what is a searchThe Fourth Amendment of the United States Constitution provides that:

"The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

All of search and seizure law in Ohio, and throughout the United States, emanates from that short paragraph above.

Many legal scholars still debate whether a so-called “right to privacy” exists in the United States.  But, in common-sense terms, it is hard to ignore that the Fourth Amendment does, in a very practical way, protect our right to privacy.  Indeed, the provision states that people must be free from unreasonable interference into their personal items by the government.  

Does the Fourth Amendment mean that the cops can never touch you, or search your car?  No, the Fourth Amendment is not that broad.  Yet, it ensures that a search must be reasonable before a government official can conduct a search, and that all search warrants must be based on probable cause before they are valid.  

Given the above, we still need to answer the question, “What constitutes a search?”  The answer to that question is – a search is any intrusion by the government into any space where you have a reasonable expectation of privacy.   

There are two parts to that statement.  

First, the government must be involved for there to be a Fourth Amendment violation.  For example, if your friend happens to go into your school locker, you may certainly feel that your privacy was violated.  You cannot, however, claim that your friend violated the Fourth Amendment because your friend is not a government official.

Second, you must have a reasonable expectation of privacy in the space that was searched.  If you leave your watch in a public park and a police officer picks it up and looks at it, then that is not an unlawful search because you can’t reasonably expect privacy in a public park.  But if the watch was in your pants pocket, then you have a Fourth Amendment issue.  

The key takeaway here is that a search that implicates the Fourth Amendment of the Constitution is any intrusion into a space (i) by a government official, where (ii) you have a reasonable expectation of privacy.  

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Tad Brittingham
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Criminal defense attorney Tad Brittingham is dedicated to serving his clients throughout the Cincinnati area
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