United States v Drayton
2/14/2017Katz v. United States, 389 US 347 - Supreme Court 196 7 - Google Scholar
https://scholar.google.com/scholar_case?case=921049270069641 6594&q=Katz+v.+United+States,+389+U.S.+347+(1967)&hl=en&as_sdt=1006 1/10
389 U.S. 347 ( 1967)
KATZ
v.
UNITED STATES.
No. 35.
Argued October 17,
1967 .
Decided December 18,
1967 .
CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.Supreme Court of
United States.
Burton Marks and Harvey A. Schneider argued the cause and filed briefs for petitioner.
*348 John S. Martin, Jr., argued the cause for the United States. With him on the brief were Acting Solicitor General Spritzer,
Assistant Attorney General Vinson and Beatrice Rosenberg. 348
MR. JUSTICE STEWART delivered the opinion of the Cour t.
The petitioner was convicted in the District Court for t he Southern District of California under an eight-coun t indictment charging
him with transmitting wagering information by telepho ne from Los Angeles to Miami and Boston, in violation of a federal statute.
[1]
At trial the Government was permitted, over the petit ioner's objection, to introduce evidence of the petitioner's end of telephone
conversations, overheard by FBI agents who had attached an electronic listening and recording device to the outside of the
public telephone booth from which he had placed his call s. In affirming his conviction, the Court of Appeals rejected the
contention that the recordings had been obtained in vio lation of the Fourth Amendment,
*349 because "[t]here was no physical
entrance into the area occupied by [the petitioner]." [2]
We granted certiorari in order to consider the constitu
tional questions thus
presented. [3]
349
The petitioner has phrased those questions as follows:
"A. Whether a public telephone booth is a constitutiona lly protected area so that evidence obtained by attaching
an electronic listening recording device to the top of such a booth is obtained in violation of the right to privacy of
the user of the booth.
*350 "B. Whether physical penetration of a constitutionally p rotected area is necessary before a search and
seizure can be said to be violative of the Fourth Amend ment to the
United States Constitution."
350
We decline to adopt this formulation of the issues. In t he first place, the correct solution of Fourth Amendme nt problems is not
necessarily promoted by incantation of the phrase "constit utionally protected area." Secondly, the Fourth Amendment cannot be
translated into a general constitutional "right to pri vacy." That Amendment protects individual privacy against ce rtain kinds of
governmental intrusion, but its protections go further, and often have nothing to do with privacy at all.[4]
Other provisions of the
Constitution protect personal privacy from other forms o f governmental invasion.[5]
But the protection of a person's
general right
to privacy— his right to be let alone by other people [6]
—is, like the *351 protection of his property and of his very life, left la
rgely
to the law of the individual
States .[7]
351
Because of the misleading way the issues have been formulat
ed, the parties have attached great significance to the
characterization of the telephone booth from which th e petitioner placed his calls. The petitioner has strenuo usly argued that the
booth was a "constitutionally protected area." The Govern ment has maintained with equal vigor that it was not.[8]
But this effort to
decide whether or not a given "area," viewed in the ab stract, is "constitutionally protected" deflects attention from the problem
presented by this case. [9]
For the Fourth Amendment protects people, not places.
What a person knowingly exposes to the
public, even in his own home or office, is not a subject o f Fourth Amendment protection. See Lewis
v. United States , 385 U. S.
206, 210 ; United States v. Lee, 274 U. S. 559, 563 . But what he seeks to preserve as private, even in an are a accessible to the
public, may be constitutionally protected.
*352 See Rios v. United States , 364 U. S. 253 ; Ex parte Jackson, 96 U. S. 727, 733 . 352 2/14/2017Katz v. United States, 389 US 347 - Supreme Court 196 7 - Google Scholar
https://scholar.google.com/scholar_case?case=9210492700696416 594&q=Katz+v.+United+States,+389+U.S.+347+(1967)&hl=en&as_sdt=1006 2/10
The Government stresses the fact that the telephone booth from which the petitioner made his calls was constructed partly of
glass, so that he was as visible after he entered it as he would have been if he had remained outside. But what he sought to
exclude when he entered the booth was not the intrudin g eye—it was the uninvited ear. He did not shed his right to do so simply
because he made his calls from a place where he might be seen. No less than an individual in a business office,
[10] in a friend's
apartment,
[11] or in a taxicab, [12] a person in a telephone booth may rely upon the prot ection of the Fourth Amendment. One who
occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words
he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role
that the public telephone has come to play in private co mmunication.
The Government contends, however, that the activities of i ts agents in this case should not be tested by Fourth Amend ment
requirements, for the surveillance technique they employe d involved no physical penetration of the telephone booth from which
the petitioner placed his calls. It is true that the ab sence of such penetration was at one time thought to fo reclose further Fourth
Amendment inquiry, Olmstead
v. United States , 277 U. S. 438, 457, 464, 466 ; Goldman v. United States , 316 U. S. 129, 134-
136, for that Amendment was thought to limit only searches and seizures of tangible *353 property. [13] But "[t]he premise that
property interests control the right of the Government t o search and seize has been discredited." Warden
v. Hayden, 387 U. S.
294, 304 . Thus, although a closely divided Court supposed in Olmstead that surveillance without any trespass and without the
seizure of any material object fell outside the ambit of the Constitution, we have since departed from the narr ow view on which
that decision rested. Indeed, we have expressly held that the Fourth Amendment governs not only the seizure of tan gible items,
but extends as well to the recording of oral statements, over-heard without any "technical trespass under . . . local property law."
Silverman
v. United States , 365 U. S. 505, 511 . Once this much is acknowledged, and once it is recognize d that the Fourth
Amendment protects people— and not simply "areas"—against u nreasonable searches and seizures, it becomes clear that the
reach of that Amendment cannot turn upon the presence o r absence of a physical intrusion into any given enclosure.
353
We conclude that the underpinnings of Olmstead and Goldman have been so eroded by our subsequent decisions that the
"trespass" doctrine there enunciated can no longer be reg arded as controlling. The Government's activities in electronically
listening to and recording the petitioner's words viola ted the privacy upon which he justifiably relied while u sing the telephone
booth and thus constituted a "search and seizure" within t he meaning of the Fourth Amendment. The fact that the electronic
device employed to achieve that end did not happen to pe netrate the wall of the booth can have no constitutional significance.
*354 The question remaining for decision, then, is whether the search and seizure conducted in this case complied with
constitutional standards. In that regard, the Governmen t's position is that its agents acted in an entirely defensible manner: They
did not begin their electronic surveillance until investig ation of the petitioner's activities had established a strong probability that
he was using the telephone in question to transmit gamb ling information to persons in other
States, in violation of federal law.
Moreover, the surveillance was limited, both in scope and in duration, to the specific purpose of establishing the contents of the
petitioner's unlawful telephonic communications. The ag ents confined their surveillance to the brief periods during which he used
the telephone booth,
[14] and they took great care to overhear only the conversation s of the petitioner himself. [15]
354
Accepting this account of the Government's actions as accurate, it is clear that this surveillance was so narrowly circumscribed
that a duly authorized magistrate, properly notified of the need for such investigation, specifically informed o f the basis on which it
was to proceed, and clearly apprised of the precise intru sion it would entail, could constitutionally have authorized, with
appropriate safeguards, the very limited search and seizure that the Government asserts in fact took place. Only last Term we
sustained the validity of
*355 such an authorization, holding that, under sufficiently "precise and discriminate circumstances," a
federal court may empower government agents to employ a concealed electronic device "for the narrow and particularized
purpose of ascertaining the truth of the . . . allegat ions" of a "detailed factual affidavit alleging the com mission of a specific
criminal offense." Osborn
v. United States , 385 U. S. 323, 329-330 . Discussing that holding, the Court in Berger v. New York, 388
U. S. 41, said that "the order authorizing the use of the elect ronic device" in Osborn "afforded similar protections to those . . . of
conventional warrants authorizing the seizure of tangible evidence." Through those protections, "no greater invasio n of privacy
was permitted than was necessary under the circumstances." Id., at 57.
[16] Here, too, a similar *356 judicial order could have
accommodated "the legitimate needs of law enforcement"
[17] by authorizing the carefully limited use of electronic su rveillance.
355
356
The Government urges that, because its agents relied upon the decisions in Olmstead and Goldman, and because they did no
more here than they might properly have done with prio r judicial sanction, we should retroactively validate their conduct. That we
cannot do. It is apparent that the agents in this case act ed with restraint. Yet the inescapable fact is that this restraint was imposed
by the agents themselves, not by a judicial officer. They w ere not required, before commencing the search, to present their
estimate of probable cause for detached scrutiny by a neu tral magistrate. They were not compelled, during the conduct of the 2/14/2017Katz v. United States, 389 US 347 - Supreme Court 196 7 - Google Scholar
https://scholar.google.com/scholar_case?case=9210492700696416 594&q=Katz+v.+United+States,+389+U.S.+347+(1967)&hl=en&as_sdt=1006 3/10
search itself, to observe precise limits established in advance by a specific court order. Nor were they directed, after the search
had been completed, to notify the authorizing magistra te in detail of all that had been seized. In the absence of such safeguards,
this Court has never sustained a search upon the sole grou nd that officers reasonably expected to find evidence of a particular
crime and voluntarily confined their activities to the le ast intrusive
*357 means consistent with that end. Searches conducted
without warrants have been held unlawful "notwithstand ing facts unquestionably showing probable cause," Agnello
v. United
States , 269 U. S. 20, 33, for the Constitution requires "that the deliberate, impartial judgment of a judicial officer . . . be interposed
between the citizen and the police . . . ." Wong Sun
v. United States , 371 U. S. 471, 481-482 . "Over and again this Court has
emphasized that the mandate of the [Fourth] Amendment requires adherence to judicial processes,"
United States v. Jeffers, 342
U. S. 48, 51, and that searches conducted outside the judicial process, wi thout prior approval by judge or magistrate, are per se
unreasonable under the Fourth Amendment
[18] —subject only to a few specifically established and well-del ineated exceptions.
[19]
357
It is difficult to imagine how any of those exceptions could ever apply to the sort of search and seizure involved in t his case. Even
electronic surveillance substantially contemporaneous with an individual's arrest could hardly be deemed an "incident" of that
arrest.
[20] *358 Nor could the use of electronic surveillance without prio r authorization be justified on grounds of "hot pursuit." [21]
And, of course, the very nature of electronic surveillance p recludes its use pursuant to the suspect's consent. [22]
358
The Government does not question these basic principles. Ra ther, it urges the creation of a new exception to cover this case. [23]
It argues that surveillance of a telephone booth should be exempted from the usual requirement of advance aut horization by a
magistrate upon a showing of probable cause. We cannot a gree. Omission of such authorization
"bypasses the safeguards provided by an objective predetermin ation of probable cause, and substitutes instead
the far less reliable procedure of an after-the-event j ustification for the . . . search, too likely to be subtly influenced
by the familiar shortcomings of hindsight judgment." Beck
v. Ohio, 379 U. S. 89, 96 .
And bypassing a neutral predetermination of the scope of a search leaves individuals secure from Fourth Amendme nt
*359
violations "only in the discretion of the police." Id., at 97.
359
These considerations do not vanish when the search in quest ion is transferred from the setting of a home, an office, or a hotel
room to that of a telephone booth. Wherever a man ma y be, he is entitled to know that he will remain free from unreasonable
searches and seizures. The government agents here ignored " the procedure of antecedent justification . . . that is central to the
Fourth Amendment,"
[24] a procedure that we hold to be a constitutional precon dition of the kind of electronic surveillance
involved in this case. Because the surveillance here failed t o meet that condition, and because it led to the petitioner's conviction,
the judgment must be reversed.
It is so ordered.
MR. JUSTICE MARSHALL took no part in the consideration or decision of this case.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN jo ins, concurring.
While I join the opinion of the Court, I feel compel led to reply to the separate concurring opinion of my Br other WHITE, which I
view as a wholly unwarranted green light for the Executi ve Branch to resort to electronic eaves-dropping without a warrant in
cases which the Executive Branch itself labels "national securi ty" matters.
Neither the President nor the Attorney General is a m agistrate. In matters where they believe national securit y may be involved
they are not detached, disinterested, and neutral as a co urt or magistrate must be. Under the separation of powers created by the
Constitution, the Executive Branch is not supposed to be n eutral and disinterested. Rather it should vigorously investigate
*360
and prevent breaches of national security and prosecute tho se who violate the pertinent federal laws. The President and Attorney
General are properly interested parties, cast in the rol e of adversary, in national security cases. They may even be the intended
victims of subversive action. Since spies and saboteurs are as entitled to the protection of the Fourth Amendment as suspected
gamblers like petitioner, I cannot agree that where s pies and saboteurs are involved adequate protection of Fo urth Amendment
rights is assured when the President and Attorney Genera l assume both the position of adversary-and-prosecutor and
disinterested, neutral magistrate.
360
There is, so far as I understand constitutional history, no distinction under the Fourth Amendment between typ es of crimes. Article
III, § 3, gives "treason" a very narrow definition and p uts restrictions on its proof. But the Fourth Amendment draws no lines 2/14/2017Katz v. United States, 389 US 347 - Supreme Court 196 7 - Google Scholar
https://scholar.google.com/scholar_case?case=9210492700696416 594&q=Katz+v.+United+States,+389+U.S.+347+(1967)&hl=en&as_sdt=1006 4/10
between various substantive offenses. The arrests in cases of "hot pursuit" and the arrests on visible or other evidence of
probable cause cut across the board and are not peculiar t o any kind of crime.
I would respect the present lines of distinction and no t improvise because a particular crime seems particularly h einous. When
the Framers took that step, as they did with treason, the worst crime of all, they made their purpose manifest.
MR. JUSTICE HARLAN, concurring.
I join the opinion of the Court, which I read to hol d only (a) that an enclosed telephone booth is an area where, like a home,
Weeks
v. United States , 232 U. S. 383, and unlike a field, Hester v. United States , 265 U. S. 57, a person has a constitutionally
protected reasonable expectation of privacy; (b) that ele ctronic as well as physical intrusion into a place that is in this sense
private may constitute a violation of the Fourth Amendm ent;
*361 and (c) that the invasion of a constitutionally protected area by
federal authorities is, as the Court has long held, pr esumptively unreasonable in the absence of a search warran t. 361
As the Court's opinion states, "the Fourth Amendment protects people, not places." T he question, however, is what protection it
affords to those people. Generally, as here, the answer to that question requires reference to a "place." My understanding of the
rule that has emerged from prior decisions is that ther e is a twofold requirement, first that a person have exh ibited an actual
(subjective) expectation of privacy and, second, that the expe ctation be one that society is prepared to recognize as
"reasonable." Thus a man's home is, for most purposes, a p lace where he expects privacy, but objects, activities, or statements
that he exposes to the "plain view" of outsiders are not "protected" because no intention to keep them to himse lf has been
exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of
privacy under the circumstances would be unreasonable. Cf. Hester
v. United States , supra .
The critical fact in this case is that "[o]ne who occupies i t, [a telephone booth] shuts the door behind him, and pays the toll that
permits him to place a call is surely entitled to assume" that his conversation is not being intercepted. Ante, at 352. The point is
not that the booth is "accessible to the public" at othe r times, ante, at 351, but that it is a temporarily private place wh ose
momentary occupants' expectations of freedom from intrusio n are recognized as reasonable. Cf. Rios
v. United States , 364 U. S.
253 .
In Silverman
v. United States , 365 U. S. 505, we held that eavesdropping accomplished by means of an e lectronic device that
penetrated the premises occupied by petitioner was a viol ation of the Fourth Amendment.
*362 That case established that
interception of conversations reasonably intended to be pr ivate could constitute a "search and seizure," and that the examination
or taking of physical property was not required. This view of the Fourth Amendment was followed in Wong Sun
v. United States ,
371 U. S. 471, at 485, and Berger v. New York, 388 U. S. 41, at 51 . Also compare Osborn v. United States , 385 U. S. 323, at 327 .
In Silverman we found it unnecessary to re-examine Goldman
v. United States , 316 U. S. 129, which had held that electronic
surveillance accomplished without the physical penetration of petitioner's premises by a tangible object did not violate the Fourth
Amendment. This case requires
us to reconsider Goldman, and I agree that it should now be overruled. [*] Its limitation on Fourth
Amendment protection is, in the present day, bad physics as well as bad law, for reasonable expectations of privacy may be
defeated by electronic as well as physical invasion.
362
Finally, I do not read the Court's opinion to declare that no interception of a conversation one-half of whi ch occurs in a public
telephone booth can be reasonable in the absence of a w arrant. As elsewhere under the Fourth Amendment, warrants are the
general rule, to which the legitimate needs of law en forcement may demand specific exceptions. It will be time e nough to
consider any such exceptions when an appropriate occasion prese nts itself, and I agree with the Court that this is not one.
MR. JUSTICE WHITE, concurring.
I agree that the official surveillance of petitioner's t elephone conversations in a public booth must be subjected
*363 to the test of
reasonableness under the Fourth Amendment and that on the record now before
us the particular surveillance undertaken was
unreasonable absent a warrant properly authorizing it. This application of the Fourth Amendment need not interfere with
legitimate needs of law enforcement.
[*]
363
In joining the Court's opinion, I note the Court's ackn owledgment that there are circumstances in which it is re asonable to search
without a warrant. In this connection, in footnote 23 the Court points out that today's decision does not reach national security
cases. Wiretapping to protect the security of the Nation has been authorized by successive Presidents. The present
Administration would apparently save national security case s from restrictions against wiretapping. See Berger
v. New York, 388
U. S. 41, 112-118 ( 1967 ) (WHITE, J., *364 dissenting) . We should not require the warrant procedure and th e magistrate's 364 2/14/2017Katz v. United States, 389 US 347 - Supreme Court 196 7 - Google Scholar
https://scholar.google.com/scholar_case?case=9210492700696416 594&q=Katz+v.+United+States,+389+U.S.+347+(1967)&hl=en&as_sdt=1006 5/10
judgment if the President of the United States or his chief legal officer, the Attorney General, has co nsidered the requirements of
national security and authorized electronic surveillance as r easonable.
MR. JUSTICE BLACK, dissenting.
If I could agree with the Court that eavesdropping carr ied on by electronic means (equivalent to wiretapping) constitutes a
"search" or "seizure," I would be happy to join the Cour t's opinion. For on that premise my Brother STEWART set s out methods in
accord with the Fourth Amendment to guide
States in the enactment and enforcement of laws passed to reg ulate wiretapping by
government. In this respect today's opinion differs sharply from Berger
v. New York, 388 U. S. 41, decided last Term, which held
void on its face a New York statute authorizing wiretapp ing on warrants issued by magistrates on showings of probab le cause.
The Berger case also set up what appeared to be insuperable obstacle s to the valid passage of such wiretapping laws by
States. The Court's opinion in this case, however, removes the d oubts about state power in this field and abates to a large extent
the confusion and near-paralyzing effect of the Berger holding. Notwithstanding these good efforts of the Co urt, I am still unable
to agree with its interpretation of the Fourth Amend ment.
My basic objection is twofold: (1) I do not believe that the words of the Amendment will bear the meaning give n them by today's
decision, and (2) I do not believe that it is the prope r role of this Court to rewrite the Amendment in order "to bring it into harmony
with the times" and thus reach a result that many peopl e believe to be desirable.
*365 While I realize that an argument based on the meaning of words lacks the scope, and no doubt the appeal, of broad policy
discussions and philosophical discourses on such nebulous subject s as privacy, for me the language of the Amendment is the
crucial place to look in construing a written document su ch as our Constitution. The Fourth Amendment says that 365
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to b e searched, and the persons or things to be seized."
The first clause protects "persons, houses, papers, and effe cts, against unreasonable searches and seizures . . . ." These words
connote the idea of tangible things with size, form, an d weight, things capable of being searched, seized, or b oth. The second
clause of the Amendment still further establishes its Fra mers' purpose to limit its protection to tangible things by providing that no
warrants shall issue but those "particularly describing the place to be searched, and the persons or things to be seized." A
conversation overheard by eavesdropping, whether by plain sn ooping or wiretapping, is not tangible and, under the normally
accepted meanings of the words, can neither be searched no r seized. In addition the language of the second clause indicates
that the Amendment refers not only to something tangib le so it can be seized but to something already in existen ce so it can be
described. Yet the Court's interpretation would have th e Amendment apply to overhearing future conversations whi ch by their
very nature are nonexistent until they take place. How can one "describe" a future conversation, and, if one cannot, how can a
magistrate issue a warrant to eavesdrop one in the futur e? It is argued that information showing what
*366 is expected to be said
is sufficient to limit the boundaries of what later can be admitted into evidence; but does such general inform ation really meet the
specific language of the Amendment which says "particularly describing"? Rather than using language in a completely artificial
way, I must conclude that the Fourth Amendment simply do es not apply to eavesdropping. 366
Tapping telephone wires, of course, was an unknown possib ility at the time the Fourth Amendment was adopted. But
eavesdropping (and wiretapping is nothing more than ea vesdropping by telephone) was, as even the majority opinio n in Berger,
supra , recognized, "an ancient practice which at common law was co ndemned as a nuisance. 4 Blackstone, Commentaries 168.
In those days the eavesdropper listened by naked ear under the eaves of houses or their windows, or beyond their walls seeking
out private discourse." 388
U. S. , at 45 . There can be no doubt that the Framers were aware o f this practice, and if they had
desired to outlaw or restrict the use of evidence obtaine d by eavesdropping, I believe that they would have used th e appropriate
language to do so in the Fourth Amendment. They certai nly would not have left such a task to the ingenuity of language-
stretching judges. No one, it seems to me, can read the d ebates on the Bill of Rights without reaching the conclusion that its
Framers and critics well knew the meaning of the words th ey used, what they would be understood to mean by others, their
scope and their limitations. Under these circumstances it str ikes me as a charge against their scholarship, their common sense
and their candor to give to the Fourth Amendment's lan guage the eavesdropping meaning the Court imputes to i t today.
I do not deny that common sense requires and that this Co urt often has said that the Bill of Rights' safeguards should be given a
liberal construction. This
*367 principle, however, does not justify construing the search and seizure amendment as applying to
eavesdropping or the "seizure" of conversations. The Fourt h Amendment was aimed directly at the abhorred practice of breaking
in, ransacking and searching homes and other buildings a nd seizing people's personal belongings without warrants issued by 367 2/14/2017Katz v. United States, 389 US 347 - Supreme Court 196 7 - Google Scholar
https://scholar.google.com/scholar_case?case=9210492700696416 594&q=Katz+v.+United+States,+389+U.S.+347+(1967)&hl=en&as_sdt=1006 6/10
magistrates. The Amendment deserves, and this Court has given it, a liberal construction in order to protect against warrantless
searches of buildings and seizures of tangible personal eff ects. But until today this Court has refused to say that eavesdropping
comes within the ambit of Fourth Amendment restriction s. See, e. g., Olmstead
v. United States , 277 U. S. 438 (1928), and
Goldman
v. United States , 316 U. S. 129 (1942) .
So far I have attempted to state why I think the words of the Fourth Amendment prevent its application to eave sdropping. It is
important now to show that this has been the tradition al view of the Amendment's scope since its adoption and th at the Court's
decision in this case, along with its amorphous holding in Berger last Term, marks the first real departure from that vie w.
The first case to reach this Court which actually involved a clear-cut test of the Fourth Amendment's applicability to
eavesdropping through a wiretap was, of course, Olmstead, supra
. In holding that the interception of private telephon e
conversations by means of wiretapping was not a violation of the Fourth Amendment, this Court, speaking through Mr. Chief
Justice Taft, examined the language of the Amendment an d found, just as I do now, that the words could not be stretched to
encompass overheard conversations:
"The Amendment itself shows that the search is to be of m aterial things—the person, the house, his papers or his
effects. The description of the warrant necessary to make th e proceeding lawful, is
*368 that it must specify the
place to be searched and the person or things to be seized. . . . 368
.....
"Justice Bradley in the Boyd case [ Boyd
v. United States , 116 U. S. 616 ], and Justice Clark[e] in the Gouled case
[ Gouled
v. United States , 255 U. S. 298 ], said that the Fifth Amendment and the Fourth Amen dment were to be
liberally construed to effect the purpose of the framer s of the Constitution in the interest of liberty. But that can not
justify enlargement of the language employed beyond the possible practical meaning of houses, persons, papers,
and effects, or so to apply the words search and seizure as t o forbid hearing or sight." 277
U. S. , at 464-465 .
Goldman
v. United States , 316 U. S. 129, is an even clearer example of this Court's traditional r efusal to consider eavesdropping
as being covered by the Fourth Amendment. There federal agents used a detectaphone, which was placed on the wall of an
adjoining room, to listen to the conversation of a defe ndant carried on in his private office and intended to be confined within the
four walls of the room. This Court, referring to Olmstead, found no Fourth Amendment violation.
It should be noted that the Court in Olmstead based its decision squarely on the fact that wiretapping or eavesdropping does not
violate the Fourth Amendment. As shown, supra, in the cited quotation from the case, the Court went to great pains to examine
the actual language of the Amendment and found that the words used simply could not be stretched to cover eavesdro pping.
That there was no trespass was not the determinative facto r, and indeed the Court in citing Hester
v. United States , 265 U. S. 57,
indicated that even where there was a trespass the Fourt h Amendment does not automatically apply to evidence obt ained by
"hearing or
*369 sight." The Olmstead majority characterized Hester as holding "that the testimony of two officers of the law who
trespassed on the defendant's land, concealed themselves one hundred yards away from his house and saw him come out and
hand a bottle of whiskey to another, was not inadmissib le. While there was a trespass, there was no search of per son, house,
papers or effects." 277
U. S. , at 465 . Thus the clear holding of the Olmstead and Goldman cases, undiluted by any question of
trespass, is that eavesdropping, in both its original and modern forms, is not violative of the Fourth Amendment .
369
While my reading of the Olmstead and Goldman cases convinces me that they were decided on the basis of the inapplicability of
the wording of the Fourth Amendment to eavesdropping, and not on any trespass basis, this is not to say that unaut horized
intrusion has not played an important role in search and seizure cases. This Court has adopted an exclusionary rule to bar
evidence obtained by means of such intrusions. As I made clea r in my dissenting opinion in Berger
v. New York, 388 U. S. 41, 76,
I continue to believe that this exclusionary rule formulat ed in Weeks v. United States , 232 U. S. 383, rests on the "supervisory
power" of this Court over other federal courts and is no t rooted in the Fourth Amendment. See Wolf v. Colorado, concurring
opinion, 338
U. S. 25, 39, at 40. See also Mapp v. Ohio, concurring opinion, 367 U. S. 643, 661-666. This rule has caused the
Court to refuse to accept evidence where there has been su ch an intrusion regardless of whether there has been a search or
seizure in violation of the Fourth Amendment. As this Court said in Lopez
v. United States , 373 U. S. 427, 438-439, "The Court
has in the past sustained instances of `electronic eavesdropp ing' against constitutional challenge, when devices have been used
to enable government agents to overhear conversations whic h would have been beyond the reach of the human ear [citing
*370
Olmstead and Goldman ]. It has been insisted only that the electronic device no t be planted by an unlawful physical invasion of a
constitutionally protected area. Silverman
v. United States ."
370 2/14/2017Katz v. United States, 389 US 347 - Supreme Court 196 7 - Google Scholar
https://scholar.google.com/scholar_case?case=9210492700696416 594&q=Katz+v.+United+States,+389+U.S.+347+(1967)&hl=en&as_sdt=1006 7/10
To support its new interpretation of the Fourth Amend ment, which in effect amounts to a rewriting of the language, the Court's
opinion concludes that "the underpinnings of Olmstead and Goldman have been . . . eroded by our subsequent decisions . . . ."
But the only cases cited as accomplishing this "eroding" are Silverman
v. United States , 365 U. S. 505, and Warden v. Hayden,
387 U. S. 294 . Neither of these cases "eroded" Olmstead or Goldman. Silverman is an interesting choice since there the Court
expressly refused to re-examine the rationale of Olmstead or Goldman although such a re-examination was strenuously urged
upon the Court by the petitioners' counsel. Also it is sig nificant that in Silverman, as the Court described it, "the eavesdropping
was accomplished by means of an unauthorized physical penetra tion into the premises occupied by the petitioners," 365
U. S. , at
509, thus calling into play the supervisory exclusionary rule of evidence. As I have pointed out above, where there is an
unauthorized intrusion, this Court has rejected admission of evidence obtained regardless of whether there has been an
unconstitutional search and seizure. The majority's decision here relies heavily on the statement in the opinion that the Court
"need not pause to consider whether or not there was a technical trespass under the local property law relating to party walls." (At
511.) Yet this statement should not becloud the fact that time and again the opinion emphasizes that there has been an
unauthorized intrusion: "For a fair reading of the re cord in this case shows that the eavesdropping was accompli shed by means
of an unauthorized physical penetration into the premises occupied by the petitioners." (At 509 , emphasis added.)
"Eavesdropping
*371 accomplished by means of such a physical intrusion is beyond the pale of even those decisions . . . ." (At
509, emphasis added.) "Here . . . the officers overheard the petitioners' conversations only by usurping part of the petitioners'
house or office . . . ." (At 511, emphasis added.) "[D] ecision here . . . is based upon the reality of an actual intrusion . . . ." (At 512,
emphasis added.) "We find no occasion to re-examine Goldman here, but we decline to go beyond it, by even a fraction of an
inch. " (At 512, emphasis added.) As if this were not enough , Justices Clark and Whittaker concurred with the follow ing statement:
"In view of the determination by the majority that the unauthorized physical penetration into petitioners' premises constituted
sufficient trespass to remove this case from the coverage of earlier decisions, we feel obliged to join in the Court's opinion." (At
513, emphasis added.) As I made clear in my dissent in Berger, the Court in Silverman held the evidence should be excluded by
virtue of the exclusionary rule and "I would not have agr eed with the Court's opinion in Silverman . . . had I thought that the result
depended on finding a violation of the Fourth Amend ment . . . ." 388
U. S. , at 79-80 . In light of this and the fact that the Court
expressly refused to re-examine Olmstead and Goldman, I cannot read Silverman as overturning the interpretation stated very
plainly in Olmstead and followed in Goldman that eavesdropping is not covered by the Fourth Amendmen t.
371
The other "eroding" case cited in the Court's opinion is Warden v. Hayden, 387 U. S. 294 . It appears that this case is cited for the
proposition that the Fourth Amendment applies to "int angibles," such as conversation, and the following ambigu ous statement is
quoted from the opinion: "The premise that property i nterests control the right of the Government to search an d seize has been
discredited." 387
U. S. , at 304 . But far from being concerned *372 with eavesdropping, Warden v. Hayden upholds the seizure of
clothes, certainly tangibles by any definition. The discussion of pr operty interests was involved only with the common-law rul e
that the right to seize property depended upon proof o f a superior property interest. 372
Thus, I think that although the Court attempts to convey the impression that for some reason today Olmstead and Goldman are no
longer good law, it must face up to the fact that the se cases have never been overruled or even "eroded." It is t he Court's opinions
in this case and Berger which for the first time since 1791, when the Fourth A mendment was adopted, have declared that
eavesdropping is subject to Fourth Amendment restrictions a nd that conversations can be "seized."
[*] I must align myself with all
those judges who up to this year have never been able to impute such a meaning to the words of the Amendment.
*373 Since I see no way in which the words of the Fourth Amendment can be construed to apply to eavesdropping, that closes
the matter for me. In interpreting the Bill of Righ ts, I willingly go as far as a liberal construction of th e language takes me, but I
simply cannot in good conscience give a meaning to words wh ich they have never before been thought to have and which they
certainly do not have in common ordinary usage. I will no t distort the words of the Amendment in order to "keep the Constitution
up to date" or "to bring it into harmony with the ti mes." It was never meant that this Court have such power, which in effect would
make
us a continuously functioning constitutional convention.
373
With this decision the Court has completed, I hope, its r ewriting of the Fourth Amendment, which started only recently when the
Court began referring incessantly to the Fourth Amendme nt not so much as a law against unreasonable searches and seizures
as one to protect an individual's privacy. By clever word ju ggling the Court finds it plausible to argue that language aimed
specifically at searches and seizures of things that can be sea rched and seized may, to protect privacy, be applied to
eavesdropped evidence of conversations that can neither be se arched nor seized. Few things happen to an individual that do
not affect his privacy in one way or another. Thus, by arbi trarily substituting the Court's language, designed to protect privacy, for
the Constitution's language, designed to protect against unreasonable searches and seizures, the Court has made th e Fourth
Amendment its vehicle for holding all laws violative of t he Constitution which offend the Court's broadest concep t of privacy. As I 2/14/2017Katz v. United States, 389 US 347 - Supreme Court 196 7 - Google Scholar
https://scholar.google.com/scholar_case?case=9210492700696416 594&q=Katz+v.+United+States,+389+U.S.+347+(1967)&hl=en&as_sdt=1006 8/10
said in Griswold v. Connecticut, 381 U. S. 479, "The Court talks about a constitutional `right of pri vacy' as though there is some
constitutional provision or provisions forbidding any law ever to be passed which might abridge the `privacy'
*374 of individuals.
But there is not." (Dissenting opinion, at 508.) I ma de clear in that dissent my fear of the dangers involved when this Court uses
the "broad, abstract and ambiguous concept" of "privacy" as a "comprehensive substitute for the Fourth Amendment's guarantee
against `unreasonable searches and seizures.' " (See gener ally dissenting opinion, at 507-527.) 374
The Fourth Amendment protects privacy only to the extent that it prohibits unreasonable searches and seizures of "persons,
houses, papers, and effects." No general right is created by the Amendment so as to give this Court the unlimited power to hold
unconstitutional everything which affects privacy. Certainly the Framers, well acquainted as they were with the excesses of
governmental power, did not intend to grant this Cour t such omnipotent lawmaking authority as that. The histor y of governments
proves that it is dangerous to freedom to repose such pow ers in courts.
For these reasons I respectfully dissent.
[1]
18 U. S. C. § 1084. That statute provides in perti nent part:
"(a) Whoever being engaged in the business of betti ng or wagering knowingly uses a wire communication facility for the transmission in interstate or
foreign commerce of bets or wagers or information a ssisting in the placing of bets or wagers on any sporting event or contest, or for the
transmission of a wire communication which entitles the recipient to receive money or credit as a result of bets or wagers, or for information
assisting in the placing of bets or wagers, shall b e fined not more than $10,000 or imprisoned not mor e than two years, or both.
"(b) Nothing in this section shall be construed to prevent the transmission in interstate or foreign c ommerce of information for use in news reporting
of sporting events or contests, or for the transmis sion of information assisting in the placing of bets or wagers on a sporting event or contest from a
State where betting on that sporting event or conte st is legal into a State in which such betting is legal."
[2]
369 F. 2d 130, 134.
[3]
386 U. S. 954. The petition for certiorari also challenged t he validity of a warrant authorizing the search of the petitioner's premises. In light of
our disposition of this case, we do not reach that issue.
We find no merit in the petitioner's further sugges tion that his indictment must be dismissed. After h is conviction was affirmed by the Court of
Appeals, he testified before a federal grand jury c oncerning the charges involved here. Because he was compelled to testify pursuant to a grant of
immunity, 48 Stat. 1096, as amended, 47 U. S. C. § 409(l), it is clear that the fruit of his testimony cann ot be used against him in any future trial. But
the petitioner asks for more. He contends that his conviction must be vacated and the charges against him dismissed lest he be "subjected to [a]
penalty . . . on account of [a] . . . matter . . . concerning which he [was] compelled. . . to testify . . . ." 47 U. S. C. § 409 (l). Frank
v. United States ,
347 F. 2d 486 . We disagree. In relevant part, § 409 ( l) substantially repeats the language of the Compuls ory Testimony Act of 1893, 27 Stat. 443,
49 U. S. C. § 46, which was Congress' response to t his Court's statement that an immunity statute can supplant the Fifth Amendment privilege
against self-incrimination only if it affords adequ ate protection from future prosecution or convictio n. Counselman
v. Hitchcock, 142 U. S. 547, 585-
586 . The statutory provision here involved was designe d to provide such protection, see Brown v. United States , 359 U. S. 41, 45-46, not to
confer immunity from punishment pursuant to a prior prosecution and adjudication of guilt. Cf. Reina
v. United States , 364 U. S. 507, 513-514 .
[4]
"The average man would very likely not have his fe elings soothed any more by having his property seiz ed openly than by having it seized
privately and by stealth. . . . And a person can be just as much, if not more, irritated, annoyed and injured by an unceremonious public arrest by a
policeman as he is by a seizure in the privacy of h is office or home." Griswold
v. Connecticut, 381 U. S. 479, 509 (dissenting opinion of MR.
JUSTICE BLACK) .
[5]
The First Amendment, for example, imposes limitati ons upon governmental abridgment of "freedom to ass ociate and privacy in one's
associations." NAACP
v. Alabama, 357 U. S. 449, 462 . The Third Amendment's prohibition against the unc onsented peace-time quartering of
soldiers protects another aspect of privacy from go vernmental intrusion. To some extent, the Fifth Ame ndment too "reflects the Constitution's
concern for . . . `. . . the right of each individu al "to a private enclave where he may lead a privat e life." ' " Tehan
v. Shott, 382 U. S. 406, 416 .
Virtually every governmental action interferes with personal privacy to some degree. The question in e ach case is whether that interference violates
a command of the
United States Constitution.
[6]
See Warren & Brandeis, The Right to Privacy, 4 Har v. L. Rev. 193 (1890).
[7]
See, e. g., Time, Inc. v. Hill, 385 U. S. 374 . Cf. Breard v. Alexandria, 341 U. S. 622 ; Kovacs v. Cooper, 336 U. S. 77 .
[8]
In support of their respective claims, the parties have compiled competing lists of "protected areas" for our consideration. It appears to be
common ground that a private home is such an area, Weeks
v. United States , 232 U. S. 383, but that an open field is not. Hester v. United
States , 265 U. S. 57 . Defending the inclusion of a telephone booth in h is list the petitioner cites United States v. Stone, 232 F. Supp. 396, and
United States v. Madison, 32 L. W. 2243 (D. C. Ct. Gen. Sess.) . Urging that the telephone booth should be exclude d, the Government finds
support in
United States v. Borgese, 235 F. Supp. 286 .
[9]
It is true that this Court has occasionally descri bed its conclusions in terms of "constitutionally p rotected areas," see, e. g., Silverman v. United
States , 365 U. S. 505, 510, 512 ; Lopez v. United States , 373 U. S. 427, 438-439 ; Berger v. New York, 388 U. S. 41, 57, 59, but we have never
suggested that this concept can serve as a talisman ic solution to every Fourth Amendment problem. 2/14/2017Katz v. United States, 389 US 347 - Supreme Court 196 7 - Google Scholar
https://scholar.google.com/scholar_case?case=9210492700696416 594&q=Katz+v.+United+States,+389+U.S.+347+(1967)&hl=en&as_sdt=1006 9/10
[10] Silverthorne Lumber Co. v. United States , 251 U. S. 385 .
[11]
Jones v. United States , 362 U. S. 257 .
[12]
Rios v. United States , 364 U. S. 253 .
[13]
See Olmstead v. United States , 277 U. S. 438, 464-466 . We do not deal in this case with the law of deten tion or arrest under the Fourth
Amendment.
[14]
Based upon their previous visual observations of t he petitioner, the agents correctly predicted that he would use the telephone booth for
several minutes at approximately the same time each morning. The petitioner was subjected to electronic surveillance only during this
predetermined period. Six recordings, averaging som e three minutes each, were obtained and admitted in evidence. They preserved the
petitioner's end of conversations concerning the pl acing of bets and the receipt of wagering informati on.
[15]
On the single occasion when the statements of anot her person were inadvertently intercepted, the agents refrained from listening to them.
[16]
Although the protections afforded the petitioner i n Osborn were "similar . . . to those . . . of conventional warrants," th ey were not identical. A
conventional warrant ordinarily serves to notify th e suspect of an intended search. But if Osborn had been told in advance that federal officers
intended to record his conversations, the point of making such recordings would obviously have been lo st; the evidence in question could not have
been obtained. In omitting any requirement of advan ce notice, the federal court that authorized electronic surveillance in Osborn simply recognized,
as has this Court, that officers need not announce their purpose before conducting an otherwise author ized search if such an announcement would
provoke the escape of the suspect or the destructio n of critical evidence. See Ker
v. California, 374 U. S. 23, 37-41 .
Although some have thought that this "exception to the notice requirement where exigent circumstances are present," id., at 39, should be deemed
inapplicable where police enter a home before its o ccupants are aware that officers are present, id., at 55-58 (opinion of MR. JUSTICE
BRENNAN), the reasons for such a limitation have no bearing here. However true it may be that "[i]nnocent citizens should not suffer the shock,
fright or embarrassment attendant upon an unannounc ed police intrusion," id., at 57, and that "the requirement of awareness . . . serves to
minimize the hazards of the officers' dangerous cal ling," id., at 57-58, these considerations are not relevant to the problems presented by judicially
authorized electronic surveillance.
Nor do the Federal Rules of Criminal Procedure impo se an inflexible requirement of prior notice. Rule 41 (d) does require federal officers to serve
upon the person searched a copy of the warrant and a receipt describing the material obtained, but it does not invariably require that this be done
before the search takes place. Nordelli
v. United States , 24 F. 2d 665, 666-667 .
Thus the fact that the petitioner in Osborn was unaware that his words were being electronical ly transcribed did not prevent this Court from
sustaining his conviction, and did not prevent the Court in Berger from reaching the conclusion that the use of the r ecording device sanctioned in
Osborn was entirely lawful. 388
U. S. 41, 57 .
[17]
Lopez v. United States , 373 U. S. 427, 464 (dissenting opinion of MR. JUSTICE BRENNA N) .
[18]
See, e. g., Jones v. United States , 357 U. S. 493, 497-499 ; Rios v. United States , 364 U. S. 253, 261 ; Chapman v. United States , 365 U.
S. 610, 613-615 ; Stoner v. California, 376 U. S. 483, 486-487 .
[19]
See, e. g., Carroll v. United States , 267 U. S. 132, 153, 156 ; McDonald v. United States , 335 U. S. 451, 454-456 ; Brinegar v. United
States , 338 U. S. 160, 174-177 ; Cooper v. California, 386 U. S. 58 ; Warden v. Hayden, 387 U. S. 294, 298-300 .
[20]
In Agnello v. United States , 269 U. S. 20, 30, the Court stated:
"The right without a search warrant contemporaneous ly to search persons lawfully arrested while committing crime and to search the place where
the arrest is made in order to find and seize thing s connected with the crime as its fruits or as the means by which it was committed, as well as
weapons and other things to effect an escape from c ustody, is not to be doubted."
Whatever one's view of "the long-standing practice of searching for other proofs of guilt within the control of the accused found upon arrest,"
United States v. Rabinowitz, 339 U. S. 56, 61 ; cf. id., at 71-79 (dissenting opinion of Mr. Justice Frankf urter), the concept of an "incidental" search
cannot readily be extended to include surreptitious surveillance of an individual either immediately before, or immediately after, his arrest.
[21]
Although "[t]he Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger
their lives or the lives of others," Warden
v. Hayden, 387 U. S. 294, 298-299, there seems little likelihood that electronic surv eillance would be a
realistic possibility in a situation so fraught wit h urgency.
[22]
A search to which an individual consents meets Fou rth Amendment requirements, Zap v. United States , 328 U. S. 624, but of course "the
usefulness of electronic surveillance depends on la ck of notice to the suspect." Lopez
v. United States , 373 U. S. 427, 463 (dissenting opinion of
MR. JUSTICE BRENNAN) .
[23]
Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national
security is a question not presented by this case.
[24]
See Osborn v. United States , 385 U. S. 323, 330 . 2/14/2017Katz v. United States, 389 US 347 - Supreme Court 196 7 - Google Scholar
https://scholar.google.com/scholar_case?case=9210492700696416 594&q=Katz+v.+United+States,+389+U.S.+347+(1967)&hl=en&as_sdt=1006 10/10
[*] I also think that the course of development evinced by Silverman, supra , Wong Sun, supra , Berger, supra , and today's decision must be
recognized as overruling Olmstead
v. United States , 277 U. S. 438, which essentially rested on the ground that conver sations were not subject to
the protection of the Fourth Amendment.
[*]
In previous cases, which are undisturbed by today' s decision, the Court has upheld, as reasonable und er the Fourth Amendment, admission at
trial of evidence obtained (1) by an undercover pol ice agent to whom a defendant speaks without knowle dge that he is in the employ of the police,
Hoffa
v. United States , 385 U. S. 293 (1966) ; (2) by a recording device hidden on the person of such an informant, Lopez v. United States , 373
U. S. 427 (1963) ; Osborn v. United States , 385 U. S. 323 (1966) ; and (3) by a policeman listening to the secret mi cro-wave transmissions of an
agent conversing with the defendant in another loca tion, On Lee
v. United States , 343 U. S. 747 (1952) . When one man speaks to another he
takes all the risks ordinarily inherent in so doing , including the risk that the man to whom he speaks will make public what he has heard. The Fourth
Amendment does not protect against unreliable (or l aw-abiding) associates. Hoffa
v. United States , supra . It is but a logical and reasonable
extension of this principle that a man take the ris k that his hearer, free to memorize what he hears f or later verbatim repetitions, is instead recording
it or transmitting it to another. The present case deals with an entirely different situation, for as the Court emphasizes the petitioner "sought to
exclude . . . the uninvited ear," and spoke under c ircumstances in which a reasonable person would ass ume that uninvited ears were not listening.
[*]
The first paragraph of my Brother HARLAN'S concurr ing opinion is susceptible of the interpretation, although probably not intended, that this
Court "has long held" eavesdropping to be a violati on of the Fourth Amendment and therefore "presumpti vely unreasonable in the absence of a
search warrant." There is no reference to any long line of cases, but simply a citation to Silverman, and several cases following it, to establish this
historical proposition. In the first place, as I ha ve indicated in this opinion, I do not read Silverman as holding any such thing; and in the second
place, Silverman was decided in 1961. Thus, whatever it held, it ca nnot be said it "has [been] long held." I think my Brother HARLAN recognizes this
later in his opinion when he admits that the Court must now overrule Olmstead and Goldman. In having to overrule these cases in order to esta blish
the holding the Court adopts today, it becomes clea r that the Court is promulgating new doctrine instead of merely following what it "has long held."
This is emphasized by my Brother HARLAN'S claim tha t it is "bad physics" to adhere to Goldman. Such an assertion simply illustrates the propensit y
of some members of the Court to rely on their limit ed understanding of modern scientific subjects in o rder to fit the Constitution to the times and give
its language a meaning that it will not tolerate.
Save trees - read court opinions online on Google Scholar.
