Stinneford_PolicePractices_Fall_2014
Fourth Amendment
1) Text: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, 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.”
a) Only limits governmental action; “people” is not all-inclusive [think of national community]
b) Searches conducted outside the judicial process, without prior approval by judge or magistrate are per se unreasonable under the Fourth Amendment [warrants need PC]
2) “Search”:
a) *Katz: [Fourth protects people, not places][includes electronic intrusions][phone booth!]
i) Majority: what a person knowingly exposes to the public is not protected; but what he seeks to preserve as private may be constitutionally protected
ii)
Two tests for searches:
a) Katz & gii) Jones
Concurrence: two-fold requirement: [standard used] [if police violate à search]
(1) A person must have exhibited an actual [subjective] expectation of privacy, and
(2) The expectation be one that society is prepared to recognize as “reasonable” [objective]
b) White: [Fourth does not protect oral conversations between a person and a gov’t informant]
i) Third-party exposure doctrine: if a party knowingly exposes information to a third party and that party betrays them, there can be no claim of a Fourth Amendment violation
(1) Party assumes the risk that a friend might actually be a foe [no reasonable expectation of privacy exists – Katz factor]
c) Smith v. MD: [pen register installed for police surveillance by phone co. – not a search]
i) Considered more like White, less like Katz: third party betrayed Δ & he assumed the risk that they would do so [no reasonable or actual expectation of privacy in #’s dialed]
d) “Dog Sniffs”
i) Place: sniffing in a passenger’s luggage to find narcotics = less intrusive than a typical search [info obtained is limited]
ii) Caballes: official conduct that does not compromise any legit interest in privacy ≠ search [used sniff test on exterior of car’s trunk] [no legit interest in contraband]
e) Open fields doctrine: police entry of an open field does not implicate the Fourth Amendment [may include any unoccupied or undeveloped area outside of the curtilage of a home][no LEP]
f) Curtilage: [area immediately joining the home] [reasonable expectation of privacy]
i) Four factors to consider:
(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 the uses to which the area is put
(4) Steps taken by resident to protect area from observation of passersby’s
ii) It does not follow from the fact that an area is identified as a curtilage that police surveillance of it inevitably constitutes a Fourth Amendment search [aerial surveillance!]
g) Technological advances:[LEO cannot use technology that would reveal info about interior that they could not otherwise have obtained without a warrant]
i)
*Important ways to define search:
Katz, Kyllo, Jones, Jardines
*Kyllo: [using thermal imaging device to determine if more heat was emanating from house]
(1) Where the gov’t uses (1) sense-enhancing technology that is not in (2) general public use, to explore details of a (3) home that would previously have been unknowable (4) without physical intrusion, the surveillance is a search and is presumptively unreasonable
(2) Do not want homeowners to be at the mercy of advancing technology – intimate nature; privacy expectations are most heightened in the home
ii) *Jones: [used GPS to track Δ’s car with expired warrant = search][focuses on GPS on car]
(1)
Two tests for searches:
a) Katz & gii) Jones
Unlawful physical intrusion on a constitutionally protected area [person, house, paper, or effect] for the purpose of gathering information is a search [not really used anymore]
(a) Used “trespass rule”: a technical trespass followed by the gathering of evidence constitutes a search [alternative to Katz standard]
iii) *Jardines: [dog sniff used outside Δ’s front door; discovered weed after warrant][search!]
(1)
Builds on Jones!
When the police make an unlicensed physical intrusion into a constitutionally protected area for the objective purpose of gathering information, that is a search
(a) Includes implicit license limitations [knock & talk is OK][intrusive snooping not OK]
(i) Implicit license to approach home by front path; but is limited to a particular area & specific purpose [police questioning is different from normal public usage]
3) “Seizure”:
a) Karo: [swapping out can of ether for one with beeper inside; consent from original owner]
i) A “seizure” of property occurs when there is some meaningful interference with an individual’s possessory interest in that property [IC: no seizure]
b) Four categories of seizable items: [gov’t has right to seize]
i) Contraband – evidence that cannot be lawfully possessed by private party
ii) Fruits of a crime – what Δ got out of the crime
iii) Instrumentalities used in the commission of an offense
iv) “Mere evidence” – valuable item that would help police in apprehending or convicting Δ
c) Seizure of a person = arrest or when the officer, by means of physical force or show of authority has in some way restrained the liberty of the citizen
4) Probable Cause: [search or seizure conducted without PC is ordinarily considered unreasonable]
a) To arrest: where the facts and circumstances within the officers knowledge and of which they have reasonably trustworthy information are sufficient in themselves to warrant a reasonable man caution in the belief that an offense has been or is being committed by the person to be arrested
b) To search: evidence subject to seizure will be found in the place to be searched
c) There’s no mathematical formula for determining PC – not more likely true than false standard
i) There needs to be a heightened degree of likelihood of discovering evidence when the police wish to conduct a hyper-intrusive search [PC+; ex: blood sample]
d) Overruled: Spinelli: [after getting a tip, FBI tracked Δ’s movements, checked with phone co., & investigated]
i) *An informants tip is not enough to establish probable cause [police suspicion doesn’t help]
(1) Police must corroborate more than just seemingly innocent conduct!
ii) Aguilar two-prong test for PC through corroboration from a tip:
(1) Did the
and where there is reason to believe that evidence would likely be destroyed if advanced notice were given
(1) Knock & announce violation does not get remedied by exclusion of evidence
iii) Richards: [LEO maintenance man, knocked, waited 2-3 secs, then rammed door]
(1) No blanket exception to knock & announce requirement for felony drug investigations
(2) For a no-knock entry, police must have a reasonable suspicion that knocking & announcing their presence would be dangerous or futile or inhibit the effective investigation of the crime [less demanding than PC]
(3) Evidence does not get suppressed if there is a knock and announce violation
iv) Waiting period: after 15-20 seconds without a response, it is fair for police to suspect that contraband could be destroyed if they were reticent any longer [US v. Banks]
v) In anticipation of a warrant: example of a middle way for police to protect before exigent circumstances
(1) Police prevented a man suspecting of possessing marijuana from destroying the contraband by making him stand outside of his home or accompanied inside by an officer until a warrant was obtained [IL v. McArthur]
vi) After entry: scope:
(1) Once lawfully on premises, various search principles apply:
(a) May search containers large enough to hold evidence for which they are searching
(b) May seize an object not described in warrant if they have PC to believe it is a seizable item [plain view doctrine]
(c) Info that becomes available to officers immediately before or during the warrant may require them to cease or narrow their search
vii) Seizure of persons during warranted searches: a warrant to search a residence for contraband founded on PC implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is being conduct [right to use reasonable force to secure and maintain detention of the occupant] [seizure does not need PC or reasonable suspicion]
7) When are warrants required?
a) Searches without prior approval by a magistrate conducted outside the judicial process are per se unreasonable under the Fourth Amendment – subject to a few specifically established & well-delineated exceptions
b) Exigent circumstances: [need PC to believe Δ is guilty of crime or evidence is located there]
i)
Warrant Exception #1
Exigencies that may justify a warrantless search of a home: [need PC to believe that if LEO does not enter immediately, one of these will happen]
(1) Emergency aid to an injured occupant or to protect an occupant from imminent injury
(2) Hot pursuit of a fleeing suspect
(3) Need to prevent the imminent destruction of evidence
(4) Safety of cops
