What the Fourth Amendment Does Not Protect

The Fourth Amendment prohibits only unreasonable searches and seizures.  Where the Defendant does not have an unreasonable expectation of privacy in the thing or area searched, the search is reasonable, and the evidence obtained from it admissible.  As such, there is no reasonable expectation of privacy in movements made on public streets and the police may monitor them without a warrant.  United States v. Knotts, 460 U.S. 276 (1983); United States v. Jones, 132 S. Ct. 945 (2012) (requiring a warrant for tracking with GPS.)

The New Jersey Supreme Court ruled that the police did not need probable cause to inspect a Defendant’s utility records, as there is no reasonable expectation of privacy in utility records.  State v. Domicz, 188 N.J. 285 (2006.)

There is no reasonable expectation of privacy in plain viewArizona v. Hicks, 480 U.S. 321 (1987).  Office however, must lawfully be in a position to view such evidence for it to be seized.  Harris v. U.S. 390 U.S. 234 (1968.)

There is no reasonable expectation of privacy in open fields under federal law (see: Oliver v. United States, 466 U.S. 170 (1984)).  New York landowners however, may establish a reasonable expectation of privacy by erecting a fence or a “no trespassing” sign.  People v. Scott, 79 N.Y.2d 475 (1992.)

There is no reasonable expectation of privacy from aerial observationCalifornia v. Ciraolo, 476 U.S. 207, 215 (1986.)  Thus, there is no objective privacy in a backyard or a semi-enclosed greenhouse open to aerial view of, say, a police plane flying an altitude of 400 feet in public airspace (Ya think those police would have better things to do than harass you, right?) (See: Florida v. Riley, 488 U.S. 445 (1989.)

There is no reasonable expectation of privacy in public places or during a lawful traffic stop from police sniffing dogs.  See, ex: United States v. Place, 462 U.S. 696 (1983); Illinois v. Caballes, 543 U.S. 405 (2005.)  HOWEVER, the police using a drug sniffing dog at the front door of a home to discover if there were marijuana plants without a warrant is.  Florida v. Jardines, 133 S. Ct. 1409, 1412 (2013) [“When the government obtains information by physically intruding on persons, houses, papers or effects a ‘search’ within the original meaning of the Fourth Amendment has ‘undoutebly occurred.'”]

There is no reasonable expectation of privacy with abandoned propertyUnited States v. Lee, 916 F.2d 814, 818 (2d Cir. 1990.)  Abandoned property may be seized by police UNLESS the abandonment was a direct result of unlawful police intrusions.  People v. Boodle, 47 N.Y.2d 398, cert denied, 444 U.S. 969 (1980.)  In this case, the seized property must be suppressed because it constitutes “fruit of the poisonous tree.” See: Wong Sun v. United States, 371 U.S. 471 (1963.)


In New York, and in the absence of abandonment, it is generally necessary to obtain the consent of the other parent to adopt a child.  DRL section 111(2)(a); Caball v. Mohammad, 441 U.S. 380 (1979.)  The United States Supreme Court held that a statute denying all unwed fathers the right to veto adoption, while granting that right to unwed mothers, violated the Equal Protection Clause.

Failure to Serve Complaint

Plaintiff’s have 120 days from the time they file the complaint with the County Clerk to serve the Defendant.  When the Plaintiff fails to serve, the Defendant may move to dismiss the complaint under CPLR 306-b.  “Although Plaintiff’s failed to properly effect service of process, his [Plaintiff’s] cross motion for an order extending his time to serve the summons and complaint should have been granted in the interest of justice.  (CPLR 306-b.)  Interest of justice requires a careful judicial analysis of the factual setting of the case and a balance of the competing interests of the parties.” (Leader v. Maroney, Pnzini & Spencer, 97 N.Y.2d 95, 105 [2001]).


Should a New York court submit a default judgment against a Defendant, that party has one year to vacate the default, upon a successful showing of reasonable excuse, lack of prejudice to the Plaintiff and an affidavit of merit to Defendant’s defense.  Unless the Defendant can show he was never properly served (in which case there is no time restraint), a court will deny the motion if an attempt to vacate was made after the one year had passed.  CPLR 5015(a)(1).  See Cuadra v. City of New York

Medical Malpractice and Wrongful Death of Child

When medical malpractice causes a miscarriage or a stillbirth, the New York mother can now sue for her emotional trauma and suffering, even though she suffered no physical injury.  What will courts award for such anguish and misery suffered by a mother?  In New York, it appears to be $1 million dollars, Ferreira v. Wychoff Med. Ctr., 81 A.D.3d 587 (2d Dep’t 2011), but worth $100,000 in Louisiana and $200,000 in Texas.  New York Times, Aug. 24, 2011, p. A-1.