When an officer attaches a video camera to a utility pole and uses it to monitor a suspect’s home continuously for several months, is that a “search” within the meaning of the Fourth Amendment? Or is it just the officer seeing what any passer-by might see, such that there is no intrusion on the suspect’s reasonable expectation of privacy? This issue has been a focal point of litigation since Carpenter v. United States, 585 U.S. ___, 138 S.Ct. 2206 (2018), which held that the long-term collection of historical cell site location information is so intrusive that it is a search, even though any individual piece of such data does not belong to the phone’s user and is not subject to a reasonable expectation of privacy. Whether the rationale of Carpenter extends to pole cameras has been addressed before on this blog, most recently here and here by Shea Denning. But there are a number of new cases in this area, which I have summarized below. Continue reading
Tag Archives: reasonable expectation of privacy
On Friday, the Supreme Court issued a long-awaited opinion in Carpenter v. United States. The Court held that when law enforcement obtains long-term cell site location information from a suspect’s service provider, it conducts a Fourth Amendment search that normally requires a warrant. Although the majority opinion states that it “is a narrow one,” the dissenting Justices and some scholars see it as a seismic shift that may have many aftershocks. I’ll summarize the case and then use former Secretary of Defense Donald Rumsfeld’s famous approach to address the “known knowns,” the “known unknowns,” and the “unknown unknowns” after Carpenter. Continue reading →
A week ago today, the Supreme Court of the United States resolved a circuit split and ruled that a person driving a rental car, but not listed on the rental agreement, has a reasonable expectation of privacy in the vehicle . . . at least sometimes. The case is Byrd v. United States. Continue reading →
If a law enforcement officer obtains a search warrant for a suspect’s cell phone, may the officer use the phone to access cloud storage to which it is linked? For example, may the officer click on the Dropbox icon on the phone’s home screen and see what’s there? Continue reading →
Placing a video camera on a utility pole and conducting surveillance can be a useful law enforcement tool to gather information without requiring an in-person presence by officers at all times. But this tool may be subject to the Fourth Amendment restrictions. This post reviews the evolving case law, particularly since the United States Supreme Court ruling in United States v. Jones, 132 S. Ct. 945 (2012).
Jeff Welty in a 2013 post reviewed video surveillance generally, not just pole cameras, and discussed Jones and the few cases decided in light of its ruling. This post, after reviewing Jones, will discuss a few pole camera cases decided in federal courts since his post and whether officers should seek approval from a court before conducting pole camera surveillance. Continue reading →
Officers are allowed to misrepresent their identities in the course of their investigations: they may pose as drug buyers, or prostitutes, or members of an organized crime syndicate. Is the same thing true online? In other words, may an officer claim to be someone else in order to “friend” a suspect on social media and thereby gain access to whatever information the suspect has posted? The answer isn’t clear yet, but I would guess that courts ultimately will say yes. Continue reading →
Yesterday, the United States Supreme Court decided United States v. Jones, the important GPS tracking case I previously blogged about here. (The case was captioned United States v. Maynard at that time.)
In brief, Washington, DC officers suspected that the defendant was a drug dealer. They wanted to track his movements, so they obtained a search warrant that allowed them to install and monitor a GPS tracking device on a Jeep owned by the defendant’s wife but driven exclusively by the defendant. However, while the warrant authorized installation of the device in DC within 10 days, the officers didn’t complete the installation until the 11th day, in Maryland. They then tracked the defendant for 28 days. Among other things, they determined that he had visited a stash house in which the officers ultimately found large quantities of money and cocaine.
Facing drug charges, the defendant moved to suppress the tracking data. Because the officers had failed to comply with the terms of the warrant, the district court treated the officers’ conduct as being warrantless activity. (All subsequent courts followed suit on this point.) Nonetheless, it mostly denied the defendant’s motion, concluding that the defendant had no reasonable expectation of privacy in his travels on the public roads, and therefore, that the officers’ conduct was not a “search” for Fourth Amendment purposes. The government introduced the tracking data at trial and the defendant was ultimately convicted.
He appealed. The DC Circuit reversed, holding that prolonged GPS monitoring is a Fourth Amendment search. Distinguishing United States v. Knotts, 460 U.S. 276 (1983), which held that the short-term use of electronic “beepers” to track a suspect’s movements on the public roads did not intrude upon a reasonable expectation of privacy, the court wrote that “no single journey reveals the habits and patterns that mark the distinction between a day in the life and a way of life . . . . Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble.”
Some commentators called this the “mosaic theory” of the Fourth Amendment. Critics wondered how an accumulation of things that were not themselves searches could sum up to a search, and wondered how to draw the line between permissible warrantless short-term monitoring and improper warrantless long-term monitoring.
The government petitioned for certiorari, and the Supreme Court took the case. It affirmed the court of appeals. Justice Scalia wrote the majority opinion, which holds that “the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search.’” However, the majority’s reasoning differs substantially from that endorsed by the DC Circuit. According to Justice Scalia, the key to the case is that “[t]he Government physically occupied private property for the purpose of obtaining information.” That is, the government trespassed when it undertook the “physical intrusion” of installing the device. And a trespass “conjoined with . . . an attempt to find something or to obtain information” constitutes a search for Fourth Amendment purposes. Indeed, according to Justice Scalia, such an intrusion onto private property for the purpose of gathering information was exactly the type of conduct the Framers of the Fourth Amendment intended to prevent.
This emphasis on trespass has roots in the Court’s precedents. As Justice Scalia notes, “our Fourth Amendment jurisprudence was tied to common-law trespass, at least until the latter half of the 20th century.” However, in recent years, the Court has analyzed virtually all Fourth Amendment cases under the “reasonable expectation of privacy” rubric first enunciated in Justice Harlan’s concurrence in Katz v. United States, 389 U. S. 347 (1967). The majority does not repudiate that test – indeed, it explicitly reaffirms that governmental conduct that intrudes upon such an expectation is a search – but finds that the trespass analysis survives Katz as an alternative way of establishing that officers are undertaking a search regulated by the Fourth Amendment. And because the majority resolves the case under the trespass analysis, it declines to reach the issue of whether GPS tracking is a search under the expectation of privacy analysis.
Justice Alito concurred in the judgment, and wrote an opinion joined by three other Justices. His opinion argues that the expectation of privacy analysis in Katz supplanted, rather than supplemented, the trespass approach to the Fourth Amendment. In support of this claim, the opinion quotes several excerpts from Katz and later cases to the effect that a physical trespass is neither necessary nor sufficient to establish a Fourth Amendment violation. Thus, Justice Alito views Justice Scalia’s emphasis on the law of trespass as archaic and unhelpful. Analyzing the matter exclusively under the expectation of privacy test, Justice Alito finds that the officers’ conduct amounted to a search essentially for the reasons given by the court of appeals: “[R]elatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable. . . . But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.”
Justice Sotomayor joined Justice Scalia’s majority opinion, but wrote a separate concurrence that strikes me as very important. She agreed that the case was properly resolved under the trespass analysis. But she plainly indicated that she would also have found a Fourth Amendment search even absent a trespass. That is to say, she “agree[d] with Justice Alito that, at the very least, ‘longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.’” That’s significant because it means that there are five votes – Justice Sotomayor plus the four Justices who signed Justice Alito’s opinion – for the view that prolonged GPS tracking is a search even if it can be done without a trespass, for example, by concealing a tracking device inside an object and then convincing the suspect to accept the object into his vehicle, or perhaps by using a vehicle’s built-in GPS system. (Justice Sotomayor also suggested that even short-term GPS tracking might be a search, and that the Court should reconsider the doctrine that a suspect’s disclosure of information to a third party destroys his expectation of privacy in that information vis-à-vis the police, though no other Justice joined her in expressing those sentiments.)
Newspaper coverage of the case is here. Orin Kerr, a leading scholar in this area whose article was cited by both the majority and the principal concurrence, has been posting like crazy at the Volokh Conspiracy. Rather than link to his many posts individually, I’ll just link to the front page of the blog and you can scroll through. I may have more thoughts about this case later, and if so I will do a follow-up post. Stay tuned.
The curtilage of a home is the area “directly and intimately connected with the [home] and in proximity” to it. State v. Courtright, 60 N.C. App. 247 (1983). In other words, it is the area that “harbors the intimate activity associated with the sanctity of a man’s home and the privacies of life.” United States v. Dunn, 480 U.S. 294 (1987) (internal quotation marks and citations omitted). Classic example of curtilage include attached garages, back patios, and fenced-in back yards.
Because the occupants of a home have a reasonable expectation of privacy in the curtilage, it is protected by the Fourth Amendment, meaning that it can’t be searched by a law-enforcement officer without a warrant unless one of the exceptions to the warrant requirement applies. See generally Robert L. Farb, Arrest, Search and Investigation in North Carolina 73 (3d ed. 2003); Dunn, supra (stating that the curtilage is “treated as the home itself” for Fourth Amendment purposes).
In Dunn, the Court stated that four factors must be considered when determining whether an area is part of the curtilage of a home: “the proximity of the area . . . to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.” There are plenty of interesting cases weighing and balancing those four factors in connection with single-family houses, but one of my favorite Fourth Amendment puzzlers is whether and how the concept of curtilage applies to multi-unit dwellings.
Take a typical side-by-side duplex, for example. Suppose that there’s a fenced in backyard shared by the occupants of both sides. One could argue that because the area is shared, neither side’s occupants can reasonably claim that it is private. On the other hand, one could argue that the mere fact that a handful of others have access to the area isn’t fatal to the expectation of privacy, any more than the fact that a meter-reader may access the yard of a single-family home destroys the expectation of privacy that the home’s residents have in the yard.
What have the courts said? Here’s a sampling:
- In Reeves v. Churchich, 484 F.3d 1244 (10th Cir. 2007), the court held that the front yard of a duplex was not within the curtilage, because it was open to the street and because there was no evidence that the occupants of one side “could exclude others from the yard and it appears they shared the yard” with the occupants of the other side.
- In United States v. King, 227 F.3d 732 (6th Cir. 2000), the court held that the all the tenants of a duplex had a reasonable expectation of privacy in a shared basement, though the basement was not technically part of the curtilage because it was a part of the duplex itself.
- In United States v. Acosta, 965 F.2d 1248 (3rd Cir. 1992), the court argued that the Dunn factors may need to be modified or weighted differently in urban settings, then held that the back yard of an apartment building was not the tenants’ curtilage on the facts of the case.
- In United States v. Arboleda, 633 F.2d 985 (2d Cir. 1980), a case involving an item seized from a ledge outside a second-story apartment, the court said that “it is doubtful that the curtilage concept has much applicability to multifamily dwellings such as the one involved here.”
- In United States v. Stanley, 597 F.2d 866 (4th Cir. 1979), the court described this issue as “thorny” and held that a common parking area in a mobile home park was not within the curtilage of any resident’s home.
- In United States v. Cruz Pagan, 537 F.2d 554 (1st Cir. 1976), the court held that the parking garage of an apartment building was not the tenants’ curtilage, and stated that “[i]n a modern urban multifamily apartment house, the area within the ‘curtilage’ is necessarily much more limited than in the case of a rural dwelling subject to one owner’s control.”
- In People v. Shaw, 97 Cal.App.4th 833 (Cal. Ct. App. 4th Dist. 2002), the court stated that “what might be one person’s curtilage, in the context of a private single occupancy residence, becomes less subject to privacy expectations in the context of the grounds of a multi-unit apartment complex,” and held that the fenced-in back yard of a four-plex was not subject to an expectation of privacy.
I’m not aware of a North Carolina appellate case on point. Let me know if you are. From the above cases and others, I conclude as follows: (1) the law’s not settled in this area; (2) the larger the number of units in a dwelling, the less likely that common areas are subject to a reasonable expectation of privacy; and (3) layout matters, e.g., if a duplex has a divided back yard such that each side has its own space, the occupants are more likely to have a reasonable expectation of privacy than in an undivided yard. In particular cases, other factors also may be relevant. For example, if both sides of a duplex are occupied by members of the same extended family, the back yard of duplex may seem more like a private area than if the the occupants of the two sides are unrelated. Anyone have additional or different thoughts?
I’ve had a couple of questions recently about something that I’d never considered before: whether a guest has “standing” to contest a search of the outbuildings associated with a host’s home.
Most readers will know the legal backdrop. In order to argue that the results of an allegedly illegal police search should be suppressed, a defendant must establish that he had a reasonable expectation of privacy in the location that was searched. Otherwise, he lacks standing to contest the search. An overnight guest generally has a reasonable expectation of privacy in the host’s home. See Robert L. Farb, Arrest, Search, and Investigation in North Carolina 80 (3rd ed. 2003). A non-overnight guest, such as a dinner guest, may also have such an expectation, depending on the specific facts and circumstances of the case.
Assuming that a guest has a reasonable expectation of privacy in a host’s home, does that expectation extends to outbuildings such as storage sheds and garages? I couldn’t find a North Carolina appellate case on point, and the leading treatise doesn’t directly address the issue. See generally Wayne R. LaFave, Search and Seizure § 11.3(b)-(c) (4th ed. 2004). I was able find a number of out-of-state cases, which suggest that the answer is often no:
- United States v Mendoza, 438 F.3d 792 (7th Cir. 2006) (apparent overnight guest at a residence had no reasonable expectation of privacy in the detached garage where his vehicle was parked)
- United States v. Phillips, 382 F.3d 489 (5th Cir. 2004) (guest had no expectation of privacy in shed where host “alone had exclusive control of the shed, kept the shed locked and had the only key, and had never given [the guest] or anyone else permission to use, enter, or store anything in the shed for any purpose”)
- United States v. Rackley, 724 F.2d 1463 (11th Cir. 1984) (occasional overnight guest lacked standing to contest search of garage)
- United States v. Jenkins, 426 F.Supp.2d 336 (E.D.N.C. 2006) (“Society would not find reasonable either a guest’s expectation of privacy in a bedroom he was not invited to use . . . or a host’s shed in the backyard.”)
- Meridyth v. State, 163 S.W.3d 305 (Tex. Ct. App. – El Paso 2005 (“We know of no authority, however, that would extend the guest or employee’s expectation of privacy in the home to the outbuildings or curtilage of the premises, as opposed to the home itself.”)
- State v. Evans, 1995 WL 640603 (Wis. Ct. App. Nov. 2, 1995) (unpublished) (“Evans argues that his status as an overnight guest at McIntyre’s residence is sufficient to establish a legitimate expectation of privacy in her garage. We disagree.”)
A few courts have found an expectation of privacy in garages and outbuildings, particularly where the guest has been invited into, or has been invited to store items in, the garage or outbuilding:
- United States v. Fultz, 146 F.3d 1102 (9th Cir. 1998) (guest whose personal belongings were in boxes in segregated area of host’s garage had a reasonable expectation of privacy therein)
- State v. Cuntapay, 85 P.3d 634 (Hawai’i 2004) (guest who was regularly invited into host’s garage for social purposes had a reasonable expectation of privacy therein)
One way to characterize the majority rule is that garages and outbuildings normally aren’t “part of the house” for purposes of guests’ privacy expectations. Put in those terms, the majority rule makes an interesting contrast to the rule that garages and outbuildings normally are part of the house for purposes of determining the scope of a search authorized by a search warrant, or the scope of a search authorized by the property owner’s consent. A recent post on those issues is here.
