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I. Introduction to the Fourth Amendment

A. The Purpose of the Amendment and an Introduction to the Exclusionary Rule

(30-34)

Investigation and crime prevention involves uncooperative individuals; when thegovernment seeks information without cooperation, it must consider the limitationsimposed by the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers andeffects, against unreasonable searches and seizures shall not be violated, andno Warrants shall issue, but upon probable cause, supported by oath oraffirmation, and particularly describing the place to be searched, and thepersons or things to be seized.

Basics:

Language ascribes the right to the people, not to one persono Differs from 5A and 6A in this wayo Has been suggested that courts should focus on problems of how to

regulate or control conduct of government so that these violationsdont occur, rather than providing remedies for those who havesuffered those violations

United States v. Verdugo-Urquidez (1990)

Mexican citizen was apprehended by Mexican police and transported to USfor trial; after his arrest, US officials conducted warrantless searches of hisresidences in Mexico

Court held that the Fourth Amendment does not apply to a search of propertythat is owned by a nonresident alien and located in a foreign country.

The people in the 4A means a class of persons who are part of a nationalcommunity or who have otherwise developed sufficient connection with thiscountry to be considered part of that community.

Purpose of 4A is to protect people of the US against abuses by their owngovt, not govt action against aliens taken outside the US

Brennans dissent: defendant had been convicted of violating federal law, andwas thus subject to an extraterritorial application of American law. Its unfairto require him to obey their laws when the government doesnt.

Court refused to decide whether an illegal alien living in the US would beprotected, but five justices have indicated that they would be, reasoning thatthat group has sufficient connections.

Rule: 4A does not apply to a search of property that is owned by a nonresident alien andlocated in a foreign country, even if the search was conducted by U.S. officials and he isprosecuted in the U.S.

Rule: 4A probably does apply to illegal aliens living in the U.S.


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The Reasonableness Clause and the Warrant Clause:

4A is set up in two partso The first deals with unreasonable searcheso The second with warrants

Searches and seizures are presumed unreasonable unless carried out pursuantto a warrant. However, but when an exception to the warrant requirement applies, only the

reasonableness requirement must be met.

Rule: Searches and seizures are presumed unreasonable unless carried out pursuant to awarrant.

Probable Cause:

Minimum showing necessary to support a warrant application; it is not used todemarcate reasonableness generally in searches and seizures.

Rule: The minimum showing necessary to support a warrant is probable cause.

State Action Requirement:

Provides protection only against the government and those acting inconjunction with it, but not private individuals

Rule: 4A provides protection only againt the government and those acting in conjunctionwith it, but does not protect against searches or seizures by private individuals.

The Amendment and the Exclusionary Rule:

Two questions:o Does the 4A prohibit the kind of conduct at issue?o Should the evidence obtained by this violation be available as proof in

a criminal trial or other proceeding?

Exclusionary rule deals with the second question.II. Triggering Fourth Amendment Protection

4A prohibits unreasonable searches and seizures, so the first question is:

Did the governments conduct represent a search or a seizure? If not, it is not regulated by the Fourth Amendment.

A. Search and Seizure, Determined by Legitimate Expectations (35-40)

The Reasonable Expectation Test:

Katz v. United States

Katz was charged with placing bets across states, a federal crime. At trial, thegovt. introduced evidence of his end of the phone conversations, overheard by


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FBI agents who had attached a listening device to the outside of the publictelephone booth. The Court of Appeals held that there was no 4A violationbecause there was no physical entrance into the area occupied by thepetitioner.

4A is not a general right to privacy and does not focus on const. protectedspaces; 4A protects people, not places.

What a person knowingly exposes to the public, even in his own home oroffice, is not subject to 4A protection.

o What he seeks to preserve as private, even in an area accessible to thepublic, may be protected.

Rule: A search does not occur when a person has knowingly exposed whatever issearched to the public, even if that object is in a private space such as ones home or atones office.

Rule: A search does occur when a person has sought to preserve as private whatever is

searched, even if he does so in an area accessible to the public.

Katz shut the door behind him, and was entitled to assume that the words heuttered would not be broadcast to the world.

The Court rejects the old formulationthe trespass doctrinewhich held thatthe absence of such penetration foreclosed 4A inquiry. But the 4A governsnontangible items, so the reach of the Amendment cannot turn upon physicalintrusion into any given enclosure.

So it was a search and seizure; but did it comply with constitutionalstandards?

o On one hand, the government didnt begin surveillance untilinvestigation had established a strong probability re: what he wasdoing with the telephone. Moreover, the surveillance was limited inboth scope and duration to the specific purpose of establishing hisillegal conduct. A magistrate thus could have authorized this searchand seizure.

o On the other hand, they needed to go to a judicial officer. 4A requiresthem to present their estimate of probable cause to a neutral magistratefor detached scrutiny.

The Court has never sustained a search on the ground thatofficers reasonably expected to find evidence.

After-the-event justifications are suspect because they are toolikely to be subtly influenced by hindsight.

The procedure of antecedent justification is central to theFourth Amendment.

Rule: A warrantless search is not reasonable simply because officers reasonably expectedto find evidence.

Harlan concurrence:


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o A person has a constitutionally protected reasonable expectation ofprivacy in an enclosed telephone booth

Person must exhibit an actual, subjective expectation ofprivacy, and that expectation must be one society is prepared torecognize

The point is not that the booth is accessible to the public atother times, but that it is a temporarily private place

Rule: In order to have a constitutionally protected reasonable expectation of privacy inwhatever is searched, the person must have exhibited an actual, subjective expectation ofprivacy, and that expectation must be one society is prepared to recognize. (Katz)

o Electronic as well as physical intrusion can constitute a violationo The invasion of a constitutionally protected area is presumptively

unreasonable without a warrant

Blacks dissent:o

Wiretaps are not a search because they are not a tangible thing.

Notes on Katz:

Katz sets forth a two-pronged test for determining whether govt. conductconstitutes a search.

o Did the government offend the citizens subjective manifestation of aprivacy interest?

o Was the privacy interest invaded on that society is prepared to acceptas reasonable or legitimate?

N.B. Harlan was concerned that the reasonableness of privacy expectationscould be determined by existing practices, and thus based on what govt.

conditions us to expect, i.e., if govt. announces we will all be placed undercomprehensive surveillance, we have no more privacy protected by 4A.o Privacy v. right to prevent intrusions

Possible alternative: evaluate intrusions on a case-by-case basis re: whetherthey were reasonable under the circumstances

B. Interests Protected by the Fourth Amendment AfterKatz(40-42)

No legitimate privacy interest in illegal activityo So why was Katz protected?

One answer: govt. wasnt certain his activity was illegal untilthe officials actually listened in, i.e., guilt was not certain

before intrusion

Rule: A person does not have a legitimate privacy interest in illegal activity orcontraband.

Three legit interests that can be impaired by govt. intrusion:o An interest in being free from physical disruption and inconvenience


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o Certain information, though not indicative of criminal activity, can bepersonal and embarrassing

o Citizen has an interest in control over and use of his or her propertySeizures and Searches Implicate Different Interests:

A seizure may occur without a search, and a search may occur without aseizure.o Search protects interest in maintaining personal privacyo Seizure protects interest in retaining possession of property

A seizure is usually preceded by a search, but when a container is involved,the converse is often true.

Rule: A search under the 4A implicates the persons interest in maintaining personalprivacy.

Rule: A seizure under the 4A implicates the persons interest in retaining possession of

his propery.

Note: A seizure is usually preceded by a search, but when a container is involved, theconverse is often true.

Soldal v. Cook County = Court held that for 4A purposes a seizure occurs wheneverthere is some meaningful interference with an individuals possessory interests in thatproperty. Hence, the govts towing of the defendants trailer, even though they did notsearch it, was protected.

Rule: A seizure occurs whenever there is some meaningful interference with an

individuals possessory interests in the property taken. (Soldal v. Cook County)

C. Applications of theKatzTest (42-84)

Keep in mind:

If the court finds that the police conduct is a search or seizure, it means onlythat the Fourth Amendment is applicable; the activity is still permissible if itsatisfies the 4As reqs.

1. Subjective Manifestation

Individuals must take affirmative steps to protect their privacy interests.Rule: To exhibit a subjective expectation of privacy, individuals must take affirmativesteps to protect their privacy interests.

The abandonment of property is usually considered inconsistent with theretention of any subjective privacy or possessory interests, so police detentionand investigation of abandoned property does not trigger 4A.


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Rule: The abandonment of property is usually considered inconsistent with the retentionof any subjective privacy or possessory interests, so police detention and investigation ofabandoned property does not trigger 4A.

o Whether abandonment has occurred is question of intent that can beinferred from acts, words, or other objective facts.

A citizen who attempts to protect his private property from inspection afterthrowing it (in response to a police officers inquiry) has clearly notabandoned that property. Smith v. Ohio.

Rule: A person who attempts to protect his private property from inspection afterthrowing it somewhere (in response to a police officers inquiry) has not abandoned thatproperty. (Smith v. Ohio)

But abandonment is often found when a person denies ownership of acontainer in the face of police inquiries.

Rule: Abandonment is often found when a person denies ownership of a container in theface of police inquiries.

Abandonment is sometimes considered an issue of standing.Note: Abandonment is sometimes considered an issue of standing.

2. Open Fields

Open fields had been distinguished from homes before Katz, and is still validafter Katz because a person has no legitimate expectation of privacy in an

open field.

Rule: A person has no legitimate expectation of privacy in an open field because an openfield is not an effect.

It does not matter if the field has a locked gate, a sign that says no trespassing,and no way in except by walking several hundred yards, since these do not bar thepublic from viewing them. (Oliver v. United States)

Oliver v. United States =

Court held that a person has no legit expectation of privacy in an open field,even if the field has a locked gate, a sign that says no trespassing, and no way

in except by walking several hundred yards. Open fields are not effects within the 4As scope.

o An individual cant demand privacy for activities conducted outdoorsin fields, except in the area immediately surrounding the home.

o Open fields are not the setting for the intimate activities that the 4Ashelters from govt. interference or surveillance.

o Not generally true that fences and signs bar the public from viewingopen fields.


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o Only curtilage, not neighboring open fields, warrant 4A protection. Curtilage is defined by reference to facts that determine

whether an individual can expect an area immediately adjacentto the home to remain private.

o An open field doesnt have to be open or a field.Defining Curtilage:

Rule: 4A does protect curtilage, as an extension of the home. This is a fact-specificinquiry that is resolved by reference to four factors:

Proximity of area to the home; Whether the area is included within an enclosure surrounding the home; The nature of the uses to which the area is put; and Steps taken by the resident to protect the area from observation by people

passing by. (United States v. Dunn)

United States v. Dunn (1987)

Court held that a barn fifty years from a fence surrounding a home was on 200hundred acres of property was not curtilage.

Curtilage questions are resolved with four factors:o Proximity of area to the home;o Whether the area is included within an enclosure surrounding the

home;o The nature of the uses to which the area is put; ando Steps taken by the president to protect the area from observation by

people passing by.

Even if property is within curtilage, a visual inspection o that property fromoutside the curtilage does not constitute a search.3. Access by Members of the Public

Even if you make efforts to keep something private, if youre not successful,you fail the society is prepared to accept prong.

If an aspect of a persons life is subject to scrutiny by other members ofsociety, person has no legit expectation in denying equivalent access to thepolice.

Basically, this is public-access-therefore-police-accessRule: Even if a person makes efforts to keep something private, if they are not successful,than they have not met the society-is-prepared-to-accept prong.

This is best understood as the public-access-therefore-police-access doctrine.Rule: A person has no legitimate expectation of privacy in information he has voluntarilyturned over to a third party.

Consensual electronic surveillance:


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Law allows frustration of actual expectation of privacy by using testimony ofassociates who turn informants because the defendant has to realize (and thusassume) the risk that his companions could report him to the police. (UnitedStates v. White)

Rule: The government does not conduct a search when it uses the testimony of associateswho turned informants because the defendant assumes the risk that his companions couldreport him to the police. (United States v. White)

Financial records:

Banks were required to report each deposit involving more than $10,000,which could be made available to other govt agencies.

The Court held that this was not a 4A search because the banks were parties tothese transactions, which precludes them from a legit expectation that the govtwould not have access. (California Bankers Assn v. Schultz)

Rule: The government does not conduct a search when it requires banks to provideinformation about certain deposits; because the banks were parties to these transactions,the depositor has no legitimate expectation that the government would not have access.(California Bankers Assn v. Schultz)

Pen registers:

Smith v. Maryland = police installed a pen register, a device that records allnumbers called by defendant from his home phone. Court found that the useof the device was not a search, because a person has no legit expectation ofprivacy in info he voluntarily turns over to third parties, and he had given thisinfo to the telephone co.

Rule: The government does not conduct a search when it installs a pen register on apersons phone, since this person already provides this information to the telephonecompany.

Note that Congress has imposed statutory limits on the use of these devices. Carnivore and computers: FBI has a device that tracks email, web browsing,

and file transfer activity, arguing that a computer user has no legit expectationof privacy in the addresses he visits or addresses to which he sends mail.

o Courts have generally found this is not a search because users conveythis information to another person, the system operator.

Trash:

California v. Greenwood = Officers ask neighborhood trash collector to pickup Greenwoods garbage and give the bags to them. Court relied on Smith, thepen register case, and held that Greenwood had exposed his garbage to thepublic sufficiently to defeat 4A protection.


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o It is common knowledge that plastic garbage bags left on or at theside of public street are readily accessible to animals, children,scavengers, snoops, etc.

o Ruling not based on abandonment of property Shredding is not sufficient, because its a failed attempt at secrecy by reason

of underestimation of police resourcefulness, not invasion of constitutionallyprotected privacy.

Rule: The government does not conduct a search when it obtains a persons trash fromhis trash collector. It is common knowledge that garbage bags left on the side of a publicstreet are readily accessible to anyone.

Rule: Failed attempts at secrecy by reason of underestimation of police resourcefulnessdo not give rise to an invasion of constitutionally protected privacy.

Public areas: Public access prong of Katz most acts conducted in public are not protected

by 4A. But whats a public area?o Homeless persons cardboard box? Closed public bathroom stall?

Aerial surveillance:

Rule: The government does not conduct a search when an officer observes a personsactivities from a public vantage point where he has a right to be, in spite of the fact thatthe person may have taken measures to restrict some views of his activities. (California v.Ciraolo)

Mere fact that an individual has taken measures to restrict some views of hisactivities does not preclude an officers observations from a public vantagepoint where he has a right to be and which renders the activities clearlyvisible. (California v. Ciraolo)

Dow Chemical Co v. United States = Taking of aerial photographs of anindustrial plant complex from navigable airspace is not a search under theFourth Amendment.

Florida v. Riley = Court held that surveillance of a backyard from a helicopterhovering at 400 feet was not a search. Relies on Ciraolo for the propositionthat public-access-therefore-police-access.

o But could the public really gain access this way?o OConnor says the test should be whether the public ordinarily hasaccess to the information sought by the police, not whether its legallypossible for a member of the public to obtain it.

Rule: The government does not conduct a search when it takes aerial photographs of aproperty or conducts surveillance from a helicopter because any member of the public


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could have legally obtained access to that information through the same methods. (DowChemical Co v. United States; Florida v. Riley)

Note that Justice OConnor says the test should be whether the public ordinarilyhas access to the information sought by the police, not whether its legallypossible for a member of the public to obtain it.

Manipulation of Bags in Public Transit:

Officers will examine by touch the outside of bags, especially soft bags.Bond v. US (2000)

Does an officers physical manipulation of a bus passengers carry-on luggageviolate 4As proscription against unreasonable searches? (A: Yes)

Rule: An officers physical manipulation of a bus passengers carry-on luggageconstitutes a search because the officers manipulation far exceeded the casual contactwith the bag that other passengers on the bus could have had. (Bond v. United States)

Bond argued that while other passengers had access to his bag, the officermanipulated it in a way that other passengers would not have. He says themanipulated far exceeded the casual contact he could have expected fromother passengers.

Katz inquiry:o Bond did exhibit an actual expectation of privacy; he took steps to hide

the drugs.o Second, his privacy expectation is recognized by society, because

when a person puts a bag in an overhead bin, he expects that his bagmight be handled, but not that they will feel it in an exploratory

manner. Scalias dissent: squeezing is the same treatment that luggage receives from

strangers in a world of travel.

4. Investigation That Can Only Reveal Illegal Activity

Investigation that threatens to uncover innocent, private activity can constitutea search; in contrast, there is no legitimate expectation of privacy in illegalactivity.

o An investigation is not a search if it can only reveal illegal activity.Rule: Investigation is not a search if it can only reveal illegal activity because there is no

legitimate expectation of privacy in illegal activity.

Rule: Investigation that can uncover innocent, private activity does constitutes a search.

Canine sniffs:

Rule: Canine sniffs of closed luggage are not a search because the sniff only discloses thepresence or absence of narcotics. (United States v. Place)


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If the dog alerts erroneously, that still does not expose noncontraband items.United States v. Place

It does not require the opening of luggage, does not expose noncontrabanditems; the sniff only discloses the presence or absence of narcotics.

Despite the fact that that sniff tells authorities something about the contents ofthe luggage, the information obtained is limited. Less embarrassment andinconvenience for the owner.

Court nonetheless held that the cocaine found in his luggage was illegallyobtained, because the police did not have the dog ready when his luggagearrive; it took 90 mins to bring the dog, and his luggage was detained for thatwhole time it was a seizure.

Dog Problems:

Officers cannot open luggage immediately even after dog alerts them; theopening of the luggage IS a search.

Dog Sniffs of People and Places:

Dog sniffs outside of homes?Dog Sniff of a Car During a Routine Traffic Stop:

Illinois v. Caballes = Defendant was legally stopped for speeding; one officerprocesses the ticket, the other comes with a drug-detecting dog. The officerhad no reason to think defendant had drugs, but the dog alerted. Entireincident took less than 10 mins.

Question: Does 4A require reasonable, articulable suspicion to justify using adrug-detection dog to sniff a vehicle during a legit traffic stop?

o Answer: RS is only required if defendant is subject to a search orseizure beyond that permitted by the traffic stop itself.

Here, initial seizure of defendant was lawful. If it had been prolonged for more time to complete the dog-

sniff-drug mission, that would be unlawful, though. Shift in purpose of the traffic stop does not change the

character of a stop that is lawful at its inception and otherwiseexecuted in a reasonable manner.

An erroneous alert, in and of itself, does not reveal anylegitimate private information.

?Rule: If a person has been legally stopped, a police officer does not need reasonablesuspicion to justify a canine sniff. (Illinois v. Caballes)

Reasonable suspicion is only needed if the person is subject to search or seizurebeyond that permitted by the stop itself.

Chemical Testing for Drugs:

United States v. Jacobsen = Court applies Place to uphold warrantlesschemical field-testing of a powder.


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Test merely discloses whether or not a substance is cocaine; it was thus an up-or-down test that did not compromise any legitimate interest in privacy.

However, field test was a seizure, because the powder sample taken isdestroyed by the process. But Court found that seizure reasonable.

Rule: The government does not conduct a search when it uses a field test that can onlydetermine whether or not a substance is cocaine.

However, such a test is a seizure if the powder used during the test is destroyed bythe process. (United States v. Jacobsen)

Other Drug Testing:

Skinner v. Railway Labor Executives Assn = Court held that drug testing ofurine was a search. Unlike field-tests, these can uncover secret, innocent info,e.g., epilepsy, pregnancy, or the use of some prescription drugs.

And process of collecting sample (including aural monitoring) is intrusive andembarrassing. The search thus intrudes upon expectations of privacy that

society has long recognized as reasonable.

Rule: Drug testing of urine is a search because these tests can reveal private, yet innocent,information, and the process of collecting the sample intrudes upon expectations ofprivacy that society recognizes. (Skinner v. Railway Labor Executives Assn)

5. Use of Technology to Enhance Inspection

Under Katz, visual inspection is not always a search; but what if visual inspection isaided by sophisticated technological devices?

Thermal Detection Devices Infrared thermal detection used to detect growing of drugs.

Kyllo v. United States

Question: Does the use of a thermal-imaging device aimed at private homefrom a public street, to detect relative amounts of heat within the home,constitute a search under 4A?

o Lower court found: Produces a video-camera like image, takes only a few minutes;

device emits no physically intrusive rays or beams; does notshow any people or activity within the wall of the structure.

Kyllo made no attempt to conceal the heat escaping his home. Court has decoupled violation of 4A rights from trespassory violation of

property.

New technologies expose to public view (and hence official observation)things that were previously private or hidden.

Holding: Obtaining by sense-enhancing technology any information regardingthe interior of the home that could not otherwise have been obtained without


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physical intrusion into a constitutionally protected area constitutes a search, atleast where the technology in question is not in general public use.

o Thus, this was a search. 4As protection of the home has never been tied to measurement of the quality

or quantity of information obtained; all details of what goes on inside a home

are intimate details. 4A draws a firm, and bright, line at the entrance to the home. Stevenss dissent: Through-the-wall versus off-the wall.

o Through-the-wall = gives direct access to information in a private areao Off-the-wall = requires thought processes used to draw inference from

information n the public domaino Heat waves enter the public domain if and when they leave a building.o Concerned that courts attempt does not work, because its protection

dissipates as soon as the relevant technology is in general public use.

?Rule: A government conducts a search when it obtains, by sense-enhancing technology

that is not in general public use, information regarding activities within a home that couldnot otherwise have been obtained without physical intrusion into this constitutionallyprotected area. (Kyllo)

Notes:

Home v. other buildings, such as a warehouse What about face-recognition technology combined with government

databases?

Electronic Tracking Devices:

Tracking Public Movements: United States v. Knotts = Officers installed a beeper inside a container of

drugs before defendant picked it up for delivery. The signal became stationaryat a certain location. Court considered whether officers had invaded anylegitimate expectation of privacy when the tracked the containersmovements.

o Court says that because visual surveillance from public places alongthe route would have sufficed to reveal all of these facts to the police,nothing in the 4A prohibits the police from augmenting the sensoryfaculties with the enhancement that this technology gave them.

o So beeper tracking is NOT a search.o However, dragnet type practices are a bit different.

Rule: The government does not conduct a search when it obtains information through anelectronic tracking device, as long as the government could have obtained thatinformation through visual surveillance from public places.

More Beeper Issues:


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United States v. Karo = Govt obtained court order authorizing installationand monitoring of a beeper in cans of chemicals for drugs, but order was laterfound invalid.

Court concluded that no authorization was necessary to place the beeper incan because the can belonged to the DEA at the time, and defendants have no

expectation of privacy in it. Court said 4A not implicated by the fact that Karo received a can containing

an electronic device; the mere transfer invade no privacy interest b/c it didntconvey any information at all, even though it certainly created a potential foran invasion of privacy. But potential invasions are not searches.

Transfer of can was not a seizure either.o Any impairment of privacy interests that might have occurred was

caused by the beepers actual monitoring, not its placement.

Rule: The government does not conduct a search simply by giving a person a containerthat has an electronic tracking device attached because the transfer itself does not invade

any privacy interest; it simply creates the potential for an invasion of privacy. (UnitedStates v. Karo)

Beepers in the House:

United States v. Karo = But Court concluded that the beepers monitoring in aprivate residencea location not open to visual surveillancewas a smaller-scale search.

o It DID reveal something about the interior of the Karos homethat ithad the canwhich could not have been visually verified.

o Dont want indiscriminate monitoring of property that has beenwithdrawn from public view, so cant be warrantless.

Stevenss dissent: Agents asserted dominion over can of chemicals, so it was aseizure; private citizens are entitled to assume that their possessions are notinfected with concealed electronic devices.

Rule: The government does conduct a search when an electronic tracking device revealsinformation about the interior of a private residence because a homes interior is not opento visual surveillance and could not have been verified by officers from a public place.(United States v. Karo)

Informants, Beepers, and Stolen Property:

OConnor concurs, writing that if a home owner allowed a third person toenter the home with property that contains a beeper, the owner might not havea valid complaint.

Tracking with GPS and Related Devices:

Concerns focus on prospect that police can track movements of the entirepopulation without any regulation.

Other Sensory Enhancement Devices:


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Texas v. Brown = The use of artificial means to illuminate a darkened areasimply does not constitute a search, and thus triggers no 4A protection.

Dow Chemical Co. v. US = Court holds that the govts $22,000 camera thatallows intense magnification do not rise to the level of highly sophisticatedsurveillance equipment not generally available to the public.

Rule: The governments use of artificial means to illuminate a darkened area does notconstitute a search. (Texas v. Brown)

Rule: A government camera that costs $22,000 and allows intense magnification does notrise to the level of highly sophisticated surveillance equipment not generally available tothe public. (Dow Chemical Co. v. U.S.)

6. Investigative Activity Conducted by Private Citizens

Private Activity:

Search and seizure conducted by private citizen is not within 4A meaning. Thus, privatepapers stolen from a desk forced open could be presented by a prosecutor because thegovt itself hadnt done the search.

Rule: If the search or seizure was performed by a private individual, there is nothing tostop the government from using the fruits of that search. However, if that person wasacting as an agent for the government, the 4A does apply.

Mixed Public and Private Action:

If a private individual is acting under the circumstances as an agent for thegovernment, 4A does apply. Govt. official cant avoid Constitution by

enlisting private individuals to do what they cannot.o 4A is applicable to drug-testing regulations promulgated by govt on

private companies, even if the government does not actually compelthat testing. (Skinner v. Rwy Labor Exec Assn)

o Court found clear indices of the govt.s encouragement, endorsement,and participation.

Rule: Government regulations that encourage private companies to perform a search orseizure on employees may implicate the 4A, even if they do not compel this activity, ifthere are clear indices of the governments encouragement, endorsement, andparticipation. (Skinner v. Rwy Labor Exec Assn)

Govt Investigative Activity Subsequent to Private and Other Legal Searches:

Limits Imposed by the Initial Search:

Walters v. US = Can FBI agents who receive a package of films from theirrecipient (to whom the package was misdelivered by a private carrier) watchthe films without a warrant?

o Recipient had opened the package, but not viewed the films.


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Court holds that unauthorized viewing of film was an unreasonable invasionof privacy. So while the officers could possess the package, they could notexamine its contents.

o A partial invasion of privacy cannot automatically justify a totalinvasion.

o But what the FBI observed in plain view (like, by looking at the tapesagainst the light) was proper.Rule: If a private individual has already performed a search, then hands over the searcheditems to the government, the government conducts a search under the 4A only if itconducts a search that goes beyond the scope of the intial examination by the privateindividual. (Walters v. United States)

Reopening Permitted:

United States v. Jacobsen = FedEx opens a destroyed packaged and finds bagscontaining white powder. Hand them over to DEA, which reopens them and

performs a field test for cocaine. Court reasons that because FedExs actions were (?not?) covered by 4A, the

question is: To what extent did the government exceed the bounds of theprivate search?

o Field test did not compromise legit privacy interest b/c its contraband.o Whites concurrence brings up his concern that the decision allows

police to break into a locked car, suitcase, or even a house if a privateperson previously did so and reported what he found to the police.

Jacobsen thus establishes that if an initial intrusion (at least into a container) isnot covered by 4A, a later intrusion by officers, to the same extent, is also freefrom 4A constraints.

Rule: If an initial intrusionat least into a containeris not covered by 4A, a laterintrusion by officers, to the same extent, is also free from 4A constraints. (US v.Jacobsen)

Note that this may or may not apply to cars, homes, etc.Controlled Deliveries:

Illinois v. Andreas = Govt agents conduct legal customs search and find drugsin it. They reseal it and follow it to its destination. When guy leaves his place,they search the box again.

Court reasons that the simple act of resealing the container does not operate torevive or restore lawfully invaded privacy rights.

4A is applicable to a subsequent reopening only if there is a substantiallikelihood that the contents of the container have been changed during the gapin surveillance.

Rule: The government does not conduct a search when it subsequently reopens acontainer it has already legally opened, unless there is a substantial likelihood that thecontents of the container have been changed during the gap in surveillance.


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The simple act of resealing the container does not operate to revive or restorelawfully invaded privacy rights.

7. Foreign Officials:

Evidence obtained by foreign officials is generally admissible regardless ofwhether it complies with 4A. Two limited exceptions:

o If the circumstances of the foreign search/seizure is so extreme that itshocks the judicial conscience

o When US agents participation in the investigation is so substantialthat the action is a joint venture between US and foreign officials

Rule: Evidence obtained by foreign officials is admissible unless:o The circumstances of the foreign search/seizure are so extreme that they shock

the judicial conscience; oro The participation of US in the investigation is so substantial that the action is a

joint venture between US and foreign officials.

8. Jails, Prison Cells, and Convicts

Hudson v. Palmer = Court held that a prisoner has no constitutionallyprotected expectation of privacy in his prison cell or in papers or property inhis cell.

4A thus not implicated by searches and seizures in those contexts.Rule: The search or seizure of a prison cell or a prisoners belongings in his cell does notimplicate the 4A because a prisoner has no constitutionally protected expectation ofprivacy in that space/those items. (Hudson v. Palmer)


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9. Public Schools and Public Employees

New Jersey v. TLO = Court rejects argument that public school students haveno legit expectation of privacy in their possessions.

Students have legit, noncontraband items; theyre not prisoners. OConnor v. Ortega = Court rejects idea that govt employees never have anexpectation of privacy in their place of work.

o Public employers intrusions upon protected privacy interests of govtemployees for noninvestigatory, work-related purposes, as well aswork-relate misconduct, should be judge by the standard ofreasonableness.

Rule:10. Recap on limitations wrought by Katz

At time of Katz, general agreement that 4A applies to traditional entries andinspections, and that Katz is for activity at the margins

o However, courts have used Katz to limit protection in those original,traditional investigations.

III. Fourth Amendment ProtectionThe Warrant Clause

A Theory of the Warrant Clause (84-89):

Searches and seizures conducted without a warrant are presumed to be unreasonable,because they are conduct outside the judicial process, without prior approval by judge ormagistrate.

Reason for the Warrant Requirement:

Johnson v. United States

Question: Was it lawful, without a warrant of any kind, to arrest petitioner andsearch her living quarters?

Officer received information that people were smoking opium; officersrecognized the smell when they went to the hotel; they followed the smell toRoom 1. Officers knocked and announced and were admitted.

At the time entry was demanded, the officers had evidence that a magistratemight have found to be probably cause for issuing a search warrant.

o If the presence of odors is testified to and the affiant is qualified toknow the odor (and its a sufficiently distinctive odor), that can be

very persuasive.o The point of 4A is not that it denies law enforcement the support of

usual inferences which reasonable men could draw from evidence; itsprotection consists in requiring that those inferences be drawn by aneutral and detached magistrate instead of the officer engaged in theoften competitive enterprise of ferreting out crime.

Any assumption that evidence sufficient to support amagistrates determination would justify a search without a


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warrant reduces 4A to a nullity, and leaves the peoples homessecure only in the discretion of officers.

o When the right of privacy must reasonably yield to the right of searchis, as a rule, to be decided by a judicial officernot a policeman.

There are, of course, exceptional circumstances in which themagistrates warrant can be dispensed with. This is not such a case; no reason is offered other than

inconvenience and some slight delay:

No suspect was fleeing or likely to take flight; The search was of permanent premises, not a

movable vehicle;

No evidence or contraband was threatened withremoval or destruction.

Note:

Johnson is a victory for those who want police to have to secure warrants;there was almost certainly enough evidence known to the police to justify a

warrant from a magistrate, but because that determination wasnt made by amagistrate, it was constitutionally unreasonable.

Function of the Warrant Requirement:

Indiscriminate searches and seizures are bad for two reasons:o Expose people and possessions to interferences by govt when there is

no good reason to do so; every citizen is entitled to security of personand property unless an adequate justification is shown.

o Indiscriminate searches and seizures conducted at the discretion ofexecutive officials, who can act despotically and capriciously.Concerned with arbitrariness.

For a S&S subject to the warrant requirement, PC is the threshold of proof that must besatisfied before the power to search and seize is legitimated.

Government must demonstrate a factually based interest in these things beforeusing its power to disturb them.

PC is to be shown by persons willing to swear or affirm the truth of their statements, andthus be held accountable for what they say.

Applicant for a warrant commits to public record the information that isknown beforehand, so there is no confusion between ex-post and ex-antepositions.

o Otherwise, officers could work backwards from the search.Specificity requirement:

Govt can only interfere with persons, places, or things that it has shown avalid interest in.

o Written record decreases the danger that after the search is completely,police will claim that whatever is found is exactly what they sought.

o Specification can also help determine reasonableness or excessiveness.


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A showing of PC does not mean that any S&S authorized by awarrant is valid; it means that any S&S directed by warrant atthe people, places, or things to which PC specifically relatessatisfies the warrant clause.

Note: A showing of PC does not mean that any search or seizure relating to the suspectedcrime is valid; it means that any search or seizure directed by warrant at the people,places, or things to which PC specifically relates is valid.

Requirement of magistrate helps ensure that there actually is PC, but also gives anopportunity for the warrant to be deniedeven if there is PC. Magistrate can say it wouldbe unreasonable under the circumstances (usually a scope argument).

Magistrate can impose limits on those searches, thus preventing excessive (asopposed to reasonable) govt intrusions.

Another function of the warrant requirement is to reduce the perception of unlawful

police conduct, since it assures the individual of the officers lawful authority, his need tosearch, and the limits of that power to search.

Another function: remind police of their obligation to comply with legal constraintsplaced on them.

IV. Fourth Amendment ProtectionProbable Cause

A. What Is a Fair Probability? (113-128)

Fair probability problem when it is unknown whether a crime has been or is being

committed. E.g., a person carrying a television down a street in a shopping cart at 2 am.

United States v. Prandy-Binett (D.C. Cir.)

Officers intercept suspicious figure at Union Station, and when they stop him,they see in his bag a rectangular block wrapped in duct tape; it turns out to becocaine.

Court concludes that, based on the totality of the circumstances, there was afair probability that the block contained drugsand thus upheld theconviction on which the search and seizure were based.

o Fair probability = somewhere between less than evidence whichwould justify conviction and more than bare suspicion

o Concern with conditional probabilities (basically, probability of thisweird thing combined with that weird thing)

Up until the sighting of the duct tape package, the conditional probability wasmuch too low to satisfy the 4A.

o But PC is evaluated not only from the perspective of a prudent man,but also from the particular viewpoint of the officer involved (and hisexperience).


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Court rejects the argument that PC was lacking because officers could not besure that Prandy-Binett was carrying cocaine as opposed to, say, heroin.

o Officers do not have to be aware of the specific crime an individual islikely committing; it is enough that they have PC to believe thedefendant has committed one or the other of several offenses, even if

they cannot be sure which one.

Rule: PC is evaluated not only from the perspective of a prudent man, but also from theviewpoint and in light of the experience of the officer involved. (Prandy-Binett)

Rule: The officer does not have to be aware of the specific crime an individual is likelycommitting, as long as he has PC to believe the defendant has committed one or the otherof several offenses, even if they cannot be sure which one. (Prandy-Binett)

Child pornography:

Most Circuits have held that PC can be found even without direct evidencethat the defendant ever downloaded or distributed illegal images (usuallybased on membership in a website that provides access).

Probable Cause to Arrest:

PC requirement applies to arrests as well as searches.o PC to search: is there a fair probability that the area or object searched

contains evidence of a crime?o PC to arrest: is there a fair probability to believe that the person

arrested has committed a crime?

Rule: Probable cause to search means that there is a fair probability that the area or object

to be searched contains evidence of a crime.

Rule: Probable cause to arrest means that there is a fair probability to believe that theperson to be arrested has committed a crime.

PC to arrest problems when police know that a crime has been committed, but theyrenot sure that a suspect is the perpetrator.

United States v. Valez (2d Cir.) =

Undercover officer does a drug deal, and tells officers that one of the sellers isa Hispanic man in his 20s, wearing a black leather jacket, etc.

The seller in the jacket walks by, and the officers go to make the arrest. Theylose the guy, but then see a man coming out of a restaurant who matches thedescription. The guy they arrest turns out to be the wrong guy, but whenbrought to the station, they find packets of cocaine on him.

Court held that the description of the perpetrator was not overly general, andthat the officers had acted properly. The description was sufficiently detailedto provide the officer with PC to believe that Valez (the guy they arrested)


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was the seller, because he matched every detail of the description, and waswithin the immediate vicinity of the sale less than 10 minutes after it.

o No purpose would thus be served by suppressing the evidence theyfound on him, which came to the polices attention as a result of theirwell intentioned but mistaken actions.

US v. Kithcart(3d Cir.) =

Two robberies, and perps are described as two black males in a black sportscar. Officer pulls over a black car with one black man in it, but then sees thereare actually two.

Court held that the officer did not have PC to arrest.o The fact that he was black and the perps were black is clearly

insufficient, and the description of the cars did not match. Nor was PCestablished by location and time.

Mistaken arrests:

The question for PC is not accuracy, but fair probability.Probabilities with multiple suspects:

Maryland v. Pringle =o Officers find drug in a car with three men. Officers question all three

about ownership, but no one says who owns the drugs or money. Pringle gives an oral and written confession saying the coke

belongs him; says the other occupants knew nothing about it. Pringle moves to suppress the confession as the fruit of an

illegal arrest.o Officers clearly have probable cause to believe a felony had been

committed. The question is whether they had PC to believe it wasPringle who did it.

PC standard is a practical, nontechnical concept that deals withconsiderations of everyday life.

PC cant be reduced to percentages because it deals withprobabilities and the totality of the circumstances.

o But: There was $800 in rolled-up cash; they were driving at 3 am; andthere were bags of cocaine accessible to all three men. From thesefacts, it was an entirely reasonable inference that any or all three of theoccupants had knowledge and control re: the cocaine.

This is not guilt-by-association. They were in a relatively smallautomobile, and car passengers are often engaged in a commonenterprise with the driver, and have the same interest inconcealing the fruits or evidence of their wrongdoing.

Quantity of drugs and cash indicated the likelihood ofdrug dealing.

Rule: PC is based on the totality of the circumstances, and the probability of all a numberof conditions occurring simultaneously in the context of a crime being committed.


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Probable cause for an arrest different from the charge on which the defendant wasarrested:

Devenpeck v. Alford (2004)

Question: Whether an arrest is lawful under the 4A when the criminal offensefor which there is PC to arrest is not closely related to the offense stated bythe arresting officer at the time of the offense.

Officer suspected that Alford was impersonating a police officer. But he wasarrested for recording his conversations with the officers. But the guy pulledout a copy of a state court-of-appeals decision which permitted him to recordroadside conversations with police officers. The guy was arrested anyway.

Alford brings a 1983 suit for unlawful arrest and imprisonment on the groundsthat the cops did not have PC at the time they arrested him, since he hadestablished that the taping was not a crime.

Reasoning:o The arresting officers state of mind (except for the facts he knows) isirrelevant to the existence of PC. His subjective reason for making the

arrest need not be the criminal offense as to which the known factsprovide probable cause.

Any rule holding the offense establishing PC must be closelyrelated to the offense identified by the arresting officer isinconsistent with this notion.

Such rules make the lawfulness of an arrest turn on themotivation of the arresting officer. This would means that theconstitutionality of an arrest would vary depending on what theofficer identifies as the crime, etc., even if the facts and

circumstances are exactly the same.o Those whom the facts known to the arresting officer give PC to arrest

are lawfully arrested.o If the Court validated a closely related rule, officers would simply

stop providing reasons for their arrests.

Rule: PC is an objective standard; thus, the arresting officers state of mind is irrelevantto the existence of PC. (Devenpeck v. Alford)

Rule: An officers subjective reason for making the arrest does not have to be thecriminal offense as to which the known facts provided probable cause. (Devenpeck v.

Alford)

Collective Knowledge:

In Whiteley v. Warden, Court declared that police officers who are helpingothers execute arrest warrants are entitled to assume that the officers offeredthe magistrate the information requisite to support PC.


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o In other words, officer B can make an arrest pursuant to orders fromofficer A if officer A had probably cause, even if B isnt familiar withthe facts supporting PC.

o Likewise with searches, the officer who actually conducts the searchneed not have personal knowledge of the facts supporting PC; all that

is needed is collective knowledge of the police dept.

Rule: Police officers who are helping others execute arrest warrants are entitled toassume that the officers offered the magistrate the information requisite to support PC.(Whitely v. Warden)

- The idea is that the police department has collective knowledge, so as long as theofficer who applied for the warrant had probable cause, it does not matter whetherthe arresting officer knows the facts on which the warrant is based.

Staleness of Information

Problem officers information can be outdated; if officer receives a tipabout drugs in Jan, there is no fair probability that thesame ozof marijuana isstill in the house six months later.

United States v. Harris (11th Cir.) = Court will make a case-by-casedetermination in which it will consider:

o the maturity of the information,o the nature of the suspected crime (discrete or ongoing conspiracy),o habits of the accused,o character of the items sought, ando nature and function of the premises to be search.

Rule: The information on which PC is based can become stale. Courts will make a

case-by-case determination in which they will consider:o the maturity of the information,o the nature of the suspected crime (discrete or ongoing conspiracy),o habits of the accused,o character of the items sought, ando nature and function of the premises to be search. (US v. Harris)

First Amendment Concerns:

An application for a warrant authorizing the seizure of materialspresumptively protected by the First Amendment should be evaluated underthe same standard of PC used to review warrants generally. (New York v. PJ

Video (1986))

B. Probable Cause Based on Hearsay Information

1. Two Pronged Test (90-97)

Rule: 4A requires a showing of PC as justification for a search warrant.


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4A mandates a showing of PC as justification for a search warrant.

Spinelli v. US

The affidavit at issue included information about Spinellis whereabouts afterthe FBI tracked him, that he had a false phone number, and information from

a confidential but reliable informant.o The warrant pretty much hinged on the informants tip, since the first

two items showed only innocent-seeming activity.

InAguilar v. Texas, the Court held that an affidavit based on hearsayinformation was inadequate because:

o The application for the warrant failed to set forth the underlyingcircumstances necessary to enable the magistrate to independentlyjudge the validity of the informants conclusion; and

o The affiant-officers did not support their claim that their informantwas credible or reliable.

The tip passes neither of the prongs of the Aguilar test: theres no informationas to why the informant was reliable, and we have no information about howthe informant received this information.

o In the absence of a statement detailing the manner in which theinformation was gathered, it is especially important that the tipdescribe the accuseds criminal activity in sufficient detail that themagistrate can know hes relying on something more than a casualrumor.

The informants tip, even when corroborated to the extent indicated, was notsufficient to provide the basis for a finding of PC.

Whites concurrence:o What is missing here is a statement of the basis for the affiants

believing the facts contained in the affidavitthe good cause. If the officer has seen whats in the affidavit, that affidavit is

good. If the officer has observed or perceived facts from which

whats in the affidavit can be inferred, the affidavit is notsufficient without a statement of what those perceived facts are.

If the office has obtained that information from someone else,where that information is hearsay, no warrant should issueabsent good cause for crediting that hearsay.

o If the affidavit rests on hearsayan informants reportwhat isnecessary under Aguilar is one of two things. The informant must

declare either: That he has himself seen or perceived the fact or facts asserted;

or That his information is hearsay, but there is good reason for

believing itperhaps one of the usual grounds for creditinghearsay.

o There are also limited special circumstances in which an honestinformants report, if sufficiently detailed, will in effect verify itself.


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o Unquestionably, things like verification of arrival time, dress, etc,reinforces the honesty of the informant (that he didnt make up thestory).

When an informant is right about some things, he is moreprobably right about other factsusually the critical,

unverified facts.

Applying Spinelli:

Rule: A police officer is presumed to be honest when making an affidavit; however, thesource of the officers information may be questioned. (Spinelli v. US)

Rule: If the officer avers that he has firsthand knowledge of the facts used to demonstrateprobable cause, the only question is whether the sworn facts are sufficient to meet thethreshold for PC. (Spinelli v. US)

Rule: If the officer is relying on someone else for part or all of the information, then is itnecessary to make three additional determinations:

Who is the source of the information, and is the source reliable? What are the bases and details of the sources knowledge? Assuming reliability, are the facts, either standing alone or taken together with

other facts in the affidavit, sufficient to satisfy PC? (Spinelli v. US)

Rule: If the source is not known to the police to be reliable, the police may be able todemonstrate reliability by corroborating the details provided by the informant; however,substantial amount of corroboration is required. (Spinelli v. US)

Rule: If the informants basis of information is unclear, it may be sufficient that theinformation is so detailed that it could only have come from the informants personalobservation. (Spinelli v. US)

Rule: No limitation where a crime victim or eyewitness reports an alleged crimeimmediately after he or she says it took place. (Spinelli v. US)

Note: The concern driving Spinelli is the reliability of paid and anonymous informants.

2. Totality of the Circumstances Test (97-113)

Illinois v. Gates Issue: Magistrate issued a search warrant on the basis of a partially

corroborated anonymous informants tip.

o Application for the warrant discussed a very detailed tip, which wascorroborated somewhat by the officers. Letter predicted husbandsflight, travel plans, etc.

Reasoning:


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o The letter on its own would not have been sufficient for a warrant,since it provides virtually nothing from which a magistrate couldconclude that its author was reliable or honest, or of the basis of theinformants information.

o Although the informants veracity, reliability and basis of knowledgeare highly relevant, these elements are not entirely separate andindependent requirements to be rigidly exacted in every case.

They are simply useful to illustrate the practical questionwhether there is probably cause to believe that contraband orevidence is located in a particular place.

A totality of the circumstances is preferable. PC is a fluid concept.Veracity/reliability and basis of knowledge do not always both need to bepresent; a deficiency in one can be compensated by a strong showing as to theother.

Court recognizes that affidavits are drafted by nonlawyers in the midst andhaste of a criminal investigation.

Concerned that police might end up resorting to warrantless searches in thehope that it will fall under some exception, rather than seeking the warrant. We dont want anonymous tips to have greatly diminished value in police

work, and ordinary citizens generally do not provide extensive recitations ofthe basis of their everyday observations.

Officials actions cannot be a mere ratification of the bare conclusions ofothers.

Innocent behavior will frequently provide the basis for a showing of PC; torequire otherwise would be to sub silentio impose a drastically more rigorousdefinition of PC than the security of citizens demands.

The anonymous letter contained a range of details beyond easily obtainedfacts, including future actions of third parties not easily predicted.

Rule: Court looks to the veracity and reliability of the source, as well as the basis of thesources knowledge, to determine the existence of PC. Note that both do not always bothneed to be present; a deficiency in one can be compensated by a strong showing as to theother. (Illinois v. Gates)

Note on Gates:

Court abandons rigid two-pronged test and moves toward a totality of thecircumstances test.

Strong Prong/Weak Prong Strong showing on one justifies weaker onother.

Corroboration after Gates More permissive view of the nature and extent ofthe corroboration necessary to shore up a defective tip.

Insufficient corroboration: Few cases after Gates in which policecorroboration was insufficient.

Gates Test Applied:Massachusetts v. Upton =


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Court reversed state court for invalidating a warrant when it failed to givesignificance to each relevant piece of information and also for failing to giveappropriate deference to the magistrate (standard of appellate review isfinding of substantial basis, not de novo probable cause determination).

While no piece of evidence was conclusive, the pieces fit together, and therewas a fair probability.

Citizen Informant:

Courts distinguish police informants and anonymous informants fromordinary citizens who identify themselves when reporting crime. Suchinformants are considered more reliable because they are presumed to bemotivated by good motives, not a desire to harass or frame someone or makemoney.

Rule: Citizen informants are considered more reliable because they are presumed to bemotivated by good motives, not a desire to harass or frame someone or make money.

Accomplices:

Confession of a co-participant is itself sufficient to establish PC; nocorroboration is required.

Rule: Confession of a co-participant is itself sufficient to establish PC; no corroborationis required.

Note: Gates deals with quality, not quantity. Fair probability is the question of quantity.

Quantity of Information required for PC: Gates deals with quality, not quantity. Fair probability is the question of

quantity.

V. Fourth Amendment Protection: The Warrant Requirement

A. Problems in Obtaining and Executing a Warrant

1. Mere Evidence and Search of Nonsuspects Premises (129-135)

Things That Can Be Seized:

It used to be on fruits and instrumentalities of a crime, and mere evidencecould not be seized. But Court rejected the rule against mere evidence of thecrime in Warden v. Hayden.

Warden v. Hayden =

Clothes of the defendant were seized during a search of his home. Nothing in the language of the 4A supports a distinction between mere

evidence and fruits and instrumentalities. Privacy is no more disturbed by a


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search directed to purely evidentiary object than to an instrumentality, fruit,etc.

However, there still must be some nexus between the item to be seized andcriminal behavior.

Rule: The government can seize mere evidence in addition to the fruits andinstrumentalities of a crime, but there still must be some nexus between the item to beseized and criminal behavior. (Warden v. Hayden)

Note:

Search power was dramatically expanded by the abrogation of the mereevidence rule, because an innocent third partys home or office could be thelegitimate object of a search. Evidence can be spread fair and wide.

PC as to Location of Evidence:

In some cases, govt will have PC to believe a suspect has committed a crimeand is in control of certain evidence, but arent sure where that evidence islocated.

Zurcher v. Stanford Daily = Court stated that the critical element isreasonable cause to believe that the specific things to be searched for andseized are located on the property to which entry is ought.

o Will depend on: Type of crime; Nature of items sought; Suspects opportunity for concealment; and Normal inferences about where a criminal might hide evidence

of a crime.

Thus, PC does not automatically exist to search a persons home simplybecause theyve been involved in a crime. Need some information linking thecriminal activity to the defendants residence.

Rule: Government must have PC as to location of evidence, that is, reasonable cause tobelieve that specific things to be searched for and seized are located on the property towhich entry is sought. This determination will depend on:

- Nature of items sought;- Suspects opportunity for concealment; and- Normal inferences about where a criminal might hide evidence of a crime.

(Zurcher v. Stanford Daily)

Rule: The government does not automatically have PC to search a persons home simplybecause the person has been involved in a crime; they must have some informationlinking the criminal activity to the persons residence.

Rule: The government can have PC to search a third partys premises even though thatparty is not suspected of a crime. (Zurcher v. Stanford Daily)


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Searches of Non-Suspects Premises:

Sometimes, police have PC to search a third partys premises even though thatparty is not suspected of a crime. Zurcher v. Stanford Daily.

o Justice White: Theres nothing special about the search of a thirdpartys premises. The question in any case is whether there is PC to

believe evidence of the crime will be found in the place to be searched.o Court is worried that 3d party isnt actually innocent; might destroy

the evidence, or give the defendant access to that property. Subpoenamight not come fast enough.

o Dissent: Countless law-abiding citizens will be subject to theseseizures and searches, which may reveal private information aboutthem unrelated to the crime.

2. Particularity Requirements (135-145)

Warrant clause requires particularized description of the place to be searched.This is designed to protect against abuses of a general warrant, i.e., a warrant

that gives an officer the power to search wherever he wants.

Function of the Particularity Requirement:

If the executing officer has no knowledge of the underlying facts (i.e., no ideawhere he should be searching), a particular description operates as a necessarycontrol on his discretion.

Even if he knows where he wants to search, the particular description forceshim to establish a specific record of PC as to that location before the actualsearch.

Particularity requirement prevents the officer from using the warrant as ablank check to expand a search of a location by relying on an overly general

description.

Reasonable Particularity:

Technical precision is not required in all cases. The degree of particularityrequired depends on the nature of the place to be searched and on theinformation than an officer could reasonably obtain about that location.

A single warrant cannot describe an entire building when cause is shown forsearching only one apartment.

Maryland v. Garrison = Warrant says for third floor apartment, but it turnsout there are two of those. Court holds that warrant and their search wassufficient, since it should be judged in the light of the information available to

them at the time. Warrant was thus valid when issued. When there is probable cause to search each unit of a dwelling with multiple

units, a warrant describing the entire dwelling is sufficient.

Rule: Warrant clause requires particularized description of the place to be searched. Thisis designed to protect against abuses of a general warrant, i.e., a warrant that gives anofficer the power to search wherever he wants.


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Rule: The validity of a warrant should be judged in light of the information available tothe officers at the time they applied for it. (Maryland v. Garrison)

The Wrong Address:

If the address is wrong, but the description is sufficiently particular to describethe actual residence, the warrant is valid because it makes it unlikely under thecircumstances that another premise might be mistakenly searched.

In a case where warrant was mistaken, and person who lived there pointedthem to a different location, court held that the mistaken address rendered thewarrant invalid, and the information given by the neighbor did not correct thedefect. Warrant did not describe the homes physical attributes.

o The procedure here thus risked a general search. Officers should haveattempted to call the detective who directed them there.

Rule: If a warrant gives the wrong address, but the description is sufficiently particular todescribe the actual residence, the warrant is valid because it makes it unlikely under the

circumstances that another premise might be mistakenly searched.

Rule: If a warrant gives the wrong address but no description, the warrant is invalid sinceit risks a general search.

The Breadth of the Place To Be Searched:

A different particularity question is whether the warrant sufficiently describesparticular places in the general area to be searched.

Difficult problem scope of the search of the property of persons whohappen to be on the premises that are being searched. Most courts have heldthat any persons property is subject to search so long as the property could

physically contain the items described in the warrant.

Rule: When a warrant provides for the search of a premises, most courts have held thatthe government can search any persons property on that premise, as long as the propertycould physically contain the items described in the warrant.

Particularity for Arrest Warrants:

An arrest warrant must describe the person to be seized w/ sufficientparticularity.

Describing the Things To Be Seized:

Warrant must particularly describe the things that officers can look for andseize.

Andresen v. Maryland = Officers got warrant to search for specifieddocuments pertaining to the sale of a lot in a fraud case. Andresen argued thatthe warrant was so broad that it was a general warrant.

o He contends that they were rendered fatally general by the addition ofthe phrase with other fruits, instrumentalities and evidence of crime atthis unknown.


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o But this wasnt a separate sentence; read in context, its clear that thephrase described the crime in question, not all possible crimes. Theycould not search for evidence of other crimes.

o List of documents was OK too because real estate fraud is a complexcrime that requires lots of bits of evidence to be pieced together like a

jigsaw puzzle.o In searches for papers, it is certain that some innocuous documents

will be examined.

Rule: A warrant must particularly describe the things that officers can look for and seize.(Andresen v. Maryland)

Searches of Computers:

Even a requirement of particularity will not shield most information stored ina computer from inspection when police have PC to believe that incriminatingevidence is somewhere on it.

oPolice can open folders that have names that dont suggest anythingsuspicious (i.e., grocery list).

Computer files are easy to disguise or rename, so we cant limit the warrant tospecific search protocol.

Reasonable Particularity:

Ultimately, particularity boils down to reasonableness. A search warrant mustdescribe items to be seized with reasonable particularity sufficient to prevent ageneral, exploratory rummaging in a persons belongings.

Severability:

Even if a clause in a warrant is overbroad, the defect will not usually taint thewhole search. Evidence seized pursuant to appropriately particulardescriptions will not be excluded.

3. Reasonableness, Details, Anticipatory Warrants, and Sneak and Peek Warrants(146-149)

Reasonableness and Warrants:

Magistrates cannot issue warrants that violate the reasonableness portion of4A.

Winston v. Lee = Court held that a court order (tantamount to a warrant)forcing the defendant to undergo surgery to help officers get more evidencewas unreasonable.

Rule: Warrants issued by magistrates are still subject to the reasonableness clause of 4A.(Winston v. Lee)

Details of the Warrant:


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Warrants must be executed within two weeks of their issuance; during thedaytime (after 6 am, before 10 pm). Theres an exception for this fornarcotics, which require no special showing for a nighttime search.

Anticipatory Warrants:

Anticipatory warrants are warrants conditioned upon future events that, iffulfilled, would create PC. Court held in United States v. Grubbs that such warrants are not invalid

simply because theyre contingent on a future event.o Requires an affidavit showing PC that at some future time certain

evidence of crime will be located at a specified place.o Govt cannot execute warrant before triggering condition occurs.o PC looks to whether evidence will be found when the search is

conductednot when the warrant is issued.o For an anticipatory warrant to comply with 4A, two prerequisites of

probability must be met:

It must be true that if the trigger condition occurs there is a fairprobability that evidence will be found; and That there is PC to believe that the triggering condition will

occur.

Rule: An anticipatory warrantthat is, a warrant conditioned upon a future event that, iffulfilled, will create PCis valid as long as:

It is true that if the trigger condition occurs, there will be a fair probability thatevidence will be found; and

There is PC to believe that the triggering condition will occur. (US v. Grubbs)Rule: An anticipatory warrant cannot be executed until the triggering condition occurs.(US v. Grubbs)

Sneak and Peek Warrants:

Crim. Pro Rules require officer executive a warrant to give a copy to theperson whose premises are searched. But there is a statute that allows secretsearches in some cases.

o These warrants permit federal agents to enter a persons home oroffice covertly if the govt can show reasonable cause to believe thatproviding immediate notification of the execution of the warrant mayhave an adverse result, such as endangering the life or safety of an

individual, flight, destruction of evidence, intimidation of potentialwitnesses, or anything else that would jeopardize an investigation.

o Govt can also seize stuff without notice if it can show a reasonablenecessity.

Rule: The government can obtain a sneak-and-peek warrantthat is, a warrant that doesnot require notice to the person whose premises are searchedas long as the government


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can show that there is reasonable cause to believe that providing immediate notificationof the execution of the warrant may have an adverse result, such as:

- Endangering the life or safety of an individual;- Flight;- Destruction of evidence;-

Intimidation of potential witnesses; or- Anything else that would jeopardize the investigation.4. Problems of Execution

a. Notice of Purpose and Authority (150-158)

Most jurisdictions require that officers executing a warrant knock andannounce their presence before attempting to enter a dwelling. If the officer isrefused admittance, he can break shit.

Purpose: protects citizens and law enforcement officials from violence;protects individual property rights; protects against needless destruction of

private property.

Constitutional Basis of the Knock and Announce Requirement:

Wilson v. Arkansas = Court held that, given the longstanding common lawendorsement of the practice of announcement, the Framers clearly thoughtthat the method of an officers entry into a dwelling was among the factors tobe considered in assessing the reasonableness of a search or seizure.

o However, its not a rigid requirement; just one component of the 4Areasonableness inquiry.

o Countervailing circumstances include hot pursuit, risk of destructionof evidence, and safety of officers.

Rule: An officers method of entryspecifically, whether he knocked and announcedtheir presenceis among the factors to be considered in assessing the reasonableness of asearch or seizure. (Wilson v. Arkansas)

o However, its not a rigid requirement; just one component of the 4Areasonableness inquiry.

o Countervailing circumstances include hot pursuit, risk of destructionof evidence, and safety of officers.

Refused admittance:

An officer can break open premises if he has announced his authority andpurpose and is refused admittance. Refusal can be implied from silence, but ithas to be of a reasonable length. Citizens get more time when the warrant inexecuted at night.

Rule: An officer can break into the premises if he has announced his authority andpurpose and is refused admittance. Refusal can be implied from silence, but the silencehas to be of a reasonable length.


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Exceptions to the Notice Rule:

No Breaking: If the door is already open, police dont need to announce their presence. Ifthe officer can trick the homeowner into opening the door, no violating of knock andannounce either.

Rule: If the door is already open, police do not need to announce their presence.

Rule: If the officer can convinceor even trickthe homeowner into allowing him toenter, this does not represent a violation of knock-and-announce requirement.

Emergency Circumstances:Richards v. Wisconsin:

Exigent circumstances exception to the knock and announce requirement. Police had request a warrant that would have given advance authorization for

a no-knock entry, but magistrate denied this request.

Court rejected a per se exigent circumstances exception for felony drug cases. Court didnt want to create an exception based on the culture surrounding ageneral category of criminal behavior, because it risks considerable

overgeneralization, and it would be a slippery slope toward such rules forother crimes.

Holding: The fact that felony drug investigations may frequently presentcircumstances warranting a no-knock entry cannot remove from the neutralscrutiny of a reviewing court the reasonableness of a decision not announce ina particular case.

Standard of exigency sufficient to justify a no-knock entry = Police must havereasonable suspicion that knocking and announcing their presence wouldinhibit effective investigation.

o Officers do NOT need PC to believe that evidence will be destroyed.Rule: If police have a reasonable suspicion that knocking and announcing their presencewould inhibit effective investigation, they meet the exigent-circumstances exception tothe knock-and-announce requirement. (Richards v. Wisconsin)

Note: Officers do not need PC to believe that evidence will be destroyed in order to meetthe exigent-circumstances exception to the knock-and-announce requirement.


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No-Knock Warrants:

A magistrate can issue a no-knock warrant if the officers make an advanceshowing of conditions at the premises that would excuse this requirement.

o Warrant applicant must give reasonable grounds to expect futility or tosuspect that one or another exigency already exists or will ariseinstantly upon knocking.

No requirement that an officer obtain a no-knock warrant even if this is thecase; but when police get one prior to the search, burden shifts to defendant toshow that entry method was not justified.

No-Knock Entries and Destruction of Property:

In United States v. Ramirez, defendant argued that a heightened degree ofexigency should be required if police are going to destroy property during ano-knock warrant entry.

Court rejected this argument.Rule: A heightened degree of exigency is not required when police destroy propertyduring a no-knock warrant entry. (United States v. Ramirez)

Exigent Circumstances After Knocking:

In United States v. Banks, Court considered how to go about applying thestandard of reasonableness to the length of time police with a warrant mustwaiting before entering without permission after announcement (whendefendant was in the shower).

o Court held it comes down to whether was reasonable to suspect animminent loss of evidence (or whatever the exigency might be in

another case) after the 15-20 seconds the officers waited.o What matters isnt the time it takes for the police to assume hes

refusing to let them in, but the time required for the resident to destroythe evidence.

Rule: The question of how long police with a warrant must wait after announcementbefore entering without permission comes down to whether it was reasonable to suspectan imminent loss of evidence in that time period.

Does Violation of Announcement Requirement Justify Exclusion of Evidence?

InHudson v. Michigan, Court held that a violation of announcement req doesnot justify exclusion of evidence found in a subsequent search.

o Interests protected by K&A do not include the shielding of potentialevidence; the relevant interests are safety and ability to collectoneself before answering the door.

o Since the interests that were violated have nothing to do with seizureof evidence, the exclusionary rule is inapplicable, and is unnecessaryto deter other violations (thats what 1983 is for).


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Rule: A violation of announcement requirement does not justify exclusion of evidencefound in the subsequent search. (Hudson v. Michigan)

b. Timing, Intensity and Duration of the Search (158-63)

Officers can only look in places where the objects specified might be found. A lawful search of fixed premises generally extends to the entire area in whichthe object of the search may be found and is not limited by the possibility that

separate acts of entry or opening may be required to complete the search.

Rule: Officers can only look in places where the objects specified might be found.

Destruction and Excessiveness:

Some courts have found it reasonable to remove a piece of drywall when theofficers had information that indicated it would be in a hiding place and thedrywall was unfinished.

Breaking locks is obviously OK.Use of Distraction and Intimidation Devices:

Use of flash-bang to distract and disorient any occupants in the vicinity ofthe entry:

o Courts have said reasonable when defendant has history of violentcriminal activity.

o Courts have rejected the use of the exclusionary rule as a remedy: theargument that occupants could have destroyed the drugs, if only theyhad more time and full possession of their faculties, is not a goodreason to suppress probative evidence of crime.

Unnecessarily Intrusive Searches: Court was not OK with a search of a birthing clinic where an innocent couple

with a newborn were, and the search lasted through the whole night. 8th Cir.held it was unreasonable, even though conducted pursuant to a warrant andPC.

When Is the Search Completed?

Officers must terminate a search when all of the materials describe in thewarrant have been found. But it can be difficult to determine whether allevidence described in the warrant has been found.

o Courts dont seem interested in imposing temporal or spatiallimitations on searches for narcotics.

Rule: Officers must terminate a search when all of the materials described in the warranthave been found, but that can be difficult to determine.

Presence of the Warrant:

Rules require officer to serve the person searched with a copy of the warrant,but this doesnt have to happen before the search takes place.


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c. Assistance from Private Citizens (163-64)

Unwilling Assistance:

US v. NY Tel. Co = Court held that, upon a showing of PC, district judge hadpower to order an unwilling telephone company to assist the govt in installingpen registers.

All Writs Act states: S.C. and all courts established by Act of Congress mayissue all writes necessary or appropriate in aid of their respective jurisdictionsand agreeable to the usages and principles of law.

o Court found this sufficient authority for a court to compel a privateperson to act.

Willing Assistance:

Courts have found no 4A violation where an officer asked two corporateemployees to assist him in a search of the premises. Civilians were serving a

legitimate investigative function because they could assist the officer, who didnot have the necessary technical expertise.

Courts not OK when a private citizen is present, not in aid of the officers oftheir mission, but for his own purposes, e.g., involving the recovery of stolenproperty. Officers exceed the scope of the warrant when they permitunauthorized invasions of privacy by third parties who have no connection tothe search warrant.

Rule: Officers exceed the scope of the warrant when they permit unauthorized invasionsof privacy by third parties who have no connection to the search warrant.

Rule: It is generally held reasonable for private citizens to accompany officers executinga warrant serving a legitimate investigative function because they could assist the officer,who did not have the necessary technical expertise.

Rule: It is not reasonable for a private citizen to be present during the execution of awarrant, not in aid of the officers of their mission, but for his own purposes.

d. Media Ride Alongs (164-66)

Problem Is 4A ok with officers inviting media along when they execute asearch?

o Court held in Wilson v. Layne that the media observation of theexecution of the arrest warrant in the petitioners home constituted a4A violation, even though the photos taken were never published.

o Police actions undertaken in execution of a warrant must be relatedto the objectives of the authorized intrusion.

o Court rejected the idea that general law enforcement

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