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Katz is out of the Bag:
Katz’s Weaknesses & the Rapidly Emerging Technology of Today and the Future. 

Robert Keates                                                                                     Spring, 2005

 

Section II – History of the Fourth Amendment & the Evolution of Katz
            The Fourth Amendment only prohibits unreasonable searches and seizures.  If the government activity is not a search or a seizure, then it is not subject to Fourth Amendment scrutiny.  The Fourth Amendment states in pertinent part 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...” This jurisprudence has evolved over time, from its humble beginnings in common law, to property based evaluations, and finally to the present double pronged expectation of privacy standard.  In order to fully understand the protections of the Fourth Amendment today, it is necessary to review its history.

  1. British Case Law – The Origins of the Fourth Amendment

The Fourth Amendment is founded on the common law maxim that “a man’s house is his castle; and while he is quiet, he is well guarded as a prince in his castle.”   This notion was grounded in English common law after three search and seizure cases arising in the late eighteenth century. 
In The Case of John Wilkes, a well known Member of Parliament, was suspected of authoring pamphlets critical of the King.  The British Secretary of State issued a general warrant, not specifically naming John Wilkes, but instead directing officials to search for seditious and treasonous papers.    Officials raided the homes of over fifty citizen’s, including Wilkes, confiscating evidence and making arrests.   Wilkes and several others challenged their arrests by bringing trespass actions against the officials.   After Chief Judge Pratt instructed the jury regarding whether the government had the power to search wherever their suspicions lay, the jury found for Wilkes.   Two years later, John Entick authored similar pamphlets critical of the King.   The government again issued a warrant, this time specifically naming Entick.   Still, Entick successfully sued for trespass after being arrested.   In upholding the jury’s verdict, Chief Judge Pratt noted that “papers are the owners chattels; they are his dearest property; and are so far from enduring a seizure, that they will hardly bear an inspection.”
This concern over official discretion was echoed with respect to writs of assistance.  In the late seventeenth and early eighteenth centuries, British statutes gave customs officials unlimited authority to search based upon mere suspicion.   In Boston, John Otis challenged the statute, arguing that writs of assistance violated the ‘a man’s house is his castle’ maxim.   Although Otis lost the argument, John Adams later recognized that the argument was the “first act of opposition” towards Great Britain’s arbitrary search and seizure powers.
The text of the Fourth Amendment and its history illustrates the founder's concern over the government’s unbridled power to search and seize. This notion was reiterated by Judge Thomas Cooley, who in 1868 wrote that the Fourth Amendment “secure[s] to the citizen immunity in his home against the prying eyes of the government, and protection in persons, property, and papers even against the process of law, except in a few specified cases.    All three of these cases were based upon a property law evaluation of privacy, affording the owner the right to exclude others, including the government.  This approach carried over into early American jurisprudence.

  1. Pre-Katz Case Law – The Rise of American Property Based Protections

The United States Supreme Court first considered the Fourth Amendment threshold question in 1886.  In Boyd v. United States, the government attempted to compel plaintiff to produce invoices showing that goods were purchased without paying duties.  The government’s demands were pursuant to a statute proving that if the invoices were not produced, the government’s allegations would be deemed as true, allowing civil forfeiture of the purchased goods.   In determining that the forced transfer of documents was an unreasonable search and seizure, the court did not define either term.  Instead, they focused on property law to describe a “right of personal security, personal liberty, and priva[te] property…” The court linked Fourth Amendment law to property and trespass law, stating that liberty meant having secure property rights.   
After Boyd, the courts continued to view the Fourth Amendment through the lens of property law.  In Omstead v. United States, the court considered whether the Fourth Amendment was implicated when government agents wire-tapped the telephone conversations of a suspected liquor bootlegger.  Using the property perspective adopted in Boyd, the court held that wiretapping did not constitute a search or seizure.   The court reasoned that the taps were installed without physical intrusion into the defendant’s home, and that Fourth Amendment protections did not extend to interceptions of voices outside of the home.   This was perhaps the first appearance of the court’s public exposure doctrine, which began to limit privacy in public areas.
The Supreme Court’s decision in Goldman v. United States continued to apply their bright line physical trespass rule.  In 1942, federal agents placed a high powered microphone against the wall of an adjoining office to listen to the defendant’s conversations on the other side.  The court ruled that the use of the microphone by Government agents was not a violation of the Fourth Amendment.   Relying heavily on Omstead, as well as the factual determinations of the lower courts, the court reasoned that there was no physical trespass into the defendant’s office, nor did the installation of the microphone outside the office did not amount to a trespass.  
In 1961, Silverman v. United States involved officers investigating a gambling operation.  During surveillance, the officers used a microphone on a mounting spike, and inserted the spike under a floorboard until it came in contact with the defendant’s heating duct.  By making contact with the heating duct, officers could clearly hear conversations taking place on both floors of the defendant’s house.   The court held that the officers overheard the conversations without knowledge or consent by physically using heating ducts of the defendant’s home.   By declaring the use of the heating duct a trespass, the court was able to keep Omstead and the property based Fourth Amendment law intact.  This property based perspective of the Fourth Amendment centered on several key issues: whether the government had searched or seized a tangible item; whether an area had a constitutional protection; and, whether the government physically trespassed into that area.  

C.        Katz and the Fall of Property Based Fourth Amendment Protection
Seventy nine years after Boyd, the court overruled the property based Fourth Amendment approach in the landmark case of Katz v. United States.   In Katz, FBI agents attached a listening device to the outside of a public phone booth in an attempt to overhear betting information being relayed by the defendant.   The Supreme Court reversed the lower courts findings and held that the FBI agents had conducted a Fourth Amendment search and seizure by electronically listening to and recording Katz’s conversation.   They reasoned that because the defendant had shut the booth door and paid for a private call, he had asserted an expectation of privacy in the phone booth.   Thus, the court overturned Omstead, stating that a focus on protected physical areas only served to divert attention away from the issues.   The Katz majority explained:
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. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

            Although the majority’s opinion overturned over 79 years of American case law, it offered little guidance as to how future courts should determine new Fourth Amendment protections.  Justice Harlan properly filled this gap with his concurring opinion.  Justice Harlan developed a two prong test, still in use today, to determine when a Fourth Amendment protection violation occurs.   In this analysis, two questions must be affirmatively answered for a violation to occur.  First, has the citizen exhibited an actual or subjective expectation of privacy? If this first prong is satisfied, then the court asks whether that expectation of privacy is one that society is prepared to objectively regard as reasonable.   For the last 35 years, this reasonable expectation of privacy has become the accepted definition of a Fourth Amendment search. 
The court seemed unconcerned with the location of the recording device, be it inside the booth or outside.  Nevertheless, the court concluded that society deemed it reasonable for Katz to possess an expectation of privacy in a public telephone booth.  Interestingly, the progeny of Katz places an emphasis on the location of the technological device.  The court ignores that the booths are almost all clear glass, on a public street, and are not in the least bit soundproof.  Aside from whispering quietly, Katz could have done little to prevent his voice from being heard by people strolling along on the street, or stopping outside the booth.   In light of the later cases, it is also of interest that Katz provides an expectation of privacy in an enclosed area in public.  This will be more relevant when passive alcohol detectors are discussed.

 

D.        Post Katz Case Law – Katz in the Age of Technology
As technology became more advanced and widely utilized by both the public and law enforcement, questions began to rise regarding the intrusiveness of certain searches.  Often, with the help of technology, officers were able to expand and improve their own senses and investigative skills.  Many critics opposed the use of this equipment by law enforcement agents, fearing that the techniques intruded into the privacy of citizens.  This section of the paper will discuss how the courts applied Katz to deal with law enforcement’s use of early technology to gain information without physical intrusion.


USCS Const. Amend. 4 (2004).

Y.B. 21 Hen. 7, fo. 39, pl. 50 (1499).

19 Howell's State Trials 982 (K.B. 1763).

Wilkes, 19 Howell's State Trials at 982.

Id.

Wilkes v. Wood, 19 Howell's State Trials 1153 (K.B. 1973).

Wilkes, Howell's State Trials at 1153.

Entick v. Carrington, 19 Howell's State Trials 1029 (K.B. 1765).

Entick, 19 Howell's State Trials at 1032.

Id. at 1036.

Who had by then attained the title of Lord Camden.

Entick, 19 Howell's State Trials at 1066.

Raymond Shih Ray Ku, Modern Studies in Privacy Law: Searching for the Meaning of Fourth Amendment Privacy After Katz v. United States: The Founders' Privacy: The Fourth Amendment and the Power of Technological Surveillance, 86 Minn. L. Rev. 1325, 1134-1335 (2002).

Ku, supra note 16, at 1335. 

Id.

Susan Moore, Comment: Does Heat Emanate Beyond the Threshold?: Home Based Infrared Emissions, Remote Sensing, and the Fourth Amendment Threshold, 70 Chi.-Kent. L. Rev. 803, 812-13 (1994).

116 U.S. 616 (1886).

Boyd, 116 U.S. at 621-22.

Boyd, 116 U.S. at 630.

Id. at 627.

277 U.S. 438 (1928).

Olmstead, 277 U.S. at 466.

Id. at 457.

Id. at 466.

316 U.S. 129 (1942).

Id. at 135.

Id. at 135.

365 U.S. 505 (1961).

Silverman, 365 U.S. at 506.

Id. at 507.

Id. at 511.

Id. at 512.

Katz v. United States, 389 U.S. 347 (1967).

Katz, 389 U.S. at 349.

Katz, 389 U.S. at 353.

Id. at 352.

Id. at 351.

Id.

Id. at 361.

Id.

Id.

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