Criminal Procedure, Section 3051, Professor Passante 4th

Criminal Procedure, Section 3051, Professor Passante

4th Amendment Paper

Hypothetical Fact Pattern

Larry did not violate Kathy's Fourth Amendment rights. The Fourth Amendment does not confer a general right of privacy. Instead, it specifically protects people from certain types of government intrusion. Therefore, before one can claim that a Fourth Amendment violation has occurred, one first has to determine whether the government was responsible for the intrusion. Larry is a private security guard. There is no suggestion that Larry is employed by the government in any capacity. Moreover, the harm that Kathy experienced was purely a civil harm; her employer did not call the police but simply fired Kathy. There was no government action; therefore there was no Fourth Amendment violation.

Hypothetical Fact Pattern

Google did not violate the Fourth Amendment by providing Tiny's account information and digital copies of his emails. Google is not a government entity. While it could have refused to turn over Tiny's information to the police unless presented with a warrant, its provision of private information to the government cannot be a Fourth Amendment violation because Google is not a government entity. That does not mean that Officer Gomez did not violate the Fourth Amendment in seeking that information from Google without a warrant. That scenario will be investigated later in the answer and depends on a variety of factors. However, it is critical to realize that in a transaction like the one described, where a private party turns over information that may be protected to a government official, the private party does not engage in a Fourth Amendment violation. The distinction between Gomez and Google is that Gomez works for the government and Google does not. Only government actors and those acting specifically on behalf of the government can be held to violate the Fourth Amendment.

Trying to determine whether Gomez's actions were permissible under the Fourth Amendment involves the consideration of several factors. First, Gomez followed Tiny to an Internet cafe and watched from afar for several hours while Tiny used one of the computers. It is clear that Gomez's actions in following Tiny did not constitute a Fourth Amendment violation. Tiny was in no way trying to conceal his presence at the Internet cafe from the casual viewer. Any person who was in or near the Internet cafe was capable of observing that Tiny was in the cafe, that he used the computer for several hours, and which computer he used. The modern use of an Internet cafe may seem very similar to the use of a telephone booth in Katz, but it is important to remember that the Court specifically distinguished what was protected in Katz. By using an enclosed, private telephone booth, Katz was attempting to keep his verbal communication private, not the fact that he was in a telephone booth. Likewise, Tiny may have wanted to keep the content of his computer usage private, but the fact that he was using the computer in a public place meant he had no reasonable expectation of privacy in the fact of his computer usage.

Furthermore, Gomez's inspection of the browser history was also not a Fourth Amendment violation. In the Katz example, Katz had no reason to expect that telephone calls placed from a telephone booth would be recorded in any manner. In contrast, Tiny as a modern day computer user working on a public computer should have been aware that the browser history would record the locations he visited on that computer. By accessing this browser history, Gomez did the same thing that any member of the public could have done by sitting down and using a publicly accessible computer after Tiny used it. Tiny could have cleared the browser history or made other attempts to keep his information private, but the reality is that his actions made it clear that he did not have an objectively reasonable expectation of privacy.