Fairfax Criminal Lawyer Explains What Constitutes a Search

What is a search and the reasonable expectation of privacyThe Fourth Amendment guarantees a number of fundamental rights, but perhaps most important of these rights is the Fourth Amendment’s guarantee that people are to be free from unreasonable searches and seizures. This article discusses what the law considers to be a search; the meaning of a person’s reasonable expectation of privacy; what standards must be met in order for police to conduct a search; and a detailed overview of the exceptions to the rule which prevents law enforcement from conducting warrantless searches. 

If you believe that you were convicted of a crime as a result of an illegal search, you can visit our Virginia appeals attorney for more information on a Virginia appeals lawyer might be able to have the conviction reversed.

What is a “Search?”

The semantics of searches can be very complicated, but this article is intended to help explain the law of searches in as clear a fashion as possible. To be sure, many times, what is or isn’t considered a search is not so simple. Indeed, lawyers literally spend thousands of hours reading about the many exceptions to these rules in law school. However, in its simplest terms, a search is when law enforcement looks for evidence of a crime in an area where a person would have a reasonable expectation of privacy. At the end of the day, if an officer’s conduct constitutes a “search”, then they need probable cause or a warrant; if it is not a search, then the police can use any evidence they may find against the suspect even if it was found without a warrant or probable cause. 

When Does a Person Have a Reasonable Expectation of Privacy?

When would a person have a reasonable expectation of privacy? Well, a police officer opening a car door, opening a trunk, or looking under a person’s seat constitutes a search because those are areas in which a person would have a reasonable expectation of privacy. Likewise, if a person is in their basement (which has no windows), and they are smoking a marijuana joint, then they would have a reasonable expectation of privacy. On the other hand, if they are holding a marijuana joint in public, they do not have a reasonable expectation of privacy and the officer would not be conducting a “search” because the joint is in plain view. 

When Can Police Conduct a Search?

A police officer may not conduct a warrantless search of any area in which the suspect has a reasonable expectation of privacy unless there is probable cause that a crime has been committed. However, there are certain situations (explained directly below) in which people would think they have a reasonable expectation of privacy when, in fact, they do not. 

Outdoor Surveillance

Some people think that having a tall fence or hedges around the perimeter of their home or property would create a reasonable expectation of privacy. Yet, the Supreme Court has ruled that it is completely legal for law enforcement to fly over a person’s property for surveillance purposes and that such activity does not constitute a search. The Supreme Court’s reasoning was that private citizens fly over other people’s property every day and if that specific activity does not constitute a search, then it would be illogical to consider it a search when police officers engage in the exact same activity. Thus, no reasonable expectation of privacy existed with regard to this sort of conduct.

On the other hand, the Court later found that the use of infrared devices which detect heat could not be used to detect heat signatures from a marijuana grow operation. The Court found that using these infrared devices DID constitute a search because, unlike planes, infrared technology was not readily available to the general public.

The Court’s decisions in these cases provided a line of reasoning which seems to suggest the following: If the police use technology to surveil a person’s private property, and the technology is available to the general public, then such activity is not considered a search. However, if the technology used to surveil a person’s private property is not readily available to the general public, then it would be considered an illegal search. This sort of reasoning raises some very troubling questions regarding drones – which is a form of technology readily available to the general public.


In 1988, the Supreme Court addressed whether police need a warrant to search through someone’s trash. The Court found that when a person willingly discards their property into a trash can, they do not have any expectation of privacy. When you think about it, the Court’s decision makes perfect sense because when people place their trash on a sidewalk, they do so knowing full well that any passerby could rummage through their trash. The Court held that so long as people are rummaging through trash without an intention to use any information they find for illegal purposes, then such conduct is perfectly legal. Accordingly, it is lawful for the police to rummage through a person’s trash as well.

Exceptions to the Search Warrant Requirement

As mentioned briefly above, the police can only conduct a warrantless search if there was probable cause that a crime is being, or has been committed. For example, in order to establish the probable cause necessary to search a car without a warrant (known as the “auto exception” rule), the police must witness a vehicle violating a traffic law and show that they conducted the search (1) to ensure the officer’s safety; (2) to prevent the destruction of evidence; or (3) because there is reasonable suspicion of evidence of a crime when the car was stopped for the purpose of investigating that crime.

Without further ado, police can conduct a search without a warrant in the following circumstances:

Hot Pursuit

Under the hot pursuit exception, an officer may enter a building without a warrant for the purpose of pursuing and catching a fleeing suspect.

Exigent Circumstances

Under the exigent circumstances exception, a warrant for a search or arrest is not needed if delay could reasonably result in (1) injury; (2) death; or (3) the destruction of evanescent evidence. An example of a situation of the destruction of evanescent evidence would be when a group of college students are smoking marijuana inside their apartment and two police officers pass by in the hallway and smell the marijuana. Obviously, if the students smoke the marijuana before the officers obtain a search warrant, then upon entering the apartment, the officers would be unable to find any incriminating evidence. But because the officers know that the evidence of criminal activity could soon be destroyed, they have a sufficient basis for conducting a warrantless search if they were to smell burning marijuana. The burning marijuana would be “evanescent evidence.”

Plain View/Open Fields Doctrine

Evidence is admissible when found without a warrant if it was found (1) in the officer’s plain view; and (2) was viewed from a reasonable place in a proper position. A perfect example would be a person walking down the street holding a joint filled with weed.

As a point of emphasis, a viewpoint is reasonable if the officer did not obtain the view by violating the suspect’s reasonable expectation of privacy and the suspect would anticipate civilians viewing the object in that manner or from that vantage point. Thus, looking through a person’s car window would be acceptable, but an officer sticking their head inside a person’s vehicle would not be acceptable – it would be a violation of the suspect’s reasonable expectation of privacy.

Search Incident to Lawful Arrest

An arrest is lawful if it is effectuated as a result of the commission of a misdemeanor in the direct presence of an officer, or the officer has reasonable belief the suspect committed a felony. Incident to a lawful arrest, an officer may (1) search the suspect’s person; (2) perform a protective sweep of the suspect’s residence and/or around the suspect’s immediate “lurch” area; and (3) search the suspect’s belongings, but only if the search is conducted for officer safety and/or to prevent destruction of any evidence. It is very important to remember that while the police may do a protective sweep of the property, they exceed the scope of that search when they begin to open drawers or to search areas where a search would not reveal any persons or items which could pose an immediate risk to officer safety. 

Booking Searches

Booking searches are administrative searches during booking and processing for safety and to ensure that a suspect’s personal items are not lost. These searches are not subject to Fourth Amendment protections.

Inventory Searches

So long as there is an existing inventory search procedure, officers may search a suspect’s car upon its impoundment if (1) the search is for the purpose of protecting the suspect from theft of property; (2) to protect the police from being accused of having stolen items from the vehicle; and/or (3) the search is conducted for the purpose of discovering weapons which could endanger officers.

Consensual Searches

No warrant is necessary when the suspect gives the officer consent to search and has the capacity to give such consent. You should NEVER give police officers consent to perform a search! I discuss this in much greater detail in my article entitled Never Consent to Searches

Contact a Fairfax Search and Seizure Lawyer Today

If you or a loved one has been arrested or charged with a crime on the basis of a warrantless search, you need an aggressive and affordable Fairfax criminal defense attorney with an extensive understanding of constitutional law to file a motion to suppress the evidence against you. Contact the Law Offices of Randall Sousa today for a Free Consultation with a criminal defense attorney in Fairfax VA. 571-354-6164