Expectation of privacy
Encyclopedia
In United States constitutional law
the expectation of privacy is a legal test which is crucial in defining the scope of the applicability of the privacy protections of the Fourth Amendment to the United States Constitution
. It is related to, but is not the same thing as a right of privacy, a much broader concept which is found in many legal systems (see privacy law
).
There are two types of expectations of privacy:
Examples of places where a person has a reasonable expectation of privacy are person's residence or hotel room and public places which have been specifically provided by businesses or the public sector to ensure privacy, such as public restrooms, private portions of jailhouses, or a phone booth.
In general, one cannot have a reasonable expectation of privacy in things held out to the public. A well-known example is that there is no privacy rights in garbage
left for collection in a public place.. Other examples include: account records held by the bank, a person's physical characteristics (including blood, hair, fingerprints, fingernails and the sound of your voice), what the naked eye can see below in public air space (without the use of special equipment), anything in open fields (eg. barn), odors emanating from your car or luggage and paint scrapings on the outside of your car.
While a person may have a subjective expectation of privacy in his/her car
, it is not always an objective one, unlike a person's home.
The privacy laws of the United States include the notion of a person's "open fields"
; that is, places where a person's possessions do not have an objective expectation of privacy.
from an unreasonable one.
In Katz v. United States
, Justice Harlan
issued a concurring opinion
articulating the two-part test
later adopted by the U.S. Supreme Court as the test for determining whether a police or government search is subject to the limitations of the Fourth Amendment
: (1) governmental action must contravene an individual's actual, subjective expectation of privacy; (2) and that expectation of privacy must be reasonable, in the sense that society
in general would recognize it as such.
To meet the first part of the test, the person from whom the information was obtained must demonstrate that they, in fact, had an actual, subjective expectation that the evidence obtained would not be available to the public. In other words, the person asserting that a search was conducted must show that they kept the evidence in a manner designed to ensure its privacy.
The first part of the test is related to the notion "in plain view". If a person did not undertake reasonable efforts to conceal something from a casual observer (as opposed to a snoop), then no subjective expectation of privacy is assumed.
The second part of the test is analyzed objectively
: would society at large deem a person's expectation of privacy to be reasonable? If it is plain that a person did not keep the evidence at issue in a private place, then no search is required to uncover the evidence. For example, there is generally no search when police officers look through garbage because a reasonable person would not expect that items placed in the garbage would necessarily remain private. Similarly, there is no search where officers monitor what phone numbers an individual dials, although the Congress
has enacted laws that restrict such monitoring. The Supreme Court
has also ruled that there is no objectively reasonable expectation of privacy (and thus no search) when officers hovering in a helicopter 400 feet above a suspect's house conduct surveillance.
United States constitutional law
United States constitutional law is the body of law governing the interpretation and implementation of the United States Constitution.- Introduction :United States constitutional law defines the scope and application of the terms of the Constitution...
the expectation of privacy is a legal test which is crucial in defining the scope of the applicability of the privacy protections of the Fourth Amendment to the United States Constitution
Fourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
. It is related to, but is not the same thing as a right of privacy, a much broader concept which is found in many legal systems (see privacy law
Privacy law
Privacy law refers to the laws which deal with the regulation of personal information about individuals which can be collected by governments and other public as well as private organizations and its storage and use....
).
There are two types of expectations of privacy:
- A subjective expectation of privacy is an opinion of a person that a certain location or situation is privatePrivacyPrivacy is the ability of an individual or group to seclude themselves or information about themselves and thereby reveal themselves selectively...
. These obviously vary greatly from person to person. - An objective, legitimate or reasonable expectation of privacy is an expectation of privacy generally recognized by society.
Examples of places where a person has a reasonable expectation of privacy are person's residence or hotel room and public places which have been specifically provided by businesses or the public sector to ensure privacy, such as public restrooms, private portions of jailhouses, or a phone booth.
In general, one cannot have a reasonable expectation of privacy in things held out to the public. A well-known example is that there is no privacy rights in garbage
Waste
Waste is unwanted or useless materials. In biology, waste is any of the many unwanted substances or toxins that are expelled from living organisms, metabolic waste; such as urea, sweat or feces. Litter is waste which has been disposed of improperly...
left for collection in a public place.. Other examples include: account records held by the bank, a person's physical characteristics (including blood, hair, fingerprints, fingernails and the sound of your voice), what the naked eye can see below in public air space (without the use of special equipment), anything in open fields (eg. barn), odors emanating from your car or luggage and paint scrapings on the outside of your car.
While a person may have a subjective expectation of privacy in his/her car
Čar
Čar is a village in the municipality of Bujanovac, Serbia. According to the 2002 census, the town has a population of 296 people.-References:...
, it is not always an objective one, unlike a person's home.
The privacy laws of the United States include the notion of a person's "open fields"
Open fields doctrine
The open fields doctrine is a U.S. legal doctrine created judicially for purposes of evaluating claims of an unreasonable search by the government in violation of the Fourth Amendment of the U.S...
; that is, places where a person's possessions do not have an objective expectation of privacy.
Privacy and search
The expectation of privacy is crucial to distinguishing a legitimate, reasonable police search and seizureSearch and seizure
Search and seizure is a legal procedure used in many civil law and common law legal systems whereby police or other authorities and their agents, who suspect that a crime has been committed, do a search of a person's property and confiscate any relevant evidence to the crime.Some countries have...
from an unreasonable one.
In Katz v. United States
Katz v. United States
Katz v. United States, , is a United States Supreme Court case discussing the nature of the "right to privacy" and the legal definition of a "search." The Court’s ruling adjusted previous interpretations of the unreasonable search and seizure clause of the Fourth Amendment to count immaterial...
, Justice Harlan
John Marshall Harlan II
John Marshall Harlan was an American jurist who served as an Associate Justice of the Supreme Court from 1955 to 1971. His namesake was his grandfather John Marshall Harlan, another associate justice who served from 1877 to 1911.Harlan was a student at Upper Canada College and Appleby College and...
issued a concurring opinion
Concurring opinion
In law, a concurring opinion is a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different reasons as the basis for his or her decision...
articulating the two-part test
Legal tests
Legal tests are various kinds of commonly applied methods of evaluation used to resolve matters of jurisprudence. In the context of a trial, a hearing, discovery, or other kinds of legal proceedings, the resolution of certain questions of fact or law may hinge on the application of one or more...
later adopted by the U.S. Supreme Court as the test for determining whether a police or government search is subject to the limitations of the Fourth Amendment
Fourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
: (1) governmental action must contravene an individual's actual, subjective expectation of privacy; (2) and that expectation of privacy must be reasonable, in the sense that society
Society
A society, or a human society, is a group of people related to each other through persistent relations, or a large social grouping sharing the same geographical or virtual territory, subject to the same political authority and dominant cultural expectations...
in general would recognize it as such.
To meet the first part of the test, the person from whom the information was obtained must demonstrate that they, in fact, had an actual, subjective expectation that the evidence obtained would not be available to the public. In other words, the person asserting that a search was conducted must show that they kept the evidence in a manner designed to ensure its privacy.
The first part of the test is related to the notion "in plain view". If a person did not undertake reasonable efforts to conceal something from a casual observer (as opposed to a snoop), then no subjective expectation of privacy is assumed.
The second part of the test is analyzed objectively
Objectivity (philosophy)
Objectivity is a central philosophical concept which has been variously defined by sources. A proposition is generally considered to be objectively true when its truth conditions are met and are "mind-independent"—that is, not met by the judgment of a conscious entity or subject.- Objectivism...
: would society at large deem a person's expectation of privacy to be reasonable? If it is plain that a person did not keep the evidence at issue in a private place, then no search is required to uncover the evidence. For example, there is generally no search when police officers look through garbage because a reasonable person would not expect that items placed in the garbage would necessarily remain private. Similarly, there is no search where officers monitor what phone numbers an individual dials, although the Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
has enacted laws that restrict such monitoring. The Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
has also ruled that there is no objectively reasonable expectation of privacy (and thus no search) when officers hovering in a helicopter 400 feet above a suspect's house conduct surveillance.
See also
- CurtilageCurtilageThe curtilage is an important legal term to define the land immediately surrounding a house or dwelling, including any closely associated buildings and structures, but excluding any associated 'open fields beyond'. It defines the boundary within which a home owner can have a reasonable expectation...
- Surreptitious DNA collecting
- Secrecy of correspondenceSecrecy of correspondenceThe secrecy of correspondence ) or literally translated as secrecy of letters, is a fundamental legal principle enshrined in the constitutions of several European countries. It guarantees that the content of sealed letters is never revealed and letters in transit are not opened by government...