Return to Privacy Module IV


Library of Cases


Caselaw on the Constitutional Protection Against Government Search and Seizure:

(Please read only the excerpts for now. Full case readings are optional.)


Fourth Amendment Law 1: Katz v. U.S., 389 U.S. 347 (1967)

Abstract:  The Fourth Amendment does not just protect places.  There is a Fourth Amendment “right to privacy.”  The government must have probable cause to search any place an individual has a “reasonable expectation of privacy.”  There is a two part test to determine when an individual has a “reasonable expectation of privacy.”  (1) Has government action violated an individual’s subjective expectation of privacy?  (2) Was that expectation of privacy reasonable (an objective test)?


Individuals do have a reasonable expectation of privacy on the phone.  A wiretap invades that privacy and the government must have probable cause to legally conduct a wiretap. Unauthorized electronic surveillance without a warrant or circumstances permitting a warrentless search violates the 4th Amendment. 


Fourth Amendment Law 2: Smith v. Maryland, 442 U.S. 735 (1979)

Abstract:  There is no reasonable expectation of privacy in digits dialed from one’s home phone.  Therefore, installation and use of a pen register by the police is not a search.  When the police installed a pen register into the defendant’s phone line without a warrant, they did not violate his Fourth Amendment rights. 


Fourth Amendment Law 3: US v. Turk, 526 F.2d 654 (5th Cir. 1976)

Abstract:  5th Circuit’s definition of “interception.” Interception "require[d] participation by the one charged with an 'interception' in the contemporaneous acquisition of the communication through the use of the device."


Fourth Amendment Law 4: US v. Maxwell, 45 M.J. 406 (1996)

Abstract:  A criminal defendant who uses AOL and whose email is stored on AOL’s central computer does have standing to object to a search and seizure of AOL’s equipment containing his email.  The government must have probable cause and a valid warrant to complete such a search.


Once mail or email is sent, the sender has somewhat lowered his/her expectation of privacy.  Mail and email in transit cannot be intercepted without a warrant.  Email is considered still in transit until it has been viewed by the recipient. However, once an email is received, the sender no longer controls its destiny and the sender’s privacy interest is very low.


Fourth Amendment Law 5: US v. Charbonneau, 979 F.Supp. 1177 (S.D. Ohio 1997)

Abstract:  There is a limited expectation of privacy for emails sent/received on AOL.  Email is like regular mail.  When it is sent, the sender’s expectation of privacy diminishes.  Once an email (like a letter) is received the recipient controls it and the sender’s expectation of privacy is gone. There is even less expectation of privacy in a chat room.  When someone posts in chat room, he/she runs the risk that an undercover agent is in the chat room.  Therefore, anything said in chat room is admissible in court.


Fourth Amendment Law 6: Davis v. Gracey, 111 F.3d 1472 (10th Cir. 1997)

Abstract:  A good faith reliance on a court order or warrant is a complete defense to any action brought under the ECPA. To be in good faith, reliance on the warrant or court order must be objectively reasonable.