Staying the night is the modern equivalent to "breaking bread."

I am fascinated by the law. The nuances confound me. In the text that follows, I will discuss why two people who meet to conduct any private business, for which they would like Fourth Amendment protections (protection against search and seizure), should pack an over-night bag.

Breaking Bread

In the medieval times, the host would ask a visitor to "break bread." By sitting at the dinner table, and sharing a meal the host made a promise to the visitor that while he was there, the visitor would have all the protections that the host could afford to offer.

When you broke bread with your host, you were promised to be kept safe through the night. No person would try to harm you. No person would try to steal from you. You were safe from all threats—as long as the host was able to protect you, he would.

Staying the Night

But, how does a home owner protect his guests from a government intrusion? How does he offer protection to his guests?  He invites them to stay the night. This simple act changes the outcome of any police intervention and grants the guest the full protection of the Fourth Amendment against unreasonable search and seizure. It gives the guest an equal right to protection as the host, who lives in the house, apartment or condo.

Two Men Bagging Cocaine Should have Staid the Night

In Minnesota v. Carter (1998) 525 U.S. 83, a police officer peers through a window. The blinds are closed, but he is able to see between the slats, and he observes three men putting white powder into plastic bags. If the men had lived in the home, or if they had agreed to stay the night, the police officer would have violated their Fourth Amendment rights, but these men were not overnight guests. In fact, they had never been to the apartment before, they had no plans to stay, and they had only been in the apartment for 2 1/2 hours. They came just to bag cocaine; and then they would leave.

The police arrested two of the three men when they drove away in a Cadillac. They found a loaded pistol and 47 grams of cocaine in the car, packed into plastic sandwich bags. 

The men tried to argue that the evidence should be suppressed. They argued that the only reason the police stopped their car was because an officer illegally looked through the window. And if they had spent the night in the apartment, then the police officer may have actually been breaking the law when he looked through the window, but because they did not stay the night, their argument was flawed.

The court writes:

The text of the Amendment suggests that its protections extend only to people in "their" houses. But we have held that in some circumstances a person may have a legitimate expectation of privacy in the house of someone else. In Minnesota v. Olson (1990), for example, we decided that an overnight guest in a house had the sort of expectation of privacy that the Fourth Amendment protects.

(Minnesota v. Carter, supra, 525 U.S. 83.)

The court decided that because the two men were not "overnight guests" they did not have the expectation of privacy that requires Fourth Amendment protection. Therefore, the police officer's conduct in looking through the window was irrelevant, and the cocaine, the guns and his testimony about what he saw them do, was all admissible in the trial against them.

Not Just for Criminals

The Fourth Amendment protects your right to privacy from the various agents of the government: police, sheriffs, informants, and even federal agents. You should protect your privacy, even if you are not engaged in crimes, because the values that a Government holds true today may not be true tomorrow.

We saw this kind of tyranny in both Germany and the United States. First, in Germany, during the 1940's, the government power shifted in the "wrong" direction, and innocent behavior (like meeting with friends to discuss volunteer services) suddenly becomes criminalized. Members of volunteer organizations like the Freemasons feared for their lives, and continue to operate with extreme regard to privacy even today. Similarly, being a member of a Jewish temple was suddenly a secret worth keeping.

Second, we saw the same kind of behavior in the United States as recently as 2013. No one would think twice about saying whether they voted with the Republican Party or Democratic Party. People openly debate these things in public constantly. It is on the television every hour of every day. But this simple detail about a person's life became the method by which the IRS targeted you for tax audits. The IRS, as an agent of the Government, decided to audit those people who registered as members of the Republican party. This caused hardship, stress, and extreme financial headaches for thousands of US Citizens for a non-criminal behavior: Simply joining the Republican Party was your lottery ticket to a tax audit in 2013.

For these reasons, even in the United States, you should take care to keep private the details of your life. And, when you are interested in protecting your privacy while visiting a friend's house, pack an overnight bag. Set it up in the guest room, and get permission to stay the night.

(Note: I imagine that if you had the overnight bag set up in the guest room, that you could change your mind later, but that is a discussion for another day.)