Fourth Amendment Generally Flashcards
Fourth Amendment
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 PC, supported by OATH OR AFFIRMATION, and particularly describing the place to be searched, and the persons or things to be seized.
Elements of the Fourth Amendment
- is conducted by the GOV.
- constitutes Search or Seizure
- Involves person, house, paper, effect, liberty and privacy, and
- is unreasonable.
Test for whether there is a protected privacy interest
- the individual exhibited an actual (subj) expectation of privacy, and
- individual shows that he seeks to preseve something as priv. - that expectation of privacy is one that society is prepared to recognize as reasonable (obj.)
-obj. justifiable, rsbl, and legitmate under the circumstances
Use of sense-enchancing Tech. Test
(Kyllo)
- gov. uses a device that is not general public use (availability to public)
- to explore details of a home
- that was previously have beeen unknowable without physical intrusion
if test is satisfied, it’s a search & presumptively unrsbl w/o warrant
Curtilage
3-D area immediately surrounding the home; could include neighboring open fields
- physical intrustion onto curtilage is a search
- commercial cutilage is entitled to less protection than residential
Factors for Curtilage
Totality of the Circumstances
1. area’s proximity to the home
2. whether it is enclosed
3. the nature of the use
3. the precautions taken to exclude others
Open Fields
not protected by the fourth amendment because there is no societal interest in prorecting privacy
open fields def
any area of land outside the immediate surrounding area of a home
Important Cases Takeaways
- Smith v. Maryland: obtaining pheon numbers was not sech/seizure b/c Smith conveyed the numbers to the company
- Bond v. U.S: physical manipulation of a bad exposed to public view constitutes a search. obj. can be touch but not manipulated
- Jones: affixing a gps tracker was a search
- aerial obersevation ,ade from navigable airspace did not consitute a search because routine air travel assumed the risk of exposure
HYPO: What if the phone company announced that it would monitor all conversations for content and send snippets with the monthly bill. How would this relate to privacy expectations and whether a search occurred?
- Customers would not have an actual expectation.
- At some point a normative inquiry would be appropriate. (footnote 5, pg. 19)
- An expectation of privacy might be legitimate even if it is not actually or empirically reasonable.
HYPO: S closes the blinds to his living room and then begins packaging illegal drugs there. Officer O is curios and walks S front law. At a distance of two feet, O looks through a small space in the blinds and observes S. O then takes a picture using his personal camera. Based on this evidence, O obtains a search warrant, enters the apartment, and finds the drugs. Was O’ initial observation though the window a search?
- Gov action? Yes.
- Did he have an actual and reasonable standard that could apply? (two prong test) Actual expectation does apply because he would be in the privacy of his own home. On the other hand, if he really wanted privacy, he should have closed the blinds properly and make sure there was no small space available.
For a reasonable expectation of privacy, it could be argued that it seems like O went onto the curtilage of the home which favors the argument there was a reasonable expectation of privacy. Furthermore, because it is a personal camera as opposed to a camera issue by the department, it is commercially available. - Assuming this was a search, what if O gets a warrant? It would not apply because the warrant is based on illegally gathered evidence. Therefore, fruit of the poisonous tree would apply.
