Posted by Orin Kerr:
Subjective Expectations of Privacy:
http://volokh.com/archives/archive_2008_12_21-2008_12_27.shtml#1230098857
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 because 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 very rare for the government to know exactly what a
defendant was thinking at the time of the search. In the few cases
when it can satisfy that burden, the defendant will normally lack an
"objective" expectation of privacy anyway, so the subjective prong
won't actually 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 such cases? If you do, please leave a comment:
It would be good to know, and I can make sure I point out such cases
to my students the next time I teach the course.
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