MINNESOTA v. CARTER


Syllabus

MINNESOTA v. CARTER ( No. 97-1147 )
569 N. W. 2d 169 (first judgment) and 180 (second judgment), reversed and remanded.

MINNESOTA v. CARTER

certiorari to the supreme court of minnesota


No. 97–1147. Argued October 6, 1998—Decided December 1, 1998 1

A police officer looked in an apartment window through a gap in the closed blind and observed respondents Carter and Johns and the apartment’s lessee bagging cocaine. After respondents were arrested, they moved to suppress, inter alia, cocaine and other evidence obtained from the apartment and their car, arguing that the officer’s initial observation was an unreasonable search in violation of the Fourth Amendment. Respondents were convicted of state drug offenses. The Minnesota trial court held that since they were not overnight social guests, they were not entitled to Fourth Amendment protection, and that the officer’s observation was not a search under the Amendment. The State Court of Appeals held that Carter did not have “standing” to object to the officer’s actions because the evidence indicated that he used the apartment for a business purpose—to package drugs—and, separately, affirmed Johns’ conviction without addressing the “standing” issue. In reversing, the State Supreme Court held that respondents had “standing” to claim Fourth Amendment protection because they had a legitimate expectation of privacy in the invaded place, and that the officer’s observation constituted an unreasonable search.

Held:<unicode value="8194"> Any search that may have occurred did not violate respondents’ Fourth Amendment rights. The state courts’ analysis of respondents’ expectation of privacy under the rubric of “standing” doctrine was expressly rejected in Rakas v. Illinois, 439 U. S. 128. Rather, to claim Fourth Amendment protection, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable. Id., at 143–144, n. 12. The Fourth Amendment protects persons against unreasonable searches of “their persons [and] houses,” and thus indicates that it is a personal right that must be invoked by an individual. But the extent to which the Amendment protects people may depend upon where those people are. While an overnight guest may have a legitimate expectation of privacy in someone else’s home, see Minnesota v. Olson, 495 U. S. 91, one who is merely present with the consent of the householder may not, see Jones v. United States, 362 U. S. 257. And an expectation of privacy in commercial property is different from, and less than, a similar expectation in a home. New York v. Burger, 482 U. S. 691. Here, the purely commercial nature of the transaction, the relatively short period of time that respondents were on the premises, and the lack of any previous connection between them and the householder all lead to the conclusion that their situation is closer to that of one simply permitted on the premises. Any search which may have occurred did not violate their Fourth Amendment rights. Because respondents had no legitimate expectation of privacy, the Court need not decide whether the officer’s observation constituted a “search.” Pp. 4–8.

569 N. W. 2d 169 (first judgment) and 180 (second judgment), reversed and remanded.

Rehnquist, C. J., delivered the opinion of the Court, in which O’Connor, Scalia, Kennedy, and Thomas, JJ., joined. Scalia, J., filed a concurring opinion, in which Thomas, J., joined. Kennedy, J., filed a concurring opinion. Breyer, J., filed an opinion concurring in the judgment. Ginbsurg, J., filed a dissenting opinion, in which Stevens and Souter, JJ., joined.


Notes

1 Together with Minnesota v. Johns, also on certiorari to the same court (see this Court’s Rule 12.4).


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Opinion

MINNESOTA, PETITIONER v. WAYNE
THOMAS CARTER

MINNESOTA v . MELVIN JOHNS

on writ of certiorari to the supreme court of minnesota


[December 1, 1998]

Chief Justice Rehnquist delivered the opinion of the Court.

Respondents and the lessee of an apartment were sitting in one of its rooms, bagging cocaine. While so engaged they were observed by a police officer, who looked through a drawn window blind. The Supreme Court of Minnesota held that the officer’s viewing was a search which violated respondents’ Fourth Amendment rights. We hold that no such violation occurred.

James Thielen, a police officer in the Twin Cities’ suburb of Eagan, Minnesota, went to an apartment building to investigate a tip from a confidential informant. The informant said that he had walked by the window of a ground-floor apartment and had seen people putting a white powder into bags. The officer looked in the same window through a gap in the closed blind and observed the bagging operation for several minutes. He then notified headquarters, which began preparing affidavits for a search warrant while he returned to the apartment building. When two men left the building in a previously identified Cadillac, the police stopped the car. Inside were respondents Carter and Johns. As the police opened the door of the car to let Johns out, they observed a black zippered pouch and a handgun, later determined to be loaded, on the vehicle’s floor. Carter and Johns were arrested, and a later police search of the vehicle the next day discovered pagers, a scale, and 47 grams of cocaine in plastic sandwich bags.

After seizing the car, the police returned to Apartment 103 and arrested the occupant, Kimberly Thompson, who is not a party to this appeal. A search of the apartment pursuant to a warrant revealed cocaine residue on the kitchen table and plastic baggies similar to those found in the Cadillac. Thielen identified Carter, Johns, and Thompson as the three people he had observed placing the powder into baggies. The police later learned that while Thompson was the lessee of the apartment, Carter and Johns lived in Chicago and had come to the apartment for the sole purpose of packaging the cocaine. Carter and Johns had never been to the apartment before and were only in the apartment for approximately 2½ hours. In return for the use of the apartment, Carter and Johns had given Thompson one-eighth of an ounce of the cocaine.

Carter and Johns were charged with conspiracy to commit controlled substance crime in the first degree and aiding and abetting in a controlled substance crime in the first degree, in violation of Minn. Stat. § 152.021, subd. 1(1), subd. 3(a) (1996); §609.05. They moved to suppress all evidence obtained from the apartment and the Cadillac, as well as to suppress several post-arrest incriminating statements they had made. They argued that Thielen’s initial observation of their drug packaging activities was an unreasonable search in violation of the Fourth Amendment and that all evidence obtained as a result of this unreasonable search was inadmissible as fruit of the poisonous tree. The Minnesota trial court held that since, unlike the defendant in Minnesota v. Olson , 495 U. S. 91 (1990) , Carter and Johns were not overnight social guests but temporary out-of-state visitors, they were not entitled to claim the protection of the Fourth Amendment against the government intrusion into the apartment. The trial court also concluded that Thielen’s observation was not a search within the meaning of the Fourth Amendment. After a trial, Carter and Johns were each convicted of both offenses. The Minnesota Court of Appeals held that the respondent Carter did not have “standing” to object to Thielen’s actions because his claim that he was predominantly a social guest was “inconsistent with the only evidence concerning his stay in the apartment, which indicates that he used it for a business purpose—to package drugs.” State v. Carter, 545 N. W. 2d 695, 698 (1996). In a separate appeal, the Court of Appeals also affirmed Johns’ conviction, without addressing what it termed the “standing” issue. State v. Johns , No. C9-95-1765 (Minn. Ct. App., June 11, 1996), App. D-1, D-3 (unpublished).

A divided Minnesota Supreme Court reversed, holding that respondents had “standing” to claim the protection of the Fourth Amendment because they had “ ‘a legitimate expectation of privacy in the invaded place.’ ” 569 N. W. 2d 169, 174 (1997) (quoting Rakas v. Illinois , 439 U. S. 128, 143 (1978) ). The court noted that even though “society does not recognize as valuable the task of bagging cocaine, we conclude that society does recognize as valuable the right of property owners or leaseholders to invite persons into the privacy of their homes to conduct a common task, be it legal or illegal activity. We, therefore, hold that [respondents] had standing to bring [their] motion to suppress the evidence gathered as a result of Thielen’s observations.” 569 N. W. 2d, at 176; see also 569 N. W.2d 180, 181. Based upon its conclusion that the respondents had “standing” to raise their Fourth Amendment claims, the court went on to hold that Thielen’s observation constituted a search of the apartment under the Fourth Amendment, and that the search was unreasonable. Id. , at 176–179. We granted certiorari, 523 U. S. ___ (1998), and now reverse.

The Minnesota courts analyzed whether respondents had a legitimate expectation of privacy under the rubric of “standing” doctrine, an analysis which this Court expressly rejected 20 years ago in Rakas . 439 U. S., at 139-140. In that case, we held that automobile passengers could not assert the protection of the Fourth Amendment against the seizure of incriminating evidence from a vehicle where they owned neither the vehicle nor the evidence. Ibid. Central to our analysis was the idea that in determining whether a defendant is able to show the violation of his (and not someone else’s) Fourth Amendment rights, the “definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing.” 439 U. S., at 140. Thus, we held that in order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; i.e., one which has “a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Id., at 143–144, and n. 12. See also Smith v. Maryland , 442 U. S. 735, 740-741 (1979) .

The Fourth Amendment guarantees: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Amendment protects persons against unreasonable searches of “their persons [and] houses” and thus indicates that the Fourth Amendment is a personal right that must be invoked by an individual. See Katz v. United States , 389 U. S. 347, 351 (1967) (“[T]he Fourth Amendment protects people, not places”). But the extent to which the Fourth Amendment protects people may depend upon where those people are. We have held that “capacity to claim the protection of the Fourth Amendment depends … upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.” Rakas , supra, at 143. See also Rawlings v. Kentucky , 448 U. S. 98, 106 (1980) .

The text of the Amendment suggests that its protections extend only to people in “their” houses. But we have held that in some circumstances a person may have a legitimate expectation of privacy in the house of someone else. In Minnesota v. Olson , 495 U. S. 91 (1990) , for example, we decided that an overnight guest in a house had the sort of expectation of privacy that the Fourth Amendment protects. We said:

“To hold that an overnight guest has a legitimate expectation of privacy in his host’s home merely recognizes the every day expectations of privacy that we all share. Staying overnight in another’s home is a long-standing social custom that serves functions recognized as valuable by society. We stay in others’ homes when we travel to a strange city for business or pleasure, we visit our parents, children, or more distant relatives out of town, when we are in between jobs, or homes, or when we house-sit for a friend… .

“From the overnight guest’s perspective, he seeks shelter in another’s home precisely because it provides him with privacy, a place where he and his possessions will not be disturbed by anyone but his host and those his host allows inside. We are at our most vulnerable when we are asleep because we cannot monitor our own safety or the security of our belongings. It is for this reason that, although we may spend all day in public places, when we cannot sleep in our own home we seek out another private place to sleep, whether it be a hotel room, or the home of a friend.” Id., at 98–99.

In Jones v. United States , 362 U. S. 257, 259 (1960) , the defendant seeking to exclude evidence resulting from a search of an apartment had been given the use of the apartment by a friend. He had clothing in the apartment, had slept there “ ‘maybe a night,’ ” and at the time was the sole occupant of the apartment. But while the holding of Jones —that a search of the apartment violated the defendant’s Fourth Amendment rights—is still valid, its statement that “anyone legitimately on the premises where a search occurs may challenge its legality,” id., at 267, was expressly repudiated in Rakas v. Illinois , 439 U. S. 128 (1978) . Thus an overnight guest in a home may claim the protection of the Fourth Amendment, but one who is merely present with the consent of the householder may not.

Respondents here were obviously not overnight guests, but were essentially present for a business transaction and were only in the home a matter of hours. There is no suggestion that they had a previous relationship with Thompson, or that there was any other purpose to their visit. Nor was there anything similar to the overnight guest relationship in Olson to suggest a degree of acceptance into the household. 1 While the apartment was a dwelling place for Thompson, it was for these respondents simply a place to do business.

Property used for commercial purposes is treated differently for Fourth Amendment purposes than residential property. “An expectation of privacy in commercial premises, however, is different from, and indeed less than, a similar expectation in an individual’s home.” New York v. Burger , 482 U. S. 691, 700 (1987) . And while it was a “home” in which respondents were present, it was not their home. Similarly, the Court has held that in some circumstances a worker can claim Fourth Amendment protection over his own workplace. See, e.g. , O’Connor v. Ortega , 480 U. S. 709 (1987) . But there is no indication that respondents in this case had nearly as significant a connection to Thompson’s apartment as the worker in O’Connor had to his own private office. See id. , at 716-17.

If we regard the overnight guest in Minnesota v. Olson as typifying those who may claim the protection of the Fourth Amendment in the home of another, and one merely “legitimately on the premises” as typifying those who may not do so, the present case is obviously somewhere in between. But the purely commercial nature of the transaction engaged in here, the relatively short period of time on the premises, and the lack of any previous connection between respondents and the householder, all lead us to conclude that respondents’ situation is closer to that of one simply permitted on the premises. We therefore hold that any search which may have occurred did not violate their Fourth Amendment rights.

Because we conclude that respondents had no legitimate expectation of privacy in the apartment, we need not decide whether the police officer’s observation constituted a “search.” The judgment of the Supreme Court of Minnesota is accordingly reversed, and the cause is remanded for proceedings not inconsistent with this opinion.

It is so ordered.


Notes

1 Justice Ginsburg’s dissent would render the operative language in Minnesota v. Olson, post p. 5, almost entirely superfluous. There, we explained the justification for extending Fourth Amendment protection to the overnight visitor: “Staying overnight in another’s home is a long-standing social custom that serves functions recognized as valuable by society. … We are at our most vulnerable when we are asleep because we cannot monitor our own safety or the security of our belongings.” 495 U. S., at 98-99. If any short-term business visit by a stranger entitles the visitor to share the Fourth Amendment protection of the lease holder’s home, the Court’s explanation of its holding in Olson was quite unnecessary.


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Opinion

MINNESOTA, PETITIONER v. WAYNE
THOMAS CARTER

MINNESOTA v . MELVIN JOHNS

on writ of certiorari to the supreme court of minnesota


[December 1, 1998]

Chief Justice Rehnquist delivered the opinion of the Court.

Respondents and the lessee of an apartment were sitting in one of its rooms, bagging cocaine. While so engaged they were observed by a police officer, who looked through a drawn window blind. The Supreme Court of Minnesota held that the officer’s viewing was a search which violated respondents’ Fourth Amendment rights. We hold that no such violation occurred.

James Thielen, a police officer in the Twin Cities’ suburb of Eagan, Minnesota, went to an apartment building to investigate a tip from a confidential informant. The informant said that he had walked by the window of a ground-floor apartment and had seen people putting a white powder into bags. The officer looked in the same window through a gap in the closed blind and observed the bagging operation for several minutes. He then notified headquarters, which began preparing affidavits for a search warrant while he returned to the apartment building. When two men left the building in a previously identified Cadillac, the police stopped the car. Inside were respondents Carter and Johns. As the police opened the door of the car to let Johns out, they observed a black zippered pouch and a handgun, later determined to be loaded, on the vehicle’s floor. Carter and Johns were arrested, and a later police search of the vehicle the next day discovered pagers, a scale, and 47 grams of cocaine in plastic sandwich bags.

After seizing the car, the police returned to Apartment 103 and arrested the occupant, Kimberly Thompson, who is not a party to this appeal. A search of the apartment pursuant to a warrant revealed cocaine residue on the kitchen table and plastic baggies similar to those found in the Cadillac. Thielen identified Carter, Johns, and Thompson as the three people he had observed placing the powder into baggies. The police later learned that while Thompson was the lessee of the apartment, Carter and Johns lived in Chicago and had come to the apartment for the sole purpose of packaging the cocaine. Carter and Johns had never been to the apartment before and were only in the apartment for approximately 2½ hours. In return for the use of the apartment, Carter and Johns had given Thompson one-eighth of an ounce of the cocaine.

Carter and Johns were charged with conspiracy to commit controlled substance crime in the first degree and aiding and abetting in a controlled substance crime in the first degree, in violation of Minn. Stat. § 152.021, subd. 1(1), subd. 3(a) (1996); §609.05. They moved to suppress all evidence obtained from the apartment and the Cadillac, as well as to suppress several post-arrest incriminating statements they had made. They argued that Thielen’s initial observation of their drug packaging activities was an unreasonable search in violation of the Fourth Amendment and that all evidence obtained as a result of this unreasonable search was inadmissible as fruit of the poisonous tree. The Minnesota trial court held that since, unlike the defendant in Minnesota v. Olson , 495 U. S. 91 (1990) , Carter and Johns were not overnight social guests but temporary out-of-state visitors, they were not entitled to claim the protection of the Fourth Amendment against the government intrusion into the apartment. The trial court also concluded that Thielen’s observation was not a search within the meaning of the Fourth Amendment. After a trial, Carter and Johns were each convicted of both offenses. The Minnesota Court of Appeals held that the respondent Carter did not have “standing” to object to Thielen’s actions because his claim that he was predominantly a social guest was “inconsistent with the only evidence concerning his stay in the apartment, which indicates that he used it for a business purpose—to package drugs.” State v. Carter, 545 N. W. 2d 695, 698 (1996). In a separate appeal, the Court of Appeals also affirmed Johns’ conviction, without addressing what it termed the “standing” issue. State v. Johns , No. C9-95-1765 (Minn. Ct. App., June 11, 1996), App. D-1, D-3 (unpublished).

A divided Minnesota Supreme Court reversed, holding that respondents had “standing” to claim the protection of the Fourth Amendment because they had “ ‘a legitimate expectation of privacy in the invaded place.’ ” 569 N. W. 2d 169, 174 (1997) (quoting Rakas v. Illinois , 439 U. S. 128, 143 (1978) ). The court noted that even though “society does not recognize as valuable the task of bagging cocaine, we conclude that society does recognize as valuable the right of property owners or leaseholders to invite persons into the privacy of their homes to conduct a common task, be it legal or illegal activity. We, therefore, hold that [respondents] had standing to bring [their] motion to suppress the evidence gathered as a result of Thielen’s observations.” 569 N. W. 2d, at 176; see also 569 N. W.2d 180, 181. Based upon its conclusion that the respondents had “standing” to raise their Fourth Amendment claims, the court went on to hold that Thielen’s observation constituted a search of the apartment under the Fourth Amendment, and that the search was unreasonable. Id. , at 176–179. We granted certiorari, 523 U. S. ___ (1998), and now reverse.

The Minnesota courts analyzed whether respondents had a legitimate expectation of privacy under the rubric of “standing” doctrine, an analysis which this Court expressly rejected 20 years ago in Rakas . 439 U. S., at 139-140. In that case, we held that automobile passengers could not assert the protection of the Fourth Amendment against the seizure of incriminating evidence from a vehicle where they owned neither the vehicle nor the evidence. Ibid. Central to our analysis was the idea that in determining whether a defendant is able to show the violation of his (and not someone else’s) Fourth Amendment rights, the “definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing.” 439 U. S., at 140. Thus, we held that in order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; i.e., one which has “a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Id., at 143–144, and n. 12. See also Smith v. Maryland , 442 U. S. 735, 740-741 (1979) .

The Fourth Amendment guarantees: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Amendment protects persons against unreasonable searches of “their persons [and] houses” and thus indicates that the Fourth Amendment is a personal right that must be invoked by an individual. See Katz v. United States , 389 U. S. 347, 351 (1967) (“[T]he Fourth Amendment protects people, not places”). But the extent to which the Fourth Amendment protects people may depend upon where those people are. We have held that “capacity to claim the protection of the Fourth Amendment depends … upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.” Rakas , supra, at 143. See also Rawlings v. Kentucky , 448 U. S. 98, 106 (1980) .

The text of the Amendment suggests that its protections extend only to people in “their” houses. But we have held that in some circumstances a person may have a legitimate expectation of privacy in the house of someone else. In Minnesota v. Olson , 495 U. S. 91 (1990) , for example, we decided that an overnight guest in a house had the sort of expectation of privacy that the Fourth Amendment protects. We said:

“To hold that an overnight guest has a legitimate expectation of privacy in his host’s home merely recognizes the every day expectations of privacy that we all share. Staying overnight in another’s home is a long-standing social custom that serves functions recognized as valuable by society. We stay in others’ homes when we travel to a strange city for business or pleasure, we visit our parents, children, or more distant relatives out of town, when we are in between jobs, or homes, or when we house-sit for a friend… .

“From the overnight guest’s perspective, he seeks shelter in another’s home precisely because it provides him with privacy, a place where he and his possessions will not be disturbed by anyone but his host and those his host allows inside. We are at our most vulnerable when we are asleep because we cannot monitor our own safety or the security of our belongings. It is for this reason that, although we may spend all day in public places, when we cannot sleep in our own home we seek out another private place to sleep, whether it be a hotel room, or the home of a friend.” Id., at 98–99.

In Jones v. United States , 362 U. S. 257, 259 (1960) , the defendant seeking to exclude evidence resulting from a search of an apartment had been given the use of the apartment by a friend. He had clothing in the apartment, had slept there “ ‘maybe a night,’ ” and at the time was the sole occupant of the apartment. But while the holding of Jones —that a search of the apartment violated the defendant’s Fourth Amendment rights—is still valid, its statement that “anyone legitimately on the premises where a search occurs may challenge its legality,” id., at 267, was expressly repudiated in Rakas v. Illinois , 439 U. S. 128 (1978) . Thus an overnight guest in a home may claim the protection of the Fourth Amendment, but one who is merely present with the consent of the householder may not.

Respondents here were obviously not overnight guests, but were essentially present for a business transaction and were only in the home a matter of hours. There is no suggestion that they had a previous relationship with Thompson, or that there was any other purpose to their visit. Nor was there anything similar to the overnight guest relationship in Olson to suggest a degree of acceptance into the household. 1 While the apartment was a dwelling place for Thompson, it was for these respondents simply a place to do business.

Property used for commercial purposes is treated differently for Fourth Amendment purposes than residential property. “An expectation of privacy in commercial premises, however, is different from, and indeed less than, a similar expectation in an individual’s home.” New York v. Burger , 482 U. S. 691, 700 (1987) . And while it was a “home” in which respondents were present, it was not their home. Similarly, the Court has held that in some circumstances a worker can claim Fourth Amendment protection over his own workplace. See, e.g. , O’Connor v. Ortega , 480 U. S. 709 (1987) . But there is no indication that respondents in this case had nearly as significant a connection to Thompson’s apartment as the worker in O’Connor had to his own private office. See id. , at 716-17.

If we regard the overnight guest in Minnesota v. Olson as typifying those who may claim the protection of the Fourth Amendment in the home of another, and one merely “legitimately on the premises” as typifying those who may not do so, the present case is obviously somewhere in between. But the purely commercial nature of the transaction engaged in here, the relatively short period of time on the premises, and the lack of any previous connection between respondents and the householder, all lead us to conclude that respondents’ situation is closer to that of one simply permitted on the premises. We therefore hold that any search which may have occurred did not violate their Fourth Amendment rights.

Because we conclude that respondents had no legitimate expectation of privacy in the apartment, we need not decide whether the police officer’s observation constituted a “search.” The judgment of the Supreme Court of Minnesota is accordingly reversed, and the cause is remanded for proceedings not inconsistent with this opinion.

It is so ordered.


Notes

1 Justice Ginsburg’s dissent would render the operative language in Minnesota v. Olson, post p. 5, almost entirely superfluous. There, we explained the justification for extending Fourth Amendment protection to the overnight visitor: “Staying overnight in another’s home is a long-standing social custom that serves functions recognized as valuable by society. … We are at our most vulnerable when we are asleep because we cannot monitor our own safety or the security of our belongings.” 495 U. S., at 98-99. If any short-term business visit by a stranger entitles the visitor to share the Fourth Amendment protection of the lease holder’s home, the Court’s explanation of its holding in Olson was quite unnecessary.


TOP

Opinion

MINNESOTA, PETITIONER v. WAYNE
THOMAS CARTER

MINNESOTA v . MELVIN JOHNS

on writ of certiorari to the supreme court of minnesota


[December 1, 1998]

Chief Justice Rehnquist delivered the opinion of the Court.

Respondents and the lessee of an apartment were sitting in one of its rooms, bagging cocaine. While so engaged they were observed by a police officer, who looked through a drawn window blind. The Supreme Court of Minnesota held that the officer’s viewing was a search which violated respondents’ Fourth Amendment rights. We hold that no such violation occurred.

James Thielen, a police officer in the Twin Cities’ suburb of Eagan, Minnesota, went to an apartment building to investigate a tip from a confidential informant. The informant said that he had walked by the window of a ground-floor apartment and had seen people putting a white powder into bags. The officer looked in the same window through a gap in the closed blind and observed the bagging operation for several minutes. He then notified headquarters, which began preparing affidavits for a search warrant while he returned to the apartment building. When two men left the building in a previously identified Cadillac, the police stopped the car. Inside were respondents Carter and Johns. As the police opened the door of the car to let Johns out, they observed a black zippered pouch and a handgun, later determined to be loaded, on the vehicle’s floor. Carter and Johns were arrested, and a later police search of the vehicle the next day discovered pagers, a scale, and 47 grams of cocaine in plastic sandwich bags.

After seizing the car, the police returned to Apartment 103 and arrested the occupant, Kimberly Thompson, who is not a party to this appeal. A search of the apartment pursuant to a warrant revealed cocaine residue on the kitchen table and plastic baggies similar to those found in the Cadillac. Thielen identified Carter, Johns, and Thompson as the three people he had observed placing the powder into baggies. The police later learned that while Thompson was the lessee of the apartment, Carter and Johns lived in Chicago and had come to the apartment for the sole purpose of packaging the cocaine. Carter and Johns had never been to the apartment before and were only in the apartment for approximately 2½ hours. In return for the use of the apartment, Carter and Johns had given Thompson one-eighth of an ounce of the cocaine.

Carter and Johns were charged with conspiracy to commit controlled substance crime in the first degree and aiding and abetting in a controlled substance crime in the first degree, in violation of Minn. Stat. § 152.021, subd. 1(1), subd. 3(a) (1996); §609.05. They moved to suppress all evidence obtained from the apartment and the Cadillac, as well as to suppress several post-arrest incriminating statements they had made. They argued that Thielen’s initial observation of their drug packaging activities was an unreasonable search in violation of the Fourth Amendment and that all evidence obtained as a result of this unreasonable search was inadmissible as fruit of the poisonous tree. The Minnesota trial court held that since, unlike the defendant in Minnesota v. Olson , 495 U. S. 91 (1990) , Carter and Johns were not overnight social guests but temporary out-of-state visitors, they were not entitled to claim the protection of the Fourth Amendment against the government intrusion into the apartment. The trial court also concluded that Thielen’s observation was not a search within the meaning of the Fourth Amendment. After a trial, Carter and Johns were each convicted of both offenses. The Minnesota Court of Appeals held that the respondent Carter did not have “standing” to object to Thielen’s actions because his claim that he was predominantly a social guest was “inconsistent with the only evidence concerning his stay in the apartment, which indicates that he used it for a business purpose—to package drugs.” State v. Carter, 545 N. W. 2d 695, 698 (1996). In a separate appeal, the Court of Appeals also affirmed Johns’ conviction, without addressing what it termed the “standing” issue. State v. Johns , No. C9-95-1765 (Minn. Ct. App., June 11, 1996), App. D-1, D-3 (unpublished).

A divided Minnesota Supreme Court reversed, holding that respondents had “standing” to claim the protection of the Fourth Amendment because they had “ ‘a legitimate expectation of privacy in the invaded place.’ ” 569 N. W. 2d 169, 174 (1997) (quoting Rakas v. Illinois , 439 U. S. 128, 143 (1978) ). The court noted that even though “society does not recognize as valuable the task of bagging cocaine, we conclude that society does recognize as valuable the right of property owners or leaseholders to invite persons into the privacy of their homes to conduct a common task, be it legal or illegal activity. We, therefore, hold that [respondents] had standing to bring [their] motion to suppress the evidence gathered as a result of Thielen’s observations.” 569 N. W. 2d, at 176; see also 569 N. W.2d 180, 181. Based upon its conclusion that the respondents had “standing” to raise their Fourth Amendment claims, the court went on to hold that Thielen’s observation constituted a search of the apartment under the Fourth Amendment, and that the search was unreasonable. Id. , at 176–179. We granted certiorari, 523 U. S. ___ (1998), and now reverse.

The Minnesota courts analyzed whether respondents had a legitimate expectation of privacy under the rubric of “standing” doctrine, an analysis which this Court expressly rejected 20 years ago in Rakas . 439 U. S., at 139-140. In that case, we held that automobile passengers could not assert the protection of the Fourth Amendment against the seizure of incriminating evidence from a vehicle where they owned neither the vehicle nor the evidence. Ibid. Central to our analysis was the idea that in determining whether a defendant is able to show the violation of his (and not someone else’s) Fourth Amendment rights, the “definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing.” 439 U. S., at 140. Thus, we held that in order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; i.e., one which has “a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Id., at 143–144, and n. 12. See also Smith v. Maryland , 442 U. S. 735, 740-741 (1979) .

The Fourth Amendment guarantees: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Amendment protects persons against unreasonable searches of “their persons [and] houses” and thus indicates that the Fourth Amendment is a personal right that must be invoked by an individual. See Katz v. United States , 389 U. S. 347, 351 (1967) (“[T]he Fourth Amendment protects people, not places”). But the extent to which the Fourth Amendment protects people may depend upon where those people are. We have held that “capacity to claim the protection of the Fourth Amendment depends … upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.” Rakas , supra, at 143. See also Rawlings v. Kentucky , 448 U. S. 98, 106 (1980) .

The text of the Amendment suggests that its protections extend only to people in “their” houses. But we have held that in some circumstances a person may have a legitimate expectation of privacy in the house of someone else. In Minnesota v. Olson , 495 U. S. 91 (1990) , for example, we decided that an overnight guest in a house had the sort of expectation of privacy that the Fourth Amendment protects. We said:

“To hold that an overnight guest has a legitimate expectation of privacy in his host’s home merely recognizes the every day expectations of privacy that we all share. Staying overnight in another’s home is a long-standing social custom that serves functions recognized as valuable by society. We stay in others’ homes when we travel to a strange city for business or pleasure, we visit our parents, children, or more distant relatives out of town, when we are in between jobs, or homes, or when we house-sit for a friend… .

“From the overnight guest’s perspective, he seeks shelter in another’s home precisely because it provides him with privacy, a place where he and his possessions will not be disturbed by anyone but his host and those his host allows inside. We are at our most vulnerable when we are asleep because we cannot monitor our own safety or the security of our belongings. It is for this reason that, although we may spend all day in public places, when we cannot sleep in our own home we seek out another private place to sleep, whether it be a hotel room, or the home of a friend.” Id., at 98–99.

In Jones v. United States , 362 U. S. 257, 259 (1960) , the defendant seeking to exclude evidence resulting from a search of an apartment had been given the use of the apartment by a friend. He had clothing in the apartment, had slept there “ ‘maybe a night,’ ” and at the time was the sole occupant of the apartment. But while the holding of Jones —that a search of the apartment violated the defendant’s Fourth Amendment rights—is still valid, its statement that “anyone legitimately on the premises where a search occurs may challenge its legality,” id., at 267, was expressly repudiated in Rakas v. Illinois , 439 U. S. 128 (1978) . Thus an overnight guest in a home may claim the protection of the Fourth Amendment, but one who is merely present with the consent of the householder may not.

Respondents here were obviously not overnight guests, but were essentially present for a business transaction and were only in the home a matter of hours. There is no suggestion that they had a previous relationship with Thompson, or that there was any other purpose to their visit. Nor was there anything similar to the overnight guest relationship in Olson to suggest a degree of acceptance into the household. 1 While the apartment was a dwelling place for Thompson, it was for these respondents simply a place to do business.

Property used for commercial purposes is treated differently for Fourth Amendment purposes than residential property. “An expectation of privacy in commercial premises, however, is different from, and indeed less than, a similar expectation in an individual’s home.” New York v. Burger , 482 U. S. 691, 700 (1987) . And while it was a “home” in which respondents were present, it was not their home. Similarly, the Court has held that in some circumstances a worker can claim Fourth Amendment protection over his own workplace. See, e.g. , O’Connor v. Ortega , 480 U. S. 709 (1987) . But there is no indication that respondents in this case had nearly as significant a connection to Thompson’s apartment as the worker in O’Connor had to his own private office. See id. , at 716-17.

If we regard the overnight guest in Minnesota v. Olson as typifying those who may claim the protection of the Fourth Amendment in the home of another, and one merely “legitimately on the premises” as typifying those who may not do so, the present case is obviously somewhere in between. But the purely commercial nature of the transaction engaged in here, the relatively short period of time on the premises, and the lack of any previous connection between respondents and the householder, all lead us to conclude that respondents’ situation is closer to that of one simply permitted on the premises. We therefore hold that any search which may have occurred did not violate their Fourth Amendment rights.

Because we conclude that respondents had no legitimate expectation of privacy in the apartment, we need not decide whether the police officer’s observation constituted a “search.” The judgment of the Supreme Court of Minnesota is accordingly reversed, and the cause is remanded for proceedings not inconsistent with this opinion.

It is so ordered.


Notes

1 Justice Ginsburg’s dissent would render the operative language in Minnesota v. Olson, post p. 5, almost entirely superfluous. There, we explained the justification for extending Fourth Amendment protection to the overnight visitor: “Staying overnight in another’s home is a long-standing social custom that serves functions recognized as valuable by society. … We are at our most vulnerable when we are asleep because we cannot monitor our own safety or the security of our belongings.” 495 U. S., at 98-99. If any short-term business visit by a stranger entitles the visitor to share the Fourth Amendment protection of the lease holder’s home, the Court’s explanation of its holding in Olson was quite unnecessary.


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Opinion

MINNESOTA, PETITIONER v. WAYNE
THOMAS CARTER

MINNESOTA v . MELVIN JOHNS

on writ of certiorari to the supreme court of minnesota


[December 1, 1998]

Chief Justice Rehnquist delivered the opinion of the Court.

Respondents and the lessee of an apartment were sitting in one of its rooms, bagging cocaine. While so engaged they were observed by a police officer, who looked through a drawn window blind. The Supreme Court of Minnesota held that the officer’s viewing was a search which violated respondents’ Fourth Amendment rights. We hold that no such violation occurred.

James Thielen, a police officer in the Twin Cities’ suburb of Eagan, Minnesota, went to an apartment building to investigate a tip from a confidential informant. The informant said that he had walked by the window of a ground-floor apartment and had seen people putting a white powder into bags. The officer looked in the same window through a gap in the closed blind and observed the bagging operation for several minutes. He then notified headquarters, which began preparing affidavits for a search warrant while he returned to the apartment building. When two men left the building in a previously identified Cadillac, the police stopped the car. Inside were respondents Carter and Johns. As the police opened the door of the car to let Johns out, they observed a black zippered pouch and a handgun, later determined to be loaded, on the vehicle’s floor. Carter and Johns were arrested, and a later police search of the vehicle the next day discovered pagers, a scale, and 47 grams of cocaine in plastic sandwich bags.

After seizing the car, the police returned to Apartment 103 and arrested the occupant, Kimberly Thompson, who is not a party to this appeal. A search of the apartment pursuant to a warrant revealed cocaine residue on the kitchen table and plastic baggies similar to those found in the Cadillac. Thielen identified Carter, Johns, and Thompson as the three people he had observed placing the powder into baggies. The police later learned that while Thompson was the lessee of the apartment, Carter and Johns lived in Chicago and had come to the apartment for the sole purpose of packaging the cocaine. Carter and Johns had never been to the apartment before and were only in the apartment for approximately 2½ hours. In return for the use of the apartment, Carter and Johns had given Thompson one-eighth of an ounce of the cocaine.

Carter and Johns were charged with conspiracy to commit controlled substance crime in the first degree and aiding and abetting in a controlled substance crime in the first degree, in violation of Minn. Stat. § 152.021, subd. 1(1), subd. 3(a) (1996); §609.05. They moved to suppress all evidence obtained from the apartment and the Cadillac, as well as to suppress several post-arrest incriminating statements they had made. They argued that Thielen’s initial observation of their drug packaging activities was an unreasonable search in violation of the Fourth Amendment and that all evidence obtained as a result of this unreasonable search was inadmissible as fruit of the poisonous tree. The Minnesota trial court held that since, unlike the defendant in Minnesota v. Olson , 495 U. S. 91 (1990) , Carter and Johns were not overnight social guests but temporary out-of-state visitors, they were not entitled to claim the protection of the Fourth Amendment against the government intrusion into the apartment. The trial court also concluded that Thielen’s observation was not a search within the meaning of the Fourth Amendment. After a trial, Carter and Johns were each convicted of both offenses. The Minnesota Court of Appeals held that the respondent Carter did not have “standing” to object to Thielen’s actions because his claim that he was predominantly a social guest was “inconsistent with the only evidence concerning his stay in the apartment, which indicates that he used it for a business purpose—to package drugs.” State v. Carter, 545 N. W. 2d 695, 698 (1996). In a separate appeal, the Court of Appeals also affirmed Johns’ conviction, without addressing what it termed the “standing” issue. State v. Johns , No. C9-95-1765 (Minn. Ct. App., June 11, 1996), App. D-1, D-3 (unpublished).

A divided Minnesota Supreme Court reversed, holding that respondents had “standing” to claim the protection of the Fourth Amendment because they had “ ‘a legitimate expectation of privacy in the invaded place.’ ” 569 N. W. 2d 169, 174 (1997) (quoting Rakas v. Illinois , 439 U. S. 128, 143 (1978) ). The court noted that even though “society does not recognize as valuable the task of bagging cocaine, we conclude that society does recognize as valuable the right of property owners or leaseholders to invite persons into the privacy of their homes to conduct a common task, be it legal or illegal activity. We, therefore, hold that [respondents] had standing to bring [their] motion to suppress the evidence gathered as a result of Thielen’s observations.” 569 N. W. 2d, at 176; see also 569 N. W.2d 180, 181. Based upon its conclusion that the respondents had “standing” to raise their Fourth Amendment claims, the court went on to hold that Thielen’s observation constituted a search of the apartment under the Fourth Amendment, and that the search was unreasonable. Id. , at 176–179. We granted certiorari, 523 U. S. ___ (1998), and now reverse.

The Minnesota courts analyzed whether respondents had a legitimate expectation of privacy under the rubric of “standing” doctrine, an analysis which this Court expressly rejected 20 years ago in Rakas . 439 U. S., at 139-140. In that case, we held that automobile passengers could not assert the protection of the Fourth Amendment against the seizure of incriminating evidence from a vehicle where they owned neither the vehicle nor the evidence. Ibid. Central to our analysis was the idea that in determining whether a defendant is able to show the violation of his (and not someone else’s) Fourth Amendment rights, the “definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing.” 439 U. S., at 140. Thus, we held that in order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; i.e., one which has “a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Id., at 143–144, and n. 12. See also Smith v. Maryland , 442 U. S. 735, 740-741 (1979) .

The Fourth Amendment guarantees: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Amendment protects persons against unreasonable searches of “their persons [and] houses” and thus indicates that the Fourth Amendment is a personal right that must be invoked by an individual. See Katz v. United States , 389 U. S. 347, 351 (1967) (“[T]he Fourth Amendment protects people, not places”). But the extent to which the Fourth Amendment protects people may depend upon where those people are. We have held that “capacity to claim the protection of the Fourth Amendment depends … upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.” Rakas , supra, at 143. See also Rawlings v. Kentucky , 448 U. S. 98, 106 (1980) .

The text of the Amendment suggests that its protections extend only to people in “their” houses. But we have held that in some circumstances a person may have a legitimate expectation of privacy in the house of someone else. In Minnesota v. Olson , 495 U. S. 91 (1990) , for example, we decided that an overnight guest in a house had the sort of expectation of privacy that the Fourth Amendment protects. We said:

“To hold that an overnight guest has a legitimate expectation of privacy in his host’s home merely recognizes the every day expectations of privacy that we all share. Staying overnight in another’s home is a long-standing social custom that serves functions recognized as valuable by society. We stay in others’ homes when we travel to a strange city for business or pleasure, we visit our parents, children, or more distant relatives out of town, when we are in between jobs, or homes, or when we house-sit for a friend… .

“From the overnight guest’s perspective, he seeks shelter in another’s home precisely because it provides him with privacy, a place where he and his possessions will not be disturbed by anyone but his host and those his host allows inside. We are at our most vulnerable when we are asleep because we cannot monitor our own safety or the security of our belongings. It is for this reason that, although we may spend all day in public places, when we cannot sleep in our own home we seek out another private place to sleep, whether it be a hotel room, or the home of a friend.” Id., at 98–99.

In Jones v. United States , 362 U. S. 257, 259 (1960) , the defendant seeking to exclude evidence resulting from a search of an apartment had been given the use of the apartment by a friend. He had clothing in the apartment, had slept there “ ‘maybe a night,’ ” and at the time was the sole occupant of the apartment. But while the holding of Jones —that a search of the apartment violated the defendant’s Fourth Amendment rights—is still valid, its statement that “anyone legitimately on the premises where a search occurs may challenge its legality,” id., at 267, was expressly repudiated in Rakas v. Illinois , 439 U. S. 128 (1978) . Thus an overnight guest in a home may claim the protection of the Fourth Amendment, but one who is merely present with the consent of the householder may not.

Respondents here were obviously not overnight guests, but were essentially present for a business transaction and were only in the home a matter of hours. There is no suggestion that they had a previous relationship with Thompson, or that there was any other purpose to their visit. Nor was there anything similar to the overnight guest relationship in Olson to suggest a degree of acceptance into the household. 1 While the apartment was a dwelling place for Thompson, it was for these respondents simply a place to do business.

Property used for commercial purposes is treated differently for Fourth Amendment purposes than residential property. “An expectation of privacy in commercial premises, however, is different from, and indeed less than, a similar expectation in an individual’s home.” New York v. Burger , 482 U. S. 691, 700 (1987) . And while it was a “home” in which respondents were present, it was not their home. Similarly, the Court has held that in some circumstances a worker can claim Fourth Amendment protection over his own workplace. See, e.g. , O’Connor v. Ortega , 480 U. S. 709 (1987) . But there is no indication that respondents in this case had nearly as significant a connection to Thompson’s apartment as the worker in O’Connor had to his own private office. See id. , at 716-17.

If we regard the overnight guest in Minnesota v. Olson as typifying those who may claim the protection of the Fourth Amendment in the home of another, and one merely “legitimately on the premises” as typifying those who may not do so, the present case is obviously somewhere in between. But the purely commercial nature of the transaction engaged in here, the relatively short period of time on the premises, and the lack of any previous connection between respondents and the householder, all lead us to conclude that respondents’ situation is closer to that of one simply permitted on the premises. We therefore hold that any search which may have occurred did not violate their Fourth Amendment rights.

Because we conclude that respondents had no legitimate expectation of privacy in the apartment, we need not decide whether the police officer’s observation constituted a “search.” The judgment of the Supreme Court of Minnesota is accordingly reversed, and the cause is remanded for proceedings not inconsistent with this opinion.

It is so ordered.


Notes

1 Justice Ginsburg’s dissent would render the operative language in Minnesota v. Olson, post p. 5, almost entirely superfluous. There, we explained the justification for extending Fourth Amendment protection to the overnight visitor: “Staying overnight in another’s home is a long-standing social custom that serves functions recognized as valuable by society. … We are at our most vulnerable when we are asleep because we cannot monitor our own safety or the security of our belongings.” 495 U. S., at 98-99. If any short-term business visit by a stranger entitles the visitor to share the Fourth Amendment protection of the lease holder’s home, the Court’s explanation of its holding in Olson was quite unnecessary.


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Opinion

MINNESOTA, PETITIONER v. WAYNE
THOMAS CARTER

MINNESOTA v . MELVIN JOHNS

on writ of certiorari to the supreme court of minnesota


[December 1, 1998]

Chief Justice Rehnquist delivered the opinion of the Court.

Respondents and the lessee of an apartment were sitting in one of its rooms, bagging cocaine. While so engaged they were observed by a police officer, who looked through a drawn window blind. The Supreme Court of Minnesota held that the officer’s viewing was a search which violated respondents’ Fourth Amendment rights. We hold that no such violation occurred.

James Thielen, a police officer in the Twin Cities’ suburb of Eagan, Minnesota, went to an apartment building to investigate a tip from a confidential informant. The informant said that he had walked by the window of a ground-floor apartment and had seen people putting a white powder into bags. The officer looked in the same window through a gap in the closed blind and observed the bagging operation for several minutes. He then notified headquarters, which began preparing affidavits for a search warrant while he returned to the apartment building. When two men left the building in a previously identified Cadillac, the police stopped the car. Inside were respondents Carter and Johns. As the police opened the door of the car to let Johns out, they observed a black zippered pouch and a handgun, later determined to be loaded, on the vehicle’s floor. Carter and Johns were arrested, and a later police search of the vehicle the next day discovered pagers, a scale, and 47 grams of cocaine in plastic sandwich bags.

After seizing the car, the police returned to Apartment 103 and arrested the occupant, Kimberly Thompson, who is not a party to this appeal. A search of the apartment pursuant to a warrant revealed cocaine residue on the kitchen table and plastic baggies similar to those found in the Cadillac. Thielen identified Carter, Johns, and Thompson as the three people he had observed placing the powder into baggies. The police later learned that while Thompson was the lessee of the apartment, Carter and Johns lived in Chicago and had come to the apartment for the sole purpose of packaging the cocaine. Carter and Johns had never been to the apartment before and were only in the apartment for approximately 2½ hours. In return for the use of the apartment, Carter and Johns had given Thompson one-eighth of an ounce of the cocaine.

Carter and Johns were charged with conspiracy to commit controlled substance crime in the first degree and aiding and abetting in a controlled substance crime in the first degree, in violation of Minn. Stat. § 152.021, subd. 1(1), subd. 3(a) (1996); §609.05. They moved to suppress all evidence obtained from the apartment and the Cadillac, as well as to suppress several post-arrest incriminating statements they had made. They argued that Thielen’s initial observation of their drug packaging activities was an unreasonable search in violation of the Fourth Amendment and that all evidence obtained as a result of this unreasonable search was inadmissible as fruit of the poisonous tree. The Minnesota trial court held that since, unlike the defendant in Minnesota v. Olson , 495 U. S. 91 (1990) , Carter and Johns were not overnight social guests but temporary out-of-state visitors, they were not entitled to claim the protection of the Fourth Amendment against the government intrusion into the apartment. The trial court also concluded that Thielen’s observation was not a search within the meaning of the Fourth Amendment. After a trial, Carter and Johns were each convicted of both offenses. The Minnesota Court of Appeals held that the respondent Carter did not have “standing” to object to Thielen’s actions because his claim that he was predominantly a social guest was “inconsistent with the only evidence concerning his stay in the apartment, which indicates that he used it for a business purpose—to package drugs.” State v. Carter, 545 N. W. 2d 695, 698 (1996). In a separate appeal, the Court of Appeals also affirmed Johns’ conviction, without addressing what it termed the “standing” issue. State v. Johns , No. C9-95-1765 (Minn. Ct. App., June 11, 1996), App. D-1, D-3 (unpublished).

A divided Minnesota Supreme Court reversed, holding that respondents had “standing” to claim the protection of the Fourth Amendment because they had “ ‘a legitimate expectation of privacy in the invaded place.’ ” 569 N. W. 2d 169, 174 (1997) (quoting Rakas v. Illinois , 439 U. S. 128, 143 (1978) ). The court noted that even though “society does not recognize as valuable the task of bagging cocaine, we conclude that society does recognize as valuable the right of property owners or leaseholders to invite persons into the privacy of their homes to conduct a common task, be it legal or illegal activity. We, therefore, hold that [respondents] had standing to bring [their] motion to suppress the evidence gathered as a result of Thielen’s observations.” 569 N. W. 2d, at 176; see also 569 N. W.2d 180, 181. Based upon its conclusion that the respondents had “standing” to raise their Fourth Amendment claims, the court went on to hold that Thielen’s observation constituted a search of the apartment under the Fourth Amendment, and that the search was unreasonable. Id. , at 176–179. We granted certiorari, 523 U. S. ___ (1998), and now reverse.

The Minnesota courts analyzed whether respondents had a legitimate expectation of privacy under the rubric of “standing” doctrine, an analysis which this Court expressly rejected 20 years ago in Rakas . 439 U. S., at 139-140. In that case, we held that automobile passengers could not assert the protection of the Fourth Amendment against the seizure of incriminating evidence from a vehicle where they owned neither the vehicle nor the evidence. Ibid. Central to our analysis was the idea that in determining whether a defendant is able to show the violation of his (and not someone else’s) Fourth Amendment rights, the “definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing.” 439 U. S., at 140. Thus, we held that in order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; i.e., one which has “a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Id., at 143–144, and n. 12. See also Smith v. Maryland , 442 U. S. 735, 740-741 (1979) .

The Fourth Amendment guarantees: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Amendment protects persons against unreasonable searches of “their persons [and] houses” and thus indicates that the Fourth Amendment is a personal right that must be invoked by an individual. See Katz v. United States , 389 U. S. 347, 351 (1967) (“[T]he Fourth Amendment protects people, not places”). But the extent to which the Fourth Amendment protects people may depend upon where those people are. We have held that “capacity to claim the protection of the Fourth Amendment depends … upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.” Rakas , supra, at 143. See also Rawlings v. Kentucky , 448 U. S. 98, 106 (1980) .

The text of the Amendment suggests that its protections extend only to people in “their” houses. But we have held that in some circumstances a person may have a legitimate expectation of privacy in the house of someone else. In Minnesota v. Olson , 495 U. S. 91 (1990) , for example, we decided that an overnight guest in a house had the sort of expectation of privacy that the Fourth Amendment protects. We said:

“To hold that an overnight guest has a legitimate expectation of privacy in his host’s home merely recognizes the every day expectations of privacy that we all share. Staying overnight in another’s home is a long-standing social custom that serves functions recognized as valuable by society. We stay in others’ homes when we travel to a strange city for business or pleasure, we visit our parents, children, or more distant relatives out of town, when we are in between jobs, or homes, or when we house-sit for a friend… .

“From the overnight guest’s perspective, he seeks shelter in another’s home precisely because it provides him with privacy, a place where he and his possessions will not be disturbed by anyone but his host and those his host allows inside. We are at our most vulnerable when we are asleep because we cannot monitor our own safety or the security of our belongings. It is for this reason that, although we may spend all day in public places, when we cannot sleep in our own home we seek out another private place to sleep, whether it be a hotel room, or the home of a friend.” Id., at 98–99.

In Jones v. United States , 362 U. S. 257, 259 (1960) , the defendant seeking to exclude evidence resulting from a search of an apartment had been given the use of the apartment by a friend. He had clothing in the apartment, had slept there “ ‘maybe a night,’ ” and at the time was the sole occupant of the apartment. But while the holding of Jones —that a search of the apartment violated the defendant’s Fourth Amendment rights—is still valid, its statement that “anyone legitimately on the premises where a search occurs may challenge its legality,” id., at 267, was expressly repudiated in Rakas v. Illinois , 439 U. S. 128 (1978) . Thus an overnight guest in a home may claim the protection of the Fourth Amendment, but one who is merely present with the consent of the householder may not.

Respondents here were obviously not overnight guests, but were essentially present for a business transaction and were only in the home a matter of hours. There is no suggestion that they had a previous relationship with Thompson, or that there was any other purpose to their visit. Nor was there anything similar to the overnight guest relationship in Olson to suggest a degree of acceptance into the household. 1 While the apartment was a dwelling place for Thompson, it was for these respondents simply a place to do business.

Property used for commercial purposes is treated differently for Fourth Amendment purposes than residential property. “An expectation of privacy in commercial premises, however, is different from, and indeed less than, a similar expectation in an individual’s home.” New York v. Burger , 482 U. S. 691, 700 (1987) . And while it was a “home” in which respondents were present, it was not their home. Similarly, the Court has held that in some circumstances a worker can claim Fourth Amendment protection over his own workplace. See, e.g. , O’Connor v. Ortega , 480 U. S. 709 (1987) . But there is no indication that respondents in this case had nearly as significant a connection to Thompson’s apartment as the worker in O’Connor had to his own private office. See id. , at 716-17.

If we regard the overnight guest in Minnesota v. Olson as typifying those who may claim the protection of the Fourth Amendment in the home of another, and one merely “legitimately on the premises” as typifying those who may not do so, the present case is obviously somewhere in between. But the purely commercial nature of the transaction engaged in here, the relatively short period of time on the premises, and the lack of any previous connection between respondents and the householder, all lead us to conclude that respondents’ situation is closer to that of one simply permitted on the premises. We therefore hold that any search which may have occurred did not violate their Fourth Amendment rights.

Because we conclude that respondents had no legitimate expectation of privacy in the apartment, we need not decide whether the police officer’s observation constituted a “search.” The judgment of the Supreme Court of Minnesota is accordingly reversed, and the cause is remanded for proceedings not inconsistent with this opinion.

It is so ordered.


Notes

1 Justice Ginsburg’s dissent would render the operative language in Minnesota v. Olson, post p. 5, almost entirely superfluous. There, we explained the justification for extending Fourth Amendment protection to the overnight visitor: “Staying overnight in another’s home is a long-standing social custom that serves functions recognized as valuable by society. … We are at our most vulnerable when we are asleep because we cannot monitor our own safety or the security of our belongings.” 495 U. S., at 98-99. If any short-term business visit by a stranger entitles the visitor to share the Fourth Amendment protection of the lease holder’s home, the Court’s explanation of its holding in Olson was quite unnecessary.


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Dissent

MINNESOTA, PETITIONER v. WAYNE
THOMAS CARTER

MINNESOTA v . MELVIN JOHNS

on writ of certiorari to the supreme court of minnesota


[December 1, 1998]

Justice Ginsburg , with whom Justice Stevens and Justice Souter join, dissenting.

The Court’s decision undermines not only the security of short-term guests, but also the security of the home resident herself. In my view, when a homeowner or lessor personally invites a guest into her home to share in a common endeavor, whether it be for conversation, to engage in leisure activities, or for business purposes licit or illicit, that guest should share his host’s shelter against unreasonable searches and seizures.

I do not here propose restoration of the “legitimately on the premises” criterion stated in Jones v. United States, 362 U. S. 257, 267 (1960) , for the Court rejected that formulation in Rakas v. Illinois, 439 U. S. 128, 142 (1978) , as it did the “automatic standing rule” in United States v. Salvucci, 448 U. S. 83, 95 (1980) . First, the disposition I would reach in this case responds to the unique importance of the home—the most essential bastion of privacy recognized by the law. <font scaps="1"> See United States v. Karo, 468 U. S. 705, 714 (1984) (“[P]rivate residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant … . Our cases have not deviated from this basic Fourth Amendment principle.”); Payton v. New York, 445 U. S. 573, 589 (1980) (“The Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home.”). Second, even within the home itself, the position to which I would adhere would not permit “a casual visitor who has never seen, or been permitted to visit, the basement of another’s house to object to a search of the basement if the visitor happened to be in the kitchen of the house at the time of the search.” Rakas, 439 U. S., at 142. Further, I would here decide only the case of the homeowner who chooses to share the privacy of her home and her company with a guest, and would not reach classroom hypotheticals like the milkman or pizza deliverer.

My concern centers on an individual’s choice to share her home and her associations there with persons she selects. Our decisions indicate that people have a reasonable expectation of privacy in their homes in part because they have the prerogative to exclude others. See id., at 149 (legitimate expectation of privacy turns in large part on ability to exclude others from place searched). The power to exclude implies the power to include. See, e.g., Coombs, Shared Privacy and the Fourth Amendment, or the Rights of Relationships, 75 Calif. L. Rev. 1593, 1618 (1987) (“One reason we protect the legal right to exclude others is to empower the owner to choose to share his home or other property with his intimates.”); Alschuler, Interpersonal Privacy and the Fourth Amendment, 4 N. Ill. U. L. Rev. 1, 13 (1983) (“[O]ne of the main rights attaching to property is the right to share its shelter, its comfort and its privacy with others.”). Our Fourth Amendment decisions should reflect these complementary prerogatives.

A homedweller places her own privacy at risk, the Court’s approach indicates, when she opens her home to others, uncertain whether the duration of their stay, their purpose, and their “acceptance into the household” will earn protection. Ante , at 6. 1 It remains textbook law that “[s]earches and seizures inside a home without a warrant are presumptively unreasonable absent exigent circumstances.” Karo, 468 U. S., at 714–715. The law in practice is less secure. Human frailty suggests that today’s decision will tempt police to pry into private dwellings without warrant, to find evidence incriminating guests who do not rest there through the night. See Simien, The Interrelationship of the Scope of the Fourth Amendment and Standing to Object to Unreasonable Searches, 41 Ark. L. Rev. 487, 539 (1988) (“[I]f the police have no probable cause, they have everything to gain and nothing to lose if they search under circumstances where they know that at least one of the potential defendants will not have standing.”). Rakas tolerates that temptation with respect to automobile searches. See Ashdown, The Fourth Amendment and the “Legitimate Expectation of Privacy,” 34 Vand. L. Rev. 1289, 1321 (1981) (criticizing Rakas as “present[ing] a framework in which there may be nothing to lose and something to gain by the illegal search of a car that carries more than one occupant”); see also Rakas, 439 U. S., at 169 (White, J., dissenting) (“After this decision, police will have little to lose by unreasonably searching vehicles occupied by more than one person.”). I see no impelling reason to extend this risk into the home. See Silverman v. United States , 365 U. S. 505, 511 (1961) (“At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”). As I see it, people are not genuinely “secure in their … houses … against unreasonable searches and seizures,” U. S. Const., Amdt. 4, if their invitations to others increase the risk of unwarranted governmental peering and prying into their dwelling places.

Through the host’s invitation, the guest gains a reasonable expectation of privacy in the home. Minnesota v. Olson, 495 U. S. 91 (1990) , so held with respect to an overnight guest. The logic of that decision extends to shorter term guests as well. See 5 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment §11.3(b), p. 137 (3d ed. 1996) (“[I]t is fair to say that the Olson decision lends considerable support to the claim that shorter-term guests also have standing.”). Visiting the home of a friend, relative, or business associate, whatever the time of day, “serves functions recognized as valuable by society.” Olson, 495 U. S., at 98. One need not remain overnight to anticipate privacy in another’s home, “a place where [the guest] and his possessions will not be disturbed by anyone but his host and those his host allows inside.” Id., at 99. In sum, when a homeowner chooses to share the privacy of her home and her company with a short-term guest, the twofold requirement “emerg[ing] from prior decisions” has been satisfied: Both host and guest “have exhibited an actual (subjective) expectation of privacy”; that “expectation [is] one [our] society is prepared to recognize as ‘reasonable.’ ” Katz v. United States, 389 U. S. 347, 361 (1967) (Harlan, J., concurring). 2

As the Solicitor General acknowledged, the illegality of the host-guest conduct, the fact that they were partners in crime, would not alter the analysis. See Tr. of Oral Arg. 22–23. In Olson , for example, the guest whose security this Court’s decision shielded stayed overnight while the police searched for him. 495 U. S., at 93–94. The Court held that the guest had Fourth Amendment protection against a warrantless arrest in his host’s home despite the guest’s involvement in grave crimes (first-degree murder, armed robbery, and assault). Other decisions have similarly sustained Fourth Amendment pleas despite the criminality of the defendants’ activities. See , e.g., Payton , 445 U. S., at 583–603 (murder and armed robbery); Katz, 389 U. S., at 348–359 (telephoning across state lines to place illegal wagers); Silverman, 365 U. S., at 508–512 (gambling offenses). Indeed, it must be this way. If the illegality of the activity made constitutional an otherwise unconstitutional search, such Fourth Amendment protection, reserved for the innocent only, would have little force in regulating police behavior toward either the innocent or the guilty.

Our leading decision in Katz is key to my view of this case. There, we ruled that the Government violated the petitioner’s Fourth Amendment rights when it electronically recorded him transmitting wagering information while he was inside a public telephone booth. 389 U. S., at 353. We were mindful that “the Fourth Amendment protects people, not places,” id., at 351, and held that this electronic monitoring of a business call “violated the privacy upon which [the caller] justifiably relied while using the telephone booth,” id., at 353. Our obligation to produce coherent results in this often visited area of the law requires us to inform our current expositions by benchmarks already established. As Justice Harlan explained in his dissent in Poe v. Ullman, 367 U. S. 497, 544 (1961) :

“Each new claim to Constitutional protection must be considered against a background of Constitutional purposes, as they have been rationally perceived and historically developed . Though we exercise limited and sharply restrained judgment, yet there is no ‘mechanical yardstick,’ no ‘mechanical answer.’ The decision of an apparently novel claim must depend on grounds which follow closely on well-accepted principles and criteria. The new decision must take ‘its place in relation to what went before and further [cut] a channel for what is to come.’ ” Ibid . (quoting Irvine v. California, 347 U. S. 128, 147 (1954) (Frankfurter, J., dissenting)).

The Court’s decision in this case veers sharply from the path marked in Katz . I do not agree that we have a more reasonable expectation of privacy when we place a business call to a person’s home from a public telephone booth on the side of the street, see Katz, 389 U. S., at 353, than when we actually enter that person’s premises to engage in a common endeavor. 3

* <unicode value="8195"> * *

For the reasons stated, I dissent from the Court’s judgment, and would retain judicial surveillance over the warrantless searches today’s decision allows.


Notes

1 At oral argument, counsel for petitioner informed the Court that the lessee of the apartment was charged, tried, and convicted of the same crimes as respondents. Tr. of Oral Arg. 10–11.

2 In his concurring opinion, Justice Kennedy maintains that respondents here lacked “an expectation of privacy that society recognizes as reasonable,” ante, at 3–4, because they “established nothing more than a fleeting and insubstantial connection” with the host’s home, ante, at 4. As the Minnesota Supreme Court reported, however, the stipulated facts showed that respondents were inside the apartment with the host’s permission, remained inside for at least 2½ hours, and, during that time, engaged in concert with the host in a collaborative venture. See 569 N. W. 2d 169, 175–176 (1997). These stipulated facts—which scarcely resemble a stop of a minute or two at the 19th of 20 homes to drop off a packet, see ante, at 5—securely demonstrate that the host intended to share her privacy with respondents, and that respondents, therefore, had entered into the homeland of Fourth Amendment protection. While I agree with the Minnesota Supreme Court that, under the rule settled since Katz, the reasonableness of the expectation of privacy controls, not the visitor’s status as social guest, invitee, licensee, or business partner, 569 N. W. 2d, at 176, I think it noteworthy that five Members of the Court would place under the Fourth Amendment’s shield, at least, “almost all social guests,” ante, at 1 (Kennedy, J., concurring).

3 Justice Scalia’s lively concurring opinion deplores our adherence to Katz. In suggesting that we have elevated Justice Harlan’s concurring opinion in Katz to first place, see ante, at 7, Justice Scalia undervalues the clear opinion of the Court that “the Fourth Amendment protects people, not places,” 389 U. S., at 351. That core understanding is the leitmotif of Justice Harlan’s concurring opinion. One cannot avoid a strong sense of déjà vu on reading Justice Scalia’s elaboration. It so vividly recalls the opinion of Justice Black in dissent in Katz. See 389 U. S., at 365 (Black, J., dissenting) (“While I realize that an argument based on the meaning of words lacks the scope, and no doubt the appeal, of broad policy discussions and philosophical discourses . . . for me the language of the Amendment is the crucial place to look.”); id., at 373 (“[B]y arbitrarily substituting the Court’s language . . . for the Constitution’s language . . . the Court has made the Fourth Amendment its vehicle for holding all laws violative of the Constitution which offend the Court’s broadest concept of privacy.”); ibid. (“I will not distort the words of the Amendment in order to ‘keep the Constitution up to date’ or ‘to bring it into harmony with the times.’ ”). Justice Scalia relies on what he deems “clear text,” ante, at 7, to argue that the Fourth Amendment protects people from searches only in the places where they live, ante, at 6. Again, as Justice Stewart emphasized in the majority opinion in Katz, which stare decisis and reason require us to follow, “the Fourth Amendment protects people, not places.” 389 U. S., at 351.


TOP

Dissent

MINNESOTA, PETITIONER v. WAYNE
THOMAS CARTER

MINNESOTA v . MELVIN JOHNS

on writ of certiorari to the supreme court of minnesota


[December 1, 1998]

Justice Ginsburg , with whom Justice Stevens and Justice Souter join, dissenting.

The Court’s decision undermines not only the security of short-term guests, but also the security of the home resident herself. In my view, when a homeowner or lessor personally invites a guest into her home to share in a common endeavor, whether it be for conversation, to engage in leisure activities, or for business purposes licit or illicit, that guest should share his host’s shelter against unreasonable searches and seizures.

I do not here propose restoration of the “legitimately on the premises” criterion stated in Jones v. United States, 362 U. S. 257, 267 (1960) , for the Court rejected that formulation in Rakas v. Illinois, 439 U. S. 128, 142 (1978) , as it did the “automatic standing rule” in United States v. Salvucci, 448 U. S. 83, 95 (1980) . First, the disposition I would reach in this case responds to the unique importance of the home—the most essential bastion of privacy recognized by the law. <font scaps="1"> See United States v. Karo, 468 U. S. 705, 714 (1984) (“[P]rivate residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant … . Our cases have not deviated from this basic Fourth Amendment principle.”); Payton v. New York, 445 U. S. 573, 589 (1980) (“The Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home.”). Second, even within the home itself, the position to which I would adhere would not permit “a casual visitor who has never seen, or been permitted to visit, the basement of another’s house to object to a search of the basement if the visitor happened to be in the kitchen of the house at the time of the search.” Rakas, 439 U. S., at 142. Further, I would here decide only the case of the homeowner who chooses to share the privacy of her home and her company with a guest, and would not reach classroom hypotheticals like the milkman or pizza deliverer.

My concern centers on an individual’s choice to share her home and her associations there with persons she selects. Our decisions indicate that people have a reasonable expectation of privacy in their homes in part because they have the prerogative to exclude others. See id., at 149 (legitimate expectation of privacy turns in large part on ability to exclude others from place searched). The power to exclude implies the power to include. See, e.g., Coombs, Shared Privacy and the Fourth Amendment, or the Rights of Relationships, 75 Calif. L. Rev. 1593, 1618 (1987) (“One reason we protect the legal right to exclude others is to empower the owner to choose to share his home or other property with his intimates.”); Alschuler, Interpersonal Privacy and the Fourth Amendment, 4 N. Ill. U. L. Rev. 1, 13 (1983) (“[O]ne of the main rights attaching to property is the right to share its shelter, its comfort and its privacy with others.”). Our Fourth Amendment decisions should reflect these complementary prerogatives.

A homedweller places her own privacy at risk, the Court’s approach indicates, when she opens her home to others, uncertain whether the duration of their stay, their purpose, and their “acceptance into the household” will earn protection. Ante , at 6. 1 It remains textbook law that “[s]earches and seizures inside a home without a warrant are presumptively unreasonable absent exigent circumstances.” Karo, 468 U. S., at 714–715. The law in practice is less secure. Human frailty suggests that today’s decision will tempt police to pry into private dwellings without warrant, to find evidence incriminating guests who do not rest there through the night. See Simien, The Interrelationship of the Scope of the Fourth Amendment and Standing to Object to Unreasonable Searches, 41 Ark. L. Rev. 487, 539 (1988) (“[I]f the police have no probable cause, they have everything to gain and nothing to lose if they search under circumstances where they know that at least one of the potential defendants will not have standing.”). Rakas tolerates that temptation with respect to automobile searches. See Ashdown, The Fourth Amendment and the “Legitimate Expectation of Privacy,” 34 Vand. L. Rev. 1289, 1321 (1981) (criticizing Rakas as “present[ing] a framework in which there may be nothing to lose and something to gain by the illegal search of a car that carries more than one occupant”); see also Rakas, 439 U. S., at 169 (White, J., dissenting) (“After this decision, police will have little to lose by unreasonably searching vehicles occupied by more than one person.”). I see no impelling reason to extend this risk into the home. See Silverman v. United States , 365 U. S. 505, 511 (1961) (“At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”). As I see it, people are not genuinely “secure in their … houses … against unreasonable searches and seizures,” U. S. Const., Amdt. 4, if their invitations to others increase the risk of unwarranted governmental peering and prying into their dwelling places.

Through the host’s invitation, the guest gains a reasonable expectation of privacy in the home. Minnesota v. Olson, 495 U. S. 91 (1990) , so held with respect to an overnight guest. The logic of that decision extends to shorter term guests as well. See 5 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment §11.3(b), p. 137 (3d ed. 1996) (“[I]t is fair to say that the Olson decision lends considerable support to the claim that shorter-term guests also have standing.”). Visiting the home of a friend, relative, or business associate, whatever the time of day, “serves functions recognized as valuable by society.” Olson, 495 U. S., at 98. One need not remain overnight to anticipate privacy in another’s home, “a place where [the guest] and his possessions will not be disturbed by anyone but his host and those his host allows inside.” Id., at 99. In sum, when a homeowner chooses to share the privacy of her home and her company with a short-term guest, the twofold requirement “emerg[ing] from prior decisions” has been satisfied: Both host and guest “have exhibited an actual (subjective) expectation of privacy”; that “expectation [is] one [our] society is prepared to recognize as ‘reasonable.’ ” Katz v. United States, 389 U. S. 347, 361 (1967) (Harlan, J., concurring). 2

As the Solicitor General acknowledged, the illegality of the host-guest conduct, the fact that they were partners in crime, would not alter the analysis. See Tr. of Oral Arg. 22–23. In Olson , for example, the guest whose security this Court’s decision shielded stayed overnight while the police searched for him. 495 U. S., at 93–94. The Court held that the guest had Fourth Amendment protection against a warrantless arrest in his host’s home despite the guest’s involvement in grave crimes (first-degree murder, armed robbery, and assault). Other decisions have similarly sustained Fourth Amendment pleas despite the criminality of the defendants’ activities. See , e.g., Payton , 445 U. S., at 583–603 (murder and armed robbery); Katz, 389 U. S., at 348–359 (telephoning across state lines to place illegal wagers); Silverman, 365 U. S., at 508–512 (gambling offenses). Indeed, it must be this way. If the illegality of the activity made constitutional an otherwise unconstitutional search, such Fourth Amendment protection, reserved for the innocent only, would have little force in regulating police behavior toward either the innocent or the guilty.

Our leading decision in Katz is key to my view of this case. There, we ruled that the Government violated the petitioner’s Fourth Amendment rights when it electronically recorded him transmitting wagering information while he was inside a public telephone booth. 389 U. S., at 353. We were mindful that “the Fourth Amendment protects people, not places,” id., at 351, and held that this electronic monitoring of a business call “violated the privacy upon which [the caller] justifiably relied while using the telephone booth,” id., at 353. Our obligation to produce coherent results in this often visited area of the law requires us to inform our current expositions by benchmarks already established. As Justice Harlan explained in his dissent in Poe v. Ullman, 367 U. S. 497, 544 (1961) :

“Each new claim to Constitutional protection must be considered against a background of Constitutional purposes, as they have been rationally perceived and historically developed . Though we exercise limited and sharply restrained judgment, yet there is no ‘mechanical yardstick,’ no ‘mechanical answer.’ The decision of an apparently novel claim must depend on grounds which follow closely on well-accepted principles and criteria. The new decision must take ‘its place in relation to what went before and further [cut] a channel for what is to come.’ ” Ibid . (quoting Irvine v. California, 347 U. S. 128, 147 (1954) (Frankfurter, J., dissenting)).

The Court’s decision in this case veers sharply from the path marked in Katz . I do not agree that we have a more reasonable expectation of privacy when we place a business call to a person’s home from a public telephone booth on the side of the street, see Katz, 389 U. S., at 353, than when we actually enter that person’s premises to engage in a common endeavor. 3

* <unicode value="8195"> * *

For the reasons stated, I dissent from the Court’s judgment, and would retain judicial surveillance over the warrantless searches today’s decision allows.


Notes

1 At oral argument, counsel for petitioner informed the Court that the lessee of the apartment was charged, tried, and convicted of the same crimes as respondents. Tr. of Oral Arg. 10–11.

2 In his concurring opinion, Justice Kennedy maintains that respondents here lacked “an expectation of privacy that society recognizes as reasonable,” ante, at 3–4, because they “established nothing more than a fleeting and insubstantial connection” with the host’s home, ante, at 4. As the Minnesota Supreme Court reported, however, the stipulated facts showed that respondents were inside the apartment with the host’s permission, remained inside for at least 2½ hours, and, during that time, engaged in concert with the host in a collaborative venture. See 569 N. W. 2d 169, 175–176 (1997). These stipulated facts—which scarcely resemble a stop of a minute or two at the 19th of 20 homes to drop off a packet, see ante, at 5—securely demonstrate that the host intended to share her privacy with respondents, and that respondents, therefore, had entered into the homeland of Fourth Amendment protection. While I agree with the Minnesota Supreme Court that, under the rule settled since Katz, the reasonableness of the expectation of privacy controls, not the visitor’s status as social guest, invitee, licensee, or business partner, 569 N. W. 2d, at 176, I think it noteworthy that five Members of the Court would place under the Fourth Amendment’s shield, at least, “almost all social guests,” ante, at 1 (Kennedy, J., concurring).

3 Justice Scalia’s lively concurring opinion deplores our adherence to Katz. In suggesting that we have elevated Justice Harlan’s concurring opinion in Katz to first place, see ante, at 7, Justice Scalia undervalues the clear opinion of the Court that “the Fourth Amendment protects people, not places,” 389 U. S., at 351. That core understanding is the leitmotif of Justice Harlan’s concurring opinion. One cannot avoid a strong sense of déjà vu on reading Justice Scalia’s elaboration. It so vividly recalls the opinion of Justice Black in dissent in Katz. See 389 U. S., at 365 (Black, J., dissenting) (“While I realize that an argument based on the meaning of words lacks the scope, and no doubt the appeal, of broad policy discussions and philosophical discourses . . . for me the language of the Amendment is the crucial place to look.”); id., at 373 (“[B]y arbitrarily substituting the Court’s language . . . for the Constitution’s language . . . the Court has made the Fourth Amendment its vehicle for holding all laws violative of the Constitution which offend the Court’s broadest concept of privacy.”); ibid. (“I will not distort the words of the Amendment in order to ‘keep the Constitution up to date’ or ‘to bring it into harmony with the times.’ ”). Justice Scalia relies on what he deems “clear text,” ante, at 7, to argue that the Fourth Amendment protects people from searches only in the places where they live, ante, at 6. Again, as Justice Stewart emphasized in the majority opinion in Katz, which stare decisis and reason require us to follow, “the Fourth Amendment protects people, not places.” 389 U. S., at 351.


TOP

Dissent

MINNESOTA, PETITIONER v. WAYNE
THOMAS CARTER

MINNESOTA v . MELVIN JOHNS

on writ of certiorari to the supreme court of minnesota


[December 1, 1998]

Justice Ginsburg , with whom Justice Stevens and Justice Souter join, dissenting.

The Court’s decision undermines not only the security of short-term guests, but also the security of the home resident herself. In my view, when a homeowner or lessor personally invites a guest into her home to share in a common endeavor, whether it be for conversation, to engage in leisure activities, or for business purposes licit or illicit, that guest should share his host’s shelter against unreasonable searches and seizures.

I do not here propose restoration of the “legitimately on the premises” criterion stated in Jones v. United States, 362 U. S. 257, 267 (1960) , for the Court rejected that formulation in Rakas v. Illinois, 439 U. S. 128, 142 (1978) , as it did the “automatic standing rule” in United States v. Salvucci, 448 U. S. 83, 95 (1980) . First, the disposition I would reach in this case responds to the unique importance of the home—the most essential bastion of privacy recognized by the law. <font scaps="1"> See United States v. Karo, 468 U. S. 705, 714 (1984) (“[P]rivate residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant … . Our cases have not deviated from this basic Fourth Amendment principle.”); Payton v. New York, 445 U. S. 573, 589 (1980) (“The Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home.”). Second, even within the home itself, the position to which I would adhere would not permit “a casual visitor who has never seen, or been permitted to visit, the basement of another’s house to object to a search of the basement if the visitor happened to be in the kitchen of the house at the time of the search.” Rakas, 439 U. S., at 142. Further, I would here decide only the case of the homeowner who chooses to share the privacy of her home and her company with a guest, and would not reach classroom hypotheticals like the milkman or pizza deliverer.

My concern centers on an individual’s choice to share her home and her associations there with persons she selects. Our decisions indicate that people have a reasonable expectation of privacy in their homes in part because they have the prerogative to exclude others. See id., at 149 (legitimate expectation of privacy turns in large part on ability to exclude others from place searched). The power to exclude implies the power to include. See, e.g., Coombs, Shared Privacy and the Fourth Amendment, or the Rights of Relationships, 75 Calif. L. Rev. 1593, 1618 (1987) (“One reason we protect the legal right to exclude others is to empower the owner to choose to share his home or other property with his intimates.”); Alschuler, Interpersonal Privacy and the Fourth Amendment, 4 N. Ill. U. L. Rev. 1, 13 (1983) (“[O]ne of the main rights attaching to property is the right to share its shelter, its comfort and its privacy with others.”). Our Fourth Amendment decisions should reflect these complementary prerogatives.

A homedweller places her own privacy at risk, the Court’s approach indicates, when she opens her home to others, uncertain whether the duration of their stay, their purpose, and their “acceptance into the household” will earn protection. Ante , at 6. 1 It remains textbook law that “[s]earches and seizures inside a home without a warrant are presumptively unreasonable absent exigent circumstances.” Karo, 468 U. S., at 714–715. The law in practice is less secure. Human frailty suggests that today’s decision will tempt police to pry into private dwellings without warrant, to find evidence incriminating guests who do not rest there through the night. See Simien, The Interrelationship of the Scope of the Fourth Amendment and Standing to Object to Unreasonable Searches, 41 Ark. L. Rev. 487, 539 (1988) (“[I]f the police have no probable cause, they have everything to gain and nothing to lose if they search under circumstances where they know that at least one of the potential defendants will not have standing.”). Rakas tolerates that temptation with respect to automobile searches. See Ashdown, The Fourth Amendment and the “Legitimate Expectation of Privacy,” 34 Vand. L. Rev. 1289, 1321 (1981) (criticizing Rakas as “present[ing] a framework in which there may be nothing to lose and something to gain by the illegal search of a car that carries more than one occupant”); see also Rakas, 439 U. S., at 169 (White, J., dissenting) (“After this decision, police will have little to lose by unreasonably searching vehicles occupied by more than one person.”). I see no impelling reason to extend this risk into the home. See Silverman v. United States , 365 U. S. 505, 511 (1961) (“At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”). As I see it, people are not genuinely “secure in their … houses … against unreasonable searches and seizures,” U. S. Const., Amdt. 4, if their invitations to others increase the risk of unwarranted governmental peering and prying into their dwelling places.

Through the host’s invitation, the guest gains a reasonable expectation of privacy in the home. Minnesota v. Olson, 495 U. S. 91 (1990) , so held with respect to an overnight guest. The logic of that decision extends to shorter term guests as well. See 5 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment §11.3(b), p. 137 (3d ed. 1996) (“[I]t is fair to say that the Olson decision lends considerable support to the claim that shorter-term guests also have standing.”). Visiting the home of a friend, relative, or business associate, whatever the time of day, “serves functions recognized as valuable by society.” Olson, 495 U. S., at 98. One need not remain overnight to anticipate privacy in another’s home, “a place where [the guest] and his possessions will not be disturbed by anyone but his host and those his host allows inside.” Id., at 99. In sum, when a homeowner chooses to share the privacy of her home and her company with a short-term guest, the twofold requirement “emerg[ing] from prior decisions” has been satisfied: Both host and guest “have exhibited an actual (subjective) expectation of privacy”; that “expectation [is] one [our] society is prepared to recognize as ‘reasonable.’ ” Katz v. United States, 389 U. S. 347, 361 (1967) (Harlan, J., concurring). 2

As the Solicitor General acknowledged, the illegality of the host-guest conduct, the fact that they were partners in crime, would not alter the analysis. See Tr. of Oral Arg. 22–23. In Olson , for example, the guest whose security this Court’s decision shielded stayed overnight while the police searched for him. 495 U. S., at 93–94. The Court held that the guest had Fourth Amendment protection against a warrantless arrest in his host’s home despite the guest’s involvement in grave crimes (first-degree murder, armed robbery, and assault). Other decisions have similarly sustained Fourth Amendment pleas despite the criminality of the defendants’ activities. See , e.g., Payton , 445 U. S., at 583–603 (murder and armed robbery); Katz, 389 U. S., at 348–359 (telephoning across state lines to place illegal wagers); Silverman, 365 U. S., at 508–512 (gambling offenses). Indeed, it must be this way. If the illegality of the activity made constitutional an otherwise unconstitutional search, such Fourth Amendment protection, reserved for the innocent only, would have little force in regulating police behavior toward either the innocent or the guilty.

Our leading decision in Katz is key to my view of this case. There, we ruled that the Government violated the petitioner’s Fourth Amendment rights when it electronically recorded him transmitting wagering information while he was inside a public telephone booth. 389 U. S., at 353. We were mindful that “the Fourth Amendment protects people, not places,” id., at 351, and held that this electronic monitoring of a business call “violated the privacy upon which [the caller] justifiably relied while using the telephone booth,” id., at 353. Our obligation to produce coherent results in this often visited area of the law requires us to inform our current expositions by benchmarks already established. As Justice Harlan explained in his dissent in Poe v. Ullman, 367 U. S. 497, 544 (1961) :

“Each new claim to Constitutional protection must be considered against a background of Constitutional purposes, as they have been rationally perceived and historically developed . Though we exercise limited and sharply restrained judgment, yet there is no ‘mechanical yardstick,’ no ‘mechanical answer.’ The decision of an apparently novel claim must depend on grounds which follow closely on well-accepted principles and criteria. The new decision must take ‘its place in relation to what went before and further [cut] a channel for what is to come.’ ” Ibid . (quoting Irvine v. California, 347 U. S. 128, 147 (1954) (Frankfurter, J., dissenting)).

The Court’s decision in this case veers sharply from the path marked in Katz . I do not agree that we have a more reasonable expectation of privacy when we place a business call to a person’s home from a public telephone booth on the side of the street, see Katz, 389 U. S., at 353, than when we actually enter that person’s premises to engage in a common endeavor. 3

* <unicode value="8195"> * *

For the reasons stated, I dissent from the Court’s judgment, and would retain judicial surveillance over the warrantless searches today’s decision allows.


Notes

1 At oral argument, counsel for petitioner informed the Court that the lessee of the apartment was charged, tried, and convicted of the same crimes as respondents. Tr. of Oral Arg. 10–11.

2 In his concurring opinion, Justice Kennedy maintains that respondents here lacked “an expectation of privacy that society recognizes as reasonable,” ante, at 3–4, because they “established nothing more than a fleeting and insubstantial connection” with the host’s home, ante, at 4. As the Minnesota Supreme Court reported, however, the stipulated facts showed that respondents were inside the apartment with the host’s permission, remained inside for at least 2½ hours, and, during that time, engaged in concert with the host in a collaborative venture. See 569 N. W. 2d 169, 175–176 (1997). These stipulated facts—which scarcely resemble a stop of a minute or two at the 19th of 20 homes to drop off a packet, see ante, at 5—securely demonstrate that the host intended to share her privacy with respondents, and that respondents, therefore, had entered into the homeland of Fourth Amendment protection. While I agree with the Minnesota Supreme Court that, under the rule settled since Katz, the reasonableness of the expectation of privacy controls, not the visitor’s status as social guest, invitee, licensee, or business partner, 569 N. W. 2d, at 176, I think it noteworthy that five Members of the Court would place under the Fourth Amendment’s shield, at least, “almost all social guests,” ante, at 1 (Kennedy, J., concurring).

3 Justice Scalia’s lively concurring opinion deplores our adherence to Katz. In suggesting that we have elevated Justice Harlan’s concurring opinion in Katz to first place, see ante, at 7, Justice Scalia undervalues the clear opinion of the Court that “the Fourth Amendment protects people, not places,” 389 U. S., at 351. That core understanding is the leitmotif of Justice Harlan’s concurring opinion. One cannot avoid a strong sense of déjà vu on reading Justice Scalia’s elaboration. It so vividly recalls the opinion of Justice Black in dissent in Katz. See 389 U. S., at 365 (Black, J., dissenting) (“While I realize that an argument based on the meaning of words lacks the scope, and no doubt the appeal, of broad policy discussions and philosophical discourses . . . for me the language of the Amendment is the crucial place to look.”); id., at 373 (“[B]y arbitrarily substituting the Court’s language . . . for the Constitution’s language . . . the Court has made the Fourth Amendment its vehicle for holding all laws violative of the Constitution which offend the Court’s broadest concept of privacy.”); ibid. (“I will not distort the words of the Amendment in order to ‘keep the Constitution up to date’ or ‘to bring it into harmony with the times.’ ”). Justice Scalia relies on what he deems “clear text,” ante, at 7, to argue that the Fourth Amendment protects people from searches only in the places where they live, ante, at 6. Again, as Justice Stewart emphasized in the majority opinion in Katz, which stare decisis and reason require us to follow, “the Fourth Amendment protects people, not places.” 389 U. S., at 351.


TOP

Dissent

MINNESOTA, PETITIONER v. WAYNE
THOMAS CARTER

MINNESOTA v . MELVIN JOHNS

on writ of certiorari to the supreme court of minnesota


[December 1, 1998]

Justice Ginsburg , with whom Justice Stevens and Justice Souter join, dissenting.

The Court’s decision undermines not only the security of short-term guests, but also the security of the home resident herself. In my view, when a homeowner or lessor personally invites a guest into her home to share in a common endeavor, whether it be for conversation, to engage in leisure activities, or for business purposes licit or illicit, that guest should share his host’s shelter against unreasonable searches and seizures.

I do not here propose restoration of the “legitimately on the premises” criterion stated in Jones v. United States, 362 U. S. 257, 267 (1960) , for the Court rejected that formulation in Rakas v. Illinois, 439 U. S. 128, 142 (1978) , as it did the “automatic standing rule” in United States v. Salvucci, 448 U. S. 83, 95 (1980) . First, the disposition I would reach in this case responds to the unique importance of the home—the most essential bastion of privacy recognized by the law. <font scaps="1"> See United States v. Karo, 468 U. S. 705, 714 (1984) (“[P]rivate residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant … . Our cases have not deviated from this basic Fourth Amendment principle.”); Payton v. New York, 445 U. S. 573, 589 (1980) (“The Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home.”). Second, even within the home itself, the position to which I would adhere would not permit “a casual visitor who has never seen, or been permitted to visit, the basement of another’s house to object to a search of the basement if the visitor happened to be in the kitchen of the house at the time of the search.” Rakas, 439 U. S., at 142. Further, I would here decide only the case of the homeowner who chooses to share the privacy of her home and her company with a guest, and would not reach classroom hypotheticals like the milkman or pizza deliverer.

My concern centers on an individual’s choice to share her home and her associations there with persons she selects. Our decisions indicate that people have a reasonable expectation of privacy in their homes in part because they have the prerogative to exclude others. See id., at 149 (legitimate expectation of privacy turns in large part on ability to exclude others from place searched). The power to exclude implies the power to include. See, e.g., Coombs, Shared Privacy and the Fourth Amendment, or the Rights of Relationships, 75 Calif. L. Rev. 1593, 1618 (1987) (“One reason we protect the legal right to exclude others is to empower the owner to choose to share his home or other property with his intimates.”); Alschuler, Interpersonal Privacy and the Fourth Amendment, 4 N. Ill. U. L. Rev. 1, 13 (1983) (“[O]ne of the main rights attaching to property is the right to share its shelter, its comfort and its privacy with others.”). Our Fourth Amendment decisions should reflect these complementary prerogatives.

A homedweller places her own privacy at risk, the Court’s approach indicates, when she opens her home to others, uncertain whether the duration of their stay, their purpose, and their “acceptance into the household” will earn protection. Ante , at 6. 1 It remains textbook law that “[s]earches and seizures inside a home without a warrant are presumptively unreasonable absent exigent circumstances.” Karo, 468 U. S., at 714–715. The law in practice is less secure. Human frailty suggests that today’s decision will tempt police to pry into private dwellings without warrant, to find evidence incriminating guests who do not rest there through the night. See Simien, The Interrelationship of the Scope of the Fourth Amendment and Standing to Object to Unreasonable Searches, 41 Ark. L. Rev. 487, 539 (1988) (“[I]f the police have no probable cause, they have everything to gain and nothing to lose if they search under circumstances where they know that at least one of the potential defendants will not have standing.”). Rakas tolerates that temptation with respect to automobile searches. See Ashdown, The Fourth Amendment and the “Legitimate Expectation of Privacy,” 34 Vand. L. Rev. 1289, 1321 (1981) (criticizing Rakas as “present[ing] a framework in which there may be nothing to lose and something to gain by the illegal search of a car that carries more than one occupant”); see also Rakas, 439 U. S., at 169 (White, J., dissenting) (“After this decision, police will have little to lose by unreasonably searching vehicles occupied by more than one person.”). I see no impelling reason to extend this risk into the home. See Silverman v. United States , 365 U. S. 505, 511 (1961) (“At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”). As I see it, people are not genuinely “secure in their … houses … against unreasonable searches and seizures,” U. S. Const., Amdt. 4, if their invitations to others increase the risk of unwarranted governmental peering and prying into their dwelling places.

Through the host’s invitation, the guest gains a reasonable expectation of privacy in the home. Minnesota v. Olson, 495 U. S. 91 (1990) , so held with respect to an overnight guest. The logic of that decision extends to shorter term guests as well. See 5 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment §11.3(b), p. 137 (3d ed. 1996) (“[I]t is fair to say that the Olson decision lends considerable support to the claim that shorter-term guests also have standing.”). Visiting the home of a friend, relative, or business associate, whatever the time of day, “serves functions recognized as valuable by society.” Olson, 495 U. S., at 98. One need not remain overnight to anticipate privacy in another’s home, “a place where [the guest] and his possessions will not be disturbed by anyone but his host and those his host allows inside.” Id., at 99. In sum, when a homeowner chooses to share the privacy of her home and her company with a short-term guest, the twofold requirement “emerg[ing] from prior decisions” has been satisfied: Both host and guest “have exhibited an actual (subjective) expectation of privacy”; that “expectation [is] one [our] society is prepared to recognize as ‘reasonable.’ ” Katz v. United States, 389 U. S. 347, 361 (1967) (Harlan, J., concurring). 2

As the Solicitor General acknowledged, the illegality of the host-guest conduct, the fact that they were partners in crime, would not alter the analysis. See Tr. of Oral Arg. 22–23. In Olson , for example, the guest whose security this Court’s decision shielded stayed overnight while the police searched for him. 495 U. S., at 93–94. The Court held that the guest had Fourth Amendment protection against a warrantless arrest in his host’s home despite the guest’s involvement in grave crimes (first-degree murder, armed robbery, and assault). Other decisions have similarly sustained Fourth Amendment pleas despite the criminality of the defendants’ activities. See , e.g., Payton , 445 U. S., at 583–603 (murder and armed robbery); Katz, 389 U. S., at 348–359 (telephoning across state lines to place illegal wagers); Silverman, 365 U. S., at 508–512 (gambling offenses). Indeed, it must be this way. If the illegality of the activity made constitutional an otherwise unconstitutional search, such Fourth Amendment protection, reserved for the innocent only, would have little force in regulating police behavior toward either the innocent or the guilty.

Our leading decision in Katz is key to my view of this case. There, we ruled that the Government violated the petitioner’s Fourth Amendment rights when it electronically recorded him transmitting wagering information while he was inside a public telephone booth. 389 U. S., at 353. We were mindful that “the Fourth Amendment protects people, not places,” id., at 351, and held that this electronic monitoring of a business call “violated the privacy upon which [the caller] justifiably relied while using the telephone booth,” id., at 353. Our obligation to produce coherent results in this often visited area of the law requires us to inform our current expositions by benchmarks already established. As Justice Harlan explained in his dissent in Poe v. Ullman, 367 U. S. 497, 544 (1961) :

“Each new claim to Constitutional protection must be considered against a background of Constitutional purposes, as they have been rationally perceived and historically developed . Though we exercise limited and sharply restrained judgment, yet there is no ‘mechanical yardstick,’ no ‘mechanical answer.’ The decision of an apparently novel claim must depend on grounds which follow closely on well-accepted principles and criteria. The new decision must take ‘its place in relation to what went before and further [cut] a channel for what is to come.’ ” Ibid . (quoting Irvine v. California, 347 U. S. 128, 147 (1954) (Frankfurter, J., dissenting)).

The Court’s decision in this case veers sharply from the path marked in Katz . I do not agree that we have a more reasonable expectation of privacy when we place a business call to a person’s home from a public telephone booth on the side of the street, see Katz, 389 U. S., at 353, than when we actually enter that person’s premises to engage in a common endeavor. 3

* <unicode value="8195"> * *

For the reasons stated, I dissent from the Court’s judgment, and would retain judicial surveillance over the warrantless searches today’s decision allows.


Notes

1 At oral argument, counsel for petitioner informed the Court that the lessee of the apartment was charged, tried, and convicted of the same crimes as respondents. Tr. of Oral Arg. 10–11.

2 In his concurring opinion, Justice Kennedy maintains that respondents here lacked “an expectation of privacy that society recognizes as reasonable,” ante, at 3–4, because they “established nothing more than a fleeting and insubstantial connection” with the host’s home, ante, at 4. As the Minnesota Supreme Court reported, however, the stipulated facts showed that respondents were inside the apartment with the host’s permission, remained inside for at least 2½ hours, and, during that time, engaged in concert with the host in a collaborative venture. See 569 N. W. 2d 169, 175–176 (1997). These stipulated facts—which scarcely resemble a stop of a minute or two at the 19th of 20 homes to drop off a packet, see ante, at 5—securely demonstrate that the host intended to share her privacy with respondents, and that respondents, therefore, had entered into the homeland of Fourth Amendment protection. While I agree with the Minnesota Supreme Court that, under the rule settled since Katz, the reasonableness of the expectation of privacy controls, not the visitor’s status as social guest, invitee, licensee, or business partner, 569 N. W. 2d, at 176, I think it noteworthy that five Members of the Court would place under the Fourth Amendment’s shield, at least, “almost all social guests,” ante, at 1 (Kennedy, J., concurring).

3 Justice Scalia’s lively concurring opinion deplores our adherence to Katz. In suggesting that we have elevated Justice Harlan’s concurring opinion in Katz to first place, see ante, at 7, Justice Scalia undervalues the clear opinion of the Court that “the Fourth Amendment protects people, not places,” 389 U. S., at 351. That core understanding is the leitmotif of Justice Harlan’s concurring opinion. One cannot avoid a strong sense of déjà vu on reading Justice Scalia’s elaboration. It so vividly recalls the opinion of Justice Black in dissent in Katz. See 389 U. S., at 365 (Black, J., dissenting) (“While I realize that an argument based on the meaning of words lacks the scope, and no doubt the appeal, of broad policy discussions and philosophical discourses . . . for me the language of the Amendment is the crucial place to look.”); id., at 373 (“[B]y arbitrarily substituting the Court’s language . . . for the Constitution’s language . . . the Court has made the Fourth Amendment its vehicle for holding all laws violative of the Constitution which offend the Court’s broadest concept of privacy.”); ibid. (“I will not distort the words of the Amendment in order to ‘keep the Constitution up to date’ or ‘to bring it into harmony with the times.’ ”). Justice Scalia relies on what he deems “clear text,” ante, at 7, to argue that the Fourth Amendment protects people from searches only in the places where they live, ante, at 6. Again, as Justice Stewart emphasized in the majority opinion in Katz, which stare decisis and reason require us to follow, “the Fourth Amendment protects people, not places.” 389 U. S., at 351.


TOP

Dissent

MINNESOTA, PETITIONER v. WAYNE
THOMAS CARTER

MINNESOTA v . MELVIN JOHNS

on writ of certiorari to the supreme court of minnesota


[December 1, 1998]

Justice Ginsburg , with whom Justice Stevens and Justice Souter join, dissenting.

The Court’s decision undermines not only the security of short-term guests, but also the security of the home resident herself. In my view, when a homeowner or lessor personally invites a guest into her home to share in a common endeavor, whether it be for conversation, to engage in leisure activities, or for business purposes licit or illicit, that guest should share his host’s shelter against unreasonable searches and seizures.

I do not here propose restoration of the “legitimately on the premises” criterion stated in Jones v. United States, 362 U. S. 257, 267 (1960) , for the Court rejected that formulation in Rakas v. Illinois, 439 U. S. 128, 142 (1978) , as it did the “automatic standing rule” in United States v. Salvucci, 448 U. S. 83, 95 (1980) . First, the disposition I would reach in this case responds to the unique importance of the home—the most essential bastion of privacy recognized by the law. <font scaps="1"> See United States v. Karo, 468 U. S. 705, 714 (1984) (“[P]rivate residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant … . Our cases have not deviated from this basic Fourth Amendment principle.”); Payton v. New York, 445 U. S. 573, 589 (1980) (“The Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home.”). Second, even within the home itself, the position to which I would adhere would not permit “a casual visitor who has never seen, or been permitted to visit, the basement of another’s house to object to a search of the basement if the visitor happened to be in the kitchen of the house at the time of the search.” Rakas, 439 U. S., at 142. Further, I would here decide only the case of the homeowner who chooses to share the privacy of her home and her company with a guest, and would not reach classroom hypotheticals like the milkman or pizza deliverer.

My concern centers on an individual’s choice to share her home and her associations there with persons she selects. Our decisions indicate that people have a reasonable expectation of privacy in their homes in part because they have the prerogative to exclude others. See id., at 149 (legitimate expectation of privacy turns in large part on ability to exclude others from place searched). The power to exclude implies the power to include. See, e.g., Coombs, Shared Privacy and the Fourth Amendment, or the Rights of Relationships, 75 Calif. L. Rev. 1593, 1618 (1987) (“One reason we protect the legal right to exclude others is to empower the owner to choose to share his home or other property with his intimates.”); Alschuler, Interpersonal Privacy and the Fourth Amendment, 4 N. Ill. U. L. Rev. 1, 13 (1983) (“[O]ne of the main rights attaching to property is the right to share its shelter, its comfort and its privacy with others.”). Our Fourth Amendment decisions should reflect these complementary prerogatives.

A homedweller places her own privacy at risk, the Court’s approach indicates, when she opens her home to others, uncertain whether the duration of their stay, their purpose, and their “acceptance into the household” will earn protection. Ante , at 6. 1 It remains textbook law that “[s]earches and seizures inside a home without a warrant are presumptively unreasonable absent exigent circumstances.” Karo, 468 U. S., at 714–715. The law in practice is less secure. Human frailty suggests that today’s decision will tempt police to pry into private dwellings without warrant, to find evidence incriminating guests who do not rest there through the night. See Simien, The Interrelationship of the Scope of the Fourth Amendment and Standing to Object to Unreasonable Searches, 41 Ark. L. Rev. 487, 539 (1988) (“[I]f the police have no probable cause, they have everything to gain and nothing to lose if they search under circumstances where they know that at least one of the potential defendants will not have standing.”). Rakas tolerates that temptation with respect to automobile searches. See Ashdown, The Fourth Amendment and the “Legitimate Expectation of Privacy,” 34 Vand. L. Rev. 1289, 1321 (1981) (criticizing Rakas as “present[ing] a framework in which there may be nothing to lose and something to gain by the illegal search of a car that carries more than one occupant”); see also Rakas, 439 U. S., at 169 (White, J., dissenting) (“After this decision, police will have little to lose by unreasonably searching vehicles occupied by more than one person.”). I see no impelling reason to extend this risk into the home. See Silverman v. United States , 365 U. S. 505, 511 (1961) (“At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”). As I see it, people are not genuinely “secure in their … houses … against unreasonable searches and seizures,” U. S. Const., Amdt. 4, if their invitations to others increase the risk of unwarranted governmental peering and prying into their dwelling places.

Through the host’s invitation, the guest gains a reasonable expectation of privacy in the home. Minnesota v. Olson, 495 U. S. 91 (1990) , so held with respect to an overnight guest. The logic of that decision extends to shorter term guests as well. See 5 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment §11.3(b), p. 137 (3d ed. 1996) (“[I]t is fair to say that the Olson decision lends considerable support to the claim that shorter-term guests also have standing.”). Visiting the home of a friend, relative, or business associate, whatever the time of day, “serves functions recognized as valuable by society.” Olson, 495 U. S., at 98. One need not remain overnight to anticipate privacy in another’s home, “a place where [the guest] and his possessions will not be disturbed by anyone but his host and those his host allows inside.” Id., at 99. In sum, when a homeowner chooses to share the privacy of her home and her company with a short-term guest, the twofold requirement “emerg[ing] from prior decisions” has been satisfied: Both host and guest “have exhibited an actual (subjective) expectation of privacy”; that “expectation [is] one [our] society is prepared to recognize as ‘reasonable.’ ” Katz v. United States, 389 U. S. 347, 361 (1967) (Harlan, J., concurring). 2

As the Solicitor General acknowledged, the illegality of the host-guest conduct, the fact that they were partners in crime, would not alter the analysis. See Tr. of Oral Arg. 22–23. In Olson , for example, the guest whose security this Court’s decision shielded stayed overnight while the police searched for him. 495 U. S., at 93–94. The Court held that the guest had Fourth Amendment protection against a warrantless arrest in his host’s home despite the guest’s involvement in grave crimes (first-degree murder, armed robbery, and assault). Other decisions have similarly sustained Fourth Amendment pleas despite the criminality of the defendants’ activities. See , e.g., Payton , 445 U. S., at 583–603 (murder and armed robbery); Katz, 389 U. S., at 348–359 (telephoning across state lines to place illegal wagers); Silverman, 365 U. S., at 508–512 (gambling offenses). Indeed, it must be this way. If the illegality of the activity made constitutional an otherwise unconstitutional search, such Fourth Amendment protection, reserved for the innocent only, would have little force in regulating police behavior toward either the innocent or the guilty.

Our leading decision in Katz is key to my view of this case. There, we ruled that the Government violated the petitioner’s Fourth Amendment rights when it electronically recorded him transmitting wagering information while he was inside a public telephone booth. 389 U. S., at 353. We were mindful that “the Fourth Amendment protects people, not places,” id., at 351, and held that this electronic monitoring of a business call “violated the privacy upon which [the caller] justifiably relied while using the telephone booth,” id., at 353. Our obligation to produce coherent results in this often visited area of the law requires us to inform our current expositions by benchmarks already established. As Justice Harlan explained in his dissent in Poe v. Ullman, 367 U. S. 497, 544 (1961) :

“Each new claim to Constitutional protection must be considered against a background of Constitutional purposes, as they have been rationally perceived and historically developed . Though we exercise limited and sharply restrained judgment, yet there is no ‘mechanical yardstick,’ no ‘mechanical answer.’ The decision of an apparently novel claim must depend on grounds which follow closely on well-accepted principles and criteria. The new decision must take ‘its place in relation to what went before and further [cut] a channel for what is to come.’ ” Ibid . (quoting Irvine v. California, 347 U. S. 128, 147 (1954) (Frankfurter, J., dissenting)).

The Court’s decision in this case veers sharply from the path marked in Katz . I do not agree that we have a more reasonable expectation of privacy when we place a business call to a person’s home from a public telephone booth on the side of the street, see Katz, 389 U. S., at 353, than when we actually enter that person’s premises to engage in a common endeavor. 3

* <unicode value="8195"> * *

For the reasons stated, I dissent from the Court’s judgment, and would retain judicial surveillance over the warrantless searches today’s decision allows.


Notes

1 At oral argument, counsel for petitioner informed the Court that the lessee of the apartment was charged, tried, and convicted of the same crimes as respondents. Tr. of Oral Arg. 10–11.

2 In his concurring opinion, Justice Kennedy maintains that respondents here lacked “an expectation of privacy that society recognizes as reasonable,” ante, at 3–4, because they “established nothing more than a fleeting and insubstantial connection” with the host’s home, ante, at 4. As the Minnesota Supreme Court reported, however, the stipulated facts showed that respondents were inside the apartment with the host’s permission, remained inside for at least 2½ hours, and, during that time, engaged in concert with the host in a collaborative venture. See 569 N. W. 2d 169, 175–176 (1997). These stipulated facts—which scarcely resemble a stop of a minute or two at the 19th of 20 homes to drop off a packet, see ante, at 5—securely demonstrate that the host intended to share her privacy with respondents, and that respondents, therefore, had entered into the homeland of Fourth Amendment protection. While I agree with the Minnesota Supreme Court that, under the rule settled since Katz, the reasonableness of the expectation of privacy controls, not the visitor’s status as social guest, invitee, licensee, or business partner, 569 N. W. 2d, at 176, I think it noteworthy that five Members of the Court would place under the Fourth Amendment’s shield, at least, “almost all social guests,” ante, at 1 (Kennedy, J., concurring).

3 Justice Scalia’s lively concurring opinion deplores our adherence to Katz. In suggesting that we have elevated Justice Harlan’s concurring opinion in Katz to first place, see ante, at 7, Justice Scalia undervalues the clear opinion of the Court that “the Fourth Amendment protects people, not places,” 389 U. S., at 351. That core understanding is the leitmotif of Justice Harlan’s concurring opinion. One cannot avoid a strong sense of déjà vu on reading Justice Scalia’s elaboration. It so vividly recalls the opinion of Justice Black in dissent in Katz. See 389 U. S., at 365 (Black, J., dissenting) (“While I realize that an argument based on the meaning of words lacks the scope, and no doubt the appeal, of broad policy discussions and philosophical discourses . . . for me the language of the Amendment is the crucial place to look.”); id., at 373 (“[B]y arbitrarily substituting the Court’s language . . . for the Constitution’s language . . . the Court has made the Fourth Amendment its vehicle for holding all laws violative of the Constitution which offend the Court’s broadest concept of privacy.”); ibid. (“I will not distort the words of the Amendment in order to ‘keep the Constitution up to date’ or ‘to bring it into harmony with the times.’ ”). Justice Scalia relies on what he deems “clear text,” ante, at 7, to argue that the Fourth Amendment protects people from searches only in the places where they live, ante, at 6. Again, as Justice Stewart emphasized in the majority opinion in Katz, which stare decisis and reason require us to follow, “the Fourth Amendment protects people, not places.” 389 U. S., at 351.


TOP

Dissent

MINNESOTA, PETITIONER v. WAYNE
THOMAS CARTER

MINNESOTA v . MELVIN JOHNS

on writ of certiorari to the supreme court of minnesota


[December 1, 1998]

Justice Ginsburg , with whom Justice Stevens and Justice Souter join, dissenting.

The Court’s decision undermines not only the security of short-term guests, but also the security of the home resident herself. In my view, when a homeowner or lessor personally invites a guest into her home to share in a common endeavor, whether it be for conversation, to engage in leisure activities, or for business purposes licit or illicit, that guest should share his host’s shelter against unreasonable searches and seizures.

I do not here propose restoration of the “legitimately on the premises” criterion stated in Jones v. United States, 362 U. S. 257, 267 (1960) , for the Court rejected that formulation in Rakas v. Illinois, 439 U. S. 128, 142 (1978) , as it did the “automatic standing rule” in United States v. Salvucci, 448 U. S. 83, 95 (1980) . First, the disposition I would reach in this case responds to the unique importance of the home—the most essential bastion of privacy recognized by the law. <font scaps="1"> See United States v. Karo, 468 U. S. 705, 714 (1984) (“[P]rivate residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant … . Our cases have not deviated from this basic Fourth Amendment principle.”); Payton v. New York, 445 U. S. 573, 589 (1980) (“The Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home.”). Second, even within the home itself, the position to which I would adhere would not permit “a casual visitor who has never seen, or been permitted to visit, the basement of another’s house to object to a search of the basement if the visitor happened to be in the kitchen of the house at the time of the search.” Rakas, 439 U. S., at 142. Further, I would here decide only the case of the homeowner who chooses to share the privacy of her home and her company with a guest, and would not reach classroom hypotheticals like the milkman or pizza deliverer.

My concern centers on an individual’s choice to share her home and her associations there with persons she selects. Our decisions indicate that people have a reasonable expectation of privacy in their homes in part because they have the prerogative to exclude others. See id., at 149 (legitimate expectation of privacy turns in large part on ability to exclude others from place searched). The power to exclude implies the power to include. See, e.g., Coombs, Shared Privacy and the Fourth Amendment, or the Rights of Relationships, 75 Calif. L. Rev. 1593, 1618 (1987) (“One reason we protect the legal right to exclude others is to empower the owner to choose to share his home or other property with his intimates.”); Alschuler, Interpersonal Privacy and the Fourth Amendment, 4 N. Ill. U. L. Rev. 1, 13 (1983) (“[O]ne of the main rights attaching to property is the right to share its shelter, its comfort and its privacy with others.”). Our Fourth Amendment decisions should reflect these complementary prerogatives.

A homedweller places her own privacy at risk, the Court’s approach indicates, when she opens her home to others, uncertain whether the duration of their stay, their purpose, and their “acceptance into the household” will earn protection. Ante , at 6. 1 It remains textbook law that “[s]earches and seizures inside a home without a warrant are presumptively unreasonable absent exigent circumstances.” Karo, 468 U. S., at 714–715. The law in practice is less secure. Human frailty suggests that today’s decision will tempt police to pry into private dwellings without warrant, to find evidence incriminating guests who do not rest there through the night. See Simien, The Interrelationship of the Scope of the Fourth Amendment and Standing to Object to Unreasonable Searches, 41 Ark. L. Rev. 487, 539 (1988) (“[I]f the police have no probable cause, they have everything to gain and nothing to lose if they search under circumstances where they know that at least one of the potential defendants will not have standing.”). Rakas tolerates that temptation with respect to automobile searches. See Ashdown, The Fourth Amendment and the “Legitimate Expectation of Privacy,” 34 Vand. L. Rev. 1289, 1321 (1981) (criticizing Rakas as “present[ing] a framework in which there may be nothing to lose and something to gain by the illegal search of a car that carries more than one occupant”); see also Rakas, 439 U. S., at 169 (White, J., dissenting) (“After this decision, police will have little to lose by unreasonably searching vehicles occupied by more than one person.”). I see no impelling reason to extend this risk into the home. See Silverman v. United States , 365 U. S. 505, 511 (1961) (“At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”). As I see it, people are not genuinely “secure in their … houses … against unreasonable searches and seizures,” U. S. Const., Amdt. 4, if their invitations to others increase the risk of unwarranted governmental peering and prying into their dwelling places.

Through the host’s invitation, the guest gains a reasonable expectation of privacy in the home. Minnesota v. Olson, 495 U. S. 91 (1990) , so held with respect to an overnight guest. The logic of that decision extends to shorter term guests as well. See 5 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment §11.3(b), p. 137 (3d ed. 1996) (“[I]t is fair to say that the Olson decision lends considerable support to the claim that shorter-term guests also have standing.”). Visiting the home of a friend, relative, or business associate, whatever the time of day, “serves functions recognized as valuable by society.” Olson, 495 U. S., at 98. One need not remain overnight to anticipate privacy in another’s home, “a place where [the guest] and his possessions will not be disturbed by anyone but his host and those his host allows inside.” Id., at 99. In sum, when a homeowner chooses to share the privacy of her home and her company with a short-term guest, the twofold requirement “emerg[ing] from prior decisions” has been satisfied: Both host and guest “have exhibited an actual (subjective) expectation of privacy”; that “expectation [is] one [our] society is prepared to recognize as ‘reasonable.’ ” Katz v. United States, 389 U. S. 347, 361 (1967) (Harlan, J., concurring). 2

As the Solicitor General acknowledged, the illegality of the host-guest conduct, the fact that they were partners in crime, would not alter the analysis. See Tr. of Oral Arg. 22–23. In Olson , for example, the guest whose security this Court’s decision shielded stayed overnight while the police searched for him. 495 U. S., at 93–94. The Court held that the guest had Fourth Amendment protection against a warrantless arrest in his host’s home despite the guest’s involvement in grave crimes (first-degree murder, armed robbery, and assault). Other decisions have similarly sustained Fourth Amendment pleas despite the criminality of the defendants’ activities. See , e.g., Payton , 445 U. S., at 583–603 (murder and armed robbery); Katz, 389 U. S., at 348–359 (telephoning across state lines to place illegal wagers); Silverman, 365 U. S., at 508–512 (gambling offenses). Indeed, it must be this way. If the illegality of the activity made constitutional an otherwise unconstitutional search, such Fourth Amendment protection, reserved for the innocent only, would have little force in regulating police behavior toward either the innocent or the guilty.

Our leading decision in Katz is key to my view of this case. There, we ruled that the Government violated the petitioner’s Fourth Amendment rights when it electronically recorded him transmitting wagering information while he was inside a public telephone booth. 389 U. S., at 353. We were mindful that “the Fourth Amendment protects people, not places,” id., at 351, and held that this electronic monitoring of a business call “violated the privacy upon which [the caller] justifiably relied while using the telephone booth,” id., at 353. Our obligation to produce coherent results in this often visited area of the law requires us to inform our current expositions by benchmarks already established. As Justice Harlan explained in his dissent in Poe v. Ullman, 367 U. S. 497, 544 (1961) :

“Each new claim to Constitutional protection must be considered against a background of Constitutional purposes, as they have been rationally perceived and historically developed . Though we exercise limited and sharply restrained judgment, yet there is no ‘mechanical yardstick,’ no ‘mechanical answer.’ The decision of an apparently novel claim must depend on grounds which follow closely on well-accepted principles and criteria. The new decision must take ‘its place in relation to what went before and further [cut] a channel for what is to come.’ ” Ibid . (quoting Irvine v. California, 347 U. S. 128, 147 (1954) (Frankfurter, J., dissenting)).

The Court’s decision in this case veers sharply from the path marked in Katz . I do not agree that we have a more reasonable expectation of privacy when we place a business call to a person’s home from a public telephone booth on the side of the street, see Katz, 389 U. S., at 353, than when we actually enter that person’s premises to engage in a common endeavor. 3

* <unicode value="8195"> * *

For the reasons stated, I dissent from the Court’s judgment, and would retain judicial surveillance over the warrantless searches today’s decision allows.


Notes

1 At oral argument, counsel for petitioner informed the Court that the lessee of the apartment was charged, tried, and convicted of the same crimes as respondents. Tr. of Oral Arg. 10–11.

2 In his concurring opinion, Justice Kennedy maintains that respondents here lacked “an expectation of privacy that society recognizes as reasonable,” ante, at 3–4, because they “established nothing more than a fleeting and insubstantial connection” with the host’s home, ante, at 4. As the Minnesota Supreme Court reported, however, the stipulated facts showed that respondents were inside the apartment with the host’s permission, remained inside for at least 2½ hours, and, during that time, engaged in concert with the host in a collaborative venture. See 569 N. W. 2d 169, 175–176 (1997). These stipulated facts—which scarcely resemble a stop of a minute or two at the 19th of 20 homes to drop off a packet, see ante, at 5—securely demonstrate that the host intended to share her privacy with respondents, and that respondents, therefore, had entered into the homeland of Fourth Amendment protection. While I agree with the Minnesota Supreme Court that, under the rule settled since Katz, the reasonableness of the expectation of privacy controls, not the visitor’s status as social guest, invitee, licensee, or business partner, 569 N. W. 2d, at 176, I think it noteworthy that five Members of the Court would place under the Fourth Amendment’s shield, at least, “almost all social guests,” ante, at 1 (Kennedy, J., concurring).

3 Justice Scalia’s lively concurring opinion deplores our adherence to Katz. In suggesting that we have elevated Justice Harlan’s concurring opinion in Katz to first place, see ante, at 7, Justice Scalia undervalues the clear opinion of the Court that “the Fourth Amendment protects people, not places,” 389 U. S., at 351. That core understanding is the leitmotif of Justice Harlan’s concurring opinion. One cannot avoid a strong sense of déjà vu on reading Justice Scalia’s elaboration. It so vividly recalls the opinion of Justice Black in dissent in Katz. See 389 U. S., at 365 (Black, J., dissenting) (“While I realize that an argument based on the meaning of words lacks the scope, and no doubt the appeal, of broad policy discussions and philosophical discourses . . . for me the language of the Amendment is the crucial place to look.”); id., at 373 (“[B]y arbitrarily substituting the Court’s language . . . for the Constitution’s language . . . the Court has made the Fourth Amendment its vehicle for holding all laws violative of the Constitution which offend the Court’s broadest concept of privacy.”); ibid. (“I will not distort the words of the Amendment in order to ‘keep the Constitution up to date’ or ‘to bring it into harmony with the times.’ ”). Justice Scalia relies on what he deems “clear text,” ante, at 7, to argue that the Fourth Amendment protects people from searches only in the places where they live, ante, at 6. Again, as Justice Stewart emphasized in the majority opinion in Katz, which stare decisis and reason require us to follow, “the Fourth Amendment protects people, not places.” 389 U. S., at 351.


TOP

Dissent

MINNESOTA, PETITIONER v. WAYNE
THOMAS CARTER

MINNESOTA v . MELVIN JOHNS

on writ of certiorari to the supreme court of minnesota


[December 1, 1998]

Justice Ginsburg , with whom Justice Stevens and Justice Souter join, dissenting.

The Court’s decision undermines not only the security of short-term guests, but also the security of the home resident herself. In my view, when a homeowner or lessor personally invites a guest into her home to share in a common endeavor, whether it be for conversation, to engage in leisure activities, or for business purposes licit or illicit, that guest should share his host’s shelter against unreasonable searches and seizures.

I do not here propose restoration of the “legitimately on the premises” criterion stated in Jones v. United States, 362 U. S. 257, 267 (1960) , for the Court rejected that formulation in Rakas v. Illinois, 439 U. S. 128, 142 (1978) , as it did the “automatic standing rule” in United States v. Salvucci, 448 U. S. 83, 95 (1980) . First, the disposition I would reach in this case responds to the unique importance of the home—the most essential bastion of privacy recognized by the law. <font scaps="1"> See United States v. Karo, 468 U. S. 705, 714 (1984) (“[P]rivate residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant … . Our cases have not deviated from this basic Fourth Amendment principle.”); Payton v. New York, 445 U. S. 573, 589 (1980) (“The Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home.”). Second, even within the home itself, the position to which I would adhere would not permit “a casual visitor who has never seen, or been permitted to visit, the basement of another’s house to object to a search of the basement if the visitor happened to be in the kitchen of the house at the time of the search.” Rakas, 439 U. S., at 142. Further, I would here decide only the case of the homeowner who chooses to share the privacy of her home and her company with a guest, and would not reach classroom hypotheticals like the milkman or pizza deliverer.

My concern centers on an individual’s choice to share her home and her associations there with persons she selects. Our decisions indicate that people have a reasonable expectation of privacy in their homes in part because they have the prerogative to exclude others. See id., at 149 (legitimate expectation of privacy turns in large part on ability to exclude others from place searched). The power to exclude implies the power to include. See, e.g., Coombs, Shared Privacy and the Fourth Amendment, or the Rights of Relationships, 75 Calif. L. Rev. 1593, 1618 (1987) (“One reason we protect the legal right to exclude others is to empower the owner to choose to share his home or other property with his intimates.”); Alschuler, Interpersonal Privacy and the Fourth Amendment, 4 N. Ill. U. L. Rev. 1, 13 (1983) (“[O]ne of the main rights attaching to property is the right to share its shelter, its comfort and its privacy with others.”). Our Fourth Amendment decisions should reflect these complementary prerogatives.

A homedweller places her own privacy at risk, the Court’s approach indicates, when she opens her home to others, uncertain whether the duration of their stay, their purpose, and their “acceptance into the household” will earn protection. Ante , at 6. 1 It remains textbook law that “[s]earches and seizures inside a home without a warrant are presumptively unreasonable absent exigent circumstances.” Karo, 468 U. S., at 714–715. The law in practice is less secure. Human frailty suggests that today’s decision will tempt police to pry into private dwellings without warrant, to find evidence incriminating guests who do not rest there through the night. See Simien, The Interrelationship of the Scope of the Fourth Amendment and Standing to Object to Unreasonable Searches, 41 Ark. L. Rev. 487, 539 (1988) (“[I]f the police have no probable cause, they have everything to gain and nothing to lose if they search under circumstances where they know that at least one of the potential defendants will not have standing.”). Rakas tolerates that temptation with respect to automobile searches. See Ashdown, The Fourth Amendment and the “Legitimate Expectation of Privacy,” 34 Vand. L. Rev. 1289, 1321 (1981) (criticizing Rakas as “present[ing] a framework in which there may be nothing to lose and something to gain by the illegal search of a car that carries more than one occupant”); see also Rakas, 439 U. S., at 169 (White, J., dissenting) (“After this decision, police will have little to lose by unreasonably searching vehicles occupied by more than one person.”). I see no impelling reason to extend this risk into the home. See Silverman v. United States , 365 U. S. 505, 511 (1961) (“At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”). As I see it, people are not genuinely “secure in their … houses … against unreasonable searches and seizures,” U. S. Const., Amdt. 4, if their invitations to others increase the risk of unwarranted governmental peering and prying into their dwelling places.

Through the host’s invitation, the guest gains a reasonable expectation of privacy in the home. Minnesota v. Olson, 495 U. S. 91 (1990) , so held with respect to an overnight guest. The logic of that decision extends to shorter term guests as well. See 5 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment §11.3(b), p. 137 (3d ed. 1996) (“[I]t is fair to say that the Olson decision lends considerable support to the claim that shorter-term guests also have standing.”). Visiting the home of a friend, relative, or business associate, whatever the time of day, “serves functions recognized as valuable by society.” Olson, 495 U. S., at 98. One need not remain overnight to anticipate privacy in another’s home, “a place where [the guest] and his possessions will not be disturbed by anyone but his host and those his host allows inside.” Id., at 99. In sum, when a homeowner chooses to share the privacy of her home and her company with a short-term guest, the twofold requirement “emerg[ing] from prior decisions” has been satisfied: Both host and guest “have exhibited an actual (subjective) expectation of privacy”; that “expectation [is] one [our] society is prepared to recognize as ‘reasonable.’ ” Katz v. United States, 389 U. S. 347, 361 (1967) (Harlan, J., concurring). 2

As the Solicitor General acknowledged, the illegality of the host-guest conduct, the fact that they were partners in crime, would not alter the analysis. See Tr. of Oral Arg. 22–23. In Olson , for example, the guest whose security this Court’s decision shielded stayed overnight while the police searched for him. 495 U. S., at 93–94. The Court held that the guest had Fourth Amendment protection against a warrantless arrest in his host’s home despite the guest’s involvement in grave crimes (first-degree murder, armed robbery, and assault). Other decisions have similarly sustained Fourth Amendment pleas despite the criminality of the defendants’ activities. See , e.g., Payton , 445 U. S., at 583–603 (murder and armed robbery); Katz, 389 U. S., at 348–359 (telephoning across state lines to place illegal wagers); Silverman, 365 U. S., at 508–512 (gambling offenses). Indeed, it must be this way. If the illegality of the activity made constitutional an otherwise unconstitutional search, such Fourth Amendment protection, reserved for the innocent only, would have little force in regulating police behavior toward either the innocent or the guilty.

Our leading decision in Katz is key to my view of this case. There, we ruled that the Government violated the petitioner’s Fourth Amendment rights when it electronically recorded him transmitting wagering information while he was inside a public telephone booth. 389 U. S., at 353. We were mindful that “the Fourth Amendment protects people, not places,” id., at 351, and held that this electronic monitoring of a business call “violated the privacy upon which [the caller] justifiably relied while using the telephone booth,” id., at 353. Our obligation to produce coherent results in this often visited area of the law requires us to inform our current expositions by benchmarks already established. As Justice Harlan explained in his dissent in Poe v. Ullman, 367 U. S. 497, 544 (1961) :

“Each new claim to Constitutional protection must be considered against a background of Constitutional purposes, as they have been rationally perceived and historically developed . Though we exercise limited and sharply restrained judgment, yet there is no ‘mechanical yardstick,’ no ‘mechanical answer.’ The decision of an apparently novel claim must depend on grounds which follow closely on well-accepted principles and criteria. The new decision must take ‘its place in relation to what went before and further [cut] a channel for what is to come.’ ” Ibid . (quoting Irvine v. California, 347 U. S. 128, 147 (1954) (Frankfurter, J., dissenting)).

The Court’s decision in this case veers sharply from the path marked in Katz . I do not agree that we have a more reasonable expectation of privacy when we place a business call to a person’s home from a public telephone booth on the side of the street, see Katz, 389 U. S., at 353, than when we actually enter that person’s premises to engage in a common endeavor. 3

* <unicode value="8195"> * *

For the reasons stated, I dissent from the Court’s judgment, and would retain judicial surveillance over the warrantless searches today’s decision allows.


Notes

1 At oral argument, counsel for petitioner informed the Court that the lessee of the apartment was charged, tried, and convicted of the same crimes as respondents. Tr. of Oral Arg. 10–11.

2 In his concurring opinion, Justice Kennedy maintains that respondents here lacked “an expectation of privacy that society recognizes as reasonable,” ante, at 3–4, because they “established nothing more than a fleeting and insubstantial connection” with the host’s home, ante, at 4. As the Minnesota Supreme Court reported, however, the stipulated facts showed that respondents were inside the apartment with the host’s permission, remained inside for at least 2½ hours, and, during that time, engaged in concert with the host in a collaborative venture. See 569 N. W. 2d 169, 175–176 (1997). These stipulated facts—which scarcely resemble a stop of a minute or two at the 19th of 20 homes to drop off a packet, see ante, at 5—securely demonstrate that the host intended to share her privacy with respondents, and that respondents, therefore, had entered into the homeland of Fourth Amendment protection. While I agree with the Minnesota Supreme Court that, under the rule settled since Katz, the reasonableness of the expectation of privacy controls, not the visitor’s status as social guest, invitee, licensee, or business partner, 569 N. W. 2d, at 176, I think it noteworthy that five Members of the Court would place under the Fourth Amendment’s shield, at least, “almost all social guests,” ante, at 1 (Kennedy, J., concurring).

3 Justice Scalia’s lively concurring opinion deplores our adherence to Katz. In suggesting that we have elevated Justice Harlan’s concurring opinion in Katz to first place, see ante, at 7, Justice Scalia undervalues the clear opinion of the Court that “the Fourth Amendment protects people, not places,” 389 U. S., at 351. That core understanding is the leitmotif of Justice Harlan’s concurring opinion. One cannot avoid a strong sense of déjà vu on reading Justice Scalia’s elaboration. It so vividly recalls the opinion of Justice Black in dissent in Katz. See 389 U. S., at 365 (Black, J., dissenting) (“While I realize that an argument based on the meaning of words lacks the scope, and no doubt the appeal, of broad policy discussions and philosophical discourses . . . for me the language of the Amendment is the crucial place to look.”); id., at 373 (“[B]y arbitrarily substituting the Court’s language . . . for the Constitution’s language . . . the Court has made the Fourth Amendment its vehicle for holding all laws violative of the Constitution which offend the Court’s broadest concept of privacy.”); ibid. (“I will not distort the words of the Amendment in order to ‘keep the Constitution up to date’ or ‘to bring it into harmony with the times.’ ”). Justice Scalia relies on what he deems “clear text,” ante, at 7, to argue that the Fourth Amendment protects people from searches only in the places where they live, ante, at 6. Again, as Justice Stewart emphasized in the majority opinion in Katz, which stare decisis and reason require us to follow, “the Fourth Amendment protects people, not places.” 389 U. S., at 351.


TOP

Dissent

MINNESOTA, PETITIONER v. WAYNE
THOMAS CARTER

MINNESOTA v . MELVIN JOHNS

on writ of certiorari to the supreme court of minnesota


[December 1, 1998]

Justice Ginsburg , with whom Justice Stevens and Justice Souter join, dissenting.

The Court’s decision undermines not only the security of short-term guests, but also the security of the home resident herself. In my view, when a homeowner or lessor personally invites a guest into her home to share in a common endeavor, whether it be for conversation, to engage in leisure activities, or for business purposes licit or illicit, that guest should share his host’s shelter against unreasonable searches and seizures.

I do not here propose restoration of the “legitimately on the premises” criterion stated in Jones v. United States, 362 U. S. 257, 267 (1960) , for the Court rejected that formulation in Rakas v. Illinois, 439 U. S. 128, 142 (1978) , as it did the “automatic standing rule” in United States v. Salvucci, 448 U. S. 83, 95 (1980) . First, the disposition I would reach in this case responds to the unique importance of the home—the most essential bastion of privacy recognized by the law. <font scaps="1"> See United States v. Karo, 468 U. S. 705, 714 (1984) (“[P]rivate residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant … . Our cases have not deviated from this basic Fourth Amendment principle.”); Payton v. New York, 445 U. S. 573, 589 (1980) (“The Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home.”). Second, even within the home itself, the position to which I would adhere would not permit “a casual visitor who has never seen, or been permitted to visit, the basement of another’s house to object to a search of the basement if the visitor happened to be in the kitchen of the house at the time of the search.” Rakas, 439 U. S., at 142. Further, I would here decide only the case of the homeowner who chooses to share the privacy of her home and her company with a guest, and would not reach classroom hypotheticals like the milkman or pizza deliverer.

My concern centers on an individual’s choice to share her home and her associations there with persons she selects. Our decisions indicate that people have a reasonable expectation of privacy in their homes in part because they have the prerogative to exclude others. See id., at 149 (legitimate expectation of privacy turns in large part on ability to exclude others from place searched). The power to exclude implies the power to include. See, e.g., Coombs, Shared Privacy and the Fourth Amendment, or the Rights of Relationships, 75 Calif. L. Rev. 1593, 1618 (1987) (“One reason we protect the legal right to exclude others is to empower the owner to choose to share his home or other property with his intimates.”); Alschuler, Interpersonal Privacy and the Fourth Amendment, 4 N. Ill. U. L. Rev. 1, 13 (1983) (“[O]ne of the main rights attaching to property is the right to share its shelter, its comfort and its privacy with others.”). Our Fourth Amendment decisions should reflect these complementary prerogatives.

A homedweller places her own privacy at risk, the Court’s approach indicates, when she opens her home to others, uncertain whether the duration of their stay, their purpose, and their “acceptance into the household” will earn protection. Ante , at 6. 1 It remains textbook law that “[s]earches and seizures inside a home without a warrant are presumptively unreasonable absent exigent circumstances.” Karo, 468 U. S., at 714–715. The law in practice is less secure. Human frailty suggests that today’s decision will tempt police to pry into private dwellings without warrant, to find evidence incriminating guests who do not rest there through the night. See Simien, The Interrelationship of the Scope of the Fourth Amendment and Standing to Object to Unreasonable Searches, 41 Ark. L. Rev. 487, 539 (1988) (“[I]f the police have no probable cause, they have everything to gain and nothing to lose if they search under circumstances where they know that at least one of the potential defendants will not have standing.”). Rakas tolerates that temptation with respect to automobile searches. See Ashdown, The Fourth Amendment and the “Legitimate Expectation of Privacy,” 34 Vand. L. Rev. 1289, 1321 (1981) (criticizing Rakas as “present[ing] a framework in which there may be nothing to lose and something to gain by the illegal search of a car that carries more than one occupant”); see also Rakas, 439 U. S., at 169 (White, J., dissenting) (“After this decision, police will have little to lose by unreasonably searching vehicles occupied by more than one person.”). I see no impelling reason to extend this risk into the home. See Silverman v. United States , 365 U. S. 505, 511 (1961) (“At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”). As I see it, people are not genuinely “secure in their … houses … against unreasonable searches and seizures,” U. S. Const., Amdt. 4, if their invitations to others increase the risk of unwarranted governmental peering and prying into their dwelling places.

Through the host’s invitation, the guest gains a reasonable expectation of privacy in the home. Minnesota v. Olson, 495 U. S. 91 (1990) , so held with respect to an overnight guest. The logic of that decision extends to shorter term guests as well. See 5 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment §11.3(b), p. 137 (3d ed. 1996) (“[I]t is fair to say that the Olson decision lends considerable support to the claim that shorter-term guests also have standing.”). Visiting the home of a friend, relative, or business associate, whatever the time of day, “serves functions recognized as valuable by society.” Olson, 495 U. S., at 98. One need not remain overnight to anticipate privacy in another’s home, “a place where [the guest] and his possessions will not be disturbed by anyone but his host and those his host allows inside.” Id., at 99. In sum, when a homeowner chooses to share the privacy of her home and her company with a short-term guest, the twofold requirement “emerg[ing] from prior decisions” has been satisfied: Both host and guest “have exhibited an actual (subjective) expectation of privacy”; that “expectation [is] one [our] society is prepared to recognize as ‘reasonable.’ ” Katz v. United States, 389 U. S. 347, 361 (1967) (Harlan, J., concurring). 2

As the Solicitor General acknowledged, the illegality of the host-guest conduct, the fact that they were partners in crime, would not alter the analysis. See Tr. of Oral Arg. 22–23. In Olson , for example, the guest whose security this Court’s decision shielded stayed overnight while the police searched for him. 495 U. S., at 93–94. The Court held that the guest had Fourth Amendment protection against a warrantless arrest in his host’s home despite the guest’s involvement in grave crimes (first-degree murder, armed robbery, and assault). Other decisions have similarly sustained Fourth Amendment pleas despite the criminality of the defendants’ activities. See , e.g., Payton , 445 U. S., at 583–603 (murder and armed robbery); Katz, 389 U. S., at 348–359 (telephoning across state lines to place illegal wagers); Silverman, 365 U. S., at 508–512 (gambling offenses). Indeed, it must be this way. If the illegality of the activity made constitutional an otherwise unconstitutional search, such Fourth Amendment protection, reserved for the innocent only, would have little force in regulating police behavior toward either the innocent or the guilty.

Our leading decision in Katz is key to my view of this case. There, we ruled that the Government violated the petitioner’s Fourth Amendment rights when it electronically recorded him transmitting wagering information while he was inside a public telephone booth. 389 U. S., at 353. We were mindful that “the Fourth Amendment protects people, not places,” id., at 351, and held that this electronic monitoring of a business call “violated the privacy upon which [the caller] justifiably relied while using the telephone booth,” id., at 353. Our obligation to produce coherent results in this often visited area of the law requires us to inform our current expositions by benchmarks already established. As Justice Harlan explained in his dissent in Poe v. Ullman, 367 U. S. 497, 544 (1961) :

“Each new claim to Constitutional protection must be considered against a background of Constitutional purposes, as they have been rationally perceived and historically developed . Though we exercise limited and sharply restrained judgment, yet there is no ‘mechanical yardstick,’ no ‘mechanical answer.’ The decision of an apparently novel claim must depend on grounds which follow closely on well-accepted principles and criteria. The new decision must take ‘its place in relation to what went before and further [cut] a channel for what is to come.’ ” Ibid . (quoting Irvine v. California, 347 U. S. 128, 147 (1954) (Frankfurter, J., dissenting)).

The Court’s decision in this case veers sharply from the path marked in Katz . I do not agree that we have a more reasonable expectation of privacy when we place a business call to a person’s home from a public telephone booth on the side of the street, see Katz, 389 U. S., at 353, than when we actually enter that person’s premises to engage in a common endeavor. 3

* <unicode value="8195"> * *

For the reasons stated, I dissent from the Court’s judgment, and would retain judicial surveillance over the warrantless searches today’s decision allows.


Notes

1 At oral argument, counsel for petitioner informed the Court that the lessee of the apartment was charged, tried, and convicted of the same crimes as respondents. Tr. of Oral Arg. 10–11.

2 In his concurring opinion, Justice Kennedy maintains that respondents here lacked “an expectation of privacy that society recognizes as reasonable,” ante, at 3–4, because they “established nothing more than a fleeting and insubstantial connection” with the host’s home, ante, at 4. As the Minnesota Supreme Court reported, however, the stipulated facts showed that respondents were inside the apartment with the host’s permission, remained inside for at least 2½ hours, and, during that time, engaged in concert with the host in a collaborative venture. See 569 N. W. 2d 169, 175–176 (1997). These stipulated facts—which scarcely resemble a stop of a minute or two at the 19th of 20 homes to drop off a packet, see ante, at 5—securely demonstrate that the host intended to share her privacy with respondents, and that respondents, therefore, had entered into the homeland of Fourth Amendment protection. While I agree with the Minnesota Supreme Court that, under the rule settled since Katz, the reasonableness of the expectation of privacy controls, not the visitor’s status as social guest, invitee, licensee, or business partner, 569 N. W. 2d, at 176, I think it noteworthy that five Members of the Court would place under the Fourth Amendment’s shield, at least, “almost all social guests,” ante, at 1 (Kennedy, J., concurring).

3 Justice Scalia’s lively concurring opinion deplores our adherence to Katz. In suggesting that we have elevated Justice Harlan’s concurring opinion in Katz to first place, see ante, at 7, Justice Scalia undervalues the clear opinion of the Court that “the Fourth Amendment protects people, not places,” 389 U. S., at 351. That core understanding is the leitmotif of Justice Harlan’s concurring opinion. One cannot avoid a strong sense of déjà vu on reading Justice Scalia’s elaboration. It so vividly recalls the opinion of Justice Black in dissent in Katz. See 389 U. S., at 365 (Black, J., dissenting) (“While I realize that an argument based on the meaning of words lacks the scope, and no doubt the appeal, of broad policy discussions and philosophical discourses . . . for me the language of the Amendment is the crucial place to look.”); id., at 373 (“[B]y arbitrarily substituting the Court’s language . . . for the Constitution’s language . . . the Court has made the Fourth Amendment its vehicle for holding all laws violative of the Constitution which offend the Court’s broadest concept of privacy.”); ibid. (“I will not distort the words of the Amendment in order to ‘keep the Constitution up to date’ or ‘to bring it into harmony with the times.’ ”). Justice Scalia relies on what he deems “clear text,” ante, at 7, to argue that the Fourth Amendment protects people from searches only in the places where they live, ante, at 6. Again, as Justice Stewart emphasized in the majority opinion in Katz, which stare decisis and reason require us to follow, “the Fourth Amendment protects people, not places.” 389 U. S., at 351.


TOP

Dissent

MINNESOTA, PETITIONER v. WAYNE
THOMAS CARTER

MINNESOTA v . MELVIN JOHNS

on writ of certiorari to the supreme court of minnesota


[December 1, 1998]

Justice Ginsburg , with whom Justice Stevens and Justice Souter join, dissenting.

The Court’s decision undermines not only the security of short-term guests, but also the security of the home resident herself. In my view, when a homeowner or lessor personally invites a guest into her home to share in a common endeavor, whether it be for conversation, to engage in leisure activities, or for business purposes licit or illicit, that guest should share his host’s shelter against unreasonable searches and seizures.

I do not here propose restoration of the “legitimately on the premises” criterion stated in Jones v. United States, 362 U. S. 257, 267 (1960) , for the Court rejected that formulation in Rakas v. Illinois, 439 U. S. 128, 142 (1978) , as it did the “automatic standing rule” in United States v. Salvucci, 448 U. S. 83, 95 (1980) . First, the disposition I would reach in this case responds to the unique importance of the home—the most essential bastion of privacy recognized by the law. <font scaps="1"> See United States v. Karo, 468 U. S. 705, 714 (1984) (“[P]rivate residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant … . Our cases have not deviated from this basic Fourth Amendment principle.”); Payton v. New York, 445 U. S. 573, 589 (1980) (“The Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home.”). Second, even within the home itself, the position to which I would adhere would not permit “a casual visitor who has never seen, or been permitted to visit, the basement of another’s house to object to a search of the basement if the visitor happened to be in the kitchen of the house at the time of the search.” Rakas, 439 U. S., at 142. Further, I would here decide only the case of the homeowner who chooses to share the privacy of her home and her company with a guest, and would not reach classroom hypotheticals like the milkman or pizza deliverer.

My concern centers on an individual’s choice to share her home and her associations there with persons she selects. Our decisions indicate that people have a reasonable expectation of privacy in their homes in part because they have the prerogative to exclude others. See id., at 149 (legitimate expectation of privacy turns in large part on ability to exclude others from place searched). The power to exclude implies the power to include. See, e.g., Coombs, Shared Privacy and the Fourth Amendment, or the Rights of Relationships, 75 Calif. L. Rev. 1593, 1618 (1987) (“One reason we protect the legal right to exclude others is to empower the owner to choose to share his home or other property with his intimates.”); Alschuler, Interpersonal Privacy and the Fourth Amendment, 4 N. Ill. U. L. Rev. 1, 13 (1983) (“[O]ne of the main rights attaching to property is the right to share its shelter, its comfort and its privacy with others.”). Our Fourth Amendment decisions should reflect these complementary prerogatives.

A homedweller places her own privacy at risk, the Court’s approach indicates, when she opens her home to others, uncertain whether the duration of their stay, their purpose, and their “acceptance into the household” will earn protection. Ante , at 6. 1 It remains textbook law that “[s]earches and seizures inside a home without a warrant are presumptively unreasonable absent exigent circumstances.” Karo, 468 U. S., at 714–715. The law in practice is less secure. Human frailty suggests that today’s decision will tempt police to pry into private dwellings without warrant, to find evidence incriminating guests who do not rest there through the night. See Simien, The Interrelationship of the Scope of the Fourth Amendment and Standing to Object to Unreasonable Searches, 41 Ark. L. Rev. 487, 539 (1988) (“[I]f the police have no probable cause, they have everything to gain and nothing to lose if they search under circumstances where they know that at least one of the potential defendants will not have standing.”). Rakas tolerates that temptation with respect to automobile searches. See Ashdown, The Fourth Amendment and the “Legitimate Expectation of Privacy,” 34 Vand. L. Rev. 1289, 1321 (1981) (criticizing Rakas as “present[ing] a framework in which there may be nothing to lose and something to gain by the illegal search of a car that carries more than one occupant”); see also Rakas, 439 U. S., at 169 (White, J., dissenting) (“After this decision, police will have little to lose by unreasonably searching vehicles occupied by more than one person.”). I see no impelling reason to extend this risk into the home. See Silverman v. United States , 365 U. S. 505, 511 (1961) (“At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”). As I see it, people are not genuinely “secure in their … houses … against unreasonable searches and seizures,” U. S. Const., Amdt. 4, if their invitations to others increase the risk of unwarranted governmental peering and prying into their dwelling places.

Through the host’s invitation, the guest gains a reasonable expectation of privacy in the home. Minnesota v. Olson, 495 U. S. 91 (1990) , so held with respect to an overnight guest. The logic of that decision extends to shorter term guests as well. See 5 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment §11.3(b), p. 137 (3d ed. 1996) (“[I]t is fair to say that the Olson decision lends considerable support to the claim that shorter-term guests also have standing.”). Visiting the home of a friend, relative, or business associate, whatever the time of day, “serves functions recognized as valuable by society.” Olson, 495 U. S., at 98. One need not remain overnight to anticipate privacy in another’s home, “a place where [the guest] and his possessions will not be disturbed by anyone but his host and those his host allows inside.” Id., at 99. In sum, when a homeowner chooses to share the privacy of her home and her company with a short-term guest, the twofold requirement “emerg[ing] from prior decisions” has been satisfied: Both host and guest “have exhibited an actual (subjective) expectation of privacy”; that “expectation [is] one [our] society is prepared to recognize as ‘reasonable.’ ” Katz v. United States, 389 U. S. 347, 361 (1967) (Harlan, J., concurring). 2

As the Solicitor General acknowledged, the illegality of the host-guest conduct, the fact that they were partners in crime, would not alter the analysis. See Tr. of Oral Arg. 22–23. In Olson , for example, the guest whose security this Court’s decision shielded stayed overnight while the police searched for him. 495 U. S., at 93–94. The Court held that the guest had Fourth Amendment protection against a warrantless arrest in his host’s home despite the guest’s involvement in grave crimes (first-degree murder, armed robbery, and assault). Other decisions have similarly sustained Fourth Amendment pleas despite the criminality of the defendants’ activities. See , e.g., Payton , 445 U. S., at 583–603 (murder and armed robbery); Katz, 389 U. S., at 348–359 (telephoning across state lines to place illegal wagers); Silverman, 365 U. S., at 508–512 (gambling offenses). Indeed, it must be this way. If the illegality of the activity made constitutional an otherwise unconstitutional search, such Fourth Amendment protection, reserved for the innocent only, would have little force in regulating police behavior toward either the innocent or the guilty.

Our leading decision in Katz is key to my view of this case. There, we ruled that the Government violated the petitioner’s Fourth Amendment rights when it electronically recorded him transmitting wagering information while he was inside a public telephone booth. 389 U. S., at 353. We were mindful that “the Fourth Amendment protects people, not places,” id., at 351, and held that this electronic monitoring of a business call “violated the privacy upon which [the caller] justifiably relied while using the telephone booth,” id., at 353. Our obligation to produce coherent results in this often visited area of the law requires us to inform our current expositions by benchmarks already established. As Justice Harlan explained in his dissent in Poe v. Ullman, 367 U. S. 497, 544 (1961) :

“Each new claim to Constitutional protection must be considered against a background of Constitutional purposes, as they have been rationally perceived and historically developed . Though we exercise limited and sharply restrained judgment, yet there is no ‘mechanical yardstick,’ no ‘mechanical answer.’ The decision of an apparently novel claim must depend on grounds which follow closely on well-accepted principles and criteria. The new decision must take ‘its place in relation to what went before and further [cut] a channel for what is to come.’ ” Ibid . (quoting Irvine v. California, 347 U. S. 128, 147 (1954) (Frankfurter, J., dissenting)).

The Court’s decision in this case veers sharply from the path marked in Katz . I do not agree that we have a more reasonable expectation of privacy when we place a business call to a person’s home from a public telephone booth on the side of the street, see Katz, 389 U. S., at 353, than when we actually enter that person’s premises to engage in a common endeavor. 3

* <unicode value="8195"> * *

For the reasons stated, I dissent from the Court’s judgment, and would retain judicial surveillance over the warrantless searches today’s decision allows.


Notes

1 At oral argument, counsel for petitioner informed the Court that the lessee of the apartment was charged, tried, and convicted of the same crimes as respondents. Tr. of Oral Arg. 10–11.

2 In his concurring opinion, Justice Kennedy maintains that respondents here lacked “an expectation of privacy that society recognizes as reasonable,” ante, at 3–4, because they “established nothing more than a fleeting and insubstantial connection” with the host’s home, ante, at 4. As the Minnesota Supreme Court reported, however, the stipulated facts showed that respondents were inside the apartment with the host’s permission, remained inside for at least 2½ hours, and, during that time, engaged in concert with the host in a collaborative venture. See 569 N. W. 2d 169, 175–176 (1997). These stipulated facts—which scarcely resemble a stop of a minute or two at the 19th of 20 homes to drop off a packet, see ante, at 5—securely demonstrate that the host intended to share her privacy with respondents, and that respondents, therefore, had entered into the homeland of Fourth Amendment protection. While I agree with the Minnesota Supreme Court that, under the rule settled since Katz, the reasonableness of the expectation of privacy controls, not the visitor’s status as social guest, invitee, licensee, or business partner, 569 N. W. 2d, at 176, I think it noteworthy that five Members of the Court would place under the Fourth Amendment’s shield, at least, “almost all social guests,” ante, at 1 (Kennedy, J., concurring).

3 Justice Scalia’s lively concurring opinion deplores our adherence to Katz. In suggesting that we have elevated Justice Harlan’s concurring opinion in Katz to first place, see ante, at 7, Justice Scalia undervalues the clear opinion of the Court that “the Fourth Amendment protects people, not places,” 389 U. S., at 351. That core understanding is the leitmotif of Justice Harlan’s concurring opinion. One cannot avoid a strong sense of déjà vu on reading Justice Scalia’s elaboration. It so vividly recalls the opinion of Justice Black in dissent in Katz. See 389 U. S., at 365 (Black, J., dissenting) (“While I realize that an argument based on the meaning of words lacks the scope, and no doubt the appeal, of broad policy discussions and philosophical discourses . . . for me the language of the Amendment is the crucial place to look.”); id., at 373 (“[B]y arbitrarily substituting the Court’s language . . . for the Constitution’s language . . . the Court has made the Fourth Amendment its vehicle for holding all laws violative of the Constitution which offend the Court’s broadest concept of privacy.”); ibid. (“I will not distort the words of the Amendment in order to ‘keep the Constitution up to date’ or ‘to bring it into harmony with the times.’ ”). Justice Scalia relies on what he deems “clear text,” ante, at 7, to argue that the Fourth Amendment protects people from searches only in the places where they live, ante, at 6. Again, as Justice Stewart emphasized in the majority opinion in Katz, which stare decisis and reason require us to follow, “the Fourth Amendment protects people, not places.” 389 U. S., at 351.


TOP

Dissent

MINNESOTA, PETITIONER v. WAYNE
THOMAS CARTER

MINNESOTA v . MELVIN JOHNS

on writ of certiorari to the supreme court of minnesota


[December 1, 1998]

Justice Ginsburg , with whom Justice Stevens and Justice Souter join, dissenting.

The Court’s decision undermines not only the security of short-term guests, but also the security of the home resident herself. In my view, when a homeowner or lessor personally invites a guest into her home to share in a common endeavor, whether it be for conversation, to engage in leisure activities, or for business purposes licit or illicit, that guest should share his host’s shelter against unreasonable searches and seizures.

I do not here propose restoration of the “legitimately on the premises” criterion stated in Jones v. United States, 362 U. S. 257, 267 (1960) , for the Court rejected that formulation in Rakas v. Illinois, 439 U. S. 128, 142 (1978) , as it did the “automatic standing rule” in United States v. Salvucci, 448 U. S. 83, 95 (1980) . First, the disposition I would reach in this case responds to the unique importance of the home—the most essential bastion of privacy recognized by the law. <font scaps="1"> See United States v. Karo, 468 U. S. 705, 714 (1984) (“[P]rivate residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant … . Our cases have not deviated from this basic Fourth Amendment principle.”); Payton v. New York, 445 U. S. 573, 589 (1980) (“The Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home.”). Second, even within the home itself, the position to which I would adhere would not permit “a casual visitor who has never seen, or been permitted to visit, the basement of another’s house to object to a search of the basement if the visitor happened to be in the kitchen of the house at the time of the search.” Rakas, 439 U. S., at 142. Further, I would here decide only the case of the homeowner who chooses to share the privacy of her home and her company with a guest, and would not reach classroom hypotheticals like the milkman or pizza deliverer.

My concern centers on an individual’s choice to share her home and her associations there with persons she selects. Our decisions indicate that people have a reasonable expectation of privacy in their homes in part because they have the prerogative to exclude others. See id., at 149 (legitimate expectation of privacy turns in large part on ability to exclude others from place searched). The power to exclude implies the power to include. See, e.g., Coombs, Shared Privacy and the Fourth Amendment, or the Rights of Relationships, 75 Calif. L. Rev. 1593, 1618 (1987) (“One reason we protect the legal right to exclude others is to empower the owner to choose to share his home or other property with his intimates.”); Alschuler, Interpersonal Privacy and the Fourth Amendment, 4 N. Ill. U. L. Rev. 1, 13 (1983) (“[O]ne of the main rights attaching to property is the right to share its shelter, its comfort and its privacy with others.”). Our Fourth Amendment decisions should reflect these complementary prerogatives.

A homedweller places her own privacy at risk, the Court’s approach indicates, when she opens her home to others, uncertain whether the duration of their stay, their purpose, and their “acceptance into the household” will earn protection. Ante , at 6. 1 It remains textbook law that “[s]earches and seizures inside a home without a warrant are presumptively unreasonable absent exigent circumstances.” Karo, 468 U. S., at 714–715. The law in practice is less secure. Human frailty suggests that today’s decision will tempt police to pry into private dwellings without warrant, to find evidence incriminating guests who do not rest there through the night. See Simien, The Interrelationship of the Scope of the Fourth Amendment and Standing to Object to Unreasonable Searches, 41 Ark. L. Rev. 487, 539 (1988) (“[I]f the police have no probable cause, they have everything to gain and nothing to lose if they search under circumstances where they know that at least one of the potential defendants will not have standing.”). Rakas tolerates that temptation with respect to automobile searches. See Ashdown, The Fourth Amendment and the “Legitimate Expectation of Privacy,” 34 Vand. L. Rev. 1289, 1321 (1981) (criticizing Rakas as “present[ing] a framework in which there may be nothing to lose and something to gain by the illegal search of a car that carries more than one occupant”); see also Rakas, 439 U. S., at 169 (White, J., dissenting) (“After this decision, police will have little to lose by unreasonably searching vehicles occupied by more than one person.”). I see no impelling reason to extend this risk into the home. See Silverman v. United States , 365 U. S. 505, 511 (1961) (“At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”). As I see it, people are not genuinely “secure in their … houses … against unreasonable searches and seizures,” U. S. Const., Amdt. 4, if their invitations to others increase the risk of unwarranted governmental peering and prying into their dwelling places.

Through the host’s invitation, the guest gains a reasonable expectation of privacy in the home. Minnesota v. Olson, 495 U. S. 91 (1990) , so held with respect to an overnight guest. The logic of that decision extends to shorter term guests as well. See 5 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment §11.3(b), p. 137 (3d ed. 1996) (“[I]t is fair to say that the Olson decision lends considerable support to the claim that shorter-term guests also have standing.”). Visiting the home of a friend, relative, or business associate, whatever the time of day, “serves functions recognized as valuable by society.” Olson, 495 U. S., at 98. One need not remain overnight to anticipate privacy in another’s home, “a place where [the guest] and his possessions will not be disturbed by anyone but his host and those his host allows inside.” Id., at 99. In sum, when a homeowner chooses to share the privacy of her home and her company with a short-term guest, the twofold requirement “emerg[ing] from prior decisions” has been satisfied: Both host and guest “have exhibited an actual (subjective) expectation of privacy”; that “expectation [is] one [our] society is prepared to recognize as ‘reasonable.’ ” Katz v. United States, 389 U. S. 347, 361 (1967) (Harlan, J., concurring). 2

As the Solicitor General acknowledged, the illegality of the host-guest conduct, the fact that they were partners in crime, would not alter the analysis. See Tr. of Oral Arg. 22–23. In Olson , for example, the guest whose security this Court’s decision shielded stayed overnight while the police searched for him. 495 U. S., at 93–94. The Court held that the guest had Fourth Amendment protection against a warrantless arrest in his host’s home despite the guest’s involvement in grave crimes (first-degree murder, armed robbery, and assault). Other decisions have similarly sustained Fourth Amendment pleas despite the criminality of the defendants’ activities. See , e.g., Payton , 445 U. S., at 583–603 (murder and armed robbery); Katz, 389 U. S., at 348–359 (telephoning across state lines to place illegal wagers); Silverman, 365 U. S., at 508–512 (gambling offenses). Indeed, it must be this way. If the illegality of the activity made constitutional an otherwise unconstitutional search, such Fourth Amendment protection, reserved for the innocent only, would have little force in regulating police behavior toward either the innocent or the guilty.

Our leading decision in Katz is key to my view of this case. There, we ruled that the Government violated the petitioner’s Fourth Amendment rights when it electronically recorded him transmitting wagering information while he was inside a public telephone booth. 389 U. S., at 353. We were mindful that “the Fourth Amendment protects people, not places,” id., at 351, and held that this electronic monitoring of a business call “violated the privacy upon which [the caller] justifiably relied while using the telephone booth,” id., at 353. Our obligation to produce coherent results in this often visited area of the law requires us to inform our current expositions by benchmarks already established. As Justice Harlan explained in his dissent in Poe v. Ullman, 367 U. S. 497, 544 (1961) :

“Each new claim to Constitutional protection must be considered against a background of Constitutional purposes, as they have been rationally perceived and historically developed . Though we exercise limited and sharply restrained judgment, yet there is no ‘mechanical yardstick,’ no ‘mechanical answer.’ The decision of an apparently novel claim must depend on grounds which follow closely on well-accepted principles and criteria. The new decision must take ‘its place in relation to what went before and further [cut] a channel for what is to come.’ ” Ibid . (quoting Irvine v. California, 347 U. S. 128, 147 (1954) (Frankfurter, J., dissenting)).

The Court’s decision in this case veers sharply from the path marked in Katz . I do not agree that we have a more reasonable expectation of privacy when we place a business call to a person’s home from a public telephone booth on the side of the street, see Katz, 389 U. S., at 353, than when we actually enter that person’s premises to engage in a common endeavor. 3

* <unicode value="8195"> * *

For the reasons stated, I dissent from the Court’s judgment, and would retain judicial surveillance over the warrantless searches today’s decision allows.


Notes

1 At oral argument, counsel for petitioner informed the Court that the lessee of the apartment was charged, tried, and convicted of the same crimes as respondents. Tr. of Oral Arg. 10–11.

2 In his concurring opinion, Justice Kennedy maintains that respondents here lacked “an expectation of privacy that society recognizes as reasonable,” ante, at 3–4, because they “established nothing more than a fleeting and insubstantial connection” with the host’s home, ante, at 4. As the Minnesota Supreme Court reported, however, the stipulated facts showed that respondents were inside the apartment with the host’s permission, remained inside for at least 2½ hours, and, during that time, engaged in concert with the host in a collaborative venture. See 569 N. W. 2d 169, 175–176 (1997). These stipulated facts—which scarcely resemble a stop of a minute or two at the 19th of 20 homes to drop off a packet, see ante, at 5—securely demonstrate that the host intended to share her privacy with respondents, and that respondents, therefore, had entered into the homeland of Fourth Amendment protection. While I agree with the Minnesota Supreme Court that, under the rule settled since Katz, the reasonableness of the expectation of privacy controls, not the visitor’s status as social guest, invitee, licensee, or business partner, 569 N. W. 2d, at 176, I think it noteworthy that five Members of the Court would place under the Fourth Amendment’s shield, at least, “almost all social guests,” ante, at 1 (Kennedy, J., concurring).

3 Justice Scalia’s lively concurring opinion deplores our adherence to Katz. In suggesting that we have elevated Justice Harlan’s concurring opinion in Katz to first place, see ante, at 7, Justice Scalia undervalues the clear opinion of the Court that “the Fourth Amendment protects people, not places,” 389 U. S., at 351. That core understanding is the leitmotif of Justice Harlan’s concurring opinion. One cannot avoid a strong sense of déjà vu on reading Justice Scalia’s elaboration. It so vividly recalls the opinion of Justice Black in dissent in Katz. See 389 U. S., at 365 (Black, J., dissenting) (“While I realize that an argument based on the meaning of words lacks the scope, and no doubt the appeal, of broad policy discussions and philosophical discourses . . . for me the language of the Amendment is the crucial place to look.”); id., at 373 (“[B]y arbitrarily substituting the Court’s language . . . for the Constitution’s language . . . the Court has made the Fourth Amendment its vehicle for holding all laws violative of the Constitution which offend the Court’s broadest concept of privacy.”); ibid. (“I will not distort the words of the Amendment in order to ‘keep the Constitution up to date’ or ‘to bring it into harmony with the times.’ ”). Justice Scalia relies on what he deems “clear text,” ante, at 7, to argue that the Fourth Amendment protects people from searches only in the places where they live, ante, at 6. Again, as Justice Stewart emphasized in the majority opinion in Katz, which stare decisis and reason require us to follow, “the Fourth Amendment protects people, not places.” 389 U. S., at 351.


TOP

Dissent

MINNESOTA, PETITIONER v. WAYNE
THOMAS CARTER

MINNESOTA v . MELVIN JOHNS

on writ of certiorari to the supreme court of minnesota


[December 1, 1998]

Justice Ginsburg , with whom Justice Stevens and Justice Souter join, dissenting.

The Court’s decision undermines not only the security of short-term guests, but also the security of the home resident herself. In my view, when a homeowner or lessor personally invites a guest into her home to share in a common endeavor, whether it be for conversation, to engage in leisure activities, or for business purposes licit or illicit, that guest should share his host’s shelter against unreasonable searches and seizures.

I do not here propose restoration of the “legitimately on the premises” criterion stated in Jones v. United States, 362 U. S. 257, 267 (1960) , for the Court rejected that formulation in Rakas v. Illinois, 439 U. S. 128, 142 (1978) , as it did the “automatic standing rule” in United States v. Salvucci, 448 U. S. 83, 95 (1980) . First, the disposition I would reach in this case responds to the unique importance of the home—the most essential bastion of privacy recognized by the law. <font scaps="1"> See United States v. Karo, 468 U. S. 705, 714 (1984) (“[P]rivate residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant … . Our cases have not deviated from this basic Fourth Amendment principle.”); Payton v. New York, 445 U. S. 573, 589 (1980) (“The Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home.”). Second, even within the home itself, the position to which I would adhere would not permit “a casual visitor who has never seen, or been permitted to visit, the basement of another’s house to object to a search of the basement if the visitor happened to be in the kitchen of the house at the time of the search.” Rakas, 439 U. S., at 142. Further, I would here decide only the case of the homeowner who chooses to share the privacy of her home and her company with a guest, and would not reach classroom hypotheticals like the milkman or pizza deliverer.

My concern centers on an individual’s choice to share her home and her associations there with persons she selects. Our decisions indicate that people have a reasonable expectation of privacy in their homes in part because they have the prerogative to exclude others. See id., at 149 (legitimate expectation of privacy turns in large part on ability to exclude others from place searched). The power to exclude implies the power to include. See, e.g., Coombs, Shared Privacy and the Fourth Amendment, or the Rights of Relationships, 75 Calif. L. Rev. 1593, 1618 (1987) (“One reason we protect the legal right to exclude others is to empower the owner to choose to share his home or other property with his intimates.”); Alschuler, Interpersonal Privacy and the Fourth Amendment, 4 N. Ill. U. L. Rev. 1, 13 (1983) (“[O]ne of the main rights attaching to property is the right to share its shelter, its comfort and its privacy with others.”). Our Fourth Amendment decisions should reflect these complementary prerogatives.

A homedweller places her own privacy at risk, the Court’s approach indicates, when she opens her home to others, uncertain whether the duration of their stay, their purpose, and their “acceptance into the household” will earn protection. Ante , at 6. 1 It remains textbook law that “[s]earches and seizures inside a home without a warrant are presumptively unreasonable absent exigent circumstances.” Karo, 468 U. S., at 714–715. The law in practice is less secure. Human frailty suggests that today’s decision will tempt police to pry into private dwellings without warrant, to find evidence incriminating guests who do not rest there through the night. See Simien, The Interrelationship of the Scope of the Fourth Amendment and Standing to Object to Unreasonable Searches, 41 Ark. L. Rev. 487, 539 (1988) (“[I]f the police have no probable cause, they have everything to gain and nothing to lose if they search under circumstances where they know that at least one of the potential defendants will not have standing.”). Rakas tolerates that temptation with respect to automobile searches. See Ashdown, The Fourth Amendment and the “Legitimate Expectation of Privacy,” 34 Vand. L. Rev. 1289, 1321 (1981) (criticizing Rakas as “present[ing] a framework in which there may be nothing to lose and something to gain by the illegal search of a car that carries more than one occupant”); see also Rakas, 439 U. S., at 169 (White, J., dissenting) (“After this decision, police will have little to lose by unreasonably searching vehicles occupied by more than one person.”). I see no impelling reason to extend this risk into the home. See Silverman v. United States , 365 U. S. 505, 511 (1961) (“At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”). As I see it, people are not genuinely “secure in their … houses … against unreasonable searches and seizures,” U. S. Const., Amdt. 4, if their invitations to others increase the risk of unwarranted governmental peering and prying into their dwelling places.

Through the host’s invitation, the guest gains a reasonable expectation of privacy in the home. Minnesota v. Olson, 495 U. S. 91 (1990) , so held with respect to an overnight guest. The logic of that decision extends to shorter term guests as well. See 5 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment §11.3(b), p. 137 (3d ed. 1996) (“[I]t is fair to say that the Olson decision lends considerable support to the claim that shorter-term guests also have standing.”). Visiting the home of a friend, relative, or business associate, whatever the time of day, “serves functions recognized as valuable by society.” Olson, 495 U. S., at 98. One need not remain overnight to anticipate privacy in another’s home, “a place where [the guest] and his possessions will not be disturbed by anyone but his host and those his host allows inside.” Id., at 99. In sum, when a homeowner chooses to share the privacy of her home and her company with a short-term guest, the twofold requirement “emerg[ing] from prior decisions” has been satisfied: Both host and guest “have exhibited an actual (subjective) expectation of privacy”; that “expectation [is] one [our] society is prepared to recognize as ‘reasonable.’ ” Katz v. United States, 389 U. S. 347, 361 (1967) (Harlan, J., concurring). 2

As the Solicitor General acknowledged, the illegality of the host-guest conduct, the fact that they were partners in crime, would not alter the analysis. See Tr. of Oral Arg. 22–23. In Olson , for example, the guest whose security this Court’s decision shielded stayed overnight while the police searched for him. 495 U. S., at 93–94. The Court held that the guest had Fourth Amendment protection against a warrantless arrest in his host’s home despite the guest’s involvement in grave crimes (first-degree murder, armed robbery, and assault). Other decisions have similarly sustained Fourth Amendment pleas despite the criminality of the defendants’ activities. See , e.g., Payton , 445 U. S., at 583–603 (murder and armed robbery); Katz, 389 U. S., at 348–359 (telephoning across state lines to place illegal wagers); Silverman, 365 U. S., at 508–512 (gambling offenses). Indeed, it must be this way. If the illegality of the activity made constitutional an otherwise unconstitutional search, such Fourth Amendment protection, reserved for the innocent only, would have little force in regulating police behavior toward either the innocent or the guilty.

Our leading decision in Katz is key to my view of this case. There, we ruled that the Government violated the petitioner’s Fourth Amendment rights when it electronically recorded him transmitting wagering information while he was inside a public telephone booth. 389 U. S., at 353. We were mindful that “the Fourth Amendment protects people, not places,” id., at 351, and held that this electronic monitoring of a business call “violated the privacy upon which [the caller] justifiably relied while using the telephone booth,” id., at 353. Our obligation to produce coherent results in this often visited area of the law requires us to inform our current expositions by benchmarks already established. As Justice Harlan explained in his dissent in Poe v. Ullman, 367 U. S. 497, 544 (1961) :

“Each new claim to Constitutional protection must be considered against a background of Constitutional purposes, as they have been rationally perceived and historically developed . Though we exercise limited and sharply restrained judgment, yet there is no ‘mechanical yardstick,’ no ‘mechanical answer.’ The decision of an apparently novel claim must depend on grounds which follow closely on well-accepted principles and criteria. The new decision must take ‘its place in relation to what went before and further [cut] a channel for what is to come.’ ” Ibid . (quoting Irvine v. California, 347 U. S. 128, 147 (1954) (Frankfurter, J., dissenting)).

The Court’s decision in this case veers sharply from the path marked in Katz . I do not agree that we have a more reasonable expectation of privacy when we place a business call to a person’s home from a public telephone booth on the side of the street, see Katz, 389 U. S., at 353, than when we actually enter that person’s premises to engage in a common endeavor. 3

* <unicode value="8195"> * *

For the reasons stated, I dissent from the Court’s judgment, and would retain judicial surveillance over the warrantless searches today’s decision allows.


Notes

1 At oral argument, counsel for petitioner informed the Court that the lessee of the apartment was charged, tried, and convicted of the same crimes as respondents. Tr. of Oral Arg. 10–11.

2 In his concurring opinion, Justice Kennedy maintains that respondents here lacked “an expectation of privacy that society recognizes as reasonable,” ante, at 3–4, because they “established nothing more than a fleeting and insubstantial connection” with the host’s home, ante, at 4. As the Minnesota Supreme Court reported, however, the stipulated facts showed that respondents were inside the apartment with the host’s permission, remained inside for at least 2½ hours, and, during that time, engaged in concert with the host in a collaborative venture. See 569 N. W. 2d 169, 175–176 (1997). These stipulated facts—which scarcely resemble a stop of a minute or two at the 19th of 20 homes to drop off a packet, see ante, at 5—securely demonstrate that the host intended to share her privacy with respondents, and that respondents, therefore, had entered into the homeland of Fourth Amendment protection. While I agree with the Minnesota Supreme Court that, under the rule settled since Katz, the reasonableness of the expectation of privacy controls, not the visitor’s status as social guest, invitee, licensee, or business partner, 569 N. W. 2d, at 176, I think it noteworthy that five Members of the Court would place under the Fourth Amendment’s shield, at least, “almost all social guests,” ante, at 1 (Kennedy, J., concurring).

3 Justice Scalia’s lively concurring opinion deplores our adherence to Katz. In suggesting that we have elevated Justice Harlan’s concurring opinion in Katz to first place, see ante, at 7, Justice Scalia undervalues the clear opinion of the Court that “the Fourth Amendment protects people, not places,” 389 U. S., at 351. That core understanding is the leitmotif of Justice Harlan’s concurring opinion. One cannot avoid a strong sense of déjà vu on reading Justice Scalia’s elaboration. It so vividly recalls the opinion of Justice Black in dissent in Katz. See 389 U. S., at 365 (Black, J., dissenting) (“While I realize that an argument based on the meaning of words lacks the scope, and no doubt the appeal, of broad policy discussions and philosophical discourses . . . for me the language of the Amendment is the crucial place to look.”); id., at 373 (“[B]y arbitrarily substituting the Court’s language . . . for the Constitution’s language . . . the Court has made the Fourth Amendment its vehicle for holding all laws violative of the Constitution which offend the Court’s broadest concept of privacy.”); ibid. (“I will not distort the words of the Amendment in order to ‘keep the Constitution up to date’ or ‘to bring it into harmony with the times.’ ”). Justice Scalia relies on what he deems “clear text,” ante, at 7, to argue that the Fourth Amendment protects people from searches only in the places where they live, ante, at 6. Again, as Justice Stewart emphasized in the majority opinion in Katz, which stare decisis and reason require us to follow, “the Fourth Amendment protects people, not places.” 389 U. S., at 351.


TOP

Dissent

MINNESOTA, PETITIONER v. WAYNE
THOMAS CARTER

MINNESOTA v . MELVIN JOHNS

on writ of certiorari to the supreme court of minnesota


[December 1, 1998]

Justice Ginsburg , with whom Justice Stevens and Justice Souter join, dissenting.

The Court’s decision undermines not only the security of short-term guests, but also the security of the home resident herself. In my view, when a homeowner or lessor personally invites a guest into her home to share in a common endeavor, whether it be for conversation, to engage in leisure activities, or for business purposes licit or illicit, that guest should share his host’s shelter against unreasonable searches and seizures.

I do not here propose restoration of the “legitimately on the premises” criterion stated in Jones v. United States, 362 U. S. 257, 267 (1960) , for the Court rejected that formulation in Rakas v. Illinois, 439 U. S. 128, 142 (1978) , as it did the “automatic standing rule” in United States v. Salvucci, 448 U. S. 83, 95 (1980) . First, the disposition I would reach in this case responds to the unique importance of the home—the most essential bastion of privacy recognized by the law. <font scaps="1"> See United States v. Karo, 468 U. S. 705, 714 (1984) (“[P]rivate residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant … . Our cases have not deviated from this basic Fourth Amendment principle.”); Payton v. New York, 445 U. S. 573, 589 (1980) (“The Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home.”). Second, even within the home itself, the position to which I would adhere would not permit “a casual visitor who has never seen, or been permitted to visit, the basement of another’s house to object to a search of the basement if the visitor happened to be in the kitchen of the house at the time of the search.” Rakas, 439 U. S., at 142. Further, I would here decide only the case of the homeowner who chooses to share the privacy of her home and her company with a guest, and would not reach classroom hypotheticals like the milkman or pizza deliverer.

My concern centers on an individual’s choice to share her home and her associations there with persons she selects. Our decisions indicate that people have a reasonable expectation of privacy in their homes in part because they have the prerogative to exclude others. See id., at 149 (legitimate expectation of privacy turns in large part on ability to exclude others from place searched). The power to exclude implies the power to include. See, e.g., Coombs, Shared Privacy and the Fourth Amendment, or the Rights of Relationships, 75 Calif. L. Rev. 1593, 1618 (1987) (“One reason we protect the legal right to exclude others is to empower the owner to choose to share his home or other property with his intimates.”); Alschuler, Interpersonal Privacy and the Fourth Amendment, 4 N. Ill. U. L. Rev. 1, 13 (1983) (“[O]ne of the main rights attaching to property is the right to share its shelter, its comfort and its privacy with others.”). Our Fourth Amendment decisions should reflect these complementary prerogatives.

A homedweller places her own privacy at risk, the Court’s approach indicates, when she opens her home to others, uncertain whether the duration of their stay, their purpose, and their “acceptance into the household” will earn protection. Ante , at 6. 1 It remains textbook law that “[s]earches and seizures inside a home without a warrant are presumptively unreasonable absent exigent circumstances.” Karo, 468 U. S., at 714–715. The law in practice is less secure. Human frailty suggests that today’s decision will tempt police to pry into private dwellings without warrant, to find evidence incriminating guests who do not rest there through the night. See Simien, The Interrelationship of the Scope of the Fourth Amendment and Standing to Object to Unreasonable Searches, 41 Ark. L. Rev. 487, 539 (1988) (“[I]f the police have no probable cause, they have everything to gain and nothing to lose if they search under circumstances where they know that at least one of the potential defendants will not have standing.”). Rakas tolerates that temptation with respect to automobile searches. See Ashdown, The Fourth Amendment and the “Legitimate Expectation of Privacy,” 34 Vand. L. Rev. 1289, 1321 (1981) (criticizing Rakas as “present[ing] a framework in which there may be nothing to lose and something to gain by the illegal search of a car that carries more than one occupant”); see also Rakas, 439 U. S., at 169 (White, J., dissenting) (“After this decision, police will have little to lose by unreasonably searching vehicles occupied by more than one person.”). I see no impelling reason to extend this risk into the home. See Silverman v. United States , 365 U. S. 505, 511 (1961) (“At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”). As I see it, people are not genuinely “secure in their … houses … against unreasonable searches and seizures,” U. S. Const., Amdt. 4, if their invitations to others increase the risk of unwarranted governmental peering and prying into their dwelling places.

Through the host’s invitation, the guest gains a reasonable expectation of privacy in the home. Minnesota v. Olson, 495 U. S. 91 (1990) , so held with respect to an overnight guest. The logic of that decision extends to shorter term guests as well. See 5 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment §11.3(b), p. 137 (3d ed. 1996) (“[I]t is fair to say that the Olson decision lends considerable support to the claim that shorter-term guests also have standing.”). Visiting the home of a friend, relative, or business associate, whatever the time of day, “serves functions recognized as valuable by society.” Olson, 495 U. S., at 98. One need not remain overnight to anticipate privacy in another’s home, “a place where [the guest] and his possessions will not be disturbed by anyone but his host and those his host allows inside.” Id., at 99. In sum, when a homeowner chooses to share the privacy of her home and her company with a short-term guest, the twofold requirement “emerg[ing] from prior decisions” has been satisfied: Both host and guest “have exhibited an actual (subjective) expectation of privacy”; that “expectation [is] one [our] society is prepared to recognize as ‘reasonable.’ ” Katz v. United States, 389 U. S. 347, 361 (1967) (Harlan, J., concurring). 2

As the Solicitor General acknowledged, the illegality of the host-guest conduct, the fact that they were partners in crime, would not alter the analysis. See Tr. of Oral Arg. 22–23. In Olson , for example, the guest whose security this Court’s decision shielded stayed overnight while the police searched for him. 495 U. S., at 93–94. The Court held that the guest had Fourth Amendment protection against a warrantless arrest in his host’s home despite the guest’s involvement in grave crimes (first-degree murder, armed robbery, and assault). Other decisions have similarly sustained Fourth Amendment pleas despite the criminality of the defendants’ activities. See , e.g., Payton , 445 U. S., at 583–603 (murder and armed robbery); Katz, 389 U. S., at 348–359 (telephoning across state lines to place illegal wagers); Silverman, 365 U. S., at 508–512 (gambling offenses). Indeed, it must be this way. If the illegality of the activity made constitutional an otherwise unconstitutional search, such Fourth Amendment protection, reserved for the innocent only, would have little force in regulating police behavior toward either the innocent or the guilty.

Our leading decision in Katz is key to my view of this case. There, we ruled that the Government violated the petitioner’s Fourth Amendment rights when it electronically recorded him transmitting wagering information while he was inside a public telephone booth. 389 U. S., at 353. We were mindful that “the Fourth Amendment protects people, not places,” id., at 351, and held that this electronic monitoring of a business call “violated the privacy upon which [the caller] justifiably relied while using the telephone booth,” id., at 353. Our obligation to produce coherent results in this often visited area of the law requires us to inform our current expositions by benchmarks already established. As Justice Harlan explained in his dissent in Poe v. Ullman, 367 U. S. 497, 544 (1961) :

“Each new claim to Constitutional protection must be considered against a background of Constitutional purposes, as they have been rationally perceived and historically developed . Though we exercise limited and sharply restrained judgment, yet there is no ‘mechanical yardstick,’ no ‘mechanical answer.’ The decision of an apparently novel claim must depend on grounds which follow closely on well-accepted principles and criteria. The new decision must take ‘its place in relation to what went before and further [cut] a channel for what is to come.’ ” Ibid . (quoting Irvine v. California, 347 U. S. 128, 147 (1954) (Frankfurter, J., dissenting)).

The Court’s decision in this case veers sharply from the path marked in Katz . I do not agree that we have a more reasonable expectation of privacy when we place a business call to a person’s home from a public telephone booth on the side of the street, see Katz, 389 U. S., at 353, than when we actually enter that person’s premises to engage in a common endeavor. 3

* <unicode value="8195"> * *

For the reasons stated, I dissent from the Court’s judgment, and would retain judicial surveillance over the warrantless searches today’s decision allows.


Notes

1 At oral argument, counsel for petitioner informed the Court that the lessee of the apartment was charged, tried, and convicted of the same crimes as respondents. Tr. of Oral Arg. 10–11.

2 In his concurring opinion, Justice Kennedy maintains that respondents here lacked “an expectation of privacy that society recognizes as reasonable,” ante, at 3–4, because they “established nothing more than a fleeting and insubstantial connection” with the host’s home, ante, at 4. As the Minnesota Supreme Court reported, however, the stipulated facts showed that respondents were inside the apartment with the host’s permission, remained inside for at least 2½ hours, and, during that time, engaged in concert with the host in a collaborative venture. See 569 N. W. 2d 169, 175–176 (1997). These stipulated facts—which scarcely resemble a stop of a minute or two at the 19th of 20 homes to drop off a packet, see ante, at 5—securely demonstrate that the host intended to share her privacy with respondents, and that respondents, therefore, had entered into the homeland of Fourth Amendment protection. While I agree with the Minnesota Supreme Court that, under the rule settled since Katz, the reasonableness of the expectation of privacy controls, not the visitor’s status as social guest, invitee, licensee, or business partner, 569 N. W. 2d, at 176, I think it noteworthy that five Members of the Court would place under the Fourth Amendment’s shield, at least, “almost all social guests,” ante, at 1 (Kennedy, J., concurring).

3 Justice Scalia’s lively concurring opinion deplores our adherence to Katz. In suggesting that we have elevated Justice Harlan’s concurring opinion in Katz to first place, see ante, at 7, Justice Scalia undervalues the clear opinion of the Court that “the Fourth Amendment protects people, not places,” 389 U. S., at 351. That core understanding is the leitmotif of Justice Harlan’s concurring opinion. One cannot avoid a strong sense of déjà vu on reading Justice Scalia’s elaboration. It so vividly recalls the opinion of Justice Black in dissent in Katz. See 389 U. S., at 365 (Black, J., dissenting) (“While I realize that an argument based on the meaning of words lacks the scope, and no doubt the appeal, of broad policy discussions and philosophical discourses . . . for me the language of the Amendment is the crucial place to look.”); id., at 373 (“[B]y arbitrarily substituting the Court’s language . . . for the Constitution’s language . . . the Court has made the Fourth Amendment its vehicle for holding all laws violative of the Constitution which offend the Court’s broadest concept of privacy.”); ibid. (“I will not distort the words of the Amendment in order to ‘keep the Constitution up to date’ or ‘to bring it into harmony with the times.’ ”). Justice Scalia relies on what he deems “clear text,” ante, at 7, to argue that the Fourth Amendment protects people from searches only in the places where they live, ante, at 6. Again, as Justice Stewart emphasized in the majority opinion in Katz, which stare decisis and reason require us to follow, “the Fourth Amendment protects people, not places.” 389 U. S., at 351.