No. 14-5123
Huff, et al. v. Spaw
Page 9
under the subjective part of the reasonable-expectation test. These two inquires track Title III’s
statutory text that first, a person “exhibit[ed] an expectation that such communication is not
subject to interception” and second, “under circumstance justifying such expectation.” 18 U.S.C.
§ 2510(2). We therefore bifurcate Katz’s reasonable-expectation test—at least in the Title III
context—into these two inquiries.
The first part of the test requires more than an internal belief in privacy. Rather, one
must exhibit an intention to keep statements private. A person fails to exhibit an expectation of
privacy under the Katz test if he exposes those statements to the “plain view” of outsiders,
389 U.S. at 361 (Harlan, J., concurring), or if he fails to take to steps to prevent exposure to third
parties, Kee, 247 F.3d at 216–17 (holding that plaintiffs did not engage in oral communication
under Title III because “they failed to present evidence demonstrating any affirmative steps
taken to preserve their privacy,” and “point to no reasonable safeguards or common-sense
precautions taken to preserve their expectation of privacy”). The second part of the Katz test is
satisfied if the expectation of privacy exhibited by the person is reasonable under the
circumstances. Katz, 389 U.S. at 361 (Harlan, J., concurring). The operative question is whether
society is prepared to recognize an exhibited expectation as legitimate. Ibid. It is essential to
consider the two-part Katz test with respect to James Huff and Bertha Huff separately.
i. James Huff’s Reasonable Expectation of Privacy from Interception
The district court found that James Huff “unquestionably did not expect that [his] face-toface conversations would be intercepted” for two reasons. Huff, 995 F. Supp. 2d at 731. First,
he would not have discussed sensitive, Airport-related matters with Savage and with Bertha Huff
if he had known that others might be listening. Ibid. This establishes only that James Huff likely
intended his statements to be private, not that he exhibited an expectation of privacy. Second,
“[a] significant portion of the intercepted communications took place in two places: a private
balcony and a hotel bedroom.” Ibid. While a person generally exhibits an expectation of privacy
when he seeks out a private location to speak, if he also exposes his statements to an outsider “no
intention to keep them to himself has been exhbited.”
Katz, 389 U.S. at 361 (Harlan J.,
concurring). Because James Huff placed the pocket-dial call to Spaw, he exposed his statements
to her and therefore failed to exhibit an expectation of privacy with respect to those statements.
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