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March 1991


                 EMERGENCY SEARCHES OF EFFECTS                        


                       John Gales Sauls                                

               Special Agent and Legal Instructor

                         FBI Academy

                     Quantico, Virginia



     A police department receives an anonymous tip that a bomb

is concealed in a package addressed to a foreign embassy located

in its jurisdiction.  The package has been sent via a package

delivery service.  The police contact the delivery service,

which has five packages addressed to the embassy.  The police

converge on the delivery service, immediately subject each

package to X-ray examination, and seize one package that appears

to contain explosives.  This package is then taken to a safe

disposal area, where it is opened, and the explosive device is

disarmed.  No warrant is obtained for the X-ray examination, the

seizure, or the search performed when the package is opened.

     Other officers of the department receive a tip that a

package arriving by bus contains a large quantity of cocaine.

The tipster provides a description of the package, including the

name of the addressee.  Officers locate the package at the bus

station and detain it for several minutes until a trained drug

detection dog is able to sniff it. (1)  The dog alerts, and the

police maintain a surveillance until a man comes to claim the

package.  The man is held while the police open the package,

discovering the cocaine.  The man is then arrested.  No warrant

was obtained for the search of the package or the man's arrest.

     In each of these situations, officers have made on-the-spot

decisions to conduct searches and seizures without warrants.  In

the prosecutions that follow, the defendants will likely

challenge the admissibility of the seized evidence, claiming it

was obtained in violation of their constitutional rights.

Because the searches and seizures were performed without

warrants, the burden of establishing their legality will rest

upon the government. (2)

     What emergency circumstances justify an officer searching

or seizing, without a warrant, items of personal property

effects? (3)  This article seeks to answer that crucial question

through an exploration of the "emergency" or "exigent

circumstances" exception to the fourth amendment warrant

requirement. (4)

     Courts commonly recognize three threats as providing

justification for emergency warrantless action--danger to life,

danger of escape, and danger of destruction or removal of

evidence.  The presence of any one of these threats may provide

justification for a warrantless search or seizure of personal

property.  There are different legal standards for emergency

action based upon danger to life and that involving the danger

of escape or destruction of evidence.  Awareness of the type of

emergency present in a particular situation is the key to

correct on-the-spot decisions.

     This article will first examine U.S. Supreme Court and

lower court decisions considering the legality of warrantless

searches of effects based upon suspected threats to life.  It

will focus on the legal standard for such emergency searches and

the circumstances courts commonly deem sufficient for

establishing a threat to life and the allowable scope of action

for dealing with that threat.  The article will then examine

cases involving warrantless searches of effects based upon

emergency threats of destruction or removal of evidence.


     The fourth amendment protects persons in the United States

from "unreasonable" searches or seizures of their effects. (5)

The U.S. Supreme Court, in determining what government

intrusions are reasonable under the fourth amendment, has

expressed an emphatic preference for searches and seizures made

pursuant to judicially issued warrants. (6)  As the Court has

stated, the "Constitution requires that the deliberate,

impartial judgment of a judicial officer be interposed between

the citizen and the police... [and] searches conducted outside

the judicial process, without prior approval by a judge or

magistrate, are per se unreasonable under the Fourth Amendment

subject to a few specifically established and well-delineated

exceptions." (7)

     In most situations then, a "reasonable" search or seizure

is one performed with a valid warrant.  Consequently, for fourth

amendment purposes, "reasonable" is a legal term with a

meaning different from that attached to the word as it is

commonly used.  There are exceptions to the warrant

requirement--"reasonable" warrantless searches and seizures--

but these exceptions are created not by what a police officer

might believe to be reasonable but by a court's assessment of

necessity.  The "exceptions are `jealously and carefully

drawn,' and there must be `a showing by those who seek exemption

[from the warrant requirement]...that the exigencies of the

situation made that course imperative' "(citations omitted).

(8) The Court has recognized the need to provide for emergency

situations "...where the societal costs of obtaining a warrant,

such as danger to law officers or the risk of loss or

destruction of evidence, outweigh the reasons for prior recourse

to a neutral magistrate," (9) but the government bears the

burden of showing the warrantless action was necessary. (10)


     Because of the high value our society places on life, a

circumstance that has a profound impact on the reasonableness of

a warrantless search or seizure is whether such action is taken

to neutralize a suspected threat to human life.  The U.S.

Supreme Court has stated that "[t]he Fourth Amendment does not

require police officers to delay in the course of an

investigation if to do so would gravely endanger their lives or

the lives of others." (11)  In fact, the Court has approved a

lower standard of proof--reasonable suspicion--for justifying

warrantless searches based upon a perceived danger to life, so

long as the action taken is no greater than necessary to

eliminate the danger. (12) Therefore, where a warrantless search

or seizure is made in response to a perceived threat to life,

the government must be prepared to show that at the time of the

action:  1) Facts were known that would cause a reasonable

person to suspect that prompt action was necessary to protect

human life; and 2) that the action taken was no more intrusive

than necessary to eliminate the suspected threat.

Suspected Presence of Dangerous Instrumentalities

     In Michigan v. Long, (13) two officers patrolling a country

road late at night saw a car being driven erratically and at

excessive speed.  Before they could stop the car, it turned onto

a side road and swerved into a ditch. (14)  Mr. Long, the sole

occupant of the car, met the officers at its rear.  The driver's

door was left open.  After two requests, Long produced his

driver's license, and after a second request for the vehicle's

registration, he started walking toward the open driver's door.

The officers followed, and before Long could enter the car, they

saw a large hunting knife on the car's floorboard.  Now

suspecting that Long might have weapons on his person, the

officers stopped him and performed a patdown search. (15)  This

search revealed no weapons.  Suspecting that there might be

other weapons in the car, one officer shined his flashlight into

the interior, saw a pouch protruding from beneath the center

armrest, and entered the car and raised the armrest to examine

it.  The pouch was open and contained marijuana.  This discovery

prompted Long's arrest.

     In assessing the reasonableness of this warrantless entry

and limited search of Long's car, the Supreme Court approved the

officers' actions, noting both the factual justification for

suspecting the presence of weapons and the circumscribed nature

of their search. (16)  The Court held that where officers

reasonably suspect the presence of readily accessible deadly

weapons in a lawfully stopped vehicle, they may make a limited

search of the vehicle's interior for the purpose of locating and

controlling the weapons. (17)  In performing such a search,

officers must restrict their examination to those places where

readily accessible weapons might be concealed. (18)

     The officers in Long were able to protect themselves and

the public with a cursory search of the car's interior.

Different facts will support a search with a broader scope.  For

example, in Cady v. Dombrowski, (19) the Supreme Court assessed

the legality of a search of the trunk of an arrestee's car that

had been impounded and stored at an unsecured private lot.  The

car's owner was arrested for murder, and after the car had been

towed from the arrest scene, the police learned facts causing

them to suspect that a handgun might be in the car.  Officers

went to the private lot where the car was located and found a

revolver (which was later determined to be the murder weapon) in

the car's trunk.  In approving the reasonableness of this

warrantless search, the Court cited its "...concern for the

safety of the general public who might be endangered if an

intruder removed a revolver from the trunk of the [unsecured,

unattended] vehicle." (20)

     The interior of a suitcase, (21) briefcase, (22) handbag,

(23) or package suspected to contain a dangerous instrumentality

may also be searched without a warrant where necessary to

protect persons.  For example, in United States v. Sarkissian,

(24) officers had reason to believe that explosives were

concealed in luggage arriving on a commercial airline flight.

Suitcases unloaded from the plane were sniffed by a dog trained

in detecting explosives and examined by X-ray.  A suitcase,

appearing on X-ray to contain explosives, was opened and

searched.  These warrantless actions were held reasonable based

upon the peril posed by unsecured explosives.

     In United States v. Miller, (25) a limited search of the 

interior of a purse was approved as a reasonable protective

measure.  On a day Miller's husband was to be arraigned for a

felony, she entered the courtroom with a coat draped over her

arm concealing a large handbag.  She sat near the rear of the

courtroom along the center aisle, where her husband, who was in

custody, would soon be walking.  She rested her hand upon her

partly opened bag.  A marshall, aware of these facts and having

been informed that a report had been received that Miller's

husband might attempt an escape, opened Miller's bag further,

locating a firearm.  In holding the marshall's actions

reasonable under the fourth amendment, the court noted that,

coupled with the report that an escape might occur,

"...Miller's concealment of her handbag upon entry, the

strategic seat she selected, and the convenient placement of her

open bag made reasonable the belief that she might be armed." (26)

Suspected Presence of Information Crucial to Preserving Life      

     Officers occasionally are confronted with facts that cause

them to reasonably suspect that information necessary to

preserve the life of a person is contained in an effect.  For

example, in United States v. Dunavan, (27) officers responded to

a report of a disabled car that had set the grass beneath it on

fire.  In the driver's seat, they found Dunavan, who was

"foaming at the mouth and unable to talk." (28)  Dunavan was

rushed to the hospital, and the officers then sought to

determine the cause of his malady in the hope of providing

information that would aid in his treatment.  In the course of

this effort, they opened two briefcases belonging to Dunavan,

revealing evidence of crime.  This action was held to be a

reasonably limited search responsive to the emergency at hand.


     In addition to danger to life, the U.S. Supreme Court has

also recognized the danger of destruction or removal of evidence

as embodying exigent circumstances sufficient to justify

warrantless action. (29)  In regard to effects, the action

permissible to prevent the destruction or removal of evidence is

substantially less than that allowed to protect life.

Generally, only a warrantless seizure of an effect will be

allowed to preserve evidence, not a warrantless search of the

effect's contents.

     The factual justification required to support a warrantless

seizure of an effect to prevent the destruction or removal of

evidence depends on the extent of control exercised by the

government over the item.  The Supreme Court has recognized two

distinct types of seizures of effects:  1) Temporary detention,

which requires a showing of reasonable suspicion to believe the

item contains evidence or contraband; and 2) a more absolute

seizure, which must be justified through a showing of probable

cause to search the interior of the item for evidence or


Temporary Detention of Effects

     In United States v. Place, (30) the Supreme Court approved

temporary detention by the police of luggage reasonably

suspected (31) to contain illegal drugs.  Place was an airline

traveler who aroused the suspicion of police based upon his

appearance, travel itinerary, and conduct.  Officers took

Place's two suitcases from him, stating that they would seek a

search warrant for the bags.  They then transported the

suitcases from New York's La Guardia Airport to Kennedy Airport,

where they were sniffed by a trained drug detection dog 90

minutes after the seizure.  Although the Court approved the

initial seizure of Place's suitcases, it held the seizure

ultimately involved too great an interference in Place's

possessory interest in his property to be reasonable.  Citing

the length of time of the seizure as unnecessarily long, the

Court also noted "...the failure of the agents to accurately

inform [Place] of the place to which they were transporting his

luggage, of the length of time he might be dispossessed, and of

what arrangements would be made for the return of the luggage if

the investigation dispelled the suspicion." (32)  This holding

is premised, in part, on the fact that luggage frequently

contains necessities to which travelers need ready access.  Less

lengthy temporary seizures of luggage have been upheld as

reasonable. (33)

     Other types of effects may be detained for greater periods

of time without the seizure becoming unreasonable.  For example,

in United States v. Van Leeuwen, (34) the Supreme Court upheld as

reasonable a detention of a mailed package that lasted several

hours.  In United States v. LaFrance, (35) a 4-hour detention of a

package shipped via Federal Express was approved.  These

decisions are founded on the premise that the sender or

addressee of a package shipped or mailed has a substantially

reduced expectation of ready access to that item. (36)

Probable Cause Seizures

     The goal of a temporary detention of an effect is the 

development of facts amounting to probable cause to search that 

item.  This is accomplished through investigation performed 

during the period of temporary detention, and in drug cases,

frequently includes the use of drug detection dogs.  Once

probable cause to search has been established, a more absolute

seizure becomes reasonable. (37)  Officers may take control of

the effect to prevent the destruction or removal of evidence for

a reasonable period while application is made for a search

warrant. (38)  This allows them to protect the evidence until

judicial authorization may be obtained to open the item and

examine its contents.


     Returning to the hypothetical situations presented at the

beginning of this article, in each case, the officers were

confronted with circumstances they believed required an

immediate search.  The officers who reasonably suspected that a

bomb was present in a package bound for an embassy needed to

verify or dispel the suspicion as quickly as possible to prevent

unnecessary danger to life.  The warrantless actions they

performed--the X-ray examinations followed by the opening of the

package that appeared to contain explosives--were appropriate

based upon reasonable suspicion and were reasonably limited to

accomplish their purpose, that is, eliminating the threat posed

by the explosives.

     The officers investigating the suspected drug activity were

also justified in performing certain prompt warrantless actions.

Their initial seizure was lawful, based upon their reasonable

suspicion that the package contained illegal drugs.  The canine

sniff was also lawful, since it was promptly accomplished.

However, once probable cause to search was established, the

emergency threat of removal or destruction of evidence could

have been eliminated merely by taking control of the package

pending issuance of a search warrant.  Consequently, the

examination of the contents of the package without a warrant was

not a valid emergency search. (39)


     This article has set out requirements for emergency

searches and seizures of effects based upon:  (1) Threats to

life; and (2) threats of destruction of evidence.  Because the

scope of warrantless action allowed under the fourth amendment

differs depending upon the category of emergency threat

involved, it is essential that officers considering the

lawfulness of a proposed emergency search evaluate the type of

threat presented.  Once that determination is made, the

appropriate legal standard may be applied to the facts known.

Where warrantless searches and seizures are necessary, clear

awareness of the type and nature of the threat involved will

also facilitate limitation of the scope of the warrantless

action to only that which is necessary to eliminate the threat.


     (1)  For an excellent discussion of the legal issues

associated with the use of drug detection dogs, see Kingston,

"Hounding Drug Traffickers:  The Use of Drug Detection Dogs,"

FBI Law Enforcement Bulletin, August 1989, pp. 26-32.

     (2)  McDonald v. United States, 335 U.S. 451 (1948); Katz v. 

United States, 389 U.S. 347 (1967).                               

     (3)  The fourth amendment to the U.S. 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...."  Effects include such personal 

property as packages, suitcases, handbags, etc., as well as 


     (4)  For a discussion of emergency searches of premises, see 

Sauls, "Emergency Searches of Premises," FBI Law Enforcement 

Bulletin, Part I, March 1987, pp. 23-30, Conclusion, April 1987, 

pp. 24-30.  For a discussion of emergency searches of persons, 

see Sauls, "Emergency Searches of Persons," FBI Law Enforcement 

Bulletin, January 1988, pp. 24-30.                                

     (5)  See, e.g., Arkansas v. Sanders, 442 U.S. 753 (1979).        

     (6)  See Katz v. United States, supra note 2.                    

     (7)  Id. at 357.                                                 

     (8)  Coolidge v. New Hampshire, 403 U.S. 443, 445 (1971).        

     (9)  Supra note 5, at 759.                                       

     (10) Supra note 2.                                              

     (11) Warden v. Hayden 387 U.S. 294, 298-99 (1967).              

     (12) Maryland v. Buie, 110 S.Ct. 1093 (1990); Michigan v. 

Long, 463 U.S. 1032 (1983); Terry v. Ohio, 392 U.S. 1 (1968).  

The U.S. Supreme Court has yet to decide whether reasonable 

suspicion is the standard by which the reasonableness of all 

danger to life emergency searches should be measured.  The Court 

has stated, however, that probable cause is not always the 

standard by which the legality of a search should be measured, 

even where the search constitutes a substantial intrusion into a 

person's privacy.  See New Jersey v. T. L.O., 469 U.S. 325, 

340-41 (1984).                                                    

     (13) 463 U.S. 1032 (1983).                                      

     (14) For a discussion of the legal issues associated with 

vehicle stops, see Sauls, "Traffic Stops:  Police Powers Under 

the Fourth Amendment," FBI Law Enforcement Bulletin, Part I, 

September 1989, pp. 26-31; Conclusion, October 1989, pp. 27-32.   

     (15) For an excellent discussion of investigative detention 

and frisk searches, see Hall, "Investigative Detention:  An 

Intermediate Response," FBI Law Enforcement Bulletin, Part I, 

November 1985, pp. 25-31; Part II, December 1985, pp. 18-23; 

Conclusion, January 1986, pp. 23-29.                              

     (16) Supra note 13, at 1051.                                    

     (17) Id.                                                        

     (18) Id.  The scope of such a search includes the interior of 

unlocked containers that might conceal deadly weapons.  See 

United States v. Williams, 626 F.2d 697 (9th Cir. 1980), cert. 

denied, 449 U.S. 1020 (1980) (purse in suspected bank robber's 

car that was suspected to contain a bomb); United States v. 

Glenna, 878 F.2d 967 (7th Cir. 1989) (suitcase in van suspected 

to contain a bomb); United States v. Longmire, 761 F.2d 411 (7th 

Cir. 1985) (purse in car suspected to contain deadly weapons); 

United States v. Williams, 822 F.2d 1174 (D.C. Cir. 1987) 

(tactile examination of exterior of paper bag in car suspected to 

contain deadly weapons).                                          

     (19) 413 U.S. 433 (1972).                                       

     (20) Id. at 447.                                                

     (21) United States v. Sarkissian, 841 F.2d 959 (9th Cir. 1988).  

See also, United States v. Pulido-Baguerizo, 800 F.2d 899 (9th 

Cir. 1986).                                                   

     (22) United States v. McClinnhan, 660 F.2d 500 (D.C. Cir. 1981).  

McClinnhan is noteworthy for its discussion of the dilemma faced 

by an officer who has reasonable suspicion that a dangerous 

instrumentality is contained in an effect, but who has no way of 

verifying or dispelling his suspicions other than an examination 

of the interior of the effect.  Seizing the effect will not 

neutralize the dangerous instrumentality, and no warrant can be 

obtained since the suspicions do not rise to the level of 

probable cause to search.  Consequently, a prompt examination of 

the effect's interior is the least intrusive measure to 

neutralize the threat.                                            

     (23) United States v. Miller, 468 F.2d 1041 (4th Cir. 1972), 

cert. denied, 410 U.S. 935 (1972).                                

     (24) Supra note 21.                                             

     (25) Supra note 23.                                             

     (26) Id. at 1045.                                               

     (27) 485 F.2d 201 (6th Cir. 1973).                              

     (28) Id. at 202.                                                

     (29) See Schmerber v. California, 384 U.S. 757 (1966); Vale v. 

Louisiana, 399 U.S. 30 (1970).                                    

     (30) 462 U.S. 696 (1983).                                       

     (31) For examples of facts held to constitute reasonable 

suspicion that contraband is present, see United States v. 

Sokolow, 109 S.Ct. 1581 (1989); United States v. Sharpe, 105 

S.Ct. 1568 (1985).                                                

     (32) Supra note 30, at 710.                                     

     (33) See, e.g., United States v. Pantazis, 816 F.2d 361 (8th 

Cir. 1987); United States v. Alpert, 816 F.2d 958 (4th Cir. 


     (34) 397 U.S. 249 (1970).                                       

     (35) 879 F.2d 1 (1st Cir. 1989).                                

     (36) See also, United States v. Hillison, 733 F.2d 692 (9th 

Cir. 1984), approving a 9-hour warrantless seizure of a mailed 


     (37) United States v. Place, supra note 30.                     

     (38) Although considerable latitude is generally allowed, at 

least some diligence in promptly applying for a search warrant is 

required.  See United States v. Dass, 849 F.2d. 414 (9th Cir. 


     (39) Since the officers have acted without a warrant, as a 

practical matter, the officers and their prosecutor should 

consider the potential application of other exceptions to the 

warrant requirement, such as Search Incident to Arrest.  These 

considerations, however, are beyond the scope of this article.    



     Law enforcement officers of other than Federal jurisdiction 

who are interested in this article should consult their legal 

adviser.  Some police procedures ruled permissible under Federal 

constitutional law are of questionable legality under State law 

or are not permitted at all.                                      


                         LEGAL BRIEF                                   

                   MINNICK V. MISSISSIPPI                                

                U.S. SUPREME COURT DECISION                                       


     On December 3, 1990, in Minnick v. Mississippi, the Supreme 

Court established a new rule concerning the interview of 

in-custody suspects who have asserted the right to consult with 

counsel.  In a 6-2 ruling (Justice Souter not participating), the 

Court held that "when counsel is requested, interrogation must 

cease, and officials may not reinitiate interrogation without 

counsel present, whether or not the accused has consulted with 

his attorney."                                                   

     Minnick and a companion escaped from a county jail in 

Mississippi and committed a house burglary looking for weapons.  

They were surprised by the arrival of the occupants of the house 

and murdered two of them.  Minnick fled and was ultimately 

apprehended in California 4 months after the murders.  FBI Agents 

sought to interview Minnick in jail in California.  Minnick was 

advised of his Miranda rights, and though he refused to sign a 

written waiver, agreed to answer some questions.  During the 

interview, Minnick told the Agents he would make a full 

statement in a few days when his lawyer was present.  The Agents 

then terminated the interview.  Three days later, an investigator 

for the State of Mississippi sought to interview Minnick in 

California.  Again, Minnick declined to sign a written waiver of 

his Miranda rights, but agreed to talk with the investigator.  

Statements given to the investigator led to Minnick's prosecution 

and conviction for murder.                                        

     Minnick challenged the admissibility of his statements, 

claiming that his invocation of his right to counsel to the FBI

Agents precluded his subsequent waiver of rights given to the

Mississippi investigator, even though he had consulted with his

court-appointed counsel on two or three occasions in the

interim.  The Mississippi Supreme Court in Minnick ruled that

once a suspect has consulted with his attorney, the suspect may

thereafter be contacted, waive his rights, and be interviewed by

the police.

     In reversing the Mississippi Supreme Court, the U.S.

Supreme Court established a bright-line rule barring

police-initiated interviews following an invocation of the right

to counsel by an in-custody suspect.  The Court ruled the actual

presence of counsel is necessary before police-initiated

interrogation may resume and that a bright-line rule prohibiting

reinterrogation of a suspect who has requested counsel without

the presence of his attorney would best protect the fifth

amendment privilege against self-incrimination.  In addition, a

bright-line rule approach saves judicial resources otherwise

expended in making determinations of voluntariness and provides

specificity for police, prosecutors, and suspects as to

acceptable police practice.

     The Court's rule announced in Minnick does not disturb the

previous holding that if a suspect initiates the dialogue with

the police, a valid waiver and confession may follow.  Minnick

specifically recognizes that courts may still find a "a waiver

of Fifth Amendment protections after counsel has been requested,

provided the accused has initiated the conversation or

discussions with the authorities."

     Minnick is a significant change in the law of confessions

and interrogations.  Police officers should be aware of this

expansion of the right to counsel in custodial interrogations

and the need to ensure the presence of an attorney if

police-initiated reinterrogation is desired after an initial

invocation of the right.


     This legal brief was written by Special Agent Jeffrey 

Higginbotham, a legal instructor at the FBI Academy in Quantico,