Peter Winn, Katz and the Origins of the “Reasonable Expectation of Privacy” Test

Peter Winn, Katz and the Origins of the “Reasonable Expectation of Privacy” Test

Comment by: Orin Kerr

PLSC 2009

Published version available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1291870

Workshop draft abstract:

The “reasonable expectation of privacy” test, formulated in the 1967 case of Katz v. United States,  represents a great touchstone in the law of privacy.  Katz is important not only because the test is used to determine when a governmental intrusion constitutes a “search” under the Fourth Amendment; but because the test has also found its way into state common law, statutes and even the laws of other nations.

This article addresses the historical background of the framing of that decision, argues that the credit for the development of the famous test belongs to counsel for Charles Katz, Harvey (now Judge) Schneider, who presented the test for the first time in his oral argument, not in the briefs.  The majority opinion’s  failure to mention the test is explained by the fact that the law clerk responsible for drafting Justice Stewart’s majority opinion missed the oral argument.  The test, of course, was articulated in Justice Harlan’s short concurring opinion – establishing him as not only a great jurist, but someone who knew how to listen.  Finally, the article argues that the famous test was intended by Justice Harlan to represent more of an evolutionary modification of the previous trespass standard, not a revolutionary new approach to the law – in fact, exactly how subsequent courts understood and applied the standard.