Chapter Seven – Searches and Seizures and the Right to Privacy

Rolando V. del Carmen

Searches and Seizures and the Right to Privacy

The Right to Privacy: A Constitutional Right? – Griswold v. Connecticut (1965)– Katz v. United States (1967)

Searches and Seizures and the Right to Privacy

The Meaning of “Reasonable Expectation of Privacy”– Two Requirements:

• The person must have exhibited an actual expectation of privacy.

• The expectation must be one that society is prepared to recognize as reasonable.

Searches and Seizures and the Right to Privacy

Definitions– Search Defined

• the exploration or examination of an individual’s house, premises, or person to discover things that may be used by the government for evidence in a criminal prosecution.

– Seizure Defined • the exercise of dominion or control by

the government over a person or thing because of a violation of law.

Searches and Seizures and the Right to Privacy

General Rule– The general rule is that searches and seizures

can be made only with a warrant. – Johnson v. United States (1948)

Things Subject to Search and Seizure– Contraband– Fruits of the Crime– Instrumentalities of the Crime– “Mere Evidence of the Crime”

Searches and Seizures and the Right to Privacy

Search and Seizure with a Warrant– Requirements– Probable Cause– A Supporting Oath or Affirmation – Warrants Based on Oral Statements

Searches and Seizures and the Right to Privacy

Search and Seizure with a Warrant– Anticipatory Search Warrant– A need for Fresh Information– A Description of the Place to be Searched or

Things to Be Seized– The Signature of a Magistrate – The Procedure for Serving a Warrant– The Announcement Requirement

Searches and Seizures and the Right to Privacy

Search and Seizure with a Warrant– The Scope of Search and Seizure– The Time Allowed for a Search– The Procedure After the Search

Searches and Seizures and the Right to Privacy The Comparison of Search Warrants and

Arrest Warrants– Similarities

• Probable cause is needed to issue a search warrant or an arrest warrant.

• The definition of probable cause is the same for both.

• Probable cause in both is ultimately determined by a judge, not by the officer.

• In both, officers need to “knock and announce,” subject to state law exceptions.

• Items in plain view may be seized when executing a search warrant or an arrest warrant.

Searches and Seizures and the Right to Privacy The Comparison of Search Warrants and Arrest

WarrantsDifferences

Search Warrant Arrest WarrantThe officer looks for items to be The officer seeks to arrest used as evidence. a suspect for detention. If not served, a search warrant An arrest warrant does notusually expires after a period of expire, unless recalled by

thetime specified by law. court that issued it.

Some jurisdictions limit the It may be executed at anyexecution of the warrant to time, unless exceptionsreasonable hours during the day. are specified by law.

Searches and Seizures and the Right to Privacy

Search and Seizure Without a Warrant– The Searches Incident to Lawful Arrest

Exception – The Body Search of an Arrested Person– The Area within a Person’s Immediate Control

Chimel v. California– The Requirement that the Warrantless Search

be Contemporaneous

Searches and Seizures and the Right to Privacy

Search and Seizure Without a Warrant– The Searches with Consent Exception

• Voluntary Consent Required

• Search Must Stay within Allowable Scope

• Authority to Give Consent Required

Searches and Seizures and the Right to Privacy

Search and Seizure Without a Warrant– The Special Needs beyond Law Enforcement

Exception • Public School Searches

• Searches of Probationers and Parolees Homes

• Airport Searches

Searches and Seizures and the Right to Privacy

Search and Seizure Without a Warrant– The Exigent (Emergency) Circumstances

Exception• Danger of Physical harm to the Office

• Destruction of Evidence

• Searches in “Hot Pursuit” (or “Fresh Pursuit”) of Dangerous Suspects

• Danger to a Third Person

• Driving While Intoxicated (DWI)

Searches and Seizures and the Right to Privacy Comparison of Administrative Searches and Law

Enforcement SearchesAdministrative Searches Law Enforcement Searches

Done by Administrative Agents or Done by law enforcementInvestigators, not by the Police personnel

Purpose is enforcement of Purpose is enforcement of administrative regulations criminal laws

Consent or warrant is needed Consent or warrant is always

except for highly regulated businesses needed

Probable cause is not needed; must Probable cause is always show that the place being inspected is needed unless there is

consentadministrative rules or ordinances

Searches and Seizures and the Right to Privacy

Specific Search and Seizure Issues – Searches and Seizures of Students – Squeezing Luggage in a bus– The Temporary Restraint of a Suspect – Searches and seizures by Private Persons – Searches by Off-Duty Officers– The Use of Police Dogs for Detection of Drugs– Surgery to Remove a Bullet from a Suspect

Searches and Seizures and the Right to Privacy

Issues in Searches and Seizures Technology – Evolving Concepts in Electronic Surveillance– The Old Concept—Constitutional If There Is

No Trespass: Olmstead v. United States (1928)– The New Concept—Unconstitutional If It

Violates a Reasonable Expectation of Privacy: Katz v. United States (1967)

Searches and Seizures and the Right to Privacy

Issues in Searches and Seizures Technology – Three Federal Laws Governing Electronic

Surveillance

Searches and Seizures and the Right to Privacy

Issues in Searches and Seizures Technology – Title III of the Omnibus Crime Control

and Safe Streets Act of 1968• Two situations which allow electronic

eavesdropping:– If a court has authorized the wiretap– If consent is given by one of the parties

Searches and Seizures and the Right to Privacy

Issues in Searches and Seizures Technology – Title III of the Omnibus Crime Control

and Safe Streets Act of 1968• Title III and State Laws• Title III and Berger v. New York (1967)

Searches and Seizures and the Right to Privacy

Issues in Searches and Seizures Technology – The Electronic Communications and

Privacy Act of 1986 (ECPA)– The Communications Assistance for

Law Enforcement Act of 1994 (CALEA)

Searches and Seizures and the Right to Privacy

Issues in Searches and Seizures Technology – Searches and Seizures of Computers

• Legal requirements • Probable cause in computer searches• Computers and reasonable expectation of

privacy

Searches and Seizures and the Right to Privacy

Issues in Searches and Seizures Technology – Electronic Devices That Do Not

Intercept Communication • Pen Registers• Electronic Beepers• Cameras to Monitor Traffic and Other

Offenders