Notes about the 4th Amendment, search & seizure, and privacy:
The Uses and Misuses of Fourth Amendment History
University of Pennsylvania Journal of Constitutional Law
by David E. Steinberg
As demonstrated by historical sources, the framers who enacted the Fourth Amendment intended to address only a narrow, specific problem. The framers intended to prohibit any physical trespass into a residence by law enforcement officers — pursuant to either a general warrant, or no warrant at all. In the Fourth Amendment, the framers sought to require that government agents must obtain a specific warrant before entering a house. And that is all the framers intended to require. Contrary to modern interpretations, the framers never intended that the Fourth Amendment would govern all of the complex problems raised by government searches and seizures.
…although many authors have misinterpreted Fourth Amendment history, this does not mean that the original understanding of the amendment is shrouded in mystery. In fact, a review of framing era sources reveals a surprisingly clear depiction of the framers’ intentions. The Fourth Amendment proscribed physical trespasses into houses pursuant to a general warrant, or no warrant at all. And the amendment only sought to regulate house searches. Outside of house searches, the amendment was simply inapplicable.
If the Supreme Court returned to the original understanding of the Fourth Amendment, the regulation of law enforcement searches and seizures typically would occur through the discretionary decisions of elected officials, rather than through court interpretations of the Fourth Amendment. Before rejecting such a regime, critics should carefully consider the chaotic and inconsistent state of current Fourth Amendment law. Fourth Amendment doctrine is incoherent, precisely because courts have invoked the amendment in situations where it was never intended to apply.
Search & Seizure Law
The 4th Amendment protects two fundamental liberty interests: the right to privacy and the right to freedom from arbitrary invasion.
A search occurs when a government employee or agent violates a reasonable expectation of privacy. A seizure is the interference with an individual’s possessory interest in property. The property’s owner must have had a reasonable expectation of privacy in the items seized. A person is seized when law enforcement personnel use physical force to restrain the person if a reasonable person in a similar situation would not feel free to leave.
The prohibition on unreasonable searches and seizures restricts the actions law enforcement personnel may take when performing a criminal investigation; however, the ban also disallows unreasonable searches and seizures in the civil litigation context. Law enforcement may conduct a search only if individualized suspicion motivates the search. The Fourth Amendment prohibits generalized searches, unless extraordinary circumstances place the public in danger.
To sue regarding an alleged Fourth Amendment violation, the plaintiff must have a legitimate expectation of privacy at the searched location. This expectation must meet both the subjective and objective tests of reasonableness. The subjective test requires the plaintiff to genuinely expect privacy, and the objective test requires that, given the circumstances, a reasonable person in a similar situation also would have expected privacy.
People v. Deutsch (1996)
44 Cal. App. 4th 1224
[52 Cal. Rptr. 2d 366]
“The Fourth Amendment provides that ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.’ U.S. Const. amend. IV. In United States v. Ford, 34 F.3d 992 (11th Cir.1994), we held that the ground surveillance of an unoccupied mobile home on leased land with a thermal infrared heat detector did not violate the Fourth Amendment. Three other circuits also have concluded that thermal infrared surveillance or FLIR [Forward Looking Infrared Receiver] is not an unconstitutional search. United States v. Ishmael, 48 F.3d 850 (5th Cir.1995); United States v. Myers, 46 F.3d 668 (7th Cir.1995); United States v. Pinson, 24 F.3d 1056 (8th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 664, 130 L.Ed.2d 598 (1994). Robinson argues that this case is distinguished from Ford because it involves an occupied home, which specifically implicates the Fourth Amendment. As we explain, our Ford analysis also applies to the aerial FLIR surveillance of Robinson’s home.
“In Ford, we recognized that a party alleging an unconstitutional search under the Fourth Amendment must establish both a subjective and an objective expectation of privacy to succeed. Ford, 34 F.3d at 995 (citing Katz v. United States, 389 U.S. 347, 361 … (1967) (Harlan, J., concurring)). The subjective component requires that a person exhibit an actual expectation of privacy, while the objective component requires that ‘ “the [privacy] expectation be one that society is prepared to recognize as ‘reasonable.’ ” ‘ [Citation.] Thus, we must determine whether Robinson had a subjective expectation of privacy that society would recognize as objectively reasonable.
“Our conclusion in Ford that the defendant-appellant held no subjective expectation of privacy turned on his purposefully venting the heat from his marijuana cultivation inside the mobile home with an electric blower through holes drilled in the floor. [Citation.] In contrast to Ford, Robinson did not vent the heat from his marijuana growing operation or deliberately assist the emission of heat in any way. Consequently, we must decide in this case whether inaction can be as revealing regarding the subjective expectation of privacy as action.
“The focal issue is whether Robinson had a subjective expectation of privacy in the heat generated by his indoor marijuana cultivation. We find none. While Robinson attempted to conceal his marijuana growing operation by conducting it inside his home, the record does not indicate that he affirmatively took any action to prevent the resulting heat from being emitted into the atmosphere above his house. The record shows no consideration for the emitted heat whatsoever until his indictment and knowledge of the FLIR surveillance, which measured solely heat expelled into the atmosphere from Robinson’s home. Robinson’s inaction regarding the heat generated from his marijuana cultivation demonstrates his lack of concern for it. Thus, we conclude that Robinson has not established a subjective expectation of privacy in this heat emitted from his home.
“Even if Robinson had demonstrated a subjective expectation of privacy in the heat emitted from his home, he also would have to establish the objective component of the Katz two-part test. Under the objective prong, the proper inquiry is whether the ‘ “government’s intrusion infringes upon the personal and societal values protected by the Fourth Amendment.” ‘ [Citation.] Therefore, Robinson would have to demonstrate that his privacy [44 Cal. App. 4th 1236] expectation in the heat rising from his house would be accepted by society as objectively reasonable.
“In validating the visual inspection of a greenhouse where marijuana was being cultivated within the curtilage of a house, the Supreme Court found that ‘no intimate details connected with the use of the home or curtilage were observed’ during the aerial viewing. Florida v. Riley, 488 U.S. 445, 452 … (1989) (emphasis added). FLIR surveillance cannot measure temperature; it ‘merely compare[s] the amount of heat radiated from various objects.’ Pinson, 24 F.3d at 1057. ‘[T]he mere fact that the police have employed relatively sophisticated forms of technological surveillance does not render the surveillance unconstitutional…. The crucial inquiry, as in any search and seizure analysis, is whether the technology reveals “intimate details.” ‘ Ishmael, 48 F.3d at 855-56 (footnote omitted) (citation omitted) (quoting Dow Chemical Co. v. United States, 476 U.S. 227, 238 … (1986)); accord Ford, 34 F.3d at 996; Pinson, 24 F.3d at 1059.
“In this case, the FLIR surveillance revealed only that Robinson’s house emitted significantly more heat than others in the neighborhood of similar size. No revelation of intimate, even definitive, detail within the house was detectable; there was merely a gross, nondiscrete bright image indicating the heat emitted from the residence. Such heat detection with thermal imagery is not the ‘functional equivalent of an X-ray machine in that it allows officers to “see” within a structure what it otherwise cannot see with the naked eye.’ Ishmael, 48 F.3d at 856.
“Moreover, there was no intrusion whatsoever into Robinson’s home because the emitted heat rose from his house and then was measured by the FLIR surveillance. See [U.S. v. Ishmael, supra, 48 F.3d at p. 856] (holding that the ‘manner’ of detecting heat is ‘significant in assessing the reasonableness of the intrusion’). Using infrared surveillance to ascertain heat intensity is analogous to the warrantless use of drug-detecting dogs to locate contraband. [Citation.] Validating FLIR surveillance of a home, the Eight[h] Circuit found that ‘[j]ust as odor escapes a compartment or building and is detected by the sense-enhancing instrument of a canine sniff, so also does heat escape a home and is detected by the sense-enhancing infrared camera.’ Pinson, 24 F.3d at 1058. Because considerable electric lighting resulting in uncommon heat output is associated with indoor marijuana cultivation, unusual heat registered by FLIR surveillance serves as a method of identification.
“Thus, we conclude that ‘[n]one of the interests which form the basis for the need for protection of a residence, namely the intimacy, personal autonomy and privacy associated with a home, are threatened by [FLIR] thermal [44 Cal. App. 4th 1237] imagery.’ [U.S. v. Pinson, supra, 24 F.3d] at 1059; see Myers, 46 F.3d at 670 (determining that the thermal surveillance of a home was constitutional, the Seventh Circuit concluded that ‘[a] thermal imaging scan does not intrude in any way into the privacy and sanctity of a home’). Robinson has failed to establish an objective or reasonable expectation of privacy in the heat emitted from his house resulting from the unlawful marijuana cultivation inside, even if he had met the subjective component of the Katz test. Significantly, we are unconvinced that society ever would accept use of the Fourth Amendment to shield unlawful activity within one’s home when there are noninvasive methods of detecting such criminal activity through legitimate byproducts, such as the heat at issue in this case. We hold that the FLIR surveillance of Robinson’s home was not an unreasonable search violative of the Fourth Amendment.” (U.S. v. Robinson, supra, 62 F.3d at pp. 1328-1330, fns. omitted, original italics.)
The Fourth Amendment, Privacy, and Law Enforcement – by Robert L. Farb
Flying over a home and its curtilage. Generally, aircraft surveillance is permissible to help officers make observations and does not constitute a search under the Fourth Amendment. For example, officers do not conduct a search when they fly in lawful navigable airspace over a home and its curtilage and see with their unaided eyes marijuana plants in a fenced-in yard. The U.S. Supreme Court has ruled that a person does not have a reasonable expectation of privacy from observations from an aircraft in public airspace at an altitude at which the public travels with sufficient regularity—because any person flying in such airspace who looks down can see what officers can see.21 However, officers’ actions may constitute a search, requiring appropriate justification – usually a search warrant—if they also use sophisticated cameras and the like to see intimate activities within a home or its curtilage that they could not see unaided.
Officers may fly aircraft at any altitude over open fields because, as with areas outside the curtilage of his or her home, a person does not have a reasonable expectation of privacy there.
Supreme Court Extends 4th Amendment Protections in GPS Monitoring Case
the Supreme Court delivered a limited victory (.pdf download) for privacy rights in United States v. Jones, holding that the police performed an unconstitutional search in this case. Although the majority opinion and two concurrences relied on different legal analyses, the decision signals the Court’s concern about the implications of new technologies for the Fourth Amendment’s protection of individual privacy.
District of Columbia police suspected Antoine Jones, a nightclub owner, of being involved in cocaine distribution. The warrant obtained by prosecutors allowed police to place a GPS tracking device on Jones’s vehicle while it was in the District of Columbia and for ten days only. Instead, D.C. authorities placed the GPS device on Mr. Jones’s car while it was located in Maryland and tracked Mr. Jones’s car for a month. The device recorded Jones’s vehicles movements continuously, 24 hours a day. Using the evidence gathered with the GPS device, authorities charged Mr. Jones with conspiracy to sell cocaine.
At his trial, Jones moved to suppress the GPS evidence as an unreasonable search and invasion of his privacy in contravention of the Fourth Amendment. The trial court refused to suppress the evidence and he was convicted and sentenced to life in prison. On appeal, the U.S. Court of Appeals for the D.C. Circuit found that the police violated Jones’s reasonable expectation of privacy by putting the device on his car without a valid court order.
The Supreme Court unanimously affirmed the decision of the D.C. Circuit, however, the justices split 5-4 on their reasons for doing so. Justice Scalia, writing for the Court and joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor, held that it is a “search” under the Fourth Amendment for law enforcement to place a GPS tracking device on a car and to use the device to monitor that car remotely. The majority revived a property-based approach to the Fourth Amendment for situations such as this one, in which a physical trespass has occurred, but left untouched the current “reasonable expectation of privacy” approach where no physical trespass is at issue.
Justice Alito, joined by Justices Ginsburg, Breyer, and Kagan, concurred in the judgment. However, Justice Alito would not have held that the installation of the GPS device was a search. Instead, he expressed his view that it was the long-term monitoring with the device that violated a reasonable expectation of privacy. He also criticized the majority for what he described as reliance on “18th Century tort law.” According to the concurrence, the majority’s property-based approach might not protect privacy as much as is required, particularly with the continuing advance of technology.
Justice Sotomayor, who joined the majority, also wrote a concurring opinion. In it, she signaled her openness to a potentially significant expansion of privacy rights. She stated that “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”
In sum, the majority’s holding in this case – and thus the law of the land – is that the installation and use of a GPS tracker on an automobile constitutes a “search.” Whether or not a warrant is required for such a search remains an open question, and one that will undoubtedly trouble privacy advocates. Nevertheless, the three opinions written in this case make it clear that the justices are concerned with what new technology means for personal privacy rights, a concern that will likely be fleshed out further in cases to come.
Cases and Codes section of FindLaw.com
U.S. Constitution: Fourth Amendment
”Open Fields.” –In Hester v. United States, 96 the Court held that the Fourth Amendment did not protect ”open fields” and that, therefore, police searches in such areas as pastures, wooded areas, open water, and vacant lots need not comply with the requirements of warrants and probable cause. The Court’s announcement in Katz v. United States 97 that the Amendment protects ”people not places” cast some doubt on the vitality of the open fields principle, but all such doubts were cast away in Oliver v. United States. 98 Invoking Hester’s reliance on the literal wording of the Fourth Amendment (open fields are not ”effects”) and distinguishing Katz, the Court ruled that the open fields exception applies to fields that are fenced and posted. ”[A]n individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home.” 99 Nor may an individual demand privacy for activities conducted within outbuildings and visible by trespassers peering into the buildings from just outside. 100 Even within the curtilage and notwithstanding that the owner has gone to the extreme of erecting a 10- foot high fence in order to screen the area from ground-level view, there is no reasonable expectation of privacy from naked-eye inspection from fixed-wing aircraft flying in navigable airspace. 101 Similarly, naked-eye inspection from helicopters flying even lower contravenes no reasonable expectation of privacy. 102 And aerial photography of commercial facilities secured from ground-level public view is permissible, the Court finding such spaces more analogous to open fields than to the curtilage of a dwelling. 103
”Plain View.” –Somewhat similar in rationale is the rule that objects falling in the ”plain view” of an officer who has a right to be in the position to have that view are subject to seizure without a warrant 104 or that if the officer needs a warrant or probable cause to search and seize his lawful observation will provide grounds therefor. 105 The plain view doctrine is limited, however, by the probable cause requirement: officers must have probable cause to believe that items in plain view are contraband before they may search or seize them. 106
[Footnote 99] Id. at 178. See also California v. Greenwood, 486 U.S. 35 (1988) (approving warrantless search of garbage left curbside ”readily accessible to animals, children, scavengers, snoops, and other members of the public”).
[Footnote 100] United States v. Dunn, 480 U.S. 294 (1987) (space immediately outside a barn, accessible only after crossing a series of ”ranch-style” fences and situated one-half mile from the public road, constitutes unprotected ”open field”).
[Footnote 101] California v. Ciraolo, 476 U.S. 207 (1986). Activities within the curtilage are nonetheless still entitled to some Fourth Amendment protection. The Court has described four considerations for determining whether an area falls within the curtilage: proximity to the home, whether the area is included within an enclosure also surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to shield the area from view of passersby. United States v. Dunn, 480 U.S. 294 (1987) (barn 50 yards outside fence surrounding home, used for processing chemicals, and separated from public access only by series of livestock fences, by chained and locked driveway, and by one-half mile’s distance, is not within curtilage).
[Footnote 104] Washington v. Chrisman, 455 U.S. 1 (1982) (officer lawfully in dorm room may seize marijuana seeds and pipe in open view); United States v. Santana, 427 U.S. 38 (1976) (”plain view” justification for officers to enter home to arrest after observing defendant standing in open doorway); Harris v. United States, 390 U.S. 234 (1968) (officer who opened door of impounded automobile and saw evidence in plain view properly seized it); Ker v. California, 374 U.S. 23 (1963) (officers entered premises without warrant to make arrest because of exigent circumstances seized evidence in plain sight). Cf. Coolidge v. New Hampshire, 403 U.S. 443, 464 -73 (1971), and id. at 510 (Justice White dissenting). Maryland v. Buie, 494 U.S. 325 (1990) (items seized in plain view during protective sweep of home incident to arrest); Texas v. Brown, 460 U.S. 730 (1983) (contraband on car seat in plain view of officer who had stopped car and asked for driver’s license); New York v. Class, 475 U.S. 106 (1986) (evidence seen while looking for vehicle identification number). There is no requirement that the discovery of evidence in plain view must be ”inadvertent.” See Horton v. California, 496 U.S. 128 (1990) (in spite of Amendment’s particularity requirement, officers with warrant to search for proceeds of robbery may seize weapons of robbery in plain view).
[Footnote 105] Steele v. United States, 267 U.S. 498 (1925) (officers observed contraband in view through open doorway; had probable cause to procure warrant). Cf. Taylor v. United States, 286 U.S. 1 (1932) (officers observed contraband in plain view in garage, warrantless entry to seize was unconstitutional).