Sapp Midterm Rewrite Question 1

Did a warrantless search of the tent occur? Sniffer Dogs First, we will look at whether the use of sniffer dogs constituted a search. Under Katz, in order to be protected by the fourth amendment it must be shown that D had an expectation of privacy that society is ready to accept as reasonable ( Katz ). It is clear that D utilized the tent as a residence and placed it in an area that is mostly shielded from public view, therefore he likely had an expectation of privacy. That said, the true issue falls on whether it is reasonable to have an expectation of privacy in an unsecured, makeshift tent in a public park. On one hand, the fourth amendment protects people and not places and since homes are given the upmost protection under the fourth amendment and D considers the tent his home, his expectation of privacy could be deemed reasonable. Alternatively, an unpermitted tent in a park, which is a public place, is distinguishable from a home or apartment in which the resident has some form of ownership interest or ability to exclude because D does not have the right to exclude others from the area and therefore might not be have a reasonable expectation of privacy in the tent. ( Byrd ). Additionally, it could be argued that the tent was set up in an open field. There is no reasonable expectation of privacy in open fields and, even though the test was set up to shield D from public view, under Oliver, steps taken to protect privacy, here building the makeshift tent, does not establish a reasonable expectation of privacy in an open field. Therefore, under Oliver the court could find that the Fourth Amendment did not apply to D’s tent. However, D might argue that his case is distinguishable because the court in Oliver stated that one reason for not protecting open fields was that they are not the setting for intimate activities and here, D is using the tent for the intimate purpose of living there and that the tent is a home that does not fall under the open field rule in Oliver . However, even if D is deemed to have a reasonable expectation of privacy in the tent, under the exposed only contraband exception, a binary search that only determines whether contraband is present is not a search. as there is no reasonable expectation of privacy in contraband. Since the sniffer dog did nothing more than alert to the presence of V’s scent in the tent, the initial use of the sniffer dog is not a search under Katz . ( Place and Caballes ). Under the Jones , a search occurs when there is a physical trespass on a person, house, paper, or effect committed by a state actor with the intent to gather information. Here, if the court deems the tent a home, we must look to whether the area immediately surrounding the home is curtilage of the home since at the time that the sniffer dogs where used they had not physically entered or touched the tent. In determining whether something is within the curtilage of the home, courts look at the proximity of the item to the home whether it was within an enclosure surrounding the home, here it was not as there was not enclosure, the nature of the use and steps taken to protect the item from public observation ( Dunn ). Here, given the fact that the cops were in the area immediately surrounding the tent, which was used frequently to enter and exit and placed in a secluded part of the park to shield it from public view, the court could argue that this is of the home curtilage. If the area immediately surrounding the area is deemed to be a curtilage, then the police trespassed with the intent of gaining information regarding V’s whereabouts. Under the Jones framework, entering onto

property and using investigative techniques, like sniffer dogs, does constitute a search. ( Jardines ). Therefore, if the area surrounding the tent is deemed to be curtilage of D’s home, then the use of sniffer dogs would constitute a warrantless search. That said, since the tent was not authorized to be in the park which is public property, it is arguably not a part of D’s home and therefore it is not subject to Jardines . If the court did find that the use of the sniff dog constitutes a search under Jardines , analysis would then turn to whether an exception to the warrant requirement applied. Here, a likely argument would be that there was an exigent circumstance and that when the dog led the cops to the tent while following V’s scent, they had to follow the dog and that the urgent need to find V made getting a warrant impossible since she might be moved or the scent could get weaker in the time it would take to get a warrant. Entry into the tent Assuming that the cops deemed the use of the sniffer dog to not be a search or deemed it to be justified under exigency, the next issue is whether the cops may lawfully enter into the tent. Under Jones , a search occurs when a state actor trespasses into a home with the intent to gather information. Here, assuming the tent is considered a home, the officers entered the tent without a warrant and in doing so trespassed and did so with the intent of gathering information regarding V’s whereabouts. This means that under Jones the court would deem this a search. If it is deemed a warrantless search, we must look at whether the search was reasonable. Under Place , the positive alert from the sniffer dog was sufficient to give officers probable cause to believe that V was in the tent. While searches of homes without a warrant are deemed per se unconstitutional absent an exception, here, police could argue that the search was justified by exigent circumstances as they were attempting to protect an occupant, here V, from imminent future harm and that getting a warrant was not possible given the urgent situations. ( Brigham City ). That said, D will likely argue that there was no exigency as the cops the scope of the emergency aid exception is narrow and only protects against imminent harm and here there was no indication that any occupant was in danger other than the presence of V's scent. Manipulation of the Sleeping Bag and the Towel (Discovery of knife) Assuming that the entry is deemed constitutional, the third issue is whether the warrantless manipulation of the items within the tent was a constitutional search. If the entry is deemed constitutional based on the exigent circumstance of administering emergency aid, then that exigency expires as soon as the officers become aware of the fact that V is not in the tent since the scope of exigency is limited to the exigency itself, here that was only to administer aid to V, therefore when V was not present the search would be required to stop.. Alternatively if the exigency is deemed to have expired, the government might argue the sleeping bag and towel in the tent were able to be manipulated as they were was in public view. However, D will likely argue that there was not probable cause regarding the incriminating nature of the items and therefore there was no implied license to manipulate them. ( Hicks ).

cops were present at the scene and were restricting access to the car and the area and therefore the cart was not readily movable. Did the cops search and seize the cart by placing a GPS tracker in the cart? Under Jones , if the cops placed a GPS device with the intent to gain information, then a search has occurred. Here, the cops place a GPS device in the cart with the intent to gain information and therefore committed a warrantless search of the cart. The government may argue that there is no reasonable expectation of privacy in short-term movement and therefore placing the GPS didn’t violate the fourth amendment. ( Jones ). The govern could also argue that the short duration in which the tracking occurred, only four hours, is drastically different then the 28 days in Jones , and therefore Jones is not applicable to Under Karo , an item is seized when the cops meaningly interfere with someone’s possessory interest in a piece of property. D will likely argue that by placing a tracker in the cart the police meaningfully interfered with his possession of the cart. Alternatively the government could argue that D had no possessory interest in the cart at the time that the GPS was placed. As seen in Karo, if D did not have a possessory interest to violate at the time that the GPS was placed then there was no seizure. An argument could be made that when the cart was left in a public park with no attempt to protect its contents, it was abandoned and therefore there was no possessory interest to violate and therefore no seizure. Alternatively, D will likely state that by tying the cart to a tree near his home he maintained a possessory interest which the cops interfered with when they placed the GPS without a warrant. Even if the court deems this action an unlawful seizure, the government could argue that subsequent tracking of D is still admissible since the GPS gave no more information than what a cop would be able to see using visual surveillance and therefore D’s movements with the cart are not protected by the fourth amendment at all. ( Knotts ). Was the entry into the warehouse a search? The entry to into the warehouse was likely not a search under Jones or Katz since the warehouse is not a person, home, paper, or effect and in homeless shelters and other communal living situations have there is a reduced expectation of privacy. If the court did deem the warehouse a home, then the cop’s entry into the warehouse would be a trespass and thus a search under Jones . Even though it isn’t D’s home, he would still have standing to exclude all evidence found in the warehouse under target theory which allows a defendant to seek exclusion of any illegally obtained evidence, regardless of where it is found. Was D seized? D was undoubtedly seized when the cops approached him with guns drawn and he submitted to the show of authority. Although they did not have a warrant, the court will likely had sufficient probable cause to arrest him given the fact that he was founding rummaging through a pile of clothes which contained V’s clothing and the sniffer dog alerted to his tent.

If D’s argument was accepted by the court and the manipulation was deemed unconstitutional, the issue would then become whether the knife would be excluded under the exclusionary rule. Since the knife would not be subject to in inevitable discovery exception as the fact that there was sufficient probable cause to get a warrant cannot be used to justify inevitable discovery, nor would it fall under any of the other exceptions, it would likely be excluded If the court accepted D’s argument and found the search that found the knife unconstitutional, the subsequent CSI search would likely be found unconstitutional as well resulting in the exclusion of all of the other bloody utensils as fruit of the poisonous tree since the second search and all evidence found in it would be a direct result of the illegal first police action. Exclusionary Rule Therefore, the additional bloody utensils would also likely be excluded under the exclusionary rule. If the court did deem the search of the cart to be constitutional, the defendant might argue that it is fruit of the poisonous tree based on the unconstitutional CSI search. The government could argue that the discovery of the finger is admissible under the attenuation exclusionary exception since the search of the cart was far removed from the CSI search and therefore the police misconduct did not extend to the search of the cart. ( Wong Sun ). Alternatively, if the court accepts D’s argument, the bloody finger would likely be excluded under the exclusionary rule