4. The Reasonable Expectation of Privacy.
a. General. The language of the Fourth Amendment speaks in terms of the peoples' right to be
secure in their "persons, houses, papers, and effects." This was formerly held to protect the people
against a physical trespass upon their property. Olmstead v. U.S., 72 L. Ed. 944 (1928). This involved
whether the police physically intruded upon the property (whether they actually entered the home, car,
etc.). In other words, did the police physically trespass upon my home or car? This view gave way to
changes in technology. In Katz v. U.S., 19 L. Ed. 2d 576 (1967), an electronic listening device was
attached to the outside of a public telephone booth. It surely wasn't the defendant's property. Was
there, then, a trespass upon his property? In the physical sense, there wasn't. In this case, the
Supreme Court abandoned the technical "trespass" concept, and ruled that "the Fourth Amendment
protects people, not places...a person in a telephone booth may rely upon the protection of the Fourth
Amendment. One who occupies it, shuts the door behind him, and pays the toll that permits him to
place a call, is surely entitled to assume that the words he utters into the mouthpiece will not be
broadcast to the world." The fact that the listening device was attached to the outside of the phone
booth (there was no physical trespass) was not material. The problem was that the police had "violated
the privacy upon which he justifiably relied while using the phone booth."
This, then, is the modern view. Even if a search involves governmental action, the Fourth
Amendment will only apply if the accused had a reasonable expectation of privacy in "the person,
place, or property searched." (MRE 311(a) 2.) While the issue of governmental action looks at who
does the search (governmental agents v. private persons), here we are looking at where they are
searching. The issue "depends not upon a property right in the invaded place, but upon whether the
person who claims the protection of the Amendment has a legitimate expectation of privacy in the
invaded place." The accused must have such an expectation of privacy, and it also must be one which
society will recognize as reasonable. Rakas v. Illinois, 58 L.Ed.2d 387 (1978).
In one case, the police asked the phone company to install a pen register at its central office. This
would record the numbers dialed from the defendant's home phone. The pen register did not record
the content of the conversation, or even the identity of the parties thereto. It simply recorded the
numbers that had been dialed. The Supreme Court held that there was no reasonable expectation of
privacy in the numbers dialed. The subject had voluntarily conveyed this information to the phone
company and "assumed the risk that the information would be revealed to the police." Even if the
subject did himself have any such expectation of privacy (which the Court found highly doubtful), it was
not one which society would recognize as legitimate or reasonable. Smith v. Maryland, 61 L.Ed.2d 220
(1979).
In U.S. v. Knotts, 75 L.Ed.2d 55 (1983), an individual was suspected of conspiring to manufacture
controlled substances. The police installed a radio transmitter (beeper) inside of a 5-gallon drum of
chloroform. When the defendant purchased it, the police were able to follow his car to a cabin.
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