389 U.S. 347 (1967)
The petitioner was convicted in the District Court for the Southern District of California.1 He faced an eight-count indictment charging him with transmitting wagering information by telephone from Los Angeles to Miami and Boston in violation of a federal statute.2 At trial the Government was permitted, over the petitioner's objection, to introduce evidence of the petitioner's end of telephone conversations.3 FBI agents had attached an electronic listening and recording device to the outside of the public telephone booth from which he had placed his calls.4 The Court of Appeals affirmed the conviction.5 It rejected the contention that the recordings had been obtained in violation of the Fourth Amendment because there was no physical entrance into the area occupied by the petitioner.6
The Supreme Court granted certiorari to consider the constitutional questions thus presented.7 Based upon previous visual observations of the petitioner, the agents correctly predicted he would use the booth for several minutes at approximately the same time each morning.8 The petitioner was subjected to electronic surveillance only during this predetermined period.9 Six recordings, averaging some three minutes each, were obtained and admitted in evidence.10
They preserved the petitioner's end of conversations concerning placing bets and receiving wagering information.11 On the single occasion when the statements of another person were inadvertently intercepted, the agents refrained from listening to them.12 The telephone booth was made partly of glass.13 The petitioner was as visible after he entered it as he would have been if he had remained outside.14
The agents confined their surveillance to the brief periods during which he used the booth and took great care to overhear only the petitioner's conversations.15
Whether the electronic surveillance of the petitioner's conversations from a public telephone booth without physical penetration into the booth violated the Fourth Amendment?16
The Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not protected. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.17 The Court has acknowledged that the Fourth Amendment protects people and not simply areas against unreasonable searches and seizures.18 It becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into an enclosure.19 The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth.20 Thus the activities constituted a search and seizure within the meaning of the Fourth Amendment.21
Yes. The petitioner occupied the telephone booth.22 He shut the door behind him and paid the toll that permitted him to place a call.23 He was therefore entitled to assume that the words he uttered into the mouthpiece would not be broadcast to the world.24 The agents attached an electronic listening and recording device to the outside of the public telephone booth and obtained six recordings of the petitioner's end of conversations concerning placing bets and receiving wagering information.25 The telephone booth was made partly of glass. The petitioner was as visible after he entered it as he would have been if he had remained outside. Yet the petitioner sought to exclude not the intruding eye but the uninvited ear.26
The electronic device employed did not penetrate the wall of the booth.27 That fact can have no constitutional significance because the Fourth Amendment protects people and not simply areas.28
The electronic surveillance violated the Fourth Amendment.29
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Justice Harlan joined the opinion of the Court and read it to hold only that an enclosed telephone booth is an area where, like a home and unlike a field, a person has a constitutionally protected reasonable expectation of privacy.30 Electronic as well as physical intrusion into a place that is in this sense private may constitute a violation of the Fourth Amendment.31 The invasion of a constitutionally protected area by federal authorities is presumptively unreasonable in the absence of a search warrant.32
He explained the twofold requirement that a person must have exhibited an actual subjective expectation of privacy and that expectation must be one that society is prepared to recognize as reasonable.33 The critical fact in this case is that one who occupies a telephone booth, shuts the door behind him, and pays the toll is entitled to assume his conversation is not intercepted.34
Whether the absence of physical intrusion into the telephone booth precludes Fourth Amendment protection for the recorded conversations?35
The premise that property interests control the right of the Government to search and seize has been discredited.36 The Court has departed from the narrow view on which earlier decisions rested.37 It has expressly held that the Fourth Amendment governs not only the seizure of tangible items but extends as well to the recording of oral statements overheard without any technical trespass under local property law.3839 The underpinnings of the earlier trespass-based decisions have been eroded by subsequent decisions and can no longer be regarded as controlling.40
No. The absence of physical penetration was at one time thought to foreclose Fourth Amendment inquiry since that Amendment had been thought to limit only searches and seizures of tangible property.41 That premise has been discredited.42 The agents attached the device to the outside of the booth without any physical entrance into the area occupied by the petitioner.43 Yet the surveillance still constituted a search and seizure because the Fourth Amendment protects people and not places and its reach cannot turn upon the presence or absence of a physical intrusion into an enclosure.44
The absence of physical intrusion does not preclude Fourth Amendment protection.45
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Joined by Justice Brennan
Justice Douglas joined the Court's opinion but wrote separately to reply to the separate concurring opinion of Justice White.46 He viewed it as a wholly unwarranted green light for the Executive Branch to resort to electronic eavesdropping without a warrant in cases which the Executive Branch itself labels national security matters.47 He stressed that neither the President nor the Attorney General is a magistrate.48
In matters where they believe national security may be involved they are not detached, disinterested, and neutral as a court or magistrate must be.49 There is no distinction under the Fourth Amendment between types of crimes.50
Whether the government's electronic listening and recording of conversations in a public telephone booth without prior judicial authorization complied with constitutional standards?51
Searches conducted without warrants have been held unlawful notwithstanding facts showing probable cause, for the Constitution requires that the deliberate, impartial judgment of a judicial officer be interposed between the citizen and the police.52 Over and again this Court has emphasized that the mandate of the Fourth Amendment requires adherence to judicial processes.53 Searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable subject only to a few specifically established and well-delineated exceptions.54 The government agents here ignored the procedure of antecedent justification that is central to the Fourth Amendment, a procedure that is a constitutional precondition of the kind of electronic surveillance involved in this case.55
No. The agents began electronic surveillance only after investigation had established a strong probability that the petitioner was using the telephone to transmit gambling information.56 The surveillance was limited in scope and duration to the specific purpose of establishing the contents of the petitioner's unlawful telephonic communications.57 The agents confined their surveillance to the brief periods during which he used the booth and took great care to overhear only the petitioner's conversations. Accepting the Government's account as accurate, the surveillance was so narrowly circumscribed that a duly authorized magistrate could constitutionally have authorized it.58
The agents acted with restraint imposed by themselves and not by a judicial officer.59 They were not required before commencing the search to present their estimate of probable cause for detached scrutiny by a neutral magistrate.60
The surveillance without prior judicial authorization did not comply with constitutional standards.61
Related opinions on this issue
Justice White agreed that the official surveillance of the petitioner's telephone conversations in a public booth must be subjected to the test of reasonableness under the Fourth Amendment.62 On the record before us the particular surveillance undertaken was unreasonable absent a warrant properly authorizing it.63 He noted the Court's acknowledgement that there are circumstances in which it is reasonable to search without a warrant.64
Today's decision does not reach national security cases.65 Wiretapping to protect the security of the Nation has been authorized by successive Presidents.66 The warrant procedure and the magistrate's judgment should not be required if the President of the United States or his chief legal officer, the Attorney General, has considered national security requirements and authorized electronic surveillance as reasonable.67
Whether the Fourth Amendment applies to the recording of oral statements overheard without any technical trespass under local property law?68
The Fourth Amendment governs not only the seizure of tangible items but extends as well to the recording of oral statements overheard without any technical trespass under local property law. The protection of a person's general right to privacy is left largely to the law of the individual States.69 The Fourth Amendment protects individual privacy against governmental intrusion.70 Its protections go further and often have nothing to do with privacy at all.71
Yes. The agents attached an electronic listening and recording device to the outside of the public telephone booth without any physical entrance into the area occupied by the petitioner and without any technical trespass under local property law.72 The Court has departed from the narrow view on which earlier decisions rested. It has expressly held that the Fourth Amendment governs not only the seizure of tangible items but extends as well to the recording of oral statements overheard without any technical trespass under local property law.
Once it is acknowledged that the Fourth Amendment protects people and not simply areas against unreasonable searches and seizures, it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into an enclosure.73
The Fourth Amendment applies to the recording of oral statements overheard without any technical trespass under local property law.74
Related opinions on this issue
Justice Black dissented, stating that if he could agree with the Court that eavesdropping carried on by electronic means constitutes a search or seizure he would join the Court's opinion.75 He could not agree with the Court's interpretation of the Fourth Amendment.76 His basic objection was twofold.77
First, he did not believe that the words of the Amendment bear the meaning given them by today's decision.78 Second, he did not believe it is the proper role of this Court to rewrite the Amendment to bring it into harmony with the times and reach a result that some find desirable.79 He maintained that the words of the Amendment connote tangible things capable of being searched or seized.80
A conversation overheard by eavesdropping is not tangible and cannot be searched or seized.81