Fourth Amendment Fourth Amendment

What are your rights in What are your rights in school?school?

Fourth AmendmentFourth Amendment

““The right of the people to be secure in The right of the people to be secure in their persons, houses, papers and effects, their persons, houses, papers and effects, against unreasonable searches and against unreasonable searches and seizures, shall not be violated, and no seizures, shall not be violated, and no Warrants shall issue but upon probable Warrants shall issue but upon probable cause, supported by Oath or affirmation, cause, supported by Oath or affirmation, and particularly describing the place to be and particularly describing the place to be searched, and the persons or things to be searched, and the persons or things to be seized.”seized.”

--United States Constitution, Amendment IVUnited States Constitution, Amendment IV

In Class Right NowIn Class Right Now Make a list of all the items you currently have or Make a list of all the items you currently have or

could have in class right now. could have in class right now. Hold up an “effect” you have in possession. Hold up an “effect” you have in possession. These are your “effects,” we know you are in These are your “effects,” we know you are in

school and the question is: Does the school and the question is: Does the Constitution protect these “effects” from Constitution protect these “effects” from unreasonable searches or seizures without a unreasonable searches or seizures without a warrant based on probably cause?warrant based on probably cause?

Where does the answer come from? It depends Where does the answer come from? It depends on whether you have a “reasonable expectation on whether you have a “reasonable expectation of privacy” in the items. In most Fourth of privacy” in the items. In most Fourth Amendment cases, the question will be whether Amendment cases, the question will be whether that “reasonable expectation” was violated by that “reasonable expectation” was violated by the unreasonable actions of government agents the unreasonable actions of government agents or officials.or officials.

““Reasonable Expectation of Reasonable Expectation of Privacy”Privacy”

Do you actually expect privacy in your effects that you Do you actually expect privacy in your effects that you bring with you to school?bring with you to school?

The answer is usually yes. Especially if you come with your The answer is usually yes. Especially if you come with your effects closed and locked in a briefcase. If, say, you carried effects closed and locked in a briefcase. If, say, you carried your items to school in a clear bag you may not expect privacy your items to school in a clear bag you may not expect privacy in the same way. in the same way.

Is this expectation of privacy one that others agree is Is this expectation of privacy one that others agree is reasonable?reasonable?

Does the larger society (your class) agree the medicine in your Does the larger society (your class) agree the medicine in your purse for example should remain private. purse for example should remain private.

Are there other interests government officials (public school Are there other interests government officials (public school admin, teachers, police) have in maintaining an orderly and admin, teachers, police) have in maintaining an orderly and safe school environmentsafe school environment

For example, even if you wanted to keep stuff locked in your For example, even if you wanted to keep stuff locked in your briefcase if there is a school rule requiring all bags to be searched briefcase if there is a school rule requiring all bags to be searched for weapons, your personal desire that things remain private is not for weapons, your personal desire that things remain private is not reasonable at all.reasonable at all.

Think about your list of effects again, ask each other if everyone Think about your list of effects again, ask each other if everyone would agree that certain things deserve more privacy than others….would agree that certain things deserve more privacy than others….

The NotebookThe Notebook

I have _____’s notebook. Do you the I have _____’s notebook. Do you the student expect that what you wrote will student expect that what you wrote will remain private?remain private?

Do you, the class, think that what is written Do you, the class, think that what is written is reasonable to keep private? Why?is reasonable to keep private? Why? What values are important in keeping the What values are important in keeping the

notebook private notebook private On the other side, what are the reasons a police On the other side, what are the reasons a police

officer might want to read it?officer might want to read it? If the police do not have any real reason to If the police do not have any real reason to

suspect you, should you have a reasonable suspect you, should you have a reasonable expectation of privacy?expectation of privacy?

Fourth Amendment and Fourth Amendment and ConversationsConversations

Instead of an effect, what about the expectation of privacy Instead of an effect, what about the expectation of privacy you have in what you say to each other? Should you have you have in what you say to each other? Should you have an expectation that what you say will remain private?an expectation that what you say will remain private?

Which of the following would you give the most privacy?Which of the following would you give the most privacy? Conversation between two people yelling loudly in a packed Conversation between two people yelling loudly in a packed

school auditoriumschool auditorium Conversation between two people speaking in a normal tone Conversation between two people speaking in a normal tone

alone in the bathroomalone in the bathroom Conversation between two people whispering on stage in the Conversation between two people whispering on stage in the

school auditoriumschool auditorium Conversation two people whispering in classConversation two people whispering in class Conversation between two people in the middle of the football Conversation between two people in the middle of the football

field with no one aroundfield with no one around Do you have a reasonable expectation of privacy when you are Do you have a reasonable expectation of privacy when you are

on the phone?on the phone? Why are your answers different? Is it where you are when Why are your answers different? Is it where you are when

you are talking, or how are you talking that should control you are talking, or how are you talking that should control your “expectation?”your “expectation?”

Katz v. United States addresses such issues.Katz v. United States addresses such issues.

Katz vs. U.S.Katz vs. U.S. Charles Katz was involved in an illegal gambling Charles Katz was involved in an illegal gambling

operation. To further his betting, he regularly operation. To further his betting, he regularly used a particular payphone on a particular street used a particular payphone on a particular street in LA to make phone calls to Miami and Boston. in LA to make phone calls to Miami and Boston. The F.B.I. suspected Katz of running the gambling The F.B.I. suspected Katz of running the gambling operation and, thus, placed an electronic operation and, thus, placed an electronic surveillance device (a “bug”) on the payphone to surveillance device (a “bug”) on the payphone to record his calls. Based on the calls, Katz was record his calls. Based on the calls, Katz was arrested and in court he challenged the use of the arrested and in court he challenged the use of the calls saying that his Fourth Amendment rights calls saying that his Fourth Amendment rights were violated by the “search” of his were violated by the “search” of his conversations. Katz claimed he had a reasonable conversations. Katz claimed he had a reasonable expectation of privacy in the conversations.expectation of privacy in the conversations.

Summary of KatzSummary of Katz The question for the Supreme Court was whether the phone calls The question for the Supreme Court was whether the phone calls

made from this payphone were made with a justifiable expectation made from this payphone were made with a justifiable expectation of privacyof privacy

FACTS:FACTS: The payphone at issue was an old-fashioned telephone booth The payphone at issue was an old-fashioned telephone booth

that was partly made out of glass. The FBI simply put a listening that was partly made out of glass. The FBI simply put a listening device on the phone and had it record when Katz made his phone device on the phone and had it record when Katz made his phone calls. The calls were recorded and used in Katz’s trial for illegal calls. The calls were recorded and used in Katz’s trial for illegal gambling.gambling.

HOLDING:HOLDING: The Court held that Katz has a reasonable expectation that his The Court held that Katz has a reasonable expectation that his

calls would not be heard by anyone except the intended listener, calls would not be heard by anyone except the intended listener, and that his Fourth Amendment was violatedand that his Fourth Amendment was violated

LEGAL ISSUE: LEGAL ISSUE: The issue for the Court was less the type of property at issue The issue for the Court was less the type of property at issue

(the phone booth) but more the expectation of the person. “The (the phone booth) but more the expectation of the person. “The Fourth Amendment protects people, not places….” is a famous Fourth Amendment protects people, not places….” is a famous line from this case.line from this case.

In addition, Justice Harlan’s concurrence sets forth what In addition, Justice Harlan’s concurrence sets forth what remains as the test of a reasonable expectation of privacy. remains as the test of a reasonable expectation of privacy. That there must be both a subjective expectation of privacy That there must be both a subjective expectation of privacy and also that this expectation must be one that society and also that this expectation must be one that society would think is reasonable. would think is reasonable.

Case Review-KatzCase Review-Katz Do you agree that someone who makes a phone call to another Do you agree that someone who makes a phone call to another

person on a public (or private phone) has a reasonable person on a public (or private phone) has a reasonable expectation that the content of the call would remain public?expectation that the content of the call would remain public?

What if someone had been lurking outside listening?What if someone had been lurking outside listening? What if Katz had been yelling into the phone?What if Katz had been yelling into the phone?

The Court’s decision is based on the fact that the police did not The Court’s decision is based on the fact that the police did not get a warrant. Whey should they get a warrant to listen into get a warrant. Whey should they get a warrant to listen into the phone when they know the person is breaking the law?the phone when they know the person is breaking the law?

Why should police have to ask a judge for a warrant when they Why should police have to ask a judge for a warrant when they had probable cause?had probable cause?

There have been recent articles about warrantless wiretapping There have been recent articles about warrantless wiretapping in the name of national security. It is thought that certain in the name of national security. It is thought that certain government organizations have been listening to some government organizations have been listening to some conversations of suspected terrorists in America. Do you think conversations of suspected terrorists in America. Do you think the Katz case would be decided differently in today’s era with the Katz case would be decided differently in today’s era with today’s concern of terrorism?today’s concern of terrorism?

What about cell phones?What about cell phones? Where you speak into your cell phone, do you expect it to be private?Where you speak into your cell phone, do you expect it to be private? What if you are on a crowded bus?What if you are on a crowded bus? What if you are in the hallway in school?What if you are in the hallway in school? What if you are in the middle of a field?What if you are in the middle of a field? What if you are in the middle of a field but someone has planted a What if you are in the middle of a field but someone has planted a

listening device next to you?listening device next to you? Does the person’s expectation change, or is it society’s Does the person’s expectation change, or is it society’s

expectation that controls?expectation that controls?

Expectation of Privacy in SchoolExpectation of Privacy in School

So what about public school? What sort of reasonable So what about public school? What sort of reasonable expectation of privacy do you have when you come to expectation of privacy do you have when you come to school?school?

Schools are places of learning. They are also places of Schools are places of learning. They are also places of living, where students bring their non-school personalities living, where students bring their non-school personalities and problems with them when they show up to learn.and problems with them when they show up to learn.

Going back to the “effects” you have in class. We know Going back to the “effects” you have in class. We know that it cannot be the case that you should bring anything that it cannot be the case that you should bring anything you want to school. All schools have rules designed to you want to school. All schools have rules designed to protect students and teachers and to create a positive protect students and teachers and to create a positive learning environment.learning environment.

But, at the same time, we don’t want our personal But, at the same time, we don’t want our personal freedoms taken away. Just like out of school, we value freedoms taken away. Just like out of school, we value some level of freedom from governmental intrusion. some level of freedom from governmental intrusion.

How can a public school enforce its rules without infringing How can a public school enforce its rules without infringing on students rights?on students rights?

Where do schools stand?Where do schools stand? On one hand, some people defending On one hand, some people defending

student rights think that school authorities student rights think that school authorities should be forced to go to court and prove should be forced to go to court and prove probable cause and then get a search probable cause and then get a search warrant from a judge before ever warrant from a judge before ever searching anyone or anything at school.searching anyone or anything at school.

On the other hand, some people, invoking On the other hand, some people, invoking the doctrine of the doctrine of in loco parentisin loco parentis (in the (in the place of the parent), say schools should place of the parent), say schools should simply have the right to search students simply have the right to search students and their property however they want and and their property however they want and whenever they want.whenever they want.

What does the Supreme Court say?What does the Supreme Court say?

New Jersey vs. T.L.O.New Jersey vs. T.L.O.

New Jersey vs. T.L.O. established a New Jersey vs. T.L.O. established a lower standard for official searches in lower standard for official searches in public schools by school authorities: public schools by school authorities: reasonable suspicion.reasonable suspicion.

Summary of T.L.O. CaseSummary of T.L.O. Case The question for the Supreme Court was whether public school The question for the Supreme Court was whether public school

officials (a Principal) needed probable cause or a warrant to search officials (a Principal) needed probable cause or a warrant to search a stduent’s purse when he believed she was smoking cigarettes in a stduent’s purse when he believed she was smoking cigarettes in school. school.

FACTS:FACTS: A 14 year old student (T.L.O.) was suspected of smoking A 14 year old student (T.L.O.) was suspected of smoking

cigarettes in the bathroom with another student. Both girls cigarettes in the bathroom with another student. Both girls were brought to the principal’s office. T.L.O. denied smoking. were brought to the principal’s office. T.L.O. denied smoking. The other girl confessed. The Principal decided to search The other girl confessed. The Principal decided to search T.L.O.’s purse. He did so and found a pack of cigarettes. After T.L.O.’s purse. He did so and found a pack of cigarettes. After finding the cigarettes he continued searching and found finding the cigarettes he continued searching and found marijuana and other items associated with marijuana selling. marijuana and other items associated with marijuana selling. During her juvenile prosecution, T.L.O. challenged the During her juvenile prosecution, T.L.O. challenged the Principal’s search was in violation of her 4Principal’s search was in violation of her 4thth Amendment rights Amendment rights..

HOLDING:HOLDING: The court held that the 4The court held that the 4thth Amendment applies to high school Amendment applies to high school

students in public schools and that students retained a limited students in public schools and that students retained a limited reasonable expectation of privacy. However, the Court upheld reasonable expectation of privacy. However, the Court upheld the constitutionality of the search, reasoning that the Principal the constitutionality of the search, reasoning that the Principal has reasonable suspicion to search the purse in a violation of has reasonable suspicion to search the purse in a violation of school rules. The initial search was reasonable because the school rules. The initial search was reasonable because the Principal suspected T.L.O. of violating the school rules on Principal suspected T.L.O. of violating the school rules on smoking. The second, continued search of the purse was smoking. The second, continued search of the purse was reasonable because cigarettes and other suspicious items had reasonable because cigarettes and other suspicious items had been found. Thus, there was no violation of the 4been found. Thus, there was no violation of the 4thth Amendment Amendment

Summary of T.L.O. ContinuedSummary of T.L.O. Continued LEGAL ISSUE:LEGAL ISSUE:

The first legal issue was whether the 4The first legal issue was whether the 4thth Amendment even Amendment even applied to high school students. The State of New Jersey had applied to high school students. The State of New Jersey had argued that because of the extensive regulations that students argued that because of the extensive regulations that students have to follow in schools, students did not retain any reasonable have to follow in schools, students did not retain any reasonable expectation of privacy. The Supreme Court rejected this expectation of privacy. The Supreme Court rejected this argument, holding that students did retain a reasonable argument, holding that students did retain a reasonable expectation of privacy in the things they brought to school. expectation of privacy in the things they brought to school.

The second legal issue was whether the “probable The second legal issue was whether the “probable cause/warrant requirement” should be applied in a school cause/warrant requirement” should be applied in a school setting. The Court held that a lesser standard made more setting. The Court held that a lesser standard made more sense in the context of a school. The Court adopted the sense in the context of a school. The Court adopted the “reasonable suspicion” standard holding that if the search is “reasonable suspicion” standard holding that if the search is reasonable considering all of the circumstances. The Court reasonable considering all of the circumstances. The Court offered a two-part test here: 1. whether the search was justified offered a two-part test here: 1. whether the search was justified at its inception and 2. whether the search was reasonably at its inception and 2. whether the search was reasonably related in scope to the justification. In T.L.O.’s case, the initial related in scope to the justification. In T.L.O.’s case, the initial search was justified by the suspicion of smoking, and the search was justified by the suspicion of smoking, and the second search, was justified because other suspicious items second search, was justified because other suspicious items (rolling papers, etc.) were found with the cigarettes.(rolling papers, etc.) were found with the cigarettes.

Application of T.L.O.Application of T.L.O.

The bottom line is that students have The bottom line is that students have some Fourth Amendment rights at some Fourth Amendment rights at school but not many. In theory, this school but not many. In theory, this particular balance struck by the particular balance struck by the Court increases security for students Court increases security for students and teachers while reducing student and teachers while reducing student liberty and privacy. Is this a good liberty and privacy. Is this a good trade-off?trade-off?