A police investigation is not a search unless it intrudes on a person's privacy. In other words, if a person did not have a "legitimate expectation of privacy" in the place or thing searched, no "search" has occurred.
The Fourth Amendment to the U.S. Constitution places limits on the power of the police to make arrests; search people and their property; and seize objects documents and contraband (such as illegal drugs or weapons). These limits are the bedrock of search and seizure law.Search and seizure law is constantly in flux and so complex that entire books are devoted to it. This acovers the basic issues that you should know, beginning with an overview of the Fourth Amendment itself.
The Fourth Amendment: Protecting Your Privacy
The Fourth Amendment to the U.S. Constitution reads as follows:
"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 probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The search and seizure provisions of the Fourth Amendment are all about privacy. Most people instinctively understand the concept of privacy. It is the freedom to decide which details of your life will be revealed to the public and which will be revealed only to those you care to share them with. To honor this freedom, the Fourth Amendment protects against "unreasonable" searches and seizures by state or federal law enforcement authorities.
The flip side is that the Fourth Amendment does permit searches and seizures that are considered reasonable. In practice, this means that the police may override your privacy concerns and conduct a search of your home, barn, car, boat, office, personal or business documents, bank account records, trash barrel or whatever, if:
the police have probable cause to believe they can find evidence that you committed a crime, and a judge issues a search warrant, or the particular circumstances justify the search without a warrant first being issued.
''In determining what is probable cause . . . we are concerned only with the question whether the affiant had reasonable grounds at the time . . . for the belief that the law was being violated on the premises to be searched; and if the apparent facts set out are such that a reasonably discreet and prudent man would be led to believe that there was a commission of the offense charged, there is probable cause justifying the issuance of a warrant.''
Additional issues arise in determining the validity of consent to search when consent is given not by the suspect but by a third party. In the earlier cases, third party consent was deemed sufficient if that party ''possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.
When the Fourth Amendment Doesn't Protect You
As mentioned just above, the Fourth Amendment permits "reasonable" searches. But before getting to the question of whether or not a particular search is reasonable, and therefore valid under the Fourth Amendment, it must be determined whether the Fourth Amendment applies to the search in the first place.
The Fourth Amendment applies to a search only if a person has a "legitimate expectation of privacy" in the place or thing searched. If not, the Fourth Amendment offers no protection because there are, by definition, no privacy issues.
Courts use a two-part test (fashioned by the U.S. Supreme Court) to determine whether, at the time of the search, a defendant had a legitimate expectation of privacy in the place or things searched.
Did the person subjectively (actually) expect some degree of privacy?
Is the person's expectation objectively reasonable, that is, one that society is willing to recognize?
Only if both questions are answered with a "yes" will a court go on to ask the next, ultimate question: Was the search reasonable or unreasonable?
For example, a person who uses a public restroom expects not to be spied upon (the person has a subjective expectation of privacy) and most people -- including judges and juries -- would consider that expectation to be reasonable (there is an objective expectation of privacy as well). Therefore, the installation of a hidden video camera by the police in a public restroom will be considered a "search" and would be subject to the Fourth Amendment's requirement of reasonableness.
On the other hand, when the police find a weapon on the front seat of a car, it is not considered a search under the Fourth Amendment because it is very unlikely that the person would think that the front seat of the car is a private place (a subjective expectation of privacy is unlikely), and even if the person did, society is not willing to extend the protections of privacy to that particular location (no objective expectation of privacy).
A good example of how this works comes from a recent U.S. Supreme Court in which the court held that the a bus passenger had a legitimate expectation of privacy in an opaque carry-on bag positioned in a luggage rack above the passenger's head, and that the physical probing by the police of the bag's exterior for evidence of contraband constituted a search subject to Fourth Amendment limitations. (Bond v. U.S., No. 98-9349 (April 17, 2000).)
If, upon review, a court finds that a search occurred and decides that the search was illegal (unreasonable), any evidence seized as a result of the search cannot be used as direct evidence against the defendant in a criminal prosecution, state or federal. This rule, established by the U.S. Supreme Court in 1961, has come to be known as the "exclusionary rule." To this day, many commentators criticize it on the ground that it unfairly "lets the criminal go free because the constable has erred." But the rule's supporters argue that excluding illegally seized evidence is necessary to deter police from conducting illegal searches. According to this deterrence argument, the police won't conduct improper searches if the resulting evidence can't be used to convict the defendant.
In addition to being excluded as evidence against the defendant, evidence resulting from an illegal search may not be used to discover other evidence under a legal rule colorfully known as the "fruit of the poisonous tree" doctrine. The "tree" is the evidence that the police illegally seize in the first place; the "fruit" is the second-generation product of the illegally seized evidence. Both tree and fruit are inadmissible at trial.
Dumbra v. United States, 268 U.S. 435, 439 , 441 (1925), Steele v. United States, 267 U.S. 498, 504 -05 (1925), Draper v. United States, 358 U.S. 307, 311 (1959), Brinegar v. United States, 338 U.S. 160, 173 (1949), United States v. Ventresca, 380 U.S. 102, 107 -08 (1965), Jones v. United States, 362 U.S. 257, 270 -71 (1960), Aguilar v. Texas, 378 U.S. 108, 111 (1964), Giordenello v. United States, 357 U.S. 480, 486 (1958), Whiteley v. Warden, 401 U.S. 560 (1971)
Illinois v. Rodriguez, 497 U.S. 177 (1990). See also Florida v. Jimeno, 500 U.S. 248, 251 (1991)
, and I will continue to do so.
