Applicability of the 4th Amendment

Question 1

What are the steps involved in determining whether a search or seizure is governed by the 4th Amendment?

Answer 1

Was the search or seizure executed by a government agent?

Was the search or seizure of an area or item protected by the Fourth Amendment?

Did a government agent either:

• physically intrude on a protected area or item to obtain information; or
• violate an individual’s reasonable expectation of privacy in a protected area or item?

Did the individual subjected to the search or seizure have standing to challenge the government agent’s conduct?

Question 2

When is an individual considered a government agent?

Answer 2

Publicly paid police definitely are

Private citizens IF acting at the direction of the police

Private security guards IF deputized with the power to arrest

Public school administrators definitely are

Question 3

What are areas or items protected by the 4th Amendment?

Answer 3

Persons

Houses

• includes curtilage–area adjacent to the home to which the activity of home life extends

Papers

Effects

NOTE: textual protected

Question 4

What areas and items are not protected by the 4th Amendment?

Answer 4

Generally, items that suspects knowingly expose to third parties**–**sufficiently “public” in nature that not protected

Specifically:

• paint scrapings on outside of a car
• account records held by banks
• airspace and anything that may be seen below while in public airspace
• garbage left at the curb for collection
• voice
• odors
• handwriting
• open fields and anything that may be seen across one

Question 5

How may searches and seizures by government agents implicate 4th Amendment rights?

Answer 5

The agent(‘s)

• physically intruded on a constitutionally protected area in order to obtain information; or
• search or seizure of a constitutionally protected area violated an individual’s reasonable expectation of privacy

Question 6

How may an individual’s reasonable expectation of privacy be violated?

Answer 6

An actual or subjective expectation of privacy in the area searched or items seized; and

Privacy expectation was one that society recognizes as reasonable

• presumptively unreasonable when use a device that is

1. not in the public use
2. to explore details of the home that officers could not have known without physical intrusion (e.g., thermal imaging)

Question 7

When does an individual have standing to challenge 4th Amendment violations?

Answer 7

Key: individual’s personal privacy rights must be invaded, not those of a third party

Basic Rules:

• own the premises searched
• residing in the premises
• overnight guests in the premises but only for those areas overnight guests can be expected to access
• if they own the property seized, but only if they have a reasonable expectation of privacy in the area from which the property was seized
• NOT for someone else’s residence that use solely for business purposes
• NOT for searches of a vehicle in which they are merely passengers