CRS Annotated Constitution
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Electronic Surveillance and the Fourth Amendment
The Olmstead Case.—With the invention of the microphone, the telephone, and the dictograph recorder, it became possible to “eavesdrop” with much greater secrecy and expediency. Inevitably, the use of electronic devices in law enforcement was challenged, and in 1928 the Court reviewed convictions obtained on the basis of evidence gained through taps on telephone wires in violation of state law. On a five–to– four vote, the Court held that wiretapping was not within the confines of the Fourth Amendment.131 Chief Justice Taft, writing the opinion of the Court, relied on two lines of argument for the conclusion. First, inasmuch as the Amendment was designed to protect one’s property interest in his premises, there was no search so long as there was no physical trespass on premises owned or controlled by a defendant. Second, all the evidence obtained had been secured by hearing, and the interception of a conversation could not qualify as a seizure, for the Amendment referred only to the seizure of tangible items. Furthermore, the violation of state law did not render the evidence excludible, since the exclusionary rule operated only on evidence seized in violation of the Constitution.132[p.1251]
Federal Communications Act.—Six years after the decision in the Olmstead case, Congress enacted the Federal Communications Act and included in Sec. 605 of the Act a broadly worded proscription on which the Court seized to place some limitation upon governmental wiretapping.133 Thus, in Nardone v. United States,134 the Court held that wiretapping by federal officers could violate Sec. 605 if the officers both intercepted and divulged the contents of the conversation they overheard, and that testimony in court would constitute a form of prohibited divulgence. Such evidence was therefore excluded, although wiretapping was not illegal under the Court’s interpretation if the information was not used outside the governmental agency. Because Sec. 605 applied to intrastate as well as interstate transmissions,135 there was no question about the applicability of the ban to state police officers, but the Court declined to apply either the statute or the due process clause to require the exclusion of such evidence from state criminal trials.136 State efforts to legalize wiretapping pursuant to court orders were held by the Court to be precluded by the fact that Congress in Sec. 605 had intended to occupy the field completely to the exclusion of the States.137
Nontelephonic Electronic Surveillance.—The trespass rationale of Olmstead was utilized in cases dealing with “bugging” of premises rather than with tapping of telephones. Thus, in Goldman v. United States,138 the Court found no Fourth Amendment violation when a listening device was placed against a party wall so[p.1252]that conversations were overheard on the other side. But when officers drove a “spike mike” into a party wall until it came into contact with a heating duct and thus broadcast defendant’s conversations, the Court determined that the trespass brought the case within the Amendment.139 In so holding, the Court, without alluding to the matter, overruled in effect the second rationale of Olmstead, the premise that conversations could not be seized.
The Berger and Katz Cases.—In Berger v. New York,140 the Court confirmed the obsolesence of the alternative holding in Olmstead that conversations could not be seized in the Fourth Amendment sense.141 Berger held unconstitutional on its face a state eavesdropping statute under which judges were authorized to issue warrants permitting police officers to trespass on private premises to install listening devices. The warrants were to be issued upon a showing of “reasonable ground to believe that evidence of crime may be thus obtained, and particularly describing the person or persons whose communications, conversations or discussions are to be overheard or recorded.” For the five–Justice majority, Justice Clark discerned several constitutional defects in the law. “First, . . . eavesdropping is authorized without requiring belief that any particular offense has been or is being committed; nor that the ‘property’ sought, the conversations, be particularly described.
“The purpose of the probable–cause requirement of the Fourth Amendment to keep the state out of constitutionally protected areas until it has reason to believe that a specific crime has been or is being committed is thereby wholly aborted. Likewise the statute’s failure to describe with particularity the conversations sought gives the officer a roving commission to ‘seize’ any and all conversations. It is true that the statute requires the naming of ‘the person or persons whose communications, conversations or discussions are to be overheard or recorded. . . .’ But this does no more than identify the person whose constitutionally protected area is to be invaded rather than ‘particularly describing’ the communications, conversations, or discussions to be seized. . . . Secondly, authorization of eavesdropping for a two–month period is the equivalent of a series of intrusions, searches, and seizures pursuant to a single showing of probable cause. Prompt execution is also avoided. During such a long and continuous (24 hours a day) period the con[p.1253]versations of any and all persons coming into the area covered by the device will be seized indiscriminately and without regard to their connection with the crime under investigation. Moreover, the statute permits. . . extensions of the original two–month period—presumably for two months each—on a mere showing that such extension is ‘in the public interest.’. . . Third, the statute places no termination date on the eavesdrop once the conversation sought is seized. . . . Finally, the statute’s procedure, necessarily because its success depends on secrecy, has no requirement for notice as do conventional warrants, nor does it overcome this defect by requiring some showing of special facts. On the contrary, it permits unconsented entry without any showing of exigent circumstances. Such a showing of exigency, in order to avoid notice, would appear more important in eavesdropping, with its inherent dangers, than that required when conventional procedures of search and seizure are utilized. Nor does the statute provide for a return on the warrant thereby leaving full discretion in the officer as to the use of seized conversations of innocent as well as guilty parties. In short, the statute’s blanket grant of permission to eavesdrop is without adequate judicial supervision or protective procedures.”142
Both Justices Black and White in dissent accused the Berger majority of so construing the Fourth Amendment that no wiretapping– eavesdropping statute could pass constitutional scrutiny,143 and in Katz v. United States,144 the Court in an opinion by one of the Berger dissenters, Justice Stewart, modified some of its language and pointed to Court approval of some types of statutorily–authorized electronic surveillance. Just as Berger had confirmed that one rationale of the Olmstead decision, the inapplicability of “seizure” to conversations, was no longer valid, Katz disposed of the other rationale. In the latter case, officers had affixed a listening device to the outside wall of a telephone booth regularly used by Katz and activated it each time he entered; since there had been no physical trespass into the booth, the lower courts held the Fourth Amendment not relevant. The Court disagreed, saying that “once it is recognized that the Fourth Amendment protects peo[p.1254]ple—and not simply ‘areas’—against unreasonable searches and seizures, it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure.”145 Because the surveillance of Katz’s telephone calls had not been authorized by a magistrate, it was invalid; however, the Court thought that “it is clear that this surveillance was so narrowly circumscribed that a duly authorized magistrate, properly notified of the need for such investigation, specifically informed of the basis on which it was to proceed, and clearly apprised of the precise intrusion it would entail, could constitutionally have authorized, with appropriate safeguards, the very limited search and seizure that the Government asserts in fact took place.”146 The notice requirement, which had loomed in Berger as an obstacle to successful electronic surveillance, was summarily disposed of.147 Finally, Justice Stewart observed that it was unlikely that electronic surveillance would ever come under any of the established exceptions so that it could be conducted without prior judicial approval.148[p.1255]
Following Katz, Congress enacted in 1968 a comprehensive statute authorizing federal officers and permitting state officers pursuant to state legislation complying with the federal law to seek warrants for electronic surveillance to investigate violations of prescribed classes of criminal legislation.149 The Court has not yet had occasion to pass on the federal statute and to determine whether its procedures and authorizations comport with the standards sketched in Osborn, Berger, and Katz or whether those standards are somewhat more flexible than they appear to be on the faces of the opinions.150
Warrantless “National Security” Electronic Surveillance.—In Katz v. United States,151 Justice White sought to preserve for a future case the possibility that in “national security cases” electronic surveillance upon the authorization of the President or the Attorney General could be permissible without prior judicial approval. The Executive Branch then asserted the power to wiretap and to “bug” in two types of national security situations, against domestic subversion and against foreign intelligence operations, first basing its authority on a theory of “inherent” presidential power and then in the Supreme Court withdrawing to the argument that such surveillance was a “reasonable” search and seizure and therefore valid under the Fourth Amendment. Unanimously, the Court held that at least in cases of domestic subversive investigations, compliance with the warrant provisions of the Fourth Amendment was required.152 Whether or not a search was[p.1256]reasonable, wrote Justice Powell for the Court, was a question which derived much of its answer from the warrant clause; except in a few narrowly circumscribed classes of situations, only those searches conducted pursuant to warrants were reasonable. The Government’s duty to preserve the national security did not override the gurarantee that before government could invade the privacy of its citizens it must present to a neutral magistrate evidence sufficient to support issuance of a warrant authorizing that invasion of privacy.153 This protection was even more needed in “national security cases” than in cases of “ordinary” crime, the Justice continued, inasmuch as the tendency of government so often is to regard opponents of its policies as a threat and hence to tread in areas protected by the First Amendment as well as by the Fourth.154 Rejected also was the argument that courts could not appreciate the intricacies of investigations in the area of national security nor preserve the secrecy which is required.155
The question of the scope of the President’s constitutional powers, if any, remains judicially unsettled.156 Congress has acted, however, providing for a special court to hear requests for warrants for electronic surveillance in foreign intelligence situations, and permitting the President to authorize warrantless surveillance to[p.1257]acquire foreign intelligence information provided that the communications to be monitored are exclusively between or among foreign powers and there is no substantial likelihood any “United States person” will be overheard.157
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