1. Describe the Fourth Amendment protections and the historical background of the Fourth Amendment.
    
2. Explain the significance of Katz v. United States in the development of the Fourth Amendment.
    
3. Explain why there is no constitutionally protected expectation of privacy in conversations with an informant or undercover officer, even when conducted in the home.
    
4. List out the requirements for a plain view search.
    
5. Describe the difference between curtilage and open fields, and the factors to consider in determining whether an area is curtilage or open fields. Compare the expectation of privacy for curtilage with the expectation of privacy for open fields.
    
6. Explain whether or not curtilage has an expectation of privacy from aerial surveillance.
    
7. Describe the expectation of privacy that is connected to public places, businesses, and abandoned property.
    
8. Differentiate between “show of authority” seizures and physical seizures, and encounters.

SUMMARY: The Fourth Amendment was intended to protect individuals against the type of dragnet searches and seizures that were carried out by British colonial authorities through the use of general warrants and writs of assistance. The Fourth Amendment effectively abolishes general warrants and writs of assistance by prohibiting unreasonable searches and seizures and by providing that no warrant shall issue but upon probable cause, particularly describing the place to be searched and the person or things to be seized. The Supreme Court, while expressing a preference for warrants, has recognized that it is reasonable in certain limited circumstances for the police to conduct warrantless searches.

The Supreme Court initially adopted a property rights or trespassory approach to the Fourth Amendment. This protected individuals against physical intrusions or trespasses into their persons, houses, papers, and effects. In 1967, in Katz v. United States, the Supreme Court rejected a property rights or trespassory approach and adopted a privacy test for application of the Fourth Amendment. Justice Harlan in his important concurring opinion in Katz established the test for an expectation of privacy. The question is whether an individual exhibits a personal (subjective) expectation of privacy and whether society (objectively) recognizes this expectation as reasonable.

An individual is considered to lack a reasonable expectation of privacy in those instances in which he or she turns information over to a third party or where an object or area is accessible to the public.

Commentators question whether the privacy-based approach has increased Fourth Amendment protections. For example, an individual “assumes the risk” that conversations with a government informant in and outside of the home will be overheard or recorded or transmitted to law enforcement authorities. Plain view permits the police to seize items in open fields and to conduct aerial surveillance of curtilage. There also is no expectation of privacy in public areas, in commercial businesses open to the public, or in abandoned objects and trash.

The Supreme Court did draw a firm line of protection at the home in Kyllo v. United States. The Court held that the government may not employ heat-sensing technology to obtain information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into the dwelling.

Fourth Amendment seizures of individuals must be based on factual grounds that constitute either probable cause or reasonable suspicion. A seizure may be accomplished by a physical restraint by a show of authority. The show of authority must lead a reasonable person to believe that he or she is not free to leave or to refuse to cooperate, and the individual must actually submit to police authority. The Supreme Court has recognized that not every interaction between the police and citizens constitutes a seizure. The police may engage in informal contacts or encounters without being required to meet the probable cause or reasonable suspicion standard. This provides the police with the flexibility to engage in criminal investigations without being required to satisfy the probable cause or reasonable suspicion requirements of the Fourth Amendment. The line between an encounter and a seizure at times may be difficult to determine. The police run the risk that an encounter will be viewed by a court as constituting a seizure and that any evidence that is uncovered will be excluded on the grounds that the police unreasonably detained a suspect.

In summary, in this chapter we reviewed the requirements for a Fourth Amendment search and a Fourth Amendment seizure. The Supreme Court has struck a balance in Fourth Amendment searches and seizures between the need for the police to detect and investigate crime and individuals’ expectation of privacy. Individuals have full Fourth Amendment protection in those areas, such as the home, that have an expectation of privacy that society views as reasonable. On the other hand, areas and objects in plain view do not enjoy an expectation of privacy, and the police are not required to obtain a warrant. These areas generally are accessible to the public or in the case of information or objects have been turned over to a third party. The Supreme Court requires the police to justify seizures on either probable cause or reasonable suspicion. The police, however, may engage in encounters and may question suspects so long as the suspect feels free to leave or to decline to cooperate with the police.

In the next three chapters, we discuss the requirements for a reasonable search and seizure under the Fourth Amendment. Chapter Thirteen covers reasonable suspicion “stops and frisks,” Chapter Fourteen discusses probable cause and arrests, and Chapter Fifteen addresses searches and seizures of property.