Is Privacy Violated When Police Peep Through Windows?

Acting on a tip, a police officer looks into an apartment window and - through a crack in the Venetian blinds - sees three people dividing a pile of white powder into plastic bags.

He calls a narcotics detective, who attempts to obtain a search warrant for the apartment. But two of the suspects leave the apartment and start to drive away before the warrant arrives, so the officer arrests them. In their car the policeman discovers a loaded gun and baggies of cocaine.

An open-and-shut case?

Not quite. The suspects were convicted at trial, but the Minnesota Supreme Court later set both men free. The grounds: The police officer violated the suspected drug dealers' right to privacy when he peered through the crack in the drawn blinds of the apartment window.

Today, the case, called Minnesota v. Carter, moves to the US Supreme Court. It is seen as an opportunity to spell out a clear nationwide standard regulating how far police can go in conducting warrantless investigations without violating the privacy rights of criminal suspects in houses, apartments, and motels.

Civil libertarians say the case raises the specter of the kind of government-sanctioned snooping inside people's homes envisioned by novelist George Orwell.

Law-and-order advocates say the case could unleash a barrage of new legal loopholes to help convicted criminals escape punishment.

Taking sides

Law-enforcement officials from 26 states signed a friend-of-the-court brief siding with Minnesota prosecutors who want the US Supreme Court to overturn the state high court's decision. They warn that unless the case is overturned, the precedent would threaten the ability of police forces to continue to wage America's war on drugs. "At stake in this case is the ability of law-enforcement officers to investigate, arrest, and successfully prosecute [drug dealers]," the brief says in part.

On the other side, Minnesota public defenders are arguing that sometimes it is necessary to set aside criminal convictions for the larger good of protecting the constitutional liberties of all Americans. "There is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all," they argue, quoting from a 1987 Supreme Court decision.

"This court must preserve the sanctity of the home, the core value of the Fourth Amendment, for everyone," they say.

Rules of investigation

Under the Fourth Amendment, police officers must obtain a warrant from a judge before searching or otherwise entering a home while conducting an investigation. One exception is when the officer can see evidence of illegal activity inside a home or apartment from a place available to the general public.

If, for example, drug dealers were conducting a transaction in a garage and failed to close the garage door, police would be able to stand nearby in a public place and observe the activity without obtaining a warrant. One test of the propriety of the police action is whether the police had to take any extraordinary measures to obtain their view of the alleged illicit activity or whether it was simply there for all to see.

Attorneys for the state of Minnesota argue that the police officer in their case made his observations from a common, public area outside the apartment. They argue that the suspected criminals inside could have no reasonable expectation of privacy because they were engaged in illegal activities and could be observed from outside.

State public defenders counter that their clients closed the doors and drew the blinds as tightly as possible. That, they say, is evidence of an expectation of privacy.

"What is important is that [the officer] stood directly in front of the window and peered into the apartment for 15 minutes," the public defenders argue. "A brief glance at a window is far different than standing 12 inches from the window and staring into the apartment."

Lawyers for Minnesota present a long list of similar instances when officers saw illicit operations or evidence by looking through house or apartment windows. In most cases, they note, the surveillance met with no objections from the courts.

A decision is expected by July.