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CLASS NO. 2

CLASS NO. 2 . 4 TH Amendment. Review. Incorporation Doctrine Retroactivity Gen. Rule: Decisions are not retroactive for habeas corpus cases Exceptions: New substantive law Watershed procedural law. 4 th Amendment.

Melvin
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CLASS NO. 2

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  1. CLASS NO. 2 4TH Amendment

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

  3. 4th 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 4th 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 4th 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 4th 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 4th 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 4th 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. Open field vs. curtilage • How close to home? • Within an enclosure surrounding the home? • Nature of use? • 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 ……………

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