JurisdictionNorth Carolina

§ 6.04. Post-Katz "Search" Jurisprudence: An Overview73

[A] What Has Katz Wrought?

Katz was decided during the peak of the Warren Court's so-called "criminal procedure revolution." By the time the Court began to interpret Katz with some regularity, however, Earl Warren and various others members of the Katz Court had retired and been replaced by more "crime control"-oriented justices. As a consequence, Katz has not had the impact on law enforcement that civil libertarians desired or police departments feared.

As will be seen in the remaining sections of this chapter, more often than not, the Supreme Court has ruled that controversial police investigative techniques—for example, use of undercover agents to acquire information, trespassing into open fields, aerial surveillance of the backyards of homes, use of dogs to sniff for contraband in public places, inspection of garbage, and use of some electronic tracking devices—fall outside the scope of the Fourth Amendment, i.e., no "search" has occurred. Indeed, many postKatz rulings, although ostensibly based on reasonable-expectation-of-privacy grounds, have reached the same outcome one would expect from applying pre-Katz property-rights trespass analysis. And, at times, the Court has used language in its opinions reminiscent of the pre-Katz era.

That said, Fourth Amendment "search" law might be at an important crossroad. Justice Harlan observed in Katz that the trespass doctrine represented "bad physics as well as bad law." The remarkable technological developments of recent years make that observation far more relevant today. The Court, therefore, has sought, albeit cautiously, to place some constitutional limits on the use of modern and future sense-enhancing technology.74 Ironically, it has done so most recently by returning to pre-Katz property-rights trespass doctrine.75

In terms of reasonable-expectation-of-privacy analysis, the following summary is possible.

[1] Subjective Prong

In Supreme Court Fourth Amendment "search" jurisprudence, the Court has more often than not found that the Fourth Amendment claimant possessed an expectation of privacy, was willing to assume that he did, or simply moved to the objective prong without significant discussion of the subjective factor.76

However, on occasion the Court has suggested that the claimant's subjective expectation was not, or might not have been, present. In one case,77 the Court did not seek to determine the defendant's subjective expectations, but rather expressed doubt that people "in general" possess a subjective expectation of the sort claimed by the defendant. In another case,78 the Court distinguished between a subjective "intent" or "hope" for privacy (which the Court conceded the defendant "clearly" possessed) and a subjective "expectation" (which the Court said was "not entirely clear" from the circumstances).

[2] Objective Prong

Most "search" litigation has focused on the objective component of Justice Harlan's Katz test. At least three interrelated factors have proved particularly important in "objective prong" analysis. First, the site or nature of the property inspected. Although Justice Stewart observed in Katz that the Fourth Amendment "protects people, not places," in fact the extent to which a person has a reasonable expectation of privacy is significantly tied to the place where the police activity occurred or the citizen is located, and/or the nature of the property being inspected. For example, "open fields" fall outside the protection of the Fourth Amendment, but the "curtilage" of a person's home is entitled to somewhat greater protection, and activities...

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