Cornwell Crim Pro Outline – Fall 2014
I. The Fourth Amendment –“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
A. Framers’ Intent: Preventing General Warrants: One of the main fundamental grievances the colonists had with the English Crown was the practice of issuing general warrants, or writs of assistance, which permitted open-ended searches unlimited in scope, and did so without judicial supervision or any demonstration of justification. Cops had uncontained discretion.
B. Fundamental Question of the 4th A: Do you need a warrant for a search or seizure to be reasonable? What is clear from the 4th A’s two clauses is that 1.) searches and seizures must be reasonable, and 2.) the police need probable cause to get a warrant. However, the relationship between the two clauses is unclear. There are two sides to the debate, which frames much of the 4th A jurisprudence:
i. Liberal View: For a Search to be Reasonable, there must be a Warrant – the clauses are linked and thus, a warrant is required for a search to be reasonable, unless there is a good excuse for not obtaining one. Warrantless searches are presumptively unreasonable. The prophylactic interposition of a neutral magistrate b/w the police officer and the citizen prior to the search is the main protection afforded by the Fourth Amendment. The liberal side of the court is focused on individual liberties and puts the burden on cops to justify intrusions. See, e.g., Johnson v. United States, US, 1948.
ii. Conservative View: Reasonableness Does Not Turn on a Warrant – the clauses are separate and thus, a warrant, or a reasonable excuse for not having one, does not determine whether a search is reasonable. Instead, reasonableness depends upon the contextual circumstances justifying the search and the manner in which it was conducted.[1] The main protection afforded by the Amendment in this view lies not in prior judicial screening, but in the after the fact review of police conduct to ensure that it was reasonable given what was known by the cops at the time. This approach has dominated the Court’s jurisprudence in recent years, with Justices noting that the numerous exceptions to the warrant requirement have swallowed the rule – and what is actually being conducted is a case by case reasonableness evaluation. See, e.g., California v. Acevedo, US, 1991 (Scalia, J., concurring). The conservative side of the Court is focused on effective law enforcement, and puts the burden on Δs to show a search was unreasonable.
iii. Why does the USSC keep interpreting this clause? If we accept the fact that some searches and seizures can take place without a warrant, then with is the standard for limiting the scope of these warrantless searches? Reasonableness! Most of the cases we read had to do with determining reasonableness in different contexts.
C. When Does the 4th A Apply?- 2 threshold requirements must be met before the 4th A is applicable in a situation.
i. Governmental Action Requirement – the 4th A only applies to governmental, not private conduct.
ii. “Search” – the 4th A’s protections only apply to a “search.” What qualifies as a “search”?
1. The Trespass Rationale – the definition of what constitutes a “search” w/in the meaning of the 4th A was, until 1967, closely tied to property law concepts. Police action would be deemed a search if it constituted a common law trespass. For example, the Court held that wiretapping from outside a building was not a search, b/c there was no “actual physical invasion,” Olmstead v. United States, US, 1928, the insertion of a “spike mike” into a wall to pick up conversations passing though heating ducts was held to be a search b/c of the physical intrusion involved. Silverman v. United States, US, 1961. Even a thumbtack sized penetration was enough to be a “search.” Clinton v. Virginia, US, 1964.
2. The Privacy Rationale – As methods of surveillance and eavesdropping became more technologically sophisticated and could be accomplished without the necessity for physical intrusion, this the trespass rational became outdated and underinclusive. In order to apply an amendment written 200 years ago to these new technologies the Court shifted to a Privacy rationale in Katz v. United States, US, 1967, holding that a “search” takes place when one’s actual and reasonable expectation of privacy has been invaded. The tricky part has been drawing the line where that privacy expectation begins.
a. The Katz Test – A 4th A “search” has taken place where:
i. 1.) the citizen has manifested a subjective expectation of privacy; and
1. What a Person Seeks to Keep as Private – regardless of location the Δ must seek to keep something private.
a. Conducting a Conversation in a Closed Phone Booth – Katz v. United States, US, 1967 – the Δ displayed a subjective expectation of privacy in his phone conversation by entering a phonebooth and shutting the door behind him. Even though the phone booth was clear, he sought to exclude not the intruding eye, but the uninvited ear.
b. Building a 10 Foot Wall Around Your Marijuana Plants – California v. Ciraolo, US, 1986 – the Δ built a 10 foot wall around his marijuana crop in his backyard so no one could see it. Thus, at street level, at least, the Δ has displayed a manifestation of intent to maintain privacy, however this fence might not “shield these plants from the eyes of a citizen or a policeman perched on the top of a truck or a 2-level bus. Whether respondent therefore manifested a subjective expectation of privacy from all observations of his backyard, or whether instead he manifested merely a hope that no one would observe his unlawful gardening pursuits, is not entirely clear in these circumstances . . . .”
c. Putting Up No Trespassing Signs, Fences – Oliver v. United States, US, 1984 – Δ put up no trespassing signs and a fence in hopes of keeping outsiders off of his expansive property, a mile within which he was growing weed. Δ displayed a subjective expectation of privacy by taking these steps, but the Court held this is irrelevant b/c there is no reasonable expectation of privacy in such “open fields” where “intimate activities” do not take place.
d. Putting Your Crack in an Opaque Bag Directly Above Your Bus Seat – Bond v. United States, US, 2000- Court said a Δ displayed a subjective expectation of privacy in the contents of his bag, which was opaque and placed directly above his bus seat.
e. Putting Something In Your Home
ii. Where Court Has Found No Subjective Expectation
1. Sending Your Phone Number to Phone Co by Placing Call – Smith v. Maryland, US, 1979 – the Δ failed to display a subjective expectation of privacy in the phone numbers he was dialing because: “It is too much to believe that a phone subscriber would harbor any general expectation that the numbers they dial remain secret.” Everyone knows that phone numbers are recorded by the phone company so they can place your call – they even put the numbers in your phone bill.
iii. 2.) the expectation of privacy is one that society accepts as objectively reasonable.[2] (Objective/ societal expectation)
b. Expectations of Privacy the Court has Found to Be Reasonable
i. Gov’t Eavesdropping on Phone Conversations – it is reasonable to expect that your phone conversations in closed public telephone booths will not be subject to government eavesdropping. Katz v. United States, US, 1967.
ii. Tactile Manipulation of Bus Passenger’s Luggage – it is reasonable to expect that your opaque luggage won’t be tactically manipulated by government agents. Bag may be handled, but not in an Exploratory manner
1. Bond v. United States, US, 2000
a. Facts: Δ was riding a bus which was stopped at a border patrol checkpoint, wehre cops got on board and proceded to sqeeze everyone’s luggage in the overhead compartments. The cop felt a brick-like object in Δ’s bag which was drugs. Δ was arrested.
i. Application of Katz test: Did Δ manifest an expectation of privacy? YES – opaque bag, close to seat. Was Δs expectation of privacy reasonable? YES – We expect that our bags might be handled but not in an exploratory manner.
iii. The Home and Curtilage – it is reasonable to expect that items placed in your home and curtilage won’t be intruded upon by gov’t agents, see Kyllo; Karo, unless you voluntarily assume the risk and expose items in your home and curtilage to the public, either on the ground,[3] or in the air, see Aerial Surveillance Cases infra.
c. No Reasonable Expectation of Privacy: Items You Knowingly Expose to the Public – “what a person knowingly exposes to the public, even in his own home or office, is not subject to 4th A protection.” Protection is afforded only for “what he seeks to preserve as private.” The police cannot be expected to avert their eyes from evidence of criminal activity that could be observed by any member of the public. Katz v. United States. An assumption of the risk rationale.[4]
i. Voluntary Disclosure of Information to Third Parties[5] – one who conve
urveillance Cases – Knowingly exposing to the public from the air above. As long as it was legal for the police to be in that airspace (500 feet is minimum) – if they can see contraband below, even in one’s home or curtilage – it’s not a “search.”
1. California v. Ciraolo, US, 1986
a. Facts: Police got a tip that weed was growing in the Δ’s backyard. The yard was fenced in. So, the police got an airplane and flew over the Δ’s field and identified the marijuana plants, and took pictures of them with a regular camera from the plane. The cops got a search warrant based on this info and Δ was arrested.
b. Burger, Court: No Search. Even if the plants were in the curtilage, “what a person knowingly exposes to the public, even in his own home or office,” is not protected by the 4th A. Katz. The officers here were in public space. They did not intrude on Δ’s property. Any member of the public could have seen what these officers saw if they were flying over. The weed was out in the open.
i. Fails on second prong of Katz. It’s clear that Δ had subjective intent to maintain privacy, but this expectation was not reasonable and not honored by society.
[1] “The touchstone of the 4th A is reasonableness and the reasonableness of a search is determined by assessing, on the one hand, the degree to which it inrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” United States v. Knights, 534 U.S. 112 (2001).
[2] This articulation of the “search” test was formulated by Justice Harlan in his concurring opinion in Katz. It was formally adopted by the Court in Smith v. Maryland, US, 1979.
Also- Cornwell argues that declining societal expectations of privacy post 9/11 indicates that soon nothing will be protected under this formulation. Is it possible that a return to the trespass standard would actually provide MORE protection in the modern era? See problem 1-5, pg. 43. Barr brings a personal computer to work, shares files. A police officer, in the course of work, finds child pornography. This is a trespass. However, did Barr have an expectation of privacy? Does society find that expectation reasonable?
[3] E.g., say a police officer was standing on a public street and could observe marijuana plants growing in a bay window of Δ’s home. Having place the plants in public view, Joe has assumed the risk, and can have no reasonable expectation of privacy with regard to them, and the officers observations do not constitute a search. E&E p. 29.
[4] See also Greenwood: no expectation of privacy in items placed in the garbage left on the street side. Those items are “readily accessible to animals, children, scavengers, snoops, and other members of the public.” Greenwood is prevailing federal standard, although some states have placed protection on garbage. What about trash left in the driveway, in the curtilage? Majority says that garbage left in curtilage is still unprotected. It’s abandoned property. NJ has rejected this holding and says that you have a privacy interest in your garbage.
[5] Untrustworthy friend cases – White is preceded by On Lee, Lopez and Hoffa. Does a recording device, carried on the person of an invitee, constitute a trespass? No. The 4th A does not require a warrant where Δ wrongfully believed the agent would not reveal info.
[6] See also “Commercial Curtilage” cases- Dow and Dunn. In Dow government employed an aerial mapping camera. In order to be protected, commercial cartilage must be afforded significant protective steps, and must by PHYSICALLY invaded. Thus, aerial mapping did not invade the commercial curtilage.
