Pubdate: Wed, 7 Oct 1998
Source: Chicago Tribune (IL)
Contact:  http://www.chicago.tribune.com/ 
Author: Jan Crawford Greenburg

JUSTICES WEIGH PRIVACY RIGHTS OF VISITORS TO OTHERS' HOMES

WASHINGTON -- What's the difference between a baby-sitter and a drug
dealer who comes to dinner? Supreme Court justices wanted to know
Tuesday, as they weighed whether guests in a person's home have a
right to privacy.

In a lively session, the justices considered whether guests have an
expectation of privacy and can therefore challenge a police officer's
search as illegal. They raised a litany of examples that, at times,
stymied lawyers on both sides.

What about an Avon lady? A relative who spends the night? A telephone
repairman? A poker-playing buddy?

"I'll go with the baby-sitter over the drug dealer," joked Justice
Antonin Scalia as a government lawyer tried to explain which guests
should be entitled to privacy and which should not.

Such questions occupied only part of the justices' time; they spent
half of the hourlong session focusing on whether a police officer can
peer through a window blind without a warrant. That conduct, which is
at the heart of the dispute, has caused some to dub it "the peeping
Tom" case.

The case originated in 1994, when an informant told a police officer
that he had walked by an apartment window and saw three people inside
bagging white powder. The officer went to the window and, staring
through a gap in the closed Venetian blinds, saw the same thing.

Two men who were guests in the apartment subsequently were arrested on
drug charges. But they maintained that the officer's peek through the
window was an illegal search and sought to suppress the evidence
seized against them. The Minnesota Supreme Court agreed with the two
men.

In their appeal to the U.S. Supreme Court, prosecutors argued that the
men, as guests in a person's home, have no legal right to protest the
search of the home. And even if they did, prosecutors argue, the
officer did nothing wrong when he looked through the closed blinds.

The high court ruled in 1990 that overnight guests in a private home
have the same privacy rights as the owner. But Tuesday's case involved
temporary visitors.

In arguments, the justices fired off so many hypothetical questions
that the session could have been ideal fodder for a law school
criminal procedure exam.

In determining whether guests can challenge the search, the justices
raised several possible approaches. They suggested that the question
could turn on the control a guest exercises over the home. Does he
have a key or visit frequently, they asked, or does he spend the night?

They also considered whether social guests should be treated
differently than people visiting for business reasons, especially if
the business is illegal, as in the case before the court.

"Maybe the line should be business versus social," said Justice Sandra
Day O'Connor. Justice Anthony Kennedy seconded her suggestion as
making "a lot of sense."

The Justice Department, which sided with Minnesota prosecutors, argued
that only those guests who are essentially functioning as a member of
the household have a reasonable expectation of privacy. Temporary
visitors who have no control over the premises, such as the defendants
in the case, have no complaint, argued Jeffrey Lamken, a Justice
Department lawyer.

Minnesota prosecutor James Backstrom said most short-term guests don't
have an expectation of privacy, but a frequent visitor might have a
stronger argument.

"If they play (poker) five time a week they get standing, but if they
play once they don't?" asked Justice David Souter.

The Justice Department also agreed with prosecutors that the officer
hadn't conducted a search when he peered through the gap in the
blinds. Several justices seemed to agree, suggesting that the people
in the home didn't expect privacy because they were careless in
closing the blinds.

Justice Stephen Breyer told the defendants' lawyer, Bradford Colbert,
that he believed the men had a good case until he realized they lived
in a ground-floor apartment and should know "everyone can look in" if
they don't "pull the blinds the right way." 
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Checked-by: Patrick Henry