Souter: Dog sniffs = fallible & impermissibly enhance human perception Ginsburg: Dog changes lawful traffic stop to adversarial exercise Embarrassing on public road & slippery slope to allow here – imagine impact on public’s sense of security & privacy Drug Testing: No search to field-test white powder w/o warrant b/c only Jacobsen – discloses whether coke or not Seizure b/c destroyed powder, but permissible b/c tiny amount destroyed & clearly contraband Urine testing = search b/c (1) could uncover innocent secret info Skinner – like illnesses, pregnancy, etc. & (2) intrusive to obtain TECH-ENHANCED: (64) Rule: Tech-enhanced obtaining info that’s otherwise unobtainable from lawful area are presumptively unreasonable unless tech is generally available to public Overflight: Overflight: Cops hovered 400’ over D’s prop to see info hidden from Riley – ground view Plurality: No search b/c not legally prohibited, no injury to prop, not observing intimate activities in O’Connor: Proper reasonableness test = whether tech enhancement is commonly available to public, not whether for public to obtain possible THIS IS THE TEST! Brennan: O’Connor’s test = proper, but burden on gov to show surveillance here so frequent that privacy expectation unreasonable b/c obviously infrequent Blackmun: O’Connor’s test = proper, but burden on gov to show frequent public access Overflight + Photos: Mere enhancement of human vision via fancy camera doesn’t Dow – implicate 4A, & no privacy interest in area between buildings Powell: b/c magnification gave into not otherwise “Search” obtainable Thermal Imaging: (64) Thermal imaging of home = search b/c (1) is presumptively Kyllo home – protected, (2) can’t limit thermal imaging to exclude intimate details, & (3) thermal imager isn’t generally available to public Irrelevant that could find out info other ways b/c that doesn’t make this method legal Stevens: This is mere observation of home’s exterior find this info out otherwise, like by melting snow or smells
Souter: Dog sniffs = fallible & impermissibly enhance human perception Ginsburg: Dog changes lawful traffic stop to adversarial exercise Embarrassing on public road & slippery slope to allow here – imagine impact on public’s sense of security & privacy Drug Testing: Jacobsen – No search to field-test white powder w/o warrant b/c only discloses whether coke or not Seizure b/c destroyed powder, but permissible b/c tiny amount destroyed & clearly contraband Skinner – Urine testing = search b/c (1) could uncover innocent secret info like illnesses, pregnancy, etc. & (2) intrusive to obtain TECH-ENHANCED: (64) Rule: Tech-enhanced obtaining info that’s otherwise unobtainable from lawful area are presumptively unreasonable unless tech is generally available to public Overflight: Overflight: Riley – Cops hovered 400’ over D’s prop to see info hidden from ground view Plurality: No search b/c not legally prohibited, no injury to prop, not observing intimate activities in O’Connor: Proper reasonableness test = whether tech enhancement is commonly available to public, not whether possible for public to obtain THIS IS THE TEST! Brennan: O’Connor’s test = proper, but burden on gov to show surveillance here so frequent that privacy expectation unreasonable b/c obviously infrequent Blackmun: O’Connor’s test = proper, but burden on gov to show frequent public access Overflight + Photos: Dow – Mere enhancement of human vision via fancy camera doesn’t implicate 4A, & no privacy interest in area between buildings Powell: “Search” b/c magnification gave into not otherwise obtainable Thermal Imaging: (64) Kyllo – Thermal imaging of home = search b/c (1) home is presumptively protected, (2) can’t limit thermal imaging to exclude intimate details, & (3) thermal imager isn’t generally available to public Irrelevant that could find out info other ways b/c that doesn’t make this method legal Stevens: This is mere observation of home’s exterior find this info out otherwise, like by melting snow or smells
Criminal%20Procedure%20-%20Cheh%20-%20Fall%202011.docx