Recording Devices and Reasonable Expectation of Privacy

State University School of Law has been experiencing a rash of thefts of books, legal periodicals, and computers from the law library. To combat this epidemic, school officials decided to install security cameras in secret locations throughout the law school. Students, faculty, and staff were notified via the university e-mail system.

Ron, a third-year law student at State, immediately became nervous upon reading the e-mail. He and several of his friends from outside the school had been stealing unattended books and laptop computers from the law library and selling them on the black market. Knowing that he had to inform his cohorts that the gig was up, Ron went to a seldom-used telephone in a back corner of the top floor of the law library to call them. Unbeknownst to Ron, State had given the police permission to place discreet recording devices around all of the campus phones in the library. As a result, Ron's conversations with his partners in crime were recorded and used against him in the criminal proceedings that soon followed.

Was Ron entitled to a reasonable expectation of privacy when using this telephone in the library, considering remote location of this particular phone and the overall atmosphere of the school at the time?

Peter Henderson

Emory Law

Answer

(1) The school was not a party to the communication, therefore the school could not consent to the interception of the communication.

(2) Planting the recording devices (bugging) in the library constitutes electronic surveillance and therefore, must comply with the special warrant requirements of Title III of the Omnibus Crime Control Act of 1968.  This is a Fourth Amendment Search.

(3) However, the warrant is only required under the Fourth Amendment if both participants had a reasonable expectation of privacy.  Katz v. U.S.  The fact pattern above is borderline.  Make the arguments as you please.