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CLASS NO. 2 . 4 TH Amendment. Review. Incorporation Doctrine Retroactivity Gen. Rule: Decisions are not retroactive for habeas corpus cases Exceptions: New substantive law Watershed procedural law. 4 th Amendment.

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class no 2


4TH Amendment

  • Incorporation Doctrine
  • Retroactivity
    • Gen. Rule: Decisions are not retroactive for habeas corpus cases
    • Exceptions:
      • New substantive law
      • Watershed procedural law
4 th amendment
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 …”

who does the right belong to people
Who does the right belong to?“People”
  • U.S. v. Verdugo-Urquidez
    • Not illegal citizen outside of U.S.
    • Must be “part of our national community”
    • Open question:
      • What about illegal citizen searched in U.S.?
applicability of 4 th amend
Applicability of 4th Amend.
  • U.S. citizens in U.S. -- Yes
  • Legal aliens in U.S. – Yes
  • Illegal aliens outside U.S. – No
  • Open questions
    • U.S. citizens outside U.S. -- Probably No
    • Illegal aliens inside U.S. – Perhaps yes
general approach of 4 th amendment
General Approach of 4th Amendment
  • Must be a warrant
  • Or, if covered by warrant exception, must be reasonable
questions to be studied
Questions to be Studied
  • What is probable cause?
  • What actions violate the 4th A.? [State action]
what is a seizure
What is a seizure?
  • “Meaningful interference with individual’s possessory interest.”
    • E.g., Seizing person, home or freezing bank accounts
what is a search
What is a search?
  • Katz v. United States
    • Purpose of 4th Amendment is to protect privacy, not just places
    • Harlan Concurrence
      • Subjective expectation of privacy
      • Reasonable expectation of privacy
applications of katz principle step 1 has there been a search under the 4 th amendment
Applications of Katz Principle[Step 1: Has there been a search under the 4th Amendment?]
  • Open fields
  • Consensual electronic surveillance
  • Financial records
  • Pen registers
  • Carnivore and computers
  • Electronic pagers
  • Trash
  • Public areas
  • Aerial surveillance
  • Manipulation of bags in transit
  • Dog sniffs
  • Chemical testing of drugs
  • Enhanced technology
open fields
Open Fields
  • Oliver v. U.S.
    • No legitimate expectation of privacy in open field
  • Open field vs. curtilage
open field vs curtilage
Open field vs. curtilage
  • How close to home?
  • Within an enclosure surrounding the home?
  • Nature of use?
  • Steps taken to protect area from observation by passer-bys
consensual electronic surveillance
Consensual Electronic Surveillance
  • In person or by telephone
  • Not a search
    • No reasonable expectation of privacy
    • Implications of U.S. v. White?
financial records
Financial Records
  • Calif. Bankers Ass’n v. Shultz (1974)
    • No reasonable expectation of privacy
    • Govt. requesting documents from bank is not a search
pen registers
Pen Registers
  • Device records numbers called by phone
  • Not a search
  • No warrant with probable cause required
  • Only requires application to court
carnivore and computers
Carnivore and Computers
  • Pen register for computers
  • “Pen collections” vs. “full collection”
electronic pagers
Electronic Pagers
  • Person who sent call?
    • Not protected
  • Activation of beeper to search for calls
    • May be protected
  • Cal. v. Greenwood (not a search)
  • Not technically abandonment
public areas
Public Areas
  • Does public have access?
  • When is there a reasonable expectation of privacy?
aerial surveillance
Aerial Surveillance
  • California v. Ciralo (1986)
  • Florida v. Riley (1989)
manipulation of bags in public transit
Manipulation of Bags in Public Transit
  • Bond v. United States
  • What is a squeeze?
dog sniffs
Dog Sniffs
  • U.S. v. Place (1983)
    • Not a search
  • Illinois v. Caballes (cert. granted 2004)
    • Search?
    • Require probable cause?
field testing of drugs
Field Testing of Drugs
  • Field testing (1984)
    • Not a search
  • Urine testing (1989)
    • Is a search

[Why the difference?]

new technology
New Technology
  • Thermal imaging devices
    • Kyllo
    • In general use?
    • Involve the home?
    • Planning for the future
electronic tracking devices
Electronic Tracking Devices
  • Monitored or unmonitored?
  • U.S. v. Knotts (1983) vs. U.S. v. Karo (1984)
step 1 was there a search
Step 1: Was there a search?
  • Actual expectation of privacy?
  • Reasonable expectation of privacy?
step 2 who conducted the search
Step #2: Who conducted the search?
  • Private searches vs. state action
step 3 was there probable cause
Step #3: Was there probable cause?
  • Stay tuned ……………