[ Pobierz całość w formacie PDF ]
.Technology created new ways to communicate, eliminat-ing the need to conduct private business face-to-face behind closed doors.Invention of the telephone made it possible to communicate at a distance.While parties to telephone conversations intend their communications to beprivate, the conversation can easily be intercepted without physically enteringeither party s home.The telephone was just the beginning of the new tech-nology.Developments in police surveillance technologies created new waysfor the government to snoop.The traditional concept of a search as involvinga physical intrusion into a constitutionally protected location was no longercapable of protecting citizens full range of privacy expectations.The Supreme Court s first encounter with the impact of the new technolo-13gies on Fourth Amendment analysis occurred in Olmstead v.United States.Olmstead, a bootlegger, was convicted of violating the National ProhibitionAct based on evidence obtained by tapping his telephone line from a junctionbox located on a public street.The Supreme Court stood by the traditionalinterpretation, holding that Olmstead s Fourth Amendment rights were notviolated because the police listened to his conversation without trespassing onany property that belonged to him.Olmstead remained the Supreme Court s official position until the 196714case of Katz v.United States, which marked the beginning of modern FourthAmendment jurisprudence.Katz, a bookie, was convicted of transmitting12James Otis, Against the Writs of Assistance (1761) in 1 ORATORS OF AMERICA 23 28(G.Carlton Lee ed., 1900).13277 U.S.438, 48 S.Ct.564, 72 L.Ed.944 (1928).14Katz v.United States, supra note 1. 178 CONSTITUTIONAL LAW § 4.2wagering information based on evidence overheard by FBI agents who attacheda recording device to the exterior of a public telephone booth Katz regularlyused to conduct his business.The conduct of the police did not violate theFourth Amendment under traditional analysis because the recording devicedid not penetrate the wall of the booth.As a result, there was no physical intru-sion into a constitutionally protected location.The Supreme Court, neverthe-less, ruled that a person who occupies a telephone booth, shuts the door, andpays the toll has a reasonable expectation that his telephone conversation isprivate and that this expectation is entitled to Fourth Amendment protection.The Court declared:.the Fourth Amendment protects people, not places.What a personknowingly exposes to the public, even in his own home or office, is not asubject of Fourth Amendment protection.But what he seeks to preserve asprivate, even in an area accessible to the public, may be constitutionallyprotected.Katz redefined the term search.A search occurs whenever the policeintrude on a suspect s reasonable expectation of privacy.This definition doesnot withdraw the protection that previously existed against physical intru-15sions into constitutionally protected locations.The Supreme Court s goal inKatz was to make the Fourth Amendment responsive to changes in surveil-lance technology that made it possible for the police to invade privacy withoutcommitting a physical trespass.B.Search DefinedWe are now ready to formulate a working definition of the term search.A search occurs whenever police invade a suspect s reasonable expectationof privacy.An invasion can occur either because the police: (1) physicallyintrude into a constitutionally protected location (i.e., a location in which16the suspect has a reasonable expectation of privacy), or (2) use advancedsurveillance technologies to spy on activities that citizens reasonably expect17are private.A search occurs whenever police invade a suspect s reasonable expectation ofprivacy, either by physically intruding into a constitutionally protected location orusing advanced surveillance technologies to spy on activities that citizens reason-ably expect are private.15Soldal v.Cook County, Illinois, 506 U.S.56, 113 S.Ct.538, 121 L.Ed.2d 450 (1992).16Silverman v.United States, 365 U.S.505, 81 S.Ct.679, 5 L.Ed.2d 734 (1961).17Katz v.United States, supra note 1. § 4.2 SEARCH AND SEIZURE 1791.Physical Intrusion into a ConstitutionallyProtected LocationThe most common way a search occurs is by physically intruding intoa constitutionally protected location.The Fourth Amendment mentions foursubjects persons, houses, papers, and effects as having constitutional pro-tection.These subjects have been interpreted expansively as denoting broadgeneral categories.Persons.The term persons, for search purposes, encompasses those partsof a suspect s body and clothing that are not exposed to the public, such asprivate parts of the anatomy, biological materials, and pockets and undergar-18 19ments.Examining private parts of a suspect s body or clothing for evidenceof a crime constitutes a search and requires Fourth Amendment search author-ity.Searches of clothing and personal belongings are covered in §§ 4.6 to4.9.Highly intrusive body searches, such as strip searches and body cavitysearches, and the taking of blood and urine samples, are subject to special rulesthat are covered in Chapter 7.Houses.Houses includes homes and their surrounding buffer zone knownas the curtilage, apartments, hotel rooms, private offices and warehouses, tele-phone booths, and even fixtures like file cabinets and lockers.In fact, thisterm has been defined to include any premises, structure, or fixture in which a20reasonable expectation of privacy exists.Shopping malls and retail establish-ments, in contrast, are constitutionally protected locations only during hourswhen they are closed to the public.Searches of protected premises are coveredin §§ 4.13 to 4.16.Papers and personal effects.Papers encompasses letters, journals,records, films, and other private documents.Personal effects encompasseshandbags, briefcases, packages, luggage and other closed containers, andvehicles, among other things.Searches involving papers and effects arediscussed at various points in this chapter.21 22Police may not physically enter a suspect s home, reach into his pocket,23look inside his luggage, or intrude into any other location in which the sus-pect has a reasonable expectation of privacy, without a recognized source ofFourth Amendment search authority.2.Technological Invasions of PrivacyToday, a search can also occur through technological invasions of privacy.Olmstead and Katz both involved intrusions into the privacy of telephone18Schmerber v.California, 384 U.S.757, 86 S.Ct.1826, 16 L.Ed.2d 908 (1966).19Minnesota v.Dickerson, 508 U.S.366, 113 S.Ct.2130, 124 L.Ed.2d 334 (1993).20Maryland v.Macon, supra note 3.21Payton v.New York, 445 U.S.573, 100 S.Ct.1371, 63 L.Ed.2d 639 (1980).22Minnesota v.Dickerson, supra note 19.23United States v.Place, supra note 8. 180 CONSTITUTIONAL LAW § 4.2conversations.In Katz, the Supreme Court held that a person who enters apublic telephone booth and closes the door, shutting out the world, has a rea-sonable expectation that the conversation will be private and that this expecta-tion is protected by the Fourth Amendment.Telecommunication surveillanceis now regulated by a federal statute.Six months after Katz, Congress enacted24the Omnibus Crime Control and Safe Streets Act of 1968, which brought lawenforcement use of wiretapping and other interception devices under judicialcontrol by requiring prior court authorization [ Pobierz caÅ‚ość w formacie PDF ]