Why Do We Talk About Privacy So Often?
When we begin the analysis of a possible suppression motion the baseline question becomes: Do you have a reasonable expectation of privacy in the area searched? This can be a complicated question so let’s break it down:
“Reasonable expectation of privacy” is a legal term that refers to the idea that individuals have a right to privacy in certain places or with certain items and that this right should be protected from unreasonable government intrusion. The phrase comes from a Supreme Court case called Katz v. United States (1967), in which the court established that the Fourth Amendment’s protection against unreasonable searches and seizures applies not just to physical spaces, but also to certain areas where people have a “reasonable expectation of privacy.”
The court in Katz v. United States established a two-part test to determine whether an individual has a reasonable expectation of privacy:
- The individual must have exhibited an actual (subjective) expectation of privacy.
- The expectation must be one that society is prepared to recognize as reasonable (objective)
For example, people have a reasonable expectation of privacy in their homes, in their private communications, and in their personal belongings. They do not have a reasonable expectation of privacy in public spaces.
Why Do We Talk About Privacy So Often?
When we begin the analysis of a possible suppression motion the baseline question becomes: Do you have a reasonable expectation of privacy in the area searched? This can be a complicated question so let’s break it down:
“Reasonable expectation of privacy” is a legal term that refers to the idea that individuals have a right to privacy in certain places or with certain items and that this right should be protected from unreasonable government intrusion. The phrase comes from a Supreme Court case called Katz v. United States (1967), in which the court established that the Fourth Amendment’s protection against unreasonable searches and seizures applies not just to physical spaces, but also to certain areas where people have a “reasonable expectation of privacy.”
The court in Katz v. United States established a two-part test to determine whether an individual has a reasonable expectation of privacy:
- The individual must have exhibited an actual (subjective) expectation of privacy.
- The expectation must be one that society is prepared to recognize as reasonable (objective)
For example, people have a reasonable expectation of privacy in their homes, in their private communications, and in their personal belongings. They do not have a reasonable expectation of privacy in public spaces.
The Impact on Defense Cases
This concept of “reasonable expectation of privacy” is important because it helps to define the limits of the government’s power to search and seize individuals and their property. It is used to determine whether certain actions by law enforcement, such as wiretapping or the use of surveillance cameras, are constitutional or not. It’s important to note that this concept is not absolute and the courts have to balance the individual’s right to privacy with the government’s need to protect public safety and law enforcement needs.
Does it Matter What my Expectation of Privacy is? Is this a Subjective Standard or an Objective Standard?
It is not a question of whether or not you subjectively expected privacy but whether society objectively believes a person in the same situation would expect a right to privacy; “what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection” It is an objective standard and does not really matter if you truly believed that you should have privacy.
Do I have a “reasonable expectation of privacy” in my home?
Court case after court case has held that “[a]t the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” So yes, in your own home, the police will have to get a search warrant or have exigent circumstances.
Do I have a “reasonable expectation of privacy” in my yard?
Yes, your home extends to your yard and curtilage. This includes the building itself and also the “curtilage” (“the curtilage of the home will ordinarily be construed to include at least the yard around the dwelling house as well as the area occupied by barns, cribs, and other outbuildings,” 151 N.C. App. 208 but if there is a crime in plain sight you lose this expectation of privacy. Unless the yard is fenced by a privacy fence, then any evidence of criminality would no longer be in plain sight.
Do I have a reasonable expectation of privacy in my trashcan which is placed by the street in a public right of way?
The courts have said there is no privacy in trash left at the curb for pickup outside the curtilage. But the trashcan in your yard is protected.
Does the 4th amendment apply to other people who are staying in my home?
Yes, courts have found that guests in a private home also can have a “reasonable expectation of privacy” in the home where they are staying. Overnight guests in a home also have a reasonable expectation of privacy, 495 U.S. 91, 98 (1990)
Does North Carolina recognize a “good faith” exception to warrant requirement?
If you had a reasonable expectation of privacy in a specific area, then law enforcement must get a search warrant “Searches conducted outside the judicial process, without prior approval by judge or magistrate [in the form of a search warrant], are per se unreasonable under the Fourth Amendment – subject only to a few specifically established and well-delineated exceptions,” 151 N.C. App. 208, 213
While there are “good Faith” exceptions in Federal law (the police make a good faith mistake) there is no such exception in North Carolina law. 158 N.C. App. 117, 123
Contact Us
Are you or someone you know facing criminal charges? Are you unsure if Law Enforcement obtained evidence against you legally? If you would like to discuss the possibility of filing a motion to have that evidence suppressed, call or email us right away. Let us get started on your defense strategy today!
The Impact on Defense Cases
This concept of “reasonable expectation of privacy” is important because it helps to define the limits of the government’s power to search and seize individuals and their property. It is used to determine whether certain actions by law enforcement, such as wiretapping or the use of surveillance cameras, are constitutional or not. It’s important to note that this concept is not absolute and the courts have to balance the individual’s right to privacy with the government’s need to protect public safety and law enforcement needs.
Does it Matter What my Expectation of Privacy is? Is this a Subjective Standard or an Objective Standard?
It is not a question of whether or not you subjectively expected privacy but whether society objectively believes a person in the same situation would expect a right to privacy; “what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection” It is an objective standard and does not really matter if you truly believed that you should have privacy.
Do I have a “reasonable expectation of privacy” in my home?
Court case after court case has held that “[a]t the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” So yes, in your own home, the police will have to get a search warrant or have exigent circumstances.
Do I have a “reasonable expectation of privacy” in my yard?
Yes, your home extends to your yard and curtilage. This includes the building itself and also the “curtilage” (“the curtilage of the home will ordinarily be construed to include at least the yard around the dwelling house as well as the area occupied by barns, cribs, and other outbuildings,” 151 N.C. App. 208 but if there is a crime in plain sight you lose this expectation of privacy. Unless the yard is fenced by a privacy fence, then any evidence of criminality would no longer be in plain sight.
Do I have a reasonable expectation of privacy in my trashcan which is placed by the street in a public right of way?
The courts have said there is no privacy in trash left at the curb for pickup outside the curtilage. But the trashcan in your yard is protected.
Does the 4th amendment apply to other people who are staying in my home?
Yes, courts have found that guests in a private home also can have a “reasonable expectation of privacy” in the home where they are staying. Overnight guests in a home also have a reasonable expectation of privacy, 495 U.S. 91, 98 (1990)
Does North Carolina recognize a “good faith” exception to warrant requirement?
If you had a reasonable expectation of privacy in a specific area, then law enforcement must get a search warrant “Searches conducted outside the judicial process, without prior approval by judge or magistrate [in the form of a search warrant], are per se unreasonable under the Fourth Amendment – subject only to a few specifically established and well-delineated exceptions,” 151 N.C. App. 208, 213
While there are “good Faith” exceptions in Federal law (the police make a good faith mistake) there is no such exception in North Carolina law. 158 N.C. App. 117, 123
Contact Us
Are you or someone you know facing criminal charges? Are you unsure if Law Enforcement obtained evidence against you legally? If you would like to discuss the possibility of filing a motion to have that evidence suppressed, call or email us right away. Let us get started on your defense strategy today!