4th Amendment: Searches
The right of 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 oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Per Se Rule
Warrantless searches and seizures are per se unreasonable, except for few and well delineated exceptions.
The 4th Amendment protects against unreasonable searches and seizures by the government, and it is made applicable to the states through the 14th Amendment.
What is a Search?
Katz v. U.S.
Phonebooth
: (1) a person exhibits an actual expectation of privacy in the object of the search (subjective prong), and (2) the expectation of privacy is one that society is prepared to recognize as reasonable (objective prong)
Trespass Doctrine
US v Jones
Governmental trespass into private property (protected area) for the purpose of obtaining information is a search within the meaning of the 4th
What is Not a Search
Third Party Doctrine
An individual has no reasonable expectation of privacy (REP) in information or items voluntarily conveyed to a third party (the individual assumes the risk that the information will be shared with the government). When no REP exists, there is no search within the meaning of the 4th Amendment.
Pen Register
Smith v. Maryland
A person has no reasonable expectation of privacy in the numbers dialed in his telephone because the numbers were voluntarily conveyed to the telephone company.
Bank Records
Informant
U.S. v. White
It is not objectively reasonable to expect privacy in what one knowingly volunteers to a third person, whether recorded or transmitted, since one assumed the risk that this information will be later conveyed to the government.
U.S. v. Miller
A bank depositor has no legitimate expectation of privacy in financial information voluntarily conveyed to banks and exposed to their employees in the ordinary course of business.
Curtillage
California v. Greenwood
A person has no reasonable expectation of privacy in garbage left for collection outside of the curtilage of a home.
Open Fields Doctrine
The area beyond the curtilage does not receive 4th Amendment protection, even when police trespass onto the open field and it is private property.
What is a Curtilage?
The area immediately surrounding the home is called the curtilage and receives 4th Amendment protection. In Dunn v. US the Court identified four factors a court should weight when determining whether the area in question constitutes curtilage:
(2) Whether the area is within an enclosure surrounding the home
(3) the nature of the areas uses
(1) the areas proximity to the home
(4) Steps taken to protect the area from observation
Helicopter
Florida v. Riley
The government is free to inspect the curtilage with the naked eye from the vantage point of an aircraft flying within navigable airspace accessible to the public. As a general proposition, the police may see what may be seen from a public vantage point where they have a right to be.
Drug Dog in Curtillage
Florida v. Jardines
When the government introduces a trained police dog to explore the curtilage (physical intrusion into a constitutionally protected area) in hopes of discovering incriminating evidence a search within the original meaning of the 4th Amendment has occurred.
Technology
Cell Site Location Info "CSLI"
Cell Phone
Thermal Imager
Riley v California
Before compelling a wireless carrier to turn over a subscriber’s CSLI, the Government’s obligation is to get a warrant.
Kyllo v. U.S.
Government warrantless use of a device that is not in general public use, to explore the details of the home that would previously have been unknowable without physical intrusion is a search and unreasonable
Rationale?
We decline to grant the state unrestricted access to a wireless carrier’s database of physical location information. In light of the deeply revealing nature of CSLI, its depth, breadth, and comprehensive reach, and the inescapable and automatic nature of its collection, the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection. The Government’s acquisition of the cell-site records here was a search under that Amendment.”
A cell phone can be seized as part of a search incident to arrest, but the information contained in the cell phone, cannot be viewed or accessed without a warrant. The court reasoned that modern smart phones possess too much information to allow searches without warrants.
Probable cause is measured by a totality of the circumstances. Facts and circumstances within the officers knowledge and of which he had reasonably trustworthy info, that give a reasonable person a fair probability that particular contraband or evidence of a crime will be found in a particular place.
Factors
Probable cause is measured by a totality of the circumstances. Facts and circumstances within the officers knowledge (or fellow officer) and of which he had reasonably trustworthy info, that give a reasonable person a fair probability that a crime was committed and that the person he is arresting committed the crime.
Officers training and experience;
Reliability and credibility of informant or witness;
Tip info: look for veracity, reliability, and basis for knowledge - Spinelli;
Independently corroborated anonymous tip and look at totality of the circumstances - Gates (specificity of criminal activity helps); and
Officer’s or fellow officer’s observation, sense of smell, or hearing.
Search Incident to Arrest
Trigger
General Rule: Probable Cause + Warrant
Probable Cause
Exceptions
Probable Cause to Search
Warrrant
Probable Cause to Arrest
Scope
Rationale
Any Lawful Arrest
Officer safety, prevent introduction of contraband/weapons into jails, and destruction of evidence
Entire person (pockets and containers), immediate vicinity of the arrest, passenger compartment of vehicle (see Gant limitation).
Chimel v. California
Incident to a lawful arrest police may search the arrestee’s person and the area within his immediate control defined as the area from within which he might gain possession of a weapon or destructible evidence (p. 141). If the arrest occurs within a home police may search the drawers within an arrestee’s reach because of the danger their contents might pose to them
U.S. v. Robinson
Any custodial arrest supported by probable cause is sufficient to trigger a search incident to arrest.
N.Y. v. Belton
Upon a lawful arrest of an occupant of a vehicle, police as a contemporaneous incident of that arrest, search the passenger compartment of that automobile and the contents of any containers found therein.
Arizona v. Gant
Police search of a vehicle incident to a recent arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search or when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.
Arrest Warrants
Police may arrest without warrant in public one believed by the officer upon probable cause to have been guilty of a felony.
Exceptions
If an arrest warrant exists for a suspect and the suspect is believed to be located at a third party’s residence, an arrest warrant as well as a search warrant is required.
An arrest warrant founded on PC implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within (p.113). (What can’t be done) Warrantless and non-consensual entries into a suspect’s home, even when PC to arrest, in order to make a routine felony arrest violates the 4th Amendment
US v. Watson
Steagald v. U.S.
Payton v. New York
Automobile Exception
Rationale
Scope
Trigger
PC to search vehicle
look at presence of the vehicle in a setting that objectively indicates transportation
: Ready mobility and the pervasive regulations of automobiles justify a lesser degree of protection
Follow your Probable Cause (if AK, look for AK, if Cocaine, any where it could be found)
Anywhere in the vehicle where the object of the search may be found, to include trunk and closed containers, and the search could be conducted on the scene or the vehicle may be taken to a police station for further search.
Warrantless searches of the automobile are allowed if there is PC to believe that the vehicle contains evidence of crime.
Carrol v. U.S.
California v. Acevedo
The court defined the scope: when there is PC to search a vehicle, the police may search an automobile and the containers within it where they have PC to believe the contraband or evidence is contained (p.167). This includes a passenger’s belongings found in the car that are capable of concealing the object of the search (Wyonming v. Houghton p. 175
Mobile home?
A mobile home is subject to the automobile exception when it is readily mobile and not regularly used for residential purposes. Factors: is the vehicle fixed to the ground; is it connected to power and sewer; does the setting suggest that the vehicle is being used residential purposes.
California v. Carney
Consent
Scope
Rationale
Trigger
Consent
See Probable cause side for steps
Any police encounter
Defined by the expressed object and what is objectively reasonable for the police to conclude (look at the question asked, and the answer provided, Florida v. Jimeno footnote p. 325).
Search pursuant to consent may result in considerably less inconvenience for the subject of the search, and properly conducted, is a constitutionally permissible and wholly legitimate aspect of effective police activity.
Requirements
(1) Consent was voluntarily given
(2) Person giving consent had authority
State must prove that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from the totality of the circumstances (p.321). There is no requirement to inform the person that she has a right to refuse.
Schenckloth v. Bustamonte
Actual Authority
Common Authority
Apparent Authority
Would the facts available to the officer at the moment warrant a man of reasonable caution in the belief that the consenting party had authority over the premise (p. 328).
On mutual use of the property by persons generally having joint access or control for most purposes (p. 327).
Person has access and control.
Giving and Taking Consent Away
Consent can be negated either prior to start or after police begin. When a person consents and another with common authority denies consent, Police must stop, unless the non-consenting party is not present on the scene.
Georgia v. Randolph
When a person consents and another with common authority denies consent, Police must stop, unless the non-consenting party is not present on the scene.
Georgia v. Randolph
Administrative Searches
Requires reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or school rules; and the scope is determined by the measures are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.
Schools - New Jersey v. TLO
Prisons
Issue
Rule
Rationale
Whether every detainee who will be admitted to the general population may be required to undergo a close visual inspection while undressed.
Correctional officials have a legitimate interest, indeed a responsibility, to ensure that jails are not made less secure by reason of what new detainees may carry in on their bodies. Facility personnel, other inmates, and the new detainee himself or herself may be in danger if these threats are introduced into the jail population.
When an arrestee will join the general population of a jail, correctional officials must be permitted to devise reasonable search policies to detect and deter the possession of contraband in their facilities, to include strip searches.
Plain View Doctrine
trigger
scope
rationale
Lawful presence, incriminating nature of object is immediately apparent, lawful access
Limited to the viewed object.
Officer not required to avert their eyes.
1) Police are lawfully in a position from which they view an object; 2) the incriminating character of the object is readily apparent; and 3) the officer has a lawful right of access to the object, they may seize it without a warrant (Hicks, Long).
Illinois v. Rodriguez
Florence v. Board of Chosen Freeholders of County of Burlington