Class Five: Defining a Search or Seizure; Standing

1. Class Five: Defining a Search or Seizure; Standing

2. Assumption of risk cases Secret informants (US v. White) Electronic tracking (US v. Karo) Aerial surveillance (CA v. Ciraolo) Thermal imaging (Kyllo v. US) Container searches (CA v. Greenwood; Bond v. US)

3. Problem 2-4 Is Robert�s assumption of risk in speaking to his brother different than in US v. White? Was it reasonably forseeable that John would inform on Robert? Should highly coercive tactics be figured into reasonableness balancing?

4. Problem 2-10 Did entry to install beeper constitute invasion of privacy, even though barrels observed from public vantage point? (Oliver; Bond) Did monitoring of beeper constitute illegal search?

5. Problem 2-13 Effect of location (home or public place)? (Karo) Is passivity/activity of technology a meaningful factor? Does accuracy matter? (dog sniff cases)

6. Secondary factors Property interests (abandonment) Social custom (properly a standing question) Past practices and expectations (work place) Legality and intimacy of activities (commercial use of homes) Vantage point (enhancement issue) Reduced expectations of privacy (vehicles; schools, jail cells)

7. A continuum of intrusions Surveillance Consensual encounter Brief detention Arrest Arrest with non-deadly force Arrest with deadly force

8. Defining a Seizure Of a person: when intentional police actions would cause a reasonable innocent person to believe that s/he was not free to leave or otherwise terminate the encounter. Of a thing: when a government actor causes a meaningful interference with a person�s possessory interest in an object

9. What is �standing�? A question about who gets to contest the legality of a government action Has the effect of narrowing category of persons who can challenge a violation Best seen as deliberate choice to reduce social cost of exclusionary rule

10. Standing prior to Rakas Ownership or possessory interest in premises searched Legitimate presence on premises (Jones v. US) Ownership or lawful possession of seized property �automatic� standing (possessory crimes) �target� theory

11. Standing to contest an intrusion The Rakas Test: Did a government actor intrude upon the defendant�s reasonable or legitimate expectation of privacy?

12. Factors in Standing Right to exclude public � owners, tenants, present or not Continuing access plus possessory interest (US v. Jeffers) Legitimate presence plus possessory interest (MN v. Olson) Ownership plus effective bailment (Rawlings v. Kentucky)

13. Factors rejected after Rakas �Legitimately on premises� (Rakas) Target theory � (US v. Payner) �Automatic� standing (US v. Salvucci) Ownership of thing seized not enough to contest search of area in which no privacy interest (Rawlings v. Kentucky)

14. Standing in the Business Context No standing in business areas generally accessible to public Officers have standing in corporate office But shareholders, others lacking access and control do not Actual practices can diminish/defeat expectations Visits of others do not vitiate expectations Nexus test (relationship of employee to area) Totality of circumstances (relationship to items seized, right to exclude, actions to maintain privacy, etc.)

15. The State Action Requirement Constitutions clearly only regulate actions of government agents Includes all employees of state or federal government, whatever their role Also includes non-state actors acting with knowledge and at behest of state actors

16. Next time: Reasonableness balancing pp. 169-177 Probable Cause pp. 177-210