The 4th Amendment, Search and Seizure

"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."

Below, is a court case that shows an example of applying the fourth amendment.

389 U.S. 347

Argued: October 17^th, 1967

Decided: December 18^th, 1967

Subjects: Searches and Seizures

Charles Katz was arrested for illegal gambling after he placed a call from a public phone booth in LA to place bets in Miami and Boston. Katz argued that the FBI, who had placed a wiretapping device on the phone booth, had violated his Fourth Amendment rights of privacy. The Court of Appeals sided against Katz, saying there was not enough evidence, but, after a Writ of Certiorari, the Supreme Court took up the case.

Does the Fourth Amendment extend protection to include a private conversation inside a public telephone booth? Also, is a conversation, which is not tangible, still protected under the Fourth Amendment? And finally, can the federal government use probable cause as the reason for wiretapping when it is impossible to obtain a search warrant for a conversation that has not been had?

Final Decision 7-1 (Marshall did not take part in decision.

Due to the decision of the Supreme Court, ruling in agreement with Katz, the Fourth Amendment does include privacy of conversations held inside a telephone booth. The Fourth Amendment also includes conversations, when held in privacy, shall be considered protected. The courts decision was based on the fact that even though the telephone booth was a public telephone the conversation was held with the assumption that it was private. Also, the court stated that while the FBI cannot obtain a warrant for listening to a conversation, they must still obtain a warrant for any wiretappings.

Simply put, the argument for conviction is this: The wiretapping did not violate the Fourth Amendment because a conversation is not a tangible item and because a telephone booth is a public location and cannot be considered private. Also, Katz was in fact committing a crime and should therefore be punished no matter how the evidence came into play.

Many believe that wiretapping does indeed violate the Fourth Amendment rights because the Fourth Amendment protects personal privacy. Even though a conversation is not tangible, it does belong to that person and is therefore considered to be private.

Douglas concurred with the ruling by stating that neither the President nor the Attorney General is a magistrate. A magistrate is a impartial mediator who is disinterested with the outcome of the activity. In this case, both the President and the Attorney General are directly connected to the outcome of the wiretapping. Thus, they cannot be involved with the decision of constitutionality.

Harlan concurred that "the Fourth Amendment protects people, not places," which, he explains, justifies Katz' case. Harlan says that even though the phone booth is open to the public, a person enters into the enclosed space with the assumption that his/her phone call will be private.

White notes that the Fourth Amendment may be bypassed in certain cases where National Security is at stake. However, he further explains that, in this case, National Security is not in danger and therefore neither the President nor the Attorney General, nor anyone who is not a magistrate, can activate a wiretapping based on probable cause because the situation is not extreme enough to warrant one.