Section 9.6 What Is a Search?

• Library: Criminal Practice 2012 Supp

A. (§9.6) What Is a Search?

The Fourth Amendment provides protection against unreasonable searches and seizures. Thus, a basic requirement for the Fourth Amendment to be implicated is action by the government that can be characterized as a “search” or “seizure.” While some investigative activity undertaken by law enforcement personnel is easily characterized as search and seizure activity, that is not always the case, and this determination is likely to be even more difficult in light of emerging technologies. The threshold question in many cases is whether search and seizure activity has occurred.

This question has great significance given the Court’s methodology of analysis in this area. The Court has traditionally used a “monolithic” approach to treatment of searches under the Fourth Amendment. See Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349 (1974). If conduct is characterized as a search, the full panoply of Fourth Amendment protections apply unless an exception exists; if conduct is not a search, no justification at all is required. The Court has been unwilling to depart generally from this “all-or-nothing” approach, see, e.g., Ariz. v. Hicks, 480 U.S. 321 (1987) (refusing to adopt the doctrine of “cursory inspection” as a form of search activity less intrusive than a full-scale search), although recent movements toward a reasonableness analysis may indicate a change in approach. Thus, this preliminary question is quite important.

Before 1967, the question whether a search occurred was governed by property concepts. Thus, the issue to be addressed focused on whether a trespass had occurred into a “constitutionally protected area.” Although there were occasional departures from this approach, in general Fourth Amendment law was controlled by property concepts.

From a definitional standpoint, the “modern era” of search and seizure law began with Katz v. United States, 389 U.S. 347 (1967). In Katz, the Court acknowledged that the Fourth Amendment protects people, not places, and has a strong privacy base. It thus substituted a “reasonable expectation of privacy” test for determining whether search activity cognizable by the Fourth Amendment has occurred. The two-part analysis developed by Justice Harlan in a concurring opinion has become the basis for current law.

Justice Harlan’s formulation of the test is viewed as having both a subjective and an objective component. The subjective component looks to whether the individual has manifested a subjective expectation of privacy. It is clear that this looks beyond a true subjective expectation because, if that were not the case, any subjective expectation could be easily defeated by merely telling the individual that they have no such expectation. See Smith v. Md., 442 U.S. 735, 740, n.5 (1979). More appropriately, this prong has been viewed to ask whether the individual has taken action to demonstrate some expectation of privacy or has sought to preserve something as private. The second, or objective, component asks whether that expectation is reasonable or, perhaps more appropriately, whether the expectation is one society is prepared to recognize as reasonable. See, e.g., Kyllo v. United States, 533 U.S. 27, 34 (2001); United States v. Jacobsen, 466 U.S. 109 (1984).

Although the “reasonable expectation of privacy” test is easy to state, courts have had difficulty giving it content. Over the years, the focus has changed and developed, moving from what was originally a rights-oriented approach to the current more law-enforcement-oriented perspective. Additionally, the Court has had to deal with emerging technology. Not surprisingly, a variety of concepts have developed to assist courts in applying this test. The remainder of this section looks at some of those concepts.

Both the federal and Missouri courts have refused to find a reasonable expectation of privacy in what a person knowingly exposes to public view. See, e.g., Fla. v. Riley, 488 U.S. 445, 449 (1989); State v. Akers, 723 S.W.2d 9 (Mo. App. W.D. 1986). The same analysis applies to conversations exposed to public hearing; thus, a person has no reasonable expectation of privacy in a cordless...