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Why Giving Prior Notice Of A Privacy Invasion Does Not Mitigate Its Seriousness


Wednesday, Jan. 02, 2002

Last month, in United States v. Knights, the Supreme Court held that a police officer may search a probationer's home on the basis of reasonable suspicion. This will not sound to most ears like a radical decision, and in nearly all respects it isn't. Moreover, the probationer in the case, Mark James Knights, who apparently kept materials for explosives in his home, was hardly a sympathetic character.

Within its opinion, however, the Court did make one argument the implications of which could be quite significant. If taken to its logical conclusion, the argument could authorize far-reaching invasions of privacy that would affect law-abiding citizens, not just convicts on probation.

The Facts of United States v. Knights

Knights's California drug conviction led to a sentence of probation. The probation order, which Knights signed, required him to "[s]ubmit his person, property, place of residence, vehicle, personal effects, to search at anytime, with or without a search warrant, warrant of arrest or reasonable cause by any probation officer or law enforcement officer." In short, it allowed a search to be conducted without any cause whatsoever.

Nevertheless, when a detective looked through Knights's home, he did, in fact, have reasonable suspicion to believe that Knights had engaged in several crimes, including arson. The detective's search then revealed -- among other things -- a detonation cord, ammunition, liquid chemicals, and instruction manuals on chemistry and electrical circuitry.

The question presented to the Supreme Court was whether the search of Knights violated the Fourth Amendment. If it did, then none of the evidence would be admissible at the respondent's criminal trial. In a unanimous ruling, the Court held that it did not.

Knights's Holding: Probationers' Diminished Privacy Expectations

The idea that probationers have a reduced constitutional expectation of privacy relative to the rest of the population is not an innovation of the 2001 term. In 1987, the Court in Griffin v. Wisconsin upheld a regulation that allowed probation officers to search probationers based on "reasonable grounds" to believe contraband is present.

Knights, however, goes further than Griffin did. Knights not only recognizes the authority to search probationers without a warrant or probable cause, but makes clear that this authority extends beyond matters related to probation itself.

The difference is this: Griffin was searched for evidence of a probation violation, whereas Knights was searched for evidence of further crimes. Still, the distinction between Griffin and Knights is subtle, and it is hardly surprising, given other precedents, that the Court decided that nothing should turn on it.

Notice and Privacy: The Dangerous Implications of the Knights Opinion

Up to this point, the ruling in Knights is relatively innocuous -- and thus has rightly attracted relatively little commentary. But Knights goes further, in a way that few commentators have noticed and that makes the opinion a potentially dangerous precedent.

In ruling as it did in Knights, the Court did not rest exclusively on the probationer's status, one that makes him simultaneously more dangerous and less deserving of rights than others, by virtue of his criminal conviction. Rather, the Justices presented another argument in defense of their ruling -- one that could extend to all citizens, not only those on probation.

The Court could have concluded that by signing the probation order and thus accepting the conditions of probation, Knights had consented to any searches that followed. The Court decided, however, not to reach this question.

Instead, the Justices relied on the totality of the circumstances -- including the fact that Knights knew the contents of the probation order -- to find the search reasonable within the meaning of the Fourth Amendment. The Court reasoned that because Knights had signed the order, he had received advance notice that a search could occur.

The Court explained the argument as follows: "The probation order clearly expressed the search condition and Knights was unambiguously informed of it. The probation condition thus significantly diminished Knights's reasonable expectation of privacy."

In other words, according to the Court, the very fact that Knights received warning of the invasions to come -- searches of his person, property, place of residence, vehicle, or personal effects -- rendered his right to expect privacy from law enforcement more limited than it would otherwise have been.

When Notice Is Helpful, And When It Is Useless

Does this logic make sense? Only in certain situations.

In some contexts, warnings of this sort do help to preserve privacy. For example, if I know that bag searches will take place at the entrance to the Red Cross, then I can leave personal items at home when I go to donate blood. Similarly, if you know there is a video camera located in your building's elevator, you can refrain from behavior that might embarrass you while traveling up to your floor.

Knowledge, in these examples, gives us the power to limit our own exposure. We can redistribute our private items and actions in ways that avoid the scrutiny that we know is coming at a particular time or place.

This principle has less and less strength, however, as the scope of warned intrusions expands. When the entrance to the Red Cross and the elevator become the inside of our homes, and the timing becomes open-ended, notice ceases to have much utility.

We Need Privacy Itself, Not Just Notice of Its Violation

Consider the following illustration. Attorney General John Ashcroft announces on national television that the FBI will install video cameras in the homes and offices of every person in the United States. To ensure our safety against potential enemies of our nation, police officers will be assigned to listen and watch us live our lives inside our homes and at work.

This warning does not enable us to preserve our privacy, because there is virtually no place or time to which to distribute what we have lost. We cannot avoid spending the lion's share of our waking hours at home and at work. And the places and times in which we might be able to redistribute our private activities will be few and far between.

When we simply have no solitude -- or too little to enable privacy -- the knowledge that this is so cannot mitigate the loss. It can only serve to make us self-conscious in ways inimical to the privacy essential to human flourishing.

Let us hope that the Court will not extend the notice argument beyond the narrow circumstance of probationers' privacy. Outside of this area, the government ought to respect the personal boundaries of every individual. That means allowing him or her to choose at times to withdraw from public life, recoup and put down the mask that each one of us wears, to a greater or lesser extent, when we present ourselves to the outside world. The Constitution itself gives the government notice of this right.

Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark.

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