What is a “Search” Under the Fourth Amendment?

The Fourth Amendment to the US Constitution states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Many state constitutions have similar protections. In criminal law, an accused — the criminal defendant — can bring a motion before the court challenging whether any given search by the government was lawful. Any evidence collected via an unlawful search can be excluded from use at trial. This is often a very effective method of avoiding conviction since such evidence is often central to the government prosecutor’s ability to obtain a conviction.

In general, the type of motion that must be filed by the defendant is called a “Motion to Suppress.” A “motion” is basically a written request that the judge takes some sort of action. Thus, a motion to suppress is a request that the judge suppresses — exclude — certain evidence from being used. A defendant filing a motion to suppress has the burden of establishing that his or her Fourth Amendment rights were violated by the challenged search (or seizure). To oversimplify, law enforcement officials must obtain permission from a judge before conducting a search. Such permission is generally called a “warrant.” If the police conduct a search without a warrant (or some other legal basis), then the defendant has a good chance of winning a motion to suppress.

But, was it a “search” within the meaning of the Fourth Amendment?” In general, the U.S. Supreme Court has created and established two tests for what constitutes a “search” for Fourth Amendment purposes. These tests are typically called the “classic common-law trespass test” and the “reasonable expectation of privacy” test.

The “trespass test” is a property-rights-based approach. Under the oldest common law judicial and statutory precedents, police are conducting a “search” when there is a physical occupation or taking of a person and/or his/her private property. This is explicitly recognized in the text of the Fourth Amendment which states, as quoted above, that the people have a right “to be secure in their persons, houses, papers, and effects …” So, persons have a right to be free from unreasonable searches with respect to their:

  • Physical persons — so, no searching pockets or purses or backpacks without a warrant or other lawful basis
  • Homes — including temporary lodgings like a hotel room
  • Papers and effects

Given the ever-ongoing progress of technology, the concept has been expanded to other physical properties, most notably automobiles. Thus, the Supreme Court recently held that the police could not place a GPS tracking device on a suspect’s car without obtaining a prior warrant. The automobile is “private property” and the use of the GPS device was deemed a “search” within the meaning of the Fourth Amendment.

The “reasonable expectation of privacy test” is much broader and does not depend on a property right being invaded. Note that courts often use the “reasonable expectation” test in conjunction with the “trespass test.” With respect to the “reasonable expectation” test, there are two components:

  • Does a person exhibit an “actual, subjective expectation” of privacy and
  • Is a person’s expectation of privacy one that society is prepared to recognize as reasonable?

As can be seen, the reasonable expectation of privacy standards is vague. Thus, U.S. courts have been slowly defining this standard on a case-by-case basis. The issue often turns on whether the person has disclosed information publicly and/or to third parties. Thus, putting an address on an envelope and, then, placing the envelope into the U.S. postal system has been deemed NOT to be something that is covered by a reasonable expectation of privacy. Likewise, there is no expectation of privacy in financial records held by a bank or in records of dialed telephone numbers conveyed to telephone companies. By contrast, the U.S. Supreme Court recently held that a person’s historical geospatial location data contained in a person’s cell phone (and in-service provider records) IS information for which people have a reasonable expectation of privacy.

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