Keith Hunsucker, J.D., Senior Instructor, Legal Division, Federal Law Enforcement Training Center, Glynco, Georgia he legality of a search under the Fourth Amendment and the concept of reasonable expectation of privacy have long been matters of study for law enforcement officers. The Fourth Amendment prohibits unreasonable intrusions into a person's privacy. As explained by the Supreme Court in Katz v. United States: "The Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."1
Reasonable Expectation of Privacy
To further explain this concept, Justice Harlan formulated a test as to whether or not a reasonable expectation of privacy exists. He concluded that for an expectation to be reasonable, (1) a person must have a subjective expectation of privacy and (2) that expectation must be one that society is prepared to recognize as reasonable.2 This test was adopted by the Court through later decisions and thus was born the reasonable expectation of privacy concept taught to law enforcement officers throughout the country.3
Unfortunately, this is not a simple test. In a dynamic environment, how are officers to determine if there is a reasonable expectation of privacy? How do they know whether the person has a subjective expectation of privacy? How do they determine whether society is prepared to recognize that subjective expectation as reasonable?
The answer is, they do not. Judges are constantly at odds with one another over where the line is drawn as to a reasonable expectation of privacy. Instead, officers learn where they can search based on studying examples of where courts have ruled they can and cannot search. Eventually, they get a decent idea of where they can probably search, but the Harlan test does not help them, because it is just too imprecise.
Right to Be, Right to See
The concept "right to be, right to see" is consistent with Supreme Court case law. In fact, the Supreme Court embraced this idea long before it tried to determine reasonable expectations of privacy.4 The concept is this: anywhere a law enforcement officer has a right to be, he has a right to see-through the use of any of his unaided senses.5 Any observation made from a lawful location is a lawful observation. The Supreme Court has never required an officer to hold his nose, plug his ears, or cover his eyes to avoid making an observation from a lawful location. Such a requirement is so improbable that it is virtually guaranteed there will never be such a ruling.
Public Place: An officer is standing in a motel parking lot. Like anyone else, the officer has a right to be there. As he looks at one of the rooms, he can observe activity in the room and hear a conversation occurring within the room. He can also smell burning marijuana coming from the motel room. All of these observations are legal.6
Arrest in Premises: When executing an arrest warrant, an officer has a right to be anywhere on the subject's property necessary to effectuate the arrest. The officer also has a right to be conducting a protective sweep for people in immediately adjoining spaces, and may go further into the premises if there is a reasonable suspicion another person may be there. Therefore, the officer also has a right to see evidence in plain view when lawfully looking in places where a person may be.7
Search Warrant: When executing a search warrant, the officer has a right to be anywhere in the premises where the items listed in the warrant could be located. Therefore, he has a right to see anything he encounters during the course of the search. If the warrant authorizes searching for rare coins, for example, the officer has a right to look anywhere on the premises where the coins could be located. Therefore, the officer has a right to see any item equal in size or larger than the coins, such as a machine gun.
Conversely, if the warrant authorized searching for a machine gun, the officer would only have a right to look in areas where the machine gun could be located. If the officer opened a box smaller than the machine gun during this search, he would be beyond the scope of where he had a right to be and therefore his observation of the contents of the box would be unlawful. However, assuming the box itself was located in an area where the machine gun could have been located, the officer had a right to see the outside of the box. He could therefore use this lawful observation in any way, including to support the application for a subsequent warrant, if, for example, the box had unique markings and characteristics that demonstrated it was probably used to store illegal drugs.8
When conducting a lawful frisk of a person, an officer has a right to look only for weapons during a pat down of outer clothing. Therefore, any observation made while looking for weapons is a lawful one. Thus, if an officer has a right to frisk for weapons but instead encounters what he immediately recognizes as illegal drugs, the officer may seize those drugs.9 The Supreme Court decision explains it in different words, but the legal point is the same. Wherever the officer has the right to be (such as frisking for weapons), he has a right to see anything he senses from his legal location.
In another example, officers looking for a weapon during a car frisk could lawfully lift an armrest (right to be) and observe a bag of marijuana under the armrest in plain view (right to see).10
Proper application of the Fourth Amendment requires considerable study, and an officer must understand the concept of reasonable expectation of privacy. But that standard needs not be the starting point or primary focus of Fourth Amendment training and application. The vast majority of law enforcement observations come from a position where the officer is lawfully located. Anywhere an officer has a right to be, he has a right to see and make observations with any of his senses.
The first question for an officer in any Fourth Amendment situation should be: "Do I have a right to be here?" If so, he has a right to see using any of his senses, and further inquiry into whether the suspect has a reasonable expectation of privacy is unnecessary.
1389 U.S. 347, 351 (1967).
2Id. at 588 (Harlan, J., concurring).
3See generally Smith v. Maryland, 442 U.S. 735, 740 (1979).
4See Harris v. United States, 390 U.S. 234 (1968).
5The officer can frequently use aids to his senses, such as binoculars. Because there are different legal issues involving each sensory aid, some time must be used in training to explain each separately (such as the legal difference between binoculars and a parabolic microphone). Reasonable expectation of privacy must be considered when analyzing the use of these aids, because they involve the potential for making an unlawful intrusion under the Fourth Amendment. However, "right to be, right to see" is reliable when dealing with unaided senses. See generally United States v. Whaley, 779 F.2d 585 (1986).
6United States v. Burns, 624 F.2d 95, 100 (10th Cir. 1980).
7Maryland v. Buie, 494 U.S. 325 (1990).
8Horton v. California, 496 U.S. 128 (1990).
9Minnesota v. Dickerson, 508 U.S. 366 (1993).
10Michigan v. Long, 463 U.S. 1032 (1983).