Reasonable expectation of privacy and third-party consent searches.

Abstract

Reasonable expectation of privacy is discussed in the context of searches conducted without the warrants usually required by the Fourth Amendment but with the consent of a third party, who is not the target of the search. Case law on this issue is neither consistent nor clear-cut. Psychological theory and research clarify this issue by establishing closer correspondence between legal concepts and assumptions and individuals' actual behaviors and social expectations. The key legal components of reasonable expectation of privacy are delineated, with regard to third-party consent: “common authority” areas versus “exclusive use” areas and theassumption of risk doctrine. Next, the psychological theory and research on interpersonal relations and human territorial functioning are reviewed as they relate to the legal components of privacy regulation. Taken together, the legal criticisms of this warrant exception category, and possible discrepancies between the legal assumptions concerning interpersonal and territorial functioning among co-residents and the actual behaviors and expectations suggested by psychological theory and research, raise questions about its validity.