasonable basis for believing that the
person providing the tip had some knowledge of the woman’s affairs. However, the Court
noted that that knowledge did not necessarily imply credibility with respect to the information
that she was carrying cocaine. The Court regarded White as a close case.
The Court refused to speculate about circumstances in which an alleged danger
might be so great as to justify a search even without a showing of reliability. A report
of a person carrying a bomb may not require the same indicia of reliability to support
a search that a report of a firearm may require. The Court also noted that its holding
did not foreclose protective searches, in settings such as airports or schools where
there is a diminished expectation of privacy, based on information which would not
justify searches elsewhere. The Court emphasized that “the requirement that an
anonymous tip bear standard indicia of reliability in order to justify a stop in no way
diminished a police officer’s prerogative, in accord with Terry, to conduct a
protective search of a person who has already been legitimately stopped.
Justice Kennedy concurred, observing that there were many possible indicia of
reliability in the context of anonymous tips that have not yet been addressed by the
Illinois v. Wardlow
The other Terry stop case considered by the Court during the past term was
Illinois v. Wardlow, supra. In this case, the Court addressed the question of whether
Wardlow’s unprovoked flight from officers in a heavy narcotics trafficking area
supported a reasonable suspicion that the person fleeing was involved in criminal
activity, thereby justifying an investigative stop. The officers who stopped Wardlow,
Officers Nolan and Harvey, were driving the last of four police cars converging on the
area to investigate illegal drug transactions. The eight officers in the four cars
anticipated encountering a large number of people in the area including drug
customers and lookouts. Officers Nolan and Harvey observed Wardlow standing next
to a building holding an opaque bag. When he saw the officers, Wardlow turned and
fled. When the officers caught up with Wardlow, Officer Nolan did a protective pat
down for weapons, since, in his experience, it was common for weapons to be near
the vicinity of drug transactions. During the frisk, the officer squeezed the opaque
bag Wardlow was carrying and encountered a hard gun-shaped object. Upon opening
the bag, Officer Nolan discovered a .38 handgun and five rounds of live ammunition.
Wardlow was arrested.
He moved to suppress the gun at trial. The trial court denied his motion, finding
the stop and frisk lawful. Wardlow was convicted of unlawful use of a weapon by a
felon. The Illinois Appellate Court reversed, finding that the gun should have been
suppressed, because the officer lacked reasonable suspicion to justify a Terry stop.
The Illinois Supreme Court affirmed the Illinois Appellate Court’s decision, finding
that flight may simply be “an exercise of [a person’s right] to ‘go on one’s way,’ and
. . . could not constitute reasonable suspicion justifying a Terry stop.’”10 The United
States Supreme Court reversed, holding that the stop and frisk in this case did not
violate the Fourth Amendment.11
The Court reviewed the facts above, noting the context in which Officer Nolan
decided to investigate Wardlow after seeing him flee. The Court emphasized that
10 120 S. Ct. 673, 675 (2000).
11 120 S. Ct. at 674.
“[a]n individual’s presence in an area of expected criminal activity, standing alone, is
not enough to support a reasonable, particularized suspicion that the person is
committing a crime,” but the officers may consider the “relevant characteristics of a
location in determining whether the circumstances are sufficiently suspicious to
warrant further investigation.”12 Among those contextual circumstances which may
be considered is the fact that the stop occurred in a “high crime area.” “Nervous,
evasive behavior” is another pertinent factor to be considered. The Court
characterized “headlong flight” as “the consummate act of evasion: it is not
necessarily indicative of wrongdoing, but it is certainly suggestive of such.”13 In the
Court’s view, unprovoked flight is neither a mere refusal to cooperate with police nor
“going about one’s business.”14 A determination of reasonable suspicion is based on15
“commonsense judgments and inferences about human behavior.” In context,
Officer Nolan suspicion that Wardlow was engaged in criminal activity was reasonable
and sufficient to support an investigative stop. While the Court acknowledged that
there may be innocent reasons for flight, in context it was suggestive of criminal
activity, and officers may detain fleeing individuals to resolve such an ambiguity. If,
in investigating further, the officer does not learn facts giving rise to probable cause
that the individual stopped was involved in criminal activity, then that individual must
be allowed to go on his way. Here, the investigative stop revealed evidence of
Justice Stevens, joined by Justices Souter, Ginsburg, and Breyer, concurred in
part and dissented in part. They concurred in the majority’s unwillingness to adopt
either a bright line rule authorizing the temporary detention of anyone who flees at the
sight of a police officer or one holding that flight upon seeing the police can never, by
itself, be sufficient to authorize a Terry stop. However, they differed with the
majority in that those dissenting would not have found the circumstances in the case
before them sufficient to support an investigative stop. Justice Stevens noted a wide
range of possible explanations for a person to flee after seeing a police car. Some
were innocent while others were consistent with criminal wrongdoing. Further, he
noted that some of the innocent circumstances that could precipitate flight were
particularly prevalent in high crime areas. The dissenting justices found both the fact
of unprovoked flight and Wardlow’s presence in a high crime are “too generic and
susceptible of innocent explanation to satisfy the reasonable suspicion inquiry.”16
Justice Stevens emphasized that the burden to articulate facts sufficient to support
reasonable suspicions fell upon the State, and found that the State had failed to carry
12 120 S. Ct. at 676.
13 120 S. Ct. at 676.
14 120 S. Ct. at 676.
15 120 S. Ct. at 676.
16 120 S. Ct. at 684 (Justice Stevens concurring in part and dissenting in part, joined by
Justices Souter, Ginsburg, and Breyer).
Warrant Requirement–Homicide Crime Scene Search
Flippo v. West Virginia
In Flippo v. West Virginia, supra, the Court considered the question of whether
evidence found during a warrantless search of a homicide crime scene should be
suppressed. One night while Flippo and his wife were vacationing in a cabin in a state
park, Flippo called 911 to report that he and his wife had been attacked. Police
responding to the scene found Flippo standing outside the cabin with head and leg
injuries. After questioning him, an officer entered the cabin and found the body of
Flippo’s wife. She had received fatal head wounds. The police closed off the scene,
took Flippo to the hospital, and searched the exterior and the environs of the cabin for
footprints or signs of forced entry. A police photographer arrived at 5:30 the next
morning. The officers then reentered the building and “process[ed] the crime scene,”
spending 16 hours taking photographs, searching the cabin, and collecting evidence.
Among the things found was a closed but unlocked briefcase which, “in the ordinary
course of investigating a homicide,” they opened, finding and seizing a number of
photographs and negatives in an envelope.
Flippo was indicted for his wife’s murder. He moved to suppress the
photographs and negatives, arguing that the police had obtained no warrant, and that
no exception to the warrant requirement applied. The trial court denied his motion
to suppress, approving the search as one of a “homicide crime scene,” stating:
“The Court also concludes that investigating officers, having secured, for
investigative purposes, the homicide crime scene, were clearly within the law to
conduct a thorough investigation and examination of anything and everything
found within the crime scene area. The examination of [the] briefcase found on
the table near the body of a homicide victim in this case is clearly something an17
investigating officer could lawfully examine.” . . . .
Although both the defendant and the prosecutors cited the U.S. Supreme Court’s
decision in Mincey v. Arizona, 437 U.S. 385 (1978), to the trial court, and the State
also placed reliance on the plain view exception to the warrant requirement,18 the trial
court, in denying the motion to suppress, appears to have relied solely on the premise
that after a murder crime scene is secured for investigation, anything and everything
within the crime scene could be searched. The Supreme Court of Appeals of West
Virginia denied discretionary review.
The United States Supreme Court granted certiorari. In a per curiam opinion,
the Court reversed and remanded the lower court decision, finding it in conflict with
the Court’s decision in Mincey v. Arizona, 437 U.S. 385 (1978). A warrant is
17 120 S. Ct. 7, 8 (1999).
18 The plain view doctrine provides, in pertinent part, that objects within the “plain view” of
an officer who has a right to be in the position to see those objects may be seized without a
warrant. See, e.g., Horton v. California, 496 U.S. 128 (1990); Illinois v. Rodriguez, 497
U.S. 177 (1990); Washington v. Chrisman, 455 U.S. 1 (1982); United States v. Santana,
required for a search or seizure under the Fourth Amendment, unless one of the
exceptions to the warrant requirement applies.19 In Mincey, the Court rejected the
position that there was a “murder scene exception” to the warrant requirement under
the Fourth Amendment. As the Flippo Court stated:
We noted that police may make warrantless entries onto premises if they
reasonably believe a person is in need of immediate aid and may make prompt
warrantless searches of a homicide scene for possible other victims or a killer on
the premises, [437 U.S.] at 392 . . ., but we rejected any general “murder scene
exception” as “inconsistent with the Fourth and Fourteenth Amendments– . . . the
warrantless search of Mincey’s apartment was not constitutionally permissible
simply because a homicide had recently occurred there.” [437 U.S.] at 395. . . .20
Mincey controls here.
The Court did not express an opinion as to whether the search of the cabin might be
justified as consensual, an argument raised by the State, because this factual issue was
not suitable for consideration in the first instance by the U.S. Supreme Court. Nor
did the Court express any opinion as to whether any other exception to the warrant
rule might be applicable or as to whether the admission of the evidence might be
harmless error. Such matters, if properly raised, were to be resolved on remand. The
case was reversed and remanded for further proceedings not inconsistent with the
Bond v. United States
The final Fourth Amendment case decided by the Court in the October 1999
term was Bond v. United States, supra. In Bond, the Court examined the issue of
whether a law enforcement officer’s physical manipulation of a bus passenger’s carry-
on luggage violated the Fourth Amendment.”21 The Court held that a Fourth
Amendment violation had occurred.
Bond was a passenger on a Greyhound bus en route from California to Little
Rock, Arkansas. The bus stopped at the permanent Border Patrol checkpoint at
Sierra Blanca, Texas. A Border Patrol agent entered the bus to check the immigration
status of the passengers. The agent, having reached the back of the bus and having
determined that the passengers were lawfully in the United States, then began
walking to the front of the bus. As he proceeded forward, the agent squeezed the soft
carry-on luggage that the passengers had placed in the overhead storage space above
their seats. When he squeezed a green canvas bag in the compartment above Bond’s
seat, the agent encountered a “brick-like” object. Bond admitted the bag was his and
permitted the agent to open it. The agent found a “brick” of methamphetamine
wrapped in duct tape and rolled in a pair of pants.
19 120 S. Ct. at 8, citing Katz v. United States, 389 U.S. 347, 357 (1967).
20 120 S. Ct. at 8.
21 120 S. Ct. 1462, 1463 (2000).
Bond was indicted for conspiracy to possess and possession with intent to
distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1). He moved to
suppress the drugs as fruits of an illegal search. The district court denied his motion.
He was convicted and sentenced. On appeal, Bond conceded that other passengers
on the bus had access to his bag. However, he argued that the agent had manipulated
the bag in a way that the passengers would not have. The Court of Appeals rejected
his argument, finding the fact that the agent’s manipulation of the bag was calculated
to detect contraband irrelevant for Fourth Amendment purposes, citing the Supreme
Court’s 1986 decision in California v. Ciraolo, 476 U.S. 207 (1986).22
The United States Supreme Court granted certiorari and reversed, distinguishing
the visual observation in Ciraolo, supra, and in Florida v. Riley, 488 U.S. 445
(1989), from tactile inspection in the case before it. The Court deemed the latter
more intrusive than the former. The Court noted that travelers use their carry-on
luggage to transport personal items that they prefer to keep close at hand. The Court
found two questions to be central to its Fourth Amendment analysis: Whether the
defendant has shown that he sought to preserve something private, and whether the
individual's expectation of privacy was one that society is prepared to recognize as
reasonable.23 In answering the first of these questions, the Court noted that Bond had
attempted to preserve privacy by use of an opaque bag placed in the overhead
compartment above his bus seat. As to the second, the Court observed that a bus
passenger placing a bag in the overhead bin expects that other passengers or bus
company employees may move it around, but not that they will, as a matter of course,
feel the bag in an exploratory manner. The Court held the agent's physical
manipulation of the bag unconstitutional under Fourth Amendment precepts.
Justice Breyer dissented, joined by Justice Scalia, finding that the degree of
physical manipulation of his carry-on luggage by the agent in the case before the
Court was no more intrusive than that which a bus passenger might expect from
fellow passengers or bus employees. The dissent noted further that, in determining
what expectation of privacy is reasonable in a given situation, the purpose of the
intrusion is irrelevant; rather the critical factor is the effect of that intrusion. Justice
Breyer regarded the majority opinion in Bond as a departure from established Fourth
Amendment jurisprudence, and as a decision which would have a detrimental effect
on law enforcement efforts to detect drugs in border searches while doing little to
further legitimate privacy interests.
22 In Ciraolo, the Court held that police observation of a backyard from a plane flying at
1,000 feet did not violate a reasonable expectation of privacy. Similarly, the Court in Florida
v. Riley, 488 U.S. 445 (1989), relied on Ciraolo in holding that police observation from a
helicopter flying at 400 feet of a greenhouse in a home’s curtilage was not violative of the
Fourth Amendment. The Court based these decisions on the theory that the property was “not
necessarily protected from inspection that involves no physical invasion,” and that, in each
case, the defendant’s expectation of privacy was neither reasonable nor one that society was
prepared to honor. 488 U.S. at 449.
23 120 S. Ct. at 1465.
In the October 1999 Term, the Supreme Court placed limits upon the extent to
which intrusions into reasonable privacy interests may withstand constitutional muster
in a number of areas. Drawing upon Terry v. Ohio, supra, and its progeny, the Court
in Florida v. J. L., supra, held that a stop and frisk may not be justified by an
anonymous tip, without more, that a person in a given location and wearing specific
clothes was carrying a gun. Such a tip merely provided identifying information about
the subject, but lacked sufficient indicia of reliability as to the allegations of criminal
activity. In Illinois v. Wardlow, supra, the Court found that the headlong flight of a
subject in a high crime area upon seeing police was sufficient to support a stop and
In Flippo v. West Virginia, supra, the Court, relying upon its 1978 decision in
Mincey v. Arizona, supra, rejected a "homicide crime scene exception" to the warrant
requirement of the Fourth Amendment. Finally, in Bond v. United States, supra, the
Court found that a bus passenger had a reasonable expectation of privacy in regard
to opaque carry-on luggage stored above the passenger's seat in an overhead
compartment. Physical manipulation of that luggage by a Border Patrol agent
exceeded constitutionally permissible grounds.