Reasonable Expectation Test:
Katz (1967): Katz overheard by recording devices while making a phone call in a private telephone booth. Majority opinion designates extent of 4th’s protections not to be a question of a “constitutionally protected area,” but rather a protection of individual privacy against certain kinds of governmental intrusion and sometimes the right extends beyond concerns of privacy at all. What is sought to be private may well be protected; phone booth has this quality in this case. No longer a pure question of property interests.
· Agents did not seek warrant before listening devices installed, regardless of their degree of certainly of illegal activity
· Neutral predetermination by magistrate is important, also in considering what the scope of a search should be
· Harlan’s Dissent: Often regarded to be the prevailing decision in Katz: still views as a constitutionally protected area, like a home but not an open field. Electronic, as well as physical intrusion, may constitute a violation of 4th Amendment rights, presumptively unreasonable in the absence of a warrant.
· Often read to have set forth two prong test: 1) government conduct must offend the citizen’s subjective manifestation of a privacy interest and 2) the privacy interest invaded must be one that society is prepared to accept as reasonable or legitimate
· No legitimate interest in illegal activity; odd in considering why Katz was even protected then
· Courts have found three legitimate interests that can be impaired by government intrusion (43):
o Interest in being free from physical disruption and inconvenience
o Certain information, even though not indicative of criminal activity, may be personal or embarrassing
o Unreasonable seizures of property, as well as searches
· A seizure may occur without a search and a search may occur without a seizure. TX v. Brown (43)
· Manifestations of privacy:
o Abandonment generally does not count (45)
o Open Fields Rule: Hester v. US: no expectation of privacy in an open field; justification also includes difficulty in applying case by case (46-47)
§ Curtilage is protected
o US v. Dunn: Curtilage NOT found with barn located approximately fifty yards from fence surrounding a residence on almost two hundred acres of land; not search
§ Curtilage factors:
· Proximity of area search to home
· Whether area included in enclosure surrounding the home
· Nature of the uses to which the area is put
· Steps taken by resident to defer observations by passersby
· Even if property is inside of curtilage, inspection of the property from outside of curtilage does not constitute a search (48)
· After Katz, USSC has held that if part of a person’s life is open to public scrutiny, then that person has no legitimate interest in providing same access to police
· US v. White (1971): radio receiver hears conversation between two people that would have happened anyway, no legitimate interest (49)
o Courts have applied White analysis to video surveillance as well (Gonzalez: hidden camera captures actions of hospital employee receiving drug delivery)
· Financial records: CA Bankers Assn v. Shultz (1974): banks are parties to transactions of depositors and therefore there is no legitimate expectation that government cant have same access
o Miller: 4th not implicated by subpoena to bank to obtain depositor’s records (1976)
· Pen registers: devices in phone company offices are not legitimate expectation because person using phone voluntarily shares numerical information with phone company: Smith v. MD (51)
· Carnivore: captures computer user’s information in full mode with content of messages; partial collection mode with IP addresses, etc. only – no case law to date (52)
· No expectation of privacy in recording of numbers received on an electronic pager
· Trash put out by homeowner in front yard is not private under CA v. Greenwood (1988); Hedrick in 1991 says the same for trash in rear of property but in place where public could have reached into trash can (54)
· Peering through crack in public bathroom stall is OK; no expectation of privacy
· Aerial surveillance: looking overhead at growing marijuana is okay with no expectation, even in instance where no PC or warrant in situation. CA v. Ciraolo, 1986.
· Ordinary overflights: USSC 1989: FL v. Riley: surveillance of backyard from helicopter hovering at 400 feet is OK; public could gain the same access
· Bond v. US (2000): Rehnquist: Police may not manipulate bags of a passenger while in transit. Officer had squeezed canvas bag and felt what seemed to be a brick, similar to those used for drugs – sure enough, it was drugs. Luggage is clearly an “effect” that is protected by the 4th. Officer’s conduct far exceeded the casual conduct that bag could or would have experienced from other passengers on the bus. Passenger may expect that a bag will be handled in overhead bin, but does not expect the bag to be manipulated in an exploratory manner.
· Canine Sniffs: US v. Place (1983): Canine sniff of closed luggage by dog is not a search: sniff by a well-trained narcotics detection dog does not require opening the luggage. It does not expose noncontraband items that would remain hidden from public view, as does, for example an officer’s rummaging through a suitcase.
o Courts note that dogs may act incorrectly or rip apart packages to expose contraband
· Canine Sniff of Car During Routine Traffic Stop: IL v. Caballes (2005): no 4th amendment violation in using dog during traffic stop; reasonable suspicion would only be required if Caballes was subject to search or a seizure beyond that permitted by the traffic stop itself. Returns to analysis of no privacy in holding contraband; as long as stop was legal in first place, its fine.
· Skinner v. Railway Labor Exec. Board holds that drug testing of urine could also uncover other medical or personal information and therefore is intrusive and embarrassing; this is a search (1989) (65)
· Kyllo v. US: Scalia: 2001: Sense-enhancing technology penetrating the walls of a home – in ways that glean information not otherwise available except through a physical intrusion – is not permissible and is a search. Home is held as highest pinnacle of protected space; if technology is not in general public use then the legitimate expectation of privacy stands. Fact that heat sensing was little or no quantity of information is irrelevant; intimate details because they are the details of the home.
· Tracking Public Movement: US v. Knotts: using beeper to track not a 4th violation; constitutional issues arise later on with the actual search. Activity within place where beeper ends up is not actually tracked so this isn’t a search either. (1983) (73) – progeny through Karo, etc. hold that use of beepers are not searches.
· Search or Seizure by private citizen not covered within scope of 4th amendment protection
· Mixed public and private activity may fall under 4th protections (airline employee acts as government employee when expected award from DEA and was encouraged by them)
· Government encouragement of search or seizure may be enough to trigger 4th protection
· Walter v. US, 1980: limits of initial search: possession vs. examination: FBI agent who received misdelivered package had items in possession but going beyond point to view films was not allowed and an illegal search.
· Jacobsen v. US, USSC 1984: Outside actors opening a package and already seeing contraband allows for government to do the same. Warrantless seizure of bags okay on grounds probably included contraband, enabled agent to learn nothing that was not learned in previous search, invited to do so by FedEx employees and it remained unsealed. – Does not extend to entering homes because some private actor has done the same.
· Controlled Deliveries: IL v. Andreas (1983): okay if originally uncovered legally; reopening later is not a search if no legitimate expectation of privacy exists at that time.
· 4th does not control evidence obtained by foreign officials (Behety)
· Prisoners do not have expectation of privacy on person or in cell (Hudson v. Palmer)
· Students in public high schools do not shed expectation of privacy when entering school walls (TLO)