A REASONABLE EXPECTATION OF PRIVACY?

The Fourth Amendment of the US Constitution protects one of our most important civil rights: the right to be free from unlawful searches and seizures.[1] To elaborate, an unlawful search is one where a person acting on behalf of the government conducts a search without a warrant (unless an exception to the warrant requirement applies) in an area where a person has a reasonable expectation of privacy (“REOP”). So, where exactly does one have a “reasonable expectation of privacy?” It depends (surprising answer, right?). Generally, a person has a REOP when: 1) the person has exhibited an actual (subjective) expectation of privacy; and 2) that  expectation must be one that society is prepared to recognize as reasonable.[2] Through developing case law on this issue, there have been certain factual scenarios in which courts have deemed a person to have a REOP or not, but not all courts agree with each other on every single factual scenario. Unfortunately, this is the extent to how black and white this area of law gets. So, let’s go through a few factual scenarios.

To begin with the most agreed upon one, a person has a REOP inside one’s home, and the area immediately surrounding the home (a.k.a. “curtilage”). There is not much room for discussion on the REOP inside one’s home; however, there is no REOP in trash left at the curb for pickup, even in front of one’s home.[3]  In other words, if you leave some incriminating evidence in your trash and you leave that trash at your curb for pickup, any government agent may go through it, find that evidence, and use it against you. Next, a person giving information voluntarily to another, even in a private location (like one’s home), who passes it to a government agent, bypasses a person’s REOP.[4] These examples are pretty straightforward, so lets move onto a more controversial one.

Courts are split on whether a tenant who lives in an apartment building has a REOP in the common areas of the building where every other tenant may access. To muddy up the waters even more, a recent 7th Circuit U.S. Court of Appeal held that a tenant has a REOP on the outside of the front door of her or his apartment facing the common hallway, but does not have one in the common areas of the apartment building.[5] Thus, the court ruled that an officer may not use a drug-sniffing dog at the front door of an apartment to determine whether there are drugs inside. This shaky area of law actually has a long history of similar cases stemming from the idea that the government cannot use advanced instruments or technology to determine what is inside a person’s home (a good candidate for a future topic).

As stated above, this area of law is not black-and-white. The government obtains evidence in all types of ways, both with and without a warrant, and from places where people have and do not have a REOP. Therefore, it is important to contact a civil rights attorney to determine whether or not the evidence being used against you or someone you know was obtained lawfully.

--Ara M. Baghdassarian is an associate attorney with Barnes Law, licensed to practice law in California.

 The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Related Reading: http://www.barneslawllp.com/consent-how-many-americans-unknowingly-give-up-their-civil-rights/; http://www.barneslawllp.com/the-warrant-requirement-for-searches-and-how-to-use-it-to-protect-your-civil-rights/; http://www.barneslawllp.com/i-came-i-saw-i-maybe-violated-your-civil-rights/

[2] Katz v. United States, 389 U.S. 347 (1967); https://supreme.justia.com/cases/federal/us/389/347

[3] California v. Greenwood, 486 U.S. 35 (1988); https://supreme.justia.com/cases/federal/us/486/35/

[4] United States v. White, 401 U.S. 745 (1971)

[5] https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/04/13/use-of-a-drug-sniffing-dog-at-an-apartment-door-is-a-search-7th-circuit-holds/; http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D04-12/C:14-3290:J:Darrah:aut:T:fnOp:N:1736023:S:0