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Reasonable Expectation of Privacy (II) (podcast transcript)

Miller:    Hey, this is Tim Miller and Jennifer Solari.  We’re back again talking about  Reasonable Expectation of Privacy.  Jenna I’ve got stuff in my house that can be seen through the picture window.  You’ve told me that I’ve probably got a reasonable expectation of privacy inside of my house.  Correct?

Solari:    Yes.

Miller:      Well, I’ve got stuff in my house that can be seen through the picture window.  If a government agent is sitting out on the sidewalk, they can look inside that picture window and see things that are inside my house.  I think I know the answer to this; but, does the Fourth Amendment forbid government agents from looking at it without a warrant?

Solari:    No, absolutely not. Essentially, that would mean that agents who have every right to be where they are, would be obligated to cover their eyes and stick their fingers in their ears and hold their noses when they come across evidence that just happens to float by or be within public view.  Mr. Keith Hunsucker coined the term, “right to be, right to see.”   And the situation you gave me, that government agent is just standing out on a public sidewalk, where he has every right to be, should he happen to turn his head and see something illegal, say a marijuana plant or something in your picture window, then he’d have every right to be looking at that. And as we talked about earlier, you do have REP inside your house, but if you put something in an area where it’s exposed to the whole world, then you no longer really have any REP in that item, the agent would be able to see that, and there’s no problem with that.

Miller:    So it sounds to me like a government agent could look inside the house, gather  information from a vantage point, or where he has a right to be, and use that to support a warrant.

Solari:    That’s right.  And, without any other information, that’s really what the agent would be limited to doing.  Just because the agent can see something from a public place, doesn’t necessarily mean that the agent can then physically enter your house to grab that contraband.  Without more facts, all the agent could really do is just gather that information with his senses and then use it to try to establish probable cause to get a warrant.

Miller:    So it’s right to be, right to see.  Anything else?

Solari:    Sure, well it’s right to be, right to see, hear, smell as long as the agent has a right to stand or sit wherever he or she finds himself.  So, from a public sidewalk like you said the agent could see through a window into a house - there’s no problem with that.  Of vehicles, say the agent’s walking through a parking lot on his way to the store and he happens to look into a person’s vehicle, and sees some contraband just laying there on the back seat.  Again, the agent has a right to be in that parking lot just like anyone else, so there’s no problem looking right into that car. 

Miller:    Let me stop you just for a second.  A lot of these vehicles now a days have the tinted windows.

Solari:    Right.

Miller:    Can that agent get pretty nosey and just stick his face right up against that window and look inside?

Solari:    Sure can.  Because it’s in a public area and that’s where you’d expect to find just about anyone.  So as long as that agent has a right to be where he is, sure he could put his face right up to your car window and then use whatever information he’s able to gain with his senses just by looking inside. 

I think we talked about a situation on a previous Podcast, where I’m in my hotel room, having a conversation about an illegal transaction of some sort, and there’s an agent standing out in the hotel room hallway listening to my conversation on the other side of the door.  Now, that hallway is where you would expect just about anybody to be, housekeeping or room service.  So, a government agent certainly has ever right to be there.  And, if I happen to be talking loudly enough, so that agent can hear me - either by standing outside or even putting his ear right up against that door - he can do that.  If he can hear me, then he can use that information to establish probable cause.

Miller:    You know marijuana has a pretty pungent odor, I mean you can probably smell it from coming underneath the door.  I mean could a government agent also get down on his hands and knees and smell the odor of marijuana coming underneath the door?

Solari:    Sure could as long as he’s got a right to be where he is when he’s smelling that marijuana smoke and yea absolutely.

Miller:    So if he can smell it from outside the corridor of the or outside the hallway of the hotel room, it’s right to be, right to smell.  Right?

Solari:    Exactly.

Miller:    Okay.  Let me ask you now some questions about the devices that might be used to enhance somebody’s hearing or sight.  Um, suppose the agent can’t hear what’s being said inside the hotel room with his naked ear.  Can he use a device to enhance his hearing.

Solari:    Not without some more legal authorization.  Now we said “right to be, right to see, smell, and hear.”  Now we’re talking about the naked eye or the naked ear so to speak, but once you start using devices to capture real time private conversations, you have to comply with Title III.  That’s mostly a conversation for another day; but, what I can tell you is that failure to get a Title III Court Order is a criminal offense.  We’re not able to use that device to capture real time conversation without some kind of legal authorization.

Miller:    So we’re talking again about devices that are used to capture real time private conversations.

Solari:    Right

Solari:    That’s when Title III would apply.

Miller:    Okay.  How about binoculars?  Um can agents use binoculars to watch a drug deal in a public park?

Solari:    Sure.  Because the key word there is public park.  As long as this is conduct in a public place, I can use binoculars or a telescope or just about anything else to watch what’s going on, because it’s not a government intrusion into an area of REP.  Nobody really has REP in what they’re doing in a public place where everyone can see them.

Miller:    Okay, now what about agents using binoculars or telescopes to look into a house where one might have a reasonable expectation of privacy?

Solari:    The answer to that, “it depends.”  The agent can look into the house with binoculars or a telescope to see something that he could otherwise see from a legal vantage point.  Let me phrase it in other terms.  We talked earlier about the agent on the sidewalk who could look into your window and see a marijuana plant.  Because the agent can see that plant with his naked eye from a place he has a lawful right to be, he can back up just as far as he wants and use binoculars or a telescope to see the exact same thing. 

Stuff is going to come into play when we’re talking about surveillance.  You can stand on the sidewalk, I suppose, and watch someone through a picture window.  It’s probably not the best way to conduct surveillance.  If you don’t want to be spotted, you may want to back up and use binoculars or a telescope. 

It’s not okay, however, when the agent uses binoculars or a telescope to see something he couldn’t otherwise see with his naked eye.  For instances standing out on the sidewalk, you couldn’t use binoculars to look into the picture window and see what the suspect was writing on a check or in a ledger or see the denominations of currency.  You maybe be able to see that with a telescope, but that’s too much of an intrusion.  That’s really intruding into REP and the court’s not going to approve of that.