Chapter 5 - §2. Elements for exclusion

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§2. Elements for exclusion

Generally, evidence may be subject to exclusion if it was obtained in violation of the Fourth Amendment. Evidence is obtained in violation of the Fourth Amendment if (1) it was discovered or obtained by a "search" or "seizure" and (2) that search or seizure was "unreasonable."

§2.1. Action must amount to search or seizure. For evidence to be subject to exclusion under the Fourth Amendment, the evidence must have been obtained as a result of a search or a seizure. If neither event occurred, the exclusionary rule does not apply.

1. When search occurs. A search occurs under the Fourth Amendment when (1) a person's constitutionally protected area or reasonable expectation of privacy (i.e., matter protected from search) (2) is intruded on (3) by state action (i.e., the government). See Carpenter v. U.S. (2018) ___ U.S. ___, 138 S.Ct. 2206, 2213; Florida v. Jardines (2013) 569 U.S. 1, 5; U.S. v. Jones (2012) 565 U.S. 400, 404-06; Kyllo v. U.S. (2001) 533 U.S. 27, 33; U.S. v. Jacobsen (1984) 466 U.S. 109, 113; People v. Caro (2019) 7 Cal.5th 463, 496.

(1) Matter protected from search. Initially, the U.S. Supreme Court interpreted the term "search" in the Fourth Amendment as limited to protecting against any physical trespass on the particular areas described in the Amendment itself—"persons, houses, papers, and effects." See Jardines, 569 U.S. at 5; Jones, 565 U.S. at 404-05. This property-based approach to analyzing the Fourth Amendment, which prevented the government from physically intruding on an individual's private property to obtain information, existed until 1967 when the Court decided Katz v. U.S. (1967) 389 U.S. 347. In Katz, the Court held that "the Fourth Amendment protects people—and not simply 'areas'—against unreasonable searches and seizures." Katz, 389 U.S. at 353. Thus, as long as a person has a reasonable expectation of privacy in the item being searched, it is not required that the item itself falls within one of the constitutionally protected areas described in the Fourth Amendment. See id. (noting that property-based approach can no longer be regarded as controlling). While Katz seemed to effectively repudiate the property-based approach, several recent U.S. Supreme Court decisions have held that the reasonable-expectation-of-privacy test in Katz merely supplemented, but did not replace, the property-based approach. See Byrd v. U.S. (2018) ___ U.S. ___, 138 S.Ct. 1518, 1526; Jardines, 569 U.S. at 11; Jones, 565 U.S. at 407-09; U.S. v. Dixon (9th Cir.2020) 984 F.3d 814, 820. As a result, the Court has held that a search occurs either when a government actor obtains information by physically intruding on someone's person, paper, house, or effects or when a government actor intrudes on a person's reasonable expectation of privacy. See Grady v. North Carolina (2015) 575 U.S. 306, 308-09; Jardines, 569 U.S. at 11; Jones, 565 U.S. at 407-09; U.S. v. Thomas (9th Cir.2013) 726 F.3d 1086, 1092; see also Carpenter, ___ U.S. at ___, 138 S.Ct. at 2213-14 (no single approach definitively resolves what expectations of privacy are entitled to protection); Caskey, Expert Series: California Search and Seizure §§2:3, 2:4 (2021 ed.) (recognizing two tests for searches under Fourth Amendment). These two alternative and independent tests coexist and are not mutually exclusive.

Practice Tip

Although the traditional property-based approach appears to have been resurrected by the U.S. Supreme Court in Jardines and Jones, the Court continues to develop it. Thus, when seeking to suppress or exclude evidence obtained under these circumstances, examine and argue the issue under both the property-based test and the reasonable-expectation-of-privacy test.

(a) Constitutionally protected area. Under the property-based approach resurrected in Jardines and Jones, one's person, house (including the "curtilage," i.e., the area immediately surrounding and associated with the home), papers, and effects are considered constitutionally protected areas. See Collins v. Virginia (2018) ___ U.S. ___, 138 S.Ct. 1663, 1669-70; Jardines, 569 U.S. at 5-6; Jones, 565 U.S. at 406 & n.3. When these constitutionally protected areas are physically intruded on, a search within the meaning of the Fourth Amendment has occurred, and the person's reasonable expectation of privacy in those areas need not be evaluated. E.g., Grady, 575 U.S. at 307-09 (placing satellite monitoring device on D's person was search); Jardines, 569 U.S. at 5-7 (officer's entry into curtilage with drug dog was search; curtilage is part of home); Jones, 565 U.S. at 406 & n.3 (placing GPS tracker on automobile in public parking lot was search; it is beyond dispute that vehicle is an "effect"); see, e.g., Collins, ___ U.S. at ___, 138 S.Ct. at 1670-71 (officer's physical intrusion into curtilage was search); Dixon, 984 F.3d at 820 (officer's insertion of key into minivan's lock constituted a search; the lock was an "effect"); U.S. v. Ngumezi (9th Cir.2020) 980 F.3d 1285, 1288 (officer's act of opening passenger door to vehicle and leaning into the vehicle constituted a search); Thomas, 726 F.3d at 1092-93 (conceivable that directing drug dog to touch truck and toolbox to gather sensory information was unconstitutional trespass under Jardines). See "Intrusion on constitutionally protected area," ch. 5-A, §2.1.1(2)(a).

(b) Reasonable expectation of privacy. Under the doctrine introduced in Katz, a person must have a reasonable (or "legitimate") expectation of privacy in the place, object, or activity being intruded on before the activity will be deemed a search under the Fourth Amendment. Although recent U.S. Supreme Court precedent suggests that one always has a privacy interest in one's person, house, papers, or effects, courts have generally required that a defendant establish a reasonable expectation of privacy before finding a search occurred. See Jones, 565 U.S. at 405-06.

[1] Elements. A person has a reasonable expectation of privacy when (1) the person has exhibited a subjective expectation of privacy and (2) the expectation of privacy is one that society recognizes as reasonable. Katz, 389 U.S. at 361 (Harlan, J., concurring).

[a] Subjective expectation. To have a subjective (or actual) expectation of privacy in something, a person generally must show that she seeks to preserve that action, area, or property as private. U.S. v. Knotts (1983) 460 U.S. 276, 281; e.g., Bond v. U.S. (2000) 529 U.S. 334, 338 (D sought to preserve privacy by placing personal property in opaque duffel bag and placing bag in compartment of bus directly overhead); see Rakas v. Illinois (1978) 439 U.S. 128, 143 n.12 (D may have subjective expectation of privacy in activities conducted in home); U.S. v. Yang (9th Cir.2020) 958 F.3d 851, 858 (existence of privacy interest depends in part on whether individual's conduct shows that he sought to preserve something as private); see, e.g., California v. Ciraolo (1986) 476 U.S. 207, 211 (D sought to preserve privacy by placing backyard marijuana crop behind ten-foot privacy fence); Katz, 389 U.S. at 351-52 (D sought to preserve privacy by using phone booth to place call in order to keep conversation safe from others' "uninvited ear").

[b] Expectation objectively reasonable. The Fourth Amendment protects only an expectation of privacy that is objectively reasonable, meaning one that society is prepared to recognize as reasonable. Jones, 565 U.S. at 407-08; Kyllo, 533 U.S. at 33; Smith v. Maryland (1979) 442 U.S. 735, 740; People v. Robles (2000) 23 Cal.4th 789, 794-95; People v. Pride (4th Dist.2019) 31 Cal.App.5th 133, 139; People v. Magee (1st Dist.2011) 194 Cal.App.4th 178, 183-84; see Carpenter, ___ U.S. at ___, 138 S.Ct. at 2213; Yang, 958 F.3d at 858. Courts will look to societal norms when determining whether this requirement is met. See, e.g., Minnesota v. Olson (1990) 495 U.S. 91, 98-100 (discussing society's understanding of overnight guest's expectations about privacy in host's home).

[2] Totality of the circumstances. Whether one's expectation of privacy is "reasonable" is a question of law, and the court will generally examine the "totality of the circumstances" to determine if the person has shown a subjective expectation of privacy that society would view as legitimate. See, e.g., Samson v. California (2006) 547 U.S. 843, 852 (totality of the circumstances established parolee did not have legitimate expectation of privacy); Magee, 194 Cal.App.4th at 187 (totality of the circumstances established D was avoiding police, not paying social call); People v. Tolliver (3d Dist.2008) 160 Cal.App.4th 1231, 1239 (totality of the circumstances established D purposefully distanced himself from item and thus had no legitimate expectation of privacy). Among the factors considered in making this determination are whether the person (1) has a possessory interest in the thing seized or place searched, (2) has the right to exclude others from that thing or place, (3) has exhibited a subjective expectation that it would remain free from governmental invasion, (4) took normal precautions to maintain his privacy, and (5) was legitimately on the premises. In re Rudy F. (2d Dist.2004) 117 Cal.App.4th 1124, 1132.

[3] Examples. Courts have examined a number of things and places to determine whether a reasonable expectation of privacy exists, including several items and areas that would fall within a constitutionally protected area. See "Constitutionally protected area," ch. 5-A, §2.1.1(1)(a). The following are examples of when a reasonable expectation of privacy was found and not found to exist.

[a] Reasonable expectation of privacy exists.

• One's own person, including parts of the body not knowingly exposed to public view, such as the area under the fingernails. See Cupp v. Murphy (1973) 412 U.S. 291, 295. This includes a person's bodily fluids, body cavities, what a person is carrying inside her clothing, and what a person is carrying

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