Search Me Handout 4: Search Me in Public General Fourth Amendment Information

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Search Me

Handout 1.4: Search Me in Public

General Fourth Amendment Information
The Fourth Amendment places certain restrictions on when and how searches and seizures can constitutionally be conducted. The Fourth Amendment only restricts and limits the actions of government officials. In other words, the Fourth Amendment doesn’t prevent private citizens, companies, or organizations from conduct searches and seizures (although there it is likely that there are criminal and civil laws limiting even the actions of non-government officials!).

A search doesn’t just involve government officials riffling through your files and computer records. Generally, a search occurs any time government officials interfere with an individual’s reasonable expectation of privacy. What is a “reasonable expectation of privacy?” Well—that really depends! A court will look at what a common everyday person would expect, the age and situation of the person being searched, whether that person attempted to create a private setting, and a variety of other factors and circumstances. As to the other prong, a seizure occurs anytime the government meaningfully interferes with an individual’s freedom of movement. This means that if the police made a reasonable person believe that he or she was not free to leave, it is likely that the Fourth Amendment kicks in.

So what happens if an official executes a search or seizure that is unconstitutional? There is a chance that the person who was wronged could sue the government for damages. For the purposes of studying the Constitution and the rights of individuals, the most important consequence is the Exclusionary Rule. This rule says that any evidence that is obtained during an illegal search or seizure cannot be used against the person whose rights were violated by the search or seizure. The theory behind the Exclusionary Rule is that such consequences will encourage police departments to make sure their officers follow the Constitution and encourage law enforcement personnel to protect the rights of our communities.

Search and Seizures in Public
When you are out in public, walking down the street or going to work, chances are that you have a very limited expectation of privacy. You are out in public right? In general, the Supreme Court agrees with that – in public, the Fourth Amendment provides little protection. Nevertheless, the Court has said that in certain circumstances, the Fourth Amendment does have some power in public, and in other, perhaps surprising ways, doesn’t.

Terry v. Ohio, 392 US 1 (1968)
Facts: A police officer saw Terry and another man acting suspiciously. According to the officer, the men were walking up and down a street, stopping and looking in a store window again and again. The officer thought they were “casing” the store and might be armed. In response to this suspicion, the officer confronted the men, asked them to identify themselves, and patted the men down. During the pat down, the officer found a gun on both Terry and his companion. Terry was charged with carrying a concealed weapon and the gun was admitted as evidence against him.
Decision: The Supreme Court determined the gun could be admitted as evidence against Terry. According to the Court, such a “Stop and Frisk” search was permitted by the Constitution so long as:

  1. The conduct of the suspect was unusual;

  2. The police officer had a reasonable belief that criminal activity was afoot;

  3. The police officer had a reasonable belief that the suspect was armed; and

  4. The police officer had a reasonable belief that the suspect posed imminent harm to the officer or the community.

Katz v. United States 389 U.S. 347 (1967)
Facts: Katz used a public phone in LA to call other parts of the country to place illegal bets. Katz frequently used the same phone booth and the police set up an electronic listening/recording device in the booth without a warrant. The recordings of Katz’s portion of the phone calls were used against him in his trial for illegal gambling. Katz claimed that the police use of the device violated his Fourth Amendment right. California claimed that Katz had no reasonable right to expect that his phone calls in a public phone booth would be private.
Decision: The Court held that the Fourth Amendment did in fact apply in a public phone booth. According to the Court, the Fourth Amendment applies to people not places. In other words, if a person acts in a way that indicates that he or she expects privacy, and such an expectation is reasonable, than the Fourth Amendment will apply.

California v. Greenwood 486 U.S. 35 (1988)
Facts: The police received a tip that Greenwood was selling drugs out of his home. A police officer asked the trash collector who worked on Greenwood’s street to set the trash bags from in front of Greenwood’s home aside when collecting trash. The officer then went through the bags from in front of Greenwood’s house and found evidence of drug use. This evidence was then used to get a warrant to search Greenwood’s home, where the police found drugs. Greenwood was charged with drug possession and drug trafficking. Greenwood argued that the warrantless search of his trash violated his Fourth Amendment rights.
Decision: The Court upheld the search and subsequent warrant and arrest. According to the Supreme Court, there is no expectation of privacy in our trash. The Court focused on the fact that the trash was left on the side of the curb, where anyone can look at it and animals or scavengers could get into it. Because trash is knowingly exposed to the public, the Court said there was no role for the Fourth Amendment to play here.

You should be prepared to present your answers to these questions to the rest of the group.

    1. How does the 4th Amendment regulate activities in this location?

    2. What do you think is the legal “rule” regarding searches/seizures in the location?

    3. What types of searches and seizures are allowed?

    4. Did any of the cases surprise you? Why or why not?

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