Fourth Amendment -- General / Search

Question 1

What happens when a search or seizure occurs without a warrant?

Answer 1

Warrantless searches and seizures are presumed unreasonable.

Question 2

Does the 4 A apply to international searches?

Answer 2

No, it only applies to searches in the U.S.

Question 3

Who does the 4 A protect against?

Answer 3

The 4 A only protects against Government Action or people working for the government [e.g., undercover cops or CIs].

Question 4

What are the 4 steps of a 4 A analysis?

Answer 4

1. Was it a search/seizure?

[THE OFFICER NEEDS TO BE LEGALLY JUSTIFIED TO BE IN THE PLACE WHERE HE WAS.]

2. Was there a valid warrant?
3. If no warrant, was there a valid exception?
4. Is there an applicable remedy?

Question 5

How to analyze whether something is a technical search under the 4 A?

Answer 5

A search can occur by other the rule set forth in Katz or the rule set forth in Jones/Jardines, OR BOTH.

Question 6

When does a search occur according to Katz?

Answer 6

A search can occur when there is:

1. a subjective expectation of privacy; and
2. that expectation of privacy is a reasonable one that society wants to and ought to protect from gov’t intrusion without a warrant.

Question 7

When does a search occur according to Jones/Jardines?

Answer 7

A search can occur when there is a physical trespass onto a constitutionally protected area.

The Jones fact pattern said putting a GPS on a car [aka a chattel] is considered a physical trespass.

The Jardines fact pattern said sniffing is a physical trespass.

Question 8

How to analyze whether something is a technical seizure under the 4 A?

Answer 8

Pursuant to Mendenhall, a seizure can occur when a reasonable person in the situation of the suspect would not feel free to leave.

A consensual encounter is not a seizure and must be justified by voluntariness (or absence of coercion, Bustamonte).

Question 9

What is the analysis for determining if there is a valid warrant?

Answer 9

A valid warrant must be issued by a “detached & neutral magistrate.”

The magistrate will analyze the affidavit to see if there’s PC. PC can be found when there is a “fair probability that contraband or evidence will be found.”

Question 10

What is the scope of a search warrant?

Answer 10

The scope of the search:

1. must be particular as to place searched & items to be discovered: and
2. there must be a nexus between things sought & place searched (no looking for stolen TV in a jewelry box).

Question 11

How do you execute a warrant?

Answer 11

You Knock & Announce, but if they police fail to K&A there is no violation.

Question 12

What is the scope of an arrest warrant?

Answer 12

SIA — Grabbable Area

Plain View

Protective Sweep

Question 13

What are the exceptions to a warrant?

Answer 13

1. Exigent Circumstances — Hot Pursuit
2. SIA
   1) Grabbable Area (Chimel)
   2) Passenger Compartment (Gant)
   3) Person & Containers
3. Plain View — Must plainly announce illegality
4. Automobile
5. Terry
6. Special Needs

Question 14

What remedy follows if an invalid search or seizure occurs?

Answer 14

Exclusionary Rule.

Only certain people can assert the ER.

Question 15

What places are not protected by the 4 A?

Answer 15

A person is not protected by the 4 A for things that they knowingly expose to the public. Area’s that are considered public are:

1. Open field;
2. Technology;
3. Aerial Searches;
4. Confidential Informant; and
5. Trash

Need to ask, does the O have a LAWFUL reason to be in the place he’s in? Is the place or technology used to gather information accessible to public?

Question 16

What places are considered constitutionally protected?

Answer 16

1. House
2. Curtilage

Question 17

How are open fields treated?

Answer 17

There can be no expectation of privacy in an open field.

Open field does not include the HOME nor the CURTILAGE.

Question 18

What are the Dunn Factors?

Answer 18

Apply these factors for determining if something is an open field.

1. Proximity: How close is the area to the home?
2. Presence of Enclosure: Within an enclosure surrounding the home?
3. Nature of Use: What is the area used for?
4. Effort to Hide: Steps taken to protect area from observation by passer-bys

Question 19

Is trespassing onto land not deemed curtilage or the home a search?

Answer 19

In U.S. v. DUNN,

Os believed drugs in barn. Farm had wire fences and was 1/2 mile from road. Os entered without a warrant. Os went into small barn first and bigger barn and saw drug lab. Eventually, they got a warrant. Crt held that the barn was outside of curtilage and not subject to 4 A protection.

TRESPASSING ONTO LAND NOT DEEMED HOME OR CURTILAGE IS NOT A SEARCH.

Question 20

Can O’s do a preview search without a warrant?

Answer 20

Os went to farms to investigate narcotics tip. At the farm they saw a LOCKED GATE with “no trespass” sign, and someone told them it was private property. Agent walked past the gate and onto property w//o a warrant. While searching they saw MJ and used that evidence as PC to get a warrant to further search the property.

HOLDING: OS ARE ALLOWED TO DO A PREVIEW SEARCH WITHOUT A WARRANT,

Question 21

How are Aerial Searches treated?

Answer 21

Whether an aerial search is valid depends on:

1. the height of the search; and
2. Whether it was legal airspace.

If you are flying within FAA regulations then naked-eye observations of curtilage is NOT A SEARCH.

Question 22

Is an aerial view of curtilage a search?

Answer 22

A naked eye observation of a fenced-in backyard within a home’s curtilage from an aircraft at 1000 feet is not a search because, “in an age where private and commercial flight in the public airways is routine, it is unreasonable for D to expect MJ was constitutionally protected.”

Question 23

Is an aerial view of a mobile home made at 400 feet a search?

Answer 23

A Helicopter flown at 400 feet over D’s partially covered greenhouse located near mobile home and made naked-eye observations of MJ.

HOLDING: no search occur because a member of the public could have positioned themselves in the aircraft and made the same observations. The flight was within FAA regulations and did not interfere with normal use of the greenhouse.

Question 24

Colorado v. Polock

Answer 24

A search from a helicopter 200 ft in the air over D’s property and observing MJ plant WAS HELD TO BE A SEARCH.

Question 25

How are Dog sniffs treated?

Answer 25

A dog sniff itself is a not a search. However, you are not allowed to UNREASONABLY detain someone and THEN perform a dog sniff.

Question 26

Is dog sniffing luggage a search?

Answer 26

Dog sniffing luggage altering is not searching. This is because the dogs only alert when there are narcotics and there is no right to hide illegal substances, so no breach of privacy.

Question 27

Is a dog sniff that occurs once a traffic stop is over a search?

Answer 27

Dog sniff traffic stop. If the traffic stop is over then dog sniff is unconstitutional. Dog sniff itself is not the issue, its that you are being detaind longer than necessary.

Generally, the stop should end once they return your license, registration and they give you a warning or ticket . . .

If after that, the officer has said you have to stay beyond that’s likely a unlawful seizure.

Question 28

Is a dog sniff that occurs while trespassing onto curtilage a search?

Answer 28

Jardines held that trespassing on curtilage of home to perform a dog sniff is a search.

In Jardines, there was a tip of a MJ growing operation. Os brought dog to the porch and in front of door to sniff. Dog alerted.

Holding: The use of trained police dogs to investigate the home and its immediate surroundings is a ‘search.’

Question 29

How qualified does the dog have to be to rely on the dog sniff?

Answer 29

Lawful traffic stop and a dog was sniffing the outside of the car. Dog alerted. Issue was how qualified the dogg needs to be for the dog’s alert give PC. Evidence of a dog’s satisfactory performance in a certification or training program is sufficient.

Question 30

How is trash treated?

Answer 30

Trash is not constitutionally protected.

Question 31

Is there a REP in one’s trash?

Answer 31

Trash collector can turn over trash to government at their request and it would not constitute a search. “it is common knowledge that garbage bags left on the side of the street are readily accessible to animals, children, scavengers, snoops, and other members of the public.”

Question 32

Information Exposed to Public?

Answer 32

No 4 A protection for anything one knowingly exposes to the public.

3rd party == Public [Examples – Banks, CIs, Pen Registers]

Question 33

Is there a REP in bank information?

Answer 33

An account depositer was held to have incurred the risk that information concerning his financial transactions would be revealed by his bank to the government.

THERE IS NO REP IN BANK INFORMATION.

Question 34

Is there a REP when speaking to a CI?

Answer 34

There is no REP in CI wearing a wire.

Testimony by CI who conducted electronic surveillance / tape recorded convos with D (wore a wire). Informant no longer available now.

Crt held the recording can NOW BE USED AGAINST D B/C Assumption of Risk. You assume the risk that you are talking to a false friend.

Question 35

Is there a REP to whom we call via a phone or message via email?

Answer 35

V robbed and gave description. Victim began receiving threatening calls. Phone company installed pen register at O’s request on suspect phone. The register revealed he had been calling V.

HOLDING: There is no objective REP for WHOOO [may have REP for content of the call] you are calling on your phone, because phone users MUST convey who they are calling so that providers can connect them.

So not a search.

[This applies to emails as well.]

Question 36

Can police search your phone w/o a warrant?

Answer 36

No, police need a warrant to search your phone!

Question 37

Can police use sense-enhancing technology to search inside your home?

Answer 37

Using sense-enhancing technology to obtain information inside of the home that could have only been obtained by physically intruding the home, CONSTITUTES A SEARCH.

The technology, however, MUST BE IN GENERAL PUBLIC USE.

Question 38

Does a search occur when police plant a device on a drum and then track the location of the drum?

Answer 38

Police did not violate 4 A rights when they placed an electronic tracker to a drum of chloroform, BECAUSE THEY COULD HAVE OBSERVED THE MOVEMENT OF THE CAR BY THE NAKED EYE. [different than Kyllo and Jones]. Here, they didn’t attach the beeper to the defendants property, rather a drum that D picked up.

Question 39

Does a search occur when police use sense-enhancing technology to find marijuana?

Answer 39

O’s used thermal imaging to determine whether D was growing MJ, which would not otherwise have been known except by invading the home. They used high-intensity lamps to grow the MJ, would have been okay, if one felt the heat using their senses outside of the home.

HOLDING: This constituted a search and was presumptively unreasonable w/o a warrant.

Question 40

Does a search occur when police go through your cellphone records to determine your locations both past and present?

Answer 40

Going through a defendant’s phone record to determine their past and present locations is considered a search.

You must have a warrant to access cellphone location records.

Question 41

Katz v. U.S.

Answer 41

O’s suspected Katz of bookmaking and placed listening device against wall of public phone booth was being used by Katz. Because there was no penetration of the booth, the lower court ruled it was not a search, USSC reversed and said it was.

Question 42

U.S. v. Jones

Answer 42

Police violated 4 A when placing GPS tracking device on car and monitored for a month, was held to be a search.