A person is entitled to a reasonable expectation of privacy within his own place of residence, among other places. Courts are extremely protective of the home along with the privacy citizens are entitled to therein. For the government to intrude into the inner sanctum of the domicile, one of three things is required: a warrant based on probable cause, exigent circumstances, or permission (waiver of privacy rights.) Entry by police into the home will almost always be considered a search, and without one of the three above, any evidence of criminal activity gained there constitutes fruit of the forbidden tree, which will not be allowed in court.

Mailman Rule

However, police are allowed to enter into certain areas surrounding the home, such as the front porch. This so-called “Mailman Rule” allows police to enter into areas not considered curtilage and where anybody else, including mailmen, might legally enter. Once there, they may take enforcement action with regard to any activity that is in plain view.

In general, the plain view doctrine states that wherever a police officer has a legal right to be, anything lying within plain view is fair game in terms of seizure for evidentiary purposes. This doctrine applies only without moving or lifting so much as a napkin one inch, or anything else, that could constitute even the slightest hint of a search. In other words, the evidence seized must truly be in plain view, and must not require the slightest amount of manipulation of surrounding objects to be seen. The view by police through a window in the front door or a window viewable from the front porch near the front door will allow the plain view doctrine.

A landmark case, People v. Accardi 671 NE2d 373 (1996), demonstrates the ardent determination of the courts to protect the intimacy of the domicile. In this case, police flew an aircraft over the home of the criminal defendant, Accardi, at a legal height of more than 1,000 feet. There, they observed illegal cannabis plants that were hidden from the street view by trees. Officers then entered into the curtilage of the house and seized the contraband. An appellate court determined the observance in flight to be a search and rejected the marijuana as evidence.


Curtilage is defined as area immediately surrounding a house or residential building, in which privacy is presumed. The exact definition is elusive, but the essential elements are proximity to the house and seclusion from walking paths and other areas where visitors would enter upon.

Court-made rules

In yet another display of the protection courts apply to the home, the use of a heat-detecting device, even when utilized at a distance of 75 feet from the house or more, is considered a search, just as entry into the home would be. Heat seeking devices were used decades ago to detect residential growing centers for illegal cannabis.

No expectation of privacy on the public way

Citizens have no reasonable expectation of privacy on the public way. Police are allowed to conduct a check of a license plate through a law enforcement database for no cause whatsoever and to take action resulting from information revealed by the inquiry. A citizen may be photographed by the government or another citizen without any violations of rights.

Get legal help to invoke one of your dearest rights: the right to privacy

The Constitution guarantees your rights, but they will not take effect unless you invoke them. If the police have violated constitutional principles of privacy in order to gather evidence against you, it is not too late to assert your Fourth Amendment right to privacy. Contact the criminal defense attorneys at The Nahajski Firm at (206) 621-0500 for a free and confidential initial consultation, and get that evidence rejected from court.