Amicus Curiae Brief — Minnesota v. Carter

Supreme Court, U.S

FILED

WAY 34 1998

No. 97-1147

THE CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1997

STATE OF MINNESOTA, PETITIONER

D.

WAYNE THOMAS CARTER

ON WRIT OF CERTIORARI

TO THE MINNESOTA SUPREME COURT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

SETH P. WAXMAN

Solicitor General

Counsel of Record

JOHN C. KEENEY

Acting Assistant Attorney

General

MICHAEL R. DREEBEN

Deputy Solicitor General

JEFFREY A. LAMKEN

Assistant to the Solicitor

General

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether a person whose sole connection to an

apartment is that he packaged drugs there as an

invitee of its lessee for about two and one half hours

has a reasonable expectation of privacy in the apart-

ment that permits him to claim the protection of the

Fourth Amendment.

2. Whether a police officer’s observation of the

interior of an apartment from a grassy common area

immediately outside the apartment, through gaps

in the apartment’s venetian blinds, constitutes a

“search” within the meaning of the Fourth Amend-

ment.

TABLE OF CONTENTS

Argument:

The officer’s observation of respondents in the

apartment in which they were packaging drugs

did not violate their Fourth Amendment rights .....

I. Short-term invitees do not have a legitimate

expectation of privacy in the homes of others ...

A. Reasonable expectations of privacy in a

place require more than a brief or limited

association with that place

B. Society does not recognize the privacy ex-

pectations of invitees other than overnight

K A

C. Respondents were mere invitees with no

reasonable expectation of privacy in the

II. Unaided observation of a dwelling from a com-

mon area open to the public is not a “search”

within the meaning of the Fourth Amendment

A. Unaided observation from a public or com-

MON area is NOt a SEATCH ...........ccceceeeeeeeeeeeeee

B. “Extraordinary measures” to reach a pub-

lie place do not convert unaided observa-

F

(II)

10

11

16

19

8

IV V

TABLE OF AUTHORITIES Cases—Continued: Page

United States v. Dunn, 480 U.S. 294 (1987) .......... 9, 23,

24, 25, 26, 27, 28, 29

Cases: Page United States v. Eisler, 567 F.2d 814 (8th Cir.

Alderman v. United States, 394 U.S. 165 (1969) . 10, 11 —TZ—8—8xmxmꝛmĩm cc — —ů ———— 27

Bivens v. Six Unknown Named Agents of the Fed- United States v. Fields, 113 F.3d 313 (2d Cir.),

eral Bureau of Narcotics, 403 U.S. 388 (1971) ....... 24 cert. denied, 118 S. Ct. 434 (1997) . . 27

California v. Ciraolo, 476 U.S. 207 (1986) ............ 9, 22, United States v. Grandstaff, 813 F.3d 1353

23, 25, 26, 28, 29 e 17

California v. Greenwood, 486 U.S. 35 (1988) ........ 24, 26 United States v. Hicks, 978 F.2d 722 (D.C. Cir.

Chapman v. United States, 365 U.S. 610 (1961) 14 1 . 18

Florida v. Riley, 488 U.S. 445 (1989) .............. 22, 23, 25, United States v. Jacobsen, 466 U.S. 109 (1984) ....... 27

26, 28, 29 United States v. Jeffers, 342 U.S. 48 (1951) 14

Hester v. United States, 265 U.S. 57 (1924) .......... 23-24 United States v. Maddox, 944 F.2d 1223 (6th Cir.

Horton v. California, 496 U.S. 128 (1990) ............. 28-29 r 17

Johnson v. United States, 333 U.S. 10 (1948) 14 United States v. McNeal, 955 F.2d 1067 (6th Cir.

Jones v. United States, 362 U.S. 257 (1960) ......... 8, 12, — T ᷣ uã2ͤ˖ß—ů— wum—ͤ— 17

14, 15, 16, 19 United States v. Nohara, 3 F.3d 1239 (9th Cir.

Katz v. United States, 389 U.S. 347 (1967) ........ 11, 12, rr / (( 27

13, 22 United States v. Padilla, 508 U.S. 77 (1993) 19, 21

McDonald v. United States, 335 U.S. 451 (1948) .... 14 United States v. Payner, 447 U.S. 727 (1980) ......... 12

Minnesota v. Olson, 495 U.S. 91 (1990) .......... 4, 8. 11, United States v. Van Leeuwen, 397 U.S. 249

14, 15, 16, 17, 19 . 13

Oliver v. United States, 466 U.S. 170 (1984) 9, 22, 23 United States v. Wiley, 847 F.2d 480 (8th Cir.

Payton v. New York, 445 U.S. 573 (1980) 22 RRS FS SE AS RENE S SIGE As ae Fe OC 18

Rakas v. Illinois, 439 U.S. 128 (1978) ............. 4, 8, 11, — and chatter

12, 13, 14, 18, 20 .

Rawlings v. Kentucky, 448 U.S. 98 (19800 . 18 1 A Ar . See aT passim

Stoner v. California, 376 U.S. 483 (1964) .. 8. 13, 14, 16 — oer are 5 — neee 24

Terry v. Martin, 120 F.3d 661 (7th Cir. 1997) ......... 18 subdiv. 1(1) ~

Texas v. Brown, 460 U.S. 730 (1983) ...... 29 Fr 2

United States." Acosta, 965 F.2d 1248 dd ci — 7

1899 ——— j —̃ —— „ 27

United States v. Concepcion, 942 F.2d 1170 (7th Miscellaneous:

, ] 3 27 Webster New International Dictionary of the

United States v. Cruz-Pagan, 537 F.2d 554 (Ist English Language (2d ed. Unabridged 1958) 2

—k»Kñͥk!᷑ 27

In the Supreme Court of the United States

OCTOBER TERM, 1997

No. 97-1147

STATE OF MINNESOTA, PETITIONER

.

WAYNE THOMAS CARTER

ON WRIT OF CERTIORARI

TO THE MINNESOTA SUPREME COURT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case presents two questions: First, whether a

person who has no connection to an apartment other

than having used it, for approximately two and one

half hours, to package illegal narcotics as an invitee

of the lessee, has a legitimate expectation of privacy

in the apartment within the meaning of the Fourth

Amendment; and second, whether it is a Fourth

Amendment “search” for a law enforcement officer to

observe narcotics activities within an apartment from

a grassy, common area immediately outside the apart-

ment’s window. The United States has a law enforce-

ment interest in the resolution of both questions.

(1)

2

STATEMENT

After trial in Minnesota District Court for the

County of Dakota, respondents Wayne Thomas Car-

ter and Melvin Johns were convicted of conspiracy to

possess cocaine with intent to sell it and aiding and

abetting the possession of cocaine, in violation of

Minn. Stat. Ann. $§ 152.021, subdiv. 1(1), 152.021, sub-

div. 2(1), and 609.05 (West 1989). The Minnesota Court

of Appeals affirmed the convictions, and the Supreme

Court of the State of Minnesota reversed.

1. At approximately 8 p.m. on May 15, 1994, Officer

Jim Thielen was approached by an individual who said

that he had been walking by the window of an

apartment nearby and had seen several people bagging

white powder inside. J.A. A8, E1-E2, G7-G9. The indi-

vidual also stated that a blue, four-door Cadillac, with

Illinois license plate number SGD-896, was being used

by the apartment’s occupants. J.A. A8, E2, G9-G10.

Thielen went to the apartment that the individual

had described. Although the venetian blinds covering

the windows were drawn, there were gaps in the

blinds, and the lights inside the apartment were on.

J. A. A9, E2, G12-G13, 16, 19-110.’ Thielen left the com-

mon sidewalk and walked across a grassy area, which

was common to all tenants in the apartment complex,

to a point about 12 to 18 inches from the window. J.A.

E2, E10. From that location, Thielen could see the

A venetian blind is a “blind (capable of being raised or low-

ered) having numerous thin parallel slats placed horizontally

one above another which are capable of being set simultane-

ously at any desired angle to admit varying amounts of light or

air, or of being made to overlap one another to exclude light,

etc.” Webster's New International Dictionary of the English

Language 2827 (2d ed. Unabridged 1958).

3

occupants of the apartment through the gaps in

the blinds. J. A. A9, E2, E10, E13, G12-G13. Thielen

spent about 15 minutes watching as respondents and

a woman, who was later identified as Kimberly

Thompson (the apartment’s only lessee), sat at a

kitchen table and bagged what appeared to be narcot-

ies. J. A. A9, E2-E3, G13-G14,’

Thielen then left to meet with the individual who

had told him about respondents' activities and to ar-

range for a search warrant. Before the warrant was

obtained, however, another police officer saw respon-

dents get into the Cadillac the informant had de-

scribed. The police stopped the car and asked respon-

dents to get out; the officers then saw, in plain view

on the floor of the car, a black zippered pouch and a

handgun. After respondents were arrested, the police

obtained a search warrant and searched both the

car and the zippered case; they found (among other

things) scales, pagers, and 40 grams of a white mix-

ture containing cocaine. J.A. A9, E3, E12, G15-G23.

2. Before trial, respondents moved to suppress

evidence on the ground that Thielen’s initial observa-

tion of the apartment was an unlawful search. The

Minnesota District Court for Dakota County denied

the motion. J.A. E1-E17.

First, the court concluded that respondents lacked

“standing” because they had no “legitimate expecta-

tion of privacy” in the apartment. J. A. E7-ES. Rely-

2 Respondent Carter was measuring out small quantities of a

white powder and passing them to respondent Johns. Johns,

who was wearing bedroom slippers, would in turn put the pow-

der in a plastic bag and pass it to Thompson. Thompson would

then cut off the ends of the bag and put it on a pile on the

kitchen table. J.A. A9, E2, G13-G14.

4

ing on this Court’s decisions in Rakas v. Illinois, 439

U.S. 128 (1978), and Minnesota v. Olson, 495 U.S. 91

(1990), the court acknowledged that an individual may

have a legitimate expectation of privacy in the home

of another. J. A. E7-ES. In Olson, the trial court

noted, this Court held that an overnight guest has a

legitimate expectation of privacy in his host’s home.

Here, however, respondents presented no evidence

that their status “in Ms. Thompson’s apartment was

similar to Olson or that [their] status was one that

was envisioned to be protected under the Olson ra-

tionale.” J.A. E8. “No evidence was presented at the

hearing” that respondents “had lived at this apart-

ment long term, wlere] overnight guest(s], or wlere!

related to the leaseholder.” J. A. E7. Instead, t jhe

only evidence presented showed“ that respondents

were residents of another eity and that they “had

been at the apartment for a period of a few hours on

May 15, 1994, during the police observation.” Tbid.

“Without more evidence,” the court explained, it could

not “conclude that [respondents’] expectation of pri-

vacy in the apartment was based upon ‘understand-

ings that are recognized and permitted by society,’

and therefore legitimate.” J. A. ES.

The court also concluded that, even setting aside

respondents’ lack of a protected privacy interest in

the apartment, Thielen’s observations did not consti-

tute a search within the meaning of the Fourth

Amendment because they “were made from a common

area opened to the public and other occupants of the

apartment complex” and “were limited to articles in

plain sight” through “gaps in the blinds.” J. A. Eg.

Although the grassy area from which Thielen made

his observations was 12 to 18 inches from the window,

the court explained, it did not constitute “curtilage”

5

of the apartment but rather was “common to all resi-

dents” of the apartment building. J.A. E10. There

were no fences, trees, or bushes that might block

public entry into the area where Thielen stood, or

otherwise prevent public viewing through the win-

dow. Ibid. To the contrary, the photographic exhibits

showed that “the public . access to the area

directly in front of Ms. Thompson’s windows to store

bicycles,” and would “leave the common sidewalk

* * * to deposit their bicycles” near the area where

Thielen stood. Ibid; see J. A. I2, 14, Because Thielen

was standing in a comme n area, open to the public,

rather than in the cu vilage, the court concluded

that “the officer’s observations did not constitute a

search.” J. A. E12.

3. Respondents appealed, and separate panels of the

Minnesota Court of Appeals affirmed. As to Carter,

the appellate court agreed with the trial court that he

lacked the legitimate expectation of privacy in the

apartment required to support a Fourth Amendment

challenge. J.A. C4-C6. As to Johns, the court found

no need to address “standing,” because it concluded

that Thielen’s observations did not violate the Fourth

Amendment since they were made from a common

area open to the public. J.A. D3-D5.

4. Respondents appealed and the Minnesota Su-

preme Court revere d. The court first resolved Car-

ter's appeal, J.A. Al-A28, and then relied on its rea-

soning to reverse the judgment in Johns’ case, J. A.

Bl.

a. In reversing Carter’s conviction, the court

stated that whether an individual has a legitimate

expectation of privacy to support a Fourth Amend-

ment claim depends on “the nature of the relationship

between the property possessor and the person

6

alleging the privacy interest in the property. If the

relationship is the type that society recognizes as

valuable, then we will find standing.” J.A. Al8. In

this case, the court concluded, the facts “probably fail

to establish” that Carter was Thompson’s “guest” in

the apartment. J.A. Al7. But, the court concluded,

society would still respect as reasonable Carter’s

expectation of privacy. Ibid. The court explained

that Carter was on the premises with the lease-

holder’s permission; that he remained there for two

and one half hours working on a joint task; and that

society recognizes as “valuable” the right of property

owners or leaseholders to engage in joint tasks with

guests, “be it legal or illegal activity.” J.A. A17-A18.

Thus, Aallthough society does not recognize as valu-

able the task of bagging cocaine,” the court found

Carter’s presence in the apartment to be within the

zone of Fourth Amendment protection. J.A. A18.

b. The court then held that Thielen’s observations

of the activities in the apartment violated the Fourth

Amendment. The question, the court stated, “is not

where the police officer was standing when he made

his observation, although police officers must estab-

lish that they had a legal right to be where they

were[;} * * rather it is the area that was ob-

served.” J.A. Al9-A20. The court noted, without re-

solving the issue, that it was “plausible” that Thielen

had legitimately positioned himself outside the apart-

ment in a common area and had not invaded the apart-

ment’s curtilage. J.A. A20 & n.10. But it neverthe-

less concluded that, even if * -* * the area just

outside the window was a common area,” Thielen vio-

lated the Constitution because he had used “extra-

ordinary measures to enable him to ‘ew the inside of

the apartment.” J. A. A22.

7

Explaining its finding of “extraordinary meas-

ures,” the court noted that Thielen made his observa-

tions after he had left the sidewalk, walked across the

grass, crossed over or by some bushes, placed his face

within 12 to 18 inches of the window, and looked

through a gap between the blinds. J.A. A22. Viewing

the inside of a private dwelling through such “extra-

ordinary measures,” the court held, “constitute[s] a

search under the Fourth Amendment.” bid.

e. Three Justices dissented. J.A. A24-A28. They

contended that prior decisions had held that a

“transient visitor” has no legitimate expectation of

privacy when he is simply “present on the property of

another only to use the telephone or bathroom, was

merely a party guest, or otherwise failed to establish

a connection to the property beyond simply being

present at the time of the search.” J.A. A25-A26 (foot-

notes omitted). In this case, the dissent concluded,

Carter had not shown an expectation of privacy that

society would consider reasonable, because he estab-

lished only that he was present in the apartment for

two and one half hours for the purpose of conducting

illegal activity. He did not show that he had ever been

to the apartment before; that he had any prior

relationship with the lessee; that he had any personal

effects in the apartment; that he had a key to the

apartment; or that he could invite other persons to, or

exclude them from, the apartment. J.A. A27.

SUMMARY OF ARGUMENT

I. Yemporary visitors to another person’s apart-

ment lack the legitimate expectation of privacy in the

apartment that the Fourth Amendment requires to

support a claim of an illegal search. The constitu-

tional test is whether the visitor has an expectation

8

of privacy that society recognizes as reasonable.

This Court has rejected the view that a sufficient

expectation of privacy arises simply because a person

is “legitimately on premises where a search occurs.”

Rakas v. Illinois, 439 U.S. 128, 141 (1978). Rather,

the Court has required a more substantial or ex-

tended connection to another person’s property. See,

e.g., Stoner v. California, 376 U.S. 483 (1964) (hotel

guest); Jones v. United States, 362 U.S. 257 (1960)

(guest with dominion and control over friend’s apart-

ment).

In Minnesota v. Olson, 495 U.S. 91 (1990), the Court

found that such a legitimate expectation of privacy

exists for an overnight guest in another person’s

private home. In evaluating the social expectations of

houseguests, the Court observed that the need for a

secure place to sleep is universal; that the host’s

home functions as a substitute domicile; that the

overnight guest is likely to have a measure of control

over the host’s premises; and that hosts are likely to

respect and act to protect the privacy interests of

their overnight guests during their stay. The factors

identified in Olson are absent in the case of a person

making a brief social or business visit to another

person’s apartment.

Unlike an overnight guest, a temporary visitor

generally has no expectation of control over his own

privacy in another’s dwelling. Nor do such visitors

ordinarily use another person’s apartment for the

private and personal activities associated with the

home. To recognize a privacy interest on behalf of

such a transient visitor would come close to reviving

the “legitimately on premises” test that this Court

has already rejected. Accordingly, temporary visi-

tors, such as respondents, cannot claim the legitimate

9

expectation of privacy that is needed to object to a

search of their host’s home.

if. Even if respondents could claim the protection

of the Fourth Amendment, there was no search in

this case. The Fourth Amendment permits officers to

view with the unaided eye what is visible to any

member of the public. That principle applies even if

the officer trespasses on private property to look

inside a dwelling (so long as he does not intrude on its

curtilage). See, e.g., United States v. Dunn, 480 U.S.

294 (1987); Oliver v. United States, 466 U.S. 170

(1984). It similarly applies if an officer views pro-

tected areas of a home from an overflight in an

airplane or helicopter, since such a view is similar to

what public air travelers could see. See, e. g., Califor-

nia v. Ciraolo, 476 U.S. 207 (1986).

In this case, an officer was told by a private citizen

that the citizen had observed Suspicious activity in

the apartment while passing by. The officer then

went to the apartment, walked over a grassy common

area to a point about one foot from the apartment’s

window, and looked through a gap in the blinds to

observe respondents packaging drugs. The same view

could have been seen by another tenant parking a

bicycle; by a child chasing a ball; by a gardener trim-

ming the bushes; or by a curious passerby. Nothing

in the Fourth Amendment prohibited the officer from

making the same observations that any member of the

public could have made.

10

ARGUMENT

THE OFFICER’S OBSERVATION OF RESPON-

DENTS IN THE APARTMENT IN WHICH THEY

WERE PACKAGING DRUGS DID NOT VIOLATE

THEIR FOURTH AMENDMENT RIGHTS

“The proponent of a motion to suppress has the

burden of establishing that his own Fourth Amend-

ment rights were violated by the challenged search or

seizure.” Rakas v. Illinois, 439 U.S. 128, 130 n.1

(1978). To meet that burden, respondents must make

two showings. First, they must show that they had a

legitimate expectation of privacy, protected by the

Fourth Amendment, in the apartment in which they

were evening visitors for the purpose of packaging

drugs. Second, they must show that the officer’s

observations of the activities within the apartment

constituted a Fourth Amendment search. Contrary

to the decision of the Minnesota Supreme Court, re-

spondents can make neither showing.

I. SHORT-TERM INVITEES DO NOT HAVE A LEGITI-

MATE EXPECTATION OF PRIVACY IN THE HOMES

OF OTHERS

As this Court has explained, Fourth Amendment

rights “are personal” and “may not be vicariously

asserted.” Alderman v. United States, 394 U.S. 165,

174 (1969). “A person who is aggrieved by an illegal

search and seizure only through the introduction of

damaging evidence secured by a search of a third

person’s premises or property has not had any of his

Fourth Amendment rights infringed.” Rakas, 439

U.S. at 134 (emphasis added). Respondents were not

observed while in their own apartment, or in any

other location in which they had a property interest.

, e

11

As a result, they must elaim an expectation of privacy

in the apartment of another person who had invited

them in for a few hours to engage in the joint activity

of packaging drugs. While this Court has held that an

overnight guest has a protected expectation of pri-

vacy, see Minnesota v. Olson, 495 U.S. 91 (1990),

respondents’ brief and limited relationship to the

apartment in which they were observed did not afford

them a “legitimate expectation of privacy” in that

place, Rakas, 439 U.S. at 143, and they therefore can-

not show a violation of their own Fourth Amendment

rights.

A. Reasonable Expectations Of Privacy In A Place Re-

quire More Than A Brief Or Limited Association With

That Place

An individual’s ability to “claim the protection of

the Fourth Amendment depends upon

whether” he “has a legitimate expectation of privacy

in the invaded place.” Rakas, 439 U.S. at 143. An ex-

pectation of privacy in a particular place is “legiti-

mate” only if it is one that “that society is prepared to

recognize as reasonable.“ Id. at 143 n.12 (quoting

Katz v. United States, 389 U.S. 347, 361 (1967)

(Harlan, J., concurring)). Because application of the

exclusionary rule to respond to a Fourth Amendment

violation impedes “the search for truth at trial” by

depriving the trier of fact of “relevant and reliable

evidence,” “misgivings as to the benefit of enlarging

the class of persons who may invoke that rule are

properly considered when deciding whether to expand

standing to assert Fourth Amendment violations.”

Rakas, 438 U.S. at 137-138; see Alderman, 394 U.S. at

175 (“additional benefits of extending the exclusion-

ary rule to other defendants” does not “justify fur-

12

ther encroachment upon” the strong interest of

having “those accused of crime * * * acquitted or

convicted on the basis of all the evidence which

exposes the truth”); see also United States v. Payner,

447 U.S. 727, 734 (1980) (over-expansive use of the ex-

clusionary rule can “impede unacceptably the truth-

finding function of judge and jury”).

A protected expectation of privacy must come from

a source external to the Fourth Amendment, such as

“concepts of real or personal property law” or shared

“understandings that are recognized and permitted

by society.“ Rakas, 439 U.S. at 143 n.12. Here, re-

spondents do not claim a property interest in Ms.

Thompson’s apartment. As a result, their claim to

Fourth Amendment protection must find support, if at

all, in generally shared social understandings and

expectations about privacy interests. Ibid.; Katz, 389

U.S. at 352-353.

This Court has rejected the view that society re-

spects the privacy interests of “anyone legitimately

on premises where a search occurs.” Rakas, 439 U.S.

at 141 (quoting Jones v. United States, 362 U.S. 257,

267 (1960)). As the Court explained, such a standard

is “too broad a gauge for measurement of Fourth

Amendment rights.” 439 U.S. at 142.

[Applied literally, [the “legitimately on premises”

standard] would permit a casual visitor who has

never seen, or been permitted to visit, the base-

ment of another’s house to object to the search of

the basement if the visitor happened to be in the

kitchen of the house at the time of the search.

Likewise, a casual visitor who walks into a house

one minute before a search of the house com-

mences and leaves one minute after the search

: ( $< ere

13

ends would be able to contest the legality of the

search. The first visitor would have absolutely no

interest or legitimate expectation of privacy in the

basement, the second would have none in the

house, and it advances no purpose to permit either

of them to object to the lawfulness of the search.

Ibid. Under Rakas, therefore, when an individual’s

association with a place is only brief and limited, he

lacks a socially recognized interest in maintaining

the privacy of that place. To support such a privacy

interest, an individual must show a deeper or more

lasting attachment, i.e., he must show that he falls

within a social tradition that respects that person’s

interest in solitude and in preventing unwanted

intrusions.

In Katz v. United States, 389 U.S. at 352, this Court

held that an individual has a legitimate expectation

that his telephone conversations, made from an

enclosed phone booth, will remain private: “One who

occupies [an enclosed telephone booth], shuts the door

behind him, and pays the toll that permits him to place

a call is surely entitled to assume that the words he

utters into the mouthpiece will not be broadcast to

the world.“ The Court’s holding reflected a social

understanding and custom that members of society

generally share—the assumption that personal con-

versations made from a phone booth are, like private

letters dropped into the mail, see United States v.

Van Leeuwen, 397 U.S. 249, 251 (1970), matters that

individuals may ordinarily expect to remain private.

Similar considerations have led the Court to con-

clude that an individual has a legitimate expectation

of privacy in his hotel room, much as he would in his

own home. See, e.g., Stoner v. California, 376 U.S.

14

483 (1964); United States v. Jeffers, 342 U.S. 48 (1951).

A hotel guest’s expectation of privacy is limited by

the fact that he “gives ‘implied or express permis-

sion’” for “maids, janitors, * * * repairmen’”” and

the like “to enter his room ‘in the performance of

their duties.“ Stoner, 376 U.S. at 489 (quoting

Jeffers, 342 U.S. at 51). Nonetheless, a hotel room

functions in many respects as the guest’s substitute

“home,” that is, as a refuge for the conduct of his

most private and intimate affairs. Consequently,

hotelier, guest, and society all share the common

understanding that the guest’s seclusion in his hotel

room is entitled to great solicitude. For comparable

reasons, the Court’s cases repeatedly have recognized

the legitimacy of privacy expectations in other tempo-

rary residences. Ibid.; see also McDonald v. United

States, 335 U.S. 451 (1948) (tenant in a rooming

house); Chapman v. United States, 365 U.S. 610

(1961) (renter of residential unit); Johnson v. United

States, 333 U.S. 10 (1948) (hotel room).

Most recently, in Minnesota v. Olson, 495 U.S. 91

(1990), this Court applied a similar analysis to con-

clude that an overnight social guest has a legitimate

expectation of privacy in his host’s home. Before

Olson, the Court had decided, in Jones v. United

States, 362 U.S. 257 (1960), that a defendant who had a

key to his friend’s apartment, left and entered as he

pleased, kept personal belongings in the apartment,

had slept there, 362 U.S. at 259, and exercised “com-

plete dominion and control over the apartment”

including the authority to “exclude others from it,”

had a legitimate expectation of privacy there. Rakas,

439 U.S. at 149; see Olson, 495 U.S. at 98 (IWmile his

host was away, [the petitioner in Jones] had complete

dominion and control over the apartment and could

15

exclude others from it.”). In Olson, this Court ex-

tended that holding to all overnight guests, finding

that the “untrammeled power” or legal right “to ad-

mit and exclude” exercised by the defendant in Jones

was not “essential to Fourth Amendment protection.”

495 U.S. at 99.

To reach that conclusion, the Court considered

whether the overnight guest’s relationship to the

host’s dwelling creates an interest in privacy that

society, by custom and tradition, treats with solici-

tude and respect. For the overnight guest, the Court

explained, the host’s home functions as a substitute

domicile, a refuge “where he and his possessions will

not be disturbed.” 495 U.S. at 99. Overnight guests

seek shelter in their host’s home—just as they might

seek shelter in a hotel room—precisely because they

need a secure, private location:

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.

Ibid.

Because of that universal need for security, the

host, the guest, and society treat the overnight guest

as having a privacy interest in the home, even though

he has no legal right to exclude others and remains

solely at his host’s sufferance. “{[WJhen the host is

away or asleep, the guest,” not unlike the home-

owner’s children, “will have a measure of control over

the premises.” Olson, 495 U.S. at 99. More impor-

tant, even though the host has the legal right to

16

“admit or exclude from the house as he prefers,” it is

“unlikely that he will admit someone who wants to

see or meet the guest over the objection of the guest.”

Ibid. And although “few houseguests will invite

others to visit them” without consulting their hosts,

the hosts by social custom “will often be accommodat-

ing.” Ibid. As the Court summarized, At he point is

that hosts will more likely than not respect the

privacy interests of their guests * * * despite the

fact that they have no legal interest in the premises

and do not have the legal authority to determine who

may or may not enter the household.” Jbid. Olson

thus makes clear that social understandings can

create a protected privacy interest in another per-

son’s home, but only when they reflect a reasonable

expectation that the visitor’s desire for seclusion and

freedom from trespass will be acknowledged and

respected by the host and by others.

B. Society Does Not Recognize The Privacy Expecta-

tions Of Invitees Other Than Overnight Guests As

Legitimate

The reasoning of Olson does not extend to a person

who is present in the home or apartment of another

simply as a temporary guest. Rather, a brief visitor

to an apartment is more similarly situated to a person

who is simply legitimately on premises—a relation-

ship that is not sufficient to support invocation of the

Fourth Amendment. Unlike the overnight guest, who

may treat the dwelling as a substitute home, Olson,

495 U.S. at 99; cf. Stoner, supra, and who may other-

wise exercise authority to exclude others from the

place as if he were its owner or co-tenant, Jones,

supra, mere visitors generally lack a privileged sense

of privacy in another person’s home. In contrast to

17

overnight guests, transient visitors ordinarily are

not given a substantial “measure of control over the

premises.” Olson, 495 U.S. at 99. Nor do such visi-

tors ordinarily treat the home as their substitute

residence, relying on it to afford privacy for personal

activities uniquely associated with the home. Be-

cause a temporary visitor may retreat to his own

home for such personal activities, society does not

generally share the understanding that, to protect

the guest’s privacy, the host will exclude others on

the guest’s behalf.

To the contrary, one who merely visits the home of

another and does not stay there overnight ordinarily

arrives without any expectations regarding the ad-

mission or exclusion of others. Instead, it is com-

monly accepted that hosts are free to admit or exclude

others as they see fit. For example, one invited to a

dinner party at another’s home would hardly be

surprised to find additional guests seated at the table,

even though this would render the occasion substan-

tially less private. Nor would one invited to the home

for business be surprised to find others there as well.

Consequently, the lower federal courts have con-

cluded that social invitees and party guests have no

reasonable expectation of privacy in another’s home.’

And the courts similarly have held that one who

United States v. Maddox, 944 F.2d 1223, 1234 (6th Cir.

1991) (purely transient party guest had no reasonable expecta-

tion of privacy in his host’s home); United States v. McNeal,

955 F.2d 1067, 1072-1073 (6th Cir. 1992) (“casual transient visi-

tor” who stopped by to use the phone lacks legitimate expecta-

tion of privacy in home of another); United States v. Grand-

staff, 813 F.2d 1258, 1357 (9th Cir. 1987) (one who is merely

present, and does not stay overnight, in the hotel room of an-

other lacks a legitimate expectation of privacy).

18

merely arrives to conduct an unlawful business trans-

action,’ or uses another’s home not as a refuge from

society but as an open front for his illegal business

operations, lacks a legitimate expectation of privacy

there as well.“

This Court has likewise recognized limits on the

expectations of privacy that society considers legiti-

mate. The Court has held that passengers in another

person’s car cannot claim the protection of the

Fourth Amendment to object to a search of the glove

box or the area under the car’s seat. Rakas, 477 U.S.

at 148. It has held that a person who places “thou-

sands of dollars worth of illegal drugs” in the purse of

an acquaintance cannot claim a reasonable expecta-

tion of privacy in the purse, since the person lacks a

“right to exclude other persons from access” to it.

Rawlings v. Kentucky, 448 U.S. 98, 105 (1980). And it

has held that merely participating in a joint venture

to transport drugs does not give a co-conspirator the

right to object to a search or seizure of another

conspirator’s vehicle used for that purpose, absent a

recognized basis for asserting a privacy expectation

4 Terry v. Martin, 120 F.3d 661, 663-664 (7th Cir. 1997)

(where evidence showed only that defendant was visiting the

premises for the purpose of an unlawful transaction—the

purchase of heroin—defendant lacked reasonable expectation of

privacy); United States v. Wiley, 847 F.2d 480, 481 (8th Cir.

1988) (cocaine dealer lacked reasonable expectation of privacy

when making business visit to the home of a customer).

5 United States v. Hicks, 978 F.2d 722, 724 (D.C. Cir. 1992)

(invited guest who used his host’s apartment “as a base for his

business operations“ the sale of crack cocaine—rather than as

a “sanctuary from outsiders” lacked a reasonable expectation of

privacy and was indistinguishable “from any other invited

guest” who might have been there when the police showed up).

19

or property interest in the vehicle. United States v.

Padilla, 508 U.S. 77 (1993) (per curiam). By the same

token, temporary guests, even when engaged in a

joint venture with the host, lack a legally or socially

recognized right to exclude others—or to have the

host exclude others on their behalf—in order to

maintain their privacy in the host’s dwelling. They

therefore cannot rely on the Fourth Amendment to

object to intrusions on the privacy of that place.

C. Respondents Were Mere Invitees With No Rea-

sonable Expectation of Privacy In The Premises

In this case, respondents did not have a sufficient

connection to the apartment to assert a legitimate

expectation of privacy in it. Unlike the defendant in

Jones, they did not exercise dominion and control

over it. Unlike the defendant in Olson, they did not

sleep overnight there or use the apartment as a

substitute home, i.e., a refuge for the conduct of inti-

mate affairs uniquely associated with the home. As a

result, there was no legal or general social under-

standing that they—mere “short-term business call-

ers,” J. A. C8—would have the right to exclude others,

or that others would be excluded on their behalf, to

preserve their privacy. To the contrary, consistent

with general social understandings and societal

expectations, the apartment’s lessee, Ms. Thompson,

could have admitted other guests during their brief

presence and was in no way obliged to defer to their

wishes regarding the exclusion of others.

The factors relied upon by the Minnesota Supreme

Court—that respondents “had the leaseholder’s per-

mission to be inside the apartment,” “remained inside

the apartment for at least 2 1/2 hours,” and spent

their time inside the apartment “work[ing] in concert

20

with the leaseholder on [the] common task” of bag-

ging cocaine, J.A. Al7-A18, do not meaningfully dis-

tinguish this case from Rakas. In Rakas, as here, the

defendants had the owner’s permission to be on the

premises; they had been there for “some time” (al-

though the opinion does not reflect how long); and

they were engaged in a common task with the car’s

owner—making a get-away from a clothing store

robbery. 439 U.S. at 130. Consequently, just as the

passengers lacked a legitimate expectation of privacy

in Rakas, so too respondents lacked a legitimate

expectation of privacy here.

To reach the opposite conclusion, the Minnesota

Supreme Court did not look at shared social under-

standings but instead attempted to determine the

degree to which society “value[d]” respondents’ con-

nection to the apartment. “[I]f [respondents’] ha[ve]

established that [their] status is the type that serves

functions recognized as valuable by society,” the

court explained, then Atheir] expectation of privacy

is legitimate.” J.A. AIG; see J.A. 18 (“If the relation-

ship” between “the property possessor and the person

alleging the privacy interest in the property” is “the

type that society recognizes as valuable, then we will

find standing.”). Even highly valuable relationships

between invitees and property owners, however, do

not necessarily give rise to legitimate expectations of

privacy. Repairmen may enter dwellings to preserve

a home’s physical integrity; piano teachers and tutors

may educate the homeowner’s children; appraisers

may help protect the financial investment of the

owner; and doctors may make housecalls to protect

the occupant’s health or life. None of those visitors,

however, has an expectation of privacy in the home he

is visiting.

21

In any event, the court assessed the “value” of the

relationship in this case at so high a level of general-

ity that its conclusions were incongruous. The spe-

cific use to which respondents put Ms. Thompson’s

apartment was as a site for “the task of bagging co-

caine”—an activity that admittedly is one that “soci-

ety does not recognize as valuable.“ J.A. A18; ef.

Padilla, supra (co-conspirator in a drug transaction

does not, simply by virtue of that relationship, ac-

quire a protected Fourth Amendment interest in

property used by the drug venture). But the court

concluded that the relationship was valuable nonethe-

less by describing the relationship as an exercise of

“the right of property owners or leaseholders to

invite persons into the privacy of their homes to

conduct a common task.” J. A. Al8. An analysis on

that high a level of generality loses sight of the

touchstone of a protected privacy interest: a socially

sanctioned expectation of an individual that he will

not be disturbed. Because respondents lacked such a

reasonable expectation, they cannot rely on the

protections of the Fourth Amendment here.

II. UNAIDED OBSERVATION OF A DWELLING FROM

A COMMON AREA OPEN TO THE PUBLIC IS NOT A

“SEARCH” WITHIN THE MEANING OF THE

FOURTH AMENDMENT

Even if respondents had a protected privacy inter-

est in the dwelling in which they were packaging

drugs, the officer’s observations of the dwelling did

not constitute a “search” within the meaning of the

Fourth Amendment. When an officer makes observa-

tions from a legitimate location—such as when the

officer stands in an open field or common area—then

22

unaided observation from that vantage point cannot

constitute a “search.”

A. Unaided Observation From A Public Or Common

Area Is Not A Search

1. Although constitutional protection against un-

reasonable intrusion is at its strongest in a person’s

home, Oliver v. United States, 466 U.S. 170, 178

(1984); Payton v. New York, 445 U.S. 573, 601 (1980),

what a person knowingly exposes to the public,

even in his own home * * * is not a subject of Fourth

Amendment protection.” Katz, 389 U.S. at 351. Police

officers ordinarily “may see what may be seen from a

public vantage point” without triggering constitu-

tional concerns. Florida v. Riley, 488 U.S. 445, 449

(1989) (plurality opinion) (internal quotation marks

omitted); see id. at 454 (O’Connor, J., concurring).

Ihe home and its curtilage” thus “are not neces-

sarily protected from inspection that involves no

physical invasion.” Jd. at 449 (plurality opinion).

In California v. Ciraolo, 476 U.S. 207 (1986), this

Court held that it was permissible for officers to use

an airplane to fly over and view the backyard of a

house where a high fence prevented ground level

observation. The Court agreed that the yard in that

case was entitled to the same constitutional protec-

tion as the home itself because it was within the

“curtilage.” See 476 U.S. at 213. But the Court none-

theless held that the overhead surveillance was not a

search. The observations were made from public air-

space, “in a physically nonintrusive manner,” and any

member of the public “who glanced down could have

seen everything that these officers observed.” Id. at

213-214.

23

[Officers need not] shield their eyes when passing

by a home on public thoroughfares. Nor does the

mere fact that an individual has taken measures to

restrict some views of his activities preclude an

officer’s observations from a public vantage point

where he has a right to be and which renders the

activities clearly visible.

Id. at 213.

For almost identical reasons, the Court also has

upheld warrantless, low- altitude helicopter observa-

tion of a greenhouse behind a defendant's mobile

home. See Riley, 488 U.S. at 449-450 (plurality opin-

ion) (although occupant “no doubt intended and ex-

pected that his greenhouse would not be open to public

inspection,” any “member of the public could legally

have been flying over” the greenhouse and looked into

it); see id. at 455 (O’Connor, J., concurring). As

Justice O’Connor observed in her concurrence, now

that public air travel is routine, it is unreasonable for

homeowners to expect that their property will not be

viewed from above. /d. at 453.

Just as police officers may make unaided observa-

tions from public airspace consistent with the Fourth

Amendment, so too may they make similar observa-

tions from public areas at ground level. Indeed, they

constitutionally may do so while trespassing on pri-

vate property, so long as they make their observa-

tions from “open fields” and do not physically invade

the curtilage of the home, i.e., the area immediately

surrounding the home “to which extends the intimate

activity associated with the ‘sanctity of a man’s home

and the privacies of life.“ Oliver, 466 U.S. at 176, 180

& n.12; United States v. Dunn, 480 U.S. 294 (1987);

Hester v. United States, 265 U.S. 57, 59 (1924) (Fourth

24

Amendment protection “is not extended to the open

fields” whose distinction from “the house is as old as

the common law.”).

In Dunn, the officers entered the defendant’s prop-

erty, crossed several fences, and shined a flashlight

into the window of the defendant’s barn. 480 U.S. at

297-298, 304. Rejecting a Fourth Amendment chal-

lenge to the officers’ conduct, this Court held that—

even if one assumed that the defendant’s barn, like his

home, was constitutionally protected and “could not

be entered * * * without a warrant,” id. at 308—the

officers’ observations were not barred by the Fourth

Amendment because they were made while “standing

* * * in the open fields” and without crossing into

the curtilage. Id. at 304. There is “no constitutional

difference,” the Court held, “between police observa-

tions [made from] a public place and [those made]

while standing in open fields.” Ibid.“

As a result, the Minnesota Supreme Court’s asser-

tion that the determinative issue is “not where the

police officer was standing when he made his observa-

tion|;] * * * rather it is the area that was observed,”

J. A. A19-A20, is incorrect. Ciraolo, Riley, and Dunn

Just as the alleged trespass was irrelevant in Dunn, 480

U.S. at 297-298, 304, so too is respondents’ reliance on Minne-

sota’s window-peeping statute. Resp. Br. in Opp. at 12 (citing

Minn. Stat. 609.746 (1996)). The “concepts of privacy under

the laws of each State” do not determine the extent of Fourth

Amendment protection. California v. Greenwood, 486 U.S. 35,

44 (1988). In fact, the “interests protected by state laws regu-

lating trespass and the invasion of privacy, and those protected

by the Fourth Amendment’s guarantee against unreasonable

searches and seizures, may be inconsistent or even hostile.”

Bivens v. Six Unknown Named Agents of the Federal Bureau

of Narcotics, 403 U.S. 388, 394 (1971).

establish that, even where “the objects observed by

the officers lay within an area that * was

protected by the Fourth Amendment,” the “Constitu-

tion dloes] not forbid [the officers] to observe” those

areas with their naked eyes so long as they make

their observations from an area outside the curtilage

where members of the public might reasonably do the

same. Dunn, 480 U.S. at 304; see Ciraolo, 476 U.S. at

213-214 (naked eye observation of protected curtilage

from non-intrusive aerial viewpoint constitutionally

permissible); Riley, 488 U.S. at 451-52 (plurality opin-

ion); Riley, 488 U.S. at 454 (O'Connor, ., concurring)

(critical question is “whether the helicopter was in

the public airways at an altitude at which members of

the public travel with sufficient regularity that [the]

expectation of privacy from aerial observation was not

one that society is prepared to recognize as reason-

able” (internal quotation marks omitted)).

2. In this case, Thielen observed the apartment

from a grassy, common area that was not only open to

“public * * * access” but also regularly approached

by other tenants who would “leave the common side-

walk * * * to deposit [and store] their bicycles”

nearby. J. A. E10; see J. A. E12 (“residents did walk

upon and use the grassy area in front of Ms.

Thompson’s window”); JA. EIO (“the public had

access to the area directly in front of Ms. Thompson's

windows to store bicycles”). There were no fences,

trees, or bushes that might block public entry into

the area where Thielen stood, or otherwise prevent

public viewing through the window. J. A. E10; see J. A.

I1-I7. Thus, the observations that Thielen made just

as easily could have been made intentionally or

inadvertently by any member of the public, such as

another tenant parking a bicycle, a child chasing a

ball, a gardener pruning the bushes, or a curious

passerby. Indeed, Thielen went to the apartment in

the first place precisely because a member of the

public had walked by the apartment, observed suspi-

cious activity inside, and reported it to the police.

J. A. A8, Ez. There is nothing in the Fourth Amend-

ment that bars law enforcement officers from making

the same observations that any member of the public

or other tenant of the building just as easily could

have made. See Ciraolo, 476 U.S. at 215; Riley, 488

U.S. at 454 (O0 Connor, J., concurring); ef. California

v. Greenwood, 486 U.S. 35, 40 (1988) (“respondents

exposed their garbage to the public sufficiently to

defeat their claim to Fourth Amendment protection”

because the “garbage bags left on or at the side of a

public street are readily accessible to animals, chil-

dren, scavengers, snoops, and other members of the

public” (footnotes omitted)).

B. “Extraordinary Measures” To Reach A Public Place

Do Not Convert Unaided Observation Into A Search

The Minnesota Supreme Court assumed that

Thielen did not enter any area in which respondents

had a protected Fourth Amendment interest—apart-

ment or curtilage.’ The court nonetheless held that

The lower Minnesota courts found that the area where

Officer Thielen stood was not curtilage, J. A. E12, D4, and the

Minnesota Supreme Court declined to reach the issue, although

it noted that the lower courts’ conclusion was “plausible,” J. A.

A20 & n. 10. This Court should not revisit that fact - intensive

determination, which did not form the basis for the ruling

below, J. A. A22. In any event, the lower Minnesota courts

properly examined the four factors used to determine whether

the area was curtilage, see Dunn, 480 U.S. at 301, and correctly

concluded that it was not. Although the area was close to the

apartment unit, it was not specifically identified with or

27

Thielen’s unaided observations from a publicly acces-

sible place constituted a search because he “took

extraordinary measures to enable him to view the

inside of the apartment.” J.A. A22; see ibid. (“search”

occurred because “the totality of [the officer’s] acts”

indicated that he took “extraordinary measures”). :

The court’s “extraordinary measures” standard is

flawed. To determine whether a search has taken

place, courts must ask if the conduct “infringed” on

“an expectation of privacy that society is prepared to

consider reasonable.” United States v. Jacobsen, 466

U.S. 109, 113 (1984). When the officer’s ultimate van-

tage point is one that a neighbor or another member

associated with that unit; it was not enclosed; no one took any

steps to obscure observation; and, perhaps most important of

all, it was common to all tenants in the building (who stored

their bicycles nearby) and open to the public at large. J.A.

E10-E11; see pp. 25-26, supra. Federal courts have often found

that common areas surrounding garden apartments do not

harbor the “intimate activity” associated with the home, Dunn,

480 U.S. at 300, and thus are not curtilage. See United States

v. Cruz-Pagan, 537 F.2d 554, 558 (Ist Cir. 1976) (no expectation

of privacy in condominium parking garage); United States v.

Fields, 113 F.3d 313, 317, 321-322 (2d Cir.) (no Fourth Amend-

r LI

three- family apartment house and peered into apartment

window through partly raised shade), cert. denied, 118 S. Ct.

434 (1997); United States v. Acosta, 965 F.2d 1248, 1252, 1255-

1257 (3d Cir. 1992) (fenced backyard of apartment building not

curtilage of apartment; resident had no reasonable expectation

of privacy there or in apartment building hallway); United

States v. Concepcion, 942 F.2d 1170, 1172 (7th Cir. 1991) (no

expectation of privacy in common areas of building); United

States v. Eisler, 567 F.2d 814, 816 (8th Cir. 1978) (no expecta-

tion of privacy in hallway); United States v. Nohara, 3 F.3d

1239, 1242 (9th Cir. 1993) (no reasonable expectation of privacy

in common area of high-security high-rise).

28

of the public might well have assumed, any expecta-

tion of privacy against being seen from that location

is by definition unreasonable—even if it was difficult

for a particular officer to acquire that vantage point.

See, ¢.g., Ciraolo, 476 U.S. at 213-214 (upholding po-

lice use of aerial observation not because it was less

than an extraordinary effort but rather because the

traveling public might have obtained the same view in

airline flight); Riley, 488 U.S. at 454 (O’Connor, J.,

concurring) (same). An officer might have to climb

many flights of an outdoor fire escape on a public

building to reach a rooftop garden that overlooks the

backyard of a dwelling, but the degree of exertion

would not convert his observations into a Fourth

Amendment search.

Nor does it make a difference that Thielen inten-

tionally positioned himself so that he could see inside.

This Court repeatedly has rejected the claim that the

officer’s intent has anything to do with the legitimacy

of an individual’s expectation of privacy. See Dunn,

480 U.S. at 304-305 (because the observation was made

from an unprotected area, it is constitutionally “ir-

relevant that the police observation at issue was

directed specifically at the identification” of contra-

band inside a protected place); Ciraolo, 476 U.S. at 212

(rejecting respondent's challenge to “the authority of

government to observe his activity from any vantage

point or place if the viewing is motivated by a law

enforcement purpose, and not the result of casual,

accidental observation”). See also Horton v. Califor-

nia, 496 U.S. 128, 138, 140 (1990) (rejecting inad-

vertence requirement under “plain view” doctrine be-

cause “evenhanded law enforcement is best achieved

by the application of objective standards of conduct,

rather than standards that depend upon the subjective

state of mind of the officer” and because “no additional

Fourth Amendment interest is furthered by requir-

ing that the discovery of evidence be inadvertent”).

In any event, Thielen’s “measures” es hardly be

labeled extraordinary in comparison to means up-

held by this Court in the past—and characterizing

such measures as “extraordinary” would create an

unworkable standard for use by officers in the field.

Thielen did not obtain an aircraft, hire a pilot, and fly

over the dwelling to be able to see in. Contrast Riley,

supra; Ciraolo, supra. Nor did he traverse acres of

private property, cross fence after fence, and stand

under the eaves while shining a flashlight into the

structure. Contrast Dunn, 480 U.S. at 297-298, 304.

Instead, Thielen at most crossed the grass in a

common area of the apartment, stepped over or around

low bushes, and—standing in an area that was open to

“public * * * access” and often approached by other

tenants for the purpose of storing their bicycles, J.A.

E10—observed the inside of an apartment through

gaps in the window blinds. J.A. A22. Even assuming

that Officer Thielen crouched down to be able to see,

J.A. A21, his actions were not extraordinary. The

same observation still could have been made by a gar-

dener clipping the bushes, by adults sitting in the

grass, or by a shorter officer with no need to crouch.

See Texas v. Brown, 460 U.S. 730, 740 (1983) (plural-

ity opinion) (whether officer “‘changed position,’ and

‘bent down at an angle so [he] could see what was

inside“ the car, is “irrelevant to Fourth Amendment

analysis;” because the “general public could peer into

the interior * * * from any number of angles,” there

is no legitimate expectation of privacy in that which

can be viewed from outside by “inquisitive passersby

or diligent police officers.”). Because Thielen stood

30

where any member of the public might have been, his

observations transgressed no legitimate expectation

of privacy and did not constitute a search.

CONCLUSION

The judgment of the Minnesota Supreme Court

should be reversed.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney

General

MICHAEL R. DREEREN

Deputy Solicitor General

JEFFREY A. LAMKEN

Assistant to the Solicitor

General

MAY 1998