1. Tony Gallagher
Federal Defender 1

2. Search & Seizure: Past, Present and Future
A quick “tour” of the basics
Practical realities today
Where are we going?

3. My other life --

4. Name that Case
The “hint” will be a football team fight song from the state named in the cite of the case

5. Constitutional Foundation
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.

6. The Basics The Fourth Amendment applies when
1) the intrusion is the product of government action
Private citizens are exempt
Security contractors are not covered either

7. The Basics The Fourth Amendment applies when
2) the intrusion breaches society’s reasonable expectation of privacy
A person who uses a public restroom expects not to be spied upon (the person has a subjective expectation of privacy) and most people -- including judges and juries -- would consider that expectation to be reasonable (there is an objective expectation of privacy as well). Therefore, the installation of a hidden video camera by the police in a public restroom will be considered a "search" and would be subject to the Fourth Amendment's requirement of reasonableness.

8. The Basics The Fourth Amendment applies when
and 3) the intrusion breaches the legitimate expectations of privacy of the individual in question.
On the other hand, when the police find a weapon on the front seat of a car, it is not considered a search under the Fourth Amendment because it is very unlikely that the person would think that the front seat of the car is a private place (a subjective expectation of privacy is unlikely), and even if the person did, society is not willing to extend the protections of privacy to that location, so there is no objective expectation of privacy.

9. Searches not protected by the Fourth Amendment
Abandoned property
Foreign Searches
BUT, no gross or brutal maltreatment
Private Search
No Government action

10. California vs. Greenwood
Facts: Billy Greenwood was a suspected drug dealer, but police did not have enough evidence to obtain a search warrant. Instead, police searched his trash.
Question: Did a warrantless search of Greenwoods garbage violate the 4th Amendment?
Oscar the Grouch is a furry, green Grouch who lives in a trash can on Sesame Street; the ‘fight song’ hint is the fight song from the University of Southern California Trojans
Ruling: No, once trash is placed on a public curb there is no longer a reasonable expectation of privacy!

11. WARRANT REQUIREMENTS search the place described
search for specific items listed
search particular location
issued by a neutral judge
all supported by probable cause

12. What is Probable Cause? A reasonable belief that
a specific person has committed a crime, and
that a search in a specific location will produce evidence of a specific crime.
As an example:
An increase of 300% in power consumption within a building is not enough alone to establish probable cause to believe that a drug growing operation is underway inside.
However, a sudden power increase coupled with other suspicious facts like an anonymous phone call claiming that people at a certain place are growing drugs is enough for probable cause and a search warrant.

13. Probable Cause Continuum
No Information
Hunch
Reasonable Suspicion
Reasonable Grounds
Probable Cause
Preponderance of the Evidence
Beyond a Reasonable Doubt
No Information means that the officer has no knowledge about the crime.
Hunch means that the officer has a gut feeling that something is not right, but the officer cannot point to any specific facts; it is something like intuition.
Suspicion means that the officer knows a minor fact, or has some larger fact that came from an unknown or unreliable source that suggests that evidence may be located somewhere.
Reasonable Grounds means that the officer knows several minor facts or a larger fact, or a large fact from a source of unknown reliability that points to a particular person engaging in some criminal activity.
Probable Cause a reasonable belief, known personally or through reliable sources, that a person has committed a crime. Essentially means that an officer has enough evidence to lead a reasonable person to believe that the items searched for are connected with criminal activity and will be found in the place to be searched.
Preponderance of the Evidence is the amount of evidence needed to be successful when suing in a civil case. It means that evidence must be "more likely than not," more than 50% in order to win.
Beyond a Reasonable Doubt is the highest amount of proof and is required to convict a person of a criminal charge.

14. Good Faith United States v. Leon
A facially invalid warrant can be “saved” and the evidence derived from it admissible if the officers executing the warrant reasonably or in good faith relied on the warrant
Good faith reliance does NOT apply if police were reckless or if the warrant is so lacking in probable cause that no officer could reasonably rely on it

15. Exceptions to the Warrant Requirement

16. Warrantless Search & Seizure
1.  Search incident to a lawful arrest
2.  Stop and frisk
3.  Consent
4.  Plain view
5.  Hot pursuit
6.  Vehicles
7. Emergencies
8. Border and Airport

17. Search Incident To Arrest
Probable Cause (PC) is required
Expectation of Privacy is diminished
Arrest of person
Arrest in a car

18. Terry v. Ohio: Stop and Frisk
Facts: Terry and two other men were observed by a plain clothes policeman in what the officer described as “casing a job.” The officer stopped and frisked the men and found weapons on two of the Subjects.
Question: Was the search and seizure of Terry a violation of the 4th Amendment?

19. Stop and Frisk
Police who reasonably think that a person is behaving suspiciously and is likely to be armed may stop and frisk the suspect for weapons. Search may only be for weapons.

20. Plain View The Horton test requires the officer to be:
Horton v. California, 496 U.S. 128 (1990)
The Horton test requires the officer to be:
lawfully present at the place where the evidence can be plainly viewed,

21. Plain View
the officer must have a lawful right of access to the object, and
the incriminating character of the object must be “immediately apparent”

22. Plain View
“Plain hearing” and “plain smell”, too.

23. Open Fields and Open Air
California v. Ciraolo (1986):
In 1982 police in California were given an anonymous tip of a person growing pot in his backyard, unable to view the drug on foot they took a plane.
The Supreme Court ruled that the immediate area around a home is protected against some intrusions, but this search was conducted from a public vantage point where activities are visible – the air.

24. Vehicle Exception From Incident to Arrest to PC… PC required
Scope = whole car
Vehicle must be operable

25. Vehicle Checkpoint Individualized suspicion not required
Must not be discriminatory
Lawful for regulatory situations
Examples: Inspection, Registration, License
Unlawful for detecting criminal activity
Example: Drug checkpoints
Lawful for information gathering
Example: Homicide, Burglaries, Hit-and-Run

26. Pretextual Stop Officer’s motivation for stop irrelevant
Objectively lawful justification is the test for legality of stop.
Not “would” you stop it, but “could” you?
Example: Officer’s hunch of drug involvement does not invalidate traffic stop that is otherwise lawful, e.g., inoperative tail light.
Whren v. United States, 517 U.S. 806 (1996), and Arkansas v. Sullivan, 532 U.S. 769 (2001), essentially did away with “pretextual” arguments. There still should be some room under pretext precedent for challenging the timing of the execution of a warrant in order to search a location otherwise protected by the Fourth Amendment. See United States v. Lefkowitz, 285 U.S. 452,467 (1932); Williams v. United States, 418 F.2d 159, 161 (9thCir. 1969), aff’d, 401 U.S. 646 (1971); Taglavore v. United States, 291 F.2d 262, 265 (9th Cir. 1961). The pretextual use of an administrative warrant to arrest an individual in the home may still violate the Fourth Amendment.

27. Duration of Stop
Duration must be reasonable for the original purpose of the stop.
Questions about matters unrelated to original purpose of stop OK if the stop is not unnecessarily prolonged.
Dog sniff OK even if unrelated to original purpose of stop so long as stop is not prolonged.

28. Original Purpose of Stop
Unlawful to prolong the stop beyond the purpose of the stop, unless:
(1) There is reasonable suspicion (or PC) of another violation of law, or
(2) The seizure is terminated and transitions to a consensual encounter.

29. Consent Consent must be voluntary = No coercion Authority to consent
Scope of search
Withdrawal of consent

30. A Note on ‘Consent’ Searches
In the context of vehicle stops, where the individual is at the side of the road and confronted by a uniformed officer seeking to search his or her vehicle, it is not a stretch of the imagination to assume the individual feels compelled to consent. Where there is little or no justification for a search, requesting consent is especially likely to cause concern because it has all the appearances of a fishing expedition or grasping at straws.

31. Consent
When a person voluntarily agrees, the police may conduct a search without a warrant or probable cause.
Consent can transform an otherwise illegal search into a legal one.

32. Florida v. Bostick
Facts: Florida officers regularly boarded buses during stops and asked passengers for permission to search their belongings.

33. Florida v. Bostick
Terrance Bostick agreed to a search and was arrested for having cocaine.
Is the acquisition of evidence during random bus searches with passenger consent illegal?
No -- the question isn’t if someone was free to leave, but whether or not they felt they can decline the search

34. Border/Airport Searches
Warrantless searches of persons and property when entering the country are legal, even without any individualized or reasonable suspicion.
Example: A police officer enters a house after hearing screams inside. While inside, he or she realizes that the screams were a television show, but does discover evidence of a DVD piracy ring. This evidence is probably admissible, if a judge decides that it was reasonable to believe that the screams were real.

35. Hot Pursuit
Police in hot pursuit of a suspect are not required to get a search warrant before entering a building that they have seen the suspect enter,
Evidence found during hot pursuit of a suspected felon is admissible, even against people totally unrelated to the pursuit.

36. Exigent Circumstances
PC required
Delay will cause loss / escape / harm
Hot pursuit
Life in danger
Destruction of evidence
Immediate action required

37. Hudson v. Michigan
Facts: Booker Hudson’s house was searched, but the police did not follow the Knock and Announce rule which requires police to announce and wait seconds before entering.
Does the general rule excluding evidence obtained in violation of the 4th Amendment apply to knock and announce rule?
Supreme Court Decision -- No: Having police announce their presence and wait poses a danger to the officer nor did it have anything to do with the seizure of the evidence: “Knock and announce” was implemented to prevent violence, property damage and impositions on privacy not to prevent police from searching a residence

38. Emergency Situations
In certain life threatening emergencies, the police don’t have time to get a warrant.
The evidence they find in the course of dealing with the emergency is admissible.
Example: A police officer enters a house after hearing screams inside. While inside, he or she realizes that the screams were a television show, but does discover evidence of a DVD piracy ring. This evidence is probably admissible, if a judge decides that it was reasonable to believe that the screams were real.

39. Inventory Purpose is NOT for criminal investigations.
Purpose = administrative
Requirements:
Lawful impound
Standard inventory
Inventory conducted in accord with Standard Operating Procedure (SOP)
Inventories should be tied to SOPs
Routine is the key

40. Other Exceptions to 4th Amendment Protections
Independent source rule
Inevitable discovery
Parolees, probationers and supervisees

41. Are there any Fourth Amendment protections left?
Exclusionary Rule
Fruit of the Poisonous tree
But beware – suppressed evidence may still hurt your client

42. Search and Seizure in the 21st Century
Reasonable expectations,
government intrusions, and
personal security
in the information age

43. Just a few years ago all we used to worry about were these . . .

44. From fraud to sexual exploitation, gun sales to porn, drug trafficking to terrorism the Government wants what’s in here . . .

46. What are the options?

47. The future presents new issues and problems for the Criminal Defense Lawyer
The Cloud
Social Media

48. The Fourth Amendment
“ [T]he guaranties contained in [the Fourth Amendment are not] limited to houses and papers. Their chief aim and purpose was not the protection of property, but the protection of the individual in his liberty and in the privacies of life.”
Rudkin, CJ, dissenting in Olmstead v. United States, 19 F.2d 842 (9th Cir. 1927).

49. Griswold vs. Connecticut
The Supreme Court ruled that the Constitution does not explicitly protect the right to privacy.
The Bill of rights creates “penumbras” or zones that establish the right to privacy
Privacy right is evidenced in Griswold v. Connecticut, 381 U.S. 479, 485 (1965) (striking down a Connecticut law prohibiting the use of contraceptives because enforcement of the law would require queries into intimate aspects of the marital relationship).

50. Founding Fathers had a unique awareness and understanding of the threat of liberty and privacy rights of U.S. Citizens

51. That expectation of privacy was officially recognized in the criminal law context in 1967
Katz vs. United States -

52. “[T]he Fourth Amendment protects people, not places
“[T]he Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in is own home or office, is not a subject of Fourth Amendment protections
But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Katz v. United States, 389 U.S. 347, 351 (1967).

53. Application to email traffic
The Fourth Amendment should be interpreted as extending to a citizen's the protections that extend to other private expressions “the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others.”
Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 199 (1890).

54. Application to email traffic
Society reasonably expects that will be afforded such protection.
Absent unique circumstances, law enforcement should not be permitted to use sophisticated technological means to interfere with the people's expectation of privacy in their or accounts without obtaining a warrant, supported by a neutral magistrate's finding of probable cause.

55. Data Mining
Any use of computing technology to examine large amounts of data to reveal relationships, classifications, or patterns.

56. Data Mining
In most discussions of the legal and ethical implications of data mining, privacy is the central concern.
Related to privacy is the right of “confidentiality,” which concerns how personal information is disseminated, and “anonymity,” a form of privacy that “occurs when the individual is in public places or performing public acts but still seeks, and finds, freedom from identification and surveillance.

57. Data Mining
McIntyre v. Ohio Elections Commission, 514 U.S. 334, 343 (1995), validated the right to anonymity in certain circumstances by recognizing that people should be able to remain anonymous while exercising certain constitutionally protected rights.

58. The Government Focus Today
A large portion of government searches and seizures today involve the seizure and search of electronic media and information.
The manner in which such searches and seizures of electronic media and information are conducted can become critically important afterwards if criminal proceedings are instituted.

59. The Government Focus Today
The U.S. Department of Justice's Office of Justice Programs recently published Electronic Crime Scene Investigation: An On-the-Scene Reference for First Responders by the National Institute of Justice, and may be viewed in its entirety on OJP's website.

60. The Government Focus Today
The publication is a guide for first responders responding to electronic crime scenes, and is a companion to an earlier publication, Electronic Crime Scene Investigation: A Guide for First Responders, Second Edition.

61. What you should know!
The guide instructs investigators, among other things, to:
Document, photograph and secure digital evidence.
Not to alter any electronic device.
Exclude unauthorized persons from the area where the evidence is being collected.

62. What you should know!
To interview witnesses regarding the use and users of any computers or devices.
To document various facts relating to the electronic devices, as well as to video, photograph or sketch the scene.
Not to alter devices or attempt to explore them on the scene, or even to press a key or click a mouse.

63. The OJP publication may prove of great assistance to defense practitioners in attempting to suppress the fruits of searches and seizures of electronic information and media.
Counsel should carefully review the facts of any search and seizure of such evidence and interview all witnesses to any search and seizure to ascertain whether these procedures have been followed.

64. Where’s the Supreme Court
When the Court faces the question of whether any form of personal Internet data is protected by the Fourth Amendment, the answer it gives may determine the course of informational privacy for decades, just as Olmstead v. United States and Katz v. United States did in the previous century.

65. Where’s the Supreme Court
Yet it is uncertain, at best, that the Court will answer correctly--it has certainly failed to adapt the Fourth Amendment to new technologies before.
See e.g., Hudson v. Palmer, U.S. 517, 525 n (1984).

66. Kyllo v. United States
Investigatory devices used by police, such as a telescope or GPS unit used to track whereabouts of a container on commercial property or a vehicle.
BUT trackers and thermal imaging used to track activity in one's home violates the expectation of privacy.

67. City of Ontario v. Quon Seizure of text messages may be a search
But public employees may have a diminished privacy expectation in mobile devices issued by their employers.

68. Think Outside the Box
United States v. Demarrias

69. You must advance the cause
The Supreme Court's interpretation of the Fourth Amendment has left Internet surveillance law to develop in the lower courts
In addition to traditional Fourth Amendment violations, challenge the search based on the Wiretap Act, mirroring the current law of telephone surveillance or other electronic bases

71. Questions? 71