Searches

Question 1

Flow Chart for Determining a Search

Answer 1

1. Do any of the special doctrines apply?
2. How does the Jones test come out?

Question 2

Olmstead v. United States (1928)

Answer 2

Holding:
Wiretapping Olmstead’s phone was not a search because the wire used was not part of Olmstead’s house.

Rules:
1. A search is a physical invasion of a constitutional protected area.
2. Constitutionally protected areas include persons, homes, papers, and effects.

The government tapped Olmstead’s phone without a warrant. They received incriminating evidence about his involvement in illegally importing alcohol during prohibition. The tapping site was outside, in the street between houses.

Question 3

What are the categories of constitutionally protected areas, and examples?

Answer 3

1. Persons: your body, your clothing
2. Houses: hotel rooms; apartments; offices; stores
3. Papers:
4. Effects: cars (Carroll v. U.S.)

Question 4

U.S. v. Katz (1967)

Answer 4

Holding:
It was a search for the police to bug a phone in public telephone booth and listen to Katz’ phone calls because Katz had a reasonable expectation of privacy when he entered the phone booth and placed his call there.

Rules:
A. Searches protect people and not places (4th amendment claims no longer require trespass of a constitutionally protected area).

B. Two-part Katz Test adopted from Harlan’s concurrence.
There is a search when…
1. The police conduct offends a person’s manifested subjective expectation of privacy.
2. This expectation of privacy is reasonable.

Facts: Agents bugged a public telephone booth without a warrant. They heard Katz talking about his involvement in illegal gambling activity. The agents limited the scope and duration of their spying, by only listening to Katz’ conversations, for short periods of time, and only being able to hear his end of the conversation.

Question 5

Which case held that “the fourth amendment protects people, not places” and why is this important?

Answer 5

This was the holding in Katz v. U.S..

This was an important development in 4th amendment jurisprudence, because it meant that a physical intrusion was no longer needed to establish a search.

Question 6

The Katz Test (and critique)

Answer 6

This test was adopted from Harlan’s dissent in Katz v. U.S (1968) and holds that there is a search when…
1. The police conduct offends a person’s manifested subjective expectation of privacy.
2. This expectation of privacy is reasonable.

Critique: a person’s reasonable expectation of privacy depends on the law, which now depends on whether a person’s expectation of privacy is reasonable.

Question 7

Reasonable v. Legitimate Expectation of Privacy

Answer 7

Reasonable = is it possible for anyone to observe your actions, including a nosey person. This is an empirical test.
Legitimate = do people normally engage in this action that violates your privacy. This is a normative test.

Courts have used both tests and you can use either to make the best argument for your client, though the reasonable test is probably more common.

Question 8

U.S. v. Jones (2012)

Answer 8

Holding:
Scalia says that this was a search because, even though Jones did not have a reasonable expectation of privacy when it came to his movement on public streets, there was a physical invasion of a constitutionally protected space when the police placed the GPS monitor on his car (his effect). Katz does not narrow the scope of the 4th amendment.

Sotomayor’s concurrence:
Thinks that this case would not only pass Olmstead, but also pass the Katz test because of the magnitude and significance of the surveillance at play.

Alito concurrence:
Does not think Olmstead is still good law, thinks it was overturned by Katz. But agrees there has been a Katz search here given the length of time of the monitoring (i.e. refines the open fields doctrine—short term monitoring would not be a search because a car on public roads is available for anyone to see short term. Long term monitoring is a search).

Rule:
A. Katz did not overrule Olmstead, instead the two holdings create a two factor Jones’ test.
B. Jones’ test: there is a search if…
1. There has been a physical intrusion into a constitutionally protected area
OR
2. The Katz test
a. If the police activity offended a person’s manifested subjective expectation of privacy.
b. If this expectation of privacy was reasonable.

Facts: the police suspected Jones of drug trafficking, so they put a GPS tracking device on Jones’ car to monitor his movements on public streets. They placed the GPS monitor on his car while it was in a public parking lot, tracked him for a month, got his location within 50-100ft, accumulated over 2k pages of data.

Question 9

The Jones Test

Answer 9

This test was derived from U.S. v. Jones (2012) and combines the Olmstead and Katz tests to determine whether there has been a search.

The test holds that there has been a search if…
1. There has been a physical intrusion into a constitutionally protected area
OR
2. The Katz test is met
a. If the police activity offended a person’s manifested subjective expectation of privacy, and
b. this expectation of privacy was reasonable.

Question 10

Open Fields Doctrine

Answer 10

A person does not have a legitimate expectation of privacy in an open field.

Question 11

Hester v. U.S. (1924)

Answer 11

This case held that open fields are not constitutionally protected areas.

Question 12

Oliver v. U.S. (1984)

Answer 12

Holding:
This was not a search because Oliver did not have a legitimate expectation of privacy outside his curtilage, in the land adjacent to his home where “intimate activities” do not occur.

Rules:
1. A person does not have a reasonable expectation of privacy in an open field
2. Even when there is a manifestation of a subjective expectation of privacy, there is no 4th amendment protection if this expectation is unreasonable. (I.e. Oliver’s no trespass signs and locked gate).

Facts: Officers opened a locked gate with a “no trespass” sign on it. They came across a marijuana field, 1 mile from Oliver’s house.

Question 13

U.S. v. Knotts (1983)

Answer 13

Holding:
This was not a search because of the open fields doctrine: the police could have followed the car to Knott’s home and known his location without the beeper, so there was no reasonable expectation of privacy (open fields).
There was also no seizure because the container also was not Knott’s effect when the beeper was installed, so his possessory interest in it was not violated.

*Facts: The police suspected Knotts of manufacturing drugs. They got a chemical company to put a beeper/tracker into a container his companion was picking up. They tracked the container to Knotts home. *

Question 14

United States v. Karo (1984)

Answer 14

Holding:
There was a search when the police used a beeper to track Karo’s movements within his home. There is a reasonable expectation of privacy inside your home (no open fields).
There was not a seizure when the police put the beeper in the container of chemicals.

Rules:
1. The use of a tracking device to monitor movement inside a home/private space is a search.
2. There is not a seizure when a party unknowingly receives a container with a tracking device in it.

Counterargument to seizure decision: this is like inviting an undercover cop into your home.

*Facts: the police placed a beeper into a can of ether to track it. They used it 8 times to track movement between people’s homes and a storage facility (where they installed cameras). They also tracked the beeper to a house. They received a warrant to search the house and found a drug lab. *

Question 15

Curtilage

Answer 15

This is the property/area immediately adjacent to one’s home. This area is protected under the 4th amendment because people have a reasonable expectation of privacy concerning intimate activities happening in this area. Dunn set out factors to weigh in assessing whether something was curtilage.

Question 16

U.S. v. Dunn (1987)

Answer 16

Holding:
There was not a search when the police jumped over Dunn’s fences and looking in the window of his barn, through mesh curtains, because Dunn did not have a reasonable expectation of privacy—the barn was not part of his curtilage and if someone ignored the fences and shone a light inside the barn, they could see the drug lab.

Rules:
A person does not have a reasonable expectation of privacy if another person could see/hear their actions/behaviors.
Dunn Factors for curtilage.

Question 17

Dunn Factors

Answer 17

Weigh these factors in determining whether a certain area is curtilage:
1. Proximity of the area to the home
2. Whether the area is within an enclosure that also encompasses the home (i.e. a fence)
3. How the area is used (i.e. objective evidence that the area is used for intimate purposes)
4. Steps taken by a resident to protect the area from observation.

Question 18

Third Party Doctrine

Answer 18

This doctrine holds that there is no expectation of privacy in information that a third person knows about.

Question 19

U.S. v. White (1971)

Answer 19

Holding:
This was not a search when White had a conversation with a government agent who was wearing a wire because White did not have a reasonable expectation of privacy when he shared his involvement in criminal activitiy with someone else (third party doctrine)

Rule:
People do not have a reasonable expectation of privacy when they are talking about criminal activities. They instead assume the risk that this information will be shared.

*Facts: White had a conversation with a government informant who was wearing a wire. Admitted to involvement in illegal drug activity. This evidence was used against him at trial. *

Question 20

Smith v. Maryland (1979)

Answer 20

This is the pen register case. A pen register allows a phone company to record the phone numbers a person dials. A person does not have a reasonable expectation of privacy in these numbers because a third party (the phone company) knows them.

Question 21

U.S. v. Miller (1976) and CA Banker case

Answer 21

This case held that when a person deposits a check with a bank, they do not have a reasonable expectation of privacy in this check because they have shared this information with a third party (the bank).

Question 22

Carpenter v. U.S. (2018)

Answer 22

Holding: There was a search. The third party doctrine does not extend to cell site location information because…
1. Cellphones are like part of the human anatomy. You need it to participate in life today. So users do not affirmatively/voluntarily provide this information.
2. The unique nature of cell site data means that you can trace a person’s past movements and current movements in great detail.
3. There is an expectation of privacy when it comes to 24 hour tracking of movements over 4 months.

General rule:
Gathering cell site data is a search, despite third party doctrine. Narrow ruling.

Counter argument: this violates the third party doctrine for no reason. The cellphone data did not belong to Carpenter.

*Facts: The police suspect Carpenter of involvement in a series of armed robberies. They obtain a warrant for Carpenter’s cellphone records and receive cell site records spanning 4 months, with an average of 101 location points/day. They used these records to retrace Carpenter’s whereabouts and pin the robberies on him. He was given a 100 year sentence. *

Question 23

Knock and Talk

Answer 23

This is when the police come to the door and ask questions to elicit information regarding a crime. This is not considered a search.

Question 24

U.S. v. Jardines (2013)

Answer 24

Holding:
Having a narcotics-detecting dog sniff around defendant’s home is a search.

Rules:
A person’s porch is part of their curtilage that is constitutionally protected by a reasonable expectation of privacy—particularly given that the home is at the center of the 4th amendment’s protections. Police conduct on a porch/at a front door is governed by social norms, they can’t do more than come up, knock, and leave if no one is home.

Counter argument: the police’s ability to approach a home should not depend on whether they have a dog with them. Further, people do not have a reasonable expectation of privacy in smells emanating from their home.

Question 25

Is aerial surveillance a search?

Answer 25

This is not a search if a member of the public could do what the police did.

Question 26

Florida v. Riley (1989)

Answer 26

*Facts: A surveillance helicopter obtained a view of defendant’s greenhouse by hovering 400 ft above his backyard. *

Decision: PLURALITY, this was not a search. The public would be able to rent a helicopter and do what the police did.

Rule: if the public can engage in the same form of aerial surveillance, there is no reasonable expectation of privacy.

Counter argument: the public does not ordinarily engage in this behavior, so there is no legitimate expectation of privacy.

Question 27

Is looking through someone’s trash a search?

Answer 27

This is not a search if any member of the public could do or see what the police did or saw (third party doctrine).

Question 28

California v. Greenwood (1988)

Answer 28

*Facts: the police asked the trash collection service to give them defendant’s garbage. They went through the garbage and found evidence of drug use, which they used to get a warrant to search defendant’s house. *

Holding:
This is not a search under the third party doctrine.

Rule:
A search of someone’s trash is regulated by the third party doctrine.

Counter argument: we should be using the normative test, relying on commonly accepted notions of civilized behavior to assess whether a person’s expectation of privacy is reasonable, rather than the empirical one.

Question 29

United States v. Place (2005)

Answer 29

Holding: a dog sniff of closed luggage is not a search, but defendant’s prolonged detention while waiting for the dog to arrive was a seizure.

Rule: if a technology is incredibly limited in what it discloses, then its use may not constitute a search

Counter-argument: in cases where Place applies, think about the Kyllo restriction.

*Facts: A dog sniff revealed presence of cocaine in Place’s luggage without the police having to open it. *

Question 30

Dog Sniffs

Answer 30

Dog sniffs that do not involve an intrusion into a constitutionally protected area are not considered searches under Olmstead.

A dog sniff outside luggage is not a search.
A dog sniff outside a car is not a search.

SCOTUS has held that making a person wait for a dog to sniff arrive can constitute a seizure. I.e. even 5 extra minutes can turn a stop into a seizure.

Question 31

Limitations on searches using advanced technology

Answer 31

Kyllo held that the use of technology not in general public use to reveal information about a constitutionally protected area is a search. There, a use of thermal imaging device constituted a search.

Jacobsen held that conducting chemical testing on the outside of a FedEx package was not a search.

Question 32

Kyllo v. United States (2001)

Answer 32

Holding: there was a search when the police used thermal detection to reveal information about activities inside a home.

Rule: if there is a device that is not in common/general public use, you cannot use it to discover information about what is going on inside a home that otherwise would not be knowable by the government without a physical intrusion into the home.

Counter-argument: you do not have a reasonable expectation of privacy in in the heat coming off the walls outside your house. Plus this concept of “general public use” is not well defined.

*Facts: Police used thermal imaging to determine whether defendant was using high-intensity lamps to grow cannabis. *