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Does the Fourth Amendment protect all searches?

This content about the Fourth Amendment was written by a third party and does not represent the views or opinions of Haddad & Sherwin LLP, nor should it be construed as a complete and accurate statement of the law or as legal advice.  For better information about this topic, please contact Haddad & Sherwin LLP.

A search under the Fourth Amendment occurs when a governmental employee or agent of the government violates an individual’s reasonable expectation of privacy.

Strip searches and visual body cavity searches, including anal or genital inspections, constitute reasonable searches under the Fourth Amendment when supported by probable cause and conducted in a reasonable manner.

A dog-sniff inspection is invalid under the Fourth Amendment if the inspection violates a reasonable expectation of privacy. Electronic surveillance is also considered a search under the Fourth Amendment.

What is the Fourth Amendment?

According to Justia, The Fourth Amendment of the United States Constitution protects citizens from unreasonable searches and seizures by law enforcement officers. A search and seizure is considered unreasonable if it is conducted by police without a valid search warrant, and does not fall under an exception to the warrant requirement.

Does the Fourth Amendment protect all searches?

In short, no. Before a court even sees the possibility that the analysis in question is reasonable, the person sought must have had a legitimate expectation of privacy.

To determine whether the defendant had a legitimate expectation of privacy, the courts will look at the following factors:

  1. does the person subjectively or expect a certain degree of privacy, and
  2. is the person’s expectation objectively reasonable, that is, one that society is willing to recognize?

Take the following examples:

Example 1

Police install a hidden video camera in the shower area of a local gym. Most people who use the shower at that gym have a subjective expectation of privacy.

Privacy in the shower area is an expectation that society is willing to acknowledge. Therefore, the installation of a hidden camera by the police in the shower area of the gym will be considered a search and is subject to the Fourth Amendment requirement of reasonableness.

Example 2

While John is making a phone call in a glass phone booth, he places a bag of cocaine on top of the phone. A walking police officer notices the bag and John is arrested for possession of a controlled substance.

At the trial, John tries to argue that the search for the phone booth was unreasonable because the officer lacked a warrant. This argument will produce an error because the Court will never accept the reasonableness of the search.

When the police find a bag of cocaine on top of a phone in a phone booth, it is not a search for the Fourth Amendment. John most likely thought that a payphone was a private place, and if John did, society is not willing to extend privacy protections to payphones.

Sources:

Fourth Amendment of the US Constitution — Search and Seizure

Fourth Amendment | Wex | US Law | LII / Legal

 

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This content was written by a third party and does not represent the views or opinions of Haddad & Sherwin LLP, nor should it be construed as a complete and accurate statement of the law or as legal advice.  For better information about this topic, please contact Haddad & Sherwin LLP.