Katz v. United States: Wiretap Public Payphone (12/18/1967)

Katz v. United States

Does the Fourth Amendment protection against unreasonable searches and seizures require the police to obtain a search warrant in order to wiretap a public pay phone?

Argued: 10/17/1967

Decision Date: 12/18/1967

Decision Record: 7-1; no

Justices in Favor: Earl Warren, William Douglas, John Marshall, William Brennan, Potter Stewart, Byron White, Abe Fortas

Justices Dissenting: Hugo Black

Justice John Marshall did not partake in the decision of this case.

Effect of the Decision

This case clarifies that in order for the police to eavesdrop on anyone’s conversation, even in a public pay phone, you must require a search warrant like the Fourth Amendment says.

In Favor

In representation of Katz, attorney Harvey A. Schneider argued, “The facts of this case that is now before the Court are really quite simple.

The law applicable is something else again.

But the facts are as follows.

Mr. Katz was surveilled by agents of the Federal Bureau of Investigation for a period of approximately six days.

During that period of time, the surveillance was conducted by the use of a microphone being taped on top of a public telephone booth or a bank booth, so it was actually three booths.

One booth had been placed out of order by the telephone company and with the telephone company’s cooperation, the other two booths were used by Mr. Katz.

Sometimes he used one booth, sometimes he used another.

The tape was placed on top of the booth or the microphone was placed on top by a tape.

The FBI Agents had undoubtedly read their homework and had not physically penetrated into the area of the telephone booth.

Subsequently after about six days of surveillance, Mr. Katz was arrested.

He was then taken to his apartment building where his room was searched under a search warrant and numerous items were seized from Mr. Katz’s apartment.

The issues before the Court are fairly clear.

One, whether or not, the search and seizure or one of the interceptions of the telephone communications was prescribed by the Fourth Amendment; and two, whether or not, the warrant that was used to search his apartment building is constitutionally proper or constitutionally defective.”


Then in opposition, representing the United States, attorney John S. Martin, Jr. claims, “I think that the heart of petitioner’s argument to a certain extent is a radical change in the concept to the Fourth Amendment.

I think as Mr. Justice Brennan mentioned, it has been said in recent years that the Fourth Amendment protects more rights of privacy than rights in property.

However this Court has never held the right of privacy protected by the Fourth Amendment, does not exist within the framework of a constitutionally protected area.

As counsel mentioned, Mr. Justice Holmes speaking for unanimous Court, this Court’s opinion in Hester versus the United States, said very clearly, “The protections of the Fourth Amendment do not extend to an open field.

To adapt the test which counsel has suggested in this case would radically change the rules under which law enforcement has been operating for a long time with the approval of this Court, and I mean it in this sense.

It seems to me that to say that no matter where the activity takes place, it is protected by the Fourth Amendment.

The subjects to that Amendment not only the matter of what is overheard, but what is observed.

Assume, if you would please, the following situation.

Take the case that we have here.

And instead of the agents being interested in hearing what Mr. Marks said, but let’s assume it was a kidnapping case and they knew that this booth had been used on one occasion too by the kidnapper to call with regard to ransom.

And the kidnapper had scheduled to call for eight o’clock in the evening.

So as not to scare him off, the agents might station themselves in another building some distance away, and armed with binoculars perhaps even in infrared scope that would allow them to see at night, put this telephone booth under surveillance.

The kidnapper would approach that booth.

He might look around to make sure that he was secured, that nobody was observing him.

He would be wrong in his conclusion.

I assumed that under Mr. Mark’s — Mr. Schneider’s rationale that the fact that the agents saw him entered the booth, but they could not testify that that would be an unreasonable search and seizure.

I think that this Court has always recognized the doctrine.

That one is protected is the right to privacy which exists within a constitutionally protected area, within a home, within an office, some area in which the party involved has an interest.

It may not have to be a property interest of a tenant or an owner, maybe that of a guest in those premises.

But it exists only within the framework of a constitutionally protected area.

We submit on an analysis in that term what occurred here did not occur in a constitutionally protected area.

As we see it, there is no significant difference between the telephone booth involved in this case and an open field.

An occupant in a public telephone booth is just as subject to visual surveillance as a man standing in an open field.

These phone booths are neither designed nor are they considered to be totally sound proof.

It’s rather easy to overhear this I think all of us know.”


The majority opinion was written by Justice Stewart. He wrote, “These considerations do not vanish when the search in question is transferred from the setting of a home, an office, or a hotel room to that of a telephone booth. Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures. The government agents here ignored “the procedure of antecedent justification . . . that is central to the Fourth Amendment,’  a procedure that we hold to be a constitutional precondition of the kind of electronic surveillance involved in this case.”

In respectful dissent, Justice Black said in his opinion, “So far, I have attempted to state why I think the words of the Fourth Amendment prevent its application to eavesdropping. It is important now to show that this has been the traditional view of the Amendment’s scope since its adoption, and that the Court’s decision in this case, along with its amorphous holding in Berger last Term, marks the first real departure from that view.

The first case to reach this Court which actually involved a clear-cut test of the Fourth Amendment’s applicability to eavesdropping through a wiretap was, of course, Olmstead, supra. In holding that the interception of private telephone conversations by means of wiretapping was not a violation of the Fourth Amendment, this Court, speaking through Mr. Chief Justice Taft, examined the language of the Amendment and found, just as I do now, that the words could not be stretched to encompass overheard conversations:

The Amendment itself shows that the search is to be of material things — the person, the house, his papers or his effects. The description of the warrant necessary to make the proceeding lawful, is that it must specify the place to be searched and the person or things to be seized. . . .”

My Opinion:

In this case, I agree with the majority decision. Eavesdropping on one’s conversation, even in a public pay phone, is violating not only their privacy, but their Fourth Amendment rights, which clearly states, “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” By wiretapping a public pay phone to listen to a private conversation, you are not allowing them to be secure against “unreasonable searches,” much less use the information obtained unconstitutionally against them in court. Katz’s Fourth Amendment rights were infringed upon because eavesdropping on a conversation without a warrant to use against them in court is still considered an “unreasonable search.”

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

Leave a Reply

Your email address will not be published. Required fields are marked *