Phase 1: Determining if a Search Occurred (The Katz Reasonable Expectation of Privacy Test)

Before conducting surveillance or physical intrusion, determine if the action constitutes a "search" under the Fourth Amendment, which protects people, not places.

Step 1.1: Evaluate the Expectation of Privacy (Katz)

1. Determine Subjective Expectation: Did the person exhibit an actual (subjective) expectation of privacy?.

• Factors to consider: Actions such as closing the door, drawing the window shades/blinds, or locking compartments demonstrate a subjective expectation of privacy.
• Determine Objective Expectation: Is that expectation one that society is prepared to recognize as reasonable (objective)?.

• A person's home, or a place treated like a temporary home (e.g., a rented hotel/motel room or a lawfully erected tent), receives the greatest Fourth Amendment protection.
• If the individual "seeks to preserve as private, even in an area accessible to the public," that privacy may be constitutionally protected.

Step 1.2: Assess Electronic and Technological Surveillance

1. Warrant Requirement for Electronic Surveillance: Recognize that electronic surveillance (like recording conversations or tracking cell-site records) generally requires a warrant because it violates a reasonable expectation of privacy, even if the device does not physically penetrate the wall.
2. Avoid New Technology Without a Warrant: Be cautious about using new surveillance technologies that explore details of the home previously unknowable without physical intrusion, as this constitutes a search if the device is not in general public use (e.g., thermal imaging).

Phase 2: Visual and Auditory Observations

Observations made using only your natural senses from a place where you are lawfully entitled to be do not constitute a search, even if they reveal illegal activity inside a protected area. The legality hinges critically on your vantage point.

Step 2.1: Observations from Public/Common Areas (Gomez/Watkins/Hart/Donald)

1. Establish Lawful Vantage Point: Position yourself in a location that offers "implied permission to the public to enter".

• Permissible Areas: Public sidewalks, pathways, common entrances, exterior motel/apartment walkways, or driveways accessible to the general public.
• Motel Rooms: Observations through gaps in motel curtains or blinds (e.g., 1–2 inches) from a public walkway generally do not constitute a search.
• Unaided Hearing: If you are lawfully present in an adjoining hotel/motel room and overhear conversations without the aid of any listening device, this does not constitute a Fourth Amendment search.
• Use of Flashlight: Using a flashlight to illuminate a darkened area that would be visible in daylight is generally permissible and does not constitute a search.
• Avoid Manipulation: Do not manipulate curtains, blinds, or other coverings to create or enlarge a viewing gap.

Step 2.2: Observations from Private/Non-Common Areas (Lorenzana/Jacobs/Ammons/Raettig)

1. Define Private Areas: Recognize areas not open to public use, such as non-common side yards, planter areas, or secluded backyards not accessible by typical entry routes, as areas where the occupant has a reasonable expectation of privacy.
2. Private Peering is a Search: Stepping onto these private areas (even if a minor physical intrusion) to peer through a defect, crack, or small gap (e.g., between a shade and a windowsill) generally constitutes an unlawful search in the absence of a warrant or exigency.
3. Vehicles/Containers: When a suspect has taken deliberate steps to secure property (e.g., painting camper windows, locking doors), using a flashlight to peer into small, unintentional cracks (like an 8-inch, half-inch wide crack between a truck bed and camper shell) may also be viewed as an unlawful search.
4. Document Initial Intrusion (Ammons Warning): Even if you are acting on a benevolent motive (e.g., welfare check), acknowledge that walking through shrubbery, entering a gated backyard, or opening an unlocked garage door may constitute an unreasonable search if the area is not public, potentially tainting later evidence.

Phase 3: Warrantless Detention and Entry

If you have established probable cause or reasonable suspicion of criminal activity through lawful observation, determine if a warrantless intrusion is justified.

Step 3.1: Investigative Detention (Stop)

1. Reasonable Suspicion (R.S.): If you have articulable R.S. that a person is involved in criminal activity, you may briefly detain them.
2. Diligence: Once the stop is made, "diligently pursue a means of investigation that will confirm or dispel your suspicions".
3. Duration Limit: Investigative detentions must be "brief in duration, limited in scope, and narrow in purpose". Do not measurably extend the stop for reasons unrelated to the original purpose unless additional R.S. or probable cause develops.
4. Community Caretaking Stops: You may stop a vehicle if an occupant's safety or welfare is at risk. If assistance is not needed, terminate the stop or convert it to a consensual encounter.

Step 3.2: Warrantless Entry Based on Exigency

Warrantless entry into a home or protected area (like a motel room) requires consent or a recognized exception, such as exigent circumstances.

1. Risk of Destruction of Evidence (Gomez/Donald):

• If you lawfully observe probable cause (e.g., drug cutting) and the suspect becomes aware of police presence, immediate warrantless entry is justified if there is an urgent need to prevent the immediate destruction of evidence (e.g., drugs being flushed down a toilet).
• This circumstance must be strictly circumscribed by the exigencies which justify its initiation.
• Emergency Doctrine/Need to Render Aid (Ammons):

• Entry is justified if you have a rational basis for believing an emergency exists involving an imminent and substantial threat to life, health, or property.
• Document the specific facts supporting this belief (e.g., reports of uncharacteristic behavior, failure to call in, medical concerns, unattended dog/home). Preservation of human life is paramount to the right of privacy in this context.

Phase 4: Search and Seizure After Lawful Intrusion

Once a lawful entry is established (via warrant, consent, or exigency):

Step 4.1: Seize Evidence in Plain View

1. Plain View Doctrine: Seize any item that is immediately recognizable as contraband or evidence and is in "plain sight" from the officer's lawful position.

• This applies, for example, to a murder weapon or drug paraphernalia visible inside a room after an emergency entry.
• Single Purpose Containers: If you observe a container (e.g., a gun case, a balloon of heroin) whose contents are obvious based on shape, size, or material, you may seize and search it without a warrant (Single Purpose Container Doctrine).

Step 4.2: Conduct Search Incident to Lawful Arrest (SITA)

1. Limit Scope: Search only the area "within the arrestee's immediate control".
2. Justify Seizure: Document why items seized could have been destroyed if not immediately seized, focusing on the proximity of the items to the arrestee.

Phase 5: Documentation and Charging Considerations

Step 5.1: Critical Documentation Points

1. Articulate Everything: Courts rely on the "totality of the circumstances." Articulate all specific, reasonable inferences drawn from the facts based on your training and experience. Do not rely on mere hunches.
2. Warrant Necessity: If conducting a search of a home or private property without a warrant, clearly document the specific facts that created the exigent circumstances or emergency.
3. Vantage Point: If relying on visual observation, document the exact location and legal status of the vantage point (e.g., "standing on the public motel walkway," "observing from the duplex's common entrance").
4. Consent: If obtaining consent, ensure it was requested (not demanded) and was the "product of an essentially free and unconstrained choice".