When the Fourth Amendment Doesn't Protect You

The Fourth Amendment applies to a search only if a person has a “legitimate expectation of privacy” in the place or thing searched. If not, the Fourth Amendment offers no protection because there are, by definition, no privacy issues.

Courts use a two-part test (fashioned by the U.S. Supreme Court) to determine whether, at the time of the search, a defendant had a legitimate expectation of privacy in the place or things searched:

  • Did the person actually expect some degree of privacy?
  • Is the person’s expectation objectively reasonable — that is, one that society is willing to recognize?

For example, a person who uses a public restroom expects not to be spied upon (the person has an expectation of privacy) and most people — including judges and juries — would consider that expectation to be reasonable (there is an objective expectation of privacy as well). Therefore, the installation of a hidden video camera by the police in a public restroom will be considered a “search” and would be subject to the Fourth Amendment’s requirement of reasonableness.