Scott Greenfield writes:
In an upcoming law review article, Orin Kerr plans to argue that the subjective expectation of privacy prong of Katz is dead. Muerte. Gone, gone, gone. I told him that wasn’t the case. It wasn’t dead. It was just sleeping. Or to be more precise, the subjective expectation of privacy prong was only honored in the breach. It was taken for granted, except when the prosecution can demonstrate that it didn’t exist. Then it was resurrected to be used against the defendant.
But as was my good fortune, Judge Richard Kopf, in the course of asking some silly questions, raises a point that goes to the heart of Orin’s issue…
Read more on Simple Justice. Note that the judge jumps in in the Comments under the post.