Expectation of privacy

Expectation of privacy

In United States constitutional law the expectation of privacy is a legal test which is crucial in defining the scope of the applicability of the privacy protections of the Fourth Amendment to the United States Constitution. It is related to, but is not the same thing as a right of privacy, a much broader concept which is found in many legal systems (see privacy law).

There are two types of expectations of privacy:

  • A subjective expectation of privacy is an opinion of a person that a certain location or situation is private. These obviously vary greatly from person to person.
  • An objective, legitimate or reasonable expectation of privacy is an expectation of privacy generally recognized by society.

Examples of places where a person has a reasonable expectation of privacy are person's residence or hotel room[1] and public places which have been specifically provided by businesses or the public sector to ensure privacy, such as public restrooms, private portions of jailhouses,[2] or a phone booth.[3][4]

In general, one cannot have a reasonable expectation of privacy in things held out to the public. A well-known example is that there is no privacy rights in garbage left for collection in a public place.[2]. Other examples include: account records held by the bank, a person's physical characteristics (including blood, hair, fingerprints, fingernails and the sound of your voice), what the naked eye can see below in public air space (without the use of special equipment), anything in open fields (eg. barn), odors emanating from your car or luggage and paint scrapings on the outside of your car.

While a person may have a subjective expectation of privacy in his/her car, it is not always an objective one, unlike a person's home.[5]

The privacy laws of the United States include the notion of a person's "open fields"; that is, places where a person's possessions do not have an objective expectation of privacy.[6]

Privacy and search

The expectation of privacy is crucial to distinguishing a legitimate, reasonable police search and seizure from an unreasonable one.

In Katz v. United States, 389 U.S. 347 (1967) Justice Harlan issued a concurring opinion articulating the two-part test later adopted by the U.S. Supreme Court as the test for determining whether a police or government search is subject to the limitations of the Fourth Amendment: (1) governmental action must contravene an individual's actual, subjective expectation of privacy; (2) and that expectation of privacy must be reasonable, in the sense that society in general would recognize it as such.

To meet the first part of the test, the person from whom the information was obtained must demonstrate that they, in fact, had an actual, subjective expectation that the evidence obtained would not be available to the public. In other words, the person asserting that a search was conducted must show that they kept the evidence in a manner designed to ensure its privacy.

The first part of the test is related to the notion "in plain view". If a person did not undertake reasonable efforts to conceal something from a casual observer (as opposed to a snoop), then no subjective expectation of privacy is assumed. [7]

The second part of the test is analyzed objectively: would society at large deem a person's expectation of privacy to be reasonable? If it is plain that a person did not keep the evidence at issue in a private place, then no search is required to uncover the evidence. For example, there is generally no search when police officers look through garbage because a reasonable person would not expect that items placed in the garbage would necessarily remain private.[8] Similarly, there is no search where officers monitor what phone numbers an individual dials,[9] although the Congress has enacted laws that restrict such monitoring. The Supreme Court has also ruled that there is no objectively reasonable expectation of privacy (and thus no search) when officers hovering in a helicopter 400 feet above a suspect's house conduct surveillance.[10]

See also


  1. ^ Do Not Disturb: Fourth Amendment Expectations of Privacy in Hotel Rooms, Social Science Research Network (2010)
  2. ^ a b "The Criminal Law Handbook: Know Your Rights, Survive the System" (2007), ISBN 1413307043, pp. 38, 62
  3. ^ Katz v. U.S., 389 U.S. 347, 361 (1967)
  4. ^ Full text of the decision courtesy of Findlaw.com
  5. ^ The Criminal Law Handbook, p. 62
  6. ^ See, e.g., Oliver v. United States.
  7. ^ Mark Tunick (1998) "Practices and Principles: Approaches to Ethical and Legal Judgment", ISBN 0691070792 pp.163-166
  8. ^ California v. Greenwood, 486 U.S. 35 (1988)
  9. ^ Smith v. Maryland, 442 U.S. 735 (1979)
  10. ^ Florida v. Riley, 488 U.S. 445 (1989)

Wikimedia Foundation. 2010.

Look at other dictionaries:

  • expectation of privacy — ex·pec·ta·tion of privacy: a belief in the existence of freedom from unwanted esp. governmental intrusion in some thing or place compare zone of privacy ◇ In order to successfully challenge a search or seizure as a violation of the Fourth… …   Law dictionary

  • Privacy law — is the area of law concerning the protection and preservation of the privacy rights of individuals. By definition, most countries treat privacy as the rights of individuals and not institutions. The governments and other organizations collect… …   Wikipedia

  • privacy — pri·va·cy n: freedom from unauthorized intrusion: state of being let alone and able to keep certain esp. personal matters to oneself see also expectation of privacy, invasion of privacy; privacy interest at interest 3b, right of privacy; …   Law dictionary

  • Privacy — For other uses, see Privacy (disambiguation). Privacy (from Latin: privatus separated from the rest, deprived of something, esp. office, participation in the government , from privo to deprive ) is the ability of an individual or group to seclude …   Wikipedia

  • Privacy laws of the United States — United States privacy laws embody several different legal concepts. One is the invasion of privacy , a tort based in common law allowing an aggrieved party to bring a lawsuit against an individual who unlawfully intrudes into his or her private… …   Wikipedia

  • Canadian privacy law — Privacy law is the area of law concerning the protecting and preserving the privacy rights of individuals. By definition, most countries treat privacy as the rights of individuals and not institutions. Governing bodies and NGO s collect vast… …   Wikipedia

  • Internet privacy — involves the right or mandate of personal privacy concerning the storing, repurposing, providing to third parties, and displaying of information pertaining to oneself via the Internet. Privacy can entail both Personally Identifying Information… …   Wikipedia

  • E-mail privacy — The protection of electronic mail from unauthorized access and inspection is known as electronic privacy. In countries with a constitutional guarantee of the secrecy of correspondence, e mail is equated with letters and thus legally protected… …   Wikipedia

  • Information privacy — Information privacy, or data privacy is the relationship between collection and dissemination of data, technology, the public expectation of privacy, and the legal and political issues surrounding them. Privacy concerns exist wherever personally… …   Wikipedia

  • zone of privacy — zone of privacy: an area or aspect of life that is held to be protected from intrusion by a specific constitutional guarantee (as of the right to be secure in one s person, house, papers, or effects against unreasonable searches or seizures) or… …   Law dictionary

We are using cookies for the best presentation of our site. Continuing to use this site, you agree with this.