Kerr on the Irrelevance of Subjective Expectations of Privacy in Fourth Amendment Jurisprudence

Over at the Volokh Conspiracy, Orin Kerr blogs about his forthcoming essay in the University of Chicago Law Review entitled, Katz Has Only One Step: The Irrelevance of Subjective Expectations. Here is the abstract:

This Article argues that the “subjective expectation of privacy” test is a phantom doctrine. The test exists on paper but has no impact on case outcomes. An empirical study of cases decided in 2012 indicates that majority of judicial opinions applying Katz do not even mention the subjective expectations test; opinions that mention the test usually do not apply it; and when courts apply it, the test makes no difference to the results.

The subjective test acts as a phantom doctrine because of an overlooked doctrinal shift. A close reading of Justice Harlan’s Katz concurrence suggests that it was originally intended to restate the holdings of the Supreme Court’s caselaw on invited exposure. Under those cases, an individual waived Fourth Amendment rights by inviting others to observe their protected Fourth Amendment spaces. In later cases, however, the Supreme Court misunderstood this original design and recast those holdings as part of the objective prong of the test instead of the subjective test. This doctrinal shift quietly eliminated the role of the subjective test. The Supreme Court should abolish the subjective expectations test to clarify and simplify Fourth Amendment law.

I blogged about this aspect of Fourth Amendment law previously, where I discussed how footnote five of the Court's opinion in Smith v. Maryland indicates that defendants who expect that their privacy will be invaded by an overly intrusive government may still have Fourth Amendment protection from government searches. This is notable, because the first prong of the traditional Katz test for determining whether a Fourth Amendment search has occurred requires the government to infringe on a person's subjective expectation.

While this may usually seem to be a sensible requirement, the subjective test of privacy loses its appeal in scenarios where those being searched are overly paranoid and irrationally expect that they are being monitored by the government at all times. Kerr also notes that the government could get around this test by simply announcing  to the public that it will be monitoring everybody. (22-23).

In light of how subjective expectations of privacy can be manipulated, the Court seemed to try and limit the influence of this part of the Katz test in the Smith decision. In footnote five of Smith, the Court wrote:

Situations can be imagined, of course, in which Katz’ two-pronged inquiry would provide an inadequate index of Fourth Amendment protection. For example, if the Government were suddenly to announce on nationwide television that all homes henceforth would be subject to warrantless entry, individuals thereafter might not in fact entertain any actual expectation of privacy regarding their homes, papers, and effects. Similarly, if a refugee from a totalitarian country, unaware of this Nation’s traditions, erroneously assumed that police were continuously monitoring his telephone conversations, a subjective expectation of privacy regarding the contents of his calls might be lacking as well. In such circumstances, where an individual’s subjective expectations had been “conditioned” by influences alien to well-recognized Fourth Amendment freedoms, those subjective expectations obviously could play no meaningful role in ascertaining what the scope of Fourth Amendment protection was. In determining whether a “legitimate expectation of privacy” existed in such cases, a normative inquiry would be proper.

Kerr addresses this footnote in his paper:

This footnote is rather ironic. After misconstruing the subjective test to ask a purely subjective question, the footnote announces that the subjective test should be ignored in precisely those cases when the misconstrued test would make a difference to outcomes. (23)

Kerr concludes that the subjective expectation of privacy test has become a "phantom doctrine." In light of the Court's decisions following Katz, I am inclined to agree.