What is a Search?

General Background

For the most part, an officer will not have to determine what police conduct constitutes a search – the typical English definition of a search will cover perhaps 99 percent of the activities of a police officer in the field.  But, the Supreme Court has expanded the definition of a search under the Fourth Amendment to cover more than the entry or rifling through a citizen’s house or belongings. 

The Katz Test

The Court came up with a two part test in the Katz case: (1) Does the suspect have a subjective expectation of privacy, and (2) Does society recognize it as reasonable (this test is actually in a concurrence, not even the majority opinion).  This definition of a search would cover officers intercepting conversations at a payphone, which was not covered by the traditional concept of a search which required a physical intrusion. But as Justice Scalia said in the Kyllo case, “The Katz test-whether the individual has an expectation of privacy that society is prepared to recognize as reasonable-has often been criticized as circular, and hence subjective and unpredictable.”

Examples

For instance, here are some examples where the Court has addressed what constitutes a search: (1) Toll records [a “pen register]- not a search, (2) areal surveillance – not a search, (3) thermal imager – search, (4) GPS tracker on a car – search, (5) Cell tower location data at the telephone company – search. 

For the most part, these examples will be addressed in subsequent sessions over the next several months, but we cannot do without at least this cursory overview.  The legal supplement has more of the academic detail for those who want to delve deeper.

Legal Supplement

Katz v. U.S., 389 U.S. 347 (1967)

[T]here was no physical entrance into the area occupied by [the petitioner].

[In Olmstead we held] that surveillance without any trespass and without the seizure of any material object fell outside the ambit of the Constitution, we have since departed from the narrow view on which that decision rested.

[T]he Fourth Amendment protects people -- and not simply "areas" …

The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth, and thus constituted a "search and seizure" within the meaning of the Fourth Amendment. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance.

Justice Harlan Concurrence: My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as reasonable.

Kyllo v. U.S., 533 U.S. 27 (2001)

[T]he antecedent question whether or not a Fourth Amendment "search" has occurred is not so simple under our precedent.

As Justice Harlan's oft-quoted concurrence [in Katz] described it, a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.

We have subsequently applied this principle to hold that a Fourth Amendment search does not occur-even when the explicitly protected location of a house is concerned-unless "the individual manifested a subjective expectation of privacy in the object of the challenged search," and "society [is] willing to recognize that expectation as reasonable." 

The Katz test-whether the individual has an expectation of privacy that society is prepared to recognize as reasonable-has often been criticized as circular, and hence subjective and unpredictable.

[T]he minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment …

Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a "search" and is presumptively unreasonable without a warrant.

Carpenter v. U.S., 585 U.S. ___ (2018)

[W]ireless carriers often sell aggregated location records to data brokers, without individual identifying information of the sort at issue here. 

In Katz we established that “the Fourth Amendment protects people, not places,” and expanded our conception of the Amendment to protect certain expectations of privacy as well.

[W]e hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI [Cell Site Location Information]. The location information obtained from Carpenter’s wireless carriers was the product of a search.

 (“A car has little capacity for escaping public scrutiny.”). Accordingly, when the Government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user.

Having found that the acquisition of Carpenter’s CSLI was a search, we also conclude that the Government must generally obtain a warrant supported by probable cause before acquiring such records. 

We hold only that a warrant is required in the rare case where the suspect has a legitimate privacy interest in records held by a third party.”

Justice Alito Dissent: “[T]he Court allows a defendant to object to the search of a third party’s property. This also is revolutionary.”

Note: All internal citations omitted.