Illegal Search

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 The federal courts are split over whether the police must obtain a search warrant before secretly attaching a Global Positiong System device under someone’s car.  The issue is whether the Fourth Amendment of the U.S. Constitution’s protection against unreasonable searches and seizures covers a device that records a suspect’s movements for days, weeks, or months without any need for a police officer or drug task force agent to follow the suspect.  Traditionally, the courts have held that the Fourth amendment does not cover the trailing of a suspect because a citizen has no expectations of privacy for actions exposed to public view.

With the explosion of technology to track someone’s movement by GPS or cell phone, how do the court’s apply Fourth Amendment privacy rights in the 21st century?

The D.C. Circuit held on August 6 , 2010  that a warrant is needed for prolonged GPS surveillance, recognizing People v. Weaver from New York and limiting Knotts. [This is a highly important decision. Every criminal and constitutional lawyer needs to read it.] United States v. Maynard, 2010 U.S. App. LEXIS 16417 (D.C.Cir. August 6, 2010): Thanks to the Fourth Amendment for this clip. Here is the full commenatary on this case.Continue Reading Courts Split Over GPs Surveillance

On March 19th 2010 , the Tennessee Supreme Court decided State v. Talley. The issue was whether an owner of a condominium has a reasonable expectation of privacy in the commonly owned hallway of the complex. The Fourth Amendment of the U.S. Constitution and Article I, section 7 of the Tennessee Constitution protect against warrantless search and seizures, including the curtilage of the home, which is defined as any area adjacent to a residence in which an individual can reasonably expect privacy. For example ,s storage shed or detached garage would be a curtilage of a house.

The Sixth Circuit Court of Appeals enunciated a bright-line rule in United States v. Carriger that officers may not enter the common areas of a locked building without a warrant due to the expectation of privacy that only the resident and other residents and their invited guests would have access to the common areas. It appears that the Sixth Circuit, along with several State Supreme Courts, follows this bright-line rule. 

In contrast, the Tennessee Supreme Court held in Talley that the totality of the circumstances should control. The deciding factors are whether the defendant owns the property or has a possessory interest in it, is legitimately on the premises, has the right to exclude others from that place, has shown a subjective expectation that the place would be free from governmental invasion, and took normal precautions to maintain his privacy. These factors were first used by courts in Tennessee in 1982. The Second, Fifth, Eighth, Ninth, and Eleventh Circuits all appear to use the same totality of the circumstances factors. 

Although state courts within a particular federal district may consider what the lower federal courts have decided, the state courts are not required to follow those decisions.   The result? Depending on what state you live in, and perhaps whether the charges are filed in state or federal court, you may or may not have a right to privacy in these secured common areas. This so called split of authority among the circuits will only be resolved when the United States Supreme Court takes a case and finally decides for all of us what the Constitutional right to privacy means in this context.  

Continue Reading Seach and Seizure Issue at the Tennessee Supreme Court