I. Fourth Amendment Search and Seizure

CRIMINAL PROCEDURE

I. FOURTH AMENDMENT SEARCH AND SEIZURE

A. 2 MODELS OF THE 4TH AMENDMENT

United States Constition, Amendment IV

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

--“effects” = the residual component of the constitutional phrase; includes autos, luggage, and other containers, clothing, weapons, and even the fruits of a crime; less inclusive than “property” (an open field, as opposed to curtilage, is not an effect—see below)

US v. Rabinowitz (overruled by chimel v. California)

--The evil to be prevented by the 4th Am is the general exploratory search and unreasonable searches and seizures.

--Petitioner, Rabinowitz was arrested with a valid arrest warrant (with probable cause) for forged and altered gvt stamps. There was no search warrant, but upon his arrest, the officers searched his person, small one-room office open to the public, file cabinets, safe, and desk in his presence despite his objection to the search.

--Issue: the reasonableness of a search without a search warrant of a place of business consisting of a one-room office alongside a valid warrant for arrest

--2 views of the 4th Am.—Minton and Frankfurter

(1) Majority—Minton:

-The search and seizure were valid as incidental to a lawful arrest. The search was reasonable.

-No search warrant is required if the search and seizure are reasonable (OVERRULED). A general exploratory search always requires a search warrant, but a limited search might not.

-Test for reasonableness is determined on a case-by-case basis, considering the totality of the circumstances.

-Weeks v. US—The right to search the person incident to arrest always has been recognized in this country.

-Agnello v. US—There is a permissible area of search beyond the person proper. Subsequent to an arrest, a limited search of the place of arrest can be made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody.

-Assuming that the officers had time to procure a search warrant, were they bound to do so? No. A limited search accompanying a valid arrest need only be reasonable.

-Exceptions to the search warrant requirement (evidence not suppressed in these situations):

(2) Dissent—Frankfurter:

-If there is no search warrant, the search of a place is presumptively unreasonable with some exceptions. Whether the search accompanies a valid arrest makes no difference.

-Frankfurter points out that the only exceptions which allow for an additional warrantless search to be found reasonable under the 4th Am include:

risk of exigency (to officer’s safety)

risk of escape of suspect

risk of evidence being destroyed

moving objects may be searched because they may be quickly moved out of the jx

-Upon arrest, officers may search and seize anything on the person or in his immediate physical control without a search warrant.

-4th Am rights should be construed liberally. Police officers will be confused and may conduct more general searches.

B. REASONABLE EXPECTATION OF PRIVACY—STANDING

Katz v. US

--Petitioner was convicted of transmitting wagering information by telephone in violation of a federal statute. At trial, the gvt was permitted, over the petitioner’s objection, to admit evidence obtained from wiretapping the phone booth while petitioner was in the phone booth with the door closed.

--The 4th Am protects people, not places. The evidence (the conversation on a tape recording) was not allowed because Katz had a reasonable expectation of privacy from the intrusion of gvt officials (sometimes called “Standing” to object to the admission of evidence).

--Katz’s oral communications were protected.

--The requirement of an objective predetermination of probable cause is a safeguard for privacy rights. An after-the-event justification for a search violates privacy rights protected by the 4th Am. The scheme of the 4th Am is based upon the principle of antecedent determination of probable cause by a neutral and detached magistrate.

--Current Rule: Katz test (2-prong dispositive test from Harlan’s concurrence) for determination of standing/reasonable expectation of privacy:

(1) Subjective component: the person must have exhibited an actual expectation of privacy AND

(2) Objective component: the expectation must be one that society recognizes as reasonable

Heirarchy of REOP

--Residences (home, hotel) > business premises > automobiles

Standing

--There is no 3rd-party standing, i.e., you cannot have standing when someone else was searched merely because they carried your belongings. (Alderman v. US—“suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence.”; US v. Payner—The gvt intentionally manipulated the standing requirement of the 4th Am when it deliberately and patently violated the constitutional rights of a 3rd party in order to obtain evidence against its real targets. The evidence was admissible.)

--Automatic standing (for possessory interests) was abolished in Simmons v. US. Victims must now prove that they have standing under the Katz test.

--Simmons v. USlimited immunity: testimony given by a D in order to establish his “standing” may not thereafter be used against him at trial on the issue of guilt; D loses limited immunity only if he testifies inconsistently at trial.

--Residential premises: One with a present possessory interest in the premises searched, e.g., a member of the family regularly residing in a home, may challenge that search even though not present when the search was conducted because the items seized were the fruits of an unauthorized search of his house. Alderman v. US—a person has standing to challenge the legality of electronically overhead conversations in which he participated “or conversations occurring on his premises whether or not he was present or participated in those conversations.” Rakas v. Illinois—For those legitimately on premises, the standard for standing is whether there was a reasonable expectation of privacy under the Katz test. Minnesota v. Olson—overnight guest has a reasonable expectation of privacy. See also Kyllo (to be discussed later)

--Business premises: Protected (standing) when there is a reasonable expectation of privacy. Mancusi v. DeForte—Defendant, who shared his office with other union officials was protected because he had a reasonable expectation of freedom from governmental intrusion. Courts have held that a corporate or individual D in possession of the business premises searched has standing, and that an officer or employee of the business enterprise has standing if there was a demonstrated nexus between the area searched and the work space of the D. There can be a justified expectation of privacy even absent exclusivity. See Ortega below.

--Vehicles and pedestrians: Protected (standing) when there is a reasonable expectation of privacy, but police are allowed to search if there is a reasonable inference of the risk of flight/destruction of evidence.

REOP (standing)

/

NO reop

Shredded papers put out in the garbage (US v. Scott—IRS agents stole garbage and reassembled shredded documents)

/

Garbage put out for pickup (CA v. Greenwood—police had garbage men collect and hand over suspect’s garbage; what a person knowingly exposes to the public is not entitled to 4th Am protection)

Smith v. Maryland—Also, no reop in the phone numbers we dial from home phones; same reasoning as Greenwood

Curtilage—the land immediately surrounding and associated with the home; the area to which extends the intimate activity associated with the sanctity of a man’s home and the privacies of life

/

Open fields-the land beyond the curtilage, still private property; no reop even when a fence or ‘no trespassing’ sign exists.

US v. Dunn—police went up to barn on private property and looked through holes; considering the distance from the house (60 yards) and the ability to look into the barn without moving anything, the court held no reop

Business premises

/

Planes flying 1,000 ft overhead (CA v. Ciraolo—“Any member of the public flying at this airspace who glanced down could have seen everything that these officers observed.”)

Private areas in public places (e.g., public bathroom in a public park)

/

Backyard greenhouse surrounded by fence (in curtilage); no reop against helicopter flying 400 ft overhead (Florida v. Riley—Any member of the public could legally have been flying over the property in a helicopter at the altitude of 400 ft and could have observed the greenhouse.)

Reop against officer reaching inside car to reveal a VIN, even though law requires that a VIN must be displayed at all times.

/

Prison cells

Reop as to seizure of a car, but not as to seizure of wheel and paint scrapings for investigation.

/

Reop as to seizure of a car, but not as to seizure of wheel and paint scrapings for investigation.

Travel bag (Bond v. US—officer stopped a bus, walked inside and felt everyone’s bags, felt a brick shape and opened Bond’s bag to reveal a brick of meth; standing and unlawful search and seizure; a traveler’s personal luggage is clearly an “effect” protected by the 4th Am)

See Dressler for what constitutes an effect (under what is a search) /

Officer’s detection by natural senses (US v. Mankani—no search where conversations in adjoining motel room were overheard by the naked human ear); no reop when a common means of enhancing the senses is used, such as a flashlight, binoculars, canine nose, (reop against “through-the-wall surveillance”, but no reop against “of-the-wall surveillance”)

Monitoring of a beeper when it reveals information that could not have been obtained through visual surveillance of the outside premises constitutes a search.

/

Installation of a beeper in a container of chemicals with the consent of the original owner is neither a search nor a seizure.

thermal imager, powerful directional microphone, satellite scanning for visible light (reop against “through-the-wall surveillance”, but no reop against “of-the-wall surveillance”)

/

Cell phone tracking

Down Chemical Co. v US—Highly detailed aerial photography of open areas of an industrial plant complex is not analogous to the curtilage of a dwelling and no reop exists; dissent—reop illustrated by trade secrets

Rakas v. Illinois—Passenger does not have reop as to trunk, glove box, or underneath seats of car. (Does driver/owner of car?)

Kyllo v. US

--This case reaffirms the expected privacy of a home.

--Suspected marijuana growth in triplex; agent used a thermal imager to scan the home and discovered that the roof over the garage and a side wall of the home were relatively hot compared to the rest of the home and substantially warmer than neighboring homes in the triplex.

--Search warrant was based on tips from informants, utility bills, and the thermal imaging. Search revealed 100 marijuana plants which were seized.

--Evidence admissible for probable cause because the thermal imaging was not an invasion of privacy.

--Majority makes distinction between “off-the-wall surveillance” and “through-the-wall surveillance” and analogizes thermal imaging to powerful directional microphone that picks up only sound emanating from a house and satellites capable of scanning from many miles away for visible light emanating from a house.

--Majority: The use of a thermal imaging device IS an intrusion into the home, as are powerful directional microphones and scanning for visible light by satellite. These are illegal through-the-wall searches.

--Dissent: The use of thermal imaging devices is an off-the-wall surveillance.

Rakas v. Illinois

--Police get a radio call of suspected armed robbery getaway car (potential violent felony), and the car in which Rakas was a passenger matched the description (reasonable suspicion, but not probable cause). Officer pulled them over and searched the glove compartment and underneath the seat, finding a rifle and shells. No one asserted ownership of the gun and shells, and the passengers conceded that they did not own the car.

--Standing should depend on whether the police action sought to be challenged is a search with respect to the person challenging the intrusion. The preferred analysis for determining the scope of constitutional rights protected by the exclusionary rule focused on the substantive question of whether petitioners had their own rights infringed by the police's search and seizure, rather than on the concept of standing. Further, the Court determined that the appropriate measure of rights was no longer guided solely by whether petitioners were legitimately on the premises that the police searched.

--The passengers had no standing because like the trunk of a car, glove compartments and underneath seats are not areas in which a passenger has a reasonable expectation of privacy. (but driver/owner does??)

--The 2 inquiries merge into one: whether governmental officials violated any legitimate expectation of privacy held by the victim.

Rawlings v. Kentucky

--Rawlings dumped drugs into Cox’s purse upon seeing the cops approaching. When the cops searched the purse, he claimed ownership of the drugs. However, he had no reasonable expectation of privacy wrt the purse because he never sought or received access to it, and he had no right to exclude others from it. Also, the precipitous nature of the “bailment” to Cox hardly supports a reasonable inference that Rawlings took normal precautions to maintain his privacy.

--Ownership of chattels, by itself, does not automatically grant standing. There was no reasonable expectation of privacy from governmental intrusion.

Minnesota v. Carter (tricky case)

--An informant told a police officer that he saw people packing cocaine into bags. The officer looked into the window through a gap in the closed blind and observed 3 persons bagging the cocaine at an apartment. The officer notified headquarters and began preparing affidavits for a search warrant. Carter and Johns left, were pulled over and arrested. A later police search of the vehicle turned up cocaine. Police returned and arrested Ms. Thompson in her apt, searched the apartment, and found more cocaine.

--Carter and Johns had never been in Thompson’s apt before and were only in it for 2.5 hrs, and they had come to the apt for the sole purpose of packing the cocaine.

--Majority: Rehnquist

In Minnesota v. Olson, SC decided that an overnight guest in a house has standing. However, mere presence with the consent of the householder (legitimate presence), by itself, does not provide 4th Am protection.

No standing was established for Carter and Johns due to the nature of their visit—they did not have a reasonable expectation of privacy because it was short, their first visit, and they were only there to pack cocaine.

Parties who are in a residence for only a few hours, on “business,” and who have little or no previous relationship with the owner or occupants of the premises do not have standing to contest a search of the premises (as opposed to their personal belongings).

--Dissent: Ginsburg, Stevens, Souter

The majority opinion undermines the security of short-term guests and residents (like Ms. Thompson). Guests should share the host’s shelter against unreasonable searches and seizures.

The 4th Am protects people, not places.

5 generally recognized ways to establish a reasonable expectation of privacy:

--(1) The right to exclude others from the area searched. Analogous with the capacity to consent to a search.

Rakas—if one owns the area searched, one will generally possess a right to exclude others

Alderman v. US—homeowners have standing even when they are not present, even over conversations of which they were not a part

Katz—occupied phone booth and closed the door

Mancusi—union official shared office but still had right to exclude others

--(2) Continuing access plus possessory interest of item seized.

US v. Jeffers—key to aunt’s apartment and continuing access plus possessory interest in seized contraband within the apartment

--(3) Legitimate presence plus possessory interest of item seized.

Minnesota v. Olson—D had standing to contest the police’s warrantless entry despite the fact that he slept in the apartment for 1 night and was never given a key.

Minnesota v. Carter—However, parties who are in a residence for only a few hours, on “business,” and who have little or no previous relationship with the owner or occupants of the premises do not have standing to contest a search of the premises (as opposed to their personal belongings). Therefore, temporary guests with no prior relationship to the homeowner probably do not have a REOP even though they have a legitimate presence plus possessory interest in the item seized.

--(4) Were one to make a valid bailment, a legitimate expectation of privacy might be established.

US v.Miller—However, a person who voluntarily surrenders information to a bank lacks standing to contest a subpoena for records containing that information.