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Criminal Procedure
Stetson University School of Law
Scully, Judith AM




Fourth Amendment

I. Basic Concept

A. Prohibits against unreasonable searches and seizures conducted by government actors

B. When a warrant is issued, requires probable cause, an oath, and a particular description (but does not specify when a warrant is required

II. Government Action

The Fourth Amendment only prohibits unreasonable conduct by government actors

A. Burdeau v. McDowell – defendant’s papers were stolen by a private detective, but were later handed over to the government, court held papers were admissible b/c they were not illegally seized by the government

B. Rochin v. California – unreasonable search and seizures conducted by government actors implicate the Fourth Amendment, egregious government conduct that shocks the conscience implicated due process concerns

C. When does private action become government action?

1. When the government knew of and participated in the conduct

2. When the private actor’s purpose was to assist the government rather than to further his own ends

3. When the private actor can be said to be an intentional instrument or agent of the government at the time of the search or seizure

D. Skinner v. Railway Labor – Federal Railway Administration regulations that authorize private railroads to take breath and urine samples from employees implicate the Fourth Amendment, the private railroads were acting as instruments or agents of the government

E. United States v. Jacobson – even where the private action is without endorsement or participation from the government, it could still implicated the Fourth Amendment if the later government action intrudes further on the party’s privacy interests than the private action did

III. Standing

Who may complain about searches and seizures?

A. Rakas v. Illinois – defendants, passengers in a car, were stopped and searched by police, police found a rifle under the front passenger set and a box of shells in the glove box, defendants challenged the evidence but the court held they did not have a legitimate expectation of privacy in the area searched b/c they did not show complete dominion and control and the right to exclude others

1. Standing inquiry from Katz – anyone legitimately on the premises where the search or seizure occurred could challenge it

2. Court redefined standing inquiry –

i. First, did the defendant have an expectation of privacy in the place searched or a possessory interest in the item seized?

ii. Second, was the search or seizure legitimate or unlawful?

B. Standing in places a defendant has no authority to be in –

1. Defendants may be denied standing when they had no legal authority to present

2. United States v. Boruff – defendant was denied standing to challenge search of car b/c it was a rental car and although he had permission from his girlfriend to drive it the rental agreement specified that she was the only legally permissible driver

C. Standing in places of business –

1. Look at factors, unless office is so open to the public that there could be no reasonable expectation of privacy

2. Factors –

i. Employee’s relationship to the area searched or items seized

ii. Whether the item was in the immediate control of the employee when it was seized

iii. Whether the employee took actions to maintain his privacy in the item

iv. Whether the employee was present at the time of the search

v. Whether the employee had a right to exclude others from the area searched

IV. What is a “Search”?

A. Search of a person or a thing – occurs when a government actor invades an individual’s reasonable expectation of privacy

B. Katz v. United States

1. Katz was convicted of 8 counts of transmitting wagering information by telephone

2. At trial and over Katz’s objection, the government introduced evidence of telephone calls made from a phone booth which the FBI had tapped with an electronic listening and recording device

3. Court of Appeals affirmed conviction, finding there had been no government physical entrance into the booth area occupied by Katz

4. Supreme Court reversed conviction, finding the device violated the privacy that Katz justifiably relied upon while using the phone booth

5. The Fourth Amendment protects people not places –

a. What a person knowingly exposes to the public is not protected

b. What a person seeks to keep private is protected, thus what a person does to protect his privacy becomes an important inquiry

6. Katz sought to exclude the uninvited ear from his telephone calls when he entered the booth to make them

7. Silverman v. U.S. – the Fourth Amendment governs the seizure of tangible items as well as he recordings of oral statements, even if there is no technical trespass

8. Tapping the phone booth was unlawful b/c the FBI conducted it without a warrant

9. The Katz Test – (from Justice Harlan’s concurrence)

i. In order to be constitutionally protected…

a. (1) a person must exhibit an actual expectation of privacy (subjective)

b. (2) the expectation must be one that society recognizes as reasonable (objective)

ii. A violation occurs when government officers violate a person’s reasonable expectation of privacy

10. Dissent, textualism argument –

i. The words of the Fourth Amendment (persons, houses, papers, effect…describing the place to be searched, and persons or things to be seized) indicate tangible things to be searched or seized

ii. A conversation is not tangible and can neither be searched nor seized

C. Katz Factors

1. Location

i. Oliver v. U.S. – open fields doctrine

a. Open fields are not protected by the Fourth Amendment

b. An individual may not legitimately demand privacy for activities conducted out of doors, except in the curtilage or area immediately surround the home

ii. United States v. Dunn – vantage point

a. Barn on defendant’s property was not curtilage of his home, but was part of the open field because…

1. It was not proximate to the house (it was 60 yds away)

2. It was outside the fenced-in area surrounding the home

3. The use of the bar was not associated with home or domestic life (drug lab)

4. The defendant had done nothing to prevent persons from seeking the barn from the field

iii. Factors in determining whether area is curtilage or in an open field –

a. Proximate location to the home?

b. Outside or inside fenced-in area?

c. Use or nature of use of the home?

d. Any measures taken to prevent outsiders from viewing?

iv. Vantage point – no reasonable expectation of privacy exists in physical characteristics that are observable to the public

v. Outside the U.S. and on the border –

a. United States v. Verdugo-Urquidez – in order to claim protection under the Fourth Amendment, an individual must have substantial connections to the U.S.

1. Look at citizenship – U.S. or foreign?

2. Look for any ties to the U.S. – regular business in the U.S.?

3. Look at location of search or seizure – not dispositive though

b. United States v. Flores-Montano – expectations of privacy at U.S. borders are less b/c the government interest in protecting the borders is high, reasonableness of a border search depends on the intrusiveness of the search

2. Assumption of Risk

i. Agents & Informants

a. Hoffa v. United States – while on trial, Hoffa met with Partin in his hotel room and discussed bribing jury members, Partin told federal agents, Court held Hoffa was not relying on security of hotel room but misplaced confidence that Partin would not tell anyone

1. The Fourth Amendment does not protect individuals from misplaced confidence they may have in people that they confide in

b. Lopez v. United States – risk of being overhead by an eavesdropper or betray

rty Interests (not dispositive)

a. Rawlings v. Kentucky – property interests matter in determining whether an individual’s expectations of privacy are reasonable

b. California v. Hodari – items abandoned voluntarily during a police chase no longer belong to the individual and can be searched or seized without violation

viii. Overnight Guests

a. Minnesota v. Olson – Court held Olson had a privacy interest in the home of two women he was staying with b/c he was considered an overnight guest

b. Minnesota v. Carter – a temporary visitor is not afforded a privacy interest as an overnight guest (ex – someone who spends 2 hours at a house for a drug deal)

ix. Business Office Space

a. O’Connor v. Ortega – Court found a reasonable expectation of privacy in an individual’s office, but noted it was less than that afforded in the home

b. Look at individual’s relation to the office – personal office? illegal items openly displayed in office? common work space?

x. Canine Sniffs

a. United States v. Place – in a public place, a canine sniff does not constitute a search as it does not require any physical intrusion

b. Illinois v. Caballes – a canine sniff during a traffic stop does not violate the Fourth Amendment as long as it does not prolong the length of the stop

c. Jardines v. Florida (FL Supreme Court) – a canine sniff at the front door of a home constitute a search under the Fourth Amendment

xi. Legality of Activities

a. Individual enjoy little to no privacy expectation when they engage in purely illegal activities

b. Muehler v. Mena – pursuant to a warrant police searched Mena’s home for gang-related contraband, while handcuffed police also questioned Mena about her immigration status, Court held the questioning did not violate the Fourth Amendment b/c it did not extend the duration of the search

D. Scale of Privacy Expectations

1. Most – individuals are afforded the largest privacy interest in their homes, courts have held that homes are sacred

2. Least – individuals’ privacy interests are reduce in places such as school setting and prisons, and also when their cars are in public places and you can see through the windows

V. What is a “Seizure”?

A. Seizure of a person – occurs when a government actor significantly interferes with a person’s freedom of movement

B. Seizure of a thing – occurs when a government actor meaningfully interferes with an individual’s possessory interests in his property

1. Seizure of evidence left by an individual is admissible

C. Relevant perspective in whether a person has been seized is that of the citizen –

1. United States v. Mendenhall – whether a reasonable person would believe he was not free to leave in light of all the surrounding circumstances

2. Factors giving rise to a reasonable belief that a person is not free to leave –

i. Threatening presence of several officers

ii. Display of weapons by officers

iii. Some physical touching of the person of the citizen

iv. Use of language or tone of voice indicating that compliance with the officer’s requests might be compelled

v. Whether entrances or exists were blocked