Also known as: two step process · two-step processes · two-step test · two-part test
Written by attorneys · grounded in primary & secondary sources — see below
A two-part test for determining whether government conduct constitutes a search under the Fourth Amendment. The first step asks whether a person has exhibited an actual subjective expectation of privacy. The second step asks whether that expectation is one that society recognizes as reasonable.
Tiana Tan places sealed bags of personal documents at the edge of her driveway for collection. Officers open the bags without a warrant and find evidence of illegal activity. The court first determines that Tiana exhibited a subjective expectation of privacy by sealing the bags. It then concludes that society does not recognize that expectation as reasonable because the bags were left in a public area accessible to anyone.
Victor Vale grows plants inside a greenhouse enclosed by a tall fence on his rural property. Officers fly over in a helicopter and photograph the interior without a warrant. The court first determines that Victor exhibited a subjective expectation of privacy by enclosing the greenhouse. It then concludes that society recognizes that expectation as reasonable given the measures taken to shield the area from public view.
Select any source to read its text and confirm it supports the definition.
Wendy West leaves a locked suitcase in her hotel room while she steps out briefly. Officers enter without a warrant and open the suitcase. The court first determines that Wendy exhibited a subjective expectation of privacy by locking the suitcase. It then concludes that society recognizes that expectation as reasonable even though the room is in a commercial establishment.
Xavier Xu parks his car on a public street and locks the trunk containing personal papers. Officers search the trunk without a warrant. The court first determines that Xavier exhibited a subjective expectation of privacy by locking the trunk. It then concludes that society does not recognize that expectation as reasonable because the car was left in a public area.
Yolanda Young keeps personal letters in locked desk drawers at her private office. Officers search the drawers without a warrant. The court first determines that Yolanda exhibited a subjective expectation of privacy by locking the drawers. It then concludes that society recognizes that expectation as reasonable given the private workplace setting.
Zane Zhu stores a closed backpack under his seat on a public bus. Officers open the backpack without a warrant. The court first determines that Zane exhibited a subjective expectation of privacy by keeping the backpack closed. It then concludes that society recognizes that expectation as reasonable because the item was not exposed to public view.
The first step requires a person to exhibit an actual subjective expectation of privacy in the place or item searched. The second step requires that the expectation be one society recognizes as reasonable. Both must be satisfied for Fourth Amendment protection to apply.
Supporting sources
No. What a person knowingly exposes to the public lacks protection, but items or information a person seeks to preserve as private may remain protected even if located in a public area. The two-step inquiry focuses on both the individual's conduct and societal recognition.
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The privacy test protects people rather than places and applies even when no trespass occurs. It requires both subjective and objective components. A property-based approach instead focuses on whether the government physically intruded on a constitutionally protected area.
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…but the principle is one that this Court should be reluctant to abandon. Our cases reveal that the stare decisis analysis is a two-step process. First, the Court must determine whether the earlier decision is “unworkable” or “badly reasoned.” Second, the Court must consider whether “special justification” exists for overruling the…