§ 1.01 Text of the Fourth Amendment

 

The Fourth Amendment reads:

 

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.

 

§ 1.02 Persons and Actions Covered by the Fourth Amendment

 

[A]  “People”

 

The Fourth Amendment is not specifically limited to citizens.  For Fourth Amendment purposes, the word “people” encompasses non-citizens who have “developed sufficient connection” with the United States to be considered part of the “national community.”  United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). 

 

In Verdugo-Urquidez, the Court assumed, but did not rule, that undocumented immigrants living voluntarily in the United States “have accepted some societal obligations” and thus possess Fourth Amendment rights.  It declined to resolve the question of whether a nonresident alien, involuntarily detained in the United States for an extended period of time, has sufficient connection with the country to be afforded Fourth Amendment rights.

 

[B] Standing to Raise Fourth Amendment Claims

 

Fourth Amendment rights may only be asserted by one who is subjected to an unreasonable search or seizure.  The rights may not be vicariously asserted.  Thus, a defendant cannot challenge a search against a co-defendant.  [See Chapter 6, Standing to Assert Fourth Amendment Claims.]

 

[C] Governmental Action

 

The Fourth Amendment only applies to actions by the government.  Actions undertaken by private persons acting in the capacity of an agent of the government are also covered by the Amendment.  Whether a private person is deemed an agent of the government is determined by the degree of government involvement in the situation and the totality of the circumstances.

 

The Fourth Amendment is not limited to police activity and covers conduct by other public employees, such as firefighters, public school teachers, and housing inspectors.  Searches by non-police government actors are generally of an administrative, not investigatory nature, and are controlled by different standards.  [See Chapter 5, Administrative and Non-Investigatory Searches.]

 

[D] Extraterritorial Searches and Seizures

 

The Fourth Amendment does not apply to activities of foreign law enforcement officers acting outside the United States. Thus, evidence secured by a foreign officer that is turned over to the United States may be admitted against the victim of the search in a criminal trial.  However, if there is sufficient U.S. involvement in the extraterritorial search of an American citizen, the Fourth Amendment applies.

 

In contrast, nonresident aliens located outside the United States or its territories, as well as those who are temporarily and involuntarily in the country, are not protected against foreign searches, even if conducted by United States government officers.  United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).

 

§ 1.03 “Persons, Houses, Papers, and Effects”

 

[A] “Persons”

 

For Fourth Amendment purposes, “person” includes:

(1) the defendant's body as a whole (as when he is arrested);

(2) the exterior of the defendant's body, including his clothing (as when he is patted down for weapons);

(3) the interior of the defendant's body (as when his blood or urine is tested for drugs or alcohol);

(4) the defendant's oral communications (as when his conversations are subjected to electronic surveillance).

 

[B]  “Houses”

 

“House” has been broadly construed to include:

(1) structures used as residences, including those used on a temporary basis, such as a hotel room;

(2) buildings attached to the residence, such as a garage;

(3) buildings not physically attached to a residence that nevertheless are used for intimate activities of the home, e.g., a shed;

(4) the curtilage of the home, which is the land immediately surrounding and associated with the home, such as a backyard.  However, unoccupied and undeveloped property beyond the curtilage of a home (“open fields”) falls outside of the Fourth Amendment.

 

Factors relevant to determining whether land falls within the cartilage are:

(1) the proximity of the land to the home;

(2) whether the area is included within enclosures surrounding the house;

(3) the nature of the use to which the area is put; and

(4) the steps taken by the resident to protect the land in question from observation.

United States v. Dunn, 480 U.S. 294 (1987).

 

Commercial buildings receive limited Fourth Amendment protection on the theory that one has a greater expectation in his home than in commercial structures. 

 

[C] “Papers and Effects”

 

“Papers” encompass personal items, such as letters and diaries, as well as impersonal business records. “Effects” encompass all other items not constituting “houses” or “papers,” such as clothing, furnishings, automobiles, luggage, etc.  The term is less inclusive than “property”; thus, an open field is not an effect.

 

§ 1.04 “Search”

 

[A] Katz v. United States

 

In Katz v. United States, 389 U.S. 347 (1967), federal officers, acting without a warrant, attached an electronic listening device to the outside of a telephone booth where the defendant engaged in a number of telephone conversations.  The controlling legal test at the time for determining whether police conduct violated the Fourth Amendment was known as the “trespass” doctrine.  Under the trespass doctrine, the Fourth Amendment did not apply in the absence of a physical intrusion - a trespass - into a “constitutionally protected area,” such as a house.

 

Noting the advent of modern technology that allowed the government to electronically intercept conversations without physical intrusion into any enclosure, the Court abandoned the trespass doctrine and announced that the appropriate inquiry for Fourth Amendment challenges was whether the defendant had a “reasonable expectation of privacy.”  Applying this new standard, the Court found that despite the fact that the telephone booth was made of glass and the defendant's physical actions were knowingly exposed to the public, what he sought to protect from the public were his conversations, as evidenced in part by shutting the door to the phone booth.  Thus, the government's electronic surveillance of the defendant's conversations without a warrant violated the Fourth Amendment.

 

[B] “False Friends” Doctrine

 

The Fourth Amendment protects private conversations where no party consents to the surveillance and/or recording but does not protect conversations where one party consents to such activity.  Thus, under the doctrine of “false friends,” no search occurs if a police informant or undercover agent masquerading as the defendant's friend, business associate, or colleague in crime, reports to the government the defendant's statements made in the informant's or agent's presence. United States v. White, 401 U.S. 745 (1971).  A person is not deemed to have a reasonable expectation of confidentiality from a person with whom he is conversing.

 

 The doctrine also applies where the “false friend” wears a “wire” to record the conversation with the defendant.

 

[C] Open Fields

 

Entry into and exploration of so-called “open fields” does not constitute a search within the meaning of the Fourth Amendment. The “open fields doctrine” is based on the theory that people do not have a legitimate expectation of privacy in activities occurring in open fields, even if the activity could not be observed from the ground except by trespassing in violation of civil or criminal law.

 

[D] Other Forms of Electronic Surveillance

 

[1] Pen Registers

 

Installation and use of a pen register by the telephone company, at the behest of the government, to record the telephone numbers dialed from a private residence is not a search within the meaning of the Fourth Amendment.  Smith v. Maryland, 442 U.S. 735 (1979) (concluding that the defendant did not likely have an expectation of privacy in the numbers he dialed, but even if he did, such expectation was unreasonable).

 

[2] Electronic Tracking Devices

 

Surveillance of activities occurring in public falls outside the protections of the Fourth Amendment.  Thus, the use of an electronic tracking device attached to a suspect's vehicle or object carried by the suspect does not constitute a search to the extent that it provides the police with information that could have otherwise been secured by visual surveillance from public places.  United States v. Knotts, 460 U.S. 276 (1983).  However, where such device allows the police to monitor activity inside a private place such as a home, a Fourth Amendment search occurs.  United States v. Karo, 468 U.S. 705 (1984).

 

[3] Thermal Imagers

 

The use of a thermal-imaging device aimed at a home from a public area to detect relative amounts of heat within constitutes a search.  Kyllo v. United States, 533 U.S. 27 (2001) (technology improperly used to confirm federal agent's suspicion that defendant was using high-intensity lamps to grow marijuana inside his home).  Use of such technology constitutes a search if it enables the government to gather evidence from a constitutionally protected area to which it would not otherwise have access without a warrant.

 

[E] Aerial Surveillance

 

Aerial surveillance by the government of activities occurring within the curtilage of a house does not constitute a search if the surveillance:

(1) occurs from public navigable airspace;

(2) is conducted in a physically non-intrusive manner; and

(3) does not reveal intimate activities traditionally connected with the use of a home or curtilage.

California v. Ciraolo, 476 U.S. 207 (1986) (involving aerial surveillance of defendant's backyard in which he was growing marijuana)

 

Construction of a fence which blocks observations from ground-level and demonstrates the defendant's desire to maintain privacy does not necessarily equate to a reasonable expectation of privacy if there any modes of surveillance possible under the circumstances, e.g., airplanes and helicopters flying above, observations from taller adjacent buildings, a utility repair person on a pole overlooking the yard.

 

[F] Dog Sniffs and Other Tests for Contraband

 

Activity that is aimed at detecting the mere presence of contraband, or identifying a suspicious substance as such, does not constitute a search. United States v. Place, 462 U.S. 696 (1983) (a dog sniff of luggage, which was located in a public place, does not constitute a search); United States v. Jacobsen, 466 U.S. 109 (1984) (a chemical test that merely discloses whether a particular substance is cocaine “does not compromise any legitimate interest in privacy,” and is, therefore, not a search).  However, a test to determine personal use of contraband, such as a urine test to detect drug use, does qualify as a search.

 

[G] Inspection of Garbage

 

There is no reasonable expectation of privacy in garbage left for collection outside the curtilage of one's home. California v. Greenwood, 486 U.S. 35 (1988).

 

§ 1.05 “Seizure”

 

[A] Seizure of Property

 

In contrast to a search, which affects a person's privacy interest, a seizure of property invades a person's possessory interest in that property. Tangible property is seized in Fourth Amendment terms “when there is some meaningful interference with an individual's possessory interests in that property.”

 

[B] Seizure of Persons

 

A Fourth Amendment seizure of a person occurs when a police officer, by means of physical force or show of authority, in some way restrains the liberty of a citizen, Terry v. Ohio, 392 U.S. 1 (1968), or put another way, when “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.”  United States v. Mendenhall, 446 U.S. 544 (1980).

 

Examples of activities that constitute a seizure of persons include:

·        arrests.

·        physically restraining or ordering a person to stop in order to frisk or question him on the street.

·        taking the person into custody and bringing him to a police station for questioning or fingerprinting.

·        ordering a person to pull his automobile off the highway for questioning or to receive a traffic citation.

·        stopping a car by means of a roadblock.

 

However, brief questioning by itself is unlikely to amount to a seizure.  E.g., Florida v. Bostick, 501 U.S. 429 (1991) (brief questioning during a “bus sweep” not a seizure); Immigration and Naturalization Service v. Delgado, 460 U.S. 210 (1984) (brief questioning about citizenship during a “factory sweep” not a seizure).

 

[C] “Mere Evidence” Rule

 

Under the “mere evidence” rule, only certain categories of evidence could be seized:

(1) a “fruit” of a crime (e.g., money obtained in a robbery);

(2) an instrumentality of a crime (e.g., the gun used to commit a robbery, or the car used in the get-away); or

(3) contraband (e.g., illegal narcotics).

So-called “mere evidence,” items that have only evidentiary value in the apprehension or conviction of a person for an offense, could not be seized.

 

The Supreme Court abolished the mere evidence rule in Warden v. Hayden, 387 U.S. 294 (1967).  Police officers may now seize any evidence that has a connection to the criminal activity under investigation.

 

§ 1.06 Probable Cause

 

[A] Scope of “Probable Cause” Requirement

 

Probable cause is required as the basis for:

(1) arrest and search warrants; and

(2) all arrests (regardless of whether an arrest warrant is required)

 

Not all searches and seizures need be founded on probable cause.  A lesser standard – “reasonable suspicion” – may apply where the intrusion is minor, such as a pat-down for weapons.  Furthermore, where the intrusion on a person's privacy is especially slight and society's interest in conducting the search or seizure is significant, there may be no need for individualized suspicion, such as for society and border checkpoints and certain administrative searches.

 

[B] “Probable Cause” Defined

 

“Probable cause” exists when the facts and circumstances within an officer's personal knowledge, and about which he has reasonably trustworthy information, are sufficient to warrant a “person of reasonable caution” to believe that:

(1) in the case of an arrest, an offense has been committed and the person to be arrested committed it.

(2) in the case of a search, an item described with particularity will be found in the place to be searched.

 

Probable cause is an objective concept. An officer's subjective belief, no matter how sincere, does not in itself constitute probable cause.  However, in determining what a “person of reasonable caution” would believe, a court will take into account the specific experiences and expertise of the officer whose actions are under scrutiny.

 

[C] Basis for “Probable Cause”

 

Probable cause may be founded on:

(1) direct information, i.e., information the officer secured by personal observation; and

(2) hearsay information.

 

No weight may be given to unsupported conclusory statements in probable cause determinations.

 

[1] Direct Information

 

Unless a magistrate has reason to believe that an affiant has committed perjury or recklessly misstated the truth, the magistrate may consider all direct information provided by the affiant. The affiant's information is considered reasonably trustworthy because it is provided under oath.

 

[2] Hearsay (“Informant”) Information

 

A magistrate may consider hearsay for purposes of determining probable cause, as long as the information is reasonably trustworthy.  The informant's identity need not be disclosed to the magistrate unless the magistrate doubts the affiant's credibility regarding the hearsay.

 

The Aguilar-Spinelli test for determining the reliability of informant tips controlled until 1983, when it was replaced by the Gates “totality-of-the circumstances” test.

 

[a] Aguilar-Spinelli Test

 

Hearsay information had to satisfy both of the test's prongs below in order to be deemed sufficiently trustworthy to be included in the probable cause assessment:

(1) the basis-of-knowledge prong; and

(2) the veracity prong, of which there are two alternative spurs:

(a) the “credibility-of-the-informant spur” and

(b) the “reliability-of-the-information spur.”

Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United States, 393 U.S. 410 (1969).

 

The basis-of-knowledge prong is satisfied if the informant personally observed the reported facts. If the information was second-hand, the magistrate would need to ascertain the reliability of that source.  In some circumstances, the basis-of-knowledge prong could be satisfied by “self-verifying detail,” where the information provided by the informant was so rich in detail that it was reasonable to conclude that he had obtained it first hand.

 

To satisfy the veracity prong, evidence was required to demonstrate either that the informant was a credible person (the credibility spur of the veracity prong) or, if that could not be shown, that his information in the specific case was reliable (the reliability spur).

 

If one of the prongs was not satisfied, the hearsay evidence standing alone was deemed insufficiently trustworthy, but its trustworthiness could be resuscitated by at least partial corroboration.

 

[b] “Totality of the Circumstances” Test

 

In Illinois v. Gates, 462 U.S. 213 (1983), the Court abandoned Aguilar and substituted the totality-of-the-circumstances test for probable cause determinations, which requires the magistrate to balance “the relative weights of all the various indicia of reliability (and unreliability) attending an informant's tip.” The factors enunciated in Aguilar - basis-of-knowledge and veracity - remain “highly relevant” in determining the value of an informant's tip but are no longer treated as separate, independent requirements.