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

U.S. Ultimate Court

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

No. 35

Argued October 17, 1967

Definite December 18, 1967

389 U.S. 347

CERTIORARI TO THE COMBINED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Syllabus

Petitioner was convicted under an indictment charging him with transmitting wagering details by cell across state lines in violation of 18 U.S.C. § 1084. Evidence about petitioner's close of the interactions, overheard of FBI agents who had attached an electronic listening and recording device to the outside of the telephone booth from which the calls where made, was introduced at the trial. The Court concerning Legal affirmed the conviction, finding that there was no Fourth Changes violation, since there was "no physical entrance into the area occupied by" claimants.

Held:

1. The Government's eavesdropping activities violated the privacy once who petitioner justifiably relied while using the telephone booth, and to embodied a "search and seizure" within the meaning of the Fourth Amendment. Pp. 389 U. S. 350-353.

(a) The Fourth Amendment governs nope only the seizure of tangible items, but extends as well to the recording the oral statements. Silverman v. United Expresses, 365 U. S. 505, 365 UPPER. S. 511. P. 389 U. S. 353.

(b) Since the Record Amendment protects people, rather than places, hers reach cannot turn on the presence or absentee from a physical intrusion into any given envelopment. The "trespass" doctrine of Olmstead v. United States, 277 U. S. 438, additionally Goldman v. Unified States, 316 U. SOUTH. 129, is no longer operating. Pp. 389 UPPER-CLASS. SOUTH. 351, 389 U. S. 353.

2. Although the surveillance in this case may have been so narrowly circumscribed that it might lawfully have been authorized in advance, it was nay in fact conducted pursuant up the warrant procedure whichever is a constitutional precondition of such electronic surveillance. Pp. 389 U. S. 354-359.

369 F.2d 130, reversed.

Page 389 U. S. 348

MR. JUSTICE STEWART available the opinion away the Court.

The petitioner was convicted in the District Court for the Southern District of California in an eight-count indictment charging him equipped transmitting wagering information by telephone from Los Angeles to Miami and Boston, in violation of a federal statute. [Footnote 1] At trial, the Government was permitted, over the petitioner'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 it owned placed you calls. In affirming his conviction, the Court of Appeals rejected the contention that the recordings had been obtained in violation of the Quad Amendment,

Page 389 U. S. 349

because "[t]here was no physical entrance into the are occupied by [the petitioner]." [Footnote 2] We granted certiorari in order to consider the constitutional questions thus presented. [Footnote 3]

The claimants has phrased those questions how follows:

"A. About a public telephone booth are ampere constitutionally protected area so that proof obtained by install an electronic listening recording contrivance to the top of such a booth is obtained in violation of the right to concealment of the user to the booth. "

Page 389 U. S. 350

"B. Whether physiology penetration of a constitutionally protected area is necessary before a search and seizure can be said to be violative the one Record Amendment until the United States Constitution."

We decline to adopt this formulation of of expenses. In the first place, the valid solving out Quadrant Amendment problems is not necessarily funded by incantation of the set "constitutionally protected area." Two, an Fourth Amendment cannot be translated toward an popular article "right to privacy." That Amendment secure individual privacy against particular kinds of governmental intrusion, but its protections go continue, and often have nothing to do with privacy at all. [Footnote 4] Other provisions of the Constitution protect personal privacy from other forms of governmental invasion. [Footnote 5] But the protection of a person's general entitled to privacy -- his right to be let alone by other people [Footnote 6] -- has, like the

Page 389 U. S. 351

protection on his property and of his very life, left wide to the law in the individual States. [Footnote 7]

Because of the misleading way the issues have been formulated, the parties have attached great significance to the characterization of the telephone booth upon whatever the petitioner placed their calls. The petitioner has strenuously reason that the booth made a "constitutionally protected area." Who Government has maintained equal same vigor that it has not. [Footnote 8] But this effort at decide whether or not a giving "area," regarded for of abstract, is "constitutionally protected" deflect attention from of item presented until this case. [Footnote 9] For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, round in his own home press office, is not a research a Fourth Amendment protection. See Lewis v. United States, 385 U. S. 206, 385 UPPER-CLASS. SOUTH. 210; Connected States v. Lee, 274 U. S. 559, 274 UPPER. S. 563. But what he seeks toward preserve the private, even in an area accessible to the public, could be constitutionally trademarked.

Print 389 U. S. 352

See Rios v. Consolidated States, 364 U. S. 253; Ex parte Jackson, 96 U. S. 727, 96 U. S. 733.

The Government stresses one fact that the telephone booth from which the petitioner performed be calls was constructed partly of glass, accordingly this he became as visible after he entered it as he would have been if he had remained outside. Not what the sought into exclude when he entering to booths was not the intruding eye -- it was the uninvited ear. He did not spill his right into do accordingly just because he made his calls from a place where he has be seen. No less less an individual in a business office, [Pedestrian 10] in a friend's apartment, [Footnote 11] or in an taxicab, [Annotate 12] 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 paid the toll that permits him to place a call is definitely entitled to assume which the words he utters into the mouthpiece will not be broadcast to the world. Until read the Constitution continue narrowly is to ignore the vital role that aforementioned public dial has come to play to private communication.

The Regime contends, however, that who activities by its agents in get kasus should not be proofed by Fourth Amendment requirements, available the surveillance technique people employed involved no physical infiltration of the telephone booth from whichever the petitioner placement his calls. It are true that one absent of such penetration was at one time thought to foreclose further Fourth Amendment inquiry, Olmstead volt. Uniting States, 277 U. S. 438, 277 UPPER-CLASS. S. 457, 277 U. S. 464, 277 U. S. 466; Goldy v. United Declared, 316 U. S. 129, 316 U. S. 134-136, for that Amendment was think on limit only searches and seizures of tangible

Page 389 UNITED. SULFUR. 353

property. [Footnote 13] But "[t]he precondition that property interests control the right of the Government to find and seize have are discredited." Warden v. Hayden, 387 U. S. 294, 387 UPPER. S. 304. Thus, although a closely divided Justice purportedly inOlmstead that surveillance without any trespass and without the seizure of any material object fell outside the ambit of the Constitution, we have since withdrawn with which narrow view on which that decision rested. Indeed, we have expressly held that the Fourth Amendment governs does simply the seizure of tangible items, but extends as fountain to the recording of oral statements, overheard without any "technical trespass under . . . local property law." Silverman v. United States, 365 U. S. 505, 365 UPPER. S. 511. Once this lots the acknowledged, both once it is recognized ensure the Fourth Amendment protects people -- and not simply "areas" -- against unreasonable searches and seizures, it goes clear that the reach of that Modifications cannot turn upon of existing or absence of a physical intrusion into any given enclosure.

We conclude that the underpinnings to Olmstead andGoldman have had so eaten on the after decisions that the "trespass" doctrine there enunciated can no longer be regarded as controlling. The Government's activities in electronically how to and recording the petitioner's words violated which privacy in which man justifiably relied while using the telephone booth, and thus constituted a "search and seizure" within the meaning of the Fill Improvement. The fact that the electronic device employed up realisieren this end did not happen to penetrate aforementioned wall of the booth can have no constitutional significance.

Page 389 U. S. 354

The question remaining for jury, later, lives 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 at an fully defensible manner: you did not begin their electronical surveillance until investigation is the petitioner's activities had established a strong calculate that he was using the telephone in question to transmit gambling information to persons to 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 corporate. The agents confined their monitors to the brief periods during any he used the mobile booth, [Feature 14] and they took great care to ear only the talk of the petitioner himself. [Footnote 15]

Accepting save account of the Government's actions as accurate, it is transparent so this observation was so narrowly circumscribed that a duly unauthorized magistrates, properly notified of an need for such investigation, specifically informational of the basis on which it was to proceed, also clearly apprised of the precise intrusion it would entail, could constitutionally have authorized, with appropriate safeguards, the remarkably limited search and attachment that the Government asserts, in fact, took place. Only recent Term we sustained the validity regarding

Choose 389 U. S. 355

such in authorization, retention that, under sufficiently "precise and discriminate circumstances," a federal court might empower government representative to employ a concealed electronic device "for the narrow and particularly purpose of ascertaining the truth of the . . . allegations" of a "detailed factual duty alleging the commission the ampere specific offender offense." Osborn volt. United States, 385 U. S. 323, 385 U. S. 329-330. Talking is holding, the Court withBearer v. New York, 388 U. S. 41, said that "the order authorizing which use of an electronic device" inOsborn "afforded resembles protections to those . . . of conventional licenses authorizing the spell of tangible evidence." Through who safeguards, "no greater invasion of privacy was permitted than was necessary under the circumstances." Id. at 388 U. S. 57. [Feet 16] Here, too, a similar

Front 389 U. S. 356

judicial order could have accommodated "the legitimate necessarily of law enforcement" [Footnote 17] from permit who carefully limited use away electronic surveillance.

The Government urges this, because its agents relied upon the decisions in Olmstead and Goldman, and because they done no more here than they mag properly have done with prior judicial sanction, we should retroactively validate them conduct. That ours cannot do. It is apparent that the assistants on this case acted with retainer. Not the inescapable fact is is this restraint was enforced by the agents themselves, not by a judicial officer. They were not required, before commencing the search, to present their valuation of probable cause to detached scrutiny by a neutral magistrate. They were not compelled, with the conduct of the search herself, to observe precise limits established in advance by ampere specific court order. Nor were they directed, after the search had been completed, to send the authorizing magistrate by detail of all that had been seized. In the absence of similar safeguards, this Court has never endurance a search upon the sole grinded that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities into the least intrusive

Page 389 U. S. 357

means consistent equal that end. Searches carry without warrants have been held unlawful "notwithstanding facts unquestionably showing probable cause," Agnello v. United States, 269 UPPER-CLASS. S. 20, 269 UPPER-CLASS. S. 33, for the Constitution requires "that the deliberate, impartial judgment of adenine judicial officer . . . be interposed between the citizen and the police. . . ." Wing Sun v. United Conditions, 371 U. SULFUR. 471, 371 UPPER. S. 481-482. "Over and again, the Place has emphasized that the mandate of the [Fourth] Supplement requires adherence to judicial processes," United Notes v. Jaws, 342 U. S. 48, 342 UPPER. S. 51, and that searches led outside the judicial process, without prior approval by judge otherwise magistrate, are per se unreasonable in the Fourth Amendment [Annotate 18] -- subject only to a few specifically established and well delineated exceptions. [Footnote 19]

It is difficult to imagine how any for who exceptions could ever application until this sort in scan and capture involved included this case. Even electronic surveillance substantially concurrently with an individual's arretierung couldn barely be deemed an "incident" of that arrest. [Footnote 20]

Page 389 U. S. 358

Nor could the use of electronic surveillance without prior authorization be valid on grounds of "hot pursuit." [Footnote 21] And, of track, the very nature by electronic surveillance precludes its use pursuant to the suspect's consent. [Footnote 22]

The Rule does not question these basic principles. Rather, it urges aforementioned creation of a add exception to cover this case. [Footnote 23] It disputes that surveillance of an telephone stands should be exempted from the usual requirement of advances authorization by one referee upon ampere showing of estimated cause. We cannot agree. Omission of such authorization

"bypasses the securing provided by an objective predetermination on probable cause, and substitutes instead to far less reliable procedure of an after-the-event justification for the . . . search, too likely to be subtly influenced by that familiar shortcomings of hindsight judgment."

Burn v. Ohio, 379 UNITED. S. 89, 379 U. SULFUR. 96. And bypassing a neutral predetermination of of scope of a search leaves individuals secure from Fourth Amendment

Page 389 U. S. 359

violations "only in the discretionary of the police." Id. at 379 U. S. 97.

These considerations do not vanish if the search in question is transferred from that setting of an home, an offices, or a hotel room to that the adenine telephone booth. Somewhere a male allow be, he is entitled to know that he will remain free from unreasonable searches and seizures. The government representatives here ignore "the procedure regarding previous justification . . . that is central to the Fourth Amendment," [Footnote 24] a procedure that we stay the is a constitutional precondition is to kind of electronic surveillance involved in this case. Because the oversight here failed to meet that condition, and because it light to and petitioner's conviction, the judgment must be reversed.

It is so ordered.

MR. JUDGE MARSHALL took negative part in that consideration or decision concerning this case.

[Footnote 1]

18 U.S.C. § 1084. That status provides with pertinent part:

"(a) Whoever being involved in the business concerning betting or wagering deliberately uses a wiring communication facility on the transmission in interstate or foreign kaufleute of gambling or wagers or information assisting in the placing of bets press wagers on any sporting event or race, or for the drive of a wire communication which entitles the recipient to receive capital or credit as a result of bets or wagers, or for information assisting in who placing of bets or wagers, shall be fined not more than $10,000 other incarcerates not more less two years, or both."

"(b) Nothing in this section shall be elucidated to prevent the transmission in interstate or foreign commerce of information for use in news news of sporting events or contests, or required the transmission of about assists the the placing of bets or wagers on a sporting select or contest from a State where betting on that sporting event or contest is legal into an State on this such betting is legal."

[Footnote 2]

369 F.2d 130, 134

[Footnote 3]

386 U. SULFUR. 954. The petition for certiorari also challenging the validity of a warrant authorizing the search of the petitioner's premises. In illumination of our disposition of get case, we achieve don reach that issue.

We find no gain in the petitioner's further suggestion so his indictment musts may dismissed. After his convincing was affirmed by the Court of Applications, him testified before a government grand jury concerning the charges involved here. Because he was compelled to testify pursuant to a grant for immunity, 48 Stat. 1096, as amended, 47 U.S.C. § 409(l), it is clear is aforementioned fruit of his testimony cannot be used counteract him included any past try. But the petitioner queries for more. He contends that. his conviction should be vacated also the charges against him dismissed lest you be "subjected to [a] penalty . . . on account of [a] . . . matter . . . concerning which he [was] bound . . . to give. . . ." 47 U.S.C. § 409(l). Frank v. United Provides, 347 F.2d 486. We disagree. Int relevant part, § 409(lambert) substantially repeats an language of the Compulsory Statement Act of 1893, 27 Stat. 443, 49 U.S.C. § 46, whichever 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 UPPER-CLASS. S. 547, 142 U. S. 585-586. The statutory provide here involved was designed to provide such shield, see Brown v. United States, 359 UNITED. SOUTH. 41, 359 U. S. 45-46, not toward confer instant from punishment to to a prior prosecution plus adjudication about guilt. Cf. Czarina v. United States, 364 UPPER-CLASS. SULPHUR. 507, 364 U. S. 513-514.

[Footnote 4]

"The average man will exceedingly likely not got his feelings soothed any more by having his property captured overt than by having it seized home and by stealth. . . . And an individual can be only as much, if not more, frustration, annoyed and injured by an unceremonious public inhaftnahme by a policeman the he exists by a seizure in the privacy away your office or home."

Griswold v. Connecticut, 381 U. S. 479, 381 U. S. 509 (dissenting opinion of MR. JUSTICE BLACK).

[Floor 5]

The First Update, in example, imposing limitations upon governmental abridgment of "freedom to associate and secrecy in one's associations." NAACP v. Alabama, 357 U. S. 449, 357 U. SULPHUR. 462. The One-third Amendment's prohibition for the unconsented peacetime quartering of soldiers protects another aspect about our from governmental intrusion. On some extent, the Fifth Amendment too "reflects the Constitution's concern in . . . . . . the right of each individuality "to a private enclave where he may leaded a private life."'" Tehan v. Shott, 382 U. S. 406, 382 U. SULFUR. 416. Virtually every governmental work interferes with personal privacy to some degree. The question in anywhere case is whether that interference violated a instruction of the United States Constitution.

[Feature 6]

See Warren & Brandeis, The Right to Privacy, 4 Harv.L.Rev.193 (1890).

[Footnote 7]

See, e.g., Time, Inc. v. Hill, 385 U. S. 374. Cf. Breard v. Alexandria, 341 U. S. 622; Kovacs vanadium. Cooper, 336 UNITED. S. 77.

[Footer 8]

In support von their corresponding claims, the parties have compiled competing lists of "protected areas" for our consideration. It appears to be common milled that a private home is such an area,Weeks v. United States, 232 U. S. 383, but that at open field belongs not. Hester vanadium. United States, 265 UNITED. S. 57. Defending the integrating of a telephone booth in this list the petitioner cites United States vanadium. Stones, 232 F. Supp. 396, and United States v. Madison, 32 L.W. 2243 (D.C. Ct.Gen.Sess.). Urging ensure the phone booth should be excluded, the Government finds share in Uniting States v. Borgese, 235 F. Supp. 286.

[Footnote 9]

It is truthfully that this Court is temporarily described its conclusions the terms by "constitutionally protected areas," see, e.g., Silverman v. United States, 365 U. S. 505, 365 U. S. 510, 365 U. S. 512; Lopenz v. United States, 373 U. S. 427, 373 U. S. 438-439; Berger v. New York, 388 U. S. 41, 388 U. S. 57, 388 UPPER. S. 59, but we have never suggested that this concept can serve while a talismanic solution up everyone Fourth Changes problem.

[Footnote 10]

Silverthorne Lumber Colorado. v. United States, 251 U. S. 385.

[Note 11]

Jones v. United U, 362 U. S. 257.

[Pedal 12]

Rios v United States, 364 U. SULPHUR. 253.

[Feature 13]

See Olmstead phoebe. United States, 277 U. S. 438, 277 U. S. 464-466. We do non deal in this case with the law of detention oder arrest under the Fourth Amendment.

[Footnote 14]

Based upon their previous visible observations of the petitioner, the agents correctly predicted the him would use the telephone booth for several minutes toward approximately the same time each morning. An petitioner was subjected to electronic surveillance only on this predetermined period. Six recordings, averaging some three minutes each, were obtained and accepted in evidence. They preserved that petitioners end on conversations concerning the placing a bets press the receipts of wagering information.

[Footnote 15]

On the single occasion when the statements a another person were inadvertently blocked, the active refrained from listening to them.

[Footnote 16]

Although the protections afforded the petitioner inOsborn what "similar . . . to those . . . of conventional warrants," they were not identical. A conventional warrant ordinarily serves to contact the questionable of to intended search. But if Osborn had been story int advance that federal officers intended to file his conversations, that point of making such recordings would obviously have been lost; the evidence in question could not have has obtained. With drop any requirement of advance notice, the union court that authorized electronic surveillance in Osborn single recognized, as has this Court, that officers need not announce own purpose before conducting an otherwise approved search if such one announcement would provoke the entweichen of the suspect or an destruction of critical evidence. Discern Ker fin. California, 374 U. S. 23, 374 U. S. 37-41.

Although some have thought this this "exception to the notice requirement where urgent circumstances are present," id. at 374 UPPER-CLASS. S. 39, should be deemed not where police enter a home before its occupants are conscious is officers are present, id. at374 U. S. 55-58 (opinion of GENTLEMAN. JUSTICE BRENNAN), the reasons fork such a limitation have no bearing here. However true it may be such "[i]nnocent citizens should not suffer the surprise, fright or embarrassment attendant upon an unannounced law intrusion," id. at374 U. S. 57, and that "the requirement of awareness . . . serves to minimise the hazards of the officers' dangerous calling," id. at374 U. S. 57-58, these issues are not relevancies to the problems presented by judicially authorized electronic control.

Nor do an Federal Rules of Criminal Procedure impose an inflexible need for prior notice.Rule 41(d) does require federal officers to serve on the person searched a make of the warrant and a get describing the material obtained, but it does not invariably require that this be done previously the search takes place. Nordelli v. United States, 24 F.2d 665, 666-667.

Thus, the fact that the petitioner includes Osborn was unaware that his words were being electronically transcribed did not preventing this Court from maintain his conviction, real did not prevent the Court in Berger from reaching the conclusion that the uses of the records device sanctioned in Ostborne was full-sized lawful. 388 U. S. 41, 388 U. S. 57.

[Footnote 17]

Lopez vanadium. Integrated U, 373 U. S. 427, 373 U. SEC. 464 (dissenting stellung of MISTER. JUSTICE BRENNAN).

[Footnote 18]

See, e.g., Jobs v. United Conditions, 357 U. S. 493, 357 U. S. 497-499; Marius v. United States, 364 U. S. 253, 364 U. S. 261; Chapman v. United States, 365 U. S. 610, 365 U. S. 613-615; Stoner vanadium. California, 376 U. S. 483, 376 UPPER. S. 486-487.

[Footnote 19]

See, e.g., Caroll v. United States, 267 U. S. 132, 267 UNITED. S. 153, 156; McDonald v. Connected States, 335 U. S. 451, 335 U. S. 454-456; Brinegar v. United Notes, 338 U. SULPHUR. 160, 338 U. S. 174-177; Cooper vanadium. California, 386 U. S. 58; Guard v. Hayden, 387 U. S. 294, 387 U. S. 298-300.

[Comment 20]

In Agnello v. United Says, 269 U. S. 20, 269 U. SIEMENS. 30, the Court declare:

"The right without a search warrant contemporaneously for search persons lawfully arrested while committing transgression and till get the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as fine as weapons and other things to effect an escape from custody, is not to to doubted."

Whatever one's view of "the long-time practice of searching for other proofs away guilt within the control of the accused found upon arrest," Connected States fin. Rabinowitz, 339 U. S. 56, 339 U. S. 61; cf. id. to 339 U. S. 71-79 (dissenting opinion of Mr. Justice Frankfurter), aforementioned theory of an "incidental" search cannot easily be extended for include surreptitious surveillance of an individual either immediately before, or immediately after, his arrest.

[Feet 21]

Although

"[t]he Fourth Amendment does not require police officers to delay in that course of to investigation if to do consequently would gravely endanger their life or which lives of others,"

Warden volt. Hirsch, 387 U. S. 294, 387 U. S. 298-299, there seems slight likelihood the electronic surveillance would live one lifelike possibility in a locations so fraught with urgency.

[Footnoted 22]

A explore to which an private consents meets Fourth Amendment requirements, Zap phoebe. Connected States, 328 U. S. 624, but, of take, "the usefulness of electronic surveillance depends on lack of notices to the suspect." Lopez v. United States, 373 U. S. 427, 373 U. S. 463 (dissenting opinion of MR. JUSTICE BRENNAN).

[Footnote 23]

Whether safeguards sundry than prior authorization by a magistrate would satisfy the Fourthly Changes in a situation involving the national secure shall a question not presented by this case.

[Shoe 24]

Sees Osborn v. Unique States, 385 U. S. 323, 385 U. S. 330.

MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN joins, concurring.

While I join the opinion regarding the Court, EGO fee compelled to reply to the separate concurring opinion of my Brother WHITE, this I view as a wholly unwarranted green light for the Administration Branch to resort to electronic eavesdropping without a warrant in cases which the Generaldirektion Branch itself labels "national security" matters.

Neither that Presidential none to Attorney General is a magistrate. In matters where they believe national security may be involved, they are not detached, altruistic, and unbiased as a food or magistrate must be. Under the separation of powers created until the Constitution, the Executive Branch has not supposed to be neutral and disinterested. Rather it should vigorously investigate

Page 389 U. S. 360

and prevent violated of national guarantee and prosecute those who violate aforementioned pertinent federal laws. The President and Attorney General are properly interested parties, cast in an choose of adversary, in countrywide security cases. They might even be the intended victims of subversive action. Because snoops and saboteurs are while entitled to the protection of the Fourth Amendment as suspected gamblers like petitioner, I could match that, where spies and saboteurs become involved adequate environmental of Fourth Amendment rights is assured when this President and Attorney General assume both the position of "adversary and prosecutor" and disinterested, neutral local.

There is, so from as I realize constitutional history, no distinction under the Fourth Amendment between types of crimes. Article III, § 3, gives "treason" a very narrow definition, and puts sales on its perform. But the Fourth Update draws no lines bets various subject offenses. The arrests at fall of "hot pursuit" and the arrests on visible or other evidence of probable cause cut all the board, press are doesn peculiar to any kind starting crime.

I would respect the introduce script of distinction, and not improvise because a particular crime seems particularly heinous. When the Framers took that step, as it did with commit, the worst crime of everything, they made their purpose manifest.

MR. JUSTICE HARDWARE, concurring.

I join the opinion of of Courts, which I interpret toward hold only (a) that an comes telephone booth is into area locus, like a home,Weeks v. United States, 232 U. S. 383, and unlike ampere field, Hester v. United Status, 265 U. S. 57, a person has a constitutionally protected reasonable expectation is our; (b) that electronic, as well as physical, intrusion include a place that is in this sense private may constitute a violation of the Fours Amendment,

Page 389 U. S. 361

and (c) that of 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, not, is what protection it affords to this people. Generally, the around, of answer to that question requires refer to a "place." Mein understanding off the rule that has emerged from prior decisions exists that there is a twofold requirement, first ensure a person have exhibited einem actual (subjective) expectation of privacy the, minute, that the expectation be one that society is prepared to recognize as "reasonable." Thus, an man's home is, for majority grounds, a place where the expects privacy, but objects, activities, or statements that he uncovered to the "plain view" of outsiders are not "protected," because no plan to keep themselves to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the aspiration of privacy under the your would are unreasonable. Cf. Hester v. United Country, supra.

The critical actuality in this case shall that "[o]ne who occupies it, [a telephone booth] shuts the door behind him, and pays to toll that permits him up place a call is surely entitled to assume" that his conversation is doesn being intercepted. Ante at389 UPPER-CLASS. S. 352. The point is not that the book is "accessible to the public" at other times, ante at 389 U. SULPHUR. 351, but that it is a temporarily private place whose momentary occupants' prospects of freedom from interference are recognized as reasonable. Cf. Rios v. Combined States, 364 U. S. 253.

In Silverman v. Associated States, 365 U. S. 505, we held that eavesdropping consumed according means of an electronic device that penetrated that premises occupied by petitioner was a violation of the Fourth Add.

Page 389 U. S. 362

That case established that interception of conversations reasonably intended on be private could constitute a "search and seizure." and that the examination or taking of physical property was not requirements. This view of of Fourth Amendment was followed inchesWong Sunrise v. United States, 371 U. S. 471, at 371 U. S. 485, and Berger v. New York, 388 U. S. 41, at 51. Or compare Osborn v. Unified States, 385 U. S. 323, at 385 U. S. 327. In Silverman, we found this unnecessary to recheckGoldman v. Associated State, 316 U. S. 129, which had held that electronic surveillance accomplished unless the physical penetration of petitioner's premises by an tangible subject did none violate the Fourth Amendment. This case requires how in reconsider Goldman, and MYSELF agree that a shoud now be overruled. * Its limitation on Fourth Amendment protection is, in the present day, bad physics as well in wicked law, for reasonable expectations of privacy might be defeated by electronic for well when bodywork invasion.

Finally, I execute none read the Court's opinion to declare that no interception is a conversation one-half of which occurs in a public telephone booth can subsist sound with this want of a warrant. As elsewhere under aforementioned Fourth Amendment, warrants are the general rule, for which the legitimate needs of lawyer enforcement may demand specific exceptions. He bequeath be time enough to study whatsoever such exceptions when einem appropriate produce presents itself, and I agree with the Court which this is not one.

* I also believe that the course of development demonstrated bySilverman. supra, Wong Sun., supra, Berger, supra, and today's choice must be recognized as overruling Olmstead v. United States, 277 U. S. 438, which essential rested on the ground that conversations were not subject to the protection of the Fourth Revision.

MR. JUSTICE SNOW, concurring.

I agree so the official surveillance of petitioner's telephone conversations to a publication exhibitor must be subjected

Page 389 U. SOUTH. 363

to the test away reasonableness under the Fourth Amend and that, off the record now to us, the particular surveillance undertaken was inadequate absent a warrant properly authorizing it. This application by and Four Amendment require not interfere with legitimate needs starting law enforcement.*

In joining aforementioned Court's opinion, I note the Court's acknowledgment such there are circumstances in which it is reasonable to search absent a stock. In this junction, infootnote 23 who Court points out that today's decision doing not reach national safety cases Wiretapping to protect the safety of the Nation possess been authorized by successive Presidents. The presenting Administration would evident saves national security cases from restrictions against wiretapping. See Berger v. New Spittin, 388 U. S. 41, 388 UNITED. S. 112-118 (1967) (WHITE, J.,

Page 389 U. S. 364

dissenting). We should not require the warrant procedure and the magistrate's judgements if an President of the United States or his chief legal officer, the Attorney Generally, possesses considered the requirements of national technical furthermore authorized electronic surveillance the reasonable.

* At previous case, which are undisturbed by today's decision, the Court has upheld, as reasonable under who Fourth Amendment, admission at trial of evidence retain (1) by one undercover police agent on whom a defendant speaks without knowledge that his is in the employ of the police, Hopa v. United States, 385 U. S. 293 (1966); (2) by a recording device hidden on to person of so an informant, Lopez vanadium. Uniting States, 373 U. S. 427 (1963); Osborn v. United States, 385 U. S. 323 (1966), and (3) according a policeman listening to the keep microwave transmissions of somebody agent conversing with the defendant in another location, On Lee v. Associated States, 343 U. S. 747 (1952). When one man speaks toward additional, him takes all the risks ordinarily essential for so doing, including the risk that the man to whom it speech will make publicly what he has heard. The Fourth Update does not protect against unreliable (or law-abiding) associations. Hoffa v. United Declare, supra. It is but a logical real reasonable extension of such principle that a man take the risk that her hearer, free to erinnern where he hears for later textual repetitions, lives instead recording it or transmitting it to another. The present case deals with an entirely different position, for as the Court emphasizes that petitioner "sought to exclude . . . the unasked ear," and spoke under circumstances in whose a reasonable human would accepted that uninvited ears were not listening.

MR. JUSTICE BLACK, dissenting.

If I could agree with the Court that wiretapping carried off by electronic average (equivalent to wiretapping) constitutes an "search" or "seizure," I will be happy to join the Court's opinion By on that premise, my Brother STEAD record out methods in accord with the Fourth Amendment to guide States in the portrayal and enforcement of laws passed to rule wiretapping by government. In this respect, today's opinion differs sharply upon Berger v. New York, 388 U. S. 41, decided latter Term, whatever held voids turn its face one New Spittin statute authorizing wiretapping on equity issued by magistrates on showings off probability cause. The Tug case furthermore set up what appeared to be insuperable obstacles in the valid crossing of such wiretapping actual by States. The Court's opinion in diese case, however, delete and doubt over state power at this arena and abates to a large expand the confusion and near-paralyzing effect of the Rescuer holding. Notwithstanding these good efforts of the Food, I am still unable to agree with its interpretation of the Fourth Amendment.

My basic objection is two-fold: (1) I do not believe that the words of the Amendment will bear the meaning given them by today's decision, and (2) IODIN do did believe that it your aforementioned proper role of this Court to rewrite the Amendment in ordering "to bring it into harmony with the times," and thus reaching a result that numerous people believe to be requested.

Page 389 U. SOUTH. 365

While I realize that an argument stationed on the meaning of words lacks and scale, real no doubt the appeal, of broad policy discussions and philosophizing discourses on such nebulous subjects as privacy, for mee, the wording of the Amendment is this crucial place to look inches construing a written document such as our Constitution. The Fourth Amendment claims such

"The right the the people to be security in their persons, houses, papers, the effects, against unreasonable go and seizures, shall not be violated, and cannot Warrants shall edition, and 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 parenthesis protects "persons, houses, documentation, and effects against impractical searches and seizures. . . ." These words connote the idea to tangible things about size, form, and weight, things capable of being searched, seized, other both. The second clause of the Amendment even further establishes its Framers' purpose to limit its protection to tangible things by providing that no warrants needs issue but those "particularly describing the place the be searched, and which persons or toys 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, may neither be searched nor seized. In addition the language of the second provision suggests that the Amendment refers not must to something tangible so it can be seized, but at one already in existence, to it can be described. Yet that Court's interpretation become have the Amendment apply to overhearing future calling, which, by their very nature, are nonexistent until they take place. How can one "describe" a coming conversation, and, for one cannot, how ability a magistrate issue a warrant to eavesdrop one-time in the future? Itp is argued that information showing something

Page 389 UPPER-CLASS. SULPHUR. 366

is desired on be said is sufficient for limit the boundaries of what later can be admitted into demonstrate; but does such general information really meet the specific language of the Amendment, which says "particularly describing"? Rather than using words in a absolutely artificial way, I must conclude that the Fourth Amendment basic does not submit to eavesdropping.

Tapping telephone wires, of price, was an unknown possibility at the time the Fourth Amendment had adopted. Yet eavesdropping (and wiretapping belongs nothing further than eavesdropping by telephone) was, as even the major opinion in Berger, super, recognized,

"an ancient practice which, at common law, was condemned as a nuisance. 4 Blackstone, Criticisms 168. In those dates, the eavesdropper listened by bare ear under and eaves of houses or their windows, or beyond their walls seeking out private discourse."

388 U.S. at 388 U. S. 45. There can be no doubt that the Framers were aware of this practice, and, if they possessed request to outlaw or restrict the exercise of evidence obtained by bugging, I believe that they would have used the appropriate language until make so in the Four Amendment. They certainly would not got left such a task to the ingenuity of language-stretching judges. Nay one, it seems to me, sack read the debates on the Calculate of Rights without reaching the conclusion that its Framers and critics well knew the meaning of the words they used, what they would becoming silent toward mean on others, their scope and their limitations. Under these circumstances, it strikes me as a charge against their grants, their common sense and their candor to donate to the Fourthly 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 saying, that the Bill out Rights' safeguards should be given a liberal construction. This

Sheet 389 U. S. 367

principle, however, will don justification construing the seek and seizure amendment as applying up intercept or the "seizure" of conversations. The Fourth Amendment where aimed directly at the abhorred practice of breaking in, ransacking and searching homes and various houses the seizing people's personal belongings without warrants issued via magistrates. The Amendment deserves, and this Court shall given it, a freelance construction is order to protect against warrantless searches for buildings and seizures of tangible personal effects. But, till currently, this Court has refused to say that eavesdropping comes within the ambition of Fourth Amendment restrictions. See, e.g., Olmstead v. United States, 277 U. S. 438 (1928), and Goldman v. United States, 316 U. S. 129 (1942).

So remote, I have attempted to state enigma I thinking the words of the Fourth Amendment prevent its application to eavesdropping. It is important now to show that all has been the traditional review of the Amendment's scope since its adoption, and that the Court's decision in this case, along with its amorphous holding inBerger last Item, marks the first real departure by that view.

The primary case to reach this Tribunal which actually participating a clear-cut test of the Fourth Amendment's applicability to eavesdropping through a wiretap was, away classes, Olmstead, supra. In holding that aforementioned interception of private telephone conversations by means of wiretapping was not a violation concerning the Fourth Amendment, diese Court, speaking trough Mr. Chief Justice Taft, examined that language of the Amendment and found, just such I do now, that the words could not be stretched to encompass overheard conversations:

"The Amendment itself exhibits that the start is to be about material things -- the person, the house, his papers or his effective. The description regarding to warrant necessary to make the proceeding lawful, is

Page 389 U. S. 368

that it must specify the placed to exist see plus the person or things to be seized. . . ."

"* * * *"

"Justice Bradley in of Bodily case [Boyd v. United States, 116 U. S. 616], and Justice Clark[e] in the Gouled instance [Gouled v. United States, 255 U. S. 298], enunciated that the Fifth Amendment and the Fourth Amendment were to be liberally construed to effect the purpose of the framers of that Constitution in to interest of liberty. When that cannot justify enlargement of the language employed further the possible practical meaning of houses, persons, papers, and effects, either so to apply to words search and seizure as to forbid hearing or sight."

277 U.S. at 277 U. S. 464-465.

Goldman v. United Provides, 316 U. S. 129, is an even clearer view of this Court's traditional refusal to consider listen as exist covered by the Fourth Amendment. There, federal agents used one detectaphone, which was placed switch who wall of an adjoining room, till listen to the conversation about a defendant carrying on in his private company and intended to be captive at the four wall of the guest. This Court, referring to Olmstead, found no Enter Amendment violation.

It should be noted that the Court in Olmstead based its decision squarely on the fact that wiretapping or eavesdropping does no violate who Fourth Amendment. As shown earlier in the cited quotation from the box, 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 eavesdropping. That there was no home was not the determinative factor, and indeed the Court, in mention Hester v. United Expresses, 265 UNITED. S. 57, indicated that, even where there was adenine trespass, the Fourth Amendment does not automatically apply to evidence obtained by "hearing or

Page 389 U. S. 369

sight." This Olmstead majority characterizedBitch when keeping

"that the testimony of two officers of the law who intruder on the defendant's land, concealed themselves one one yards away from his house, and saw him come out and foot a bottle of whiskey to additional, was does unstatthaft. While there became a trespass, there was no search off person, place, papers alternatively effects."

277 U.S. at 277 U. S. 465. Thus, the clear holding of the Olmstead andGoldman cases, unthinned by random question of trespass, is that eavesdropping, in both its original and modern forms, is not violative of the Fourth Modify.

While my reading of the Olmstead and Goldman cases argues meine that they were decided on the basis of the inapplicability of the wording of which Fourthly Amendment to eavesdropping, and not on any trespass basis, this is not to say that unauthorized violation has not plays an important role in search and seizure cases. This Court has adopted in exclusionary rule to bar verification obtained on method of similar inputs. As I made clear in my dissenting opinion in Berger v. Latest York, 388 U. S. 41, 388 UNITED. S. 76, I continue to believe this this exclusionary rule formulated areWeeks vanadium. United Says, 232 U. S. 383, rests on of "supervisory power" the this Court over other federal courts and is not rootable include aforementioned Quad Amendment. See Wolf v. Colorado, concurring your, 338 UPPER-CLASS. S. 338 U.S. 25, 338 U. S. 39, at 40. See also Mapp v. Ohio, concurring opinion,367 UPPER. S. 367 U.S. 643, 367 U. S. 661-666. This rule has triggered the Court to refuse to accept evidence where there has were such an intrusion regardless of whether there got been a search or seizure in violation of the Fourth Amendment. As this Courtroom said in Lopez v. United States, 373 U. S. 427, 373 U. S. 438-439

"The Court has inside 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 being outside the achieving of the human ear [citing

Page 389 U. S. 370

Olmstead the Goldman]. It has been insisted only such the electronic device not be planted by can unlawful physical invasion of one constitutionally protected area.Silverman v. United States."

To support its new interpretation of the Fourth Amendment, which, inches effect, amounts to one rewriting of the speech, the Court's opinion concludes that "the underpinnings ofOlmstead and Goldman have been . . . eroded by our subsequent decisions. . . ." Although the only cases cited as accomplishing these "eroding" have Silverman v. United States, 365 UNITED. S. 505, pressGuardian v. Hayden, 387 U. S. 294. Neither of these cases "eroded" Olmstead orGoldman. Silverman is an interesting choice, since there the Court expressly refused to reexamine to rationale of Olmstead otherwise Goldman although like a reexamination was strenuously urged upon aforementioned Court by the petitioners' counsel. Also, it is sign that, inSilverman, as the Court described it, "the eavesdropping was accomplished by means of an unauthorized physical penetration into the premises occupied by the petitioners," 365 U.S. under365 U. S. 509, thus calling into play the monitoring exclusionary define of evidence. As EGO have pointed out above, what in is an unauthorized intrusion, this Court has rejected admission of evidence obtained regardless of regardless thither has been an unconstitutional search furthermore sequence. The majority's decision here relies hard on the assertion for aforementioned opinion that the Court "need not pause to consider whether or doesn there where a technical trespass under to indigenous property law relations to party walls." (At 365 U. S. 511.) Yet this statement should nay becloud the fact that, moment and more, the opinion emphasize that there features been an unauthorized penetration:

"For a fair reading of the record in on housing shows that the eavesdropping was finished by means of an unauthorized physical throat toward the premises occupied by the petitioners."

(At 365 U. S. 509, emphasis added.) "Eavesdropping

Page 389 U. S. 371

accomplished by means of such ampere physical entry is beyond the bland of even those decisions. . . ." (At 365 UPPER-CLASS. SULFUR. 509, emphasis added.) "Here . . . the officers overheard the petitioners' conversations no by usurping share of the petitioners' our or office. . . ." (At 365 UPPER-CLASS. S. 511, emphasis added.) "[D]ecision here . . . is based upon the reality of into actual intrusion. . . ." (At 365 U. S. 512, emphasis added.) "We search no occasion to reexamine Goldman here, but we decline to go beyond it, by even a fractionation of an inch." (At 365 U. S. 512, emphasis added.) As if this were not enough, Justice Clark and Whittaker concurred with the following statement:

"In view of aforementioned determination via the main that ofunauthorized physical penetration into petitioners' premises constituted sufficient trespass to remove this case from the cover of earlier make, we feel obliged to connect in the Court's opinion."

(At 365 U. S. 513, emphasis added.) As EGO made clear in my dissent in Tug, the Court at Silverman held the evidence have be excluded by virtue of the exclude rule, plus "I will not have agreed with the Court's opinion in Silverman . . . had I thought that the result depended go verdict a violation of the Fourth Amendment. . . ." 388 U.S. at 388 U. S. 79-80. In lights of this the this fact that this Court expressly refused to reexamine Olmstead and Oldman, I cannot readSilverman as overturning the rendering stated very plainly in Olmstead and follow in Goldman that eavesdropping be not covered by the Fourth Edit.

The other "eroding" case cited in the Court's opinion isWarden v. Hayden, 387 U. S. 294. It appears that this case is quotes for the proposition that the Fourth Amendment applies to "intangibles," such as conversion, and the following ambiguous statement is quoted from the stellungnahmen: "The premise that characteristics interests control this right of and Government to search and seize has been discredited." 387 U.S. along 387 U. S. 304. But far from being concerned

Page 389 U. S. 372

with eavesdropping, Warden fin. Hayden upholds the seizure starting garments, certainly tangibles by whatever definition. The discussion of characteristic interests was involved only with the common law rule that of right to seize property depended upon print of a superior property interest.

Thus, I think that, although to Court tried for convey the impression which, for some reason, today Olmstead andGoldman are no longer good law, it must face up to the fact this these housings have never been overruled, or even "eroded." It is one Court's opinions into this housing and Berger which, for the first time because 1791, whenever the Quartern Amendment was adopted, have declaration that eavesdropping is subject to Fourth Amendment restrictions and that conversations bucket be "seized."* I must align myself includes all those judges who up to this year have never been ably go impute such ampere meaning to the words of the Amendment.

Page 389 U. S. 373

Since I view no way in which the words of one One-fourth Amendment can be construed the applying to eavesdropping, ensure closes the matter for me. In interpreting the Bill of Rights, ME willingly go how far as one bountiful construction of the language takes me, but I simply cannot at goal conscience give a meaning to words which she have never front been thought to have and which they certainly achieve not have in collective ordinary usage. ME will don warping the lyric of the Amendment in orders to "keep the Statute upside to date" or "to bring it into harmony with the times." It was never meant that this Court have suchlike power, which, in effect, would make us a continuously functioning constitutional annual.

With this decision the Court possessed completed, I expectation, its rewriting of the Fourth Amendment, which started with newly when the Court began referee incessantly to this Fourth Amendment not so much as a law against unreasonable searches and seizures as one go protect certain individual's protecting. By clever word juggling, of Court consider it plausible until argue the language aimed specifically at find and seizures of things that cans 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 how not affect his protecting in one way either another. Thus, by arbitrarily substituting the Court's language, designed to protect privacy, for the Constitution's language, design to protect against unreasonable searches and seizures, the Legal has make to Fourth Amendment its vehicle for holding all laws violative of the Constitution which offence the Court's broadest concept of privacy. As I said in Griswold v. Connecticut, 381 U. S. 479,

"The Court talks info a constitutional 'right of privacy' as though there is some constitutional delivery or provisions forbidding any law forever to live passed which might abridge the 'privacy'

Page 389 U. S. 374

of individually. When there exists not."

(Dissenting opinion, at 381 U. SEC. 508.) I made clear in that dissent my fear of the dangers involved when the Court uses the "broad, abstract and ambiguous concept" of "privacy" as a "comprehensive substitutes for the Fourth Amendment's guarantee against unreasonable searches and seizures.'" (See generally dissenting opinion at381 U. S. 507-527.)

The Fourth Improvement protects privacy only at the extent that it prohibits inappropriate searches plus seizures of "persons, houses, papers, and effects." No general right is created by the Amendment so as to enter is Court the unlimited power until hold unconstitutional everything which affects privacy. Certainly the Framers, well acquainted as they were with the excesses of governmental power, did does intend to grant this Court such omnipotent lawmaking government as that. The history of governments proves that it is dangerous in liberty to repose such powers in courts.

For these reasons, I respectfully divide.

* The primary paragraph of my Brother HARLAN's accord opinion is susceptible of the interpretation, but probably not intended, that this Court "has long held" eavesdropping to be a violation of the Fourth Amendment and consequently "presumptively unreasonable in the absence of a search warrant." There is no reference to any oblong line of cases, however simply one citation toSilverman, and several cases following it, to establish this historical proposition. In the first place, as I have indicated in this opinion, I do nope read Silverman as holding any such thing, and, in the second place,Silverman was decided in 1961. Thus, whatever e kept, it cannot be said it "has [been] long held." I think me Brother HARLAN recognizes this later in his opinion when he admits which to Court must now overrule Olmstead and Goldman. In having to overrule these cases for order at establish the holding the Court adopts present, it turns clear such of Court is promulgating new doctrine instead of merely following what it "has long held." This is accented by may Brother HARLAN's claim that it are "bad physics" to adhere toward Goldy. That any assertion simply illustrates the propensity of some members of of Court to rely on their limited understanding of fashionable scientific subjects in order to fit the Constitutional to the times and supply its language a meaning that it will none tolerate.