Technological Innovation and the Evolution of Fourth Amendment Jurisprudence

By Sydney Coker

Throughout the course of modern history, the Supreme Court and its interpretation of the Fourth Amendment have undergone continual scrutiny as the Justices continue to reinterpret the meaning of the Fourth Amendment in the context of technological advancement. The cases of Olmstead and Katz demonstrate the Court’s shift to a metaphysical understanding of search and seizure in the light of technological advancement and its introduction of the right to privacy.

The Olmstead case marks the Supreme Court’s first confrontation with the issue of technological innovation and its effects on individuals’ protection against search and seizure as granted by the Fourth Amendment. In this case, federal agents wiretapped Roy Olmstead’s office building without judicial approval, suspecting Olmstead of unlawfully selling, importing, and exporting alcohol in violation of the National Prohibition Act.[1] The Supreme Court ruled that incriminating evidence obtained through wiretapping did not violate Olmstead’s Fourth Amendment rights because there was no physical trespass of person or property.[2]

In Olmstead, the Court argued that “The language of the [Fourth] Amendment can not be extended and expanded to include telephone wires reaching to the whole world from the defendant’s house or office. The intervening wires are not part of his house or office any more than the highways along which they are stretched.” However, in his dissent, Justice Brandeis petitioned for a broader interpretation of the Amendment. He reasoned that “[t]he makers of our Constitution… sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations.”[3]

Here, the Supreme Court adopted a very literal interpretation of the Fourth Amendment, one that did not take into account the ways in which technological advancement has allowed for more remote, non-physical searches and seizures of one’s person or property. Emphasizing its literal interpretation of the Fouth Amendment, the Court stated that

“The well-known historical purpose of the Fourth Amendment, directed against general warrants and writs of assistance, was to prevent the use of governmental force to search a man’s house, his person, his papers and his effects; and to prevent their seizure against his will ….  The Amendment itself shows that the search is to be of material things — the person, the house, his papers or his effects.”[4]

The Olmstead decision prevailed for nearly forty years until the Supreme Court overturned the decision in Katz, broadening its interpretation of the Fourth Amendment to include some electronic forms of search and seizure.[5]

In Katz v. United States, the Supreme Court overruled Olmstead and its Trespass Doctrine, which interpreted the Fourth Amendment’s protection against search and seizure to only include that of one’s physical person or property.[6] In this case, the Court found that FBI agents had violated the Fourth Amendment’s protection against unlawful search and seizure when they wiretapped a public payphone to listen to Charles Katz’s phone conversation without a search warrant. The information gained from this conversation was later used against Katz at trial where he was convicted of illegal gambling.[7] Unlike in the Olmstead case, the Court in Katz found wiretapping to constitute an unlawful search and seizure of Katz in violation of the Fourth Amendment. Even though the wiretapping did not constitute a physical trespass of Katz’s person or property, the Cour found the FBI’s actions infringed upon Katz’s Fourth Amendment rights for two reasons. First, the FBI listened to Katz’s phone conversation without gaining a search warrant from a judge as required by the Fourth Amendment’s warrant clause. Second, because the agents had not received a search warrant, they had failed to establish probable cause which, according to the Supreme Court, must be determined by a neutral third party, that is, the judiciary.[8]

Through this decision, the Court adopted its modern-day conception of the Fouth Amendment as not only a protection against a physical search and seizure of one’s person and property but also as a protection of one’s right to privacy more generally.[9] The Court reasoned in this case that Katz’s phone call took place inside a phonebooth, indicating his intent and reasonable expectation to have a private phone conversation. Specifically, the Supreme Court said,

“[o]ne who occupies [a phonebooth], shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.”[10]

Here, the Court recognized that by wiretapping a public payphone to listen to Katz’s conversation, the FBI agents engaged in an unwarranted search and seizure within the meaning of the Fourth Amendment. Through its ruling in this case, the Supreme Court took an important step toward recognizing one’s right to privacy as a right inherent to the Fourth Amendment and the need to adopt a more abstract understanding of search and seizure beyond a physical trespass of one’s person or property in response to technological innovation. Moreover, the Court recognized not only that a right to privacy exists but that there are certain contexts, such as when a person is placing a phone call inside a phonebooth, in which people are justified in their “reasonable expectation to privacy.”[11]




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[1] Olmstead v. United States, 277 U.S. 438, 455 (1928).

[2] Id. at 463, overruled by Katz v. 389 U.S. 347 (1967).

[3] Id. at 478 (Brandeis, J., Dissenting).

[4] Id. at 463.

[5] Katz v. United States, 389 U.S. 347 (1967)

[6] Olmstead v. United States, 277 U.S. 438 (1928).

[7] Katz v. United States, 389 U.S. at 348-49.

[8] Id. at 358.

[9] Id. at 353.

[10] Id. at 352.

[11] Id at 361.