Page 83 - Privacy in a Cyber Age Policy and Practice

PRIVACY: A PERSONAL SPHERE, NOT HOME-BOUND 69

booth. Using this device, the FBI obtained six telephone conversations in
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which Charles Katz placed illegal bets across state lines. The Court held
that the FBI’s actions constituted a violation of Katz’s Fourth Amendment
rights. In one of the most oft-cited excerpts in Fourth Amendment juris-
prudence, the Court stated that “the Fourth Amendment protects people,
not places. What a person knowingly exposes to the public, even in his
home or office, is not a subject of Fourth Amendment protection. But
what he seeks to preserve as private, even in an area accessible to the
public, may be constitutionally protected.” In so doing, the Court placed
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the first major cracks in housing exceptionalism’s armor. The Court
viewed Americans as entitled to assert a sphere of privacy outside of the
home, one that is not tied to a physical location. Justice Harlan’s concurring
opinion did much of the work of outlining a replacement for the physi-
cal trespass standard by establishing a two-pronged test for determining
whether the government had breached an individual’s reasonable expec-
tation of privacy. First, the individual must “have exhibited an actual (sub-
jective) expectation of privacy,” and second, this expectation must be a
“reasonable” one. 67
Several Court rulings that followed held that one could have a reason-
able expectation of privacy outside of the home—for example in closed,
portable containers and in vehicles. Discussion of a few such examples
follows. One should note, though, that these rulings often rely on the idea
that the protected area is in some way similar to or an artificial extension
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of the home, and thus Katz and the rulings that followed in effect contin-
ued to draw on the rationale of housing exceptionalism. (Stephanie Stern
originated the term “housing exceptionalism”; the following lines benefited
much from her contributions.)
The Court thus recognized an expectation of privacy when it comes
to sealed, portable containers. What has been labeled the “container
doctrine”—“that police officers with probable cause to believe contraband
or evidence of a crime is within a container may seize the container, but
cannot open and search it without first obtaining a warrant,” even in public
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space—dates to the 1970s. Charles Lee, who has written on this subject,
points out that the Court overwhelmingly held for some time that gov-
ernment officials would need a warrant to constitutionally search “any
object capable of holding another object,” which includes pockets and cars,
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regardless of the physical location of the container. The Court ruled that
a government official who opened a sealed packet he found in an arrestee’s
pocket and found illicit drugs violated the arrestee’s Fourth Amendment
rights. It also held that government officials may not open luggage with-
out a warrant when dealing with travelers on a public bus. Moreover, it
ruled that governmental officials may not access “papers,” namely sealed