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Show Fourth amendment guarantee on reasonable search prompting new techniques in law enforcement Modem surveillance and investigation investi-gation techniques are fueling a long-standing debate in the legal profession over the definition of the Fourth Amendment's guarantee against unreasonable searches and seizures, says a Brigham Young University law professor. "The fundamental question facing fac-ing us is 'when do you have a search?' and perhaps equally troubling, 'How do you know if a search is unreasonable'?" Richard G. Wilkins, associate professor of law at BYU's J. Reuben Clark Law School, writes in this month's issue of the Vanderbilt Law Review. Information gathering through aerial photographs and satellite imagery, im-agery, personal observations of a residential back yard from the top of a telephone pole or high hill, and the use of telescopes or highly sensitive sen-sitive and unobtrusive electronic equipment to gather information are some activities that could violate the Fourth Amendment depending on several factors, he says. In his article, Wilkins reviews historical approaches to the Fourth Amendment and recent U.S. Supreme Sup-reme Court decisions in cases involving in-volving questions of governmental searches and seizures. "Historically, what constitutes a search has gone through various changes," he says. "In the early years, about 100 years ago or so, a search was clearly defined as a physical phy-sical or trespassing intrusion. But with the introduction of wiretaps and the like, people could see the old definition needed to be redefined." rede-fined." The issue is important, notes Wilkins, because "searches" made by government agents (excluding most searches of automobiles) are usually improper unless authorized in advance by a warrant. It wasn't until 1967, in Katz, vs. United States, that the Supreme Court concluded people had a constitutional con-stitutional right to a "reasonable expectation" of privacy that physical phy-sical intrusion upon a protected place wasn't the only consideration in Fourth Amendment cases. In Katz, the justices said an occupant of a public phone booth had been subjected to an illegal search when FBI agents attached an electronic listening and recording record-ing device to the booth's exterior. Government attorneys asserted a search had not taken place because be-cause the booth wasn't a "constitutionally "consti-tutionally protected area," and because be-cause the surveillance was accomplished accom-plished without physically penetrating penet-rating the telephone booth itself. The Supreme Court stated the Fourth Amendment "protects people, not places," and that the FBI had infringed upon a person's "reasonable expectation of privacy" priva-cy" while using a public, enclosed phone booth. While Katz provides a better test than relying on simple physical intrusion. in-trusion. It's still too vague, states Wilkins. "Trying to define a "reasonable expectation of privacy" has come to depend on hundreds of factors. What's reasonable for me and what's reasonable for you may not be reasonable for someone else," In spite of these seemingly similar simi-lar cases resulting in different outcomes, out-comes, Wilkins believes the Supreme Sup-reme Court has, over the years, firmly suggested there is a limit to the range of factors possible with the Katz analysis. "The Supreme Court has been consistent by analyzing the place or context of a governmental intrusion, intru-sion, the nature of the intrusion itself it-self and the object of the surveillance. surveill-ance. These three implicit, often inter-related, scales are used to judge the merit of a Fourth Amendment Amend-ment claim," Wilkins says. The more constitutionally protected pro-tected the place is, such as a home versus an open field, then the more likely you are to have had an unconstitutional un-constitutional search, he says. In each case, the governmental surveillance was placed in the context con-text of where it occurred, whether there was a constitutionally offensive offen-sive intrusion into that place, and what was obtained as a result of the surveillance, Wilkins explains. "Fourth Amendment cases no longer turn upon whether a thumbtack thumb-tack physically penetrates a protected pro-tected enclave," said Wilkins. "What I'm saying in my article is that you still look at place and intrusion in-trusion in terms of personal privacy, priva-cy, and then you add on the extra element of what it is you're seizing seiz-ing what's the nature of the stuff you're after. Place and intrusion are still relevant factors, and that's the old test which people felt was discredited by Katz. I'm saying it's not discredited the focus has simply changed. If the Supreme Court and lower federal courts were to explicitly adopt this multi-factor analysis, says Wilkins, Fourth Amendment "search" issues would become substantially less hazy. he says. "Unfortunately, Katz itself it-self gives no clear indication of how the lower courts are to draw that line." Without any formal guidance, the courts have wandered ail over the place, says Wilkins, and the issue has become fertile ground for constitutional arguments by those who claim to be victims of unreasonable, un-reasonable, unconstitutional searches. sear-ches. In one case, charges of an illegal search arose when officers made an arrest after raiding a marijuana patch growing in an open field. The plaintiff claimed since fences surrounded sur-rounded the property and "No Trespassing" signs were posted, he had a reasonable expectation of privacy that had been violated. The courts disagreed, saying open fields lack the protection given to private homes and the intimate inti-mate activity associated with them. In another case, officers were tipped off that a marijuana patch was being cultivated in a residential residen-tial neighborhood. Since they were unable to observe the home's back yard because of an outer eight-foot fence and an inner 10-foot fence, the officers flew a small airplane over the yard at a low altitude and positively identified marijuana plants under cultivation. A warrant was obtained based on this eyewitness account and police seized the plants. Although the state trial court denied a defense de-fense motion to suppress the marijuana mari-juana as the fruit of an unreasonable unreason-able search, the California Court of Appeals reversed the decision. The marijuana grower had a "reasonable expectation of privacy," priva-cy," said the appeals court, because be-cause of the two high fences around his back yard property. |