Today’s question is, What is a cat out of the bag search?
This ties in with 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 the police are not involved in it, and they didn’t encourage it, it’s not a Fourth Amendment search, period! You can use the evidence.
Now let’s talk about this related issue, which is; what if somebody seizes something from a private area? Let’s say for example, that they bring you a backpack from a roommate’s bedroom, and they say, “Look, there’s drugs in here.” There is a doctrine out there called “cat out of the bag search” and it allows officers to conduct the same private search that the private person did without offending the Fourth Amendment.
So let’s dive into this and explain what’s going on here. Imagine a roommate suspects that their fellow occupant is selling drugs. One day, they go into the co-occupant’s bedroom, snoop around, open up drawers, look in closets and finally look into a backpack. And, lo and behold, they find two ounces of methamphetamine.
Shocked and angry at their roommate, 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 there’s why the cat is out of the bag. The private person, the actual defendant in this case, has lost his reasonable expectation of privacy as to what is in the backpack. Their roommate found the drugs and brought the backpack to the police station. And that roommate says, “Hey, look, I know what’s in here. There’s this substance that looks just like narcotics in the way it’s packaged.”
The point is, there is probable cause that there’s evidence in this bag. It’s not reasonable anymore that the defendant has privacy regarding those contents. It just doesn’t make any sense. The Supreme Court said that 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 to remember is, you can only do the exact same search the private person did.
So let me give an example with this backpack. If the roommate searched the backpack but did not search a pouch in the backpack, can the police then search that pouch without a warrant? No, they cannot. Because the cat is not out of the bag as to the contents of that pouch.
We certainly have probable cause to search the entire backpack now. But that means you need to go get a warrant. Remember, PC alone is never all you need for a search. You also have to have something else. It’s PC plus; it’s PC plus exigency, it’s PC plus a motor vehicle, etc. Here it’s PC plus the cat is out of the bag. In other words, the private person did the search.
So if an officer opened up that pouch without a warrant and found two more ounces of heroin, that evidence would be suppressed. It also means that you cannot really go above and beyond the search that was already conducted. You have to be careful about doing a forensic analysis on things and 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.
I told you that in this case, the roommate brought the defendant’s backpack to the police station. However, if the roommate were to call the police and tell the officer, “Hey, the backpack in my roommate’s room has contraband in it,” that officer cannot then enter the room to go grab the backpack. Because even though the cat is out of the bag as to what the contents of the backpack are, it’s still shielded by another layer of protection, which is that it’s in 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 to an apartment to join some party goers. Well, their intention was actually to rob this guy. So they get him to the apartment, and they steal all his stuff. Then they throw him out. He calls the police and the police arrive there. But by the time the cops came, these guys were gone. They knocked on the door and nobody answered.
The victim also told the police that there was contraband in the room, like drugs and so forth. 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 apartment, looked around and found contraband in plain view.
Are we good? No, we’re not! Because even though the cat is out of the bag as to what’s maybe inside that apartment, it’s certain that a warrant could have been obtained. The victim had no authority to re-enter that apartment to bring in police. That’s just not how it works. 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 enter that apartment. It’s not his. Essentially he’s trespassing. So just remember that that’s not a legal 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 she brought the phone to the police. The officers searched the phone and found the same child porn that the girlfriend found while she was messing with the boyfriend’s phone. And courts upheld that as a cat out of the bag search. But that’s a sweat on the brow 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 warrant for all digital devices. So the fallback position is a cat out of the bag search if the police have lawful access, but that is really not the best practice. Follow the rules and get a warrant. I hope this is useful for you for cops out there. Stay safe!