{"id":7573,"date":"2023-10-27T15:47:57","date_gmt":"2023-10-27T15:47:57","guid":{"rendered":"https:\/\/portal.bluetogold.com\/?p=7573"},"modified":"2026-09-17T06:14:02","modified_gmt":"2026-09-17T13:14:02","slug":"what-is-the-cat-out-of-the-bag-search","status":"publish","type":"post","link":"https:\/\/portal.bluetogold.com\/?p=7573","title":{"rendered":"What is the Cat Out of the Bag Search?"},"content":{"rendered":"

Today’s question is, What is a cat out of the bag search<\/strong>?<\/p>\n

Is a private search a Fourth Amendment search?<\/h2>\n

This ties in with private searches.<\/em> Just to remind you, a private search<\/a> is not a Fourth Amendment search. \u00a0It does not have to be reasonable.\u00a0 We don’t care if it would offend the Fourth Amendment.\u00a0 If the police are not involved in it, and they didn’t encourage it, it’s not a Fourth Amendment search, period!\u00a0 You can<\/em> use the evidence.<\/p>\n

Now let’s talk about this related issue, which is; what if somebody seizes<\/em> something from a private area?\u00a0 Let\u2019s say for example, that they bring you a backpack from a roommate\u2019s bedroom, and they say, \u201cLook, there’s drugs in here.\u201d\u00a0 There is a doctrine out there called \u201ccat out of the bag search\u201d<\/em> and it allows officers to conduct the same private search that the private person did without offending the Fourth Amendment.<\/p>\n

What happens when a roommate brings you a bag full of drugs?<\/h2>\n

\u00a0So let’s dive into this and explain what’s going on here.\u00a0 Imagine a roommate suspects that their fellow occupant is selling drugs.\u00a0 One day, they go into the co-occupant\u2019s bedroom, snoop around, open up drawers, look in closets and finally look into a backpack.\u00a0 And, lo and behold, they find two ounces of methamphetamine.<\/p>\n

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?\u00a0 And the answer is; the exact same thing the private person did before they entered the police station.\u00a0 <\/em>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<\/a>.<\/p>\n

And there’s why the cat is out of the bag.\u00a0 The private person, the actual defendant in this case, has lost his reasonable expectation of privacy as to what is in the backpack.\u00a0 Their roommate found the drugs and brought the backpack to the police station.\u00a0 And that roommate says, \u201cHey, look, I know what’s in here.\u00a0 There’s this substance that looks just like narcotics in the way it’s packaged.\u201d<\/p>\n

\u00a0The point is, there is probable cause that there’s evidence in this bag.\u00a0 It’s not reasonable anymore that the defendant has privacy regarding those contents.\u00a0 It just doesn’t make any sense.\u00a0 The Supreme Court said that in a case called Jacobsen; the cat is out of the bag, we know what’s in it.\u00a0 Therefore, the police can do the exact same search.<\/p>\n

\u00a0But I want to follow up with a couple points here. Because this is a very, very powerful doctrine.\u00a0 It has saved a lot of searches in the past.<\/p>\n

Can police search more than the private person searched?<\/h2>\n

\u00a0The first thing to remember is, you can only do the exact same search the private person did.<\/p>\n

\u00a0So let me give an example with this backpack.\u00a0 If the roommate searched the backpack but\u00a0 did not search a pouch in the backpack, can the police then search that pouch without a warrant?\u00a0 No, they cannot.\u00a0 Because the cat is not out of the bag as to the contents of that pouch.<\/p>\n

We certainly have probable cause to search the entire backpack now.\u00a0 But that means you need to go get a warrant.\u00a0 Remember, PC alone is never all you need for a search.\u00a0 You also have to have something else.\u00a0 It’s PC plus; it’s PC plus exigency, it’s PC plus a motor vehicle<\/a>, etc.\u00a0 Here it’s PC plus the cat is out of the bag.\u00a0 In other words, the private person did the search.<\/p>\n

\u00a0So if an officer opened up that pouch without a warrant and found two more ounces of heroin, that evidence would be suppressed.\u00a0 It also means that you cannot really go above and beyond the search that was already conducted.\u00a0 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.\u00a0 You really should be getting a warrant to do a search that’s above and beyond what the private person did.<\/p>\n

Do police still need lawful access to the item?<\/h2>\n

The second issue is, you have to have lawful access to the item.<\/p>\n

I told you that in this case, the\u00a0 roommate brought the defendant\u2019s backpack to the police station.\u00a0 However, if the roommate were to call the police and tell the officer, \u201cHey, the backpack in my roommate\u2019s room has contraband in it,\u201d that officer cannot then enter the room to go grab the backpack.\u00a0 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\u2019s in his room.\u00a0 So just remember, that is also what’s going on here.<\/p>\n

Can a victim let police back into an apartment they were thrown out of?<\/h2>\n

\u00a0Let me give you a case example that illustrates this.\u00a0 A person, a victim, was invited to an apartment to join some party goers.\u00a0 Well, their intention was actually to rob this guy.\u00a0 So they get him to the apartment, and they steal all his stuff.\u00a0 Then they throw him out.\u00a0 He calls the police and the police arrive there.\u00a0 But by the time the cops came, these guys were gone.\u00a0 They knocked on the door and nobody answered.<\/p>\n

The victim also told the police that there was contraband in the room, like drugs and so forth.\u00a0 So the cat is out of the bag as to what’s inside the apartment.\u00a0 Then the victim opened the door and was like, \u201cHey, I’m going to show you where everything is.\u201d\u00a0 The police officer then entered the apartment, looked around and found contraband in plain view.<\/p>\n

\u00a0Are we good?\u00a0 No, we\u2019re not!\u00a0 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.\u00a0 The victim had no authority to re-enter that apartment to bring in police.\u00a0 That’s just not how it works.\u00a0 He was lawfully present at one time, but he’s no longer lawfully present.\u00a0 Now, because there is no exigency, he has no right to enter that apartment.\u00a0 It’s not his.\u00a0 Essentially he’s trespassing.\u00a0 So just remember that that’s not a legal search.<\/p>\n

I find these searches fascinating.\u00a0 And they have saved officers in some very serious cases.<\/p>\n

Can you search a phone under the cat out of the bag doctrine?<\/h2>\n

\u00a0Just to give you an example, some officers have searched digital devices, because the person has said,\u201dHey, my boyfriend has child porn on his phone.\u201d\u00a0\u00a0 And then she brought the phone to the police.\u00a0 The officers searched the phone and found the same child porn that the girlfriend found while she was messing with the boyfriend’s phone.\u00a0 And courts upheld that as a cat out of the bag search.\u00a0 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.<\/p>\n

Courts really want you to get that warrant for all digital devices.\u00a0 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.\u00a0 Follow the rules and get a warrant.\u00a0I hope this is useful for you for cops out there.\u00a0 Stay safe!<\/p>\n

Related from Blue to Gold<\/h2>\n