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CHAPTER THREE
SEARCHES AND SEIZURES
Learning Objectives
After studying this chapter, students should be able to:
1. Know that Fourth Amendment analyses follow a three-stop process based on the
answers to three questions in the following order: (1) Was the law enforcement
action a “search” or “seizure”? (2) If the action was a search or seizure, was it
reasonable? (3) If the search/seizure was unreasonable, does the Fourth
Amendment ban its use as evidence?
3. Understand that the Fourth Amendment bans only “unreasonable” searches and
4. Know that if government actions don’t invade an expectation of privacy that
5. Understand and appreciate that the Fourth Amendment doesn’t protect
6. Appreciate the SCOTUS’s difficult job of balancing government power to control
7. Understand that property is seized whenever the government meaningfully
interferes with an individual’s possession of something. Appreciate the unique
challenges of defining “property,” such as files on a computer, in the Digital Age.
Lesson Plan
I. The History and Purposes of the Fourth Amendment
Learning Objective 1: Know that Fourth Amendment analyses follow a three-
step process based on the answers to three questions in the following order: (1)
Was the law enforcement action a “search” or “seizure”? (2) If the action was a
search or seizure, was it reasonable? (3) If the search/seizure was unreasonable,
does the Fourth Amendment ban its use as evidence?
Class Discussion/Activity
Constitutional searches and seizures require that such events be reasonable.
Discuss with students what might happen if we did not have such requirements.
Cite present-day examples such as the War on Terror or contemporary incidents
of profiling. Be sure to include elements of the three-step process.
A. Crime control in a constitutional democracy depends on information, most of
which comes from what police see and hear.
B. Not all information can be gathered from ordinary senses; sometimes it comes
from reluctant sources, including:
1. Criminals
3. Victims
4. Witnesses
C. Law enforcement officers must sometimes rely on involuntary methods to get
information, triggering the criminal procedure protections in the Bill of Rights.
D. Some searches and seizures, called special-needs searches, go beyond the
purpose of crime control. They were implemented to:
2. Prevent drunk driving
4. Protect officials from lawsuits
5. Detect drug use among students and public employees
E. In this chapter, we will examine the history and purposes of the Fourth
Amendment and examine the three main steps used in Fourth Amendment
analyses.
Class Discussion/Activity
Provide students with some vignettes of differing types of search and seizure
opportunities. Have them walk through the three questions that the Supreme
Court uses in determining the Fourth Amendment is applicable. Discuss the
conclusions. If a large class, this can be done in groups and then discussed as a
class. If a small class, this can be done entirely as a class.
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4
5
II. The History and Purposes of the Fourth Amendment
Learning Objective 2: Know that the original purposes for searches and seizures were to
enforce sedition and customs laws, not the ordinary crimes that concern law enforcement
today.
A. Searches and seizures originally were aimed at sedition (criticism of English
monarchs) and tax evasions, not looking for and taking evidence of common
felonies against individuals and their property and arresting suspects involved in
such activities.
1. Writ of assistance
2. Very different purpose from today
Class Discussion/Activity
Discuss the importance of recognizing how differently the Fourth Amendment
was used when it was first written compared to how it is applied today. Discuss
with students whether they believe it is appropriate to apply the Fourth
Amendment to law enforcement even though that was not its original purpose.
B. The Fourth Amendment bans all unreasonable searches and seizures.
2. Instead, it was aimed at limiting police power enough so as not to infringe
“unreasonably” on two other values at the heart of a free society:
a. Liberty
b. Privacy
C. The Fourth Amendment ensures that all searches and seizures are done reasonably.
III. Searches
Learning Objective 3: Understand that the Fourth Amendment bans only
“unreasonable” searches and seizures made by law enforcement in order to balance the
government’s power to control crime and the liberty and privacy rights of individuals.
Learning Objective 4: Know that if government actions don’t invade an expectation of
privacy that society is prepared to recognize, it’s not a search, and the Fourth Amendment
doesn’t apply. In other words, the actions are left to the discretion of individual officers.
A. Three questions must be addressed when analyzing Fourth Amendment issues:
1. Was the law enforcement action a search or a seizure?
2. If the action was a search or a seizure, was it reasonable?
3. If the action was an unreasonable search, does the Fourth Amendment ban
its use as evidence?
B. What constitutes a private search? What is the private search doctrine?
1. Define Reasonable expectation and align this definition with the privacy
doctrine?
2. What are the four doctrines that grew out of the privacy doctrine?
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Media Tool
“ACLU Search and Seizure”
https://www.aclu.org/criminal-law-reform/search-and-seizure
o A look at the latest updates and cases on search and seizure.
o Discussion: Students can read one of the cases or articles on the site and
discuss whether they agree with the information or not.
What If Scenario
What if the Court still used places to determine the when a right to privacy
existed? In what situations would this be problematic?
C. Until 1967, the U.S. Supreme Court defined searches according to what was then
the trespass doctrine.
1. It meant that officers had to invade physically a “constitutionally protected
area.”
2. Such areas include:
a. Persons
b. Houses
c. Papers
d. Effects
D. The privacy doctrine
1. Olmstead v. U.S.
2. Katz v. U.S.
a. Replaced the trespass doctrine with the reasonable expectation of
(1) Subjective privacy: Did the person exhibit an actual personal
expectation of privacy?
(2) Objective privacy: Is society prepared to recognize the privacy as
reasonable?
(3) Officer must be in a place he/she has a legal right to be
What If Scenario
What if there was no objective privacy prong to determine a reasonable
expectation of privacy? How would the Court determine reasonableness for
privacy?
See Assignments 1 & 3
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IV. The Third Party Doctrine
Learning Objective 5: Understand and appreciate that the Fourth Amendment doesn’t
protect information voluntarily conveyed to a third party, even though some of these third
parties provide services essential to our quality of life.
Media Tool
“The Data Question: Should the Third-Party Records Doctrine Be Revisited?”
http://www.abajournal.com/magazine/article/the_data_question_should_the_third-
party_records_doctrine_be_revisited/
o Debate as to whether the third-party doctrine should be revisited in light of
new technology.
o Discussion: Have students take one side or the other regarding the debate
and discuss the topic.
A. The third party doctrine
1. Assumption of risk theory
a. False friends
b. Companies who provide essential services
c. Internet social networks
B. Essential services companies
2. Banks and telephone companies
3. Trash
a. Third party doctrine applies to all
Media Tool
“Spygate Lawsuit Accuses NSA of Unconstitutional ‘Dragnet Electronic
Surveillance’”
http://www.wired.com/threatlevel/2013/07/spygate-dragnet-lawsuit/
o Article regarding lawsuit claiming that the NSA is participating in
unconstitutional spying.
o Discussion: Discuss whether the “dragnet electronic surveillance”
described in the article is a search for purposes of the Fourth
Amendment. If the students believe it is a search, should the NSA
be required to meet the “particularity requirement” described in the
article?
C. Electronic surveillance. There’s no reasonable expectation of privacy in
statements that include the following elements:
2. Statements are made to and recorded by undercover government agents.
See Assignment 1
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3. Individuals who made the statements don’t know they revealed them to
undercover agents and that agents were recording the statements.
V.
VI. Searches in the Digital Age
Learning Objective 6: Appreciate the SCOTUS’s difficult job of balancing government
power to control crime with individual liberty and privacy in the Digital Age. Know that
SCOTUS has yet to decide if there is a reasonable expectation of privacy in some
common forms of communication, such as text messages and emails.
Learning Objective 7: Understand that property is seized whenever the government
meaningfully interferes with an individual’s possession of something. Appreciate the
unique challenges of defining “property,” such as files on a computer, in the Digital Age.
A. Thermal imaging
1. U.S. v. Jones
C. E-mail content
1. State v. Patino
VII. Seizures of Property
Learning Objective 7: Understand that property is seized whenever the government
meaningfully interferes with an individual’s possession of something. Appreciate the
unique challenges of defining “property,” such as files on a computer, in the Digital Age.
A. Seizures of property are defined as “some meaningful interference” with an
individual’s “possession” of property.
B. Are the files located on a computer “property?”
1. U.S. v. Ganias
3. U.S. v. Otero
Lecture Notes
Crime control depends on information, but that information usually comes from
reluctant sources. As long as officers can see and hear information that is also available to
the general public, they may use it without running afoul of the Fourth Amendment. The
Fourth Amendment enters the picture when officials rely on involuntary methods to
gather information: searches and seizures, interrogation, and identification procedures.
There are searches and seizures that go beyond law enforcement needs. These special
needs searches and seizures include protecting officers from armed suspects, preventing
drunk driving, protecting the property of detained suspects from loss or damage,
Class Discussion/Activity
Have students define the Digital Age and relevant technological forms
of communication and inherent challenges from fourth amendment
judicial lens. Discuss what students propose.
protecting officials from lawsuits, and detecting drug use among students and employees.
Fourth Amendment analysis follows three steps based on answering three questions
in the following order: (1) Was the law enforcement action a “search” or a “seizure”? If
it was not, the Fourth Amendment is not involved at all, and the analysis ends. (2) If the
action was a search or a seizure, was it reasonable? If it was, the inquiry ends because
the Fourth Amendment bans only unreasonable searches and seizures. (3) If the action
was an unreasonable search, does the Fourth Amendment ban its use as evidence?
The Fourth Amendment was created to make sure the government does not use illegal
methods to get evidence in two kinds of cases prominent in British and American
colonial history: government operations of the British Crown, and colonial governors, to
enforce sedition and customs laws, not ordinary crimes. The Crown used writs of
assistance and general warrants that essentially gave officials the authority to search or
seize anyone, at anytime, anywhere. The Fourth Amendment was aimed at limiting
If government actions do not invade a reasonable expectation of privacy, the Fourth
Amendment does not apply to the actions. They are left to the discretionary judgments of
individual officers based on their training and experience in the field. In its decision in
Katz v. U.S. (1967), the Supreme Court adopted the “privacy doctrine,” which held that
“The Fourth Amendment protects people, not places” and created a two-prong test for
analyzing the defendant’s expectations of privacy: did he or she actually have an
expectation of privacy (subjective privacy) and was it objectively reasonable (objective
privacy). Since that decision, the Court has addressed the reasonable expectation of
privacy issue in several significant cases involving such things as bank records, electronic
The “third party doctrine” holds that the Fourth Amendment does not prohibit
obtaining information by a third party. This rule applies to false friends, companies who
provide essential services, and internet social networks. “False friend” undercover agents
are not prohibited by the Fourth Amendment, whether or not they use electronic
surveillance. However, the Court has ruled that use of technologies such as thermal
imaging and GPS tracking do constitute Fourth Amendment searches. Furthermore, the
The Fourth amendment consists of seizures of persons and property. SCOTUS
defines seizure of property as “some meaningful interference” with an individual’s
“possession” of property. In 2009 the courts recognized that the hard drive of a computer
was akin to a residence in terms of privacy of information.
Key Terms
writs of assistance: A writ issued by the English Crown at the beginning of a
monarch’s reign and that extend throughput the monarch’s life. The writ allowed
royal officers total discretion to fill in the names and places of people to be searched
and property to be seized. (p. 70)
trespass doctrine: The Fourth Amendment doctrine that requires physical intrusions
into a “constitutionally protected area” to qualify as a search. (p. 77)
constitutionally protected areas: Include only persons and places named in the
Fourth Amendment—houses, papers, and effects (personal stuff). (p.77)
reasonable expectation of privacy doctrine: The Fourth Amendment protects
anything that a person seeks to preserve as private; even an area accessible to the
public may be constitutionally protected. (p. 78)
reasonable expectation of privacy test: Criteria established by the Court to
determine when a reasonable expectation of privacy exist. Includes a subjective and
objective component. (p. 78)
Assignments
1. Have students investigate the means by which police gain access to a suspect’s
records of cell phone numbers called and received. How do police deal with text
messages and emails? Obviously, criminals are using cell phones, text messages, and
emails to plan and commit crimes. How does the Fourth Amendment apply to these
types of technologies? In what do suspects have a reasonable expectation of privacy?
2. Have students research how dogs are used in searches. What is the protocol the police
follow to bring a dog on the scene of a traffic stop or other situation? Why are dogs
called in? How are they trained and how do they respond? Many local police
3. Have students find a Supreme Court case that deals with a Fourth Amendment issue.
Identify the three-step process used in the case and determine whether each part of the
4. Have students research what kinds of technology are available that law enforcement
agencies have access to that are not readily available? The Supreme Court has held
