U.S. Supreme Court Katz v. United States, 389
U.S. 347 (1967) Katz v. United States No. 35 Argued October 17,
1967 Decided December 18,
1967 389
U.S. 347 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH
CIRCUIT Syllabus Petitioner was convicted under an indictment charging him with
transmitting wagering information by telephone across state lines
in violation of 18 U.S.C. § 1084. Evidence of petitioner's end of
the conversations, overheard by FBI agents who had attached an
electronic listening and recording device to the outside of the
telephone booth from which the calls were made, was introduced at
the trial. The Court of Appeals affirmed the conviction, finding
that there was no Fourth Amendment violation, since there was "no
physical entrance into the area occupied by" petitioner. Held: 1. The Government's eavesdropping activities violated the
privacy upon which petitioner justifiably relied while using the
telephone booth, and thus constituted a "search and seizure" within
the meaning of the Fourth Amendment. Pp. 389 U. S.
350 -353.

															(a) The Fourth Amendment governs not only the seizure of
tangible items, but extends as well to the recording of oral
statements. Silverman v. United States, 365 U.
S. 505 , 365 U. S. 511 .
P. 389 U. S.
353 .

															(b) Because the Fourth Amendment protects people, rather than
places, its reach cannot turn on the presence or absence of a
physical intrusion into any given enclosure. The "trespass"
doctrine of Olmstead v. United States, 277 U.
S. 438 , and Goldman v. United States, 316 U. S. 129 , is
no longer controlling. Pp. 389 U. S. 351 , 389 U. S.
353 .

															2. Although the surveillance in this case may have been so
narrowly circumscribed that it could constitutionally have been
authorized in advance, it was not in fact conducted pursuant to the
warrant procedure which is a constitutional precondition of such
electronic surveillance. Pp. 389 U. S.
354 -359.

															369 F.2d 130, reversed. Page 389 U. S. 348 MR. JUSTICE STEWART delivered the opinion of the Court.

															The petitioner was convicted in the District Court for the
Southern District of California under an eight-count indictment
charging him with transmitting wagering information by telephone
from Los Angeles to Miami and Boston, in violation of a federal
statute. [ Footnote 1 ] At trial,
the Government was permitted, over the petitioner's objection, to
introduce evidence of the petitioner'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, Page 389 U. S. 349 because "[t]here was no physical entrance into the area occupied
by [the petitioner]." [ Footnote
2 ] We granted certiorari in order to consider the
constitutional questions thus presented. [ Footnote 3 ]

															The petitioner has phrased those questions as follows:

															"A. 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.
" Page 389 U. S. 350 "B. 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. [ Footnote 4 ] Other provisions of the Constitution
protect personal privacy from other forms of governmental invasion.
[ Footnote 5 ] But the protection
of a person's general right to privacy -- his right to be
let alone by other people [ Footnote
6 ] -- is, like the Page 389 U. S. 351 protection of his property and of his very life, left largely to
the law of the individual States. [ Footnote 7 ]

															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. [ Footnote 8 ] 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. [ Footnote 9 ] 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. See Lewis v.
United States, 385 U. S. 206 , 385 U. S. 210 ; United States v. Lee, 274 U. S. 559 , 274 U. S. 563 .
But what he seeks to preserve as private, even in an area
accessible to the public, may be constitutionally protected. Page 389 U. S. 352 See Rios v. United States, 364 U.
S. 253 ; Ex parte Jackson, 96 U. S.
727 , 96 U. S.
733 .

															The Government stresses the fact that the telephone booth from
which the petitioner 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, [ Footnote 10 ] in a friend's apartment, [ Footnote 11 ] or in a taxicab, [ Footnote 12 ] 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, 277 U.
S. 438 , 277 U. S. 457 , 277 U. S. 464 , 277 U. S. 466 ; Goldman v. United States, 316 U.
S. 129 , 316 U. S.
134 -136, for that Amendment was thought to limit only
searches and seizures of tangible Page 389 U. S. 353 property. [ Footnote 13 ]
But "[t]he premise that property interests control the right of the
Government to search and seize has been discredited." Warden v.
Hayden, 387 U. S. 294 , 387 U. S. 304 .
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 governs not only the seizure of tangible items,
but extends as well to the recording of oral statements, overheard
without any "technical trespass under . . . local property law." Silverman v. United States, 365 U.
S. 505 , 365 U. S. 511 .
Once this much is acknowledged, and once it is recognized that the
Fourth Amendment protects people -- 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.

															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. The fact that the
electronic device employed to achieve that end did not happen to
penetrate the wall of the booth can have no constitutional
significance. Page 389 U. S. 354 The question remaining for decision, then, is whether the search
and seizure conducted in this case complied with constitutional
standards. In that regard, the Government's position is that its
agents acted in an entirely defensible manner: they 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, [ Footnote 14 ] and they took great care to overhear only
the conversations of the petitioner himself. [ Footnote 15 ]

															Accepting this account of the Government's actions as accurate,
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. Only last Term we
sustained the validity of Page 389 U. S. 355 such an authorization, holding that, under sufficiently "precise
and discriminate circumstances," a federal court may empower
government agents to employ a concealed electronic device "for the
narrow and particularized purpose of ascertaining the truth of the
. . . allegations" of a "detailed factual affidavit alleging the
commission of a specific criminal offense." Osborn v. United
States, 385 U. S. 323 , 385 U. S.
329 -330. Discussing that holding, the Court in Berger v. New York, 388 U. S. 41 , said
that "the order authorizing the use of the electronic device" in Osborn "afforded similar protections to those . . . of
conventional warrants authorizing the seizure of tangible
evidence." Through those protections, "no greater invasion of
privacy was permitted than was necessary under the circumstances." Id. at 388 U. S. 57 .
[ Footnote 16 ] Here, too, a
similar Page 389 U. S. 356 judicial order could have accommodated "the legitimate needs of
law enforcement" [ Footnote
17 ] by authorizing the carefully limited use of electronic
surveillance.

															The Government urges that, because its agents relied upon the
decisions in Olmstead and Goldman, and because
they did no more here than they might properly have done with prior
judicial sanction, we should retroactively validate their conduct.
That we cannot do. It is apparent that the agents in this case
acted with restraint. Yet the inescapable fact is that this
restraint was imposed by the agents themselves, not by a judicial
officer. They were not required, before commencing the search, to
present their estimate of probable cause for detached scrutiny by a
neutral magistrate. They were not compelled, during the conduct of
the search itself, to observe precise limits established in advance
by a specific court order. Nor were they directed, after the search
had been completed, to notify the authorizing magistrate in detail
of all that had been seized. In the absence of such safeguards,
this Court has never sustained a search upon the sole ground that
officers reasonably expected to find evidence of a particular crime
and voluntarily confined their activities to the least
intrusive Page 389 U. S. 357 means consistent with that end. Searches conducted without
warrants have been held unlawful "notwithstanding facts
unquestionably showing probable cause," Agnello v. United
States, 269 U. S. 20 , 269 U. S. 33 ,
for the Constitution requires "that the deliberate, impartial
judgment of a judicial officer . . . be interposed between the
citizen and the police. . . ." Wong Sun v. United States, 371 U. S. 471 , 371 U. S.
481 -482. "Over and again, this Court has emphasized that
the mandate of the [Fourth] Amendment requires adherence to
judicial processes," United States v. Jeffers, 342 U. S. 48 , 342 U. S. 51 ,
and that searches conducted outside the judicial process, without
prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment [ Footnote 18 ] -- subject only to a few specifically
established and well delineated exceptions. [ Footnote 19 ]

															It is difficult to imagine how any of those exceptions could
ever apply to the sort of search and seizure involved in this case.
Even electronic surveillance substantially contemporaneous with an
individual's arrest could hardly be deemed an "incident" of that
arrest. [ Footnote 20 ] Page 389 U. S. 358 Nor could the use of electronic surveillance without prior
authorization be justified on grounds of "hot pursuit." [ Footnote 21 ] And, of course, the
very nature of electronic surveillance precludes its use pursuant
to the suspect's consent. [ Footnote 22 ]

															The Government does not question these basic principles. Rather,
it urges the creation of a new exception to cover this case.
[ Footnote 23 ] It argues that
surveillance of a telephone booth should be exempted from the usual
requirement of advance authorization by a magistrate upon a showing
of probable cause. We cannot agree. Omission of such
authorization

															"bypasses the safeguards provided by an objective
predetermination of probable cause, and substitutes instead the far
less reliable procedure of an after-the-event justification for the
. . . search, too likely to be subtly influenced by the familiar
shortcomings of hindsight judgment." Beck v. Ohio, 379 U. S. 89 , 379 U. S. 96 .
And bypassing a neutral predetermination of the scope of a search
leaves individuals secure from Fourth Amendment Page 389 U. S. 359 violations "only in the discretion of the police." Id. at 379 U. S.
97 .

															These considerations do not vanish when the search in question
is transferred from the setting of a home, an office, or a hotel
room to that of a telephone booth. Wherever a man may be, he is
entitled to know that he will remain free from unreasonable
searches and seizures. The government agents here ignored "the
procedure of antecedent justification . . . that is central to the
Fourth Amendment," [ Footnote
24 ] a procedure that we hold to be a constitutional
precondition of the kind of electronic surveillance involved in
this case. Because the surveillance here failed to meet that
condition, and because it led to the petitioner's conviction, the
judgment must be reversed. It is so ordered. MR. JUSTICE MARSHALL took no part in the consideration or
decision of this case.

															[ Footnote 1 ]

															18 U.S.C. § 1084. That statute provides in pertinent part:

															"(a) Whoever being engaged in the business of betting or
wagering knowingly uses a wire communication facility for the
transmission in interstate or foreign commerce of bets or wagers or
information assisting in the placing of bets or wagers on any
sporting event or contest, or for the transmission of a wire
communication which entitles the recipient to receive money or
credit as a result of bets or wagers, or for information assisting
in the placing of bets or wagers, shall be fined not more than
$10,000 or imprisoned not more than two years, or both."

															"(b) Nothing in this section shall be construed to prevent the
transmission in interstate or foreign commerce of information for
use in news reporting of sporting events or contests, or for the
transmission of information assisting in the placing of bets or
wagers on a sporting event or contest from a State where betting on
that sporting event or contest is legal into a State in which such
betting is legal."

															[ Footnote 2 ]

															369 F.2d 130, 134

															[ Footnote 3 ] 386 U. S. 954 . The
petition for certiorari also challenged the validity of a warrant
authorizing the search of the petitioner's premises. In light of
our disposition of this case, we do not reach that issue.

															We find no merit in the petitioner's further suggestion that his
indictment must be dismissed. After his conviction was affirmed by
the Court of Appeals, he testified before a federal grand jury
concerning the charges involved here. Because he was compelled to
testify pursuant to a grant of immunity, 48 Stat. 1096, as amended,
47 U.S.C. § 409( l ), it is clear that the fruit of his
testimony cannot be used against him in any future trial. But the
petitioner asks for more. He contends that. his conviction must be
vacated and the charges against him dismissed lest he be "subjected
to [a] penalty . . . on account of [a] . . . matter . . .
concerning which he [was] compelled . . . to testify. . . ." 47
U.S.C. § 409( l ). Frank v. United States, 347 F.2d
486. We disagree. In relevant part, § 409( l ) substantially
repeats the language of the Compulsory Testimony Act of 1893, 27
Stat. 443, 49 U.S.C. § 46, which was Congress' response to this
Court's statement that an immunity statute can supplant the Fifth
Amendment privilege against self-incrimination only if it affords
adequate protection from future prosecution or conviction. Counselman v. Hitchcock, 142 U. S. 547 , 142 U. S.
585 -586. The statutory provision here involved was
designed to provide such protection, see Brown v. United
States, 359 U. S. 41 , 359 U. S. 45 -46,
not to confer immunity from punishment pursuant to a prior prosecution and adjudication of guilt. Cf. Regina v. United
States, 364 U. S. 507 , 364 U. S.
513 -514.

															[ Footnote 4 ]

															"The average man would very likely not have his feelings soothed
any more by having his property seized openly than by having it
seized privately and by stealth. . . . And a person can be just as
much, if not more, irritated, annoyed and injured by an
unceremonious public arrest by a policeman as he is by a seizure in
the privacy of his office or home." Griswold v. Connecticut, 381 U.
S. 479 , 381 U. S. 509 (dissenting opinion of MR. JUSTICE BLACK).

															[ Footnote 5 ]

															The First Amendment, for example, imposes limitations upon
governmental abridgment of "freedom to associate and privacy in
one's associations." NAACP v. Alabama, 357 U.
S. 449 , 357 U. S. 462 .
The Third Amendment's prohibition against the unconsented peacetime
quartering of soldiers protects another aspect of privacy from
governmental intrusion. To some extent, the Fifth Amendment too
"reflects the Constitution's concern for . . . . . . the right
of each individual "to a private enclave where he may lead a
private life."'" Tehan v. Shott, 382 U.
S. 406 , 382 U. S. 416 .
Virtually every governmental action interferes with personal
privacy to some degree. The question in each case is whether that
interference violates a command of the United States
Constitution. [ Footnote 6 ] See Warren & Brandeis, The Right to Privacy, 4
Harv.L.Rev.193 (1890).

															[ Footnote 7 ] See, e.g., Time, Inc. v. Hill, 385 U.
S. 374 . Cf. Breard v. Alexandria, 341 U.
S. 622 ; Kovacs v. Cooper, 336 U. S.
77 .

															[ Footnote 8 ]

															In support of their respective claims, the parties have compiled
competing lists of "protected areas" for our consideration. It
appears to be common ground that a private home is such an area, Weeks v. United States, 232 U. S. 383 , but
that an open field is not. Hester v. United States, 265 U. S. 57 .
Defending the inclusion of a telephone booth in his list the
petitioner cites United States v. Stone, 232 F.
Supp. 396 , and United States v. Madison, 32 L.W. 2243
(D.C. Ct.Gen.Sess.). Urging that the telephone booth should be
excluded, the Government finds support in United States v.
Borgese, 235 F.
Supp. 286 .

															[ Footnote 9 ]

															It is true that this Court has occasionally described its
conclusions in terms of "constitutionally protected areas," see, e.g., Silverman v. United States, 365 U.
S. 505 , 365 U. S. 510 , 365 U. S. 512 ; Lopez v. United States, 373 U. S. 427 , 373 U. S.
438 -439; Berger v. New York, 388 U. S.
41 , 388 U. S. 57 , 388 U. S. 59 ,
but we have never suggested that this concept can serve as a
talismanic solution to every Fourth Amendment problem.

															[ Footnote 10 ] Silverthorne Lumber Co. v. United States, 251 U.
S. 385 .

															[ Footnote 11 ] Jones v. United States, 362 U.
S. 257 .

															[ Footnote 12 ] Rios v United States, 364 U. S. 253 .

															[ Footnote 13 ] See Olmstead v. United States, 277 U.
S. 438 , 277 U. S.
464 -466. We do not deal in this case with the law of
detention or arrest under the Fourth Amendment.

															[ Footnote 14 ]

															Based upon their previous visual observations of the petitioner,
the agents correctly predicted that he would use the telephone
booth for several minutes at approximately the same time each
morning. The petitioner was subjected to electronic surveillance
only during this predetermined period. Six recordings, averaging
some three minutes each, were obtained and admitted in evidence.
They preserved the petitioners end of conversations concerning the
placing of bets and the receipt of wagering information.

															[ Footnote 15 ]

															On the single occasion when the statements of another person
were inadvertently intercepted, the agents refrained from listening
to them.

															[ Footnote 16 ]

															Although the protections afforded the petitioner in Osborn were " similar . . . to those . . . of
conventional warrants," they were not identical. A conventional
warrant ordinarily serves to notify the suspect of an intended
search. But if Osborn had been told in advance that federal
officers intended to record his conversations, the point of making
such recordings would obviously have been lost; the evidence in
question could not have been obtained. In omitting any requirement
of advance notice, the federal court that authorized electronic
surveillance in Osborn 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. See Ker v. California, 374 U. S.
23 , 374 U. S.
37 -41.

															Although some have thought that this "exception to the notice
requirement where exigent circumstances are present," id. at 374 U. S. 39 ,
should be deemed inapplicable where police enter a home before its
occupants are aware that officers are present, id. at 374 U. S. 55 -58
(opinion of MR. JUSTICE BRENNAN), the reasons for such a limitation
have no bearing here. However true it may be that "[i]nnocent
citizens should not suffer the shock, fright or embarrassment
attendant upon an unannounced police intrusion," id. at 374 U. S. 57 ,
and that "the requirement of awareness . . . serves to minimize the
hazards of the officers' dangerous calling," id. at 374 U. S. 57 -58,
these considerations are not relevant to the problems presented by
judicially authorized electronic surveillance.

															Nor do the Federal Rules of Criminal Procedure impose an
inflexible requirement of prior notice.Rule 41(d) does require
federal officers to serve upon the person searched a copy of the
warrant and a receipt describing the material obtained, but it does
not invariably require that this be done before the search takes
place. Nordelli v. United States, 24 F.2d 665,
666-667.

															Thus, the fact that the petitioner in Osborn was
unaware that his words were being electronically transcribed did
not prevent this Court from sustaining his conviction, and did not
prevent the Court in Berger from reaching the conclusion
that the use of the recording device sanctioned in Osborn was entirely lawful. 388 U. S. 41 , 388 U. S.
57 .

															[ Footnote 17 ] Lopez v. United States, 373 U.
S. 427 , 373 U. S. 464 (dissenting opinion of MR. JUSTICE BRENNAN).

															[ Footnote 18 ] See, e.g., Jones v. United States, 357 U.
S. 493 , 357 U. S.
497 -499; Rios v. United States, 364 U.
S. 253 , 364 U. S. 261 ; Chapman v. United States, 365 U.
S. 610 , 365 U. S.
613 -615; Stoner v. California, 376 U.
S. 483 , 376 U. S.
486 -487.

															[ Footnote 19 ] See, e.g., Carroll v. United States, 267 U.
S. 132 , 267 U. S. 153 ,
156; McDonald v. United States, 335 U.
S. 451 , 335 U. S.
454 -456; Brinegar v. United States, 338 U. S. 160 , 338 U. S.
174 -177; Cooper v. California, 386 U. S.
58 ; Warden v. Hayden, 387 U.
S. 294 , 387 U. S.
298 -300.

															[ Footnote 20 ]

															In Agnello v. United States, 269 U. S.
20 , 269 U. S. 30 ,
the Court stated:

															"The right without a search warrant contemporaneously to search
persons lawfully arrested while committing crime and to search the
place where the arrest is made in order to find and seize things
connected with the crime as its fruits or as the means by which it
was committed, as well as weapons and other things to effect an
escape from custody, is not to be doubted."

															Whatever one's view of "the longstanding practice of searching
for other proofs of guilt within the control of the accused found
upon arrest," United States v. Rabinowitz, 339 U. S.
56 , 339 U. S. 61 ; cf. id. at 339 U. S. 71 -79
(dissenting opinion of Mr. Justice Frankfurter), the concept of an
"incidental" search cannot readily be extended to include
surreptitious surveillance of an individual either immediately
before, or immediately after, his arrest.

															[ Footnote 21 ]

															Although

															"[t]he Fourth Amendment does not require police officers to
delay in the course of an investigation if to do so would gravely
endanger their lives or the lives of others," Warden v. Hayden, 387 U. S. 294 , 387 U. S.
298 -299, there seems little likelihood that electronic
surveillance would be a realistic possibility in a situation so
fraught with urgency.

															[ Footnote 22 ]

															A search to which an individual consents meets Fourth Amendment
requirements, Zap v. United States, 328 U.
S. 624 , but, of course, "the usefulness of electronic
surveillance depends on lack of notice to the suspect." Lopez
v. United States, 373 U. S. 427 , 373 U. S. 463 (dissenting opinion of MR. JUSTICE BRENNAN).

															[ Footnote 23 ]

															Whether safeguards other than prior authorization by a
magistrate would satisfy the Fourth Amendment in a situation
involving the national security is a question not presented by this
case.

															[ Footnote 24 ] See Osborn v. United States, 385 U.
S. 323 , 385 U. S.
330 .

															MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN joins,
concurring.

															While I join the opinion of the Court, I feel compelled to reply
to the separate concurring opinion of my Brother WHITE, which I
view as a wholly unwarranted green light for the Executive Branch
to resort to electronic eavesdropping without a warrant in cases
which the Executive Branch itself labels "national security"
matters.

															Neither the President nor the Attorney General is a magistrate.
In matters where they believe national security may be involved,
they are not detached, disinterested, and neutral as a court or
magistrate must be. Under the separation of powers created by the
Constitution, the Executive Branch is not supposed to be neutral
and disinterested. Rather it should vigorously investigate Page 389 U. S. 360 and prevent breaches of national security and prosecute those
who violate the pertinent federal laws. The President and Attorney
General are properly interested parties, cast in the role of
adversary, in national security cases. They may even be the
intended victims of subversive action. Since spies and saboteurs
are as entitled to the protection of the Fourth Amendment as
suspected gamblers like petitioner, I cannot agree that, where
spies and saboteurs are involved adequate protection of Fourth
Amendment rights is assured when the President and Attorney General
assume both the position of "adversary and prosecutor" and
disinterested, neutral magistrate.

															There is, so far as I understand constitutional history, no
distinction under the Fourth Amendment between types of crimes.
Article III, § 3, gives "treason" a very narrow definition, and
puts restrictions on its proof. But the Fourth Amendment draws no
lines between various substantive offenses. The arrests in cases of
"hot pursuit" and the arrests on visible or other evidence of
probable cause cut across the board, and are not peculiar to any
kind of crime.

															I would respect the present lines of distinction, and not
improvise because a particular crime seems particularly heinous.
When the Framers took that step, as they did with treason, the
worst crime of all, they made their purpose manifest.

															MR. JUSTICE HARLAN, concurring.

															I join the opinion of the Court, which I read to hold only (a)
that an enclosed telephone booth is an area where, like a home, Weeks v. United States, 232 U. S. 383 , and
unlike a field, Hester v. United States, 265 U. S.
57 , a person has a constitutionally protected reasonable
expectation of privacy; (b) that electronic, as well as physical,
intrusion into a place that is in this sense private may constitute
a violation of the Fourth Amendment, Page 389 U. S. 361 and (c) that the invasion of a constitutionally protected area
by federal authorities is, as the Court has long held,
presumptively unreasonable in the absence of a search warrant.

															As the Court's opinion states, "the Fourth Amendment protects
people, not places." The question, however, is what protection it
affords to those people. Generally, as here, the answer to that
question requires reference to a "place." My understanding of the
rule that has emerged from prior decisions is that there is a
twofold requirement, first that a person have exhibited an actual
(subjective) expectation of privacy and, second, that the
expectation be one that society is prepared to recognize as
"reasonable." Thus, a man's home is, for most purposes, a place
where he expects privacy, but objects, activities, or statements
that he exposes to the "plain view" of outsiders are not
"protected," because no intention to keep them to himself has been
exhibited. On the other hand, conversations in the open would not
be protected against being overheard, for the expectation of
privacy under the circumstances would be unreasonable. Cf.
Hester v. United States, supra. The critical fact in this case is that "[o]ne who occupies it,
[a telephone booth] shuts the door behind him, and pays the toll
that permits him to place a call is surely entitled to assume" that
his conversation is not being intercepted. Ante at 389 U. S. 352 .
The point is not that the booth is "accessible to the public" at
other times, ante at 389 U. S. 351 ,
but that it is a temporarily private place whose momentary
occupants' expectations of freedom from intrusion are recognized as
reasonable. Cf. Rios v. United States, 364 U.
S. 253 .

															In Silverman v. United States, 365 U.
S. 505 , we held that eavesdropping accomplished by means
of an electronic device that penetrated the premises occupied by
petitioner was a violation of the Fourth Amendment. Page 389 U. S. 362 That case established that interception of conversations
reasonably intended to be private could constitute a "search and
seizure." and that the examination or taking of physical property
was not required. This view of the Fourth Amendment was followed in Wong Sun v. United States, 371 U.
S. 471 , at 371 U. S. 485 ,
and Berger v. New York, 388 U. S. 41 , at
51. Also compare Osborn v. United States, 385 U.
S. 323 , at 385 U. S. 327 .
In Silverman, we found it unnecessary to reexamine Goldman v. United States, 316 U.
S. 129 , which had held that electronic surveillance
accomplished without the physical penetration of petitioner's
premises by a tangible object did not violate the Fourth Amendment.
This case requires us to reconsider Goldman, and I agree
that it should now be overruled. * Its limitation
on Fourth Amendment protection is, in the present day, bad physics
as well as bad law, for reasonable expectations of privacy may be
defeated by electronic as well as physical invasion.

															Finally, I do not read the Court's opinion to declare that no
interception of a conversation one-half of which occurs in a public
telephone booth can be reasonable in the absence of a warrant. As
elsewhere under the Fourth Amendment, warrants are the general
rule, to which the legitimate needs of law enforcement may demand
specific exceptions. It will be time enough to consider any such
exceptions when an appropriate occasion presents itself, and I
agree with the Court that this is not one.

															* I also think that the course of development evinced by Silverman. supra, Wong Sun., supra, Berger, supra, and
today's decision must be recognized as overruling Olmstead v.
United States, 277 U. S. 438 ,
which essentially rested on the ground that conversations were not
subject to the protection of the Fourth Amendment.

															MR. JUSTICE WHITE, concurring.

															I agree that the official surveillance of petitioner's telephone
conversations in a public booth must be subjected Page 389 U. S. 363 to the test of reasonableness under the Fourth Amendment and
that, on the record now before us, the particular surveillance
undertaken was unreasonable absent a warrant properly authorizing
it. This application of the Fourth Amendment need not interfere
with legitimate needs of law enforcement.*

															In joining the Court's opinion, I note the Court's
acknowledgment that there are circumstances in which it is
reasonable to search without a warrant. In this connection, in footnote 23 the Court points out
that today's decision does not reach national security cases Wiretapping to protect the security of the Nation has been
authorized by successive Presidents. The present Administration
would apparently save national security cases from restrictions
against wiretapping. See Berger v. New York, 388 U. S.
41 , 388 U. S.
112 -118 (1967) (WHITE, J., Page 389 U. S. 364 dissenting). We should not require the warrant procedure and the
magistrate's judgment if the President of the United States or his
chief legal officer, the Attorney General, has considered the
requirements of national security and authorized electronic
surveillance as reasonable.

															* In previous cases, which are undisturbed by today's decision,
the Court has upheld, as reasonable under the Fourth Amendment,
admission at trial of evidence obtained (1) by an undercover police
agent to whom a defendant speaks without knowledge that he is in
the employ of the police, Hoffa v. United States, 385 U. S. 293 (1966); (2) by a recording device hidden on the person of such an
informant, Lopez v. United States, 373 U.
S. 427 (1963); Osborn v. United States, 385 U. S. 323 (1966), and (3) by a policeman listening to the secret microwave
transmissions of an agent conversing with the defendant in another
location, On Lee v. United States, 343 U.
S. 747 (1952). When one man speaks to another, he takes
all the risks ordinarily inherent in so doing, including the risk
that the man to whom he speaks will make public what he has heard.
The Fourth Amendment does not protect against unreliable (or
law-abiding) associates. Hoffa v. United States, supra. It
is but a logical and reasonable extension of this principle that a
man take the risk that his hearer, free to memorize what he hears
for later verbatim repetitions, is instead recording it or
transmitting it to another. The present case deals with an entirely
different situation, for as the Court emphasizes the petitioner
"sought to exclude . . . the uninvited ear," and spoke under
circumstances in which a reasonable person would assume that
uninvited ears were not listening.

															MR. JUSTICE BLACK, dissenting.

															If I could agree with the Court that eavesdropping carried on by
electronic means (equivalent to wiretapping) constitutes a "search"
or "seizure," I would be happy to join the Court's opinion For on
that premise, my Brother STEWART sets out methods in accord with
the Fourth Amendment to guide States in the enactment and
enforcement of laws passed to regulate wiretapping by government.
In this respect, today's opinion differs sharply from Berger v.
New York, 388 U. S. 41 ,
decided last Term, which held void on its face a New York statute
authorizing wiretapping on warrants issued by magistrates on
showings of probable cause. The Berger case also set up
what appeared to be insuperable obstacles to the valid passage of
such wiretapping laws by States. The Court's opinion in this case,
however, removes the doubts about state power in this field and
abates to a large extent the confusion and near-paralyzing effect
of the Berger holding. Notwithstanding these good efforts
of the Court, I am still unable to agree with its interpretation of
the Fourth Amendment.

															My basic objection is two-fold: (1) I do not believe that the
words of the Amendment will bear the meaning given them by today's
decision, and (2) 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. Page 389 U. S. 365 While I realize that an argument based on the meaning of words
lacks the scope, and no doubt the appeal, of broad policy
discussions and philosophical discourses on such nebulous subjects
as privacy, for me, the language of the Amendment is the crucial
place to look in construing a written document such as our
Constitution. The Fourth Amendment says that

															"The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched and the persons or things to be
seized."

															The first clause protects "persons, houses, papers, and effects
against unreasonable searches and seizures. . . ." These words
connote the idea of tangible things with size, form, and weight,
things capable of being searched, seized, or both. The second
clause of the Amendment still further establishes its Framers'
purpose to limit its protection to tangible things by providing
that no warrants shall issue but those "particularly describing the
place to be searched, and the persons or things to be seized." A
conversation overheard by eavesdropping, whether by plain snooping
or wiretapping, is not tangible and, under the normally accepted
meanings of the words, can neither be searched nor seized. In
addition the language of the second clause indicates that the
Amendment refers not only to something tangible so it can be
seized, but to something already in existence, so it can be
described. Yet the Court's interpretation would have the Amendment
apply to overhearing future conversations, which, by their very
nature, are nonexistent until they take place. How can one
"describe" a future conversation, and, if one cannot, how can a
magistrate issue a warrant to eavesdrop one in the future? It is
argued that information showing what Page 389 U. S. 366 is expected to be said is sufficient to limit the boundaries of
what later can be admitted into evidence; but does such general
information really meet the specific language of the Amendment,
which says "particularly describing"? Rather than using language in
a completely artificial way, I must conclude that the Fourth
Amendment simply does not apply to eavesdropping.

															Tapping telephone wires, of course, was an unknown possibility
at the time the Fourth Amendment was adopted. But eavesdropping
(and wiretapping is nothing more than eavesdropping by telephone)
was, as even the majority opinion in Berger, supra, recognized,

															"an ancient practice which, at common law, was condemned as a
nuisance. 4 Blackstone, Commentaries 168. In those days, the
eavesdropper listened by naked ear under the eaves of houses or
their windows, or beyond their walls seeking out private
discourse."

															388 U.S. at 388 U. S. 45 .
There can be no doubt that the Framers were aware of this practice,
and, if they had desired to outlaw or restrict the use of evidence
obtained by eavesdropping, I believe that they would have used the
appropriate language to do so in the Fourth Amendment. They
certainly would not have left such a task to the ingenuity of
language-stretching judges. No one, it seems to me, can read the
debates on the Bill of Rights without reaching the conclusion that
its Framers and critics well knew the meaning of the words they
used, what they would be understood to mean by others, their scope
and their limitations. Under these circumstances, it strikes me as
a charge against their scholarship, their common sense and their
candor to give to the Fourth Amendment's language the eavesdropping
meaning the Court imputes to it today.

															I do not deny that common sense requires, and that this Court
often has said, that the Bill of Rights' safeguards should be given
a liberal construction. This Page 389 U. S. 367 principle, however, does not justify construing the search and
seizure amendment as applying to eavesdropping or the "seizure" of
conversations. The Fourth Amendment was aimed directly at the
abhorred practice of breaking in, ransacking and searching homes
and other buildings and seizing people's personal belongings
without warrants issued by magistrates. The Amendment deserves, and
this Court has given it, a liberal construction in order to protect
against warrantless searches of buildings and seizures of tangible
personal effects. But, until today, this Court has refused to say
that eavesdropping comes within the ambit of Fourth Amendment
restrictions. See, e.g., Olmstead v. United States, 277 U. S. 438 (1928), and Goldman v. United States, 316 U.
S. 129 (1942).

															So far, I have attempted to state why I think the words of the
Fourth Amendment prevent its application to eavesdropping. It is
important now to show that this has been the traditional view of
the Amendment's scope since its adoption, and that the Court's
decision in this case, along with its amorphous holding in Berger last Term, marks the first real departure from that
view.

															The first case to reach this Court which actually involved a
clear-cut test of the Fourth Amendment's applicability to
eavesdropping through a wiretap was, of course, Olmstead,
supra. In holding that the interception of private telephone
conversations by means of wiretapping was not a violation of the
Fourth Amendment, this Court, speaking through Mr. Chief Justice
Taft, examined the language of the Amendment and found, just as I
do now, that the words could not be stretched to encompass
overheard conversations:

															"The Amendment itself shows that the search is to be of material
things -- the person, the house, his papers or his effects. The
description of the warrant necessary to make the proceeding lawful,
is Page 389 U. S. 368 that it must specify the place to be searched and the person or
things to be seized. . . ."

															" * * * *" "Justice Bradley in the Boyd case [ Boyd v. United
States, 116 U. S. 616 ], and Justice
Clark[e] in the Gouled case [ Gouled v. United
States, 255 U. S. 298 ], said that the
Fifth Amendment and the Fourth Amendment were to be liberally
construed to effect the purpose of the framers of the Constitution
in the interest of liberty. But that cannot justify enlargement of
the language employed beyond the possible practical meaning of
houses, persons, papers, and effects, or so to apply the words
search and seizure as to forbid hearing or sight."

															277 U.S. at 277 U. S.
464 -465. Goldman v. United States, 316 U.
S. 129 , is an even clearer example of this Court's
traditional refusal to consider eavesdropping as being covered by
the Fourth Amendment. There, federal agents used a detectaphone,
which was placed on the wall of an adjoining room, to listen to the
conversation of a defendant carried on in his private office and
intended to be confined within the four walls of the room. This
Court, referring to Olmstead, found no Fourth Amendment
violation.

															It should be noted that the Court in Olmstead based its
decision squarely on the fact that wiretapping or eavesdropping
does not violate the Fourth Amendment. As shown supra in
the cited quotation from the case, the Court went to great pains to
examine the actual language of the Amendment, and found that the
words used simply could not be stretched to cover eavesdropping.
That there was no trespass was not the determinative factor, and
indeed the Court, in citing Hester v. United States, 265 U. S. 57 ,
indicated that, even where there was a trespass, the Fourth
Amendment does not automatically apply to evidence obtained by
"hearing or Page 389 U. S. 369 sight." The Olmstead majority characterized Hester as holding

															"that the testimony of two officers of the law who trespassed on
the defendant's land, concealed themselves one hundred yards away
from his house, and saw him come out and hand a bottle of whiskey
to another, was not inadmissible. While there was a trespass, there
was no search of person, house, papers or effects."

															277 U.S. at 277 U. S. 465 .
Thus, the clear holding of the Olmstead and Goldman cases, undiluted by any question of trespass, is
that eavesdropping, in both its original and modern forms, is not
violative of the Fourth Amendment.

															While my reading of the Olmstead and Goldman cases convinces me that they were decided on the basis of the
inapplicability of the wording of the Fourth Amendment to
eavesdropping, and not on any trespass basis, this is not to say
that unauthorized intrusion has not played an important role in
search and seizure cases. This Court has adopted an exclusionary
rule to bar evidence obtained by means of such intrusions. As I
made clear in my dissenting opinion in Berger v. New York, 388 U. S. 41 , 388 U. S. 76 , I
continue to believe that this exclusionary rule formulated in Weeks v. United States, 232 U. S. 383 ,
rests on the "supervisory power" of this Court over other federal
courts and is not rooted in the Fourth Amendment. See Wolf v.
Colorado, concurring opinion, 338 U. S. 338 U.S.
25, 338 U. S. 39 , at
40. See also Mapp v. Ohio, concurring opinion, 367 U. S. 367 U.S.
643, 367 U. S.
661 -666. This rule has caused the Court to refuse to
accept evidence where there has been such an intrusion regardless
of whether there has been a search or seizure in violation of the
Fourth Amendment. As this Court said in Lopez v. United
States, 373 U. S. 427 , 373 U. S.
438 -439

															"The Court has in the past sustained instances of 'electronic
eavesdropping' against constitutional challenge when devices have
been used to enable government agents to overhear conversations
which would have been beyond the reach of the human ear [citing Page 389 U. S. 370 Olmstead and Goldman ]. It has been insisted
only that the electronic device not be planted by an unlawful
physical invasion of a constitutionally protected area. Silverman v. United States. "

															To support its new interpretation of the Fourth Amendment,
which, in effect, amounts to a rewriting of the language, the
Court's opinion concludes that "the underpinnings of Olmstead and Goldman have been . . . eroded by
our subsequent decisions. . . ." But the only cases cited as
accomplishing this "eroding" are Silverman v. United
States, 365 U. S. 505 , and Warden v. Hayden, 387 U. S. 294 .
Neither of these cases "eroded" Olmstead or Goldman. Silverman is an interesting choice,
since there the Court expressly refused to reexamine the rationale
of Olmstead or Goldman although such a
reexamination was strenuously urged upon the Court by the
petitioners' counsel. Also, it is significant that, in Silverman, as the Court described it, "the eavesdropping
was accomplished by means of an unauthorized physical penetration
into the premises occupied by the petitioners," 365 U.S. at 365 U. S. 509 ,
thus calling into play the supervisory exclusionary rule of
evidence. As I have pointed out above, where there is an
unauthorized intrusion, this Court has rejected admission of
evidence obtained regardless of whether there has been an
unconstitutional search and seizure. The majority's decision here
relies heavily on the statement in the opinion that the Court "need
not pause to consider whether or not there was a technical trespass
under the local property law relating to party walls." (At 365 U. S.
511 .) Yet this statement should not becloud the fact
that, time and again, the opinion emphasizes that there has been an
unauthorized intrusion:

															"For a fair reading of the record in this case shows that the
eavesdropping was accomplished by means of an unauthorized
physical penetration into the premises occupied by the
petitioners."

															(At 365 U. S. 509 ,
emphasis added.) "Eavesdropping Page 389 U. S. 371 accomplished by means of such a physical intrusion is
beyond the pale of even those decisions. . . ." (At 365 U. S. 509 ,
emphasis added.) "Here . . . the officers overheard the
petitioners' conversations only by usurping part of the
petitioners' house or office. . . ." (At 365 U. S. 511 ,
emphasis added.) "[D]ecision here . . . is based upon the reality
of an actual intrusion. . . ." (At 365 U. S. 512 ,
emphasis added.) "We find no occasion to reexamine Goldman here, but we decline to go beyond it, by even a fraction of an
inch. " (At 365 U. S. 512 ,
emphasis added.) As if this were not enough, Justices Clark and
Whittaker concurred with the following statement:

															"In view of the determination by the majority that the unauthorized physical penetration into petitioners'
premises constituted sufficient trespass to remove this case from
the coverage of earlier decisions, we feel obliged to join in the
Court's opinion."

															(At 365 U. S. 513 ,
emphasis added.) As I made clear in my dissent in Berger, the Court in Silverman held the evidence should be
excluded by virtue of the exclusionary rule, and "I would not have
agreed with the Court's opinion in Silverman . . . had I thought
that the result depended on finding a violation of the Fourth
Amendment. . . ." 388 U.S. at 388 U. S. 79 -80.
In light of this and the fact that the Court expressly refused to
reexamine Olmstead and Goldman, I cannot read Silverman as overturning the interpretation stated very
plainly in Olmstead and followed in Goldman that
eavesdropping is not covered by the Fourth Amendment.

															The other "eroding" case cited in the Court's opinion is Warden v. Hayden, 387 U. S. 294 . It
appears that this case is cited for the proposition that the Fourth
Amendment applies to "intangibles," such as conversation, and the
following ambiguous statement is quoted from the opinion: "The
premise that property interests control the right of the Government
to search and seize has been discredited." 387 U.S. at 387 U. S. 304 .
But far from being concerned Page 389 U. S. 372 with eavesdropping, Warden v. Hayden upholds the
seizure of clothes, certainly tangibles by any definition. The
discussion of property interests was involved only with the common
law rule that the right to seize property depended upon proof of a
superior property interest.

															Thus, I think that, although the Court attempts to convey the
impression that, for some reason, today Olmstead and Goldman are no longer good law, it must face up to the
fact that these cases have never been overruled, or even "eroded."
It is the Court's opinions in this case and Berger which,
for the first time since 1791, when the Fourth Amendment was
adopted, have declared that eavesdropping is subject to Fourth
Amendment restrictions and that conversations can be "seized."* I
must align myself with all those judges who up to this year have
never been able to impute such a meaning to the words of the
Amendment. Page 389 U. S. 373 Since I see no way in which the words of the Fourth Amendment
can be construed to apply to eavesdropping, that closes the matter
for me. In interpreting the Bill of Rights, I willingly go as far
as a liberal construction of the language takes me, but I simply
cannot in good conscience give a meaning to words which they have
never before been thought to have and which they certainly do not
have in common ordinary usage. I will not distort the words of the
Amendment in order to "keep the Constitution up to date" or "to
bring it into harmony with the times." It was never meant that this
Court have such power, which, in effect, would make us a
continuously functioning constitutional convention.

															With this decision the Court has completed, I hope, its
rewriting of the Fourth Amendment, which started only recently when
the Court began referring incessantly to the Fourth Amendment not
so much as a law against unreasonable searches and
seizures as one to protect an individual's privacy. By clever word
juggling, the Court finds it plausible to argue that language aimed
specifically at searches and seizures of things that can be
searched and seized may, to protect privacy, be applied to
eavesdropped evidence of conversations that can neither be searched
nor seized. Few things happen to an individual that do not affect
his privacy in one way or another. Thus, by arbitrarily
substituting the Court's language, designed to protect privacy, for
the Constitution's language, designed to protect against
unreasonable searches and seizures, the Court has made the Fourth
Amendment its vehicle for holding all laws violative of the
Constitution which offend the Court's broadest concept of privacy.
As I said in Griswold v. Connecticut, 381 U.
S. 479 ,

															"The Court talks about a constitutional 'right of privacy' as
though there is some constitutional provision or provisions
forbidding any law ever to be passed which might abridge the
'privacy' Page 389 U. S. 374 of individuals. But there is not."

															(Dissenting opinion, at 381 U. S. 508 .) I made clear in that dissent my fear of
the dangers involved when this Court uses the "broad, abstract and
ambiguous concept" of "privacy" as a "comprehensive substitute for
the Fourth Amendment's guarantee against unreasonable searches
and seizures.'" ( See generally dissenting opinion at 381 U. S.
507 -527.)

															The Fourth Amendment protects privacy only to the extent that it
prohibits unreasonable searches and seizures of "persons, houses,
papers, and effects." No general right is created by the Amendment
so as to give this Court the unlimited power to hold
unconstitutional everything which affects privacy. Certainly the
Framers, well acquainted as they were with the excesses of
governmental power, did not intend to grant this Court such
omnipotent lawmaking authority as that. The history of governments
proves that it is dangerous to freedom to repose such powers in
courts.

															For these reasons, I respectfully dissent.

															* The first paragraph of my Brother HARLAN's concurring opinion
is susceptible of the interpretation, although probably not
intended, that this Court "has long held" eavesdropping to be a
violation of the Fourth Amendment and therefore "presumptively
unreasonable in the absence of a search warrant." There is no
reference to any long line of cases, but simply a citation to Silverman, and several cases following it, to establish
this historical proposition. In the first place, as I have
indicated in this opinion, I do not read Silverman as
holding any such thing, and, in the second place, Silverman was decided in 1961. Thus, whatever it held, it
cannot be said it "has [been] long held." I think my Brother HARLAN
recognizes this later in his opinion when he admits that the Court
must now overrule Olmstead and Goldman. In having
to overrule these cases in order to establish the holding the Court
adopts today, it becomes clear that the Court is promulgating new
doctrine instead of merely following what it "has long held." This
is emphasized by my Brother HARLAN's claim that it is "bad physics"
to adhere to Goldman. Such an assertion simply illustrates
the propensity of some members of the Court to rely on their
limited understanding of modern scientific subjects in order to fit
the Constitution to the times and give its language a meaning that
it will not tolerate.

Summary: The Supreme Court ruled that the government's use of an electronic listening device to record the petitioner's phone conversations from outside a phone booth violated the Fourth Amendment, as it infringed on the petitioner's reasonable expectation of privacy. The Court held that the Fourth Amendment protects people, not places, and thus, the absence of a physical intrusion does not preclude a Fourth Amendment violation. The Court reversed the conviction, finding that the surveillance was not conducted pursuant to a warrant procedure, which is a constitutional prerequisite for such electronic surveillance.