Last week, I posted about the second look doctrine. (You can read that post here.) Recall that the basic idea is that if the police have custody of an object -- like a wallet, or a purse, or a cell phone -- that they could have searched incident to a defendant's arrest and booking, they can go back and search the object later without a warrant. I promised to do a follow-up post addressing some of the interesting questions that arise in connection with the doctrine, and now I'm making good. 1. Do the police need probable cause to take a second look? No. The cases say that a second look is "not another search subject to Fourth Amendment proscriptions." State v. Nelson, 298 N.C. 573 (1979). In essence, our appellate courts have ruled that once the police have lawfully taken custody of an object, the defendant's reasonable expectation of privacy in the object is extinguished. See, e.g., State v. Motley, 153 N.C. App. 701 (2002). Because the second look is not a search at all, for Fourth Amendment purposes, it follows that neither probable cause, nor any other level of Fourth Amendment justification, is required. Accordingly, the leading commentator notes that most courts have concluded that "the police [may] conduct a [second look] upon the mere hunch" that they will find something of interest. 3 Wayne R. LaFave, Search and Seizure § 5.3(b) (4th ed. 2004). 2. Can the police take a second look to investigate a crime other than [...]
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