How “subjective expectations of privacy” became irrelevant

July 3

In my first post on my new draft article about the subjective expectations test in Fourth Amendment law, I explained that the subjective expectations test appears to never be outcome determinative. The test exists on paper and is dutifully recited, but it never actually changes results. The obvious question is why the Court would adopt an irrelevant test. Why bother with a two-part test if the test is really only about one part? In this post, I’ll try to solve the mystery.

Here’s the basic idea: Justice Harlan meant for the subjective test to have one meaning, but that meaning was lost. Having missed Justice Harlan’s original meaning, the Supreme Court majority later reframed the problem that the subjective test was designed to solve as part of the objective test instead. When the court did that, the subjective test became useless. Because the test requires both elements to be satisfied, the subjective test could never make a difference.

I explain this history in detail in the article, but here’s the short version. If you read Justice Harlan’s concurring opinion carefully, with an understanding of the briefs filed in the case and the context of the state of the law at the time, you can realize that Justice Harlan had something very specific in mind with his subjective part of the Katz test. Both the subjective and objective tests were designed to restate what precedents had required to establish Fourth Amendment protection: First, the defendant had to prove that the place monitored was generally one that could support Fourth Amendment rights; and second, the defendant had to prove that he had not waived his Fourth Amendment rights in that place based on the facts of the case by choosing to expose the space to the plain view of outsiders. Harlan chose to phrase the first test as objective and the second test as subjective, labels that reflected the point that the first test was generalized (is this the kind of space that receives protection) and the second was particular to that person (has that person exposed the space to outside observation).

In later cases, though, this meaning was lost. When the Supreme Court later adopted Harlan’s two-part test, the Justices simply assumed that the test Harlan labeled “subjective” was an inquiry into whether the individual actually anticipated that he would maintain privacy. After all, that’s what the word “subjective” usually means. Whether a person had privacy rights in spaces that were exposed to outside observation was then recast as part of the objective test instead. Under the new framing, a person might have a subjective expectation that he would maintain privacy, but by sharing it with a false friend or opening it to public view that subjective expectation of privacy was not considered constitutionally reasonable.

This switch in approach meant that the work originally done by the subjective test was later done by the objective test instead. The result was quite confusing, as the Court simply announced that the expectation was not reasonable without saying why. But the switch meant that the subjective test could do no independent work. Indeed, in the rare instance where it would do work in theory — such as when a person might be in their home but have reason to think the police were about to break in — opinions of the Court announced that the subjective test should simply be ignored.

The takeaway from all of this is that the Supreme Court should simply eliminate the subjective test. Its work is now done elsewhere, and its only role today is to confuse the bench, bar, and academy. Katz is already one step in practice; there is no reason it should remain two steps in the books.

For more detail, read the article itself.

Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School, where he has taught since 2001. He teaches and writes in the area of criminal procedure and computer crime law. Kerr is a former law clerk for Justice Anthony Kennedy at the U.S. Supreme Court. From 1998 to 2001, he was a Trial Attorney in the Computer Crime and Intellectual Property Section at the U.S. Department of Justice. In 2013, Chief Justice Roberts appointed Kerr to a 3-year term on the Advisory Committee for the Federal Rules of Criminal Procedure. You can follow him on Twitter @orinkerr.
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