Hilberling Video Raises 4th Amendment Privacy Questions

Did Amber Hilberling have a reasonable expectation of privacy while sitting alone behind closed doors with her grandmother in a police interrogation room shortly after she pushed her husband out of their high-rise apartment?  The trial judge ruled that she did not.  If Hilberling appeals the verdict of second degree murder, the judge’s ruling will likely be central to her argument for a new trial.

The right to be free from unreasonable governmental intrusion derives from the Fourth Amendment to the U.S. Constitution.  In the landmark case of Katz v. United States, 389 U.S. 347 (1967), the U.S. Supreme Court recognized that where people have a reasonable expectation of privacy, the government is prohibited from evasdropping or recording their conversations.  The Katz decision arose in the context of a conversation recorded by police in a public telephone booth.  In that scenario the Court concluded that society would recognize a reasonable expectation of privacy, and held the recording violated the Fourth Amendment.

The test developed in Katz has two prongs.  First, the person must have a subjective expectation of privacy.  The subjective prong is satisfied in a variety of ways that would demonstrate to a reasonable person that the individual manifested a belief, or expectation, that their communications were private.  Second, the person’s expectation of privacy must be objectively reasonable, and one that society is willing to recognize.

Courts addressing conversations in police interrogation rooms generally hold that no such expectation of privacy exists.  Courts have distinguished the interrogation room from a home or telephone booth finding that an interrogation room does not enjoy the traditional expectations of privacy one would associate with a home or other location where an individual has closed themselves off from the public.  One exception to this general rule involves affirmative conduct by the police.  Where the police have “lulled” a person into believing that they are not, or would not be recorded, courts are more likely to find that a person’s expectation of privacy was reasonable under those circumstances.  See North v. Superior Court, 502 P. 2d 1305 (Cal.Sup.Ct.1972).

Other scenarios where courts are likely to find an expectation of privacy include circumstances that involve private communications recognized by a statutory privilege, e.g., attorney-client, husband-wife, priest-parishioner, doctor-patient.  The statutory privilege attached to these relationships suggests to courts that society is willing to recognize the confidential nature of these communications sufficient to warrant protection under the Fourth Amendment.

So what does this mean for Amber Hilberling?

Beginning from the general proposition that people do not enjoy an expectation of privacy in a police interrogation room, Hilberling will likely argue that police lulled her into believing that conversations with her grandmother would not be recorded.  The video released by the court does not identify what police told Hilberling or her grandmother, if anything, before they entered the interrogation room, so it is unclear if that argument has any merit.  Finally, because there are no recognized privilege in communications with a grandmother, that relationship is unlikely to support an expectation of privacy.  For those reasons, Hilberling’s chances of a successful appeal based on the expectation of privacy does not appear particularly strong.

If you have questions about the protections of the Fourth Amendment, or related privacy considerations, contact the attorneys at Bryan & Terrill Law, (918) 935-2777.