6.2: Critical Thinking

1. To what extent should constitutional standards governing searches in private spaces, such as our homes, as opposed to searches in public settings, such as airports, differ under the Fourth Amendment? Why? How should distinctions between private and public spaces be defined?
2. The founders of our country could never envision the world we live in today and the technological advancements which exist today. After reviewing the history and development of the 4th amendment, identify how technology has impacted the right to privacy and police searches.
3. Exclusionary Rule Questions: As we learned in this section, if evidence is obtained improperly, it will be excluded from trial. Unless the attorney provides an exception to the rule. In the following scenarios, identify if the evidence will be allowed into court or not, and why. Identify the exception to the exclusionary rule.
   1. EXAMPLE (1): The police illegally search D’s car and find drugs. Are the drugs admissible into evidence?
   2. EXAMPLE (2): The police conduct an illegal search of D’s home and find a map showing the location of a well-hidden, remotely located outdoor marijuana field. The police go to the field and seize the marijuana. Is the evidence admissible?
   3. EXAMPLE (3): The police conduct an illegal search of D’s home and find a map showing the location of an outdoor marijuana field located 50 feet behind the loading dock of a busy commercial strip. The police go to the field and seize the marijuana.
   4. EXAMPLE (4): Officer Brady illegally searches Donald’s barn and discovers documents identifying Donald as the culprit behind an internet scam. The next day a confidential informant e-mails Officer Brady the same documents.
   5. EXAMPLE (5): The police perform an illegal search of Fred’s residence and discover stolen goods. On the counter they find a notepad on which Fred wrote the following: Reminder - place newspaper ad “Computer stuff for sale; cheap and hot! Call Fred 555-1234.” Based on this, the police call the number and that leads them to more evidence against Fred.
   6. EXAMPLE (6): Officer Careful executes a search in accordance with a search warrant obtained from Judge Hatchet. Unknown to Officer Careful, Judge Hatchet issued the warrant after an incorrect finding of probable cause.
   7. EXAMPLE (7): Judge E. Doe issues a warrant based on Officer Ellay’s sworn testimony that he saw Al Bronco removing stolen shoes from his trunk and carrying them into his home in Big Town, California. The warrant is made out for “that property owned by Mr. Al Bronco in Big Town, California.” Unbeknownst to Judge E. Doe, Al owns several houses in Big Town, one in which his mother lives and the others which he rents out. Officer Ellay is aware of this and executes the search of the intended home.

Answers:

1. Example (1) – No. The drugs will be excluded as evidence in the case against D in accordance with the Exclusionary Rule.
2. Example (2) – No. Under the doctrine of "fruit of the poisonous tree," the marijuana will be excluded as evidence in the case against D as it stemmed directly from an illegal search.
3. Example (3) – Yes, the marijuana may be admitted as evidence by a court. Although the police were led to the field by information discovered during an illegal search, a court could find that discovery was inevitable, given the field's proximity to heavily used areas and the fact that the field was not well hidden. If discovery of the evidence was "inevitable", the evidence may be admitted, as it was not then the illegal search that caused the evidence to be found. “Inevitable” is a strong word, and to admit evidence under this exception, a court must find that police would have discovered the evidence whether or not they conducted the unreasonable search.
4. Example (4) - Yes, the documents are admissible. The documents are admissible as evidence because there was an independent source for the evidence besides the illegal search. If the police had an independent source of knowledge of the evidence aside from the fruits of the illegal search, then the doctrine will not exclude the discovered evidence.
5. Example (5) – No. The discovery was not inevitable as the ad never ran. It can not be used because there was no independent source of knowledge, and it was not “inevitable” discovery. The evidence will be excluded.
6. Example (6) – Yes, the evidence is admissible. “Good Faith Exception.” Although the search was illegal, the evidence is not tainted and does not fall under the Exclusionary Rule because Officer Careful acted in good faith upon the Judge’s finding. If otherwise relevant and admissible, the evidence may be considered.
7. Example (7) No. Because the warrant is not "precise on its face,” Officer Ellay’s search cannot be said to be in good faith and this exception to the Exclusionary Rule will not apply. Any evidence discovered from the search or stemming there from will be excluded.

4. In its 1979 decision in Smith v. Maryland, the Supreme Court ruled in favor of the government, observing that “this Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” The Smith ruling also made reference to another Fourth Amendment case decided three years earlier, United States v. Miller, that involved warrantless government access of a suspect’s bank records. In Miller, the Supreme Court had also found in favor of the government. Considering social media, if a suspect puts information about a crime on Facebook, does the officer need a search warrant to admit the information as evidence in a trial? Why or why not?
5. Imagine this scenario: You’re driving home. Police pull you over, allegedly for a traffic violation. After you provide your license and registration, the officer catches you off guard by asking: “Since you’ve got nothing to hide, you don’t mind unlocking your phone for me, do you?” Of course, you don’t want the officer to copy or rummage through all the private information on your phone. But they’ve got a badge and a gun, and you just want to go home. You comply. As he starts scrolling through your phone, he finds something interesting and says “what is this?” You immediately say give me my phone back, you can’t look at my phone anymore!” The officer arrests you and you are charged with a misdemeanor. In court, your attorney argues the evidence was illegally obtained and should be excluded. Why?