Criminal Procedure – Phillips 2002
There are three main issues in the Fourth Amendment:
1. Whether the Fourth Amendment even applies to the kind of conduct?
2. Whether the Fourth Amendment prohibits the kind of conduct.
3. Whether evidence obtained through a violation of the Fourth Amendment will be available as proof in criminal and other proceedings.
Supreme Court cases are underlined
No
FLOW CHART
4th doesn’t apply
Was the action by the government?
Yes
No
4th doesn’t apply – gov’t can act arbitrarily
Was the action technically a search or seizure?
Yes
Was a warrant issued?
Yes
No
Then find a valid exception
Pretextual Search
Incident to Arrest
Stop and Frisk
Plain View
Auto Search
Exigent Circumstances
Administrative
Consent
Then is the Warrant Valid?
Probable Cause
Oath or Affirmation
Neutral Magistrate
Particularity
Execution
I. DOES THE FOURTH AMENDMENT APPLY TO THE KIND OF CONDUCT?
A. Was the action by the government?
The 4th Amendment only applies to action by the government or its agents.
B. Was the action Technically a Search or Seizure?
1. Consequence of finding a “search” or “seizure” – The consequence of finding a search or seizure is merely that the government is required to act reasonably, whereas the consequence of not finding a search or seizure is that government officials can act unreasonably and arbitrarily.
2. “Search” and “seizure” determined by Katz Test – Courts decide whether government activity rises to the level of a search or seizure by examining a citizen’s legitimate expectations of privacy using the two-pronged test in Justice Harlan’s concurring opinion in Katz:
(1) Has the citizen manifested a subjective expectation of privacy?
(2) Is the interest one that society is prepared to accept as reasonable?
3. Factors going to a legitimate expectations of privacy – Citizens have at least three legitimate privacy and possessory interests: (1) being free from physical disruption and inconvenience, (2) an interest in secrecy, and (3) possessory interests, courts have required citizens to take vigorous measures to protect their claimed privacy interests.
a) A person does not have a legitimate expectation of privacy – even by employing “No trespassing” signs and fences – in an open field, See Oliver, but if the property falls within the curtilage or house, then there will be search if the citizen has manifested an expectation of privacy and is not sharing the property with other homeowners or the public. This open fields doctrine only allows “observation searches”, not touching or digging. See Husband v. Bryan.
(1) Factors going to curtilage. See Dunn.
(a) Proximity of the area claimed to be curtilage to the home
(b) Whether the area is included within an enclosure surrounding the home
(c) The nature of the uses to which the area is put
(d) The steps taken by the resident to protect the area from observation by people passing by
b) There is no search if the police obtain information that is foreseeably obtainable by the public or voluntarily turned over to a third party.
(1) Consensual electronic surveillance. See White (no search occurred where police electronically eavesdropped on a two-party conversation with consent of one of the parties)
(2) Inspection of bank records. See Miller (the records were accessible to the bank, and thus no reasonable expectation that they would be free from government surveillance)
(3) Pen registers. See Smith v. Maryland (no legit. expect. of privacy in numerical info turned over to telephone company). But see People v. Bialostok (search when pen register had audio capacity).
(4) Pagers – The person transmitting his number has no expectation, but the pager owner does. See Meriwether; Chan.
(5) Cordless phones. See State v. Neisler (ease of intercepting signal makes “any expectation of privacy … objectively unreasonable”).
(6) Inspection of trash. See California v. Greenwood (exposing trash to public defeats expectation of privacy). See also Hedrick (inspection of trash near garage not a search). The expectation of privacy increases as trash is placed on curtilage areas.
(7) Homeless have reasonable expectation of privacy in the contents of a duffel bag and box kept on public property. See Connecticut v. Mooney. But not reasonable if on private property without permission. See D’Aguanno v. Gallagher.
(8) Bathroom Stalls raise the question of whether the officer could make her observations without placing herself in a position unexpected to the occupant of the stall. See White.
(9) Aerial surveillance is okay if the officer has a right to be at the vantage point. See California v. Ciraolo. See also Dow Chemical Co. (“taking aerial photographs of an
bandonment is inconsistent with a privacy or possessory claim.
II. DOES THE FOURTH AMENDMENT PROHIBIT THE KIND OF CONDUCT?
A. Was there a Warrant?
1. Reasonableness generally requires a warrant – The Fourth Amendment has two clauses – the warrant clause sets the requirements for obtaining warrants; the reasonableness clause sets a general standard that all searches and seizures must be reasonable. In practice the reasonableness clause establishes a dual requirement that a search or seizure must be executed with a warrant based upon probable cause. Thus the clauses are related in that a search or seizure conducted without a warrant is presumed unreasonable. See Johnson.
2. The Warrant Requirement – In order for a search or seizure to be reasonable, probable cause must be shown by the officer on the record before a search is conducted through facts that particularly describe the place to be searched and the things to be seized. This protects citizens from unjustified and arbitrary searches and seizures. See Johnson.
3. Exceptions to the Warrant Requirement (discussed fully in part III)
a) Exigent Circumstances – Only probable cause is required where a warrant is impracticable to obtain.
b) Limited Search – Neither probable cause nor a warrant required where the police conduct is limited to investigate possible criminal activity or weapons to protect the officer.
c) Non – Criminal / Administrative Search – Neither probable cause nor a warrant required when the search is for other than criminal law enforcement purposes.
d) Incident to Valid Arrest – Neither probable cause nor a warrant required.
e) Consensual Search – Neither probable cause nor a warrant required where citizen gives consent.
f) Public Arrest – Only probable cause required – no need for arrest warrant – where a citizen is arrested in public.
g) Plain View / Plain Touch Doctrine – Only probable cause is required to seize an incriminating object is in plain view or plain touch of the officer
h) Automobile Search – Only probable cause required to search an auto or other form of transportation
B. Was a Valid Warrant Properly Obtained?
Generally speaking, the Fourth Amendment requires every search or seizure to be made pursuant to a warrant issued upon probable cause. A warrant is a document issued by a judicial officer, usually a magistrate, authorizing a law enforcement official to make a search or seizure.
