PRIVACY ARGUMENT FAILS IN HIGH COURT

Law: Fourth Amendment protections can't be invoked by people who are in
someone else's home temporarily to conduct business.

Washington-People who are temporarily in someone else's home to
conduct business may not invoke the Constitution's protection against
unreasonable police searches, the Supreme Court ruled Tuesday by a
vote of 5-4.

The decision overturned a 1997 ruling of the Minnesota Supreme Court,
which set aside the narcotics convictions of two men who had spent
several hours in a third person's apartment preparing cocaine for sale.

A police officer, acting on a tip, observed the activity in the
basement apartment through a gap in the closed venetian blinds.
Although the officer later obtained a warrant to search the apartment,
the Minnesota court ruled that the initial observation was an illegal
search that the two men, as guests of the resident, were entitled to
challenge.

Although "society does not recognize as valuable the task of bagging
cocaine," the state court said, "we conclude that society does
recognize as valuable the right of property owners or leaseholders to
invite persons into the privacy of their homes to conduct a common
task, be it legal or illegal activity."

In his majority opinion Tuesday, Minnesota vs. Carter, Chief Justice
William Rehnquiest said the men had no "legitimate expectation of
privacy" in a home that was not theirs and that was "simply a place to
do business." There was no need to decide whether the officer's
observation amounted to a search, he said, because the Fourth
Amendment's prohibition of unreasonable searches and seizures did not
apply.

The Supreme Court's precedents in this area have made a "legitimate
expectation of privacy" the test for determining whether someone in
entitled to invoke the Fourth Amendment's protections. In a 1990 case,
Minnesota vs. Olson, the court ruled that an overnight guest had such
an expectation and thus could claim Fourth Amendment rights. By
contrast, a 1978 ruling, Raka vs. Illinois, held that automobile
passengers were not entitled to raise a Fourth Amendment objection to
the seizure of incriminating evidence if they owned neither the
evidence nor the car, even if they had a right to be in the car at the
time.

The case Tuesday, the chief justice said, fell "obviously somewhere in
between" those two relevant precedents, and it was over its place
along that spectrum on which the justices disagreed.

Rehnquest, in an opinion joined by Justices Sandra Day O'Connor,
Antonin Scalia, Anthony Kennedy and Clarence Thomas, said that in this
case, the "purely commercial nature of the transaction," combined with
the men's short stay and lack of previous connection to the
apartment's resident, made their situation "closer to that of one
simply permitted on the premises," much like the passengers in the
1978 decision.

But in a dissenting opinion, Justice Ruth Bader Ginsburg said the case
was much closer to the 1990 ruling about the overnight guest. The
majority opinion overlooked "the unique importance of the home - the
most essential bastion of privacy recognized by law," she said.

"Through the host's invitation, the guest gains a reasonable
expectation of privacy in the home," Ginsburg said, adding that the
guest "should share his host's shelter against unreasonable
searches and seizures." Justices John Paul Stevens and David Souter
joined the dissenting opinion.

In a separate opinion, Justice Stephen Breyer agreed with the

dissenters' constitutional analysis. But he said that even though the
men were entitled to the Fourth Amendment's protections, the officer's
observation through the window blinds did not amount to a search, so
the Fourth Amendment was not in fact violated in this case. For that
reason, Breyer joined the majority's judgment, making the vote 6-3 to
reinstate the men's convictions while making the vote 5-4 on the
underlying Fourth Amendment issue.

There were interesting shades of difference even among the majority.
Scalia, in a concurring opinion that Thomas joined, said the text of
the Fourth Amendment itself, guaranteeing "the right of the people to
be secure in their persons, houses, papers and effects," made clear
that the amendment's protection extended no further than a person's
own home.

Kennedy took a contrary position in a concurring opinion of his own,
concluding that "almost all social guests," even short-term ones, have
a legitimate expectation of privacy. But in this case the men's
connection with the home was too "fleeting and insubstantial" to
count, he said.

The Supreme Court, often slow to embrace evolving technology, took a
small step this week by allowing the justices' voices to be piped down
to the building's public information office as they announce their
decisions.

That will help reporters who receive printed copies of the decisions
in that office because their deadlines often don't allow them to be in
the courtroom when the rulings are announced.

Oral arguments are not included, however, And any taping or
broadcasting of the justices' voices from the audio feeds is
prohibited. Audio feeds of all courtroom proceedings already were
available in the building's lawyer lounge, where news reporters are
not allowed.

When the court announces a decision, the justice who wrote the main
opinion reads aloud from the bench a brief oral summary, which is not
part of the decision itself.

Checked-by: Rich O'Grady