The Supreme Court has said that government conduct is a Fourth Amendment “search” when two conditions are met: 1) the person searched had a subjective expectation of privacy, and 2) that expectation of privacy was objectively reasonable. When I teach Fourth Amendment law, I explain to students that, in my view, the two tests are really one: the “reasonable” expectation of privacy is the only thing that actually matters.
I think that’s true for a few different reasons. First, the government has the burden of proof of showing that a defendant lacked a subjective expectation of privacy. As a practical matter, the government can rarely satisfy that burden: It is quite uncommon for the government to know exactly what a defendant was thinking at the time of the search. Second, most people don’t expect that the police are about to break in. Third, in the few cases when the government can prove that the defendant lacked a subjective expectation of privacy, the defendant will normally lack an “objective” expectation of privacy anyway. As a result, the subjective prong won’t do any work. Finally, the Supreme Court in Smith v. Maryland suggested (albeit inartfully) that in the strange circumstances where a defendant lacked a subjective expectation of privacy but would have had a reasonable expectation of privacy, the usual two-step test would be suspended and replaced with a solely “normative inquiry” (that is, an objective test). See Smith v. Maryland, U.S. 735, 740 n.5 (1979). For all these reasons, I have tended to think that the two-step test is really just one step: The subjective prong doesn’t really matter.
That’s been my impression, at least, and that’s what I teach to my students. But my impression raises an empirical question: Are there any cases, federal or state, in which a court held that no “search” occurred because a defendant lacked a subjective expectation of privacy, even though such an expectation would have been objectively reasonable if it had existed?
I don’t know of any such cases, at least off the top of my head. Do any readers know of any examples of this? If you do, please leave a comment. Thanks!