1. CLASS NO. 2 4 TH Amendment

2. Review Incorporation Doctrine Retroactivity –Gen. Rule: Decisions are not retroactive for habeas corpus cases –Exceptions: New substantive law Watershed procedural law

3. 4 th 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 …”

4. 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.?

5. Applicability of 4 th 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

6. General Approach of 4 th Amendment Must be a warrant Or, if covered by warrant exception, must be reasonable

7. Questions to be Studied What is probable cause? What actions violate the 4 th A.? [State action]

8. What is a seizure? “Meaningful interference with individual’s possessory interest.” –E.g., Seizing person, home or freezing bank accounts

9. What is a search? Katz v. United States –Purpose of 4 th Amendment is to protect privacy, not just places –Harlan Concurrence Subjective expectation of privacy Reasonable expectation of privacy

10. Applications of Katz Principle [Step 1: Has there been a search under the 4 th 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

11. Open Fields Oliver v. U.S. –No legitimate expectation of privacy in open field Open field vs. curtilage

12. 1.How close to home? 2.Within an enclosure surrounding the home? 3.Nature of use? 4.Steps taken to protect area from observation by passer-bys

13. Consensual Electronic Surveillance In person or by telephone Not a search –No reasonable expectation of privacy –Implications of U.S. v. White?

14. Financial Records Calif. Bankers Ass’n v. Shultz (1974) –No reasonable expectation of privacy –Govt. requesting documents from bank is not a search

15. Pen Registers Device records numbers called by phone Not a search No warrant with probable cause required Only requires application to court

16. Carnivore and Computers Pen register for computers “Pen collections” vs. “full collection”

17. Electronic Pagers Person who sent call? –Not protected Activation of beeper to search for calls –May be protected

18. Trash Cal. v. Greenwood (not a search) Not technically abandonment

19. Public Areas Does public have access? When is there a reasonable expectation of privacy?

20. Aerial Surveillance California v. Ciralo (1986) Florida v. Riley (1989)

21. Manipulation of Bags in Public Transit Bond v. United States What is a squeeze?

22. Dog Sniffs U.S. v. Place (1983) –Not a search Illinois v. Caballes (cert. granted 2004) –Search? –Require probable cause?

23. Field Testing of Drugs Field testing (1984) –Not a search Urine testing (1989) –Is a search [Why the difference?]

24. New Technology Thermal imaging devices –Kyllo –In general use? –Involve the home? –Planning for the future

25. Electronic Tracking Devices Monitored or unmonitored? U.S. v. Knotts (1983) vs. U.S. v. Karo (1984)

26. Step 1: Was there a search? Actual expectation of privacy? Reasonable expectation of privacy?

27. Step #2: Who conducted the search? Private searches vs. state action

28. Step #3: Was there probable cause? Stay tuned ……………