When Do You Have Reasonable Expectation of Privacy from Police Searches?


The Fourth Amendment protects U.S. citizens from warrantless searches of their property and from the seizure of objects or persons without probable cause. It specifically names persons, houses, papers and effects as areas that are protected from warrantless searches. The U.S. Supreme Court has ruled many times over that Americans have a reasonable expectation of privacy to their own bodies, clothing, and personal belongings.

In most cases, law enforcement must go before a judge and show that they have probable cause to believe that they will uncover evidence of a crime before they can conduct a search. This is especially true for areas where a person would have a subjective expectation of privacy, such as in his or her own home or residence.

Police searches that occur without a warrant or probable cause are unlawful in nature since the purpose of Fourth Amendment protections is to curb police abuse of power and deter government misconduct.

If you believe that your Fourth Amendment rights have been violated due to a warrantless search of your property or person, or during an illegal traffic stop, contact Omaha’s criminal defense attorneys at Berry Law. They may be able to file a motion to have illegally seized evidence suppressed in court, which often leads to charges being dropped entirely.

When Does the Law Recognize a Reasonable Expectation of Privacy?

Katz v. United States first established a test to determine when the public has a general expectation of privacy. This test assists the courts in determining when the government, represented by law enforcement, has done something that violated a person’s reasonable expectation of privacy. There are two parts:

  1. The individual had an expectation of privacy in the situation in question.
  2. That expectation was one that society at large would recognize as reasonable.

For example, most people would agree that someone who is minding his or her own business inside of their private residence has a reasonable expectation of privacy. In the event that police burst through the door without a warrant, they have likely violated both parts of the privacy test. When that occurs, the government has infringed on an individual’s Fourth Amendment rights and the unlawful actions of the police violated a person’s reasonable expectation of privacy.

Where Do People Have a Reasonable Expectation of Privacy?

It’s generally accepted that people have a reasonable expectation of privacy in the following places:

  • Their place of residence
  • Hotel and motel rooms they are renting
  • Public restrooms
  • Some areas inside of a jail
  • Certain areas of a motor vehicle

The Fourth Amendment allows police to search a person’s body or property only when the search is deemed reasonable. Police do not have the legal right to randomly stop individuals on the street and search their pockets, bags, or purses without probable cause.

In What Situations Does a Person Not Have a Reasonable Expectation of Privacy from Police Searches?

In areas where a person does not have a reasonable expectation of privacy, the law doesn’t require police to have a warrant to search for evidence. Some examples are:

  • Garbage that is left on the curb for pickup by sanitation crews
  • Areas of a property that can be seen from the air using the naked eye
  • Odors coming from luggage in public spaces like an airport
  • Public places such as streets and public buildings
  • The area of a residence that extends beyond the yard of a home in unfenced spaces

Police are allowed to search a property in places where the resident does not have a reasonable expectation of privacy, such as an adjacent open field. While it’s been agreed that citizens have an expectation of privacy while in their own homes and to the areas immediately surrounding them, that privacy doesn’t extend beyond those spaces.

Another grey area that the courts have examined in recent years includes the legality of using dogs in searches of persons and property. Generally speaking, the use of dogs doesn’t require a warrant when the search involves luggage in an airport or if it’s conducted outside of a car during a legal traffic stop or at a publicly posted roadside drug checkpoint.

It’s been the opinion of the court that the use of dogs doesn’t invade an individual’s privacy because the dogs only uncover the presence of contraband that was already there, and that people in possession of illegal materials don’t have a reasonable expectation of privacy.

Are There Limits to Laws That Prohibit Warrantless Searches?

There are situations which the law has determined do not require a warrant to conduct a legal search, including:

Search Concurrent to an Arrest

If a search is conducted during the course of a legal arrest, any evidence of criminal activity that is found is generally permissible in court. Police are allowed to search a person who is being arrested, as well as any areas surrounding them within arm’s reach. Arrest search exceptions are permitted for the safety of arresting officers who may find weapons or other potentially hazardous items that could harm them.


In some cases, a person may consent to a search by law enforcement. Police do not require a warrant when they have the individual’s permission to search their person or property. While it may seem like consenting to a search will prove your innocence, it’s best not to give consent and to wait for a warrant instead. If you are not under arrest, politely ask if you are free to go following a traffic stop. Without further evidence that you’ve committed a crime, it is unlawful for police to detain you.

There have been cases involving drivers who consented to a search of their vehicle not knowing that a passenger or previous occupant of the vehicle had illicit items inside. As a rule, all occupants inside of a vehicle that is found to be carrying illegal contraband are arrested. Unwitting possession, or not knowing they were participating in an illegal act, is sometimes used as a defense in interstate drug stops and trafficking charges.

Plain View

The courts have ruled that there is no expectation of privacy for objects that are left in plain view of the public, even in situations where they are in a personal home or vehicle. If police can see evidence in plain sight, the law doesn’t require them to obtain a warrant to seize it. For example, drug paraphernalia left on a car seat and visible through a car window is not immune from police intrusion.

The plain view exception gives law enforcement the ability to seize evidence in a warrantless search in certain situations involving a residence as well. Police called to a home to investigate a domestic disturbance, only to find marijuana plants growing in plain sight, can argue that they didn’t require a search warrant to seize them as evidence of a crime.

The original purpose for police to be present at the property must be lawful. Police cannot simply enter a random yard and use the plain view exception, but if they are there to serve a valid warrant and see evidence of another crime, they can seize it.

Stop and Frisk

When police have reasonable suspicion that a suspect has committed a crime, they don’t need a warrant to search them in that moment. The officer will be required later to explain the facts that supported his or her suspicions and actions.

For example, police may stop and frisk a person matching the description of an individual who reportedly robbed a bank if they believe them to be armed and dangerous. In the absence of facts to support that decision, the court may rule that the officer overstepped his or her powers to stop and search an individual.

Automobile Exception

While people do have a reasonable expectation of privacy inside of their personal vehicles, it’s not as strong as for their personal body or home. Because vehicles are mobile, law enforcement officers don’t generally need a warrant to search a vehicle if they have probable cause to believe it contains evidence of a crime, drugs, or stolen property. The justification for this is that if police don’t search immediately, evidence may be moved, destroyed or lost.

However, vehicle search procedures are not unlimited. Police must stick to searching areas that might contain evidence they are looking for that is specific to the reason for the search. Once a traffic stop is complete, a motorist who is not being arrested has the right to ask whether or not they are free to go.

In Nebraska, it’s become common practice for police to pull a vehicle over for the purpose of an interstate drug stop under the guise of a legal traffic stop. In some cases, police have illegally detained motorists to wait for drug-sniffing dogs to arrive. Without probable cause to do so, any evidence obtained in this situation may be a violation of the Fourth Amendment because the individual was illegally detained without probable cause.

Hot Pursuit

Similar to the justification for automobile searches, evidence that could be easily moved or destroyed can be seized without a warrant under some circumstances. For example, if police are chasing a suspect and he or she runs into a private residence while being pursued, no warrant for that residence is required to enter and continue the pursuit, even if the property doesn’t belong to the suspect in question.

There have also been cases where policed entered a property while in hot pursuit of a suspect and discovered additional evidence of crimes. The courts have upheld that such evidence was legally obtained. Hot pursuit searches are only legal though if police enter the space with the intention of preventing violence, preserving evidence, or detaining a suspect.

What Should I Do if I Believe My Fourth Amendment Rights Have Been Violated?

Any evidence seized during an illegal search can’t be used in criminal court. It’s subject to what’s called the exclusionary rule, which prohibits the use of evidence that has been illegally obtained by law enforcement. People have sued the government and won for violations of their Fourth Amendment rights, claiming compensation for property damage, pain and suffering, lost wages, attorney fees and other expenses.

If you feel that your right to privacy has been compromised, contact a criminal defense attorney to learn more about Fourth Amendment protections under the law and what recourse you may have for holding the government accountable for the violation.

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