Search and Seizure II: Technology, Third Party Doctrine, and Mosiac theory Flashcards
Is unwarranted use of a thermal imaging device a violation of the Fourth amendment?
Yes, a person always has a reasonable expectation of privacy within their dwelling even when a search is being conducted remotely.
What is the Third Party Doctrine?
People who voluntarily give information to third parties – Banks, Internet Service providers, and email providers have no reasonable expectation of privacy.
Under the third party doctrine can LE get contents of email?
No. Still have reasonable expectation of privacy for contents of communication.
What is Mosaic Theory?
Limitation on third party doctrine - - We maintain reasonable expectation of privacy in certain quantities of information even when you have no reasonable expectation of privacy in the constituent parts (I.e. when LE uses phone ping data to track movements)
What are the requirements to obtain a Wiretap?
1.) Probable cause for certain crimes
2.) DOJ review of affidavit
3.) Deputy attorney general approves
4.) Probable cause within 6 months, activity on that device within 14 days
5.) Necessity - - exhausted all other methods used as a last resort
What are the two Main types of warrants?
1.) Arrest Warrants: Issuing judge believes that there is Probable cause that a SPECIFIC CRIME is being committed and that the person named in the affidavit committed that crime.
2.) Search Warrant - Warrant to search a specific area for evidence of a specific crime. Issuing judge believes that there is probable cause to believe that such evidence exists in that place.
What are the three (technically four) requirements for warrants to be issued?
1.) Signed by an impartial Judge or magistrate
2.) Claims supported by probable cause
3.) Thing to be seized and place to be search is stated with a high level of specificity
Kinda 4.) freshness, want to show in the affidavit that there is a reason to believe that the evidence is there now
What is the test for probable cause?
Totality of the circumstances test – The facts and circumstances within an officer’s knowledge and of which they had reasonable trustworthy information (CIs), lead a person of reasonable caution to believe that an offense has or is currently being committed.
What is the standard for level of particularity in an affidavit?
For Places: Must describe the place with a level of particularity to prevent a search of the wrong premises
For things: “leave nothing to the discretion of officer executing the warrant”
What are the common search warrant issues?
1.) Overreliance on Criminal informants – based on totality of the circumstances
2.) Conclusory statements – Not reciting underlying facts
3.) Staleness – not based on recent information, must indicate evidence exists in that location currently
False Statements – made by affiant
