POPULAR GOVERNMENT

The Fourth Amendment, , and Law Enforcement

Robert L. Farb North Carolina appellate have upheld the constitutionality of checkpoints for driver’s licenses. BSERVER & O EWS / N LLEN A ARY G

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon , supported by Oath or affirmation and particularly describing the place to be searched and the persons or things to be seized. —U.S. Constitution, Amendment IV rivacy . . . the right to be free from between privacy and government without obtaining a search . He governmental interference . . . a authority under the Fourth Amendment, was convicted of gambling violations. Plaw enforcement officer’s authority establishing the basic test for deter- The appeal of his conviction to investigate . . . the government’s mining whether a person’s interest in eventually reached the U.S. Supreme interest in investigating conduct that is privacy is sufficient to warrant Fourth . The government argued that no not necessarily criminal—the Fourth Amendment protection.2 This and later search occurred because the FBI had not Amendment affects all these issues.1 cases decided by the Court—as well as physically penetrated the telephone The Fourth Amendment protects federal and state legislation that expands booth to listen to Katz’s conversations.4 people against unreasonable searches on the basic protections afforded by the The Court’s opinion, written by Justice and seizures by government authorities. Fourth Amendment—are the focus of Potter Stewart, rejected the govern- The U.S. Supreme Court, which must this article.3 ment’s argument. It said that the Fourth determine how the Fourth Amendment Amendment protects people, not places. applies in a wide range of contexts, has Reasonable Expectation of What a person knowingly exposes to sought to strike a balance between the public, even in his or her own home Privacy under the society’s interest in investigating or office, is not protected by the Fourth and individuals’ interests in maintaining Fourth Amendment Amendment. But what a person seeks their privacy against government intru- Charles Katz’s occupation was illegal to preserve as private, even in an area sion. The Fourth Amendment does not gambling. In February 1965 he was accessible to the public, may be constitu- apply to activities by a private person, using several telephones in a bank of tionally protected. The Court concluded no matter how unjustified, unless the public telephone booths on Sunset that the government’s activities in private person acts as an agent of govern- Boulevard in Los Angeles to conduct his ment officials or acts with their gambling business. The Federal Bureau participation or knowledge. of Investigation (FBI) learned of his The author is an Institute of Government One U.S. Supreme Court case, Katz activities and placed microphones and a faculty member who specializes in v. United States, has had a particularly tape recorder on the tops of the telephone and procedure. Contact him important impact on the relationship booths and recorded his conversations— at [email protected].

spring 2002 13 electronically listening to and recording with John Terry would lead to the U.S. forcibly stopping Terry by grabbing Katz’s conversations violated the privacy Supreme Court’s most significant ruling him, Detective McFadden seized on which he justifiably relied while using expanding a law enforcement officer’s him, and that in patting down the the telephone booth, and thus violated authority to investigate criminal activity. outer surfaces of Terry’s clothing, the Fourth Amendment. Detective McFadden, a officer McFadden searched him. The Court At least as significant as Justice Stew- for thirty-nine years and a detective recognized that both the seizure (the art’s opinion was Justice John Harlan’s for thirty-five years, had been patrolling forcible stop) and the search (the concurring opinion, which used the term downtown Cleveland for shoplifters frisk) were actions regulated by the “reasonable ” and and pickpockets for thirty years. His at- Fourth Amendment. explained its meaning. Justice Harlan tention was drawn to two men, Richard • The Court noted that if this case noted that the Court had ruled that an Chilton and John Terry, standing at an involved law enforcement conduct enclosed telephone booth is an area, like intersection. He later testified that “they subject to the Warrant Clause a home, where a person has a constitu- didn’t look right to me at the time.”6 (“no Warrants shall issue but upon tionally protected reasonable expectation McFadden decided to observe them probable cause . . .”) of the Fourth of privacy. He said that there is a two- from a distance of 300 to 400 feet. The Amendment, then the Court would fold requirement when determining if two men took turns walking past store have to determine whether probable there is Fourth Amendment protection: windows and looking into a particular cause existed to justify McFadden’s (1) a person must have demonstrated an one. Then they conferred briefly. They of Terry. To actual (subjective) expectation of repeated this ritual five or six times determine whether probable cause privacy; and (2) the expectation must be apiece—in all, making about a dozen was the appropriate standard, the one that society is prepared to recognize trips. A third man approached them, court used a balancing test: evalu- as reasonable. A person who enters a engaged them briefly in conversation, ating the officer’s need to search or telephone booth, shuts the door, and then walked away. Chilton and Terry seize against the invasion of privacy places a call, Justice Harlan continued, resumed their measured pacing, peering, that the search or seizure entailed.8 is entitled to assume that his or her and conferring. After about ten minutes, The Court decided that officer safety conversation is not being intercepted— they walked off together in the same outweighed the intrusion on a per the first test just stated. And al- direction as the third man. person’s freedom when frisked for though an enclosed telephone booth is McFadden now had become sus- weapons, and a standard less than accessible to the public at times, its picious that they were casing a store to probable cause was reasonable under occupant’s expectation of freedom from commit a robbery. He feared that they the Fourth Amendment’s general intrusion when inside the booth is one might have a gun. He followed the two proscription of unreasonable searches that society recognizes as reasonable— men and saw them stop in front of the and seizures. This standard became per the second test. Later Supreme Court store to talk to the same man with known in later cases as “reasonable cases have adopted the reasonable- whom they had conferred earlier. suspicion.”9 expectation-of-privacy analysis for McFadden approached them, identified • The Court determined that, in light determining whether people’s activities himself as a (he was in of McFadden’s experience as a law are protected from governmental intru- plain clothes), and asked for their names. enforcement officer, the information sion under the Fourth Amendment.5 When the men mumbled something in he possessed supported his frisk of response to his inquiries, McFadden Terry for weapons. Also, the Court grabbed Terry—spun him around so Government Actions Subject ruled, the scope of the frisk—patting that he and McFadden were facing the Terry’s outer clothing—was properly to the Fourth Amendment other two—and patted down the out- confined to what was necessary to The Katz test provides a starting point side of his clothing. He felt a pistol in learn whether he was armed. That is, for determining the extent of the Fourth the left breast pocket of Terry’s overcoat, McFadden did not conduct an Amendment’s protections: the amend- which he removed after securing all impermissible general exploratory ment applies when a person has a reason- three men. Terry was convicted of car- search for of criminal able expectation of privacy. Other court rying a concealed weapon. The appeal activity. decisions have developed rules detailing of his conviction eventually reached the how the Fourth Amendment regulates U.S. Supreme Court. As he had done in Katz v. United government conduct in specific situa- Chief Justice Earl Warren wrote the States, Justice Harlan wrote a significant tions. Those rules are the subject of this Court’s opinion in Terry v. Ohio, which concurring opinion. The Court’s opinion section. decided several significant issues:7 did not specifically address whether the forcible stop of McFadden was lawful. Street Encounters • Stopping and frisking are subject to Justice Harlan made clear his view, Little did Detective Martin McFadden the Fourth Amendment even though however, that an officer may forcibly know when he was patrolling down- those actions may not be as intrusive stop a person before frisking him or her town Cleveland, Ohio, on the afternoon as an or a full search of a for weapons, and the standard for that of October 31, 1963, that his encounter person. The Court found that in stop also is less than probable cause.

14 popular government When officers have lawfully stopped a vehicle, they may order both the driver and passengers out of it. To frisk an occupant, they need at least that the person is armed and presents a danger.

The Court in later cases recognized that diately surrounding the home, so officers are committing a criminal an officer may make a forcible stop of a intimately tied to the home itself that it trespass or even if the area is surrounded person or a vehicle on the basis of rea- deserves Fourth Amendment protection by a fence with no-trespassing signs.16 sonable suspicion of criminal activity.10 —for example, the area that includes However, a person may have a reason- buildings like an unattached garage, a able expectation of privacy in an The Home and Its Curtilage storage shed, and similar structures, if enclosed building located there.17 The U.S. Supreme Court has stated that they are relatively close to the dwelling Using devices to detect activity within the “physical entry of the home is the and serve the homeowner’s daily needs. a home. Officers suspected that chief evil against which the wording of Officers who enter the curtilage marijuana was being grown in Danny the Fourth Amendment is directed” and without a warrant, , or exigent Kyllo’s home. Growing marijuana that “searches and seizures inside a home circumstances conduct an impermissible indoors typically requires high-intensity without a warrant are presumptively search under the Fourth Amendment lamps. Officers parked their car on the unreasonable.”11 Thus a law enforcement except when they go to a house by using street near his home and—without officer may not enter a home without a the common entranceway (for example, obtaining a search warrant—used a warrant unless (1) the officer has con- a driveway or a sidewalk leading to a thermal imager to determine whether sent to enter or (2) exigent circumstances door) for a legitimate purpose, such as to the amount of heat emanating from the (a need for immediate action) justify question a in a criminal investi- home was consistent with the use of entering without consent or a warrant. gation. A person ordinarily expects a such lamps. The imager showed that the Entering a residence to arrest. Without variety of people to enter private prop- roof over the garage and a side wall of consent or exigent circumstances, an erty for any number of reasons. There- the home were relatively hot compared officer needs an to enter fore a person does not have a reasonable with the rest of the home and substan- the residence of a person to be arrested. expectation of privacy in the areas of tially warmer than neighboring homes. Without consent or exigent circum- private property commonly used by On the basis of this and other informa- stances, an officer who wants to enter those who come there.14 tion, the officers obtained a search the home of a third party to arrest a Entering areas outside the curtilage. warrant. In Kyllo v. United States, the person who does not live there must When officers are on private property U.S. Supreme Court ruled that using have a search warrant. An arrest war- outside the curtilage—for example, sense-enhancing technology to obtain rant is insufficient to enter a third when they are walking through fields or any information concerning the interior party’s home because it does not ade- woods—they are not conducting a of a home (in this case, the relative heat quately protect the third party’s Fourth search under the Fourth Amendment of various rooms) that could not have Amendment privacy interests.12 because the U.S. Supreme Court has been obtained without physical intrusion Entering the curtilage. People have a ruled that a person has no reasonable into a constitutionally protected area is reasonable expectation of privacy not expectation of privacy in the area out- a search under the Fourth Amendment only in their home but also in its curti- side the curtilage.15 The Fourth Amend- —at least when the technology is not in lage.13 The “curtilage” is the area imme- ment does not protect that area even if general public use.18 Thus the officers in

spring 2002 15 this case violated Kyllo’s Fourth Garbage placed for collection in an area Ordering the driver and passengers Amendment rights by using a thermal accessible to the public is not subject to out of a vehicle. According to the U.S. imager without first having obtained a an expectation of privacy that society Supreme Court, when officers have search warrant.19 recognizes as reasonable. lawfully stopped a vehicle, they may The Kyllo ruling makes clear that the order the driver and passengers out of it Court will likely consider to be a search Motor Vehicles without articulating any reason for the use of other technological instruments Stopping motor vehicles on a highway doing so.32 Using the Fourth Amend- as intrusive as a thermal imager to reveal or at a checkpoint. The U.S. Supreme ment’s balancing test, the Court concluded private matters within a home. It remains Court has ruled that an officer may not that the strong governmental interest in unclear whether the Court will rule stop a car traveling on a highway an officer’s protection from assault by differently if and when certain techno- simply to check the operator’s driver’s weapons that may be in a car outweighs logical instruments become widely used license. To stop a vehicle, an officer the minimum intrusion on drivers and by the general public.20 generally needs reasonable suspicion passengers when required to exit a car. Flying over a home and its curtilage. that the driver has violated a law.24 Searching a vehicle with probable Generally, aircraft is per- Using the Fourth Amendment’s balan- cause but no search warrant. When missible to help officers make observa- cing test from Terry v. Ohio, discussed officers have probable cause to search a tions and does not constitute a search earlier, the Court concluded that the vehicle for evidence of a crime, and the under the Fourth Amendment. For marginal contribution to highway safety vehicle is in a public place (that is, a example, officers do not conduct a resulting from this kind of license check place where a person does not have a search when they fly in lawful navigable cannot justify subjecting all vehicle reasonable expectation of privacy), they airspace over a home and its curtilage drivers to being stopped at the unbridled may seize the vehicle—whether it is and see with their unaided eyes marijuana discretion of law enforcement officers. moving or parked—without a search plants in a fenced-in yard. The U.S. However, in the same opinion, the warrant. Also, they may search it where Supreme Court has ruled that a person Court indicated that driver’s license they seized it or take it to a law enforce- does not have a reasonable expectation checkpoints would be constitutional.25 ment facility or another place and of privacy from observations from an A typical checkpoint is set up at a search it there.33 aircraft in public airspace at an altitude designated place on a highway, and all This legal principle is an exception to at which the public travels with suf- cars are stopped to check driver’s the general rule that officers may make ficient regularity—because any person licenses.26 Reasonable suspicion of a a warrantless search with probable flying in such airspace who looks down driver’s license violation, another traffic cause only when exigent circumstances can see what officers can see.21 However, violation, or criminal activity is not justify a failure to obtain a search officers’ actions may constitute a search, required to stop a car at the checkpoint. warrant—for example, when the evidence requiring appropriate justification— Most state appellate courts, including might disappear if they took the time to usually a search warrant—if they also North Carolina’s, have upheld such obtain a warrant. The U.S. Supreme use sophisticated cameras and the like checkpoints.27 Court and the North Carolina Supreme to see intimate activities within a home The U.S. Supreme Court also has Court have justified this principle on the or its curtilage that they could not see upheld the validity of checkpoints for ground that people have a lesser expec- unaided. impaired drivers.28 Using the Fourth tation of privacy in their vehicles than in Officers may fly aircraft at any Amendment’s balancing test, the Court their homes because government perva- altitude over open fields because, as concluded that the state’s interest in sively regulates vehicles.34 with areas outside the curtilage of his or combating impaired driving outweighs her home, a person does not have a the intrusion on motorists of being Government Conduct Subject reasonable expectation of privacy there. briefly stopped at these checkpoints. Sorting through garbage. The U.S. On the other hand, the Court has to Other Laws Supreme Court has ruled that people do ruled unconstitutional a vehicle check- Federal and state laws may go farther not have a reasonable expectation of point whose primary purpose is to than the floor established by the Fourth privacy in garbage that they have placed detect illegal drugs.29 The Court noted Amendment, applying, for example, to for collection on the curb in front of that it had approved checkpoints to deal private activities. The following sections their house.22 The Court reasoned that with highway safety or to police the highlight two areas covered by federal garbage left on or at the side of a public nation’s border.30 But if it approved a and state laws. street is readily accessible to scavengers checkpoint to detect illegal drugs, law and other members of the public. More- enforcement officers could establish Wiretapping and Eavesdropping over, people are aware when placing checkpoints for any conceivable law Wiretapping and eavesdropping are their trash for pickup by a third party— enforcement purpose.31 The Court’s pervasively regulated by federal and for example, sanitation workers—that application of the balancing test under state laws. Therefore most of this discus- these workers may sort through the the Fourth Amendment was resolved in sion is based on these laws.35 Although garbage or permit others, including law favor of an individual’s right to be free the Fourth Amendment is clearly enforcement officers, to do so.23 from governmental intrusion. implicated in many aspects of wire-

16 popular government Garbage placed at the curb for collection is fair game for law enforce- ment officers to search.

tapping and eavesdropping, there have Carolina law makes it unlawful to tape- assuming, of course, that a party to been relatively few Fourth Amendment record a telephone conversation in the communications did not give prior rulings because federal and state laws which one party to the conversation has consent to the use of the device there. are as restrictive as, and sometimes more given prior consent to its being tape- On the other hand, a person who restrictive than, the Fourth Amendment. recorded.39 For example, law enforce- secretly records an open city council These laws are quite complex, and this ment officers may tape-record (1) a meeting does not violate federal or discussion will attempt to cover only telephone conversation between them- state law because council members some of the basic issues.36 selves and a criminal suspect or (2) a and other speakers do not have a An important point to be made at telephone conversation between a reasonable expectation of privacy that the outset about these laws is that they government informant with a criminal their statements will not be recorded often apply to private people’s activities suspect when the informant has given by others. as well as governmental activities, prior consent. (However, a person’s As with telephone conversations, a whereas the Fourth Amendment applies Sixth Amendment right to counsel may law enforcement officer or a private only to the latter. Thus anyone who vio- bar this activity under certain circum- person does not violate federal or state lates these laws may be subject to crimi- stances.)40 Also, a private person may law when he or she surreptitiously tape- nal and civil penalties. tape-record a telephone conversation records a conversation with another Intercepting telephone conversations. between himself or herself and another person if one party to the conversation Generally, it is unlawful to use a device party to the conversation.41 However, a has given prior consent to the recording.44 to intercept a telephone conversation spouse may not install a device on a The U.S. Supreme Court and the North (as well as voice communications over telephone to tape-record his or her Carolina Supreme Court also have ruled pagers).37 The law applies not only to spouse’s telephone conversations with that a law enforcement officer’s conduct regular telephones but also to cellular third parties unless the other spouse has under these circumstances does not and cordless telephones—even though given prior consent.42 violate the Fourth Amendment because conversations on some of the latter may Using a device to intercept oral a person does not have a reasonable be intercepted by scanners and radios communication.It is illegal under federal expectation of privacy in a conversation that many people own and use. and state law to use a device to intercept with another person who happens to be North Carolina law enforcement an oral communication under circum- a law enforcement officer or an agent of officers may intercept telephone conver- stances in which a person has a reason- the officer.45 A person contemplating sations, but they must obtain a special able expectation of privacy. This is the criminal activity takes the risk that the court order from a designated court, same standard as the Fourth Amend- person with whom he or she is convers- and the requirements for obtaining the ment standard adopted in Katz v. United ing is an officer or someone who may court order are significantly more strin- States.43 Thus a person who places an report the conversation to an officer. gent than those for obtaining a search eavesdropping device in a bedroom to Intercepting or reading electronic mail warrant.38 listen to or to record oral communica- (e-mail). Officers may not intercept and However, neither federal nor North tions violates federal and state law— read an e-mail message during its

spring 2002 17 transmission without a special court expectation of privacy in his or her will continue to define the scope of order, as described earlier for interception bank records.55 The Court reasoned that, individual privacy and law enforcement of telephone conversations.46 However, in revealing his or her financial affairs authority. an officer does not need a special court to another, a bank customer takes the order once the mes- risk that the informa- sage has been trans- tion will be conveyed Notes mitted. If a message by that person or 1. Examples of the government’s interest in has been unopened institution to the gov- investigating conduct that is not necessarily for 180 days or less, ernment. However, criminal are workplace and school searches, only a search warrant the North Carolina discussed elsewhere in this issue of Popular is necessary to read General Assembly has Government; see pages 33 and 36. it.47 If a message has enacted legislation 2. Katz v. United States, 389 U.S. 347 (1967). 3. For a more detailed discussion of Fourth been opened, or if that requires law en- Amendment issues, see ROBERT L. FARB, it remains unopened forcement officers to ARREST, SEARCH, AND INVESTIGATION IN for more than 180 Neither federal nor North obtain appropriate NORTH CAROLINA (2d ed., Chapel Hill: Inst. days, then an officer legal process (a search of Gov’t, The Univ. of N.C. at Chapel Hill, may read the message Carolina law makes it unlawful warrant, a court or- 1993) and ROBERT L. FARB, 1997 SUPPLEMENT by obtaining a search to tape-record a telephone der, or a subpoena) to TO ARREST, SEARCH, AND INVESTIGATION IN warrant or, with obtain bank records.56 NORTH CAROLINA (Chapel Hill: Inst. of Gov’t, The Univ. of N.C. at Chapel Hill, 1998). notice to the recipient conversation in which one A U.S. Supreme A new edition of ARREST, SEARCH, AND of the message, by party to the conversation has Court case makes INVESTIGATION is expected in 2003. obtaining a subpoena clear that a person 4. The government’s argument relied on or a court order.48 given prior consent to its being does not have a Olmstead v. United States, 277 U.S. 438 The law allows de- tape-recorded. reasonable (1928), and Goldman v. United States, 316 layed notice to the expectation of U.S. 129 (1942). recipient under certain circumstances.49 privacy in his or her telephone records, 5. See, e.g., Oliver v. United States, 466 U.S. 170 (1984). Additional provisions allow a law including telephone numbers dialed 6. Terry v. Ohio, 392 U.S. 1, 5 (1968). 57 enforcement officer to obtain subscriber from or to a telephone. However, 7. Terry, 392 U.S. 1. information.50 Further, they sometimes Congress has enacted legislation that 8. The Court adopted the balancing test permit service providers to disclose requires law enforcement officers to from Camara v. Municipal Court, 387 U.S. information to officers voluntarily.51 obtain appropriate legal process to 523 (1967), which ruled that conducting a Conducting video surveillance. Non- obtain telephone records.58 Further, the routine building inspection without a warrant aural video surveillance (surveillance that North Carolina General Assembly has or consent violated the Fourth Amendment. As a result of that ruling, the North Carolina does not record oral communications) is enacted legislation requiring a law General Assembly enacted Section 15-27.2 of not regulated by federal or state wire- enforcement officer to obtain a court the NORTH CAROLINA GENERAL STATUTES tapping or eavesdropping laws.52 How- order to use a device that records (hereinafter G.S.), which requires an ever, video surveillance directed at places numbers dialed from or to a administrative inspection warrant to conduct where a person has a reasonable expec- telephone.59 such an inspection. tation of privacy is a search under the Many other records, such as personnel 9. United States v. Brignoni-Ponce, 422 Fourth Amendment, and usually a search or school records, are subject to federal U.S. 873 (1975). 10. Adams v. Williams, 407 U.S. 143 warrant is required to conduct the sur- and state laws regulating disclosure. (1972); United States v. Cortez, 449 U.S. 411 53 veillance. For example, officers need a The protections for those records are (1981). search warrant to place a nonaural discussed elsewhere in this issue of Popu- 11. Payton v. New York, 445 U.S. 573, video camera on a utility pole to record lar Government (see pages 33 and 36). 585–86 (1980). all activities in a person’s backyard, 12. See FARB, ARREST, SEARCH, AND INVESTI- when the backyard is surrounded by a GATION, at 48–52, and FARB, SUPPLEMENT, at 9. ten-foot-high fence.54 On the other Conclusion 13. See FARB, ARREST, SEARCH, AND INVESTIGATION, at 86–87. hand, a nonaural video camera directed This article has briefly surveyed some 14. See id. at 87. Officers who are at people on a public street or sidewalk privacy and law enforcement issues conducting a legitimate law enforcement to observe possible drug transactions involved with the Fourth Amendment function on private property are not violating does not implicate anyone’s reasonable and federal and state legislation. With North Carolina’s criminal trespass laws. See expectation of privacy and may be constant technological advances, debate FARB, ARREST, SEARCH, AND INVESTIGATION, at used without a search warrant or other will become more intense about the 117 n.99. legal authorization. proper balance between a person’s right 15. Oliver v. United States, 466 U.S. 170 (1984). to privacy and the government’s need to 16. See FARB, ARREST, SEARCH, AND Records in a Third Party’s Possession investigate crimes. These issues will be INVESTIGATION, at 87, 117 n.99. The U.S. Supreme Court has ruled that the subject of future court decisions and 17. State v. Tarantino, 322 N.C. 386, a person does not have a reasonable federal and state legislative activity that 368 S.E.2d 588 (1988).

18 popular government 18. Kyllo v. United States, 533 U.S. 27 32. Pennsylvania v. Mimms, 434 U.S. 106 226 S.E.2d 347 (1976); State v. Shaw, 103 (2001). (1977) (driver); Maryland v. Wilson, 518 U.S. N.C. App. 268, 404 S.E.2d 887 (1991). 19. If exigent circumstances exist, then a 408 (1997) (passengers). 43. 18 U.S.C.A. § 2510(2); G.S. 15A- search warrant is not required. For example, 33. State v. Isleib, 319 N.C. 634, 356 S.E.2d 286(17) (definition of “oral communication”). if a person is holding hostages within a home 573 (1987) (decided under both U.S. and See United States v. Turner, 209 F.3d 1198 in a life-threatening situation, officers may use North Carolina constitution); California v. (10th Cir. 2000); In re John Doe Trader sense-enhancing equipment if they believe it Carney, 471 U.S. 386 (1985); United States v. Number One, 894 F.2d 240 (7th Cir. 1990); will be useful in locating people in the home. Johns, 469 U.S. 478 (1985); Michigan v. Tyler v. Berodt, 877 F.2d 705 (8th Cir. 1989); 20. Even if the Court ruled that the Fourth Thomas, 458 U.S. 259 (1982); Texas v. United States v. Harrelson, 754 F.2d 1153 Amendment would not bar use of certain White, 423 U.S. 67 (1975); Chambers v. (5th Cir. 1985). technological instruments, Congress or state Moroney, 399 U.S. 42 (1975). 44. See note 39. legislatures could legislate otherwise. For 34. California v. Carney, 471 U.S. 386 45. United States v. White, 401 U.S. 745 example, in 1994, Congress made it unlawful (1985); State v. Isleib, 319 N.C. 634, (1971); State v. Levan, 326 N.C. 155, to intercept, without a court order, the radio 356 S.E.2d 573 (1987). Although the Court 388 S.E.2d 429 (1990). There is no Fourth portion of a cordless telephone communication also has stated that a vehicle’s mobility is Amendment issue when a private person transmitted between the cordless telephone another reason to permit a warrantless search, records the conversation because the handset and its base unit. Act of Oct. 25, 1994, that reason hardly has much force when the amendment applies only to the government Pub. L. No. 103-414, § 202(a), 108 Stat. Court permits a warrantless search even after and its agents. 4290 (1994). At the time some courts had a vehicle and its contents have been immo- 46. The discussion in this section concerns held that a person did not have a reasonable bilized. obtaining information from a public service expectation of privacy in such conversations, 35. See generally 18 U.S.C.A. §§ provider, such as America Online or Micro- which were readily overheard by people with 2510–2522, 2701–2711, and G.S. 15A-286 soft. The laws are somewhat different for scanners or radio receivers. See, e.g., Tyler v. through -298. nonpublic service providers. Berodt, 877 F.2d 705 (8th Cir. 1989); Price v. 36. A useful publication is CLIFFORD S. 47. 18 U.S.C.A. § 2703(a). Turner, 260 F.3d 1144 (9th Cir. 2001). FISHMAN & ANNE T. M CKENNA, WIRETAPPING 48. 18 U.S.C.A. § 2703(b). 21. California v. Ciraolo, 476 U.S. 207 AND EAVESDROPPING (2d ed., Deerfield, Ill.: 49. 18 U.S.C.A. § 2705. (1986); Florida v. Riley, 488 U.S. 445 (1989). Clark Boardman Callaghan, 1995). The most 50. 18 U.S.C.A. § 2703(c). Flying over business premises is analyzed current supplement, published by West 51. For example, a service provider may differently. See Dow Chemical Co. v. United Group, was issued in August 2001. divulge the contents of a communication to a States, 476 U.S. 227 (1986). 37. “Intercept” is defined in both federal law enforcement agency if the provider 22. California v. Greenwood, 486 U.S. 35 and state law as “the aural or other inadvertently obtained the communication (1988). acquisition of the contents of any wire, and it appeared to pertain to the commission 23. Officers also may make arrangements oral, or electronic communication through of a crime. 18 U.S.C.A. § 2702(b)(6). with sanitation workers to collect trash at a the use of any electronic, mechanical, or 52. United States v. Falls, 34 F.3d 674 (3d person’s residence and give it to the officers. other device.” 18 U.S.C.A. § 2510(4); Cir. 1997). State v. Hauser, 342 N.C. 382, 464 S.E.2d G.S. 15A-286(13). 53. It would be extremely unusual if a 443 (1995). 38. See FARB, SUPPLEMENT, at 16–17. person who was present during the entire 24. Delaware v. Prouse, 440 U.S. 648 39. 18 U.S.C.A. § 2511(c), (d); G.S. 15A- video surveillance had given prior consent to (1979). 287(a). However, such tape-recording is it or if exigent circumstances existed to excuse 25. Id. at 663. More recently the Court illegal under federal law if a private person the requirement of a search warrant. noted the likely constitutionality of such intercepts a communication to commit a 54. United States v. Cuevas-Sanchez, 821 checkpoints in City of Indianapolis v. crime or a tortuous act (a civil wrong). Some F.2d 248 (5th Cir. 1987). Some courts have Edmond, 531 U.S. 32 (2000). states allow the tape-recording of a conver- imposed rigorous requirements for search 26. Typically all cars are stopped except sation only under limited circumstances, or warrants for video surveillance. See, e.g., when traffic congestion requires that some prohibit it unless all the parties to the United States v. Koyomejian, 970 F.2d 536 cars be waived through. conversation have consented. See FISHMAN & (9th Cir. 1992). 27. State v. Sanders, 112 N.C. App. 477, MCKENNA, WIRETAPPING AND EAVESDROPPING 55. United States v. Miller, 425 U.S. 435 435 S.E.2d 842 (1993); State v. Tarlton, §§ 6:15 through 6:28; 6:38. (1976). 146 N.C. App. 417, 553 S.E.2d 50 (2001). 40. See FARB,ARREST, SEARCH, AND 56. G.S. 53B-1 through -10. See also FARB, 28. Michigan Dept. of State Police v. Sitz, INVESTIGATION, at 218–23. Generally, officers ARREST, SEARCH, AND INVESTIGATION, at 85. 496 U.S. 444 (1990). G.S. 20-16.3A may not deliberately elicit statements from a 57. Smith v. Maryland, 442 U.S. 735 (1979). authorizes checkpoints for impaired drivers. defendant—whether in custody or not—after Although the Smith Court ruled only that a 29. Edmond, 531 U.S. at 32. The Court in his or her Sixth Amendment right to counsel person does not have a reasonable expectation Edmond specifically did not decide whether a for a criminal charge becomes operative. This of privacy in telephone numbers that a person checkpoint would be unconstitutional if the right begins for a charge after a dials on his or her telephone, the ruling clearly primary purpose was permissible—for example, defendant’s first appearance in district court would also apply to telephone numbers dialed to check for impaired drivers—and a secondary or a defendant’s , whichever occurs to that telephone and to telephone records purpose was to check for illegal drugs. first. Thus, for example, law enforcement maintained by the telephone company. 30. Sitz, 496 U.S. 444 (checkpoints to deal officers who by themselves or through an 58. See FARB,ARREST, SEARCH, AND with highway safety); United States v. informant deliberately elicit statements in a INVESTIGATION, at 86. Martinez-Fuerte, 428 U.S. 543 (1976) telephone conversation (whether recorded or 59. G.S. 15A-260 through -264. See also (checkpoints to police the nation’s border). not) from a defendant after his or her FARB,ARREST, SEARCH, AND INVESTIGATION, at 31. The Court recognized, however, the indictment may violate the defendant’s Sixth 84–85. A “pen register” records numbers constitutionality of roadblocks set up immed- Amendment right to counsel. dialed from a telephone, and a “trap-and- iately after the commission of a crime, such as 41. See note 39. trace device” records numbers dialed to a a bank robbery, to stop a fleeing suspect. 42. State v. Rickenbacher, 290 N.C. 373, telephone.

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