4A: Searches Flashcards
Definition of a search
When government conduct violates a person’s reasonable expectation of privacy:
(1) Through physical intrusion upon private property, e.g., a drug-sniffing dog or a GPS device on a car; or
(2) Without physical invasion, e.g., using thermal imaging on a house to detect marijuana cultivation.
Reasonable expectation of privacy
There is a reasonable expectation of privacy in one’s:
(1) homes;
(2) hotel rooms;
(3) offices;
(4) luggage; and
(5) backyards, also referred to as “curtilage.”
There is not a reasonable expectation of privacy in:
(1) public streets;
(2) open fields, even if they are private property;
(3) garbage cans left in the street; or
(4) abandoned property.
Reasonable expectation of privacy: prison inmates
Although prison inmates possess many constitutional rights, the Fourth Amendment right to be free from unreasonable search and seizure is less stringent in the prison context.
A pretrial detainee may have a limited expectation of privacy in his cell, but a convicted prison inmate has no reasonable expectation of privacy in his cell.
The limitations on Fourth Amendment rights are justified by the need to maintain institutional security and preserve internal order and discipline.
School searches
A search conducted by local public school personnel of a student must be based on reasonable suspicion that the search will produce evidence that the student is or has violated school rules.
It must also be reasonable in its scope in light of the student’s age and gender and the nature of the infraction.
This standard applies to strip searches as well as other less intrusive types of searches.
Reasonable expectation of privacy: air space
An inspection conducted from the air at a height of at least 400 feet—even if it inspects areas covered by the “umbrella” of a residence’s 4A protection, e.g., curtilage—does not violate a reasonable expectation of privacy.
Technology not available to the general public
It is a search when the government uses a device or sense-enhancing technology—e.g., a thermal sensing device—that is not in use by the general public to explore the details of a dwelling that would previously have been unknowable without physical intrusion.
Reasonable expectation of privacy: third-party doctrine
People who voluntarily give information to third parties—such as banks, phone companies, internet service providers (ISPs), and e-mail servers—have no reasonable expectation of privacy in such information.
Reasonable expectation of privacy: open fields
By its terms, the Fourth Amendment is limited to “persons, houses, papers and effects”—it does not extend to open fields.
Whether a location is an open field does not turn on whether the owner of the field has taken measures to keep it private, but on whether such expectations of privacy are objectively reasonable.
For activities conducted outdoors, a person generally has no reasonable expectation of privacy.
DNA swabs
When officers make an arrest supported by probable cause and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is a legitimate police booking procedure that is reasonable under the Fourth Amendment.
Reasonable expectation of privacy: voice and handwriting samples
It is not search if the government asks for a handwriting or voice sample, as an individual does not have an expectation of privacy in either.
Reasonable expectation of privacy: curtilage
In determining whether the area is protected as “curtilage,” the following four-factor test applies:
(1) the proximity of the area to the home;
(2) whether the area is included within an enclosure surrounding the home;
(3) the nature of the uses to which the area is put; and
(4) the steps taken by the resident to protect the area from observation by passersby.
