Fourth Amendment Protection: The Homeless

Fourth Amendment Protection: The Homeless and Expectations of Privacy The Fourth Amendment to the United States Constitution gives to American a freedom from unreasonable search and seizure. Over the years, this has been interpreted to include various rights to privacy. In particular, in the case of Katz v.

U.S., the Supreme Court viewed the Fourth Amendment as creating a right to an "expectation of privacy." Individuals, as well as places, were secure from eavesdropping, as long as the individuals concerned might reasonably expected their conversations or activities to be free from government recording. In Katz v. U.S. man was illegally wiretapped while speaking on the phone in a public telephone booth. The listening device had been placed on the exterior of the booth and so constituted an unreasonable breach of his expectation to privacy.

Writing the majority opinion, Justice Harlan noted a distinction between the public and private spheres - "a man's home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the 'plain view' of outsiders are not 'protected' because no intention to keep them to himself has been exhibited.

On the other hand, conversations in the open would not be protected from being overheard, for the expectation of privacy under the circumstances would be unreasonable." Phone booths are intended to afford space for private conversations.. thus, the ruling that the wiretapping of Katz was unlawful. However, the majority opinion has created controversy over the precise boundaries between public and private, especially where notions of "home" differ among individuals. The homeless typically live their lives in public. Their personal belongings move with them in shopping carts or bags.

They sit exposed in boxes on public sidewalks or lots. The question remains - can the effects of the homeless be subject to search and seizure on probable cause alone, or does the storage place of these items constitute the inviolable home of the homeless individual? Much of the argument surrounding this issue would appear to revolve around the definition of "home" as well as what would constitute the "interior" and "exterior" of that home.

Presuming the exterior of a home, to be a place exposed to public view, things placed in such an area would appear to be objects exposed to public view. Of course, private property does not consist of the interior of buildings. In examining whether objects had been improperly seized, or conversations overheard, in a "regular" home, one might consider whether the private area of the home also included outdoor property. Certainly, objects or activities that occur within a house, but are observable from the outside i.e.

are normally protected form unreasonable police interference or observation. In McDonald v. United States (1948) the Supreme Court found that police had acted unlawfully by confirming their suspicions of the existence of gambling ring by peering through a transom window and observe the activities inside a room.

Wrote Justice Douglas of the reach of the Fourth Amendment, "[it] marks the right of privacy as one of the unique values of our civilization and, with few exceptions, stays the hands of the police unless they have a search warrant issued by a magistrate on probable cause supported by oath or affirmation." transom is too high for almost anyone too high see through. It is; therefore, a window which cannot not normally be used to view people seated in a room.

Homeless people, like other people, might take precautions to prevent their personal effects from being viewed by other individuals. Often, the homeless cover their personal possessions with a blanket, or newspapers, or conceal them inside boxes. One could view these as hiding places that are extensions of the homeless individual's "residence." Further, even if the homeless person's places of concealment cannot be construed as "rooms" in a typical dwelling, one can take into consideration whether these same goods are normally - or ever - open for general inspection.

A person may place an object inside a bag or box and then bring that bag or box with them to a public place. The existence of the outer receptacle is known to any person who passes by, but its contents are not. However, if that same receptacle is place din a location where it might be touched, felt, or moved by other individuals, a sense of its contents is then possibly conveyed to members of the public. In Bond v.

United States (2000), a border patrol agent boarded a bus and began feeling bags and packages that had been placed in the storage area above the seats. Squeezing one man's bag, he though he detected the presence of drugs. The officer searched inside the bag and discovered the illicit material. Though the defendant's counsel argued that the squeezing of the bag represented an unlawful case of search and seizure, the court felt otherwise.

Wrote Justice Rehnquist for the majority, Of course, the agent's purpose here -- searching for drugs -- differs dramatically from the intention of a driver or fellow passenger who squeezes a bag in the process of making more room for another parcel. But in determining whether an expectation of privacy is reasonable, it is the effect, not the purpose that matters. All individuals storing their goods in such a manner and in such a place have a reasonable expectation that their bags may be "squeezed" by other persons.

The question with the homeless person is whether or not his or her goods are made available for inspection. One might suppose that a homeless person does not expose to public contact those objects that are considered private or personal. The goods stored in a bag or box that is kept out of the hands of others is clearly a private object. The homeless person is doing everything she or he can to ensure the privacy of the object.

An additional consideration in the case of a homeless person's private goods might include whether such private goods are ever left unattended. The homeless person might place their private possessions out of view in a shopping cart or box that is left - though not truly abandoned - in an otherwise public area. Should these goods be considered open for public inspection simply because they are not being watched over at the moment? The issue is complex and again appears to hinge on precise definitions of private space.

A non-homeless person who accidentally, or even intentionally, places a bag on a public sidewalk before entering a store, for example, might reasonably expect that another individual would search this bag to determine ownership. The bag might contain clothing of a particular description. The searcher of the bag might then enter the store asking if anyone had left a bag containing such clothing. This too would appear to furnish an example of Bond v. United States in that anyone could be expected to have access to the items.

Yet, a homeless person's cart or box filled with effects is recognized, by most people, as belonging to a homeless individual. Most people would probably not rifle through the goods. Still the goods appear open for public inspection as not everyone would recognize the goods as belonging to a homeless person. A more difficult example might involve the idea of a homeless person leaving goods at a site that serves a meeting place, or encampment of homeless individuals.

Supposing other homeless persons to be present, they would probably respect the privacy of the individual's possessions, or warn off other persons seeking to go through the individual's personal effects. Then again, not all homeless people might respect the temporarily absent individual's privacy nor help to guard that privacy against intruders.

An interesting point; nonetheless, might be that private police officers - those who are not actually employed by a government agency - normally have to call in regular police to deal with homeless persons, as they do not readily "submit to the their instruction." This together with Supreme Court rulings that define the Fourth Amendment as specifically applicable to government actions of search and seizure, and that government employees include those who are, "performing a traditional governmental function" would appear to imply that the goods of homeless persons cannot normally be searched without government assistance.

In this case, the goods of homeless persons.