Reasonable Expectation of Privacy

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 What Is a "Reasonable Expectation of Privacy?"

The 4th Amendment to the U.S. Constitution tells us that we have the right to be free from warrantless police searches in areas in which we have a “reasonable expectation of privacy.” This refers to certain areas, or aspects of one’s personal life, in which a reasonable person would expect privacy. Specifically, the 4th Amendment refers to our “persons, houses, papers and effects” as areas that should not be searched without a warrant.

A person might have a reasonable expectation of privacy in the following places:

  • Their places of residence;
  • Their hotel and motel rooms;
  • Certain public places such as restrooms;
  • Some areas in jail houses;
  • Certain areas of a car.

Basically, the idea is that the police and other authorities need a search warrant before they can search in areas where privacy is reasonably expected. If they do not have a search warrant, they may search an area in which a person has a reasonable expectation of privacy, but only under certain limited circumstances.

What Are the Places in Which There Is No Reasonable Expectation of Privacy?

If the place is one where a person does not have a reasonable expectation of privacy, then it is likely that the police do not need a warrant to conduct a search for evidence. Some examples of these types of places include:

  • Garbage cans and bags left out for pickup on a curb;
  • Areas that can be viewed by flyover, using the naked eye only;
  • Smells emanating from luggage in public areas such as airports;
  • The “curtilage” beyond the yard of a home, unfenced areas;
  • Public places, e.g. streets and public buildings.

Law enforcement also does not need a warrant to conduct a search if the circumstances justify a search without a warrant. This is true even if the search is conducted in a place in which a person has a reasonable expectation of privacy. These are the exceptions to the requirement that law enforcement have a warrant for a search.

  • Search Incident to an Arrest: In the course of effecting a legal arrest of a person, law enforcement officers may search the person being arrested and any area surrounding the person that is within arm’s reach of them. This search incident to arrest is allowed mainly for the safety of the arresting officers;
  • Consent: If a mentally competent person who is in control of a certain space gives law enforcement permission to search the space, then law enforcement may conduct the search;
  • Plain View: If the police are legally in a location from which they can view evidence in plain sight, they do not need a warrant to seize the evidence. For example, an officer cannot illegally enter a suspect’s fenced back yard and then use the plain view exception to seize marijauna plants that are illegally growing in the garden. But, if on the premises to serve a valid warrant to search for marijuana plants, the police see illegal wildlife housed in the backyard, if it is in plain view, they can legally seize it;
  • Stop and Frisk: Police may stop a suspect as long as they have a reasonable suspicion that the suspect has engaged in criminal conduct. The officer conducting the stop must be able to articulate facts supporting their suspicion. If there is reason to believe that the person may be armed and dangerous, the police can also frisk the suspect in connection with the stop;
  • Automobile Exception: Vehicles are mobile, so law enforcement officers do not need a warrant to search vehicles, if they have probable cause to believe the vehicle contains evidence of a crime, controlled substances, or criminal booty, e.g. stolen property.
    • This exception is referred to as the “automobile exception,” but it applies to any movable vehicle, such as a boat. The rationale for this exception is that if the police cannot search right away, the vehicle might be driven away and the evidence would be lost. Of course, the scope of the search that can be conducted under this rule is limited to areas that might contain evidence of the type that law enforcement is looking for.
    • So, if police suspect that the occupant of a boat is smuggling controlled substances across the border, searching a small tackle box on board would be allowed. But if law enforcement is looking for something that clearly would not fit in a tackle box, then they cannot search there;
  • Emergencies or Hot Pursuit: The rationale here is similar to the automobile exception. Evidence that can be easily moved, destroyed or otherwise made to disappear before the police can get a warrant and come back to get it, may be seized without a warrant under some circumstances.
    • For example, if a suspect enters private property while being pursued by officers, no warrant is required to enter that property in order to continue the pursuit and arrest the suspect. This is the case even if the property does not belong to the suspect.
    • The “hot pursuit” exception does not apply in all cases of police pursuit of a suspect. A “hot pursuit” search is legal, if the police enter a space in order to prevent violence, the destruction of evidence or the escape of the suspect from a home. If these circumstances are not present and the police have time to get a warrant, they should do that before entering.

What If My Privacy Rights Have Been Violated?

It is important to remember that if police have a valid search warrant, then they are allowed to search areas even if a person has a reasonable expectation of privacy in the space. However, if law enforcement conducts the search without a search warrant, a court might well consider it illegal.

Evidence that is seized as a result of an illegal search cannot be used as evidence in a criminal trial. It is subject to the exclusionary rule, which prohibits the use as evidence of items that have been seized illegally by law enforcement.

In addition, Section 1983 of the U.S. Code gives citizens the right to sue the government for violations of their civil rights. So, it is possible to sue for damages incurred during an illegal search or seizure, if you were arrested. The law enforcement officer must have acted “under the color of state law”, which is indicated if the officer:

  • Performed the search while on duty;
  • Wore a police uniform;
  • Used police equipment such as a squad car or handcuffs;
  • Showed a badge or otherwise claimed to be an officer; or
  • Carried out an arrest.

A person can claim compensation for property damage, pain and suffering, lost wages and other expenses as well as, possibly, attorney’s fees.

Do I Need a Lawyer for Help with Privacy Rights?

Legal terms, such as “reasonable expectation of privacy” can be difficult to apply to specific situations. Also, these types of terms may have different interpretations and applications depending on the state or jurisdiction that you are in.

You need to consult an experienced criminal defense lawyer if you need help with issues related to searches and seizures by law enforcement. An attorney can analyze the facts of your case, provide you with legal advice and can also represent you if you need a defense in a criminal trial. Or, they may help you if you want to pursue a claim for violation of your civil rights.

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