The Fourth Amendment Comes Into Play
Video Transcribed: I am Brian Jackson, I am a Lawyer in Tulsa. I would like to talk to you guys about the expectation of privacy that underlies the Fourth Amendment. What is the expectation of privacy?
Essentially, this is the rule that was developed in the Katz case that is usually used to underpin when you’re talking about a search that’s covered by the Fourth Amendment. In other words, searches that would require either probable cause and, or a search warrant in most cases in order to be conducted. And what I want to talk to you about is some surprising things that are actually not protected by the Fourth Amendment.
One particular one that I think would surprise you is your call details. And this has been the law for quite a while. There’s an old set of cases called the Pen Register cases that actually cover this exact situation. And essentially what the holding in the Pen Register cases was, is that because you voluntarily share the numbers that you dial with the telephone company, you do not have a reasonable expectation of privacy in those numbers.
Now I want to be clear. I’m not talking about the content of your phone call. That’s called wiretapping, and that’s a different subject entirely. And that does require a warrant. What I’m talking about is the numbers that you dial, that appear on your telephone bill when you get your bill at the end of the month.
Those numbers, you do not have an expectation of privacy. The technical term for that is called traffic analysis. But essentially it’s who you called and how long you talked to them, and who called you and how long you talked to them. That is not protected by the Fourth Amendment, interestingly enough.
Some other things that are not protected by the Fourth Amendment would be things that are open, open on the land you own if it’s not within what’s called the curtilage of your home. The curtilage of your home is your house plus the immediate outbuildings, like garages, things like that around the home.
But if you have large open fields, like a lot of people in the more rural areas tend to own larger tracks of land, if you have something that’s sitting out open in that area, then if it’s visible it is not protected by the Fourth Amendment. There are some cases involving flyovers and things like that, where that has been found to not be something that’s within the scope of where you have a reasonable expectation of privacy.
Another interesting one, a dog sniff of your car. Now I want to be clear about this. This is your car, not your house. House comes under another rule. A dog sniff of your car is not considered a search for the purposes of the Fourth Amendment.
The only protection you have from this is that the police are required to make detention of your vehicle while you are stopped for a traffic stop, which has to be of a reasonable duration. But if they are holding you by the side of the road on an extensive traffic violation, and they want to run a canine up and down the car, that’s okay. And they don’t need probable cause to do it.
Now that’s gotten complicated in recent years by certain marijuana laws as to whether or not if the dog alerts it’s probable cause to search your vehicle. But as far as running that canine up and down the car, they do not need a warrant or probable cause to do that. That is an exception. And you do not have a reasonable expectation of privacy as to the smell of your car.
Another area that is outside of the Fourth Amendment is what’s called the plain view exception. Now, this is an exception to the usual requirement for probable cause in a warrant, because basically what it is is if something is sitting out where you can see it.
So for example, if you’re driving down the roadway and you have a baggie of mysterious powder sitting on the console between the driver’s and the passenger’s seat. If the police stop you and see that, they can seize it to determine if it’s contraband or not. That is if it’s something illegal. And you have no expectation of privacy in that. And you have no right to demand that the cop have probable cause or a warrant to seize that bag of powder. So that’s another exception.
I’ve talked in the past about airport searches. If you go into the secure area of an airport, you do not have a reasonable expectation of privacy in whatever you carry through that security gate. Now, another place that I think is really important to understand, if you’re sitting here looking up videos on the law, is the courthouse.
In Oklahoma, if you go into the secure area, if you go into the courthouse, you are subject to search. Now, many Oklahoma courts have metal detectors up, although many also do not. But the other thing to understand is that if police or I should say if courthouse security decides for whatever reason that they want to search your personal belongings, they can do so. And they can do so without a warrant based on your presence in the courthouse because it’s a sensitive area.
So what does that mean to you? Well, obviously don’t carry something you’re not supposed to have into the courthouse. And I would add that in the courthouse, you can add to a list of stuff you’re not supposed to have in addition to the obvious things like drugs, needles, things like that, you can add weapons and anything that could potentially be a weapon. It’s not just a firearm. It could also include knives. I know the Tulsa County courthouse bands spiky key chains, brass knuckles, anything that would make for a heavier fist.
Anything that could be weaponized could be considered a weapon and therefore prohibited in the courthouse. Pepper spray, tasers, things like that, can’t have it. If you get caught with it, you’re looking down the barrel of a felony. And you do not have a reasonable expectation of privacy there. If they want to search for you, they can.
Those are just some good examples of that. But it’s important to understand that there are certain situations where that normal expectation of privacy that’s attendant to the Fourth Amendment and your rights against unreasonable search and seizure may not apply to you in a given circumstance.
Another situation to be aware of, if you’re talking about private property and private security, the Fourth Amendment is incorporated against the state … Well, it’s against the federal government and incorporated against the states through the Fourteenth Amendment. It does not apply to private parties acting under their own power. Now, if they are acting as an agent of the state, then it may apply to them.
But for example, if you go into a club and get searched by the bouncer as a condition of going into the club, that is not a search for the purposes of the Fourth Amendment, because it’s a private party. And essentially they’re doing it as a condition of being present in the club.
So again, be aware of that. And if you’re going into one of these places that have private security, and you have something on you you know you’re not supposed to have, or anything questionable, then you definitely don’t want to try to go in there because they can search you. And they do not need probable cause.