Chapter Seven

1
Chapter Seven Searches and Seizures and the
Right to Privacy

• Rolando V. del Carmen

2
Searches and Seizures and the Right to Privacy

• The Right to Privacy A Constitutional Right?
• Griswold v. Connecticut (1965)
• Katz v. United States (1967)

3
Searches and Seizures and the Right to Privacy

• The Meaning of Reasonable Expectation of
  Privacy
• Two Requirements
• The person must have exhibited an actual
  expectation of privacy.
• The expectation must be one that society is
  prepared to recognize as reasonable.

4
Searches and Seizures and the Right to Privacy

• Definitions
• Search Defined
• the exploration or examination of an individuals
  house, premises, or person to discover things
  that may be used by the government for evidence
  in a criminal prosecution.
• Seizure Defined
• the exercise of dominion or control by the
  government over a person or thing because of a
  violation of law.

5
Searches and Seizures and the Right to Privacy

• General Rule
• The general rule is that searches and seizures
  can be made only with a warrant.
• Johnson v. United States (1948)
• Things Subject to Search and Seizure
• Contraband
• Fruits of the Crime
• Instrumentalities of the Crime
• Mere Evidence of the Crime

6
Searches and Seizures and the Right to Privacy

• Search and Seizure with a Warrant
• Requirements
• Probable Cause
• A Supporting Oath or Affirmation
• Warrants Based on Oral Statements

7
Searches and Seizures and the Right to Privacy

• Search and Seizure with a Warrant
• Anticipatory Search Warrant
• A need for Fresh Information
• A Description of the Place to be Searched or
  Things to Be Seized
• The Signature of a Magistrate
• The Procedure for Serving a Warrant
• The Announcement Requirement

8
Searches and Seizures and the Right to Privacy

• Search and Seizure with a Warrant
• The Scope of Search and Seizure
• The Time Allowed for a Search
• The Procedure After the Search

9
Searches and Seizures and the Right to Privacy

• The Comparison of Search Warrants and Arrest
  Warrants
• Similarities
• Probable cause is needed to issue a search
  warrant or an arrest warrant.
• The definition of probable cause is the same for
  both.
• Probable cause in both is ultimately determined
  by a judge, not by the officer.
• In both, officers need to knock and announce,
  subject to state law exceptions.
• Items in plain view may be seized when executing
  a search warrant or an arrest warrant.

10
Searches and Seizures and the Right to Privacy

• The Comparison of Search Warrants and Arrest
  Warrants
• Differences
• Search Warrant Arrest Warrant
• The officer looks for items to be The officer
  seeks to arrest
• used as evidence. a suspect for detention.
• If not served, a search warrant An arrest
  warrant does not
• usually expires after a period of expire, unless
  recalled by the
• time specified by law. court that issued it.
• Some jurisdictions limit the It may be executed
  at any
• execution of the warrant to time, unless
  exceptions
• reasonable hours during the day. are specified by
  law.

11
Searches and Seizures and the Right to Privacy

• Search and Seizure Without a Warrant
• The Searches Incident to Lawful Arrest Exception
• The Body Search of an Arrested Person
• The Area within a Persons Immediate Control
  Chimel v. California
• The Requirement that the Warrantless Search be
  Contemporaneous

12
Searches and Seizures and the Right to Privacy

• Search and Seizure Without a Warrant
• The Searches with Consent Exception
• Voluntary Consent Required
• Search Must Stay within Allowable Scope
• Authority to Give Consent Required

13
Searches and Seizures and the Right to Privacy

• Search and Seizure Without a Warrant
• The Special Needs beyond Law Enforcement
  Exception
• Public School Searches
• Searches of Probationers and Parolees Homes
• Airport Searches

14
Searches and Seizures and the Right to Privacy

• Search and Seizure Without a Warrant
• The Exigent (Emergency) Circumstances Exception
• Danger of Physical harm to the Office
• Destruction of Evidence
• Searches in Hot Pursuit (or Fresh Pursuit) of
  Dangerous Suspects
• Danger to a Third Person
• Driving While Intoxicated (DWI)

15
Searches and Seizures and the Right to Privacy

• Comparison of Administrative Searches and Law
  Enforcement Searches
• Administrative Searches Law Enforcement
  Searches
• Done by Administrative Agents or Done by law
  enforcement
• Investigators, not by the Police personnel
• Purpose is enforcement of Purpose is
  enforcement of
• administrative regulations criminal laws
• Consent or warrant is needed Consent or warrant
  is always
• except for highly regulated businesses needed
• Probable cause is not needed must Probable cause
  is always
• show that the place being inspected is needed
  unless there is consent
• administrative rules or ordinances

16
Searches and Seizures and the Right to Privacy

• Specific Search and Seizure Issues
• Searches and Seizures of Students
• Squeezing Luggage in a bus
• The Temporary Restraint of a Suspect
• Searches and seizures by Private Persons
• Searches by Off-Duty Officers
• The Use of Police Dogs for Detection of Drugs
• Surgery to Remove a Bullet from a Suspect

17
Searches and Seizures and the Right to Privacy

• Issues in Searches and Seizures Technology
• Evolving Concepts in Electronic Surveillance
• The Old ConceptConstitutional If There Is No
  Trespass Olmstead v. United States (1928)
• The New ConceptUnconstitutional If It Violates a
  Reasonable Expectation of Privacy Katz v. United
  States (1967)

18
Searches and Seizures and the Right to Privacy

• Issues in Searches and Seizures Technology
• Three Federal Laws Governing Electronic
  Surveillance

19
Searches and Seizures and the Right to Privacy

• Issues in Searches and Seizures Technology
• Title III of the Omnibus Crime Control and Safe
  Streets Act of 1968
• Two situations which allow electronic
  eavesdropping
• If a court has authorized the wiretap
• If consent is given by one of the parties

20
Searches and Seizures and the Right to Privacy

• Issues in Searches and Seizures Technology
• Title III of the Omnibus Crime Control and Safe
  Streets Act of 1968
• Title III and State Laws
• Title III and Berger v. New York (1967)

21
Searches and Seizures and the Right to Privacy

• Issues in Searches and Seizures Technology
• The Electronic Communications and Privacy Act of
  1986 (ECPA)
• The Communications Assistance for Law Enforcement
  Act of 1994 (CALEA)

22
Searches and Seizures and the Right to Privacy

• Issues in Searches and Seizures Technology
• Searches and Seizures of Computers
• Legal requirements
• Probable cause in computer searches
• Computers and reasonable expectation of privacy

23
Searches and Seizures and the Right to Privacy

• Issues in Searches and Seizures Technology
• Electronic Devices That Do Not Intercept
  Communication
• Pen Registers
• Electronic Beepers
• Cameras to Monitor Traffic and Other Offenders