Charles Katz Case Analysis
As one of the most frequently cited cases in American law, the United States Supreme Court’s decision in Katz v. United States continues to enormously impact Fourth Amendment jurisprudence. Associate Justice John Marshall Harlan’s concurring opinion is perhaps the most widely remembered excerpt from the high court’s significant opinion. As the semi-centennial anniversary of the Katz decision approaches, this article celebrates the forward-thinking approach that Justice Harlan so giftedly annunciated in his concurrence.
Mentioned in virtually every criminal procedure casebook, the Katz decision is a jewel of criminal procedure that is studied year after year by law students across the country. An unaccustomed reader might assume that the facts of the case sprouted from a highbrowed spinoff of a 1950s mob film plot. Charles Katz was a well know sports handicapper from Los Angeles, California. As was his daily routine, Katz would wander from his apartment on the famous Sunset Boulevard to visit one of three nearby telephone booths, where he would place wagering calls to Miami and Boston. Although a chic way to make a living, Katz’s gambling antics ran afoul of the Federal Wire Act. Without a warrant, federal authorities recorded Katz’s illicit conversations using an electronic …show more content…
eavesdropping device after catching on to his phone booth shell game. Following his indictment and conviction, Katz appealed the ruling, arguing that the Fourth Amendment’s protection from “unreasonable searches and seizures” extends to cover warrantless electronic wiretaps. The appeal eventually fell before the Supreme Court.
On October 17, 1967, the parties made their arguments before a bench comprised of nine legal giants: Chief Justice Earl Warren and Associate Justices Hugo Black, William Brennan, William Douglas, Abe Fortas, John Marshall Harlan, Thurgood Marshall, Potter Stewart, and Byron White. Arguing for Katz as the petitioner, Attorney Harvey Schneider, who had been admitted to practice law only little more than four years prior, approached the lectern to propose a radical new idea in Fourth Amendment jurisprudence. In argument, Schneider conceded that “the question should [not] be determined as to whether or not you have an invasion of a constitutionally protected area.” Rather, he attempted to convince the justices “that the right to privacy follows the individual . . . whether or not he’s in a space enclosed by four walls and a ceiling and a roof, or in an automobile, or in any other physical location.” These words laid the ground stone for the test that Justice Harlan would come to favor and that would eventually become the law of the land.
When the opinion came down, Justice Stewart scribed a gallant opinion for the majority. Tipping his hat to Schneider’s argument, Justice Stewart stated that “the Fourth Amendment protects people, not places.” He went on to explain, “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Because Katz intended his call to be sheltered from the uninvited ear—even still if in a public telephone booth—the government’s eavesdropping activities violated his privacy, and his conviction was reversed. But Justice Stewart’s opinion did not go far enough; to at least one member of the court, it left room for further exploration.
While Justice Stewart’s majority opinion was intended to be the main act, indeed it was Justice Harlan’s concurring opinion that stole the spotlight. Justice Harlan agreed that the Fourth Amendment protects people, not places. Yet, like a wise professor teaching his students, he challenged the majority to hone its analysis and pontificated that the real question “is what protection it affords to those people.” In answering that question, it was there that Justice Harlan annunciated his famous two-part test: “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.’“ He continued to explain that the first prong of the test relates to the plain view doctrine. Evidence found in plain view is not protected under the Fourth Amendment because a person who exposes “objects, activities, or statements . . . to the ‘plain view’ of outsiders” cannot have a subjective intent to keep them private. The second prong is to be analyzed objectively by determining whether society recognizes and permits the person’s subjective expectation of privacy.
In a single footnote, Justice Harlan also declared that the court’s decision effectively overruled Olmstead v. United States, which prescribed a property-based approach for Fourth Amendment questions. This was a significant proposition because, in his own words, the Olmstead decision “essentially rested on the ground that conversations were not subject to the protection of the Fourth Amendment.” The footnote served to emphasize the notion that, like his colleagues in the majority, Justice Harlan believed the Fourth Amendment extends beyond physical intrusions to protect conversations that were expected to be safe from the uninvited ear, even when made in a public place like a telephone booth.
Despite lacking clear precedential value when Katz was decided, the Supreme Court unambiguously adopted Justice Harlan’s two-part test nearly twelve years later. In Smith v. Maryland, the court held that the installation and use of a dialed number recorder did not constitute a search under the Fourth Amendment. The court’s opinion was delivered by Associate Justice Harry Blackmun, who was joined by, among others, then-Associate Justice William Rehnquist, Justice Harlan’s successor. Justice Blackmun lauded Justice Harlan’s two-part test as the court’s “lodestar” in deciding the case, and he listed eight Supreme Court opinions that uniformly recognized the central principle of the Katz decision: “that the application of the Fourth Amendment depends on whether the person invoking its protection can claim a ‘justifiable,’ a ‘reasonable,’ or a ‘legitimate expectation of privacy’ that has been invaded by government action.” His praise for Justice Harlan’s concurrence extended further as he went on to say that this inquiry embraces the two-part test that Justice Harlan so “aptly” noted in Katz. Justice Blackmun then applied this test to the facts of the case, focusing his analysis on the objective standard, concluding, “Although subjective expectations cannot be scientifically gauged, it is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret.”
Like in the Smith decision, the court again focused its analysis on the objective criterion of the Katz test when it held in 1983 that police may use a radio transmitter to surveil a suspect. In the seminal case of United States v. Knotts, Justice Rehnquist, writing for the majority, concluded that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Thus, police surveillance conducted by means of a radio transmitter placed within a car did not violate the Fourth Amendment when the transmitter was used to gather the starting point, the stops made, and the final destination of the suspect’s travels. Justice Rehnquist relied heavily on Justice Harlan’s opinion in Katz, not only with reference to the two-part test, but particularly with regard to the overturning of Olmstead. From that, Justice Rehnquist gleaned that “notions of physical trespass based on the law of real property were not dispositive in Katz v. United States,” therefore reaching the conclusion that the physical placement of the radio transmitter was also not dispositive in Knotts.
Notwithstanding disagreement amongst the court regarding the objective prong of the Katz test, California v.
Ciraolo is another landmark case that displays the fingerprints of Justice Harlan’s concurrence. In that case, police flew a private over the respondent’s backyard to confirm the presence of marijuana plants that were protected by two fences. Chief Justice Warren Burger wrote for a sharply divided 5–4 majority, holding the aerial observation in that case did not constitute a search because it was “unreasonable for [the] respondent to expect that his marijuana plants were constitutionally protected from being observed with the naked eye from an altitude of 1,000
feet.”
With specific reference to Justice Harlan’s concurrence in Katz, Associate Justice Lewis Powell penned the dissent, criticizing the majority for ignoring Justice Harlan’s wisdom:
Concurring in Katz v. United States, Justice Harlan warned that any decision to construe the Fourth Amendment as proscribing only physical intrusions by police onto private property 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. Because the Court today ignores that warning in an opinion that departs significantly from the standard developed in Katz for deciding when a Fourth Amendment violation has occurred, I dissent.
Responding pointedly to these concerns, the majority saw Justice Harlan’s guidance as being narrower than the dissent:
Justice Harlan made it crystal clear that he was resting on the reality that one who enters a telephone booth is entitled to assume that his conversation is not being intercepted. This does not translate readily into a rule of constitutional dimensions that one who grows illicit drugs in his backyard is “entitled to assume” his unlawful conduct will not be observed by a passing aircraft—or by a power company repair mechanic on a pole overlooking the yard.
Regardless of the outcome of the case, Justice Harlan’s concurrence undoubtedly gave the Ciraolo court careful food for thought, even if almost two decades old. The Ciraolo case was arguably the first to truly challenge application of the Katz test in a modern world, particularly with respect to the reasonable expectation prong. Although the court was divided in its Ciraolo decision, the Katz test persevered.
Mentioned in virtually every criminal procedure casebook, the Katz decision is a jewel of criminal procedure that is studied year after year by law students across the country. An unaccustomed reader might assume that the facts of the case sprouted from a highbrowed spinoff of a 1950s mob film plot. Charles Katz was a well know sports handicapper from Los Angeles, California. As was his daily routine, Katz would wander from his apartment on the famous Sunset Boulevard to visit one of three nearby telephone booths, where he would place wagering calls to Miami and Boston. Although a chic way to make a living, Katz’s gambling antics ran afoul of the Federal Wire Act. Without a warrant, federal authorities recorded Katz’s illicit conversations using an electronic …show more content…
eavesdropping device after catching on to his phone booth shell game. Following his indictment and conviction, Katz appealed the ruling, arguing that the Fourth Amendment’s protection from “unreasonable searches and seizures” extends to cover warrantless electronic wiretaps. The appeal eventually fell before the Supreme Court.
On October 17, 1967, the parties made their arguments before a bench comprised of nine legal giants: Chief Justice Earl Warren and Associate Justices Hugo Black, William Brennan, William Douglas, Abe Fortas, John Marshall Harlan, Thurgood Marshall, Potter Stewart, and Byron White. Arguing for Katz as the petitioner, Attorney Harvey Schneider, who had been admitted to practice law only little more than four years prior, approached the lectern to propose a radical new idea in Fourth Amendment jurisprudence. In argument, Schneider conceded that “the question should [not] be determined as to whether or not you have an invasion of a constitutionally protected area.” Rather, he attempted to convince the justices “that the right to privacy follows the individual . . . whether or not he’s in a space enclosed by four walls and a ceiling and a roof, or in an automobile, or in any other physical location.” These words laid the ground stone for the test that Justice Harlan would come to favor and that would eventually become the law of the land.
When the opinion came down, Justice Stewart scribed a gallant opinion for the majority. Tipping his hat to Schneider’s argument, Justice Stewart stated that “the Fourth Amendment protects people, not places.” He went on to explain, “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Because Katz intended his call to be sheltered from the uninvited ear—even still if in a public telephone booth—the government’s eavesdropping activities violated his privacy, and his conviction was reversed. But Justice Stewart’s opinion did not go far enough; to at least one member of the court, it left room for further exploration.
While Justice Stewart’s majority opinion was intended to be the main act, indeed it was Justice Harlan’s concurring opinion that stole the spotlight. Justice Harlan agreed that the Fourth Amendment protects people, not places. Yet, like a wise professor teaching his students, he challenged the majority to hone its analysis and pontificated that the real question “is what protection it affords to those people.” In answering that question, it was there that Justice Harlan annunciated his famous two-part test: “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.’“ He continued to explain that the first prong of the test relates to the plain view doctrine. Evidence found in plain view is not protected under the Fourth Amendment because a person who exposes “objects, activities, or statements . . . to the ‘plain view’ of outsiders” cannot have a subjective intent to keep them private. The second prong is to be analyzed objectively by determining whether society recognizes and permits the person’s subjective expectation of privacy.
In a single footnote, Justice Harlan also declared that the court’s decision effectively overruled Olmstead v. United States, which prescribed a property-based approach for Fourth Amendment questions. This was a significant proposition because, in his own words, the Olmstead decision “essentially rested on the ground that conversations were not subject to the protection of the Fourth Amendment.” The footnote served to emphasize the notion that, like his colleagues in the majority, Justice Harlan believed the Fourth Amendment extends beyond physical intrusions to protect conversations that were expected to be safe from the uninvited ear, even when made in a public place like a telephone booth.
Despite lacking clear precedential value when Katz was decided, the Supreme Court unambiguously adopted Justice Harlan’s two-part test nearly twelve years later. In Smith v. Maryland, the court held that the installation and use of a dialed number recorder did not constitute a search under the Fourth Amendment. The court’s opinion was delivered by Associate Justice Harry Blackmun, who was joined by, among others, then-Associate Justice William Rehnquist, Justice Harlan’s successor. Justice Blackmun lauded Justice Harlan’s two-part test as the court’s “lodestar” in deciding the case, and he listed eight Supreme Court opinions that uniformly recognized the central principle of the Katz decision: “that the application of the Fourth Amendment depends on whether the person invoking its protection can claim a ‘justifiable,’ a ‘reasonable,’ or a ‘legitimate expectation of privacy’ that has been invaded by government action.” His praise for Justice Harlan’s concurrence extended further as he went on to say that this inquiry embraces the two-part test that Justice Harlan so “aptly” noted in Katz. Justice Blackmun then applied this test to the facts of the case, focusing his analysis on the objective standard, concluding, “Although subjective expectations cannot be scientifically gauged, it is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret.”
Like in the Smith decision, the court again focused its analysis on the objective criterion of the Katz test when it held in 1983 that police may use a radio transmitter to surveil a suspect. In the seminal case of United States v. Knotts, Justice Rehnquist, writing for the majority, concluded that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Thus, police surveillance conducted by means of a radio transmitter placed within a car did not violate the Fourth Amendment when the transmitter was used to gather the starting point, the stops made, and the final destination of the suspect’s travels. Justice Rehnquist relied heavily on Justice Harlan’s opinion in Katz, not only with reference to the two-part test, but particularly with regard to the overturning of Olmstead. From that, Justice Rehnquist gleaned that “notions of physical trespass based on the law of real property were not dispositive in Katz v. United States,” therefore reaching the conclusion that the physical placement of the radio transmitter was also not dispositive in Knotts.
Notwithstanding disagreement amongst the court regarding the objective prong of the Katz test, California v.
Ciraolo is another landmark case that displays the fingerprints of Justice Harlan’s concurrence. In that case, police flew a private over the respondent’s backyard to confirm the presence of marijuana plants that were protected by two fences. Chief Justice Warren Burger wrote for a sharply divided 5–4 majority, holding the aerial observation in that case did not constitute a search because it was “unreasonable for [the] respondent to expect that his marijuana plants were constitutionally protected from being observed with the naked eye from an altitude of 1,000
feet.”
With specific reference to Justice Harlan’s concurrence in Katz, Associate Justice Lewis Powell penned the dissent, criticizing the majority for ignoring Justice Harlan’s wisdom:
Concurring in Katz v. United States, Justice Harlan warned that any decision to construe the Fourth Amendment as proscribing only physical intrusions by police onto private property 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. Because the Court today ignores that warning in an opinion that departs significantly from the standard developed in Katz for deciding when a Fourth Amendment violation has occurred, I dissent.
Responding pointedly to these concerns, the majority saw Justice Harlan’s guidance as being narrower than the dissent:
Justice Harlan made it crystal clear that he was resting on the reality that one who enters a telephone booth is entitled to assume that his conversation is not being intercepted. This does not translate readily into a rule of constitutional dimensions that one who grows illicit drugs in his backyard is “entitled to assume” his unlawful conduct will not be observed by a passing aircraft—or by a power company repair mechanic on a pole overlooking the yard.
Regardless of the outcome of the case, Justice Harlan’s concurrence undoubtedly gave the Ciraolo court careful food for thought, even if almost two decades old. The Ciraolo case was arguably the first to truly challenge application of the Katz test in a modern world, particularly with respect to the reasonable expectation prong. Although the court was divided in its Ciraolo decision, the Katz test persevered.