Thursday, May 16, 2013

A Reasonable Expectation of Privacy (4th Amendment)

An initial consideration in any 4th Amendment issue is to determine if a person has a reasonable expectation of privacy. Without first analyzing that consideration, it's easy to fall into the trap of analyzing other considerations that require no analysis. If a person does not have a reasonable expectation of privacy, then that person is not protected by the 4th Amendment, so a full 4th Amendment analysis would be unnecessary.

This is not an uncommon tactic by the writers of the MBE. You'll read a fact pattern and overlook one line which will then take you down the wrong road, wasting time, and eventually leading to the wrong answer. That said, you should know well when the 4th Amendment does not apply.

A person does not have a reasonable expectation of privacy in the following:

The sound of one's voice

One's handwriting

Paint on the outside of one's vehicle

Garbage left for collection

Areas outside the home (often referred to as curtilage)

Account records held by a bank

The smell of one's car or luggage

Land visible from a public place.

What the above means is that the government can "search" these areas without having to concern itself with the warrant requirement that is implicated when the 4th Amendment does apply.

No comments:

Post a Comment