Is There a Reasonable Expectation of Privacy in Illegal Activity?

My previous blog posts on drug sniffing dogs have flirted with this issue. Commenters seem most inflamed by it. Yet, it is dogma that there is no Fourth Amendment right to privacy in possessing contraband. The rationales animating the Fourth Amendment currently protect those who are ultimately found to possess contraband only as a way to shield the innocents, who do not possess contraband but may have other embarrassing items in their possession. According to the Supreme Court, we protect the guilty only to safeguard the innocent from intrusive government action.

Because the Court has held that there is no reasonable expectation of privacy in contraband, intrusions that are “binary,” or test only for the presence or absence of contraband, do not implicate Fourth Amendment rights. Thus, police officers may use drug sniffing dogs, test white powder for cocaine, or use child pornography detection software to search only for digital contraband without any suspicion justifying their actions. (This does not mean that law enforcement can use any means to do so, and Florida v. Jardines will test how intrusive binary searches can be, but I do not believe that Jardines will overturn the proposition that no suspicion is needed before using a drug sniffing dog in a less intrusive way.)

The Seventh Circuit has even extended this logic to hold that there is no reasonable expectation of privacy in illegal activity, no matter where it occurs. The Court of Appeals in United States v. Brock, 417 F.3d 692 (7th Cir. 2005), allowed a canine sniff at the door to a man’s room once his roommate consented to allow the police access to the home. This would be one way of deciding Florida v. Jardines, although I doubt the Supreme Court will go as far as the Seventh Circuit. If you’re interested in the “contraband exception” to the Fourth Amendment, check out Timothy MacDonnell, Orwellian Ramifications: The Contraband Exception to the Fourth Amendment, 41 U. MEM. L. REV. 299 (2010).

Despite the current dogma, the history of the Fourth Amendment indicates that the Framers may have been trying to protect the actions of the guilty, in addition to the innocent, from unreasonable intrusions. As Sam Kamin and Ricardo J. Bascuas note in their casebook, Investigative Criminal Procedure: A Contemporary Approach, one of the major intrusions the Framers were trying to prevent was the use of generalized searches of homes to discover illegal, seditious material, which would now be protected by the First Amendment, or to uncover evidence of evasion from the unpopular tax laws. Perhaps one function of the Fourth Amendment is to prohibit intrusive action where activity may be technically illegal, but the law is unjust. The United States’ “drug war” springs to mind, calling into question the ease with which police officers use drug detection dogs on cars or at the airport without Fourth Amendment scrutiny. Harder cases involve explosives detection dogs- how much should we be protecting the privacy rights of those with violent intentions?

I’m not sure how much current Fourth Amendment law would be compromised by recognizing that there is some reasonable expectation of privacy in contraband. Certainly, the recognition will add obstacles to enforcing the law. But, that may be the entire point of protecting the privacy rights of those who are engaging in activity that is currently criminal but may not be illegal in the future.


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18 Responses

  1. A.J. says:

    This issue is even more interesting in the context of technology. The 7th Cir. has also recently upheld the warrantless search of a cell phone. People may (and many teenagers do) possess contraband on their cell phones, such as “sexting” images and illegally downloaded apps/music.

    I wonder whether an expectation of privacy in one’s cell phone (or laptop, iPad, etc.) contraband is considered reasonable?

  2. Joe says:

    The problem seems to be that it is often hard merely to target illegal activity thus in the process privacy is also violated. The dissent in the dog sniff case flagged this issue (the obtrusive nature of dog sniffs, even if they sniff and go away) and it is particularly a concern at the home.

  3. Brett Bellmore says:

    There’s a reasonable expectation of privacy, which kind of precludes getting to the whole issue of illegal activity unless you’ve already got cause for violating it.

  4. Jim Maloney says:


    Your writing “Perhaps one function of the Fourth Amendment is to prohibit intrusive action where activity may be technically illegal, but the law is unjust” reminds me of Justice Stevens’s dissent in Morse v. Frederick, 551 U.S. 393 (2007), where he wrote:


    [T]he current dominant opinion supporting the war on drugs in general, and our antimarijuana laws in particular, is reminiscent of the opinion that supported the nationwide ban on alcohol consumption when I was a student. While alcoholic beverages are now regarded as ordinary articles of commerce, their use was then condemned with the same moral fervor that now supports the war on drugs. The ensuing change in public opinion occurred [slowly] . . . [b]ut just as prohibition in the 1920’s and early 1930’s was secretly questioned by thousands of otherwise law-abiding patrons of bootleggers and speakeasies, today the actions of literally millions of otherwise law-abiding users of marijuana, and of the majority of voters in each of the several States that tolerate medicinal uses of the product, lead me to wonder whether the fear of disapproval by those in the majority is silencing opponents of the war on drugs.


    It is quite probable that the Framers did indeed recognize that unjust laws can be enacted and used as tools of intrusion for totalitarian governments, tools made much more effective, of course, in the absence of protections such as prohibitions against warrantless searches and seizures.

    It is worth considering that the constitutional courts of several other nations have found that the right of citizens to possess small quantities of consciousness-altering substances for personal use in the privacy of their home is protected. Not so, of course, in this “land of the free.”

  5. Ken Rhodes says:

    I’m with Brett. I just red the text of the fourth amendment again, and I still can’t find the words that say the cops can search if it’s only for “contraband.” Therefore, I am still totally confounded by the statement (in a prior post on this subject) that there is no right of privacy in contraband. It isn’t the stuff being searched for that’s subject to the fourth amendment, it’s me and my house. It doesn’t say the cops can’t search for stuff that might, or might not, be illegal. It says they can’t search — period — without probable cause and a proper warrant.

  6. Joe says:

    >It says they can’t search — period — without probable cause and a proper warrant.

    The actual text first says no “unreasonable searches and seizures” are allowed.

    The traditional rule (to my understanding) was that “mere evidence” could not be generally seized but contraband (which one had no right to have in the first place) could be. There were also traditional rules on what “reasonable” searches entailed and that is part of the “only affecting contraband” rule appears to arise from.

    Then, the text goes to the rules for warrants, but warrants are not required in every case, including what is in “plain view,” including sniffing by police officers or in various cases by their best friends. Again, the first part provides a limit, since even w/o warrants, all searches and seizures must be “reasonable.”

  7. Brett Bellmore says:

    Well, the amendment itself doesn’t demand warrants in every case. Or, for that matter, say that you could ever conduct a search without one! However, the idea that there could be strict requirements for the issuance of warrants the police don’t actually need to get is just a bit of sophistry. There’s no point in regulating what’s needed to get warrants if you don’t need to get warrants.

    If it’s in plain sight, you don’t need a warrant because you don’t need to conduct a search, you already know it’s there without conducting one.

  8. Erica Goldberg says:

    What the Court has said is that if a device detects only the presence or absence of contraband, it is not a “search” in the first place, and thus need not be measured by the reasonableness standard.

    Jim Maloney, great quote! Justice Stevens, however, was one of the biggest proponents of the no reasonable expectation of privacy in contraband rule.

  9. Brett Bellmore says:

    What’s that quote? “If the law says that, the law is an ass.”

  10. Joe says:

    the idea that there could be strict requirements for the issuance of warrants the police don’t actually need to get is just a bit of sophistry.

    I don’t know what this is responsive to. Why are they getting warrants that they don’t need?

    There’s no point in regulating what’s needed to get warrants if you don’t need to get warrants.

    You need to get warrants in various situations and the implication is that it is the presumptive thing required. Also, even if the warrant turns out not to be needed, an independent judge authorizing it would give the search/seizure more legal cachet, including perhaps in a civil damages suit. I don’t know what your point is.

    If it’s in plain sight, you don’t need a warrant because you don’t need to conduct a search, you already know it’s there without conducting one.

    It isn’t a legal “search” since searching you might be doing, but it is in an area where you have the right to be in. You can “search” with your eyes in such areas but it isn’t a legal search here. Also, a “seizure” can occur sometimes w/o a warrant if something occurs in plain sight of the officer, though a traditional role to my knowledge in various cases did not apply this to felonies.

  11. Jim Maloney says:


    Yeah, his dissent in that “Bong Hits 4 Jesus” case was one of his best works. His endorsement of the no reasonable expectation of privacy in contraband rule (the “dark side”?) can perhaps be squared with it on the basis of the proposition that citizens should have every right to speak out against an enacted law, but no right to disobey it (unless, of course, it is a law banning or limiting that very speech).


    Scroll up to Comment #4.


    How about this? A foolproof binary search technique is developed whereby FBI computers can probe millions of private home computers to see if child pornography exists on their hard drives. If a positive is returned, agents get a warrant to search that home and seize the hard drive in preparation for a prosecution. If you’re OK with that, add this: a new virus comes into existence that surreptitiously uploads child pornography to private computers, such that many of the targets of the new binary-search-then-get-warrant-and-seize technique are unaware that the contraband was ever on their drives. No problem, you say: the accused could assert the child pornography virus defense? Well, maybe, but I think I’ve made the point: by accepting the doctrine that if a methodology detects only the presence or absence of contraband it is not a “search” in the first place, we are going down a dangerous path in the evolution of the citizen’s relationship with government.

    If that were not troubling enough given the current case-law trajectory in this milieu of rapid technologicalk advancement, there is the more fundamental question: are binary searches ever really binary? Oh, maybe they’re binary most of time, with low false positive rates. So is, say, 99% reliability “good enough”? (Well, maybe not for a certain 1%…). As has been commented elsewhere, the Clever Hans effect on drug-sniffing dogs must happen at least once in a while (and maybe more often), and as I’ve posted, the binary search concept really ought to go the way of “separate but equal” for similar reasons: at root, those doctrines are (to borrow familiar terms) inconsistent in practice with the ideal of “liberty and justice for all.” They protect not all but only some…

  12. Michael J.Z. Mannheimer says:


    Nice post. I agree that the Fourth Amendment — and much of the rest of the Bill of Rights, for that matter — was designed to protect people who are indeed guilty of “unjust” laws. I would add, however, that that was not necessarily the purpose of the Fourteenth Amendment, which is the operative provision in most of the “Fourth” Amendment cases we talk about, such as Caballes and Jardines. The Bill of Rights was designed specifically with an eye toward hobbling the FEDERAL government’s ability to punish people for violating laws that local majorities disagreed with. The Fourteenth Amendment was designed with very different purposes in mind. But because we reflexively apply the Fourth Amendment “jot for jot” to the States via the Fourteenth Amendment, we tend to lose the distinctions between what motivated these very different provisions.

    FYI, Renee Hutchins, Laurent Sacharoff, Ric Simmons, and I will be discussing “binary searches” at SEALS in a few weeks.

  13. Joe says:

    Since the 14A is partially a matter of protecting minorities, guarding against excesses of “local majorities” seems to me to be a concern there too.

    I also don’t know why we should consider the “unjust law” protection aspect to not be incorporated to states, particularly to the degree they have the potential of violating basic privacy and/or autonomy (calling Prof. Anita Allen), which is part of why slavery is so wrong.

  14. Larry Rosenthal says:

    “Perhaps one function of the Fourth Amendment is to prohibit intrusive action where activity may be technically illegal, but the law is unjust.” This has always struck me as an odd argument because it suggests that it is constitutionally unobjectionable for the legislature to enact “unjust” laws as long as they can only be enforced imperfectly. Even putting aside whether the drug laws — penalizing people who sell addictive poison to others — are properly characterized as “unjust,” if the objection is to the substance of the law, then shouldn’t the debate directed at the substance, rather than merely ensuring that not every violator can be detected? The probable cause and warrant requirements, after all, don’t seem to have prevented many thousands from being convicted under the drug laws. In that sense, it does not seem that the Fourth Amendment been very effective in blunting the effects of these “unjust” laws. And, perhaps the political process would operate more effectively to repeal “unjust” laws if they were capable of wider and more efficient enforcement, leading a wider swath of the electorate to regard these laws as a threat to its own liberty.

    Larry Rosenthal
    Chapman University School of Law

  15. Will Coy-Geeslin says:

    The lack of a reasonable expectation of privacy in contraband strikes me as results-oriented. It allows law enforcement to self-authenticate their hunch-based searches. The entire trajectory of post-Warren Court reduction of the scope of individual rights vis-a-vis the Fourth Amendment seemed to me to flow from a similar line of subtext: the various exceptions, Leon, plain view, administrative searches, etc all had defendants that were factually guilty. Courts were understandably hesitant to strengthen rights that would have practical effect of letting a convicted person go free.

    Perhaps there were general good-faith, unstated notions of basic comity – fed govt, acc. to many, should err on the side of the state’s ability to run their criminal justice systems without interference.

    The main problem with this approach is that those who are investigated by police that do not have contraband are unable to litigate this violation. Thus, this unjustified non-search is outside the scope of the Court’s proper exercise of oversight of the police.

    to put it another way, I view the non-search of contraband to track well with the test for determining whether a given accused is a witch (nose notwithstanding):

  16. Erica Goldberg says:

    Thanks so much for these great comments. Best of luck at SEALS, Michael. I’ll have to think more on 4th A rights as applied to the states (through the 14th) instead of the federal gvt, although we may have to accept as a product of modern constitutional doctrine that these rights are basically coterminous. Notions of comity, and how the political process affects our understanding of 4th A rights should certainly also affect the analysis. As always, the feedback is much appreciated.

  17. Michael J.Z. Mannheimer says:


    Your thoughts dovetail with mine. There is no objective conception of what is “unjust.” All we have to go on is what current, transient majorities believe to be unjust. At the state and local level, where political accountability is at its most robust, we can assume that lawmakers accurately reflect the views of the majority of their constitutents in deciding what is “unjust.” So at that level, the Fourth Amendment as incorporated by the Fourteenth ought not be read as being designed to frustrate enforcement of valid laws. But we run into two problems at the national level: (1) political accountability is weakened, so that we cannot always assume that legislators represent the views of a majority of their constituents; and (2) even if they do, local majorities can be outvoted by national majorities. To account for these difficulties, we have a Bill of Rights that in some ways enshrines local majoritiarian preferences as against the preferences of the national majority. Thus, the Fourth Amendment can be read as hobbling the federal government’s ability to investigate violations of laws that local majorities believe are “unjust.”

  18. Larry Rosenthal says:


    I am afraid that it still odd to me that the Fourth Amendment should be understood has “hobbling the federal government’s ability to investigate violations of laws that local majorities regard as unjust” since the Fourth Amendment, of course, “hobbl[es]” the federal government’s ability to investigate violations of all laws, regardless of whether anyone regards them as unjust. The Fourth Amendment seems a poor proxy for protecting people from “unjust” laws. Moreover, I worry whether this conception of the Fourth Amendment might actually undermine the federal government’s political accountability for “unjust” laws if they can only be imperfectly enforced — especially when enforcement is likely to be concentrated disproportionately on relatively disadvantaged and politically powerless groups that cannot afford to invest in detection-evading measures that can effectively conceal unlawful activities form Fourth Amendment-compliant investigation. And, of course, after incorporation, the Fourth Amendment hobbles the ability of even local majorities to enforce local laws that they regard as entirely just.