Katz v. United States – Beware the “Uninvited Ear” – PLSC 337-02: The American Legal System

Katz v. United States (1967)

Vote: 7-1

Opinion of the Court: Justice Stewart

Concurring: Justice Harlan

Dissent: Justice Black

Facts: Charles Katz, a Los Angeles resident, was under investigation by the FBI for engaging in illegal bookmaking. He was accused of “placing bets and transmitting other wagering information by telephone from Los Angeles to Miami and Boston” (484). FBI agents placed listening and recording devices outside of public telephone booths where Katz was accused of placing those illegal calls. Despite possessing no warrant, the FBI used the transcripts obtained from the telephone booths to obtain an indictment against Katz. Attorneys for Katz would argue that public telephone booths were “constitutionally protected areas” and expected to be free from encroachment from the government, while the government argued that the devices were placed outside of the telephone booths, thus avoiding illegal encroachment.

Legal Question: Does the Fourth Amendment’s clause against “unreasonable searches and seizure” require that the Government obtain a search warrant for conversations in public telephone booths?

Holding: Yes, 7-1.

Legal Reasoning: Justice Stewart begins by disregarding the “constitutionally protected areas” argument given by Katz. Justice Stewart states that too much emphasis has been placed on the physical space of the booth, which ignores the fact that the Fourth Amendment “protects people, not places” (485). Here is the real constitutional question: “…what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected” (485).

The Government’s argument centers on fact that the telephone booth was partly made of glass, making Katz visible to anyone. Here, Justice Stewart gives a memorable line: “…what he sought to exclude when he entered the booth was not the intruding eye–it was the uninvited ear” (485). To Stewart and the majority, Katz’s visibility is irrelevant; Katz entered the booth, paid the toll and reasonably assumed that his conversation would not be broadcast to the world. Justice Stewart is thus acknowledging the power the public telephone has had on private communication.

The Government, going along with the assumption that the Court would use the physical penetration precedent, also argued that they’re devices did not physically penetrate the telephone booth where Katz placed his calls. The physical penetration test arose from Olmstead v. United States (1928) where the Court ruled that the Fourth Amendment only covered material things (person, house, papers, effects), not wiretapped conversations. In Katz, Stewart and the majority rejected the physical penetration precedent and labeled it as eroded and outdated, thus ignoring precedent.

What’s left to decide is whether the search and seizure of Katz’s conversation complied with constitutional standards. Justice Stewart notes that the Government did in fact conduct a narrow search: surveillance of Katz was limited to establishing Katz’s unlawful use of telephone communication. He notes that the appropriate magistrate would have granted a warrant given all of the steps the Government took in this situation. However, Stewart and the majority cannot retroactively validate the conduct of the Government; though they may have taken careful steps, it does not erase the fact that no warrant was obtained to listen to Katz’s conversation. Because of the lack of a warrant, the majority hold that the indictment against Katz be reversed.

Concurring: Justice Harlan agrees with much of the majority, but cites a two-fold requirement regarding the Fourth Amendment: “that a person have exhibited an actual expectation of privacy and, second, that the expectation be one that society is prepared to recognize as “reasonable”” (487).

Dissent: Justice Black takes an originalist approach to Katz. He states that: “I do not believe that the words of the Amendment will bear the meaning given them by today’s decision, and 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” (487). He refuses to engage in the “meaning of words” that lead to policy discussions and philosophical discourse; rather, he believes the Framers were clear in what they meant.

My Thoughts: I thought the Court’s majority opinion in Katz was the right one given the reasonable expectation of privacy was recognized. As Stewart so eloquently notes, when entering a public phone booth, one expects that the conversations uttered over the phone will not be broadcast to the world; to think of conversations as outside of the scope of the Fourth Amendment is a mistake. I think the Court’s rejection of the physical penetration precedent is also justified given the technological advancements at the time; Justice Harlan notes that the precedent is bad physics and bad law given the rise of electronic devices. The precedent set by Katz would be cited in Kyllo v. United States (2001), where the use of thermal imaging devices without a warrant was found to violate the Fourth Amendment. It will be interesting to see how technological advancements continue to shape the Fourth Amendment; Justice Black must be turning in his grave.

Adriana Toledo says:

March 13, 2017 at 1:56 pm

I also agree with the Court’s decision in this case that a private conversation in a phone booth can be protected by the Fourth Amendment. Stewart and Harlan both make compelling arguments for why the phone booth conversations were subject to being protected by the 4th Amendment but I think it’s also important to discuss Justice Black’s dissent and why it isn’t convincing because I think he brings up some reasonable objections. I would have liked to have read your thoughts on Black’s arguments in his dissent. In his dissent he focuses on the language in the Fourth Amendment to come to the conclusion that it cannot be applied to conversations. He cannot agree with the Court’s decision because in the first provision only tangible things are mentioned and there is no room to interpret that intangible things could be included too because searches and seizures can only be performed on things that are tangible. Further, while new technology has made eavesdropping easier, the concept of eavesdropping is not new. If the framers had intended to protect against unwarranted eavesdropping they would have clearly included it in the amendment. I was not convinced by Justice Black’s arguments. While Black is right that the framers would have included private conversations in the first provision if they believed eavesdropping also needed to be warranted I don’t think they were perfect people. It is possible that it did even not cross their minds when they were writing the Fourth Amendment that eavesdropping without a warrant was also a violation of privacy. I think they only included tangible things in the first provision because before the revolution many had faced intrusive unlimited searches from England so unlimited physical searches were a more salient issue to them than unwarranted eavesdropping. I also wasn’t convinced by his argument that only tangible things can be searched and seized. By placing a recording device outside the booth and then listening to the recordings were the FBI not searching for and seizing information that would incriminate Katz? I don’t see how Black can believe that a conversation cannot be protected because when the FBI placed the recorder outside the booth their intention was to search for evidence to be able to incriminate Katz. Perhaps Black has changed his mind about this case. I’m sure wherever he is right now he’s had a lot of time to reflect on it.