California Criminal Lawyer Blog

In the instant case, the sole condition of electronic monitoring does not implicate the Fourth Amendment. It does not violate a reasonable expectation of privacy under the Fourth Amendment.

Electronic monitoring simply alerts law enforcement officials when Ms. Gardner has traveled 100-300 feet away from her home in violation of her curfew restriction. It does not reveal where she is within the home. The system functions as a virtual monitor standing watch outside of Ms. Gardner's home to ensure she complies with her curfew.

Thus, electronic monitoring itself does not invade Ms. Gardner's reasonable expectation of privacy since the system monitors only what would be readily observable to the public eye. See United States v. Knotts, 460 U.S. 276, 281-82 (1983) (concluding that no reasonable expectation of privacy exists where a person travels in public); Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring). Cf. United States v. McIver, 186 F.3d 1119, 1126 (9th Cir. 1999) ("[T]here is no reasonable expectation of privacy in the exterior of a car because the exterior of a car, of course, is thrust into the public eye, and thus to examine it does not constitute a search." (quoting New York v. Class, 475 U.S. 106 (1986))).

Nor does electronic monitoring implicate any identifiable common law right to privacy and thus a fortiori does not establish a liberty interest under Paul. The common law tort of intrusion upon seclusion requires that a plaintiff show an intentional intrusion into the solitude or seclusion of another or his private affairs or concerns that is highly offensive to a reasonable person. Restatement (Second) Torts § 652B (1977). Here, similar to the Fourth Amendment analysis, electronic monitoring would not trigger liability since it only provides information that is readily gleaned by the public eye. See id. cmt. c ("[T]here is no liability ... for observing [the plaintiff] or even taking his photograph while he is walking on the public highway, since he is not then in seclusion, and his appearance is public and open to the public eye.").

United States v. Gardner, 2007 U.S. Dist. LEXIS 87843 (N.D. Cal. November 28, 2007):