GM et al:
a) I would submit that there is a reasonable expectation of privacy in the public sphere if there is no one in sight, yet this technology would invade that privacy.
**Just because you can't see someone, doesn't mean someone can't see you. A reasonable expectation of privacy can be said to exist in a place where someone exhibits an actual expectation of privacy that society recognizes as reasonable.**https://www.fletc.gov/training/programs/legal-division/podcasts/4th-amendment-roadmap-podcasts/4th-amendment-transcripts/reasonable-expectation-of-privacy-part-1.htmlReasonable Expectation of Privacy (I) (podcast transcript)
Tim: Hi, this is Tim Miller and Jenna Solari. We’re back again talking about a 4th Amendment search. We discussed previously that the Fourth Amendment is triggered by a government intrusion into a place where one has a reasonable expectation of privacy. Now Jenna, you told me who a government agent was, now let’s talk about reasonable expectation of privacy. Again, a government agent going into a place were one has a reasonable expectation of privacy triggers the 4th Amendment, correct?
Jenna: Yes, that’s right.
Tim: OK now, what’s a reasonable expectation of privacy?
Jenna: Well, a reasonable expectation of privacy, or “REP,” can be said to exist in a place where someone exhibits an actual expectation of privacy that society recognizes as reasonable.
Tim: Sounds like a two part test.
Jenna: It is actually. There’s a subjective component, and that’s that actual expectation of privacy. So that would mean that someone actually believes that an item or an area has been concealed from public view. So, for instance, I’m in my hotel room and I want to have a private conversation with someone so I try to keep my voice low enough that I believe no one else can hear what I am saying. But then there is that second part of the two part test you mentioned, the objective test. Society has to agree that what I am doing to conceal something is reasonable, that I have taken appropriate steps to conceal something from public view. For instance, I am in that hotel room and I actually think that I am keeping my voice low enough so no one else can hear me, so I have that subjective part satisfied. But objectively, let’s say my voice is actually loud enough that someone can hear me out in the hallway where they have every right to be. So if a federal agent just happens to be standing out in the hallway and unbeknownst to me my voice is loud enough that he can hear what I am saying, then I don’t have that objective expectation of privacy. Society is not willing to agree that what I am doing is a reasonable way to keep myself from being overheard. So I wouldn’t have any REP in my conversation.
Tim: OK, well how about giving me some examples of how a person might exhibit an expectation of privacy that society is willing to accept as being reasonable.
Jenna: OK, well, I think the simplest example would be if you have an item you want conceal from public view, put it in an opaque container. Put it inside a suitcase or a backpack, or if you want to keep it in your car, put it in the glove box or the trunk where people can’t see it when they just happen to be walking by. If we’re talking about your body, we know that people typically have the highest expectation of privacy in their bodies and in their houses. So, let’s say you have a tattoo on your left bicep you don’t want people to see. The best way to have a reasonable expectation of privacy in that is to put on a shirt that covers it up. Don’t walk around, you know, with a tank top on so the whole world can see your tattoo. Things inside the body have an incredibly high expectation of privacy that’s recognized by the courts. So, if you think of your skin as a giant container, everything within your body, like blood, saliva, urine -- you have a reasonable expectation of privacy in those things. Putting something inside your house, for the most part, gives you a reasonable expectation of privacy in that item, that is unless again, you put it somewhere where the whole world can see it. Let’s say you put it in your living room picture window where someone can see it from the street – then, again, society would not agree that you’ve taken reasonable steps to keep that secure from public view. But if you put it away somewhere where people couldn’t see it, then you’d have REP in that item. So things like that.
Tim: Sounds to me like if you put it inside of a container or you cover it up, society’s probably going to give you an expectation of privacy.
Jenna: Yes, that’s right.
Tim: Now, you know, a lot of kids nowadays have transparent book containers, book bags, and I think I know the answer to this, but can a child reasonably expect privacy in a transparent book bag?
Jenna: No, and that’s really the whole reason behind it. They’re required to carry transparent book bags, I assume, so that everybody can see what they have in there. So, they really wouldn’t have any reasonable expectation of privacy in those things that are inside that book bag, because again, they are out there for the whole world to see.
Tim: OK, well, you know, a trash can is a container. Can I reasonably expect privacy inside my trash can?
Jenna: That depends on where your trash can is, actually. If it’s inside your house, again, things that are inside your house usually get the highest protection from the courts so, yeah, you’d have REP in your trash, inside your trash can while it is still in your house. Now it gets a little different as the trash moves further from your house. If it’s still close to the house -- let’s say it’s just inside your garage or maybe just outside your front door -- that’s on that area that we call curtilage, and we will talk about that a little later, you probably still have REP in that trash in your trash can. It’s really when you put it out wherever collection takes place -- when you put it out on the street corner or the street in front of your house, what you have essentially done is told the whole world “I don’t want any of this any more.” You’ve abandoned that property and said “I want the trash man to take it away.” So, at that point you would not have any REP in that trash, even if you thought you did. Even if you actually thought that was private until the trash man took it, at that point society says, “no, you’ve thrown that away so you don’t have REP in that anymore.”
Tim: So, first, it has to be an actual expectation of privacy, and secondly, society has to recognize it as being reasonable.
Jenna: Yes, sir, that’s right.
Tim: OK, who can reasonably expect this privacy? For example, you know, I’ve got a house, it’s my house. I live there; I assume I can expect privacy inside my house.
Jenna: Absolutely.
Tim: Anybody else?
Jenna: Sure, if you had overnight guests in your house, let’s say friends of yours or family members came to visit and you let them stay overnight. Then you’ve essentially given them the run of at least part of your house. They have brought their private belongings in there and sort of established themselves in a room; they’d have REP inside your house. Social guests who stay for an extended period of time or who come by your house pretty frequently -- maybe they keep things in your house or inside your garage -- they may have REP in your house to some extent. I can tell you that people who wouldn’t have REP in there would be your commercial visitors, somebody who comes by just to sell you something or someone you invite just inside your front door maybe for five minutes at a time wouldn’t have any REP in your house.
Tim: So my mom and dad coming to visit for the weekend, they probably have an REP inside my house?
Jenna: Yes.
Tim: However, the paperboy coming to collect the bill would not.
Jenna: Right, the paperboy wouldn’t. Or, let’s say the pizza guy, who just steps inside for a second while you go get some cash to pay him for the pizza, he wouldn’t have any REP inside your house. He’s just that commercial visitor who stopped by for a few minutes.
Tim: How about people who rent hotel rooms? I guess the person who rents the room would have an REP inside that hotel room, would he not?
Jenna: Sure, because it’s really -- our 4th Amendment protection isn’t limited to just houses as physical structures. Really we are talking about dwellings, where people live, as least for some period of time. So, that would include a hotel room. And of course if you rented the room, you would have REP in the room. Someone else could, as well. Let’s say you and someone else go on a trip and so that person is sharing a room with you. That person has REP in there even if they weren’t the ones actually paying for it. They have a room key, which means they have the right to exclude people. They’re keeping things inside the room, so they would have REP in the room as well.
Tim: OK, I’ve got a car. I own that car; it’s my car -- I assume I have reasonable expectation of privacy in it.
Jenna: Yes, you would.
Tim: How about the passengers?
Jenna: Mere -- we call “mere passengers” is what I think you’re referring to -- usually have no REP in the car itself. And when I say “mere passenger” I mean, I’ve never borrowed your car, I don’t drive your car around, but at the end of work today I say, “Hey, Mr. Miller, can I grab a ride up to the front gate with you?” “Sure no problem,” you give me a ride up to the front gate. I’m just a mere passenger; I’m just along for a ride, so I don’t have any REP in your car or in the glove box or in the trunk. But I would retain REP in, say, I carry a briefcase and a purse from home to work every day. So when I bring those things into your car, I would still have an expectation of privacy in my belongings, I just would not have any REP in your car. Now, of course, it might be a little bit different if you shared that car with someone else -- a friend, a spouse or something like that. Now that person might have REP in the car if they are authorized to drive it around or they use it a good bit. But a mere passenger wouldn’t.
Tim: OK, why make a big deal out of all this, I mean, who has the REP? For example, suppose, I don’t know, Dillinger and I rob a bank. Dillinger owns the car, he drives the getaway car and we throw the guns and the money inside the trunk of Dillinger’s car. The cops then search the car and find that evidence. Can I get that evidence suppressed if the search is unreasonable?
Jenna: No, actually, and as I understand it it’s Dillinger’s car, right?
Tim: Right, yes.
Jenna: And you are essentially what we call a mere passenger, right? You’re basically just hitching a ride away from the bank robbery?
Tim: Check, I am just a mere passenger.
Jenna: Ok, so then, no, it would be the same situation as when you give me a ride up to the front gate -- I can’t have any REP in your glove box or in your trunk, so when the police search the car and they find the evidence in that trunk, Dillinger could complain about that search because that is his reasonable expectation of privacy. He could complain about whether it was reasonable or not. You couldn’t, though, because you don’t have any REP in that area, and we call that “no standing to object.” The only person who could object to the search is the person whose REP was intruded upon.
Tim: So, if I had no standing to object, I couldn’t object to the search even if it was unreasonable.
b) This technology can also spy on us when we are on private property.
**Two related doctrines apply, Plain View and Open Fields.**http://www.fletc.gov/training/programs/legal-division/podcasts/4th-amendment-roadmap-podcasts/4th-amendment-transcripts/plain-view-podcast-transcript.htmlPlain View (podcast transcript)
Miller: Jenna, let’s get this straight. There’s no REP in what an officer can see, hear or smell from a place he or she rightfully occupies; correct?
Solari: That’s right.
Miller: And that’s Mr. Hunsucker’s analogy “right to be, right to see.” So, if I’m a cop, standing on a public sidewalk, looking into the picture window of 123 Main Street and see a plant that I know is marijuana, I’ve not triggered the 4th Amendment. Isn’t that correct?
Solari: That’s right.
Miller: Why is the marijuana plant not considered to be in plain view?
Solari: Well, because you’ve only established two out of the three requirements for plain view. You have to observe the marijuana from a place you have a right to be. You satisfied this requirement in your example. You made the observation from a public sidewalk. Second, the incriminating nature of the evidence (the marijuana plant you can see through that picture window at 123 Main Street) has to be readily apparent. You satisfied that requirement too. Through your training and experience as a police officer you know what marijuana looks like.
Miller: So, what’s missing?
Solari: You have no lawful right of access. In your example, you haven’t explained that you have a warrant or any exception to the warrant requirement to actually enter or access 123 Main Street.
Miller: So, the plain view exception to the warrant requirement has three requirements. The officer must see the item from a place he or she rightfully occupies; it’s incriminating or evidentiary nature must be readily apparent to the officer; and, thirdly the officer must be able to lawfully access the evidence.
Solari: That’s right.
Miller: Is that right?
Solari: That’s right.
Miller: Now, in my example, I was lawfully present on the sidewalk when I observed the marijuana. How can I lawfully get inside 123 Main Street and make more observations?
Solari: Use what you’ve already seen and get an arrest warrant for the resident of 123 Main Street for possession of marijuana. Use what you’ve already seen through the picture window to go get a search warrant for that location. If you don’t have an arrest warrant or a search warrant, maybe there’s an exception to the warrant requirement that might let you inside. Maybe if you knock on the door you can get consent. If somebody runs inside whom you’re trying to apprehend maybe you can use hot pursuit. If the person inside 123 Main Street saw you looking through the picture window at his marijuana plant, grabbed it and made a dash for the garbage disposal, maybe you could use your probable cause coupled with destruction of evidence and use that exception to the warrant requirement.
Miller: The second requirement was that the evidentiary nature of the item must be readily apparent. That sounds almost like probable cause to me, correct?
Solari: Right
Miller: And based on training and experience, I think most officers can probably readily identify a marijuana plant.
Solari: Sure. I would think so. Readily apparent like you said means that the officer has probable cause to believe that whatever he or she is looking at is evidence of a crime - you can tell simply by looking at it. The officer has facts and circumstances made known to him, and those facts coupled with the officer’s observations, make the evidentiary nature of the object readily apparent. For example, let’s say officers are executing a search warrant inside 123 Main Street for a stolen television set. They know the resident’s a convicted felon and while their looking for the TV in places where they have a right to look, they see a handgun laying right there on the coffee table. Now obviously as a general matter, officers can secure firearms in a safe place during a search; however, in this case, there’s also probable cause to seize that firearm as evidence of a crime because the officers at the scene knows that a convicted felon in possession of a firearm is in violation of 18 USC §922 and of course that firearm does appear to be within the possession of a convicted felon.
Miller: Now finally, this third requirement is that the officer must have a lawful right of access.
Solari: Right and this is tricky. There’s a difference between lawfully present when the officer makes her observation and lawful access. Lawfully present refers to the officer’s position when she makes the observation. Lawful access refers to where she must be to actually put a hand on the item and retrieve it. So in your example, you were lawfully present on a sidewalk when you observed that marijuana through the picture window of 123 Main Street; however, you couldn’t actually lawfully put your hand out and touch that plant and seize it. You had no right of access.
Miller: Let’s assume I’ve got authority to be inside 123 Main Street where we saw that marijuana plant. Does that automatically allow me to go to the picture window and grab it?
Solari: Not necessarily. I’ve got to know what your authority is to actually access the room where you saw the marijuana growing. If you’ve got a search warrant to search 123 Main Street, then I’ll bet you’ve got authority to go search anywhere in that house where marijuana could be, so you’re probably going to get the plant then; however, if you knocked on the door and the owner let you in, but he refused to let you go any further than the foyer you still have no right of access to that plant you saw growing in the living room.
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Open Field Doctrine Law & Legal Definition
The open field doctrine is a term used in criminal law to stand for the concept that anything plainly visible to the eye, even if it’s on private property, is subject to a search since it’s not hidden. Under this doctrine, consent to inspect the location is not required in order for a law enforcement officer to observe and report on things in plain view and include observations made.
An open field is not an area protected under the Fourth Amendment, and there is no expectation of a right of privacy for an open field.Is there no articulable principal of privacy here? Is there no 9th Amendment right?
**The 9th (The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.) would seem to me as not applicable, given that the above caselaw/doctrine comes from the previously enumerated 4th amendment.**
