PART 1: Search and Seizure – The 4th Amendment Framework.
I. Introduction to the fourth amendment.
a. 4th amendment language: “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 an oath of affirmation, and particularly describing the place to be searched and things to be seized.”
b. No Judge or Magistrate Approval. Early belief of the court was that searches conducted outside the judicial process, without prior approval by judge or magistrate are per se unreasonable under the 4th amendment. (Mincey v. AZ)
c. Reasonableness. Balancing test. A search will be reasonable to if the degree to which it intrudes on someone’s privacy outweighs the degree to which it is needed to promote legitimate governmental interests. (US v. Knights)
II. Does the 4th Amendment Apply?
a. Governmental Actor. The fourth amendment applies only to governmental, not to private conduct.
i. Rule: You must have a governmental actor. Intended as a restraint upon the activities of a sovereign only. (Burdeau v. McDowell)
1. Governmental Actor Definition. Includes a government agent and when a private individual acts at the direction of a government agent or pursuant to an official policy, the search implicates the amendment.
a. Acts at direction. Determined based on the totality of the circumstances.
2. Examples of Actor acting at govt. direction. Where police direct an airline or hotel employee to open a traveler’s suitcase, the fourth amendment is triggered.
3. Potential Issue: What about regulations of private school systems?
b. Search. There is a notion of privacy under the 4th amendment. In Katz v. US, the court determined that the 4th amendment protects people, not places. Therefore, a search is not gauged based on whether there was a physical intrusion.
i. What constitutes a search? Did the governmental intrusion violate a notion of privacy that the citizen justifiably relied upon?
1. Test. (Harlan Concur) The 4th amendment applies only where:
(a) The citizen has manifested a subjective expectation of privacy; and
(b) The expectation of privacy is one that society (through the court) accepts as objectively reasonably. (CA. v. Greenwood)
(i) It is not enough that the person believe they are acting in private – that belief must be deemed reasonable.
ii. Is a search protected by the 4th amendment?
1. Plain View Doctrine and Assumption of Risk.
(a) Rule. Anything done in public or observable to members of the public, is also observable to the police. Police cannot be expected to avert their eyes from evidence of criminal activity. Therefore, these public acts are not protected by the 4th amendment.
(i) Communication to Third Parties. One who conveys information to a third party, even in an apparently pri
(i) Proximity of the area claimed to be curtilage
(ii) Enclosure. Is there an area included within an enclosure surrounding the home?
(iii) Usage. The nautre of the uses to which the area is put.
(iv) Protective measures. What steps are taken by residents to protect the area from passing people?
(bb) Exception. Privacy Expectation Concept (see Below) Outdoor property may fall within curtilage for groundlevel observation yet not fall within curtilage for purposes of aerial observation (CA v. Ciralo)
(ii) Open Field / Public Area.
(1) Unprotected. Open fields do nto provide the setting for those intimate activities that the 4th amendment is intended to shelter from government interference or surveillance.
(iii) Businesses. Protected: City v. Seattle.
(iv) Automobile. Generally no right of privacy.
(1) Cops can examine the exterior of a car if they are in a lawful vantage point.
(2) Plain View. Looking at objecs inside a car through a window is not a search
