"Can They Do That?" IV

At the close of last week’s post we established that the first question courts will ask when deciding whether or not a search was legal is: “Was the Government involved in the search?” We also discussed how the “Government involvement question” is only the first of many the court will ask as it makes its determination.

Assuming we have answered affirmatively to the court’s first question, we move on to the next step in the analysis:

“Did you have a reasonable expectation of privacy?”

For the purposes of the 4th amendment, a reasonable expectation of privacy can be defined as a personal privacy interest in the thing seized or area searched sufficient to give you what attorneys call “standing” or the right to challenge a search or seizure.

Stevie hides something illegal in his girlfriend’s purse. As he and his girlfriend are walking home from the movie theatre, police officers approach them and demand to see inside her purse. Even though she refuses, they remove the purse from her shoulder and begin to rifle through its contents. They find the boyfriend’s contraband, he admits it’s his, and the police press the appropriate charges against him.

Boyfriend believes the search of his girlfriend’s purse was unconstitutional. He asks the judge to throw out the evidence found in the search.

How will the judge rule? Well, let’s begin by asking the first question – Was there Government involvement? Police officers acting in their official capacity as law enforcement personnel are always considered to be acting as Government agents. The fact situation above gives us no reason to believe the officers were acting in any capacity other than one of official law enforcement. The answer here appears to be “yes”.

Assuming the Government was involved we proceed to out next question: Did Stevie have a reasonable expectation of privacy here? In other words, does Stevie have a personal privacy interest in his girlfriend’s purse sufficient to give him the right to challenge a search of it?

In this case, there is any number of factors which could affect Stevie’s expectation of privacy. What if he bought the purse for his girlfriend? What if he had never touched her purse before sticking contraband in it? What if he had a habit of putting things in his girlfriend’s purse for safe keeping? What if his girlfriend were able to truthfully say that Stevie owned more things in that purse than she did?

Judges will do their best to determine whether, under the circumstances of each case, the challenger had a reasonable expectation of privacy. The questions in the preceding paragraph are meant to demonstrate that there really isn’t a one-size-fits-all determination available in these cases. They can be everything but straightforward. That’s why it’s important to seek the advice of counsel if you think your 4th amendment rights have been violated. We simply don’t have the time in these posts to analyze each case sufficiently to get to definitive answers.

Next week we’ll continue our journey with another factor the courts take into consideration when deciding whether a search was unconstitutional.

Until then…