Search & Seizure-- Is it governed by the fourth amendment? Flashcards
What 4 Questions must you ask in order to determine whether the 4th Amendment applies to a search or seizure?
(1) Was it executed by a government agent?
(2) Was it an area or item protected by the 4th A?
(3) Did the government agent either (a) physically intrude on a protected area to obtain information; or (b) violate an individual’s reasonable expectation of privacy in a protected area or item?
(4) Does the individual subjected to the search or seizure have standing to challenge the government agent’s conduct?
2 most important government agents?
2 potential government agents?
IMPORTANT
- publicly paid police (on or off duty)
- private citizens ONLY IF acting at the direction of the police
POTENTIAL
- private security ONLY if they are deputized w/ the power to arrest (campus security @ public college)
- public school administrators
The 4th A expressly protects individuals from unreasonable searches and seizures of their . . .
(Hint- 4)
1- persons
2- houses (including hotel rooms & curtilage)
3- papers
4- Effects (personal belongings)
Curtilage
area of DOMESTIC use immediately surrounding the house
Unprotected items/areas that are sufficiently “public” so that the 4th A does not apply to them EVEN IF they are searched or seized by gov’t agents
(HINT- Patty Achieved A Glorious Victory Over Her Opponents)
- P paint scrapings on the outside of car
- A account records held by a bank
- A airspace- anything that can be seen below while flying in public airspace
- G garbage left at the curb for collection
- V the sound of your Voice
- O odors (esp emanating from your car or your luggage!)
- H handwriting
- O open fields– anything that can be seen in or across the open fields
When does a person have a reasonable expectation of privacy?
To meet this standard, an individual must show:
(1) an ACTUAL or SUBJECTIVE expectation of privacy in the area searched or items seized; anddd
(2) that the privacy expectation was one that SOCIETY recognizes as reasonable
Note: a police search is presumptively unreasonable under the 4th A when it uses a device that is not in public use to explore details of the home that officers could not have known w/o physical intrusion
Did the individual subjected to the search or seizure have “standing” to challenge the gov’t agent’s conduct? Key principle . . .
To have authority, or standing, to challenge the lawfulness of a search or seizure by a gov’t agent, and individual’s PERSONAL privacy rights must be invaded, not those of a third party.
Do you have standing if you own the premises searched?
owners of premises ALWAYS have standing to challenge searches of the premises
Do you have standing if you reside in the premises searched?
residents ALWAYS have standing
Do you have standing if you are an overnight guest at the premises searched?
Yes, BUT ONLY as to areas overnight guests can be expected to access.
Do you have standing if you are using someone else’s residence solely for business purposes?
NO STANDING
Do you have standing if you own the property seized?
ONLY if you have a reasonable expectation of privacy in the AREA from which the property was seized.
ex- Man who hides drugs in his girlfriend’s purse does not have standing
Do you have standing as a passenger in a car?
- NO STANDING as to searches of the car, since no reasonable expectation of privacy in a vehicle in which you are merely a passenger
- NY EXCEPTION- passengers in cars can challenge the possession of weapons, if possession is attributed to them
