SEARCH AND SEIZURE: COMPLICATED BY TECHNOLOGY

When the Constitution and the Bill of Rights were written over 200 years ago, the Founding Fathers could not have foreseen what the world would be like today. This created a problem, however, particularly in the area of search and seizure. In the 18th century there were no electronic devices. Today they are an integral part of our life.

There are now electronic devices capable of being used to hear conversations from a great distance. There are two basic kinds of electronic devices: bugs, which are tiny microphones able to pick up any conversation and send that conversation to another place, where they can be heard and recorded; and wiretaps, which involve tapping or cutting in on a telephone line in order to hear all conversations on a certain telephone.

Do these electronic devices violate our right to privacy Do these electronic devices violate our right to privacy? In 1928, in Olmstead v. U.S., the Supreme Court ruled that messages passed over the telephone wires are not within the protection of the 4th Amendment. The Court declared that a conversation is not a “thing” and that the 4th Amendment applied only to material things, such as a person, a house, papers, or other things. But in 1934, Congress passed the Federal Communications Act, which prohibited wiretapping of any communications without the approval of the sender.

Do you agree with the Supreme Court’s view that a conversation is not a “thing”? In what way is a bug or a wiretap like a police officer making a search?

KATZ V. UNITED STATES (1967) Mr. Katz was convicted of transmitting betting information by telephone from Los Angeles to Miami and Boston in violation of federal law. At the trial, the government was permitted, over Katz’s objection to introduce evidence of Katz’s end of the telephone conversations, overheard by FBI agents.

The agents had, without a warrant, attached an electronic listening and recording device to the outside of the public telephone booth from which Katz had made his calls. Katz’s appeal eventually reached the Supreme Court.

1. Using the previous information learned concerning search and seizure, if you were a lawyer for the government, what arguments would you use to convince the court that the bugging of the phone booth was legal? 2. Using the previous information learned concerning search and seizure, if you were Katz’s lawyer, what arguments would you use to convince the court that the bugging of the phone booth was illegal?

KATZ V. U.S. – DECISION “One who occupies a public telephone booth, shuts the door behind him and pays the toll that permits him to place a call, is surely entitled to assume that the words he utters into the mouthpiece will not be broadcasted to the whole world… The Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements overheard.

The Fourth Amendment protects people – and not simply ‘areas’ – against unreasonable searches and seizures… The Government’s activities in electronically listening to, and recording Katz's words, violated the privacy upon which he justifiably relied on while using the telephone booth and thus constituted a ‘search and seizure’ within the meaning of the Fourth Amendment. Judgment reversed. (Katz’s conviction was reversed)

BERGER V. NEW YORK (1967) Mr. Berger was convicted of conspiracy to commit bribery based upon tape recordings made from wiretaps the police had made. Although the police had obtained an eavesdropping warrant as required by law, Berger challenged his conviction on the grounds that the law allowed the wiretap to be issued for a period of 60 days and this, Berger felt, was too long and therefore illegal. Berger’s appeal eventually reached the Supreme Court.

Is a wiretap order for 60 days too long a period of time? Should police be required to go to a judge to get a warrant to bug or wiretap the same way they have to get a warrant to make a physical search? Is a wiretap order for 60 days too long a period of time?

BERGER V. NEW YORK – DECISION “Approval of eavesdropping for a two-month period is the equivalent of a series of intrusions – searches and seizures based upon a single showing of probable cause… During such long continuous (24 hours a day) period, the conversations of any and all persons coming into the area covered by the device will be seized indiscriminately and without regard to their connection to the crime under investigation.

In addition, the law permits, as was done here, extensions of the original two-month period – presumably for two months each – on a mere showing that such extension is ‘in the public interest’… Our concern with the statute here is whether it permits invasion of the home… contrary to the command of the Fourth Amendment. As it is written, we believe that it does.” Reversed.

NEW YORK STATE LAW Criminal Procedure Law, sections 700.10/.15 (excerpted) SECTION 700.10: EAVESDROPPING WARRANTS IN GENERAL

1. A justice may issue an eavesdropping warrant upon application of an applicant who is authorized by law to investigate, prosecute or participate in the prosecution of the particular designated offense which is the subject of the application.

2. No eavesdropping warrant may authorize or approve the interception of any communication for any period longer than is necessary to achieve the objective, or in any event longer than thirty days.

SECTION 700.15: EAVESDROPPING WARRANTS; WHEN ISSUABLE An eavesdropping warrant may issue only: Upon an appropriate application made in conformity with this article; and 2. Upon probable cause to believe that a particularly described person is committing, has committed, or is about to commit a particular designated offense; and

3. Upon probable cause to believe that particular communications concerning such offense will be obtained through eavesdropping; and 4. Upon a showing that normal investigative procedures have been tried and have failed, or reasonable appear to be unlikely to succeed if tried, or to be too dangerous to employ; and

5. Upon probable cause believe that the facilities from which, or the place where, the communications are to be intercepted, are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person.

QUESTIONS: Explain why the present New York state Law on eavesdropping warrants meets, or does not meet, the objection of the Supreme Court in the Berger case. 2. If the police in Katz had had an eavesdropping warrant, why do you think the court would have considered the search to be legal, or would the court have considered the search to still be illegal? Explain your answer using the appropriate Supreme Court decisions.