1.02 IS IT A SEARCH? Flashcards
US CONST. AMEND. IV.
“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 be seized.”
“THE PEOPLE”
Verdugo-Urquidez (1990)
PEOPLE
- US Citizens
- Persons w/Sufficient Connections to US
- People w/n US Boarders
NOT THE PEOPLE
- Foreign Citizens Abroad without Sufficient Connection to the US
“GOVERNMENT ACTION”
Any Federal, State, or Local Government Actor»_space;> Law Enforcement
“SEARCH AND SEIZURE”
Rules for Search and Seizure Have Some Differences
First Question = Did a Search or Seizure Occur?
Second Question = If a Search or Seizure Occurred was it Reasonable / Was there Probable Cause?
Third Question = If a Search or Seizure Occurred Without Legal Justification what is the Remedy?
UNREASONABLE SEARCHES
PRIOR TO Katz (1967) = Trespass
A. POST Katz (1967) = Reasonable Expectation of Privacy
PRINCIPLE: “Fourth Amend. PROTECTS PEOPLE NOT PLACES” Violation of Privacy JUSTIFIABLY RELIED, Stewart, J.
B. POST Jones (2012) and Jardines (2013)
PRINCIPLE: ‘Fourth Amend. Protects (1) PEOPLE AND (2) PROPERTY & PLACES’
A. REASONABLE EXPECTATION OF PRIVACY
Katz (1967) Test
- Citizen’s Subjective Manifestation of Privacy Interest
&
- Society (Objective) is Prepared to Accept Reasonableness, Legitimacy of that Expectation
MEANING
IF “Reasonable Expectation of Privacy” = Judge Has to Sign Off on Government’s Reasons for a Search (Warrant)
“No Reasonable Expectation of Privacy” = Government May Intrude for Any Reason With Impunity
NOTE: Seizures are Different Soldal v.Cook Co. (1992) = Trailer Removed Deputies Watched, Lower Court Determined No Search Occurred, SCOTUS = Privacy NOT Sole Measure
Abandonment = No SUBJECTIVE Expectation of Privacy
Explicate, e.g., Denial of Ownership to Police Inquiry
Constructive, e.g., Failure to Pay Rent for Apartment or P.O. Box
Some Issues Very Fact Specific, e.g., Smith v. Ohio (1990) = Not Abandonment When Put Bag Down on Hood of His Car then Grabbed When Police Approached
B. TRESPASS
Trespass is Never Reasonable, Jones v. US (2012), but is it Trespass at Common Law in 1791?
Jones v. US (2012)
TEST: Katz + C.L. Trespass = “the government obtains information by physically intruding on a constitutionally protected area”
PRINCIPLE: “Fourth Amend. PROTECTS PEOPLE AND PROPERTY AND PLACES” > Katz Alone, Scalia, J.
FACTS: GPS Tracking Device Installed Day After Warrant Authorization Expired, Tracked for 28 Days, SCOTUS = SEARCH
FL v. Jardines (2013)
PRINCIPLE: “Fourth Amend. PROTECTS PEOPLE AND PROPERTY AND PLACES” > Katz Alone, Jones, Scalia, J.
- Home (Background Social Norms D/N Invite Someone to Search > Implied Licenses) > Airport or Traffic Stop
- Intrusive MAY Expose Resident to Public Opprobrium, Humiliation and Embarrassment → Raises Specter of Arbitrary and Discriminatory Application → Does NOT Reach Reasonable Expectation of Privacy
FACTS: Police Suspect Home Marijuana Grow, Approach Front Door w/Sniffing Dog, SCOTUS = SEARCH, Home Protected
STATE OF THE LAW
IS IT A SEARCH =
Reasonable Expectation of Privacy AND Trespass
PLUS
Established Rules on Reasonable Expectations (Not Search vs. Search) Under Katz
OPEN FIELDS = Doctrine of Curtilage
Oliver v. US (1984)
US v. Dunn (1987)
DOCTRINE OF CURTILAGE, Oliver v. US (1984)
“Principle” = Only Property Within “Curtilage” is Protected - NOTE: “an open field need be neither ‘open’ nor a field”
- Facts: Police Ignored Owner’s “No Trespassing Signs” and Fencing … 1791 Would Be Trespass … But Outside Curtilage
FACTORS, US v. Dunn (1987)
(1) Proximity Area to Curtilage;
(2) Whether the Area is Within the Enclosure Surrounding House;
(3) Nature of Uses to Which Area is Put; and (4) Steps Taken by Owner to Protect Area from Observation
REJECTED
Bright Line Rule Limiting Curtilage to Area No Further than the Nearest Fence Surrounding the House
- Facts: Barn Two Levels of Fences, Netting, 50 yrds from Home on 200 Acres, Barn in Separately Fenced Area
TRASH
NO REASONABLE EXPECTATION OF PRIVACY
Trash is Abandoned, Even IF within Curtilage
Prior to Jones, California v. Greenwood (1988)
ACCESS BY MEMBERS OF THE PUBLIC / 3dP
NO REASONABLE EXPECTATION OF PRIVACY
- Party to Conversation (Single Party Wire)
- Quasi-Public Place (Video Surveilled in Windowed Room)
- Biz and Bank Records, Including Subpoena Bank Records
- Pen Registers NOT Content of Comm. / Device
FED. STATUTE Restricts Wire Tap Applications and Surveillance of Electronic Communications
