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Flashcards in Introduction - Threshold Question Deck (30):

Incorporation Doctrine

4th 5th and 6th amendment guarantees were intended to cover federal law enforcement officers. The actual constitutional source of the controls on state law enforcement is the Fourteenth Amendment Due Process Clause. It’s the 14th amendment due process clause which applies the 4th, 5th and 6th amendments to the states.


4th Amendment Language

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.


Who are the "people" protected under the 4th, 5th, 6th, and 14th amendments?

Non-citizens residing in the us or a person in the U.S. illegally are "people.".



Your body and the exterior of your body (clothes), and the interior of your body.



Includes motel room, apartment, garage, curtilage, office, store, warehouse.
PO may enter a business during business hours, and may explore areas open to the public - not a search
An unconsented police entry of a house is a search



includes (i) personal items such as letters and diaries and (ii) impersonal business records



Car, luggage, computer, weapon



Police conduct does not have to be both a search and a seizure. A search alone can be unreasonable. A seizure alone can be unreasonable.



Governmental intrusion into an area where a person has a reasonable and justifiable expectation of privacy



The exercise of control by the government over a person or thing. When police arrest someone, when police shoot and kill a suspect in the field. Can have seizure of property or seizure of persons.


Dressler’s 4th Amendment attack sheet

1) Does D have standing (to challenge the search or seizure)?
2) Is D among the “people”?
3) Did police activity implicate a person, house, paper, or effect?
4) Did the police activity constitute a search or a seizure? If it’s not a search, you are done. (Will be tested on Exam, you will need to apply two parts of the Katz test)
5) If there was a search or seizure, was it reasonable?
a) Did police have adequate grounds?
b) If police had adequate grounds, did police obtain a warrant?
c) If police did not have a warrant, did they need one?
6) if the search or seizure was not reasonable, what is the remedy (exclusion)


4th Amendment limits government action only

Search by private person, even if illegal, does not implicate 4th amend. Ex: D in car accident, hospital drew blood and tested it for alcohol. Prosecutor subpoenas for the blood results to charge D with DUI. Not a search because police didn’t take the blood.


Threshold of Fourth Amendment right to be secure against searches

By its terms, Fourth Amendment applies only to official “searches and seizures.” When an individual challenges government conduct on Fourth Amendment grounds, there may be a “threshold” question – whether that conduct constitutes a “search” or a “seizure.”


Katz test (Is it a search)

1) That a person has exhibited an actual (subjective) expectation of privacy. And
2) The expectation is one that society is prepared to recognize as a reasonable (objective).


Factors considered under Katz test

What’s the nature of the property, the extent to which the person has taken measures to keep the information private, the degree of intrusion by the police (how intrusive was the police’s conduct; pen register provides relatively little information to the government, only gives phone number; dog sniffs in public space because dogs can only tell if you have drugs or not, nothing else).
What a person knowingly exposes to the public, even in his own home or office, is not a subject of 4th amend. protection.


Katz v. United States

D convicted in federal court of transmitting bets via telephone. Police placed a wiretap on the outside of the phone booth to capture D’s conversations, which were used as evidence in court. Wiretapping of phone boot was a search and seizure because it violated D’s reasonable expectation of privacy when using the phone booth.


A search occurs when

The government violates a subjective expectation of privacy that society recognizes as reasonable


Trespass doctrine (need to talk about + Katz)

Must actually trespass a home or physical property. Resurrected in Jones.


False Friends

No constitutional expectation of privacy that a person you speak with is not an informant or police officer. The fact that the conversation was recorded makes no difference.


Smith v. Maryland and Pen registers

A woman was robbed and started receiving harassing phone calls from the suspected robber. Police asked phone company to install a pen register to capture calls to the woman. D’s number popped up and police used that as evidence to obtain a search warrant for D’s house.
Court ruled petitioner had no expectation of privacy when dialing phone numbers and if he did, it was not reasonable. Fourth and Fourteenth Amendment safeguards do not apply to numbers dialed from a private phone.


Cell phones

The content of phone communications is a search but the data generated by phone company regarding calls is not a search. Distinction between content of personal communications and the information necessary to get those communications from point A to point B (listening to convo in Katz was search vs pen register that does not reveal content of communication..


California v. Ciraolo (1986)

Man growing marijuana plants in his backyard concealed by 10 foot and 6 foot fences. Police observed plants in an airplane and obtained a warrant to seize the plants. Police don’t have to get a warrant for what is visible to the naked eye.



The land immediately surrounding and associated with the home which has a physical and psychological connection to the home itself. Is considered part of the home itself for Fourth Amendment purposes.


Factors relevant in determining whether land falls within the curtilage or is considered open field

1) the area’s proximity to the home; 2) the existence of an enclosure around the area; 3) the nature of the use to which the area is put; and 4) the precautions taken to exclude others from the area.


Open fields

Land not within the curtilage, even if posted with no trespassing signs.
Actual fields, wooded areas, desert, vacant lots, beaches, open waters
There is no Fourth Amendment protection in open fields because no reasonable expectation of privacy attaches to open fields.


Bond v. United States (2000)

Border patrol agent squeezed felt a passenger’s bag on bus and found meth in it. Court held the physical manipulation of the bag constituted a search under the Fourth Amendment based on the expectation of privacy test.


Court uses several variables when assessing the reasonableness of privacy expectations (for exam)

Voluntary disclosure of information to a third party who conveys it to the government (including false friends), the failure to take precautions to safe-guard one’s privacy and/or knowing public exposure of one’s activities, and the fact that society has no interest in protecting the privacy of the activities jeopardized by the government conduct at issue.


Kylo v. United States (2001)

Police measured D’s house with a thermal imager to see if he had an indoor marijuana growing operation. Court held that when the government uses a sense enhancing 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. Dissent said it was not a search because they only made an inference and were measuring off the wall heat not through the wall heat.


List of things that are not a search

Open fields
False friends (police officer or wired informant)
Garbage outside the curtilage
Luggage in public place exposed to a drug dog
Drug sniff around a car
Flashlight (except in an extreme case)
Photo surveillance, including telescopic lens
Pen register
Visual observation
Most surveillance from the air
Cell phone records (content of communication is protected)
Bank records
Prison inmate’s cell
Beeper in a barrel for a couple days



testing the substance itself is not a search, when the substance is tested to determine a person’s prior use of drugs, that is a test.