SEARCH AND SEIZURE OF PROPERTY Chapter 10

The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail, its roof may shake, the wind may blow through it, the storm may enter, the rain may enter, but the King of England cannot enter! All his forces dare not cross the threshold of the ruined tenement. William Pitt (1763)

Fourth Amendment Beyond the seizure of persons, the Fourth Amendment also applies to searches and seizures of places and things, but not all places and things: The U.S. Supreme Court has held that the Fourth Amendment search and seizure provision applies only to governmental conduct that interferes with an individual’s reasonable expectation of privacy.

What Is A Search? A governmental official’s intrusion upon a defendant’s subjective expectation of privacy; and the expectation is one that society is prepared to recognize as reasonable.

What Is A “Reasonable Expectation Of Privacy?” A reasonable person’s legitimate expectation that certain property or places will not be involuntarily viewed or inspected by third parties. Such an expectation is determined based on the totality of the circumstances.

Katz v. United States (1967) The leading case on reasonable expectation of privacy. Katz involved a defendant whose phone conversation was seized by government authorities by means of an electronic listening device placed on the outside of a telephone booth. The Supreme Court ruled that the Fourth Amendment protected the defendant from the warrantless eavesdropping because he “justifiably relied” upon the privacy of the telephone booth.

Katz Test Derived from Justice Harlan’s concurring opinion in Katz v. United States. Recognizes that a Fourth Amendment search does not occur—even when the explicitly protected location of a house is concerned–unless “the individual manifested a subjective expectation of privacy in the object of the challenged search,” and “society [is] willing to recognize that expectation as reasonable.” Under the Katz test, the Supreme Court has found that persons generally have a reasonable expectation of privacy in their own home and body.

Weigh in! Police suspect Defendant of growing marijuana in his home. May police, without a warrant, use thermal imaging equipment to scan the house to determine if the amount of heat emanating from it is consistent with the high-intensity lamps typically used for indoor marijuana growth? In other words, does such activity violate the Fourth Amendment? A. Yes B. No

Kyllo v. United States The scan conducted by the police showed that the defendant’s garage roof and a side wall were relatively hot compared to the rest of his home and substantially warmer than the neighboring units. Based in part on the thermal imaging, a federal magistrate judge issued a warrant to search Kyllo’s home, where the agents found marijuana growing.

Kyllo v. United States (cont.) The Court rejected this use of thermal imaging, stating in part, “Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”

Representative Issues A Search Not A Search Use of Thermal Imaging Devices not in general public use. Physical manipulation of passenger luggage. Permitting news media to be present during he search of a residence. Open Fields Garbage Receptacles outside the curtilage (immediate, enclosed area surrounding a house or dwelling) of the home. Airplane and helicopter flyovers.

Search Warrants A search warrant is essentially written authorization from a court to perform a search. If law enforcement properly executes a valid search warrant, generally the search will be deemed reasonable and therefore constitutional under the Fourth Amendment. But if the search is invalid, or if it is executed in an unreasonable manner, the search may be declared unconstitutional.

Probable Cause Requirement The Supreme Court has held that “. . .except in certain carefully defined classes of cases, a search of private property without proper consent is ‘unreasonable’ unless it has been authorized by a valid search warrant.” Simply put, unless an officer gets permission to enter, is acting in an exigent situation, or gets a search warrant, it is illegal for him/her to enter someone’s home or apartment.

Probable Cause To Search A reasonable belief that seizable items will be found in a particular place at the time that the search is to be conducted. Police only need probable cause to believe that seizable items are located on the premises. A flexible standard; balances the degree of intrusion upon individual privacy against the government purpose to be served by the intrusion.

Search Warrant Documents Application Prepared by a law enforcement officer. Usually a standard form that permits the officer to identify the places to be searched and the basis for requesting the warrant. Affidavit Attached to the search warrant application. Officer outlines the factual details that provide the court with the probable cause necessary to issue the warrant.

Search Warrant Documents (cont.) Issued by the judge or magistrate; authorizes the authorities to conduct a search. Return on the Warrant Completed by the officer performing the search. An accounting of when the search was conducted and what evidence was seized. Filed with the trial court that issued the warrant.

Validity of Search Warrant Assessed based on four primary factors: (1) Whether the warrant was issued by a neutral and detached judicial authority; (2) Whether the warrant was based on a finding of probable cause; (3) Whether the warrant provides sufficiently detailed or particular instructions to the police officer about the person or places to be searched and the items to be seized; and (4) Whether the warrant was properly executed.

Particularity Requirement Warrant must “particularly describe” both the items to be seized AND the place to be searched. Example: “Stolen goods” or “weapons used in the robbery” are insufficient.

Executing Search Warrants Manner in which search is carried out may be unconstitutional. Courts will consider: The time at which the search is conducted. Statutory time limitations. The manner of entering the defendant’s premises. “Knock and announce” required, unless exceptions apply or “no-knock” warrant issued. The scope of the search conducted by the police officers. Police may look only in those portions of the premises where the described seizable items could be located.

Good Faith Exception Where a search warrant is deemed invalid, the fruits of a resulting search may not result in the suppression of evidence if the executing officer relied in good faith on the apparent validity of the warrant.

Warrantless Searches Terry stop and frisk Search Incident to Arrest If police are conducting a valid arrest of a person, they may conduct a warrantless search of the arrestee. Included: suspect’s “wingspan;” protective sweep if other criminal suspects believed to be in the vicinity; passenger seat of suspect’s automobile.

Warrantless Searches (cont.) Automobile Searches Lesser expectation of privacy. Police generally may search a vehicle without a warrant as long as they have probable cause to believe that the vehicle or a part thereof contains evidence of criminality. May search areas within vehicles and any containers therein if they have probable cause to believe that these areas/containers hold contraband or instruments of a crime.

Warrantless Searches (cont.) Consent Searches Allows police to conduct searches with the permission or consent of a person who has actual or apparent authority over the property being searched. Administrative Searches Heightened interest in public safety outweighs the need for a warrant or probable cause in government searches.

Warrantless Searches (cont.) Searches Under Exigent Circumstances A need to apprehend a dangerous person or prevent an imminent and serious threat to the police or public. Plain View Searches Allows police to search and seize if they are lawfully in a location where they plainly see evidence of criminal activity.

Evaluating Evidentiary Searches and Seizures Was there sufficient governmental conduct involved? Did the defendant have a reasonable expectation of privacy in the place or thing that was search? Was the search conducted pursuant to a valid warrant? Does a recognized exception apply? Fourth Amendment Violated Y N N 4th Amendment Not Applicable Permissible Y

Closure A search is a governmental encroachment upon a location where a person has a reasonable expectation of privacy. A seizure is a governmental exercise of control over a person or item. The court has recognized exceptions to the warrant requirement for searches. These exceptions include: (1) searches incident to a lawful arrest; (2) consent searches; (3) plain view searches; (4) Terry searches; (5) exigent circumstances; (6) automobile searches; and (7) administrative searches.

Closure (continued) Even if a search warrant is deemed invalid, the fruits of a resulting search may not result in the suppression of evidence, if the executing officer relied in good faith on the apparent validity of the warrant.

The End