The Early Evolution of the Fourth Amendment Standard A. Olmstead and Goldman 1. Olmstead v. United States 2. Goldman v. United States B. On Lee v. United States C. Silverman v. United States D. Katz Out of the Bag II: The Fourth Amendment and Electronic Surveillance A. The Infancy of Electronic Surveillance: Knotts and Karo 1. Knotts v. United States 2. United States v. Karo 3. Kyllo v. United States III: The Fourth Amendment and United States v. Jones A. United States v. Maynard: The Decision Below B. United States v. Jones: Background and Overview C. The Majority Opinion of Justice Scalia 1. Turning An Old Test Into A New Test 2. The Construct of the Trespass-First Test D. Justice Alito, Concurring in Judgment Only E. Justice Sotomayor Concurring IV: Conclusion At the apex of the pyramid comes Big Brother. Big Brother is infallible and all-powerful. Every success, every achievement, every victory, every scientific discovery, all knowledge, all wisdom, all happiness, all virtue, are held to issue directly from his leadership and inspiration. Nobody has ever seen Big Brother. He is a face on the hoardings, a voice on the telescreen. We may be reasonably sure that he will never die, and there is already considerable uncertainty as to when he was born. (3) Many thought that, with the United States Supreme Court's anticipated decision in United States v. Jones, (4) we would no longer harbor any uncertainty as to when Big Brother was born. Because motorists generally travel on public streets, some predicted the Court in Jones would hold that the totality of those public movements enjoy no Fourth Amendment protection. A parade of horribles, debated at water coolers everywhere, included the fear that law enforcement, based on a hunch, could attach a Global Positioning System ("GPS") device to any vehicle and discover the pattern and intricate details of a motorist's daily life over an extended period of time. This could allow law enforcement to track a driver's travels to a psychiatrist's office; to a mistress's home; to a political rally; or to an AIDS clinic. With the decision in Jones, however, it appears that we should have been less concerned with the birth of Big Brother and more concerned with the death of Katz v. United States. (5)
This article explores the Court's recent retreat from the two-part Katz test, and an unexpected shift in the considerations the Court declared it will primarily rely upon when evaluating whether a Fourth Amendment search has occurred. Part I recounts the Court's early evolutionary Fourth Amendment cases, leading to the establishment in Katz of the "reasonable expectation of privacy" test by which a Fourth Amendment violation has since been measured. Part II explores significant cases involving electronic surveillance--GPS in particular, but also electronic eavesdropping through wiretapping and other then-evolving technologies. Part III analyzes the Court's decision in United States v. Jones, the newly-minted test proposed by Justice Scalia in the majority opinion, and its potential impact on the test first formulated in Katz.
THE EARLY EVOLUTION OF THE FOURTH AMENDMENT STANDARD
One of the earliest cases in this area required the Court to determine whether persons had an expectation of privacy in sealed letters and papers sent through use of the United States mail. (6) The Court later addressed whether the Fourth Amendment extended to the interception of oral communications, and depended largely on the existence of a trespass upon a constitutionally protected area to find that a search had occurred. It was not until the decision in Katz v. United States that the Court abandoned the requirement of a physical trespass and focused instead on the protection of persons--not property. This Part will discuss briefly the historical context of the Fourth Amendment and its early evolution as technological advances ushered in an era of electronic surveillance.
OLMSTEAD AND GOLDMAN
Olmstead v. United States
In 1928, the Court addressed for the first time whether the Fourth Amendment applied to the content of telephone conversations intercepted by law enforcement through the use of a wiretap. (7) Olmstead involved three defendants who were among several co-conspirators charged with, and convicted of, violations of the National Prohibition Act. The evidence ultimately leading to their arrest was primarily gathered by intercepting the defendants' telephone messages. (8) The Court began its analysis by reviewing prior cases which involved entries into a home or office to search for and seize papers or other tangible objects. For example, in Ex parte Jackson (9) the items sought and seized by law enforcement consisted of sealed letters and packages in the mail. (10) In Weeks v. United States, (11) law enforcement entered and searched Weeks's home without a warrant, seizing various papers and articles as evidence to support of a charge of using the mails in furtherance of an illegal lottery enterprise. (12) In distinguishing Jackson while concurrently recognizing the protection afforded by the Fourth Amendment to warrantless searches and seizures of sealed letters placed in the United States mail, the Court observed:
It is plainly within the words of the [Fourth] [A]mendment to say that the unlawful rifling by a government agent of a sealed letter is a search and seizure of the sender's papers or effects. The letter is a paper, an effect, and in the custody of a government that forbids carriage, except under its protection. The United States takes no such care of telegraph or telephone messages as of mailed sealed letters. (13) The Court distinguished Weeks and the Fourth Amendment's protection against warrantless entries into one's home or office:
The amendment does not forbid what was done here. There was no searching. There was no seizure. The evidence was secured by the use of the sense of hearing and that only. There was no entry of the houses or offices of the defendants. By the invention of the telephone 50 years ago, and its application for the purpose of extending communications, one can talk with another at a far distant place. The language of the amendment cannot be extended and expanded to include telephone wires, reaching to the whole world from the defendant's house or office. The intervening wires are not part of his house or office, any more than are the highways along which they are stretched. (14) In affirming the decision of the Circuit Court of Appeals for the District of Columbia, the Court concluded:
Neither the cases we have cited nor any of the many federal decisions brought to our attention hold the Fourth Amendment to have been violated as against a defendant unless there has been an official search and seizure of his person or such a seizure of his papers or his tangible material effects or an actual physical invasion of his house "or curtilage" for the purpose of making a seizure. We think therefore, that the wire tapping here disclosed did not amount to a search or seizure within the meaning of the Fourth Amendment. (15) The Court appeared to focus on a requirement of physical intrusion--a trespass upon one's tangible property or into one's home. Without some government act triggering such an intrusion, the Fourth Amendment could not offer its protection.
Goldman v. United States
In 1942, the Court reaffirmed its holding in Olmstead, applying it to the placement of a listening device against a wall adjoining the defendant's office so that federal agents investigating bankruptcy fraud could overhear conversations between two conspiring defendants, Goldman and Shulman. (16) Federal agents learned of the conspiratorial plan defendants hatched and, with the assistance of the building manager, gained access to an office that shared a wall with Shulman's office. The agents initially installed a listening device into a small opening in the wall between the two adjoining offices, and a wire extended through the opening and into Shulman's office. This listening device, however, failed to operate. The federal agents employed their backup plan, which required use of a different device known as a "detectaphone." The Court described this device as "having a receiver so delicate as, when placed against the partition wall, to pick up sound waves originating in Shulman's office, and means for amplifying and hearing them." (17) With this detectaphone placed against--but not into or through--the wall, the agents overheard and, through the use of a stenographer present with them, transcribed the conversations which occurred between Goldman and Shulman as they talked in Shulman's office. The agents also overheard and transcribed Shulman's conversations from his office telephone.
The defendants contended that the words uttered by Shulman into a telephone receiver were the product of an unlawful search and seizure in violation of the Fourth Amendment. They also contended that it violated the Federal Communications Act of 1934. (18) Addressing the Fourth Amendment, the defendants argued that the installation of the first listening device was a trespass, because the device went through the partition wall and a wire extended into Shulman's office. Although that device was inoperable and did not permit the agents to overhear the conversations, the defendants contended that it was in the nature of a "continuing trespass" and aided the agents in the eventual use of the detectaphone. The Court rejected the "continuing trespass" argument and noted that the lower court had made a factual finding that the installation of the original device did not materially assist in the use of the detectaphone. The Court did not disturb this finding and concluded that no causally-connected trespass of Shulman's office had occurred. (19) With little fanfare and even less discussion, the Court also held that no violation of the Fourth Amendment occurred, observing that "no reasonable or...
United States v. Jones: does Katz still have nine lives?
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