“Reasonable Expectation Of Privacy”

Ken AshfordConstitution, Courts/Law2 Comments

So I was perusing the legal brief (pdf) that the ACLU wrote in support of Larry Craig (the Idaho senator who was caught attempting to engage in hanky-panky in a Minnesota airport restroom).

And I came across this passage:


Now, I happen to think that the law for which Craig stands accused is unconstitutional, at least as applied to the (hilarious) facts of the Craig situation.

But I must say, I have a problem with the argument, apparently adopted by the Minnesota courts, that one has a "reasonable expectation of privacy" with respect to sex in a public restroom. 

That phrase, "reasonable expectation of privacy", is one that constitutional and criminal lawyers and scholars love to discuss and dissect — it is, indeed, a term of art.  But it means just what it says.  The query is simple and two-fold: (1)  Does one have an expectation of privacy; and (2)  If so, is that expectation "reasonable" (employing an objective person standard)?

Of course, the answer may depend on outside circumstances.  Obviously, one does have an expectation of privacy — and a reasonable one at that — when one goes into a public restroom stall and closes the door for, well, for the purpose intended by public restroom stalls. 

But is it "reasonable" to expect privacy when you use a public restroom stall for other purposes?  Such as sex?  What about shooting up heroin?  Constructing a bomb?

The counterargument, I suppose, is that shooting up heroin and constructing a bomb are, on their face, illegal, while sex (standing alone) is not.  But that, to me, is a distinction without a difference.

I guess my problem with the Bryant case (cited in the passage above) is that a public restroom stall doesn’t become "private" for all intents and purposes just because you close the stall door.  It is still a public restroom, and the zone of privacy that you create by closing the door is circumscribed by what you are doing in the stall.

That’s just my gut reaction, and perhaps reading more case law will point me in a different direction.  I just thought it was an interesting legal issue.