Your place or mine? Privacy of presence under the fourth amendment

Supreme Court Review

Volumn 1999, Issue , 1999, Pages 253-275

  Weinreb, Lloyd L ^a  

^a NONE

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EID: 0040876036     PISSN: 00819557     EISSN: None     Source Type: Book Series    
DOI: 10.1086/scr.1999.3109709     Document Type: Article

References (88)

1. 367 US 643 (1961).
2. See, for example, Maryland v Buie, 494 US 325 (1990) (7-2) (protective sweep); South Dakota v Opperman, 428 US 364 (1976) (5-4) (automobile inventory search); Chambers v Maroney, 399 US 42 (1970) (7-1) (automobile search); Chimel v California, 395 US 752 (1969) (7-2) (search incident to arrest).
3. See, for example, Maryland v Buie, 494 US 325 (1990) (7-2) (protective sweep); South Dakota v Opperman, 428 US 364 (1976) (5-4) (automobile inventory search); Chambers v Maroney, 399 US 42 (1970) (7-1) (automobile search); Chimel v California, 395 US 752 (1969) (7-2) (search incident to arrest).
4. See, for example, Maryland v Buie, 494 US 325 (1990) (7-2) (protective sweep); South Dakota v Opperman, 428 US 364 (1976) (5-4) (automobile inventory search); Chambers v Maroney, 399 US 42 (1970) (7-1) (automobile search); Chimel v California, 395 US 752 (1969) (7-2) (search incident to arrest).
5. See, for example, Maryland v Buie, 494 US 325 (1990) (7-2) (protective sweep); South Dakota v Opperman, 428 US 364 (1976) (5-4) (automobile inventory search); Chambers v Maroney, 399 US 42 (1970) (7-1) (automobile search); Chimel v California, 395 US 752 (1969) (7-2) (search incident to arrest).
6. One might argue that there is no occasion to prefer one to the other, because they provide for different circumtances, the Reasonableness Clause providing for a category of searches without a warrant and the Warrant Clause specifying what is required for issuance of a warrant, if a warrant is rerequired. That is, in effect, how the Court reasons whenever it holds in a nonemergency situation that a search is reasonable and therefore requires no warrant. See, for example, Buie, 494 US 325; Chambers, 399 US 42. But such reasoning, in effect, prefers the Reasonableness Clause. The unqualified terms in which each clause is written and the conjunction "and" that joins them suggest that they are to be read together, not separately.
7. One might argue that there is no occasion to prefer one to the other, because they provide for different circumtances, the Reasonableness Clause providing for a category of searches without a warrant and the Warrant Clause specifying what is required for issuance of a warrant, if a warrant is rerequired. That is, in effect, how the Court reasons whenever it holds in a nonemergency situation that a search is reasonable and therefore requires no warrant. See, for example, Buie, 494 US 325; Chambers, 399 US 42. But such reasoning, in effect, prefers the Reasonableness Clause. The unqualified terms in which each clause is written and the conjunction "and" that joins them suggest that they are to be read together, not separately.
8. 119 S Ct 469 (1998) (6-3).
9. The occupant of the apartment pleaded guilty. State v Carter, 569 NW 2d 169, 172 n 2 (1997). Cf. Minnesota v Carter, 119 S Ct at 483 n 1 (Ginsburg dissenting). Her conviction was not involved in the case before the Supreme Court.
10. The occupant of the apartment pleaded guilty. State v Carter, 569 NW 2d 169, 172 n 2 (1997). Cf. Minnesota v Carter, 119 S Ct at 483 n 1 (Ginsburg dissenting). Her conviction was not involved in the case before the Supreme Court.
11. The Court of Appeals affirmed Carter's conviction on the basis that he lacked standing; it did not address the legality of the search. State v Carter, 545 NW 2d 695 (Minn Ct App 1996). In a separate appeal, the court affirmed Johns's conviction, without addressing the standing issue. State v Johns, No. C9-95-1765, 1996 WL 310305 (Minn Ct App, June 11, 1996), cited in Minnesota v Carter, 119 S Ct at 472.
12. The Court of Appeals affirmed Carter's conviction on the basis that he lacked standing; it did not address the legality of the search. State v Carter, 545 NW 2d 695 (Minn Ct App 1996). In a separate appeal, the court affirmed Johns's conviction, without addressing the standing issue. State v Johns, No. C9-95-1765, 1996 WL 310305 (Minn Ct App, June 11, 1996), cited in Minnesota v Carter, 119 S Ct at 472.
13. The Court of Appeals affirmed Carter's conviction on the basis that he lacked standing; it did not address the legality of the search. State v Carter, 545 NW 2d 695 (Minn Ct App 1996). In a separate appeal, the court affirmed Johns's conviction, without addressing the standing issue. State v Johns, No. C9-95-1765, 1996 WL 310305 (Minn Ct App, June 11, 1996), cited in Minnesota v Carter, 119 S Ct at 472.
14. State v Carter, 569 NW 2d at 173-76 (standing, quoting Rakas v Illinois, 439 US 128, 143 (1978)); id at 176-79 (search).
15. State v Carter, 569 NW 2d at 173-76 (standing, quoting Rakas v Illinois, 439 US 128, 143 (1978)); id at 176-79 (search).
16. Minnesota v Carter, 118 S Ct 1183 (1998).
17. 119 S Ct at 471. Justices O'Connor, Scalia, Kennedy, and Thomas joined the opinion.
18. Id at 474 (Scalia); id at 478 (Kennedy).
19. Id at 480. Examining the record for himself, Justice Breyer disagreed with some of the factual basis for the Minnesota Supreme Court's conclusion that Thielen's observation was an unreasonable search and concluded that it was reasonable.
20. Id at 481.
21. 439 US 128 (1978) (5-4).
22. In fact, one of the defendants had previously been married to the owner and driver of the car and may have had some connection with it. See id at 167 n 20 (White dissenting). The defendants' posture in the case was presumably dictated by their understanding of the law relating to standing before Rakas was decided.
23. Id at 132-38.
24. Oddly, although it indicated that the rubric of standing was superfluous and should generally be discarded, id at 139-40, elsewhere in its opinion, the Court continued to use it. See id at 135 & n 4.
25. 389 US 347 (1967) (8-1).
26. Rakas, 439 US at 143. The phrase "legitimate expectation of privacy," which has become the shorthand rubric for this sort of Fourth Amendment right, is not used in the Court's opinion in Katz. The Court referred to the defendant in that case as "entitled to assume" that his words uttered into the telephone in a closed telephone booth would not be broadcast. 389 US at 352. Justice Harlan's concurring opinion in Katz, id at 360, is often cited as the source of the rubric, although, again, not the precise phrase. See Carter, 119 S Ct at 477 (Scalia concurring).
27. Rakas, 439 US at 143. The phrase "legitimate expectation of privacy," which has become the shorthand rubric for this sort of Fourth Amendment right, is not used in the Court's opinion in Katz. The Court referred to the defendant in that case as "entitled to assume" that his words uttered into the telephone in a closed telephone booth would not be broadcast. 389 US at 352. Justice Harlan's concurring opinion in Katz, id at 360, is often cited as the source of the rubric, although, again, not the precise phrase. See Carter, 119 S Ct at 477 (Scalia concurring).
28. Rakas, 439 US at 143. The phrase "legitimate expectation of privacy," which has become the shorthand rubric for this sort of Fourth Amendment right, is not used in the Court's opinion in Katz. The Court referred to the defendant in that case as "entitled to assume" that his words uttered into the telephone in a closed telephone booth would not be broadcast. 389 US at 352. Justice Harlan's concurring opinion in Katz, id at 360, is often cited as the source of the rubric, although, again, not the precise phrase. See Carter, 119 S Ct at 477 (Scalia concurring).
29. 362 US 257, 267 (1960).
30. Rakas, 439 US at 148.
31. In fact, the search may well have been lawful. If the information that was communicated by radio gave the officers who stopped the car probable cause to believe that it was the getaway car used in the robbery, they were authorized to stop the car and search it. Chambers v Maroney, 399 US 42 (1970).
32. The Court's complete failure to address the legality of the stop is signaled by its posing the issue as whether the defendants had an "expectation of privacy in the particular areas of the automobile searched." Rakas, 439 US at 148 (italics added). Justice Powell concurring and Justice White dissenting noted that the defendants did not contest the legality of the stop. Id at 150 (Powell); id at 156, 160 n 5 (White). Although that may explain the Court's failure to discuss the merits of the issue, it does not explain the failure to mention it with respect to the defendants' standing, if only to state that the defendants conceded that the stop was lawful. Of course, had the Court done so, the entire discussion of standing would have been moot. Chief Justice (then Justice) Rehnquist was the author of the Court's opinion in Rakas. Any doubt about the significance of his (non)disposition of the stop issue in Rakas is eliminated by his opinion in Carter.
33. 519 US 408 (1997) (7-2).
34. Id at 415.
35. 362 US 257 (1960).
36. Rejecting the statement in Jones that anyone "legitimately on the premises" when a search occurs has standing to challenge its legality, the Court said: "[A]pplied literally, this statement would permit a casual visitor who has never seen, or been permitted to visit, the basement of another's house to object to a search of the basement if the visitor happened to be in the kitchen of the house at the time of the search. Likewise, a casual visitor who walks into a house one minute before a search of the house commences and leaves one minute after the search ends would be able to contest the legality of the search. The first visitor would have absolutely no interest or legitimate expectation of privacy in the basement the second would have none in the house, and it advances no purpose served by the Fourth Amendment to permit either of them to object to the lawfulness of the search." Rakas, 439 US at 142 (footnote omitted).
37. 495 US 91 (1990) (7-2).
38. Id at 99.
39. Id at 98.
40. Rakas, 439 US at 144 n 12, quoted in Carter, 119 S Ct at 472.
41. Rakas, 439 US at 144 n 12, quoted in Carter, 119 S Ct at 472.
42. Id at 478.
43. Id at 479.
44. Id.
45. Id.
46. Petitioner's Brief on the Merits, Joint App G, Minnesota v Carter, 1998 WL 541976, at *14 aaaaaaa (May 14, 1998) (No 97-1147).
47. 119 S Ct at 479.
48. Id.
49. Id.
50. See text at note 66.
51. 119 S Ct at 483.
52. Id at 483-84.
53. Id at 482. The requirement of standing always creates a risk of this kind, because the right and the remedy of exclusion of evidence may be separated. Justice Ginsburg evidently felt that putting a homeowner at risk was particularly to be avoided. See id. There is in fact a discontinuity between the Court's insistence that Fourth Amendment rights are personal, when it considers the matter of standing, and its insistence that the function of the exclusionary rule is not to vindicate the Fourth Amendment right that has been violated but to deter such violations in the future. For example, compare Rakas, 439 US at 133-34, with id at 137-38.
54. 439 US at 156, 168-69 (White dissenting).
55. The Court said only that since its holding was confined to areas of the car in which the defendants had no expectation of privacy, it was not necessarily depriving passengers of standing to protest a search of the vehicle, and, therefore, did not agree that its decision would encourage police to violate the Fourth Amendment. Id at 150 n 17. See also the concurring opinion of Justice Powell, id at 152 n 1. That, of course, took no notice of the stop of the car. See text at notes 22-24. Carter's reliance on Rakas disposes of the Court's argument, in any event.
56. See Carter, 119 S Ct at 482-83.
57. She said only that the "logic" of Olson "extends to shorter term guests as well," and, quoting Olson, that a short visit "'serves functions recognized as valuable by society'" and short-term visitors "anticipate privacy in another's home, 'a place where [the guest] and his possessions will not be disturbed. . .'" 119 S Ct at 482, quoting Olson, 495 US at 98, 99.
58. She said only that the "logic" of Olson "extends to shorter term guests as well," and, quoting Olson, that a short visit "'serves functions recognized as valuable by society'" and short-term visitors "anticipate privacy in another's home, 'a place where [the guest] and his possessions will not be disturbed. . .'" 119 S Ct at 482, quoting Olson, 495 US at 98, 99.
59. I used the phrases "privacy of place" and "privacy of presence" twenty-five years ago, in an article that explores this and some other issues. Lloyd L. Weinreb, Generalities of the Fourth Amendment, 42 U Chi L Rev 47, 52-54 (1974).
60. Accordingly, although one might imagine extravagant cases in which a part of one's body conferred privacy of presence, it is typically found only in places large enough for someone to be in. The privacy of a telephone conversation, which extends to both parties, is, of course, disembodied privacy of presence. In Alderman v United States, 394 US 165 (1969) (5-3), it was conceded that the parties to a conversation have standing to challenge the admission of evidence obtained by violating the privacy of that conversation. The majority held also, over the dissent of Justices Harlan and Stewart, id at 187, that the owner of the premises in which a conversation occurs also has standing even though he was not a party to the conversation, id at 176-80. Although the court relied on Alderman extensively for other points in Rakas, 439 US at 133-34, 136-37, 138 n 6, it ignored the recognition in Alderman of privacy of presence. The same reasoning that gave nonoccupant parties to a conversation standing in Alderman should have given the defendants standing in Rakas (and Carter) as well.
61. Accordingly, although one might imagine extravagant cases in which a part of one's body conferred privacy of presence, it is typically found only in places large enough for someone to be in. The privacy of a telephone conversation, which extends to both parties, is, of course, disembodied privacy of presence. In Alderman v United States, 394 US 165 (1969) (5-3), it was conceded that the parties to a conversation have standing to challenge the admission of evidence obtained by violating the privacy of that conversation. The majority held also, over the dissent of Justices Harlan and Stewart, id at 187, that the owner of the premises in which a conversation occurs also has standing even though he was not a party to the conversation, id at 176-80. Although the court relied on Alderman extensively for other points in Rakas, 439 US at 133-34, 136-37, 138 n 6, it ignored the recognition in Alderman of privacy of presence. The same reasoning that gave nonoccupant parties to a conversation standing in Alderman should have given the defendants standing in Rakas (and Carter) as well.
62. Although Justice Kennedy did not explicitly exclude business invitees from the protection of the Fourth Amendment, his opinion strongly suggests that he would do so. He referred repeatedly and apparently deliberately to "social guests" as well as to "social custom" and "social expectations," Carter, 119 S Ct at 478-79. Furthermore, even his dismissive characterization of the defendants' activities leaves no doubt that they qualified as business guests, if not social guests.
63. Cases are few. See, for example, California v Ciraolo, 476 US 207, 214 (1986) (5-4) (observation from airplane by "naked eye" does not violate Fourth Amendment; use of electronic devices distinguished); Dow Chemical Co. v United States, 476 US 227, 237 (1986) (5-4) (conventional aerial surveillance and photography distinguished from "sophisticated surveillance equipment"); cf. United States v Agapito, 620 F2d 324 (2d Cir 1980) (conversation in hotel room; eavesdropping with naked ear distinguished from electronic eavesdropping); United States v Fisch, 474 F2d 1071 (9th Cir 1973) (same). See Wayne R. La Fave, 1 Search & Seizure 441-49 (West, 1996).
64. Cases are few. See, for example, California v Ciraolo, 476 US 207, 214 (1986) (5-4) (observation from airplane by "naked eye" does not violate Fourth Amendment; use of electronic devices distinguished); Dow Chemical Co. v United States, 476 US 227, 237 (1986) (5-4) (conventional aerial surveillance and photography distinguished from "sophisticated surveillance equipment"); cf. United States v Agapito, 620 F2d 324 (2d Cir 1980) (conversation in hotel room; eavesdropping with naked ear distinguished from electronic eavesdropping); United States v Fisch, 474 F2d 1071 (9th Cir 1973) (same). See Wayne R. La Fave, 1 Search & Seizure 441-49 (West, 1996).
65. Cases are few. See, for example, California v Ciraolo, 476 US 207, 214 (1986) (5-4) (observation from airplane by "naked eye" does not violate Fourth Amendment; use of electronic devices distinguished); Dow Chemical Co. v United States, 476 US 227, 237 (1986) (5-4) (conventional aerial surveillance and photography distinguished from "sophisticated surveillance equipment"); cf. United States v Agapito, 620 F2d 324 (2d Cir 1980) (conversation in hotel room; eavesdropping with naked ear distinguished from electronic eavesdropping); United States v Fisch, 474 F2d 1071 (9th Cir 1973) (same). See Wayne R. La Fave, 1 Search & Seizure 441-49 (West, 1996).
66. Cases are few. See, for example, California v Ciraolo, 476 US 207, 214 (1986) (5-4) (observation from airplane by "naked eye" does not violate Fourth Amendment; use of electronic devices distinguished); Dow Chemical Co. v United States, 476 US 227, 237 (1986) (5-4) (conventional aerial surveillance and photography distinguished from "sophisticated surveillance equipment"); cf. United States v Agapito, 620 F2d 324 (2d Cir 1980) (conversation in hotel room; eavesdropping with naked ear distinguished from electronic eavesdropping); United States v Fisch, 474 F2d 1071 (9th Cir 1973) (same). See Wayne R. La Fave, 1 Search & Seizure 441-49 (West, 1996).
67. Cases are few. See, for example, California v Ciraolo, 476 US 207, 214 (1986) (5-4) (observation from airplane by "naked eye" does not violate Fourth Amendment; use of electronic devices distinguished); Dow Chemical Co. v United States, 476 US 227, 237 (1986) (5-4) (conventional aerial surveillance and photography distinguished from "sophisticated surveillance equipment"); cf. United States v Agapito, 620 F2d 324 (2d Cir 1980) (conversation in hotel room; eavesdropping with naked ear distinguished from electronic eavesdropping); United States v Fisch, 474 F2d 1071 (9th Cir 1973) (same). See Wayne R. La Fave, 1 Search & Seizure 441-49 (West, 1996).
68. Carter, 119 S Ct at 474.
69. Id (italics in original).
70. Id at 474-75.
71. Id at 474. In his opinion, Chief Justice Rehnquist indicated agreement with Justice Scalia's textual argument but acknowledged that the Court had departed from it in Olson. 119 S Ct at 473.
72. Justice Scalia's blindered reading of the amendment in this respect gives point to Justice Ginsburg's observation that his opinion recalled Justice Black's dissenting opinion in Katz. See Carter, 119 S Ct at 484 n 3 (Ginsburg dissenting). Justice Black had argued that the Fourth Amendment did not protect against wiretapping, because the words of the first clause "connote the idea of tangible things with size, form, and weight, things capable of being searched seized, or both. . . . A conversation overheard by eavesdropping, whether by plain snooping or wiretapping, is not tangible and under the normally accepted meanings of the words, can neither be searched nor seized." Katz, 389 US at 365.
73. Justice Scalia's blindered reading of the amendment in this respect gives point to Justice Ginsburg's observation that his opinion recalled Justice Black's dissenting opinion in Katz. See Carter, 119 S Ct at 484 n 3 (Ginsburg dissenting). Justice Black had argued that the Fourth Amendment did not protect against wiretapping, because the words of the first clause "connote the idea of tangible things with size, form, and weight, things capable of being searched seized, or both. . . . A conversation overheard by eavesdropping, whether by plain snooping or wiretapping, is not tangible and under the normally accepted meanings of the words, can neither be searched nor seized." Katz, 389 US at 365.
74. Compare the observation of Justice Black dissenting in Katz: "There can be no doubt that the Framers were aware of this practice [of eavesdropping], and if they had desired to outlaw or restrict the use of evidence obtained by eavesdropping, I believe that they would have used the appropriate language to do so in the Fourth Amendment." 389 US at 366.
75. Justice Scalia referred to four comparable provisions in state constitutions when the Fourth Amendment was adopted. Two, he said, use the same ambiguous "their" that is used in the amendment. The other two avoided the ambiguity by using "his" instead of "their." This indicates, he suggested, that the ambiguity should be resolved as it was in the latter two. Were it not contrary to his purpose, he might as easily have argued that, with the latter example before them, the Framers' failure to follow that model indicates that they rejected it. In truth, such parsing of pronouns has little significance in any direction. Justice Scalia extracted further support for his position from the maxim, well known in the eighteenth century, that a man's home is his castle and the rule that private premises provided no refuge from the law for "'a stranger, or perhaps a visitor'" (emphasis added). Carter, 119 S Ct at 476, quoting Oystead v Shed, 13 Mass 520, 523 (1816). What that aspect of the law of arrest has to do with the protection of privacy of persons not subject to arrest and lawfully on private premises is not apparent.
76. Justice Scalia referred to four comparable provisions in state constitutions when the Fourth Amendment was adopted. Two, he said, use the same ambiguous "their" that is used in the amendment. The other two avoided the ambiguity by using "his" instead of "their." This indicates, he suggested, that the ambiguity should be resolved as it was in the latter two. Were it not contrary to his purpose, he might as easily have argued that, with the latter example before them, the Framers' failure to follow that model indicates that they rejected it. In truth, such parsing of pronouns has little significance in any direction. Justice Scalia extracted further support for his position from the maxim, well known in the eighteenth century, that a man's home is his castle and the rule that private premises provided no refuge from the law for "'a stranger, or perhaps a visitor'" (emphasis added). Carter, 119 S Ct at 476, quoting Oystead v Shed, 13 Mass 520, 523 (1816). What that aspect of the law of arrest has to do with the protection of privacy of persons not subject to arrest and lawfully on private premises is not apparent.
77. The privacy of an overnight guest, as in Olson, is similarly subject to the host's continuing permission, which, presumably, may be withdrawn at any time.
78. See Weinreb, 42 U Chi L Rev at 81-85 (cited in note 47).
79. 119 S Ct at 473. Elsewhere he referred to "the purely commercial nature of the transaction engaged in here." Id at 474.
80. Id. Chief Justice Rehnquist acknowledged that in this case the apartment was not a commercial establishment but a home; but, he added, "it was not [the defendants'] home." Id.
81. Id at 478-79.
82. One might argue that the reference to "houses" supports a distinction between homes and business establishments, although that is dubious in view of the generality and brevity of the amendment. But even if that were accepted, there is no support for a distinction between social and business activities in one kind of premises or another. Many business establishments are "open to the public" as homes rarely are, which may affect the authority of public officials to enter, although not to search.
83. See for example, Lewis v United States, 385 US 206, 211 (1960): "[W]hen, as here, the home is converted into a commercial center to which outsiders are invited for purposes of transacting unlawful business, that business is entitled to no greater sanctity than if it were carried on in a store . . . or on the street." Despite the suggestion to the contrary, the home in Lewis was not in any way open to the public.
84. Justice Scalia, no doubt tongue in cheek, referred to it as "monkey-business." 119 S Ct at 477.
85. Compare the plurality opinion of Justice White, formulating the appropriate protection against eavesdropping in relation to "the wrongdoer whose trusted accomplice is or becomes a police agent," with the dissenting opinion of Justice Harlan, considering the issue in relation to the "ordinary citizen," in United States v White, 401 US 745, 752 (White), 790 (Harlan) (1971).
86. 362 US at 267. See note 19.
87. Carter, 119 S Ct at 482 (Ginsburg dissenting).
88. A pizza deliverer who took advantage of his momentary privacy in a customer's kitchen to display the tattoo on his buttock would probably have a brief tenure on the job. But who knows? His performance might be advertised along with extra anchovies. He is for the moment on private premises, at the invitation of the occupant. Were the occupant to respond to the performance by asking the deliverer to display the tattoo on his other buttock and secretly to transmit the view to the world at large, or were the police secretly to videotape it, the deliverer might understandably complain that his privacy had been violated. His odd behavior violates what we ordinarily expect when we order a pizza, not what he as an admittedly brief, guest in the house may expect while he is there. It would be a limiting case if the pizza deliverer were to enter the premises, say, wearing a shirt that incriminated him. Were the police to break into the house while he was waiting for the occupant to pay for the pizza and to see the incriminating shirt, should he be able to assert that his privacy (of presence) had been violated? Perhaps not. But that conclusion depends on the fact that he has done nothing whatever to exercise his privacy; when the police broke in, he was wearing exactly what he had been wearing a moment before in public. It would be a different case if for some reason he had put on the incriminating garment only for the time that he was inside. The exception in this instance, and the reason for making it, confirm the rule.