Tony Gallagher
Federal Defender
Search & Seizure:
Past, Present and Future
A quick “tour” of the
basics
 Practical realities today
 Where are we going?

 My
other life --
Name that Case
The “hint” will be a football team
fight song from the state named
in the cite of the case
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.
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
The Basics
The Fourth Amendment applies when
 2) the intrusion breaches society’s
reasonable expectation of privacy

The Basics
The Fourth Amendment applies when
 and 3) the intrusion breaches the
legitimate expectations of privacy of
the individual in question.

Searches not protected by
the Fourth Amendment
 Abandoned property
 Foreign Searches
 BUT,
no gross or brutal
maltreatment
 Private
 No
Search
Government action
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?
Ruling: No, once trash is placed on a public
curb there is no longer a reasonable
expectation of privacy!
• search the place described
• search for specific items listed
• search particular location
• issued by a neutral judge
• all supported by probable cause
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.
Probable Cause Continuum
No
Information
Hunch
Reasonable
Suspicion
Reasonable Grounds
Probable Cause
Preponderance of the Evidence
Beyond a Reasonable Doubt
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
Exceptions to the
Warrant
Requirement
Warrantless Search & Seizure








1.
2.
3.
4.
5.
6.
7.
8.
Search incident to a lawful arrest
Stop and frisk
Consent
Plain view
Hot pursuit
Vehicles
Emergencies
Border and Airport
Search Incident To Arrest

Probable Cause (PC) is required



Expectation of Privacy is diminished
Arrest of person
Arrest in a car
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?
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.

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,


the officer must have a lawful right
of access to the object, and
the incriminating character of the
object must be “immediately
apparent”
Plain View

“Plain hearing” and “plain smell”, too.
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.
Vehicle Exception

From Incident to Arrest to PC…
 PC
required
 Scope = whole car
 Vehicle must be
operable
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
25
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.
26
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.
27
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.

28
Consent
• Consent must be voluntary
= No coercion
 Authority
to
consent
 Scope of search
 Withdrawal of
consent
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.
30
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.

Florida v. Bostick
Facts: Florida
officers regularly
boarded buses
during stops and
asked passengers
for permission to
search their
belongings.
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
Border/Airport Searches

Warrantless searches
of persons and
property when
entering the country
are legal, even
without any
individualized or
reasonable suspicion.
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.
Exigent Circumstances
PC required
 Delay will cause loss / escape / harm

Hot pursuit
 Life in danger
 Destruction of evidence


Immediate action required
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 20-30 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
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.

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
Other Exceptions to 4th
Amendment Protections
 Independent
source rule
 Inevitable discovery
 Parolees, probationers and
supervisees
Are there any Fourth
Amendment protections left?
Exclusionary
Rule
Fruit of the Poisonous
tree
But beware – suppressed
evidence may still hurt
your client
Search and Seizure
in the 21st Century
Reasonable expectations,
government intrusions, and
personal security
in the information age
Just a few years ago all we used to
worry about were these . . .
From fraud to sexual exploitation, gun
sales to porn, drug trafficking to
terrorism
the Government wants what’s in
here . . .
What are the options?
The future presents new
issues and problems for the
Criminal Defense Lawyer
The
Cloud
Social
Media
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).
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
Founding Fathers
had a unique
awareness and
understanding of
the threat of liberty
and privacy rights
of U.S. Citizens
That
expectation of
privacy was
officially
recognized in
the criminal law
context in 1967
Katz vs. United States -


“[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).
Application to email traffic


The Fourth Amendment should be
interpreted as extending to a citizen's
email 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).
Application to email traffic


Society reasonably expects that e-mail 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 e-mail or e-mail accounts
without obtaining a warrant, supported by
a neutral magistrate's finding of probable
cause.
Data Mining

Any use of computing technology to
examine large amounts of data to reveal
relationships, classifications, or patterns.
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.
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.
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.
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.
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.
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.

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.



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.
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.
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,
468 U.S. 517, 525 n.7
(1984).
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.

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.
Think Outside the Box

United States v. Demarrias
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
Questions?