REASONABLE EXPECTATION OF PRIVACY
trespass (search)
The common law of property influences, but does not determine, the protections
Automobile Stops-Owner's Standing
An automobile owner has standing to seek exclusion of evidence recovered in an unlawful search the owner's automobile because an owner has a reasonable expectation of privacy in it
probable cause
The situation occurring when the police have reason to believe that a person should be arrested. In making the arrest, police are allowed legally to search for and seize incriminating evidence.
Stored Communications Act
The stored communications Act prohibits unauthorized access to, and disclosure of, stored communications such as email.
Personal Residence (search)
A person has the greatest reasonable expectation of privacy in her residence. Any intrusion (physical or otherwise) with respect to a person's residence is very likely to be a search. The person does not need to own the residence to enjoy this protection; she need only reside there
In NY is it necessary to get a grand jury?
A person shall not be held for capital punishment with out a grand jury
other enclosed structures (search)
A person with dominion over enclosed structures such as barns, warehouses, and freestanding garages may have a reasonable expectation of privacy in them. Thus, intrusion upon these structures may constitute a search
Curtilage (search)
Curtilage is the area immediately surrounding a residence that is so closely related to it that a person's expectation of privacy in it is similar to that of a person's residence
What is the fourth amendment checklist?
1. Does D have standing to raise a fourth amendment challenge to the specific time of evidence in question? if no evidence is admissible 2. Is D among the "people" protected by theFourth Amendment? if yes proceed to the next question 3. did the police activity in question implicate a "person, house, paper, or effect? if no fourth amendment does not apply 4. Did the police activity constitute a "search" and/ or seizure"? 5. was the search reasonable or unreasonable?
Curtilage Factors
1. Proximity of area to home 2. Whether area is enclosed with home 3. Nature of uses for area 4. Steps taken to protect area from observation by passersby
prison cells (search)
A lawfully incarcerated prisoner has no reasonable expectation of privacy in the contents of his cell. Thus, the search of a prison cell is not a Fourth Amendment search
What is the subjective prong of an expectation of privacy?
A person asserting a Fourth Amendment violation must demonstrate that the person had an actual, subjective expectation of privacy with respect to the place searched
Workplace Searches
A person has a reasonable expectation of privacy in the person's workplace generally. However, because workplaces are typically more exposed to public view than homes, the expectation is weaker than that which might attach to someone's home or person
Other Places and Items (search)
A person has a reasonable expectation of privacy with respect to the person's closed containers and enclosed structures on real property, such as automobiles, luggage, purses, bags, trunks, safes, barns, or utility sheds. Intrusion upon these items or places may constitute a search
What is a search?
A search arises whenever the government intrudes upon any area in which a subject has a reasonable expectation of privacy that society is prepared to recognize as objectively reasonable. The two-part test for determining when a Fourth Amendment search has occurred has a subjective prong and an objective prong. Both must be satisfied
Trespass to Property to Install Tracking Device (search)
A trespass against a suspect's personal property to install a tracking device on the property is a search, even though the tracking device reveals the suspect's public movement.
Automobile Stops-Passenger's Standing
An automobile stop constitutes a Fourth Amendment seizure of the vehicle and its occupants. A passenger's standing to challenge evidence recovered as a result of an automobile stop depends on whether the stop is constitutional
Residential Overnight Guest
An overnight guest of an owner or lessee of a home has a reasonable expectation of privacy in those areas it is reasonable for an overnight guest to occupy. However, a business guest does not have a similar reasonable expectation of privacy. Courts have not settled the question of what expectation of privacy, if any, an owner's social guest who is not staying overnight has in the property
Open Fields Doctrine
Because an open field is visible to the public, there is generally no reasonable expectation of privacy-even if the open field is privately owned and could be fenced in or otherwise concealed
bank statements (search)
Because there is no reasonable expectation of privacy in information voluntarily disclosed to third parties, bank-statement information cannot be the subject of a Fourth-Amendment search. A bank customer assumes the risk that the bank may voluntarily disclose this information to the police
a person's physical characteristics (search)
Certain visible physical traits that are routinely exposed to the public are not protected under the Fourth Amendment, including a person's general appearance, voice, handwriting, and fingerprints. However, more intimate physical traits that are not customarily exposed to the public may be protected, such as one's genitals, blood, and the content of bodily cavities
electronic surveillance and wiretapping (search)
Electronic surveillance and wiretapping are subject to the constraints of the Fourth Amendment. Title III of Omnibus Crime Control and Safe Streets Act of 1968 prohibits the "interception and disclosure of wire, oral, and electronic communications" except as provided by statute
Reasonable Suspicion
Evidence that justifies an officer in stopping and questioning an individual believed to be involved in criminal activity
Real Property (search)
For Fourth Amendment purposes, a suspect's expectation of privacy differs depending upon the location of the alleged search
What is standing?
Generally, only the victim of an unconstitutional action has standing to challenge it. Similarly, only those whose constitutional rights have been violated standing to invoke the exclusionary rule to prevent unlawfully obtained evidence from being used against them
Dialed Phone Numbers (search)
If a phone company, at the request of the police, installs a pen register to record the numbers dialed from a particular phone, it is not a Fourth Amendment search of the phone. By dialing the numbers, a subject voluntarily conveys that information to the phone company, which may in turn convey to law enforcement without it constituting a search. HOWEVER, because cellular phone data revealing a person's physical location is not information that one would be aware was being conveyed to a third party, law enforcement's acquisition of that information is a Fourth Amendment search
Substitute for Physical Intrusion (search)
If law enforcement uses sense-enhancing technology, especially technology not generally available for public use, to observe intimate details inside the home or other protected place that would otherwise not be ascertainable except by physical intrusion, it constitutes a Fourth Amendment search. In other words, using technology as a proxy for physical intrusion into a protected area is a search
Conversations (search)
If the government overhears a private citizen's conversation by actively intruding upon the person's reasonable expectation of privacy, it is a search. However, if a private citizen voluntarily communicates information to another person, the individual assumes the risk that the other person: (1) Is actively assisting the police in eavesdropping on the conversation, or (2) May disclose the information to the police Thus, if the government eavesdrops on the conversation with the voluntary cooperation of either party, there is likely no search, even if that party is surreptitiously and deceptively acting as a government informant.
Constitutional Stop
If the stop is constitutional, a passenger lacks standing to seek exclusion of evidence recovered from a search of the automobile because the passenger (1) had no rights violated and (2) had no reasonable expectation of privacy in the owner's automobile
Unconstitutional Stop
If the stop is unconstitutional, a passenger has standing to seek exclusion of evidence recovered from a search of the automobile because the passenger was a victim of an illegal seizure
Pen Registers and Trap and Trace devices (search)
In general, the use of pen registers and trap and trace devices without a court order is statutorily prohibited, although the Fourth Amendment is not implicated
When does a person have standing?
In order to have standing to exclude evidence obtained in violation of the Fourth Amendment, a party must demonstrate that the evidence obtained as a result of (1) that party's unconstitutional seizure or (2) a search of a place in which the party had a reasonable expectation privacy. A claim that the party owned the evidence seized in the search, without more, is insufficient to confer standing
garbage (search)
The contents of a garbage bag placed outside for collection cannot be the subject of a Fourth Amendment search because there is no reasonable expectation of privacy in its contents
What is the objective prong of an expectation of privacy?
The person's expectation of privacy with respect to the place searched must be objectively reasonable. That is, a person's subjective expectation must be one that society is prepared to accept as reasonable. The arbiter of what society is prepared to accept as reasonable is, generally, the U.S. Supreme Court.
When is there a reasonable expectation of privacy of one's person?
There is a reasonable expectation of privacy in one's person. Intrusion upon the intimate parts of someone's person or the articles connected to it, such as clothing, purse, and wallets, likely constitutes a search
public vantage point
There is no reasonable expectation of privacy in what someone knowingly exposes to public view. Thus, there is generally no search if law enforcement observes anything that can be seen, or otherwise detected by the senses, from a public vantage point, no matter where thing is observed or located. This applies to observations aided by sensory enhancing instruments such as telescopes and flashlights. It is also not a search for law enforcement to conduct aerial surveillance of private property from public airspace and observe it with the naked eye or camera, provided the aircraft is operating at an altitude that is within public airspace.
Odors Emanating from Property (search)
There is no reasonable expectation of privacy with regard to the trace smell of narcotics in luggage. Law enforcement may use a trained dog to sniff a person's luggage in a public place without constituting a search, in part because the dog sniff yields only a positive or negative result. However, the interior of the luggage is a closed container in which there is a reasonable expectation of privacy
When is there no reasonable expectation of privacy?
Whatever a person knowingly exposes to the public is not protected by the Fourth Amendment. For example, there is no reasonable expectation of privacy in: · Odors emanating from property, such as the smell of narcotics in luggage; · The contents of a garbage bag; · Bank statements; or · A prison cell
What is the exclusionary rule?
a law that prohibits the use of illegally obtained evidence in a criminal trial.
Where/when does a reasonable expectation of privacy?
one's person private conversations in a personal residence, cartilage, and other enclosed structures on real property such as barns or shed closed containers, such as automobiles, luggage, purses, bags, trunks, or safes the workplace generally, through protection in weaker than in a home
Who can execute a search warrant?
only a police officer can execute a search warrant