Reasonable Expectation of Privacy in Virginia: When Does the Fourth Amendment Protect You From a Government Search?

What is a reasonable expectation of privacy under Virginia law? When does government conduct constitute a search under the Fourth Amendment? And how has Virginia law changed as police increasingly use cell phones, GPS technology, automatic license plate readers, cameras, and other digital surveillance tools?

These questions arise frequently in Virginia criminal cases.

The Fourth Amendment generally prohibits unreasonable searches and seizures by the government. But before a court can decide whether a search was reasonable, it must first determine whether a “search” occurred at all.

In many cases, that question turns on whether the individual had a reasonable expectation of privacy in the place, property, information, or activity that the government examined.

Virginia courts continue to apply the traditional reasonable-expectation-of-privacy framework developed by the United States Supreme Court in Katz v. United States, while also recognizing that the Fourth Amendment protects certain property interests independently of the privacy analysis. Recent cases involving Flock cameras and digital search warrants demonstrate that the application of these principles can become particularly complicated when law enforcement uses modern technology.

What Is a “Reasonable Expectation of Privacy”?

The United States Supreme Court established the modern reasonable-expectation-of-privacy framework in Katz v. United States, 389 U.S. 347 (1967).

Under Katz, the Fourth Amendment protects people—not simply physical places. A government intrusion generally constitutes a search when it invades an individual’s reasonable expectation of privacy.

Virginia courts describe the inquiry using a two-part test.

First, the person challenging the search must demonstrate that he or she personally had an expectation of privacy in the place or thing searched.

Second, that expectation of privacy must be objectively reasonable—meaning it must be an expectation that society is prepared to recognize as legitimate.

The Virginia Court of Appeals has repeatedly applied this framework. See Rideout v. Commonwealth, 62 Va. App. 779, 786, 753 S.E.2d 595 (2014); Sanders v. Commonwealth, 64 Va. App. 734, 743-44, 772 S.E.2d 15 (2015); Salahuddin v. Commonwealth, 67 Va. App. 190, 202-03, 795 S.E.2d 125 (2017).

The analysis therefore is not simply whether a person wanted something to remain private. The question is whether the privacy interest is one the Constitution protects.

The Two-Part Test

1. Did the person actually expect privacy?

The first question is subjective.

For example, a person generally has a strong expectation of privacy inside his or her home. A person generally does not have the same expectation in something knowingly exposed to the public.

Virginia courts look at the circumstances surrounding the government’s intrusion to determine whether the individual actually manifested an expectation of privacy.

2. Is that expectation objectively reasonable?

The second question is objective.

The expectation must have a recognized legal or societal foundation. The United States Supreme Court has explained that this foundation can arise from concepts of real or personal property law or from understandings recognized and permitted by society.

Minnesota v. Carter, 525 U.S. 83, 88 (1998); United States v. Jones, 565 U.S. 400, 406-07 (2012).

Virginia courts have adopted this approach. See Rideout, 62 Va. App. at 786; Sanders, 64 Va. App. at 744.

A Person Does Not Have a Reasonable Expectation of Privacy Everywhere

One of the most important points in Virginia search-and-seizure law is that Fourth Amendment protection does not extend equally to every location or every piece of information.

The home occupies a special position under the Fourth Amendment.

By contrast, information or property knowingly exposed to public view generally receives substantially less protection.

For example, the Virginia Court of Appeals has held that a person driving a vehicle on a public street with a license plate in plain view has no reasonable expectation of privacy that the vehicle and license plate will not be seen by other people—including police officers.

That principle recently played a significant role in Robinson v. Commonwealth, 2026 Va. App. LEXIS 83 (Apr. 7, 2026).

Property Rights Still Matter

It is important not to assume that Katz completely replaced the traditional property-based approach to the Fourth Amendment.

It did not.

The Supreme Court later explained in United States v. Jones, 565 U.S. 400 (2012), that Katz “supplements, rather than displaces” the traditional property-based understanding of the Fourth Amendment.

That distinction can be important.

For example, physically intruding upon a constitutionally protected “person[], house[], paper[], or effect[]” to obtain information can constitute a search even when a traditional reasonable-expectation-of-privacy analysis might produce a different result.

Virginia courts recognize this distinction.

In Cromartie v. Billings, 298 Va. 284, 837 S.E.2d 247 (2020), the Supreme Court of Virginia held that a police officer’s physical entry into a person’s vehicle for purposes of gathering information constituted a search under Jones.

Similarly, in Highlander v. Virginia Department of Wildlife Resources, 2025 Va. App. LEXIS 137, the Virginia Court of Appeals applied Jones and Florida v. Jardines, 569 U.S. 1 (2013), to hold that physically opening a camera and removing its storage card to obtain photographs constituted a search.

Thus, the question is not always simply:

“Did the person have a reasonable expectation of privacy?”

The court may also ask whether the government physically intruded upon constitutionally protected property to obtain information.

The Home and Curtilage Receive Especially Strong Protection

The Fourth Amendment expressly identifies the home as one of the areas protected against unreasonable searches.

The protection generally extends beyond the four walls of the house to certain areas immediately surrounding the residence known as curtilage.

Virginia courts have repeatedly recognized the importance of curtilage.

In Stickle v. Commonwealth, 66 Va. App. 149, 783 S.E.2d 266 (2016), the Virginia Court of Appeals explained that curtilage is historically understood as an extension of the home that is sufficiently intertwined with the residence that it receives similar Fourth Amendment protection.

The United States Supreme Court likewise emphasized the special constitutional protection afforded to the home and its curtilage in Florida v. Jardines, 569 U.S. 1 (2013).

And in Collins v. Virginia, 584 U.S. 586 (2018), the Supreme Court rejected an attempt to use the automobile exception as justification for entering the curtilage of a home to search a vehicle.

This means that the mere fact that police believe they have probable cause to search a vehicle does not necessarily give them unrestricted authority to enter protected areas surrounding a home.

What About Things Visible From the Street?

The fact that property is located on someone’s premises does not automatically create a reasonable expectation of privacy.

Virginia courts consider whether the property or activity was exposed to public observation.

In older cases, for example, Virginia courts have recognized that portions of a property plainly visible from public areas may carry a diminished expectation of privacy.

The distinction can be important in cases involving driveways, front porches, vehicles, license plates, packages, surveillance cameras, and other property that may be exposed to public view.

The basic principle is straightforward:

The Fourth Amendment generally does not prohibit police from observing what a member of the public could lawfully observe from a place where the public is entitled to be.

But that principle has limits.

Police cannot necessarily convert a limited ability to observe something into a technological ability to conduct comprehensive, retrospective surveillance of a person’s movements.

That distinction has become increasingly important in modern Fourth Amendment litigation.

Technology Is Changing the Reasonable-Expectation-of-Privacy Analysis

Modern surveillance technology presents difficult Fourth Amendment questions because technology can allow the government to collect information on a scale that would have been practically impossible when the Fourth Amendment was adopted.

The United States Supreme Court addressed this problem in United States v. Jones, Riley v. California, 573 U.S. 373 (2014), and Carpenter v. United States, 585 U.S. 296 (2018).

The Court has recognized that technological capability cannot automatically eliminate constitutional privacy protections.

GPS Tracking and Long-Term Surveillance

In United States v. Jones, police installed a GPS tracking device on a vehicle and monitored the vehicle’s movements for approximately 28 days.

The Supreme Court held that physically attaching the GPS device to the vehicle constituted a search because the government physically intruded upon the vehicle to obtain information.

Jones, 565 U.S. at 404-05.

Several justices also recognized a separate privacy concern involving prolonged monitoring of a person’s movements.

The significance of that principle became clearer in Carpenter.

Cell-Site Location Information

In Carpenter v. United States, the Supreme Court considered government access to historical cell-site location information.

The government obtained records that could reveal where Carpenter’s cell phone had been over an extended period.

The Supreme Court held that obtaining the historical cell-site information constituted a Fourth Amendment search.

The Court emphasized that the records created an extensive and detailed record of the individual’s physical movements.

Importantly, the Court rejected the argument that Carpenter automatically lost Fourth Amendment protection merely because the information was held by a third-party telecommunications provider.

The Court characterized historical cell-site location information as sufficiently revealing that ordinary application of the traditional third-party doctrine was inappropriate.

Carpenter, 585 U.S. at 310-16.

The U.S. Supreme Court’s 2026 Decision in Chatrie

The law concerning digital surveillance received another major development in 2026.

In ** Chatrie v. United States, 609 U.S. ___ (2026)**, the United States Supreme Court considered a so-called geofence warrant.

The case arose from a Virginia bank robbery.

Police obtained a warrant directing Google to provide information about cell phones located within a 150-meter radius of the crime scene around the time of the robbery.

Google’s Location History records could pinpoint a phone’s location approximately every two minutes.

The Supreme Court held that obtaining this Location History information was a Fourth Amendment search because individuals have a reasonable expectation of privacy in their cell-phone location information.

The decision is significant for several reasons.

Short-term surveillance can implicate the Fourth Amendment

The government argued, among other things, that the information obtained in Chatrie covered only approximately two hours.

The Supreme Court rejected the idea that Fourth Amendment protection begins only after government surveillance reaches some particular duration.

The Court explained that even short-term monitoring can reveal significant information about a person’s associations and activities.

Accordingly, the Court held that the fact that the surveillance period was relatively short did not eliminate the Fourth Amendment issue.

Information held by a technology company may still be private

Chatrie also rejected the argument that a person necessarily loses Fourth Amendment protection merely because a technology company possesses the information.

The Court applied the reasoning of Carpenter and concluded that Google Location History is not “truly shared” in the ordinary sense simply because Google possesses the information necessary to provide its services.

The fact that information is maintained by a third party therefore does not automatically eliminate a reasonable expectation of privacy.

But Chatrie did not resolve every geofence issue

The Supreme Court held that obtaining the location information constituted a search, but it did not decide every question concerning whether the particular geofence warrant satisfied the Fourth Amendment’s probable-cause and particularity requirements.

The Court remanded those issues to the Fourth Circuit.

That distinction is important when discussing the current state of the law.

Flock Cameras and Automatic License Plate Readers in Virginia

Virginia has now directly addressed another modern surveillance technology: Flock automatic license plate reader cameras.

The issue arose in ** Robinson v. Commonwealth, Record No. 1912-24-1 (Va. App. Apr. 7, 2026)**.

Norfolk had installed 172 Flock cameras at intersections on public roadways. The cameras captured still photographs of vehicles and license plates and retained the information for 30 days. Police could search the database by vehicle characteristics, location, and time.

The defendant argued that accessing the database constituted a warrantless search because the system could be used to identify where his vehicle had traveled.

The Virginia Court of Appeals rejected that argument on the facts presented.

The court held that the defendant did not have a reasonable expectation of privacy in the physical characteristics of his vehicle or license plate while driving on public streets.

The court distinguished Carpenter because the Norfolk Flock system did not provide the same comprehensive surveillance capability as the historical cell-site information in Carpenter.

The Flock cameras captured intermittent still images of vehicles on public streets rather than continuously tracking an individual everywhere he or she went.

The court emphasized, however, that its decision was based on the current capabilities and operation of the Norfolk Flock system.

The court expressly declined to speculate about whether future technological developments could create a sufficiently comprehensive record of an individual’s movements to trigger Fourth Amendment protection.

This is an important limitation.

The holding does not mean that every conceivable form of automatic license plate reader surveillance is automatically outside the Fourth Amendment.

Instead, Robinson reinforces the principle that courts must examine the scope, duration, precision, and nature of the information actually collected.

Digital Search Histories Present a Different Question

A particularly interesting issue recently arose in ** Clements v. Commonwealth, Record No. 2032-24-4 (Va. App. Aug. 11, 2026)**.

Police obtained what is commonly called a reverse-keyword warrant.

Rather than identifying a known suspect and asking Google to search that person’s account, investigators asked Google to identify accounts that had searched for a particular address during a specified period.

The warrant ultimately identified a single Google account, which investigators then associated with Clements.

Clements argued that the warrant violated the Fourth Amendment.

The Virginia Court of Appeals affirmed his convictions, but the important point is why.

The majority expressly declined to decide whether reverse-keyword warrants are constitutional.

Instead, the majority held that the good-faith exception to the exclusionary rule applied because the officers obtained judicial authorization at a time when there was no controlling authority governing reverse-keyword warrants.

One judge separately concluded that the warrant was constitutionally defective but agreed that the good-faith exception prevented suppression.

That separate opinion is particularly significant because it recognized that search queries can reveal information about what a person is attempting to learn, where the person may be going, and what the person may believe or fear.

Thus, Clements demonstrates an important distinction:

A court may recognize that novel digital surveillance raises serious Fourth Amendment questions without necessarily deciding those constitutional questions in the particular case before it.

The Third-Party Doctrine Is Not an Automatic Answer

Law enforcement sometimes argues that a person has no reasonable expectation of privacy in information voluntarily provided to a third party.

That principle is associated with cases such as Smith v. Maryland, 442 U.S. 735 (1979), and United States v. Miller, 425 U.S. 435 (1976).

But Carpenter and Chatrie demonstrate that the third-party doctrine has important limits in the digital age.

The Supreme Court has recognized that certain categories of information are so revealing—and are generated as an unavoidable or ordinary consequence of modern technology—that merely allowing a company to possess the information does not necessarily eliminate Fourth Amendment protection.

In Chatrie, for example, the Supreme Court expressly rejected application of the ordinary third-party doctrine to Google Location History.

Therefore, the question in a modern Virginia search case cannot always be answered simply by asking:

“Did the defendant give the information to a third party?”

The court may also need to consider what information was collected, how it was generated, how revealing it is, how extensively it can be used, and whether treating it as voluntarily exposed would effectively permit comprehensive government surveillance.

The Nature of the Information Matters

The cases demonstrate that courts increasingly examine not merely whether information was technically visible or accessible, but what the information allows the government to learn.

Compare:

• A license plate visible on a public road;
• A photograph of a vehicle traveling on a public street;
• A person’s location at one particular moment;
• A month or year of historical location information;
• The contents of a cell phone;
• A person’s Google Location History;
• A person’s internet search history; and
• A comprehensive record of a person’s movements and associations.

These categories can raise very different Fourth Amendment questions.

The Supreme Court’s modern cases recognize that digital information can expose what the Court has described as the “privacies of life.”

In Riley v. California, the Court held that searching the digital contents of a cell phone generally requires a warrant, even though the physical phone itself is a relatively small object.

The reason is the extraordinary quantity and sensitivity of information contained in modern smartphones.

Riley, 573 U.S. at 393-97, 403-04.

A Reasonable Expectation of Privacy Is Not the Same as “Standing”

Another important concept in Virginia criminal cases is the defendant’s ability to challenge the search.

A person generally cannot suppress evidence merely because police violated someone else’s Fourth Amendment rights.

The defendant must establish a personal Fourth Amendment interest in the place, property, or information searched.

This is why courts ask whether the defendant personally possessed a reasonable expectation of privacy.

For example, a person ordinarily cannot challenge a search of another person’s house merely because incriminating evidence was found there.

Likewise, a person cannot automatically challenge the search of property that belongs exclusively to someone else.

The Fourth Amendment is a personal right.

What Happens After a Court Finds a Search?

Determining that government conduct constituted a search does not necessarily end the analysis.

The next question is whether the search was reasonable.

As a general rule, a warrantless search is presumptively unreasonable unless an established exception to the warrant requirement applies.

Virginia courts recognize this general rule. See Bryant v. Commonwealth, 72 Va. App. 179, 187-88, 843 S.E.2d 383 (2020).

There are numerous exceptions, including circumstances involving:

• Consent;
• Exigent circumstances;
• Searches incident to a lawful arrest;
• The automobile exception;
• Plain view;
• Certain inventory searches;
• Certain administrative or regulatory searches; and
• Other recognized exceptions to the warrant requirement.

Accordingly, a defendant who establishes that government conduct was a search must ordinarily proceed to the next question: Was the search conducted pursuant to a warrant or a valid exception to the warrant requirement?

The Current Rule in Virginia

As of 2026, the law concerning reasonable expectations of privacy can be summarized through several principles.

1. The Fourth Amendment protects people, not merely places.

The government may violate the Fourth Amendment by obtaining private information even when it does not physically enter a traditional protected location.

2. A defendant must establish a personal privacy interest.

The person challenging the search must demonstrate an expectation of privacy in the thing or place searched, and that expectation must be objectively reasonable.

3. Property rights remain independently important.

The Katz privacy framework did not eliminate the traditional property-based Fourth Amendment protection.

Physical intrusion into a constitutionally protected person, house, paper, or effect can itself constitute a search.

4. The home and curtilage receive particularly strong protection.

The government generally cannot use an exception applicable to vehicles or public places as a substitute for lawful access to a home or its curtilage.

5. Public exposure reduces—but does not necessarily eliminate—Fourth Amendment protection.

Information knowingly exposed to public observation generally receives less protection.

But technology that allows the government to aggregate publicly observable information into a detailed and comprehensive record may raise different constitutional questions.

6. Modern technology requires a fact-specific analysis.

Virginia courts have recognized that new surveillance technology does not always fit neatly within older Fourth Amendment precedents.

The relevant questions can include the amount of information collected, the duration of surveillance, the precision of the information, the government’s ability to reconstruct a person’s movements, and the degree to which the information reveals private aspects of a person’s life.

7. Third-party possession does not automatically destroy privacy.

Carpenter and Chatrie establish important limits on the proposition that information loses Fourth Amendment protection merely because a technology company or other third party possesses it.

8. Flock camera surveillance currently receives different treatment from comprehensive cell-phone tracking.

Under Robinson, the current Norfolk Flock system does not constitute a Fourth Amendment search merely because police use the system to identify a vehicle traveling on public roads.

But Robinson is expressly tied to the capabilities of the system at issue in that case.

9. Digital searches continue to present unresolved constitutional questions.

Clements demonstrates that Virginia courts are now confronting novel forms of digital investigation, including reverse-keyword warrants.

The Virginia Court of Appeals did not decide the constitutional validity of those warrants, leaving the issue open for future litigation.

Why the Reasonable Expectation of Privacy Matters in a Virginia Criminal Case

When police obtain evidence through a search, the first question should not necessarily be whether the police had probable cause.

The threshold question may be:

Was there a search at all?

That question can determine whether the Fourth Amendment applies in the first place.

If the government conduct constituted a search, the analysis continues.

Was there a warrant?

If there was a warrant, did it establish probable cause?

Was the warrant sufficiently particular?

Did the officers stay within the warrant’s scope?

If there was no warrant, did an exception to the warrant requirement apply?

And if the search violated the Fourth Amendment, does an exception to the exclusionary rule—such as the good-faith exception—affect whether the evidence will actually be suppressed?

These questions frequently require a detailed examination of exactly what the police did, what information they obtained, how they obtained it, and what privacy interest the defendant possessed in that information.

Frequently Asked Questions About Reasonable Expectations of Privacy in Virginia

Do I have a reasonable expectation of privacy in my home?

Yes. The home receives the highest level of Fourth Amendment protection. Government entry and searches of a home generally require a warrant unless a recognized exception applies.

Do I have a reasonable expectation of privacy in my vehicle?

Yes, but the expectation of privacy in a vehicle is generally less than the expectation of privacy in a home. The precise circumstances matter.

Do I have a reasonable expectation of privacy in my driveway?

It depends on the circumstances. Courts distinguish between areas exposed to public observation and protected areas of a home’s curtilage.

Does police surveillance of my vehicle violate the Fourth Amendment?

Not necessarily. In Robinson v. Commonwealth, the Virginia Court of Appeals held that the Norfolk Flock system, as it operated in that case, did not constitute a Fourth Amendment search. But the scope and capabilities of the surveillance system matter.

Do I have privacy rights in my cell-phone location information?

Yes. Under Carpenter and the U.S. Supreme Court’s 2026 decision in Chatrie, individuals have a Fourth Amendment privacy interest in certain cell-phone location information.

Do I lose my Fourth Amendment rights because Google or another company has my information?

No. Carpenter and Chatrie demonstrate that third-party possession does not automatically eliminate Fourth Amendment protection for highly revealing digital information.

Is everything I search on Google protected by the Fourth Amendment?

The answer is not yet completely settled under Virginia law. Clements v. Commonwealth involved a reverse-keyword warrant directed at Google search records, but the Virginia Court of Appeals resolved the case through the good-faith exception rather than deciding the underlying constitutional validity of reverse-keyword warrants.

Conclusion

The law governing reasonable expectations of privacy in Virginia is continuing to evolve.

The traditional Katz framework remains important: a defendant generally must demonstrate a personal expectation of privacy that society recognizes as reasonable. But Katz is not the only test. Property-based Fourth Amendment protections remain independently significant, particularly where police physically intrude upon constitutionally protected property.

At the same time, modern technology has forced courts to confront questions that could not have been contemplated when many of the foundational Fourth Amendment cases were decided.

The most important recent cases illustrate the tension.

In Robinson, the Virginia Court of Appeals held that Norfolk’s current Flock camera system did not constitute a search because it captured publicly observable vehicle information and did not create the type of comprehensive surveillance record considered in Carpenter.

In Chatrie, however, the U.S. Supreme Court held that police conducted a Fourth Amendment search by obtaining Google Location History, emphasizing that highly revealing digital location information remains protected even when it is held by a third party and even when the period examined is relatively short.

And in Clements, the Virginia Court of Appeals confronted a new form of digital surveillance—a reverse-keyword warrant—but expressly left the constitutional question unresolved because the good-faith exception decided the case.

The lesson is that “public,” “private,” and “third-party” are no longer sufficient descriptions by themselves to resolve many modern Fourth Amendment questions.

The precise nature of the information, how the government obtained it, the technology used, the scope and duration of the surveillance, and the privacy interests implicated can all matter.

For anyone facing criminal charges in Virginia, a careful Fourth Amendment analysis should therefore begin by identifying exactly what the government searched, how it searched it, and what information the search revealed.

This article is for informational purposes only and does not constitute legal advice. The application of Fourth Amendment law depends on the specific facts and circumstances of each case.