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Also known as:reasonable expectations of privacy · reasonable expectation of privacy test · Katz expectation · REP
Written by attorneys — see sources below.
A two-part inquiry used to determine whether government conduct constitutes a search under the Fourth Amendment. An individual must first exhibit an actual subjective expectation of privacy in the place or information at issue. Society must then be prepared to recognize that expectation as objectively reasonable.
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How its tested
Common Examples
6
Phone Booth Surveillance
Renata Russo entered a public telephone booth, closed the door, and dialed a number while speaking in a low voice. Federal agents attached a listening device to the outside of the booth and recorded her conversation without a warrant. The recording revealed details of an illegal gambling operation. Because Russo manifested a subjective expectation of privacy by shutting the door and the expectation was one society recognizes as reasonable, the agents conducted a search under the Fourth Amendment.
Custodial Interrogation Warning
Rina Rahman was taken into custody at a police station and questioned about a robbery without being advised of her rights. Officers later sought to introduce her statements at trial. The absence of warnings meant the statements could not be used because the interrogation occurred in circumstances where a reasonable expectation of privacy in one's own words was overridden by the need for procedural safeguards.
In March 1963 Ernesto Miranda was arrested at his home in Phoenix and taken to the police station where he was identified by the complaining witness. He was then questioned by two officers in Interrogation Room No. 2 for two hours. The officers did not advise him of any right to counsel. Miranda signed a typed confession that was introduced at his trial for kidnapping and rape.
On October 14 1960 Michael Vignera was arrested in connection with a Brooklyn robbery. He was taken first to the 17th Detective Squad headquarters in Manhattan and later to the 66th Detective Squad. A detective questioned him for several hours without any advice concerning counsel. Vignera made an oral admission. He was then questioned by an assistant district attorney whose transcribed statement was also introduced at his trial for first-degree robbery.
On March 20 1963 Carl Calvin Westover was arrested by Kansas City police as a suspect in two local robberies. Kansas City police interrogated Westover on the night of his arrest. The next day local officers interrogated him again throughout the morning. Westover was then turned over to FBI agents who questioned him for two to two-and-a-half hours about California robberies and obtained signed confessions. At the time the FBI agents began questioning Westover he had been in custody for over fourteen hours.
On January 31 1963 Roy Allen Stewart was arrested at his home in connection with a series of purse-snatch robberies. During the next five days police interrogated Stewart on nine different occasions without any advice of rights. On the ninth session Stewart confessed. Transcripts of the interrogations were introduced at his trial for kidnapping rape and murder.
The Arizona Supreme Court affirmed Miranda's conviction. The New York courts affirmed Vignera's conviction. The Ninth Circuit affirmed Westover's conviction. The California Supreme Court reversed Stewart's conviction. The Supreme Court granted certiorari in the four cases and consolidated them for argument.
Riley Rivera gave a statement to police describing an assault. At trial the prosecution introduced the statement through a third party without calling Rivera to testify. The defendant objected that admission violated confrontation rights. The court examined whether the statement was made under circumstances carrying a reasonable expectation of privacy that would trigger constitutional protections against testimonial use.
Crawford v. Washington541 U.S. 36 (2004)
On August 5, 1999, Michael Crawford stabbed Kenneth Lee in the torso during a confrontation at Lee's apartment.
Crawford and his wife Sylvia had gone there after Sylvia alleged that Lee had attempted to rape her several weeks earlier. Lee was taken to the hospital and later died from his wounds. Police arrested both Crawford and Sylvia that night.
Detectives gave Miranda warnings and interrogated Sylvia twice at the station house. In her recorded statement Sylvia initially denied involvement but eventually admitted she had led Crawford to Lee's apartment and had seen the stabbing. Crawford also gave police a statement describing the events and his belief that Lee may have reached for something before the stabbing. At trial Crawford asserted self-defense, but Sylvia did not testify because of Washington's marital privilege.
The State offered Sylvia's tape-recorded statement as evidence that the stabbing was not in self-defense and invoked the hearsay exception for statements against penal interest. The trial court admitted the statement after finding it bore particularized guarantees of trustworthiness. The jury convicted Crawford of assault. The Washington Court of Appeals reversed after applying a nine-factor test and concluding the statement lacked sufficient indicia of reliability.
The Washington Supreme Court reinstated the conviction. It determined that Sylvia's statement interlocked with Crawford's statement and therefore bore adequate guarantees of trustworthiness, noting that both accounts were ambiguous on whether Lee had possessed a weapon. The United States Supreme Court granted certiorari.
Regina Robinson and five other unrelated adults rented a house in a village that limited occupancy to two unrelated persons. They challenged the ordinance as infringing on associational freedoms. The court assessed whether residents held a reasonable expectation of privacy in choosing household composition that society would deem protected from local regulation.
Village of Belle Terre v. Boraas416 U.S. 1 (1974)
Belle Terre is a village on Long Island’s north shore consisting of about 220 homes inhabited by 700 people. Its total land area is less than one square mile. The village has restricted land use to one-family dwellings and excludes lodging houses, boarding houses, fraternity houses, or multiple-dwelling houses.
The ordinance defines “family” as one or more persons related by blood, adoption, or marriage living and cooking together as a single housekeeping unit, exclusive of household servants. Up to two persons living and cooking together as a single housekeeping unit though not related by blood, adoption, or marriage shall be deemed to constitute a family.
Appellees the Dickmans own a house in the village. In December 1971 they leased it for an 18-month term to Michael Truman. Bruce Boraas later became a co-lessee. Anne Parish then moved into the house along with three others. These six individuals are students at the nearby State University at Stony Brook, and none is related to the others by blood, adoption, or marriage.
When the village served the Dickmans with an Order to Remedy Violations of the ordinance, the owners plus three tenants brought this action under 42 U.S.C. § 1983 seeking an injunction and a declaratory judgment that the ordinance is unconstitutional. The District Court held the ordinance constitutional. The Court of Appeals reversed. The Supreme Court noted probable jurisdiction.
During the litigation the lease expired and was extended. Anne Parish moved out. Thereafter the other five students left, and the owners now hold the home out for sale or rent, including to student groups.
Roberto Reyes was assaulted by a former partner on a college campus. Federal legislation provided a civil remedy for gender-motivated violence. The court considered whether the statute intruded on areas where individuals retain a reasonable expectation of privacy in personal safety decisions traditionally left to state control.
United States v. Morrison529 U.S. 598 (2000)
In September 1994 Christy Brzonkala enrolled as a student at Virginia Polytechnic Institute and State University. Within thirty minutes of meeting fellow students Antonio Morrison and James Crawford, both members of the varsity football team, Brzonkala alleges that the two men assaulted and repeatedly raped her. Morrison allegedly told Brzonkala after the attack that she had better not have any diseases. He later announced in a dormitory dining room that he liked to get girls drunk and made other vulgar remarks about women.
Brzonkala became severely emotionally disturbed and depressed after the incident. She sought assistance from a university psychiatrist who prescribed antidepressant medication. She stopped attending classes and withdrew from the university. In early 1995 she filed a complaint against Morrison and Crawford under the university's Sexual Assault Policy. Virginia Tech conducted a hearing under its Sexual Assault Policy and a second hearing under its Abusive Conduct Policy. The first found Morrison guilty of sexual assault and suspended him for two semesters. The second hearing again found him guilty but changed the offense description to using abusive language. University officials later set aside the punishment.
In December 1995 Brzonkala sued Morrison, Crawford, and Virginia Tech in the United States District Court for the Western District of Virginia. Her complaint alleged that the attack violated 42 U.S.C. §13981, the civil remedy provision of the Violence Against Women Act of 1994, which creates a federal cause of action for compensatory and punitive damages against persons who commit crimes of violence motivated by gender. She also asserted Title IX claims against the university.
The district court dismissed the Title IX claims for failure to state a claim. It also dismissed the §13981 claim on the ground that Congress lacked authority to enact the provision under either the Commerce Clause or Section 5 of the Fourteenth Amendment. A divided panel of the Fourth Circuit reversed in part, but the en banc Fourth Circuit affirmed the district court's conclusion that Congress lacked constitutional authority to enact §13981.
The Supreme Court granted certiorari to determine the constitutionality of the civil remedy provision.
Ralph Richardson, a terminally ill patient, sought a physician's assistance to end his life under a state statute permitting the practice. The state prohibited the assistance. The court evaluated whether patients possess a reasonable expectation of privacy in end-of-life medical choices that society would recognize as fundamental and protected from state interference.
Washington v. Glucksberg521 U.S. 702 (1997)
Washington has prohibited assisting suicide since its territorial days. In 1854, the first Territorial Legislature outlawed assisting another in the commission of self-murder. The current statute, Wash. Rev. Code § 9A.36.060, provides that a person is guilty of promoting a suicide attempt when he knowingly causes or aids another person to attempt suicide, and classifies it as a class C felony punishable by up to five years imprisonment and a $10,000 fine. Washington's Natural Death Act, enacted in 1979, states that the withholding or withdrawal of life-sustaining treatment at a patient's direction shall not constitute a suicide, but the state has consistently rejected efforts to legalize physician-assisted suicide, including a 1991 ballot initiative defeated by voters.
The respondents in this case are four physicians who practice in Washington and treat terminally ill patients, three terminally ill patients who sought to end their lives with physician assistance and have since died, and Compassion in Dying, a nonprofit organization that counsels people considering physician-assisted suicide. The physicians declared that they would assist their patients in ending their lives if not for the assisted-suicide ban. Petitioners are the State of Washington and its Attorney General.
In January 1994, the respondents filed this action in the United States District Court for the Western District of Washington. They sought a declaration that Wash. Rev. Code § 9A.36.060 is unconstitutional on its face and an injunction against its enforcement. The District Court held that the statute was unconstitutional. A panel of the Court of Appeals for the Ninth Circuit reversed that decision, but the full court sitting en banc reversed the panel and affirmed the District Court. The Supreme Court granted certiorari to review the case.
What are the two parts of the reasonable expectation of privacy test?
The test requires first that the person exhibit an actual subjective expectation of privacy. Second, that expectation must be one that society is prepared to recognize as reasonable.
Supporting sources
Does the Fourth Amendment protect only places or also people?
The Fourth Amendment protects people, not places. Protection turns on whether government conduct violates an individual's reasonable expectation of privacy rather than on property interests alone.
Supporting sources
When does an employee have a reasonable expectation of privacy at work?
An employee has a reasonable expectation of privacy in a desk or file cabinet when the employer has not reduced that expectation through clear policies or practices. Society recognizes the expectation as reasonable when the area is not held out to public view.
Does knowingly exposing information to the public eliminate Fourth Amendment protection?
Yes. What a person knowingly exposes to the public lacks Fourth Amendment protection even if the person subjectively desires privacy.
Supporting sources
How does the reasonable expectation of privacy analysis apply to email stored on employer servers?
An employee generally has only a limited expectation of privacy in email on an employer-furnished system because the employee knows the system exists primarily for the employer's convenience.
376 U.S. 254 (1964)
…of this statute enjoys ordinary criminal-law safeguards such as the requirements of an indictment and of proof beyond a reasonable doubt. These safeguards are not available to the defendant in a civil action. The judgment awarded in this casewithout the need for any proof of actual pecuniary losswas one thousand…