b. What is a search?
- Before Katz, Boyd v. US (1886): a “search” required a physical intrusion (a trespass) by government agents into a constitutionally protected area in order to find something/obtain information
- Olmstead v. US (1928) (officers used wiretaps to intercept the conversations of Olmstead and others conducted by phone from their homes and offices): court ruled was not a search because conversations are intangible, they are not “persons, house, papers, or effects, so they are unprotected”
- Was not a physical intrusion or trespass
- Searches and seizures had to involve a physical intrusion or trespass to fall under the 4th amendment
c. Protected Areas and Interests: The Katz Test
- Katz v. United States (transmitting wagering info from a telephone booth and agents attached a recording device violates 4th amendment) Katz Test Reasonable Expectation of Privacy:
- Individual must have exhibited an actual (subjective) expectation of privacy
- That expectation is one that society is prepared to recognize as reasonable
- Case-by-case analysis when it is a new government activity; bright line rule if the court has already decided it (per se)
- Did not overrule Olmstead or Boyd
- United States v. White (whether statements made to an informant, which were then recorded by outside parties, amounted to a search under the 4th Amendment): No, police conduct didn’t amount to a search—no expectation of privacy in your personal conversations
- Application of Katz
- The Third-Party Doctrine Smith v. Maryland (whether the installation and use of a pen register constitutes a search within the meaning of the 4th Amendment) Do you have an expectation of privacy in the numbers you dial on your phone?
- No, a person has no legitimate expectation of privacy in information he voluntarily turns over to 3rd parties
- Subjective: everyone knows phone companies are using them and users know they share this information with the phone company
- Objective: 3rd Party Doctrine
- Third-Party Doctrine: a person has no legitimate expectation of privacy in information he voluntarily turns over to a third party (or made public)
- Garbage California v. Greenwood (whether the search of Defendant’s garbage constituted a search under the 4th Amendment): Court applies 3rd Party Doctrine, no reasonable expectation of privacy in your garbage
d. Threshold Questions
- Who is conducting the action: Police? Or private actor?
- What is the government action and is the action a “search”?
- “Search” in the 4th Amendment context is a term if art
- If it’s not considered a “search” for 4th Amendment reasons, the analysis stops and constitutional rights are not afforded
- Key is whether the police action is considered a “search” under the 4th Amendment
- If the action is a search under the 4th Amendment, is the search reasonable?
- Based on probable cause/supported by warrant
- Or under one of the established exceptions to the warrant requirement
e. Katz and New Technology
- Florida v. Riley (whether surveillance of the interior of a partially covered greenhouse in a residential backyard from the vantage point of a helicopter 400 feet above the greenhouse constitutes a ‘search’ under the 4th Amendment) Riley Test: Could a member of the public legally have been there?
- No expectation of privacy in the public airways at this altitude—not a search
- He had a subjective expectation of privacy but not an objective expectation of privacy
- Kyllo v. US (whether the use of a thermal-imaging device aimed at a private home from a public street to detect relative amounts of heat within the home constitute a “search”: Yes, it’s a search)
- Kyllo Rule: When police
- Use a device;
- That is not in general public;
- To explore details of a private home;
- That would be previously unknown without physical intrusion;
- It’s a search
**Final exam always tries to lead you to Kyllo but it won’t apply because it won’t be a home (extremely limited to its facts)- Did not overrule Riley
- Home most protected → curtilage → open field not protected
- US v. Jones (GPS tracking device installed on the undercarriage of a Jeep used by Jones, suspected of trafficking narcotics, while he was parked in a public lot—tracked car’s movements for 28 days)
- Holding: it is a search – government physically occupied private property for the purpose of obtaining information (trespass)
- Scalia doesn’t apply Katz, he cares more about the putting of the tracker on the car and calls that a trespass
- Under Greenwood→not a search because 3rd Party Doctrine (exposing movements on public streets)
- Kyllo doesn’t apply because not a home
- Riley→not a search because members of the public could be there
- Significance: now two ways to get to a search – physical intrusion or Katz standard
- Mosaic Theory of 4th Amendment: a little is not a search, but when you start piecing it together – it becomes a search
- Knotts (beeper in chloroform for 1-2 days): no reasonable expectation of privacy in movements – here, 28 days
- Florida v. Jardines (received tip growing marijuana in home, took a drug dog to porch)
- Curtilage of house enjoys protection as part of the home itself
- No reasonable expectation of privacy in smells emanating from house
- Police can walk on porch but no drug dog, police dog waives license
- This is a search—based on trespass
f. The Future of Katz, 3rd Party Doctrine, and Trespass
- Carpenter v. US (2018) (FBI identified cell phone numbers, obtained cell phone records under Stored Communications Act, got CSI for Carpenter’s phone, cataloging his movements over the next 127 days): This was a search under the 4th Amendment
- How do we get to reasonable expectation of privacy?
- Knotts: no reasonable expectation of privacy in your movements
- Jones: search because physical trespass of vehicle (he never mentions that the 28 days being surveillance was concurrence)
- Court says one day and Jones 28 days (distinguishes Knotts) → at some point becomes a search
- Technically Carpenter is limited to its facts (but not really) probably reasonable expectation over movements for long period of time
- Exception to 3rd party doctrine—balance for when privacy interest outweighs the transfer to 3rd parties