Lets Break it Down Protection against UNREASONABLE searches

Let’s Break it Down • Protection against UNREASONABLE searches and seizures • Must have probable cause • Must have a warrant

Has a Search or Seizure taken place? If so, was it reasonable? o To be considered a search/seizure n Must be done by a government employee n Must fit the Court’s definition of a search and seizure.

• Does not protect you from private citizens – Neighbor finds evidence of a crime and turns it over. It could be used against you. – Neighbor could also be charged with burglary and can be sued in civil court.

What is a Search? • Any governmental intrusion into something in which a person has a reasonable expectation of privacy

Where do you have an expectation of privacy? You. Tube - Attorneys argue 911 call not cause for home's search • Mainly your house • Exclusionary Rule You. Tube - Fiat-Supreme Court Upholds No-Knock Police Search Policy

When do you not have an expectation of privacy? l Plain – View Person growing a four-foot high marijuana plan in a bay window cannot claim that a search was conducted if a police officer spots it from the street.

¡ Officers must detect things in plain view from places they have a legal right to be in

n If an officer climbs over an 8 -foot fence surrounding a yard and spots marijuana growing in a back corner, a search HAS taken place q Probable cause and a warrant would apply.

n People normally have a reasonable expectation of privacy on their private property that cannot be seen except by trespassing.

• Court says no reasonable expectation of privacy for open fields away from a residence; even if they are on private property, they are usually accessible to the public – Police walking through fields ARE NOT conducting a search

SEIZURE n Any taking into possession, custody or control – Property may be seized – So may people (arrests) You. Tube - Polk County Detectives Play Wii During Drug Bust

California v Greenwood l Local police suspected Billy Greenwood was dealing drugs from his residence. Because the police did not have enough evidence for a warrant to search his home, they searched the garbage bags Greenwood had left at the curb for pickup. The police uncovered evidence of drug use, which was then used to obtain a warrant to search the house. That search turned up illegal substances, and Greenwood was arrested on felony charges.

What is the question? n Did the warrantless search and seizure of Greenwood's garbage violate the Fourth Amendment's search and seizure guarantee?

¡ The Court argued that there was no reasonable expectation of privacy for trash on public streets "readily accessible to animals, children, scavengers, snoops, and other members of the public. " The Court also noted that the police cannot be expected to ignore criminal activity that can be observed by "any member of the public. "

Katz v U. S. l Acting on a suspicion that Katz was transmitting gambling information over the phone to clients in other states, Federal agents attached an eavesdropping device to the outside of a public phone booth used by Katz. Based on recordings of his end of the conversations, Katz was convicted under an eightcount indictment for the illegal transmission of wagering information from Los Angeles to Boston and Miami. On appeal, Katz challenged his conviction arguing that the recordings could not be used as evidence against him. The Court of Appeals rejected this point, noting the absence of a physical intrusion into the phone booth itself. The Court granted certiorari.

What is the question? n Does the Fourth Amendment protection against unreasonable searches and seizures require the police to obtain a search warrant in order to wiretap a public pay phone?

¡ Yes. The Court ruled that Katz was entitled to Fourth Amendment protection for his conversations

Bond v United States ¡ While checking the immigration status of passengers on a bus in Texas, Border Patrol Agent Cesar Cantu squeezed the soft luggage which passengers had placed in the overhead storage space. When Agent Cantu squeezed a canvas bag above Steven Dewayne Bond, Agent Cantu noticed that it contained a "brick-like" object. After Bond admitted owning the bag and consented to its search, Agent Cantu discovered a "brick" of methamphetamine. Bond was indicted on federal drug charges. Bond moved to suppress the drugs, arguing that the agent conducted an illegal search of his bag, when squeezing it, in alleged violation of the Federal Constitution's Fourth Amendment prohibition against unreasonable searches and seizures. The District Court denied the motion and subsequently found Bond guilty. On appeal, Bond conceded that other passengers had access to his bag, but contended that Agent Cantu manipulated the bag (by squeezing) in a way that other passengers would not, thus constituting an unreasonable search. In affirming the denial of the motion, the Court of Appeals held that Agent Cantu's manipulation of the bag was not a search under the Fourth Amendment.

What is the question? o Does a law enforcement officer's physical manipulation of a bus passenger's carry-on luggage violate the Fourth Amendment's protection against unreasonable searches?

n Yes. In a 7 -2 opinion delivered by Chief Justice William H. Rehnquist, the Court held that "Agent Cantu's physical manipulation of petitioner's carry-on bag violated the Fourth Amendment's proscription against unreasonable searches. " The Court concluded that Bond "possessed a privacy interest in his bag, " and that such an expectation of privacy is reasonable. "Physically invasive inspection is simply more intrusive than purely visual inspection, " Chief Justice Rehnquist wrote for the Court, a bus passenger "does not expect that other passengers or bus employees will, as a matter of course, feel the bag in an exploratory manner. " Justice Stephen G. Breyer, joined by Justice Antonin Scalia, dissented, seeing no "reasonable expectation" that strangers would not manipulate luggage in a bus.

Kyllo v United States n A Department of the Interior agent, suspicious that Danny Kyllo was growing marijuana, used a thermal-imaging device to scan his triplex. The imaging was to be used to determine if the amount of heat emanating from the home was consistent with the high-intensity lamps typically used for indoor marijuana growth. Subsequently, the imaging revealed that relatively hot areas existed, compared to the rest of the home. Based on informants, utility bills, and thermal imaging, a federal magistrate judge issued a warrant to search Kyllo's home. The search unveiled growing marijuana. After Kyllo was indicted on a federal drug charge, he unsuccessfully moved to suppress the evidence seized from his home and then entered a conditional guilty plea. Ultimately affirming, the Court of Appeals held that Kyllo had shown no subjective expectation of privacy because he had made no attempt to conceal the heat escaping from his home, and even if he had, there was no objectively reasonable expectation of privacy because the imager "did not expose any intimate details of Kyllo's life, " only "amorphous 'hot spots' on the roof and exterior wall. "

What is the question? o Does the use of a thermal-imaging device to detect relative amounts of heat emanating from a private home constitute an unconstitutional search in violation of the Fourth Amendment?

l Yes. In a 5 -4 opinion delivered by Justice Antonin Scalia, the Court held that "[w]here, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant. " In dissent, Justice John Paul Stevens argued that the "observations were made with a fairly primitive thermal imager that gathered data exposed on the outside of [Kyllo's] home but did not invade any constitutionally protected interest in privacy, " and were, thus, "information in the public domain. "

Is the search or seizure reasonable? ¡ First the Court must determine if a search or seizure has taken place l l 1. Was there a warrant? 2. If not, does it fit under the exceptions?

What is a warrant?

l Court order signed by a judge

What is probable cause? n n 1. a crime has been or about to be committed AND 2. the person, place, or thing to be searched or seized is related to that crime. q q Usually evidence must be strong enough that an independent cautious person would have a good reason to believe it. A warrant usually must be served within 72 -96 hours

n If police do not obtain a warrant, does one of the court recognized exceptions to the warrant requirement apply? n Though in most cases probable cause is still required.

Why? n n Protect safety of officers and the public To ensure that evidence will not be seized before it can be hidden or destroyed To help apprehend suspects or prevent their escape Courts weigh the need for immediate police action versus the invasion of individual privacy

When are warrants not needed? • Plain View

Motor Vehicles (U. S. v Ross 1982) • Legitimate stopped vehicle and have probable cause to believe that contraband is concealed within it. • It EXCLUDES containers that could not hold what they are looking for

¡ ¡ Probable cause to believe undocumented workers are being transported in the van might not justify a warrantless search of a suitcase Search warrant not needed because vehicle could leave.

The Stop and Frisk Exception – Terry v Ohio l No warrant, no probable cause l Requires reasonable suspicion – evidence that would make an experienced police officer suspicious l Looking for weapons

n Anonymous tips very unreliable n Given all the circumstances courts make those decisions

Do people have to identify themselves? • “Stop and Identify” • If detained, typically need to identify themselves, but don’t have to answer any questions

Searches Incident to a Lawful Arrest n -No warrant needed n -within area of the arrested person’s immediate control

OK Search • Abigail is arrested outside of Barnes and Noble for shoplifting. Police search the bag, without a warrant.

Not OK Search n Abigail goes to her house a block away and police arrest her there and conduct a search of her house.

Consent n If a person “knowingly and voluntarily” consents – Can’t use deception or fraud

Unreasonable Consent Search l Sally and Sue are roommates. They share a two-bedroom apartment. Police ask Sally to search Sue’s room. Sally says yes. l Sue did not consent. They can search common areas, but not Sue’s room

Hot Pursuit u Police in hot pursuit of a criminal do not need a warrant to enter a place they saw a suspect go.

Reasonable Hot Pursuit Searches n Police see Josie knock down an old lady, hit her with a lead pipe, and take her purse. They chase Josie into a building about a mile away and see her run into Apartment #10 B. When she refuses to answer, the officers kick down the door

Unreasonable Hot Pursuit Searches n Josie – a known robber of the elderly. Police trail her for a couple days. Police knock on the door, and Josie won’t let them in. Police kick down the door. No hot pursuit.

Emergency Situation • Police don’t need a warrant to conduct a search or seizure in emergency situations.

Airline Searches

Border Searches

Custom Searches

School Search and Seizures

TLO v New Jersey Student was caught smoking in the bathroom; her purse was searched; marijuana was found ¡ This court case decided how the 4 th Amendment applied to students in school ¡

l l l Students do have an expectation of privacy Students bring legitimate personal items – keys, money, pictures, etc. There is some level of expectation of privacy.

Court sides with the school n Schools need to maintain discipline n Courts balance expectation of privacy against school’s need for discipline n School officials do not need a warrant n Do not need probable cause, the search needs to be reasonable

Dissenters Schools should have probable cause ¡ They didn’t have probable cause beyond finding the cigarettes ¡

Vernonia v Acton 1995 n n Vernonia noticed an increase in drug use Student athletes were heavily involved Set up a program of random drug testing of all student athletes To participate students have to sign a permission slip q q Urine samples in the presence of an adult monitor of the same sex Samples taken from everyone at the beginning and then randomly throughout the season

¡ James Acton refused to sign the permission slip

Is there an expectation of privacy? What are Acton’s arguments? n What arguments would the school give? n How do you think the Court ruled? n

¡ Court sided with Vernonia l l l 1. School district serves as a guardian and tutor of children entrusted to its care 2. Students possess a lower expectation of privacy than adults. Athletes even less because it is voluntary 3. State’s compelling interest in the drug testing program ¡ To stop the epidemic ¡ Likelihood of physical harm to athletes

Dissenters No suspicion n Blanket searches are a great harm to liberty n Blanket searches should only be allowed in special situations n Urine searches are intrusive n

Board of Education v Earls (2002) Almost like Vernonia n This policy included all extra curricular activities including academic teams n 5 -4 decision in favor of Board of Ed n Court must balance intrusion against governmental interest in drug testing n

n Intrusion is limited n Governmental interest in drug testing is strong n Why wait for majority of your kids to begin using drugs

Dissenters ¡ No dangers like in Vernonia exist

Do you agree?

• You. Tube - Strip Search of 13 Year Old Girl in School