Digital Evidence and The Constitution. Sean B. Hoar email@example.com. Text of the Fourth Amendment.
Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author.While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server.
Sean B. Hoar
Facts:Olmstead was the general manager of a large bootlegging operation in Seattle and throughout the state of Washington. This operation brought in over $2M annually (in 1920s dollars!). Federal officers tapped the phones of the operation’s main office building and the home phone lines of the scheme’s leaders in an investigation of a conspiracy to violate the National Prohibition Act. Listening to these conversations, the government was able to compile over 775 typewritten pages of call transcripts.
Issues:Does the use of a wiretap violate the Fourth Amendment’s prohibition against unreasonable searches and seizures? Does the Fifth Amendment allow the government to introduce evidence obtained through a wiretap?
Prohibition-era officers destroy kegs of beer
Holding:Chief Justice Taft (pictured) wrote for the majority in this first case to apply the Fourth Amendment to the act of wiretapping. They held that no search or seizure occurred within the meaning of the Fourth Amendment in that a search must be of material things – the person, the house, papers, or effects – and that mere conversation is not within the ambit of the Fourth Amendment. Taft discussed the admissibility of evidence and wrote that it is determined by the common-law rule: it is not affected by the means by which it is acquired. He concluded that forbidding evidence that was obtained in a manner other than “nice ethical conduct” by government agents would “make society suffer and give criminals greater immunity.” Justice Brandeis wrote a forceful dissent urging his brethren to be forward-looking.
The prescient dissent: Associate Justice Brandeis wrote a forceful dissent urging his brethren to consider the implications of allowing government agents unbridled discretion in the acquisition of evidence: “The progress of science in furnishing the government with means of espionage is not likely to stop with wire tapping.” 277 U.S. at 474. “The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” 277 U.S. at 479.
“Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means-to declare that the government may commit crimes in order to secure the conviction of a private criminal-would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.” 277 U.S. at 485.
Facts: In an investigation of a criminal conspiracy to bribe the Chairman of New York State Liquor Authority, recordings were made on a “Minifon” (see next slide) by Ralph Pansini after he was “shaken down” for a bribe to obtain a liquor license. Using this information, authorities obtained an eavesdropping order that allowed them to place recording devices in the office of an attorney who was involved in the conspiracy.
Issue: Does the New York statute allowing the government to eavesdrop on potential targets comport with the constitutional protections afforded by the Fourth and Fifth Amendments?
A “Minifon” recording device such as this was worn by Ralph Pansini to gather evidence that led to the issuance of an eavesdropping order. The Minifon even came with a wristwatch microphone!
Holding:The majority opinion described in some detail the history and evolution of eavesdropping before turning to the statute at issue. The Court held that New York’s statute was impermissibly broad and thus “contrary to the command of the Fourth Amendment.” Specifically, the statute was unlawful because it (1) raised a serious probable cause question – it did not require any belief that an offense had been or was being committed or that the “property” sought be described; (2) lacked particularization – it provided agents complete discretion to seize whatever they wanted to seize; (3) lacked any showing of necessity – it provided an extensive time frame for eavesdropping based upon only one showing of probable cause and did not require termination upon seizure of a particular conversation.
1. What is meant by Justice Clark’s statement that “[t]he law, though jealous of individual privacy, has not kept pace with…advances in scientific knowledge”?
2. If Olmstead is one end of the spectrum and Berger is the other end, where are we today?
Facts:Charles Katz was charged and convicted of illegal gambling, in violation of 18 U.S.C. § 1084. At trial, over Katz’s objection, the district court allowed the government to introduce telephone conversations they had recorded when Katz used a public pay telephone. The government had attached an electronic listening and recording device to the outside of the phone booth. The Ninth Circuit affirmed the conviction and the Supreme Court granted cert.
Issue(s): Are phone conversations made inside of a public phone booth protected by the Fourth Amendment? Is a physical intrusion required to violate the Fourth Amendment?
This is a phone booth . . . A relic of the past . . .
Holding:The Court reversed the Ninth Circuit and held that where an individual can subjectively expect privacy, their conversation is protected by the Fourth Amendment. Justice Potter Stewart (pictured) wrote that the Fourth Amendment protects “people, not places.” Justice Harlan wrote an oft-cited concurrence that described an intrusion as a search if (1) the individual has a subjective expectation of privacy; and (2) society is prepared to recognize this expectation of privacy as reasonable.
After Katz, the “trespass” doctrine no longer controls, i.e. the lack of physical intrusion has no constitutional significance.
1. Justice Harlan’s test contains both a subjective and objective element. Are these two concepts in conflict?
2. Do you have a subjective expectation of privacy in your emails? Is this objectively reasonable? What must you do to forfeit any right to privacy you may have had?
Facts:Federal authorities suspected Danny Kyllo of Florence, Oregon of operating an indoor marijuana grow. At 3:20 a.m., an agent pointed an Agema Thermovision 210 (pictured) from his parked car toward Kyllo’s house (part of a triplex). The resulting thermal image showed a “hot spot” above the garage. These images, along with other evidence, were used to obtain a search warrant, which subsequently resulted in authorities discovering a 100-plant grow operation.
Issue(s): Does the use of a thermal imaging device to detect amounts of heat emanating from a private house constitute a “search” within the meaning of the Fourth Amendment?
Danny Lee Kyllo
Danny Kyllo outside his house
The Agema Thermovision 210
Four different images showing the different settings on the thermal imaging device. This image was reprinted as an Appendix in the U.S. Reports
Holding: Justice Scalia, writing for a 5-4 Court, held that the Fourth Amendment protections for home privacy require a “firm” and “bright” line and that the use of a thermal imaging device required a warrant. The rule from Kyllo states that where the “Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a “search” and is presumptively unreasonable without a warrant.” There was a vigorous dissent authored by Justice Stevens.
Especially in recent years, the law appears to be reactionary - it struggles to keep up with technology. What do you anticipate will be the impact of Justice Scalia’s “publicly available” condition precedent to avoid a “presumptively unreasonable” search without a warrant?
If the technology is publicly available, does the search become presumptively reasonable without a warrant?
Does it make any difference that it is possible to buy an Agema Thermovision – and other similar products - on the Internet today? i.e. they are clearly publicly available . . .
Sean B. Hoar