Fourth Amendment:

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.

For the Fourth Amendment to apply, there must be a “search” and “seizure” with a subsequent attempt to use what was seized judicially.1 Whether a search and seizure within the meaning of the Fourth Amendment has occurred, and whether a complainant’s interests were constitutionally infringed, often turns upon the complainant’s interest and whether the government officially abused it. In Entick v. Carrington, Lord Camden summarized British law on searches and seizures, writing:

The Court’s view of the Fourth Amendment as protecting property interests3 has informed its approach in numerous cases.4 For example, in Olmstead v. United States,5 the Court noted that the Fourth Amendment did not cover wiretapping because the defendant’s premises had not been physically invaded; the Court determined, however, that where there was an invasion—a technical trespass—the Fourth Amendment applied to electronic surveillance.6

With the invention of the microphone, telephone, and dictagraph recorder, government officers could “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 based on evidence gained by taps on telephone wires in violation of state law. On a 5-4 vote, the Court held that the Fourth Amendment did not cover wiretapping.7 Writing for the Court, Chief Justice William Taft relied on two lines of argument for the conclusion. First, because the Fourth Amendment was designed to protect one’s property interest in one’s premises, there was no search so long as there was no physical trespass on premises owned or controlled by the defendant.8 Second, the government had obtained all the evidence by listening, but intercepting a conversation could not qualify as a seizure because the Fourth Amendment referred only to seizing tangible items.9 Finally, violating state law did not render the evidence excludable, since the exclusionary rule operated only on evidence seized in violation of the Constitution.10

Six years after Olmstead, Congress enacted the Federal Communications Act (FCA). FCA Section 605 included a broadly worded proscription which the Court viewed as limiting governmental wiretapping.11 Thus, in Nardone v. United States,12 the Court held that wiretapping by federal officers could violate Section 605 if the officers both intercepted and divulged the contents of 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 Section 605 applied to intrastate as well as interstate transmissions,13 the ban appeared intended to govern state police officers, but the Court declined to apply either the statute or the due process clause to exclude such evidence from state criminal trials.14 The Court held that state efforts to legalize wiretapping pursuant to court orders to be precluded because Congress had intended to occupy the field completely through Section 605.15

The Court used Olmstead’s trespass rationale in cases concerning “bugging” premises rather than tapping telephones. Thus, in Goldman v. United States,16 the Court found no Fourth Amendment violation when a listening device was placed against a party wall in order to overhear conversations 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 Fourth Amendment.17 In so holding, the Court overruled, in effect, Olmstead’s second rationale that conversations could not be seized.

Footnotes

1

See, e.g., California v. Hodari D., 499 U.S. 621, 626 (1991) (explaining that, because there was no “seizure” of the defendant as he fled from police before being tackled, the drugs that he abandoned in flight could not be excluded as the fruits of an unreasonable seizure).

2

19 Howell’s State Trials 1029, 1035, 95 Eng. Reg. 807, 817–18 (1765).

3

Boyd v. United States, 116 U.S. 616, 627 (1886); Adams v. New York, 192 U.S. 585, 598 (1904).

4

Thus, the rule that “mere evidence” cannot be seized but only the fruits of crime, its instrumentalities, or contraband, turned upon the public’s right to possess the materials or the police power to make possession unlawful. Gouled v. United States, 255 U.S. 298 (1921), overruled by Warden v. Hayden, 387 U.S. 294 (1967). See also Davis v. United States, 328 U.S. 582 (1946). Standing to contest unlawful searches and seizures was based upon property interests, United States v. Jeffers, 342 U.S. 48 (1951); Jones v. United States, 362 U.S. 257 (1960), as well as upon the validity of a consent to search. Chapman v. United States, 365 U.S. 610 (1961); Stoner v. California, 376 U.S. 483 (1964); Frazier v. Culp, 394 U.S. 731, 740 (1969).

5

277 U.S. 438 (1928). See also Goldman v. United States, 316 U.S. 129, 135 (1942) (holding that a detectaphone placed against wall of adjoining room did not constitute a search or a seizure).

6

Silverman v. United States, 365 U.S. 505, 509–10 (1961) (holding that a “spike mike” pushed through a party wall until it hit a heating duct by police officers violated the Fourth Amendment, and conversations overheard by the officers were inadmissible).

7

Olmstead v. United States, 277 U.S. 438 (1928).

8

Id. at 464–65.

9

Id. at 464.

10

Among the dissenters were Justice Oliver Wendell Holmes, who characterized “illegal” wiretapping as “dirty business,” 277 U.S. at 470, and Justice Louis Brandeis. Id. at 485.

11

Ch. 652, 48 Stat. 1103 (1934), providing, inter alia, that “no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, purport, effect, or meaning of such intercepted communication to any person.” The legislative history did not indicate what Congress had in mind in including this language. The section, which appeared at 47 U.S.C. § 605, was rewritten by Title III of the Omnibus Crime Act of 1968, 82 Stat. 22, § 803, so that the “regulation of the interception of wire or oral communications in the future is to be governed by” the provisions of Title III. S. Rep. No. 1097, 90th Cong., 2d Sess. 107–08 (1968).

12

302 U.S. 379 (1937). Derivative evidence—evidence discovered as a result of information obtained through a wiretap—was similarly inadmissible (Nardone v. United States, 308 U.S. 338 (1939)) although the testimony of witnesses might be obtained by exploiting wiretap information. Goldstein v. United States, 316 U.S. 114 (1942). Eavesdropping on a conversation on an extension telephone with the consent of one of the parties did not violate the statute. Rathbun v. United States, 355 U.S. 107 (1957).

13

Weiss v. United States, 308 U.S. 321 (1939).

14

Schwartz v. Texas, 344 U.S. 199 (1952). At this time, evidence obtained in violation of the Fourth Amendment could be admitted in state courts. Wolf v. Colorado, 338 U.S. 25 (1949). Although Wolf was overruled by Mapp v. Ohio, 367 U.S. 643 (1961), it was some seven years later and after wiretapping itself had been made subject to the Fourth Amendment that Schwartzwas overruled in Lee v. Florida, 392 U.S. 378 (1968).

15

Bananti v. United States 355 U.S. 96 (1957).

16

316 U.S. 129 (1942).

17

Silverman v. United States, 365 U.S. 505 (1961). See also Clinton v. Virginia, 377 U.S. 158 (1964) (physical trespass found with regard to amplifying device stuck in a partition wall with a thumb tack).