The Fundamentals of the Fourth Amendment – Part 2: Search and Seizure – Q2 2024 Facts & Findings
In part 1 of the Fundamentals of the Fourth Amendment, I discussed the beginnings of what led to the Fourth Amendment. This article will be a discussion of some of the important cases regarding search and seizure.
Katz v. United States, 389 U.S. 347 (1967)
This was a landmark decision of the US Supreme Court that redefined what constitutes a search or seizure under the Fourth Amendment. The ruling expanded the Fourth Amendment’s protections of an individual’s “persons, houses, papers, and effects,” as specified in the Constitution’s text, to include any areas where a person has a reasonable expectation of privacy. This standard, now known as the Katz test, was formulated in a concurring opinion by Justice John Marshal Harlan.
The Katz test has since been used in numerous cases, particularly because of technological advances that create new questions about privacy norms and government surveillance of personal data.
United States v. Jones, 132 S. Ct. 945, 949-51 (2012)
In 2012, in United States v. Jones, the Supreme Court was confronted with the issue of whether the government, without a warrant, could track and monitor a vehicle by attaching a GPS tracker to it. The court unanimously found that this was a search under the purview of the Fourth Amendment and, as such, the government needed to obtain a warrant. The justices were split as to what test to use. Four justices believed that the court should use the “reasonable expectation of privacy” test.
However, Justice Scalia, who wrote the majority opinion on behalf of the other five justices, took the position that, since the Fourth Amendment specifically mentions “persons, houses, papers, and effects,” there is a close and sacred connection between the Fourth Amendment and property. The majority discussed the history of the Fourth Amendment and how it was tied to common law trespass until Katz. Therefore, the Jones court declared that a crucial inquiry was whether the government intruded on an area that was protected by the property right of the defendant. If so, the Fourth Amendment may have been violated even where there may not have been a reasonable expectation of privacy. While one may not have a reasonable expectation of privacy in the location of one’s car, the government cannot violate a property right by installing a GPS and then using the product of that property right violation as evidence against the defendant. Id.
There are two tests that should be analyzed to determine if there is a search. First, look at the Jones test and ask if the search was of persons, houses, papers, and/or effects. Next, ask if the government’s actions constitute a trespass of those property rights. If so, then there is a Fourth Amendment claim. If not, it is still a search and seizure if the government infringed on a person’s reasonable expectation of privacy.
United States v. Carpenter, 138 S.Ct. 2206 (2018)
The Carpenter case considered whether the Fourth Amendment permits police to obtain a cell phone’s location without first obtaining a warrant.
Using the Jones test, the court first asked if police violated the defendant’s property right. In this case, the answer was no, as officers were tracking movements through cell phone towers not owned by the defendant, and there was no physical intrusion into the cell phone since police were only monitoring its location. They would have to turn to the reasonable expectation of privacy test. Even assuming the defendant is very secretive and takes great pains to protect his/her known whereabouts, it is doubtful that it would be considered reasonable to expect one’s whereabouts to remain secret when one is using cell phone data. The ability to track movements using cell phone data is common knowledge, and reasonable people should realize that their location can be tracked when operating a mobile device. As such, it would seem that there would be no Fourth Amendment search.
However, in the Carpenter case, the court ruled that there is a reasonable expectation of privacy regarding accessing historical cell phone location records from a user’s mobile service provider. The court acknowledged that “personal location information maintained by a third party does not fit neatly under existing precedents” but maintained that people have reasonable expectations of privacy in the “whole of their physical movements.” It compared the case to the Jones case, involving the implant of a GPS device, observing that “historical cell-site records present even greater privacy concerns than the GPS monitoring considered in Jones: They give the Government near perfect surveillance and allow it to travel back in time to retrace a person’s whereabouts, subject only to the five-year retention policies of most wireless carriers.” Id.
The court did caution, however, that it did not mean to “call into question conventional surveillance techniques and tools, such as security cameras; does not address other business records that might incidentally reveal location information; and does not consider other collection techniques involving foreign affairs or national security.” Id. In United States v. Warshak, 631 F.3d 266, 288 (6th Cir. Dec. 2010), the Sixth Circuit Court of Appeals ruled that “a subscriber enjoys a reasonable expectation of privacy in the contents of his emails ‘that are stored with, or sent or received through, a commercial ISP.’” Thus, “the government may not compel a commercial ISP to turn over the contents of a subscriber’s emails without first obtaining a warrant based on probable cause.”
The Fourth Amendment is crucial in protecting citizens’ rights to secure their persons, houses, papers, and effects against unreasonable searches and seizures. There are standards to be followed, by which all searches and the requirements of a search warrant are measured.
Always remember, it is important to keep up to date with case law regarding search and seizures under the Fourth Amendment.
Author Biography:
Mary Katherine Mayer, ACP, is an Advanced Certified Paralegal in Trial Practice and Criminal Litigation with over 30 years of experience in the legal field. Mary works for the Yavapai County Public Defender’s Office in Arizona. She is a member of NALA and serves on NALA’s Professional Development Committee. Mary enjoys writing articles that relate to the paralegal field and help paralegals obtain information to enrich their professional and personal well-being. In her free time, Mary enjoys spending time with her husband and son, cooking, volunteering, and watching sports.
email: mary.mayer@yavapaiaz.gov
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