4th Amendment/Searches
What are the 2 important aspects of the 4th amendment?
There are two important aspects of the 4th Amendment: (1) searches and seizures must be reasonable and (2) police must obtain a warrant for a search or seizure to be reasonable.
reasonable clause: searches only need to be “reasonable” and if there is a warrant it must be based upon probable cause
warrant requirement clause: presumption that searches must have a warrant to be reasonable (but there’s exceptions)
Are trash searches protected under the 4th amendment?
Trash searches: NOT PROTECTED - There is no reasonable expectation of privacy in one’s trash, unless the trash is anonymous because of the manner in which it is collected. (This is fact-specific inquiry.)
Trash is regularly exposed to the public where it may be invaded by animals and other members of the public. People place their trash out for collection with knowledge that it will be taken into the possession of a third party and with no guarantee that the trash collector will not subsequently pick through it.
Are home searches protected under the 4th amendment?
Home: PROTECTABLE - There is a reasonable expectation of privacy in the home.
Does the 4th amendment cover all seizures?
Yes, 4th Amendment covers ALL seizures - even if brief - and all seizures need some form of objective justification.
If a seizure is NOT justified, then it is UNREASONABLE under 4th amendment…any evidence that flows from that seizure is OUT - exclusionary rule.
If there is consent, then it is NOT a seizure and need not be analyzed under 4th amendment.
What is a consensual encounter?
Does the 4th amendment apply to actions by private individuals and government officials?
No, only applies to actions by government officials. Only applies to actions within the United States.
4th A. covers ONLY GOVERNMENT ACTION, it does NOT cover searches by private individuals, unless those individuals are working for the government
Government actors include the police, FBI, ICE, federal/state prosecutors, teachers hired by a public school, informants
Are aerial searches protected under the 4th amendment?
Aerial Searches: NOT PROTECTABLE - There is no reasonable expectation of privacy over anything that is viewable from lawful airspace, even if it is part of the home or curtilage.
(there is no lower limit for helicopters but the helicopter should be in compliance with air traffic laws and not disturb the home or curtilage during observation)
Are curtilage searches protected under the 4th amendment?
Curtilage: PROTECTABLE - There is a reasonable expectation of privacy in the curtilage of the home. The curtilage is the area around a home associated with the intimate use of the home.
When does a seizure occur?
Seizure occurs when a reasonable person would not feel free to leave.
Seizure always occurs when there is an arrest.
Under Bustamonte what is a consensual encounter?
Bustamonte --> If a consensual encounter, it is not a seizure, and must be justified instead by voluntariness (or absence of police coercion).
What are the 4th Amendment key questions to ask?
4th Amendment Key questions to ask:
1) Was it a search or seizure?
2) Was there probable cause?
3) Was there a valid warrant?
4) Was there a valid exception?
Are open field searches protected under the 4th amendment?
Open Fields: NOT Protectable - There is no reasonable expectation of privacy in an open field. Open fields are not considered curtilage and not considered part of the home - not considered a search.
RULE: If the search is in an open field, the police do not need a warrant to search (even if the open field is a part of your property), so it it is not going to be considered a technical search – because it is not reasonable to have an expectation of privacy
How do you determine whether it is an open field or curtilage?
Dunn factors: Courts consider four factors in determining whether something is the curtilage of a home or not:
1) proximity to the home,
2) whether it is within the enclosure surrounding the home,
3) the nature of use, and
4) steps taken to protect the area from observation by passer-bys
What is the Mendenhall test?
A seizure occurs when a reasonable person would have believed, given the totality of the circumstances, that he/she was not free to leave.
Factors that may indicate one did not feel free to leave:
Threatening presence of several officers
Display of weapon by officer(s)
Some physical touching of the person
Indication that compliance with request is an order (language, tone of voice)
Might indicate seizure even if person did not attempt to leave
Factors established through testimony & judicial findings at motions hearing (trial level)
Are passengers in a car seized?
Yes, passengers in a car are seized when riding in a car that is stopped by police. (Brendlin)
What is the Katz test?
The definition of a fourth amendment search is something for which (1) an individual has a subjective expectation of privacy, and (2) society deems that expectation of privacy reasonable enough to protect from government intrusion without a warrant.
4th amendment = reasonable expectation of privacy + subjective expectation of privacy
Are dog searches protected under the 4th amendment?
Dog searches: NOT PROTECTABLE - A drug dog sniff is not an invasion of a reasonable expectation of privacy, since drug dogs only alert to contraband. The use of a well-trained narcotics-detection dog—one that does not expose non contraband items that otherwise would remain hidden from public view—during a lawful traffic stop, generally does NOT implicate legitimate privacy interests.
BUT if you’re detained for the sole purpose of drug sniffing or if you’re held longer in the course of a lawful traffic stop for the purpose of drug sniffing, then there may be a seizure issue.
Are technology searches protected under the 4th amendment?
There is no reasonable expectation of privacy over behavior the public could observe (with the naked eye), but there is a reasonable expectation of privacy if the behavior is only observable with special technology.
Police use of devices to detect activity inside the home from the outside is considered a search. Using sense-enhancing technology to see details of a private home that would not be discoverable without physically entering the home constitutes a fourth amendment search.
Not a search:
Beepers --> unless used to detect activity inside home
Thermal imaging --> unless used to detect activity inside home
Under Hodari, when does a seizure occur?
A seizure occurs the moment that the individual submits to the authority of the police.
A seizure happens when the police physically tackle (or restrain) a running suspect, or when the suspect stops running and submits to authority. A seizure is not at the commencement of the chase or when an officer yells “stop.”
In Hodari, the court held that a defendant is not seized until they are stopped by police. Here, the police CHASE did not constitute the seizure, the defendant IS SEIZED when he is TACKLED by the officer. A seizure requires some type of physical restraint. Seizure --> when suspect submits to authority.
Is Dozier similar or different from Hodari? Explain.
Different.
The court held that the initial confrontation was a seizure because a reasonable person who was alone in a dark alley at night and approached by two uniformed and armed officers engaging in repeated questioning and escalating requests with a police cruiser blocking the alley and two more armed officers standing by would not have felt free to decline, even though the officer “requested” rather than “demanded” and used conversational tone.
Dozier Court concludes that appellant was seized within the meaning of the Fourth Amendment by the time he complied with the officers’ request to put his hands on the alley wall so that they could pat him down. Because there was no reasonable, articulable suspicion that he was engaged in criminal activity prior to that time, the seizure was unlawful. Applying the exclusionary rule, court concluded that the drug evidence, as well as the officers’ testimony about appellant’s flight and throwing motion, should have been suppressed as the fruits of an illegal seizure.
If the search does not fall under the Katz test, then what other test can we use? Name and define it.
Jones test
In narrow circumstances where it applies, a fourth amendment search is defined as a physical trespass onto one’s property. (Note: always analyze under Katz, but also analyze under Jones if there is a physical trespass)
Are third-party conversation searches protected under the 4th amendment?
There is no reasonable expectation of privacy over information voluntarily revealed to a third party.
The court held that recording this conversation was not a search because the suspect had no reasonable expectation of privacy in the conversation, since he was revealing information to a third party, and there is always the risk that one is a “false friend.”
Are cellular tech searches protected under the 4th amendment?
An individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI. The location information obtained from Carpenter’s wireless carriers was the product of a search. Police need a warrant to search your cell phone!
There is no reasonable expectation of privacy in the numbers that one dials because by making call, they are knowingly revealing who they are calling to the phone company (but may have expectation of privacy in the contents of the phone call). NOTE: Smith also applies to email addresses (not contents of email) – same as telephone numbers
The application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued.
Explain the connection between Dozier and the reasonable person.
when a “visibly armed police officer in full uniform and tactical vest emerges without warning from a police cruiser to interrupt a person going about his private business,” the encounter is not “between equals.”
Where “questioning is at least implicitly accusatory (if not explicitly so), a reasonable person’s reaction is not only to show respect for the officer’s authority, but also to feel vulnerable and apprehensive.”
“In such an atmosphere … a reasonable person who can tell from the inquiries that the officer suspects him of something, and who cannot know whether the officer thinks there is sufficient reason to detain him, may well doubt that the officer would allow him to avoid or terminate the encounter and just walk away.