Class Four: Defining a Search

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Class Four Defining a Search
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The Katz Test

• Has a government actor intruded upon some
  individuals reasonable or legitimate expectation
  of privacy?
• A threshold question if no intrusion, then no
  Fourth Amendment regulation
• But regulation from other sources (e.g.
  Fourteenth Amendment) possible

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Primary Factors to consider

• Location (importance of the home issue of
  multiple entries )
• Assumption of risk - did the individual who
  suffered the possible intrusion knowingly expose
  the area or thing searched to others?

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US v. Oliver (1984)

• Government entry into open fields does not
  amount to a search within the meaning of the
  Fourth Amendment
• (open fields doctrine)
• open field is any unoccupied and undeveloped
  area outside the curtilage of the home

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US v. Dunn (1987)

• Established four factors for defining curtilage
• Proximity to home
• Whether included in enclosures surrounding house
• nature of use of area
• steps taken to protect against observation

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Assumption of risk cases

• Secret informants (US v. White) - identity issue
• Electronic tracking (US v. Karo)
• Aerial surveillance (CA v. Ciraolo)
• Thermal imaging (Kyllo v. US)
• Container searches (CA v. Greenwood Bonds v. US)

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Secondary factors

• Property interests (abandonment question)
• Social custom (properly a standing question)
• Past practices and expectations (work place)
• Legality and intimacy of activities (commercial
  use of homes)
• Vantage point (enhancement issue)
• Reduced expectations of privacy (vehicles)

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A continuum of intrusions

• Surveillance
• Consensual encounter
• Brief detention
• Arrest
• Arrest with non-deadly force
• Arrest with deadly force

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Defining a Seizure

• Of a person when intentional police actions
  would cause a reasonable innocent person to
  believe that s/he was not free to leave or
  otherwise terminate the encounter.
• Of a thing when a government actor causes a
  meaningful interference with a persons
  possessory interest in an object

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What is standing?

• A question about who gets to contest the legality
  of a government search or seizure
• Has the effect of narrowing category of persons
  who can challenge an intrusion
• Best seen as deliberate choice to reduce social
  expense of exclusionary rule

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Standing prior to Rakas

• Ownership or possessory interest in premises
  searched
• Legitimate presence on premises (Jones v. US)
• Ownership or lawful possession of seized property
• automatic standing (possessory crimes)
• target theory

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Standing to contest an intrusion

• The Rakas Test Did a government actor intrude
  upon the defendants reasonable or legitimate
  expectation of privacy?

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Factors in Standing

• Right to exclude public owners, tenants,
  present or not
• Continuing access plus possessory interest (US v.
  Jeffers)
• Legitimate presence plus possessory interest (MN
  v. Olson)
• Ownership plus effective bailment (Rawlings v.
  Kentucky)

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Factors rejected after Rakas

• Legitimately on premises (Rakas)
• Target theory (US v. Payner)
• Automatic standing (US v. Salvucci)
• Ownership of thing seized not enough to contest
  search of area in which no privacy interest
  (Rawlings v. Kentucky)

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Next time

• Reasonableness balancing pp. 169-177
• Probable Cause pp. 177-210