William H. Rehnquist: We'll hear argument first this morning in Number 97-1147, Minnesota v. Wayne Thomas Carter and Melvin Jones. Mr. Backstrom.
James C. Backstrom: Mr. Chief Justice, and may it please the Court-- The Minnesota supreme court has ruled that a person who is present in another's residence for a brief period of time for the sole purpose of engaging in an unlawful business has a legitimate expectation of privacy in the premises. This decision, if allowed to stand, would reestablish the automatic standing rule of legitimately on the premises projected by this Court 20 years ago in Rakas v. Illinois, and it would allow visitors to vicariously assert the privacy interests of their hosts. Furthermore, the Minnesota supreme court's determination that an officer's nonenhanced observations while standing in a public area outside the curtilage of a residence constitutes an unreasonable search is inconsistent with this Court's prior decisions and will expand the exclusionary rule to the detriment of justice. The defendants here presented no evidence that they were engaged in any intimate activity normally associated with the privacy of a dwelling. They had no ownership or property interest in these premises. They were not overnight guests. They were not regular visitors. They had no ability to control access to these premises.
John Paul Stevens: Mr. Backstrom, may I slow you down a minute by asking you a question? What if the State passed a statute... I remember years ago there was a debate on maybe all defendants should have standing to challenge Fourth Amendment violations, and what if a State passed a statute and said that the defendant shall always have standing to object to an unlawful search or seizure? Do you think such a statute would be constitutional?
James C. Backstrom: Well, Your Honor, I do not believe that it would. I do not believe that the Fourth Amendment... it was intended to provide protections to everyone.
John Paul Stevens: I know the Fourth Amendment was, but could the State pass a statute that gave additional protection to a defendant without violating the Federal Constitution?
James C. Backstrom: Yes. It is possible, Your Honor. States have independent State constitutions and they could pass different provisions that relate to this, but this particular decision the Minnesota supreme court decided based upon the Fourth Amendment of the Federal Constitution.
John Paul Stevens: Do you think standing is always a Federal question?
James C. Backstrom: Your Honor, I believe it is an important Federal question, and when a decision is based upon the Federal Constitution, as it was in this case, then I think the Federal standard should apply and, as this Court has been very consistent in applying its standards, in essence a totality of the circumstances test, which we would argue is the appropriate analysis to be used in determining whether someone has a significant enough connection to the premises to give them a legitimate expectation of privacy--
Anthony M. Kennedy: Well, given the reasoning of Rakas, would it be fair to answer Justice Stevens by saying this isn't a standing question at all, it's a question of the substantive reach of the Fourth Amendment? I had thought that the Chief, then Justice Rehnquist, in writing the opinion in Rakas, went into this, and said this is not a standing question, or am I incorrect?
James C. Backstrom: --Well, Your Honor, I believe Mr. Chief Justice Rehnquist, as he wrote that particular opinion, indicated that the question which was formally referred to as standing is a subjective issue in terms of having to analyze the issues, but there's still... it's still important that a criminal defendant establish a significant enough connection to a particular premise as to give them an expectation of privacy that society is willing to accept as being reasonable.
Anthony M. Kennedy: Yes, but that's a substantive interpretation of the Fourth Amendment. It is not a question of who has rights to raise a violation. There's a slight difference, is there not? I thought that Rakas discussed this.
James C. Backstrom: But... Your Honor, I believe Rakas made it very clear that the appropriate test to apply in these particular provisions is one which looks at an individual's first subjective expectation of privacy and then whether that's the type of expectation that society is willing to accept as being reasonable. Here, under these circumstances, we don't believe that brief transient visitors that are in a residence solely for--
Ruth Bader Ginsburg: --you said brief, which was a few hours, and you said brief time, unlawful purpose. Would it make any difference, in your view of the applicable law, if they had gathered to play a game of poker instead of to put together coke, or whatever they were doing? Would that have made a difference?
James C. Backstrom: --I do not believe it would, Your Honor. When you apply a totality of the circumstances analysis to these types of issues, you have to look at a wide variety of factors such as their ability to control access, the frequency of their visits, how long they stayed on a particular occasion.
Ruth Bader Ginsburg: But you wouldn't know about whether they were there for a lawful purpose before you began this search, so it can't turn on the... can we take that out of it, whether they're there to play poker or whether they're there to prepare drugs?
James C. Backstrom: No, I do not believe you can, Your Honor. It's not the... you know, obviously the police officer's never going to know what the person's connection with the premises is at the time he conducts his observations, but the nature of the conduct that's involved I think is a factor to be considered. It's a factor to be considered as it relates back to their connection of the individual to the premises themselves, but we believe that as it relates back, as it relates to the type of activity that's normally associated with the privacy of a dwelling, then that nature of the... the nature of the activity may be a factor to be considered, but we believe--
David H. Souter: What you're saying, aren't you, is that whenever there is a need to invoke a Fourth Amendment protection this factor is going to count against the need? I mean, the only time people raise the Fourth Amendment is when somebody is about to introduce something into evidence in a criminal trial, and I think you're saying that this factor always counts against them when they want to do the very thing that the law allows them to do by filing a suppression motion.
James C. Backstrom: --Well, Your Honor, I believe what I'm saying is the nature of the activity involved is a factor to be considered under a totality test.
David H. Souter: So I mean, the tendency of what you're saying is that criminals should not have a right to raise Fourth Amendment issues under a totality test. Is that--
James C. Backstrom: No, that is not what I'm saying, Your Honor.
David H. Souter: --Then tell me how the criminal nature of the activity properly counts if that is not the tendency of what you're arguing.
James C. Backstrom: Criminal activity is obviously not the type of conduct that's normally associated with the privacy of a dwelling. The fact that the activity is criminal in nature should provide no benefit, is what we're arguing, to the totality analysis, whereas if there's--
David H. Souter: Oh, I thought you were arguing that it should provide a burden, as it were, in the test. You're not arguing that at all.
James C. Backstrom: --No, we're not, Your Honor.
David H. Souter: Okay.
William H. Rehnquist: Was there any testimony at all from the defendant in this case as to how long he had been there? As I recall, the record is simply silent on that, is it not?
James C. Backstrom: The record is silent, Your Honor. There was no testimony offered by the defendants regarding those issues, and it is the defendant's burden of proof.
William H. Rehnquist: Yes, I would think so, that if he's claiming a violation of the Fourth Amendment he's got to show that it was his rights that were infringed.
Sandra Day O'Connor: The States have applied various standards in courts to determine whether there's a Fourth Amendment violation with regard to a visitor in a home and, as I look at the cases, they seem to turn quite often on the extent to which the visitor has control over the premises. A visitor who's been given a key and the right to exclude others would be treated much like the homeowner, but someone with a more casual contact would not. I find the totality of the circumstances test pretty vague. Do you place any reliance on the control test that's used by some of the State courts?
James C. Backstrom: Yes, Your Honor. I believe that the ability to control access is a factor to be considered, and again, there are... these different factors may have different weight in the analysis under the totality test, but this Court has used a totality of the circumstances test a long time for purposes of Fourth Amendment analysis, not just in issues relating to standing, but in issues relating to the voluntariness of a search, whether or not there's enough probable cause to obtain a search warrant--
William H. Rehnquist: Mr. Backstrom, what happened to the occupier, the resident in this case? Was she charged, or--
James C. Backstrom: --Yes, Your Honor, she was charged and convicted as well of the same charges that these two defendants were.
William H. Rehnquist: --Convicted as a result of trial, or a guilty plea, or--
James C. Backstrom: She was convicted after a trial in this case, Your Honor.
David H. Souter: --Mr. Backstrom, you said a moment ago at the beginning of your argument that the position below was tantamount to the readoption of the automatic standing rule, and I'm wondering if it is. Isn't there a distinction to be drawn between this notion of common enterprise that there would be standing when the stranger, when the guest or invitee is engaged in some kind of a common activity with the owner of the dwelling on the one hand and on the other hand the position of somebody who comes in, let's say, to do casual labor, fix the telephone, the burglar who happens to be in the bedroom when the police arrive? Can't a line be drawn there, and if a line can be drawn, isn't the rule below something short of reestablishing automatic standing?
James C. Backstrom: Well, we do believe the rule below, Your Honor, would establish the automatic standing legitimately on the premises, because we believe that the near engagement in a common task with a resident or a property possessor is basically tantamount to establishing that. It's nothing more than--
David H. Souter: What about a line I suggested? There's something... like all lines, there are going to be times when you're going to have difficulty drawing it, but there is, it seems to me, something intuitively different about three people sitting around a table, in this case packaging cocaine, and on the other hand the individual who comes in to fix the telephone, who really is simply admitted to do a job and is not engaged in a concerted activity with the homeowner. Isn't that a line that could be drawn, and isn't it implicit here?
James C. Backstrom: --I do not believe it is, Your Honor. The two defendants in this case were mere business invitees. They were not residents of this apartment. They were engaged in--
David H. Souter: Right.
James C. Backstrom: --a process. They were just like--
David H. Souter: The owner of the apartment was engaging in the business activity with them. I think the three of them were engaged in sort of a common enterprise, weren't they?
James C. Backstrom: --Well, as this Court pointed out in Lewis v. United States, Your Honor, when the home is converted for business purposes, that business is entitled to no greater sanctity than if it were carried on in a store, a garage, or a car. This court has addressed similar issues. In that case it was an unlawful business, as it is here, and--
David H. Souter: Well, are you then saying the reason is that it was business, whereas if it had been a criminal enterprise not for profit, you would admit the distinction, the line that I was suggesting? Is it that the line cannot be drawn, or that you shouldn't draw it in a business case as opposed to a nonbusiness enterprise, or a nonbusiness activity? Which is the reason for your answer?
James C. Backstrom: --Well, Your Honor, I believe what we're arguing here is that the business differential, the business versus a social guest is a line to be drawn, and an important one, but that's not to say that business visitors don't have the rights of privacy--
William H. Rehnquist: Do you know of many nonprofit criminal enterprises?
Speaker: [Laughter]
James C. Backstrom: --No, Your Honor.
Speaker: What is the difference, as you see it, between your brief and the Government's brief that supports you here?
James C. Backstrom: There is no dramatic difference between our two briefs, Your Honor. We would agree that most temporary guests, as the Solicitor has put forth in their brief, would not have a legitimate expectation of privacy in the premises. However, we believe that under certain circumstances a short term guest may have those connections, if they've been a frequent visitor, had ability to control access, and so forth.
Ruth Bader Ginsburg: A poker player that doesn't have the key but comes every week to play the game?
James C. Backstrom: Well, again, I think that is a factor to be considered, Your Honor, the frequency of visits, what's the nature of their connection--
Ruth Bader Ginsburg: I've given you the case, so what is it? The poker player comes for the game but doesn't have the key, can't get in unless the occupant of the premises opens the door, stays for... I don't know how long these sessions run... 2 hours, say.
Speaker: More than that.
James C. Backstrom: --I would... Your Honor, I would-- [Laughter] I would... I do not believe that person would have a legitimate expectation of privacy in the premises unless there were other factors associated with their connection to that particular residence.
Ruth Bader Ginsburg: Like what?
James C. Backstrom: Like, they've been frequent visitors, they're frequently... that they have the ability--
David H. Souter: You mean if they play five times a week they get standing, if they play once a week they don't?
James C. Backstrom: --Well, there are factors to be considered. There are--
David H. Souter: Yes, but how about that factor?
James C. Backstrom: --Well, I... that's perhaps enough additional information that might render their connection with the premises more significant than the first time visitor to a particular premises.
David H. Souter: I understand the factual difference, but I don't know why it should make a difference. If in each case the individual is invited by the owner to engage... I guess in this instance I'm sure it's a lawful activity.
Speaker: [Laughter]
David H. Souter: Why should it--
Speaker: [Laughter]
David H. Souter: Why should it make a difference whether they play once a week, or three or four or five times a week?
James C. Backstrom: Well, Your Honor, we're just... we're suggesting that under totality of the circumstances test you have to look at all of those factors.
David H. Souter: I know you're saying I have to look at it, but what I'm saying, why should that distinction be a potential source of difference?
James C. Backstrom: That distinction by itself may not be, but if you add that to some of the other factors, such as whether they have an ongoing intimate relationship with the person that they're involved in playing this--
David H. Souter: I play poker once a week. It seems to me I've got a pretty strong personal relationship with somebody.
James C. Backstrom: --Well, that in itself may not be enough to give you a significant enough connection to a residence other than your own for purposes of establishing whether you have an expectation of privacy that society's willing to accept as being reasonable.
Stephen G. Breyer: What are we driving towards with these tests? In my own mind, perhaps wrongly, I've used the Spanish expression, mi casa es su casa... my house is yours... and insofar as that's the attitude, there's the expectation of privacy, and insofar as it's not, there isn't, and is that what these cases seem to be driving towards? When we invite a weekend guest, that's what we say, my house is yours, but we certainly don't say that with a business visitor normally, and perhaps with a poker player it depends on the nature of the game, but is that what this is driving towards?
James C. Backstrom: Your Honor, I don't believe it's the intent that's in the mind of the host that's inviting someone in.
Stephen G. Breyer: What is it, if it's not that? That is, I'm not saying who has the intent. I'm saying, do the circumstances suggest that's what's going on, my house is yours. Now, is that what this is aiming at, yes or no? It is or it isn't. If it is, fine. If it's not, what are these tests aiming at.
James C. Backstrom: Well, Your Honor, I do not believe that the test hinges on the intent of the parties. I believe the test requires an application of society's expectations under a totality analysis.
William H. Rehnquist: We do need to have something that we can hang our hat on. Wouldn't it be consistent with all of our jurisprudence to say that the expectation of privacy is limited to overnight guests?
James C. Backstrom: Yes, I believe... this Court has obviously indicated that in Minnesota v. Olson, and we believe that's the outer standard for purposes of establishing a legitimate expectation of privacy. On the other hand, one certainly has to be legitimately on the premises, and in the area in between you need to analyze the factors--
William H. Rehnquist: Well, certainly when you say guest it suggests someone who's legitimately on the premises, not there by some sort of subterfuge.
James C. Backstrom: --Yes.
Anthony M. Kennedy: Well, it seems to me that what you're suggesting is what we might call a multifactor test, and it may be almost impossible to avoid it, but that the Government tries to reach a higher level of generality and say that there is just no legitimate expectation of privacy by a social or business guest in a home, other than an overnight visitor. I guess that's it, I think there's a difference between the two of you in that respect. Now, maybe on analysis we're going to have to ask the Government, well, how do you know it's not legitimate, and then they'll give us all these factors, and we'll be right where you are.
Sandra Day O'Connor: Maybe the line should be business versus social.
James C. Backstrom: I believe that is an important distinction. It's an important distinction in this case, Your Honor, because that's what we're dealing with here.
Sandra Day O'Connor: We're dealing with a business transaction.
James C. Backstrom: Yes.
Sandra Day O'Connor: The apartment occupant was to get a certain amount of the cocaine in exchange for letting them use the premises.
James C. Backstrom: Absolutely, Your Honor.
Anthony M. Kennedy: Although business invitees usually are entitled to a higher standard of care, so... even in the law of torts, so we would be reversing it, but I think what Justice O'Connor suggests might make a lot of sense insofar as our legitimate expectations of privacy. The refrigerator repairman and so forth are limited in their access to other parts of the premises, and it seems to me that the business social distinction might be helpful here, as Justice O'Connor suggests.
James C. Backstrom: I agree, Your Honor, and what we're asking the Court to establish in this case under these facts is that a short term guest in another person's residence for business purposes does not have a legitimate expectation of privacy. If I have any further time, I'd like to reserve it, Your Honor.
William H. Rehnquist: Very well, Mr. Backstrom. Mr. Lamken, we'll hear from you.
Jeffrey A. Lamken: Mr. Chief Justice, and may it please the Court-- Respondents did not suffer a violation of their Fourth Amendment rights for two reasons. First, respondents' status as mere short term business visitors did not give them a legitimate expectation of privacy in the home that they were visiting. Second, the police officer's observation of the apartment from the common grassy area outside the window did not constitute a search within the meaning of the Fourth Amendment.
Anthony M. Kennedy: How would you answer the question I put to the petitioner's counsel?
Jeffrey A. Lamken: I'm sorry, Justice Kennedy.
Anthony M. Kennedy: What is the difference between your approach and the State's approach, if any, in your briefs?
Jeffrey A. Lamken: I think our approach is similar. Ours simply has a higher level of generality. The questions we ask would be the questions this Court asked in Olson, which is, is this person effectively the functional equivalent of a member of the household, such that they would exercise some element of control, perhaps in the host's absence? Is this person someone who's expected to conduct their intimate or private affairs in the home such that society accords them a privileged sense of privacy there? Does this person fall within a social tradition under which the host would be expected to defer to the visitor's privacy interests? For an overnight guest, those factors all point that this person is functionally a member of that household.
Anthony M. Kennedy: Does frequency of visitation enter into that balance?
Jeffrey A. Lamken: It would be one thing that a trial court would be justified in looking at, but I don't believe it would be dispositive.
Anthony M. Kennedy: Related status between the party, cousin versus friends?
Jeffrey A. Lamken: I think that when you have relatives, that might tend to suggest that this person's more likely to be treated as a member of the household.
Antonin Scalia: Even if he's not an overnight guest. You're acknowledging that if it's a relative who visits frequently, a cousin who often comes in for an hour to have lunch, that that would make--
Jeffrey A. Lamken: No, Your Honor, we would not go that far.
Antonin Scalia: --You have an absolute rule that if it's not overnight it's not covered, is that it?
Jeffrey A. Lamken: No, Your Honor. The cousin who comes in occasionally is a mere short term social visitor. However, a cousin who has a key and enters on his own, or frequently spent the night, might be the functional--
Antonin Scalia: I'm excluding spending the night. This cousin never spends the night. He has a key, and he comes in and has lunch with some frequency, once a week.
Jeffrey A. Lamken: --Well, Your Honor, if the cousin is treated as a temporary member of the household... for example, he's free to let himself in or admit others... I think the cousin might well have a legitimate expectation--
Antonin Scalia: What if he's not a cousin. He's a drug dealer, and he comes in... he's given a key, comes in every week for lunch.
Jeffrey A. Lamken: --I think the illegality of the conduct is something this Court traditionally sets aside. For example, in Olson the individual was spending the night to evade the police--
Antonin Scalia: Right.
Jeffrey A. Lamken: --because he engaged in armed robbery, but the Court didn't look at specifically the illegal--
Antonin Scalia: So this would be... he would have... you're saying he would have the Fourth Amendment privilege as well, just like the cousin.
Jeffrey A. Lamken: --He's very similar to the defendant in Jones, except for the fact he doesn't spend the night, in that he exercises control over the premises and is treated as a member of the household. Under those circumstances, yes, he would have a legitimate expectation of privacy like any other member of the household.
John Paul Stevens: So you do not say he must be an overnight guest.
Jeffrey A. Lamken: No. I think the instances in which one is not an overnight guest and would have--
John Paul Stevens: And also it could be a commercial arrangement. Suppose it's a babysitter who comes in, never spends the night but always gets paid for his or her watching of the children.
Jeffrey A. Lamken: --No, I don't believe a babysitter would have a legitimate expectation of privacy.
John Paul Stevens: Oh, you don't.
Jeffrey A. Lamken: Although there is some element of control in the fact that the babysitter stands in the shoes of the parents, it's a very limited element, and the babysitter is not a functional equivalent to a member of the household. The babysitter's not free to enter or leave as she pleases, not free to admit others.
John Paul Stevens: But the drug dealer who comes once a week, because he has a key and has lunch there, is?
Jeffrey A. Lamken: If the--
John Paul Stevens: I'll go with the babysitter over the drug dealer.
Speaker: [Laughter]
Jeffrey A. Lamken: --I think, Justice Scalia, the instinct is to set aside the illegal nature of the conduct. If the drug dealer has control of the apartment, admits himself, is free to admit others, he's functionally equivalent to a member of the household, and even though he is a drug dealer. On the other hand, the babysitter is not free to admit others, is not a member of the household. It's a closer case, however, Your Honor, than what we have here. What we have here are mere short term business invitees, and mere short term business invitees, unlike--
John Paul Stevens: Now, if a Peeping Tom looked through the window at a babysitter, would she have any... could she be classified as a victim in terms of victim impact statements and all the rest? Would she be a victim of the offense?
Jeffrey A. Lamken: --Assuming there was a Peeping Tom offense it's possible, although it's interesting to note that if you look at the Minnesota statute here the purpose of peeping in the room must be to interfere with the privacy of a member of the household, which strongly suggests--
John Paul Stevens: So she would not be a victim of the Peeping Tom's offense, in your view?
Jeffrey A. Lamken: --Not under the Minnesota statute, no.
John Paul Stevens: A rather strange--
Jeffrey A. Lamken: And it's interesting to note, because that suggests that to the extent State statutes are relevant, that the Minnesota... the State of Minnesota has determined that the expectation of privacy belongs to members of the household, or their functional equivalents, and not to mere short term social or business--
Sandra Day O'Connor: --Mr.--
Anthony M. Kennedy: --Your functional equivalent test is not in your brief, is it?
Jeffrey A. Lamken: --Pardon?
Anthony M. Kennedy: Is... did--
Jeffrey A. Lamken: Those precise terms are not, but I believe that those are the factors, the three factors we identified for Minnesota v. Olson, what they are driving at.
Antonin Scalia: --Which is sort of the way the Fourth Amendment reads, too, isn't it?
Jeffrey A. Lamken: Yes. It says--
Antonin Scalia: To have people be secure in their homes, not in somebody else's home.
Jeffrey A. Lamken: --Exactly. There is a possessive--
Antonin Scalia: In their houses, but--
Jeffrey A. Lamken: --Precisely. There's a possessive there.
Antonin Scalia: --But we've gotten beyond that, haven't we?
Jeffrey A. Lamken: The Court has moved away from traditional notions of property law and looks at shared social understandings, as indicated in Katz, but there is definitely a possessive in the text of the Fourth Amendment.
Sandra Day O'Connor: Mr. Lamken, now I'm not sure we're going to get to the second question, but if we did, do you support the notion that a police officer can go to a residence with a closed venetian blind and stoop down to peer between the cracks, 8 inches from the crack, and that's perfectly legitimate, that's okay?
Jeffrey A. Lamken: If the officer does not cross onto the curtilage, and I think it's important to note the nature of the area in front of the window in this case. If you look at joint appendix I 3, it is... has the nature of an open field.
Sandra Day O'Connor: As long... your position is that as long as it's a sidewalk in front of the apartment building that anyone can use, then they can squat down, peer through the tiniest crack that obviously the homeowner has hoped to exclude prying eyes from. That's okay.
Jeffrey A. Lamken: Yes, Your Honor. This Court has established that police officer observation from open fields and public areas is not a search within the meaning of Fourth Amendment--
Sandra Day O'Connor: But isn't it rather different to contemplate a police officer walking by, no curtains drawn, and you can see in the open window and see what you see? Isn't that different in quality and nature from the person who, faced with a closed blind, scrunches down to peer through the crack?
Jeffrey A. Lamken: --Your Honor, I don't believe that the open fields doctrine or the public place doctrine is subject to fine tuning based on whether the officer is tall and happens to squat down, is short, stands on tiptoe, stares for a minute or an hour. Those things that are exposed to the open fields and public places for view are open to view, and viewing them does not constitute a search.
Antonin Scalia: I guess if you're so careless as to leave a... that's what I found extraordinary about this case. Apparently they left... the blind wasn't closed properly. There was a gap in it.
Jeffrey A. Lamken: Yes. The record indicates there were a gap in the blind--
Antonin Scalia: And they were standing there are the table handing out the white powder. I don't think that's a reasonable expectation of privacy. If you don't pull your blinds down--
Ruth Bader Ginsburg: --Well, there wasn't--
Antonin Scalia: --you don't have a reasonable expectation.
Ruth Bader Ginsburg: Does the record tell us that it was that they were careless in the way they closed the blinds, or that she was a tenant in the building, that they did the best they could with the blind that they had?
Jeffrey A. Lamken: --I think the best reading of the record, if you look at, I believe it's G 32 and 48 and 49 of the joint appendix, is that some of the lathes had not turned. The officer specifically testified that at least one or two of them were part open. I'm saying that part of them was open, yes, and those are quotes from the record. So I think the best reading of the record is that parts hadn't turned, but we don't have a dispositive finding.
Ruth Bader Ginsburg: If the informer had violated the Peeping Tom statute... leave the police officer out of it... the employer who scrunches down, as Justice O'Connor just described it, peers through that crack, would that have been a violation of the Peeping Tom statute?
Jeffrey A. Lamken: Your Honor, I'm not sure that it would, but I also am sure that it would not matter, because State law cannot convert a public place or an open field into a private location from which viewing is a search.
David H. Souter: Mr. Lamken, your argument assumes that we accept the conclusion by the... I guess it was the intermediate appeals court, or the trial court in Minnesota that the officer was not within the curtilage. As I understand it, the supreme court of Minnesota did not deal with that issue, is that correct?
Jeffrey A. Lamken: Yes. The Minnesota supreme court assumed for the sake of argument that the officer did not cross into the curtilage.
David H. Souter: Isn't there something passing strange about the conclusion that the officer was not within the curtilage? As I understand the facts, although you speak of common areas and areas open to the public, the officer had gone up next to the building between... in effect between the building and the shrubbery... and was standing there, and I would suppose that if we were dealing with the usual one family house we would say, well, of course that's within the curtilage. Why don't we say it in the case of an apartment building?
Jeffrey A. Lamken: Justice Souter, I'm going to ask you to turn to joint appendix I 3 to answer that question. The area immediately in front of the window is... I 3. It's towards the back. If you look, it's an open grassy area leading straight up to the window, and it was across that open grassy area that the officer walked. There's nothing obscuring the--
David H. Souter: Yes, but he wasn't... as I understand it, he wasn't seeing within the crack of the blinds as he crossed the lawn. I thought as the briefs described the facts he didn't get to see inside until he had positioned himself between a shrub and the wall of the building.
Jeffrey A. Lamken: --I see that I'm out of time. May I answer the question, Mr. Chief Justice?
William H. Rehnquist: I beg your pardon?
Jeffrey A. Lamken: May I answer the question? I'm out of time.
William H. Rehnquist: Yes. I was just looking at the exhibit.
Jeffrey A. Lamken: The record reflects that he stood only 12 to 18 inches away from the window.
David H. Souter: Was he between the shrubs and the building or not?
Jeffrey A. Lamken: No. He was on the left hand side of the window, if I read the record correctly, Your Honor.
David H. Souter: But was the shrub--
Jeffrey A. Lamken: The shrub did not obscure his view, and he approached the building without crossing the shrubs, although that wouldn't make a difference.
William H. Rehnquist: --Thank you, Mr. Lamken. Mr. Colbert, we'll hear from you.
Sandra Day O'Connor: Mr. Colbert, as long as we're on the exhibits, and trying to ascertain the facts, look at I 9--
Bradford Colbert: Right.
Sandra Day O'Connor: --which was Exhibit 39, which is the close up of the blind in question. Does that represent how it was on the occasion at issue?
Bradford Colbert: Actually, that was a matter of much discussion during the hearing, is that they did not admit that that's how the blinds were.
Sandra Day O'Connor: What was the finding of the--
Bradford Colbert: There has been no findings regarding that--
Sandra Day O'Connor: --So we don't know in what condition--
Bradford Colbert: --That's correct, Your Honor.
Anthony M. Kennedy: --Do you understand Justice O'Connor's question to relate to the window to the immediate left of the door and to the right of the bike, or to the double windows that are to the left of the bike and under the balcony?
Bradford Colbert: If you'll look at Exhibit I 2--
Anthony M. Kennedy: I 2?
Bradford Colbert: --I 2... excuse me, Exhibit 9 on page I 2 of the joint appendix, you can see... I think this represents, if you look at the bottom of the building, there's a little window there, and then there's a bicycle. What the officer looked into was the next set of windows.
Anthony M. Kennedy: The windows that are under the balcony.
Bradford Colbert: Exactly right, Your Honor, under the balcony behind the bushes. The bushes are approximately 3 to 4 feet away, which answers Justice Souter's question, yes, he had to get between the bushes and the window.
Stephen G. Breyer: Why? Why is that? I mean, I thought you had a fairly good case until I looked at two exhibits. Once I looked at Exhibit 10 which is the same as Exhibit 9, I take it, it is just taken from a different angle, and then I looked at Exhibit 8... and I'm asking you this. I'm not... I'm going to sound more definite than I am... I thought, well, this is just a basement apartment. I mean... I lived in a basement apartment once. Our kitchen's still sort of underwater... and when I'm there, I know that if you don't pull the blinds the right way, everybody can walk in and look, so when I'm in the kitchen when I used to live in that basement apartment, I assumed I had to pull the blinds. Now, it's true that in my... on my basement apartment was about 2 feet away from the sidewalk, but I thought people used to wander by. Now, I look at this, it looks about the same to me, particularly is a bicycle behind these bushes. What bushes did he... he didn't have to climb over any bush, just walk there, and it sounds as if bicycles go back and forth, they said. So why wouldn't you expect, if you live in that apartment, that somebody might walk by, and you'd better pull the blinds the right way because if you pull them the wrong way anybody can see in.
Bradford Colbert: I think the bushes will protect you from looking into these windows.
Stephen G. Breyer: How do they in Exhibit 10 protect me? Suppose I start here on the left, and I simply walk over one window, two windows, three windows, there I am. I never went to any bushes. I mean, I grant you I could go through the bushes, or I might not go through the bushes.
Bradford Colbert: But in this case these officers went over the bushes, which is what the Minnesota supreme court found, crawled over the bushes to get to these windows, and so I think it's clear that these bushes were protected... were put there so you would not walk by these windows.
Sandra Day O'Connor: Well, if you look at Exhibit 12, I 5, there's no obstruction by the bushes at all. I mean, anybody could walk right up.
Bradford Colbert: The lawn is a big lawn in front, but these bushes are protecting this particular window, and I think--
Sandra Day O'Connor: Well, not in Exhibit 12 they're not.
Bradford Colbert: --Right, and I think the angle depends on it, if you're looking at--
Sandra Day O'Connor: So if you walked up from that side, from the place where that photo was taken, there's no bush in between.
Bradford Colbert: --That's correct. That's correct, Your Honor.
Stephen G. Breyer: Why did the officer... just... why did he crawl over this bush? I mean, why would he do it? I mean, the bicycle's right there between the path and the wall. Why did he crawl over a bush? Why didn't he just walk?
Bradford Colbert: It's not clear to me, and this picture was not taken... because this was obviously taken during the day, and the search itself took place at night, and the other part of it--
Sandra Day O'Connor: One other question. The blinds. Was it a venetian blind, or one of those bamboo blinds that just unrolls.
Speaker: [Laughter]
Bradford Colbert: --They're horizontal--
Sandra Day O'Connor: What?
Bradford Colbert: --They're horizontal leveler blinds, and they're the plastic type, and--
Sandra Day O'Connor: Plastic venetian style--
Bradford Colbert: --Yes.
Sandra Day O'Connor: --blinds?
Bradford Colbert: Yes, and if you're familiar with them, as they get old, there tends to be gaps in them, but if you look at some of the pictures you can see that you cannot see in those blinds unless you are 12 inches away. It's not a matter of... as Your Honor was pointing out, of simply walking by. You have to be very close to look in there, and the officer didn't simply look in there. He looked in there for a period of 15 minutes. He was constantly changing his position so he could see, and look in there, so it's a completely different story than if he had been walking by--
Sandra Day O'Connor: Do you say that any enhancement of the officer's ability to observe is invalid? For instance, the officer who, in order to see in a yard, gets a ladder and gets up on it to look in, puts the ladder on the sidewalk and looks over the top?
Bradford Colbert: --I think--
Sandra Day O'Connor: Is that okay?
Bradford Colbert: --No, Your Honor.
Sandra Day O'Connor: No.
Bradford Colbert: I think the standard should be if it's not a place the public--
Sandra Day O'Connor: Well, maybe that's what you think it should be. What do you think in fact the courts have held?
Bradford Colbert: --I think the courts have held that if the officer is not in a position where the public expects him to be. I think that's what this decision in Florida v. Riley held.
Sandra Day O'Connor: He puts the ladder on the public sidewalk.
Bradford Colbert: It doesn't matter. If the public... he's not in a position where the public expects him to be.
Antonin Scalia: Well, what if he walks across a large field that's owned by a farmer and looks inside the barn. We've held that's okay.
Bradford Colbert: That's correct.
Antonin Scalia: Is the public expected to do that?
Bradford Colbert: That's correct, Your Honor. I think one of the big differences there is the idea that it's a house, not a barn, and this Court has clearly emphasized the difference in privacy between looking into a barn and looking into a house.
Antonin Scalia: If he had walked across that field and looked into the house, although still beyond the curtilage of the house, would that have been banned?
Bradford Colbert: If the officer had walked across open fields and looked into a house, I think that would be a violation of the Fourth Amendment.
Antonin Scalia: Really? I don't think so.
Sandra Day O'Connor: Well--
William H. Rehnquist: --What case stands for that proposition?
Bradford Colbert: The... Florida v. Riley discusses looking into curtilage, and in Florida v. Riley this Court discusses looking... not looking into the house.
William H. Rehnquist: Are you saying that Florida v. Riley stands for the proposition that you just cited?
Bradford Colbert: It follows from Florida v. Riley. Distinguishing between looking into curtilage and looking into a house. The cases that have discussed when officers have looked into different areas, they emphasize that this is not looking into a home, so I think they follow--
Sandra Day O'Connor: What about the use of night vision glasses? Is it okay, as long as you don't train them on the house?
Bradford Colbert: --Yes, Your Honor. I think that... excuse me... this Court has--
Sandra Day O'Connor: In your view?
Bradford Colbert: --Yes. This Court has clearly emphasized the protection to be provided by the home.
David H. Souter: What about--
Ruth Bader Ginsburg: --Suppose the blind were one third of the way up instead of being closed. In other words, from what you've just said I gather you would include even when the blind is up so you don't have to go through contortions to see what's going on. That would still be an unlawful search.
Bradford Colbert: This courts have held that you have to exhibit a subjective expectation of privacy. If the blinds are a third up, I don't think... I... then you would have not exhibited a subjective--
Ruth Bader Ginsburg: At what point do you?
Bradford Colbert: --In this case, where defendants closed the blinds as much as they could, that's... they clearly evidenced a subjective expectation of privacy.
Antonin Scalia: What if you closed them as much as you could and when you closed them as much as you could they were a third of the way up?
Bradford Colbert: Then your expectation of privacy would not be reasonable.
Antonin Scalia: So just doing it as much as you could is not... is not the touchstone.
Bradford Colbert: That's correct, Your Honor.
Antonin Scalia: Okay. So what you're really saying is here, they weren't that much open.
Bradford Colbert: That's correct, Your Honor.
Antonin Scalia: Okay.
Anthony M. Kennedy: If my colleagues are ready to leave the bushes and the blinds, I was curious, at what level of generality do you say we should evaluate the question of whether there's a legitimate claim of privacy? Are you suggesting... you're not suggesting that we repudiate Rakas, or are you?
Bradford Colbert: No, Your Honor. This is not a case where--
Anthony M. Kennedy: Are we propelled necessarily into a multifactor case no matter what we do?
Bradford Colbert: --I think so, Your Honor. The... in this case the defendants were invited guests in a home. In Rakas, they emphasized the lessened expectation of privacy in a car. The fact that they were in a home increases the expectation of privacy. They also took measures to protect their privacy, which is another important factor in consideration.
Sandra Day O'Connor: Well, do you think the pizza delivery man has an expectation of privacy when he walks in to put the pizza on the table?
Bradford Colbert: In that case, Your Honor, the police have--
Sandra Day O'Connor: Invited in.
Bradford Colbert: --Yes, Your Honor. In that case, the pizza man first of all probably would not have taken steps to preserve their privacy, so no, in that case the pizza man would not have an expectation of privacy, even though he would have been legitimately on the premises.
Antonin Scalia: Excuse me. It's necessary that he have taken steps to... so if I'm an overnight guest and I haven't taken any steps, I just said, you know, thank you for having me, the blinds are down already, I haven't done anything, my host has locked the door, my host has put the blinds down, and I'm just there, I haven't really done anything to preserve my privacy, I don't have an expectation of privacy?
Bradford Colbert: No, Your Honor. I think what the host does also includes you... what the host does is very important, because what evolves--
Antonin Scalia: Well, with the pizza man the host has... you know, the pizza man comes in, he says lock the door behind you, you know, this is a dangerous neighborhood, and he has all the blinds down... he always keeps them down because he's right next to the street, just like this. He's worried about people looking in.
John Paul Stevens: Most pizza men don't get past the front door.
Speaker: [Laughter]
Antonin Scalia: This is Justice O'Connor's pizza man. He's not my pizza man.
Speaker: [Laughter]
David H. Souter: What do you say to the suggestion of great significance in the business or profit making versus purely social distinction here?
Bradford Colbert: --There is no distinction. One of the reasons I say that is because when the Fourth Amendment was brought about there was no distinction between your business and home. Your business was in your home, and the fact that there was some business going on in your home should not make your home not a home. In these days, we're using our homes more for businesses. We're telecommuting from home. To lose your privacy because some business is transacted in your home just doesn't... doesn't follow from history, and it isn't the way it should be headed.
Antonin Scalia: It isn't a question of whether you lose your privacy. It's a question of whether the people who come to your home for business acquire your residential privacy when they come there, not for residence but for business. Why should they be treated differently than people who come to your business to do business?
Bradford Colbert: In this case because invitees were with the resident of the apartment. In some places it may not be that way, but in this case what makes a difference is that they were working with the resident of the apartment. They were engaged in a common task with the resident of the apartment.
Stephen G. Breyer: What in your opinion should the police officer have done? I mean, he's standing on the street, I take it, and somebody comes up to him and he says, you know, I was just looking in through this basement window, or the first floor window, and there are some people there who are cutting heroin in the kitchen, and I saw them. Now, what's a police officer supposed to do? Is he--
Antonin Scalia: --He should have arrested this guy as a Peeping Tom.
Speaker: [Laughter]
Bradford Colbert: I think that's answered by this Court's decision in Arizona v. Hicks. He should have done more investigation.
Stephen G. Breyer: That's what he did.
Bradford Colbert: But without violating the Minnesota statute, without violating the privacy. He could have tried to determine if... some way to determine the informant's veracity.
Stephen G. Breyer: I mean, look, the person walks up to you, say you're the policeman. He says, you know, I was just walking by this place, and there are some people downstairs, and they're cutting drugs. I just saw them. All right. Now... now, what exactly would you do at that moment? You're the perfect policeman.
Bradford Colbert: I could ask how he knew this information.
Stephen G. Breyer: He says, I saw it in the window. I was walking by... just what he told him.
Bradford Colbert: And then he could have staked out the apartment, which is what they did after the officer looked into the apartment. They could stake out the apartment to see... and if these people had left the apartment, the informant told them there was a car, so there would be some basis to determine the veracity of the informer's information. This Court has held a number of times that simply anonymous tips do not... are not sufficient--
William H. Rehnquist: But you're saying the police have to replicate... see everything that the informant saw in order to verify his tip, and that means the tip doesn't count for anything.
Bradford Colbert: --That's not true, and... well, I think it's... an example would be if the informant guessed at the apartment. So under the circumstances the officer, if this is not a search the officer could have looked into every single window of the apartment to determine which apartment the informant was talking about. That's the problem with calling this not a search, because there is no limit upon what the officer could have done. The officer could have looked at every single apartment to see if this was indeed the drug dealing apartment. Everyone's privacy in that apartment building would have been invaded by the officer. This Court has drawn a firm line--
William H. Rehnquist: Well, you're saying even though the blinds were up in all these apartments, privacy was invaded by an officer looking in the window?
Bradford Colbert: --I'm saying, if this Court determines that this is not a search, the officer could have walked within 12 inches of every apartment here and looked through closed blinds to determine what was going on in that apartment, whether... whatever intimate activities of the home--
William H. Rehnquist: But the blinds weren't completely closed.
Bradford Colbert: --They were closed. There was a gap in the blinds, but they were closed. The State has attempted to defeat the defendant's standing by claiming that the criminal activity somehow defeats the idea of standing.
William H. Rehnquist: Mr. Lamken, Justice Kennedy asked Mr. Backstrom while he was arguing whether under Rakas this isn't really a question of substantive Fourth Amendment law rather than "standing". What's your answer to that?
Bradford Colbert: It's a two step analysis. It's substantive Fourth Amendment.
William H. Rehnquist: So really we don't have to talk about standing, isn't that right? What we have to talk about is whether your client's Fourth Amendment rights were violated by what happened here.
Bradford Colbert: That's correct.
William H. Rehnquist: So we're not talking really about standing.
Bradford Colbert: That's correct, Your Honor. After Rakas this Court does not discuss that any more. They have said that he has no expectation of privacy because of the criminal activity going on in his house.
Ruth Bader Ginsburg: I think we've backed away from that, making it depend on illegality or not of the activity inside, but police officers, as Justice Breyer indicated, have to have some kind of clear lines to follow, and so totality of the circumstances doesn't work very well. What is your position on what is a good, legitimate conduct for the police officer who wants to respect the Fourth Amendment? Where do you draw the line?
Bradford Colbert: The bottom line is, when looking into a home, any kind of intrusion into a home, unless there are exigent circumstances there should be a warrant, especially when you have to go through the contortions that this officer had to go through to intrude upon the privacy of the home, so that is this Court's bottom line, and that is what is at the core of the Fourth Amendment.
Ruth Bader Ginsburg: So what about... does it make any difference whether it's somebody who's there as a temporary business guest, social guest, or... what you just described doesn't make any difference. It doesn't make any difference... you just say that home, warrant, unless what?
Bradford Colbert: Unless there are exigent circumstances, that an intrusion, any intrusion to the home should be accompanied by a warrant.
Ruth Bader Ginsburg: And anyone could... anyone in the home could claim that protection?
Bradford Colbert: There is... there has to be a number of factors that need to be considered, and the factors in this case would show that he had an expectation of privacy in the home. The defendants had an expectation of privacy because they were invited guests into the home, and that they demonstrated an expectation of privacy when the blinds were closed, and that they were engaged. And finally--
Antonin Scalia: Is that the crucial issue, whether he had an expectation of privacy, or is it rather whether it is the sort of an expectation that society is prepared to recognize as reasonable? I mean, it seems to me you always have an expectation of privacy when you come into somebody's home. Even the pizza man who walks in, you know, he doesn't expect anybody to be peeping in the blinds. If you're in somebody's home, you expect it to be private, don't you?
Bradford Colbert: --That's correct.
Antonin Scalia: No matter what capacity you're there in.
Bradford Colbert: That's correct, Your Honor.
Antonin Scalia: So really what we're getting at is not whether there's an expectation of privacy, but whether it is the sort of an expectation of privacy that society is willing to recognize as reasonable, which leaves it up to us, I guess, as to what expectations we are willing to recognize as reasonable.
Bradford Colbert: That's correct, Your Honor.
Anthony M. Kennedy: And you suggest that any social guest has that expectation.
Bradford Colbert: When they're across the threshold of the household, that is a factor. And I think it's also--
Anthony M. Kennedy: Excuse me, when you say it's a factor. I don't--
Bradford Colbert: --It's not necessarily sufficient. In this case, one important factor is that they were present at the time of the search.
Anthony M. Kennedy: --I'm curious, Justice O'Connor suggested with considerable force, it seems to me, that we might draw the line between a business invitee and a social guest, and you talk about social guests in your red brief. It's not clear to me that these were social guests. There's nothing in the record to indicate that, is there, other than the fact that they were using the kitchen to chop the cocaine, but--
Bradford Colbert: There is some indication that--
Anthony M. Kennedy: --It seems to me these were... this was a strictly business transaction. There's nothing to even show that they were previously acquainted. They might have been introduced by intermediaries.
Bradford Colbert: --There is some indication in that one of the defendants had slippers on at the time the officers looked into the window. There's an affidavit in the record indicating that Mr. Carter had a key to the apartment.
William H. Rehnquist: Would you repeat that?
Bradford Colbert: There is an affidavit in the record indicating that Mr. Carter, one of the defendants, had a key to the apartment. The officer indicated they heard them discussing, talking. He couldn't say what he heard them talking, so... and the fact that they were there for more than 2 hours indicates that this may have been more than a business invitee. Another important factor--
Antonin Scalia: What burden is that? I mean, again, if you're asserting the Fourth Amendment privilege it's up to you to establish that they were more than that, not up to the State to prove that they weren't.
Bradford Colbert: --That's correct.
Antonin Scalia: And all you have to go on is one of them was wearing slippers. Do we know that he didn't always wear slippers?
William H. Rehnquist: Maybe he had a sore foot.
Antonin Scalia: He might have had a sore foot.
Bradford Colbert: That's a factor, and consider the Court would consider that. There should not be a distinction, as I said before, between business invitees and social invitees. You invite someone into your house, whatever their status, and that goes back to when the Fourth Amendment was enacted. Their are differences between the business and the home, there just were no differences, so to make that distinction would be contrary to history of the Fourth Amendment.
Antonin Scalia: You need a stronger argument, it seems to me. I think you're going to have a hard time establishing--
Stephen G. Breyer: --Is there any indication... I mean, I... if we go back to a man's home is his castle, that's the saying at that time, right, and so we say of those expectations of privacy that we want to protect, we want to protect that person's privacy, the one who owns the home and lives there. That's his castle. But why do we want to protect the privacy of the pizza man who happens to be delivering the pizza to the kitchen, any more than we want to protect the pizza man when he's in his cart on the street, or when he's walking door to door? There's no doubt we want to protect the privacy of the owner of the house, and perhaps his guests, to whom he has given... now I get a little lost. That's where I need the help. Why is it that we want to protect that expectation of privacy in Smith's house where it's not Smith we're protecting, when it's Jones, the pizza man, who's come inside?
Bradford Colbert: For two reasons.
Stephen G. Breyer: Yes.
Bradford Colbert: First, as the host, I want to share my privacy with my guests. If I invite people over for a dinner party, be it for 2 hours, I want to share my privacy with them. I... my... if someone were to intrude upon my house while I'm having a dinner party, it would not just be offensive to me, it would be offensive to the people I invited over, so I don't think it... it's not necessary that it be an overnight to be... to share the privacy. As a guest, I want to have an expectation of privacy when I go to someone's house. It's different than meeting someone in a park. If you plan to meet someone in a park, there is no expectation of privacy. If someone were to invite me into my house, that carries with it a certain expectation of privacy.
Sandra Day O'Connor: I just can't imagine why the Avon lady should expect something different when she sits down at the dining table to show the products and the catalogue than when she's out on the front step, or at some commercial establishment. I just don't understand why that should change. This is a commercial transaction. There's no expectation of privacy when the Avon lady comes in.
Bradford Colbert: She... if they've evidenced no subjective expectation of privacy, but if I'm coming over to discuss life insurance, or some other business activity that may be an intimate activity, that's a different matter. In that case you might want to close the blinds. You might want to have privacy. And that's why it's important in this case that the defendants exhibited an expectation of privacy. It wasn't... they tried to shield their privacy from everyone.
William H. Rehnquist: Mr. Colbert, I was just glancing through the opinion of the supreme court of Minnesota, and I don't find any mention in there of the fact that there was an affidavit somewhere that said one of the defendants had a key. Have I missed something in the supreme court's opinion?
Bradford Colbert: Correct, it was not in the supreme court opinion. It's a part of the district court record, and it's attached to the appendix. I'm not sure exactly what part of the appendix.
William H. Rehnquist: It was not relied on, then, by the supreme court of Minnesota?
Bradford Colbert: No, Your Honor.
Speaker: Mr. Colbert-- --Mr. Colbert, I am thinking of another reason.
David H. Souter: You haven't given it yet, and it may not be sound, but I'd be interested in your thoughts on it, and maybe Mr. Backstrom could comment when he gets back up. One reason you might want to afford the guests the standing to contest here is not merely because... and as a reason for finding that reasonable, is not merely because the host wants to share the host's privacy, but because the host wants to preserve the host's own privacy. And it's quite true that the host in this situation will have standing to contest the search, or the intrusion if there is one, but the breach of privacy, if there has been one, will have been complete, whether the host can contest it later or not, and it might very well be that we would want to give standing to the guest in order to avoid, as it were, tempting the police to come in and make searches which will necessarily violate the privacy of the owner. Is that a sound reason? You haven't given it, and maybe there's a reason for not getting into that.
Bradford Colbert: That is a sound reason, Your Honor, and it's, I think because they're working together makes it even more sound.
Antonin Scalia: Well, if that's a sound reason, then you pick up the pizza delivery man and the Avon lady... you pick up everybody.
David H. Souter: Does that take you back to automatic standing of Jones?
Bradford Colbert: No, it doesn't, and I go back to the issue of having exhibited a subjective expectation of privacy. There may be some circumstances where you invite the pizza man in, where it's important that you have some private interaction--
Antonin Scalia: Why is that important? If your object is what Justice Souter says, to reinforce the privacy expectations of the owner, you ought to let anybody reinforce it, the pizza man, the Avon lady... who cares whether they have an expectation of privacy. You're interested in the homeowner, and you want to vindicate his expectation. On that theory you should let everybody raise it.
John Paul Stevens: Let me test it with another example. Under your view, would the person who's been in the house often enough to get some expectation of privacy, but never visits any part of the house except the living room, have standing to object to a search of the basement or the attic?
Bradford Colbert: --No, Your Honor. This is... in this case, the officers intruded upon the defendants' privacy because when they looked in the window they saw the defendants. That's what makes their privacy interest at stake. Thank you.
William H. Rehnquist: Thank you, Mr. Colbert. Mr. Backstrom, you have 1 minute remaining.
James C. Backstrom: Thank you, Your Honor. Just quickly to clarify a few facts, in reference to the key, that was an affidavit submitted by an attorney after the trial court record was closed. We do not believe it is part of the record in this case, and it was not considered as such by the Minnesota supreme court. The slippers worn by Mr. Johns were on his feet at the time he was arrested outside of the apartment, so that does not indicate any connection to the premises.
Antonin Scalia: What do you mean, he'd worn them out... he was walking outside the apartment, so he might have arrived in slippers?
James C. Backstrom: Yes. We believe... the record's not clear on that, but he had them... he had those slippers on when he was arrested in his car outside of the apartment. In reference to Justice Souter's question, we do not believe the... there would be any tempting of the police in reference to these issues, because the police will never know who has an expectation of privacy in the premises. Their conduct relates--
David H. Souter: Well, they will know, as they did here, whether there are persons other than the homeowner.
John Paul Stevens: Going back to the facts for a minute, is it your view we should accept the facts as stated in the Minnesota supreme court's opinion?
James C. Backstrom: --Yes, we believe you should, Your Honor. And in reference... finally, in reference to the question that Justice Breyer had regarding the officers' viewing through the window, he never crossed the bushes, and it's clear if you look at G 44 to 45 in the record. Thank you, Your Honor.
William H. Rehnquist: Thank you, Mr. Backstrom. The case is submitted.