This presentation was given to a class on the problems with the current Katz analysis. I also proposed certain revisions to the analysis using the Fifth Amendment's takings clause jurisprudence.

1. EXPANDING THE
FOURTH AMENDMENT
Nuggets of Hope

2. Introduction to the solution
 Review 4th amendment cases
 Katz analysis
 Applying Katz
 Property Analysis
 How some cases have misapplied Katz Main
holding “4th amendment applies to people”
 Being creative with other doctrines and trying
to incorporate them into our current privacy
protections

3. Implied and Expressed
 4th amendment expressly states that “persons”
are protected
 But, the only protections have been implied

4. Exclusionary Rule
 Judicially created remedy
 Balance
 Deterring government misconduct v.
 Benefit to society
 Only applied when we want to
 Easy to ignore

5. Development of Fourth Amendment
Jurisprudence
 Property - Olmstead
 Katz – Reasonableness test
 Cases applying Katz
 Dunn- Curtilage
 Oliver – Open Fields

6. Olmstead
 Large International Bootlegging operation- about 20 cases of
liquor a day
 It involved the employment of not less than 50 persons, of
 two sea-going vessels
 smaller vessels for coastwise transportation to the state of
Washington
 large underground cache for storage and a number of smaller
caches in that city,.
 In a bad month sales amounted to $176,000; the aggregate for a
year must have exceeded $2,000,000.
 Police placed wire outside of home
 Small wires were inserted along the ordinary telephone wires from the
residences of four of the petitioners and those leading from the chief
office.
 The insertions were made without trespass upon any property of the
defendants.

7. Olmstead
 Analysis
 Because the wire was not placed on his
home, his property rights were never
violated
 “The intervening wires are not part of his house or
office, any more than are the highways along which
they are stretched”
 Nuggets
 But The left the door open for changes and were
even worried about government intrusions, they
just didn’t think this was an intrusion

8. Katz
 Facts
 Katz was a profession gambler
 ‘Give me Duquesne minus 7 for a nickel.'
 Does lots of betting on the pay phone placing out of
state bets to bookers
 Feds decide they are going to place a wire on the
booth and bust him

9. Katz
 Analysis
 4th amendment applies to people not places
 “For the Fourth Amendment protects people, not
places”
 Nuggets
 Because privacy protections apply to Katz the phone
was a protected space that required a warrant for the
government to intrude upon

10. After Katz –
Protections
started to go away
Oliver - Open
fields
Dunn – Curtilage

11. Dunn – Curtilage
 Facts
 The cops went through a
bunch of locked gates
 Did it more then once
 Peered through a barn
 With another horse fence
around it
 Used a flashlight to see
what looked like a Meth
Lab
 Then they came back
again with a warrant
This is the idea of a home that the
curtilage doctrine things of

12. Dunn – Curtilage
 Analysis
 Using the current test only area directly
surrounding the home that harbors similar
activities as a home are protected
 “’The Fourth Amendment protects the home and
its curtilage, but not the “open fields.” We
explained that curtilage is “the area to which
extends the intimate activity associated with the
‘sanctity of a man's home and the privacies of
life.’ ” Nuggets

13. Reversion back
to property rights analysis
 3rd party doctrine
 Smith v Maryland
 See through walls
 Kyllo
 GPS
 Jones

14. 3rd party doctrine
Smith v Maryland
 Facts
 Dude robbed a lady, and stalked her
 Cops found the car and a person matching the
guys description and got the plates
 “The next day, the telephone company, at police
request, installed a pen register at its central
offices to record the numbers dialed from the
telephone at petitioner's home”

15. 3rd party doctrine
Smith v Maryland
 Analysis
 Katz – subjective interest in privacy
 First, we doubt that people in general entertain any actual
expectation of privacy in the numbers they dial.
 Katz – Objective interest – “Interest Society
recognizes”
 Second, even if petitioner did harbor some subjective
expectation that the phone numbers he dialed would remain
private, this expectation is not “one that society is prepared
to recognize as ‘reasonable
 Property too - Nuggets
 Since the pen register was installed on telephone company
property at the telephone company's central offices,
petitioner obviously cannot claim that his “property” was
invaded or that police intruded into a “constitutionally
protected area.”

16. Kyllo – see through walls
Justice SCALIA delivered the opinion of the Court
 Facts
 Dude was growing some bomb digity in his
house
 Probably purple urkle or raspberry kush – popular
in OR
 Cops got smart to the operation – from a
snitch
 So they used this Agema Thermovision 210
thermal imager to scan the triplex
 He was way hotter then the other areas
 Then they also looked at his utility bills
 Then they got a warrant to search his home

17. Evidence from Kyllo

18. Kyllo
 Analysis - Nuggets
 “We have since decoupled violation of a person's Fourth
Amendment rights from trespassory violation of his property,
but the lawfulness of warrantless visual surveillance of a home
has still been preserved.”
 Just because it might not be really seeing through walls we
have to take the long approach to protecting privacy
 “The Government uses a device that is not in general public use, to explore
details of the home that would previously have been unknowable without
physical intrusion, the surveillance is a “search” and is presumptively
unreasonable without a warrant.”

19. Jones – GPS
Justice SCALIA delivered the opinion of the Court
 Facts
 Dude owned a night club, and sold some coke on
the side, ok not really he sold coke, and owned a
night club on the side
 FBI and DC police caught on, probably a snitch
too
 They installed a GPS device on the undercarriage
of a car registered to his wife while it was in a
public lot
 They found 5 Ks coke and 50 Gs of crack

20. Jones - GPS
 Analysis - Nuggets
 “The Government physically occupied private property for
the purpose of obtaining information. We have no doubt
that such a physical intrusion would have been
considered a “search” within the meaning of the
Fourth Amendment when it was adopted.”
 “Jones's Fourth Amendment rights do not rise or fall
with the Katz formulation. At bottom, we must “assur[e]
preservation of that degree of privacy against
government that existed when the Fourth Amendment
was adopted.”
 “[W]e [do not] believe that Katz, by holding that the Fourth
Amendment protects persons and their private
conversations, was intended to withdraw any of the
protection which the Amendment extends to the
home.. “

21. Solution
 Use both Katz and property rights analysis
 Case law that support this
 Expanding property rights and a subjective-
objective analysis of privacy to everything we use
or lease
 Like; data, FB, Twitter, etc…
 Use our Nuggets of hope to regain protections

22. Cases that are creative with both
Katz and property rights analysis
 Jones
 Physically occupied protected space
 Concurrence – used Katz
 Kyllo
 Breached the privacy interest of the home by the
functional equivalent of a physical invasion, and
since the device is not something used by the public it
is unreasonable
 Smith
 Did not physically interfere with defendant and the
space is not seen by society as protected space

23. What’s the best Reason to be
creative?

24. Justice Scalia is Legal Picasso
Jones - The text of the Fourth Amendment reflects its close connection to property, since otherwise it would have referred
simply to “the right of the people to be secure against unreasonable searches and seizures”; the phrase “in their persons,
houses, papers, and effects” would have been superfluous.
Kyllo - It would be quite absurd to characterize their thought processes as “searches,” regardless of whether they inferred
(rightly) that petitioner was growing marijuana in his house, or (wrongly) that “the lady of the house [was taking] her daily
sauna and bath.”

25. Expanding Protections
 Need to find ways to expand part two of Katz
 Use other doctrines to help determine
reasonableness
 Be creative
 Don’t get caught up in current doctrine
 When we look at Katz too narrowly we lose
protection

26. We need a new test
 Expanding privacy to the air
 Physical trespass
 Already in doctrine
 Metaphoric trespass
 A new way to look at reasonableness

27. Traditional Property Rights Test
 Property Rights
 Is this a traditional property right
 Was the trespass physical?
 If it is then there was a physical trespass and the
search or seizure is unlawful. US v. Jones
 Was the trespass Metaphoric?
 Was the trespass onto something that is the
property of the person, but not physical property
 Go to part 3 of the Katz analysis to determine if
there was a trespass by the standards of society

28. Katz Analysis
1. KNOWINGLY EXPOSE TO PUBLIC
 IF NO – THEN MOVE TO NEXT PART
 IF YES – THEN NO EXPECTATION TO PRIVACY AND SEARCH
FALLS INTO PLAIN VIEW DOCTRINE
2. SEEKS TO PRESERVE PRIVACY - Subjective on
person
 IF YES MOVE TO THE NEXT PART
 IF NO - – THEN NO EXPECTATION TO PRIVACY
3. IS THIS AN AREA WHERE SOCIETY WOULD THINK
PRIVACY IS REASONABLE? Objective based
on society
 For Metaphoric Trespass

29. Metaphoric Trespass to Air
Space
 For air above property - Causby
 Was the flight directly over the landowner’s property with no
other legitimate purpose beside surveillance?
 If it was then there may have been an intrusion and you should ask
the next question.
 Is this land that is being used in some legal way by the
defendant?
 If the land is being used for some legal purpose then go to the final
determinative factor?
 If not being used in some other legal way, then no expectation of
privacy
 Is this property air space that is frequently used at a low
altitude?
 If it is frequently used in this way then there is no reasonable
expectation of privacy.
 If the property is frequently used at low altitudes then there is likely an
expectation of privacy.
 But if it were so low that anyone could see it if the jumped or stood on top
of his or her car, then this would not be a reasonable. Riley

30. Trying it out
 Riley Facts
 Helicopter flew 400 feet above defendant’s
property just to see the weed
 The back yard had a greenhouse – “growing
weed”- and probably also used to drink beer
 The trailer was in rural Pasco County, Florida
 Petitioner’s brief addressed this
 (29) “Navigable airspace” means airspace above the
minimum altitudes of flight prescribed by regulations
issued under this chapter, and shall include airspace
needed to insure safety in take-off and landing of
aircraft.

31. Analysis with New Test on Riley

32. Trying it out
 Ciraolo Facts
 He had a fence up shielding the weed plants from
the street
 Officers identified marijuana plants 8 feet to 10
feet in height growing in a 15- by 25-foot plot in
respondent's yard; they photographed the area
with a standard 35mm camera.
 Lived in Santa Clara near San Jose and
Cupertino

33. Analysis of Ciraolo with new
test
 The cops flew over just to see the weed
 The area was like that in Riley, but they
probably drank lattes and vino
 There was probably fly overs all the time so at
anytime someone could have looked down
and seen the weed; and
 The fence was the only thing hiding the weed
 Could have seen it on Double decker bus – LOL

34. Santa Clara

35. What do you think?
 Crazy?
 Brilliant? Of course ;)
 At least something to think about
 Biggest problem is Scalia –
 He just doesn’t like weed
 Probably associates it hippies,
 And, with having to yell at the kids on his grass

36. We have a duty to fix this
 Using our Nuggets
 Using the tools law school has given
us
 Using the skills we came here with
 We are all good at advocating
 Now lets find a way change things