THE CASE FOR KATZ: THE IMPORTANCE OF THE CONTINUED APPLICATION AND REFORM OF THE KATZ TEST IN THE 21 (ST) CENTURY.

• Author: Bordelon, Matthew J.

TABLE OF CONTENTS INTRODUCTION 41 I. THE HISTORY OF KATZ AND THE MODERN DOCTRINE 43 A. Pre-Katz Fourth Amendment Law 43 1. Olmstead v. United States 43 2. Goldman v. United States 44 3. Silverman v. United States 44 B. The Advent of the Katz Test 46 C. Post-Katz Fourth Amendment Law 47 II. APPLYING KATZ TO CASES INVOLVING NOVEL TECHNOLOGIES 48 A. California v. Ciraolo 48 B. Kyllo v. United States 49 C. Carpenter v. United States and the Ensuing Implications 50 1. Carpenter v. United States 50 2. The Carpenter Dissents 51 3. The Chopping Bloc 53 III. THE PUBLIC INTEREST IN THE KATZ TEST REMAINING IN EFFECT 53 A. The Right to Privacy 54 B. The Necessity of Katz to Protect the Right to Privacy 54 IV. THE MUCH-NEEDED KATZ TEST UPDATE 57 A. Much Needed--Kerr's Equilibrium-Adjustment Theory 58 B. The Update--The Normative Katz Test 58 C. The Proposed Remedy 60 D. The Proposed Remedy Addresses the Concerns of the Carpenter Dissenters 60 CONCLUSION 61 INTRODUCTION

The Fourth Amendment provides 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." (1) The Fourth Amendment, having been ratified in 1791, long predates many of the search and seizure technologies and procedures which have become commonplace in our society today. Accordingly, the Supreme Court has continued to interpret the Fourth Amendment to ensure that as technology advances, the people do not give up any of the protections afforded them by the Fourth Amendment. (2)

For many years, the Court exclusively employed a property-based approach in their Fourth Amendment analysis. (3) Under this approach, in determining whether a Fourth Amendment violation had occurred, the Court would look at whether there was a physical intrusion of a constitutionally protected area. (4) Physical intrusion generally followed the principles of trespass law. (5) A constitutionally protected area could be any of those things enumerated in the Fourth Amendment: a person's "person[], houses, papers, or effects." (6)

As technology advanced, soon the law was forced to change in order to ensure that the right of the people was not diminished. In Katz v. United States, law enforcement had performed a warrantless eavesdropping via an electronic listening device attached to the outside of a public phone booth. (7) While the parties framed the issue as whether the phone booth was a constitutionally protected area, (8) the Court rejected that framing of the issue. (9) In a landmark decision, the Court recognized that the Fourth Amendment protects "people, not places." (10) They held that where a person has a subjective expectation of privacy which society is prepared to accept as reasonable, a search occurs when law enforcement violates that expectation. (11) Later, in United States v. Jones, the Court recognized that Katz did not replace the property approach, but rather, augmented it. (12) Accordingly, under current Fourth Amendment law, a Fourth Amendment violation can be found under either the property-based approach or the Katz test. (13)

Technology continued to develop, and soon the Court was again faced with novel Fourth Amendment questions. Recently, in Carpenter v. United States, the Court was faced with the issue of whether the warrantless collection of a defendant's cell-site location information (CSLI) from a third party violated the Fourth Amendment. (14) The Court answered the question in the affirmative, holding that because of the pervasive and encyclopedic nature of CSLI, its warrantless collection would violate a person's reasonable expectation of privacy and that a warrant would be required to obtain it. (15)

While the majority in this 5-4 opinion appeared to deliver a victory for many privacy rights proponents, the dissents suggest a grave danger that Fourth Amendment law is faced with.

Specifically, several dissenters in Carpenter appeared to suggest that Katz should be done away with, claiming that, inter alia, it has no basis in the text of the constitution. (16) In light of modern surveillance techniques and technology, it quickly becomes evident that doing away with the Katz test would raise grave concerns because doing so would leave the people with only a property-based remedy in the context of the Fourth Amendment--an approach which would leave the people virtually unprotected in our modern society.

With the naturally anticipated changes in the composition of the Court over the next few years, and an ever-uncertain political projection being directly attached to those appointments, one must wonder whether Katz is on the chopping block. This paper will first detail the history of Fourth Amendment law as to include the evolution of the Katz test and the current state of Fourth Amendment law. Then it will contemplate the necessity of preserving the Katz test as a viable Fourth Amendment protection considering modern life and the corresponding technological advances. Finally, this paper will propose changes to the Katz test which will enhance both the test's ease of application and its effectiveness.

1. THE HISTORY OF KATZ AND THE MODERN DOCTRINE

   This section seeks to provide a broad overview of the history of the Fourth Amendment relevant to Katz, leading up to the core of our modern doctrine. First, it will detail how the Court historically approached Fourth Amendment cases by applying the property-based approach, which was the sole approach from the founding era until the 1960's. Then, it will cover the advent of the Katz test, which introduced into modern Fourth Amendment law a totally distinct and novel approach. Finally, this section will conclude with the post-Katz decision that has brought the law to its current state, so as to provide a basic idea of the modern doctrine.

   1. Pre-Katz Fourth Amendment Law

      1. Olmstead v. United States

         Nearly one-hundred years ago, the Court was still solely employing the founding-era property-based approach in their determination of whether the Fourth Amendment had been violated. In the 1928 case Olmstead v. United States, federal prohibition officers had caused small wires to be placed alongside the ordinary wires of telephone lines connecting the petitioners' houses (and an office) to the telephone network. (17) Notably, the installation of these wires was made "without trespass upon any property of the petitioners." (18) As a result of this installation, the telephone communications of the petitioners were concurrently transmitted, via these additional wires, to the federal officers, who were then able to monitor the communications of the petitioners and document such as evidence. (19) This evidence was used in the conviction of the petitioners. (20)

         The Court, considering the issue of "whether the use of evidence of private telephone conversations between the defendants and others, intercepted by means of wiretapping, amounted to a violation of the Fourth and Fifth Amendments," (21) answered the question in the negative, finding that such did not amount to a Fourth Amendment violation. (22) Specifically, the Court reasoned that there had been no search or seizure of the petitioner's person, papers, or tangible material effects, nor had there been "an actual physical invasion of his house 'or curtilage' for the purpose of making a seizure." (23)

         The Olmstead Court recognized language from Carroll v. United States, acknowledging that "'[t]he Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests, as well as the interest and rights of individual citizens.'" (24) Going further, the Olmstead Court recognized that in light of advancing technology, the Fourth Amendment was "to be liberally construed to effect the purpose of the framers of the Constitution in the interest of liberty." (25) Such being the case, the Court declined to depart from the trespass approach set forth in the jurisprudence of the time, concluding that even embracing such a view, the Court could not "justify enlargement of the language [of the Fourth Amendment] 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." (26)

      2. Goldman v. United States

         Likewise, in 1942, the Court in Goldman v. United States reaffirmed the notion that absent a physical trespass, no Fourth Amendment violation could be produced. In Goldman, federal agents utilized a detectaphone to overhear conversations taking place inside of the petitioner's office. (27) To do so, the agents gained access to the adjoining office and placed the detectaphone against the adjoining wall. (28) Notably, prior to the use of the detectaphone, the agents had attempted to install a different eavesdropping device inside of the office, but the device failed, and the detectaphone was then substituted instead. (29)

         The Court found that the use of the detectaphone produced no Fourth Amendment violation. (30) The Court recognized the fact that the installation of the initial device may have constituted a trespass but found it immaterial in that that device was not the evidence producing one--the detectaphone was. (31) Following the reasoning in Olmstead, because no physical trespass was committed in utilizing the detectaphone, no Fourth Amendment violation was found. (32)

      3. Silverman v. United States

         Nearly twenty years later, however, steam was beginning to pick up for a departure from the property-based approach. While the 1961 decision in Silverman v. United States would fall short of actually implementing such change, that change was suddenly visible on the horizon. The evidence of such was found in the Justice Douglas's concurrence, where the shortcomings of the property-based approach in certain contexts were clearly marked. (33) In Silverman, police officers who suspected...