Bosch, Peter J.

English

University of Tulsa College of Law

Tulsa Law Review Volume 6 Issue 2 1970 The Applicability of the Fourth Amendment's Search and Seizure Protection to Electronic Eavesdropping Peter J. Bosch Follow this and additional works at: https://digitalcommons.law.utulsa.edu/tlr  Part of the Law Commons Recommended Citation Peter J. Bosch, The Applicability of the Fourth Amendment's Search and Seizure Protection to Electronic Eavesdropping, 6 Tulsa L. J. 187 (2013). Available at: https://digitalcommons.law.utulsa.edu/tlr/vol6/iss2/8 This Casenote/Comment is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact megan-donald@utulsa.edu. CONSTITUTIONAL LAWCONSTITUTIONAL LAW: THE APPLICABILITY OF THEFOURTH AMENDMENT'S SEARCH AND SEIZUREPROTECTION TO ELECTRONIC EAVESDROPPINGIn Katz v. United States1 the petitioner was convicted inthe district court of transmitting wagering information bytelephone in violation of a federal statute.2 The government,over the petitioner's objection,3 was allowed to introduce evi-dence consisting of telephone conversations overheard byFederal Bureau of Investigation agents through the use ofan electronic listening and recording device attached to theoutside of a public telephone booth. In affirming the convic-tion, the Ninth Circuit Court of Appeals held that the re-cording had not been obtained in violation of the fourth amend-ment as there had been no physical entrance into the areaoccupied by the petitioner. 4 The Supreme Court reversed. Al-though there was no actual physical penetration of the areaoccupied by the petitioner, the electronic listening device vio-l 389 U.S. 347 (1967).2 18 U.S.C. § 1084 (1964). The statute provides in part:(a) Whoever being engaged in the business of betting orwagering knowingly uses a wire communication facilityfor the transmission in interstate or foreign commerce ofbets or wagers on any sporting event or contest, or for thetransmission of a wire communication which entitles therecipient to receive money or credit as a result of bets orwagers, . . . shall be fined not more than $10,000 or im-prisoned not more than two years, or both.3 The petitioner, relying on Silverman v. United States, 365U.S. 505 (1961), argued that the evidence obtained by re-cording the conversation constituted an illegal search andseizure in violation of the fourth amendment, and as suchwas inadmissible. Evidence secured by an unlawful searchand seizure is inadmissible in federal courts by virtue ofWeeks v. United States, 232 U.S. 383 (1914), and this pro-tection was extended to state courts by Mapp v. Ohio, 367U.S. 643 (1961).4 Katz v. United States, 369 F.2d 130 (9th Cir. 1966).197011Bosch: The Applicability of the Fourth Amendment's Search and Seizure PrPublished by TU Law Digital Commons, 1969TULSA LAW JOURNALlated the privacy upon which he justifiably relied and thusconstituted an illegal search and seizure under the fourthamendment.The Court stated that in earlier cases it had "express-ly held that the Fourth Amendment governs not only theseizure of tangible items but extends as well to the record-ing of oral statements overheard without any 'technical tres-pass . . . under local property law'."5 The Court then pro-posed that the fourth amendment protects people and notsimply areas or places against unreasonable searches and seiz-ures. Following this line, the Court found that "the reachof that Amendment cannot turn upon the presence or absenceof a physical intrusion into any given enclosure."" JusticeStewart writing for the majority7 concluded:[T]hat the underpinnings of Olmstead and Goldmanhave been so eroded by our subsequent decisions thatthe 'trespass' doctrine there enunciated can no longerbe regarded as controlling. The Government's activi-ties in electronically listening to and recording thepetitioner's words violated the privacy upon whichhe justifiably relied while using the telephone boothand thus constituted a 'search and seizure' within themeaning of the Fourth Amendment. The fact that theelectronic device employed to achieve that end didnot happen to penetrate the wall of the booth canhave no constitutional significance.8In his lone dissent, Justice Black had a two-fold objection:(1) I do not believe that the words of the Amend-ments will bear the meaning given them by today'sdecision and (2) I do not believe that it is the proper5 389 U.S. at 353, quoting Silverman v. United States, 365 U.S.505 (1961).6 389 U.S. at 353.7 The Court rendered a 7 to 1 decision with Justice Stewartdelivering the opinion of the Court. Justice White and Jus-tice Douglas wrote concurring opinions, while Justice Blackwrote the lone dissent. Justice Marshall did not participate.8 389 U.S. at 353.[Vol. 6, No. 2.2Tulsa Law Review, Vol. 6 [1969], Iss. 2, Art. 8https://digitalcommons.law.utulsa.edu/tlr/vol6/iss2/8CONSTITUTIONAL LAWrole of this Court to rewrite the Amendment in orderto bring it into harmony with the time and thus reacha result that many people believe to be desirable.9A perusal of the leading cases in this area reveals muchsupport for the dissent and shows that this new meaning andinterpretation given to the fourth amendment is in fact justthat-a new meaning and interpretation. It will further revealthat this decision did not logically evolve through the "ero-sion" of prior cases as the majority opinion suggests.The fourth amendment states:The right of the people to be secure in their persons,houses, papers and effects against unreasonable search-es and seizures shall not be violated and no warrantshall issue but upon probable cause, supported by oathor affirmation and particularly describing the placeto be searched and the persons or things to be search-ed.10"Persons, houses, papers and effects"". imply a mean-ing of material, tangible objects capable of being both search-ed and seized, and words, in their ordinary meaning, are in-capable of either. The constitutional requirement of "parti-cularly describing"' 2 is also incapable of being satisfied. Whileit may be conceded that a future conversation can be de-scribed, it is virtually impossible to describe a conversationnot yet held with any degree of specificity so as to satisfythe "particularly describing" requirement.In Carrol v. United States,13 the Court said that "theFourth Amendment is to be construed in the light of whatwas deemed an unreasonable search and seizure when it wasadopted and in a manner which will conserve public inter-est as well as the interest and right of individual citizens."9 Id. at 364.10 U.S. CoNsT. amend. IV.11 Id.12 Id.L3 267 U.S. 132, 149 (1924).1970]3Bosch: The Applicability of the Fourth Amendment's Search and Seizure PrPublished by TU Law Digital Commons, 1969TULSA LAW JOURNALOn the surface, this statement appears to be incompatiblewith the strongly held belief that the Constitution is a "liv-ing document" designed to meet needs that were unknownat the time it was written, but that is not so.At the time of the adoption of the fourth amendment,electronic listening and recording devices were, of course, un-known. Eavesdropping, however, was not unknown at thattime. The Supreme Court in Berger v. United States14 rec-ognized eavesdropping as an "ancient practice" which wascondemned as a nuisance at common law. "At one time theeavesdropper listened by naked ear under the eaves of housesor their windows seeking out private discourse."'G Tradition-ally evidence obtained by eavesdroppers has been admittedboth in American and English courts. The test for admissi-bility has not been how and by whom it was obtained butwhether it was relevant and obtained by first-hand knowl-edge.16 Since the evidence obtained by eavesdropping by anindividual is admissible, it is hard to see the rationale in re-jecting proferred eavesdropped evidence obtained by the useof a machine. Practically and realistically speaking, the useof modern electronic devices to listen in on a conversationis nothing more than the "ancient" variety of eavesdroppingrefined to a greater degree of efficiency.The framers of the Constitution must certainly have beenaware of this "ancient" practice and could easily have word-ed the amendment so that it included overheard conversa-tions had they desired to do so. Their historical purpose wasbasically to prevent the use of government-force in breakinginto people's homesan-i-&bother buildin-, searching, ransack-ing and seizing p-ersonal belongings without a proper war-rant. It is in this area that the Court shou-d and does givethe amendmenff'a liberal construction in order to prevent war-34 388 U.S. 41 (1967).15 Id. at 45 (citing 4 BLACKSTONE, COMMENTARIES 168).16 Id. at 71, 72 (Black, J., dissenting).[Vol. 6, No. 24Tulsa Law Review, Vol. 6 [1969], Iss. 2, Art. 8https://digitalcommons.law.utulsa.edu/tlr/vol6/iss2/8CONSTITUTIONAL LAWrantless searches and seizures of tangible property. It hasbeen said in opinions that the fourth amendment should "beliberally construed to effect the purpose of the framers ofthe Constitution in the interests of liberty".17 "But," as JusticeTaft so succinctly stated in Olmstead v. United States,8 "thatcannot justify enlargement of the language employed beyondthe possible practical meaning of houses, persons, papers andeffects, or so to apply the words search and seizure as to for-bid hearing or sight".The first time the Supreme Court considered the applica-bility of the fourth amendment to electronic listening deviceswas in Olmstead v. United States,19 a wiretapping case. Therethe Court in no uncertain terms held that the securing of evi-dence through the use of wiretapping did not violate the fourthamendment. The basis for the Court's decision was that thewords of the amendment could not be construed to encompasseavesdropping. The Court said: "[T]he Amendment itselfshows that the search is to be of material things - the person,the house, his papers or his effects. The description of thewarrant necessary to make the proceeding lawful, is that itmust specify the place to be searched and the person or thingsto be seized .. ". . ,0 According to the majority, there wasnothing "seized" and nothing "searched" and the evidence wasobtained only through the sense of hearing.17 Olmstead v. United States, 277 U.S. 438, 465 (1928). (JusticeTaft referring to opinions by Justice Bradley in Boyd v.United States, 116 U.S. 616 (1885) and Justice Clarke inGouled v. United States, 255 U.S. 298 (1920).)18 277 U.S. 438, 465 (1928).19 277 U.S. 438 (1928).20 Id. at 464-65. Mr. Justice Taft went on to say:The language of the Amendment cannot be extended andexpanded to include telephone wires, reaching to the wholeworld from the defendant's house or office. The interveningwires are not part of his house any more than are the high-ways along which they are stretched.197015Bosch: The Applicability of the Fourth Amendment's Search and Seizure PrPublished by TU Law Digital Commons, 1969TULSA LAW JOURNALIn Goldman v. United States,21 a case strickingly similarto the case at hand, the Court reaffirmed the position takenin Olmstead. Here a detectaphone had been placed on the wallof an adjoining room by federal agents, and they recorded theoverheard conversations. The evidence, so obtained, was heldto be admissible as eavesdropping; therefore, it did not consti-tute a fourth amendment violation.The majority in Katz heavily relied on Silverman v. Unit-ed States.22 Their contention was that Silverman expresslyholds "that the Fourth Amendment governs not only theseizure of tangible items, but extends as well to the record-ing of oral statements, overheard without any 'technical tres-pass under . . . local property law'."' 'The petitioner's counsel in Silverman urged the Court toreconsider the Goldman and Olmstead decisions and to re-examine the rationale behind those decisions. This the Courtexpressly refused to do. Since the basis for Goldman and Olin-stead was that conversations could neither be searched norseized and since the Court expressly refused to overrule oreven re-examine those cases, it is hard to see how the Courtarrived at its conclusion. It does not "follow," as the Court sug-gests in Wong Sun v. United States,24 that "from our hold-ing in Silverman v. United States that the Fourth Amendmentmay protect against the overhearing of verbal statements aswell as against the more traditional seizure of papers and ef-fects."The reason that the evidence in the Silverman case was ex-cluded, as Justice Black suggests,2 5 is because of the exclusion-21 316 U.S. 129 (1942).22 365 U.S. 505 (1961).2 389 U.S. at 353, quoting Silverman v. United States, 365U.S. 505 (1961).24 371 U.S. 471, 485 (1963).25 389 U.S. at 369 (Black, J., dissenting).[Vol. 6, No. 26Tulsa Law Review, Vol. 6 [1969], Iss. 2, Art. 8https://digitalcommons.law.utulsa.edu/tlr/vol6/iss2/8CONSTITUTIONAL LAWary rule formulated in Weeks v. United States.26 Accordingto Justice Black, the Court has adopted an exclusionary rule tobar evidence obtained by means of an unauthorized intrusionregardless of whether there was a search or seizure in violationof the fourth amendment. "This exclusionary rule . . .restson the 'supervisory power' of this Court over Federal Courtsand is not rooted in the Fourth Amendment.'2 7 Another caserelied on by the majority is Warden v. Haydon.28 This case iscited to show that the fourth amendment is not limited tosearches and seizures of tangible property but also covers in-tangibles as well. That interpretation is supposed to be gleanedfrom the statement: "The premise that property interests con-trol the right of the government to search and seize has beendiscredited. 12 9 Warden v. Haydon, however, was a case deal-ing not with intangibles such as conversations but with theseizure of clothes-tangible property. The "property interests"related not to an issue of tangible or intangible items but dealtwith the common law rule that the right of seizure dependedupon proof of a superior property interest and is inapplicablehere.Although the Court clearly states t h a t "the FourthAmendment cannot be translated into a general constitutional'right to privacy',"3 0 that appears to be exactly what the Courtis trying to do. For years the Supreme Court or its individualmembers have equated the fourth amendment with a rightto privacy. This can be seen in early cases such as Boyd v.United States,31 later in Weeks v. United States,32 and in Mr.26 232 U.S. 383 (1914).27 389 U.S. at 369 (Black, J., dissenting). See also Wolf v. Colo-rado 338 U.S. 25, 39 (1949) (concurring opinion); Mappv. Ohio, 367 U.S. 643, 661 (1961) (concurring opinion).28 387 U.S. 294 (1967).29 Id. at 304.30 389 U.S. at 350.31 116 U.S. 616 (1885).32 232 U.S. 383 (1914).197017Bosch: The Applicability of the Fourth Amendment's Search and Seizure PrPublished by TU Law Digital Commons, 1969TULSA LAW JOURNALJustice Brandeis' oft quoted dissent in the Olmstead casewhere he goes so far as to say that "every unjustifiableintrusion by the Government upon the privacy of the indi-vidual, whatever the means employed, must be deemed a vio-lation of the Fourth Amendment."38 The basis for the recentBerger v. New York 4 decision was that the fourth amend-ment "right to privacy" had been violated.It is this growing tendency to equate the fourth amend-ment with a right to privacy protection that is the real basisfor the Katz decision and has given the fourth amendment anew interpretation that it was never meant to have and nevershould have had.The Fourth Amendment protects privacy only to theextent that it prohibits unreasonable searches of "per-sons, houses, papers and effects". No general right iscreated by the Amendment so as to give this Court theunlimited power to hold unconstitutional everythingwhich affects privacy. Certainly the Framers, well ac-quainted as they were with the excesses of govern-mental power, did not intend to grant this Court suchomnipotent lawmaking authority as that. The historyof governments proves that it is dangerous to free-dom to repose such powers in courts.3 5The function of the Supreme Court is to interpret theConstitution, not to rewrite it. The Constitution has left thejob of making laws to Congress. The Supreme Court first de-clared evidence obtained by an electronic device inadmissablein federal courts in Nardone v. United States, 30 a wiretappingcase. This case, however, was not decided on constitutionalgrounds but on a statute, the Federal Communication Act of-3 277 U.S. at 478 (Brandeis, J., dissenting).34 388 U.S. 41 (1967).31 389 U.S. at 374 (Black, J., dissenting).36 302 U.S. 379 (1937).(Vol. 6, No. 28Tulsa Law Review, Vol. 6 [1969], Iss. 2, Art. 8https://digitalcommons.law.utulsa.edu/tlr/vol6/iss2/8

The Applicability of the Fourth Amendment\u27s Search and Seizure Protection to Electronic Eavesdropping

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The Applicability of the Fourth Amendment\u27s Search and Seizure Protection to Electronic Eavesdropping

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