4th Amendment--What is a search?

Question 1

4th Amendment

Answer 1

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.

Question 2

Right of the people

Answer 2

US v. Verdugo: The right of the people refers to being a part of the national community. In order to be protected by the 4th amendment, an alien must have a substantial connection to the US.

Question 3

4th Amendment protections

Answer 3

Are against searches & seizures conducted only by government officials.

Question 4

4th Amendment warrant requirement

Answer 4

You need a warrant before you can search. If there is an exception, the search must be reasonable.

Question 5

Exclusionary Rule

Answer 5

Has been read into the 4th Amendment, will exclude evidence from the case. (No remedies are stated in the amendment).

Question 6

2 4th Amendment Clauses

Answer 6

Warrant Clause–Probable cause (courts struggle w/this) Reasonable Clause–Must be reasonable (warrant exception)

Question 7

Katz v. US

Answer 7

P attached a recording device to a public phone booth to listen to Ds conversations about illegal gambling. D claimed violation of 4th amend. No violation.
Rule: The 4th amend protects people not places. (Protection does not depend on physical intrusion).

Question 8

Harlan Test for Reasonable Expectation of Privacy

Answer 8

1. Does the government’s conduct offend the citizen’s subjective expectation of privacy?
2. Is society prepared to recognize the privacy interest as legitimate or reasonable?

Question 9

2 Questions to ask about searches

Answer 9

1. Was there a search?

2. Was the search okay (physical intrusion)?

Question 10

Harlan’s Critique

Answer 10

1. Test is circular. If government enacts laws restricting privacy, citizens will expect less.
2. Privacy expectations change w/society & technology.
3. Reasonable could be substituted for judge’s preference. `

Question 11

From Katz to Jones (Guiding Notions to Searches)

Answer 11

1. It is NOT a search for police officers to see or hear things that ordinary citizens could lawfully hear.
2. It is NOT a search if an individual voluntarily turns over info to a 3rd party and the police obtain that info through police techniques.
3. It IS a search if the police use technology to gather information about interior of the home that could not have been obtained w/out physical intrusion.
4. It IS a search if police use sophisticated equipment to see or hear beyond the sense range of ordinary citizens.

Question 12

US v. Jones

Answer 12

D was a suspect of drug trafficking. P obtained a warrant to place GPS on Ds jeep, but places it outside of the warrant restrictions. D claims violation of 4th amendment. Violation.
Rule: The warrantless placement of a GPS tracking device on the undercarriage of an individual’s vehicle in order to track the person’s movements on public streets constitutes an unlawful search in violation of the Fourth Amendment.

Question 13

Jones Test

Answer 13

Was there a trespass or physical intrusion into a constitutionally protected area in order to obtain information?

Question 14

Jones: Pervasive & prolonged (goes against 3rd party doctrine)

Answer 14

Alito’s Dissent (Support of 5 others): Violates the reasonable expectation of privacy test in Katz.

Question 15

Sotomayor Concurrence–Jones

Answer 15

Would have qualified as a search under Katz. This would allow gov’t to put together little pieces of info to create a file on someone & would change how people act.

Question 16

Florida v. Jardines

Answer 16

Dog Sniff before warrant: Searching the curtilage of the home qualifies for 4th amend protection.
Rule: People have an implied license to walk up to your door, but no implicit license to investigate.

Question 17

Caveats to: It is NOT a search for police to see or hear things the ordinary citizens could lawfully see or hear

Answer 17

1. Trespass for investigation (Jones)
2. Extended surveillance (Alito in Jones)
3. Tactile searches (Bond)
4. Info that normally wouldn’t be gather by the public
   a. snow melting (Kyllo)
   b. searches from helicopter (Riley)
   c. tactile searches (Bond)

Question 18

Caveats to: Third Party Doctrine: It is NOT a search if an individual voluntary turns over info to a 3rd party and the police obtain that info through police techniques.

Answer 18

An extended search in which the gov uses the info in an unexpected way. (Jones Concurrence)

Question 19

Caveats to: It IS a search if the police use tech to gather info about interior of the home that could not have been obtained w/o physical intrusion into con area OR if the police use sophisticated equipment to see or hear beyond the sense of range of ordinary citizens.

Answer 19

1. Not search if the equipment merely tells the police what others have observed (can be hypothetical). (But Jones Concurrence)
2. Not search if technique just tells the police whether a person committed a crime. (But Jardines)

Question 20

Katz & Jones: Was there a search?

Answer 20

1. Did the government’s actions interfere w/the individual’s reasonable expectation of privacy? (Katz)
2. Did the government’s action involve a trespass (or physical intrusion) on a person, home, or effect w/the intent to gather information? (Jones)

Question 21

Was there a search under either Katz or Jones?

Answer 21

1. If yes, then did the gov comply w/the provisions of the 4th amend?
2. If no, then the gov conduct can be arbitrary. It is not governed by the 4th amend.

Question 22

Abandoned Property

Answer 22

Holds no privacy or possessory interest, no standing to assert 4th amend issue. Must show D intended to abandon prop.

Question 23

Hester v. US: Prior to Katz

Answer 23

Open fields were not const protected areas.

Question 24

Oliver v. US

Answer 24

A person does not have a legitimate expectation of privacy in an open field beyond the curtilage (there is no societal interest in protecting the privacy of the cultivation of crops that occur in open fields).
Fences, trespassing signs, barbwire do not effectively bar public from viewing.

Question 25

US v. Dunn

Answer 25

Curtilage–4 factors: 1. The proximity of the area to home

2. Whether area is included w/in an enclosure surrounding the home
3. The nature of the uses to which area is put
4. Steps taken by resident to protect area.

Question 26

Third Party Doctrine

Answer 26

The fact that D has transferred property or info to a 3rd person may indicate that he no longer has a reasonable expectation of privacy w/respect to that property.

Question 27

US v. White

Answer 27

Gov informer carrying a radio transmitter engaged the D in conversations that were overheard by an agent using a radio receiver. No search,
Rule: Assumption of risk: A person doesn’t have an expectation of privacy if they admit to people about crimes b/c person doesn’t know if 3rd party could turn over that info.

Question 28

US v. Gonzalez

Answer 28

Officers were tipped of drug shipment by mail to hospital & obtained consent to install video surveillance. No search.
Rule: No reasonable expectation of privacy in public room w/large windows accessed frequently buy hospital employees

Question 29

Bank Records Rule

Answer 29

No search. 3rd party doctrine applies to financial records. A person doesn’t have an expectation of privacy when they turn over record to a 3rd party (D assumes risk info will be conveyed by 3rd party to gov). US v. Miller. ( Consider: Sotomayer: suggests may be time to reconsider these & other 3rd party cases)

Question 30

Smith v. Maryland: Pen Register

Answer 30

No search. 3rd part doctrine applies to phone records. A person using a phone doesn’t have a reasonable expectation of privacy w/respect to numbers being called.

Question 31

Carnivore & Computers

Answer 31

FBI developed computer surveillance program monitoring activity over the internet
Full collection mode, search
Pen collection mode: no search, only content associated w/email, web browsing, file transfer) no search b/c accessible by internet service provider.

Question 32

California v. Greenwood

Answer 32

P asked sanitation worker to collect Ds garbage bags & look through them.
Rule: A person has no legitimate expectation of privacy in their trash b/c animals & the public have access to them.
If gov ask person to do something becomes agent of gov and qualifies for 4th amend protection.

Question 33

Aerial Surveillance Rule

Answer 33

There is no expectation of privacy if an officer visually observes from a place he has a right to be. D doesn’t have a reasonable expectation of privacy w/regard to parts of his yard that can be seen from a legal over-flight.

Question 34

Florida v. Riley: Helicopter Hovering

Answer 34

Concurrence evidences possibility of change: Proper test: Whether the public ordinarily had access to the info sought by the police, not whether it was legally possible for a member of the public to obtain it.

Question 35

Tactile Searches

Answer 35

Bond v. US: Manipulation of bags is search when it goes beyond what would be expected by members of the public.

Question 36

Kyllo v. US

Answer 36

P uses thermal imager tech b/c suspected P of growing pot. D uses imager to obtain warrant.
Rule: It is a search if the police obtain info about the interior of the home that couldn’t have been obtained w/o a physical intrusion at least where tech isn’t in common use.
a. Protection of the home is superior. Must preserve degree of privacy in the home.
b. Focuses on the tech used (advanced). Crossed line when observed things inside the home.

Question 37

US v. Knotts

Answer 37

Gov placed a beeper on a container of chemicals w/consent from the owner. Tracked D while he had the container in his car.
Rule: Not a search if tech merely accompanies a persons ordinary senses. A person doesn’t have an expectation of privacy in his movements from one place to another. (Exception to guiding notion #3).

Question 38

Guiding Notion #1 exceptions: Info that would not ordinarily be gathered by the public

Answer 38

Tactile searches (Bond)
Searches of melting snow on home (Kyllo)
Searches from helicopter (Riley)

Question 39

Factor affecting whether search w/tech outside of home will be a search

Answer 39

a. steps taken to preserve privacy
b. whether there has been a physical intrusion
c. nature of activity observed
d. extent to which tech enhances the senses
e. extent to which tech is generally available

Question 40

Canine Sniffs: US v. Place

Answer 40

P seized Ds luggage & performed a dog sniff 90 minutes later. Unreasonable Detention
Rule: Terry allows a P to BRIEFLY detain a Ds luggage to investigate circumstances.
a. A person’s effects may not be unreasonably detained.
b. D should be told when and where to get belongings back or realistically stay w/them & police

Question 41

Canine Sniffs: Illinois v. Caballes

Answer 41

D pulled over for routine traffic stop. Another officer hears report on radio & brings dog to scene. Dog detects drugs in trunk officers search & seize, stop took 10 mins.
Rule: 4th amend does not require reasonable, articulable suspicion to administer a canine sniff test during a routine traffic stop.
a. Stop may not be unreasonably prolonged
b. Police conduct must intrude upon individual legitimate interest b4 considered a search.
c. Sniffs are sui generis b/c unlikely to present anything other than drugs & no legitimate interest in possessing drugs.

Question 42

Private Searches: US v. Jacobsen

Answer 42

FedEx opens damaged box finds white powder calls DEA and DEA conducts field test & determines cocaine. DEA gets warrant for address on box search & arrest D. D says suppress evidence on grounds warrant was product of illegal search.
Rule: A gov activity which is preceded by a private party’s intrusion is not a search b/c activity remained w/in scope of private search & did not infringe upon any legitimate expectation of privacy.
a. On-the-spot testing of a package’s contents by a gov agent was not tantamount to a 4th amend search (no privacy interest in illegal substance.)

Question 43

Canine Sniffs

Answer 43

Caballes & Place say dogs sniffs generally seen as search b/c no privacy interest in anything illegal BUT SC has not yet decided if a dog sniff is okay at the home.
Jardines says curtilage (outside of home protected) but apartment hallways are more of a common area.

Question 44

Private Searches: Walter v. US

Answer 44

FBI agents care in possession of a previously opened box of obscene movies & screened the films.
Rule: The screening of a package is a separate search when it exceeds the scope of a private search.
a. Cannot go further than the private citizen.

Question 45

Private Searches: Illinois v. Andreas

Answer 45

Airport customs agents initially searched and resealed a package containing marijuana & delivered it to Ds under controlled conditions.
Rule: Plain view & customs search are exceptions to warrant requirement & a delivery to D does not revive privacy expectation in hallway of Ds home b/c controlled delivery (High prob of no change in package contents).