What Are Examples of a Legitimate Expectation of Privacy?
When asking a judge to issue an order to suppress evidence (Penal Code § 1538.5) because the police violated defendant’s Fourth Amendment rights, defendant must demonstrate that he or she had a legitimate expectation of privacy in the area searched. Katz v. U.S. (1967) 389 U.S. 347, 88 S. Ct. 507. This threshold is called “standing” by some courts; in others it may be called a prerequisite to the motion, but the concept is the same.
What to Take Away: A legitimate expectation of privacy is an objective belief that a particular place or area is not open to the public to view without permission from the owner, i.e. it is owned by just one person or it is blocked off in a way to exclude others without consent to enter.
It is critical that the defendant understand that a subjective, individualized expectation of privacy is insufficient. Instead, it must be an expectation that “society is prepared to consider reasonable.” U.S. v. Jacobsen (1984) 466 U.S. 109, 113, 104 S.Ct. 1652.
In viewing what society is prepared to consider reasonable, it is instructive to also know what courts have decided does not constitute a reasonable expectation of privacy as well. The following list of ten cases can be used as guideposts, we hope, by the reader in evaluating if he or she has a viable motion to suppress to file.
- A warrantless search of one’s cell phone incident to a traffic stop for an infraction is improper. People v. Macabeo (2016) 1 Cal.5th 1206 (the good faith exception does not apply). This was a case originating in Torrance and was successfully litigated by Karen Bird.
- Police who walked into side yard of defendant’s house and looked into his open window violated defendant’s reasonable expectation of privacy. People v. Camacho (2000) 23 Cal.4th 824) (contrast this with if the police were in a common backyard of an apartment building, then there would be no reasonable expectation of privacy if police looked into the same open window. People v. Shaw (2002) 97 Cal.App.833).
- The search of a residence of probationer’s roommate violated the roommate’s reasonable expectation of privacy when police were unaware of probationer’s status before the search. People v. Robles (2000) 23 Cal.4th 789, 797. Compare this to People v. Woods (1999) 21 Cal.4th 668, 676 (police who do know of cotenant’s search and seizure probation or parole conditions can search areas of residence over which cotenants have joint control).
- There is a reasonable expectation of privacy in a tarp structure like a large tent erected on land set aside for camping during a music festival. People v. Hughston (2008) 168 Cal.App.4th 1062, 1070.
- Students in public schools have a legitimate expectation of privacy in personal effects brought to school like lunch bags and small bags within backpacks. In re Lisa G. (2004) 125 Cal.App.4th 801; see also In re Cody S. (2004) 121 Cal.App.4th 86.
- Tenant who had key and unlimited access to a main house had a reasonable expectation of privacy in the main house even though he lived in a mobile home separate, but still on the property. People v. Stewart (2003) 113 Cal.App.4th 242, 252.
- A tenant had a reasonable expectation of privacy in rented premises even if the tenant was subject to a restraining order directing the tenant to stay away from such premises. People v. Thompson (1996) 43 Cal.App.4th 1265.
- Estranged husband has a reasonable expectation of privacy in wife’s home, where he regularly visits overnight, has a key to it and keeps his belongings. People v. Khoury (1989) 214 Cal.App.3d 676.
- An overnight guest has a reasonable expectation of privacy in room he or she occupies overnight. Minnesota v. Olson (1990) 495 U.S. 91, 110 S. Ct. 1684.
- One has a reasonable expectation of privacy in an office, even if it is shared by several people. Mancusi v. DeForte (1968) 392 U.S. 364, 88 S.Ct. 2120.
For more information about motion to suppress issues, please click on the following articles:
- What Is a Motion to Suppress Evidence? How Is It Done?
- Bedroom Search Based on Misinformation: Evidence Suppressed?
- Child Pornography Evidence Suppressed When Search Overbroad