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2 W. St. L. Rev. 170 (1974-1975)
Visual Searches: The Policeman as Peeping Tom

handle is hein.journals/wsulr2 and id is 176 raw text is: VISUAL SEARCHES: THE POLICEMAN AS PEEPING TOM INTRODUCTION The Constitution protects citizens against unreasonable searches and seizures.1 This federal guarantee is applicable to the states by the due process requirement of the fourteenth amendment;2 but it applies only to searches and seizures by agents of the government, not to searches by private citizens.' When the search consists of mere visual inspection or observa- tion, special difficulties arise due to the intangible nature of a visual search, especially when the observer has no legal right to be where he is or the observed has a reasonable expectation of privacy. This note examines the law regarding visual surveillance by po- lice of private citizens at home or in public restrooms, under circum- stances where the citizens reasonably expect to be unobserved. The United States Supreme Court has yet to hear a case on the point; and most of the case law is based on two decisions of the Court in 1967 and 1968, one involving the search of an automobile' and the other the bugging of a telephone booth. The tendency of state courts has been to admit evidence obtained by peeping police, but two recent California decisions6 reversed this trend and may have established a lead in the opposite direction. VISUAL SEARCHES The Plain View Doctrine When does visual observation become a search for the purpose of the fourth amendment? In Harris v. United States,7 the Supreme Court held that merely looking at that which is in plain view of an officer with the right to be in the position to have that view is not a 1. U.S. CONST. amend. IV. CAL. CONST. art. I, § 19 contains a nearly identical provision. 2. Mapp v. Ohio, 367 U.S. 643 (1961). 3. Burdeau v. McDowell, 256 U.S. 465 (1921). 4. Infra note 7. 5. Infra note 11. 6. Infra notes 22 and 37. 7. Harris v. United States, 390 U.S. 234 (1968).