Introduction to the Law of Searches

4th Amendment

• People have the right to be secure in their houses, papers, and effects.

• No unreasonable search and seizures.

• Applicable to the States through the Due Process clause in the 14th Amendment.

• Generally only applies to governmental conduct.

The Means to Search

• Search Warrant issued by a neutral and detached magistrate/judge.

• Based on probable cause.

• Has to be “fresh”.• Valid on its’ face.

Execution of the Warrant

• After being issued:• Executed without

unreasonable delay.• After announcement

(unless officers/evidence would be endangered.)

• Person/Place seized within scope of warrant.

Execution Cont.

• 10 day rule• Normally done in the

daytime.• Special exception for

search warrant during later hours.

• Inventory.• High-Dollar/Special

Items.

Exceptions to the Search Warrant Requirement

• Incident to Lawful Arrest.

• Automobile Search• Plain View• Consent• Stop & Frisk• Hot Pursuit• Protective Sweep

What Agents are allowed to Seize

• Instrumentalities of the crime.

• Fruits of the crime.• Contraband.• The mere evidence of

a crime (e.g. blood stained clothing, bloody knife, etc…)

What is Constitutionally Protected?

• Police record conversation inside a home.

• Police record a conversation in a public telephone booth.

• Police record a conversation in a person’s car.

• Police record a conversation in a restaurant.

• Police record a conversation in a mall.

People are Protected, Not Places

• Person must have a reasonable expectation of privacy, and

• that the expectation be one that society as a whole recognizes as reasonable.

Katz v. U.S. (1967)

• Originally 4th Amendment dealt with property.

• Katz made it more of a privacy issue.

• It is a search where a person has a reasonable & justifiable expectation of privacy.

• What a person knowingly exposes is not a subject of 4th Amendment protection.

Scenario #1• Mr. Rip Off is sitting in his home creating false

investment statements.

• Police are in the house across the street.

• Using a high-powered telescope, the police see Rip Off using white-out to change investment returns.

• Police use this information to get a search warrant.

• Will the evidence from the resulting search warrant be suppressed?

Scenario #2

• Police do surveillance of Herb Grower from across the street.

• Police use a telescopic photo lens to see through the open window of Grower.

• Police see fifteen marijuana plants and use this as a basis for their search warrant.

• Does the evidence from the resulting search warrant get suppressed?

What is Reasonable/Unreasonable?

• Objects in plain view.

• Objects in plain view readable only through enhancement.

• Objects seen through open windows.

• Would a reasonable person have an expectation of privacy?

Plain View and Natural Senses

• Pat down searches of a person reveals a weapon.

• Officer smells marijuana.

• Officers sees contraband in plain view.

Scenario #3

• After receiving an anonymous tip, officers board a public bus and find an individual who is allegedly a courier for cocaine.

• The individual identifies his duffel bag.

• Officers feel all around the outside of the bag.

• When they feel a hard substance, they open the bag to find 2 kilos of cocaine.

• Is this evidence admissible?

Plain Touch

• Plain touch is not analogous to plain view.

• Touching or seizing something can be more intrusive than plain view.

• The Plain View Doctrine authorizes seizure of items visible to the officer only if the “officer’s access” to the evidence has a 4th amendment justification.

• Depends on the expectation of privacy.

Scenario #4

• After receiving an anonymous tip, officers board a public bus and find an individual who is allegedly a courier for cocaine.

• The individual identifies his duffel bag.• The officers call a drug dog to the scene.• The dog hits on the bag and a subsequent

search reveals two kilos of cocaine.• Why is this evidence admissible?

How Probable Cause was Obtained

• There was no intrusive search of the bag.

• Dogs, drug-testing kits only verify the presence of an illegal substance.

• After the hit by the dog, enough probable cause was present to make a valid search/seizure.

Scenario #5

• Mr. Jewel Thief pulls a heist the previous night.

• Thief checks out of his hotel and leaves behind a blueprint of the jewelry store.

• Police search the hotel room without a warrant and find the blueprint.

• Will this evidence be suppressed?

Abandoned Property

• Again, ask yourself is there a reasonable expectation of privacy.

• Not based on formal property rights.

• What if a house is for sale and an officer gains entry with a realtor?

Scenario #9

• Wile E. Coyote is a fugitive felon.• Police see Coyote’s car parked in his

brother’s driveway.• The car does not move for two weeks.• Police search the vehicle under the

abandonment principle and find evidence to support the charges.

• Will this evidence be suppressed?

Look at the Situation

• Where is the car placed?

• How long has the vehicle been there?

• What if police had walked onto the driveway and saw contraband through the window?

Scenario #

• Police respond to a domestic violence call.

• The owners of the home voluntarily allow police into the home.

• Police are given consent to search the house.

• While searching a boarder’s room, police find four stolen guns.

• Will the stolen guns be suppressed in the case against the boarder?

Standing

• Person owned or had a right to possession of the place searched.

• Place searched was the person’s home.

• Person was an overnight guest of the place searched.

• What if the boarder’s wallet left in the kitchen contained false identification?

Items Held Out To The Public

• Generally no reasonable expectation of privacy.

• Garbage at the curb• Handwriting• Bank Records• Telephone Records• Paint on the outside of a

car.• Sound of a voice.

Scenario #6

• Officers position themselves outside Tony Soprano’s front door and back lanai.

• Officers near the front door hear Soprano admit to killing an associate.

• Ten minutes later, officers in the back lanai hear Soprano confess to stealing a tractor-trailer.

• Which, if any, of these statements is admissible evidence?

Curtilage vs. Open Fields

• “Open Fields” Doctrine

• Areas Outside Curtilage

• Much less expectation of privacy in open fields.

• Areas around the person’s home

• Can include some or all outbuildings such as garages and barns.

• More of an expectation of privacy with curtilage.

Four Points to Outbuildings• Proximity of the area to

the home.

• Whether the area is included within an enclosure surrounding the home.

• The nature of the uses to the area.

• Steps taken to protect the area from observation.

Scenario #

• Police fly a helicopter in navigable airspace over Eric Cartman’s home.

• Police observe marijuana plants even though Cartman had a makeshift roof over the area in question.

• The area is in space considered part of curtilage.

• Will this evidence be suppressed?

Scenario #7

• Police suspect Smokey Weed of having a marijuana grow operation in his home.

• Police fly a plane over the home and use a thermal imager, which does not send rays into the home, to determine amounts of heat emanating from the home.

• Based on the results, the police obtain a search warrant.

• Is this evidence admissible?

Kylle v. U.S. (2001)• Reliance upon sense-

enhancing devices.

• More particularized version of the Katz test.

• Information regarding the interior of the home which is not readily recognizable

• Is the technology in question in general public use?

Scenario #8

• Police are investigating Chemical Dump, Inc. for environmental crimes.

• Police use an aircraft and take pictures of Chemical Dump, Inc.’s fenced-in facility.

• Police also take pictures from a public road showing the illegal packaging of chemicals through an open door in the factory.

• Undercover police go into the sales office and find falsified paperwork in the trash can.

• Which items are admissible if any?

Totality of the Circumstances

• Each search stands on its own

• Look at the technique used.

• While some actions may constitute a search if done one way, they may not be considered a search if done another way.

Scenario #• Police obtain a valid search warrant for the home of Sam

Bookie, 1235 Vegas Lane.• The warrant is based on information from an informant.• Police delineate 1234 Vegas Lane as the place to be

searched.• Realizing their mistake, police scratch out 1234 and put

1235 in its’ place.• After the search warrant police find out the informant lied

to them.• Will this evidence be suppressed and why?

Tainted Evidence

• Was the mistake made in good faith?

• Does the mistake have an impact on the Search itself?

• Were there exigent circumstances?

• Totality of the Circumstances.

Review

• 4th Amendment applies to people more than property.

• A search warrant based on probable cause is needed to search.

• There are exceptions.

• Was there a reasonable expectation of privacy?

• Items held out to the public have no expectation of privacy.

• Curtilage and the “Open Fields Doctrine”.

Dr. Pacini Video - Outside Curtilage