Fourth Amendment--Search and Seizure
FOURTH AMENDMENT
SEARCH AND SEIZURE
Electronic Surveillance and the Fourth Amendment
The Olmstead Case.--With the invention of the microphone, the
telephone, and the dictograph recorder, it became possible to
``eavesdrop'' with much greater secrecy and expediency. Inevitably, the
use of electronic devices in law enforcement was challenged, and in 1928
the Court reviewed convictions obtained on the basis of evidence gained
through taps on telephone wires in violation of state law. On a five-to-
four vote, the Court held that wiretapping was not within the confines
of the Fourth Amendment.\131\ Chief Justice Taft, writing the opinion of
the Court, relied on two lines of argument for the conclusion. First,
inasmuch as the Amendment was designed to protect one's property
interest in his premises, there was no search so long as there was no
physical trespass on premises owned or controlled by a defendant.
Second, all the evidence obtained had been secured by hearing, and the
interception of a conversation could not qualify as a seizure, for the
Amendment referred only to the seizure of tangible items. Furthermore,
the violation of state law did not render the evidence excludible, since
the exclusionary rule operated only on evidence seized in violation of
the Constitution.\132\
\131\Olmstead v. United States, 277 U.S. 438 (1928).
\132\Among the dissenters were Justice Holmes, who characterized
``illegal'' wiretapping as ``dirty business,'' id. at 470, and Justice
Brandeis, who contributed to his opinion the famous peroration about
government as ``the potent, the omnipresent, teacher'' which ``breeds
contempt for law'' among the people by its example. Id. at 485. More
relevant here was his lengthy argument rejecting the premises of the
majority, an argument which later became the law of the land. (1) ``To
protect [the right to be left alone], every unjustifiable intrusion by
the Government upon the privacy of the individual, whatever the means
employed, must be deemed a violation of the Fourth Amendment.'' Id. at
478. (2) ``There is, in essence, no difference between the sealed letter
and the private telephone message. . . . The evil incident to invasion
of the privacy of the telephone is far greater than that involved in
tampering with the mails. Whenever a telephone line is tapped, the
privacy of the persons at both ends of the line is invaded and all
conversations between them upon any subject . . . may be overheard.''
Id. at 475-76.
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[[Page 1251]]
Federal Communications Act.--Six years after the decision in the
Olmstead case, Congress enacted the Federal Communications Act and
included in Sec. 605 of the Act a broadly worded proscription on which
the Court seized to place some limitation upon governmental
wiretapping.\133\ Thus, in Nardone v. United States,\134\ the Court held
that wiretapping by federal officers could violate Sec. 605 if the
officers both intercepted and divulged the contents of the conversation
they overheard, and that testimony in court would constitute a form of
prohibited divulgence. Such evidence was therefore excluded, although
wiretapping was not illegal under the Court's interpretation if the
information was not used outside the governmental agency. Because
Sec. 605 applied to intrastate as well as interstate transmissions,\135\
there was no question about the applicability of the ban to state police
officers, but the Court declined to apply either the statute or the due
process clause to require the exclusion of such evidence from state
criminal trials.\136\ State efforts to legalize wiretapping pursuant to
court orders were held by the Court to be precluded by the fact that
Congress in Sec. 605 had intended to occupy the field completely to the
exclusion of the States.\137\
\133\Ch.652, 48 Stat. 1103 (1934), providing, inter alia, that
''. . . no person not being authorized by the sender shall intercept any
communication and divulge or publish the existence, contents, purport,
effect, or meaning of such intercepted communication to any person.''
Nothing in the legislative history indicated what Congress had in mind
in including this language. The section, which appeared at 47 U.S.C.
Sec. 605, was rewritten by Title III of the Omnibus Crime Act of 1968,
82 Stat. 22, Sec. 803, so that the ``regulation of the interception of
wire or oral communications in the future is to be governed by'' the
provisions of Title III. S. Rep. No. 1097, 90th Cong., 2d Sess. 107-08
(1968).
\134\302 U.S. 379 (1937). Derivative evidence, that is, evidence
discovered as a result of information obtained through a wiretap, was
similarly inadmissible, Nardone v. United States, 308 U.S. 338 (1939),
although the testimony of witnesses might be obtained through the
exploitation of wiretap information. Goldstein v. United States, 316
U.S. 114 (1942). Eavesdropping on a conversation on an extension
telephone with the consent of one of the parties did not violate the
statute. Rathbun v. United States, 355 U.S. 107 (1957).
\135\Weiss v. United States, 308 U.S. 321 (1939).
\136\Schwartz v. Texas, 344 U.S. 199 (1952). At this time,
evidence obtained in violation of the Fourth Amendment could be admitted
in state courts. Wolf v. Colorado, 338 U.S. 25 (1949). Although Wolf was
overruled by Mapp v. Ohio, 367 U.S. 643 (1961), it was some seven years
later and after wiretapping itself had been made subject to the Fourth
Amendment that Schwartz was overruled in Lee v. Florida, 392 U.S. 378
(1968).
\137\Bananti v. United States, 355 U.S. 96 (1957).
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Nontelephonic Electronic Surveillance.--The trespass rationale
of Olmstead was utilized in cases dealing with ``bugging'' of premises
rather than with tapping of telephones. Thus, in Goldman v. United
States,\138\ the Court found no Fourth Amendment violation when a
listening device was placed against a party wall so
[[Page 1252]]
that conversations were overheard on the other side. But when officers
drove a ``spike mike'' into a party wall until it came into contact with
a heating duct and thus broadcast defendant's conversations, the Court
determined that the trespass brought the case within the Amendment.\139\
In so holding, the Court, without alluding to the matter, overruled in
effect the second rationale of Olmstead, the premise that conversations
could not be seized.
\138\316 U.S. 129 (1942).
\139\Silverman v. United States, 365 U.S. 505 (1961). See also
Clinton v. Virginia, 377 U.S. 158 (1964) (physical trespass found with
regard to amplifying device stuck in a partition wall with a thumb
tack).
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The Berger and Katz Cases.--In Berger v. New York,\140\ the
Court confirmed the obsolesence of the alternative holding in Olmstead
that conversations could not be seized in the Fourth Amendment
sense.\141\ Berger held unconstitutional on its face a state
eavesdropping statute under which judges were authorized to issue
warrants permitting police officers to trespass on private premises to
install listening devices. The warrants were to be issued upon a showing
of ``reasonable ground to believe that evidence of crime may be thus
obtained, and particularly describing the person or persons whose
communications, conversations or discussions are to be overheard or
recorded.'' For the five-Justice majority, Justice Clark discerned
several constitutional defects in the law. ``First, . . . eavesdropping
is authorized without requiring belief that any particular offense has
been or is being committed; nor that the `property' sought, the
conversations, be particularly described.
\140\388 U.S. 41 (1967).
\141\Id. at 50-53.
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``The purpose of the probable-cause requirement of the Fourth
Amendment to keep the state out of constitutionally protected areas
until it has reason to believe that a specific crime has been or is
being committed is thereby wholly aborted. Likewise the statute's
failure to describe with particularity the conversations sought gives
the officer a roving commission to `seize' any and all conversations. It
is true that the statute requires the naming of `the person or persons
whose communications, conversations or discussions are to be overheard
or recorded. . . .' But this does no more than identify the person whose
constitutionally protected area is to be invaded rather than
`particularly describing' the communications, conversations, or
discussions to be seized. . . . Secondly, authorization of eavesdropping
for a two-month period is the equivalent of a series of intrusions,
searches, and seizures pursuant to a single showing of probable cause.
Prompt execution is also avoided. During such a long and continuous (24
hours a day) period the con
[[Page 1253]]
versations of any and all persons coming into the area covered by the
device will be seized indiscriminately and without regard to their
connection with the crime under investigation. Moreover, the statute
permits. . . extensions of the original two-month period--presumably for
two months each--on a mere showing that such extension is `in the public
interest.'. . . Third, the statute places no termination date on the
eavesdrop once the conversation sought is seized. . . . Finally, the
statute's procedure, necessarily because its success depends on secrecy,
has no requirement for notice as do conventional warrants, nor does it
overcome this defect by requiring some showing of special facts. On the
contrary, it permits unconsented entry without any showing of exigent
circumstances. Such a showing of exigency, in order to avoid notice,
would appear more important in eavesdropping, with its inherent dangers,
than that required when conventional procedures of search and seizure
are utilized. Nor does the statute provide for a return on the warrant
thereby leaving full discretion in the officer as to the use of seized
conversations of innocent as well as guilty parties. In short, the
statute's blanket grant of permission to eavesdrop is without adequate
judicial supervision or protective procedures.''\142\
\142\Id. at 58-60. Justice Stewart concurred because he thought
that the affidavits in this case had not been sufficient to show
probable cause, but he thought the statute constitutional in compliance
with the Fourth Amendment. Id. at 68. Justice Black dissented, arguing
that the Fourth Amendment was not applicable to electronic eavesdropping
but that in any event the ``search'' authorized by the statute was
reasonable. Id. at 70. Justice Harlan dissented, arguing that the
statute with its judicial gloss was in compliance with the Fourth
Amendment. Id. 89. Justice White thought both the statute and its
application in this case were constitutional. Id. at 107.
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Both Justices Black and White in dissent accused the Berger
majority of so construing the Fourth Amendment that no wiretapping-
eavesdropping statute could pass constitutional scrutiny,\143\ and in
Katz v. United States,\144\ the Court in an opinion by one of the Berger
dissenters, Justice Stewart, modified some of its language and pointed
to Court approval of some types of statutorily-authorized electronic
surveillance. Just as Berger had confirmed that one rationale of the
Olmstead decision, the inapplicability of ``seizure'' to conversations,
was no longer valid, Katz disposed of the other rationale. In the latter
case, officers had affixed a listening device to the outside wall of a
telephone booth regularly used by Katz and activated it each time he
entered; since there had been no physical trespass into the booth, the
lower courts held the Fourth Amendment not relevant. The Court
disagreed, saying that ``once it is recognized that the Fourth Amendment
protects peo
[[Page 1254]]
ple--and not simply `areas'--against unreasonable searches and seizures,
it becomes clear that the reach of that Amendment cannot turn upon the
presence or absence of a physical intrusion into any given
enclosure.''\145\ Because the surveillance of Katz's telephone calls had
not been authorized by a magistrate, it was invalid; however, the Court
thought that ``it is clear that this surveillance was so narrowly
circumscribed that a duly authorized magistrate, properly notified of
the need for such investigation, specifically informed of the basis on
which it was to proceed, and clearly apprised of the precise intrusion
it would entail, could constitutionally have authorized, with
appropriate safeguards, the very limited search and seizure that the
Government asserts in fact took place.''\146\ The notice requirement,
which had loomed in Berger as an obstacle to successful electronic
surveillance, was summarily disposed of.\147\ Finally, Justice Stewart
observed that it was unlikely that electronic surveillance would ever
come under any of the established exceptions so that it could be
conducted without prior judicial approval.\148\
\143\Id. at 71, 113.
\144\389 U.S. 347 (1967).
\145\Id. at 353. ``We conclude that the underpinnings of
Olmstead and Goldman have been so eroded by our subsequent decisions
that the `trespass' doctrine there enunciated can no longer be regarded
as controlling. The Government's activities in electronically listening
to and recording the petitioner's words violated the privacy upon which
he justifiably relied while using the telephone booth and thus
constituted a `search and seizure' within the meaning of the Fourth
Amendment.'' Id.
\146\Id. at 354. The ``narrowly circumscribed'' nature of the
surveillance was made clear by the Court in the immediately preceding
passage. ``[The Government agents] did not begin their electronic
surveillance until investigation of the petitioner's activities had
established a strong probability that he was using the telephone in
question to transmit gambling information to persons in 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 communications. The
agents confined their surveillance to the brief periods during which he
used the telephone booth, and they took great care to overhear only the
conversations of the petitioner himself.'' Id. For similar emphasis upon
precision and narrow circumscription, see Osborn v. United States, 385
U.S. 323, 329-30 (1966).
\147\``A conventional warrant ordinarily serves to notify the
suspect of an intended search . . . . In omitting any requirement of
advance notice, the federal court . . . simply recognized, as has this
Court, that officers need not announce their purpose before conducting
an otherwise authorized search if such an announcement would provoke the
escape of the suspect or the destruction of critical evidence.'' 389
U.S. at 355 n.16.
\148\Id. at 357-58. Justice Black dissented, feeling that the
Fourth Amendment applied only to searches for and seizures of tangible
things and not conversations. Id. at 364. Two ``beeper'' decisions
support the general applicability of the warrant requirement if
electronic surveillance will impair legitimate privacy interests.
Compare United States v. Knotts, 460 U.S. 276 (1983) (no Fourth
Amendment violation in relying on a beeper, installed without warrant,
to aid in monitoring progress of a car on the public roads, since there
is no legitimate expectation of privacy in destination of travel on the
public roads), with United States v. Karo, 468 U.S. 705 (1984) (beeper
installed without a warrant may not be used to obtain information as to
the continuing presence of an item within a private residence).
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[[Page 1255]]
Following Katz, Congress enacted in 1968 a comprehensive statute
authorizing federal officers and permitting state officers pursuant to
state legislation complying with the federal law to seek warrants for
electronic surveillance to investigate violations of prescribed classes
of criminal legislation.\149\ The Court has not yet had occasion to pass
on the federal statute and to determine whether its procedures and
authorizations comport with the standards sketched in Osborn, Berger,
and Katz or whether those standards are somewhat more flexible than they
appear to be on the faces of the opinions.\150\
\149\Title III of the Omnibus Crime Control and Safe Streets Act
of 1968, 82 Stat. 211, 18 U.S.C. Sec. Sec. 2510-20.
\150\The Court has interpreted the statute several times without
reaching the constitutional questions. United States v. Kahn, 415 U.S.
143 (1974); United States v. Giordano, 416 U.S. 505 (1974); United
States v. Chavez, 416 U.S. 562 (1974); United States v. Donovan, 429
U.S. 413 (1977); Scott v. United States, 436 U.S. 128 (1978); Dalia v.
United States, 441 U.S. 238 (1979); United States v. New York Telephone
Co., 434 U.S. 159 (1977); United States v. Caceres, 440 U.S. 741 (1979).
Dalia supra, did pass on one constitutional issue, whether the Fourth
Amendment mandated specific warrant authorization for a surreptitious
entry to install an authorized ``bug.'' See also Smith v. Maryland, 442
U.S. 735 (1979) (no reasonable expectation of privacy in numbers dialed
on one's telephone, so Fourth Amendment does not require a warrant to
install ``pen register'' to record those numbers).
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Warrantless ``National Security'' Electronic Surveillance.--In
Katz v. United States,\151\ Justice White sought to preserve for a
future case the possibility that in ``national security cases''
electronic surveillance upon the authorization of the President or the
Attorney General could be permissible without prior judicial approval.
The Executive Branch then asserted the power to wiretap and to ``bug''
in two types of national security situations, against domestic
subversion and against foreign intelligence operations, first basing its
authority on a theory of ``inherent'' presidential power and then in the
Supreme Court withdrawing to the argument that such surveillance was a
``reasonable'' search and seizure and therefore valid under the Fourth
Amendment. Unanimously, the Court held that at least in cases of
domestic subversive investigations, compliance with the warrant
provisions of the Fourth Amendment was required.\152\ Whether or not a
search was
[[Page 1256]]
reasonable, wrote Justice Powell for the Court, was a question which
derived much of its answer from the warrant clause; except in a few
narrowly circumscribed classes of situations, only those searches
conducted pursuant to warrants were reasonable. The Government's duty to
preserve the national security did not override the gurarantee that
before government could invade the privacy of its citizens it must
present to a neutral magistrate evidence sufficient to support issuance
of a warrant authorizing that invasion of privacy.\153\ This protection
was even more needed in ``national security cases'' than in cases of
``ordinary'' crime, the Justice continued, inasmuch as the tendency of
government so often is to regard opponents of its policies as a threat
and hence to tread in areas protected by the First Amendment as well as
by the Fourth.\154\ Rejected also was the argument that courts could not
appreciate the intricacies of investigations in the area of national
security nor preserve the secrecy which is required.\155\
\151\389 U.S. 347, 363-64 (1967) (concurring opinion). Justices
Douglas and Brennan rejected the suggestion. Id. at 359-60 (concurring
opinion). When it enacted its 1968 electronic surveillance statute,
Congress alluded to the problem in ambiguous fashion, 18 U.S.C.
Sec. 2511(3), which the Court subsequently interpreted as having
expressed no congressional position at all. United States v. United
States District Court, 407 U.S. 297, 302-08 (1972).
\152\United States v. United States District Court, 407 U.S. 297
(1972). Chief Justice Burger concurred in the result and Justice White
concurred on the ground that the 1968 law required a warrant in this
case, and therefore did not reach the constitutional issue. Id. at 340.
Justice Rehnquist did not participate. Justice Powell carefully noted
that the case required ``no judgment on the scope of the President's
surveillance power with respect to the activities of foreign powers,
within or without this country.'' Id. at 308.
\153\The case contains a clear suggestion that the Court would
approve a congressional provision for a different standard of probable
cause in national security cases. ``We recognize that domestic security
surveillance may involve different policy and practical considerations
from the surveillance of `ordinary crime.' The gathering of security
intelligence is often long range and involves the interrelation of
various sources and types of information. The exact targets of such
surveillance may be more difficult to identify than in surveillance
operations against many types of crimes specified in Title III. Often,
too, the emphasis of domestic intelligence gathering is on the
prevention of unlawful activity or the enhancement of the Government's
preparedness for some future crisis or emergency. . . . Different
standards may be compatible with the Fourth Amendment if they are
reasonable both in relation to the legitimate need of Government for
intelligence information and the protected rights of our citizens. For
the warrant application may vary according to the governmental interest
to be enforced and the nature of citizen rights deserving protection.
. . . It may be that Congress, for example, would judge that the
application and affidavit showing probable cause need not follow the
exact requirements of Sec. 2518 but should allege other circumstances
more appropriate to domestic security cases. . . .'' Id. at 322-23.
\154\Id. at 313-24.
\155\Id. at 320.
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The question of the scope of the President's constitutional
powers, if any, remains judicially unsettled.\156\ Congress has acted,
however, providing for a special court to hear requests for warrants for
electronic surveillance in foreign intelligence situations, and
permitting the President to authorize warrantless surveillance to
[[Page 1257]]
acquire foreign intelligence information provided that the
communications to be monitored are exclusively between or among foreign
powers and there is no substantial likelihood any ``United States
person'' will be overheard.\157\
\156\See United States v. Butenko, 494 F.2d 593 (3d Cir.), cert.
denied, 419 U.S. 881 (1974); Zweibon v. Mitchell, 516 F.2d 594 (D.C.
Cir. 1975), cert. denied, 425 U.S. 944 (1976), appeal after remand 565
F.2d 742 (D.C. Cir. 1977), on remand, 444 F. Supp. 1296 (D.D.C. 1978),
aff'd. in part, rev'd. in part, 606 F.2d 1172 (D.C. Cir. 1979), cert.
denied, 453 U.S. 912 (1981); Smith v. Nixon, 606 F.2d 1183 (D.C. Cir.
1979), cert. denied, 453 U.S. 912 (1981); United States v. Truong Dinh
Hung, 629 F.2d 908 (4th Cir. 1980), after remand, 667 F.2d 1105 (4th
Cir. 1981); Halkin v. Helms, 690 F.2d 977 (D.C. Cir. 1982).
\157\Foreign Intelligence Surveillance Act of 1978, Pub. L. No.
95-511, 92 Stat. 1797, 50 U.S.C. Sec. Sec. 1801-1811. See United States
v. Belfield, 692 F.2d 141 (D.C. Cir. 1982) (upholding constitutionality
of disclosure restrictions in Act).
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