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Hey guys, it's Anthony Bandiero here with blue to gold law enforcement training. And today I'm bringing another roadside chat from Studio.
Today's question is, what is a cat out of bag search? So this ties in with another video that I made about private searches. Just to remind you a private search is not a Fourth Amendment search. It does not have to be reasonable. We don't care if it would offend the Fourth Amendment. If you know if you did it, if the police are not involved in it, and they didn't encourage it. It's not a fourth research period, you can use the evidence. Now let's talk about this related issue, which is, what if somebody sees something right from a private area? Like say for example, they bring you a backpack from the from a roommates bedroom, right? And they say, look, there's drugs in here.
There is a doctrine out there called cat out of the back search and allows officers to conduct the same private search that the private person did without offending the Fourth Amendment.
So let's kind of dive a little dive into this and explain what's going on here. So let's walk through this. So imagine a roommate suspects that their that their fellow occupant is selling drugs. One day, they go into the occupants bedroom, snooped around and open up drawers and look in closets and look into a backpack. And lo and behold, they find two ounces of methamphetamine,
shocked and pissed off, because their roommate is, you know, is they confirm what they are doing. They bring the backpack to you at the police station.
The legal question is, what can you do with that backpack? And the answer is the exact same thing the private person did before they entered the police station. That means that if an officer unzipped the backpack, and looked inside and saw those two ounces of methamphetamine, that officer could seize that meth as plain view. And here's why the cat is out of the bag. In other words, the private person, the actual defendant in this case, has lost his reasonable expectation of privacy as to what is in the backpack? Think about him? Is it reasonable for a person to have this private search conducted by their roommate or talk about the defendants point of view, and their roommate found the drugs and and brings it to the inn brings it to the police station? And that roommate says, hey, look, I know what's in here. You know, there's, there's this substance that looks just like, you know, like narcotics is the way it's packaged. And maybe they have personal experience with it. But my point is, you know, there is probable cause that there's evidence in this bag. It's not reasonable anymore, that the defendant has privacy as to those contents. I mean, it just doesn't make any sense. But the Supreme Court said in a case called Jacobson, the cat is out of the bag, we know what's in it. Therefore, the police can do the exact same search. But I want to follow up with a couple points here. Because this is a very, very powerful doctrine, it has saved a lot of searches in the past. The first thing is, remember, you can only do the exact same search the private person did. So let me give an example in this backpack. If the roommates
right not to defend, but the roommate did not search a pouch in the backpack? Can the police then search that pouch without a warrant? No, no, they cannot. Because the cat is not out of the bag as to the contents of that pouch. Now, we certainly have probable cause to search the entire backpack now. But that means you have to go get a warrant. You know, remember, PC alone is never all you need for a search you have to have something else that's it's PC plus, it's PC plus exigency, it's PC plus a motor vehicle. Here it's it's PC plus the cat is out of the bag. In other words, the private person are did the search. So if an officer opened up that pouch and found two more ounces of heroin, that evidence will be suppressed. It also means that
you cannot really go above and beyond the, the the the search was already conducted. In other words, you know, be careful about doing forensic analysis on things and you know, sending things to the lab and so forth because that is not what the private person did. You really should be getting a warrant to do a search that's above and beyond what the private person did. The second issue is
You have to have lawful access to the item. When I told you this case is that the the roommate brought the defendants backpack to the police station, it would not be allowed for the roommate to call police tell the officer Hey, the backpack in my, this roommates, the defendants room is has contraband and that officer cannot then enter the room to go grab the backpack out. Because even though the cat is out of the bag as to what the contents of backpack, it's still shielded by another layer of protection, which is his room. So just remember, that is also what's going on here. Let me give you a case example that illustrates this. A person a victim was invited back to an apartment to watch some party goers. Well, you know, they really their intention was actually to rob this guy. So they get him back to the apartment, they steal all his stuff. And they throw him out. They he calls police the police arrive there. But by the time the cops come back, these guys are gone. And they tried to you know, they knocked on the door, nobody answered. Then the victim
backup. The victim also told police that there was contraband in the room like drugs and so forth. So so the cat is out of the bag as to what's inside the apartment. Then the victim opened the door and was like, Hey, I'm going to show you where everything is. The police officer then entered the the apartment, looked around and found contraband in plain view. Are we good? No or not? Because even though the cat is out of the bag as to what's maybe it's inside that apartment, it's certainly a warrant could have been received. The victim had no authority to re enter that apartment to bring in police. I mean, he's that's just not how it works. I mean, he was lawfully present at one time, but he's no longer lawfully present. Now because there is no exigency. He has no right to that apartment. It's not his. Essentially he's trespassing. So just remember that that's a cow that back search. I find these searches fascinating. And they have saved officers in some very serious cases. Just to give you an example, some officers have searched digital devices, because the person has said, hey, my boyfriend has child porn on his phone. And then he brought the phone to police. And then the officers searched the phone and found the same child porn that the girlfriend found, you know, while she was messing with the boyfriend's phone. And courts have upheld that as a cat out of the bag search.
But that's a brow type of sweat, you know, issue because, as an attorney, I do not train police officers to search digital devices under this theory even though it can be done. Courts really want you to get that warrants for all digital devices. So the fallback position is a cat on the back search if the police have lawful access, but that is really not best practice. I hope it helps keep your questions coming in. Until next time, stay safe