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Searches and Seizures under the Fourth Amendment

Brian T. Hobson

Introduction:

The United States Constitution is a document which aims to limit the power of the federal government. In order to achieve this goal, the Constitution limits what the federal government can do by establishing a base line of rights for all persons in the United States. In criminal law, one of the most important base line rights given to persons by the Constitution is found in the 4thamendment. The 4thamendment protects people against unreasonable searches and seizures at the hands of the government. If evidence is obtained through a search or seizure that violates the 4thamendment then the exclusionary rule (discussed later) may prevent the evidence from being used by the government at trial.

Originally, the 4thamendment only applied to actions in federal court. However, in Wolf v. Colorado, the Supreme Court stated that the 14thamendment incorporates the 4thamendment as a tool to limit the powers of the state governments as well as the federal government. Under our current laws, the 4thamendment applies equally to searches and seizures regarding criminal cases in both state and federal courts. Due to this application in both courts, the state and federal courts of appeals have created parallel case law pertaining to a 4thamendment analysis. This case law differs in some areas, but the overarching standards are set by the Supreme Court of the United States in a long line of cases that analyze the scope and meaning of the 4thamendment and how the amendment should apply under certain fact situations.

In this article, we will go step by step in analyzing a 4thamendment challenge based on a search or seizure from law enforcement. We will focus largely on federal case law as stated by the Supreme Court, but will highlight important differences in Texas when necessary.

This article will be broken down in five parts:

PART ONE: THE PRELIMINARY HURDLES STATE ACTION AND STANDING

The first element that must be shown for a successful challenge under the 4thamendment is that the search or seizure involved state action. The 4thamendment is designed to protect a person from unreasonable searches and seizures from the government only. This means that a private person may enter your home illegally, find evidence, and turn it over to the police with no 4thamendment violation. This is commonly found when a private investigator is hired by a private individual for their services.

Usually, the state action element is obvious in a criminal case as the person that is obtaining the evidence is a FBI agent, state law enforcement officer, or someone else that is affiliated with the State or Federal government. However, this element becomes less clear when a private actor illegally obtains evidence while working for the government. The question is at what point does a private actor become a state actor for purposes of a 4thamendment analysis? The Courts have determined that a search or seizure by a private actor can meet the state action element if the private actor is operating as an instrument for law enforcement or other state entity. Walter v. United States, 447 U.S. 649, 662 (1980).

For example, if an officer tells a private citizen to search your car to obtain evidence, that evidence would still be subject to a 4thamendment analysis as the private actor was acting at the direction of the state. The State action prong would be met under those facts despite the fact that the evidence was obtained by a private individual. The government cannot hide behind the state action doctrine in this scenario to circumvent a 4thamendment challenge.

Noteworthy here is a caveat that occurs in Texas law under Texas Code of Criminal Procedure 38.23. This section states that no evidence obtained by an officer or other person in violation of the United States Constitution, Texas Constitution, or Texas law shall be admitted against the accused in a criminal trial. The Texas law is more restrictive than the federal standard as state action is not a prerequisite to challenging the admission of illegally obtained evidence. The challenge would not be under the 4thamendment in this situation, but instead, a challenge under 38.23 of the Texas Code of Criminal Procedure.

2. Standing

For a defendant to challenge a search or seizure under the 4thamendment, the defendant must have standing to do so. Standing is an idea found throughout Constitutional law that states that a person cannot challenge government action without a recognized personal injury. In the context of 4thamendment law, there are three separate ways that a defendant may have standing. One, the defendant was subject to a seizure of his person by a state action. Two, the defendant had an interest in the property seized. Three, the defendant had a legitimate expectation of privacy in the place searched. Illinois v. Rakas, 439 U.S. 128 (1978). The first two means to obtain standing regard the prohibition against unreasonable seizures. Any seizure must be justified by the appropriate level of suspicion to be reasonable under the 4thamendment. Normally, whether the defendant was seized or detained is obvious from the facts. Likewise, determining whether a defendant had an interest in the property seized by a state actor is normally not a complex issue. Instead of standing, the main issue that stems from the legality of seizures revolves around having the appropriate level of suspicion to justify the seizure that takes place an arrest or detention. This will be discussed in detail in parts 2 and 3.

The most litigated topic for standing relates to the third means to obtain standing outlined above whether a defendant has the right to complain of an illegal search. For a defendant to have standing under a search, the issue can become quite complex. In Rakas, the Supreme Court pushed aside the longstanding rule that a defendant had standing to challenge a search if he was legitimately on the premises. In its place the Supreme Court gave life to the overarching theme for all standing issues involving a search whether the defendant had a legitimate expectation of privacy in the place searched. To meet this standard the defendant must show that 1) the defendant manifested a subjective expectation of privacy in the place searched and 2) that subjective expectation is one that society would deem reasonable.

In line with the legal test determined in Rakas the Supreme Court has issued case law that helps to determine standing in relation to some of the more common search issues that arise in criminal law.

1. Search of a Vehicle whether the defendant has a legitimate expectation of privacy in an automobile

Often times, criminal cases begin with the search of a vehicle that has been stopped by law enforcement. The Supreme Court has looked at two different types of defendants in these cases the driver/owner and the passengers. The Supreme Court has established a rule that passengers of a vehicle do not have standing to challenge the search of most compartments of a vehicle. In order to obtain standing to challenge a search of these compartments in a vehicle, the defendant must be the driver or the owner of that vehicle. This ruling is an outgrowth of the rule established in Rakas the Supreme Court will find that a passenger in a vehicle does not have a legitimate expectation of privacy in most areas of an automobile. This includes the glove box, under the seats, the trunk, and most other compartments. This is true because an owner could peruse through these compartments as he wished or allow others into the car. The passenger does not have the same connection to, or control over, the vehicle as the driver/owner. A passenger is likely not able to exclude others from someone elses vehicle. Due to these assumptions, his expectation of privacy is not reasonable under the eyes of the law. The Supreme Courts findings make sense in this case. Most individuals in our society would not find it to be a personal intrusion on their expectation to privacy for an officer to go through another persons car that he is merely riding in.

The rule in Rakas does not preclude all passengers from challenging any search in an automobile. If an officer went through the personal belongings of the passenger (like a purse), then certainly the Supreme Court, and all other courts, would agree that the passenger had a legitimate expectation of privacy in the thing searched. In an analysis, the ultimate question must always be the test in Rakas does the defendant have a legitimate expectation of privacy in the thing or place searched.

2. Search of Another Persons Home

Many of the same issues regarding standing in an automobile search apply to a defendants challenge to the search of another persons home. Lets say that a defendant is charged with possession of a controlled substance in state court. The controlled substance was obtained when officers entered the home of the defendants friend without a warrant and without probable cause. Without some established exigency, this would be an illegal search of the friends home. However, the defendant in this case would be unlikely to have standing unless he lived at that house or was more than a casual visitor. State case law dictates that an individual does not have the requisite expectation of privacy in anothers home if that individual is a visiting guest. The defendant here would have to show that he was living at his friends house or that he was at the very least an overnight guest to have a chance at meeting the standing prong in a 4thamendment challenge to the search. So even if the officers in this case violate the 4thamendment in obtaining the controlled substance, the defendant here will not have standing to challenge the search. He cannot suppress the evidence. The rightful person to suppress the controlled substance would be the defendants friend if he was charged. But even a successful challenge by the friend would not prohibit the State from admitting the controlled substance in the defendants trial as the 4th amendment right against unreasonable searches is considered a personal right. This right requires a personal injury to warrant the exclusion of the evidence at that defendants trial. A more detailed breakdown of the inability to suppress evidence in another persons trial will be discussed in detail in Part 5 exclusionary rule.

3.Conclusion

The two preliminary hurdles in a 4thamendment analysis are often forgotten by defense attorneys as well as prosecutors. While state action has lost its foothold in Texas case law, the standing doctrine is a tricky area that often finds itself as a central issue when challenging the legality of a search by law enforcement. The lynch pin to the standing analysis is to determine if the person is the owner, and then understand that the further removed you are from control over the area the more likely the Court is to find that your expectation of privacy is unreasonable in the eyes of society.

More here:
Analyzing Fourth Amendment Issues | Houston Criminal Defense Attorneys

I was away when news of the SCOTUS leak went viral. I hadnt watched TV for a week and barely signed onto social media, but when I did, I read astute and deeply troubling reactions to the policy document designed to overturn Roe v. Wade, which has been considered established law for 50 years.

The document, drafted by conservative Supreme Court Justice Samuel Alito, was supported by four of his court colleagues, revealing that a majority of the court concurred with ending womens right to abortion. The timing of the leak was significant; it occurred when the court is scheduled to rule on the constitutionality of a Mississippi abortion law which prohibits abortion after 15 weeks of pregnancy.

If the court finds that the Mississippi law stands, it will have sanctioned ending Roe v. Wade, allowing states to make their own laws regarding abortion. Some states have already established draconian laws that include charging women with murder if they miscarry or have an abortion. Some have ruled that physicians who perform abortions can be charged with a felony crime and some have set up vigilante laws that could affect anyone who helps a woman get an abortion.

Essentially, the demise of the constitutional right to abortion up to 24 weeks of pregnancy will end womens right to abortion in more than half the states in this country. The implications are huge, not only for American women but for the future of the country, and they are abundantly clear.

Many analysts and pundits have written cogently and urgently about the legal, physical, economic and emotional consequences for women and others in this country, and for all of us with respect to our civil and human rights. As a womens health educator and advocate, I am all too familiar with those consequences. I have heard womens testimonials, read their memoirs, listened to their stories. I have helped them access abortion care, and as a doula, I have helped them give birth to much wanted babies.

After the Alito document was revealed (and during the last confirmation hearings), I thought about the great legal minds of the past who had served as Supreme Court Justices like Oliver Wendell Holmes Jr., Thurgood Marshall, Ruth Bader Ginsburg, among them. Now, I mourn what has become of that institution, where several judges lied under oath to Congress regarding precedent, and where many are willing to ignore the Constitutions Fourth Amendment right of Americans to be secure in their persons and to not be violated or subjected to unreasonable searches and seizures.

It pains and frightens me that faulty some might say puerile logic superficial, antiquated, cliched justifications, overt sexism and religious ideology are blatantly on display. (It is worth noting that seven of the current justices are Catholic and no Protestants are on the bench.)

Couple that with the less-than-stellar records and legal experience of several justices, the alleged sexual harassment conduct of two justices, the conflict of interest on the part of a justice whose wife actively supported the insurrection, along with the majoritys willing abrogation of civil and human rights, and one can question where liberty and justice for all has gone.

How, I ask myself in these traumatic judgment days, has this largely trusted American institution so quickly deteriorated into depravity? How did its majority come to rely on bumper sticker taglines, social media tropes, and arguments so weak and sloppy that they wouldnt pass muster in a law school? Where has compassionate consideration in difficult matters gone? Why have context, untoward consequences and the reality of peoples lives disappeared?

The fact is, the Supreme Court has become a political organization with its own dark agenda and its reputation will forever be tarnished, all because two men and one woman who should know better, appointed by a far-right, self-serving autocrat, are now seated for life on the highest court in the land, along with several hundred inappropriate federal judges.

The price well all pay for judicial travesties, individually and together, grows ever clearer and more threatening. If Roe v. Wade is overturned, womens lives will be destroyed. Precedent in other matters (gay and interracial marriage, LGBTG rights and more) will no longer be valid and revision of laws that wreak havoc because of ignorance and a taste for punishment, will return.

It is no stretch to say that we will become an even more divided and dangerous nation, two-tiered and binary in ways that we cant yet imagine. Violence is likely to flourish along with racism, antisemitism, sexism and increased marginalization. The elderly, young, disabled and ill will suffer even more profoundly. Murder charges, incarcerations and suicides will become commonplace. Poverty will prevail for those in the 99%, while corporations and billionaires flourish. Family structures will be deeply and sadly impacted. The planet will be at risk sooner than predicted.

This is not solely about womens rights, and it is not hyperbole. Its a harbinger of what is to come because of laws we must live with, who makes and enforces those laws, who adjudicates disputes, what national priorities are established and by whom. It is about the future, which now is in the hands of the Supreme Court a court plunged into decline that endangers us all.

Its a court that is beyond disappointing, a court with extraordinary power to shape our lives, and it grows ever more dangerous.

Elayne Clift lives in Brattleboro.

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Clift: The demise of Fourth Amendment | Perspective | rutlandherald.com - Rutland Herald

(The Conversation is an independent and nonprofit source of news, analysis and commentary from academic experts.)

Scott Skinner-Thompson, University of Colorado Boulder

(THE CONVERSATION) Almost all American adults including parents, medical patients and people who are sexually active regularly exercise their right to privacy, even if they dont know it.

Privacy is not specifically mentioned in the U.S. Constitution. But for half a century until its June 24, 2022, ruling in Dobbs v. Jackson the Supreme Court has recognized it as an outgrowth of protections for individual liberty. As I have studied in my research on constitutional privacy rights, this implied right to privacy is the source of many of the nations most cherished, contentious and commonly used rights including the right to have an abortion.

A key component of liberty

The Supreme Court first formally identified what is called decisional privacy the right to independently control the most personal aspects of our lives and our bodies in 1965, saying it was implied from other explicit constitutional rights.

For instance, the First Amendment rights of speech and assembly allow people to privately decide what theyll say, and with whom theyll associate. The Fourth Amendment limits government intrusion into peoples private property, documents and belongings.

Relying on these explicit provisions, the court concluded in Griswold v. Connecticut that people have privacy rights preventing the government from forbidding married couples from using contraception.

In short order, the court clarified its understanding of the constitutional origins of privacy. In the 1973 Roe v. Wade decision protecting the right to have an abortion, the court held that the right of decisional privacy is based in the Constitutions assurance that people cannot be deprived of life, liberty or property, without due process of law. That phrase, called the due process clause, appears twice in the Constitution in the Fifth and 14th Amendments.

Decisional privacy also provided the basis for other decisions protecting many crucial, and everyday, activities.

The right to privacy protects the ability to have consensual sex without being sent to jail. And privacy buttresses the ability to marry regardless of race or gender.

The right to privacy is also key to a persons ability to keep their family together without undue government interference. For example, in 1977, the court relied on the right to private family life to rule that a grandmother could move her grandchildren into her home to raise them even though it violated a local zoning ordinance.

Under a combination of privacy and liberty rights, the Supreme Court has also protected a persons freedom in medical decision-making. For example, in 1990, the court concluded that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment.

Limiting government disclosure

The right to decisional privacy is not the only constitutionally protected form of privacy. As then-Supreme Court Justice William Rehnquist noted in 1977, the concept of privacy can be a coat of many colors, and quite differing kinds of rights to privacy have been recognized in the law.

This includes what is called a right to informational privacy letting a person limit government disclosure of information about them.

According to some authority, the right extends even to prominent public and political figures. In one key decision, in 1977, Chief Justice Warren Burger and Rehnquist both conservative justices suggested in dissenting opinions that former President Richard Nixon had a privacy interest in documents made during his presidency that touched on his personal life. Lower courts have relied on the right of informational privacy to limit the governments ability to disclose someones sexual orientation or HIV status.

All told, though the word isnt in the Constitution, privacy is the foundation of many constitutional protections for our most important, sensitive and intimate activities. If the right to privacy is eroded such as in a future Supreme Court decision many of the rights its connected with may also be in danger.

This story was updated on June 24, 2022, to reflect the Supreme Courts decision in Dobbs v. Jackson Womens Health.

This article is republished from The Conversation under a Creative Commons license. Read the original article here: https://theconversation.com/privacy-isnt-in-the-constitution-but-its-everywhere-in-constitutional-law-183204.

Licenced as Creative Commons - attribution, no derivatives.

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Privacy isn't in the Constitution but it's everywhere in constitutional law - Journal Inquirer

June 24, 2022

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Of all the absurdities that we accept without question, basing the right to own an AR15 on the Second Amendment is the most brazenly far-fetched.

The man who gunned down those nineteen children and two educators at Robb Elementary School in Uvalde, Texas on May 24 of this year was not acting in concert with a well-regulated militia. He was acting as a madman inspired by an evil impulse to slaughter innocent children. And the police who answered the call waited outside for an hour, afraid to go in unwilling to risk their lives to an insane man armed with a modern killing machine.

We need to ask ourselves some common sense questions:

Heres a practical analogy regarding changing times:

In the early days of our nation, people traveled overland by horse-drawn carriages. There was no regulatory entity issuing licenses. The roads were not too crowded and drivers generally managed to avoid accidents. With the invention and refinement of the automobile, the roads became more congested and dangerous. Rules of the road were codified and drivers were required to apply for licensure based on knowledge and competence.

Similarly pragmatic reasoning must be applied to guns. The front-loading musket of Revolutionary War days is not equivalent to an AR15. It is not a gun in the Fourth Amendment sense of the word. No such mass-murder machine was even dreamed of in the days of our forefathers. And the murderer of the Uvalde children was not a member of a well-regulated militia. He was a madman with an AR15.

I am not recommending more stringent licensing for AR15s. We as citizens do not need these weapons. Their proliferation is neither dictated nor endorsed by the Second Amendment. The only real beneficiaries of their continued public sale are members of the gun industry.

When will the next mass shooting be? And why must it be? We can end this.

Excerpt from:
Uvalde and the Second Amendment - Daily Kos

Photograph Source: Gerald L. Nino, CBP, U.S. Dept. of Homeland Security Public Domain

In 2017, when I was interviewing people at Customs and Border Protection headquarters in Washington, DC, one official told me point-black, Were exempted from the Fourth Amendment. The Border Patrol, according to him, can circumvent the Constitution and conduct unwarranted searches and seizures. I suppose I didnt hide my look of surprise too well (he said it so authoritatively and casually!), because the officer immediately followed that up with a quick the Supreme Court ruled that many decades ago.

On June 8, the U.S. Supreme Court again validated this exemption and strengthened it. In Egbert v. Boule the court ruled to protect federal agents, particularly Border Patrol agents, from civil rights lawsuits (by making it much more difficult to do so). Central to the case was a Fourth Amendment claim. U.S. Border Patrol agent Erik Egbert entered innkeeper Robert Boules property in Blaine, Washington, without a warrant to check the immigration status of some recently arrived guests. When Boule protested Egberts presence, Egbert threw him against a vehicle and then to the ground. In its ruling in favor of Egbert, the Supreme Court wrote that regulating the conduct of agents at the border has national security implications, and that there would be a risk in undermining border security.

As SCOTUSblog contributing writer Howard Wasserman told NPR, Considerations of national security and foreign affairs that are endemic to immigration enforcement and immigration issues are always going to make it improper for a damages action to go forward. As has been the case since 9/11, the broad yet ill-defined notion of national security trumps all else.

But there is a longer history to this, as the CBP official alluded to at the beginning. Geographer Reece Jones, author of the forthcoming Nobody Is Protected: How the Border Patrol Became the Most Dangerous Police Force in the United States, told me that this was the latest example of the continued evisceration of Fourth Amendment protections. The Supreme Court had previously ruled that Border Patrol agents needed lower standards of evidence to stop vehicles, could operate permanent checkpoints deep inside the U.S., and could use racial profiling in all of their work. Now, even when citizens are subjected to egregious abuses of authority, there is no mechanism to hold Border Patrol agents accountable.

I Feel Like I Have No Civil Rights

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How a Supreme Court Ruling Impacts the Tohono O'odham Nation - CounterPunch