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Criminal Procedure

10th Edition

Joel Samaha

The Definition of Searches and Seizures

Chapter 3

Crime Control in a Constitutional Democracy

Crime control in a constitutional democracy depends on information, most of which comes from what police see and hear.
Sometimes, police need information from reluctant sources, such as:
Criminals
Suspects
Victims
Witnesses
Only involuntary methods of collection trigger the criminal procedure protection of the Bill of Rights

Three questions must be addressed when analyzing Fourth Amendment issues:
Was the law enforcement action a search or a seizure? [If it wasn’t, the Fourth Amendment isn’t involved, and the analysis ends.]
If the action was a search or a seizure, was it reasonable? [If it was, the inquiry ends because the Fourth Amendment only bans unreasonable searches and seizures.]
Reasonableness can be assessed in multiple ways:
Balance between- Government Interest vs. Individual Rights
Subjective vs. Objective reasonableness
If the action was an unreasonable search, does the Fourth Amendment ban its use as evidence?

Analyzing Fourth

Amendment Issues

The importance of defining a law enforcement action

If a law enforcement action isn’t a search or a seizure, then it’s out of the Fourth Amendment’s reach.
“If there’s no search, the law does not give a constitutional damn about noncompliance.” –Judge Charles E. Moylan
Law enforcement action depends on the good judgment (discretion) of individual officers.
Law enforcement action depends on knowledge and understanding of precedent.

The History and Purposes of the Fourth Amendment (slide 1 of 2)

Search and seizure law existed before the adoption of the Fourth Amendment. Original laws targeted sedition and tax evasion.
Writs of Assistance included a “general warrant” which empowered royal agents to search anyone, anytime, any where, for any reason
The authors of the Fourth Amendment aimed to limit the power of law enforcement to infringe “unreasonably” on two values at the heart of a free society: liberty and privacy.

History and Purpose of the Fourth Amendment (slide 2 of 2)

The Fourth Amendment was created to make sure the government does not use illegal methods to get evidence.
But, the 4th Amendment was not aimed at crippling law enforcement; it was aimed only at limiting that power enough so as not to infringe “unreasonably” on two other values at the heart of a free society:
Liberty (the right to come and go as we please) and
Privacy (the right to be left alone by the government).

Discuss:

U.S. v. Jacobson
Text pages 71-72
U.S. v. Lichtenberger
Text pages 67-68
Can the government use the fruits of a private search?
http://cyb3rcrim3.blogspot.com/2015/06/the-girlfriend-hacked-laptop-and-4th.html

The private search doctrine

The 4th Amendment is not triggered when private parties not associated with the government conduct searches and they turn over what they found to the police.
Police may not exceed the scope of the private search.
Officer must have virtual certainty that the officer’s inspection will not reveal more than the private party’s search
The government can reconstruct the private search, but cannot exceed what was conducted by the private party
Was the government a party to the initial private search?
Did the government limit their use to the bounds of the private search?

discuss

A school principal and an SRO have worked together for many years. When the principal suspects students have drugs on campus, he first conducts a search pursuant to school policy and then notifies the SRO if evidence of drugs are found. The SRO can then make an arrest based on the drug evidence found by the principal.
Reasonable or unreasonable search?

The Purpose of the 4th Amendment

The Fourth Amendment is supposed to provide the government with enough power to make us safe and secure by looking for, getting, and using the evidence it needs to control crime, protect officers, seize suspects and contraband, and meet special needs beyond criminal law enforcement.
The Fourth Amendment doesn’t ban all searches and seizures; it bans unreasonable searches and seizures.

New slide

The fourth amendment

“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.”

The fourth amendment analyzed

“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.”

Fourth amendment application

Search: when government agents look for evidence in a manner that intrudes into a person’s legally protected zone of privacy
Seizure: when government agents take possession or control of property or persons
Seizures of property are defined as “some meaningful interference” with an individual’s “possession” of property.

Fourth amendment application

4th Amendment requires law enforcement to obtain a warrant before searching or seizing
Warrantless searches must be “reasonable”
Reasonableness is usually demonstrated by the law enforcement officer establishing
Probable Cause to believe that a search will produce evidence of a crime AND/OR
case law establishing reasonableness (reasonable per se or warrant exceptions) AND/OR
Balance between government interest and individual rights AND/OR
Objective vs. Subjective analysis

OR (in certain instances)

Reasonable Suspicion is sufficient to allow a limited search

Physical trespass, a precursor to Reasonable expectation of privacy doctrine

1928, Justice Brandeis (in a dissent)
“The makers of the Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect American’s in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.
(yes, wiretaps are not physical trespass, but…)

Discuss:

Katz v U.S.
Text pages 78-80
“The 4th Amendment protects people, not places.” –Justice Stewart
Consider the nature of the intrusion (page 79)

Searches and the Privacy Doctrine

In 1967, the U.S. Supreme Court replaced the trespass doctrine with the reasonable expectation privacy doctrine. This is a two-pronged expectation-of-privacy test:
Subjective privacy: Did the person exhibit an actual personal expectation of privacy?
Objective privacy: Is society prepared to recognize the privacy as reasonable?

Privacy Doctrine
“Reasonable Expectation”

Subjective privacy: Whether the “person exhibited an actual [personal] expectation of privacy”
Objective privacy: Whether the subjective expectation of privacy is an expectation “that society is prepared to recognize as ‘reasonable’”

When is There a Reasonable Expectation of Privacy?
https://youtu.be/iPq5RIcYGxM

New slide

Wrongdoers and the reasonable expectation of privacy

Illinois v. Caballes
Text pages 81-82
Wrongdoers don’t have a reasonable expectation of privacy in their criminal activities.

How is this different than Katz?
How is this different than Kyllo (pages 93-95)?
What do you think about the dissent in Caballes?

Third Party Doctrine

We have held repeatedly that the Fourth Amendment does not prohibit obtaining information revealed to a third party and conveyed by the third party to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed. (U.S. v. Miller 1976, 443)

New slide

Third party doctrine

Assumption of risk theory
Whenever we knowingly reveal our incriminating secrets, we assume the risk that our false friends will use them against us in criminal cases

Third party doctrine

False friends- undercover agents and/or informants
U.S. v White (text pages 84-87)
Hoffa v. U.S. (text pg 83)
Lewis v. U.S. (83-84)
Essential service providers- utilities, trash, businesses
U.S. v Miller (text pages 88-89)
Smith v. Maryland (89-90)
California v. Greenwood (90-92)
Digital communication providers (internet, email, facebook, etc)

The 4th Amendment and 5 technologies

Thermal Imaging- SCOTUS opinion
Kyllo v. US (93-95)
Email Surveillance-one Appeals level case, not SCOTUS
U.S. v. Warshak (100-103)
GPS tracking- SCOTUS opinion
U.S. v. Jones (96-99)
Smartphones- partial SCOTUS opinion
Text Messages- no SCOTUS opinion
State v. Patino (104-109)

Is Data Considered Property?

U.S. v. Galpin, 2009
Decided that a computer hard drive is akin to a residence in terms of scope and quantity of private information it may contain.

Discuss:

Make a list of relevant technological forms of communication and inherent challenges from fourth amendment judicial lens.

State of Surveillance: Police, Privacy and Technology
https://youtu.be/6VkKeM-OK6g

The 4th amendment and technology

Privacy in the Digital Age | Nicholas Martino | TEDxFSCJ
https://youtu.be/PuhifEL5VsU
Privacy is Dead: The Future is Fabulous | Richard Aldrich | TEDxWarwick
https://youtu.be/M11nmdKdKV8

Chapter 3 review

ANALYZING A 4TH AMENDMENT QUESTION
PRIVATE SEARCH DOCTRINE
REASONABLE EXPECTATION OF PRIVACY
THIRD PARTY DOCTRINE
SEARCHES IN A DIGITAL AGE
SEIZURES OF PROPERTY

Looking ahead…..

Seizures of Persons (“stops”)
Chapter 4
Seizures of Persons (“arrests”)
Chapter 5