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JULY 1994

Article 17 - Freedom from Arbitrary Interference 
with Privacy, Family, Home

Right to Privacy.  The freedom from arbitrary and 
unlawful interference with privacy is protected 
under the Fourth Amendment to the Constitution.  As 
explained previously, the Fourth Amendment protects 
persons from unlawful searches and seizures by the 
government at both state and federal levels.  The 
U.S. Supreme Court has defined search under the 
Fourth Amendment to be a government infringement of 
a person's privacy.  Rakas v. Illinois, 439 U.S. 
128, 140-49 (1978).  An infringement of that privacy 
occurs when the individual exhibits an actual 
subjective expectation of privacy and when that 
expectation is one that society is prepared to deem 
reasonable.  Katz v. United States, 389 U.S. 347 
(1967).  Put another way, the reasonable expectation 
of privacy is the linchpin of the Fourth Amendment.  

Under that analysis, persons have no subjective or 
reasonable privacy interest in property that they 
have abandoned, Hester v. United States, 265 U.S. 57 
(1924), or in items that they expose to the public, 
such as contraband lying in plain view.  Coolidge v. 
New Hampshire, 403 U.S. 443 (1971).  They do, 
however, have a privacy interest in such areas as 
their homes, cars and correspondence.   

Although the literal language of the Fourth 
Amendment does not require a warrant for searches 
and seizures, the U.S. Supreme Court interprets the 
Fourth Amendment to mandate a warrant (absent 
exceptions, like exigency, that are inapplicable 
here) where the intrusion might compromise a 
"reasonable expectation of privacy."  Katz v. United 
States, 389 U.S. 347 (1967).  Conversely, where the 
individual has no reasonable expectation that his 
conduct or possessions will be private, there is no 
requirement that government agents first secure a 
warrant.  "What a person knowingly exposes to the 
public, even in her own home or office, is not a 
subject of Fourth Amendment protection."  Katz v. 
United States, 389 U.S. at 351. 

Where there exists a reasonable expectation of 
privacy, the Constitution does not permit government 
violation of that reasonable expectation without 
probable cause to believe that a crime is occurring 
or that evidence of crime will be found.  The 
Supreme Court has imposed a presumption that 
government officials will first secure a warrant.  
When officers seek a warrant, they must make a 
showing of probable cause before a neutral and 
detached official.  This official need not, however, 
be a judge or a magistrate; the primary requirement 
is that he be neutral and detached, i.e., not an 
agent or arm of the police department.  Shadwick v. 
City of Tampa, 407 U.S. 345, 348-50  (1972).

Exclusionary Rule.  If officers do not first obtain 
a warrant they must have good justification for the 
warrantless action; in addition, the government's 
decision to search or seize property must have been 
accompanied by probable cause.  If a judge later 
determines that the search was not supported by 
probable cause, or that the officers did not have 
sufficient reason to forego seeking a prior warrant 
-- i.e., that the search was illegally conducted and 
evidence illegally seized -- the court may exclude 
that evidence, and any further evidence and leads 
from it, at the criminal trial.  This rule of 
suppression is known as the exclusionary rule.  See 
Weeks v. United States, 232 U.S. 383 (1914) 
(requiring suppression and exclusion from trial of 
evidence seized in violation of Fourth Amendment); 
Mapp v. Ohio, 367 U.S. 643 (1961) (applying 
exclusionary rule to items seized by state officers 
and offered into evidence at state prosecution).  
Where the search and seizure is supported by an 
underlying facially valid warrant issued by a proper 
official upon his or her satisfaction with the 
sufficiency of probable cause, even if there is some 
defect in the process the courts will apply a good 
faith exception to the exclusionary rule.  United 
States v. Leon, 468 U.S. 897 (1984).  

Family.  United States law has long recognized the 
right of families to privacy.  The scope of this 
privacy right has changed considerably over time and 
remains a source of significant controversy.  Early 
in the nation's history, for example, family privacy 
prevented prosecution of abusive husbands, forbade 
spouses from testifying against each other, limited 
the availability of divorce, and even allowed women 
to sue men for broken promises to marry.  More 
recently, the Supreme Court has relied upon the 
concept to define and protect important individual 
rights within the family.

In the landmark case of Griswold v. Connecticut, 381 
U.S. 479 (1965), the Supreme Court found a "marital 
privacy" right to use contraception within the 
"sacred precincts of marital bedrooms."  This right 
was founded upon the "penumbra" of privacy created 
by the Bill of Rights.  In subsequent decisions, the 
Supreme Court has relied upon the same concepts in 
finding the right of unmarried individuals to obtain 
contraception, Eisenstadt v. Baird, 405 U.S. 438 
(1972), of women to obtain abortions, Roe v. Wade, 
410 U.S. 113 (1973), and of a grandmother to live 
with her grandchildren despite zoning ordinances, 
Moore v. City of Cleveland, 431 U.S. 494 (1977).  In 
California, the concept has been applied to permit 
unmarried individuals to sue each other for support 
("palimony") at the end of an intimate relationship.  
Marvin v. Marvin, 18 Cal. 3d 660, 557 P.2d 103 

The right of families to privacy, in particular from 
governmental intrusion, is not unconditional, 
however, and may be limited to traditional American 
concepts of family.  In one of the most 
controversial cases recently to consider the extent 
of this right, the Supreme Court upheld the 
constitutionality of a Georgia statute criminalizing 
sodomy.  Bowers v. Hardwick, 478 U.S. 186 (1986).  
In its decision, the Court declined to find a 
correlation between the rights to found a family and 
to procreate, on the one hand, and the asserted 
right of homosexual persons to engage in acts of 
sodomy.  The Court has also indicated that family 
privacy will not prevent governmental actions where 
that action will assist one family member as against 
another, for example by sending social welfare 
workers to the homes of welfare recipients without 
prior announcement to ensure the well-being of a 
child, Wyman v. James, 400 U.S. 309 (1971), and in 
permitting a woman to waive her privilege regarding 
testifying against a spouse in order to limit her 
own criminal liability, Trammel v. United States, 
445 U.S. 40 (1980).

Several recent cases have underscored the continuing 
effort to define the family and to determine how 
rights may be allocated among family members.  For 
example, during 1993, a child was permitted to 
"divorce" her natural parents in favor of the 
unrelated man who had unwittingly raised her as his 
own child (the "Baby Sway" case).  Another couple 
was awarded custody of their natural child after the 
mother had previously offered the child for adoption 
and after the child had lived with the adoptive 
parents for more than two years (the "Baby Jessica" 
case).  One state court refused to allow a natural 
mother to retain custody of her child because the 
mother was a lesbian (the "Little Tyler" case).  
These cases indicate that the courts -- and 
Americans as a society -- continue to struggle with 
these important issues and how the parameters of 
family privacy and familial rights continues to 

Home.  As noted above, the Fourth Amendment protects 
persons from unlawful government searches and 
seizures within their home or property.  Of these 
interests, the Constitution is particularly 
protective of the sanctity and privacy of the home.  
E.g., United States v. Orito, 413 U.S. 139, 142 
(1973) (the "Constitution extends special safeguards 
to the privacy of the home, just as it protects 
other special privacy rights such as those of 
marriage, procreation, motherhood, child rearing and 
education"); Payton v. New York, 445 U.S. 573, 601 
(1980) ("the sanctity of the home . . . has been 
embedded in our traditions since the origins of the 
Republic"); Id. at 590.  As one law professor and 
commentator on the Constitution explained, "[t]he 
home not only protects us from government 
surveillance, but also `provide[s] the setting for 
those intimate activities that the fourth amendment 
is intended to shelter from government 
interference.'"  Laurence H. Tribe, American 
Constitutional Law 1413 (2d ed. 1988), quoting 
Oliver v. United States, 466 U.S. 170, 179 (1984). 

Correspondence.  The right to privacy in one's 
correspondence is also recognized under the Fourth 
Amendment.  The government may not open a person's 
mail without a warrant issued by a judicial officer 
based on probable cause.

There is an exception to that rule for mail entering 
the United States from abroad.  In United States v. 
Ramsey, 431 U.S. 606 (1977), the Supreme Court 
applied a historic border exception to the general 
inviolability of personal correspondence and held 
that the government may search mail entering the 
United States based on its longstanding right to 
self-protection by stopping and examining persons 
and property crossing borders into the country.   
Technology: Movements and Conversations: Electronic 
Surveillance. The U.S. Congress has also recognized 
that there could be substantial privacy 
infringements through the use of electronic devices 
to track the movements of persons or things and to 
intercept private communications.  Such devices 
include wiretaps, pen registers and trap and trace 
devices (which record telephone numbers called from 
a particular phone and the numbers of telephones 
from which calls are made to a particular phone, 
respectively), digital "clone" pagers, beepers, and 
surreptitiously installed microphones.  

Consequently, in 1968 Congress enacted a statute, 
which has subsequently been modified to accommodate 
technological advances, to regulate the use of 
electronic audio surveillance and interception.  18 
U.S.C.    2510-21 (Title III of the Omnibus Crime 
Control and Safe Streets Act of 1968 -- Wiretapping 
and Electronic Surveillance, Pub. L. No. 90-351, 82 
Stat. 212.)  The statute essentially bans the use of 
certain electronic surveillance techniques by 
private citizens.  It makes punishable as a felony 
any intentional interception of any wire, oral, or 
electronic communication that would not be otherwise 
readily accessible to the public; use of an 
interception device; or disclosure of the contents 
of any communication that has been unlawfully 
intercepted.  18 U.S.C.   2511.  

However, law enforcement officials are exempted from 
the prohibition under certain explicit conditions.  
The primary condition is that the government agent 
obtain a court order before it may utilize many 
types of electronic surveillance, such as wiretaps 
and pen registers.  

Having obtained approval, the agent must then apply 
for an order from a federal court.  The application 
must set forth sufficient facts to satisfy the court 
that probable cause exists to believe that (1) 
certain identified persons have committed, are 
committing, or will commit one of the specific 
serious felony offenses covered by the statute; (2) 
all or some of the persons have used, are using, or 
will use a targeted communication facility or 
premises in connection with the commission of the 
listed offense; and (3) the targeted communication 
facility or premise has been used, is being used, or 
will be used in connection with the crime.  The 
agent's application must also satisfy the judge that 
other less intrusive investigative procedures have 
been tried without success, would not be likely to 
succeed, or would be too dangerous to use.  The 
application must also include a complete statement 
of all other applications that have been made for 
electronic surveillance involving the persons, 
facilities, or premises.  

The interception order is valid for no longer than 
30 days but can be extended repeatedly.  In granting 
the extension request the court may require progress 
reports on the past surveillance and need for 
continuing surveillance.  In addition, the judge 
issuing the order and the Department of Justice are 
required to make reports to the Administrative 
Office of U.S. Courts on each court-ordered 
electronic surveillance and the number of arrests, 
suppression orders, and convictions that resulted 
from them.  18 U.S.C.   2519.

There is an exception to the requirement of prior 
judicial approval where there is an emergency 
involving immediate danger of death or serious 
bodily injury to any person or where conspiratorial 
activities threaten national security interests or 
are characteristic of organized crime.  When 
electronic surveillance is utilized in these 
emergency instances, the government must obtain a 
court order within 48 hours.

During the period of surveillance the agents are 
under a continuing duty to minimize -- that is, to 
not record or overhear conversations that are not 
related to the crimes or persons for which the 
surveillance order was obtained.  The recordings 
must also be sealed in a manner that will protect 
them from public disclosure.  

The 1968 statute predated the use of video 
surveillance and was passed in the wake of two 
Supreme Court decisions that addressed nonconsensual 
interception of oral communications.  Moreover, in 
1968 video cameras were too bulky and too noisy to 
be effective as surreptitious recording devices, and 
thus were not considered when the electronic 
surveillance statute was enacted.  For both these 
reasons, the statute did not address the use of 
electronic video interception for gathering 
evidence.  However, the federal appellate courts 
that have considered the issue all agree that the 
government may conduct surveillance by use of 
videotape interception as well as by intercepting 
wire, oral, and electronic communications.  Because 
the statute governing electronic and wire 
communications does not apply to videotape 
surveillance, the courts analyze the question under 
the Constitution alone and permit its use if it is 
done consistent with the requirements of the Fourth 
Amendment.  United States v. Koyomejian, 970 F.2d 
536 (9th Cir. 1992) (en banc); United States v. 
Mesa-Rincon, 911 F.2d 1433 (10th Cir. 1990); United 
States v. Villegas, 899 F.2d 1324 (2d Cir. 1990); 
United States v. Cuevas-Sanchez, 821 F.2d 248 (5th 
Cir. 1987); United States v. Biasucci, 786 F.2d 504 
(2d Cir. 1985), cert. denied, 479 U.S. 827 (1986); 
United States v. Torres, 751 F.2d 875 (7th Cir. 
1984), cert. denied, 470 U.S. 1087 (1985).  

The federal wiretap statute does not forbid the 
warrantless use of eavesdropping equipment to record 
or transmit what the suspect says to a person acting 
unbeknownst to him as an agent of the government 
when that person has given prior consent to the 
interception.  18 U.S.C.   2511(2)(c) provides:

     It shall not be unlawful under this chapter for 
a person acting under color of law to intercept a 
wire, oral, or electronic communication, where such 
person is a party to the communication or one of the 
parties to the communication has given prior consent 
to the interception.

Similarly, the Fourth Amendment's protection of 
one's reasonable expectations of privacy does not 
require that the government obtain a warrant for a 
consensual interception, i.e., where one of the 
parties consents.  In a case where a secret agent 
wore a recording device concealed on his person, the 
Supreme Court explained:

     [The] case involves no "eavesdropping" whatever 
in any proper sense of that term.  The Government 
did not use an electronic device to listen in on 
conversations it could not otherwise have heard.  
Instead, the device was used only to obtain the most 
reliable evidence possible of a conversation in 
which the Government's own agent was a participant 
and which that agent was fully entitled to disclose.  
And the device was not planted by means of an 
unlawful physical invasion of [the suspect's] 
premises under circumstances which would violate the 
Fourth Amendment.  It was carried in and out by an 
agent who was there with [the suspect's] assent, and 
it neither saw nor heard more than the agent 
himself.  Lopez v. United States, 373 U.S. 427, 439 

Though federal judges need not authorize 
interception orders where one party to the 
conversation has consented to the electronic 
eavesdropping, the U.S. Department of Justice has 
adopted certain written guidelines for federal 
prosecutors.  These guidelines are set forth in the 
Attorney General's Memorandum of November 7, 1983, 
which states:

     When a communicating party consents to the 
interception of his or her verbal communications, 
the device may be concealed on his or her person, in 
personal effects, or in a fixed location.  Each 
department and agency engaging in such consensual 
interceptions must ensure that the consenting party 
will be present at all times when the device is 
operating.  In addition, each department and agency 
must ensure:  (1) that no agent or person 
cooperating with the department or agency trespasses 
while installing a device in a fixed location, and 
(2) that as long as the device is installed in the 
fixed location, the premises remain under the 
control of the government or of the consenting 
party.  See United States v. Padilla, 520 F.2d 526 
(1st Cir. 1975).

The same rule applies to consensual videotaping.  An 
expert on U.S. Fourth Amendment law has explained 
that the reasoning offered with respect to the use 
of eavesdropping-wiretapping equipment "is generally 
true as well as to electronic visual surveillance.  
It is no search to videotape what a police officer 
is observing in a plain view situation, nor is any 
justified expectation of privacy violated by the 
videotaping of activity occurring in full public 
view.  By analogy . . . it has also been held that 
Fourth Amendment protections do not extend to the 
videotaping of 'private' activities between the 
defendant and another when the other party has 
consented to the taping."  Wayne R. LaFave, Search 
and Seizure:  A Treatise On The Fourth Amendment, 
Vol. 1,   2.2(e), at 365 (2d ed. 1987).  

Also by analogy, persons can have no reasonable 
expectation of privacy under the Fourth Amendment 
that their presence and physical appearance, which 
is constantly exposed to the public, will be 
"private."  United States v. Dionisio, 410 U.S. 1 
(1973) (the Fourth Amendment does not require a 
warrant before the government may demand voice 
exemplars because "the physical characteristics of a 
person's voice, its tone and manner, as opposed to 
the content of a specific conversation, are 
constantly exposed to the public" so that "no person 
can have a reasonable expectation that others will 
not know the sound of his voice").  Warrantless 
visual surveillance does not implicate the Fourth 
Amendment, even when that surveillance is 
accompanied by the taking of photographs or the use 
of videotape equipment.  United States v. McMillon, 
350 F. Supp. 593 (D.D.C. 1972); United States v. 
Knotts, 460 U.S. 276, 280-86 (1983) (warrantless 
visual surveillance of the defendants in the course 
of monitoring a beeper placed with consent of the 
owner in a transported container does not violate 
the Fourth Amendment).  

Another area of note regarding technology and 
privacy is individuals' privacy with respect to 
information maintained on computer databases.  In 
general, individuals are entitled to privacy by the 
Privacy Act, 5 U.S.C.   552a.  The Privacy Act 
generally bars federal agencies from using 
information collected for one purpose for a 
different purpose.  The Computer Matching and 
Privacy Protection Act of 1988 specifically 
addresses the use by federal agencies of computer 
data.  The Act regulates the computer matching of 
federal data for federal benefits eligibility or 
recouping delinquent debts.  The government may not 
take adverse action based on such computer checks 
without giving individuals an opportunity to 
respond.  Three other federal laws that protect 
information commonly maintained on computer database 
are the Fair Credit Reporting Act (15 U.S.C.    
1681-81t), the Video Privacy Protection Act (18 
U.S.C.   2710), and the Right to Financial Privacy 
Act (12 U.S.C.   3401).  The first regulates the 
distribution and use of credit information by credit 
agencies.  The second prevents the disclosure and 
sale of customers' video-rental records without the 
customers' consent.  The last sets procedures 
regarding when federal agencies may review 
customers' bank records. 

Nonetheless, certain facts about individuals are 
matters of public record such as date of birth, fact 
of marriage, military record, licenses, or court 
pleadings.  There is no liability for release of 
such information.  The majority of courts have found 
that maintenance and release of databases on an 
exonerated arrestee's criminal record is not a 
privacy violation.

Unlawful Attacks on Honor or Reputation.  While U.S. 
law, primarily civil law, protects an individual 
from false and defamatory attacks on his reputation, 
this protection is tempered by the fundamental 
right, embodied in the First Amendment, of people to 
speak and write without fear of civil or criminal 
liability.  The First Amendment right of free speech 
significantly shields persons engaged in critical, 
even derogatory speech, particularly where that 
speech concerns a "public person," i.e., a public 
official, candidate for public office, or other 
person known by the public because of the incident 
in question.  

The First Amendment right of free speech does not 
protect persons who engage in libel, defamation, or 
slander from liability.  Claims for libel or slander 
may be pursued under state law, typically in a civil 
suit for damages.  A few states have criminal libel 
laws.  For instance, Massachusetts imposes criminal 
liability for material intended to maliciously 
promote hatred through libel of groups of persons 
because of race, color, or religion.  See Mass. Ann. 
Laws ch. 272   98(C).  Alabama maintains a criminal 
libel statute based upon material tending to provoke 
a breach of peace, the traditional standard before 
several states repealed their criminal libel and 
slander laws.  See Ala. Code   13A-11-160 (1993).  
California, by contrast, has repealed its criminal 
slander code provisions.  Cal. [Penal] Code    258-
60, repealed 1991 (West 1993).

Communication is defamatory where it tends or is 
reasonably calculated to cause harm to another's 
reputation.  The harm may be to the person's 
personal or business reputation.  Language is 
defamatory if it tends to expose another to hatred, 
shame, contempt, or ostracism in his community.  
Criminal defamation may be claimed where the 
defamation was made with malicious intent.  Both 
civil and criminal claims are limited by certain 
privileges.  Where a privilege exists, the claimant 
must show the defamatory communication is false and 
was made with actual  malice.   Public persons, for 
example, may only assert a claim based on criticism 
of their official conduct where the tests of falsity 
and actual malice have been met.  New York Times v. 
Sullivan, 376 U.S. 254 (1964) (civil liability 
limited).  Garrison v. Louisiana, 379 U.S. 64 (1964) 
(criminal liability limited).   Malice  in this 
context has been defined to mean "with actual 
knowledge of the falsity or reckless disregard as to 
whether [a statement] is true or false."  Id.  In 
this instance, the constitutional right to free 
speech and corresponding principal of free and open 
debate limits the ability of public officials to 
make a civil or criminal claim of defamation. 

Other privileges apply to statements made in the 
context of religious and church matters, expulsion 
and disciplinary proceedings, and fiduciary and 
professional communications.  The U.S. Constitution 
provides an absolute privilege to members of 
Congress for statements made in the performance of 
their legislative duties.  U.S. Const. art. I,   6.  
A similar privilege may be applied to judicial 
proceedings and proceedings of state and local 
legislative bodies. 
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