Criminal Law

Search and Seizure and the Expectation of Privacy

The Fourth Amendment to the?US Constitution protects you against unreasonable searches and seizures. That is, the police or other law enforcement agents have to have a good reason before they can search your home and take things, for example, and they usually have to have a warrant to do so. The Fourth Amendment doesn't apply to all searches and seizures, though. You must have a legitimate or reasonable expectation of privacy in the thing being seized or the place being searched.

What's a "Reasonable Expectation of Privacy"?

About 30 years ago, the Supreme Court of the United States heard a case involving a federal investigation of illegal gambling activities. FBI agents placed an electronic eavesdropping device on the outside of a telephone booth that Charles Katz used to place illegal bets and get other gambling information. Based upon information recorded from his phone calls, Mr. Katz was convicted of federal anti-gambling law violations. Mr. Katz challenged the conviction in part on the ground that his phone conversations were recorded illegally.

The Supreme Court of the United States agreed. In overturning the conviction, the Court created the notion of a "reasonable expectation of privacy." The Court decided that when you knowingly expose something to the public, even in your own home or office, it's not protected by the Fourth Amendment. However, whatever you try to keep private, even in a place accessible to the public, like a telephone booth, may be protected.

To qualify for Fourth Amendment protection, your expectation of privacy in the place to be searched or the items to be seized must be both:

  • Subjectively reasonable, meaning that you must actually expect some degree of privacy in the place or thing; and
  • Objectively reasonable, that is, the expectation of privacy is one that society is willing to recognize as reasonable

For example, you have an expectation of privacy that conversations you have with your family members in your home will remain private and won't be listened to by the police. Most people share that expectation. So, there's a subjectively and objectively reasonable expectation of privacy in such conversations.

The Expectation of Privacy in Action

There are all sorts of things and examples where there is and isn't a reasonable or legitimate expectation of privacy, such as:

  • Even if law enforcement agents trespass on your property, if your activities are visible to the general public, they're not protected by the Fourth Amendment. This is called the "open fields" doctrine. For example, if you grow marijuana in your field that's hundreds of feet from your home and the police spot it from the sky or while driving by, you can't have a reasonable expectation of privacy in the field because it's visible to the public. The police may search the field and seize the marijuana without a warrant
  • Garbage you set outside and at the curb for collection and disposal is "exposed to the public." The police may seize it without violating the Fourth Amendment
  • There's generally no reasonable expectation of privacy in the actual physical location of your car
  • Bank personnel have access to your bank records, and so you generally don't have a reasonable expectation of privacy in them
  • There's no expectation of privacy in items you voluntarily discard or abandon. So, for example, if you're suspected of a crime and you throw down a cigarette butt, police may take it test it for DNA
  • With certain exceptions, you generally don't have a reasonable expectation of privacy in the car in which you ride as a passenger or in the house in which you're only a guest
  • Unlike the actual telephone conversations, there no reasonable expectation of privacy in the telephone numbers you dial from your home or in the telephone numbers of persons who call your home
  • You have a legitimate expectation of privacy in your home, including the "curtilage," which generally is the area immediately surrounding the outside of your home
  • There's a legitimate expectation of privacy in non-transparent bags or luggage that you carry into public places, like bus and train stations
  • Generally, as the owner-operator, you have a legitimate expectation of privacy of things in your car, except when evidence of a crime or illegal items are in "plain view," such as lying on the back seat. Items in plain view may be seized it without a warrant and used against you in court
  • There's a legitimate expectation of privacy in using a public restroom

Questions for Your Attorney

  • Undercover federal agents recorded a conversation I had with someone in a restaurant during a meal. They were sitting right next to me. Can they use that evidence against me?
  • I was being investigated for tax evasion and federal agents opened by safety deposit at my bank. Can they do that without a warrant? I have a reasonable expectation of privacy in that box, don't I?
  • If I have a reasonable expectation of privacy in the contents of my luggage, then how can federal agents use drug-sniffing dogs to smell my luggage when I cross the border?
  • Can an expectation of privacy be created through actions or agreements to that effect? For example, what if I'm given keys to my guest room or the use of someone's property, such as a vacation home?

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