Journal of Criminal Law and Criminology Volume 92 Article 1 Issue 1 Fall Fall 2001 Fourth Amendment Privacy Interests William C. Heffernan Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation William C. Heffernan, Fourth Amendment Privacy Interests, 92 J. Crim. L. & Criminology 1 (2001-2002) This Criminal Law is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. 0091-4169/01/9201-0001 I THE JOURNALOF CRIMINAL LAW & CRIMINOLOGY Vol. 92, No. Copyright C 2001 by Northwestern University, School of Law Printed in US.A, CRIMINAL LAW FOURTH AMENDMENT PRIVACY INTERESTS WILLIAM C. HEFFERNAN* I. INTRODU CTION .............................................................................. 2 II. PRIVACYAND PERSONAL SECURITY: ENTICKTO OLMSTEADTO KATZ.. 7 A. The Fourth Amendment's Guarantee of Personal Security ... 9 B. The Eighteenth Century Sources ......................................... 12 C. Trespass and the Eighteenth Century Heritage: ChiefJustice Taft's Opinion for the Court in Olmstead v. United States ........ 15 D. The Court's Repudiation of the Trespass Standard in Katz v. United States.............................................................. 17 1. Katz and the Court's Recognition of Privacy as an Independent Fourth Amendment Variable ................. 18 2. Vindicating the Court's Conclusions in Katz ................ 19 E. Fourth Amendment Pluralism ............................................ 24 III. DEVELOPING THE FORBEARANCE MODEL ...................... 31 A. Post-Katz Privacy Jurisprudence: An Unreasonable Expectation of Eternal Vigilance .............................................. 32 1. The Anxious Quest for Privacy ...................................... 38 2. The Problem of Exposure to Third Party Facilitators ...... 39 3. Calculating What a Member of the Public Might D iscover ...............................................................................39 B. The Harlan Test I: From Social Expectations to Legally Enforceable Privacy Interests ...................................................... 40 C. The Harlan Test II: Methods of Identifying Privacy In terests ...................................................................................... 45 D. The Features of a Valid Privacy Claim ................................ 48 1. The Different Types of Privacy: Privacy of the Person and Inform ational Privacy .................................................... 52 2. Interpersonal Privacy: Symmetrical and Asymmetrical R elationships ....................................................................... 53 3. Asymmetry in Surveillance Relationships ..................... 56 WILLIAM C. HEFFERNAN [Vol. 92 4. The "What" and "How" of Privacy Analysis: Conventional and Idiosyncratic Sources of Personal V uln erability ......................................................................... 57 5. Recapitulation ................................................................ 60 E. A Reasonable Expectation of Forbearance on the Part of O th ers ........................................................................................ 6 1 F. The Possibility of a Role Discount for the Police: Rejecting an Across-the-Board Discount While Accommodating the Government During Emergencies ............................................ 67 IV. APPLYING THE FORBEARANCE MODEL ................................... 72 A. Settings Where Privacy Cannot Be at Stake .............. 72 B. Observational Surveillance ................................................... 80 1. Private Objects and Information ................................... 81 2. Privacy C ues .................................................................... 87 3. Surveillance of Behavior in Public Places ..................... 94 4. A Note on Technology and Privacy ................................. 101 C. Interactive Surveillance .......................................................... 106 1. N onproblem atic Settings ................................................. 110 2. H arder C ases ..................................................................... 118 C ON CLU SIO N ........................................................................................ 126 I. INTRODUCTION Is it possible to incorporate a serious concern for privacy into Fourth Amendment jurisprudence? Even before the terrorist attacks on America, the question was a pertinent one; in the aftermath, it has become even more so. Fourth Amendment case law is of course grounded in an explicit concern for reasonable expectations of privacy.2 But given a long line of decisions rendered prior to the attacks, one could * Professor of Law, John Jay College of Criminal Justice and the Graduate Center, City University of New York. Marc Bernstein, Janice Dunham, and Steve Wasserman provided helpful suggestions concerning an earlier draft of this article. 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. U.S. CONST. amend. IV. Justice Harlan developed the expectation-of-privacy test in his concurring opinion in Katz v. United States, 389 U.S. 347, 361 (1967). Numerous opinions of the Court have since adopted Harlan's test for purposes of Fourth Amendment analysis. See, e.g., Minnesota v. Olson, 495 U.S. 91, 95-96 (1990); California v. Ciraolo, 476 U.S. 207, 211 (1986). 20011 FOURTH AMENDMENT PRIVACY INTERESTS hardly say that the Supreme Court has shown a serious concern for privacy. The Court, for example, has held that individuals do not have any Fourth Amendment privacy interests in their bank records,3 in the phone numbers they dial,4 or in freedom 5 from low-flying surveillance of their backyards. Moreover, by the Court's analysis, even our garbage places us at risk. If someone wraps her garbage carefully in an opaque bag and places the bag on the street, that person, the Court has held, cannot expect the police to refrain from inspecting it to find out what's going on in her home.6 Clearly, the Court has parsed the concept of privacy as thinly as possible. It has expressed concern for residential privacy'-but has allowed police helicopters to conduct surveillance of backyards.' It has expressed concern for the privacy of phone conversations 9 but has said people have no ° privacy interest in the numbers they dial.' Whether-or how much-terrorism's arrival in America will influence future privacy jurisprudence is hard to say, but it does at least seem clear that even before its advent the Court did not take privacy seriously as a Fourth Amendment value. My question at the outset, though, was not directly concerned with Supreme Court rulings. Rather, I asked whether it is possible to incorporate a serious concern for privacy into Fourth Amendment jurisprudence. In this Article, I argue that it is. But a cogent argument can be advanced to the contrary, an argument that requires special attention given the challenge that police work poses for privacy interests. SeeUnited States v. Miller, 425 U.S. 435, 443 (1976). See Smith v. Maryland, 442 U.S. 735, 744 (1979). See Florida v. Riley, 488 U.S. 445, 449-51 (1988); see also Ciraolo, 476 U.S. at 212-14. See California v. Greenwood, 486 U.S. 35 (1988). 7 See Payton v. New York, 445 U.S. 573, 589 (1980) ("The Fourth Amendment protects the individual's privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of the home."); see also United States v. Karo, 468 U.S. 705, 714-15 (1984) ("At the risk of belaboring the obvious, private residences are places in which the individual normally expects privacy free of government intrusion not authorized by a warrant, and that expectation is plainly one that society is prepared to recognize as justifiable.") 8 See Riley, 488 U.S. at 449-51; see also Ciraolo, 476 U.S. at 212-14. ' See Katz v. United States, 389 U.S. 347, 352 (1967) (A person using a telephone "is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world.") "0See Smith v. Maryland, 442 U.S. 735, 744 (1979). WILLIAM C. HEFFERNAN [Vol. 92 The core features of this counterargument are easy to grasp. Privacy norms require people to exercise forbearance in everyday life: they require people not to act on their curiosity about their neighbors and officemates, not to encourage third- party confidences, not to snoop through incoming mail, and so on. But the police, it could be contended, must be exempted from these norms. This exemption is essential for the investigation of what the Court has called "ordinary criminal wrongdoing."" It is wholly indispensable, one could continue, for police work on what the Court has called "special governmental needs" 2 (the investigation of terrorism quite clearly comes under this heading). Police officers, it could be conceded, must avoid egregious violations of privacy norms. Nothing more than this should be expected of them