Ok. But just understand that this view implies a fundamental re-working of the existing law, turning all investigation into a search, and needing a court to determine whether it was reasonable or not.
Well, heretofore the justification for that right has been that when police search for evidence of crime it necessarily means they also get to see all kinds of private stuff that is perfectly legal.
So if you’re going to say that it invades privacy to search in a way that *only *sees illegal contraband, you need a new justification. You can’t rely on the old one. What is it, exactly?
You keep dropping one of the basic terms in this query: The three terms we are concerned with are “reasonable”, “search” and “private property”. As I pointed out berfore, what is a “reasonable search” on public property may not be a “reasonable search” on “private property”.
The legal term “search” assumes the privacy is being invaded, Czarcasm.
When talking about existing law, there aren’t three questions: search, reasonableness, private or public. There are only two questions, because the privacy question is answered by whether it’s a search or not.
ETA: I get why this is confusing, because in ordinary language we refer to things that don’t invade privacy as searches, like searching for my keys at the baseball field. But that’s now how the word works in Fourth Amendment law.
I understand that in legal parlance a “search” is an unreasonable search. I was trying to point out that dog sniffing is a search used in the common context just like an officer looking around the interior of your car or your trunk is a (common usage) search and that the difference is that looking through your car window is reasonable and therefore not a “search” (legal usage) whereas them opening up your trunk is unreasonable and therefore is a (legal usage) “search”.
Do I have that right?
ETA: Looks like you answered that in the previous post.
Absolutely it changes the nature of the observation. In public we have no, or very little expectations of privacy. That is the very point of making the distinction between public spaces (which anyone may use) and private ones; which are assumed to be limited to the use of the owners, and those that have legitimate business there.
If the officer wants to walk his drug dog around on the public sidewalk that is perfectly fine by me. The moment he steps onto my property without a warrant or probable cause though, my expectation of privacy trumps his use of extra sensory search devices.
“The dog alerted that there were drugs in the area”
“We observed teh suspect hiding what appeared to be a corpse in the crawlspace”
to the specific -
“We need to search 123 anystreet for the presence of drugs and or a corpse”
changes the necessity of a warrant.
By definition - ALL investigation is a search - as soon as it becomes narrowed down to a specific person/place/thing - that is when it starts to fall under the 4th and should require law enforcement to get warrants.
A drug dog is a specific tool for a specific purpose - taking it to a specific address implies that there is something to be searched for there. It is that specificity that changes it from an “investigation” to a “search”.
I think this is essentially answered by what I just posted, but no, that’s not right.
A search is not necessarily unreasonable. A search is an invasion of privacy. It may or may not be reasonable under the circumstances.
In your examples, they are not searches because they do not invade privacy. The Court never reaches the question of reasonableness because the Fourth Amendment doesn’t even apply.
“An expectation of privacy in commercial premises, however, is different from, and indeed less than, a similar expectation in an individual’s home.” New York v. Burger, 482 U.S. 691, 700 (1987).
All I’m saying is that this isn’t the existing law. The current test of whether something is a search is not how specific the investigation is. The current test is whether the investigation invades a privacy interest. The two categories are not co-extensive.
Can I ask a really stupid question (like most of mine are):
I understand that my porch and door invite public access or whatever the legal term is. That also means that a police office does not need cause to come up to my door.
Suppose I put up a sign saying “no one is allowed on my property without prior permission”. Would that mean now anyone like Jehovak Witnesses or Girl Scouts selling cookies is now tresspassing. More importantly for this thread, would a police officer need cause to come on my property?
Not a stupid question at all. The question about to what extent one can close off one’s own porch and other curtilage is very much an active legal issue. I believe, though I’m not up on the current law, that you can indeed take sufficient steps to prevent your entrance from being open to the public.
I do not believe you can do so with signage, but that’s just a hazy memory and I don’t remember exactly why that is so.
But the dog does enable the investigation to invade a privacy interest - as it can be used - without a warrant - to enable the investigator access to an area they would not otherwise have access to.
While the dog may not alert to my ‘nefarious’ collection - it would allow the officer to invoke the plain sight rule as they go search thru - again, without the warrant.
The fourth also protects us from the seizure of our goods, papers, etc by the police who might be nosing about in our things. That is why warrants are specific. A search that is not warranted means that the officer needs not specify his or her “things to be seized” and can take whatever they like as “evidence”. They could hold your goods for ransom, or simply cause you additional legal problems if you have weird things that they don’t recognize.
Let me use a personal example: I work with a lot of bones, hides, and other wildlife products in my sculpture. Suppose our dog alerts to the unusual odors, as pretty much any dog would. Every piece that I have is legal to own, but there are lots of strange things in my office, including a big jar of femurs and vertebrae. Many of them are big enough to be human, though they aren’t. Should I have to deal with having my property seized because the officer is not familiar with anatomy enough to know the difference? Should I have to deal with fish and game poking about my home later as a result of that report? etc.. etc.. The unwarranted search could easily lead directly to the loss of my property, time, and possibly money just to get back my own property that was illegally seized because the search of my home was unwarranted.