1. Search and Seizure - Issue One

Question 1

For the Fourth Amendment to apply, there must be an affirmative answer to four key questions:

Answer 1

1. Was the search or seizure executed by a government agent?
2. Was the search or seizure of an area or item protected by the Fourth Amendment?
3. Did a government agent either (a) physically intrude on a protected area or item to obtain information; or (b) violate an individual’s reasonable expectation of privacy in a protected area or item?
4. Did the individual subjected to the search or seizure have “standing” to challenge the government agent’s conduct?

Question 2

Gouvernement agents that can violate the Fourth Amendment

Answer 2

1. Publicly paid police, on or off duty;
2. Private citizens, if (and only if) they are acting at the direction of the police
3. Private security guards, but only if they are deputized with the power to arrest
4. Public school administrators, e.g., principals; vice-principals

Question 3

The Fourth Amendment expressly protects individuals from unreasonable searches and seizures of their:

Answer 3

1. Persons (i.e., bodies);
2. Houses (including hotel rooms);
3. Papers (e.g., personal correspondence); and
4. Affects (personal belongings, e.g., purses,
   backpacks, cars)

Question 4

Unprotected Items

Answer 4

P Physical characteristics (e.g., the sound of your voice, the style of your handwriting)

O Odors that emanate from your car or your luggage

G Garbage left at the curb for collection

O Open fields: anything that can be seen in or across the open fields

F Financial records held by a bank

A Airspace: anything that can be seen below when flying in public airspace

P Pen registers: devices that list the telephone numbers someone has dialed

Question 5

There are two ways in which searches and seizures by government agents can implicate an individual’s Fourth Amendment rights:

Answer 5

1. Trespass-based test: The agent physically intruded on a constitutionally protected area in order to obtain information;
2. Privacy-based test: The agent’s search or seizure of a constitutionally protected area violated an individual’s reasonable expectation of privacy.

Question 6

To satisfy the privacy-based test, an individual must show:

Answer 6

(1) an actual or subjective expectation of privacy in the area searched or items seized; and
(2) that the privacy expectation was be “one that society recognizes as reasonable.”

Question 7

When does a D have standing to challenge the lawfulness of a search or seizure by a government agent?

Answer 7

To have authority, or “standing,” to challenge the lawfulness of a search or seizure by a government agent, an individual’s personal privacy rights must be invaded, not those of a third party.

Question 8

Does a search or seizure by a government agent implicate individuals’ reasonable expectation of privacy so as to confer “standing” if they neither own nor reside in the premises searched, but they are overnight guests there?

Answer 8

Always, as to areas overnights guests can be expected to access

Question 9

Does a search or seizure by a government agent implicate individuals’ reasonable expectation of privacy so as to confer “standing” if they neither own, nor reside, nor are staying overnight but are merely using someone else’s residence solely for business purposes?

Answer 9

No

Question 10

Does a search or seizure by a government agent implicate individuals’ reasonable expectation of privacy so as to confer “standing” if they own the property seized?

Answer 10

Only if they have a reasonable expectation of privacy in the area from which the property was seized

Question 11

Does a search or seizure by a government agent implicate individuals’ reasonable expectation of privacy so as to confer “standing” if they are passengers in cars?

Answer 11

Not as to searches of the automobile, since they do not have a reasonable expectation of privacy in a vehicle in which they are “merely passengers”

NY Distinction: Passengers in cars can challenge the
possession of weapons, if possession is attributed
to them.