Do Subjective Expectations of Privacy Matter in Fourth Amendment Law?:
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!
This case says that a guy who spit on the ground no longer had a subjective expectation of privacy in the spittle, and therefore no legitimate complaint about someone scooping it up to check his DNA. It cites to a similar case involving discarded cigarette butts.
12.24.2008 1:22am

I believe that case was resolved on the objective prong. From the opinion: "given the public nature of the defendant's action, as an objective matter, society would not recognize that expectation as reasonable. In sum, under the circumstances, the defendant did not have a reasonable expectation of privacy in his spittle, or in the DNA evidence derived therefrom."
12.24.2008 1:26am

I defer to your judgmnet, however it sounds as if they are relying on both prongs: "For another thing, while at one point the defendant here may have shown a subjective expectation of privacy in his DNA, when he later spat onto the public street and did not attempt to retrieve his saliva, he no longer manifested such a subjective expectation. In any event, as has been noted, given the public nature of the defendant's action, as an objective matter, society would not recognize that expectation as
reasonable. In sum, under the circumstances, the defendant did not have a reasonable expectation of privacy in his spittle, or in the DNA evidence derived therefrom."

That decision cites to Commonwealth v. Bly, which may be a better example of a case finding no subjective expectation: "Based on the factual findings of the judge, however, there is no evidence that Bly showed any expectation of privacy in the items in the first place. . . . Our conclusion that Bly had no subjective expectation of privacy is compelled not by a finding that he legally abandoned them as much as it is by his wholesale failure to manifest any expectation of privacy in the items whatsoever.
There was no error in the denial of Bly's motion to suppress physical evidence as no search or seizure occurred."
12.24.2008 1:39am
I agree that in almost every case, you're right that the subjective expectation doesn't matter. If I had to guess at a case where it might be decisive, it would be where the defendant made a post-arrest statement setting forth his mental state prior to the search. A court might resolve the case based on the defendant's expectation without needing to reach the issue of whether an expectation would have been objectively reasonable.
12.24.2008 1:47am

As I indicate in the post, there are indeed cases when a defendant fails both prongs. There are also cases where a court addresses the subjective prong and never reaches the objective pring. But to be clear, what I'm looking for is an example of a case in which a defendant lacked a subjective expectation but actually did have an objective expectation: That is, in which the subjective prong actually and clearly changes the outcome.
12.24.2008 1:49am
I don't have anything specific, but consider searches done on physically or mentally impaired individuals. What happens when a person is unable to establish subjective expectations of privacy? For example a cop searching an unconscious individual at the scene of an accident for ID, in the process they find a bag of dope.
12.24.2008 2:27am

1) the person searched had a subjective expectation of privacy, and 2) that expectation of privacy was objectively reasonable.

Ain't that kinda stoopid? It sounds like that means that, if I subjective lack an expectation of privacy, I can't claim protection, even if I should have that expectation. So if I think the cops will look in my bedroom drawers, even if they shouldn't, I don't have an expectation of privacy. No?
12.24.2008 3:44am
I wouldn't assume the first prong is useless simply because there is a paucity of case law where both prongs were addressed even though the defendant failed the first one. In most Katz test cases I've read, courts address the prongs in order. If the defendant fails the first prong, they usually don't bother with addressing the second. After all, the test is framed as a contingency: Defendant must have the subjective expectation of privacy, and society must recognize it. If he didn't have the expectation, what is there for society to recognize, and therefore for judges to write about? What you're looking for probably exists some of the time, in some form or another, but probably not often in judicial opinions because of the way the Katz test is structured.
12.24.2008 4:35am
guest111 (mail) (www):
I always thought that the subjective prong of this 'test' had to do do with the defendant's actions that demonstrate an individual expectation of privacy.

To borrow from the case mentioned by TerrencePhillip above, a defendant has an objective expectation of privacy for saliva in the abstract, but his individual 'subjective' actions had destroyed this expectation.

I don't know if this is consistent with the normal use of 'subjective' and 'objective,' but this understanding was the only way for me to make sense of the terms in these 4th Amendment cases.
12.24.2008 5:08am
Rodger Lodger (mail):
Maybe i should've read more carefully, but it strikes me if defendant testifies at the suppression hearing that he expected privacy, than that is material and the judge has to rule on his credibilityl. If you were correct, there'd be no relevance to the testimony (to overstate your position for the sake of making my point).
12.24.2008 6:43am
Rodger Lodger (mail):
ON SECOND THOUGHT, since subjective expectation is a requirement, D has nothing to gain by testifying to it, since under your theory it will be deemed to exist if there's objection reasonableness, and if same is lacking subjective component won't save the motion. Well, it's early in the morning where I am.
12.24.2008 6:48am
"1) the person searched had a subjective expectation of privacy, and 2) that expectation of privacy was objectively reasonable."

Taken literally as you have written it, the second prong does not exist unless the first is satisfied. Therefore, the question, as you have posed it, must necessarily be "no".
12.24.2008 6:50am
What about cases (IANAL... I only see this on TV) where the defendant allows the police to look at something that only an idiot would allow police to look at. The searched item was not objectively reasonable... no reasonable person would allow the police to open my password-protected locked computer which no one knew about hidden in a password protected safe. But by my allowing the police, I show I have no subjective interest in its privacy and forfeit my expectation, eliminating my ability to complain later.
12.24.2008 9:04am
One more try... suppose I have a roommate but always keep my own bedroom door locked, but have told my roommate on many occasion, "I lock the door only to keep out burglars. I have nothing to hide from the police." Then when the police come in and my roommate lets them look in my room, haven't I failed only the subjective prong?
12.24.2008 9:10am

If you were correct, there'd be no relevance to the testimony (to overstate your position for the sake of making my point)

Not necessarily, because having an expectation of privacy at all is at least prima facie evidence that such an expectation is reasonable.
12.24.2008 9:36am
I don't know of any cases that support your assertion, but like you, my Crim. Pro. professor, Jim Tomkovicz at the University of Iowa, teaches that there is really only one prong to reasonable expectation test.

I believe he has done quite a bit of research on this topic and may have written a brief or two on this exact topic.
12.24.2008 9:56am
I can conceive of a case in which the defendant had no expectation of privacy but an objective standard would find otherwise.... if a defendant is a paranoiac who believes the government is invading his privacy already, then he has no subjective expectation of privacy. In that case the 'reasonable expectation' would apply. Likewise, if the defendant is a megalomaniac who believes that the government cannot invade is privacy, again, this would not be held to be a 'reasonable' standard. So it would seem to me that the single-prong standard would apply in all cases.

12.24.2008 10:26am
Andy Freeman (mail):
> 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.

Is actually uncommon? I'd think that quite a few suspects express themselves about privacy during an encounter with police. "Hey, you can't do that. That's my secret/private stuff, I don't let anyone look in there." seems like a pretty clear expression of an expectation of privacy AND that the subject has taken some measures to ensure said privacy.
12.24.2008 11:12am
Guest JD:
Ugh. My kingdom for a more appropriate adjective! How infuriating it is that all modern fourth amendment jurisprudence rests on that unfortunate phrase, "reasonable expectation of privacy." If it were announced today that all blondes carrying green purses on main street between the hours of noon and one should expect to have their purses searched, it would of course have no impact on the scope of anyone's fourth amendment rights. Everyone--even if blonde--has a LEGITIMATE expectation that they will not be subjected to searches without a warrant, consent, or probable cause and exigent circumstances.

And if, in the absence of any proclamation from on high, a person nevertheless expected to be subject to searches at the whim of any man in uniform, would the Court be required in light of that person's ignorance to deem any such search valid? Why should one's subjective expectations matter at all? The problem with the Katz 'test' is that people too often conflate the first prong, which is wholly irrelevant, with the second. The only time a person's subjective expectations should ever come be considered is during a discussion on the issue of consent, whether express or implied.

12.24.2008 11:30am
Guest JD:
...on second thought, the issue of consent requires an objective analysis as well.
12.24.2008 11:34am
So the abandoned-property situations don't fit your bill?

When a woman sees a police officer approaching her on the street, she puts down her purse and says, "That's not mine. I've never seen it before." The officer picks up the purse, searches it, and finds illegal drugs. The purse also contains the woman's ID, credit cards, family photographs, prescription drugs, etc.

At a suppression hearing, the officer testifies that he believed that the purse was the woman's and that he searched it only because he believed that it must contain contraband when she denied that it was her purse.

Can her denial of ownership be seen as a lack of subjective expectation of privacy in the purse?
12.24.2008 11:55am
anomdebus (mail):
I don't know if this addresses your question.
I have a problem with (at least) the popular conception of "expectation of privacy". That is, if you can convince the population that they have less privacy, they magically do have less privacy. For example, through movies, you place the idea that anybody and everybody is looking through their walls with IR guns. Everybody then expects this is happening and the police can now do it because most people have no expectation of that avenue of privacy.

I tend to be very private in that I don't care for people to know my particulars (cf: my handle). Recently, I have come to consider the possibilities of no privacy or openness as its supporters would call it. In truth, I doubt anyone really cares about my particulars, so it probably won't make a difference. In the mean time, it would force me to take care that the loose private strings are taken care of, whereas now I might entrust to darkness that they are not seen..
If this were to take place, I also wonder how that would affect how the government prosecutes crime. I have a weird theory that the easier it is to identify wrong doing, the more lenient the authorities can be in its prosecution. I don't have a defense of that and it isn't up my alley, so to speak. It may be just wishful thinking about the future, seeing the inevitable and hoping for a broad silver lining.
12.24.2008 12:45pm
TruePath (mail) (www):
It seems the obvious canidates for such a case would be situations where the material was destined for publication or distribution but had not yet been mailed.

For instance imagine the police find an incriminating letter/document in a pile of outgoing mail the defendant stacked on their desk but had not yet taken it to the post office to stamp and mail. It seems that the objectively reasonable test would deem them to have a reasonable expectation of privacy in the material yet it would be proveable that there was no subjective expectation.

Of course it all does somewhat turn on how you define the objective expectation. One might argue that if one doesn't expect something to be private then it's not objectively reasonable to expect it to be private.
12.24.2008 1:00pm

I think your view is likely right. This may be off base, but the only cases that I can think that would matter would be cases of consent to searches (obviously no subjective expectation there), but those are better dealt with under frameworks for consent rather than as part of the expectation of privacy analysis. So I think you're right. You ask whether there is a reasonable (objective) expectation, and then you can get into consent to search if the case gets into it.
12.24.2008 1:11pm
TruePath (mail) (www):
Consent is an entirely different issue. I think the technical analysis is that a consensual inspection does not constitute a "search" or a "seizure" as used in the 4th amendment.

In response to the above commenters, yes the phrase "expectation of privacy" is a particularly unfortunate one. Really, a "reasonable expectation of privacy" is only loosely related to whether it would be reasonable to expect privacy. Unfortunately, this choice of words causes confusion and even encourages judges to reach incorrect opinions even when they should know better.

I mean it's quite obvious that, giving the words their plain language meaning, it is objectively reasonable for most people to expect the list of phone calls they make to remain private. After all very few people are subject to pen traps so this is a low probability event. On the other side of the coin it is obvious that a man famously known as a mob boss is extremely likely to be subject to a police wiretap. Thus on a plain language reading he would not have an objectively reasonable expectation of privacy as to the content of his phone calls.

While I'm no expert in the subject I think the right way to interpret the court is to interpret the word "expectation" not to refer to an estimation of a likelihood but rather to social norms and values.

In other words I have an "expectation of privacy" the same way a teacher might have an expectation the students won't swear in the classroom or a husband might expect his wife not to cheat despite her poor past behavior. In both cases it might be evident that the result is likely but we still expect it not to happen in the sense that we view it as a social/moral violation. Similarly we have an expectation of privacy for some location when we would deem it a violation for someone to search/examine that location.

Thus announcing on the news that all blonds would have their purses searched would not remove their expectation of privacy in the contents of their purses. They would still see this as an intrusive violation. This seems to be the right concept for 4th amendment analysis just a poor phrasing, bug I can't think of a better one.
12.24.2008 1:24pm
TruePath (mail) (www):
Hmm, or what about cases where someone believes they have given consent but in fact have forgotten to do so?
12.24.2008 1:29pm
teqjack (mail):
Non-lawyers may as well give up - I did long ago.

Back in the Seventies, a Boston MA radio station ran a series "Looking at the Law" that may illustrate.

Police made a traffic stop. Upon approach, officer noticed a pistol's barrel protruding from under the driver's seat. Now having probable cause, a search was done. In the course of this, he asked for the keys to open the trunk and was refused. The trunk was forced. Inside were a couple of rifles, a briefcase, and a paper shopping bag. The briefcase was locked, and again the suspect[s] refused to hand over the key, so the case was forced open and found to contain two pistols. The bag, when top was unfurled, was found to have a sizeable amount of cash and yet another pistol.

All OK, except the contents of the bag were disallowed as evidence, the suspects had a "reasonable expectation of privacy" against having it searched shown by having folded over the top of the bag.

12.24.2008 2:54pm
Trollbard's post reminded me of a case.
Schraff v. State
544 P.2d 834

But the case was remanded to a lower court to determine whether the officer had probable cause to arrest, so I think it actually bears out Professor Kerr's point. Ie., even though the guy was so intoxicated that they determined he was incapable of consenting, they didn't find the search okay. It seems likely that someone who is incapable of consenting is incapable of forming a reasonable expectation of privacy.
12.24.2008 6:15pm
TruePath (mail) (www):

Not a lawyer but are you sure you don't mean United States v. Ross (bullet not a gun found in the front seat)? If so then the supreme court appears to have reversed and declared the searches of the closed containers lawful.

It's really not difficult to understand this kind of law, it just requires a huge amount of work. Work which frankly isn't usually worth putting in if you aren't a lawyer. I mean it doesn't take any special training to go read through the court opinions and see what they say, you just need to actually do it rather than relying on what you would have assumed the reasonable answer would have been.

I mean you just have to realize that law is both a logical endeavor and a social/political one. As a logical endeavor you have to expect that (just as in math) what might seem like obvious common sense might not make any sense at all. On the other hand law is something created by people so you can't derive it from first principles but instead have to simply memorize the important opinions in the area, e.g., the automobile exception to the warrant requirement could not be predicted purely from general fourth amendment principles.


I don't buy it. An expectation of privacy is like a belief. You can have one even while unconscious. For instance if you were anesthetized on a surgeon's table I think it would still be correct to say that you 'believe that there are more than 10 blades of grass in your front lawn' or that you 'believe that you are older than 9.5575 years old' (assuming these are both true). This is true even though you have (presumably) never pondered either of these specific questions. There mere fact that your other attitudes, dispositions and actively considered beliefs would cause you to immediately assent to these claims means that we are willing to credit you with these beliefs. This is why one can sensibly say something like, "Yah, I guess I do believe that."

I would suggest that the way the court uses your "expectation of privacy" is similar. Even if you haven't ever thought about the fact that you would feel your privacy was violated if someone broke into your desk drawer and read your diary we still say you have an expectation of privacy in your diary because that is how you would respond if you considered the question. This remains the case even while you are unconscious.

Thus I don't see why there is any "forming" required to have a reasonable expectation of privacy or why someone who can't consent couldn't form it.
12.25.2008 1:05am
Andrew Hyman (mail) (www):
Speaking of the 4th Amendment, Orin, what do you think of Wikipedia's history of the Exclusionary Rule?
12.25.2008 6:11pm
Gilbert (mail):
I have seen a number of cases in state district court resolved on the subjective prong exclusively. The defendant probably would have lost on the objective prong anyway, but the judges just used their actions to infer that they had no subjective expectation and didn't bother with the rest. As they were just state district court decisions I don't even think there were written opinions, just announcements from the bench after the hearing.
1.3.2009 8:39am

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