The Fourth Amendment

Introduction and what is a search?

Text of Fourth Amendment

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 on probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.

Breakdown
1. Right to be secure in persons, houses, papers, and effects against unreasonable searches and seizures AND 2. Warrants shall not issue unless supported by probable cause, under oath, and particularly describing the place to searched and the persons or things to be seized

Overview of Fourth Amendment

Was complaint about government actor? Was there a search or seizure? Was the search or seizure permissible?

If there was a search,

Is the person complaining the person who was searched? If so, was there a warrant? If so, was the warrant supported by probable cause? If no warrant, can government show fell within an exception? - Does search/seizure fall within one of the enumerated exceptions? - Can government satisfy burden of proof for that exception (probable cause or reasonable suspicion) Even if search/seizure not OK, is government entitled to use the evidence under an exception to the exclusionary rule?

Practice Note
These cases in practice are highly fact specific. Can usually find cases going both ways change in facts may persuade a court to go one way or the other. Courts struggling with accuracy vs. limits on power of government officials If limit, how important are bright-line rules?

Search?
If action does not equal search, not governed by Fourth Amendment. If action is a search, must (1) be pursuant to warrant and satisfy warrant requirements or (2) fall within enumerated exception to warrant requirement or (3) fall within exception to exclusionary rule.

What is a search?
Basic Test: legitimate (or reasonable) expectation of privacy How to apply the test in various situations

What is a search? (Katz)

What does Fourth Amendment protect? When does a person lose the protections of the Fourth Amendment? What about lack of intrusion or trespass?

Katz (Harlan concurrence)

Warrantless searches presumptively unreasonable 2 part test (later adopted by Court): - subjective test: person have actual expectation of privacy - that expectation is one that society is prepared to recognize as reasonable

Blacks dissent
What is 4th amendment directed at?

What is his support?

Note 8, page 94
Police officers opens screen door and sees marijuana on table Basic principle: dont need warrant if see crime Apply Harlans test when - solid door also closed - just screen door - police open because hear scream

When is expectation reasonable? (White)

A can testify as to what B told him.

Should it matter if A instead transmits to others simultaneously what B is saying?

Majority: no. Harlan: yes.

Subjective expectation of Privacy? Objective recognition of Privacy?

Note 8, page 105

Transmitter put in tree, not on agent. Does it matter if agent is aware of the transmitter? What if accidentally left in tree and picks up later conversation indicating crime? What if purposefully left?

When is expectation reasonable? (Smith)

Subjective expectation of privacy? Limits of subjective expectation of privacy test Objective recognition of privacy? Knowing disclosure? To whom?

Aerial Surveillance (Ciraolo and Riley)

Subjective expectations in both cases? Objective recognition? Facts that matter/do not matter? Dissents point?

Open fields?
any unoccupied

or undeveloped area outside the curtilage not a search.

Support for doctrine? Does it matter if no trespassing signs posted? What prongs fail?

People, not places?

Homes get greatest protection Homes include curtilage: area so intimately tied to the home that it should be placed under homes umbrella: - proximity to home - enclosed area - nature of uses - steps taken to protect

Knowing exposure
Trash outside curtilage Misplacement/loss of objects

Limits on Privacy Interests (dog sniff cases)

No legitimate interest in illegal activity; possessing contraband limited information uncovered Infallible dogs?