8.1 Fourth Amendment search and seizure

The Fourth Amendment protects against unreasonable searches and seizures by the government. It establishes the right to privacy and security in our persons, homes, papers, and belongings. This protection applies to both state and federal actions through the incorporation doctrine.

The amendment sets standards for lawful searches, including the need for probable cause and warrants in most cases. However, there are exceptions, such as exigent circumstances and consent searches. The courts have also grappled with applying these principles to modern technology and surveillance methods.

Scope of Fourth Amendment protections

• The Fourth Amendment protects individuals against unreasonable searches and seizures by the government, establishing the right to privacy and security in their persons, houses, papers, and effects
• Applies to both state and federal government actions through the incorporation doctrine, which extended the Bill of Rights to the states via the Fourteenth Amendment's Due Process Clause

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• Fourth Amendment protections only apply to actions taken by government officials or agents, not private individuals acting on their own accord
• Government action includes searches and seizures conducted by law enforcement officers, as well as other government employees acting in their official capacity
• Private action, such as a search conducted by a private security guard or a citizen, does not fall under the purview of the Fourth Amendment, although evidence obtained through private action may still be subject to other legal restrictions

Reasonable expectation of privacy

• Individuals are protected by the Fourth Amendment when they have a reasonable expectation of privacy in the place or item being searched or seized
• Reasonable expectation of privacy is determined by a two-part test:
  1. The individual must have a subjective expectation of privacy
  2. Society must recognize that expectation as reasonable
• Factors considered in determining reasonable expectation of privacy include:
  • The location of the search (home, car, public place)
  • The nature of the item or information being searched (personal belongings, confidential documents)
  • The steps taken by the individual to maintain privacy (using encryption, closing curtains)

Defining searches under Fourth Amendment

• A search occurs when the government intrudes upon an individual's reasonable expectation of privacy or physically trespasses on their property to obtain information
• Two main tests are used to determine whether a government action constitutes a search under the Fourth Amendment: the physical trespass test and the reasonable expectation of privacy test

Physical trespass test

• Under the physical trespass test, a search occurs when the government physically intrudes on a constitutionally protected area (persons, houses, papers, or effects) for the purpose of gathering information
• This test was established in the Supreme Court case United States v. Jones (2012), where the installation of a GPS tracking device on a suspect's vehicle was considered a search due to the physical trespass on the vehicle
• The physical trespass test applies even if the area intruded upon is open to public view, such as the exterior of a vehicle or the outside of a home

Reasonable expectation of privacy test

• The reasonable expectation of privacy test, established in Katz v. United States (1967), states that a search occurs when the government violates an individual's reasonable expectation of privacy
• This test expanded the definition of a search beyond physical trespass, recognizing that the Fourth Amendment protects people, not just places
• Factors considered in applying this test include:
  • The location of the alleged search (home, car, public place)
  • The nature of the information or item being sought (personal, confidential, or incriminating)
  • The steps taken by the individual to maintain privacy (using encryption, closing curtains)
• Examples of searches under this test include wiretapping a phone conversation (Katz v. United States) and using a thermal imaging device to detect heat emanating from a home (Kyllo v. United States)

Conducting constitutional searches

• For a search to be considered constitutional under the Fourth Amendment, it must be conducted with probable cause and, in most cases, with a warrant issued by a neutral magistrate
• There are, however, several exceptions to the warrant requirement that allow for warrantless searches under specific circumstances

Probable cause requirement

• Probable cause is the level of suspicion required for a law enforcement officer to conduct a search or seizure under the Fourth Amendment
• It exists when there is a fair probability, based on the totality of the circumstances, that contraband or evidence of a crime will be found in a particular place
• Probable cause is a higher standard than reasonable suspicion but lower than the "beyond a reasonable doubt" standard required for criminal convictions
• Factors considered in determining probable cause include:
  • The reliability of the information (eyewitness accounts, anonymous tips)
  • The specificity of the information (detailed descriptions, corroborating evidence)
  • The officer's training and experience in identifying criminal activity

Warrant requirement and exceptions

• In most cases, a search must be conducted pursuant to a warrant issued by a neutral magistrate, who determines whether probable cause exists based on the information provided by law enforcement
• A warrant must particularly describe the place to be searched and the persons or things to be seized, preventing overly broad or exploratory searches
• Exceptions to the warrant requirement allow for warrantless searches in certain circumstances, such as:
  • Exigent circumstances (emergency situations, hot pursuit of a fleeing suspect)
  • Plain view doctrine (officers may seize contraband or evidence in plain view during a lawful observation)
  • Search incident to arrest (officers may search an arrestee's person and immediate surroundings for weapons or destructible evidence)
  • Consent searches (individuals may voluntarily waive their Fourth Amendment rights and consent to a search)
  • Automobile exception (officers may search a vehicle without a warrant if they have probable cause to believe it contains contraband or evidence of a crime)

Reasonable suspicion for stop and frisk

• Reasonable suspicion is a lower standard than probable cause, requiring only a particularized and objective basis for suspecting criminal activity
• Under the Supreme Court case Terry v. Ohio (1968), officers may conduct a brief investigatory stop (Terry stop) and a limited pat-down search (frisk) of a person if they have reasonable suspicion that the person is engaged in criminal activity and may be armed and dangerous
• Factors considered in determining reasonable suspicion include:
  • The officer's observations of suspicious behavior
  • Information from reliable sources (informants, dispatches)
  • The individual's presence in a high-crime area
  • The individual's nervousness or evasive behavior
• A frisk is limited to a pat-down of the outer clothing for weapons and does not extend to a full search of the person or their belongings without probable cause or consent

Special needs searches and seizures

• In certain contexts, the government may conduct searches or seizures without individualized suspicion (probable cause or reasonable suspicion) when there is a special need that goes beyond the normal need for law enforcement
• These special needs searches must be justified by a compelling government interest and must be narrowly tailored to serve that interest while minimizing the intrusion on individual privacy

Administrative searches

• Administrative searches are conducted by government agencies to enforce regulatory schemes or to ensure compliance with health and safety standards, rather than to investigate criminal activity
• Examples of administrative searches include:
  • Building inspections (fire, health, and safety codes)
  • Environmental inspections (pollution, hazardous waste)
  • Business inspections (liquor licenses, gun dealers)
• Administrative searches are subject to a lower standard of suspicion than criminal searches, but they must still be reasonable and limited in scope to the specific administrative purpose

Checkpoints and roadblocks

• Law enforcement may conduct suspicionless stops at fixed checkpoints or roadblocks for certain limited purposes, such as:
  • Border checkpoints to detect illegal immigration or smuggling
  • Sobriety checkpoints to detect and deter drunk driving
  • Information-seeking checkpoints to gather information about a recent crime in the area
• Checkpoints and roadblocks must be conducted in a neutral and non-discriminatory manner, with clear guidelines and minimal intrusion on motorists
• The primary purpose of the checkpoint must not be for general crime control, as this would violate the Fourth Amendment's requirement of individualized suspicion

Searches in schools

• Students in public schools have a reduced expectation of privacy due to the school's responsibility to maintain a safe and educational environment
• School officials may conduct searches of students and their belongings without a warrant or probable cause if the search is reasonable under the circumstances
• Factors considered in determining the reasonableness of a school search include:
  • The nature of the suspected violation (criminal activity, school rule violation)
  • The intrusiveness of the search (pat-down, locker search, strip search)
  • The age and sex of the student
  • The school's interest in maintaining order and discipline
• Searches by school resource officers (law enforcement) may be subject to a higher standard of suspicion, depending on their level of involvement and the purpose of the search

Technology and Fourth Amendment

• Advances in technology have presented new challenges for applying Fourth Amendment principles, as the Founders could not have anticipated the modern surveillance and data-gathering capabilities of the government
• Courts have grappled with determining the appropriate level of privacy protection for various forms of electronic communication and data, often relying on the reasonable expectation of privacy test

Surveillance and wiretapping

• Electronic surveillance, such as wiretapping telephone conversations or intercepting email communications, constitutes a search under the Fourth Amendment when it violates an individual's reasonable expectation of privacy
• The Supreme Court has held that individuals have a reasonable expectation of privacy in the content of their telephone conversations (Katz v. United States) and emails (United States v. Warshak)
• The Electronic Communications Privacy Act (ECPA) and the Foreign Intelligence Surveillance Act (FISA) regulate the government's use of electronic surveillance in criminal and national security investigations, respectively
• These statutes generally require the government to obtain a court order or warrant based on probable cause before conducting electronic surveillance, with some exceptions for exigent circumstances or foreign intelligence gathering

GPS monitoring and tracking

• The use of GPS technology to monitor an individual's movements can implicate Fourth Amendment concerns, depending on the nature and duration of the monitoring
• In United States v. Jones (2012), the Supreme Court held that installing a GPS tracking device on a suspect's vehicle constitutes a search under the physical trespass test, as it involves a physical intrusion on the vehicle
• However, the Court did not address whether prolonged GPS monitoring violates an individual's reasonable expectation of privacy, leaving this question open for future cases
• Some lower courts have held that prolonged GPS monitoring (e.g., several weeks or months) requires a warrant based on probable cause, while shorter periods of monitoring may be permissible based on reasonable suspicion or other exceptions to the warrant requirement

Searches of electronic devices

• Searches of electronic devices, such as smartphones, laptops, and digital storage media, can raise significant Fourth Amendment issues due to the vast amount of personal and sensitive information these devices often contain
• In Riley v. California (2014), the Supreme Court held that the search incident to arrest exception does not apply to the digital contents of a cell phone, requiring officers to obtain a warrant based on probable cause before searching a phone seized during an arrest
• However, the Court has not yet addressed the standard for searching electronic devices in other contexts, such as border searches or searches pursuant to a warrant
• Some lower courts have required a higher level of suspicion or specificity for searches of electronic devices, given the heightened privacy interests at stake and the potential for overbroad or exploratory searches
• The government's ability to search electronic devices may also be limited by the Fifth Amendment's protection against self-incrimination, particularly when a device is protected by encryption or a password

Fruit of poisonous tree doctrine

• The fruit of the poisonous tree doctrine is an exclusionary rule that prohibits the use of evidence obtained through an illegal search or seizure, as well as any evidence derived from that initial illegality
• The doctrine is based on the principle that the government should not be able to benefit from its own unlawful conduct, and that excluding tainted evidence deters future Fourth Amendment violations

Exclusionary rule

• The exclusionary rule, established in Weeks v. United States (1914) for federal cases and extended to state cases in Mapp v. Ohio (1961), requires courts to exclude evidence obtained through unconstitutional searches or seizures from criminal trials
• The primary purpose of the exclusionary rule is to deter police misconduct by removing the incentive to violate the Fourth Amendment, as the government cannot use the illegally obtained evidence to secure a conviction
• The exclusionary rule applies not only to the direct products of an illegal search or seizure (e.g., contraband found during an unlawful search), but also to any evidence derived from the initial illegality, known as the "fruit of the poisonous tree"
• For example, if an illegal search leads to the discovery of a witness who later testifies at trial, that testimony may be excluded as fruit of the poisonous tree

Exceptions to exclusionary rule

• The Supreme Court has recognized several exceptions to the exclusionary rule, allowing the use of evidence obtained through an illegal search or seizure in certain circumstances
• These exceptions are based on the principle that the exclusionary rule should not be applied when its deterrent purpose is not served or when the costs of exclusion outweigh its benefits
• The main exceptions to the exclusionary rule include:
  • Independent source doctrine: Evidence obtained from a lawful source independent of the illegal search or seizure may be admitted
  • Inevitable discovery doctrine: Evidence that would have been inevitably discovered through lawful means may be admitted, even if initially found through an illegal search or seizure
  • Attenuation doctrine: Evidence may be admitted if the connection between the illegal search or seizure and the evidence is sufficiently attenuated or weakened by intervening circumstances
  • Good faith exception: Evidence obtained by officers acting in objectively reasonable reliance on a warrant later found to be invalid may be admitted, as the exclusionary rule would not serve its deterrent purpose in such cases

Remedies for Fourth Amendment violations

• Individuals whose Fourth Amendment rights have been violated by the government may seek various remedies, both in the context of criminal proceedings and through civil lawsuits
• These remedies are designed to deter future violations, compensate victims, and ensure that the government is held accountable for its unconstitutional actions

Motions to suppress evidence

• In criminal cases, defendants can file a motion to suppress evidence obtained through an illegal search or seizure, arguing that the evidence should be excluded from trial under the exclusionary rule
• The burden is on the defendant to establish that a Fourth Amendment violation occurred, and the government must then prove that an exception to the exclusionary rule applies
• If the motion to suppress is granted, the excluded evidence cannot be used by the prosecution at trial, which may result in the dismissal of charges or an acquittal if the remaining evidence is insufficient to prove guilt beyond a reasonable doubt
• Motions to suppress can be filed at various stages of the criminal process, including before trial (pretrial motion), during trial (objection), or after conviction (post-conviction relief)

Civil liability under Section 1983

• Individuals whose Fourth Amendment rights have been violated by state or local officials may bring a civil lawsuit for damages under 42 U.S.C. § 1983, a federal statute that allows suits against government officials for deprivations of constitutional rights
• To prevail in a Section 1983 claim, the plaintiff must prove that:
  • The defendant acted under color of state law (i.e., in their official capacity)
  • The defendant's conduct deprived the plaintiff of a right secured by the Constitution or federal law
• Plaintiffs can seek various forms of relief in Section 1983 cases, including:
  • Compensatory damages for actual injuries or losses
  • Punitive damages to punish egregious misconduct
  • Injunctive relief to prevent future violations
  • Attorney's fees and costs
• However, government officials may be entitled to qualified immunity, which shields them from liability unless their conduct violated a clearly established constitutional right that a reasonable official would have known