[ii]Id.[iii]See, e.g., Katz v. United States, 389 U.S. 347 (1967); Kyllo v. United States, 533 U.S. 27 (2001).[iv]See United States v. Davis, 785 F.3d 498, 528 (11th Cir. 2015) (en banc) (Rosenbaum, J., concurring) (noting that the telephone wasn’t even invented until the 1800s).
We acknowledged that the tapping “may have constituted a technical trespass,” id. at 1435, but explained that Katz v. United States, 389 U.S. 347 (1967), had “rejected the notion that what constitutes a trespass under various property laws necessarily constitutes a search under the Fourth Amendment.” 894 F.2d at 1434.
Fifty years ago today, SCOTUS decided Katz v. United States, 389 U.S. 347 (1967), which was the genesis of the reasonable expectation of privacy standard. LAPD vice officers investigating Katz as a college basketball bookmaker noticed he regularly used a bank of three payphones on a Los Angeles street corner.
Id. at 950 (quoting Katz v. United States, 389 U.S. 347, 360 (1967)). For this type of violation, the claimant must show both “an actual (subjective) expectation of privacy, and . . . that the expectation [is] one that society is prepared to recognize as ‘reasonable.'”
A “search” extends to the recording of oral statements and conversations. Katz v. United States, 389 U.S. 347, 353 (1967); Berger v. New York, 388 U.S. 41, 51 (1967). The government cannot monitor or record a call without violating the Fourth Amendment if the parties have a reasonable expectation of privacy in their conversation.
Ultimately, Carpenter could well have even greater implications for Fourth Amendment jurisprudence. In the seminal decision of Katz v. United States, 389 U.S. 347 (1967), the Court overruled earlier case law which limited Fourth Amendment protection to police trespassing upon one’s property and declared that the Fourth Amendment also protects a person’s reasonable expectation of privacy. In what became settled law, this “expectation of privacy” test required “that a person has exhibited an actual (subjective) expectation of privacy … that society is prepared to recognize as ‘reasonable.
The fruits of such surveillance techniques would be infringements of privacy that the Supreme Court deems serious. See, e.g., Kyllo v. United States, 533 U.S. 27, 33-36 (2001); see also Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring); United States v. Jones, 132 S. Ct. 945, 954-56 (2012) (Sotomayor, J., concurring); id. at 963-64 (Alito, J., concurring).
On appeal, a Ninth Circuit panel affirmed the trial court’s ruling. But the City’s victory was short-lived. Upon rehearing en banc, a divided Ninth Circuit reversed, determining that a police officer’s inspection of a hotel’s guest register under Section 41.49 constituted a “search” based upon both a property-rights analysis, see United States v. Jones, 132 S. Ct. 945 (2012), and the privacy expectations at issue, see Katz v. United States, 389 U.S. 347 (1989). Inspecting a hotel’s guest register was an administrative search that required judicial review prior to an officer’s demand to view the register.
We agree. SeeKatz v. United States, 389 U.S. 347, 351 (1967) (“What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”); see also State v. Barrett, 401 N.W.2d 184, 189–190 (Iowa 1987) (no reasonable expectation of privacy in personal journals inadvertently left in restaurant); State v. Flynn, 360 N.W.2d 762, 765, 766 (Iowa 1985) (“the place where seized property is located may be so exposed as to negate any reasonable expectation of privacy”) (no reasonable expectation of privacy in paper sacks containing financial records and cassette tapes left under a tarpaulin on a golf course “accessible to all of the private members and others given permission to enter”). There was thus no illegal search when the commissioner picked up and looked at the affidavits.
As more circuits are confronted with interpreting Carpenter, we will monitor whether they take a similar, limited view.1 United States v. Moore-Bush, Nos. 19-1582, 19-1625, Nos. 19-1583, 19-1626, 2020 WL 3249060 (1st Cir. June 16, 2020).2 Carpenter v. United States, 138 S. Ct. 2206 (2018).3 Katz v. United States, 389 U.S. 347 (1967).4 Smith v. Maryland, 442 U.S. 735 (1979).