Fourth Amendment - Evidentiary Search

Question 1

Governmental Conduct

Answer 1

The Fourth Amendment generally protects only against governmental conduct
* Publicly paid police
* Private individuals acting at direction of police
* Not privately paid police unless deputized with power to arrest

Question 2

Reasonable Expectation of Privacy

Answer 2

There are two ways in which searches and seizures can implicate an individual’s Fourth Amendment rights:
1. search or seizure by a government agent of a constitutionally protected area in which the individual had a reasonable expectation of privacy; or
2. physical intrusion by the government into a constitutionally protected area to obtain information.

There is a reasonable expectation of privacy in cell phone location information

Question 3

Standing

Answer 3

Need to standing to object to a governmental search = Reasonable expectation of privacy with respect to place searched or item seized

Always have standing when:
* Own the premises searched
* Live on the premises searched
* Invited overnight guests

Own the property seized = Standing if reasonable expectation of privacy in item or area searched

Question 4

Things Held out to the Public (Reasonable Expectation of Privacy)

Answer 4

A person does not have a reasonable expectation of privacy in objects held out to the public.
1. The sound of your voice
2. The style of your handwriting
3. The paint on the outside of your car
4. Account records held by a bank
5. The location of your car on a public street or in a driveway (Note: In 2012, the Supreme Court held that installation of a GPS device on a suspect’s car constitutes a search within the Fourth Amendment.)
6. Anything that can be seen across the open fields
7. Anything that can be seen from flying over public airspace
8. The odors emanating from your luggage or car; and
9. Garbage set out on the curb for collection

Question 5

Searches Conducted Pursuant to a Warrant

Answer 5

Generally, criminal law enforcement officers must have a warrant to conduct a search unless it falls within one of the six exceptions to the warrant requirement.
* There are two core requirements for a facially valid search warrant: probable cause and particularity
* Warrant can’t be fully based on an anonymous tip
* Warrant may be Anticipatory: A warrant can predict when illegal items may be in a suspect’s home or office. The items need not be on the premises at the time the warrant is issued.

Probable Cause:
* A fair probability that contraband or evidence of a crime will be found in the area searched

Particularity:
* Warrant must describe with particularity the place to be searched and items to be seized

Use of Informers:
* An affidavit based on an informer’s tip must meet the “totality of the circumstances” test.
* Under this test, the informant’s reliability and credibility or their basis for knowledge are relevant factors in making this determination.
* Note that the informer’s identity generally need not be revealed.

Question 6

Warrant Execution

Answer 6

• Only police may execute warrant
• No third parties present unless identifying stolen property