Criminal Defense Law - 4th Amendment FAQs

What is the Fourth Amendment?
The Fourth Amendment guarantees the right of people to be free from unreasonable searches and violations of privacy. The Fourth Amendment states: The right of 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 person or things to be seized.

Are all searches protected by the Fourth Amendment?
No. Before a court will even entertain the possibility that the search in question was unreasonable, the person being searched 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) did the person subjectively or actually expect some degree of privacy, and (2) is the person`s expectation objectively reasonable, that is, one that society is willing to recognize?

EXAMPLE #1
The police install a hidden video camera in the shower area of a local fitness club. Most people who use the shower in their fitness club have a subjective expectation of privacy. Privacy in a shower area is an expectation that society is willing to recognize. Therefore, the installation of a hidden camera by the police in a fitness club`s shower area will be considered a search and subject to the Fourth Amendment`s requirement of reasonableness.

EXAMPLE #2
While John is making a telephone call in a glass enclosed phone booth; he places a bag of cocaine on top of the phone. A police officer walking by notices the bag and arrests John for possession of a controlled substance. At trial, John tries to argue that the search of the phone booth was unreasonable because the officer lacked a warrant. This argument will fail because the court will never even get to the reasonableness of the search.

When police find a bag of cocaine on the top of a phone in a phone booth, it is not a search for Fourth Amendment purposes.It is very unlikely that John would think that a public phone booth is a private place, and even if John did, society is not willing to extend the protections of privacy to public pay phones.

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