What is a Search

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Fourth Amendment concerns of unreasonable searches only arise if the search involves government conduct. Government conduct, like government "action" in other areas of Constitutional Law, is not limited to government employees and agencies. If the person conducting the search is under the direction of law enforcement personnel, his or her searches will be considered government conduct.

EXAMPLE (1): Rif’s mother, concerned about Rif's erratic behavior as of late, searches Rif's drawers and finds an illegal handgun, which she turns over to the police. The handgun may be admitted as evidence against Rif, as there has been no government action here.

EXAMPLE (2): Officer Kruptky tells Rif's mother that Rif may be in trouble and asks her to search Rif's room for anything unusual. Rif's mother searches the room and finds an illegal handgun. She turns the handgun over the Kruptcy. Rif's mother's search is government conduct because she was working at the direction of Officer Kruptky.

EXAMPLE (3): The police contact Derrick’s estranged sister, Susan, and ask her to invite herself over to Derrick’s house and search his basement for evidence of stolen goods. Susan conducts the search and finds stolen clothing. A court could find that Susan was acting at the direction of a government agent, which satisfies the government conduct requirement, and exclude the evidence as tainted.

In addition, the search must be of a location in which the defendant has an expectation of privacy. Furthermore, the conduct need not be significant – merely moving aside an object and thus enabling the police officer to view an area can be sufficient. See Arizona v. Hicks, 480 U.S. 321 (1987). In Hicks, police officers rightfully entered the defendant’s apartment under exigent circumstances (an exception to the warrant requirements for emergencies). They noticed what they believed to be stolen stereo components and read and recorded their serial numbers -- moving some of the components, including a Bang and Olufsen turntable, in order to do so. Despite the fact that the equipment itself was in plain view, the moving of the equipment to reveal the serial numbers was considered enough of a search to require probable cause and made the plain view exception inapplicable according to the Court.

EXAMPLE (1): Officer Observant is walking his beat in a residential neighborhood. He notices Derrick in his front yard cleaning an illegal assault rifle. Officer Observant seizes the rifle and arrests Derrick. The rifle may be admitted as evidence against Derrick because there is no expectation of privacy in an unfenced front yard bordering a public walkway.

EXAMPLE (2): Officer Nosy walks past Joe’s garage and decides for no particular reason to pull at the corner of a piece of cardboard covering a broken window. The other windows of the garage are all painted black. When he moves the cardboard, he sees what he knows to be a stolen guitar in the corner. Because Joe has taken the necessary steps to protect the interior of his garage from public scrutiny, he has a reasonable expectation of privacy in the garage and Officer Nosy’s actions constitute a search.

According to the “open-fields doctrine,” there is no reasonable expectation to privacy in the area outside the curtilage (immediate surroundings and attached structures) of a home, and searches of areas outside the curtilage do not raise Fourth Amendment issues. See Oliver v. United States, 466 U.S. 170 (1984). Posting signs or fencing outer lands does not necessarily create a reasonable expectation of privacy.

EXAMPLE (1): Donna owns 200 acres of land in Montana. She lives on a 2-acre fenced parcel with her family and the remainder is largely unused. In a remote, fenced-in corner, she has been stockpiling stolen refrigerators. A search of her land reveals her chilling crimes, the evidence is seized, and Donna is arrested. Because the search was in an area not within the curtilage of her home, this is not an unreasonable search under the Fourth Amendment.

EXAMPLE (2): Roger leaves a box on a shelf attached to the outside of his garage, which is 20 feet from his home. Officer Dandy comes by and opens the box finding a stolen accordion. Because the garage is within the curtilage of Roger’s home, the search must meet Fourth Amendment scrutiny.

One broad exclusion to the reasonable expectation of privacy rule is that anything held out to public inspection inherently lacks an expectation of privacy. The following have been held by various courts to be within the public purview and thus not subject to a reasonable expectation of privacy:

1. The sound of a voice
2. Paint on a vehicle’s exterior
3. Odors emanating from luggage
4. Handwriting
5. Bank records
6. Garbage left outside on the curb for collection
7. Anything visible from the air or from a public place

EXAMPLE (1): Dudley is attempting to transport marijuana across the country and decides that despite recently enacted strict security measures, flying is the safest way to traffic his drugs. In the bottom of his suitcase, he places several pounds of marijuana, and places “PRIVATE – Do Not Smell” stickers all over it before checking it in. Nonetheless, the police present his bag to a drug-sniffing dog along with the other bags on his flight. The dog alerts the officers of the presence of drugs, and Dudley is unceremoniously removed from the plane prior to take-off. Despite Dudley’s stickers, he did not have a reasonable expectation of privacy regarding the odors, and the search by sniffing was not unreasonable.

EXAMPLE (2): Dale lives in a residential area where trash is left in a large communal trash bin for collection every Wednesday. Early on Tuesday evening, he places a garbage bag containing cuttings from his indoor marijuana plants into the communal trash bin. Officer Rookie comes along in the middle of the night and searches the bin and finds the marijuana clippings. The search is legal even without a warrant, as Dale had abandoned the bag in a public place (i.e., the trash bin). As a side note, unfortunately for Officer Rookie, because he cannot demonstrate that the bag containing the clippings belonged to Dale (many bags look alike) the evidence will probably be insufficient to establish probable cause for the purpose of obtaining a warrant to search Dale’s home. (See sections below on probable cause and warrant requirement.)

Remember: If there is no government agent whose conduct constitutes a search of an area in which the defendant has a reasonable expectation of privacy, the Exclusionary Rule will not apply.