Fourth Amendment (General Requirements)

Question 1

Fourth Amendment

Answer 1

Protects the people and their papers, houses, and effects from unreasonable searches and seizures and requires particularized warrants that are supported by probable cause.

Question 2

Requirements for Invocation of Fourth Amendment

Answer 2

Include:

• Government Action
• Expectation of Privacy
• Standing
• Substantial Nexus

Question 3

Government Action

Answer 3

The amendment applies only to the government, not private conduct.

Question 4

Government Action: Agents

Answer 4

When the actor is an agent of the federal, state, or local government, the Fourth Amendment applies.

Question 5

Government Action: Directed Acts

Answer 5

When a private party acts at the direction of a government agent or pursuant to an official policy, any search conducted and evidence seized is subject to Fourth Amendment scrutiny.

Question 6

School Searches (Gov Actors?, Standard?)

Answer 6

Public school officials acting pursuant to an official policy constitutes gov. action. However, public school officials only need reasonable suspicion to conduct a student search.

Question 7

Standing

Answer 7

A criminal D must have standing to raise a Fourth Amendment claim. If one does not have standing, evidence will not be excluded.

Question 8

What Is Required for Standing?

Answer 8

The D asserting the Fourth Amendment violation must personally be the victim of the police’s unreasonable conduct (violation cannot be vicariously asserted). An ownership or possessory interest in the premises is sufficient.

Question 9

Standing of Car Passengers

Answer 9

A passenger in an automobile lacks standing to challenge the validity of a search of the vehicle (mere presence is not enough). However, a car passenger does have standing to challenge a police stop of an automobile (because their person has been seized).

Question 10

Standing of Guests of Another’s Home

Answer 10

A D who is an overnight guest in another’s home has standing. However, short-term guests, non-overnight social guests and commercial guests have no reasonable expectation of privacy in a host’s home.

Question 11

Expectation of Privacy

Answer 11

A person must have a legitimate expectation of privacy in the invaded place or else there is no standing.

Question 12

Substantial Nexus

Answer 12

There must be a fairly substantial nexus between the D and the place searched.

Question 13

What is a Search Under the Fourth Amendment?

Answer 13

A search is a legal term of art that requires analysis of where and how the government sought to gather evidence. Remember that a search may occur by just touching something.

Question 14

Katz Test (Reasonable Expectation of Privacy Test)

Answer 14

When the defendant manifests a subjective expectation of privacy by making an effort to shield a thing or activity from the public and society is willing to recognize that expectation as objectively reasonable.

Question 15

Holding Out to the Public

Answer 15

A D does not have a reasonable expectation of privacy in things held out in the public.

Question 16

Specific Items with No Expectation of Privacy

Answer 16

All of the below items are considered exceptions because they involve a voluntary choice to disclose info. Include:

• Handwriting exemplars
• Bank records
• Pen registers (which telephone numbers dialed)
• Conversations with a false friend (snitch) believed to be private but actually recorded
• Discarded items (such as commingled garbage or abandoned realty)

Question 17

Cell-Site Information

Answer 17

The SC has held that there is a reasonable expectation of privacy for cell-site location issue because there is no genuine voluntary choice to share such information. Therefore, police access to cell site location info is a search.

Question 18

Searches: Naked Observations in the Air

Answer 18

Naked-eye observations from above do not invoke the Fourth Amendment. This even applies to private property where the owner has taken steps to bar view from observations passersby.

Question 19

CL Trespass Test

Answer 19

When the government’s conduct results in a physical trespass against his person, home, paper, or effects (chattel property). The CL Trespass test does not look at whether property has been exposed to the public.

Question 20

Searches: Open Fields

Answer 20

Any unoccupied or undeveloped area outside of the curtilage is not entitled to Fourth Amendment protection. Therefore, a trespass into such areas is not a search.

Question 21

Searches: Curtilage

Answer 21

An area that intimately tied to the home, therefore, it is considered a part of the home. As a result, searches of the curtilage violate the Fourth Amendment unless there is a warrant or an exception.

Question 22

Searches: Devices Not in Public Use

Answer 22

When the gov uses a device or tech that is not available to the general public that enables them to observe the interior of a private home the surveillance is considered a search and is presumptively unreasonable without a warrant.

Question 23

Searches: Police Dogs

Answer 23

• Generally, a canine search does not constitute an unreasonable search unless the canine physically intrudes upon a constitutionally protected area (e.g. home or the curtilage).
• Police may also allow drug-sniffing dogs to sniff a car during traffic stops but they cannot prolong traffic stops to wait for drug-sniffing dogs to inspect the vehicles.

Question 24

Seizure of Items

Answer 24

Government action that results in a meaningful interference with a possessory interest. Taking control of property is a seizure. But simply touching it or placing an item on it (e.g. beeper) is not a seizure.

Question 25

Seizure of Persons

Answer 25

When police interaction with a person would indicate to a reasonable person in that situation that they would not feel free to leave or terminate the police encounter, the individual has been seized. Usually indicated by application of physical force or a show of authority followed by submission.