1. The fourth amendment
Third-Year Law – Class 7

2. Reminder: Midterm Exam Next Week
Previous exams on the website, under “Resources.”
Three different exercises:
1) Complete 5 sentences: use between 15 and 25 words for each sentence and do not start a new sentence.
2) Answer three questions on a press article, 100 words each.
3) Choose one out of two essays, write 250 words.
If you are absent, me before the exam and we will find a time for a make-up exam that same week. If you do not have a doctor’s note, you will fail the exam.

3. Questions about last class
What are the two opposing interpretations of the Second Amendment?
What did the Supreme Court rule in District of Columbia v. Heller (2008)?
At which level is most of gun legislation enacted?
What has President Obama done on the matter?

4. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

5. Introduction
Colonial Americans were intimately familiar with the invasive power of government. British officials ransacked their homes and arrested them without a warrant.
The purpose of the Fourth Amendment is to prevent such arbitrary actions and protect Americans’ privacy against the government.
In the words of former Justice Louis Brandeis, the Fourth Amendment secures “the right to be left alone – the most comprehensive of rights and the right most valued by civilized men.”
Therefore, the Fourth Amendment requires that searches and seizures must be reasonable, and that warrants for searches and seizures must be specific.
The Supreme Court is constantly trying to find the right balance between catching criminals and protecting privacy.

6. Historical Background
A common English practice was the use of general warrants, which allowed the crown’s agents to search anywhere they wanted and seize anything they pleased.
British customs officials used writs of assistance to search colonial homes and businesses for smuggled goods on which import taxes had not been paid.
In 1761, James Otis, a prominent Boston lawyer, resigned a post with the Crown in order to oppose the writs of assistance in court. Arguing on behalf of Boston merchants, Otis lost his court case.
But as John Adams – who witnessed Otis’s argument – later wrote: “Then and there the child Independence was born.”
After the Revolutionary War, eight states prohibited general warrants in their constitutions.

7. A Reasonable Expectation of Privacy
The Supreme Court originally interpreted the Fourth Amendment as limited to actual invasions of certain defined locations, such as the home or the physical body.
The Court overturned this in Katz v. United States (1967): “the Fourth Amendment protects people, not places.” Thus, the Court held that the Amendment applied not only in homes, but wherever a person had “a reasonable expectation of privacy.”
As a consequence, the Fourth Amendment protected Katz from a wiretap placed on the outside of a public phone booth, because he had a reasonable expectation that his conversation would be private.

8. Reasonable Searches and Seizures
The Fourth Amendment prohibits unreasonable searches and seizures, those conducted without a valid warrant.
- a search and seizure is a procedure whereby officials search a person or property for evidence relating to a suspected crime and take possession of any evidence found.
- a warrant is a document issued by the court allowing officials to arrest a person or to search property.
In order to obtain a warrant, the police officer must demonstrate probable cause.
- standard that must be satisfied to obtain a warrant and carry out a lawful search and seizure;
- information indicating a “substantial chance” or “fair probability” of criminal activity – Illinois v. Gates 1983).

9. Exceptions to the Warrant Requirement
However, the Court has recognized certain exceptions in which a warrantless search or seizure does not need probable cause in order to be reasonable.
- Stop and Frisk (Terry v. Ohio in 1968): need for “a reasonable suspicion” > to frisk: to search a person for weapons or other objects by patting down the person’s body.
- Searches Incident to a Lawful Arrest
- Airport Searches (danger of airplane hijacking)
- Sobriety or Immigration Checkpoints
- Consent Searches (a landlord is not authorized to grant a search of a tenant’s home, but the tenant’s roommate is)
- Plain View
- Exigent Circumstances (emergency)

10. The Exclusionary Rule
Evidence obtained in violation of the Fourth Amendment is generally not admissible in court proceedings.
There are exceptions to this general rule, based on the officer’s “good faith.”
- United States v. Leon (1984): the Supreme Court allowed evidence seized by officers who relied “in good faith” on the validity of a warrant (which was actually defective).
- Herring v. United States (2009): the exclusionary rule does not apply to evidence seized as a result of negligence in the maintenance of a government database.

11. Sentence completion
Probable cause means that information indicating “a substantial chance” or “fair probability of criminal activity” (Illinois v. Gates 1983) allows a police officer to obtain a warrant.
Whereas reasonable suspicion is a valid reason for police officers to stop and frisk a person suspected of criminal activity, a mere “hunch” is not acceptable under the Fourth Amendment.
Although a reasonable expectation of privacy can exist in personal property, it does not exist in “open fields,” if the person has exposed a place or information to others, or if a normally private area can be observed from outside, in plain view.
Despite the operation of the exclusionary rule, the Supreme Court allowed evidence seized by officers who relied “in good faith” on the validity of a warrant, even if this warrant was in fact defective (United States v. Leon 1984).
Rather than protecting property rights, the Fourth Amendment’s primary interest is to protect personal privacy (Warden v. Hayden 1967).

12. Exercise 2 Sought Asserted Held Was required Derived To support
Appreciate
Providing
Will be overheard

14. Text 1
1. What was the legal issue before the Supreme Court in this case?
The Supreme Court had to decide whether a state law authorizing the police to collect DNA samples from suspects arrested for a serious crime violated the Fourth Amendment.
2. Did the Supreme Court uphold the decision of the state court of appeal?
No, it reversed the finding of the state court.
3. What was the reasoning behind the decision of the majority?
Taking DNA samples was reasonable, as it was (i) limited in terms of the medical information collected and (ii) a safe and accurate way to identify persons taken into custody (like fingerprinting, for example).
4. What reason(s) dif Justice Scalia give for his dissent?
DNA was not collected for identification purposes; it was collected to help solve crimes. But the public interest in having crimes solved did not justify "suspicionless law enforcement searches".

15. Discussion questions
What is your opinion of this case? Do you find the arguments presented persuasive or unpersuasive?
Do you believe that the decision strikes a good balance between the interest in promoting law enforcement and that of protecting privacy?

16. Text 2 1. What legal issue was the Supreme Court asked to rule on?
The court was asked to rule on whether a warrant is required in order to search the contents of an arrested person’s cellphone.
2. What was the decision of the Court and what was its reasoning?
The court ruled that a warrant is required to search such a cellphone. This is because the logic that applied in cases of a warrantless search did not apply in this type of case: the contents of a cellphone do not pose any immediate risk to police officers during an arrest nor is there any risk that evidence will be destroyed if a search is not carried out.

17. Discussion questions
Does digital information trigger “privacy concerns more profound than ordinary physical objects?”
Should government agents require a warrant to obtain phone or metadata?

18. National Security Concerns
The Executive Branch has asserted the power to wiretap and “bug” (secretly record or monitor a conversation through a hidden microphone) in two types of national security situations: against domestic subversion and against foreign intelligence operations.
The Supreme Court held that at least in cases of domestic subversive investigations, compliance with the warrant provisions of the Fourth Amendment was required.
The Government’s duty to preserve national security did not override the guarantee of personal privacy protection.
This is especially important in national security cases, as First Amendment protections may also be infringed.

19. Audio Recording: Exercise 1
Records
A search warrant
Precedents
The building blocks
Leads
Harassing calls
Gadget
Moved to have

20. Audio Recording: Exercise 2
1. False. You've voluntarily given that dialing information to the phone company, so a warrant is not required for police to retrieve that information from the phone company.
2. False. Smith v. Maryland does not authorize mass surveillance; decided back in 1978, Smith was concerned with a much narrower category of information than that which the government's currently getting.
3. False. The Fifth Circuit (a federal appeals court) recently ruled that the government can get cell phone tracking information without a warrant.
4. False. He thinks that this should be the responsibility of Congress rather than the courts.

21. Grammar 1: To have something done
1. My computer wasn’t working last week, but yesterday I finally HAD IT REPAIRED.
2. He took some photos of the crime scene, but he HAS NOT HAD THEM DEVELOPED yet.
3. Your suit is quite dirty. You must HAVE IT CLEANED before you appear before Judge Woolsey.
4. If you’re worried about failing eyesight, you should look into HAVING YOUR EYES TESTED as soon as possible.
5. When I was arrested, I had to HAVE MY FINGERPRINTS TAKEN at the police station.

22. Grammar 2: Verb + ING form
1. a. John considered asking a senior partner for advice.
2. b. The client decided to settle the dispute in court.
3. a. Case preparation involves interviewing witnesses.
4. a. By withholding the information, the police risk being sued by Keats.
5. a. His lawyer suggests emphasizing the witnesses’ complicity in planning the crime.
6. b. The judge refused to wait any longer for filing the documents.
7. a. The suspect mentioned having had an argument with the victim.
8. a. The defendant delayed responding to the plaintiff's request.
9. a. The defendant talked his victims into giving away considerable sums of money.
10. a. The judge invited counsel to present her opening arguments.

23. Homework for the week after the exam The Fifth Amendment
Read the lesson (ps ) and learn the important words by heart.
Complete the sentences (p. 68).
Read Text 1 (p ) and Text 3 (ps ).
Two presentations:
- “Supreme Court Says Double Jeopardy Does Not Protect Against Murder Trial”
- “California Supreme Court Cuts Back Fifth Amendment Right to Remain Silent When Questioned by Police”