UNIVERSITY OF THE DISTRICT OF - UDC Law Review

cases as Ciraolo, Riley and Dow mandate such a conclusion,268.3 and thus it remains “speculative at best.”268.4
Instances of aural surveillance which result in the police overhearing conversations occurring outside but near residential
premises must be analyzed in essentially the same fashion. Certainly “one who lives in a built-up city or suburban
neighborhood must expect that his conversations in his home or in his yard may be audible to his neighbors or to
passersby.”269 Thus, if police in such circumstances are able to hear such conversations with the naked ear while in a
neighbor’s yard, this would not constitute a search under Katz. In a rural setting, if the eavesdropping officers were
positioned in an “open field” and did not physically intrude into the curtilage, then it would appear that what they hear with
the unaided ear is no search.270 But the use of electronic eavesdropping equipment brings the police conduct within Katz
even when the conversations are in the open rather than, as in Katz, an enclosed space.271
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Footnotes
a0 David C. Baum Professor Of Law Emeritus, And Professor Emeritus In The Center For Advanced Study, The University Of
Illinois.
1 Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
2 E.g., Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961).
3 See Hafetz, “A Man’s Home Is His Castle”: Reflections on the Home, the Family, and Privacy During the Late Nineteenth and
Early Twentieth Centuries, 8 Wm. & Mary J.Women & L. 173 (2002).
4 Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961).
5 E.g., Clinton v. Virginia, 377 U.S. 158, 84 S.Ct. 1186, 12 L.Ed.2d 213 (1964).
6 E.g., Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964).
“Private sleeper cars on passenger trains are comparable to hotel rooms in that the occupant enjoys a heightened expectation of
privacy.” United States v. Dimick, 990 F.2d 1164 (10th Cir.1993).
E.g., Commonwealth v. Lopez, 458 Mass. 383, 937 N.E.2d 949 (2010).
7 E.g., McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948).
Commonwealth v. Porter P., 456 Mass. 254, 923 N.E.2d 36 (2010) (defendant had reasonable expectation of privacy in room he
shared with mother at homeless shelter, even though his use of room was limited and shelter staff had master key and could enter
“for professional business purposes”).
8 Jones v. State, 648 So.2d 669 (Fla.1994); People v. Brown, 88 Cal.App.3d 283, 151 Cal.Rptr. 749 (1979); State v. Stott, 171 N.J.
343, 794 A.2d 120 (2002) (where defendant shared room at state-run psychiatric hospital under circumstances where his “stay
would be of some duration,” and “defendant’s room had many of the attributes of a private living area and … had served as such a
place throughout defendant’s occupancy,” “defendant had a reasonable expectation of privacy in the area searched by the police,”
who looked within hem of curtain, though “case might be different if the police had searched [deceased roommate’s] personal
wardrobe”); Morris v. Commonwealth, 208 Va. 331, 157 S.E.2d 191 (1967).
8.1 One commentator objects that the “Fourth Amendment has disproportionately protected residential privacy rights on the basis of
property law concepts and the rhetoric of the inviolate physical home,” and “advocate[s] replacing housing exceptionalism and
formalistic property approaches with a strong and consistent doctrinal focus on harm to substantive privacy and intimate
association.” Stern, The Inviolate Home: Housing Exceptionalism in the Fourth Amendment, 95 Cornell L.Rev. 905, 955–56
(2010).
9 See § 11.3(a).
When the question is one of standing, the perspective of the inquiry regarding the “abandonment” changes. “The object of
measurement shifts from reasonable appearances to historic reality. What finally matters shifts from what the policeman
reasonably believed out on the street to what the suppression hearing judge ultimately knows in the courtroom.” Faulkner v. State,
317 Md. 441, 564 A.2d 785 (1989). See also Oken v. State, 327 Md. 628, 612 A.2d 258 (1992) (thus all facts presented to court at
time of hearing relevant).
10 See § 8.5(a).
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