No. 14-5123
Huff, et al. v. Spaw
Page 8
would harshly criticize the boss if the employee thought that the boss was listening.”) (emphases
added); see also McIntyre, 582 F.2d at 1223 (“There is no question that McGann had a
subjective expectation of privacy . . . [because] he believed that normal conversations in his
office could not be overheard, even when the doors to his office were open.”) (emphases added).
Other courts, including the Tenth Circuit in Kee, ask whether plaintiffs “‘exhibited a subjective
expectation of privacy that [their communications] would remain free from governmental [or
private] intrusion’ and whether they ‘took normal precautions to maintain privacy[.]’” 247 F.3d
at 213 (first alteration in original) (emphasis added).
Like Kee, we also ask whether a person exhibited an expectation of privacy, e.g., by
taking precaution, but we do so under the objective part of the reasonable-expectation test. The
Dorris court, for example, held that the plaintiffs’ expectation of privacy was objectively
reasonable because they “took great care to ensure that their conversations remained private.”
179 F.3d at 425.
The question of whether that expectation was reasonable under the
circumstances also falls under the objective part of the test. The Dorris court concluded that,
because “the entire office in the present case consisted of a single room that could not be
accessed without the employees’ knowledge[,] . . . the employees had a reasonable expectation
of privacy in their workplace.” Ibid. This approach effectively bifurcates the objective part of
the reasonable-expectation test into two subparts. First, did the employees exhibit a (subjective)
expectation of privacy by taking precautions?
Second, was that expectation objectively
reasonable?
The question of whether a person had an internal belief in an expectation of privacy—the
only aspect of the subjective part under Dorris—is irrelevant because it is subsumed by the
exhibited-an-expectation inquiry. If a person lacked an internal belief in privacy, then he would
not have exhibited an expectation of privacy and so would fail the reasonable-expectation test. If
the person held an internal belief but did not exhibit that belief in an outward manner, he would
also fail the reasonable-expectation test due to his inability to satisfy the first objective subpart.
Therefore the only relevant inquiries are the two objective subparts: (1) whether a person
exhibited an expectation of privacy and (2) whether that expectation was reasonable. These were
the same two relevant inquiries for the Kee court, except that court categorized the first inquiry