Criminal Procedure – King – Fall 2014 – Dressler Casebook
4th AMENDMENT
· The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches & 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
Threshold
Search
· SEARCH AFFECTS PRIVACY INTERESTS
· Katz v US (1967): formally rejected property rights/trespass approach in holding that recording of phone booth conversations was 4th Amdt. search.
o 4th Amdt does not protect what one knowingly exposes to the public (even if in home/office)
o Areas accessible to the public may be protected if the person seeks to preserve privacy: by entering a phone booth & shutting the door, occupant seeks to exclude “uninvited ear.” By bugging & recording his convo police violated the privacy upon which he justifiably relied in using the phone booth.
Police conduct amounts to a SEARCH when it intrudes upon a reasonable expectation of privacy:
· 1. Person must have an actual, subjective expectation of privacy; and
· 2. The expectation must be one that society is prepared to recognize as reasonable
· OBJECTIVE PRONG (#2): where most issues arise. Relevant factors in analysis–
o Site/nature of the property inspected:
§ Open fields = no protection
§ Curtilage = some protection
§ Home = strictly protected
o Extent to which the person has taken measures to keep information, his property, or an activity private
§ 1- Per Katz, cannot possess reasonable expectation of privacy in what is knowingly exposed to the public or is otherwise in open view
§ 2- One who voluntarily conveys info/property to another assumes the risk that the individual is a govt. agent or will transmit the info/property to a govt. agent
o Degree of intrusion experienced
INFO DIVULGED TO 3RD PARTIES: “Assumption of risk”
False Friends: Eavesdropping by criminal informants/undercover agents consistently upheld under 4th Amdt.
US v White (1971): through electronic radio transmitter, police monitored W’s conversations with informant taking place in W’s home, restaurant, & in CI’s car/home. Issue: whether his expectation of privacy in the conversations was objectively reasonable. Court ruled that it wasn’t & held that no search occurred.
· General rule: no search occurs when CI listens to convo and later reports it to police. Court reasoned that analysis shouldn’t change merely because the info is recorded. à No meaningful difference between electronically equipped agent & unequipped agent. + Info is more accurate this way
· Harlan Dissent: concerned with human relationships. This decision will undermine the confidence among people in society. Applying 4th Amdt. here wouldn’t end eavesdropping, would only require a warrant first
Phone Numbers:
Smith v Maryland (1979): per police request, telephone company installed a pen register to disclose the numbers dialed from suspect’s home; nothing about the contents of the communications were discovered. Held: no reasonable expectation of privacy in the numbers he dialed.
· Subjective expectation – speculative. Everyone is aware that the phone co. can record phone numbers dialed, if only for the purpose of identifying harassment.
· Even if S had a subjective expectation of privacy, the expectation was unreasonable. By knowingly transmitting info to a 3rd party, the telephone users assumes the risk that it will be transmitted to law enforcement.
· Dissent: Improper comparison to “false friend” cases – one can exercise discretion in deciding who to share confidential info with, but society has no choice but to use telephones. “Privacy is not a commodity possessed absolutely or not at all.” Many people wish to avoid disclosure of their personal contacts.
Electronic Tracking Devices:
US v Knotts (1983): K suspected of making drugs. Without a warrant, police installed a beeper on a chemical drum they knew would be sold to K. They followed Ks car across state lines for about 100mi and at one point, they lost visual surveillance, & they found the drum from the beeper signal outside a cabin. From this, police got a warrant to search the cabin. Held: use of beeper did not constitute a search, so no warrant was needed to monitor Ks movements.
· 1- Beeper did not provide police with any info that could not be obtained by visual surveillance from public places along the route. K knowingly exposed his movements to others by travelling on public roads. MODE of surveillance irrelevant.
· 2- Beeper had limited use: did not reveal info as to Ks movements within any private place (i.e. the cabin).
· COMPARE: US v Karo (1984): In this case, beeper allowed police to monitor movement of a container inside homes as well as public places. The info obtained was used to get a warrant and go inside the home. Held to be an unreasonable search. CLASS NOTES:
o Intruding upon a constitutionally protected area. Revealing important info about the inside of a home.
o Augmenting the senses not necessarily a good argument – by forcing law enforcement to do the legwork, we require them to make choices re who they follow & what types of cases they prioritize. This is a good sorting mechanism, because we want law enforcement to be selective in the cases they pursue.
OPEN FIELDS DOCTRINE: ENTRY OF AN OPEN FIELD DOES NOT IMPLICATE THE 4TH AMDT. (Bright-line rule).
· Open field = any unoccupied or undeveloped land outside the curtilage—need not be “open” or a “field
o Curtilage = area immediately surrounding & associated with the home (‘white picket fence’) à protected. Extends intimate activity associated with sanctity of home & man’s private life.
· à Areas that are protected by traditional property laws (trespass) but NOT entitled to 4th Amdt. protection
· Oliver v US (1984): police without warrants entered private property, ignored “no trespassing” signs, walked around locked gate/wall, & observed plants not visible from outside the property. Held: no legit expectation of privacy in activities occurring in open fields, even if the activity occurring there could not be viewed except by trespassing in violation of civil or criminal law.
o 4th Amdt. meant to protect “enclaves” like homes from govt. interference. Open fields do NOT provide the setting for those intimate activities that 4th Amdt. is meant to shelter from govt. interference.
o “No trespassing” sign does not effectively bar intruders, and anyway—the info could lawfully be observed by air. Any expectation of privacy thus unreasonable.
Whether Land is Within or Outside the Curtilage:
· 1. Proximity of the land to the home;
· 2. Whether the area is included within enclosures surrounding the house;
· 3. Nature of the use to which the area is put;
· 4. Steps taken by the resident to protect the land from observation
· US v Dunn (1987): Ds ranch enclosed by a fence, and another fence surrounded the ranch house. Approx. 50yds beyond the second fence were 2 barns, each enclosed by a fence. Fed climbed over the perimeter fence & an interior fence; smelled acid commonly used to make drugs coming from one of the barns. Climbed over the fence, and without entering the barn he peered in to find incriminating evidence. HELD: barns outside the curtilage of the ranch house. Relevant that –
o 60yds from house & 50yds outside the fence surrounding it.
o Officer had objective evidence the barns weren’t being used for intimate, home-related activities
o D did not take sufficient steps to prevent observation into the barn from the open-field vantage point
AERIAL SURVEILLANCE: NON-SENSE-ENHANCED AERIAL SURVEILLANCE BY THE GOVT. OF ACTIVITIES OCCURRING WITHIN THE CURTILAGE OF A HOUSE DOES NOT CONSTITUTE A 4TH AMDT. VIOLATION IF THE SURVEILLANCE:
· 1. Occurs from public navigable airspace;
· 2. Is conducted in a physically nonintrusive manner; and
regard to the quality or quantity of the info obtained. Entirety of the home is safe. If the 4th Amdt. protection were limited to intimate activities, then the Court would have to undertake the impossible task of defining what constitutes intimate activity.
· 4-J Dissent: The info obtained was exposed to the general public from outside the home; no details re the interior were revealed à heat waves are like odors, & any expectation of privacy is unreasonable
o Passerby could notice heat emissions through the vents; so neighbors could invite police over to do so
§ Scalia counter: if true, then using a microphone to eavesdrop from exterior would be okay
o Officials need not “overt their technology” from detecting emissions in the public domain. Expectation of privacy would be manifested through insulation.
US v Jones (2012): 9-0 Court held that tracking suspect through attachment of GPS was a search violative of the 4th Amdt.
· Majority Opinion: Katz test is not a substitute but a supplement for the common-law trespass test. Because this involved a property issue—unlike Knotts—Court didn’t even need to address the Katz test.
o LUNA: What about the open fields/barn trespass cases (Oliver); the case where police took a scratch of paint off accused’s car to link him to a hit-&-run; etc.? How far is new concern with property/trespass going to go? Was Knotts wrongly decided, or was the issue just not before the Court because the facts were distinguishable?
· Alito: Placement of the device itself should be a minor issue in this case. More attn. should’ve been paid to the extensiveness of the monitoring
PHYSICAL MANIPULATION OF AN OBJECT:
Bond v US (200): border patrol agents walked through stopped Greyhound bus at a checkpoint & routinely squeezed the passengers’ luggage. In Bs bag, felt a brick. B allowed them to open his luggage & they found drugs. HELD: pre-consent squeezing of luggage constituted a search.
· Physically invasive inspection is more intrusive than purely visual inspection.
· Subjective prong – satisfied: sought to preserve privacy by using an opaque bag & placing it directly above seat.
· Objectively – reasonable: distinction between the common passenger & the govt. official à basically distinguished based on the mens rea of the person handling the bag: whether they’re just trying to make space or whether they’re handling the bag for purposes of determining its content.
Seizure
· SEIZURE AFFECTS PROPERTY INTERESTS: SEIZURE occurs when there is some meaningful interference with a person’s possessory interests in the property
· US v Karo (1984): police installation of a beeper in a container of chemicals with consent of the seller does NOT constitute a 4th Amdt. seizure on the buyer having no knowledge.
o Beeper’s mere occupancy of the space didn’t interfere with Ks possessory interest in any meaningful way—at most, technical trespass
o 3-J Dissent: Owner of property has an absolute right to exclude, which is infringed when the govt. attaches the monitoring device & thus converts the property to its own use. This interference is meaningful in that it substantially transforms the character of the property—govt. was asserting dominion & control.
