Thursday, October 21, 2010

Can the Police Invade an Expectation of Privacy at a Gravesite?

An article in the Detroit Free Press suggests a novel Fourth Amendment Issue: is there a reasonable expectation of privacy at a family gravesite? (Credit to Crime and Consequences for bringing this to my attention.)

The defendant is accused of murdering his parents. Apparently, the police planted a listening device at the grave of the parents, and the prosecution wants to introduce evidence obtained from a conversation between the defendant and his brother.

I will leave to other the weight or relevancy of this evidence.

The initial Fourth Amendment view is that there is no expectation of privacy at a public place. And a cemetery is a public place. End of discussion? No. There is an argument that people have an expectation of privacy at funerals and gravesites. This issue arose before the Supreme Court in the recent case involving protesters at military funerals. Some of the amicus briefs suggest that such a right of privacy exists. For example, the amicus brief filed by Senators Reid, McConnell, and other senators suggests that the law has recognized a family's interest in private grieving. In a similar way, a brief from the states suggests that the law had "recognized a right to privacy inherent in funeral proceedings that has deep roots in the common law."

I don't know enough of the facts to give an opinion how this case would come out. But the case remains a good lesson that sometimes Fourth amendment issues are not as simple to resolve as they would initially appear.

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