Katz v. US

Considering the court’s arguments in Katz and Roe v. Wade, why do you think the court developed the doctrine of a right to privacy or a reasonable expectation of privacy even though such a right is not found in the Constitution? Is a right to privacy implied in some explicit statements in the Constitution?
Considering the court’s arguments in Katz and Roe v. Wade, why do you think the court developed the doctrine of a right to privacy or a reasonable expectation of privacy even though such a right is not found in the Constitution? Is a right to privacy implied in some explicit statements in the Constitution?

The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.” As part of that protection, it also declares that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, particularly describing the place to be searched, and the persons or things to be seized.” In Wolf v. Colorado (1949), the Supreme Court declared that Fourth Amendment protections apply through the Fourteenth Amendment against the states as well as the federal government. In addition, the Court has insisted that almost all police searches and seizures require a warrant issued by a neutral magistrate such as a judge unless there are “special” security needs or “exigent” circumstances.”

Until Katz v. US (1967), however, the Court generally had held that government does not conduct a “search” or “seizure” unless it physically trespasses on someone’s private property—for example, by entering their home or opening their closed briefcase without their consent. This was the “trespass doctrine” articulated by the Supreme Court in Olmstead v. US (1928). In Katz, however, the Court declared that government can conduct a search without trespassing on a person’s property if its actions violate the person’s reasonable expectation of privacy. In one of the most influential concurrences in modern Supreme Court history, Justice John Marshall Harlan II articulated a two-prong test for courts to use in determining whether someone has a reasonable expectation of privacy: 1. Did the person manifest a subjective expectation of privacy? and 2. Is society prepared to accept that expectation as objectively reasonable? Since 1967, the “reasonable expectation of privacy” test has become the basic constitutional guide for citizens, law enforcement officers, and courts in interpreting the Fourth Amendment. In more recent years, however, the Court declared—for example, in US v. Jones (2012)—that Katz had not actually eliminated the trespass doctrine but simply added “reasonable expectation of privacy” to it.

—Jeffrey Sikkenga

Source: 389 U.S. 347; https://www.law.cornell.edu/supremecourt/text/389/347#writing-ZS

Justice STEWART delivered the opinion of the Court, joined by Chief Justice WARREN and Justices DOUGLAS, HARLAN, BRENNAN, WHITE, and FORTAS.

[Katz] was convicted in the District Court for the Southern District of California . . . [for] transmitting wagering information by telephone from Los Angeles to Miami and Boston, in violation of a federal statute. At trial the Government was permitted . . . to introduce evidence of [Katz’s] end of telephone conversations, overheard by FBI agents who had attached an electronic listening and recording device to the outside of the public telephone booth from which he had placed his calls. In affirming his conviction, the Court of Appeals rejected the contention that the recordings had been obtained in violation of the Fourth Amendment, because “[t]here was no physical entrance into the area occupied by Katz.” . . .

[Katz] has phrased [the constitutional questions] as follows:

  1. 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.
  2. 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.

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.  Other provisions of the Constitution protect personal privacy from other forms of governmental invasion.  But the protection of a person’s general right to privacy—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.

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. 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. 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. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

The Government stresses the fact that the telephone booth from which [Katz] 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, in a friend’s apartment, or in a taxicab, 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 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.

The Government contends, however, that 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 [1928]) for that Amendment was thought to limit only searches and seizures of tangible property.  But “[t]he premise that property interests control the right of the Government to search and seize has been discredited.” 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 gover