What is the Expectation of Privacy?

Daphne Mallory

The expectation of privacy is a right codified in United States constitutional law and often applies to search and seizure cases. Citizens have a right to protection against unreasonable searches and seizures of their homes and personal belongings. The government and law enforcement agents acting on a person's behalf do not have the right to intrude on that privacy. To do so would be a violation of the Fourth Amendment as long as there is a reasonable expectation of privacy. The defendant would also only have a constitutional case if the act was carried out by a government agent or other individual acting on behalf of the government.

In the US, the Fourth Amendment, part of the Bill of Rights, guards against unreasonable searches and seizures.
In the US, the Fourth Amendment, part of the Bill of Rights, guards against unreasonable searches and seizures.

Some defendants are not successful in asserting a violation of their expectation of privacy if there is a subjective expectation of privacy and not an objective expectation of privacy. For example, in a case where the defendants bagged an illegal drug at an apartment that they had never visited prior, were there for a short time, and had no personal relationship with the tenant, the court found that there was no reasonable expectation of privacy. The defendants’ defense that the search by law enforcement of the apartment was illegal was subjective because objective persons in society would not reasonably agree, and the court held that there was no infringement of the defendants’ Fourth Amendment rights. Common examples of zones of privacy include one’s primary residence; office; or residence of a friend, family member, or anyone who invites you as a guest.

Citizens also have an expectation of privacy as it relates to items they own or pertain to them. The government cannot illegally seize items without violating those individuals’ Fourth Amendment rights under the constitution. For example, law enforcement cannot obtain medical records of suspects if the seizure is unreasonable. Seizure of property is subject to the expectation of privacy protection, and that includes seizure of the person. Seizure of the person occurs when the police or other law enforcement uses force to restrain the defendant.

Private parties cannot be sued for search and seizure violations under the Fourth Amendment. For example, there have been cases in which landlords have set up hidden cameras to monitor tenants in an apartment. Those tenants are not often able to raise claims of violation under the Fourth Amendment, because those landlords are not law enforcement or government agents. Defendants will often have to raise other legal defenses under civil laws and criminal laws.

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