1) Fourth Amendment: Prohibition against unreasonable search and seizures
a) Applicability—governmental action (the “who”)
i) Government action includes:
(1) All gov. officials—not just police officers.
(a) Ex: public school officials
(2) Off-duty police officers, even when acting as private security guards
(3) Special police officers
(a) Individuals deputized and commissioned by the governor as special police officers are exercising governmental powers that involve state action when they are enforcing the general criminal law on their employer’s property
(4) Private individuals acting under government direction
(a) Private individuals who act as agents or instruments of the government or act at the direction of, or on behest of, governmental employees
(b) Police instigation of, or participation in, a search conducted by a private party makes it governmental conduct
(5) Private employer acting pursuant to governmental regulations
(a) Ex: governmental mandate or strong encouragement transforms private action to government action
ii) NOT governmental action
(1) Searches of foreign citizens by U.S. officials outside U.S.
(2) Searches of U.S. citizens by foreign officials outside U.S.
(3) Private security personnel
(4) Bail bondsmen
iii) Maybe governmental action
(1) Governmental search exceeding earlier private search
(a) Depend on the degree of expansion of the prior private search
(i) Significant expansion of the private search = government action
(ii) No significant expansion = private action
1. however, a minimal additional intrusion does not = governmental action
(2) Police acting outside their jurisdiction
(a) Police authority does not go beyond their physical jurisdiction
(i) Therefore, when they arrest outside their jurisdiction, police officers are private citizens
(b) Police acting as state actors
(i) Ex: MD police obtained a warrant to search a vehicle but learned that it had been moved to D.C. When the police went to D.C. and towed the vehicle back to MD to execute the warrant, they were acting as police and not as private citizens
(c) Police arresting on valid arrest warrant
(i) An individual has no constitutional right to be arrested by police from a particular jurisdiction,
(ii) An extra-territorial arrest was valid when based on a valid arrest warrant
b) applicability – reasonable expectation of privacy (the “what”)
i) Defendant has a REP if
(1) D has an actual subjective expectation of privacy, and
(2) Society is willing to recognize that expectation as objectively reasonable
ii) Persons: There is an REP is one’s person
(1) REP in one’s person, even when in vehicle of another
(a) When an officer, through physical force or a show of authority, exercises control over the vehicle and restrains the passenger freedom of movement, such that a reasonable person wouldn’t feel free to leave, the passenger is seized, has an REP in his person and has standing to challenge the stop.
(2) REP in medical information in one’s own body fluids
(a) Employees who were required to provide urine samples had an REP in the medical information obtained from that seizure
(3) No REP in conduct that can be viewed by others
(4) No REP in physical characteristics
(a) No search, because there is no REP, when subpoenas issued for physical characteristics.
(i) Ex: voice, writing exemplars
(b) However, for field sobriety tests, although D lacks REP in physical characteristics, e.g. slurred speech, stumbling, D has REP in the private info about his physical or physiological condition
(5) REP against 3rd parties as to the content of private conversation but not against person with whom speaking or as to numbers dialed
iii) Houses: there is an REP in one’s home
(1) REP against intrusion into home, even when no physical entry
(a) Thermal imaging
(b) Monitoring of a beeper in defendant’s home
(2) When can D claim a REP in a home?
(a) REP for overnight guest
(i) Regardless of whether he actually lived there or had a key
(b) No REP for guest not “overnight” that night
(i) Although D may from time to time spend the night there, if at the time of arrest not overnight guest, as evidenced by no belongings, no key, not receiving mail there, no telephone, no authority to invite or exclude guests, NO REP
(c)
t devices that are available to the general public
viii) CDS
(1) No REP in CDS in curtilage viewed from navigable airspace
(2) REP in luggage on bus not abandoned
(3) No REP against K-9 sniff in public
(4) No REP in K-9 sniff common areas of apartment building
(5) No REP against K-9 sniff during valid stop, provided time for the stop is not extended
(6) No REP in controlled delivery
ix) No REP as to obscene materials for sale in public places
x) No REP in bank records voluntarily given to bank
d) Applicability – standing (the “whom”)
i) For the Fourth Amendment to be applicable, the “searchee” must have standing to challenge the intrusion
(1) Standing factors:
(a) Ownership
(b) Possessory interest less than ownership
(i) Ex: having a key or the right to exclude others
(c) Shared office
(d) Personalty on premises
(i) No standing if police only search the personalty and not the property (if D doesn’t own the property)
(2) Standing limited to one’s own rights and not rights of others
(3) Passengers
(a) No standing as to items seized from the vehicle when passengers
(i) Did not assert a property or possessory interest in the vehicle or in the evidence seized, and
(ii) Failed to show an REP in the glove compartment or area under the front seat in a vehicle in which they were merely passengers
(b) Standing as to seizure of the person
(i) When an officer, through physical force or a show of authority, exercises control over the vehicle and restrains the passenger’s freedom of movement, such that a reasonable person would not feel free to leave, the passenger is seized and has standing to challenge the stop
(4) Bailments
(a) No REP in another’s person or effects
