Wednesday, January 18, 2017
In United States v. Jacobsen, the Supreme Court created a curious aspect of Fourth Amendment law now known as the private search doctrine. Under the private search doctrine, once a private party has conducted an initial search independent of the government, the government may repeat that search, even if doing so would otherwise violate the Fourth Amendment. The private party’s search renders the subsequent government “search” not a search in the constitutional sense.
Jacobsen is based on the privacy theory of the Fourth Amendment introduced by the Court in Katz v. United States. According to the Court in Jacobsen, a private search — even if unauthorized — destroys an individual’s reasonable expectation of privacy. Thus, by merely repeating the search, the government does not further infringe on a person’s privacy. The private search doctrine is invoked by courts to justify police actions with somewhat surprising frequency.
In 2012 — twenty-eight years after Jacobsen — the Supreme Court restructured Fourth Amendment doctrine in United States v. Jones. In Jones, the Court held that the reasonable expectation of privacy test is not the only definition of a Fourth Amendment search.