Faulkner University

THOMAS GOODE JONES

SCHOOL OF LAW

Legal Success Program

Day 3

Process, Precision and Problems

Analysis Review

• State action?• Warrant?• Search?

– REP?• Subjective

• Objective

• Reasonable?

More pieces please!

• Just like in White there is a question as to what exactly Katz has done to precedent.

• Oliver deals with the “open fields” doctrine and finds that it is still good law. i.e. still part of the analysis.

• What are “open fields?”– Footnote 11 says it need not be a

field or open to be an open field. HA!

– Maybe it is easier to figure out what it isn’t!

• It isn’t a house

• It isn’t the area immediately around the house – curtilage

• It is everywhere else.

So where

does this stuff fit?

• Think about where in our analysis this logically falls.

• Justice Holmes suggests two options. (pg 115).– Not a “person, house, paper or effect.”– Not “unreasonable.”

• It deals with areas that the law is declaring what the public will recognize as reasonable.

• It falls under the second prong in the definition of REP.

• So for easy reference we know that if a “search” takes place in an open field, then we do not have REP; and if we do not have REP, then we do not have a search; and if we do not have a search, then we do not have a 4th Amendment issue.

• Do you feel like a lawyer?

What happened to my prongs?• Under REP we still have two prongs, a subjective

and objective portion. We learn from Oliver that the second portion is becoming more difficult to satisfy.

• Isn’t it strange that no matter how much a person expresses his expectation of privacy it still may be one that society will not recognize as reasonable. WOW!

• Remember, you must have both prongs to move on!

The puzzle after Oliver

• State action?• Warrant?• Search?

– REP Katz• Subjective (More)• Objective (More)

– Whether the gov’t intrusion infringes upon the personal and societal values protected by the 4th Amendment? Oliver

» Homes – Yes» Curtilage – Yes» Open fields – No

• Reasonable?

California v. Ciraolo (1986)• Police are unable to see into Ciraolo’s

yard from the street because of two high fences so they fly a private plane over his house and observe with their eyes pot growing.

• The California court finds a 4th Amendment violation because the police unlawfully looked into the curtilage.

• U.S. Supreme Court reverses by saying no expectation of privacy from above, even in the curtilage.

• Which prong is missing?– prong #2 in the REP test, the objective

test.

What new pieces does Ciraolo add?• Notice the emphasis on the location of the police officers.

– Private plane (pg. 125)

– Within navigable airspace

– Viewing with the naked eye

• It seems to be important whether a regular person could see it.– Perched on top of a truck. (Pg. 126)

– Perched in a double-decker bus

• What if the police officer used binoculars?– Is that different than other listening devices that amplify sound?

– Is it something that a regular citizen could obtain?

• All of these inquires seem to play some role in determining the objective portion of the REP test.

All of the pieces. . . for now.

• State action?• Warrant?• Search?

– REP?• Subjective manifestation?• Objective acceptance?

– Intrusion into private life?

» Home» Curtilage» Open field

– Could others have seen or heard? Ciraolo

• Reasonable?

Time to pick teams!

Within your team select people to play the following roles:

1 - Lawyer: Direct Examination

2 - Lawyer: Cross Examination

3 - Witness for Direct Examination

4 - Lawyer: For Closing Arguments

EVERYONE ELSE -- Co-Counsel

What to ask

• Ask questions that elicit information critical in determining if there is a 4th Amendment violation. – Use your puzzle to organize what you ask to

add facts to the law. Without the right facts the law does not apply.

• Arguments should tie everything together to show whether the pieces fit or not.

My home is my castle!

Ned is self absorbed. Even though he is 5’8” 275 lbs. he imagines himself as trim and cut. As a result of this delusion, he enjoys spending his free time watching television naked. Ned’s house is several hundred yards from the road and as a result Ned does not have any coverings on his windows. It is possible if all of the lights in the house are on to see into the house from the street at night. One Saturday night while watching a college football game, Ned, overcome with joy, does his own version of a touchdown celebration dance. Officer Buck, a prudish female police officer walks by and sees Ned running, jumping up and down, and screaming. Believing that Ned was in danger she walks onto the property, climbs over a three-foot fence, moves a step ladder, that she finds in the yard, next to a window steps up three steps and takes a better look in. She witnesses Ned in all his glory and realizes he is not in danger. She, nevertheless disgusted, arrests him for public indecency.

• Evens represent Ned, Odds represent the state. Talk amongst yourselves. Any 4th Amendment issues?

Notes:

See you Tomorrow

NOTE:

We will not meet at the law school. We will be in the Harris Business

Building.