When can the police conduct a search and seizure?

Police are regulated by the Fourth Amendment, which provides protection only if there has been a search or seizure applies to any government official, no private employer Any activity exposed to the public and is not protected is considered an observation not a search expectation of privacy is absent (Eg. abandoned stuff like garbage, phone or bank records) Fourth Amendment contains two independent clauses: first prohibits unreasonable searches and second prescribes requirements the search warrants must meet. Probable cause The amendment does not tell us which of the clauses is primary. When the first clause is primary: Obtaining a warrant must be approved from a neutral magistrate.The decision of whether a search is appropriate and whose job it is to do the search is thus separated. The magistrate has to determine if the cause is probable. Purpose of a warrant: Requiring a warrant places a check on police activity (the knowledge that the request will have to be submitted to the judge disciplines the police and prosecutors adhere to more legal standards) and provides protection for personal liberty. Partial Exception: Some searches may be conducted without a warrant if the authorities need to act quickly before the evidence is destroyed or moved When the second clause is primary: Exception: A search may be conducted without a warrant and without probable cause if an item is discovered in plain view Example: A cop stops a car for running a red light and finds drugs in plain view on the passenger seat Problems with this Exception The police are tempted to make more unnecessary stops without probable cause expecting to find something illegal in plain view The police testify falsely that the item during a search was discovered in plain view Exception #2 The police do not need either a warrant or probable cause in a stop and frisk situation Here the police officer pats down the clothes of the person to ensure the person has no weapons There must be some factual basis to stop and frisk a person but courts often defend the officers judgment When is it considered reasonable? Key indicator of reasonableness is probable cause to believe that evidence of crime will be found.

Kyllo v. United States

Facts: Agent William Elliot of the United States Department of the Interior came to suspect that marijuana was being grown in the home belonging to Danny Kyllo. Indoor marijuana growth typically requires high-intensity lamps. To find out if the heat matched the heat emmited from

the lamps, the agent used a thermal imager to scan the home of Kyllo. The scan of Kyllos home was performed from the passenger seat of Agent Elliotts vehicle located across the street from the front of the house. The scan showed that the roof over the garage and a side wall of Kyllos home were relatively hot compared to the rest of the home and substantially warmer than neighboring homes. Based on tips from informants, utility bills, and the thermal imaging, a Federal Magistrate Judge issued a warrant authorizing a search of petitioners home, and the agents found an indoor growing operation involving more than 100 plants. Procedural Posture: Kyllo was indicted on one count of manufacturing marijuana. He unsuccessfully moved to suppress the evidence seized from his home and then entered a conditional guilty plea. Court of Appeals for the Ninth Circuit: remanded the case for an evidentiary hearing regarding the intrusiveness of thermal imaging. District Court: Upon appealfound that Agema 210 is a non-intrusive device and upheld the validity of the warrant and reaffirmed its denial of the motion to suppress Court of Appeals for the Ninth Circuit: Held that Kyllo had shown no subjective expectation of privacy because he had made no attempt to conceal the heat escaping from his home. Issue(s): Whether the use of a thermal-imaging device aimed at a private home from a public street to detect relative amounts of heat within the home constitutes a search within the meaning of the Fourth Amendment? Judgment/Disposition: Reverse and remanded Holding: The court held that the governments use of using a thermal-imaging device constituted an unlawful search in violation of the Fourth Amendment. Majority: Justice Scalia rejected the governments argument that thermal-imaging must be upheld because it detected only heat radiating from the external surface of the house and also that thermal-imaging was constitutional because it did not detect private activities occurring in private areas. Scalia rejected this on the basis that new technology can very well impede into the lives of citizens. He wrote The Agema Thermovision 210 might disclose, for example, at what hour each night the lady of the house takes her daily sauna and bath--- a detail that many would consider intimate. He further held that the court could not develop a rule which determines what activities inside the home are intimate and which are not. Moreover, he wrote that the Fourth Amendment draws a firm line at the entrance to the house.

Dow Chemical v. United States

Facts of the Case Dow Chemical Company denied the Environmental Protection Agency a follow-up on-site inspection of its facilities in Midland, Michigan. In response, EPA conducted an unannounced aerial inspection. When Dow became aware EPA had taken aerial photographs of its facilities, it filed suit in District Court alleging that EPA conducted a warrantless search in violation of the Fourth Amendment. The District Court ruled that the aerial inspection violated Dow's "expectation of privacy" from searches. The United

States Court of Appeals for the Sixth Circuit reversed the ruling on the ground that Dow only expected privacy with respect to its indoor property. Question Does the Fourth Amendment require government inspectors to obtain warrants before conducting aerial searches of outdoor business facilities? Holding The Court maintained that the EPA's statutory jurisdiction "carries with it all the modes of inquiry and investigation traditionally employed or useful to execute the authority granted." Fourth Amendment protection involves the invasion of areas where intimate activities occur, whereas "the open areas of an industrial complex are more comparable to an 'open field' in which an individual may not legitimately demand privacy." The fact that EPA could take aerial photographs of the facilities from public airspace with the standard photographic equipment employed by mapmakers confirmed that the area was not subject to strict protection from observation

Bond v United States

While checking the immigration status of passengers on a bus in Texas going from California to Arkansas, Border Patrol Agent Cesar Cantu squeezed the soft luggage which passengers had placed in the overhead storage space in a surprise inspection. When Agent Cantu squeezed a canvas bag above Steven Dewayne Bond, Agent Cantu noticed that it contained a "brick-like" object. After Bond admitted owning the bag and consented to its search, Agent Cantu discovered a "brick of meth. Bond was indicted on federal drug charges. Bond moved to suppress the drugs, arguing that the agent conducted an illegal search of his bag, when squeezing it, in alleged violation of the Federal Constitution's Fourth Amendment prohibition against unreasonable searches and seizures. The District Court denied the motion and subsequently found Bond guilty. On appeal, Bond conceded that other passengers had access to his bag, but contended that Agent Cantu manipulated the bag (by squeezing)in a way that other passengers would not, thus constituting an unreasonable search. In affirming the denial of the motion, the Court of Appeals held that Agent Cantu's manipulation of the bag was not a search under the Fourth Amendment. Issue: Does a law enforcement officer's physical manipulation of a bus passenger's carry-on luggage violate the Fourth Amendment's protection against unreasonable searches?

Holding: the Court held that "Agent Cantu's physical manipulation of petitioner's carry-on bag violated the Fourth Amendment's proscription against unreasonable searches." The Court concluded that Bond "possessed a privacy interest in his bag," and that such an expectation of privacy is reasonable. "Physically invasive inspection is simply more intrusive than purely visual inspection," Chief Justice Rehnquist wrote for the Court, a bus passenger "does not expect that other passengers or bus employees will, as a matter of course, feel the bag in an exploratory manner." Justice Stephen G. Breyer, joined by Justice Antonin Scalia, dissented, seeing no "reasonable expectation" that strangers would not manipulate luggage in a bus.