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Join the conversation! There are now 13 comments on “Police vs Privacy pg 24
  1. lordliqourice says

    question if you have time for it is how would in most cases you prove that you actually lived or didn’t live at a residence and therefore had an expectation of privacy?

    I can think of many instances with roommates moving in and out and people sleeping on couches where there are no names on leases or mortgages per se but they definitely live their. Would that just be based on the word of the person whose name is on the lease/mortgage?

    • To get standing, you’ll have to make some statement of facts which would show that you have a legitimate and reasonable expectation of privacy. You don’t have to be named on the lease to have such an expectation — in fact, even an overnight guest is considered to have standing.

      The issue is just whether, after taking everything into consideration, society would agree that you had a valid expectation of privacy in the place that was searched.

      Whether your facts establish standing is going to be decided on a case-by-case basis. Whether your statement of facts needs to be under oath will vary from jurisdiction from jurisdiction.

      Hope this helps.

      • “The issue is just whether, after taking everything into consideration, society would agree that you had a valid expectation of privacy in the place that was searched.”
        This is the problem; there seems to be a large disconnect between what the state says society would think, and what I would expect most people in society would actually think.
        I would think, and expect most people to agree, that if you’re in a private residence then you have a reasonable expectation of privacy from state intrusion regardless of whose house it is or how long you’re staying there. Sure, you don’t have privacy from the owner, but the 4th amd. is only interested in the state, right?

  2. KW says

    I would have the judge insert “his own” in front of “privacy”, to clarify further that it’s his personal privacy, and no one else’s, under question.

    Hmm, being in a bathroom is normally considered private, but I suspect not in a criminal law sense.

  3. Eric says

    I am stunned to learn that you have to be an overnight guest to have an expectation of privacy. I would expect privacy the instant the door close behind me. It never would have occurred to me that anyone might think any different. How did overnight become the cutoff?

  4. Eric says

    “His own private domain”? That implies that the government has the right to snoop into my business in any place that doesn’t belong to me? I would have thought that any place that was open to everyone was Public and any other place was Private.

  5. WJS says

    It hardly seems reasonable to go from “you have an expectation of privacy in your own home” to “you only have an expectation of privacy in your own home”. I guess the state thinks differently.

  6. Wait, I’m confused. If the person who lives in the house has an expectation of privacy, wouldn’t that mean anyone else in the house could expect the host’s expectation of privacy to be respected, and by extension, anything they do inside the house couldn’t be discovered without first breaking the host’s expectation of privacy by entering the house in the first place? If it’s reasonable to expect the host to expect no sudden police searches, doesn’t that effectively give you privacy too?

  7. LookielouE1707 says

    Let’s say I’m homeless (and sleep outside). Does that mean I have no such expectation of privacy anywhere?

    • Excellent question!

      You’d obviously have an expectation of privacy in your own person, the pockets of your clothes, and any opaque containers or bags holding your possessions. That’s not going to change.

      But there ISN’T a reasonable or legitimate expectation of privacy, however, when you’re sleeping in a public space. By definition, “public space” means “not private,” so nobody has a legitimate expectation of privacy in a public area.

      So if the police walk up on you sleeping on the sidewalk or a bench, they’re going to be allowed to search that sidewalk or bench. They’re allowed to be there, so anything they see in plain view they’ll be allowed to seize. (But they wouldn’t be allowed to search your person or open any containers or bags without some further legal justification.)

      The same goes if you’re homeless and trespassing on someone else’s private property. You have no legitimate expectation of privacy in someone else’s place where you don’t even have permission to be there.

      It gets a little more interesting if you’re on government land. Hikers and RV-ers have tents and shelters, and so long as they’re allowed to be on government land (i.e., so long as they have a permit or the regulations allow them to be there) they have a legitimate expectation of privacy in their tent or shelter or RV. HOWEVER, the majority of courts say that expectation of privacy ENDS the moment the permit expires, and the police may then search your shelter without a warrant.

      This would apply to homeless people as well, who have left the cities to hike the trails or live in a cave on public land (not as rare as you might think). No permit, no privacy.

      This makes sense if you think of it like being an overnight guest as opposed to a trespasser. Someone who is staying in your house with permission has an expectation of privacy there. You’ve granted him an interest in your private space. But if he’s trespassing, he has no such expectation of privacy, even in his room.

      Similarly, someone staying on government land with permission gets an expectation of privacy because he’s been granted a permit to have a private space there. The public nature of the space has a little carve-out for his permitted shelter. If he doesn’t have a valid permit, he’s just trespassing and also in a public place.

      This may change as societal attitudes towards what counts as a legitimate expectation of privacy change. But at present, this is pretty much how it stands.

  8. Kereth Midknight says

    Am I correct in guessing there’s some issue with ability to control privacy at stake here? In other words, you’d expect privacy, maybe generally, at a friend’s house, but that friend could still invite anybody else over, and you’d have no say in who they were? Or is it that your expectation of privacy is considered as “privacy from people not in your own household” and thus the fact that it’s your friends house, and he’s outside your household, means that you have no privacy expectation?

    • Oh, but it’s only for things in plain sight, no? So it’s assumed if you’re just there visiting, anything in plain sight on you now might have easily been in plain sight when you entered/left? Maybe? There’s so many different ways the rationale could go here, it’s hard for me to figure out which one is being officially used.

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