"Can You Hear Me Now?": Expectations of Privacy, False Friends, and the Perils of Speaking Under the Supreme Court's Fourth Amendment Jurisprudence
Part I of this article offers a brief history of the development of Fourth Amendment jurisprudence and the Court's articulation and application of what has come to be known as the exclusionary rule, which forbids some (but not all) government use of evidence seized in violation of the Fourth Amendment. Part II focuses on the false-friend cases, elaborating the Court's reasoning and showing why, although the most famous cases involve varying kinds of activity from electronic recording to eavesdropping to simple reporting of the false friend's observation, the Court's method has united these cases under a single analytical rubric. Part III discusses the unavoidable implication of the Court's approach, and Part IV examines whether there is a principled way out of the dilemma that the Court's reasoning has created. It concludes that there is, but the solution requires recognizing two unstated assumptions that undergird the Court's jurisprudence in this area, assumptions that, when exposed to light, are highly questionable. The Court needs to reconsider how expectations of privacy really work. It has tended to view expectation of privacy as an all-or-nothing proposition, so that for Fourth Amendment purposes, lack of a reasonable expectation of privacy with respect to one person connotes that there cannot be a reasonable expectation with respect to anyone else. The Article suggests that this approach does not reflect the way that either those who wrote and ratified the Fourth Amendment or the majority of Americans today think about privacy. The Supreme Court should recognize, therefore, that when the government employs false friends to gather evidence for use in a criminal case, it does no more than to undertake a search with other eyes and ears and a seizure with other hands. It is a government intrusion all the same. Accordingly, the Fourth Amendment's warrant requirement, which demands probable cause and the acquiescence of a neutral magistrate in the proposed search, should apply in full force.
Donald L. Doernberg, "Can You Hear Me Now?": Expectations of Privacy, False Friends, and the Perils of Speaking Under the Supreme Court's Fourth Amendment Jurisprudence, 39 Ind. L. Rev. 253 (2006), http://digitalcommons.pace.edu/lawfaculty/264/.