Search & Seizure Flashcards
What inherent issue is there with the subjective prong of Harlan’s formulation of “reasonable expectation of privacy?”
The subjective prong of “reasonable expectation of privacy” becomes problematic when it consumes the ability for anyone to claim the Fourth Amendment because foreknowledge may be able to contradict ANY subjective expectation.
Is a cop free from Fourth Amendment limitations when invited?
Not necessarily. Even if invited, implicitly or explicitly (compare Gouled with Jardines), should a government agent engage in conduct outside of societal norms, they have violated Fourth Amendment protections.
EX: Rifling through someone’s panty drawer (Gouled), or bringing a drug sniffing dog onto their front porch (Jardines)
What, if any, distinction is there between gathering content and gathering information or data?
Data/information has been found to have no reasonable expectation of privacy because one cannot declare Fourth Amendment protection between oneself and any third party; so the NSA have no problem with gathering a recording of that phone-sex conversation you had that time that got a little weird (as long as they don’t listen to it without first obtaining a warrant*).
EX: Police key-logging numbers dialed out and in (Smith v. MD), or banking records (Miller).
NOTE: After Smith and Miller, the government created a statutory requirement (not probable cause, but more like reasonable suspicion) requiring government agents to get approval of a magistrate when data is connected to an ongoing criminal investigation.
Open Fields Doctrine
Open fields are differentiated from curtilage as not sharing in the Fourth Amendment protection afforded from a reasonable expectation of privacy––generally due to not being where the intimate activities of a household occur––and so may be searched without a warrant. See Oliver, Dunn.
If government agents attach a GPS tracking device to a car without a warrant, is there a Fourth Amendment violation?
Absolutely, for an important reason that applies in two ways. As an “effect,” and so explicitly listed in the Constitution, one’s car (as long as you’re not driving in it at the time) retains heightened expectations of privacy. Thus,
(1) the government agents would need a search warrant for the information that the GPS tracker would gather (depending on the amount of information being gathered); and
(2) government agents would need a separate search warrant to attach a device to the exterior, as even reaching into the car constitutes an intrusion (e.g., trespass). US v. Jones
7 areas considered in Fourth Amendment cases
(1) Assumption of Risk: (White, Smith, Miller)
(2) Right to Be: Open View, Open Fields Doctrine, etc.
(3) Intrusiveness of Technology
(4) Activity Being Undertaken: Less reasonable expectation of privacy for illegal activities as there’s not subjective expectation.*
(5) Place: e.g. residence as different from parking lot
(6) Trespass and Property Interest: Oliver, Dunn, etc.
(7) Explicit Enumeration: Looking to the original meaning of the Fourth Amendment
* NOTE: This may have been diminished due to Scalia’s opinion in US v. Jones, “There is no precedent for the proposition that whether a search has occurred depends on the nature of the crime being investigated.”
Open View vs. Plain View
Open View – No reasonable expectation of privacy because it’s knowingly exposed to the public.
Plain View – While government agents are (2) legitimately present for one search and (2) they see “immediately apparent” contraband, justifiably extending a legitimate search.
Under Plain View Doctrine, does “immediately apparent” entail?
– Only means probably cause, not that the agent was right
– Does not require “inadvertent” apprehension (Horton)
– Needing to [manipulate to] verify is highly dubious (Hicks v. Ariz.)
– Once the original legitimate search by the government agent is satisfied, they are no longer allowed to search
What problem does Plain View cause for privacy regarding government conduct?
It can be seen as the new form of drop-see evidence in that it encourages government agents to find every loophole to get where they can look––including not being too efficient so as to satisfy the original search warrant, curtailing their ability to find anything else––and then get a warrant after they’ve already found something.
Mendenhall factors of a Fourth Amendment seizure:
(1) Looking to the totality of circumstances,
(2) would a reasonable (i.e., innocent, see Royer) person
(3) feel free to leave?
Because most citizen-police encounters include implicit pressure to comply, there must be shown the following factors
Additional pressures by agents such as (a) showing authority, (b) threatening conduct, and (c) brandishing a weapon (compare Delgado (INS) and Drayton (bus sweep)).
What is not a factor of a Fourth Amendment seizure regarding government agents?
The subjective view of the agents are irrelevant, except to the extent that they communicate that view.
If a court finds the elements of the Mendenhall test are met, what must they then examine?
Probable cause insofar as whether a person
(1) of reasonable caution
(2) would have believed that a crime had been committed and
(3) that the defendant had been the perpetrator of that crime.
Totality of Circumstances Factors:
– Agent experience – Conduct of the accused – Companions of the accused – Time/place of the accused – Characteristics NOTE*: Use of race can violate the Fourth Amendment regarding probable cause because courts don't allow for "racial incongruity."
Aguilar/Spinelli Test (Post-Gates)
Weighed on balance, has the informant
(A) shown a history of reliability (Spinelli) and/or
(B) provided detailed information regarding the suspect and crime
What are the bounds required for probable cause?
The Supreme Court holds a “flexible, commonsense standard” of probable cause under the totality of circumstances (see Fla. v. Harris (traffic stop drug dog alert)). Therefore, it does not depend on evidence or precision/correctness of a government agent inference (Pringle).
