Scope of the Rights Protected by the Fourth Amendment: Early Doctrine

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 to a particular set of facts, there must be a “search” and a “seizure,” occurring typically in a criminal case, with a subsequent attempt to use judicially what was seized.1 Footnote
See, e.g., California v. Hodari D., 499 U.S. 621, 626 (1991) (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). Whether there was a search and seizure within the meaning of the Amendment, and whether a complainant’s interests were constitutionally infringed, will often turn upon consideration of his interest and whether it was officially abused. What does the Amendment protect? Under the common law, there was no doubt. In Entick v. Carrington ,2 Footnote
19 Howell’s State Trials 1029, 1035, 95 Eng. Reg. 807, 817–18 (1765) . Lord Camden wrote: “The great end for which men entered in society was to secure their property. That right is preserved sacred and incommunicable in all instances where it has not been taken away or abridged by some public law for the good of the whole. . . . By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set foot upon my ground without my license but he is liable to an action though the damage be nothing . . . .” Protection of property interests as the basis of the Fourth Amendment found easy acceptance in the Supreme Court3 Footnote
Boyd v. United States, 116 U.S. 616, 627 (1886) ; Adams v. New York, 192 U.S. 585, 598 (1904) . and that acceptance controlled the decision in numerous cases.4 Footnote
Thus, the rule that “mere evidence” could not be seized but rather only the fruits of crime, its instrumentalities, or contraband, turned upon the question of the right of the public to possess the materials or the police power to make possession by the possessor 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 decision 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) . For example, in Olmstead v. United States ,5 Footnote
277 U.S. 438 (1928) . See also Goldman v. United States, 316 U.S. 129 (1942) (detectaphone placed against wall of adjoining room; no search and seizure). one of the two premises underlying the holding that wiretapping was not covered by the Amendment was that there had been no actual physical invasion of the defendant’s premises; where there had been an invasion—a technical trespass—electronic surveillance was deemed subject to Fourth Amendment restrictions.6 Footnote
Silverman v. United States, 365 U.S. 505 (1961) (spike mike pushed through a party wall until it hit a heating duct).

The Olmstead Case

With the invention of the microphone, the telephone, and the dictagraph 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.7 Footnote
Olmstead v. United States, 277 U.S. 438 (1928) . Chief Justice Taft, writing the opinion of the Court, relied on two lines of argument for the conclusion. First, because 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 excludable, since the exclusionary rule operated only on evidence seized in violation of the Constitution.8 Footnote
Among the dissenters were Justice Holmes, who characterized “illegal” wiretapping as “dirty business,” 277 U.S. at 470 , and Justice Brandeis, who contributed to his opinion the famous peroration about government as “the potent, the omnipresent, teacher” which “breeds contempt for law” among the people by its example. Id. at 485 . More relevant here was his lengthy argument rejecting the premises of the majority, an argument which later became the law of the land. (1) “To protect [the right to be left alone], every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.” Id. at 478 . (2) “There is, in essence, no difference between the sealed letter and the private telephone message. . . . The evil incident to invasion of the privacy of the telephone is far greater than that involved in tampering with the mails. Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded and all conversations between them upon any subject . . . may be overheard.” Id. at 475–76 .

Federal Communications Act

Six years after the decision in Olmstead , Congress enacted the Federal Communications Act and included in § 605 of the Act a broadly worded proscription on which the Court seized to place some limitation upon governmental wiretapping.9 Footnote
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.” Nothing in the legislative history indicated 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) . Thus, in Nardone v. United States ,10 Footnote
302 U.S. 379 (1937) . Derivative evidence, that is, 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 through the exploitation of 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) . the Court held that wiretapping by federal officers could violate § 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 § 605 applied to intrastate as well as interstate transmissions,11 Footnote
Weiss v. United States, 308 U.S. 321 (1939) . 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.12 Footnote
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 Schwartz was overruled in Lee v. Florida, 392 U.S. 378 (1968) . State efforts to legalize wiretapping pursuant to court orders were held by the Court to be precluded by the fact that Congress in § 605 had intended to occupy the field completely to the exclusion of the states.13 Footnote
Bananti v. United States, 355 U.S. 96 (1957) .

Nontelephonic Electronic Surveillance

The trespass rationale of Olmstead was used in cases dealing with “bugging” of premises rather than with tapping of telephones. Thus, in Goldman v. United States ,14 Footnote
316 U.S. 129 (1942) . the Court found no Fourth Amendment violation when a listening device was placed against a party wall so 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.15 Footnote
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). 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.

Footnotes 1 See, e.g., California v. Hodari D., 499 U.S. 621, 626 (1991) (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” could not be seized but rather only the fruits of crime, its instrumentalities, or contraband, turned upon the question of the right of the public to possess the materials or the police power to make possession by the possessor 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 decision 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 (1942) (detectaphone placed against wall of adjoining room; no search and seizure). 6 Silverman v. United States, 365 U.S. 505 (1961) (spike mike pushed through a party wall until it hit a heating duct). 7 Olmstead v. United States, 277 U.S. 438 (1928) . 8 Among the dissenters were Justice Holmes, who characterized “illegal” wiretapping as “dirty business,” 277 U.S. at 470 , and Justice Brandeis, who contributed to his opinion the famous peroration about government as “the potent, the omnipresent, teacher” which “breeds contempt for law” among the people by its example. Id. at 485 . More relevant here was his lengthy argument rejecting the premises of the majority, an argument which later became the law of the land. (1) “To protect [the right to be left alone], every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.” Id. at 478 . (2) “There is, in essence, no difference between the sealed letter and the private telephone message. . . . The evil incident to invasion of the privacy of the telephone is far greater than that involved in tampering with the mails. Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded and all conversations between them upon any subject . . . may be overheard.” Id. at 475–76 . 9 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.” Nothing in the legislative history indicated 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) . 10 302 U.S. 379 (1937) . Derivative evidence, that is, 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 through the exploitation of 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) . 11 Weiss v. United States, 308 U.S. 321 (1939) . 12 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 Schwartz was overruled in Lee v. Florida, 392 U.S. 378 (1968) . 13 Bananti v. United States, 355 U.S. 96 (1957) . 14 316 U.S. 129 (1942) . 15 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).

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