Chapter Seven – Searches and Seizures and the Right to Privacy Rolando V. del Carmen.
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Transcript of Chapter Seven – Searches and Seizures and the Right to Privacy Rolando V. del Carmen.
Chapter Seven – Searches and Seizures and the Right to Privacy
Rolando V. del Carmen
Searches and Seizures and the Right to Privacy
The Right to Privacy: A Constitutional Right? – Griswold v. Connecticut (1965)– Katz v. United States (1967)
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.
Searches and Seizures and the Right to Privacy
Definitions– Search Defined
• the exploration or examination of an individual’s 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.
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”
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
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
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
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.
Searches and Seizures and the Right to Privacy The Comparison of Search Warrants and Arrest
WarrantsDifferences
Search Warrant Arrest WarrantThe 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 notusually expires after a period of expire, unless recalled by
thetime specified by law. court that issued it.
Some jurisdictions limit the It may be executed at anyexecution of the warrant to time, unless exceptionsreasonable hours during the day. are specified by law.
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 Person’s Immediate Control
Chimel v. California– The Requirement that the Warrantless Search
be Contemporaneous
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
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
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)
Searches and Seizures and the Right to Privacy Comparison of Administrative Searches and Law
Enforcement SearchesAdministrative Searches Law Enforcement Searches
Done by Administrative Agents or Done by law enforcementInvestigators, 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
consentadministrative rules or ordinances
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
Searches and Seizures and the Right to Privacy
Issues in Searches and Seizures Technology – Evolving Concepts in Electronic Surveillance– The Old Concept—Constitutional If There Is
No Trespass: Olmstead v. United States (1928)– The New Concept—Unconstitutional If It
Violates a Reasonable Expectation of Privacy: Katz v. United States (1967)
Searches and Seizures and the Right to Privacy
Issues in Searches and Seizures Technology – Three Federal Laws Governing Electronic
Surveillance
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
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)
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)
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
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