4th amendment search and seizure
WHAT IS A SEARCH
General Rule
A search is an invasion of an area in which the defendant has a reasonable expectation of privacy, except when it isn’t.
Harlan’s Two Prong Test
1. Person exhibited an actual (subjective) expectation of privacy; and
2. This expectation is reasonable ß most cases hinge on this one
SITUATIONS WHERE 4th (SEARCH) APPLIES/DOESN’T APPLY
A. Phone Booths (Katz – Police tap phone booth w/o warrant)
1. Katz Court recognized 4th amend. protected persons not property; &
2. People have reasonable expectation of privacy in phone booths
Court is moving away from old property basis for 4th amend.
B. Informant Wearing Wire (US v. White -police informant wears wire)
1. When you expose your info to a single person, you run the risk of exposing it to the whole world; \
2. This wasnt a search – expectation not reasonable
C. Helicopter Hoovering (FL v. Riley-Heli 400 feet above house)
NOTE: Case starts to answer “when is an expectation of privacy reasonable?”
1.When it is not common for members of the public to have access to the sphere invaded by law enforcement
2. Hovering helicopters dont invade reasonable expectation home owner has in his property b/c FAA permits helos to fly at 400 feet
D. Assembly of Data by Tracker (US v. Karo-electronic trackers placed in barrels of ether)
1. Electronic trackers on cars are acceptable because people on public highway could observe where the car is and where it is going
This would take a hell of a lot of coordination though
2. However, once the tracker goes into the home this = a search b/c:
i. Using surveillance device 2 get info police couldnt have got by observation from outside house is unconstitutional
ii. This can be seen (as a slight return to property basis)
E. Dog Sniffs (IL v. Caballes-Police run drug dogs around cars)
1. A dog sniff is not a search b/c it only reveals evidence of a crime
2. Justifications:
i. limited manner of the search; and
ii. limited info. obtained (only tells presence/absence of drugs)
F. Open Fields (Oliver v. US- Police trespassed on prop. investigating possible pot growth. There was “No Trespassing” sign & police walked a mile b4 coming upon pot field (not visible to the public)
1. There is no reasonable expectation in open fields
2.Rule: Not only is looking into an open field okay, but so is actual entry/ trespass onto property, to look at an open field
NOTE: Curtelage Rule: Curtelage = the land immediately surrounding and associated w/ the home – Curtelage = part of the home itself, and protected by 4th (Four Factors to determine Curtelage):
i. Proximity to the home
ii. Whether area is within an enclosure surrounding the home
iii. Nature of the use of the aree
iv. Steps taken to protect area from observation of passers-by
G. Thermal Imagers/Return to Property Basis (Kyllo v. US use of thermal imager by police to detect xtra heat from pot lamps)
1. There IS a reasonable expectation of privacy in your home from thermal imaging
i. Court said it was a search b/c what goes on inside house has the highest expectation of privacy (Isnt this just like the dog sniff case)
H. Garbage (CA v. Greenwood-suspected drug dealers trash collected then handed over to the police)
1. There is no reasonable expectation of privacy in your garbage
2. The doctrine of abandonment seems to be the only way to explain why you have no reasonable expectation of privacy in the trash
This seems to be complete return to the property basis and not privacy basis for 4th amend.
WHAT IS A SEIZURE
NOTE: A seizure occurs when an individual’s freedom of movement has been restrained by police activity
NOTE: Result of an unlawful seizure is that all evidence found as a result of the seizure is suppressed
Think of Seizures as occurring in Two Situations
1. Arrests (which require probably cause – (PC); and
2. Terry Stops (which require less, reasonable suspicion- RS)
General Rule for whether a Seizure Occurred:
1. Whether police action left the individual with the reasonable belief that he could not go about his business (FL v. Bostick)
This is a totality of the circum. test, which D tend to lose
NOTE: Police questioning suspects in close quarters arent required to inform suspects they are free to go about their business and ignore the officers’ requests for information. United States v. Drayton
Bus Encounters & Seizures (Bostic & Drayton)
1. Court seems to dodge the issue of seizure by relying on the fact D consented to a search
PROBABLE CAUSE
NOTE: Search & seizure may proceed only on probable cause, except when it doesn’t
What is Probable Cause
A. There is no mathematical formula as to what constitutes PC
1. Tend to say PC is what a reasonable officer would think was enough information/evidence that something bad/criminal was going on
ESTABLISHING PROBABLE CAUSE
A. Tips and Informants
1. Old Test à Spinelli Test (informant tells cops @ known booky using 2 phone #s, court says this isn’t enough this is seemingly innocent bahvior) à needed to establish both basis of knowledge & veracity of the informant/tip in order to have PC
Prior to Spinellithere Drapper(reliable informant gave specific facts à what D would be wearing, standing etc court said this was ok b/c of high specificity of the information)
a. To establish veracity of confiden
justify entering b/c drugs can easily be destroyed)
2. Hudson v. Mich (cops waited 3-5 secs) à even if this is too short of time period remedy is not exclusion of the evidence
a. Reasoningà police already had basis of warrant
NOTE: Very rare a violation of K & A leads 2 exclusion of evidence
EXCEPTIONS to SEARCH WARRANT REQUIREMENT:
I. Exigent Circumstances
A. Murder Scene Exception [Ariz v. Mincey] (drug operation cop gets killed in the house cops go in then after the fact a homicide unit goes in & finds drugs) à Court said the first waive of officers who went in w/o warrant were okay b/c they were tying to help (danger to life/limb)1. Drugs found by homicide cops are out b/c no warrant à court doesn’t want to create a blanket murder scene exception b/c it’s a slippery slope (will it start to apply to rape, burglary etc…)
B. Danger to Life/Limb (Community Care Taking Exception) à If officers reasonably believe a person is in immediate need of aid can make a warrantless intrusion of home Mincey
C. Imminent Destruction of Evidence à Police may enter a home if they have PC to believe evidence is in the process of being destroyed
1. The operation of this exception turns on the seriousness of the crime (Welsh v. Wisconsin)
2. This exception doesn’t work if fear of destruction of evidence is of a minor crime [Welsh] (drunk driver leaves crashes car goes home & gets in bed, police enter home w/o warrant) à this is not exigent circumstance b/c drinking & driving is a minor offense
a. Justice White in his dissent à officer may not know how serious crime is at the time à we’re not providing police w/ any type of clarity
3. Mendez à pot smell justified cops entering motel room w/o warrant
D. Preserving Premise w/o Entering Home à Where police dont have search warrant but have PC they may seize premises 2 make sure no one goes in to destroy evidence while waiting for search warrant
1. Ill. v. McArthur (wife told police husband had weed in his trailer, husband refused search so police held him outside until warrant came) à this was ok b/c court used balancing test à privacy interest v. law enforcement interest
NOTE: Police officer cannot create the exigency
II. Plain View
