4th Am Search and Probable Cause Flashcards
rule for retroactive extensions
• general rule: criminal constitutional law decisions do not apply retroactively (Teague)
o however, these decisions DO apply to:
(1) the particular case decided by the USSC in which it announces the new constitutional rule,
(2) future cases,
(3) cases pending before a trial court, and
(4) cases pending before an appellate court, but only those on direct appeal (the first round of appeals before a state appellate court)
• so direct appeal (up through supreme court) is not considered retroactive application, but after that (post-conviction, habeus corpus, etc.) it is considered retroactive, so the new rule can’t be applied
**application in the above circumstances is not considered to be “retroactive”
2 key exceptions to retroactive extensions
• exceptions:
o courts must give retroactive effect to new substantive rules of criminal constitutional law
ex) Lawrence v. TX (where the court has found that the behavior cannot be subject to criminal sanction)
ex) Montgomery v. LA (where certain categories of punishment have been prohibited because of the status of the offender or the nature of the offense)
o courts must give retroactive effect to new “watershed rules of criminal procedure”
where the constitutional change is necessary to prevent an impermissibly large risk of an inaccurate conviction, AND
the constitutional change alters our understanding of the bedrock procedural elements essential to the fairness of a proceeding
**super rare (Usman says if you concluded this, you are likely wrong)
ex) Gideon
3 key search principles - katz
o Katz – General Search & Seizure Principles
(1) the 4th Am protects people, not places
(2) what a person knowingly exposes to the public, even in his own home/office, is not a subject of 4th Am protection – but what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected
(3) warrantless searches are per se unreasonable, and hence unconstitutional under the 4th Am – subject only to a few specifically established and well-delineated exceptions
**note: the Court has since claimed to consistently rely on these principles, but the jurisprudence suggests that they don’t always follow these principles
katz test for search
Katz test (Harlan concur): a search occurs if there is a gov’t intrusion upon a person who has
• (1) a subjective expectation of privacy, AND
• (2) that expectation of privacy is one that society is prepared to recognize as reasonable
o **this is our key point of contention in most cases
jones test for search
Jones test
• (1) a trespass/physical intrusion,
o a physical intrusion can be licensed either through permission or implicitly via being implied from background social norms (Jardines)
even where social norms would allow for some degree of physical intrusion, govt cannot exceed the scope of the authorization (ex – walking to a person’s front door is licensed by social custom, but bringing your drug detecting dog w you is not)
• (2) the trespass/physical intrusion is upon an area enumerated in the 4th Am (persons, houses, papers, or effects), AND
• (3) it occurs with the intent to find something or to obtain info
• distinguish from Karo and Oliver (below):
o Karo accepted the container as it came to him, beeper and all, and was therefor not entitled to object to the beeper’s presence, even though it was used to monitor the container’s location
o Jones, who possessed the Jeep at the time the govt trespassorily inserted the beeper, is on much different footing
o **the govt’s intrusion into an open field is not a search (Oliver), but in Jones, the govt intruded onto the effect at issue here (the truck), which constituted a search
open fields and curtilage doctrines (and how they apply to businesses)
• Open Fields
o open fields doctrine: exploration by gov’t officials of open fields does not constitute a search under the 4th Am (Oliver)
o curtilage doctrine: 4th Am protection of the home extends to the area immediately surrounding the house (Dunn)
Four Factor Test to determine if an area falls within the home’s curtilage:
• (1) the proximity of the area claimed to be curtilage to the home,
• (2) whether the area is included within an enclosure surrounding the home,
• (3) the nature of the issues to which the area is put, AND
• (4) the steps taken by the resident to protect the area from observation by people passing by
• **the factors are not to be applied mechanically – the central question is “whether the area in question is so intimately tied to the home itself that it should be placed under the home’s umbrella”
o rule: the 4th Am extends to business premises, however, an officer going to a place of business as a regular invitee and engaging in actions of a regular invitee is neither a search nor a seizure, no matter the info he gathers
so you can examine the merchandise in the fashion that a prospective customer could be expected to, but you may not exceed the scope of access that would reasonably be afforded a customer
2 main rules for aerial searches
• Aerial Searches
o rule: that an area is within the curtilage does not itself bar all police observation (Ciraolo)
**what a person knowingly exposes to the public (even in the home/office) is not subject to 4th Am protection
o rule: the mere fact that an individual has taken measures to restrict some views of his activities does not preclude an officer’s observations from a public vantage point where he has a right to be and which renders the activities clearly visible (Ciraolo)
i.e. aerial surveil in public airspace is not considered a “search” because any member of the GP could have glanced down and seen what the officers observed
• key points: legal altitude; no special tech
Riley plurality opinions on aerial searches
White plurality: it is not a search if you are in publicly navigable airspace, there was no interference with the normal use of the property, no intimate details were revealed, and there was no undue noise/dust/etc.
O’Connor concur: people should not be required to cover their curtilage from every conceivable angle, that is asking too much of precaution for privacy – a fence is one thing, a roof on the backyard is another
• **the key inquiry should be “whether the heli was at an altitude that members of the public travel with sufficient regularity such that the expectation of privacy is defeated (that someone could legally and conceivably be there is insufficient)
• burden would lie with the Defendant to show that observation from such a vantage point is sufficiently rare
Blackmun dissent: agrees with O’Connor, but would put the burden on the prosecution to show ∆ lacked a reasonable expectation of privacy
rule for thermal imaging
o rule: obtaining by sense-enhancing tech any info regarding the interior of the home that could not otherwise have been obtained without a physical intrusion constitutes a search, at least where the tech in question is not in public use (Kyllo)
**only talking about the home, not curtilage
**the fact that equivalent info could sometimes be obtained by other means does not make lawful the use of means that violate the 4th Am
in the home, all details are intimate details, because the entire area is held safe from prying gov’t eyes
rule for searches of trash
o rule: by depositing garage in an area particularly suited for public inspection (the sidewalk) for the express purpose of having strangers take it, you lose all reasonable expectations of privacy (so wouldn’t constitute a search) (Greenwood)
6 rules for observation & monitoring behavior
o rule: a search extends to the recording of oral statements overheard even without any technical trespass under local ppty law (Katz)
i.e. the Jones test is not the sine qua non of a search
o rule: use of tech (a beeper) to enhance normal sensory surveillance is not a search when it reveals no info other than what could have been obtained visually/audibly (Knotts)
a person travelling in a car on public roadways has no reasonable expectation of privacy in his movements from one place to another
o rule: the govt engages in a search where the govt surreptitiously employs an electronic device to obtain info that it could not have obtained by observation from outside the curtilage of the house (Karo)
a search occurs even if visual observation initially revealed that the article to which the beeper is attached entered the home if subsequent use of the beeper verifies that the article remains on the premises
o rule: the govt conducts a search when it attaches a device to a person’s body, without consent, with the purpose of tracking his movements (Grady)
o rule: a person maintains legitimate and reasonable expectations of privacy in the record of his physical movements (Carpenter)
such as that captured through cell-site location info (CSLI)
**court gave us no bright line time period where this becomes a search, but did stated that 7 days definitely constitutes a search
o rule: physical manipulation of luggage in a way not normally done by baggage handlers/other passengers constitutes a search (Bond)
i.e. when you handle the bag in an “exploratory manner”
rules for conveying info to 3ps
o “false friend” rule: no 4th Am safeguard for an individual’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it (White)
**this lack of protection extends to: circumstances in which the false friend is an undercover agent, that undercover agent is using electronic equipment to record the convo, or the false friend is carrying recording equipment or a device that transmits the comm to be recorded elsewhere
o rule: a person has no legitimate expectation of privacy in info he voluntarily turns over to 3ps (Smith)
ex) pen register (recording which numbers are dialed by a phone) does not implicate the 4th Am because you are voluntarily conveying numerical info to the telephone company and exposing that information to its equipment in the ordinary course of business – therefore, you assume the risk that the company will reveal to the police the numbers you dial
this applies even when the 3p conveys the info to the govt on the assumption that it will be used only for a limited purpose and the confidence placed in the 3p will not be betrayed (Miller)
• ex) Bank Secrecy Act (i.e. govt mandating the keeping of these records) doesn’t protect you from the bank sharing the info with the gov’t
4 rules on drug dogs
o general rule: a drug dog search only reveals contraband and thus you have no reasonable expectation of privacy as to your drugs – these sniffs are also not intrusive and constitute “limited disclosure” (Place)
o rule: law enforcement utilization of well-trained drug detection dogs in public areas to sniff a person’s effects does not constitute a search (Place)
o rule: law enforcement utilization of well-trained drug detection dogs walking around the exterior of the vehicle sniffing the interior thereof during a traffic stop does not constitute a search (Caballes)
o **rule: officers’ authority to seize during a traffic stop ends, however, when the tasks tied to the traffic infraction are – or reasonably should have been – completed, and continuing detention for purposes of allowing a drug sniffing dog to inspect the vehicle constitutes an unconstitutional seizure (Rodriguez)
tasks tied to the traffic infraction include: checking a driver’s license, determining whether there are outstanding warrants against the driver, inspecting the vehicle’s registration and proof of insurance are permitted during a traffic stop
define probable cause
o definition: whether the facts and circumstances before the officer are such to warrant a RPP in believing that the offense had been committed
note: the PC standard is incapable of precise definition/quantification into percentages (Pringle) – it is more than “reasonable suspicion,” but less than “preponderance of the evidence”
4 situations where law enforcement needs PC
o Key Points
(1) law enforcement needs probable cause to get a search warrant (if one is needed)
(2) law enforcement needs probable cause to obtain an arrest warrant
(3) law enforcement needs probable cause to arrest in the absence of a warrant
(4) there are important exceptions to the warrant requirement for which probable cause is required for the police to search and/or seize
