Also known as:privacy tests · reasonable expectation of privacy test
Written by attorneys · grounded in primary & secondary sources — see below
A two-part inquiry used to determine whether government conduct constitutes a search under the Fourth Amendment. The first part asks whether the individual exhibited an actual subjective expectation of privacy. The second part asks whether that expectation is one that society is prepared to recognize as reasonable.
Sources & Authorities
How it applies
Common Examples
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Locked Break Shack Recording
Plant supervisor Philip Powell regularly held closed-door meetings with colleagues in a locked break shack at Prism Analytics. Federal agents installed a hidden audio recorder inside the shack without a warrant. Powell later sought to suppress the captured conversations in a criminal prosecution. The court applied the privacy test and found both a subjective expectation shown by the locked space and an objective one society would recognize in restricted employee conversations.
Hotel Suite Microphone Installation
Guest Penelope Price repeatedly instructed hotel staff not to enter her suite and used the deadbolt during her stay. Officers arranged for the manager to place a concealed microphone in a wall vent without a warrant. Price moved to suppress the recorded conversations in her trafficking prosecution. The court applied the privacy test and concluded that her efforts to exclude others satisfied the subjective prong while the traditional privacy accorded hotel rooms satisfied the objective prong.
Select any source to read its text and confirm it supports the definition.
Cases
Study Supplements
Common questions
Frequently Asked
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Does the privacy test require ownership of the space where conversations occur?+
No. The test focuses on whether the person exhibited a subjective expectation of privacy and whether society recognizes that expectation as reasonable. A hotel guest who locks the door and excludes staff satisfies the subjective prong even without owning the room. Society recognizes privacy in the interior of a rented hotel room for the duration of the stay.
Supporting sources
Does speaking in a semi-public area like a smoking area or mailroom automatically defeat the privacy test?+
No. The key is whether the speaker took steps to keep the conversation private and whether society would recognize that expectation as reasonable. Using a normal tone without a speakerphone or speaking in low tones in a corner can show a subjective expectation. The objective prong turns on context such as how easily others could overhear without special technology.
Supporting sources
Does the privacy test apply when the government uses technology to capture conversations from a public sidewalk?+
Yes. The test examines whether the person sought to keep the information private and whether society treats that information as private. A person speaking into a cellphone exhibits a subjective expectation that the content will reach only the other party. Society recognizes the content of such calls as private even when the speaker stands in a park visible to bystanders.
Supporting sources
569 U.S. 1, 133 S. Ct. 1409 (2013)Criminal Procedure
…no support for the Court’s holding today. The Court’s decision is also inconsistent with the reasonable-expectations-of-privacy test that the Court adopted in Katz v. United States , 389 U. S. 347 (1967). A reasonable person understands that odors emanating from a house may be detected from locations that are open to…