Katz Reasonable Expectation of Privacy (Rep)

• Jurisdiction: Maryland

IV. Katz reasonable expectation of privacy (REP)

A. Specific REP issues

Although Jones resurrected the trespass-based rule, most of the modern case law has focused on whether the person invoking the Fourth Amendment has a reasonable expectation of privacy under the Katz test. The burden of demonstrating a reasonable expectation of privacy is on the person claiming Fourth Amendment protection. Laney v. State, 379 Md. 522, 544, cert. denied, 543 U.S. 966 (2004). Specific scenarios are discussed below.

1. REP in one's person

REP in medical information in one's body fluids

In Skinner, 489 U.S. at 628, the Supreme Court held that employees in regulated industries have a diminished expectation of privacy in information related to their physical condition gleaned from toxicological testing such that particularized suspicion is not required to conduct such tests. In Annapolis v. United Food & Commercial Workers, Local 400, 317 Md. 544 (1989), the Court of Appeals relied in part on Skinner to hold that a mandatory urinalysis program for police officers and fire fighters constituted only a "negligible" intrusion on reasonable expectations of privacy. Id. at 553.

REP against intrusion into one's body

Persons have a REP in their bodies, and any intrusion into one's body by police is governed by the Fourth Amendment. See, e.g., Winston v. Lee, 470 U.S. 753, 763-65 (1985) (general anesthetic surgery); Schmerber v. California, 384 U.S. 757, 769-71 (1966) (blood test); Rochin v. California, 342 U.S. 165, 172 (1952) (involuntarily pump of one's stomach (pre-incorporation case decided under 14th Amendment)); Evans v. State, 151 Md. App. 365, 376 (2003) (rectal search); Paulino v. State, 399 Md. 341, 361 (2007) (visual body cavity search in public car wash).

Parent and child have REP against unclothed child being searched for evidence of child abuse

In Wilderberger v. State, 74 Md. App. 107, 116 (1988), the Court of Special Appeals held: "The Fourth Amendment applies to visual inspections conducted by State officials of unclothed children for evidence of child abuse." Accord Darryl H. v. Coler, 801 F.2d 893, 899-900 (7th Cir. 1986). Such a search is constitutionally prohibited "in the absence of parent consent, if [the search] is unreasonable." Id.

Parolees and probationers have a lesser REP

Parolees and probationers have a lesser REP than a "normal" citizen. When balanced under a totality of the circumstances, courts generally hold that the State's interest outweighs the parolee's or probationer's right to privacy. In Samson v. California, 547 U.S. 843 (2006), the Supreme Court held that a suspicionless search of a parolee did not offend the Fourth Amendment, stating: "[P]arolees are on the 'continuum' of state imposed punishments [and] have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than [is] probation . . ." Id. at 850 (internal citations omitted).

In United States v. Knights, 534 U.S. 112 (2001), the Supreme Court stated: "Inherent in the very nature of probation is that probationers do not enjoy the absolute liberty to which every citizen is entitled." Id. at 119 (citations and internal quotations marks omitted). See Feaster v. State, 206 Md. App. 202, 216 (2012) (noting "body of law recognizing the austerely diminished Fourth Amendment protection enjoyed by a probationer or a parolee"). In Corbin v. State, 428 Md. 488, 512-13 (2012), the Court of Appeals held that the defendant, as probationer, had no REP in DNA surreptitiously collected through routine alcohol monitoring using a breathalyzer straw.

No REP in physical characteristics that are publicly exposed

In United States v. Mara, 410 U.S. 19, 21-22 (1973), the defendant was held in contempt for failing to comply with a grand jury subpoena that required him to furnish a handwriting exemplar. The Supreme Court held that involuntarily taking a handwriting exemplar is not a seizure, under the Fourth Amendment, because the defendant has no REP in physical characteristics exposed to the public.

In United States v. Dionisio, 410 U.S. 1, 14 (1973), the Supreme Court held that a defendant may be required to give a voice exemplar to a grand jury because the defendant has no REP in what his or her voice sounds like. In Blasi v. State, 167 Md. App. 483, 504, cert. denied, 393 Md. 245 (2006), the Court of Special Appeals held that "an individual's physical characteristics or behaviors, such as speech, height, weight, gait, appearance, or smell, observed by a police officer during a valid traffic stop, do not constitute a search under the Fourth Amendment." But the Court held that the administration of a field sobriety test during a traffic stop intrudes onto individual's reasonable expectation of privacy because (1) the test "exposes certain aspects of an individual not otherwise observable by the public," and (2) the information disclosed by the test "may reveal private facts about an individual's physical or psychological condition." Id. at 505.

2. REP in conversations and communication

REP in the content of private conversations as against third parties

In Katz, 389 U.S. 347, FBI agents eavesdropped on the defendant's private conversation in a closed public phone booth. The Supreme Court observed that what an individual "seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. Id. at 351. "The Government's activities in electronically listening to and recording the petitioner's words," the Court held, "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." Id. at 353.

No REP in numbers and names dialed from one's phone, even though there is an REP in the content of the conversation

In Smith v. Maryland, 442 U.S. 735 (1979), the Supreme Court held that there is no REP in the fact that there was a conversation, even though there is an REP in the content of the conversation. Police requested a list of phone numbers dialed from the defendant's home. The phone company accommodated the request by installing a "pen register" that determined that the defendant's number dialed the victim's number, which the defendant voluntarily communicated to the phone company. Id. at 743-44. But cf. Carpenter, 138 S. Ct. at 2217 (holding that individual maintains legitimate expectation of privacy in physical movements captured in cell-site location information even though information is conveyed to wireless carrier).

No REP in statements that can be heard by others

In Malpas v. State, 116 Md. App. 69 (1997), the Court of Special Appeals held that a person has no REP in conversations that take place in his apartment loud enough that they can be heard by occupants of adjacent apartments. The Court stated: "Statements made in one apartment in a tone of voice so loud as to be audible to persons in adjacent apartments are the functional equivalent of statements knowingly exposed to the public." Id. at 84.

In Hall v. State, 15 Md. App. 363 (1972), the Court of Special Appeals held that the defendant did not have an REP in statements made by an unidentified woman in the presence of an officer who overheard the statements. "The words that the officer heard spoken by the unidentified woman, which she did not seek to preserve as private, spoken while in the officer's immediate presence on an open porch, do not have constitutional protection." Id. at 370.

No REP in the content of a conversation as against the person with whom voluntarily conversing

In Hoffa v. United States, 385 U.S. 293 (1966), the Supreme Court held that there is no REP in a private conversation, as against the person ("false friend") with whom communicating, because the defendant voluntarily spoke to that person. The Court stated: "Neither this Court nor any member of it has ever expressed the view that the Fourth Amendment protects a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it." Id. at 302.

3. REP in one's home

"[T]he Fourth Amendment draws a firm line at the entrance to the house[.]" Kyllo v. United States, 533 U.S. 27, 40 (2001). Thus, individuals generally have a reasonable expectation of privacy as to the interior of the home, at least as to those details not exposed to public view. See id. at 34; see also United States v. Karo, 468 U.S. 705, 714 (1984) (stating that "private residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant, and that expectation is plainly one that society is prepared to recognize as justifiable").

Thermal imaging and other enhancement devices

In Kyllo, 533 U.S. at 34-35, officers used thermal imaging to scan the defendant's home to discover heat emanating from the house, which was consistent with high-intensity lamps used to grow marijuana. The Supreme Court rejected the Government's argument that thermal imaging did not reveal intimate details of the home. The Court held that where "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." Id. at 40.

REP against a beeper or GPS in a container sent into a home

In Karo, 468 U.S. at 713, police obtained a court order to install and monitor a beeper in a container to be delivered to the defendant. Although that judicial authorization was to install a beeper in the container, that authorization did not include the right to enter the home. Police tracked the container into the defendant's home and then obtained a warrant to search the home, using information obtained by monitoring the beeper after it entered the home. The Supreme Court held that warrantless monitoring of the beeper, while it was in the defendant's home...