PROFESSOR GOLDMAN SPRING 2013
SAINT LOUIS UNIVERSITY
CASEBOOK: AMERICAN CRIMINAL PROCEDURE INVESTIGATIVE CASES AND COMMENTARY NINTH EDITION BY STEPHEN A. SALTZBURG AND DANIEL J. CAPRA (2010) (Purple Book).
NOTE: read this outline then study his old exams before reading period. That will get you an “A” in his class
· Represents a compromise between the need of government officials to gather evidence and the right of citizens to be free from governmental intrusions. FA limitations on governmental investigations are equally applicable to the state and federal governments.
A. BASICS OF THE FOURTH AMENDMENT
1. Does Not Apply to Private Activity
§ FA regulates state action, not private individuals acting on their own. No matter how unreasonable a search may be the FA is NOT implicated if the search is conducted by private actors not acting as agents of the government.
§ It applies to all government agents, not just police officers.
2. Two Clauses
§ The first clause of the FA, the reasonableness clause, provides a general standard that all searches and seizures be reasonable.
§ The second clause imposes the requirements for obtaining a warrant.
§ A search/seizure is PRESUMED UNREASONABLE in the absence of a warrant based on Probable Cause.
3. The Theory of the Warrant Clause
§ The preeminence of the warrant clause was the result of Sct decisions that stressed the importance of imposing an UNBIASED fact finder as a BUFFER between the citizens suspected of crime and the officer engaged in the competitive enterprise of ferreting out crime.
§ Another benefit of the warrant requirement- requires the officer to establish a record, the facts allegedly constituting probable cause BEFORE the search. This prevents post hoc submissions on PC.
§ Another benefit of the warrant requirement is that it defines the scope of the search. The warrant must particularly describe the place to be searched and things to be seized.
4. The Rise of the Reasonableness Clause
§ Even though the warrant is still first reference point for legality, the Ct has gradually moved to a point where most searches and seizures are governed by a general standard of reasonableness.
§ A general overview of Sct Decisions shows that the dual requirement of a warrant and PC are NOT needed in the following situations:
· 1) WARRANT IS IMPRACTICABLE to obtain/ EXIGENT CIRCUMSTANCES
o See exigent circumstances (exception to warrant requirement but not an exception to PC requirement).
· 2) LIMITED SEIZURE/TERRY DOCTRINE
o Where the police conduct a LIMITED SEIZURE to investigate possible criminal activity and a limited search for weapons to protect the investigating officer (See Terry Doctrine) (Exception to both warrant and PC requirements)
· 3) ADMINISTRATIVE SEARCHES
o Where the official is searching for evidence, but the search is conducted for purposes OTHER THAN CRIMINAL LAW ENFORCEMENT. (See administrative and other “special needs” searches). (Exceptions to both warrant and PC requirements
· 4) SEARCH INCIDENT TO ARREST
o Where a search is conducted INCIDENT to a valid ARREST. (Exception to both warrant and PC requirements).
· 5) VOLUNTARY CONSENT
o (exception to both warrant and PC requirements)
· 6) ARREST IN PUBLIC
o Where the citizen is arrested in public (Arrest warrant not required, but police must have PC).
· 7) PLAIN VIEW/TOUCH DOCTRINE
o Where an incriminating object is in PLAIN VIEW or PLAIN TOUCH, it may be seized without a warrant. (PC required).
· 8) SEARCH AN AUTOMOBILE
o Where the officer searches an AUTOMOBILE or other form of transportation (Exception to warrant requirement but NOT to PC).
I. THRESHOLD REQUIREMENTS FOR FA PROTECTIONS; “SEARCH AND SEIZURE”
· Unless the government activity is either a search or a seizure it is not regulated by the FA, and therefore it does NOT have to be reasonable.
· In contrast, if the Court holds activity to be a search or seizure, it does not mean that the activity is prohibited, but only that it must be reasonable.
A. THE KATZ TEST
· Katz rejected a literal interpretation (here there was no search of a house, person or effect) of the FA and held that the Amendment was designed to protect legitimate expectations of privacy, personal security, and possessory interests in property.
· The FA protects people NOT places.
1. Modern Definitions of “Search” and “Seizure”
§ Triggered whenever the state intrudes in any way upon the individual’s protected interest in privacy.
§ This term is triggered whenever the state intrudes in any way on a protectable interest in property or security.
2. Harlan’s Concurrence
· Set forth a two-prong test to determine whether a search has occurred.
o Has the citizen manifested a subjective expectation of privacy?
· REASONABLE EXPECTATION
o Second, is the interest one that society is prepared to accept as reasonable?
B. INTERESTS PROTECTED BY THE FOURTH AMENDMENT AFTER KATZ
1. “Legitimate” Interests
· The FA protects reasonable and legitimate interests in privacy.
· Thus the court has held there is no legitimate privacy interest in ILLEGAL activity.
· However to protect innocents with legit privacy and security expectations from mistaken assumptions by Government officials, certain interests must be presumed and protected before the intrusion takes place:
o PHYSICAL DISRUPTION and INCONVENIENCE
o INTEREST IN SECRECY
§ Right to secrecy to not disclose info that may not be incriminating but private or embarrassing.
o POSSESSORY INTERESTS
§ No unreasonable seizures of possessory interests
C. PHYSICAL TRESPASS FOR PURPOSE OF INVESTIGATION IS ALSO A SEARCH
· JONES v. US- found that in addition to the protection provided by Katz, the term “SEARCH” is also triggered when officers physically trespass on a person’s private property for purposes of investigation. In Jones, the search occurred when officers placed a tracking device on the suspect’s car and tracked his movements.
D. MANIFESTATION OF A SUBJECTIVE INTERST IN PRIVACY
· How far must a citizen go to protect his privacy interests?
1. Strict Application
o Generally, the courts have required citizens to take VIGOROUS measures to protect their claimed privacy interests.
§ US v. DUNN- D’s barn had no windows, the door was six feet high, above the door was mesh fabric which cannot be seen through from any distance. But a cop pressed his face against it and saw inside. Held this was NOT a search since D had not sufficiently manifested an expectation of privacy in the interior of the barn.
o Abandonment of property is inconsistent with the retention of any privacy or possessory interests. So if a person questioned by the pigs denies that property is his he thereby abandons any interest in the property.
3. Sufficient Manifestation Under Some Circumstances
o There are some cases however where the police conduct has been especially energetic, and the courts have held that the citizen has sufficiently manifested a protected interest.
§ EX; an officer climbs to the top of a building and peers through louvers of a vented fan in the ceiling. The Ct found that this WAS A SEARCH, explaining that citizen does NOT need to deprive himself of all ventilation in order to retain a privacy interest.
E. LEGITMACY OF THE EXPECTATION OF PRIVACY; ACCESS BY MEMBERS OF THE PUBLIC (PUBLIC ACCESS)
· After Katz, if an aspect of a person’s life (such as his trash or public movement) is subject to scrutiny by members of the public, then that person has no legitimate expectation in denying equivalent access to the police.
· There is no search if the police obtain information that members of the public could foreseeably obtain.
· Examples of situations in which the right of public access indicates that police activity is not a search include: inspection of bank records; inspections of trash left on the street; information obtained in an aerial over flight; and numbers dialed on a phone.
· GREEN WOOD/TRASH- can be a search if the trash is kept in an area from which the public is excluded and the cop searches the trash in that area. Just because it is trash does not mean the cop can search a private area.
· RILEY (helicopter case)- A majority focused on whether the public would ORDINARILY HAVE ACCESS to the D’s information, NOT on whether it was physically and legally possible to get the information as a theoretical matter.
F. LIMITS ON PUBLIC ACCESS THEORY
· There are times where the public has access to info uncovered by the police but there is still an expectation of privacy (aka the police conduct is a search).
· HOTEL ROOM SEARCHES/STONER
o A paying guest had a REP, therefore police entry into the room constituted a search. A hotel guest pays for the right of privacy and has a right to exclude others. Privacy applies even though janitors and maids are allowed inside. The maids limited right to clean the room is not equivalent to a cop searching it.
· BAGS IN PUBLIC TRANSPORT/ BOND v. US
o Cop physically manipulated a bag on an overhead bin on a bus. Ct found this to be a search. Ct said although you expect someone to handle a bag on a public bus one would NOT expect the type of probing examination conducted by the cop here. The Court distinguished this from the aerial surveillance cases by nothing that they involved VISULA observation rather than physical manipulation which the Ct found inherently more intrusive.
G. INVESTIGATION WHICH CAN ONLY UNCOVER ILLEGAL ACTIVITY IS NOT A SEARCH
· There is no legitimate privacy interest in illegal activity. Those engaged in illegal activity are ordinarily protected by the FA only because there is no way to tell BEFORE AN INTRUSION whether or not the activity being investigated is illegal.
· HOWEVER, if a certain mode of investigation can only uncover whether or not illegal activity exists, and cannot disclose innocent activity, then the investigation is NOT A SEARCH because it does not implicate any secrecy interest protected by the FA.
· DOG SNIFFS
o US v. PLACE: A dog sniff of a place or container is NOT a search as it can only tell the officer whether or not contraband is located therein, and there is no legit expectation privacy interest in contraband. (No REP in illegal activity). Cops can arbitrarily use dogs to sniff any piece of luggage, or indeed to roam through a neighborhood without justification.
o SEIZURE OF LUGGAGE IN ORDER TO CONDUCT SNIFF TRIGGERS FA PROTECTIONS
§ The sniff was not a search but the court still suppressed the evidence (cocaine) because before doing the sniff the pigs detained the luggage for 90 minutes. This detention exercised control over D’s property and was a SEIZURE which triggers the FA protections aka the seizure must be reasonable.
§ Here D’s deprivation of his POSSESSORY INTEREST in the luggage was lengthy and severe, and that the length of the seizure could have been minimized if the cops had acted with REASONABLE DILIGENCE (aka had the dog ready when D got off of the plane).
§ Ct held that this search was unreasonable since PC did NOT exist before the sniff (also discussed in Stop and Frisk)
o POSITIVE RESULT DOES NOT ALLOW OPENING THE LUGGAGE
§ Even if a dog sniff is positive, and the seizure giving rise to the sniff is reasonable, it does not follow that the officers can open the luggage. Even with a positive alert there may be legitimate SECRECY INTERESTS contained in the luggage.
§ So while the sniff IS NOT A SEARCH and the info from the sniff is legally obtained, the OPENING IS A SEARCH, which triggers the FA and requires a warrant or some exception.
§ The dog sniff is useful to provide info for a PC determination by either the magistrate or by the officer who searches pursuant to an exception to the warrant requirement.
§ A positive canine sniff can also be used as justification to DETAIN THE BAG PENDING A WARRANT. The detention of the bag would of course be a seizure, but it would be reasonable given the positive alert.
o DOG SNIFFS OF PEOPLE
§ Sct never considered whether the sniff of a person is a search. The FA guarantees personal security as well as privacy. There was no threat to personal security in Place because the dog sniff was conducted without Place even being present.
§ It is possible then that a dog sniff of a person implicates the Fourth Amendment.
o DOG SNIFFS OF ROOMS AND RESIDENCES
§ Lower Cts are split- sniffs only uncover evidence of illegality for which there is no REP which is the argument that the sniff of the outside of a house is not a search (supported by Place)
§ The Counter Argument- because the area intruded upon is more private than that involved in Place. The privacy interest in a residence is more profound than mere luggage (supported by Payton)
o DOG SNIFFS DURING A ROUTINE TRAFFIC STOP
§ IL v. CABALLES- held that a dog sniff conducted during an otherwise lawful traffic stop did NOT violate the FA. The Ct noted that while it is true that a valid seizure at inception can turn into one that violate an individual’s FA rights, here the dog only sniffed the exterior of the car while Caballes was legally stopped for a traffic violation.
§ The sniff did not prolong the time fo the stop nor did it reveal any informati
ty that lies beyond his house and curtilage. The FA does NOT protect such “open fields.” This doctrine permits the search of ALL property beyond the curtilage. The area outside the curtilage is not a person, house, paper or effect thus not protected by the FA. Open fields are not usually a setting for intimate activity and they are usually open to public scrutiny.
· CURTILAGE REMAINS PROTECTED
o If the property investigated is within the curtilage, then the open fields doctrine does NOT apply, and a state intrusion into the curtilage will be a search if the citizen has manifested an expectation of privacy.
o Structures appurtenant to the home, such as porches and decks, are part of the curtilage, at least so long as the structure is not shared with other homeowners and is restricted from public access.
§ 1) The distance between the home and the area claimed to be curtilage.
§ 2) Whether the area is within a fence or enclosure that surrounds the home;
§ 3) Whether the uses to which the area is put correspond to those ordinarily conducted in a home or not and
§ 4) The steps taken by the citizen to protect the area from public view.
o EXAMPLE- US v. DUNN- an entire ranch was enclosed by a perimeter fence, and an interior fence circled the farmhouse alone. A barn was sixty yards from the farmhouse, outside the interior fence. To get to the barn the cops had to pass the perimeter fence and two other fences. Held that the barn was NOT WITHIN CURTILAGE and therefore the cop putting his face against the mesh to see inside was NOT A SEARCH.
§ The distance between the house and barn was substantial, the house was enclosed by a fence which did not include the barn, the cops had objective information that the barn was being used as a place to manufacture drugs, thus not being used for activities associated with the home, and D did not sufficiently manifest an expectation of keeping the barn private from those standing in the open fields.
o AERIAL SURVEILLANCE- a homeowner’s curtilage is not free from aerial observation if members of the public routinely fly overhead and can see into the curtilage with the naked eye (FL v. RILEY).
o INDUSTRIAL PROPERTY- (DOW CHEM): areas surrounding a commercial/industrial building are NOT entitled to the same protection as the area immediately surrounding a home. Such an area cannot be entered from ground level so long as fences excluded the public (as if it were curtilage) but that it could be viewed from air, even with sophisticated sensory enhancement devices not used by members of the public (as if it were an open field) Thus the FA does not recognize the concept of industrial curtilage with respect to aerial surveillance.
L. PUBLIC SCHOOL STUDENTS
· High school students have an expectation of privacy while in school.
· However, the state interest in promoting school discipline and safety may permit school officials to conduct searches without PC or a warrant.
· Generally, REASONABLE SUSPICION (RS) is sufficient to justify searches of public school students. But very intrusive searches, like strip searches, might require a strong governmental interest to justify the searches.
· NJ v. TLO- high school students have some REP while attending school ;they refused to extend Hudson to the school context. Thus a student does not lose all privacy by bringing personal property into school. Ct held that the school official’s opening of a student’s purse was a search, it was reasonable under the Fourth Amendment. The state has a high interest in regulating school discipline even when balanced against a student’s expectation of privacy. So the search was reasonable event though conducted without a warrant and on the basis of RS rather than PC. Ask: was it a search? Then ask was it reasonable?
M. GOVERNMENT EMPLOYEES
· Intrusions into the private areas of Government employees such as a desk or file cabinet, are searches covered by the FA.
· However, the interest in promoting government efficiency may permit searches without a warrant or PC.
· Whether government employees have REP in electronic equipment or technology may depend on the policies set up by their government employers and how those policies are communicated to employees.
· ORTEGA- where the employee keeps private containers such as a desk or file cabinet, a Govt intrusion into that area will constitute a search. The majority held that an employee’s office would be protected by the FA, UNLESS the office was subject to unrestricted public access. The search was conducted on mere RS and without a warrant.
· Ask: Was it a search? Then ask was it reasonable?
· ELECTRONIC SEARCHES (City of Ontario)- whether a police department violated the FA rights of a cop by examining text messages sent and received on a pager owned by the city and issued to the cop. The cop exceeded the allotted usage, so the dept requested transcripts to see whether the cop was using it for personal or business use. The Court said that government searches to retrieve work related materials or to investigate violations of workplace rules ARE REASONABLE. The Court that the search was reasonable since it was for non-investigatory work-related purpose (to determine whether the overcharges were due to work or private uses of the phone) and it would not have been reasonable for D to believe his messages were immune from scrutiny since he was told his messages were subject