SEARCH AND SEIZURESEARCH AND SEIZURESEARCH AND SEIZURESEARCH AND SEIZURESEARCH AND SEIZURE
I. GENERAL PRINCIPLES
The Fourth Amendment of the United States
Constitution and Article I, paragraph 7 of the New Jersey
Constitution protects the right of the people to be secure
from unreasonable searches and seizures. A search
compromises the individual’s interest in privacy while a
seizure deprives an individual of dominion over property.
Horton v. California, 496 U.S. 128, 133, 110 S.Ct. 2301,
2306, 110 L.Ed.2d 112 (1990).
The Fourth Amendment does not apply to searches
and seizures conducted outside the United States. United
States v. Verdugo-Urquidez, 494 U.S. 259, 274, 110 S.Ct.
1056, 1066, 108 L.Ed.2d 222 (1990). Evidence seized in
foreign countries may be suppressed (1) where foreign law
enforcement officials acted as agents or virtual agents of
American law enforcement officials or (2) where the
cooperation between American and foreign law enforce-
ment agencies was designed to evade constitutional
requirements applicable to American officials. United
States v. Maturo, 982 F.2d 57, 61 (2d Cir. 1992), cert.
denied sub nom. Pontillo v. United States, 508 U.S. 980
(1993).
The search and seizure clause does not protect citizens
from unreasonable searches by private parties. Hennessey v.
Coastal Eagle Point Oil Co., 129 N.J. 81, 95 (1992); State v.
Navarro, 310 N.J. Super. 104, 107 (App. Div. 1998), certif.
denied, 156 N.J. 382 (1998) (search of defendant’s room by
landlady did not raise constitutional issue). Where a
private citizen acts as an agent of law enforcement, the
Fourth Amendment is applicable. Cf. State v. Stelzner, 257
N.J. Super. 219, 230-32 (App. Div. 1992).
In reviewing the actions of the police, the court must
not concern itself with the subjective intent of the officer;
rather, the court must determine whether the officer’s
actions were objectively reasonable. Whren v. United
States, 517 U.S. 806, 813, 116 S.Ct. 1769, 1774, 135
L.Ed.2d 89 (1996); State v. Bruzzese, 94 N.J. 210 (1983),
cert. denied, 465 U.S. 1030 (1984).
To invoke constitutional protection against an
unlawful search and seizure, a defendant must establish
that a reasonable or legitimate expectation of privacy was
invaded by government action. Smith v. Maryland, 442
U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220
(1979); State v. Marshall I, 123 N.J. 1, 66 (1991), cert.
denied, 507 U.S. 929 (1993). Expectations of privacy are
established by general social norms. State v. Hempele, 120
N.J. 182, 200 (1990). A court must decide whether
defendant exhibited an actual expectation of privacy (the
subjective element) and whether the expectation of privacy
is one society is prepared to recognize as reasonable (the
objective element). State v. Marshall I, 123 N.J. at 66-67.
What a person exposes to the public, even in a home or
office, is not protected by the constitution. State v. Gibson,
318 N.J. Super. 1, 10 (App. Div. 1999); State v. Marshall I,
123 N.J. at 67 (no actual or subjective expectation of
privacy in envelope which had written on it “to be opened
in the event of my death.”).A convicted sex offender has no reasonable expectation
of privacy in his/her fingerprints, photograph or matters of
public record. Doe v. Poritz, 142 N.J. 1, 28 n.8 (1995).
There is no legitimate expectation of privacy shielding a
portion of the interior of an automobile which may be
viewed by passersby, whether civilians or police officers.
State v. Foley, 218 N.J. Super. 210, 215-16 (App. Div.
1987). A person cannot have an expectation of privacy in
a room used by other workers. State v. Brown, 282 N.J.
Super. 538, 547 (App. Div. 1995), certif. denied, 143 N.J.
322 (1995). The defendant had no expectation of privacy
in a rest room which was unlocked and in which defendant
was engaged in illegal drug activity when he took no steps
(like locking the door or blocking it) that would
demonstrate his desire to keep others out. State v. Boynton,
297 N.J. Super. 382, 391-93 (App. Div. 1997), certif.
denied, 149 N.J. 410 (1997). Defendant did not have a
reasonable expectation of privacy in his rear yard marijuana
crop; the use of binoculars to see what already could be seen
did not violate the constitution. State v. Citta, 208 N.J.
Super. 208, 215 (Law Div. 1990), aff’d. sub nom. State v.
Fuhs, 265 N.J. Super. 188, 190 (App. Div. 1993), certif.
denied, 134 N.J. 486 (1993). See also State v. Gibson, 318
N.J. Super. at 11 (use of flashlight).There is no reasonable expectation of privacy in the
contents of a stolen car. State v. Bohuk, 269 N.J. Super.
581, 595 (App. Div. 1994), certif. denied, 136 N.J. 29
(1994), cert. denied, 513 U.S. 865 (1994). A defendant
who breaks into a home does not have an expectation of
privacy in the effects left behind. State v. Arias, 283 N.J.
Super. 269, 281 (Law Div. 1992). A coconspirator lacked
a privacy interest in his cohort’s apartment and could not
challenge the legality of the search of the apartment. State
v. Harris, 298 N.J. Super. 478, 484 (App. Div. 1997), certif.
denied, 151 N.J. 74 (1997). A defendant had no
constitutionally protected privacy interest in a mound of
dirt where he had been standing; it was a public area which
the police could search at any time. State v. Sharpless, 314
N.J. Super. 440, 454 (App. Div. 1998). Officers posing as