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 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 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 Court 3 and that acceptance controlled the decision in numerous cases. 4 For example, in Olmstead v. United States, 5 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
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 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
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 Thus, in Nardone v. United States, 10 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 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 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
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 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 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.