Professor Dorothy Glancy Fall 2004 IV. Reasonable Expectations of Privacy

A. UNITED STATES SUPREME COURT Katz v. United States, 389 U.S. 347 (1967) United States v. White, 401 U.S. 745 (1971) Minnesota v. Carter, 525 U.S. 83 (1998) Bond v. United States, 529 U.S. 334 (2000) Kyllo v. United States, 533 U.S. 27 (2001)

B. CALIFORNIA Sanders v. American Broadcasting Co., 20 Cal.4th 907 (1999). California Civil Code § 1708.8

C. OREGON State v. Campbell, 759 P.2d 1040 (Or. 1988)

2004 Privacy Law Seminar Materials - Page 156 A. UNITED STATES SUPREME COURT

Katz v. United States 389 U.S. 347, 88 S.Ct. 507 (1967) [ The prosecution of Katz involved evidence of the defendant’s telephone conversations overheard by an electronic surveillance device attached to the outside of a public telephone booth by the FBI. The issue before the Supreme Court was whether this electronic surveillance constituted a “search” under the Fourth Amendment.] MR. JUSTICE STEWART delivered the opinion of the Court. The petitioner was convicted in the District Court for the Southern District of California under an eight-count indictment charging him with transmitting wagering information by telephone from Los Angeles to Miami and Boston in violation of a federal statute. [FN1] At trial the Government was permitted, over the petitioner's objection, to introduce evidence of the petitioner's end of telephone coversations, overheard by FBI agents who had attached an electronic listening and recording device to the outside of the public telephone booth from which he had placed his calls. . . . . [The petitioner phrased the following questions:] A. Whether a public telephone booth is a constitutionally protected area so that evidence obtained by attaching an electronic listening recording device to the top of such a booth is obtained in violation of the right to privacy of the user of the booth. 'B. Whether physical penetration of a constitutionally protected area is necessary before a search and seizure can be said to be violative of the Fourth Amendment to the United States Constitution.' We decline to adopt this formulation of the issues. In the first place the correct solution of Fourth Amendment problems is not necessarily promoted by incantation of the phrase 'constitutionally protected area.' Secondly, the Fourth Amendment cannot be translated into a general constitutional 'right to privacy.' That Amendment protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all. [FN4] Other provisions of the Constitution protect personal privacy from other forms of governmental invasion. [FN5] But the protection of a person's general right to privacy--his right to be let alone by other people [FN6]--is, like the protection of his property and of his very life, left largely to the law of the individual States. [FN7] . . . . .

FN4. 'The average man would very likely not have his feelings soothed any more by having his property seized openly than by having it seized privately and by stealth. * * * And a person can be just as much, if not more, irritated, annoyed and injured by an unceremonious public arrest by a policeman as he is by a seizure in the privacy of his office or home.' Griswold v. State of Connecticut, 381 U.S. 479, 509, 85 S.Ct. 1678, 1695, 14 L.Ed.2d 510 (dissenting opinion of MR. JUSTICE BLACK).

FN5. The First Amendment, for example, imposes limitations upon govermental abridgment of 'freedom to associate and privacy in one's associations.' NAACP v. State of Alabama, 357 U.S. 449, 462, 78 S.Ct. 1163, 1172, 2 L.Ed.2d 1488. The Third Amendment's prohibition against the unconsented peacetime quartering of soldiers protects another aspect of privacy from governmental intrusion. To some extent, the Fifth Amendment too 'reflects the Constitution's concern for * * * '* * * the right of each individual 'to a private enclave where he may lead a private life. "' Tehan v. United States ex rel. Shott, 382 U.S. 406, 416, 86 S.Ct. 459, 465, 15 L.Ed.2d 453. Virtually every governmental action interferes with personal privacy to some degree. The question in each case is whether that interference violates a command of the United States Constitution. FN6. See Warren & Brandeis, The Right to Privacy, 4 Harv.L.Rev. 193 (1890).

FN7. See, e.g., Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456. Cf. Breard v. City of Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233; Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513.

2004 Privacy Law Seminar Materials - Page 157 The Government stresses the fact that the telephone booth from which the petitioner made his calls was constructed partly of glass, so that he was as visible after he entered it as he would have been if he had remained outside. But what he sought to exclude when he entered the booth was not the intruding eye--it was the uninvited ear. He did not shed his right to do so simply because he made his calls from a place where he might be seen. No less than an individual in a business office, [FN10] in a friend's apartment, [FN11] or in a taxicab, [FN12] a person in a telephone booth may rely upon the protection of the Fourth Amendment. One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.

FN10. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319.

FN11. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697.

FN12. Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688.

The Government contends, however, tha the activities of its agents in this case should not be tested by Fourth Amendment requirements, for the surveillance technique they employed involved no physical penetration of the telephone booth from which the petitioner placed his calls. It is true that the absence of such penetration was at one time thought to foreclose further Fourth Amendment inquiry, Olmstead v. United States, 277 U.S. 438, 457, 464, 466, 48 S.Ct. 564, 565, 567, 568, 72 L.Ed. 944; Goldman v. United States, 316 U.S. 129, 134--136, 62 S.Ct. 993, 995--997, 86 L.Ed. 1322, for that Amendment was thought to limit only searches and seizures of tangible property. [FN13] But '(t)he premise that property interests control the right of the Government to search and seize has been discredited.' Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 304, 87 S.Ct. 1642, 1648, 18 L.Ed.2d 782. Thus, although a closely divided Court supposed in Olmstead that surveillance without any trespass and without the seizure of any material object fell outside the ambit of the Constitution, we have since departed from the narrow view on which that decision rested. Indeed, we have expressly held that the Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements overheard without any 'technical trespass under * * * local property law.' Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 682, 5 L.Ed.2d 734. Once this much is acknowledged, and once it is recognized that the Fourth Amendment protects people--and not simply 'areas'--against unreasonable searches and seizures it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure.

FN13. See Olmstead v. United States, 277 U.S. 438, 464--466, 48 S.Ct. 564, 567--569, 72 L.Ed. 944. We do not deal in this case with the law of detention or arrest under the Fourth Amendment.

We conclude that the underpinnings of Olmstead and Goldman have been so eroded by our subsequent decisions that the 'trespass' doctrine there enunciated can no longer be regarded as controlling. The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a 'search and seizure' within the meaning of the Fourth Amendment. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance. The question remaining for decision, then, is whether the search and seizure conducted in this case complied with constitutional standards. In that regard, the Government's position is that its agents acted in an entirely defensible manner: They did not begin their electronic surveillance until investigation of the petitioner's activities had established a strong probability that he was using the telephone in question to transmit gambling information to persons in other States, in violation of federal law. Moreover, the surveillance was limited, both in scope and in duration, to the specific purpose of establishing the contents of the petitioner's unlawful telephonic communications. The agents confined their surveillance to the brief periods during which he used the telephone booth, [FN14] and they took great care to overhear only the conversations of

2004 Privacy Law Seminar Materials - Page 158 the petitioner himself. [FN15]

FN14. Based upon their previous visual observations of the petitioner, the agents correctly predicted that he would use the telephone booth for several minutes at approximately the same time each morning. The petitioner was subjected to electronic surveillance only during this predetermined period. Six recordings, averaging some three minutes each, were obtained and admitted in evidence. They preserved the petitioner's end of conversations converning the placing of bets and the receipt of wagering information.

FN15. On the single occasion when the statements of another person were inadvertently intercepted, the agents refrained from listening to them.

Accepting this account of the Government's actions as acccurate, it is clear that this surveillance was so narrowly circumscribed that a duly authorized magistrate, properly notified of the need for such investigation, specifically informed of the basis on which it was to proceed, and clearly apprised of the precise intrusion it would entail, could constitutionally have authorized, with appropriate safeguards, the very limited search and seizure that the Government asserts in fact took place...... It is apparent that the agents in this case acted with restraint. Yet the inescapable fact is that this restraint was imposed by the agents themselves, not by a judicial officer. They were not required, before commencing the search, to present their estimate of probable cause for detached scrutiny by a neutral magistrate. They were not compelled, during the conduct of the search itself, to observe precise limits established in advance by a specific court order. Nor were they directed, after the search had been completed, to notify the authorizing magistrate in detail of all that had been seized. In the absence of such safeguards, this Court has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive means consistent with that end. Searches conducted without warrants have been held unlawful 'notwithstanding facts unquestionably showing probable cause,' Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 6, 70 L.Ed. 145, for the Constitution requires 'that the deliberate, impartial judgment of a judicial officer * * * be interposed between the citizen and the police * * *.' Wong Sun v. United States, 371 U.S. 471, 481--482, 83 S.Ct. 407, 414, 9 L.Ed.2d 441. 'Over and again this Court has emphasized that the mandate of the (Fourth) Amendment requires adherence to judicial processes,' United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59, and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment --subject only to a few specifically established and well-delineated exceptions...... The government agents here ignored 'the procedure of antecedent justification * * * that is central to the Fourth Amendment,' a procedure that we hold to be a constitutional precondition of the kind of electronic surveillance involved in this case. Because the surveillance here failed to meet that condition, and because it led to the petitioner's conviction, the judgment must be reversed. Mr. Justice HARLAN, concurring. I join the opinion of the Court, which I read to hold only (a) that an enclosed telephone booth is an area where, like a home, Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, and unlike a field, Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898, a person has a constitutionally protected reasonable expectation of privacy; (b) that electronic as well as physical intrusion into a place that is in this sense private may constitute a violation of the Fourth Amendment; and (c) that the invasion of a constitutionally protected area by federal authorities is, as the Court has long held, presumptively unreasonable in the absence of a search warrant. As the Court's opinion states, 'the Fourth Amendment protects people, not places.' The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a 'place.' My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable.' Thus a man's home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the 'plain view' of outsiders are not 'protected' because no intention to keep them to himself has been exhibited. On

2004 Privacy Law Seminar Materials - Page 159 the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable. Cf. Hester v. United States, supra. The critical fact in this case is that '(o)ne who occupies it, (a telephone booth) shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume' that his conversation is not being intercepted. Ante, at 511. The point is not that the booth is 'accessible to the public' at other times, ante, at 511, but that it is a temporarily private place whose momentary occupants' expectations of freedom from intrusion are recognized as reasonable. Cf. Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688. . . . I do not read the Court's opinion to declare that no interception of a conversation one- half of which occurs in a public telephone booth can be reasonable in the absence of a warrant. As elsewhere under the Fourth Amendment, warrants are the general rule, to which the legitimate needs of law enforcement may demand specific exceptios. It will be time enough to consider any such exceptions when an appropriate occasion presents itself, and I agree with the Court that this is not one. Mr. Justice WHITE, concurring. I agree that the official surveillance of petitioner's telephone conversations in a public booth must be subjected to the test of reasonableness under the Fourth Amendment and that on the record now before us the particular surveillance undertaken was unreasonable absent a warrant properly authorizing it. This application of the Fourth Amendment need not interfere with legitimate needs of law enforcement. . . . . In joining the Court's opinion, I note the Court's asknowledgment that there are circumstance in which it is reasonable to search without a warrant. In this connection, in footnote 23 the Court points out that today's decision does not reach national security cases. Wiretapping to protect the security of the Nation has been authorized by successive Presidents. The present Administration would apparently save national security cases from restrictions against wiretapping. See Berger v. State of New York, 388 U.S. 41, 112--118, 87 S.Ct. 1873, 1911--1914, 18 L.Ed.2d 1040 (1967) (White, J., dissenting). We should not require the warrant procedure and the magistrate's judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable.

2004 Privacy Law Seminar Materials - Page 160 United States v. White 401 U.S. 745, 91 S.Ct. 1122 (1971) Mr. Justice WHITE announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, Mr. Justice STEWART, and Mr. Justice BLACKMUN join. In 1966, respondent James A. White was tried and convicted under two consolidated indictments charging various illegal transactions in narcotics violative of 26 U.S.C. s 4705(a) and 21 U.S.C. s 174. He was fined and sentenced as a second offender to 25-year concurrent sentences. The issue before us is whether the Fourth Amendment bars from evidence the testimony of governmental agents who related certain conversations which had occurred between defendant White and a government informant, Harvey Jackson, and which the agents overheard by monitoring the frequency of a radio transmitter carried by Jackson and concealed on his person. [FN1] On four occasions the conversations took place in Jackson's home; each of these conversations was overheard by an agent concealed in a kitchen closet with Jackson's consent and by a second agent outside the house using a radio receiver. Four other conversations--one in respondent's home, one in a restaurant, and two in Jackson's car--were overheard by the use of radio equipment. The prosecution was unable to locate and produce Jackson at the trial and the trial court overruled objections to the testimony of the agents who conducted the electronic surveillance. The jury returned a guilty verdict and defendant appealed. . . .

FN1. White argues that Jackson, though admittedly 'cognizant' of the presence of transmitting devices on his person, did not voluntarily consent thereto. Because the court below did not reach the issue of Jackson's consent, we decline to do so. Similarly, we do not consider White's claim that the Government's actions violated state law.

I Until Katz v. United States, neither wiretapping nor electronic eavesdropping violated a defendant's Fourth Amendment rights 'unless there has been an official search and seizure of his person, or such a seizure of his papers or his tangible material effects, or an actual physical invasion of his house 'or curtilage' for the purpose of making a seizure.' Olmstead v. United States, 277 U.S. 438, 466, 48 S.Ct. 564, 568, 72 L.Ed. 944 (1928); Goldman v. United States, 316 U.S. 129, 135--136, 62 S.Ct. 993, 996--997, 86 L.Ed. 1322 (1942). But where 'eavesdropping was accomplished by means of an unauthorized physical penetration into the premises occupied' by the defendant, although falling short of a 'technical trespass under the local property law,' the Fourth Amendment was violated and any evidence of what was seen and heard, as well as tangible objects seized, was considered the inadmissible fruit of an unlawful invasion. Silverman v. United States, 365 U.S. 505, 509, 511, 81 S.Ct. 679, 681, 682, 5 L.Ed.2d 734 (1961); see also Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Berger v. New York, 388 U.S. 41, 52, 87 S.Ct. 1873, 1880, 18 L.Ed.2d 1040 (1967); Alderman v. United States, 394 U.S. 165, 177--178, 89 S.Ct. 961, 968--969, 22 L.Ed.2d 176 (1969). Katz v. United States, however, finally swept away doctrines that electronic eavesdropping is permissible under the Fourth Amendment unless physical invasion of a constitutionally protected area produced the challenged evidence. In that case government agents, without petitioner's consent or knowledge, attached a listening device to the outside of a public telephone booth and recorded the defendant's end of his telephone conversations. In declaring the recordings inadmissible in evidence in the absence of a warrant authorizing the surveillance, the Court overruled Olmstead and Goldman and held that the absence of physical intrusion into the telephone booth did not justify using electronic devices in listening to and recording Katz' words, thereby violating the privacy on which he justifiably relied while using the telephone in those circumstances. The Court of Appeals understood Katz to render inadmissible against White the agents' testimony concerning conversations that Jackson broadcast to them. We cannot agree. Katz involved no revelation to the Government by a party to conversations with the defendant nor did the Court indicate in any way that a defendant has a justifiable and constitutionally protected expectation that a person with whom he is conversing will not then or later reveal the conversation to the police. Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), which was left undisturbed by Katz, held that however strongly a defendant may trust an apparent colleague,

2004 Privacy Law Seminar Materials - Page 161 his expectations in this respect are not protected by the Fourth Amendment when it turns out that the colleague is a government agent regularly communicating with the authorities. In these circumstances, 'no interest legitimately protected by the Fourth Amendment is involved,' for that amendment affords no protection to 'a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.' Hoffa v. United States, at 302, 87 S.Ct., at 413. No warrant to 'search and seize' is required in such circumstances, nor is it when the Government sends to defendant's home a secret agent who conceals his identity and makes a purchase of narcotics from the accused, Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966), or when the same agent, unbeknown to the defendant, carries electronic equipment to record the defendant's words and the evidence so gathered is later offered in evidence. Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963). . . . Concededly a police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with the defendant and without otherwise violating the latter's Fourth Amendment rights. Hoffa v. United States, 385 U.S., at 300--303, 87 S.Ct., at 412-- 414. For constitutional purposes, no different result is required if the agent instead of immediately reporting and transcribing his conversations with defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person, Lopez v. United States, supra; (2) or carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency. On Lee v. United States, supra. If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant's constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks. Our problem is not what the privacy expectations of particular defendants in particular situations may be or the extent to which they may in fact have relied on the discretion of their companions. Very probably, individual defendants neither know nor suspect that their colleagues have gone or will go to the police or are carrying recorders or transmitters. Otherwise, conversation would cease and our problem with these encounters would be nonexistent or far different from those now before us. Our problem, in terms of the principles announced in Katz, is what expectations of privacy are constitutionally 'justifiable'--what expectations the Fourth Amendment will protect in the absence of a warrant. So far, the law permits the frustration of actual expectations of privacy by permitting authorities to use the testimony of those associates who for one reason or another have determined to turn to the police, as well as by authorizing the use of informants in the manner exemplified by Hoffa and Lewis. If the law gives no protection to the wrongdoer whose trusted accomplice is or becomes a police agent, neither should it protect him when that same agent has recorded or transmitted the conversations which are later offered in evidence to prove the State's case. See Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963). Inescapably, one contemplating illegal activities must realize and risk that his companions may be reporting to the police. If he sufficiently doubts their trustworthiness, the association will very probably end or never materialize. But if he has no doubts, or allays them, or risks what doubt he has, the risk is his. In terms of what his course will be, what he will or will not do or say, we are unpersuaded that he would distinguish between probably informers on the one hand and probable informers with transmitters on the other. Given the possibility or probability that one of his colleagues is cooperating with the police, it is only speculation to assert that the defendant's utterances would be substantially different or his sense of security any less if he also thought it possible that the suspected colleague is wired for sound. At least there is no persuasive evidence that the difference in this respect between the electronically equipped and the unequipped agent is substantial enough to require discrete constitutional recognition, particularly under the Fourth Amendment which is ruled by fluid concepts of 'reasonableness.' Nor should we be too ready to erect constitutional barriers to relevant and probative evidence which is also accurate and reliable. An electronic recording will many times produce a more reliable rendition of what a defendant has said than will the unaided memory of a police agent. It may also be that with the recording in existence it is less likely that the informant will change his mind, less chance that threat or injury will suppress unfavorable evidence and less chance that cross-examination will confound the testimony. Considerations like these obviously

2004 Privacy Law Seminar Materials - Page 162 do not favor the defendant, but we are not prepared to hold that a defendant who has no constitutional right to exclude the informer's unaided testimony nevertheless has a Fourth Amendment privilege against a more accurate version of the events in question. It is thus untenable to consider the activities and reports of the police agent himself, though acting without a warrant, to be a 'reasonable' investigative effort and lawful under the Fourth Amendment but to view the same agent with a recorder or transmitter as conducting an 'unreasonable' and unconstitutional search and seizure. Our opinion is currently shared by Congress and the Executive Branch, Title III, Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 212, 18 U.S.C. s 2510 et seq. (1964 ed., Supp. V), and the American Bar Association. Project on Standards for Criminal Justice, Electronic Surveillance s 4.1 (Approved Draft 1971). It is also the result reached by prior cases in this Court. On Lee, supra; Lopez v. United States, supra. No different result should obtain where, is in On Lee and the instant case, the informer disappears and is unavailable at trial; for the issue of whether specified events on a certain day violate the Fourth Amendment should not be determined by what later happens to the informer. His unavailability at trial and proffering the testimony of other agents may raise evidentiary problems or pose issues of prosecutorial misconduct with respect to the informer's disappearance, but they do not appear critical to deciding whether prior events invaded the defendant's Fourth Amendment rights. II . . . . In Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969), we held that our decision in Katz v. United States applied only to those electronic surveillances that occurred subsequent to the date of that decision. Here the events in question took place in late 1965 and early 1966, long prior to Katz. We adhere to the rationale of Desist, see Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388. It was error for the Court of Appeals to dispose of this case based on its understanding of the principles announced in the Katz case. The court should have judged this case by the pre-Katz law and under that law, as On Lee clearly holds, the electronic surveillance here involved did not violate White's rights to be free from unreasonable searches and seizures. The judgment of the Court of Appeals is reversed. Mr. Justice BLACK, while adhering to his views expressed in Linkletter v. Walker, 381 U.S. 618, 640, 85 S.Ct. 1731, 1743, 14 L.Ed.2d 601 (1965), concurs in the judgment of the Court for the reasons set forth in his dissent in Katz v. United States, 389 U.S. 347, 364, 88 S.Ct. 507, 518, 19 L.Ed.2d 576 (1967). Mr. Justice BRENNAN, concurring in the result. [Omitted.] Mr. Justice DOUGLAS, dissenting. I The issue in this case is clouded and concealed by the very discussion of it in legalistic terms. What the ancients knew as 'eavesdropping,' we now call 'electronic surveillance'; but to equate the two is to treat man's first gunpowder on the same level as the nuclear bomb. Electronic surveillance is the greatest leveler of human privacy ever known. How most forms of it can be held 'reasonable' within the meaning of the Fourth Amendment is a mystery. To be sure, the Constitution and Bill of Rights are not to be read as covering only the technology known in the 18th century. Otherwise its concept of 'commerce' would be hopeless when it comes to the management of modern affairs. At the same time the concepts of privacy which the Founders enshrined in the Fourth Amendment vanish completely when we slavishly allow an all- powerful government, proclaiming law and order, efficiency, and other benign purposes, to penetrate all the walls and doors which men need to shield them from the pressures of a turbulent life around them and give them the health and strength to carry on. That is why a 'strict construction' of the Fourth Amendment is necessary if every man's liberty and privacy are to be constitutionally honored. When Franklin D. Roosevelt on May 21, 1940, authorized wiretapping in cases of 'fifth column' activities and sabotage and limited it 'insofar as possible to aliens,' he said that 'under ordinary and normal circumstances wire-tapping by Government agents should not be carried on

2004 Privacy Law Seminar Materials - Page 163 for the excellent reason that it is almost bound to lead to abuse of civil rights.' See Appendix I to this dissent. Yet as Judge Ferguson said in United States v. Smith, D.C., 321 F.Supp. 424, 429: '(T)he government seems to approach these dissident domestic organizations in the same fashion as it deals with unfriendly foreign powers. The government cannot act in this manner when only domestic political organizations are involved, even if those organizations espouse views which are inconsistent with our present form of government. To do so is to ride roughshod over numerous political freedoms which have long received constitutional protection. The government can, of course, investigate and prosecute criminal violations whenever these organizations, or rather their individual members, step over the line of political theory and general advocacy and commit illegal acts.' Today no one perhaps notices because only a small, obscure criminal is the victim. But every person is the victim, for the technology we exalt today is everyman's master. . . . II We held in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040, that wiretapping is a search and seizure within the meaning of the Fourth Amendment and therefore must meet its requirements, viz., there must be a prior showing of probable cause, the warrant authorizing the wiretap must particularly describe 'the place to be searched, and the persons or things to be seized,' and that it may not have the breadth, generality, and long life of the general warrant against which the Fourth Amendment was aimed. In Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, we held that an electronic device, used without trespass onto any given enclosure (there a telephone booth), was a search for which a Fourth Amendment warrant was needed. Mr. Justice Stewart, speaking for the Court, said: 'Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures.' Id., at 359, 88 S.Ct., at 515. . . . The threads of thought running through our recent decisions are that these extensive intrusions into privacy made by electronic surveillance make self-restraint by law enforcement officials an inadequate protection, that the requirement of warrants under the Fourth Amendment is essential to a free society. Monitoring, if prevalent, certainly kills free discourse and spontaneous utterances. Free discourse--a First Amendment value--may be frivolous or serious, humble or defiant, reactionary or revolutionary, profane or in good taste; but it is not free if there is surveillance. Free discourse liberates the spirit, though it may produce only froth. The individual must keep some facts concerning his thoughts within a small zone of people. At the same time he must be free to pour out his woes or inspirations or dreams to others. He remains the sole judge as to what must be said and what must remain unspoken. This is the essence of the idea of privacy implicit in the First and Fifth Amendments as well as in the Fourth. Mr. Justice HARLAN, dissenting. . . . . We deal here with the constitutional validity of instantaneous third-party electronic eavesdropping, conducted by federal law enforcement officers, without any prior judicial approval of the technique utilized, but with the consent and cooperation of a participant in the conversation, and where the substance of the matter electronically overheard is related in a federal criminal trial by those who eavesdropped as direct, not merely corroborative, evidence of the guilt of the nonconsenting party. The magnitude of the issue at hand is evidenced not simply by the obvious doctrinal difficulty of weighing such activity in the Fourth Amendment balance, but also, and more importantly, by the prevalence of police utilization of this technique. Professor Westin has documented in careful detail the numerous devices that make technologically feasible the Orwellian Big Brother. Of immediate relevance is his observation that "participant recording,' in which one participant in a conversation or meeting, either a police officer or a co-operating party, wears a concealed device that records the conversation or broadcasts it to others nearby * * * is used tens of thousands of times each year throughout the country, particularly in cases involving extortion, conspiracy, narcotics, gambling, prostitution, corruption by police officials * * * and similar crimes.' Finally, given the importance of electronic eavesdropping as a technique for coping with the more deep-seated kinds of criminal activity, and the complexities that are encountered in striking a workable constitutional balance between the public and private interests at stake, I believe that the courts should proceed with specially measured steps in this field. More

2004 Privacy Law Seminar Materials - Page 164 particularly, I think this Court should not foreclose itself from reconsidering doctrines that would prevent the States from seeking, independently of the niceties of federal restrictions as they may develop, solutions to such vexing problems, . . . Especially when other recent Fourth Amendment decisions, not otherwise so immediately relevant, are read with those already discussed, the primacy of an additional general principle becomes equally evident: official investigatory action that impinges on privacy must typically, in order to be constitutionally permissible, be subjected to the warrant requirement. . . . B The impact of the practice of third-party bugging, must, I think, be considered such as to undermine that confidence and sense of security in dealing with one another that is characteristic of individual relationships between citizens in a free society. It goes beyond the impact on privacy occasioned by the ordinary type of 'informer' investigation upheld in Lewis and Hoffa. The argument of the plurality opinion, to the effect that it is irrelevant whether secrets are revealed by the mere tattletale or the transistor, ignores the differences occasioned by third-party monitoring and recording which insures full and accurate disclosure of all that is said, free of the possibility of error and oversight that inheres in human reporting. Authority is hardly required to support the proposition that words would be measured a good deal more carefully and communication inhibited if one suspected his conversations were being transmitted and transcribed. Were third-party bugging a prevalent practice, it might well smother that spontaneity--reflected in frivolous, impetuous, sacrilegious, and defiant discourse-- that liberates daily life. Much offhand exchange is easily forgotten and one may count on the obscurity of his remarks, protected by the very fact of a limited audience, and the likelihood that the listener will either overlook or forget what is said, as well as the listener's inability to reformulate a conversation without having to contend with a documented record. All these values are sacrificed by a rule of law that permits official monitoring of private discourse limited only by the need to locate a willing assistant. It matters little that consensual transmittals are less obnoxious than wholly clandestine eavesdrops. This was put forward as justification for the conduct in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), where the Government relied on mitigating aspects of the conduct in question. The Court, speaking through Mr. Justice Bradley, declined to countenance literalism: 'Though the proceeding in question is divested of many of the aggravating incidents of actual search and seizure, yet, as before said, it contains their substance and essence, and effects their substantial purpose. It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure.' 116 U.S. 616, at 635, 6 S.Ct. 524, at 535, 29 L.Ed. 746. Finally, it is too easy to forget--and, hence, too often forgotten--that the issue here is whether to interpose a search warrant procedure between law enforcement agencies engaging in electronic eavesdropping and the public generally. By casting its 'risk analysis' solely in terms of the expectations and risks that 'wrongdoers' or 'one contemplating illegal activities' ought to bear, the plurality opinion, I think, misses the mark entirely. . . . . The Fourth Amendment does, of course, leave room for the employment of modern technology in criminal law enforcement, but in the stream of current developments in Fourth Amendment law I think it must be held that third-party electronic monitoring, subject only to the self-restraint of law enforcement officials, has no place in our society. . . . The Fourth Amendment protects these traditions, and places limitations on the means and circumstances by which the Government may collect information about its citizens by intruding into their personal lives. The spirit of the principle is captured by the oft-quoted language of Boyd v. United States, 116 U.S., at 630, 6 S.Ct., at 532: 'The principles laid down in this opinion (speaking of Entick v. Carrington, 19 How.St. Tr. 1029 (1765)) affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case then before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employes of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security. * * *'

2004 Privacy Law Seminar Materials - Page 165 What this means is that the burden of guarding privacy in a free society should not be on its citizens; it is the Government that must justify its need to electronically eavesdrop. Mr. Justice MARSHALL, dissenting. I am convinced that the correct view of the Fourth Amendment in the area of electronic surveillance is one that brings the safeguards of the warrant requirement to bear on the investigatory activity involved in this case. In this regard I agree with the dissents of Mr. Justice DOUGLAS and Mr. Justice HARLAN. . .

2004 Privacy Law Seminar Materials - Page 166 Minnesota v. Carter 525 U.S. 83, 119 S.Ct. 469 (1998) Chief Justice REHNQUIST delivered the opinion of the Court. Respondents and the lessee of an apartment were sitting in one of its rooms, bagging cocaine. While so engaged they were observed by a police officer, who looked through a drawn window blind. The Supreme Court of Minnesota held that the officer's viewing was a search that violated respondents' Fourth Amendment rights. We hold that no such violation occurred. James Thielen, a police officer in the Twin Cities' suburb of Eagan, Minnesota, went to an apartment building to investigate a tip from a confidential informant. The informant said that he had walked by the window of a ground-floor apartment and had seen people putting a white powder into bags. The officer looked in the same window through a gap in the closed blind and observed the bagging operation for several minutes. He then notified headquarters, which began preparing affidavits for a search warrant while he returned to the apartment building. When two men left the building in a previously identified Cadillac, the police stopped the car. Inside were respondents Carter and Johns. As the police opened the door of the car to let Johns out, they observed a black, zippered pouch and a handgun, later determined to be loaded, on the vehicle's floor. Carter and Johns were arrested, and a later police search of the vehicle the next day discovered pagers, a scale, and 47 grams of cocaine in plastic sandwich bags. After seizing the car, the police returned to Apartment 103 and arrested the occupant, Kimberly Thompson, who is not a party to this appeal. A search of the apartment pursuant to a warrant revealed cocaine residue on the kitchen table and plastic baggies similar to those found in the Cadillac. Thielen identified Carter, Johns, and Thompson as the three people he had observed placing the powder into baggies. The police later learned that while Thompson was the lessee of the apartment, Carter and Johns lived in Chicago and had come to the apartment for the sole purpose of packaging the cocaine. Carter and Johns had never been to the apartment before and were only in the apartment for approximately 2 1/2 hours. In return for the use of the apartment, Carter and Johns had given Thompson one-eighth of an ounce of the cocaine. Carter and Johns were charged with conspiracy to commit a controlled substance crime in the first degree and aiding and abetting in a controlled substance crime in the first degree, in violation of Minn.Stat. §§ 152.021, subds. 1(1), 3(a), 609.05 (1996). They moved to suppress all evidence obtained from the apartment and the Cadillac, as well as to suppress several postarrest incriminating statements they had made. They argued that Thielen's initial observation of their drug packaging activities was an unreasonable search in violation of the Fourth Amendment and that all evidence obtained as a result of this unreasonable search was inadmissible as fruit of the poisonous tree. The Minnesota trial court held that since, unlike the defendant in Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990), Carter and Johns were not overnight social guests but temporary out-of-state visitors, they were not entitled to claim the protection of the Fourth Amendment against the government intrusion into the apartment. The trial court also concluded that Thielen's observation was not a search within the meaning of the Fourth Amendment. After a trial, Carter and Johns were each convicted of both offenses.. . . . The Fourth Amendment guarantees: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The Amendment protects persons against unreasonable searches of "their persons [and] houses" and thus indicates that the Fourth Amendment is a personal right that must be invoked by an individual. See Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ("[T]he Fourth Amendment protects people, not places"). But the extent to which the Fourth Amendment protects people may depend upon where those people are. We have held that "capacity to claim the protection of the Fourth Amendment depends ... upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place." Rakas, supra, at 143, 99 S.Ct. 421. See also Rawlings v. Kentucky, 448 U.S. 98, 106, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980). The text of the Amendment suggests that its protections extend only to people in "their" houses. But we have held that in some circumstances a person may have a legitimate expectation of privacy in the house of someone else. In Minnesota v. Olson, 495 U.S. 91, 110

2004 Privacy Law Seminar Materials - Page 167 S.Ct. 1684, 109 L.Ed.2d 85 (1990), for example, we decided that an overnight guest in a house had the sort of expectation of privacy that the Fourth Amendment protects. We said: "To hold that an overnight guest has a legitimate expectation of privacy in his host's home merely recognizes the every day expectations of privacy that we all share. Staying overnight in another's home is a longstanding social custom that serves functions recognized as valuable by society. We stay in others' homes when we travel to a strange city for business or pleasure, when we visit our parents, children, or more distant relatives out of town, when we are in between jobs or homes, or when we house-sit for a friend .... "From the overnight guest's perspective, he seeks shelter in another's home precisely because it provides him with privacy, a place where he and his possessions will not be disturbed by anyone but his host and those his host allows inside. We are at our most vulnerable when we are asleep because we cannot monitor our own safety or the security of our belongings. It is for this reason that, although we may spend all day in public places, when we cannot sleep in our own home we seek out another private place to sleep, whether it be a hotel room, or the home of a friend." Id., at 98-99, 110 S.Ct. 1684. In Jones v. United States, 362 U.S. 257, 259, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), the defendant seeking to exclude evidence resulting from a search of an apartment had been given the use of the apartment by a friend. He had clothing in the apartment, had slept there " 'maybe a night,' " and at the time was the sole occupant of the apartment. But while the holding of Jones-- that a search of the apartment violated the defendant's Fourth Amendment rights--is still valid, its statement that "anyone legitimately on the premises where a search occurs may challenge its legality," id., at 267, 80 S.Ct. 725, was expressly repudiated in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Thus, an overnight guest in a home may claim the protection of the Fourth Amendment, but one who is merely present with the consent of the householder may not. Respondents here were obviously not overnight guests, but were essentially present for a business transaction and were only in the home a matter of hours. There is no suggestion that they had a previous relationship with Thompson, or that there was any other purpose to their visit. Nor was there anything similar to the overnight guest relationship in Olson to suggest a degree of acceptance into the household. [FN*] While the apartment was a dwelling place for Thompson, it was for these respondents simply a place to do business.

FN* Justice GINSBURG's dissent, post, at 481, would render the operative language in Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990), almost entirely superfluous. There, we explained the justification for extending Fourth Amendment protection to the overnight visitor: "Staying overnight in another's home is a long- standing social custom that serves functions recognized as valuable by society. ... We are at our most vulnerable when we are asleep because we cannot monitor our own safety or the security of our belongings." Id., at 98-99, 110 S.Ct. 1684. If any short-term business visit by a stranger entitles the visitor to share the Fourth Amendment protection of the leaseholder's home, the Court's explanation of its holding in Olson was quite unnecessary.

Property used for commercial purposes is treated differently for Fourth Amendment purposes from residential property. "An expectation of privacy in commercial premises, however, is different from, and indeed less than, a similar expectation in an individual's home." New York v. Burger, 482 U.S. 691, 700, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987). And while it was a "home" in which respondents were present, it was not their home. Similarly, the Court has held that in some circumstances a worker can claim Fourth Amendment protection over his own workplace. See, e.g., O'Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987). But there is no indication that respondents in this case had nearly as significant a connection to Thompson's apartment as the worker in O'Connor had to his own private office. See id., at 716-717, 107 S.Ct. 1492. If we regard the overnight guest in Minnesota v. Olson as typifying those who may claim the protection of the Fourth Amendment in the home of another, and one merely "legitimately on the premises" as typifying those who may not do so, the present case is obviously somewhere in between. But the purely commercial nature of the transaction engaged in here, the relatively short period of time on the premises, and the lack of any previous connection between respondents and the householder, all lead us to conclude that respondents' situation is closer to that of one simply permitted on the premises. We therefore hold that any search which may have occurred did not violate their Fourth Amendment rights. Because we conclude that respondents had no legitimate expectation of privacy in the

2004 Privacy Law Seminar Materials - Page 168 apartment, we need not decide whether the police officer's observation constituted a "search." The judgments of the Supreme Court of Minnesota are accordingly reversed, and the cause is remanded for proceedings not inconsistent with this opinion. It is so ordered. Justice SCALIA, with whom Justice THOMAS joins, concurring. . . . . I write separately to express my view that that case law--like the submissions of the parties in this case--gives short shrift to the text of the Fourth Amendment, and to the well and long understood meaning of that text. Specifically, it leaps to apply the fuzzy standard of "legitimate expectation of privacy"--a consideration that is often relevant to whether a search or seizure covered by the Fourth Amendment is "unreasonable"--to the threshold question whether a search or seizure covered by the Fourth Amendment has occurred. If that latter question is addressed first and analyzed under the text of the Constitution as traditionally understood, the present case is not remotely difficult. The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ...." U.S. Const., Amdt. 4 (emphasis added). It must be acknowledged that the phrase "their ... houses" in this provision is, in isolation, ambiguous. It could mean "their respective houses," so that the protection extends to each person only in his own house. But it could also mean "their respective and each other's houses," so that each person would be protected even when visiting the house of someone else. As today's opinion for the Court suggests, however, ante, at 473, it is not linguistically possible to give the provision the latter, expansive interpretation with respect to "houses" without giving it the same interpretation with respect to the nouns that are parallel to "houses"--"persons, ...papers, and effects"-- which would give me a constitutional right not to have your person unreasonably searched. This is so absurd that it has to my knowledge never been contemplated. The obvious meaning of the provision is that each person has the right to be secure against unreasonable searches and seizures in his own person, house, papers, and effects. The founding-era materials that I have examined confirm that this was the understood meaning. . . . . In my view, the only thing the past three decades have established about the Katz test (which has come to mean the test enunciated by Justice Harlan's separate concurrence in Katz, see id., at 360, 88 S.Ct. 507) is that, unsurprisingly, those "actual (subjective) expectation[s] of privacy" "that society is prepared to recognize as 'reasonable,' " id., at 361, 88 S.Ct. 507, bear an uncanny resemblance to those expectations of privacy that this Court considers reasonable. When that self-indulgent test is employed (as the dissent would employ it here) to determine whether a "search or seizure" within the meaning of the Constitution has occurred (as opposed to whether that "search or seizure" is an "unreasonable" one), it has no plausible foundation in the text of the Fourth Amendment. That provision did not guarantee some generalized "right of privacy" and leave it to this Court to determine which particular manifestations of the value of privacy "society is prepared to recognize as 'reasonable.' " Ibid. Rather, it enumerated ("persons, houses, papers, and effects") the objects of privacy protection to which the Constitution would extend, leaving further expansion to the good judgment, not of this Court, but of the people through their representatives in the legislature. The dissent may be correct that a person invited into someone else's house to engage in a common business (even common monkey business, so to speak) ought to be protected against government searches of the room in which that business is conducted; and that persons invited in to deliver milk or pizza (whom the dissent dismisses as "classroom hypotheticals," post, at 482, as opposed, presumably, to flesh-and-blood hypotheticals) ought not to be protected against government searches of the rooms that they occupy. I am not sure of the answer to those policy questions. But I am sure that the answer is not remotely contained in the Constitution, which means that it is left--as many, indeed most, important questions are left--to the judgment of state and federal legislators. We go beyond our proper role as judges in a democratic society when we restrict the people's power to govern themselves over the full range of policy choices that the Constitution has left available to them. Justice KENNEDY, concurring. I join the Court's opinion, for its reasoning is consistent with my view that almost all

2004 Privacy Law Seminar Materials - Page 169 social guests have a legitimate expectation of privacy, and hence protection against unreasonable searches, in their host's home. The Fourth Amendment protects "[t]he right of the people to be secure in their ... houses," and it is beyond dispute that the home is entitled to special protection as the center of the private lives of our people. Security of the home must be guarded by the law in a world where privacy is diminished by enhanced surveillance and sophisticated communication systems. As is well established, however, Fourth Amendment protection, though dependent upon spatial definition, is in essence a personal right. Thus, as the Court held in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), there are limits on who may assert it...... Justice BREYER, concurring in the judgment. I agree with Justice GINSBURG that respondents can claim the Fourth Amendment's protection. . . . Justice GINSBURG, with whom Justice STEVENS and Justice SOUTER join, dissenting. The Court's decision undermines not only the security of short-term guests, but also the security of the home resident herself. In my view, when a homeowner or lessee personally invites a guest into her home to share in a common endeavor, whether it be for conversation, to engage in leisure activities, or for business purposes licit or illicit, that guest should share his host's shelter against unreasonable searches and seizures. Our leading decision in Katz is key to my view of this case. There, we ruled that the Government violated the petitioner's Fourth Amendment rights when it electronically recorded him transmitting wagering information while he was inside a public telephone booth. 389 U.S., at 353, 88 S.Ct. 507. We were mindful that "the Fourth Amendment protects people, not places," id., at 351, 88 S.Ct. 507, and held that this electronic monitoring of a business call "violated the privacy upon which [the caller] justifiably relied while using the telephone booth," id., at 353, 88 S.Ct. 507. Our obligation to produce coherent results in this often visited area of the law requires us to inform our current expositions by benchmarks already established. As Justice Harlan explained in his dissent in Poe v. Ullman, 367 U.S. 497, 544, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961): "Each new claim to Constitutional protection must be considered against a background of Constitutional purposes, as they have been rationally perceived and historically developed. Though we exercise limited and sharply restrained judgment, yet there is no 'mechanical yardstick,' no 'mechanical answer.' The decision of an apparently novel claim must depend on grounds which follow closely on well-accepted principles and criteria. The new decision must take 'its place in relation to what went before and further [cut] a channel for what is to come.' " Ibid. (quoting Irvine v. California, 347 U.S. 128, 147, 74 S.Ct. 381, 98 L.Ed. 561 (1954) (Frankfurter, J., dissenting)). The Court's decision in this case veers sharply from the path marked in Katz. I do not agree that we have a more reasonable expectation of privacy when we place a business call to a person's home from a public telephone booth on the side of the street, see Katz, 389 U.S., at 353, 88 S.Ct. 507, than when we actually enter that person's premises to engage in a common endeavor.

2004 Privacy Law Seminar Materials - Page 170 2004 Privacy Law Seminar Materials - Page 171 Bond v. United States 529 U.S. 334, 120 S.Ct. 1462 (2000) Chief Justice REHNQUIST delivered the opinion of the Court. This case presents the question whether a law enforcement officer's physical manipulation of a bus passenger's carry-on luggage violated the Fourth Amendment's proscription against unreasonable searches. We hold that it did. Petitioner Steven Dewayne Bond was a passenger on a Greyhound bus that left California bound for Little Rock, Arkansas. The bus stopped, as it was required to do, at the permanent Border Patrol checkpoint in Sierra Blanca, Texas. Border Patrol Agent Cesar Cantu boarded the bus to check the immigration status of its passengers. After reaching the back of the bus, having satisfied himself that the passengers were lawfully in the United States, Agent Cantu began walking toward the front. Along the way, he squeezed the soft luggage which passengers had placed in the overhead storage space above the seats. Petitioner was seated four or five rows from the back of the bus. As Agent Cantu inspected the luggage in the compartment above petitioner's seat, he squeezed a green canvas bag and noticed that it contained a "brick-like" object. Petitioner admitted that the bag was his and agreed to allow Agent Cantu to open it. [FN1] Upon opening the bag, Agent Cantu discovered a "brick" of methamphetamine. The brick had been wrapped in duct tape until it was oval-shaped and then rolled in a pair of pants.

FN1. The Government has not argued here that petitioner's consent to Agent Cantu's opening the bag is a basis for admitting the evidence.

Petitioner was indicted for conspiracy to possess, and possession with intent to distribute, methamphetamine in violation of 84 Stat. 1260, 21 U.S.C. § 841(a)(1). He moved to suppress the drugs, arguing that Agent Cantu conducted an illegal search of his bag. Petitioner's motion was denied, and the District Court found him guilty on both counts and sentenced him to 57 months in prison. On appeal, he conceded that other passengers had access to his bag, but contended that Agent Cantu manipulated the bag in a way that other passengers would not. The Court of Appeals rejected this argument, . . . holding that Agent Cantu's manipulation of the bag was not a search within the meaning of the Fourth Amendment. 167 F.3d, at 227. We granted certiorari, 528 U.S. 927, 120 S.Ct. 320, 145 L.Ed.2d 250 (1999), and now reverse. The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." A traveler's personal luggage is clearly an "effect" protected by the Amendment. See United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). Indeed, it is undisputed here that petitioner possessed a privacy interest in his bag. But the Government asserts that by exposing his bag to the public, petitioner lost a reasonable expectation that his bag would not be physically manipulated. The Government relies on our decisions in California v. Ciraolo, supra, and Florida v. Riley, 488 U.S. 445, 109 S.Ct. 693, 102 L.Ed.2d 835 (1989), for the proposition that matters open to public observation are not protected by the Fourth Amendment. In Ciraolo, we held that police observation of a backyard from a plane flying at an altitude of 1,000 feet did not violate a reasonable expectation of privacy. Similarly, in Riley, we relied on Ciraolo to hold that police observation of a greenhouse in a home's curtilage from a helicopter passing at an altitude of 400 feet did not violate the Fourth Amendment. We reasoned that the property was "not necessarily protected from inspection that involves no physical invasion," and determined that because any member of the public could have lawfully observed the defendants' property by flying overhead, the defendants' expectation of privacy was "not reasonable and not one 'that society is prepared to honor.' " See Riley, supra, at 449, 109 S.Ct. 693 (explaining and relying on Ciraolo's reasoning). But Ciraolo and Riley are different from this case because they involved only visual, as opposed to tactile, observation. Physically invasive inspection is simply more intrusive than purely visual inspection. For example, in Terry v. Ohio, 392 U.S. 1, 16-17, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), we stated that a "careful [tactile] exploration of the outer surfaces of a person's clothing all over his or her body" is a "serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly." Although Agent Cantu did not "frisk" petitioner's person, he did conduct a probing

2004 Privacy Law Seminar Materials - Page 172 tactile examination of petitioner's carry-on luggage. Obviously, petitioner's bag was not part of his person. But travelers are particularly concerned about their carry-on luggage; they generally use it to transport personal items that, for whatever reason, they prefer to keep close at hand. Here, petitioner concedes that, by placing his bag in the overhead compartment, he could expect that it would be exposed to certain kinds of touching and handling. But petitioner argues that Agent Cantu's physical manipulation of his luggage "far exceeded the casual contact [petitioner] could have expected from other passengers." Brief for Petitioner 18-19. The Government counters that it did not. Our Fourth Amendment analysis embraces two questions. First, we ask whether the individual, by his conduct, has exhibited an actual expectation of privacy; that is, whether he has shown that "he [sought] to preserve [something] as private." Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (internal quotation marks omitted). Here, petitioner sought to preserve privacy by using an opaque bag and placing that bag directly above his seat. Second, we inquire whether the individual's expectation of privacy is "one that society is prepared to recognize as reasonable." Ibid. (internal quotation marks omitted). When a bus passenger places a bag in an overhead bin, he expects that other passengers or bus employees may move it for one reason or another. Thus, a bus passenger clearly expects that his bag may be handled. He does not expect that other passengers or bus employees will, as a matter of course, feel the bag in an exploratory manner. But this is exactly what the agent did here. We therefore hold that the agent's physical manipulation of petitioner's bag violated the Fourth Amendment. The judgment of the Court of Appeals is reversed. Justice BREYER, with whom Justice SCALIA joins, dissenting. Does a traveler who places a soft-sided bag in the shared overhead storage compartment of a bus have a "reasonable expectation" that strangers will not push, pull, prod, squeeze, or otherwise manipulate his luggage? Unlike the majority, I believe that he does not. . . . How does the "squeezing" just described differ from the treatment that overhead luggage is likely to receive from strangers in a world of travel that is somewhat less gentle than it used to be? I think not at all. Nor can I accept the majority's effort to distinguish "tactile" from "visual" interventions, see ante, at 1464, even assuming that distinction matters here. Whether tactile manipulation (say, of the exterior of luggage) is more intrusive or less intrusive than visual observation (say, through a lighted window) necessarily depends on the particular circumstances. If we are to depart from established legal principles, we should not begin here. At best, this decision will lead to a constitutional jurisprudence of "squeezes," thereby complicating further already complex Fourth Amendment law, increasing the difficulty of deciding ordinary criminal matters, and hindering the administrative guidance (with its potential for control of unreasonable police practices) that a less complicated jurisprudence might provide. Cf. Whren, supra, at 815, 116 S.Ct. 1769 (warning against the creation of trivial Fourth Amendment distinctions). At worst, this case will deter law enforcement officers searching for drugs near borders from using even the most nonintrusive touch to help investigate publicly exposed bags. At the same time, the ubiquity of non-governmental pushes, prods, and squeezes (delivered by driver, attendant, passenger, or some other stranger) means that this decision cannot do much to protect true privacy. Rather, the traveler who wants to place a bag in a shared overhead bin and yet safeguard its contents from public touch should plan to pack those contents in a suitcase with hard sides, irrespective of the Court's decision today. For these reasons, I dissent.

2004 Privacy Law Seminar Materials - Page 173 Kyllo v. United States 533 U.S. 27, 121 S.Ct. 2038 (2001) Justice SCALIA delivered the opinion of the Court. This case presents the question whether the use of a thermal-imaging device aimed at a private home from a public street to detect relative amounts of heat within the home constitutes a "search" within the meaning of the Fourth Amendment. I In 1991 Agent William Elliott of the United States Department of the Interior came to suspect that marijuana was being grown in the home belonging to petitioner Danny Kyllo, part of a triplex on Rhododendron Drive in Florence, Oregon. Indoor marijuana growth typically requires high-intensity lamps. In order to determine whether an amount of heat was emanating from petitioner's home consistent with the use of such lamps, at 3:20 a.m. on January 16, 1992, Agent Elliott and Dan Haas used an Agema Thermovision 210 thermal imager to scan the triplex. Thermal imagers detect infrared radiation, which virtually all objects emit but which is not visible to the naked eye. The imager converts radiation into images based on relative warmth-- black is cool, white is hot, shades of gray connote relative differences; in that respect, it operates somewhat like a video camera showing heat images. The scan of Kyllo's home took only a few minutes and was performed from the passenger seat of Agent Elliott's vehicle across the street from the front of the house and also from the street in back of the house. The scan showed that the roof over the garage and a side wall of petitioner's home were relatively hot compared to the rest of the home and substantially warmer than neighboring homes in the triplex. Agent Elliott concluded that petitioner was using halide lights to grow marijuana in his house, which indeed he was. Based on tips from informants, utility bills, and the thermal imaging, a Federal Magistrate Judge issued a warrant authorizing a search of petitioner's home, and the agents found an indoor growing operation involving more than 100 plants. Petitioner was indicted on one count of manufacturing marijuana, in violation of 21 U.S.C. § 841(a)(1). He unsuccessfully moved to suppress the evidence seized from his home and then entered a conditional guilty plea. The Court of Appeals for the Ninth Circuit remanded the case for an evidentiary hearing regarding the intrusiveness of thermal imaging. On remand the District Court found that the Agema 210 "is a non-intrusive device which emits no rays or beams and shows a crude visual image of the heat being radiated from the outside of the house"; it "did not show any people or activity within the walls of the structure"; "[t]he device used cannot penetrate walls or windows to reveal conversations or human activities"; and "[n]o intimate details of the home were observed." Supp.App. to Pet. for Cert. 39-40. Based on these findings, the District Court upheld the validity of the warrant that relied in part upon the thermal imaging, and reaffirmed its denial of the motion to suppress. A divided Court of Appeals initially reversed, 140 F.3d 1249 (1998), but that opinion was withdrawn and the panel (after a change in composition) affirmed, 190 F.3d 1041 (1999), with Judge Noonan dissenting. The court held that petitioner had shown no subjective expectation of privacy because he had made no attempt to conceal the heat escaping from his home, id., at 1046, and even if he had, there was no objectively reasonable expectation of privacy because the imager "did not expose any intimate details of Kyllo's life," only "amorphous 'hot spots' on the roof and exterior wall," id., at 1047. We granted certiorari. 530 U.S. 1305, 121 S.Ct. 29, 147 L.Ed.2d 1052 (2000). II [1] The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." "At 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." Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961). With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no. See Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990); Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). On the other hand, the antecedent question whether or not a Fourth Amendment "search" has occurred is not so simple under our precedent. The permissibility of ordinary visual surveillance of a home used to be clear because, well into the 20th century, our Fourth

2004 Privacy Law Seminar Materials - Page 174 Amendment jurisprudence was tied to common-law trespass. . . . Visual surveillance was unquestionably lawful because " 'the eye cannot by the laws of England be guilty of a trespass.' " Boyd v. United States, 116 U.S. 616, 628, 6 S.Ct. 524, 29 L.Ed. 746 (1886) (quoting Entick v. Carrington, 19 How. St. Tr. 1029, 95 Eng. Rep. 807 (K.B.1765)). We have since decoupled violation of a person's Fourth Amendment rights from trespassory violation of his property, see Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), but the lawfulness of warrantless visual surveillance of a home has still been preserved. As we observed in California v. Ciraolo, 476 U.S. 207, 213, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986), "[t]he Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares." One might think that the new validating rationale would be that examining the portion of a house that is in plain public view, while it is a "search" [FN1] despite the absence of trespass, is not an "unreasonable" one under the Fourth Amendment. See Minnesota v. Carter, 525 U.S. 83, 104, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (BREYER, J., concurring in judgment). But in fact we have held that visual observation is no "search" at all--perhaps in order to preserve somewhat more intact our doctrine that warrantless searches are presumptively unconstitutional. See Dow Chemical Co. v. United States, 476 U.S. 227, 234-235, 239, 106 S.Ct. 1819, 90 L.Ed.2d 226 (1986). In assessing when a search is not a search, we have applied somewhat in reverse the principle first enunciated in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Katz involved eavesdropping by means of an electronic listening device placed on the outside of a telephone booth--a location not within the catalog ("persons, houses, papers, and effects") that the Fourth Amendment protects against unreasonable searches. We held that the Fourth Amendment nonetheless protected Katz from the warrantless eavesdropping because he "justifiably relied" upon the privacy of the telephone booth. Id., at 353, 88 S.Ct. 507. As Justice Harlan's oft-quoted concurrence described it, a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable. See id., at 361, 88 S.Ct. 507. We have subsequently applied this principle to hold that a Fourth Amendment search does not occur--even when the explicitly protected location of a house is concerned--unless "the individual manifested a subjective expectation of privacy in the object of the challenged search," and "society [is] willing to recognize that expectation as reasonable." Ciraolo, supra, at 211, 106 S.Ct. 1809. We have applied this test in holding that it is not a search for the police to use a pen register at the phone company to determine what numbers were dialed in a private home, Smith v. Maryland, 442 U.S. 735, 743-744, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), and we have applied the test on two different occasions in holding that aerial surveillance of private homes and surrounding areas does not constitute a search, Ciraolo, supra; Florida v. Riley, 488 U.S. 445, 109 S.Ct. 693, 102 L.Ed.2d 835 (1989).

FN1. When the Fourth Amendment was adopted, as now, to "search" meant "[t]o look over or through for the purpose of finding something; to explore; to examine by inspection; as, to search the house for a book; to search the wood for a thief." N. Webster, An American Dictionary of the English Language 66 (1828) (reprint 6th ed.1989).

The present case involves officers on a public street engaged in more than naked-eye surveillance of a home. We have previously reserved judgment as to how much technological enhancement of ordinary perception from such a vantage point, if any, is too much. While we upheld enhanced aerial photography of an industrial complex in Dow Chemical, we noted that we found "it important that this is not an area immediately adjacent to a private home, where privacy expectations are most heightened," 476 U.S., at 237, n. 4, 106 S.Ct. 1819 (emphasis in original). III It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology. For example, as the cases discussed above make clear, the technology enabling human flight has exposed to public view (and hence, we have said, to official observation) uncovered portions of the house and its curtilage that once were private. See Ciraolo, supra, at 215, 106 S.Ct. 1809. The question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy. The Katz test--whether the individual has an expectation of privacy that society is

2004 Privacy Law Seminar Materials - Page 175 prepared to recognize as reasonable--has often been criticized as circular, and hence subjective and unpredictable. See 1 W. LaFave, Search and Seizure § 2.1(d), pp. 393-394 (3d ed.1996); Posner, The Uncertain Protection of Privacy by the Supreme Court, 1979 S.Ct. Rev. 173, 188; Carter, supra, at 97, 119 S.Ct. 469 (SCALIA, J., concurring). But see Rakas, supra, at 143-144, n. 12, 99 S.Ct. 421. While it may be difficult to refine Katz when the search of areas such as telephone booths, automobiles, or even the curtilage and uncovered portions of residences is at issue, in the case of the search of the interior of homes--the prototypical and hence most commonly litigated area of protected privacy--there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment. We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical "intrusion into a constitutionally protected area," Silverman, 365 U.S., at 512, 81 S.Ct. 679, constitutes a search--at least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted. On the basis of this criterion, the information obtained by the thermal imager in this case was the product of a search. [FN2]

FN2. The dissent's repeated assertion that the thermal imaging did not obtain information regarding the interior of the home, post, at 2048 (opinion of STEVENS, J.), is simply inaccurate. A thermal imager reveals the relative heat of various rooms in the home. The dissent may not find that information particularly private or important, see post, at 2048, 2049, 2051, but there is no basis for saying it is not information regarding the interior of the home. The dissent's comparison of the thermal imaging to various circumstances in which outside observers might be able to perceive, without technology, the heat of the home--for example, by observing snowmelt on the roof, post, at 2048-- is quite irrelevant. The fact that equivalent information could sometimes be obtained by other means does not make lawful the use of means that violate the Fourth Amendment. The police might, for example, learn how many people are in a particular house by setting up year-round surveillance; but that does not make breaking and entering to find out the same information lawful. In any event, on the night of January 16, 1992, no outside observer could have discerned the relative heat of Kyllo's home without thermal imaging.

The Government maintains, however, that the thermal imaging must be upheld because it detected "only heat radiating from the external surface of the house," Brief for United States 26. The dissent makes this its leading point, see post, at 2047, contending that there is a fundamental difference between what it calls "off-the-wall" observations and "through-the-wall surveillance." But just as a thermal imager captures only heat emanating from a house, so also a powerful directional microphone picks up only sound emanating from a house-and a satellite capable of scanning from many miles away would pick up only visible light emanating from a house. We rejected such a mechanical interpretation of the Fourth Amendment in Katz, where the eavesdropping device picked up only sound waves that reached the exterior of the phone booth. Reversing that approach would leave the homeowner at the mercy of advancing technology-- including imaging technology that could discern all human activity in the home. While the technology used in the present case was relatively crude, the rule we adopt must take account of more sophisticated systems that are already in use or in development. [FN3] The dissent's reliance on the distinction between "off-the-wall" and "through-the-wall" observation is entirely incompatible with the dissent's belief, which we discuss below, that thermal-imaging observations of the intimate details of a home are impermissible. The most sophisticated thermal-imaging devices continue to measure heat "off-the-wall" rather than "through-the-wall"; the dissent's disapproval of those more sophisticated thermal-imaging devices, see post, at 2051, is an acknowledgement that there is no substance to this distinction. As for the dissent's extraordinary assertion that anything learned through "an inference" cannot be a search, see post, at 2048-2049, that would validate even the "through-the-wall" technologies that the dissent purports to disapprove. Surely the dissent does not believe that the through-the-wall radar or ultrasound technology produces an 8-by-10 Kodak glossy that needs no analysis (i.e., the making of inferences). And, of course, the novel proposition that inference insulates a search is blatantly contrary to United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984), where the police "inferred" from the activation of a beeper that a certain can of ether was in the home. The police activity was held to be a search, and the search was held unlawful. [FN4]

FN3. The ability to "see" through walls and other opaque barriers is a clear, and scientifically feasible, goal of law

2004 Privacy Law Seminar Materials - Page 176 enforcement research and development. The National Law Enforcement and Corrections Technology Center, a program within the United States Department of Justice, features on its Internet Website projects that include a "Radar-Based Through-the-Wall Surveillance System," "Handheld Ultrasound Through the Wall Surveillance," and a "Radar Flashlight" that "will enable law enforcement officers to detect individuals through interior building walls." www.nlectc.org/techproj/ (visited May 3, 2001). Some devices may emit low levels of radiation that travel "through-the-wall," but others, such as more sophisticated thermal-imaging devices, are entirely passive, or "off-the- wall" as the dissent puts it.

FN4. The dissent asserts, post, at 2049, n. 3, that we have misunderstood its point, which is not that inference insulates a search, but that inference alone is not a search. If we misunderstood the point, it was only in a good-faith effort to render the point germane to the case at hand. The issue in this case is not the police's allegedly unlawful inferencing, but their allegedly unlawful thermal-imaging measurement of the emanations from a house. We say such measurement is a search; the dissent says it is not, because an inference is not a search. We took that to mean that, since the technologically enhanced emanations had to be the basis of inferences before anything inside the house could be known, the use of the emanations could not be a search. But the dissent certainly knows better than we what it intends. And if it means only that an inference is not a search, we certainly agree. That has no bearing, however, upon whether hi-tech measurement of emanations from a house is a search.

The Government also contends that the thermal imaging was constitutional because it did not "detect private activities occurring in private areas," Brief for United States 22. It points out that in Dow Chemical we observed that the enhanced aerial photography did not reveal any "intimate details." 476 U.S., at 238, 106 S.Ct. 1819. Dow Chemical, however, involved enhanced aerial photography of an industrial complex, which does not share the Fourth Amendment sanctity of the home. The Fourth Amendment's protection of the home has never been tied to measurement of the quality or quantity of information obtained. In Silverman, for example, we made clear that any physical invasion of the structure of the home, "by even a fraction of an inch," was too much, 365 U.S., at 512, 81 S.Ct. 679, and there is certainly no exception to the warrant requirement for the officer who barely cracks open the front door and sees nothing but the nonintimate rug on the vestibule floor. In the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes. Thus, in Karo, supra, the only thing detected was a can of ether in the home; and in Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987), the only thing detected by a physical search that went beyond what officers lawfully present could observe in "plain view" was the registration number of a phonograph turntable. These were intimate details because they were details of the home, just as was the detail of how warm--or even how relatively warm-- Kyllo was heating his residence. [FN5]

FN5. The Government cites our statement in California v. Ciraolo, 476 U.S. 207, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986), noting apparent agreement with the State of California that aerial surveillance of a house's curtilage could become " 'invasive' " if " 'modern technology' " revealed " 'those intimate associations, objects or activities otherwise imperceptible to police or fellow citizens.' " Id., at 215, n. 3, 106 S.Ct. 1809 (quoting Brief for State of California 14-15). We think the Court's focus in this secondhand dictum was not upon intimacy but upon otherwise- imperceptibility, which is precisely the principle we vindicate today.

Limiting the prohibition of thermal imaging to "intimate details" would not only be wrong in principle; it would be impractical in application, failing to provide "a workable accommodation between the needs of law enforcement and the interests protected by the Fourth Amendment," Oliver v. United States, 466 U.S. 170, 181, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). To begin with, there is no necessary connection between the sophistication of the surveillance equipment and the "intimacy" of the details that it observes-- which means that one cannot say (and the police cannot be assured) that use of the relatively crude equipment at issue here will always be lawful. The Agema Thermovision 210 might disclose, for example, at what hour each night the lady of the house takes her daily sauna and bath--a detail that many would consider "intimate"; and a much more sophisticated system might detect nothing more intimate than the fact that someone left a closet light on. We could not, in other words, develop a rule approving only that through-the-wall surveillance which identifies objects no smaller than 36 by 36 inches, but would have to develop a jurisprudence specifying which home activities are "intimate" and which are not. And even when (if ever) that jurisprudence were fully developed, no police officer would be able to know in advance whether his through-the-wall surveillance picks up "intimate" details--and thus would be unable to know in advance whether it is constitutional. The dissent's proposed standard--whether the technology offers the "functional equivalent

2004 Privacy Law Seminar Materials - Page 177 of actual presence in the area being searched," post, at 2050--would seem quite similar to our own at first blush. The dissent concludes that Katz was such a case, but then inexplicably asserts that if the same listening device only revealed the volume of the conversation, the surveillance would be permissible, post, at 2051. Yet if, without technology, the police could not discern volume without being actually present in the phone booth, Justice STEVENS should conclude a search has occurred. Cf. Karo, 468 U.S., at 735, 104 S.Ct. 3296 (STEVENS, J., concurring in part and dissenting in part) ("I find little comfort in the Court's notion that no invasion of privacy occurs until a listener obtains some significant information by use of the device .... A bathtub is a less private area when the plumber is present even if his back is turned"). The same should hold for the interior heat of the home if only a person present in the home could discern the heat. Thus the driving force of the dissent, despite its recitation of the above standard, appears to be a distinction among different types of information--whether the "homeowner would even care if anybody noticed," post, at 2051. The dissent offers no practical guidance for the application of this standard, and for reasons already discussed, we believe there can be none. The people in their houses, as well as the police, deserve more precision. [FN6]

FN6. The dissent argues that we have injected potential uncertainty into the constitutional analysis by noting that whether or not the technology is in general public use may be a factor. See post, at 2050. That quarrel, however, is not with us but with this Court's precedent. See Ciraolo, supra, at 215, 106 S.Ct. 1809 ("In an age where private and commercial flight in the public airways is routine, it is unreasonable for respondent to expect that his marijuana plants were constitutionally protected from being observed with the naked eye from an altitude of 1,000 feet"). Given that we can quite confidently say that thermal imaging is not "routine," we decline in this case to reexamine that factor. We have said that the Fourth Amendment draws "a firm line at the entrance to the house," Payton, 445 U.S., at 590, 100 S.Ct. 1371. That line, we think, must be not only firm but also bright--which requires clear specification of those methods of surveillance that require a warrant. While it is certainly possible to conclude from the videotape of the thermal imaging that occurred in this case that no "significant" compromise of the homeowner's privacy has occurred, we must take the long view, from the original meaning of the Fourth Amendment forward. "The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens." Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a "search" and is presumptively unreasonable without a warrant. Since we hold the Thermovision imaging to have been an unlawful search, it will remain for the District Court to determine whether, without the evidence it provided, the search warrant issued in this case was supported by probable cause--and if not, whether there is any other basis for supporting admission of the evidence that the search pursuant to the warrant produced. The judgment of the Court of Appeals is reversed; the case is remanded for further proceedings consistent with this opinion. Justice STEVENS, with whom THE CHIEF JUSTICE, Justice O'CONNOR, and Justice KENNEDY join, dissenting. There is, in my judgment, a distinction of constitutional magnitude between "through- the-wall surveillance" that gives the observer or listener direct access to information in a private area, on the one hand, and the thought processes used to draw inferences from information in the public domain, on the other hand. The Court has crafted a rule that purports to deal with direct observations of the inside of the home, but the case before us merely involves indirect deductions from "off-the-wall" surveillance, that is, observations of the exterior of the home. Those observations were made with a fairly primitive thermal imager that gathered data exposed on the outside of petitioner's home but did not invade any constitutionally protected interest in privacy. Moreover, I believe that the supposedly "bright-line" rule the Court has created in response to its concerns about future technological developments is unnecessary, unwise, and inconsistent with the Fourth Amendment. I

2004 Privacy Law Seminar Materials - Page 178 There is no need for the Court to craft a new rule to decide this case, as it is controlled by established principles from our Fourth Amendment jurisprudence. One of those core principles, of course, is that "searches and seizures inside a home without a warrant are presumptively unreasonable." Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (emphasis added). But it is equally well settled that searches and seizures of property in plain view are presumptively reasonable. See id., at 586-587, 100 S.Ct. 1371. [FN2] Whether that property is residential or commercial, the basic principle is the same: " 'What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.' " California v. Ciraolo, 476 U.S. 207, 213, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986) (quoting Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)); see Florida v. Riley, 488 U.S. 445, 449-450, 109 S.Ct. 693, 102 L.Ed.2d 835 (1989); California v. Greenwood, 486 U.S. 35, 40-41, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988); Dow Chemical Co. v. United States, 476 U.S. 227, 235-236, 106 S.Ct. 1819, 90 L.Ed.2d 226 (1986); Air Pollution Variance Bd. of Colo. v. Western Alfalfa Corp., 416 U.S. 861, 865, 94 S.Ct. 2114, 40 L.Ed.2d 607 (1974). That is the principle implicated here.

FN2. Thus, for example, we have found consistent with the Fourth Amendment, even absent a warrant, the search and seizure of garbage left for collection outside the curtilage of a home, California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988); the aerial surveillance of a fenced-in backyard from an altitude of 1,000 feet, California v. Ciraolo, 476 U.S. 207, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986); the aerial observation of a partially exposed interior of a residential greenhouse from 400 feet above, Florida v. Riley, 488 U.S. 445, 109 S.Ct. 693, 102 L.Ed.2d 835 (1989); the aerial photography of an industrial complex from several thousand feet above, Dow Chemical Co. v. United States, 476 U.S. 227, 106 S.Ct. 1819, 90 L.Ed.2d 226 (1986); and the observation of smoke emanating from chimney stacks, Air Pollution Variance Bd. of Colo. v. Western Alfalfa Corp., 416 U.S. 861, 94 S.Ct. 2114, 40 L.Ed.2d 607 (1974).

While the Court "take[s] the long view" and decides this case based largely on the potential of yet-to-be-developed technology that might allow "through-the-wall surveillance," ante, at 2045-2046; see ante, at 2044, n. 3, this case involves nothing more than off-the-wall surveillance by law enforcement officers to gather information exposed to the general public from the outside of petitioner's home. All that the infrared camera did in this case was passively measure heat emitted from the exterior surfaces of petitioner's home; all that those measurements showed were relative differences in emission levels, vaguely indicating that some areas of the roof and outside walls were warmer than others. As still images from the infrared scans show, see Appendix, infra, no details regarding the interior of petitioner's home were revealed. Unlike an x-ray scan, or other possible "through-the-wall" techniques, the detection of infrared radiation emanating from the home did not accomplish "an unauthorized physical penetration into the premises," Silverman v. United States, 365 U.S. 505, 509, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961), nor did it "obtain information that it could not have obtained by observation from outside the curtilage of the house," United States v. Karo, 468 U.S. 705, 715, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984). Indeed, the ordinary use of the senses might enable a neighbor or passerby to notice the heat emanating from a building, particularly if it is vented, as was the case here. Additionally, any member of the public might notice that one part of a house is warmer than another part or a nearby building if, for example, rainwater evaporates or snow melts at different rates across its surfaces. Such use of the senses would not convert into an unreasonable search if, instead, an adjoining neighbor allowed an officer onto her property to verify her perceptions with a sensitive thermometer. Nor, in my view, does such observation become an unreasonable search if made from a distance with the aid of a device that merely discloses that the exterior of one house, or one area of the house, is much warmer than another. Nothing more occurred in this case. Thus, the notion that heat emissions from the outside of a dwelling are a private matter implicating the protections of the Fourth Amendment (the text of which guarantees the right of people "to be secure in their ... houses" against unreasonable searches and seizures (emphasis added)) is not only unprecedented but also quite difficult to take seriously. Heat waves, like aromas that are generated in a kitchen, or in a laboratory or opium den, enter the public domain if and when they leave a building. A subjective expectation that they would remain private is not only implausible but also surely not "one that society is prepared to recognize as 'reasonable.' " Katz, 389 U.S., at 361, 88 S.Ct. 507 (Harlan, J., concurring). To be sure, the homeowner has a reasonable expectation of privacy concerning what takes

2004 Privacy Law Seminar Materials - Page 179 place within the home, and the Fourth Amendment's protection against physical invasions of the home should apply to their functional equivalent. But the equipment in this case did not penetrate the walls of petitioner's home, and while it did pick up "details of the home" that were exposed to the public, ante, at 2045, it did not obtain "any information regarding the interior of the home," ante, at 2043 (emphasis added). In the Court's own words, based on what the thermal imager "showed" regarding the outside of petitioner's home, the officers "concluded" that petitioner was engaging in illegal activity inside the home. Ante, at 2041. It would be quite absurd to characterize their thought processes as "searches," regardless of whether they inferred (rightly) that petitioner was growing marijuana in his house, or (wrongly) that "the lady of the house [was taking] her daily sauna and bath." Ante, at 2045. In either case, the only conclusions the officers reached concerning the interior of the home were at least as indirect as those that might have been inferred from the contents of discarded garbage, see California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988), or pen register data, see Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), or, as in this case, subpoenaed utility records, see 190 F.3d 1041, 1043 (C.A.9 1999). For the first time in its history, the Court assumes that an inference can amount to a Fourth Amendment violation. See ante, at 2044-2045. [FN3]

FN3. Although the Court credits us with the "novel proposition that inference insulates a search," ante, at 2044, our point simply is that an inference cannot be a search, contrary to the Court's reasoning. See supra, at 2048 and this page. Thus, the Court's use of United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984), to refute a point we do not make underscores the fact that the Court has no real answer (either in logic or in law) to the point we do make. Of course, Karo itself does not provide any support for the Court's view that inferences can amount to unconstitutional searches. The illegality in that case was "the monitoring of a beeper in a private residence" to obtain information that "could not have [been] obtained by observation from outside," id., at 714-715, 104 S.Ct. 3296, rather than any thought processes that flowed from such monitoring.

Notwithstanding the implications of today's decision, there is a strong public interest in avoiding constitutional litigation over the monitoring of emissions from homes, and over the inferences drawn from such monitoring. Just as "the police cannot reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the public," Greenwood, 486 U.S., at 41, 108 S.Ct. 1625, so too public officials should not have to avert their senses or their equipment from detecting emissions in the public domain such as excessive heat, traces of smoke, suspicious odors, odorless gases, airborne particulates, or radioactive emissions, any of which could identify hazards to the community. In my judgment, monitoring such emissions with "sense-enhancing technology," ante, at 2043, and drawing useful conclusions from such monitoring, is an entirely reasonable public service. On the other hand, the countervailing privacy interest is at best trivial. After all, homes generally are insulated to keep heat in, rather than to prevent the detection of heat going out, and it does not seem to me that society will suffer from a rule requiring the rare homeowner who both intends to engage in uncommon activities that produce extraordinary amounts of heat, and wishes to conceal that production from outsiders, to make sure that the surrounding area is well insulated. Cf. United States v. Jacobsen, 466 U.S. 109, 122, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) ("The concept of an interest in privacy that society is prepared to recognize as reasonable is, by its very nature, critically different from the mere expectation, however well justified, that certain facts will not come to the attention of the authorities"). The interest in concealing the heat escaping from one's house pales in significance to "the chief evil against which the wording of the Fourth Amendment is directed," the "physical entry of the home," United States v. United States Dist. Court for Eastern Dist. of Mich., 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972), and it is hard to believe that it is an interest the Framers sought to protect in our Constitution. Since what was involved in this case was nothing more than drawing inferences from off- the-wall surveillance, rather than any "through-the-wall" surveillance, the officers' conduct did not amount to a search and was perfectly reasonable. [FN4]

FN4. This view comports with that of all the Courts of Appeals that have resolved the issue. See 190 F.3d 1041 (C.A.9 1999); United States v. Robinson, 62 F.3d 1325 (C.A.11 1995) (upholding warrantless use of thermal imager); United States v. Myers, 46 F.3d 668 (C.A.7 1995) (same); United States v. Ishmael, 48 F.3d 850 (C.A.5 1995) (same); United States v. Pinson, 24 F.3d 1056 (C.A.8 1994) (same). But see United States v. Cusumano, 67 F.3d 1497 (C.A.10 1995) (warrantless use of thermal imager violated Fourth Amendment), vacated and decided on other grounds, 83 F.3d 1247 (C.A.10 1996) (en banc).

2004 Privacy Law Seminar Materials - Page 180 II Instead of trying to answer the question whether the use of the thermal imager in this case was even arguably unreasonable, the Court has fashioned a rule that is intended to provide essential guidance for the day when "more sophisticated systems" gain the "ability to 'see' through walls and other opaque barriers." Ante, at 2044, and n. 3. The newly minted rule encompasses "obtaining [1] by sense-enhancing technology [2] any information regarding the interior of the home [3] that could not otherwise have been obtained without physical intrusion into a constitutionally protected area ... [4] at least where (as here) the technology in question is not in general public use." Ante, at 2043 (internal quotation marks omitted). In my judgment, the Court's new rule is at once too broad and too narrow, and is not justified by the Court's explanation for its adoption. As I have suggested, I would not erect a constitutional impediment to the use of sense-enhancing technology unless it provides its user with the functional equivalent of actual presence in the area being searched. Despite the Court's attempt to draw a line that is "not only firm but also bright," ante, at 2046, the contours of its new rule are uncertain because its protection apparently dissipates as soon as the relevant technology is "in general public use," ante, at 2043. Yet how much use is general public use is not even hinted at by the Court's opinion, which makes the somewhat doubtful assumption that the thermal imager used in this case does not satisfy that criterion. [FN5] In any event, putting aside its lack of clarity, this criterion is somewhat perverse because it seems likely that the threat to privacy will grow, rather than recede, as the use of intrusive equipment becomes more readily available.

FN5. The record describes a device that numbers close to a thousand manufactured units; that has a predecessor numbering in the neighborhood of 4,000 to 5,000 units; that competes with a similar product numbering from 5,000 to 6,000 units; and that is "readily available to the public" for commercial, personal, or law enforcement purposes, and is just an 800- number away from being rented from "half a dozen national companies" by anyone who wants one. App. 18. Since, by virtue of the Court's new rule, the issue is one of first impression, perhaps it should order an evidentiary hearing to determine whether these facts suffice to establish "general public use."

It is clear, however, that the category of "sense-enhancing technology" covered by the new rule, ibid., is far too broad. It would, for example, embrace potential mechanical substitutes for dogs trained to react when they sniff narcotics. But in United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), we held that a dog sniff that "discloses only the presence or absence of narcotics" does "not constitute a 'search' within the meaning of the Fourth Amendment," and it must follow that sense-enhancing equipment that identifies nothing but illegal activity is not a search either. Nevertheless, the use of such a device would be unconstitutional under the Court's rule, as would the use of other new devices that might detect the odor of deadly bacteria or chemicals for making a new type of high explosive, even if the devices (like the dog sniffs) are "so limited both in the manner in which" they obtain information and "in the content of the information" they reveal. Ibid. If nothing more than that sort of information could be obtained by using the devices in a public place to monitor emissions from a house, then their use would be no more objectionable than the use of the thermal imager in this case. The application of the Court's new rule to "any information regarding the interior of the home," ante, at 2043, is also unnecessarily broad. If it takes sensitive equipment to detect an odor that identifies criminal conduct and nothing else, the fact that the odor emanates from the interior of a home should not provide it with constitutional protection. See supra, at 2050 and this page. The criterion, moreover, is too sweeping in that information "regarding" the interior of a home apparently is not just information obtained through its walls, but also information concerning the outside of the building that could lead to (however many) inferences "regarding" what might be inside. Under that expansive view, I suppose, an officer using an infrared camera to observe a man silently entering the side door of a house at night carrying a pizza might conclude that its interior is now occupied by someone who likes pizza, and by doing so the officer would be guilty of conducting an unconstitutional "search" of the home. Because the new rule applies to information regarding the "interior" of the home, it is too narrow as well as too broad. Clearly, a rule that is designed to protect individuals from the overly intrusive use of sense-enhancing equipment should not be limited to a home. If such equipment did provide its user with the functional equivalent of access to a private place-- such

2004 Privacy Law Seminar Materials - Page 181 as, for example, the telephone booth involved in Katz, or an office building--then the rule should apply to such an area as well as to a home. See Katz, 389 U.S., at 351, 88 S.Ct. 507 ("[T]he Fourth Amendment protects people, not places"). The final requirement of the Court's new rule, that the information "could not otherwise have been obtained without physical intrusion into a constitutionally protected area," ante, at 2043 (internal quotation marks omitted), also extends too far as the Court applies it. As noted, the Court effectively treats the mental process of analyzing data obtained from external sources as the equivalent of a physical intrusion into the home. See supra, at 2048-2049. As I have explained, however, the process of drawing inferences from data in the public domain should not be characterized as a search. III Although the Court is properly and commendably concerned about the threats to privacy that may flow from advances in the technology available to the law enforcement profession, it has unfortunately failed to heed the tried and true counsel of judicial restraint. Instead of concentrating on the rather mundane issue that is actually presented by the case before it, the Court has endeavored to craft an all-encompassing rule for the future.

2004 Privacy Law Seminar Materials - Page 182 B. CALIFORNIA

Sanders v. American Broadcasting Companies, Inc. 20 Cal.4th 907, 978 P.2d 67, 85 Cal.Rptr.2d 909 (1999) WERDEGAR, J. Defendant Stacy Lescht, a reporter employed by defendant American Broadcasting Companies, Inc. (ABC), obtained employment as a "telepsychic" with the Psychic Marketing Group (PMG), which also employed plaintiff Mark Sanders in that same capacity. While she worked in PMG's Los Angeles office, Lescht, who wore a small video camera hidden in her hat, covertly videotaped her conversations with several coworkers, including Sanders. Sanders sued Lescht and ABC for, among other causes of action, the tort of invasion of privacy by intrusion. Although a jury found for Sanders on the intrusion cause of action, the Court of Appeal reversed the resulting judgment in his favor on the ground that the jury finding for the defense on another cause of action, violation of Penal Code section 632, established Sanders could have had no reasonable expectation of privacy in his workplace conversations because such conversations could be overheard by others in the shared office space. We granted review to determine whether the fact that a workplace interaction might be witnessed by others on the premises necessarily defeats, for purposes of tort law, any reasonable expectation of privacy the participants have against covert videotaping by a journalist. We conclude it does not: In an office or other workplace to which the general public does not have unfettered access, employees may enjoy a limited, but legitimate, expectation that their conversations and other interactions will not be secretly videotaped by undercover television reporters, even though those conversations may not have been completely private from the participants' coworkers. For this reason, contrary to the Court of Appeal's holding, the jury's finding as to Penal Code section 632 did not require the trial court to enter nonsuit on, or otherwise dispose of, Sanders's cause of action for tortious intrusion. Nor, we also conclude, were the jury instructions on the intrusion cause of action prejudicially erroneous. Although we reverse, for these reasons, the Court of Appeal's judgment for defendants, we do not hold or imply that investigative journalists necessarily commit a tort by secretly recording events and conversations in offices, stores or other workplaces. Whether a reasonable expectation of privacy is violated by such recording depends on the exact nature of the conduct and all the surrounding circumstances. In addition, liability under the intrusion tort requires that the invasion be highly offensive to a reasonable person, considering, among other factors, the motive of the alleged intruder. (Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 231, 236, 74 Cal.Rptr.2d 843, 955 P.2d 469; Miller v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1483-1484, 232 Cal.Rptr. 668.) The scope of our review in this case does not include any question regarding the offensiveness element of the tort, and we therefore express no view on the offensiveness or inoffensiveness of defendants' conduct. We hold only that, where the other elements of the intrusion tort are proven, the cause of action is not defeated as a matter of law simply because the events or conversations upon which the defendant allegedly intruded were not completely private from all other eyes and ears. FACTUAL AND PROCEDURAL BACKGROUND In 1992, plaintiff Mark Sanders was working as a telepsychic in PMG's Los Angeles office, giving "readings" to customers who telephoned PMG's 900 number (for which they were charged a per-minute fee). The psychics' work area consisted of a large room with rows of cubicles, about 100 total, in which the psychics took their calls. Each cubicle was enclosed on three sides by five-foot-high partitions. The facility also included a separate lunchroom and enclosed offices for managers and supervisors. During the period of the claimed intrusion, the door to the PMG facility was unlocked during business hours, but PMG, by internal policy, prohibited access to the office by nonemployees without specific permission. An employee testified the front door was visible from the administration desk and a supervisor greeted any nonemployees who entered. Defendant Stacy Lescht, employed by defendant ABC in an investigation of the telepsychic industry, obtained employment as a psychic in PMG's Los Angeles office. When she

2004 Privacy Law Seminar Materials - Page 183 first entered the PMG office to apply for a position, she was not stopped at the front door or greeted by anyone until she found and approached the administration desk. Once hired, she sat at a cubicle desk, where she gave telephonic readings to customers. Lescht testified that while sitting at her desk she could easily overhear conversations conducted in surrounding cubicles or in the aisles near her cubicle. When not on the phone, she talked with some of the other psychics in the phone room. Lescht secretly videotaped these conversations with a "hat cam," i.e., a small camera hidden in her hat; a microphone attached to her brassiere captured sound as well. Among the conversations Lescht videotaped were two with Sanders, the first at Lescht's cubicle, the second at Sanders's. During the first conversation, Sanders and, after a period, a third employee were standing in the aisle just outside Lescht's cubicle. They talked in moderate tones of voice, and a fourth employee, passing by, joined in the conversation at one point. Sanders conceded there was a "possibility" the psychic in the next cubicle beyond Lescht could have overheard the first conversation if he tried, although in Sanders's view that was very unlikely because he had no reason to eavesdrop. The second conversation, which took place with both Lescht and Sanders seated in Sanders's cubicle, was conducted in relatively soft voices and was interrupted once by Sanders's receiving a customer call and once by a passing coworker's offer of a snack. During this second, longer conversation, Sanders discussed his personal aspirations and beliefs and gave Lescht a psychic reading. Sanders pled two causes of action against Lescht and ABC based on the videotaping itself: violation of Penal Code section 632 (hereafter section 632) and the common law tort of invasion of privacy by intrusion. [FN1] The court ordered trial on these counts bifurcated, with the section 632 count tried first. In a special verdict form, the jury was asked whether the conversation upon which defendants allegedly intruded was conducted "in circumstances in which the parties to the communication may reasonably have expected that the communications may have been overheard." Based on the jury's affirmative answer to this question, the trial court ordered judgment entered for defendants on the section 632 cause of action. [FN2]

FN1. ABC's PrimeTime Live broadcast about the telepsychic industry included a short excerpt from the second Lescht-Sanders conversation. Sanders pled causes of action against ABC based on the broadcast, but all such causes of action were disposed of without trial.

FN2. Section 632 generally prohibits the nonconsensual recording of a "confidential communication." The statutory definition of confidential communication excludes communications made in circumstances "in which the parties to the communication may reasonably expect that the conversation may be overheard or recorded." (§ 632, subd. (c).)

Defendants then moved to dismiss the remaining cause of action for intrusion, for an order of nonsuit, and to reopen their earlier motion for summary judgment on this cause of action. After receiving written submissions and hearing argument, the court denied these motions, allowing trial to go forward on the issue of liability for photographic intrusion. In reliance on Dietemann v. Time, Inc. (9th Cir.1971) 449 F.2d 245, which the trial court viewed as articulating a "subtort with regard to invasion of privacy by photographing," the trial court ruled plaintiff could proceed on the theory he had a limited right of privacy against being covertly videotaped by a journalist in his workplace, even though his interaction with that journalist may have been witnessed, and his conversations overheard, by coworkers. At the conclusion of the second phase of trial, the jury found defendants liable on the cause of action for invasion of privacy by intrusion. In subsequent trial phases, the jury fixed compensatory damages at $335,000; found defendants had acted with malice, fraud or oppression; and awarded exemplary damages of about $300,000. The Court of Appeal reversed. . . . . We granted plaintiff's petition for review and, by later order, limited the issues to be briefed and argued to the following: (1) whether a person who lacks a reasonable expectation of complete privacy in a conversation because it could be seen and overheard by coworkers (but not the general public) may nevertheless have a claim for invasion of privacy by intrusion based on a television reporter's covert videotaping of that conversation; (2) whether the jury's findings in the first phase of trial, on liability under section 632, legally precluded maintenance of a common law intrusion claim; and (3) whether the jury instructions in the second phase of trial, on liability for intrusion, were prejudicially erroneous.

2004 Privacy Law Seminar Materials - Page 184 DISCUSSION Question 1: May a person who lacks a reasonable expectation of complete privacy in a conversation because it could be seen and overheard by coworkers (but not the general public) nevertheless have a claim for invasion of privacy by intrusion based on a television reporter's covert videotaping of that conversation? Answer: Yes. Neither the trial court nor the Court of Appeal had the benefit of our recent decision in Shulman v. Group W Productions, Inc., supra, 18 Cal.4th 200, 74 Cal.Rptr.2d 843, 955 P.2d 469 (Shulman ). We therefore begin by recounting what we said in Shulman regarding the privacy element of an intrusion cause of action. In Shulman, we adopted the definition of the intrusion tort articulated in Miller v. National Broadcasting Co., supra, 187 Cal.App.3d at page 1482, 232 Cal.Rptr. 668, and in the Restatement Second of Torts section 652B. The cause of action, we held, has two elements: (1) intrusion into a private place, conversation or matter, (2) in a manner highly offensive to a reasonable person. (Shulman, supra, 18 Cal.4th at p. 231, 74 Cal.Rptr.2d 843, 955 P.2d 469.) The first element, we stated, is not met when the plaintiff has merely been observed, or even photographed or recorded, in a public place. (Ibid.) Rather, "the plaintiff must show the defendant penetrated some zone of physical or sensory privacy surrounding, or obtained unwanted access to data about, the plaintiff. The tort is proven only if the plaintiff had an objectively reasonable expectation of seclusion or solitude in the place, conversation or data source." (Id. at p. 232, 74 Cal.Rptr.2d 843, 955 P.2d 469.) While Shulman reiterated the requirement that an intrusion plaintiff have a reasonable expectation of privacy, neither in Shulman nor in any other case have we stated that an expectation of privacy, in order to be reasonable for purposes of the intrusion tort, must be of absolute or complete privacy. Indeed, our analysis of the issues in Shulman suggested, to the contrary, that mass media videotaping may constitute an intrusion even when the events and communications recorded were visible and audible to some limited set of observers at the time they occurred. In Shulman, a television producer had fitted a rescue nurse with a small microphone, by which the nurse's conversation with a severely injured accident victim was recorded. Although a number of other persons were participating in the rescue, the record on summary judgment, we noted, left unclear whether any nonparticipant members of the general public were present or could overhear any of the patient's communications to the nurse and other rescuers. (Shulman, supra, 18 Cal.4th at pp. 233-234, fn. 13, 74 Cal.Rptr.2d 843, 955 P.2d 469.) Partly on that basis, we found triable issues of fact as to the patient's reasonable expectation of privacy in her conversation with the nurse and other rescuers. (Id. at pp. 233, 235, 74 Cal.Rptr.2d 843, 955 P.2d 469.) We thereby implied the plaintiff patient could have a reasonable expectation of privacy in her communications even if some of them may have been overheard by those involved in the rescue, but not by the general public. Shulman 's discussion of possible bases for a reasonable expectation of privacy on the patient's part also suggests that a person may reasonably expect privacy against the electronic recording of a communication, even though he or she had no reasonable expectation as to confidentiality of the communication's contents. Quoting from a prior case involving statutory privacy rights (Ribas v. Clark (1985) 38 Cal.3d 355, 360-361, 212 Cal.Rptr. 143, 696 P.2d 637), we stated: " 'While one who imparts private information risks the betrayal of his confidence by the other party, a substantial distinction has been recognized between the secondhand repetition of the contents of a conversation and its simultaneous dissemination to an unannounced second auditor, whether that auditor be a person or a mechanical device. [Citation.] [¶] ... [S]uch secret monitoring denies the speaker an important aspect of privacy of communication--the right to control the nature and extent of the firsthand dissemination of his statements.' " (Shulman, supra, 18 Cal.4th at pp. 234-235, 74 Cal.Rptr.2d 843, 955 P.2d 469.) This case squarely raises the question of an expectation of limited privacy. On further consideration, we adhere to the view suggested in Shulman: privacy, for purposes of the intrusion tort, is not a binary, all- or-nothing characteristic. There are degrees and nuances to societal recognition of our expectations of privacy: the fact that the privacy one expects in a given setting is not complete or absolute does not render the expectation unreasonable as a matter of law. Although the intrusion tort is often defined in terms of "seclusion" (see, e.g., Rest.2d

2004 Privacy Law Seminar Materials - Page 185 Torts, § 652B [Intrusion upon Seclusion]; Shulman, supra, 18 Cal.4th at p. 232, 74 Cal.Rptr.2d 843, 955 P.2d 469 ["intrusion on seclusion"] ), the seclusion referred to need not be absolute. "Like 'privacy,' the concept of 'seclusion' is relative. The mere fact that a person can be seen by someone does not automatically mean that he or she can legally be forced to be subject to being seen by everyone." (1 McCarthy, The Rights of Publicity and Privacy (1998) § 5.10[A][2], p. 5- 120.1.) Dietemann v. Time, Inc., supra, 449 F.2d 245, upon which the trial court relied, does, indeed, exemplify the idea of a legitimate expectation of limited privacy. Reporters for a news magazine deceitfully gained access to a quack doctor's home office, where they secretly photographed and recorded his examination of one of them. (Id. at p. 246.) The court held the plaintiff could, under California law, reasonably expect privacy from press photography and recording, even though he had invited the reporters--unaware of their true identity--into his home office: "Plaintiff's den was a sphere from which he could reasonably expect to exclude eavesdropping newsmen. He invited two of defendant's employees to the den. One who invites another to his home or office takes a risk that the visitor may not be what he seems, and that the visitor may repeat all he hears and observes when he leaves. But he does not and should not be required to take the risk that what is heard and seen will be transmitted by photograph or recording, or in our modern world, in full living color and hi-fi to the public at large...." (Id. at p. 249; see also Boddie v. American Broadcasting Companies, Inc. (6th Cir.1984) 731 F.2d 333, 338-339 [Journalists' covert recording of interview may have violated federal anti-wiretapping statute even though plaintiff knew her interlocutors were journalists: "it remains an issue of fact for the jury whether [plaintiff] had an expectation that the interview was not being recorded and whether that expectation was justified under the circumstances." (Fn.omitted.) ].) Equally illustrative of the general principle is Huskey v. National Broadcasting Co., Inc. (N.D.Ill.1986) 632 F.Supp. 1282. The defendant's camera crew, visiting a federal prison, filmed plaintiff Huskey, an inmate, in the prison's "exercise cage," wearing only gym shorts and exposing his distinctive tattoos. The federal court rejected the defendant's contention no intrusion could have occurred because Huskey was "not secluded." (Id. at p. 1287.) "Of course Huskey could be seen by guards, prison personnel and inmates, and obviously he was in fact seen by NBC's camera operator. But the mere fact a person can be seen by others does not mean that person cannot legally be 'secluded.' ... Further, Huskey's visibility to some people does not strip him of the right to remain secluded from others. Persons are exposed to family members and invited guests in their own homes, but that does not mean they have opened the door to television cameras." (Id. at pp. 1287-1288, italics in original.) Whether the exercise cage could be considered an area of limited seclusion within the prison was a factual question for trial. (Id. at p. 1288.) Similarly, in a famous early case, the presence of an unnecessary male observer at the home delivery of the plaintiff's child was held to be an intrusion, even though the delivery was also observed by the plaintiff's husband, the attending doctor and a woman assistant. (De May v. Roberts (1881) 46 Mich. 160, 9 N.W. 146, 148-149.) The existence of such limited privacy is not dependent on the plaintiff being in his or her home, as demonstrated by Huskey v. National Broadcasting Co., Inc., supra, 632 F.Supp. 1282, and many other cases. (See, e.g., Noble v. Sears, Roebuck & Co. (1973) 33 Cal.App.3d 654, 660, 109 Cal.Rptr. 269 [plaintiff could reasonably expect privacy in her hospital room against intrusion by attorneys and investigators for opposing party in a personal injury lawsuit]; Estate of Berthiaume v. Pratt, M.D. (Maine 1976) 365 A.2d 792, 795 [surgeon who had treated cancer patient committed actionable intrusion by photographing him in hospital bed against his will as he lay dying]; McDaniel v. Atlanta Coca- Cola Bottling Co. (1939) 60 Ga.App. 92, 2 S.E.2d 810, 816 [electronic eavesdropping on hospital room conversations is intrusion]; Stessman v. Am. Black Hawk Broadcasting (Iowa 1987) 416 N.W.2d 685, 687 [filming in private dining room of restaurant might be intrusion on patron's privacy, despite lack of complete seclusion]; Rafferty v. Hartford Courant Co. (1980) 36 Conn.Supp. 239, 416 A.2d 1215, 1216, 1220 [newspaper's photographing and reporting events at private party, contrary to prior agreement, could form basis for an intrusion action, even though party was held outdoors rather than in private home]; Nader v. General Motors Corporation (1970) 25 N.Y.2d 560, 570, 307 N.Y.S.2d 647, 655, 255 N.E.2d 765 [closely shadowing a person in bank in order to observe his transactions may constitute intrusion, even though "mere observation of the plaintiff in a public place" is not generally an invasion of privacy]; see also Pearson v. Dodd (D.C.Cir.1969) 133 App.D.C. 279, 410 F.2d 701, 704 [intrusion tort protects

2004 Privacy Law Seminar Materials - Page 186 against intrusion "whether by physical trespass or not, into spheres from which an ordinary man in a plaintiff's position could reasonably expect that the particular defendant should be excluded"].) Defendants' claim, that a "complete expectation of privacy" is necessary to recover for intrusion, thus fails as inconsistent with case law as well as with the common understanding of privacy. Privacy for purposes of the intrusion tort must be evaluated with respect to the identity of the alleged intruder and the nature of the intrusion. As seen below, moreover, decisions on the common law and statutory protection of workplace privacy show that the same analysis applies in the workplace as in other settings; consequently, an employee may, under some circumstances, have a reasonable expectation of visual or aural privacy against electronic intrusion by a stranger to the workplace, despite the possibility that the conversations and interactions at issue could be witnessed by coworkers or the employer. In Walker v. Darby (11th Cir.1990) 911 F.2d 1573, three postal supervisors, pursuing a personal vendetta against a postal worker, electronically intercepted the worker's conversations at his workstation, transmitting them to one of their offices. The plaintiff worker alleged a violation of the federal anti-wiretapping law, which prohibits, inter alia, the electronic interception of an oral communication made under circumstances justifying an expectation the communication would not be intercepted. (Id. at p. 1577; see 18 U.S.C. §§ 2510(2), 2511.) Although the plaintiff's workstation was in a shared space rather than a private office, the appellate court found a triable issue of fact as to whether the plaintiff had a reasonable expectation of privacy from electronic interception. "We agree that there is a difference between a public employee having a reasonable expectation of privacy in personal conversations taking place in the workplace and having a reasonable expectation that those conversations will not be intercepted by a device which allows them to be overheard inside an office in another area of the building. [¶] ... [¶] ... The [workstation] was located in an area shared with other workers. But while Walker might have expected conversations uttered in a normal tone of voice to be overheard by those standing nearby, it is highly unlikely that he would have expected his conversations to be electronically intercepted and monitored in an office in another part of the building." (Walker v. Darby, supra, at p. 1579, fn. omitted.) Similarly, in United States v. McIntyre (9th Cir.1978) 582 F.2d 1221, a city's chief of police and a lieutenant in the department directed two police officers to "bug" the assistant chief's office. The officers placed a briefcase containing a microphone in the assistant chief's office, by which means they monitored a conversation in the office. (Id. at p. 1223.) Convicted of criminally violating the anti-wiretapping law (18 U.S.C. §§ 2510(2), 2511), the chief and lieutenant contended on appeal that any expectation of privacy on the assistant chief's part was unreasonable, because at the time the conversation was intercepted the assistant chief's office door was open and a records clerk worked 15 feet away in an adjacent room. (United States v. McIntyre, supra, at p. 1224.) The court rejected that argument: "A business office need not be sealed to offer its occupant a reasonable degree of privacy." (Ibid.) As in Walker v. Darby, supra, 911 F.2d at page 1579, the court thus treated aural privacy as a relative, rather than absolute, characteristic of the workplace. Doe by Doe v. B.P.S. Guard Services, Inc. (8th Cir.1991) 945 F.2d 1422 illustrates the existence of limited, but reasonable, visual privacy in the workplace. A fashion show was being held at a convention center. The organizers had set up a curtained dressing area for the models, unaware that the area was visible on one of the convention center's security cameras. Guards in the security control room used the surveillance camera to watch and videotape the models changing clothes. (Id. at p. 1424.) Nothing in the opinion suggests the curtained changing area, used by all the models and presumably accessible to the show's director and assistants, was a place of complete seclusion for any of the models. Nonetheless, the appellate court, in an action for common law invasion of privacy, had no difficulty discerning a reasonable expectation of privacy on the models' part, violated in this circumstance by a visual "invasion by strangers." (Id. at p. 1427; see also Ali v. Douglas Cable Communications (D.Kan.1996) 929 F.Supp. 1362, 1382 [customer service representatives for cable companies cannot claim intrusion in employer's monitoring and recording business telephone calls, but could claim a reasonable expectation of privacy as to unannounced recording of personal telephone calls].) [FN3]

FN3. Because of the special considerations involved in defining the private citizen's protection against intrusion by the government and the government's unique interest in investigating and suppressing criminal

2004 Privacy Law Seminar Materials - Page 187 activity, decisions discussing employees' expectations of privacy against government searches are not directly applicable to the common law privacy tort context. We do not suggest that the same standards necessarily apply to private intrusions as to government searches, or vice versa. We observe, however, that the United States Supreme Court has recognized, in the Fourth Amendment context, that even employees without personal offices may have a reasonable, but limited, expectation of privacy against intrusions by strangers to the workplace. (See Mancusi v. DeForte (1968) 392 U.S. 364, 369, 88 S.Ct. 2120, 20 L.Ed.2d 1154 [Union employee who shared a single large office with several other union officials had a privacy interest in the office sufficient to challenge its warrantless search by state officers: "[I]f DeForte had occupied a 'private' office in the union headquarters, and union records had been seized from a desk or a filing cabinet in that office, he would have had standing," and "the situation was not fundamentally changed because DeForte shared an office with other union officers. DeForte still could reasonably have expected that only those persons and their personal or business guests would enter the office, and that records would not be touched except with their permission or that of union higher-ups."].)

Defendants' cited cases on workplace privacy do not establish a contrary rule. None of them hold or demonstrate that employee privacy in the workplace is nonexistent if not complete. More particularly, none hold or demonstrate that a worker necessarily loses all reasonable expectation of privacy against covert media videotaping merely because the worker's interactions and conversations may have been witnessed by some coworkers. In Marrs v. Marriott Corp. (D.Md.1992) 830 F.Supp. 274, the defendant employer installed a video camera monitoring one worker's desk to investigate apparent tampering with material in a locked drawer. The plaintiff, a coworker caught on the videotape picking the lock on the desk drawer and terminated as a result, alleged, among many other causes of action, an invasion of his privacy in the videotaping. The district court found the cause of action could not survive summary judgment because there was "no support for the conclusion that Marrs had a reasonable expectation of privacy in an open office." (Id. at p. 283.) The court's holding that one employee did not have a reasonable expectation of privacy against the employer's filming of events at another employee's desk says nothing about whether an employee's personal interactions in the workplace may reasonably be considered private as against covert filming by an agent for an entity other than the employer, as, in this case, a television network. Like Marrs v. Marriott Corp., Vega-Rodriguez v. Puerto Rico Telephone Co. (1st Cir.1997) 110 F.3d 174 and Thompson v. Johnson County Community College (D.Kan.1996) 930 F.Supp. 501 also are distinguishable in that they involved video surveillance by the employer over shared workspaces. In both these cases, moreover, the employers were public entities, and the plaintiffs' challenges were based on the Fourth Amendment, making these decisions directly inapplicable to the question of private intrusion. (See fn. 3, ante.) PETA v. Bobby Berosini, Ltd. (1995) 111 Nev. 615, 895 P.2d 1269 concerned the claim of an animal trainer that his privacy was invaded by nonconsensual videotaping of his preparations backstage before a show. The court found that the videotaping did not intrude on the privacy the trainer claimed to expect from preshow distraction and interference and, therefore, found it unnecessary to discuss whether his expectation of privacy was reasonable. (Id. at pp. 1280-1281 & fn. 20.) The decision is, therefore, not authority on the reasonableness question. Kemp v. Block (D.Nev.1985) 607 F.Supp. 1262 (Kemp ), upon which defendants also rely, involved one worker's unconsented-to taping of a loud workplace argument between a coworker and his foreman. The district court granted summary judgment on an invasion of privacy claim brought by the coworker: "It seems quite clear that both [the plaintiff and his foreman] argued in loud voices. The defendant and the other coworkers who overheard the argument were in a place they had a right to be, namely the instrument shop.... The relatively small size of the instrument shop and its lack of interior walls further indicate that an expectation of privacy within it would not be objectively reasonable." (Id. at p. 1264.) We have no quarrel with the Kemp court's conclusion that one who argues loudly in a small, undivided workplace cannot reasonably expect aural privacy in the conversation vis-a-vis the coworkers who share the space. The workplace status of the recording defendant in Kemp is not comparable to that of defendant Lescht in this case. The defendant coworker in Kemp shared a relatively small instrument shop with the plaintiff and several other workers. For several months the plaintiff and the shop foreman had been having recurring oral disputes, but the plaintiff "had persistently denied" they "amounted to arguments." (Kemp, supra, 607 F.Supp. at p. 1263.) The defendant recorded the dispute between the plaintiff and their foreman "to prove to the plaintiff that he

2004 Privacy Law Seminar Materials - Page 188 actually did argue." (Ibid.) After taping the argument, the defendant, in accord with his intent, showed the plaintiff and the foreman the tape. (Ibid.) Stacy Lescht, by contrast, worked in PMG's Los Angeles office only a few days--only as long as it took to meet, talk to and covertly videotape conversations with many of the other psychics, and only for that purpose. While she may have functioned as an employee of PMG when she took phone calls as a telepsychic, she acted solely as an agent of ABC when she talked with and secretly recorded the other psychics. That Mr. Kemp's reasonable expectations of privacy in the workplace did not extend to protection against a longtime coworker recording his noisy argument with a foreman, in order to resolve a workplace dispute, does not imply that Sanders's reasonable expectations do not extend to protection against videotaping by an agent of ABC, planted to collect videotape for use in a national television broadcast. Finally, defendants rely on Com. v. Alexander (1998) 551 Pa. 1, 708 A.2d 1251 (Alexander ) and Desnick v. American Broadcasting Companies, Inc. (7th Cir.1995) 44 F.3d 1345 (Desnick ). Both involved investigations into suspected misconduct by doctors; the investigation was by ABC in Desnick and by the Philadelphia police in Alexander. In both cases, patients or those posing as such, acting for the investigators, covertly recorded or videotaped the doctors' conversations with the patients in the doctors' offices. (Alexander, supra, at pp. 1252-1253; Desnick, supra, at p. 1348.) Both courts rejected claims the taping illegally invaded the doctors' privacy. In Desnick, the question was whether the covert videotaping by "testers" posing as patients was a tortious invasion of privacy. The appellate court held it was not, partly because "the only conversations that were recorded were conversations with the testers themselves." (Desnick, supra, 44 F.3d at p. 1353.) "The test patients entered offices that were open to anyone expressing a desire for ophthalmic services and videotaped physicians engaged in professional, not personal, communications with strangers (the testers themselves)." (Id. at p. 1352.) [FN4]

FN4. Desnick, like the present case, arose out of ABC's use of hidden cameras in an investigation for its PrimeTime Live program. Defendants and their amici curiae also cite two federal trial court decisions involving PrimeTime Live undercover camera teams: Russell v. American Broadcasting Company, Inc. (N.D.Ill.1995) 1995 WL 330920 [23 Media L.Rep. 2428] (Russell ) and Medical Laboratory Management v. American Broad. (D.Ariz.1998) 30 F.Supp.2d 1182 (Medical Laboratory ). The Russell court held that the plaintiff, a fish seller whose conversations about the freshness of her product, or lack thereof, were covertly recorded by a reporter posing as an employee, did not state a cause of action for intrusion under Illinois law because (1) in the district court's view, Illinois did not recognize such a cause of action and (2) even if such a tort existed, secretly recording a conversation with a coworker is not " 'offensive prying into the private domain of another,' " and the plaintiff was not harmed by the recording as such. (1995 WL 330920 at pp. *7-*8.) To the extent the second holding rested on the view that workplace conversations between coworkers can never be considered private from mass media interception (rather than simply on a finding that recording a fish market conversation about the marketing of fish, considered separately from the allegedly harmful broadcast, was not highly offensive to a reasonable person), it fails to persuade, as the court offered no reasoning or authority supporting a per se rule against workplace privacy. In Medical Laboratory, the alleged intrusion similarly was held nonactionable, in that case because it was not highly offensive in light of the importance of the investigation's subject and caused no injury apart from the related broadcast, as well as not invading a reasonable expectation of privacy on the investigation subject's part. (Medical Laboratory, supra, at pp. 1187-1192.) The Desnick court characterized the doctor-patient relationship as one between a service provider and a customer and therefore viewed these parties' conversations in the medical office as essentially public conversations between strangers. We need not agree or disagree with this characterization in order to see that it renders the decision's reasoning inapplicable to the question before us. We are concerned here with interactions between coworkers rather than between a proprietor and customer. As the briefed question is framed, the interactions at issue here could not have been witnessed by the general public, although they could have been overheard or observed by other employees in the shared workplace. Alexander, supra, 551 Pa. 1, 708 A.2d 1251, involved the Pennsylvania state constitutional protection against unreasonable government searches, rather than the privacy element of the intrusion tort, and is directly inapplicable for that reason. (See fn. 3, ante.) In addition, Alexander, decided by a court of only six justices, had no majority on the expectation of privacy question. (See Alexander, supra, at p. 1258 (conc. opn. of Zappala, J.) [physician defendant had a "highly protected expectation of privacy" in communications occurring in his medical office, but the constitutional prerequisites for a valid interception of such

2004 Privacy Law Seminar Materials - Page 189 communications were met].) Even if it contained an applicable holding, moreover, the plurality opinion would not support defendants' position in the present case. Like Desnick, Alexander is premised on a characterization of the plaintiff doctor as a "proprietor" whose practice is " 'open to the public.' " (Alexander, supra, at p. 1257 (plur. opn. of Castille, J.).) As the Alexander plurality itself recognized, greater expectations of workplace privacy may be legally recognized when "the communication sought to be intercepted is strictly internal (such as communications which may arise between an employee and employer)...." (Ibid.) To summarize, we conclude that in the workplace, as elsewhere, the reasonableness of a person's expectation of visual and aural privacy depends not only on who might have been able to observe the subject interaction, but on the identity of the claimed intruder and the means of intrusion. (Shulman, supra, 18 Cal.4th at pp. 233-235, 74 Cal.Rptr.2d 843, 955 P.2d 469; Dietemann v. Time, Inc., supra, 449 F.2d at p. 249; Huskey v. National Broadcasting Co., Inc., supra, 632 F.Supp. at pp. 1287- 1288; Nader v. General Motors Corporation, supra, 307 N.Y.S.2d at p. 655, 255 N.E.2d 765; Pearson v. Dodd, supra, 410 F.2d at p. 704; Walker v. Darby, supra, 911 F.2d at p. 1579.) For this reason, we answer the briefed question affirmatively: a person who lacks a reasonable expectation of complete privacy in a conversation, because it could be seen and overheard by coworkers (but not the general public), may nevertheless have a claim for invasion of privacy by intrusion based on a television reporter's covert videotaping of that conversation. Defendants warn that "the adoption of a doctrine of per se workplace privacy would place a dangerous chill on the press' investigation of abusive activities in open work areas, implicating substantial First Amendment concerns." (Italics in original.) We adopt no such per se doctrine of privacy. We hold only that the possibility of being overheard by coworkers does not, as a matter of law, render unreasonable an employee's expectation that his or her interactions within a nonpublic workplace will not be videotaped in secret by a journalist. In other circumstances, where, for example, the workplace is regularly open to entry or observation by the public or press, or the interaction that was the subject of the alleged intrusion was between proprietor (or employee) and customer, any expectation of privacy against press recording is less likely to be deemed reasonable. Nothing we say here prevents a media defendant from attempting to show, in order to negate the offensiveness element of the intrusion tort, that the claimed intrusion, even if it infringed on a reasonable expectation of privacy, was "justified by the legitimate motive of gathering the news." (Shulman, supra, 18 Cal.4th at pp. 236-237, 74 Cal.Rptr.2d 843, 955 P.2d 469.) As for possible First Amendment defenses, any discussion must await a later case, as no constitutional issue was decided by the lower courts or presented for our review here. Question 2: Did the jury's findings in the first phase of trial, on liability under section 632, legally preclude maintenance of a common law intrusion claim? Answer: No. The class of "confidential communications" protected from interception under section 632 is defined as follows: "The term 'confidential communication' includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded." (§ 632, subd. (c).) The trial court used this definition to formulate two questions for the jury's special verdict after the first phase of trial, which was limited to the question of liability under section 632. The questions, together with the jury's answers, are quoted here as they appear in the minutes: "Question No. 1: Did the communications of plaintiff Mark Sanders, which were electronically recorded by Hat Cam, include any communications carried on in circumstances which reasonably indicate that plaintiff Mark Sanders desired such communications be confined to the parties thereto? "Answer: YES.

2004 Privacy Law Seminar Materials - Page 190 "Question No. 2: Were the communications which gave rise to the 'yes' answer to Question No. 1 made in circumstances in which the parties to the communication may reasonably have expected that the communications may have been overheard? "Answer: YES." Defendants contend, and the Court of Appeal agreed, that the jury's answer to the second question precluded any liability for common law intrusion because, by its answer, the jury determined plaintiff had no reasonable expectation of privacy in the interactions Lescht secretly videotaped. We disagree. The evidence and argument indicating that the Sanders-Lescht conversations could be overheard related only to possible overhearing by coworkers. There was no evidence the public was invited into the PMG Los Angeles office, or that the office was visited by the press or other public observers on a routine basis or was ordinarily subject to videotaped surveillance by the mass media. Nor did defense counsel so argue to the jury; his argument, instead, was simply that the evidence showed the physical circumstances of the Sanders-Lescht conversations made it possible, and indeed likely, the conversations would be overheard by coworkers in other cubicles or passing in the aisles between cubicles. In light of this evidence and argument, the jury's finding cannot reasonably be construed to negate all reasonable expectations of privacy by plaintiff in his interactions with Lescht. As we explained in our discussion of the first briefed question, the fact that coworkers may have observed a workplace interaction does not as a matter of law eliminate all expectations of privacy the participants may reasonably have had vis-a-vis covert videotaping by a stranger to the workplace. For this reason, the jury's finding as to an expectation of being overheard by coworkers did not as a matter of law preclude imposition of liability for common law intrusion. The trial court correctly denied defendants' midtrial motions for dismissal, nonsuit, and summary judgment.

Question 3: Were the jury instructions in the second phase of trial, on liability for intrusion, prejudicially erroneous? Answer: No. In the second phase of trial, the court gave, among others, the following jury instructions (numbered for reference in the discussion that follows): "The essential elements of [an intrusion] claim are, one, the defendant intentionally intruded physically or otherwise upon the private affairs or concerns of the plaintiffs by photographing plaintiffs with hat cams, and, two, the intrusion was substantial and of a kind that would be highly offensive to an ordinarily reasonable person." "The tort of invasion of privacy includes intrusions by clandestine photography of a person in his workplace if photographs are secretly taken of plaintiff without his or her consent in circumstances where a reasonable person would reasonably expect that the particular defendant would be excluded." " Employees take the risk that others present may not be what they seem to be, and that what is heard and seen at a work place may be repeated outside the workplace. But employees in a work place not open to the public do not necessarily take the risk that what is heard and seen will be transmitted by photography to the public at large." Defendants complain, first, that paragraph 1 omits the phrase "solitude or seclusion," found in the standard instruction upon which the paragraph was based. BAJI No. 7.20 (8th ed.1994 bound vol.) describes the first element of the intrusion tort as intentional intrusion "upon the solitude or seclusion, private affairs or concerns of the plaintiff." While defendants did not object below specifically to the omission of the words "solitude or seclusion," they did request a version of BAJI No. 7.20 that included the phrase; they now contend the court should have given the requested instruction rather than draft its own. Although this court, drawing on the Restatement's description of the tort, has used the same phrase (Shulman, supra, 18 Cal.4th at p. 231, 74 Cal.Rptr.2d 843, 955 P.2d 469), "solitude or seclusion" is not a unique or essential label for a reasonable expectation of privacy. In any event, to the extent the phrase denotes anything different from the "private affairs or concerns"

2004 Privacy Law Seminar Materials - Page 191 required under the court's instruction, defendants' requested standard instruction, requiring only an intrusion on the plaintiff's "solitude or seclusion, private affairs or concerns," delineates liability broader than the court's own instruction. The court's use of its own special instruction, therefore, could not have prejudiced defendants. Second, defendants complain generally of paragraphs 2 and 3, which were written by the court and given over defense objection. Defendants contend that by these instructions the court "completely abandoned the requirement of a reasonable expectation of privacy by substituting for it the expectation of not being surreptitiously photographed. By giving its special jury instructions, the trial court effectively directed the jury to determine that ABC's recording of Sanders was a per se invasion of privacy." (Italics in original.) Defendants' arguments are not well taken. The court did not direct any finding as to whether plaintiff enjoyed a reasonable expectation of privacy in his interactions with Lescht. The disputed instructions merely focused the jury's inquiry on the question whether it was reasonable for plaintiff to expect, in the circumstances of his particular workplace, that an interaction between coworkers would not be subject to covert videotaping by a television news producer. Because, as we have explained, the reasonableness of a privacy expectation must be assessed in reference to the identity of the intruder and the nature of the claimed intrusion, the proper question for the jury to decide was, indeed, whether plaintiff could reasonably expect he would not be secretly videotaped in his internal workplace interactions by a representative of the mass media. Defendants complain particularly of the instruction, in paragraph 3, that "employees in a work place not open to the public do not necessarily take the risk that what is heard and seen will be transmitted by photography to the public at large." Under the analysis contained in our answer to the first briefed question, however, this instruction correctly stated the law. An employee's workplace interactions, though perhaps witnessed by other workers, are not "necessarily " open to videographic capture for the purpose of public display if the workplace itself is not generally open to public view. We therefore conclude the challenged instructions were not prejudicially erroneous. By so holding, and by our earlier conclusion that the superior court did not err in refusing to dismiss plaintiff's cause of action for common law intrusion simply because of the jury's findings on the section 632 claim, we express no opinion on other procedural or evidentiary questions raised below, on the types and amounts of damages and costs awarded, or, indeed, on any of defendants' appellate claims other than those we have expressly addressed. Other claims are not within the limited scope of our review, but may, if properly presented, be addressed by the Court of Appeal on remand. DISPOSITION The judgment of the Court of Appeal is reversed, and the cause is remanded to that court for further proceedings consistent with our opinion. GEORGE, C.J., and MOSK, J., KENNARD, J., BAXTER, J., CHIN, J., and BROWN, J., concur.

2004 Privacy Law Seminar Materials - Page 192 California Civil Code - Physical and Constructive Invasion of Privacy

§ 1708.8. Physical or constructive invasion of privacy; damages and equitable remedies; employee-employer relationships; defenses (a) A person is liable for physical invasion of privacy when the defendant knowingly enters onto the land of another without permission or otherwise committed a trespass, in order to physically invade the privacy of the plaintiff with the intent to capture any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a personal or familial activity and the physical invasion occurs in a manner that is offensive to a reasonable person. (b) A person is liable for constructive invasion of privacy when the defendant attempts to capture, in a manner that is offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a personal or familial activity under circumstances in which the plaintiff had a reasonable expectation of privacy, through the use of a visual or auditory enhancing device, regardless of whether there is a physical trespass, if this image, sound recording, or other physical impression could not have been achieved without a trespass unless the visual or auditory enhancing device was used. (c) A person who commits physical invasion of privacy or constructive invasion of privacy, or both, is liable for up to three times the amount of any general and special damages that are proximately caused by the violation of this section. This person may also be liable for punitive damages, subject to proof according to Section 3294. If the plaintiff proves that the invasion of privacy was committed for a commercial purpose, the defendant shall also be subject to disgorgement to the plaintiff of any proceeds or other consideration obtained as a result of the violation of this section. (d) A person who directs, solicits, actually induces, or actually causes another person, regardless of whether there is an employer-employee relationship, to violate subdivision (a) or (b) or both is liable for any general, special, and consequential damages resulting from each said violation. In addition, the person that directs, solicits, instigates, induces, or otherwise causes another person, regardless of whether there is an employer-employee relationship, to violate this section shall be liable for punitive damages to the extent that an employer would be subject to punitive damages pursuant to subdivision (b) of Section 3294. (e) Sale, transmission, publication, broadcast, or use of any image or recording of the type, or under the circumstances, described in this section shall not itself constitute a violation of this section, nor shall this section be construed to limit all other rights or remedies of plaintiff in law or equity, including, but not limited to, the publication of private facts. (f) This section shall not be construed to impair or limit any otherwise lawful activities of law enforcement personnel or employees of governmental agencies or other entities, either public or private who, in the course and scope of their employment, and supported by an articulable suspicion, attempt to capture any type of visual image, sound recording, or other physical impression of a person during an investigation, surveillance, or monitoring of any conduct to obtain evidence of suspected illegal activity, the suspected violation of any administrative rule or regulation, a suspected fraudulent insurance claim, or any other suspected fraudulent conduct or activity involving violation of law or pattern of business practices adversely affecting the public health or safety. (g) In any action pursuant to this section, the court may grant equitable relief, including, but not limited to, an injunction and restraining order against further violations of subdivision (a) or (b). (h) The rights and remedies provided in this section are cumulative and in addition to any other rights and remedies provided by law. (i) It is not a defense to a violation of this section that no image, recording, or physical impression was captured or sold. (j) For the purposes of this section, "for a commercial purpose" means any act done with the expectation of a sale, financial gain, or other consideration. A visual image, sound recording, or other physical impression shall not be found to have been, or intended to have been captured for a commercial purpose unless it is intended to be, or was in fact, sold, published, or transmitted. (k) For the purposes of this section, "personal and familial activity" includes, but is not limited to, intimate details of the plaintiff's personal life, interactions with the plaintiff's family or significant others, or other aspects of plaintiff's private affairs or concerns. Personal and familial activity does not include illegal or otherwise criminal activity as delineated in subdivision (f).

2004 Privacy Law Seminar Materials - Page 193 However, "personal and familial activity" shall include the activities of victims of crime in circumstances where either subdivision (a) or (b), or both, would apply. (l) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

LAW REVIEW AND JOURNAL COMMENTARIES

Insatiable "skirt-up" voyeurs force California lawmakers to expand privacy protection in public places. David D. Kremenetsky, 31 McGeorge L.Rev. 285 (2000).

Reasonable expectations and the erosion of privacy. Shaun B. Spencer, 39 San Diego L.Rev. 843 (2002).

Tipping the Scales: Courts Struggle to Strike a Balance Between the Public Disclosure of Private Facts Tort and the First Amendment. Peter Gielniak, 39 Santa Clara L.Rev. 1217 (1999).

2004 Privacy Law Seminar Materials - Page 194 C. OREGON State v. Campbell 759 P.2d 1040 (Or. 1988) LENT, Justice. The issue is whether police use of a radio transmitter to locate a private automobile to which the transmitter has been surreptitiously attached is a "search" or "seizure" under Article I, section 9, of the Oregon Constitution. [FN1] We hold that it is a search. Because no warrant authorized the police to locate defendant's automobile in this manner, we affirm the decisions of the circuit court and the Court of Appeals to suppress the evidence thereby obtained.

FN1. Article I, section 9, of the Oregon Constitution provides: "No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized." I. . . . . In late 1984, police officers in Washington and Columbia Counties began to suspect that defendant was committing residential burglaries in a rural area along the border of those two counties. The police suspected defendant because he was then on probation for burglaries that were committed in a somewhat similar fashion, because he lived in the area, and because his automobile had been seen near some of the burglarized residences when those burglaries were thought to have been committed. [FN3] To verify their suspicion, police officers attempted to follow defendant's automobile on a number of occasions but were unsuccessful. The rural area made it difficult to follow defendant closely without detection, and defendant began to drive evasively after becoming aware of the efforts to follow him.

FN3. Witnesses for the state at the suppression hearing could only generally state the reasons for suspecting defendant of committing the burglaries. For example, they testified that defendant's automobile had been seen "near" or "in the area" of some of the burglaries, but they did not testify how near or even which burglaries. Especially given that defendant lived in the area, these details would have been important to any judicial evaluation of the substantiality of the police officers' suspicion. In addition, the similarity between the burglaries of which defendant was convicted and the burglaries of which he was suspected was stated as "kicking in front doors to gain entrance and then taking all kinds of property." The circuit court found that this "modus operandi " was not "unusual or unique and that burglars in general often entered residences in such fashion and took such articles." The court concluded that the facts presented did not establish probable cause to believe that defendant was engaged in burglarizing residences in the area.

Having failed to follow defendant visually, members of the Washington County Sheriff's Office decided to follow him by means of a radio transmitter attached to his automobile. A detective from that office testified that radio transmitters were used to follow individuals pursuant to "in-house criteria." "Number one, it has to be a person that our intelligence tells [us] is active in whatever criminal activity we're trying to investigate. Number two, another major consideration that we have is we have attempted to follow them through our ordinary means. That means to have four or five cars out and try on their regular moving surveillance to follow the person. It's after that fails and we have no other resource then we will use the bird dogs [radio transmitters]." The detective testified that no effort was made to obtain a search warrant to attach or monitor the transmitter because no warrant was believed to be required so long as the attachment was to the outside of the automobile while it was in a public place. On January 15, 1985, a Washington County Sheriff's Office detective surreptitiously attached a small, battery-powered radio transmitter to the underside of defendant's automobile while it was parked in a public parking lot. Magnets in the transmitter held it to the automobile, and the attachment was made without entering the vehicle. The transmitter broadcasted a radio signal by which a companion receiver placed in an automobile or aircraft could determine the direction of the transmitter from the receiver. By gauging the strength of the signal received, a rough estimate of the transmitter's distance could also be made.

2004 Privacy Law Seminar Materials - Page 195 Initial efforts to follow defendant's automobile with a ground-based receiver were either unsuccessful or did not uncover any criminal activity. On January 21, 1985, a police officer replaced the transmitter's batteries, again while the automobile was in a public parking lot. The next day, after failing to pick up the signal with the ground-based receiver, Officers attempted to locate the automobile with a receiver in a small airplane. That receiver also failed to pick up the signal in the area in which the burglaries had been committed, but, by climbing to 4500 feet and flying in widening patterns, the officers were able to pick up a faint signal, which was tracked to a rural area near Molalla, Oregon, some 40 miles to the southeast in Clackamas County. There they discovered defendant's automobile parked along a public road near a residence. From the airplane, they visually followed the automobile when it moved to the driveway of another residence, where they observed defendant get out of the automobile and act in a manner that suggested to them that he was burglarizing the residence. Defendant was indicted for burglarizing the two Clackamas County residences and moved to suppress all evidence derived from the use of the radio transmitter attached to his automobile. [FN4] The circuit court held that use of the transmitter required a warrant based upon a showing of probable cause to believe that defendant's automobile was engaged in ongoing criminal activity. Because the police had not obtained a warrant, and because the court concluded that no exigency obviated the need for a warrant, the court allowed defendant's motion to suppress. . . .

FN4. Defendant did not challenge the visual observations from the airplane, except as the product of the use of the transmitter.

II. Defendant argues that the attachment and monitoring of the transmitter violated his rights under Article I, section 9, and the Fourth Amendment to the United States Constitution. [FN5] Before deciding a federal claim, we must first consider and decide all questions of state law. State v. Kennedy, 295 Or. 260, 262-65, 666 P.2d 1316 (1983) (citing cases). "This is required, not for the sake either of parochialism or of style, but because the state does not deny any right claimed under the federal Constitution when the claim before the court in fact is fully met by state law." Sterling v. Cupp, 290 Or. 611, 614, 625 P.2d 123 (1981); see also State v. Spada, 286 Or. 305, 309, 594 P.2d 815 (1979). We also may not reach a state constitutional issue if a claim is fully satisfied under other provisions of state law. See, e.g., State v. Valdez, 277 Or. 621, 629, 561 P.2d 1006 (1977). This rule applies even if the parties have raised only constitutional issues on appeal. State v. Spada, supra, 286 Or. at 309, 594 P.2d 815.

FN5. The Fourth Amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The Fourth Amendment applies to the states through the due process clause of the Fourteenth Amendment. Ker v. California, 374 U.S. 23, 30-34, 83 S.Ct. 1623, 1628-30, 10 L.Ed.2d 726 (1963).

In accordance with their "in-house criteria," the police officers attached and monitored the transmitter on defendant's automobile in order to investigate and prevent the crime of burglary, ORS 164.225. No Oregon statute governs the use of radio transmitters to locate objects or people, and, apart from what the constitution may require, the conduct of the police officers in attaching and monitoring the transmitter was not contrary to any other law. The issue on which the lawfulness of the police conduct turns, then, is whether the attachment or monitoring of the transmitter was a search or seizure under Article I, section 9, of the Oregon Constitution. A search or seizure to obtain evidence of a crime is unconstitutional if no warrant authorized the search or seizure and there is no exigency that would obviate the need for a warrant. State v. Kosta, 304 Or. 549, 553, 748 P.2d 72 (1987); State v. Owens, 302 Or. 196, 205-06, 729 P.2d 524 (1986). In this case, there was neither a warrant nor any egency that would have obviated the need for a warrant. If the attachment or monitoring of the transmitter was a search or seizure, the motion to suppress was properly allowed. See State v. Kosta, supra, 304 Or. at 553, 748 P.2d 72; State v. Tanner, 304 Or. 312, 315, 745 P.2d 757 (1987); State v. Davis, 295 Or. 227, 231- 37, 666 P.2d 802 (1983); State v. Laundy, 103 Or. 443, 494, 204 P. 958, 206 P. 290 (1922). III.

2004 Privacy Law Seminar Materials - Page 196 This court has often stated that "privacy" is the interest protected by Article I, section 9, against unreasonable searches but has had little occasion to further define that interest. See, e.g., State v. Tanner, supra, 304 Or. at 319, 745 P.2d 757; State v. Owens, supra, 302 Or. at 206, 729 P.2d 524; State v. Louis, 296 Or. 57, 60-61, 672 P.2d 708 (1983); State v. Elkins, 245 Or. 279, 288-92, 422 P.2d 250 (1966). Nearly all of the government actions that have been challenged under Article I, section 9, have long been recognized as searches, and the court has had no difficulty equating these traditionally recognized searches with infringements of privacy interests. See, e.g., State v. Louis, supra, 296 Or. at 60, 672 P.2d 708. Privacy is also recognized by the Supreme Court of the United States as the interest protected by the Fourth Amendment's prohibition on unreasonable searches. See Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Since Katz, the Court has defined a Fourth Amendment search as a government action that infringes upon a "reasonable expectation of privacy." [FN6] The state urges us to adopt this definition, together with the Court's applications of it, for Article I, section 9. The state points in particular to iUnited States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983), and United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984). In those cases, the Court held that monitoring the location of a radio transmitter, which had been surreptitiously attached to an object, was a search under the Fourth Amendment if the transmitter was in a "private place" such as a home, but not a search if the transmitter was in a "public place," including an automobile. The Court's rationale was that an individual has a "reasonable expectation of privacy" in the movement and location of an object only within "private places" that are not open to public view. [FN7]

FN6. Although the phrase "reasonable expectation of privacy" is often attributed to Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), that phrawhere appears in the opinion for the Court. The phrase was employed in Justice Harlan's concurring opinion, 389 U.S. at 360, and was first used in an opinion for the Court in Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873-74, 20 L.Ed.2d 889 (1968). The Court has since used a number of apparently interchangeable variations of the phrase. See, e.g., United States v. Jacobsen, 466 U.S. 109, 122-23 & n. 22, 104 S.Ct. 1652, 1661-62 n. 22, 80 L.Ed.2d 85 (1984) ("an expectation of privacy that society is prepared to consider reasonable"; "an interest in privacy that society is prepared to recognize as reasonable"; a "legitimate expectation of privacy"; "a legitimate interest in privacy"). In United States v. White, 401 U.S. 745, 786, 91 S.Ct. 1122, 1143, 28 L.Ed.2d 453 (1971) (Harlan, J., dissenting), Justice Harlan himself criticized the Court's application of the phrase, which he believed was a misunderstanding of his Katz concurrence.

FN7. We note that there is no presumption that interpretations of the Fourth Amendment by the Supreme Court of the United States are correct interpretations of Article I, section 9. See State v. Kennedy, 295 Or. 260, 265-67, 666 P.2d 1316 (1983); State v. Caraher, 293 Or. 741, 748-52, 653 P.2d 942 (1982). Article I, section 9, and the Fourth Amendment have a common source in the early state constitutions, but they have textual and substantive differences. Even were the provisions identical, this court would nonetheless be responsible for interpreting the state provision independently, though not necessarily differently. Majority opinions of the Supreme Court of the United States may be persuasive, but so may concurring and dissenting opinions of that court, opinions of other courts construing similar constitutional provisions, or opinions of legal commentators. What is persuasive is the reasoning, not the fact that the opinion reaches a particular result.

This court has expressed doubts about the wisdom of defining Article I, section 9, searches in terms of "reasonable expectations of privacy." See State v. Tanner, supra, 304 Or. at 321 n. 7, 745 P.2d 757; State v. Louis, supra, 296 Or. at 60, 672 P.2d 708. Because the phrase continues to appear so often in arguments, we here expressly reject it for defining searches under Article I, section 9. The phrase becomes a formula for expressing a conclusion rather than a starting point for analysis, masking the various substantive considerations that are the real bases on which Fourth Amendment searches are defined. See, e.g., Wilkins, Defining the "Reasonable Expectation of Privacy": An Emerging Tripartite Analysis, 40 Vand.L.Rev. 1077 (1987). Moreover, the privacy protected by Article I, section 9, ot the privacy that one reasonably expects but the privacy to which one has a right. See State v. Tanner, supra, 304 Or. at 321 n. 7, 745 P.2d 757. The Supreme Court of the United States is not unaware of this difficulty, for it has stated that a "reasonable expectation of privacy" is an expectation of privacy that is "legitimate" or that "society is prepared to recognize as reasonable." E.g., *165 United States v. Jacobsen, 466 U.S. 109, 122- 23, 104 S.Ct. 1652, 1661-62, 80 L.Ed.2d 85 (1984). The definitional gloss, however, does not make the phrase any more useful for defining a search. Justice Harlan, who was responsible for originating the phrase "reasonable expectation of privacy" in his Katz concurrence, wrote four years later: "While [the 'expectation of privacy'] formulations represent an advance over the

2004 Privacy Law Seminar Materials - Page 197 unsophisticated trespass analysis of the common law, they too have their limitations and can, ultimately, lead to the substitution of words for analysis. The analysis must, in my view, transcend the search for subjective expectations or legal attribution of assumptions of risk. Our expectations, and the risks we assume, are in large part reflections of laws that translate into rules the customs and values of the past and present. "Since it is the task of the law to form and project, as well as mirror and reflect, we should not, as judges, merely recite the expectations and risks without examining the desirability of saddling them upon society. The critical question, therefore, is whether under our system of government, as reflected in the Constitution, we should impose on our citizens the risks of the electronic listener or observer without at least the protection of a warrant requirement." (Footnote omitted.) United States v. White, 401 U.S. 745, 786, 91 S.Ct. 1122, 1143, 28 L.Ed.2d 453 (1971) (Harlan, J., dissenting). We therefore turn to the substance of the state's arguments, shorn of their "reasonable expectation of privacy" packaging. The state, relying on Karo and Knotts, makes essentially two arguments, which are based on somewhat different factual premises. The first argument is that no privacy interest of defendant was infringed because the transmitter disclosed only what any member of the public could legitimately have observed. The second argument is that, even if the transmitter "enhanced" the observations of the police, defendant had no privacy interest outside "protected premises." Thus, the police engage in a search only if they monitor a transmitter while it is within "protected premises" such as a home. We do not accept either the factual or the legal premise of the state's first argument. The state says in its brief, quoting United States v. Knotts, supra, 460 U.S. at 281-82, 103 S.Ct. at 1085-86; "When defendant traveled over the public streets and onto the driveways of other persons' property, he 'voluntarily conveyed to anyone who wanted to look the fact that he was traveling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto [someone else's] private property.' " (Braed material added by the state.) The argument is factually unsound on the record before us, because the police, notwithstanding diligent efforts, found it impossible to follow defendant's automobile through visual surveillance. Indeed, their policy was not to use a transmitter unless visual surveillance had failed. Moreover, it is wrong to characterize the radio transmitter as simply a device for "enhancing" visual observations in the manner of moderate power binoculars or camera lenses. Cf. State v. Louis, supra, 296 Or. at 61, 672 P.2d 708 (use of 135 mm camera lens not a search). The transmitter has nothing to do with vision; it broadcasts a signal that enables the police to locate, with little delay, the transmitter from anywhere that its signal can be received. Using the transmitter, police were able to locate defendant's automobile some 40 miles from where they expected to find it, and to do so they did not need to maintain constant surveillance of the transmitter or to follow a trail, as one would track a person by looking for footprints, broken branches, etc. But even were we to accept the factual premise of the state's first argument, its legal premise is also unsound. That premise is that information legitimately available through one means may be obtained through any other means without engaging in a search. The constitutional provisions against unreasonable searches and seizures do not protect a right to keep any information, no matter how hidden or "private," secret from the government. Cf. State v. Weist, 302 Or. 370, 376-77, 730 P.2d 26 (1986) (constitutional provisions do not limit warrants to evidence of crimes); ORS 133.535 (statutory specification of things subject to search and seizure); Warden v. Hayden, 387 U.S. 294, 304, 87 S.Ct. 1642, 1648-49, 18 L.Ed.2d 782 (1967) (rejecting contention that police may not search for and seize "mere evidence"). What the provisions forbid are unreasonable searches and seizures, i.e., certain acts of the government. Article I, section 9, "presents the police with a web of rules that are meant to protect the privacy interests of 'the people,' and the police violate section 9 if and only if they violate these rules." State v. Tanner, supra, 304 Or. at 320, 745 P.2d 757. Whether police conduct is a search does not turn on whether its object could be discovered by conduct that is not a search. For example, in State v. Louis, supra, the defendant exposed himself to public view through his living room window. This court held that police officers did not engage in a search

2004 Privacy Law Seminar Materials - Page 198 by photographing him from a house across the street with a 135 mm camera lens, which provided only minimal enhancement of what could be observed with the unaided eye. Nonetheless, the police officers would have engaged in a search had they entered his living room to observe what could be observed from the street. Similarly, if an undercover police officer is invited into a home and observes illegal conduct, the officer has not committed a search, but an unconsented entry into the home by other police officers to observe what the undercover officer could or did observe would be a search. The issue is not whether what the police learned by the transmitter in this case was "exposed to public view," but whether using the transmitter is an action that can be characterized as a search. The state's second argument does not rest on the factual premise that the police observed with the transmitter what any member of the public could have observed. The argument, rather, is that only government actions that observe conduct or objects within "protected premises" are searches, for, so the state argues, it is only within "protected premises" that an individual has a privacy interest protected by Article I, section 9. In making this argument, the state concedes that the transmitter at least "enhances" what members of the public can observe. The state cites State v. Louis, supra, in support of its argument. After holding that police use of a 135 mm camera lens to take pictures of the interior of a house from a neighboring house was not a "search" under Article I, section 9, the court continued: "Such a case may not be made out, however, if objects or conduct in protected premises can be seen or overheard only by technologically enhanced efforts. A determined official effort to see or hear what is not plain to a less determined observer may become an official 'search.' " (Emphasis added.) 296 Or. at 61, 672 P.2d 708. The state reads the italicized language in support of its argument, but that is a misreading of Louis, as a quotation from a preceding paragraph makes clear: "Defendant was observed in his living quarters, which are the quintessential domain protected by the constitutional guarantee against warrantless searches. Application of the guarantee to people's 'houses,' Or. Const., Art. I, § 9, need not depend on also showing an 'expectation of privacy.' That phrase was employed in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), to extend personal Fourth Amendment protections beyond the areas literally protected by that amendment (in that case to a person using a public telephone booth), not to qualify the unquestioned protection afforded to private quarters."296 Or. at 60, 672 P.2d 708. This court's reference to "protected premises" in Louis was intended to affirm that the recognition of privacy as the fundamental interest protected against government searches did not qualify the protection traditionally accorded to "protected premises" such as houses under the older "constitutionally protected area" analysis for identifying "searches" under the Fourth Amendment and Article I, section 9. Louis did not imply that only government actions that learned something about the interior of "protected premises" could be searches. For a half-century, the United States Supreme Court defined a Fourth Amendment search as a physical trespass to a "constitutionally protected area," i.e., a physical trespass to those "areas" explicitly protected by the Fourth Amendment: persons, houses, papers, and effects. See, e.g., Olmstead v. United States, 277 U.S. 438, 465-66, 48 S.Ct. 564, 568, 72 L.Ed. 944 (1928) (telephone tap was not a search because the tap did not involve a trespass to person, house, paper or effect). This definition of a search was long criticized for its narrow and arbitrary reading of the interests protected by the Fourth Amendment. See Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 382 & n. 316 (1974). With a growing recognition that privacy was the principal interest to be protected, the Court began to abandon the definition, see, e.g., Jones v. United States, 362 U.S. 257, 266, 80 S.Ct. 725, 733-34, 4 L.Ed.2d 697 (1960); Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 682-83, 5 L.Ed.2d 734 (1961), and eventually rejected it altogether in Katz v. United States, supra. In Katz, FBI agents placed a listening device on the outside of a public telephone booth. The device was not a wiretap and would ordinarily pick up only the words of the person in the booth. Id., 389 U.S. at 354 & nn. 14-15, 88 S.Ct. at 512-13 nn. 14-15. The defendant argued that use of the listening device violated his Fourth Amendment rights because a telephone booth was a "constitutionally protected area." The government argued that the booth was not a "constitutionally protected area," and that, in any event, the listening device was placed on the

2004 Privacy Law Seminar Materials - Page 199 outside of the booth. The Court rejected the parties' formulation of the constitutional issue. "[T]his effort to decide whether or not a given 'area,' viewed in the abstract, is 'constitutionally protected' deflects attention from the problem presented by this case. For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own 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." (Footnote and citations omitted.) 389 U.S. at 351-52, 88 S.Ct. at 511-12. To be sure, the state does not ask us to go so far as to rule that there is no search without a physical trespass to "protected premises." But the notion that the interests protected against government searches by Article I, section 9, are limited to interests in certain "protected premises" is unsustainable given this court's repeated recognition of privacy as the principal interest protected against unlawful searches. See State v. Tanner, supra, 304 Or. at 319, 745 P.2d 757; State v. Owens, supra, 302 Or. at 206, 729 P.2d 524; State v. Elkins, supra, 245 Or. at 288- 92, 422 P.2d 250. Intrusions and technologically enhanced observations into "protected premises" infringe privacy interests protected by Article I, section 9, but the question whether an individual's privacy interests have been infringed by an act of the police cannot always be resolved by reference to the area at which the act is directed. Cf. State v. Tanner, supra, (search of home in which defendant had no possessory interest nevertheless violated defendant's privacy interests); Katz v. United States, supra. With respect to the use of radio transmitters to locate objects and people, it is not even possible to ascertain whether the use is directed at a "protected premise" until after the *170 object or person is located. Learning the location of the object or person is, after all, the purpose of the device. This fact demonstrates another difficulty with the state's contention that police use of transmitter is a search only if the transmitter is in a "protected premise." The constitution is addressed to the government. The rules laid down for the government by Article I, section 9, must be rules that the government is capable of following. See State v. Tanner, supra, 304 Or. at 320, 745 P.2d 757. Using a transmitter is either a search or it is not. Whether using the transmitter is a search cannot depend upon the fortuity of where the transmitter happens to be taken by the person under observation. In order to decide whether the government has searched, we must look to the nature of the act asserted to be a search. A privacy interest, as that phrase is used in this court's Article I, section 9, opinions, is an interest in freedom from particular forms of scrutiny. The interest is not one of freedom from scrutiny in general, because, if that were the case, any form of scrutiny would infringe a privacy interest and thereby be considered a search. A court has never held, for example, that a police officer engages in a search by making unaided observations from a public place, and an individual therefore cannot be said to have a constitutionally protected interest in freedom from such scrutiny. Government scrutiny aside, individual freedom from scrutiny is determined by social and legal norms of behavior, such as trespass laws and conventions against eavesdropping. See Katz v. United States, supra, 389 U.S. at 350-51, 88 S.Ct. at 510-11; United States v. White, supra, 401 U.S. at 786, 91 S.Ct. at 1143 (Harlan, J., dissenting); Gross, The Concept of Privacy, 42 NYUL Rev 34, 35-37 (1967). One explanation for the absence of a constitutionally protected interest against certain forms of government scrutiny may be the absence of any freedom from those forms of scrutiny in society at large. The reason that the observations of a police officer who is standing in a public place infringe no privacy interest may be that there is no generally recognized freedom from such scrutiny by private individuals. Such observations by the police would thus not significantly reduce the freedom from scrutiny available to "the people." In contrast, both laws and social conventions have long recognized the right to exclude others from certain places deemed to be private. If the government were able to enter such places without constitutional restraint, "the people's" freedom from scrutiny would be substantially impaired. Our intention is not to set forth a definition of search based upon social and legal norms of behavior but to clarify the nature of the interest protected by Article I, section 9. Social and legal norms cannot govern the scope of the constitutional provision, which itself plays a substantial role in shaping those no. See, e.g., United States v. White, supra, 401 U.S. at 786, 91 S.Ct. at 1143 (Harlan, J., dissenting). But since 1859, when Article I, section 9, was adopted, the government's ability to scrutinize the affairs of "the people" has been enhanced by technological and organizational developments that could not have been foreseen then. Tiny

2004 Privacy Law Seminar Materials - Page 200 radio transmitters for surreptitiously locating objects to which the transmitters are attached are among these developments. In deciding whether government practices that make use of these developments are searches, we must decide whether the practice, if engaged in wholly at the discretion of the government, will significantly impair "the people's" freedom from scrutiny, for the protection of that freedom is the principle that underlies the prohibition on "unreasonable searches" set forth in Article I, section 9. [FN8] In this context, it is appropriate to recall what this court said in State v. Robertson, 293 Or. 402, 434, 649 P.2d 569 (1982): "Constitutional interpretation of broad clauses locks neither the powers of lawmakers nor the guarantees of civil liberties into their exact historic forms in the 18th and 19th centuries, as long as the extension remains true to the initial principle."

FN8. Cf. United States v. White, supra, 401 U.S. at 786, 91 S.Ct. at 1143 (Harlan, J., dissenting) ("The critical question * * * is whether under our system of government, as reflected in the Constitution, we should impose on our citizens the risks of the electronic listener or observer without at least the protection of a warrant requirement."); 1 LaFave, Search and Seizure 313 (2d ed 1987) ("[T]he fundamental inquiry is whether [a government] practice, if not subjected to Fourth Amendment restraints, would be intolerable because it would either encroach too much upon the 'sense of security' or impose unreasonable burdens upon those who wished to maintain that security."); Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 403 (1974) ("The ultimate question * * * is whether, if the particular form of surveillance practiced by the police is permitted to go unregulated by constitutional restraints, the amount of privacy and freedom remaining to citizens would be diminished to a compass inconsistent with the aims of a free and open society."). As we noted above, use of a radio transmitter to locate an object to which the transmitter is attached cannot be equated with visual tracking. See also 1 LaFave, Search and Seizure § 2.7(d) (2d ed 1987). Any device that enables the police quickly to locate a person or object anywhere within a 40- mile radius, day or night, over a period of several days, is a significant limitation on freedom from scrutiny, as the facts of this case demonstrate. The limitation is made more substantial by the fact that the radio transmitter is much more difficult to detect than would- be observers who must rely upon the sense of sight. Without an ongoing, meticulous examination of one's possessions, one can never re that one's location is not being monitored by means of a radio transmitter. Thus, individuals must more readily assume that they are the objects of government scrutiny. Professor Amsterdam and Justice Harlan, among others, have observed that freedom may be impaired as much, if not more so, by the threat of scrutiny as by the fact of scrutiny. See United States v. White, supra, 401 U.S. at 787-89, 91 S.Ct. at 1143-45 (Harlan, J., dissenting); Amsterdam, supra, at 402-03. The problem presented by this case is essentially much like that presented in Katz, which was whether using a hidden listening device placed in a public place could be considered a search. Conversations in public may be overheard, but it is relatively easy to avoid eavesdroppers by lowering the voice or moving away. Moreover, one can be reasonably sure of whether one will be overheard. But if the state's position in this case is correct, no movement, no location and no conversation in a "public place" would in any measure be secure from the prying of the government. There would in addition be no ready means for individuals to ascertain when they were being scrutinized and when they were not. That is nothing short of a staggering limitation upon personal freedom. We could not be faithful to the principles underlying Article I, section 9, and conclude that such forms of surveillance were not searches. [9] We hold that the use of the radio transmitter to locate defendant's automobile was a search under Article I, section 9, of the Oregon Constitution. Because the police did not have a warrant to use the transmitter, and because no exigency obviated the need to obtain a warrant, use of the transmitter violated defendant's rights under Article I, section 9. [FN9] Accordingly, the circuit court properly suppressed all evidence obtained through use of the device.

FN9. In United States v. Karo, 468 U.S. 705, 717-18, 104 S.Ct. 3296, 3304-05, 82 L.Ed.2d 530 (1984), the Court addressed the government's concern that warrants for electronic tracking and locating devices would be impracticable because of the "exigencies" surrounding their use and because of the need to satisfy the particularity requirements of the Fourth Amendment. Article I, section 9, and ORS 133.565 also contain particularity requirements for warrants. Without necessarily endorsing the Court's statements in Karo, what it said there should in some measure address concerns that the state may have on this score. Our disposition of this case makes it unnecessary to decide whether the Court of Appeals correctly held that the attachment and monitoring of the transmitter was a "seizure" under Article I, section 9. We also need not address defendant's Fourth Amendment arguments.

2004 Privacy Law Seminar Materials - Page 201 The judgment of the circuit court and the decision of the Court of Appeals are affirmed. The case is remanded to the circuit court for further proceedings. [FN10]

FN10. We note that defendant was on probation for burglary when the transmitter was used. Among the conditions of his probation was that he be subject to certain searches not involved in this case. Use of a locating transmitter to keep track of a probationer's movements may be constitutionally permissible without further justification if made a condition of probation. We express no opinion on that issue or on whether such a condition would be statutorily permissible under ORS 137.540. Our decision today also does not address the constitutionality of devices that have recently come into use for monitoring the location of persons sentenced to "house arrest." 306 Or. 157, 759 P.2d 1040, 57 USLW 2099

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