Class Five: Defining a Search or Seizure; Standing

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Class Five Defining a Search or Seizure Standing
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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)

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Problem 2-4

• Is Roberts 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?

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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?

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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)

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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)

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A continuum of intrusions

• Surveillance
• Consensual encounter
• Brief detention
• Arrest
• Arrest with non-deadly force
• Arrest with deadly force

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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 persons
  possessory interest in an object

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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

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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

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Standing to contest an intrusion

• The Rakas Test Did a government actor intrude
  upon the defendants reasonable or legitimate
  expectation of privacy?

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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)

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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)

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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.)

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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

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Next time

• Reasonableness balancing pp. 169-177
• Probable Cause pp. 177-210