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.[T]heFourth Amendment has drawn a firm line at the entrance to the home.Police are not allowed to conduct warrantless surveillance of a suspect shome from a vantage point inside the curtilage.However, Fourth Amendmentprotection afforded the home does not necessarily extend to the property line;only the  curtilage  i.e.,  the land immediately surrounding and associated16with the home  is protected by the Fourth Amendment.The area that liesbeyond the boundary of the curtilage is called an  open field. Open fields aretreated like public places.Police do not need any Fourth Amendment justifica-tion to enter an open field, although their presence constitutes a trespass under17property law.In United States v.Dunn, the Supreme Court held that no searchoccurred when police entered a field enclosed by stock fences and lookedinside the open doors of a barn, which was located outside the curtilage.TheCourt stated that  there is no constitutional difference between police observa-tions conducted while in a public place and while standing in an open field.Consequently, when police conduct their surveillance while standing in anopen field, the suspect has no Fourth Amendment grounds for complaint, even18if the matter surveilled is the interior of the suspect s home.C.Information Voluntarily Conveyed to a Third Party1.Conversations between the Suspect and a Police InformantThe Fourth Amendment does not protect a wrongdoer whose trusted con-19fidant turns out to be a police informant.In Hoffa v.United States, JamesHoffa, president of the International Brotherhood of Teamsters, was underinvestigation for endeavoring to bribe members of the jury at another trial.Federal authorities worked out a deal with Edward Partin, a local teamsterofficial, to cooperate with the government.Partin attended numerous meetingswith Hoffa and other union officials in Hoffa s hotel suite and reported what heheard to the authorities.Hoffa was convicted of jury tampering, largely on thestrength of Partin s testimony.Hoffa appealed, claiming that the government s16Review § 4.14 supra.17488 U.S.445, 109 S.Ct.693, 102 L.Ed.2d 835 (1989).See also Oliver v.United States,466 U.S.170, 104 S.Ct.1735, 80 L.Ed.2d 214 (1984) (holding that no search occurredwhen police entered private property with No Trespassing signs to observe marijuana plantsin an  open field that were not visible from outside the property).18People v.Oynes, supra note 12 (holding that law enforcement officer did not perform asearch when he viewed the interior of the defendant s home through binoculars, whilestanding in an open field); State v.Kennedy, supra note 12 (same).19385 U.S.293, 302, 87 S.Ct.408, 413, 17 L.Ed.2d 374 (1966) (holding that individuals takethe risk that person to whom they are speaking will report what was said to the authorities). 272 CONSTITUTIONAL LAW § 5.3use of a secret informant to listen to his conversations inside his own hotelsuite violated the Fourth Amendment.The Supreme Court sided with the gov-ernment.Although Hoffa s hotel suite was a location protected by the FourthAmendment, his conversations with Partin were not.Partin was not a trespass-ing eavesdropper.He  was in the suite by invitation, and every conversationwhich he heard was either directed to him or knowingly carried on in his pres-ence. The Fourth Amendment does not protect  a wrongdoer s misplacedbelief that a person to whom he voluntarily confides his wrongdoing will notreveal it. Hoffa knowingly took this risk.Defendants have no constitutionallyprotected privacy interest in information they knowingly disclose to a thirdparty.This principle is known as the Hoffa doctrine.2.Information Contained in Records and Files in the Hands ofa Third PartyIn our information era, information is power and today a greater wealth ofinformation is available to the police than ever before.Bank records, credit cardrecords, employment records, financial records, telephone and Internet serviceprovider records, insurance records, car rental records, electricity bills youname it all this information can be relevant to a criminal investigation, and20none of it is protected by the Fourth Amendment.The Hoffa doctrine has beenextended beyond false confidants.A defendant forfeits Fourth Amendment pro-tection in any information that is knowingly revealed to a third party, even thoughit is revealed for a limited purpose and on the assumption that the third party21will keep the information confidential.In United States v.Miller, the SupremeCourt ruled that a depositor has no Fourth Amendment protection in his bankrecords because the information is known to the bank. The depositor takes therisk, in revealing his affairs to another, that the information will be conveyed bythat person to the Government. The Court repeated this message in Maryland22v.Smith, holding that the attachment of a pen register to a phone line to recordthe telephone numbers dialed from the suspect s phone did not violate the FourthAmendment because this information was available to the telephone company.The Court stated that because people  know that they must convey numericalinformation to the phone company, they cannot  harbor any general expecta-tion that the numbers they dial will remain secret.20United States v.Miller, 425 U.S.435, 96 S.Ct.1619, 48 L.Ed.2d.71 (1976) (bank records);Smith v.Maryland, 442 U.S.735, 99 S.Ct.2577, 61 L.Ed.2d 220 (1979) (numbers dialedfrom subscriber s telephone); United States v.Payner, 447 U.S.727, 100 S.Ct.2439, 65L.Ed.2d 468 (1980) (financial records in hands of bank); Couch v.United States, 409 U.S.322, 93 S.Ct.611, 34 L.Ed.2d 548 (1973) (tax records turned over to accountant); UnitedStates v.Hamilton, 434 F.Supp.2d 974 (D.Or.2006) (employment records and utilitiescompany subscriber and power consumption information).See also generally, Daniel J.Sokolove, Digital Dossiers and the Dissipation of Fourth Amendment Privacy, 75 S.CAL.L.REV.1083 (2002).21Supra note 20.22Supra note 20. § 5.4 LAWS GOVERNING POLICE SURVEILLANCE 273It does not follow from the fact that records in the hands of a third partycarry no Fourth Amendment protection that the third party must voluntarilyturn them over to the police.The police will need to obtain a subpoena if thethird party refuses.However, the requirements for issuance of a subpoena aremuch less stringent than for a search warrant.Police do not have to establishprobable cause to believe that records contain evidence of criminal activity.Thismakes records in the hands of a third party accessible to police early in theirinvestigation, before they have developed probable cause for a search warrant.Figure 5.2Application of the Fourth Amendment to Technologically Assisted SurveillanceSurveillance Activity Fourth Amendment/Statutory RequirementsUse of surveillance devices, such as flashlights, tele- Nonescopes, tracking devices, video surveillance cameras,helicopters, etc.to observe activities in open viewEmployment of sense-enhancing devices, not in Search warrantgeneral public use, to acquire information aboutactivities inside a home not visible from outsideInterception of wire, electronic, or oral communica- Generally requires ations with a device wiretap orderSurreptitious audio or video surveillance of contacts Nonebetween the suspect and a cooperating informant§ 5.4 Application of the Katz Standard toTechnologically Assisted Surveillance: AnOverviewAdvances in technology have equipped the police with powerful toolsto conduct surveillance [ Pobierz caÅ‚ość w formacie PDF ]

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