Imagine that the police have searched your car, your computer, your purse, or your phone. Imagine that they have recorded your phone calls, your conversations, or your movements in public. Can they do that? What can you do about it? How do you defend yourself?
The U.S. Constitution guarantees its citizens will be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” This text is the basis for one of the most frequently contested areas of criminal law, whether a search of a person or place was reasonable or unreasonable. The nature of the language, that of reasonableness has a comforting quality–after all, cannot rational persons agree on appropriate standards?
Apparently not. What appears reasonable to the police rarely appears so to the suspect. Nor is there much agreement between the prosecutor and the defense attorney. Not to mention between the various attorneys and the judge, or between the trial judge and the appellate judge, and so on. To resolve these disputes, the U.S. Supreme Court has, through its decisions, created guidelines for application of the broad language of the constitution to real life situations. But how well are these guidelines understood and applied?
Not as well as one might hope. Orin S. Kerr, a professor of law at George Washington University, recently pointed out that U.S. Supreme Court Chief Justice John Roberts may not fully grasp his own court’s jurisprudence on the matter. (http://volokh.com/2011/12/13/what-makes-an-expectation-of-privacy-reasonable-a-response-to-chief-justice-roberts/)
A basic rule of when the police need a warrant before they may conduct a search is when the area to be searched is one in which an individual has “a reasonable expectation of privacy.” The origin of this phrase comes from a U.S. Supreme Court case in which Justice John M. Harlan wrote that the police were required to obtain a warrant to search any place in which “first . . . a person [has] exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’” (U.S. v. Katz, 389 U.S. 347, XX (1967)).
In two recent cases before the U.S. Supreme Court, during oral arguments, Chief Justice Roberts has asked questions about whether the place at issue is one where the general public might expect to have privacy, or whether it’s a place where it is reasonable for an individual to assume he has privacy. What Professor Kerr points out is that Chief Justice Roberts appears to be asking questions about a hypothetical reasonable person.
This is a narrow point, but it is an essential one. The hypothetical reasonable person has its origins in tort law, which generally applies an analysis of “how would a reasonably prudent person behave?” It is a purely objective analysis. This hypothetical reasonable person, however, is not the person that Justice Harlan describes in U.S. v. Katz. Justice Harlan is describing the individual who was subject to the search and their “actual (subjective) expectation of privacy.” This subjective analysis is then balanced against a more objective analysis about what society recognizes as reasonable.
If you or someone you love has been subject to a search or arrested by the police, it is essential that you have a criminal defense attorney who knows, understands and can apply the correct legal analysis to your particular circumstances. Part of your attorney’s job it to educate judges on areas of law where they lack expertise, even if they are the Chief Justice of the U.S. Supreme Court.
