United States v. Karo/Concurrence O'Connor

Justice O'Connor, with whom Justice Rehnquist joins, concurring in part and concurring in the judgment.

I join Parts I, II, and IV of the Court's opinion, and agree with substantial portions of Part III as well.

I agree with the Court that the installation of a beeper in a container with the consent of the container's present owner implicates no Fourth Amendment concerns. The subsequent transfer of the container, with the unactivated beeper, to one who is unaware of the beeper's presence is also unobjectionable. It is when the beeper is activated to track the movements of the container that privacy interests are implicated.

In my view, however, these privacy interests are unusually narrow--narrower than is suggested by the Court in Part III of its opinion. If the container is moved on the public highways, or in other places where the container's owner has no reasonable expectation that its movements will not be tracked without his consent, activation of the beeper infringes on no reasonable expectation of privacy. United States v. Knotts, 460 U.S. 276 (1983). In this situation the location of the container defeats any expectation that its movements will not be tracked.

In addition, one who lacks ownership of the container itself or the power to move the container at will, can have no reasonable expectation that the movements of the container will not be tracked by a beeper within the container, regardless of where the container is moved. In this situation the absence of an appropriate interest in the container itself defeats any expectation of privacy in the movements of the container, even when the container is brought into places where others may have a privacy interest. Cf. Rawlings v. Kentucky, 448 U.S. 98 (1980); United States v. White, 401 U.S. 745 (1971); Lopez v. United States, 373 U.S. 427 (1963).

I
As a threshold matter it is clear that the mere presence of electronic equipment inside a home, transmitting information to government agents outside, does not, in and of itself, infringe on legitimate expectations of privacy of all who have an expectation of privacy in the home itself. For example, United States v. White, supra, permitted the use of information obtained from within a home by means of a microphone secreted on a Government agent. We must therefore look for something more before concluding that monitoring of a beeper in a closed container that is brought into a home violates the homeowner's reasonable expectations of privacy.

The Court holds that the crucial additional factor is the container owner's consent, or lack of consent, to the installation of the beeper. If consent is given, movement of the container into the home violates no reasonable expectation of privacy of the homeowner. If the container owner's consent is not obtained, the Court holds that the homeowner's expectations of privacy in the home are violated when the beeper enters and is monitored from inside the home, even if the homeowner has no interest or expectation of privacy in the container itself. In my view this analysis is somewhat flawed.

First, the test proposed by the Court seems squarely inconsistent with Rawlings v. Kentucky, supra. In Rawlings this Court approved the admission of drugs seized from a woman's purse because her male companion did not prove that he had a legitimate expectation of privacy in the purse. Indeed, the male companion lacked standing to challenge the search even though he claimed ownership of the drugs found in the purse. Had the purse contained a beeper that for some reason was itself evidence of a crime, only the owner of the purse, not her companion, could have objected to the admission of the beeper itself as evidence. A search of a closed container that occurs without the consent of the container's owner does not give to every defendant a right to suppress incriminating evidence found in the container.

The Court's test for when monitoring a beeper inside a guest's closed and private container violates a homeowner's expectations of privacy is, moreover, difficult to reconcile with United States v. Matlock, 415 U.S. 164 (1974), and many other similar decisions that address expectations of privacy in closed containers. A homeowner who entirely lacks access to or control over a guest's closed container would presumably lack the power to consent to its search under the standards articulated by this Court in United States v. Matlock, supra. But surely a homeowner cannot simultaneously have so little interest in a container that his consent to its search is constitutionally ineffective, and have so great an interest in the container that its search violates his constitutional rights. Standing to object to the search of a container, and power to give effective consent to the search, should go hand in hand.

Finally, and most fundamentally, it is difficult to see how a homeowner's expectations of privacy can depend in any way on an invitee's actual status as a government informant. Expectations are formed on the basis of objective appearances, not on the basis of facts known only to others. Stated another way, the homeowner's expectation that a container does not contain a beeper cannot depend on the container owner's belief that the container is beeper-free. The homeowner's expectation of privacy is either inherently reasonable or it is inherently unreasonable. A guest's undisclosed status as a government informant cannot alter the reasonableness of that expectation.

II
I would, therefore, use a different and generally narrower test than the one proposed by the Court for determining when an activated beeper in a closed container violates the privacy of a homeowner into whose home the container is moved. I would use as the touchstone the defendant's interest in the container in which the beeper is placed. When a closed container is moved by permission into a home, the homeowner and others with an expectation of privacy in the home itself surrender any expectation of privacy they might otherwise retain in the movements of the container--unless it is their container or under their dominion and control.

My reasons for preferring this approach require some elaboration. The principles for assessing a single person's privacy interests in a particular place, location, or transmission system such as a telephone line, are reasonably well settled. The Court relies on these principles--particularly on the strong presumption of privacy in the home--to analyze the beeper case presented here. But the movement of a guest's closed container into another's home involves overlapping privacy interests. When privacy interests in particular locations are shared by several persons, assessing expectations of privacy requires a more probing analysis.

A privacy interest in a home itself need not be coextensive with a privacy interest in the contents or movements of everything situated inside the home. This has been recognized before in connection with third-party consent to searches. A homeowner's consent to a search of the home may not be effective consent to a search of a closed object inside the home. Consent to search a container or a place is effective only when given by one with "common authority over or other sufficient relationship to the premises or effects sought to be inspected." United States v. Matlock, 415 U.S., at 171. "Common authority...rests...on mutual use of the property by persons generally having joint access or control for most purposes...." Id., at 171, n. 7.

When a person has no privacy interest whatsoever in a particular container, place, or conversation, as in Rawlings v. Kentucky, 448 U.S. 98 (1980), Fourth Amendment analysis is straightforward--the person lacks standing to suppress the evidence obtained pursuant to an unlawful search of the place, or unlawful monitoring of the conversation. Thus, a third person, who never used a particular telephone line, could not suppress, at least on Fourth Amendment grounds, evidence obtained by an unlawful wiretap of conversations between two other persons.

Another relatively easy case arises when two persons share identical, overlapping privacy interests in a particular place, container, or conversation. Here both share the power to surrender each other's privacy to a third party. Persons who share access to closed containers also share the power to consent to a search; only if neither consents do both retain the right to object to the fruits of an unlawful search. Similarly, two people who speak face to face in a private place or on a private telephone line both may share an expectation that the conversation will remain private, Katz v. United States, 389 U.S. 347 (1967), but either may give effective consent to a wiretap or other electronic surveillance, United States v. White, 401 U.S. 745 (1971). One might say that the telephone line, or simply the space that separates two persons in conversation, is their jointly owned "container." Each has standing to challenge the use as evidence of the fruits of an unauthorized search of that "container," but either may also give effective consent to the search.

A more difficult case arises when one person's privacy interests fall within another's, as when a guest in a private home has a private container to which the homeowner has no right of access. The homeowner who permits entry into his home of such a container effectively surrenders a segment of the privacy of his home to the privacy of the owner of the container. Insofar as it may be possible to search the container without searching the home, the homeowner suffers no invasion of his privacy when such a search occurs; the homeowner also lacks the power to give effective consent to the search of the closed container. For example, evidence obtained from an electronic device in the container that transmitted information only about the contents of the container could not be suppressed by the homeowner unless he also had a privacy interest in the container, even if the information were transmitted from inside the home.

The beeper in this case, however, transmitted information about the location, not the contents, of the container. Conceivably, location in a home is an attribute partly of the home and partly of the container itself. But the primary privacy interest is not the homeowner's. By giving consent to another to move a closed container into and out of the home the homeowner has effectively surrendered his privacy insofar as the location of the container may be concerned, or so we should assume absent evidence to the contrary. In other words, one who lacks dominion and control over the object's location has no privacy interest invaded when that information is disclosed. It is simply not his secret that the beeper is disclosing, just as it is not his privacy that would be invaded by a search of the container whose contents he did not control.

III
In sum, a privacy interest in the location of a closed container that enters a home with the homeowner's permission cannot be inferred mechanically by reference to the more general privacy interests in the home itself. The homeowner's privacy interests are often narrower than those of the owner of the container. A defendant should be allowed to challenge evidence obtained by monitoring a beeper installed in a closed container only if (1) the beeper was monitored when visual tracking of the container was not possible, so that the defendant had a reasonable expectation that the container's movements would remain private, and (2) the defendant had an interest in the container itself sufficient to empower him to give effective consent to a search of the container. A person's right not to have a container tracked by means of a beeper depends both on his power to prevent visual observation of the container and on his power to control its location, a power that can usually be inferred from a privacy interest in the container itself. One who lacks either power has no legitimate expectation of privacy in the movements of the container.

For the reasons stated in Part IV of Justice White's opinion, I agree that the decision below must be reversed.