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Criminal Procedure
University of Dayton School of Law
Brenner, Susan W.

Fourth Amendment (Search and Arrest Warrants)
Fourth Amendment Introduction
Fourth Amendment (secure . . . against unreasonable searches and seizures and no warrants . . . but upon PC and oath)
Reasonable Clause: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .”
Warrant Clause: “. . . 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.”
Purpose of Fourth Amendment
Protect citizens from the unreasonable actions of the gov’t in searching or seizing people or property
Founded upon premise that British gov’t had been issuing general warrants to search colonists houses or take their property, based not upon any specific information of wrongdoing
Man’s house is his castle; not to be invaded by any general authority to search & seize his goods and papers
Put U.S. and officials in the exercise of their power and authority under limitations and restraints as to the exercise of such power and authority
Scope of Fourth Amendment (must be people; unreasonable search not OK; gov’t action req’d; protects people, not places)
Must be “people”
Who are “the people”? Anyone lawfully in the United States. Not necessarily citizens or even residents.
Fourth Amendment protects people against unreasonable searches and seizures
If reasonable à Fourth Amendment doesn’t forbid the search/seizure
Fourth Amendment protects against official state or federal action
If private action à Fourth Amendment doesn’t apply or forbid the search/seizure or the use of evidence
Location not determinative   
Fourth amendment protects people, not places (Katz)
Key Concepts
What person knowingly exposes to public, even in his own home or office, is not a subject of 4th Amend. protection
What person seeks to preserve as private, even in area accessible to public, may be protected
If device (electronic surveillance) used to conduct the “search” acquired information that could have been obtained through other means (such as watching or following Δ), it is not a search
Home has the highest protection of any place (home is castle); if intrusion enters home, courts are more strict
Were the police in a position they were legally permitted to be when “search” occurred?
Fourth Amendment Threshold Test
Threshold Test
Must be government action; and
Must be either
Search (Katz); or
If test is met (gov’t action and either search/seizure) à implicates 4th Amendment protection
Next question is whether the invasion is constitutional (warrant req’t or reasonable test)
Gov’t Action Req’d
General Rule (must be gov’t action, private action not forbidden)
Fourth amendment only forbids unreasonable gov’t action, not applicable to private action
Private party can conduct any “search” they want without violating 4th Amendment
Can even hand over the “evidence” the private party obtains to police and it is admissible
Exceptions (Gov’t Direction; Gov’t Acquiescence [degree of encouragement]; Gov’t Extends Search)
Gov’t Direction:
If private individual acts at direction of gov’t agent à public search within amendment coverage
If police ask private individual to search suspect à gov’t action
Gov’t Acquiescence
Problem arises when gov’t knows of private search, but doesn’t stop it
Factors to consider
Degree of gov’t encouragement, knowledge, and acquiescence w/ regard to private action
Purpose underlying the private party’s action
Gov’t Extends the Search
When private party conducts a search, obtains evidence and hands it over to police, but the police conduct additional examination à brings subsequent search under 4th Amendment Protection
Effect of Private Action (evidence admissible)
Evidence obtained privat

ed from surveillance under 4th Amendment
Open Field Rationale (unprotected)
Not a person, house, paper, or effect; and
Person doesn’t have reasonable expectation of privacy regarding activities occurring in open fields
No societal interest in protecting the privacy of those activities that occur in open field
Lands are usually accessible to the public and the police in ways that home, office, etc., are not
Fences and No Trespassing signs do not bar public from viewing open fields
Curtilage (quasi-protected)
Area immediately surrounding and in close proximity to the home
Imaginary boundary line between privacy and accessibility to public
Curtilage Rationale
Intimate activity associated w/ sanctity of the home & privacies of life are extended to curtilage
Curtilage Rule
Fact that area is curtilage does not automatically render it protected from warrantless search
Person must take steps to hide the curtilage from the open view of the public
If police could view curtilage from public vantage point à not protected
Curtilage v. Open Field (Dunn Factors)
1) proximity of the area claimed to be curtilage to the home
2) whether the area is included within an enclosure surrounding the home
3) the nature of how the area is used
4) steps taken by owner to prevent observation of the area by passers-by.
Home (protected)
Most protected area, sanctity of home is most sacred and requires protection
Location of Police (Public vantage point à less likely to find expectation of privacy; Aerial Surveillance à OK)
General Rule