Discussions about the Fourth Amendment sometimes include arguments that look like this:
The Fourth Amendment protects reasonable expectations of privacy. I expect privacy in _________, and I’m pretty reasonable, so I have a reasonable expectation of privacy in ________ and the Fourth Amendment should therefore protect it.
This reasoning is really common, but it’s also based on a misunderstanding. It is based on the erroneous belief that the test for whether government conduct violates a “legitimate” or “reasonable” expectation of privacy under the Fourth Amendment is whether a reasonable person would expect privacy in what the government learned. I can certainly understand why a lot of people think that way. After all, the test is “reasonable expectation of privacy,” which sure sounds like it should be based on whether a reasonable person would expect privacy. But it turns out that this isn’t how the Fourth Amendment works, and I wanted to explain why.
The key idea is that the phrase “reasonable expectation of privacy” is a constitutional term of art, much like other constitutional terms of art like “due process,” “free speech,” “strict scrutiny,” or “fundamental rights.” You normally can’t answer if something violates “due process” just by asking if there was a “process” that seemed “due,” much like you can’t answer if a regulation satisfies “strict scrutiny” by scrutinizing the regulation while being “strict.” In all of these cases, the phrase captures a complicated body of caselaw; You can’t just repeat the name for the test and think that the name accurately captures the doctrine. Rather, you need to recognize the test as a term of art that reflects a large body of caselaw, and you need to get the answer from the caselaw.
In the case of the “reasonable expectation of privacy” test, the Supreme Court has repeatedly refused to provide a single test for what makes an expectation of privacy “reasonable.” Instead, it has used different approaches in different settings. In some settings, an expectation of privacy becomes reasonable when it is a good thing as a policy matter for the Fourth Amendment to protect it. In other settings, an expectation of privacy becomes reasonable when it is backed by positive law outside the Fourth Amendment. In other settings, an expectation of privacy becomes reasonable when it shields the government from particularly private facts. Finally, in some settings, an expectation of privacy is reasonable when common social norms make exposure jarring or unlikely. I have called these four approaches the Four Models of Fourth Amendment Protection; they are four different ways of interpreting what makes an expectation of privacy reasonable, and they each apply in various degrees in different factual settings.
It sounds complicated, I realize, and it is. But I think there are good practical reasons why the Supreme Court has refused to provide a single test for what makes an expectation of privacy reasonable; no one test consistently and accurately distinguishes government investigative steps that need Fourth Amendment regulation from those that don’t. (See the Four Models paper linked to above starting at page 25 for the detailed answer of why.) Whatever the reason, the key point is that a “reasonable expectation of privacy” is not just an empirical question into whether a reasonable person would expect privacy. You can’t just mull over the words “reasonable expectation of privacy” and derive an answer from those words any more than you can mull over words like “due process” and derive an answer from for what the due process clause forbids.
Brett Bellmore says:
Maybe the legal community should start making up new words, instead of taking words which already have meanings, and using them to mean something else?
Of course, I suppose the “reasonable person” test really did start out by asking what a reasonable person would think, and only later morphed into something completely different as the legal community decided they disagreed with reasonable people…
February 9, 2010, 9:03 pmAllan Walstad says:
Is all this due to any real ambiguity in the text, or does it stem from courts’ reluctance to go with a fairly straightforward reading? Isn’t it the case that a whole bunch of law was built on “due process” as a way of getting around the Supreme Court’s snub of privileges and immunities? No doubt some aspects of law are technical and complicated by nature, but I wonder if there are not far too may cases in which judges and lawyers have chosen to make things convoluted rather than enforce provisions as written.
February 9, 2010, 9:12 pmOrin Kerr says:
Allan,
The Four Models article discusses this in detail, actually.
(As for DP versus P or I, no one disagrees that they are terms of art, whatever they mean. An originalist term of art is still a term of art. The focus is on what kind of term of art they should be, not whether they should be terms of art at all.)
February 9, 2010, 9:16 pmAnon21 says:
Interesting. Wasn’t the original formulation subjective expectation of privacy + societal recognition and validation, or is your contention that that formula is too vague to be considered a standard? Or is it rather that that formulation corresponds the social norms model you mention above, and has only ever been one of several ways in which the term was interpreted?
February 9, 2010, 9:23 pms says:
Great explanation, thanks. There are some other Supreme Court rulings that use “reasonableness” from the perspective of the average person, right? Isn’t there some sort of “reasonable observer” test that occasionally pops up in Establishment Clause settings, or is that confusion on my part again?
February 9, 2010, 9:25 pmAllan Walstad says:
All right, I’ll have a look. Thank you.
February 9, 2010, 9:32 pmAnon says:
The test is not hard to apply. From a criminal law standpoint, anyway, fourth amendment REP is an objective test that is satisfied when other people cannot perceive the thing you claim privacy in from a vantage point in which they have a legitimate right to be. Simple example: a domestic fight in your living room with closed windows and shades, but loud enough to be heard from the sidewalk outside = REP in the visual act, no REP in the sounds. No REP = no search = no suppression. Prof V. is right. REP has nothing to do with what a reasonable person thinks “should be” private. It has to do with whether a fact is perceivable from a place where a person (i.e., a cop in most cases) has a right to be. There are of course special glosses on the general rule: using technology not in common use to perceive otherwise non-perceivable things (Kyllo), no REP in contraband no matter where you put it, etc. The gloss that does most damage to the general rule is the open fields doctrine that ignores the fact of trespass.
February 9, 2010, 9:57 pmOrin Kerr says:
Anon:
The difficulty with this definition is that it just passes the ball: The government has a “legitimate right to be there” only if the government actor did not violate a reasonable expectation of privacy in getting there. So while this proposed definition may appear easy to apply, it doesn’t seem to actually answer the question.
February 9, 2010, 10:33 pmSandy MacHoots says:
And yet police officers who graduated in criminal science from the local junior college are supposed to know exactly what they can and can’t do.
The lack of a bright line test simply means that years after the fact courts can do pretty much whatever they want. Of course judges (and law professors) like rules like that. But neither the police nor the people who are being searched can take much comfort in this highly intellectual enterprise.
February 9, 2010, 10:34 pmOrin Kerr says:
Sandy MacHoots:
I believe you’re confusing the “intellectual enterprise” of how courts resolve the rare unsettled questions of how the test applies with the non-intellectual enterprise of how cops apply settled law. When a court applies the reasonable expectation of privacy test to an unsettled area, it then announces a rule: It announces a rule that says either the cops can’t do that thing without a warrant or an exception to the warrant requirement (that is, it is protected by an REP) or the cops can do whatever they want (as it is not protected). There isn’t any theory: A cop just has to follow whatever the court said.
From a police officer’s perspective, they just have to follow the rules announced, which covers every routine issue cops face with quite clear rules. Now, you might think these settled and clear rules are too permissive. Perhaps. But that is a separate question of whether the rules are settled and clear.
February 9, 2010, 10:42 pmgeorge weiss says:
i think part of the confusion stems from the word reasonable.
the word reasonable itself is used as part of many direct tests.
its hard to know when the word is being used as the general rule or is being used to definite the test itself. for example the test for qualified immunity is whether a reasonable officer would have known the conduct was constitutionally impermissible-that’s the test-it is not subject to further definition-the court must simply apply the word reasonable to the precedent available to the officer-no models-no factors…no further definition of what is reasonable.
so perhaps people believe “reasonable expectation” is itself the test and does not lend itself to further definition. of course-they are wrong…or are they?
perhaps those 4 models are just factors by which we analyze the question of whether our expectation is objectively reasonable? perhaps this is why the SCOTUS does not further define REP and instead invokes those models on an ad hoc basis-they are not tests-but factors-and REP itself is the test. further defining REP would just replace the expression reasonable expectation of privacy with another term of art equally difficult ot apply.
February 9, 2010, 11:02 pmC.T. says:
I just tonight had this discussion with my criminal justice class. Funny seeing it here after we talked about it. Good topic. I might C&P the hyperlink and pass the thread on for them to read.
February 9, 2010, 11:36 pmOrder of the Coif says:
As a matter of S. Ct decisions, this is true: “the key point is that a ‘reasonable expectation of privacy’ is not just an empirical question into whether a reasonable person would expect privacy.”
What has always bothered me (Disclosure: I got my only C+’s in Crim Law and Crim Proc although I wound up spending my first four years of law practive in that field) why the empirical question is irrelevant rather than being the baseline on which the court-made policy districtions are overlaid (i.e., more restrictive).
Sure, empirical conclusions change slowly over time but so do the results of judicial slight-of-hand. As I said earlier in a discussion of technology change, the fact that the police CAN do something doesn’t mean that the society ACCEPTS (or “expects”) that they will. Why should five justices not have to consider, at least, the norms of society that ordinary folk follow. After all, they are writing rules for the ordinary folk not the social elite.
February 9, 2010, 11:44 pmAcquisitions Committee says:
You’re thinking of the endorsement test developed in concurrences in Lynch v. Donnelly and County of Allegheny v. ACLU. That tests asks whether a reasonable observer who knows everything about the government policy would conclude that religion is being endorsed, thereby constituting an establishment of religion. In that context, “reasonable observer” is a legal term of art for someone laypeople would call “Sandra Day O’Connor.”
February 9, 2010, 11:52 pmOrin Kerr says:
Order of the Coif,
I think I answer that in the article, too. ;-)
February 9, 2010, 11:54 pmFub says:
Thanks for asking a question I’ve also frequently pondered from long before I practiced law until long after I stopped.
February 10, 2010, 2:01 amOrin Kerr says:
The problem is that whether a particular government invasion should require Fourth Amendment oversight can be different from whether a particular type of invasion is unexpected or surprising. There are lots of things that are rare but not very invasive, and other things that are very invasive but common.
Think of a person who lives in a really bad neighborhood in which burglaries are very common and locks are poorly made and easily broken. A reasonable person in such a situation might not expect privacy in the home: After all, people break in all the time. But such a person would still have a reasonable expectation of privacy for Fourth Amendment purposes, because a home is a home and the Supreme Court says they are protected. As the Court stated in United States v. Ross, “the most frail cottage in the kingdom is absolutely entitled to the same guarantees of privacy as the most majestic mansion.”
February 10, 2010, 3:01 amJohn Armstrong says:
And yet (especially this week) we’re inundated by people asking “If global warming is real then why is it cold?”
February 10, 2010, 4:09 amSpecast says:
Eugene wrote:
Huh? The idea is to first decide whether an area deserves privacy protection and then attempt to fashion a test that encompasses that area? Sounds like the second step is really unnecessary. Maybe your paper explains?
February 10, 2010, 6:40 amcboldt says:
In law, the weasel-word “reasonable” connotes a so-called “objective” test. This means that the decider (a jury) holds the power to decide what is reasonable and what is not. The alternative is a subjective test, which probes the sentiments of the individual.
February 10, 2010, 6:53 amin the case of privacy, a fair shorthand is that “reasonable” is in the eyes of the court, not in the eyes of the citizen. Your personal expectations do not determine the outcome of a challenge where you believe that your privacy has been unreasonably encroached.
Buddy Hinton says:
No. The reason the person with the frail cottage has a reasonable expectation of privacy is because she has a commonlaw tort claim for tresspass and tresspass to chattels and conversion. The Supreme Court merely recognizes this pre-existing expectation (as they must to the extent they want to be good jurists and not evil ones).
February 10, 2010, 7:20 amSomeone on a jury says:
Sure I can! Especially if the the name of the test is the law itself, like in the constitution. Why not? If the constitution says “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”, then that is the law. That is what the jury should be deciding on. You can’t just handwave and say “unreasonable searches and seizures” is a legal term of art whose meaning is unknowable unless a lawyer fills you in on all the legalese.
February 10, 2010, 7:28 amcboldt says:
– The reason the person with the frail cottage has a reasonable expectation of privacy is because she has a commonlaw tort claim for tresspass and tresspass to chattels and conversion. –
February 10, 2010, 7:41 amThat has no bearing on a contest between the king and the subject, or the government and the citizen. When the government has sufficient basis to enter and/or seize your property, a common law tort claim will not lie.
Put another way, thievery is per se not a reasonable basis for entry – and the act of thievery is not probative of what constitutes a sufficient basis for government intrusion into the frail cottage.
The question of reasonable expectation of privacy as against the government is measured by the government’s “needs,” and is relatively disjoint from what most people believe.
Arkady says:
@Orin
But, but the original…
February 10, 2010, 8:56 amBuddy Hinton says:
Please allow me to explain. Professor Kerr is trying to make the case that the “reasonable expectation of privacy” either does not draw on what would be considered reasonable (or not) by the average person. To support this case, he used an example of a house that had insufficient locks to keep out burglars, stating that there would be no objectively reasonable expectation of privacy in the house because burglars could get in, but the reasonable expectation of privacy would still exist as a matter of 4a law.
Now, before commenting on the intellectuall quality of Professor Kerr’s thesis about what “reasonable” really means in the REP context, it should be understood that my previous post was only written for the limited purpose of showing that his supporting example is silly. Perhaps I have spent a bit more time in run down section 8 / public assistance housing than he has, but I am confident in saying that trespassers are the exception and not the rule. What is more, the reason that trespassers are the exception, and not the rule, is not because of the locks. Rather, it is for a whole host of other reasons that Professor Kerr ignores. One is civil suits for trespass. Another is the fact that if a trespasser will not leave your house, then, under state law, you can pour kerosene on the person and light her on fire and watch her skin melt. All for the proce of a gallon of kerosene and a match! Furthermore, landlords (the inhabitants are, overwhelmingly renters) make the doors secure because they know that if the door is casually breached then the public assistance and section 8 peeps will subsidize the tenants to leave.
Now there may be other good reasons why “reasonable expectation” of privacy does not, or ought not to, mean “reasonable expectation of privacy.” All I am saying is that Professor Kerr’s example is ridiculous.
Personally, I am of the opinion that 4A actually requires (or ought to be deemed to require) probable cause in all cases, and that the probable cause standard was intended by the Framers as a prophylactic measure to ensure that all searches and seizures would be at least “reasonable.” I believe they wanted the Federal Government (and, after the War Between The States, state and local governments) to err on the side of caution with the searching and the seizing. However, things will probably just keep getting worse as far as 4a jurisprudence and scholarship goes so long as the Exclusionary Rule is the primary guarantor of our 4a rights. Nobody wants to see a criminal go free, so professors exercise their sophistry to replace “probable cause” with “reasonableness” and then define “reasonableness” almost out of existence and then create exceptions to it to the extent the lawyer-tortured concept is allowed to maintain any meaning.
As 9/11 fades in our rearview, and our boys come home and don blue (well, more often plainclothes these days) and show us what they learned over there, then hopefully things will get bad enough that the pendulum swings back to the America we used to know, the one with liberty and justice for all.
February 10, 2010, 9:32 amPintler says:
The perspective of the police officers I know (and I confess I have only discussed the issue in passing) seem to view the rules as less than clear. It’s easy enough to have a clear rule, e.g. ‘exigent circumstances are an exception to the warrant requirement’, but in the field what will or won’t pass muster under that exception is not so clear. Their overall attitude seems to be ‘we do what seems to be the right thing at the time, then send the case through the rabbit hole into the court system, and who knows what will happen there’.
This isn’t intended to be an anti-lawyer rant; the issues are complicated. I’m only taking exception to ‘covers every routine issue cops face with quite clear rules’.
February 10, 2010, 9:40 amBuddy Hinton says:
Correction One: exigent circumstances plus probable cause are an exception to the warrant requirement.
Correction Two: Policeman are quite clear on what “exigency” means in any situation because the policeman regards EVERYTHING as exigent circumstances. For example, if a caller calls the police and says that some unidentified person thinks that two men are breaking into a house, but the caller personally doesn’t think they are and then the policeman goes to the house and meets a history professor (older man) who lives there at the door, and the history professor explains to the policeman that the caller was correct and he does live there and no one has broken in, then that is considered (by policemen to a man, not necessarily by courts) to be exigent circumstances to enter the house. There is nothing policemen do not regard as exigent circumstances. Whatever the ultimate merits of this viewpoint, it does lend crystal clarity.
February 10, 2010, 9:48 amPintler says:
My gut agrees with you, but my mind doesn’t :-). We start with your premise, but would you also agree that it is a good thing that like cases are decided alike? Let’s say we do adopt that as a goal. Now we get to a specific set of facts: Officer Krupke has heard Smith is selling drugs out of a motel room. At the location, he sees Smith leave the room. Smith does something that justifies an arrest, and is carrying drugs. Does Krupke need a warrant to search the motel room? Well, the 4th says ‘house’. It doesn’t say anything about ‘motel room’, so everyone goes to court and argues. The judges decide that a hotel room is a temporary house, and Krupke needs a warrant. Next Krupke is told there is hanky panky afoot in a public restroom. He sees 4 legs in a stall and looks over the door and makes an arrest for prostitution. Did he need a warrant to look over the stall door? Is a restroom stall a temporary house? And so on.
One way is to have every jury decide each case from the first principles of the text. That is a simple rule to write, but it means that one jury will think a given search is reasonable, and another won’t. Neither Krupke nor Smith knows what the rules are. The other way is to have the case law become precedent – once we decide whether the hotel room or stall is protected (and which way those are decided may be a bit of a crap shoot), we make the same decision in all future identical cases. That means a complex body of case law, and complex theories about why the present case is more like precedent A then precedent B and so on.
It’s a damned if you do, damned if you don’t decision :-)
February 10, 2010, 9:57 amBuddy Hinton says:
Incorrect on at least two counts.
Correction One: The warrant requirement of 4a is not limited to searches of persons, houses, papers and effects. If you do not understand this, then think about how the Second Amendment is not limited to people in militias. Same dealee with precatory language at the front of the amendment and the actual requirement at the back.
Coorection Two: Even if we pretend that warrants are only required for searches of persons, houses, papers and effects, the hotel room is clearly a search of “effects” and peeping in the stall is clearly a search of the “person.” No need to resort to nonsense about temporary “houses.”
February 10, 2010, 10:34 amOrder of the Coif says:
Buddy Hinton says: “No need to resort to nonsense about temporary ‘houses.’”
Yes there is IF the justices don’t believe in the protection of the Fourth Amendment and they WANT (at least 5 of them want) to allow the evidence in. Unfortunately, it is not possible to write anything that a determined Court can’t twist to suit their personal, elitist preferences. It’s all personalities/politics. That’s why the Senate fights so hard over WHO gets appointed.
That’s why we have such judicial inventions as 3 levels of scrutiny, etc. Because otherwise the Constitution would not yield the result desired by the momentary five in charge.
A simple question, why did so many great minds slave through a hot summer in Phidelphia crafting these words, if they meant to allow any law that meets the “gibbering monkeys” test? I always think of an infinite number of monkeys typing for an infinate number of years to write, accidentally, the corpus of human knowledge when I see the “rational basis” test. The monkeys could pass it.
February 10, 2010, 11:03 amOrin Kerr says:
Buddy Hinton,
Do you have citations to back up any of your claims, or is it understood that you are offering your theory of what you think the Fourth Amendment should mean, rather than what the courts say it does mean? I ask that because you seem to have deeply felt views that I don’t think I have seen reflected in judicial decisions. Indeed, with several of your claims I’m quite sure the Supreme Court has considered your proposed arguments and rejected them repeatedly in majority opinions. I understand that won’t stop you from saying that my views are “ridiculous” and “nonsense,” but an effort to back up your personal views with citations (or an acknowledgement that your view of the Fourth Amendment is not based on Supreme Court law) might help our readers get a sense of where you are coming from.
February 10, 2010, 11:21 amOrin Kerr says:
Coif writes
This seems like a surprising complaint given that the exclusionary rule is understood to have been invented in the 20th Century. If you’re an originalist, presumably you would think all evidence should come in.
February 10, 2010, 11:25 amSandy MacHoots says:
No, I don’t think so. Search and seizure litigation is not “rare.” Westlaw shows me 8,400 judicial opinions on the topic in the last 14 months. That doesn’t sound like a system where all the rules are clear except for the occasional “rare” outlier. My own conversations with cops (admittedly some years ago) didn’t suggest that they were confident they knew the rules.
February 10, 2010, 11:29 amSandy MacHoots says:
Just to add, one of the cases that came up on the search was from yesterday — does the tenant of a duplex have a right to a “reasonable expectation of privacy” in the stairway leading to his apartment? State v. O’Connell, Slip Copy, 2010 WL 431611 (Wis. Ct. App. Feb. 9, 2010). Police thought no, AG’s office thought yes, trial judge thought no, single-judge appellate court thought yes.
Sound like a well-settled area to you?
February 10, 2010, 11:35 amOrder of the Coif says:
Orin Kerr posts: “If you’re an originalist, presumably you would think all evidence should come in.”
No. The Constitution specifically says “shall not be violated.” If you violate, there has to be a penalty or else the prohibition is meaningless.
February 10, 2010, 11:48 amOrin Kerr says:
Coif:
But obviously that is a consequentialist policy argument, not an originalist argument. The Fourth Amendment adopted the common law prohibition against unreasonable searches and seizures, and the common law had clearly held that search and seizure violations do not trigger suppression of evidence unlawfully obtained.
Now, you might say you don’t think the common law rule works, and that a better rule is needed. Thats what the Supreme Court concluded when it created and expanded the exclusionary rule in the 20th century. But again, that is not an originalist argument: It is a policy argument based on the perceived consequences of different remedies schemes. (I happen to find that policy argument persuasive, I should add, but then I am not a Fourth Amendment originalist.)
February 10, 2010, 11:58 amOrin Kerr says:
Sandy:
You’re missing two points.
First, what government conduct violates a reasonable expectation of privacy is only one small part of Fourth Amendment litigation. The most heavily questions in Fourth Amendment law concern other topics, like whether the government had probable cause; whether a suspect voluntarily consented to a search, etc. Litigation about whether an REP existed occurs in borderline cases — the classic cases being the line between (protected) inside and (nonprotected) outside, such as those in an apartment hallway, the opening of screendoors, etc. But they represent only a small fraction of overall Fourth Amendment litigation. Most litigation arises over vague standards used in various places in the law, such with the threshholds like “probable cause” and “reasonable suspicion.”
Second, the frequency of litigation and whether the law is clear do not neatly correlate. There are something like 15 million arrests in the United States every year. Every criminal defendant charged with a non-minor offense has an attorney, typically paid for by the government, and that attorney can potentially file a potential Fourth Amendment claim in every case; if he wins, his client may go free. Those incentives will generate hundreds of thousands of Fourth Amendment challenges a year quite apart from the clarity or vagueness of the reasonable expectation of privacy test.
February 10, 2010, 12:10 pmanonymous ee student says:
Good explanation, Prof. Kerr. Reminds me of something I read in an opinion a few months ago:
Schering-Plough Healthcare Products v. Schwarz Pharma, et al., 586 F.3d 500, 512, slip op. at 20 (CA7 2009).
February 10, 2010, 12:39 pmWhadonna More says:
I think lay people and lawyers whose last constitutionality issue was in law school should be forgiven all misunderstandings on the topic. Law professors, of course, are to blame – you/they switch between normative and descriptive use of “constituionality” to suit the current rhetorical purpose. Try reading a Barnett post about Kelo after to this post with an open mind and you’ll wonder which of you is the crazy one.
February 10, 2010, 12:48 pmSuperSkeptic says:
And yet, sometimes the Court just throws its hands up and says: “Well, the Fourth Amendment only prohibits ‘unreasonable’ searches…”
(I’ll read the article…)
February 10, 2010, 1:05 pmBuddy Hinton says:
Whoa, whoa, whoa.
1. I only said that the hypothetical example of a house in a poor neighborhood where burglary was expected as probable and normal was “ridiculous.” I don’t always agree with your Fourth Amendment analyses, but I was not calling them ridiculous. Often, maybe always, they are not that.
2. As far as “nonsense,” I was referring to another poster’s thing about analyzing whether a person’s effects were a “temporary house” and whether her person was in a “temporary house” when she had sex in a bathroom stall. This was not to say that that poster’s whole outlook on 4a is nonsense (although it may be), but rather that this talk of “temporary houses” is nonsense.
3. I am often saying what the 4a law ought to be. Sometimes 4a law is what I think it ought to be. Other times it is less clear. Depends on the exact proposition I am arguing. Sometimes my opinion is supported by Supreme Court precedent, sometimes by lower court precedent, and sometimes only by reference to the language of 4a itself. Lets look at a couple examples, of my 4a views, that have come up in this thread to see how this works:
a. Proposition: 4a should be deemed to require “probable cause,” even when the warrant requirement is excused.
(i) support from 4a itself: if a magistrate must have “probable cause” to authorize a search (as 4a says she must). Assuming that 4a ever allows its warrant requirement to be excused (note: the text of 4a does not say that the warrant requirement can be excused), then it makes no sense to require any less level of cause from a policeman who is forced by circumstances to forego the benefit of the magistrate’s detachment and superior wisdom. If anything, the policies that lead to the inclusion of the warrant requirement in the first place would seem to dictate that a higher level of cause would need to be present when the policeman is the decider to make up for the lost detachment and wisdom of the magistrate.
(ii) Support for the proposition in case law: BRINEGAR v. UNITED STATES (1949) (“[The probable cause standard seeks] to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community’s protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for
some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice.”); see also, Carroll v. United States (1925) (holding that probable cause standard is still required even when warrant requirement is excused).
(iii) Contradiction of the proposition in case law: There are some more recent cases that would seem to excuse the probable cause requirement and find certain searches as reasonable and 4a permissible without probable cause. These cases are, of course, wrongly decided because they conflict with 4a itself and with Brinegar, which is the controlling case being older and not overruled.
(b) Proposition: the exigent circumstances exception to the warrant requirement requires both exigent circumstances and probable cause.
(i) support from 4a itself: see section 3(a)(i) above.
(ii) support in case law: KIRK v. LOUISIANA, 536 U.S. 635 (2002)(“As Payton makes plain, police officers need either a warrant or probable cause plus exigent circumstances in order to make a lawful entry into a home.”)
(iii) contradiction in case law: sometimes, when probable cause is manifest, courts neglect to mention the probable cause prong. there is a 2006 Supreme Court case that is a classic example of this. Some Utah case, IIRC. Also, ex-prosecutor judges are increasingly omitting the probable cause requirement purposely as a form of judicial activism. This is, of course, wrong and worthy of criticism by esteemed 4a scholars who have the cajones for such a fearsome task.
February 10, 2010, 1:14 pmOrin Kerr says:
Buddy,
Thanks for the responses. As a general matter, I think it would be best if you could make clearer in your comments which of your views are based in case law, which are based on snippets from opinions that you’re extrapolating from, which are based on your sense of original intent, etc. You have a tendency to simply announce that you’re right and everyone else is wrong, and to the extent I feel an obligation to respond, or at least that I want to respond to help readers understand, it is always easier to know where you are getting your understandings to know how to respond to them.
If I can add a question, I’m curious to know where you get this:
Can you explain where you’re getting this? The Supreme Court has repeatedly said that the reasonable expectation of privacy test is not simply a common law trespass test. Consider United States v. Oliver:
Now, of course its true that property law principles remain relevant to Fourth Amendment law in lots of instances. But I’m curious as to why you think there is an REP in the home simply because there was a common law tort action for such invasions.
February 10, 2010, 2:07 pmOrin Kerr says:
Buddy,
Thanks for the responses. As a general matter, I think it would be best if you could make clearer in your comments which of your views are based in case law, which are based on snippets from opinions that you’re extrapolating from, which are based on your sense of original intent, etc. You have a tendency to simply announce that you’re right and everyone else is wrong, and to the extent I feel an obligation to respond, or at least that I want to respond to help readers understand, it is always easier to know where you are getting your understandings to know how to respond to them.
If I can add a question, I’m curious to know where you get this:
Can you explain where you’re getting this? The Supreme Court has repeatedly said that the reasonable expectation of privacy test is not simply a common law trespass test. Consider United States v. Oliver:
Now, of course its true that property law principles remain relevant to Fourth Amendment law in lots of instances. But I’m curious as to why you think there is an REP in the home simply because there was a common law tort action for such invasions.
February 10, 2010, 2:07 pmBuddy Hinton says:
Well, I wasn’t trying to say that it was the commonlaw tort alone that gave her the REP in the frail cottage. In that original posts, I was just trying to make it clear that there was more to the foundation of the expectation of privacy in the cottage than how strong the lock was.
In a later post, I added some other considerations (besides the lock and the tort) that bolstered the expectation of privacy and made it reasonable. I mentioned the fact that she could actually kill a trespasser in the frail cottage. I mentioned that the folks subsidizing her housing would let her move if too many trespassers came. Although I didn’t mention it, she could get out of her lease if too many trespassers came, too, probably. Another factor I didn’t mention was the criminal law. Going in another’s house to do a theft generally has more severe penalties than theft of the same property accomplished outside the house. Then there are police priorities. A policeman is more likely to show up if you call and say someone broke into your house and stole your bike than if you call and say that someone stole your bike from the bike rack near your house.
It is all of these things and more that converge to give one a reasonable and real expectation of privacy even in a frail cottage in a high crime neighborhood.
Now, I understand that you are arguing that these real world factors don’t have anything to do with why courts say that legal REP exists in the frail cottage for 4a purposes. Maybe that is correct and maybe it is not, but the only point I was trying to make is that even people living in bad neighborhoods with frail doors strongly tend to have an actual and objectively reasonable expectation of privacy in their houses, for a bajillion reasons, so it is not a good example to show divergence between “commonsense REP” and “legal REP” because the frail cottage has both. So, in that particular post, I wasn’t trying to say anything about how 4a law is or ought to be, but just saying that the hypothetical you chose was not well suited to the point that you were trying to make.
February 10, 2010, 2:43 pmSandy MacHoots says:
Okay, only 841 reported opinions in the last 14 months discussing “reasonable expectation of privacy.” My quick sampling suggests that more than 100 of these cases involved appellate reversals, which means the cops and the trial judges got it wrong. If the thing is so clear, why has the Supreme Court had to write 80 opinions on the subject?
Given that the vast number of criminal prosecutions don’t go to trial, and most of those that do don’t result in appellate opinions, it’s hard for me to see how this is “rare” in any meaningful sense.
February 10, 2010, 5:32 pmSteve2 says:
I would like very, very, very much for the “can’t”s in there to be replaced with “can”s. If it isn’t an empirical question, isn’t it all just a giant heap of fiction?
I’d prefer the every-jury-decides-from-first-principles-of-the-text approach. There’s the possibility one jury will think a given search is reasonable and the other won’t, one being wrong and the other right, but I think that’s preferable to the possibility that the wrong call gets made the first time and precedent therefore dictates that the wrong call has to be repeated in the future.
February 10, 2010, 8:43 pmOrder of the Coif says:
Orin posted: “But I think there are good practical reasons why the Supreme Court has refused to provide a single test for what makes an expectation of privacy reasonable; no one test consistently and accurately distinguishes government investigative steps that need Fourth Amendment regulation from those that don’t.”
And, as long as the four “tests” produce different results, the Court can be as result-oriented (i.e., select whatever PLEASES the current judges in the majority 5) as it wants to be but always claim to be applying the Constitution. A regime following the rule of personality (as I believe they actually do) rather then the “rule of law.” That’s why some of us have less that total admiration for the Supreme Court. BTW it makes “justice” into a crap shoot of personalities.
Caveat: I won’t get to reading Orin’s article until this weekend at the earliest. Maybe he can justify this “I know it when I see it” approach. It does seem to be what the Court is doing to preserve the illusion of a rule of law where none exists.
February 10, 2010, 9:44 pmOrin Kerr says:
Sandy,
So that’s 800 cases mentioning the phrase out of around 15 million arrests, made by the over 1 law enforcement officers in the United States, with say, on average, 5-10 “searches” or potential searches per case, totaling somewhere around 10 million cases and somewhere around 100 million searches (obviously just a ballpark figure)? Given the stakes, and the presence of appointed counsel, isn’t that still a relatively low percentage of cases?
February 11, 2010, 12:10 amSandy MacHoots says:
I guess we disagree. Given the fact that only a small number of searches yield arrests, and only a minority of arrests wind up going to formal charges, and only a small slice of those charged go to trial, and not everyone who is convicted appeals, and not all appeals result in published opinions, it seems like a lot to me.
By comparison, there are a lot more than 15 million written contracts entered into every year, yet the notoriously confusing parol evidence rule (a potential issue in every litigation over a written contract) is litigated only half as often as the fourth amendment “reasonable expectation of privacy.”
I suppose we’ll have to agree we have different standards for “rare.” :) I do remember a conversation some years ago with a police detective captain, who said (I’m paraphrasing) about searches: “We want to get all the evidence we can, so our job is to go as close to the line as we can. Since you never know exactly where the line is, sometimes you go over. We do our job, we can’t control what the courts do.”
February 11, 2010, 9:53 amDoctorOfLove says:
I’m late to this party but I don’t care.
1. the constitution doesn’t say reasonable expectation of privacy, the supremes do.
2. The expectation of privacy standard is meaningless, precisely because the prez can announce (and apparently has) that, for example, soon we will be snooping your cellphones. Presto, the expectation of privacy is destroyed.
3. the standard should be physical senses – originalists. If the coppers can’t see it, hear it, smell it, with unaided senses (as they could not in 1790) then they need a warrant.
4. The standard in 3 is unvarying. If they need any tech, they need to go to a judge.
5. Asking them to get a warrant is hardly the biggest burden in the world, but it does make the bad ones think twice.
February 12, 2010, 12:38 amBuddy Hinton says:
Asking them to get a warrant is hardly the biggest burden in the world, but it does make the bad ones think twice.
Probably the best thing about warrants is that it gives us an idea of the proportion of these searches that are fruitless. It is not the paperwork. It is not the time. It is the fact that police don’t want us regular citizens determining the proportion of “probable cause” situations where there is nothing. If we knew that number, we would lose a lot of respect for police. So they hide it. Not getting warrants (even when they can) is one way to do this.
That is the sub-text here.
February 12, 2010, 8:33 amThe Volokh Conspiracy » Blog Archive » Communicating With Those Who Have No Privacy Rights: The Hard Question in City of Ontario v. Quon says:
[...] facts won’t come to the attention of the police, as I have explained in detail here and covered here at the blog. Indeed, the Supreme Court has made clear that contractual agreements to maintain [...]
March 31, 2010, 1:54 amMary says:
I just want to know what does this means “What makes people upset” Expectation being violated thats what makes people upset. What is this? I hate when they live you posted notes commenting things like this Y can’t they just sit with you and talk about it instead of living you hints ! Come on people Some of us aren’t that smart!!! I just don’t understand this hint.Please help!
April 17, 2010, 1:14 amScholarly Communications @ Duke » Facing the Future of Social Media says:
[...] about privacy. Since these norms themselves influence privacy law and the Fourth Amendment’s complex and often-misunderstood “reasonable expectation” test, today’s social practices may drive tomorrow’s legal [...]
May 18, 2010, 2:47 pmRichard Franks says:
I THINK YOU HAVE TOO MUCH TIME ON YOUR HANDS !
July 31, 2010, 12:45 am