One factor can exist without the other, but this simply means that the Fourth Amendment doesn't
apply to the situation at hand. As an example, suppose a search of your home is done by your spouse
or children. You certainly have a right of privacy in your home, but there is no governmental action in
such a situation. Consequently, the Fourth Amendment does not apply, and does not protect you from
a search by a spouse/child. On the other hand, suppose governmental officials (MPI, CID, etc.)
conduct a search of property which you have thrown away into a dumpster outside of the barracks.
Here, we have governmental action, but you have no reasonable expectation of privacy. Remember,
the Fourth Amendment does not apply unless we have BOTH. If the Fourth Amendment is
inapplicable, the evidence that is seized in the search will be admissible in court. We will now examine
these concepts in more detail.
The case of U.S. v Sullivan, 42 MJ 360 (CAAF, 1995) clearly illustrates a situation in which there is
no governmental action and hence no coverage by the Fourth Amendment. In Sullivan, the accused
conducted a telephone sex survey of over 700 Army spouses at Fort Rucker, Alabama using his
cordless telephone. The Fourth Amendment Exclusionary Rule was inapplicable to the action of the
accused's neighbor, who was acting in a private capacity when he recorded the accused's
transmissions. The neighbor later turned over these recordings to law enforcement officials and they
were used in Chief Sullivan's successful prosecution. CAAF held that the tape recordings of the
conversations were properly admitted into evidence by the trial judge.
Law enforcement officials, however, must be aware of the provisions of 18 U.S.C. sections 2510
and 2511 if they wish to intercept cordless telephone conversations as part of their investigatory
activity. The most recent revision of 18 U.S.C. section 2510 in 1994 deleted the exclusion of cordless
telephone communication from the term "wire communication." Law enforcement officials will now be
required to observe all the provisions of 18 U.S.C. section 2511 regarding interception and disclosure of
wire, oral, or electronic communication concerning cordless telephone conversations.
2. The Purely Private Search. Here, the subject of the search may have a reasonable expectation
of privacy, but there is no governmental action. In one case, the U.S. Supreme Court held that the
protection of the Fourth Amendment "applies to governmental action...it was intended as a restraint
upon the activities of sovereign authority, and was not intended to be a limitation upon other than
governmental agencies." The Court concluded that the Fourth Amendment offers no protection against
the acts of private individuals.
The Fourth Amendment, then, is a restraint UPON THE
GOVERNMENT, not upon private parties. Where there is no governmental action, the Fourth
Amendment is not violated, and the evidence seized by a private person is admissible in court.
Bordeau v. McDowell, 65 L. Ed. 1048 (1921).