Law enforcement officers and the public often have the misconception that an entry into a person's home, absent an active "looking for something or someone," is not a search under the Fourth Amendment. However, the physical act of crossing a home's threshold constitutes a "search" within the meaning of the Fourth Amendment. Payton v. New York, 445 U.S. 573, 576 (1980). Always remember that "search" is a legal term of art that means more than simply seeking out something or someone. Our courts describe a "search" as an intrusion upon a person's reasonable expectation of privacy.
Any entry into an area in which a person has a reasonable expectation of privacy is a search. Rakas v. Illinois, 439 U.S. 128, 143 (1978); United States v. Brack, 188 F.3d 748, 755 (7th Cir. 1999)(hotel room). A warrantless search violates the Fourth Amendment when it is an unreasonable infringement on an objectively reasonable expectation of privacy. United States v. Jacobsen, 466 U.S. 109, 113 (1984). Warrantless searches are presumptively unreasonable. Minnesota v. Dickeson, 508 U.S. 366, 372 (1993).
The "advance of technology" necessarily changes what people can expect to be reasonably private, such as the ability to view property from the air. Kyllo v. United States, 121 S.Ct. 2038, 2043 (2001). However, use of a thermal imager to obtain information about the interior of a home was a search and an unreasonable search. Id.
Urine testing is a search. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 617 (1989).
Drawing blood is a search. Scmerber v. California, 384 U.S. 757, 770 (1966).
Extraction of DNA samples is a search. Shaffer v. Saffle, 148 F.3d 1180,1181 (10th Cir. 1998).
A dog sniff is not a search. United States v. Place, 462 U.S. 696, 707 (1983). A canine sniff on the exterior of a vehicle during a lawful traffic stop does not implicate legitimate privacy interests. Illinois v. Caballes, ___ U.S. ___, 125 S.Ct. 834, 838 (2005). Romo v. Champion, 46 F.3d 1013, 1018 (10th Cir. 1995)(as long as item is lawfully seized, dog sniff not unreasonable).
The use of electronic devices to capture conversations is a search. Berger v. New York, 388 U.S. 41, 51 (1967). However, there is no reasonable expectation of privacy in cordless phones. United States v. Mathis, 96 F.3d 1577, 1583 (11th CIr. 1996).
Touching or movement of luggage is not a search. Bond v. United States, 529 U.S. 334, 338-39 (2000). However, inspection of the interior of luggage is a search. Id.
Illuminating an area that is subject to public view is not a search as long the officer is legally present. Texas v. Brown, 460 U.S. 730, 739-40 (1983).
The act of moving property (stero) that is not contraband in a manner to inspect its serial numbers to determine if it was contraband was held to be a search. Arizona v. Hicks, 480 U.S. 321, 327 (1987).
In sum, always ask two questions:
- Do you expect privacy in the place or property?
- Is your expectation of privacy reasonable?
If so, the police viewing of the place or thing (or any other sensory intrusion into the place or thing) is a search.