Supreme Court of the United States
Charles KATZ, Petitioner,
v.
UNITED STATES.
No. 35.
Argued Oct. 17, 1967.
Decided Dec. 18, 1967.
Defendant was convicted in the United States
District Court for the Southern District of California, Central Division, Jesse
W. Curtis, J., of a violation of statute proscribing interstate transmission by
wire communication of bets or wagers, and he appealed. The Court of Appeals, 369 F.2d 130, affirmed, and certiorari was granted. The Supreme Court, Mr. Justice Stewart, held
that government's activities in electronically listening to and recording
defendant's words spoken into telephone receiver in public telephone booth
violated the privacy upon which defendant justifiably relied while using the
telephone booth and thus constituted a 'search and seizure' within Fourth
Amendment, and fact that electronic device employed to achieve that end did not
happen to penetrate the wall of the booth could have no constitutional significance.
The Court further held that the search and seizure, without prior
judicial sanction and attendant safeguards, did not comply with constitutional
standards, although, accepting account of government's actions as accurate,
magistrate could constitutionally have authorized with appropriate safeguards
the very limited search and seizure that government asserted in fact took place
and although it was apparent that agents had acted with restraint.
Judgment reversed.
Mr. Justice Black dissented.
West Headnotes
[1] Criminal Law 
42.6
(Formerly 110k42)
[1] Criminal
Law 1433(1)
(Formerly 110k998(5))
[1] Criminal
Law 1477
Fruit of
testimony of defendant before federal grand jury, given under compulsion
pursuant to grant of immunity, and concerning charges of which defendant had
been convicted, could not be used against defendant in any future trial, but
defendant was not entitled to vacation of prior conviction and dismissal of
charges on theory that he could not be subjected to penalty on account of
matter concerning which he was compelled to testify. Communications Act of 1934, § 409(l), 47
U.S.C.A. § 409(l); 49 U.S.C.A. § 46; U.S.C.A.Const.
Amend. 5.
[2] Criminal Law 42.1
(Formerly 110k42)
Statute
providing immunity concerning compelled testimony before federal grand jury was
designed to provide protection from future prosecution or conviction, but not
to confer immunity from punishment pursuant to a prior prosecution and
adjudication of guilt. Communications
Act of 1934,
§ 409(l), 47
U.S.C.A. § 409(l); 49 U.S.C.A. § 46; U.S.C.A.Const.
Amend. 5.
[3] Searches
and Seizures 23
(Formerly 349k7(1))
Fourth
Amendment cannot be translated into a general constitutional "right to
privacy". U.S.C.A.Const.
Amend. 4.
[4] Searches and Seizures 23
(Formerly 349k7(1))
Fourth
Amendment protects individual privacy against certain kinds of governmental
intrusion, but its protections go further, and often have nothing to do with
privacy at all. U.S.C.A.Const.
Amend. 4.
[5] Constitutional Law 1440
(Formerly 92k91)
First
Amendment imposes limitations upon governmental abridgment of freedom to
associate and privacy in one's associations.
U.S.C.A.Const.
Amend. 1.
[6] Constitutional Law 1122
(Formerly 92k82(7), 92k82)
[6]
Constitutional Law 1260
(Formerly 92k82(7), 92k82)
Third
Amendment prohibition against unconsented peacetime quartering of soldiers
protects one aspect of privacy from governmental intrusion. U.S.C.A.Const.
Amend. 3.
[7] Constitutional Law 1067
(Formerly 92k1065, 92k82(1),
92k82)
To some
extent Fifth Amendment reflects Constitution's concern for right of each
individual to a private enclave where he may lead a private life. U.S.C.A.Const.
Amend. 5.
[8]
Constitutional Law 1210
(Formerly 92k82(7), 92k82)
The
protection of a person's general right to privacy, that is, his right to be let
alone by other people, is, like the protection of his property and of his very
life, left largely to the law of the individual states.
[9] Searches and Seizures 25.1
(Formerly 349k25, 349k7(1))
Although
court has occasionally described its conclusions in terms of "constitutionally protected areas",
such concept cannot serve as a talismanic solution to every Fourth Amendment
problem. U.S.C.A.Const.
Amend. 4.
[10] Searches and Seizures 25.1
(Formerly 349k25, 349k7(1))
Fourth Amendment protects people, not
places. U.S.C.A.Const.
Amend. 4.
[11] Searches and Seizures 25.1
(Formerly 349k25, 349k7(1))
What a
person knowingly exposes to the public, even in his own home or office, is not
a subject of Fourth Amendment protection.
U.S.C.A.Const.
Amend. 4.
[12] Searches and Seizures 25.1
(Formerly 349k25, 349k7(10))
What a
person seeks to preserve as private, even in an area accessible to the public,
may be constitutionally protected under Fourth Amendment. U.S.C.A.Const.
Amend. 4.
[13] Searches and Seizures 25.1
(Formerly 349k25, 349k7(10))
A person in a telephone booth may rely
upon protection of Fourth Amendment, and is entitled to assume that words he
utters into mouthpiece will not be broadcast to the world. U.S.C.A.Const.
Amend. 4.
[14] Searches and Seizures 25.1
(Formerly 349k25, 349k7(1))
Fourth
Amendment protects people, not simply areas, against unreasonable searches and
seizures, and its reach cannot depend upon presence or absence of a physical
intrusion into any given enclosure. U.S.C.A.Const.
Amend. 4.
[15] Telecommunications 1437
(Formerly 372k494.1, 372k494,
349k7(10))
Government's
activities in electronically listening to and recording defendant's words
spoken into telephone receiver in public telephone booth violated the privacy
upon which defendant justifiably relied while using the telephone booth and thus
constituted a "search and seizure" within Fourth Amendment, and fact
that electronic device employed to achieve that end did not happen to penetrate the wall of the booth could
have no constitutional significance. U.S.C.A.Const.
Amend. 4.
[16] Searches and Seizures 54
(Formerly 349k3.3)
Officers
need not announce their purpose before conducting an otherwise authorized
search if such an announcement would provoke the escape of the suspect or the
destruction of critical evidence.
[17] Searches and Seizures 54
(Formerly 349k3.3)
Federal
Rules of Criminal Procedure do not impose an inflexible requirement of prior
notice of an authorized search. Fed.Rules
Crim.Proc. rule 41(d), 18 U.S.C.A.
[18] Telecommunications 1462
(Formerly 372k511, 372k496,
349k3.3(8))
Court
could not sustain search by way of electronic surveillance without prior
judicial sanction on ground that officers reasonably expected to find evidence
of a particular crime and voluntarily confined their activities to the least
intrusive means consistent with that end.
[19] Searches and Seizures 24
(Formerly 349k7(1))
Searches
conducted outside the judicial process, without prior approval by judge or
magistrate, are per se unreasonable under Fourth Amendment, subject only to a
few specifically established and well delineated exceptions. U.S.C.A.Const.
Amend. 4.
[20] Arrest 71.1(9)
Even electronic surveillance substantially
contemporaneous with an individual's arrest cannot be deemed an
"incident" of that arrest. U.S.C.A.Const.
Amend. 4.
[21] Telecommunications 1462
(Formerly 372k511, 372k496,
349k3.3(8))
Use of
electronic surveillance without prior authorization cannot be justified on
grounds of "hot pursuit". U.S.C.A.Const.
Amend. 4.
[22] Searches and Seizures 183
(Formerly 349k7(27))
A search
to which an individual consents meets Fourth Amendment requirements. U.S.C.A.Const.
Amend. 4.
[23] Searches and Seizures 25.1
(Formerly 349k25, 349k7(1))
Wherever a
man may be, he is entitled to know that he will remain free from unreasonable
searches and seizures. U.S.C.A.Const.
Amend. 4.
[24] Telecommunications 1463
(Formerly 372k513, 349k7(10))
Search and
seizure, without prior judicial sanction and attendant safeguards, conducted by
electronic surveillance by way of an electronic listening and recording device
attached to outside of public telephone booth from which defendant had placed
calls did not comply with constitutional standards, although, accepting account
of government's actions as accurate, magistrate could constitutionally have
authorized with appropriate safeguards the very limited search and seizure that
government asserted in fact took place and although it was apparent that agents
had acted with restraint. U.S.C.A.Const.
Amend. 4.
**509 *347 Harvey A. Schneider
and Burton Marks, Beverly Hills, Cal., for petitioner.
*348
John S. Martin, Jr., Washington, D.C., for respondent.
MR. JUSTICE STEWART delivered the opinion of
the Court.
[1][2] The petitioner was convicted in the District Court for the
Southern District of California under an eight-count indictment charging him
with transmitting wagering information by telephone from Los Angeles to Miami
and Boston in violation of a federal statute. [FN1] At trial the
Government was permitted, over the petitioner's objection, to introduce
evidence of the petitioner's end of telephone coversations, 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 calls. In
affirming his conviction, the Court of Appeals rejected the contention that the
recordings had been obtained in violation of the Fourth Amendment, *349
because '(t)here was no physical entrance into the area occupied by, (the
petitioner).' [FN2] **510 We
granted certiorari in order to consider the constitutional questions thus
presented. [FN3]
FN1. 18
U.S.C. s 1084.
That statute provides in pertinent part:
'(a) Whoever being engaged in the business of betting or
wagering knowingly uses a wire communication facility for the transmission in
interstate or foreign commerce of bets or
wagers or information assisting 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 be
fined no more than $10,000 or inprisoned not more than two years, or both.
'(b) Nothing in this section shall be construed to prevent
the transmission in interstate or foreign commerce of information for use in
news reporting of sporting events or contests, or for the transmission 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 contest is legal
into a State in which such betting is legal.'
FN2. 9
Cir., 369 F.2d 130, 134.
FN3. 386
U.S. 954, 87 S.Ct. 1021, 18 L.Ed.2d 102. The petition for certiorari also challenged
the validity of a warrant authorizing the search of the petitioner's
premises. In light of our disposition of
this case, we do nto reach that issue.
We find no merit in the petitioner's further suggestion
that his indictment must be dismissed.
After his conviction was affirmed by the Court of Appeals, he testified before a federal grand
jury concerning 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. s 409(l), it is clear that the fruit of
his testimony cannot 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.
s 409(l). Frank v. United States, 120 U.S.App.D.C. 392, 347 F.2d 486. We disagree. In relevant part, s
409(l) substantially repeats the language of the
Compulsory Testimony Act of 1893, 27 Stat. 443, 49 U.S.C. s 46, which was
Congress' response to this Court's statement that an immunity statute can
supplant the Fifth Amendment privilege against self-incrimination only if it
affords adequate protection from future prosecution or conviction. Counselman
v. Hitchcock, 142 U.S. 547, 585--586, 12 S.Ct. 195, 206--207, 35 L.Ed. 1110. The statutory
provision here involved was designed to provide such protection, see Brown
v. United States, 359 U.S. 41, 45-- 46, 79 S.Ct. 539, 543--544, 3 L.Ed.2d 609, 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, 81 S.Ct. 260, 264--265, 5 L.Ed.2d 249.
The
petitioner had phrased those questions as follows:
'A. Whether a public telephone booth is a constitutionally
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 protected area is
necessary before a search and seizure can be said to be violative of the Fourth
Amendment to the United States Constitution.'
[3][4][5][6][7][8] We decline to adopt this formulation of the issues. In the first place the correct solution of
Fourth Amendment problems is not necessarily promoted by incantation of the
phrase 'constitutionally protected area.'
Secondly, the Fourth Amendment cannot be translated into a general
constitutional 'right to privacy.' That
Amendment protects individual privacy against certain kinds of governmental
intrusion, but its protections go further, and often have nothing to do with
privacy at all. [FN4] Other provisions of the Constitution protect
personal privacy from other forms of governmental invasion. [FN5] But the protection
of a **511 person's general right to privacy--his right to be let alone
by other people [FN6]--is, like the *351
protection of his property and of his very life, left largely to the law of the
individual States. [FN7]
FN4. 'The average man would very likely not have his feelings
soothed any more by having his property seized 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 his office or home.' Griswold
v. State of Connecticut, 381 U.S. 479, 509, 85 S.Ct. 1678, 1695, 14 L.Ed.2d 510 (dissenting opinion of MR. JUSTICE BLACK).
FN5. The First
Amendment, for example, imposes limitations upon govermental abridgment of
'freedom to associate and privacy in one's associations.' NAACP
v. State of Alabama, 357 U.S. 449, 462, 78 S.Ct. 1163, 1172, 2 L.Ed.2d 1488. The Third
Amendment's prohibition against the unconsented peacetime quartering of
soldiers protects another aspect of privacy from governmental intrusion. To some extent, the Fifth Amendment too
'reflects the Constitution's concern for * * * '* * * the right of each
individual 'to a private enclave where he may lead a private life. "' Tehan
v. United States ex rel. Shott, 382 U.S. 406, 416, 86 S.Ct. 459, 465, 15
L.Ed.2d 453. Virtually every governmental action
interferes with personal privacy to some degree. The question in each case is whether that
interference violates a command of the United States Constitution.
FN6. See Warren & Brandeis, The Right to Privacy, 4
Harv.L.Rev. 193 (1890).
FN7. See, e.g., Time,
Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456. Cf. Breard
v. City of Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233; Kovacs
v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513.
[9][10][11][12] Because of the misleading way the issues have been
formulated, the parties have attached great significance to the
characterization of the telephone booth from which the petitioner placed his
calls. The petitioner has strenuously
argued that the booth was a 'constitutionally protected area.' The Government has maintained with equal
vigor that it was not. [FN8] But this effort to decide whether or not a given
'area,' viewed in the abstract, is 'constitutionally protected' deflects
attention from the problem presented by this case. [FN9] 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 of Fourth Amendment protection. See Lewis
v. United States, 385 U.S. 206, 210, 87 S.Ct. 424, 427, 17 L.Ed.2d 312; United
States v. Lee, 274 U.S. 559, 563, 47 S.Ct. 746, 748,
71 L.Ed. 1202.
But what he seeks to preserve as private, even in an area accessible to
the public, may be constitutionally protected.
*352 See Rios
v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688; Ex parte Jackson,
96 U.S. 727, 733, 24 L.Ed. 877.
FN8. 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, 34 S.Ct. 341, 58 L.Ed. 652, but that an open field is not. Hester
v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898. Defending the inclusion of a telephone booth in his list
the petitioner cites United
States v. Stone, D.C., 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
excluded, the Government finds support in United
States v. Borgese, D.C., 235 F.Supp. 286.
FN9. It is true that
this Court has occasionally described its conclusions in terms of
'constitutionally protected areas,' see, e.g., Silverman
v. United States, 365 U.S. 505, 510, 512, 81 S.Ct. 679, 682, 683, 5 L.Ed.2d
734; Lopez
v. United States, 373 U.S. 427, 438--439, 83 S.Ct. 1381, 1387--1388, 10 L.Ed.2d
462; Berger
v. State of New York, 388 U.S.
41, 57, 59, 87 S.Ct. 1873, 1882, 1883, 18 L.Ed.2d 1040, but we have never suggested that this concept can serve as
a talismanic solution to every Fourth Amendment problem.
[13] 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 intruding 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, [FN10] in a
friend's apartment, [FN11] or in a taxicab, [FN12] a person in
a telephone booth may rely upon the protection of the Fourth Amendment. One who occupies it, shuts the door behind
him, and pays the toll that permits **512 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 communication.
FN10. Silverthorne
Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319.
FN11. Jones
v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697.
FN12. Rios
v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688.
[14] The Government contends, however, tha the activities of
its agents in this case should not be tested by Fourth Amendment requirements,
for the surveillance technique they employed involved no physical penetration
of the telephone booth from which the petitioner placed his calls. It is true that the absence of such
penetration was at one time thought to foreclose further Fourth Amendment
inquiry, Olmstead
v. United States, 277 U.S. 438, 457, 464, 466, 48 S.Ct. 564, 565, 567, 568, 72
L.Ed. 944; Goldman
v. United States, 316 U.S. 129, 134--136, 62 S.Ct. 993, 995--997, 86 L.Ed.
1322, for that Amendment was thought to limit
only searches and seizures of tangible *353 property. [FN13] But '(t)he premise
that property interests control the right of the Government to search and seize
has been discredited.' Warden,
Md. Penitentiary v. Hayden, 387 U.S. 294, 304, 87 S.Ct. 1642, 1648, 18 L.Ed.2d
782. 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 narrow view on
which that decision rested. Indeed, we have expressly held that the Fourth
Amendment governs not only the seizure of tangible items, but extends as well
to the recording of oral statements overheard without any 'technical trespass
under * * * local property law.' Silverman
v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 682, 5 L.Ed.2d 734. Once this much is
acknowledged, and once it is recognized that the Fourth Amendment protects
people--and not simply 'areas'--against unreasonable searches and seizures it
becomes clear that the reach of that Amendment cannot turn upon the presence or
absence of a physical intrusion into any given enclosure.
FN13. See Olmstead
v. United States, 277 U.S. 438, 464--466, 48 S.Ct. 564, 567--569, 72 L.Ed. 944. We do not deal in
this case with the law of detention r arrest under the Fourth Amendment.
[15] 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 regarded as controlling. The Government's
activities in electronically listening to and recording the petitioner's words
violated the privacy upon which he justifiably relied while using the telephone
booth and thus constituted a 'search and seizure' within the meaning of the Fourth Amendment. The fact that the electronic device employed
to achieve that end did not happen to penetrate 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 Government's position is that its agents acted in an
entirely defensible manner: They did not begin their electronic surveillance
until investigation of the petitioner's activities had established a strong
probability that he was using the telephone in question to transmit gambling
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 agents confined their surveillance to the
brief periods during which he used the telephone booth, [FN14] and **513
they took great care to overhear only the conversations of the petitioner
himself. [FN15]
FN14. Based upon
their previous visual observations of the 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 some three minutes each, were
obtained and admitted in evidence. They
preserved the petitioner's end of conversations converning the placing of bets
and the receipt of wagering information.
FN15. On the single
occasion when the statements of another person were inadvertently intercepted,
the agents refrained from listening to them.
[16][17] Accepting this account of the Government's actions as
acccurate, 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 of the basis on which it was to proceed,
and clearly apprised of the precise intrusion 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 * * * allegations' of a 'detailed factual
affidavit alleging the commission of a specific criminal offense.' Osborn
v. United States, 385 U.S. 323, 329-- 330,
87 S.Ct. 429, 433, 17 L.Ed.2d 394. Discussing
that holding, the Court in Berger
v. State of New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040, said that 'the order authorizing the use of the electronic
device' in Osborn 'afforded similar protections to those * * * of conventional
warrants authorizing the seizure of tangible evidence.' Through those protections, 'no greater
invasion of privacy was permitted than was necessary under the
circumstances.' Id.,
at 57, 87 S.Ct. at 1882. [FN16] Here, too, **514 a similar *356
judicial order could have accommodated 'the legitimate needs of law
enforcement' [FN17] by authorizing
the carefully limited use of electronic surveillance.
FN16. Although the
protections afforded the petitioner in Osborn were 'similar * * * to those * *
* of conventional warrants,' they were not identical. A conventional warrant ordinarily serves to
notify the 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 lost; the evidence in question could not have been obtained. In omitting any requirement of advance
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 authorized search if such an announcement would provoke the escape of the
suspect or the destruction of critical evidence. See, Ker
v. State of California, 374 U.S. 23, 37-- 41, 83 S.Ct. 1623, 1631--1634, 10
L.Ed.2d 726.
Although some have thought that this 'exception to the
notice requirement where exigent circumstances are present,' id.,
at 39, 83 S.Ct. at 1633, should be deemed
inapplicable where police enter a home before its occupants are aware that
officers are present, id.,
at 55--58, 83 S.Ct. at 1640--1642 (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
unannounced police intrusion,' id.,
at 57, 83 S.Ct. at 1642, and that 'the
requirement of awareness * * * serves to minimize the hazards of the officers'
dangerous calling,' id.,
at 57--58, 83 S.Ct. at 1642, these considerations
are not relevant to the problems presented by judicially authorized electronic
surveillance.
Nor do the Federal Rules of Criminal Procedure impose 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, 9 Cir., 24 F.2d 665, 666--667. Thus the fact that the petitioner in Osborn was
unaware that his words were being electronically 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 recording device
sanctioned in Osborn was entirely lawful. 388
U.S. 41, 57, 87 S.Ct. 1873, 1882.
FN17. Lopez
v. United States, 373 U.S. 427, 464, 83 S.Ct. 1381, 1401, 10 L.Ed.2d 462 (dissenting opinion of MR. JUSTICE BRENNAN).
[18][19] 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 prior judicial sanction, we should
retroactively validate their conduct.
That we cannot do. It is apparent
that the agents in this case acted with restraint. Yet the inescapable fact is that this
restraint was imposed by the agents themselves, not by a judicial officer. They were not required, before commencing the
search, to present their estimate of probable cause for detached scrutiny by a
neutral magistrate. They were not
compelled, during the conduct of the 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 magistrate in detail
of all that had been seized. In the
absence of such safeguards, this Court has
never sustained a search upon the sole ground that officers reasonably expected
to find evidence of a particular crime and voluntarily confined their
activities to the least intrusive *357 means consistent with that
end. Searches conducted without warrants
have been held unlawful 'notwithstanding facts unquestionably showing probable
cause,' Agnello
v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 6, 70 L.Ed. 145, 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, 83 S.Ct. 407, 414, 9 L.Ed.2d 441. '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, 72 S.Ct. 93, 95, 96 L.Ed. 59, and that searches conducted outside the judicial process,
without prior approval by judge or magistrate, are per se unreasonable under
the Fourth Amendment [FN18] --subject only to a few specifically established and
well-delineated exceptions. [FN19]
FN18. See, e.g., Jones
v. United States, 357 U.S. 493, 497--499, 78 S.Ct. 1253, 1256--1257, 2 L.Ed.2d
1514; Rios
v. United States, 364 U.S. 253, 261, 80 S.Ct. 1431, 1436, 4 L.Ed.2d 1688; Chapman
v. United States, 365 U.S. 610, 613--615, 81 S.Ct. 776, 778, 779, 5 L.Ed.2d
828; Stoner
v. State of California, 376 U.S. 483, 486--487, 84 S.Ct. 889, 891--892, 11
L.Ed.2d 856.
FN19. See, e.g., Carroll
v. United States, 267 U.S. 132, 153, 156, 45 S.Ct. 280, 285, 286, 69 L.Ed. 543; McDonald
v. United States, 335 U.S. 451, 454--456, 69 S.Ct. 191, 192--194, 93 L.Ed. 153; Brinegar
v. United States, 338 U.S. 160, 174--177, 69 S.Ct. 1302, 1310--1312, 93 L.Ed.
1879; Cooper
v. State of California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730; Warden
Md. Penitentiary v. Hayden, 387 U.S. 294, 298--300, 87 S.Ct. 1642, 1645--1647,
18 L.Ed.2d 782.
[20][21][22] It is difficult to imagine how any of those exceptions
could ever apply to the sort of search and seizure involved in this case. Even electronic surveillance substantially
contemporaneous with an individual's arrest could hardly be deemed an
'incident' of that arrest. [FN20] **515 *358 Nor could the use of electronic
surveillance without prior autorization be justified on grounds of 'hot
pursuit.' [FN21] And, of course, the very nature of electronic
surveillance precludes its use pursuant to the suspect's consent. [FN22]
FN20. In Agnello
v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 5,
70
L.Ed. 145, the Court stated:
'The right without a search warrant contemporaneously to
search persons lawfully arrested while committing crime and to search the place
where the arrest is made in order to find and seize things connected with the
crime as its fruits ar as the means by which it was committed, as well as
weapons and other things to effect an escape from custody 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, 70 S.Ct. 430, 433, 94 L.Ed. 653; cf. id.,
at 71--79, 70 S.Ct. at 437--441 (dissenting
opinion of Mr. Justice Frankfurter), 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.
FN21. 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
Md. Penitentiary v. Hayden, 387 U.S. 294, 298--299, 87 S.Ct. 1642, 1646, 18
L.Ed.2d 782, there seems little likelihood that
electronic surveillance would be a realistic possibility in a situation so
fraught with urgency.
FN22. A search to which an individual consents meets Fourth
Amendment requirements, Zap
v. United States, 328 U.S. 624, 66 S.Ct. 1277, 90 L.Ed. 1477, but of course 'the usefulness of electronic surveillance
depends on lack of notice to the suspect.'
Lopez
v. United States, 373 U.S. 427, 463, 83 S.Ct. 1381, 1401, 10 L.Ed.2d 462 (dissenting opinion of MR. JUSTICE BRENNAN).
The Government does not question these basic
principles. Rather, it urges the
creation of a new exception to cover this case. [FN23] It argues
that surveillance of a telephone booth should be exempted from the usual
requirement of advance authorization by a magistrate upon a showing of probable
cause. We cannot agree. Omission of such authorization
FN23. 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.
'bypasses the safeguards provided by an objective
predetermination of probable cause, and substitutes instead the far less
reliable procedure of an after-the-event justification for the * * * search,
too likely to be subtly influenced by the familiar shortcomings of hindsight
judgment.' Beck
v. State
of Ohio, 379 U.S. 89, 96, 85S.Ct. 223, 228, 13
L.Ed.2d 142.
And bypassing a neutral predetermination of
the scope of a search leaves individuals secure from Fourth Amendment *359
violations 'only in the discretion of the police.' Id.,
at 97, 85 S.Ct. at 229.
[23][24] These considerations do not vanish when the search in
question is transferred from the setting of a home, an office, or a hotel room
to that of a telephone booth. Wherever a
man may 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,' [FN24] a procedure
that we hold to be a constitutional precondition of the kind of electronic
surveillance involved in this case.
Because the surveillance here failed to meet that condition, and because
it led to the petitioner's conviction, the judgment must be reversed.
FN24. See Osborn
v. United States, 385 U.S. 323, 330, 87 S.Ct. 429, 433, 17 L.Ed.2d 394.
It is so ordered.
Judgment reversed.
Mr.
Justice MARSHALL took no part in the consideration or decision of this case.
Mr. Justice DOUGLAS, with whom Mr. Justice
BRENNAN joins, concurring.
While I join the opinion of the Court, I feel
compelled to reply to the separate concurring opinion of my Brother **516
WHITE, which I view as a wholly unwarranted green light for the Executive
Branch to resort to electronic eavesdropping without a warrant in cases which
the Executive Branch itself labels 'national security' matters.
Neither the President nor the Attorney General
is a magistrate. In matters where they believe national security may be
involved they are not detached, disinterested, and neutral as a court or
magistrate must be. Under the separation
of powers created by the Constitution, the Executive Branch is not supposed to
be neutral and disinterested. Rather it
should vigorously investigate *360 and prevent breaches of national
security and prosecute those who violate the pertinent federal laws. The President and Attorney General are
properly interested parties, cast in the role 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 spies and
saboteurs are involved adequate protection of Fourth Amendment rights is assured when the President and
Attorney General assume both the position of adversary-and-prosecutor and
disinterested, neutral magistrate.
There is, so far as I understand
constitutional history, no distinction under the Fourth Amendment between types
of crimes. Article III, s 3, gives 'treason' a very narrow definition and puts
restrictions on its proof. But the
Fourth Amendment draws no lines between various substantive offenses. The arrests on cases of 'hot pursuit' and the
arrests on visible or other evidence of probable cause cut across the board and
are not peculiar to any kind of crime.
I would respect the present lines of
distinction and not improvise because a particular crime seems particularly
heinous. 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 hold only (a) that an enclosed telephone booth is an area where, like a
home, Weeks
v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, and unlike a field, Hester
v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898, a person has a constitutionally protected reasonable
expectation of privacy; (b) that electronic
as well as physical intrusion into a place that is in this sense private may
constitute a violation of the Fourth Amendment; *361 and (c) that the
invasion of a constitutionally protected area by federal authorities is, as the
Court has long held, presumptively unreasonable in the absence of a search
warrant.
As the Court's opinion states, 'the Fourth
Amendment protects people, not places.'
The 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 there is a twofold requirement, first that a person have exhibited an
actual (subjective) expectation of privacy and, second, that the expectation be
one that society is prepared to recognize as 'reasonable.' Thus a man's home is, for most purposes, a
place 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 himself 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 it, (a telephone **517 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 511. The point is
not that the booth is 'accessible to the public' at other times, ante, at 511,
but that it is a temporarily private place whose momentary occupants' expectations
of freedom from intrusion are recognized as reasonable. Cf. Rios
v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688.
In Silverman
v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734, we hedl that eavesdropping accomplished by means of an
electronic device that penetrated the premises occupied by petitioner was a
violation of the Fourth Amendment. *362
That case established that interception of conversations reasonably intended to
be private 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, 83 S.Ct. 407, at 416, 9 L.Ed.2d 441, and Berger
v. State of New York, 388 U.S. 41, at 51, 87 S.Ct. 1873, at 1879, 18 L.Ed.2d
1040. Also
compare Osborne
v. United States, 385 U.S. 323, at 327, 87 S.Ct. 429, at 431, 17 L.Ed.2d 394. In Silverman we
found it unnecessary to re-examine Goldman
v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322, 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.
[FN*] 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.
FN* 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, 48 S.Ct. 564, 72 L.Ed. 944, which essentially rested on the ground that coversations
were not subject to the protection of the Fourth Amendment.
Finally, I do not read the Court's opinion to
declare that no interception of a conversation one-half of which occurs in a
public telephone booth can be reasonable in the absence of a warrant. As elsewhere under the Fourth Amendment,
warrants are the general rule, to which the legitimate needs of law enforcement
may demand specific exceptios. It will
be time enough to consider any such exceptions when an appropriate occasion
presents 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 telephone 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. [FN**]
FN** In previous
cases, which are undisturbed by today's decision, the Court has upheld, as
reasonable under the Fourth Amendment, admission at trial of evidence obtained
(1) by an undercover police agent to whom a defendant speaks without knowledge
that he is in the employ of the police, Hoffa
v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); (2) by a recording device hidden on the person of such an
informant, Lopez
v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963); Osborn
v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394 (1966); and (3) by a policeman listening to the secret micro-wave
transmissions of an agent coversing with the defendant in another location, On Lee
v. United States, 343 U.S. 747, 72 S.Ct. 967, 96
L.Ed. 1270 (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 law-abiding) associates.
Hoffa v. United States, supra. It
is but a logical and reasonable extension of this principle that a man take the
risk that his hearer, free to memorize what he hears for 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
circumstances in which a reasonable person would assume that uninvited ears
were not listening.
**518 In joining the Court's opinion, I
note the Court's asknowledgment that there are circumstance in which it is
reasonable 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 cases from restrictions against wiretapping. See Berger
v. State of New York, 388 U.S. 41, 112--118, 87 S.Ct. 1873, 1911--1914, 18
L.Ed.2d 1040 (1967) (White, J., *364 dissenting). We should not require the warrant procedure
and the magistrate's judgment if the President of the United States or his chief
legal officer, the Attorney General, has considered the requirements of
national security and authorized electronic surveillance as reasonable.
Mr. Justice BLACK, dissenting.
If I could agree with the Court that
eavesdropping carried on by electronic means (equivalent to wiretapping)
constitutes a 'search' or 'seizure,' I would be happy to join the Court's
opinion. For on that premise my Brother
STEWART sets out methods in accord with the Fourth Amendment to guide States in
the enactment and enforcement of laws passed to regulate wiretapping by
government. In this respect today's
opinion differs sharply from Berger
v.State of New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040, decided last Term, which held void on its face a New York
statute authorizing wiretapping on warrants issued by magistrates on showings
of probable cause. The Berger case also
set up what appeared to be insuperable obstacles to the valid passage of such
wiretapping laws by States. The Court's
opinion in this case, however, removes the doubts 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 Court, I am still unable to agree with its
interpretation of the Fourth Amendment.
My basic objection is twofold: (1) I do not
believe that the words of the Amendment will bear the meaning given them by
today's decision, and (2) I do not believe that it is the proper 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 people 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 subjects
as privacy, for me the language of the Amendment is the crucial place to look
in construing a written document such as our Constitution. The Fourth Amendment says that
'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 be
searched, and the persons or things to be seized.'
The first clause protects 'persons, houses,
papers, and effects, against unreasonable searches and seizures * * *.' **519
These words connote the idea of tangible
things with size, form, and weight, things capable of being searched, seized,
or both. The second clause of the
Amendment still further establishes its Framers' 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 snooping or wiretapping, is not
tangible and, under the normally accepted meanings of the words, can neither be
searched nor seized. In addition the
language of the second clause indicates that the Amendment refers not only to
something tangible so it can be seized but to something already in existence so
it can be described. Yet the Court's
interpretation would have the Amendment apply to overhearing future
conversations which 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 future? 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 information 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 does not apply to eavesdropping.
Tapping telephone wires, of course, was an
unknown possibility at the time the Fourth Amendment was adopted. But eavesdropping (and wiretapping is nothing
more than eavesdropping by telephone) was, as even the majority opinion in
Berger, supra, recognized, 'an ancient practice which at common law was
condemned as a nuisance. IV Blackstone,
Commentaries s 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, 87 S.Ct., at 1876. There can be no doubt that the Framers were
aware of this practice, and if they had desired to outlaw or restrict the use
of evidence obtained by eavesdropping, I believe that they would have used the
appropriate language to do so in the Fourth Amendment. They certainly would not have left such a
task to the ingenuity of language-stretching judges. No one, it seems to me, can read the debates
on the Bill of Rights without reaching the conclusion that its Framers and
critics well knew the meaning of the words they used, what they would be
understood to mean by others, their scope and their limitations. Under these circumstances it strikes me as a
charge against their scholarship, their common sense and their candor to give
to the Fourth Amendment's language the eavesdropping meaning the Court imputes
to it today.
I do not deny that common sense requires and
that this Court 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 Fourth Amendment was aimed directly at
the abhorred practice of breaking in, ransacking and searching homes and other
buildings and seizing people's personal belongings without warrants issued by
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 effects.
But until today this Court has refused to say that eavesdropping comes
within the ambit of Fourth Amendment restrictions. See, e.g., Olmstead
v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928), and Goldman
v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 (1942).
**520 So far I have attempted to state
why I think the words of the Fourth Amendment prevent its application to
eavesdropping. It is important now to
show that this has been the traditional view of the Amendment's scope since its
adoption and that the Court's decision in this case, along with its amorphous
holding in Berger last Term, marks the first real departure from that view.
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 tha the interception of private telephone 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 and 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
material things--the person, the house, his papers, or his effects. The description of the warrant necessary to
make the proceeding lawful is *368 that it must specify the place to be
searched and the person or things to be seized. * * *
'Justice Bradley in the Boyd case (Boyd
v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746), and Justice Clarke in the Gouled case (Gouled
v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647), said that the Fifth Amendment and the Fourth Amendment
were to be liberally construed to effect the purpose of the framers 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 to forbid hearing or sight.' 277
U.S., at 464--465, 48 S.Ct., at 568.
Goldman
v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322, is an even clearer example of this Court's traditional
refusal 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 defendant 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, theCourt 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 eavesdropping. That there was no trespass was not the
determinative factor, and indeed the Court in citing Hester
v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898, indicated that even where there was a trespass the Fourth
Amendment does not automatically apply to evidence obtained 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 100 yards away
from his house, and saw him come out and hand a bottle of whiskey to another,
was not inadmissible. While there was a
trespass, there was no search of person, house, papers, or effects.' 277
U.S., at 465, 48 S.Ct., at 568. 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.
While my reading of the Olmstead and Goldman
cases convinces me that they were decided on the basis of the inapplicability **521
of the wording of the Fourth Amendment to eavesdropping, and not on any
trespass basis, this is not to say that unauthorized 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
clear in my dissenting opinion in Berger
v. State of New York, 388 U.S. 41, 76, 87 S.Ct. 1873, 1892, 18 L.Ed.2d 1040, I continue to believe that this exclusionary rule
formulated in Weeks
v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, rests on the 'supervisory power' of this Court over other
federal courts and is not rooted in the Fourth Amendment. See Wolf
v. People of State of Colorado, concurring opinion, 338 U.S. 25, 39, at 40, 69
S.Ct. 1359, 1367, at 1368, 93 L.Ed. 1782. See also Mapp
v. Ohio, concurring opinion, 367 U.S. 643, 661-- 666, 81 S.Ct. 1684,
1694--1698, 6 L.Ed.2d 1081. This rule has caused
the Court to refuse to accept evidence where there has been such 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, 83 S.Ct. 1381, 1387, 10 L.Ed.2d 462, 'The Court has in the past sustained instances of 'electronic eavesdropping' against
constitutional challenge, when devices have been used to enable government
agents to overhear conversations which would have been beyond the reach of the
human ear (citing *370 Olmstead and Goldman). It has been insisted only
that the electronic device not be planted by an unlawful physical invasion of a
constitutionally protected area.
Silverman v. United States.'
To support its new interpretation of the
Fourth Amendment, 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, 81 S.Ct. 679, 5 L.Ed.2d 734, and Warden,
Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782. Neither of these
cases 'eroded' Olmstead or Goldman. Silverman is an interestng 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
significant that in Silverman, as the Court described it, 'the eavesdropping
was accomplished by means on an unauthorized physical penetration into the
premises occupied by the petitioners,' 365
U.S., at 509, 81 S.Ct., at 681, 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, 81
S.Ct., at 682.) 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 record in this case shows
that the eavesdropping was accomplished by means of an unauthorized physical
penetration into the premises occupied by the petitioners.' (365
U.S., at 509, 81 S.Ct., at 682 emphasis added.)
'Eavesdropping *371 accomplished by means of such a physical intrusion
is beyond the pale of even those decisions * * *.' (At 509, 81
S.Ct., at 682, emphasis added.) 'Here * * * the
officers overheard the petitioners' conversations only by usurping part of the
petitioners' house or office * * *.' (At 511, 81
S.Ct., at 682, emphasis added.) '(D)ecision here
* * * is based upon the reality of an actual intrusion * * *.' (At 512, 81
S.Ct., at 683, emphasis added.) 'We find no
occasion to re-examine Goldman **522 here, but we decline to go beyond
it, by even a fraction of an inch.' (At 512, 81
S.Ct., at 683, emphasis added.) As if this were
not enough, Justices Clark and Whittaker
concurred with the following 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, 81
S.Ct., at 684, 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 agreed with
the Court's opinion in Silverman * * * had I thought that the result depended
on finding a violation of the Fourth Amendment * * *.' 388
U.S., at 79--80, 87 S.Ct., at 1894. 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 Amendment.
The other 'eroding' case cited in the Court's
opinion is Warden,
Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782. It appears that
this case is cited for the proposition that the Fourth Amendment applies to
'intangibles,' such as conversation, and the following ambiguous statement is
quoted from the opinion: 'The premise that property interests control the right
of the Government to search and seize has been discredited.' 387
U.S., at 304, 87 S.Ct., at 1648. But far from being concerned*372 with
eavesdropping, Warden, Md. Penitentiary v. Hayden upholds the seizure of
clothes, certainly tangibles by any definition.
The discussion of property interests was involved only with the
common-law rule that the right to seize property depended upon proof of a
superior property interest.
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 these cases have never been
overruled or even 'eroded.' It is the
Court's opinions in this case and Berger which for the first time since 1791,
when the Fourth Amendment was adopted, have declared that eavesdropping is
subject to Fourth Amendment restrictions and that conversation can be 'seized.' [FN*] 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.
FN* The first
paragraph of my Brother HARLAN's concurring opinion is susceptible of the
interpretation, although probably not intended, that this Court 'has long held'
eavesdropping to be a violation of the Fourth Amendment and therefore
'presumptively 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 have 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 cannot be said it 'has (been) long
held.' I think by 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
establish the holding the Court adopts today, it becomes clear 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 that it is 'bad physics' to adhere to Goldman. Such an assertion
simply illustrates the propensity of some members of the Court to rely on their
limited understanding of modern scientific subjects in order to fit the
Constitution to the times and give its language a meaning that it will not
tolerate.
*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 Rights, I willingly go as far **523 as a
liberal construction of the language takes me, but I simply cannot in good
conscience give a meaning to words which
they have never before been thought to have and which they certainly do not
have in common ordinary usage. I will
not distort the words of the Amendment in order to 'keep the Constitution up to
date' or 'to bring it into harmony with the times.' It was never meant that this Court have such
power, which in effect would make us a continuously functioning constitutional
convention.
With this decision the Court has completed, I
hope, its rewriting of the Fourth Amendment, which started only recently when
the Court began referring incessantly to the Fourth Amendment not so much as a
law against unreasonable searches and seizures as one to protect an
individual's privacy. By clever word
juggling the Court finds it plausible to argue that language aimed specifically
at searches and seizures of things that can be searched and seized may, to
protect privacy, be applied to eavesdropped evidence of conversations that can
neither be searched nor seized. Few
things happen to an individual that do not affect his privacy in one way or
another. Thus, by arbitrarily 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 the Fourth Amendment its
vehicle for holding all laws violative of the Constitution which offend the
Court's broadest concept of privacy. As
I said in Griswold
v. State of Connecticut, 381 U.S. 479, 85 S.Ct.
1678, 14 L.Ed.2d 510, 'The Court talks about a
constitutional 'right of privacy' 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, 85
S.Ct. at 1695.) I made 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 generally
dissenting opinion, at 507--527, 85
S.Ct., at 1694--1705.)
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 Court such
omnipotent lawmaking authority as that.
The history of governments proves that it is dangerous to freedom to
repose such powers in courts.
For these reasons I respectfully dissent.
389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576
END OF
DOCUMENT