Perhaps one of the most commonly known rights guaranteed by the first ten amendments to the Constitution is the Fourth Amendment’s “right of the people to be secure in their persons, houses, papers and effects against unreasonable searches” (U.S. Const. amend IV). Interestingly, while the meaning of the term “unreasonable” might seem intuitive, the Framers of the Constitution did not provide a specific or detailed definition of it. However, after the Supreme Court; relying on the fact that Article III of the Constitution vested the Court with the judicial power to “all cases” that arise under the “Constitution, the laws of the United States, and treaties made; held, in the 1803 case Marbury v. Madison that “it is emphatically the duty of the Judicial Department to say what the law is;” it became the job of the Court to interpret what “unreasonable” meant for purposes of the applicability of the Fourth Amendment (Marbury v. Madison, 1803).
Consequently, over the last two centuries, the Supreme Court has both established and refined its interpretation of what “unreasonable” means for the Fourth Amendment. Two of the more important cases in the development of that interpretation is Olmstead v. United States, and Katz v. United States.
The issue of unreasonableness in Olmstead, concerned the state’s ability to tap into people’s electronic communications. By the time the events of the case occurred, namely the mid-1920s, use of telephones were common as well as the ability to “tap into” or connect to a phone line, without the speakers’ knowledge and listen in on the conversation (OTA, 1985). To be sure, in the mid-1920, while most states had outlawed the unauthorized tapping into the phone lines of others, there was no federal regulations against phone-tapping (OTA, 1985). Consequently, allow the Supreme Court Justices that ruled in the Olmstead case might have become adults after the phone was invested, they most likely were used to using one and had an understanding of the issues surrounding phone-tapping (OTA, 1985).
Federal law enforcement agents arrested Roy Olmstead on suspicion of conspiracy to violate the National Prohibition Act which outlawed the possession, importation. export or selling of alcohol as prohibited under the Eighteenth Amendment (Olmstead v. United States, 1928). Agents based the arrest on information that they obtained through taps of phones in Olmstead’s office or the building where his business office was located in. In order to place the taps, federal agents either access the phone lines on the telephone poles outside of the targeted house or the main telephone switching board in the basement of the office building (Olmstead v. United States, 1928). In other words, the agents, at no time during the operation set foot onto Olmstead’s property. However, in placing the taps on the phones, the agents had not first gotten prior authorization from a court, as required by the Fourth Amendment.
The information gained from he taps not only led to his arrest but were also crucial to his eventual conviction. Olmstead appealed his conviction, arguing that because the agents had not first could court authority to tap he phones, they had conducted as “unreasonable search” in contravention of the Fourth Amendment.
In considering Olmstead’s appeal, the Court began its analysis with a review of the purpose of the Fourth Amendment. According to the Court, the focus of the amendment was on tangible things and trespass. That is to say, an unreasonable search was one in which the state entered a place where they should not be, such as a suspect’s house or even a sealed envelope send by a suspect; and examined a tangible object inside such as a box in the house or the letter in the sealed envelope. To be sure, the only way that the above mentioned searched could be interpreted as reasonable by the Court was if they were proceeded by a duly authorized and valid warrant.
These protections, however, did not include telephone lines and the conversations that were transmitted along them. Under the Court analysis, because phone lines, while connected to phones physically inside of Olmstead’s house and office, connected to a broader network of phone lines “reaching the whole world,” Olmstead could not say that the phones lines were personally his. Indeed, just as a public road lead to the steps of a person’s house, people cannot claim that they own the road. Accordingly, just as a police officer has a right to park on the road outside your house, federal agents had the right to tap the phone line outside Olmstead’s house. Furthermore, since the taps were only focused on the intangible element of conversation, the Fourth Amendment was further inapplicable. In other words, the Court held that in tapping Olmstead’s phones, the agents were at a place that had a right to be and were accessing information that they were not prohibited from obtaining. Perhaps as a commentary on the lack of federal regulation of phone-tapping, the Court held that Congress had the power to stop or limit the extent of the agents’ ability to perform a phone tap but had not done so at that point in time.
The consequences of Olmstead greatly influenced the definition of the Fourth Amendment’s unreasonableness, especially in terms of electronic surveillance. The holding, in essence, said that so long as the state neither physically intrudes on or trespass a suspect’s property and focus on intangible information such as a conversation, a search is reasonable.
The passage of forty years, and the society’s increasing reliance on and comfortableness with technology produced a different conclusion in the 1967 case Katz v. United States. To be sure, Katz had a number of similarities to Olmstead. The defendant-appellant Charles Katz was arrested by federal agents on suspicion of being involved in an inter-state gambling operation. Katz’s arrest and indictment was based on information obtained from phone conversations recorded by federal agents. Unlike, the phone-taps the agents conducted in Olmstead, however, agents used the more modern technology a “bug.” A bug is a small wireless, listening device that can record and transmit conversations within its listening field. The agents noticed that Katz often made calls for a particular phone booth, and therefore placed the bug on the outside roof of the phone booth. As a result, when Katz made calls, the agents were able to hear and record his end of the conversations. Based largely on the information obtained in those recordings, Katz was convicted as charged. Katz appealed his conviction, arguing similar to the one made in Olmstead, that the use of a bug to record his conversations, without a warrant was an unreasonable search for Fourth Amendment purposes.
The basis of the argument being that the phone booth, being suitable for only one occupant to have private conversations was a constitutionally protected area that the agents needed a warrant to enter. Conversely, the state argued that since the phone booth was: located on a public street, the bug was placed on the outside of the booth, and the information sought were conversations that Katz was voluntarily making; under Olmstead, no warrant was necessary to listen and record the conversations and there the evidence obtained was therefore admissible against Katz in his trial.
In finding for Katz, the Court established a new interpretation of unreasonableness. According to the Court, the interpretation on an unreasonable search had incorrectly focused completely a “constitutionally protected area” such as one’s “person, house, papers, and effects” to the ignoring of other situations that nevertheless required protection. The Court held that the parameters of what the Fourth Amendment needed to be updated to rather than simply protecting a place, it should also be seen as protecting the person. In other words, the situs of an unreasonable search starts from the individual themselves and moves with them wherever he go or may be located. In addition to that term, and more relevantly for a modern world, an unreasonable search occurs anytime that state conducts a warrantless intrusion into any space the defendant has “exhibited an actual expectation of privacy” and, that expectation is one that society is prepared to find as reasonable” (Katz v United States, 1967). In other words, an unreasonable search is any search that invades a person’s reasonable expectation of privacy. In Katz’s case, the fact that he used a public phone booth and closed to phone booth door illustrated that expected that his conversations would be private. Moreover, most people would find it reasonable that Katz was expecting privacy when he made the call. Accordingly, even though the police did not violate the traditional interpretation of and unreasonable search, it did satisfy the Court’s newest interpretation.
It is important to note that while Katz overruled Olmstead on the facts of Katz’s case, it did not, as mentioned above, say that the Olmstead test was eliminated. Rather a warrantless physical intrusion unto the property of suspect in order to access something tangible therein was not the only definition of what it means to be an unreasonable under the Fourth Amendment. To be sure, the Court said simply that the Olmstead “’trespass doctrine” could “no longer be regarded as controlling” (Katz v. United States, 1967). In other words, while the basis of an unreasonable search should be on an analysis of a reasonable expectation to privacy; a trespass onto a constitutionally protected area to access a tangible thing would also be considered an unreasonable search.
Katz v. United States, 389 US 347 (1967). Retrieved from https://www.law.cornell.edu/supremecourt/text/389/347
Marbury v. Madison 5 U.S. 137 (1803). Retrieved from https://www.law.cornell.edu/supremecourt/text/5/137
Olmstead v. United States, 277 US 438 (1928). Retrieved from https://www.law.cornell.edu/supremecourt/text/277/438
U.S. Const. amend IV.
United States Congress. Office of Technology Assistance (OTA). (1985). Federal Government Information Technology: Electronic Surveillance and Civil Liberties. Retrieved from http://ota.fas.org/reports/8509.pdf