We often hear about “right to privacy” and people’s demand for it. One thing people fail to understand, however, is the difference between their right to be protected from governmental intrusion and any privacy rights they may enjoy in the private sector.
For example, there might be laws that protect you in the privacy of the bathroom where you work, but you seldom have a right to privacy anywhere else at your workplace. Your boss can probably search your desk, your company locker, your company computer, and possibly your company-provided cell phone to make sure you are not using any of this items or areas improperly.
The same would likely be true of any state or private college. Sure, the police might need a warrant to search your dorm room, but check the fine print in your housing agreement. I’ll bet with adequate notice, the college can inspect your room without giving you a reason, just like any landlord can inspect a rental property, if advance notice is given.
The Fourth Amendment does cover government schools but for reasons of their safety, minors don’t have the same rights as adults. If a municipality has a curfew for minors, kids who look under eighteen can be stopped (constitutionally “seized”) to determine their age and why they are out after curfew.
Similarly, public schools don’t want drugs or weapons on their campuses and they don’t even need probable cause to search for such items. Any hint of those items gives rise to the necessary “reasonable suspicion” to search an individual or every desk, locker, and backpack in the school.
So, for adults, where are the boundaries for privacy protection under the Constitution?
Let’s go back and look at some of the amendment’s actual language.“The right of the people to be secure…against unreasonable searches…” In other words, you are protected by the Fourth Amendment if your expectation of privacy is reasonable.
You are probably asking, who determines if my expectation is “reasonable?”
Some types of warrantless searches have already been determined to be reasonable by the Supreme Court. For example, the ability of the police to “frisk” you if they have reasonable suspicion you are armed and presently dangerous, or the authority to search you incident to arrest, or the power to enter your house if they believe someone inside may be injured, to name a just few.
All other determinations will be made by a trial judge using the “reasonable person” test. In other words, would current society consider your expectation reasonable using contemporary community standards. Obviously this test is subjective in that it can change over time and also from place to place.
Let’s look at some examples of privacy expectations.
You have a very limited expectation of privacy in your vehicle. Why? Because you drive it around in public in view of the entire world. You park it in public where anyone can walk up and look in the windows, at the least the three front windows on which “limousine tint” is prohibited.
You have no expectation of privacy in your handwriting. You sign your name and fill out applications all the time. Did you sign your name when you endorsed your last paycheck?
What about that drawing you entered after a recent sporting event trying to win a car that was really a come-on for a time share in Las Vegas?
Ditto for your fingerprints that you leave unknowingly all over town. The police can just follow you around and lift your prints off the last surface you touched.
Any expectation of privacy in your face would likewise be unreasonable. You show your mug in public all day long. If anyone could surreptitiously snap a photo of your face, so can the police.
Your voice? Not there, either.
What about your home? Nope. What are you going to do? Keep in draped in a termite tent all the time? Who does that?
Not to mention police helicopters flying at the legal height or someone with a surveillance drone, the police have other tools, too.
There was a recent federal case where the police has a camera on a utility pole across the street from a former felon suspected of gun-dealing. After being convicted, the defendant appealed, claiming the video footage used to convict him was obtained in violation of his Fourth Amendment rights. The Sixth Circuit disagreed. They said the defendant had no reasonable expectation of privacy in the activity captured by the pole camera because the camera had the same view enjoyed by passersby. In other words, the footage only captured what the suspect made public to any person traveling on the public roads surrounding the farm.
If you have been arrested, I will be happy to discuss with you all the possible defenses to your case. With a valid suppression motion, I may be able to have the evidence excluded before we ever get close to trial. Call me, criminal defense attorney Rebecca Ocain, any time of the day or night, 619-431-1076 and let me go to work for you.
Rebecca Ocain has been a criminal law trial attorney for over fourteen years.