Unit 1: THRESHOLD OF THE 4TH AMENDMENT Flashcards
Threshold Question for 4th Amendment
Is there a search? If no, then no reason to apply 4th Am.
Analyze under intrusion and Katz two-prong test.
Is there a seizure?
Reasonable person feels free to leave, physical force + intent to restrain = arrest = seizure, or show of authority + intent to restrain + submission to authority = seizure.
Definition of Search - Plurality
Physical or non-physical intrusion that interferes with privacy interests, even if in a public space.
Physical intrusion must b conjoined with an attempt to find something or obtain information.
Definition of Search - Katz Harlan Concurrence
Two-Prong Test
1. subjective expectation of privacy (but what is privacy?) - a government agent must have invaded a individual’s reasonable expectation of privacy for the purposes of obtaining information.
2. society recognizes subjective expectation of privacy as reasonable
Not recognize by society as a reasonable expectation of privacy (2nd prong of Katz)
United States v. White
it is unreasonable to expect that information you share with someone else would not be shared further. (wired informant)
Open fields doctrine
Police entry and search of open fields involves no 4th amen intrusion even if officers intrude on privately owned land.
Oliver v. United States - trespassing onto private land that contained a large weed farm did not count as a search.
Reasoning - Open fields do not provide the setting for this intimate activities that the amendment is intended to shelter from government interference or surveillance, there is no social interest in protecting the privacy of this activities such as the cultivation of crops, that occur in open fields. These lands are usually accessible to the public and the police.
What is curtilage?
Hint = Please Excuse Us Santa
physical intrusion in “curtilage” around home is a search – area surrounding home where reasonable privacy expectation receive 4th amend protection.
4 factors
1. (p)roximity of the area to the home
2. whether the area is included within an (e)nclosure surrounding the home.
3. what are the nature and (u)ses of the area and
4. (s)teps taken by the resident to protect the area from observations by the people passing - steps to prevent nosey neighbors or cops (LOL)
Note: just because something is within cartilage does not automatically make it a search must qualify as a search under one of the two definitions of search (Florida v. Riley - Aerial surveillance of partially covered greenhouse)
tactical manipulation of luggage, search?
Yes! Placing an opaque bag above bus seat - expectation of privacy, also expect your bag may be moved by passengers or bus employees, but not that they will touch the bag in an exploratory manner.
Dog sniff, search?
Airport - not a search (US v. Place)
Routine and lawful traffic stop - not a search (Illinois Caballes)
Extended lawful stop - Search (Rodriguez . US)
Homeowner’s porch to investigate the contents of the home - SEARCH (Florida v. Jardines)
Reasoning - we enjoy protections in the home and the immediately surrounding outside of the home. Home is the MOST important when it comes to the 4th amend - the area immediately surrounding and associated with the home (curtilage) = home.
There are implied licenses for entering property - Police may approach the home, knock and then wait to be received just like any other private citizen may do, but that is not what happened here!
Knowing Exposure Line
California v. Greenwood
Respondents exposed their garbage to the public -therefore defeating their claim that they had 4th amend protection over any search of it. Not to mention they left it out for the purpose of it being picked up by a third party - a trash collector who might well have rummaged through it himself.
knowing amounts to exposure to a third party/public (includes incomplete exposure) or absence that the other party could potentially expose what was share. both knowing are not granted 4th protections (Greenwood/White)
notion of voluntariness is not as robust as we believe it should be. knowing exposure does not really seem to be contingent on voluntariness.
CSLI (cell site location information), search?
Whether government employs its own surveillance tech as in Jones - or leverages the tech of a wireless carrier as in Carpenter - an individual maintains a LEGIT EXPECTATION OF PRIVACY in the record of his physical movements as captured through CSLI - the location info obtained in Jones and from Carpenter’s wireless carrie WAS THE PRODUCT OF A SEARCH!
Note: generally, gov’t must obtain a search warrant to access historical cell site location information records that indicate physical locations of a defendant. Majority in Carpenter did NOT decide whether real time CSLI or tower dumps require a warrant.
And most business records remain subject to third party doctrine, meaning a warrant is not required.
Drayton’s Bus Context Definitions of Seizure
- Random interaction between police and persons is NOT a SEIZURE.
- the focus of the analysis ‘in the bus context’ is whether a reasonable, innocent person would feel free to decline requests or terminate the encounter.
- a mere show of a badge or weapons, both of which the reasonable person understands the police to possess, are not sufficient to transform an encounter into a seizure.
- factors to consider: force, intimidation, brandishing of weapons, blocking exits routes, threats, and tone of voice. Mendenhall.
- Officers’ do not have to tell passengers that they have a right not to cooperate .
Seizure Formulas
(1) Application of any physical force (“mere touch”) + (2) intent to restrain* = seizure
ex. a pursuit and yelling by officer without any physical force does NOT equal a seizure. An arrest requires either physical force or where that is absent, submission to the assertion of authority.
Hodari - no physical force here and suspect did not submit to authority because he was actively running away, this was not an unconstitutional seizure.
(1) Show of authority +(2)intent to restrain* + (3)submission to authority = seizure
*intent for another purpose does not transform application of force into a seizure. Torres.
Seizure Treshold
Law enforcement must be acting intentionally, not accidentally. Brower.
A seizure does not occur unless a reasonable person would have believed that he/she was not free to leave, or that he/she was not free to terminate the encounter. Drayton
Mendenhall list factors to consider in reasonableness calculation.
Seizure does occur unless some physical constraint occurs, whether by intentional application of physical force or physical submission to a show of authority. Hodari.
The application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued, and even if the physical force occurs with a weapon rather than by hand. Torres.
