How do you analyze an evidentiary search and seizure performed by the government under the fourth amendment on a criminal procedure essay? Well remember the fourth amendment protects against unreasonable government searches and seizures. In our last video we talked about government seizures of a person.
In today's video we want to move on and talk about government searches and seizures of evidence to be used against a person in a criminal prosecution. And it's really important for our purposes on a criminal procedure essay to distinguish the difference here, right? The analysis is going to change depending on whether we're dealing with a government seizure of a person.
versus a government search and seizure of evidence to be used against a person so before you jump into a fourth amendment analysis make sure that you have the right category ask yourself is this a seizure of a person or search and seizure of evidence right today we're talking about evidentiary searches and seizures under the fourth amendment okay but moving on our starting point rule for an evidentiary search and seizure under the fourth amendment is really straightforward Absent an exception, an evidentiary search and seizure by the government without a warrant is unlawful. Recognize that this is very different from our discussion of a seizure of a person, right? Remember, we said for the government to seize a person, generally, there was not a warrant requirement.
When we're talking about an evidentiary search and seizure, that flips. Our general starting point rule is that a warrant is required, okay? But so the first thing that we have to ask here under the Fourth Amendment, as always, right, if we're dealing with a Fourth Amendment analysis is number one, was the search performed by a government agent, we have to have a government actor to trigger the Fourth Amendment.
If we have a search and seizure of evidence, but the search is being performed by a private citizen, the Fourth Amendment is not at issue. This is a very common fact pattern. Imagine that you had an employer and employee relationship right the employer is rummaging through the employee's desk looking for something and finds drugs so then he calls the police the employee is going to want to raise hey my fourth amendment right was you know violated here this is an unreasonable search and seizure obviously that's not going to work because the search and seizure is not being performed by the government it's being performed by his boss so that does not trigger the fourth amendment so your first question has to be was the search performed by a government agent if it's not remember fourth amendment is not at issue okay so that should be relatively straightforward moving on to our second question in this evidentiary search and seizure analysis has to be defining what a fourth amendment search actually is because when we're talking about a fourth amendment search we're not using the word search like a layman person might use the word search you know someone might say i wake up in the morning and i search for my keys before i go to work right That might be the Webster dictionary definition of search, but that's not how we're using it when we're talking about the Fourth Amendment.
When we're talking about the Fourth Amendment, we define a search as a physical intrusion performed by the government into a constitutionally protected area. Constitutionally protected areas under the Fourth Amendment is going to include any area where you have a reasonable... reasonable expectation of privacy. Okay, so where do you have this reasonable expectation of privacy?
The general starting point primary place is going to be a person's home and the curtilage surrounding that home, somebody's backyard, their home, any part of the property that's really being used. for residential purposes where there's a reasonable expectation of privacy it's going to be a constitutionally protected area so in order for the government to physically intrude into that area remember under the fourth amendment evidentiary searches and seizures they have to have a search warrant to do so unless an exception applies okay so it's very important for us to recognize under the fourth amendment what a search actually is because if a police officer is just standing on the sidewalk right or in a public space and is looking around you know imagine that a police officer is standing on the sidewalk and he's literally doing 360 degree turns everywhere that he's looking and seeing he's not searching for fourth amendment purposes right he's not physically intruding into a person's constitutionally protected area looking from a public space is not anything that you're seeing right is not violating a person's reasonable expectation of privacy, right? So imagine that a person is in their home conducting some sort of criminal activity.
Maybe they're using drugs, manufacturing, controlled substances, who knows, right? But a police officer who's standing on the sidewalk and sees this happening through the window, that's not a search for Fourth Amendment purposes. This second question, whether the law enforcement officer violated that person's reasonable expectation of privacy, the answer is going to be no. So the Fourth Amendment is not at issue at that point in the announcement. No search has been conducted under the Fourth Amendment, right?
So the general rule here is anything that is visible from a public space, public airspace or public space, public streets, public sidewalks, is not. going to be constitutionally protected under the Fourth Amendment. You do not have a reasonable expectation of privacy if you are visible from a public space, public airspace, public space, even if you're in your home, even if you're in your backyard. If a police officer can see you from a public space, you do not have a reasonable expectation of privacy. So no Fourth Amendment search is being conducted.
Okay, so what are more areas that courts have adjudicated a person has a reasonable expectation of privacy, these constitutionally protected areas under the Fourth Amendment, I usually think of the acronym H.O.L. H-H-O-L. H.O.L. with two H's and no E at the end, right? H-H-O-L. The home, which you remember includes the backyard and the curtilage surrounding the home, hotel rooms, offices, and luggage. Those are going to be the big for places you want to think about in terms of constitutionally protected areas.
For the government to physically intrude in any of those areas, they have to have a search warrant unless an exception applies, okay? Areas where you do not have a reasonable expectation of privacy are going to include abandoned property, right? If you take trash, you throw it away, and that trash gets put out on that public street.
Remember, anything visible from a public space that's not violating your reasonable expectation of privacy. So a police officer can rummage through your trash can if that trash can goes out into a public space, right? Abandoned property, anything that is visible from a public space, whether it's airspace or streets, sidewalks, whatever, all of that is going to not fall under reasonable expectation of privacy.
That's not... constitutionally protected. Okay, what if a police officer, though, and this is a common fact pattern, is using some sort of sensory enhancing device?
He has binoculars, he's looking through somebody's window with a camera lens with a deep magnification, or he's got binoculars, or a flashlight, right? The rule is going to be if the equipment that that police officer is using is generally accessible and available to the public, that's fine. Police officer can do that.
It's still not going to be a search for Fourth Amendment purposes. Now, if the police officer is using some sort of sensory enhancing equipment that is not available to the general public, the common example here is a heat sensor. I think it's called heat scanners. You know, the military uses them.
police you know they can see through walls and show you where heat indexes are so if a person is moving behind a wall you can kind of follow their body temperature and heat right that kind of stuff is not available to the general public so if a police officer is using that that is going to constitute a physical intrusion into a constitutionally protected area into a place where there's a reasonable expectation of privacy because that type of equipment is not available to the general public okay so that's the main ideas here Also, an important thing to recognize that's commonly tested is this idea of the open fields doctrine, right? Open fields are not constitutionally protected. A person does not have a reasonable expectation of privacy in an open field.
Obviously, this is going to be more common in rural areas, farmland, places, Midwest, Southeast, I guess everywhere, right? There's rural areas everywhere. You know, anywhere where you have these big acres of land, wooded areas, you know, dirt, it doesn't matter, right?
Open fields are not constitutionally protected. Even if there's a fence around them, right? If you have a white picket fence going around it or barbed wire fence, whatever, the police can actually step over that fence, even if it's private property, and come on it and look around with their flashlight. That's not a search for Fourth Amendment purposes. Remember, an open field is not constitutionally protected as a reasonable expectation of privacy.
You do not have a reasonable expectation of privacy in an open field. So they can step over, they can come onto the property, they can shine the flashlights and look around. That's still not triggering the Fourth Amendment. But if that crosses and they come into a person's curtilage, their backyard, that they're actually using for residential purposes, now we're getting into a physical injury. intrusion, right?
And the difference between curtilage, somebody's backyard in an open field can sometimes be hard, but it's going to be making that distinction can sometimes be hard, but it's just going to be a totality of the circumstances. Think about what the purpose of the land is. Is it more for residential purposes or is it more for non-residential purposes?
Is it just dirt or agricultural? That's what you're going to want to think about primarily. Also fences. People always get hung up on fences, so I hate to even bring it up, but fencing can be a factor, but it's not determinative. Remember, an open field can be surrounded by fences and privately owned.
and police officers can come over that and look around without triggering the fourth amendment that's not constitutionally protected but the size of the fence right might be a factor too imagine a barbed wire fence that's very easy to see across and step over versus a 20 foot high concrete wall right there might be a higher reasonable expectation of privacy behind a 20 foot concrete wall versus a little barbed wire fence. So again, it's very fact-specific, very totality of the circumstances, but think about the reasonable expectation of privacy and the difference between a home and curtilage residential. purposes versus you know just land open fields agricultural land that's being used for other purposes okay so there is that distinction between the home and the curtilage and open fields but remember the main things you want to think about here are the acronym h-h-o-l home hotel office and luggage those are all constitutionally protected areas if the government is going to physically intrude into those areas generally they need a warrant Obviously, unless an exception applies, okay? So at this point in the analysis, if you've determined that you have a government agent, right, and he's physically intruding into a constitutionally protected area, you're ready to move on to number three.
Now, if your answer, though, to either of these questions is no, then the Fourth Amendment is not at issue. Remember, if we don't have a government agent, no Fourth Amendment issue. If the search, if the government's conduct is not...
physically intruding into a constitutionally protected area, then it's not really a search for Fourth Amendment purposes. Therefore, Fourth Amendment does not apply. Remember, Fourth Amendment protects against unreasonable searches and seizures performed by the government.
Right? So if we have no search, no violation of a person's reasonable expectation of privacy, then we have no search for Fourth Amendment purposes. Fourth Amendment is not at issue. But if your answer to both of these questions is yes, as it's drawn up here on the board, you can move on to number three, this warrant requirement. You need to decide whether the government agent had a valid search warrant.
This should be very straightforward, right? The fact pattern is going to tell you whether or not that law enforcement officer had a warrant or did not have a warrant. That's going to be given to you.
What might be a little bit trickier is this idea of a valid search warrant, right? Generally, there's going to be three requirements for a search warrant to be valid. It has to be issued.
Number one, it has to be issued by a neutral magistrate. Number two, it has to be based on a finding of probable cause. And number three, it has to describe the items and location that's going to be searched and seized with reasonable specificity, okay?
so issued by a neutral magistrate that's pretty straightforward right can't be someone like the state attorney general we need a neutral magistrate but it does have to be based on a finding of probable cause and remember we talked about this in our last video probable cause is more than a reasonable suspicion doesn't have to be a hundred percent certainty but it is more than a reasonable suspicion we need articulable facts right usually there's some sort of informant or witness that has some degree of credibility that's saying hey look this item you want this evidence is on this property that's usually what's going to lead to it or they have some good articulable facts that suggest that the evidence that they want is going to be in this place in this constitutionally protected area and generally the process here is going to be going to have a police officer file an affidavit with the magistrate and the magistrate is going to look over that affidavit, if there's probable cause, then they're going to grant that search warrant, then the police can go and execute that search warrant. However, if the defendant, the person who was being searched and seized against by the government, can argue that the search warrant was invalid, if you can show falsehood, right? If that search warrant was based, again, three requirements, if that search warrant was based on a false statement, that statement was made up. by a law enforcement officer.
either intentionally or recklessly, and that false statement was material in the judge's finding of probable cause, then that can be found to be an invalid search warrant. But those requirements are very strict. Defendant's going to have to show all three of those, that we have a false statement, that that false statement was made recklessly or intentionally, and that that false statement was material in the judge's finding of probable cause.
But if you can show those three things, then the search warrant can be made invalid, right? Invalid search warrant, then you have to come over here and talk about exceptions, right? Now, the one kind of caveat here with this whole validity of the search warrant is if you have a situation where a police officer is executing a search warrant that is facially valid, right? The police officer believes that he's got a good by-the-book search warrant. he executes it and he goes out there and finds evidence we're not going to exclude the evidence that's obtained and we'll talk more about exclusionary rules in a later video but it's worth noting right now even if we have an invalid search warrant but it appears facially valid and the officer executes that warrant properly and obtains evidence that evidence is not going to be excluded okay so here once you determine that you have all three of these right you have a Government agent, you have him intruding.
This government agent is physically intruding into a constitutionally protected area where the defendant has a reasonable expectation of privacy. He's got a valid search warrant to do this. There's only one question left, and that's going to be whether the execution of the warrant was proper. Okay, and again, there's going to be about three, generally three requirements here.
Number one. The execution of the search warrant can't be an unreasonable delay from the time the warrant was issued. So it has to be timely, right? When the judge issues the warrant, there can't be an unreasonable delay from that time until the warrant is executed.
The second general requirement is this idea of a knock and announce. Generally, police officers, before they execute a search warrant, have to knock and announce to let the occupant know, hey, we're coming in. This is why you always see this on.
tv shows and movies before the cops enter to execute a search warrant they always bang on the door right they're like police you know we have a warrant that's why they have to knock and announce now another caveat here is you know exceptions to the exceptions i know guys it's confusing but if they knock and announce doesn't happen similar to number three with this validity of the search warrant just because the police failed to knock and announce generally that is not going to make any evidence obtained excluded right so if the evidence is obtained but everything else is by the book if they just fail to knock and announce that is still not going that evidence is generally not going to be excluded so again worth noting on a criminal procedure essay hey look they're supposed to knock and announce if they failed to you just let that you just write that in your essay hey look a proper execution of a warrant they should knock and announce even though they failed to that evidence is probably not going to be excluded okay and then finally though and the big requirement here and what you really want to think about right is going to be the scope of the warrant remember under number three when we said for the validity of the search warrant to apply it had to describe the item and area to be searched and seized with specificity right the search warrant is going to have to and the judge issues that, it's going to have to identify the areas to be searched and the items to be seized with specificity. And the police officers, when they're executing that warrant, can't go outside the scope of the warrant. So when they come in and they start looking around, if they have a search warrant to, you know, who knows, to look for, let's say, a sawed-off shotgun, some large weapon, right?
They have a search warrant that's identifying that this sawed-off shotgun is believed to have been used in a homicide. so they're trying to obtain this murder weapon so they're searching the home for this piece of equipment this weapon you know a large sawed-off shotgun they're not going to be able to look in tiny little drawers right imagine a jewelry box on the nightstand or something they can't open those little drawers looking for a sawed-off shotgun right that goes outside the scope of the warrant now if they find illegal contraband while they're searching within the scope of the warrant that's fine but if they go outside of the scope of the warrant and find a legal contraband that's going to be improper and that's going to move over here you have to ask if there's an exception right it's unlawful if the execution of the warrant is improper okay so to sum all of this up i know this was a lot for a simple starting point rule you have four questions to go through to get through to get to a lawful search and seizure of evidence performed by the government right you have to ask whether we had that government agent or two starting point gateway issues whether we had the government agent performing the search whether that was a physical intrusion into a constitutionally protected area if you have both of those things remember a warrant is going to be required if we have these two things and no search warrant then we have to come over here and talk about exceptions right because absent an exception that's unlawful then we have to ask once we determine all three of these whether the actual execution of the search warrant was proper. If all of these are satisfied, then that search and seizure of evidence performed by the government is lawful.
Now, either of these two are not satisfied. Either the government agent does not have a warrant, the warrant is invalid, or the execution of the warrant is improper. The next question has to be whether there's a valid exception that that search falls under.
that would allow it to still be lawful we call this there's an acronym escapes from the search warrant requirement and that's what we're going to talk about in our next video but until then guys i wish you all the absolute best i hope this was helpful and i'll see you at our next video