Selective Incorporation: Only those fundamental rights that are deeply rooted and essential to our concept of ordered liberty are incorporated to the states by way of the 14th Amendment.
- i.e., Brown v. Mississippi: Coerced confessions are not free and voluntary beyond a reasonable doubt and are not admissible evidence and are violations of a defendant’s 14th Amendment Due Process rights.
- i.e., Duncan v. Louisiana: The 14th Amendment guarantees a right of jury trial in all criminal cases which—were they to be tried in a federal court—would come within the 6th Amendment.
- Mostly Incorporated: Almost all of the 4th, 5th, and 6th Amendments are incorporated to the states (except the grand jury provision of the 5th Amendment).
Themes Throughout This Course: (1) Accuracy v. Fairness, (2) Accuracy v. Limiting Government Intrusion, (3) Fairness v. Efficiency, etc.
Due Process: The Due Process Clause requires that state action, whether through one agency or another, shall be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.
Exclusionary Rule Introduction The 4th Amendment: 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.
- “Houses”: Has been interpreted to include offices, stores, and other businesses and commercial premises.
- Only Affects Government Actors; Burdeau v. McDowell: The Supreme Court ruled that the 4th Amendment only limits governmental action. It does not reach private searches or seizures.
- But Applies When Private Citizens Act According to Police Orders: If an officer requests a landlord to search through her tenant’s belongings or assists in the process, or if Best Buy repair shop employees are paid by the FBI for reporting signs of child pornography on customers’ computers.
The Exclusionary Rule: This rule prevents the government from using evidence obtained in violation of the United States Constitution.
- Weeks v. United States: The purpose of the 4th Amendment is to protect the people from the no-holds-barred general searches that were once conducted in the times of Great Britain and colonial times. The people have a right to personal security, personal liberty, and private property and it cannot be wantonly cast away. It’s admirable what government officials do to bring the guilty to punishment, but they are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land.
- Mapp v. Ohio: The exclusionary rule was designed to protect the guilty, but also the innocent people who deserve privacy.
- Holding: “We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court.”
- Purpose of Exclusionary Rule: “To deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.”
- Reasoning: Since the 4th Amendment’s right to privacy has been declared enforceable against the states through the Due Process Clause of the 14th Amendment, the same sanction of exclusion against the federal government is also enforceable against the states because the exclusionary rule laid out in Weeks is an “essential ingredient of the right to privacy.” To rule otherwise is to grant the right but, in reality, to withhold its privilege and enjoyment.
“Search” Under the 4th Amendment Passing the 4th Amendment Threshold: If a search or a seizure under the 4th Amendment does not occur, no 4th Amendment protections apply.
- Public view: An item cannot be “searched” if it is in plain public view.
Keep in Mind Two Things and Weigh Them: (1) The mode of intrusion, and (2) the invasiveness of the intrusion.
Property Right Theory/Test Boyd v. United States: A search occurs if a government official commits a physical intrusion—a trespass—into a constitutionally protected area in order to find something or to obtain information.
Privacy Theory/Test Katz v. United States: “What a person knowingly exposes to the public, even in his own home or office, is not a subject of 4th Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”
- Reasoning: The 4th Amendment protects people, not places. Even though Katz was in a phone booth making a phone call, he intended for the contents of that call to remain private and not be broadcasted to the world.
- The Test for a Search; Reasonable Expectancy of Privacy Test: (1) First, a person must have exhibited an actual (subjective) expectation of privacy, and (2) second, the expectation must be one that society is prepared to recognize as reasonable. If both questions are answered yes, then the information was private, and a search took place.
- “Reasonable Expectation”: When a reasonable person would not expect her privacy to be seriously at risk; contains a matter of significantly statistical probability.
- “Legitimate/Justifiable Expectation”: A value judgment that someone ought to have the right to privacy in a certain circumstance.
- Factors to Consider: (1) Nature of the place being searched (public vs. private), (2) the steps taken to enhance the privacy (closing doors, locking things, etc.), (3) the nature of the object or activity (electronic surveillance, thermal imaging, etc.), (4) the physical nature of the intrusion (location of the observer), and (5) the extent to which the surveillance is unnecessarily intrusive (how much info is gleaned from it).
The False Friends Doctrine; United States v. White: No one can have an objective expectation of privacy in anything they say to someone else, even if that person turns around and tells it to the police.
- Location Doesn’t Matter: It doesn’t matter if you held the conversation in the privacy of your own home or another private place.
- Holding from United States v. White: “If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant’s constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks.”
- Reasoning: The problem here is not necessarily the privacy expectations of the defendant when relying on his companion or accomplice, but rather what expectations of privacy are “justifiable” and therefore protected in the absence of a warrant. Individuals neither know nor suspect that their accomplices will go to the police, and therefore do not have a reasonable expectancy of privacy over the matter.
- Exception: You assume the risk that one of your friends will invite the police in, but you don’t assume the risk that the government will be listening at all times (i.e., spying on you in parks, stores, etc.).
- Harlan’s balancing Test: “The question must be answered by assessing the nature of a particular practice and the likely extent of its impact on the individuals sense of security balanced against the utility of the conduct as a technique of law enforcement.”
Third-Party Doctrine; Smith v. Maryland: A person has no legitimate expectation of privacy in information he voluntarily turns over to third parties, so Smith couldn’t have had an expectation that society is prepared to recognize as reasonable.
- Holding: Smith “in all probability entertained no actual expectation in the phone numbers he dialed, and that, even if he did, his expectation of privacy was not legitimate.” The installation and use of a pen register, consequently, was not a search, and no warrant was required.
- Reasoning: Although Smith’s conduct may have been calculated to keep the contents of his conversation private, his conduct was not and could not have been calculated preserve the privacy of the number he dialed. It’s doubtful that people entertain any actual expectation of privacy because “all telephone users realize that they must convey phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed.” Also, phone companies keep permanent records of all calls for tracking long distance calls and preventing illegal activity.
- Who is the “Public”: One other person or one other entity.
Dog Sniffs; United States v. Place: The Court held that exposure of Place’s luggage, which was located in a public place, to a trained canine, did not constitute a “search” within the meaning of the 4th Amendment. This particular search was much less intrusive than the typical search, and did not “expose noncontraband items that otherwise would remain hidden from public view.”
- Reasoning Behind the Rule; Illinois v. Caballes: Official conduct that does not compromise any legitimate interest in privacy is not a search subject to the 4th Amendment. Any interest in possession contraband cannot be deemed “legitimate,” and thus, governmental conduct that only reveals the possession of contraband compromises no legitimate privacy interest.
- But See Florida v. Jardines: The government’s use of trained police dogs to investigate the home and the curtilage is a “search” within the meaning of the 4th Amendment.
- Reasoning: The officers gathered the information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner. The home is first among equals under the 4th Amendment. This would be undermined if police could stand in a home’s porch or side garden and trawl for evidence with impunity.
- Dog Sniffs vs. Feeling Luggage: Officers feeling luggage and dog sniffs aren’t the same because squeezing luggage is not a binary technique.
Open Fields vs. Curtilages Open Fields Doctrine; Hester v. United States: Police entry of an open field does not implicate the 4th Amendment.
- Open Field Definition: Any unoccupied or undeveloped area outside of the curtilage of a home. An open field need be neither “open” nor a “field” as those terms are used in common speech.
Curtilages: Oliver v. United States: An individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home.
- The Curtilage Test: Curtilage questions should be resolved with reference to four factors: (1) the proximity of the area claimed to be curtilage to the home, (2) whether the area is included within an enclosure surrounding the home, (3) the nature of the uses to which the area is put, and (4) the steps taken by the resident to protect the area from observation by people passing by.
- Purpose: These factors help decide whether the area in question is so intimately tied to the home itself that it should be placed under the home’s “umbrella” of 4th Amendment Protection.
- Aerial Surveillance of Curtilages; California v. Ciraolo: Police officers flew over defendant’s home at 1,000 foot level, without a warrant, and took pictures of marijuana in his back yard. Any member of the public flying in this airspace who glanced down could have seen everything that the officers observed. The defendant’s expectation that his garden was protected from such observation is unreasonable and is not an expectation that society is prepared to honor.
- Reasoning: The 4th Amendment of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares. Nor does the mere fact that an individual has taken measures to restrict some views of his activities preclude an officer’s observations from a public vantage point where he has a right to be and which renders the activities clearly visible.
- Garbage Cans; California v. Greenwood: A person does not have a reasonable expectation of privacy in garbage left outside the curtilage of a home for trash removal. The person is literally leaving the garbage out to the public, and anyone could possibly come through and snoop throughout it.
Sense-Enhancing Technology; Kyllo v. United States: Obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical “intrusion into a constitutionally protected area” constitutes a search—at least where the technology in question is not in general public use.
- Reasoning: Not ruling this way would leave homeowners at the mercy of advancing technology. There are intimate details within a person’s home that warrants protection.