Whether the search and seizure is governed by the 4th amendment (the threshold question)
· Was the search and seizure executed by a government agent?
o In order for the 4th amendment to apply the search and seizure has to be conducted by an agent of the government.
§ There are 3 categories
· Public paid police.: On or off duty
· Private citizens when acting at the direction of the police.
· Public school administrators.
§ Who is NOT a government agent?
· Private security guards…etc
· A Search occurs when: 1) physical intrusion; 2) reasonable expectation of privacy
· Was there a reasonable expectation of privacy in the area searched or the items seized? Did an unreasonable search + seizure occur? (reasonable expectation of privacy)
o Katz v. US: established reasonable expectation of privacy standard for the 4th amendment cases. If you act like you don’t have privacy then you don’t. you only have as much privacy as you act like you have!
§ Gov’s activities in electronically listening to and recording D’s words spoken into telephone receiver in public telephone booth violated the privacy upon which D justifiably relied while using the telephone booth and thus constituted a search and seizure within 4th amendment. Lack of trespass, penetration, into the phone booth by the device was held to have no constitutional significance. The court held that the search and seizure was invalid without a warrant, even if the government could show after the fact that a warrant would have been granted if requested.
§ Search or seizure occurs when reasonable expectation of privacy has been violated
o US v. White: individuals don’t have a reasonable expectation of privacy in their conversations with others. Reasonable expectation of privacy is the applicable standard going forward.
§ Where radio transmitter was concealed on the person of an informant with knowledge of the informant, and where conversations between the informant and the D at various locations including D’s home, were overheard when the frequency of the transmitter was monitored, without warrant, by government agents, who testified as to the conversations at D’s trial, there was no violation of D’s 4th amendment right to be secure against unreasonable searches and seizures.
§ This applies to “bugged” individuals most often.
§ When a person misplaces his trust and makes incriminating statements to an informer, he does not have any justifiable expectation of privacy which has been violated—
o Smith v. Maryland: installation and use of a pen register by a telephone company does not constitute a search within the meaning of the 4th amendment. No reasonable expectation of privacy as to the means of communication.
§ Smith v. Maryland says that this is ok without a warrant so long as they don’t try to get the substance of the phone calls. Only number called; not convo.
o California v. Ciraolo: warrantless (aerial) observation of fenced in backyard within the curtilage of home was not unreasonable under the 4th amendment. Case defines home, curtilage and open fields doctrine.
§ Plain view!
§ Even though you own the land, your expectation of privacy isn’t equal on all parts of your property.
· Inside a fence = curtilage
· Outside a fence= no expectation of privacy
· Plane flying = ok. No expectation of privacy. Ciraolo
§ Curtilage: proximity (closer = curtilage); Enclosed=curtilage; domestic= curtilage; steps taken to protect area from observation (more protective=curtilage)
§ Don’t have to get a warrant for observing what is visible to the naked eye. (anyone could see it)
§ Open fields doctrine opened the door for grow houses; open fields are not curtliage
§ Reasonable expectation of privacy has begun to decrease the 4th amendment protections.
o Bond v. US: the 4th amendment analysis (determining whether a search was unreasonable) 1) Whether the individual, by his conduct has exhibited an actual expectation of privacy; and 2) Whether the individuals expectation of privacy is one that society is prepared to recognize as reasonable.
§ The subjective intent of the law enforcement officer that is whether he was motivated by law enforcement purpose is irrelevant in determining whether that officer’s actions violated the 4th amendment,
§ He did not have expectation that employee or other passenger would feel the bag in an exploratory manner.
o Kyllo v. US: obtaining by sense-enhancing technology any info regarding the interior of a home that couldn’t otherwise have been obtained without physical intrusion into a constitutionally protected area. Constitutes a search at least where the technology in question is not in general public use.
§ This technology is not available to public and the public then has a reasonable belief that it wont be used against them.
o US v. Jones: THRESHOLD TESTàWhere the government obtains info by physically intruding on constitutionally protected area, a search within the original meaning of the 4th amendment has occurred.
§ gov install of a GPS tracking device on a target’s car and its use of that device to monitor car movement constitutes a search within the meaning of the 4th amendment.
o Florida v. Kardines: the curtilage of a
on of privacy in the apartment, and thus any search which may have occurred did not violate their 4th amendment rights.
· Has to be an individual’s personal privacy rights that are invaded.
· May claim in 5 contexts
o If they own the premises searched (always)
o They don’t own it, but they reside there…a renter. (always)
o Neither own nor reside, but overnight guests always as to areas they can be expected to access.
o Don’t own, or reside, not an overnight guest, but you are using it for business purposes. (no) Cocaine case
o You own the property seized
§ Only if there was a reasonable expectation of privacy in the area from which the property was seized.
o If you are a passenger in a car, you do not have standing. There is no reasonable expectation of privacy in the vehicle for things in a glove box. The driver does, if it is their car.
· Is there PC to either arrest or search?
o Define PC
§ Probable cause to arrest: facts and circumstances within the cop’s knowledge and of which they have reasonably trustworthy info are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed by the person arrested.
· Certain quantum of evidence
o A particular person
o Is committing or has committed a crime.
§ Probable Cause to search: Exists if the facts and circumstances whithin the cop’s knowledge and of which they have reasonably trustworthy info are sufficient in themselves to warrant a man of reasonable caution in belief that an item subject to seizure will be found in the place to be searched.
· Certain quantum of likelihood that:
o Property subject to seizure
o Is presently
o In the place to be searched
§ PC to search: reasonably likely that: 1) Items to be searched are connected with the criminal activities; 2) these items will be found in the place to be searched
§ PC to arrest: reasonably likely that: 1) violation of law has been committed; 2) the person to be arrested committed the violation
o How much evidence is needed
o What tests/facts/factors are used