Searches Flashcards
What is a Search?
Governmental intrusion into an area where a person has a reasonable and justifiable expectation of privacy
What is the KATZ Subjective Approach?
a. Whether an individual person has an actual expectation of privacy
b. Person must demonstrate they took steps to preserve their privacy
What is the KATZ Objective Approach?
a. Whether that expectation be one that society is prepared to recognize as “reasonable”
b. Even if an individual expects privacy, the expectation must align with what society considers reasonable
What is the Third Party Doctrine?
A person has no legitimate expectation of privacy in information that the person voluntarily turns over to third parties
What is the Rule from KATZ for Phone Booth Recording?
Only unreasonable search occurs when the government:
1. Invades a place protected by a reasonable expectation of privacy OR
- Physically intrudes upon a constitutionally protected area (persons, houses, papers, or effects) for the purpose of gathering information
Wiretapping: (US v. White)
If one party to a telephone call consents to wiretapping or agrees to record the call at the government’s request, such monitoring will not trigger 4th Amendment right of another party to the call
Numbers Dialed: (Smith v. Maryland)
Numbers dialed are not reasonable expectation of privacy: information that is voluntarily turned over to third parties does not count
Are Dog Sniff’s a Search?
NOT A SEARCH:
A person does not have a reasonable expectation of privacy with regard to a smell emanating from his luggage, at least when the smell arises from an illegal substance
What About A Dog Sniff during a Regular Police Search?
Dog Sniff is allowed as long as it is not during a long period of time that extends a police stop that it would ordinarily take to issue a ticket or warning (necessary to effectuate the purpose of the stop)
What About a Dog Sniff on Property?
A SEARCH when:
use of a trained dog to sniff for the presence of drugs if it involves the physical intrusion onto constitutionally protected property
Are Open Fields A Search?
NOT A SEARCH:
- Open fields (farmland, wooded area) near a home are not protected by the 4th Amendment even if they are enclosed by a fence and have a “no trespassing” sign
Are Curtilages A Search?
A SEARCH
- Four Factor Test:
1. Proximity of area to home: Closer = Curtilage
- Within an enclosure: Enclosed = Curtilage
- Nature of Activities that take place: Domestic = Curtilage
- Steps taken by occupant/ owner to protection from observation: More Protective Steps = Curtilage
Is Aerial Surveillance A Search?
NOT A SEARCH, even of Curtilage
-Police can take photos of property using Aerial Surveillance
- Must be within the permitted amount
Is Heat Detecting Gun A Search? (Kyllo)
A SEARCH:
The use of a device of sense enhancing technology (ex: a thermal sensing device) that is not used by the general public to explore the details of a dwelling that would previously have been unknowable without physical intrusion constitutes a search
Technology Enhanced Searches Of Homes:
A SEARCH: only when the technology used is not in general general public use
GPS Tracking Device: (US v. Jones)
A SEARCH
Physically intruding upon a suspect’s property to install a technological device may constitute a search
GPS collects too much data
GPS on bottom of a car is a search because it was a physical intrusion/ trespass on property
Beepers: (US v. Knotts)
NOT A SEARCH
Beeper revealed no information that couldn’t be observed through visual surveillance
Cell Phone Data: (Carpenter)
A SEARCH
Using Cell Phone Data to track someone’s location from wireless carriers requires a search warrant
What does the Supreme Court use when determining Data Collection? (RAV)
- The Revealing nature of the data collected
- The Amount of data collected
- Whether the target’s disclosure was truly Voluntary
Odors:
NOT A SEARCH:
Emanating from something you own
