Olmstead v. United States, 277 U.S. 438 (1928) 7.

Under the common law, the admissibility of

(C.J. Taft)
1. Use in evidence in a criminal trial in a federal court
of an incriminating telephone conversation
voluntarily conducted by the accused and secretly
overheard from a tapped wire by a government
officer does not compel the accused to be a witness
against himself in violation of the Fifth Amendment.
evidence is not affected by the fact of its having
been obtained illegally. P. 277 U.S. 467.
8. The rule excluding from the federal Courts
evidence of crime procured by government officers
by methods forbidden by the Fourth and Fifth
Amendments is an exception to the common law
rule. Id.

2. Evidence of a conspiracy to violate the Prohibition
Act was obtained by government officers by secretly
tapping the lines of a telephone company connected
with the chief office and some of the residences of
the conspirators, and thus clandestinely overhearing
and recording their telephonic conversations
concerning the conspiracy and in aid of its execution.
The tapping connections were made in the
basement of a large office building and on public
streets, and no trespass was committed upon any
property of the defendants. Held, that the obtaining
of the evidence and its use at the trial did not violate
the Fourth Amendment.
3. The principle of liberal construction applied to the
Amendment to effect its purpose in the interest of
liberty will not justify enlarging it beyond the
possible practical meaning of "persons, houses,
papers, and effects," or so applying "searches and
seizures" as to forbid hearing or sight.
4. The policy of protecting the secrecy of telephone
messages by making them, when intercepted,
inadmissible as evidence in federal criminal trials
may be adopted by Congress through legislation, but
it is not for the courts to adopt it by attributing an
enlarged and unusual meaning to the Fourth
Amendment.
9. Without the sanction of an Act of Congress,
federal courts have no discretion to exclude
evidence, the admission of which is not
unconstitutional, because it was unethically
procured.
10. The statute of Washington, adopted in 1909,
making the interception of telephone messages a
misdemeanor cannot affect the rules of evidence
applicable in federal courts in criminal cases. Id.
19 F. (2d) 842, 848, 850, affirmed.
CERTIORARI, 276 U.S. 609, to judgments of the
Circuit Court of Appeals affirming convictions of
conspiracy to violate the Prohibition Act. The order
granting certiorari confined the hearing to the
question whether the use in evidence of private
telephone conversations, intercepted by means of
wiretapping, violated the Fourth and Fifth
Amendments.

5. A provision in an order granting certiorari limiting

the review to a single specific question does not
deprive the Court of jurisdiction to decide other
questions presented by the record.

6. The common law of evidence having prevailed in

the State of Washington since a time antedating her
transformation from a Territory to a State, those rule
apply in the trials of criminal cases in the federal
courts sitting in that State..
Katz v. United States, 389 U.S. 347 (1967)
Primary Holding
It is unconstitutional under the Fourth Amendment
to conduct a search and seizure without a warrant
anywhere that a person has a reasonable
expectation of privacy, unless certain exceptions
apply.
Syllabus
Petitioner was convicted under an indictment
charging him with transmitting wagering information
by telephone across state lines in violation of 18
U.S.C. § 1084. Evidence of petitioner's end of the
conversations, overheard by FBI agents who had
attached an electronic listening and recording device
to the outside of the telephone booth from which
the calls were made, was introduced at the trial. The
Court of Appeals affirmed the conviction, finding
that there was no Fourth Amendment violation,
since there was "no physical entrance into the area
occupied by" petitioner.
Held:
1. The Government's eavesdropping activities
violated the privacy upon which petitioner justifiably
relied while using the telephone booth, and thus
constituted a "search and seizure" within the
meaning of the Fourth Amendment. Pp. 389 U. S.
350-353.
(a) The Fourth Amendment governs not only the
seizure of tangible items, but extends as well to the
recording of oral statements. Silverman v. United
States, 365 U. S. 505, 365 U. S. 511. P. 389 U. S. 353.
(b) Because the Fourth Amendment protects people,
rather than places, its reach cannot turn on the
presence or absence of a physical intrusion into any
given enclosure. The "trespass" doctrine of Olmstead
v. United States, 277 U. S. 438, and Goldman v.
United States, 316 U. S. 129, is no longer controlling.
2. Although the surveillance in this case may have
been so narrowly circumscribed that it could
constitutionally have been authorized in advance, it
was not in fact conducted pursuant to the warrant
procedure which is a constitutional precondition of
such electronic surveillance. reversed.
KYLLO v. UNITED STATES (J. CALIA)
Suspicious that marijuana was being grown in
petitioner Kyllo's home in a triplex, agents used a
thermal-imaging device to scan the triplex to
determine if the amount of heat emanating from it
was consistent with the high-intensity lamps
typically used for indoor marijuana growth. The scan
showed that Kyllo's garage roof and a side wall were
relatively hot compared to the rest of his home and
substantially warmer than the neighboring units.
Based in part on the thermal imaging, a Federal
Magistrate Judge issued a warrant to search Kyllo's
home, where the agents found marijuana growing.
After Kyllo was indicted on a federal drug charge, he
unsuccessfully moved to suppress the evidence
seized from his home and then entered a conditional
guilty plea. The Ninth Circuit ultimately affirmed,
upholding the thermal imaging on the ground that
Kyllo had shown no subjective expectation of privacy
because he had made no attempt to conceal the
heat escaping from his home. Even if he had, ruled
the court, there was no objectively reasonable
expectation of privacy because the thermal imager
did not expose any intimate details of Kyllo's life,
only amorphous hot spots on his home's exterior.
Held: Where, as here, the Government uses a device
that is not in general public use, to explore details of
a private home that would previously have been
unknowable without physical intrusion, the
surveillance is a Fourth Amendment "search," and is
presumptively unreasonable without a warrant. Pp.
31-41.
(a) The question whether a warrantless search of a
home is reasonable and hence constitutional must
be answered no in most instances, but the
antecedent question whether a Fourth Amendment
"search" has occurred is not so simple. This Court
has approved warrantless visual surveillance of a
home, see California v. Ciraolo, 476 U. S. 207, 213,
ruling that visual observation is no "search" at all,
see Dow Chemical Co. v. United States, 476 U. S. 227,
234-235, 239. In assessing when a search is not a
search, the Court has adapted a principle first
enunciated in Katz v. United States, 389 U. S. 347,
361: A "search" does not occur-even when its object
is a house explicitly protected by the Fourth
Amendment-unless the individual manifested a
subjective expectation of privacy in the searched
object, and society is willing to recognize that
expectation as reasonable, see, e. g.,
California v. Ciraolo, supra, at 211. Pp. 31-33.
(b) While it may be difficult to refine the Katz test in
some instances, in the case of the search of a home's
interior-the prototypical and hence most commonly
litigated area of protected privacy-there is a ready
criterion, with roots deep in the common law, of the
minimal expectation of privacy that exists, and that
is acknowledged to be reasonable. To withdraw
protection of this minimum expectation would be to
permit police technology to erode the privacy
guaranteed by the Fourth Amendment. Thus,
obtaining by sense-enhancing technology any
information regarding the home's interior that could
not otherwise have been obtained without physical
"intrusion into a constitutionally protected
area," Silverman v. United States, 365 U. S. 505, 512,
constitutes a search-at least where (as here) the
technology in question is not in general public use.
This assures preservation of that degree of privacy
against government that existed when the Fourth
Amendment was adopted. Pp. 33-35.
(c) Based on this criterion, the information obtained
by the thermal imager in this case was the product
of a search. The Court rejects the Government's
argument that the thermal imaging must be upheld
because it detected only heat radiating from the
home's external surface. Such a mechanical
interpretation of the Fourth Amendment was
rejected in Katz, where the eavesdropping device in
question picked up only sound waves that reached
the exterior of the phone booth to which it was
attached. Reversing that approach would leave the
homeowner at the mercy of advancing technology-
including imaging technology that could discern all
human activity in the home. Also rejected is the
Government's contention that the thermal imaging
was constitutional because it did not detect
"intimate details." Such an approach would be
wrong in principle because, in the sanctity of the
home, all details are intimate details. See, e. g.,
United States v. Karo, 468 U. S. 705; Dow Chemical,
supra, at 238, distinguished. It would also be
impractical in application, failing to provide a
workable accommodation between law enforcement
needs and Fourth Amendment interests.
See Oliver v. United States, 466 U. S. 170, 181. Pp.
35-40.
(d) Since the imaging in this case was an unlawful
search, it will remain for the District Court to
determine whether, without the evidence it
provided, the search warrant was supported by
probable cause-and if not, whether there is any
other basis for supporting admission of that
evidence. reversed and remanded.
UNITED STATES v. JONES (Scalia, J)
Respondent was convicted of drug trafficking and
conspiracy charges. The District Court suppressed
GPS data from a vehicle parked outside of
respondent's residence, but held the remaining data
admissible because respondent had no reasonable
expectation of privacy when the vehicle was on a
public street. The D.C. Circuit reversed, concluding
that admission of the evidence obtained by
warrantless use of the GPS device violated the
Fourth Amendment. The Court held that the
Government's installation of a GPS device on a
target's vehicle, and its use of that device to monitor
the vehicle's movements, constituted a search under
the Fourth Amendment. Accordingly, the judgment
of the Court of Appeals was affirmed.
Annotation
Primary Holding
The Fourth Amendment requirements on searches
and seizures bar law enforcement from placing a
GPS system on a vehicle to keep track of its location
without a warrant.
The Government obtained a search warrant
permitting it to install a Global-Positioning-System
(GPS) tracking device on a vehicle registered to
respondent Jones’s wife. The warrant authorized
installation in the District of Columbia and within 10
days, but agents installed the device on the 11th day
and in Maryland. The Government then tracked the
vehicle’s movements for 28 days. It subsequently
secured an indictment of Jones and others on drug
trafficking conspiracy charges. The District Court
suppressed the GPS data obtained while the vehicle
was parked at Jones’s residence, but held the
remaining data admissible because Jones had no
reasonable expectation of privacy when the vehicle
was on public streets. Jones was convicted. The D. C.
Circuit reversed, concluding that admission of the
evidence obtained by warrantless use of the GPS
device violated the Fourth Amendment.
Held: The Government’s attachment of the GPS
device to the vehicle, and its use of that device to
monitor the vehicle’s movements, constitutes a
search under the Fourth Amendment. Pp. 3–12.
(a) The Fourth Amendment protects the “right of the
people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and
seizures.” Here, the Government’s physical intrusion
on an “effect” for the purpose of obtaining
information constitutes a “search.” This type of
encroachment on an area enumerated in the
Amendment would have been considered a search
within the meaning of the Amendment at the time it
was adopted. Pp. 3–4.
(b) This conclusion is consistent with this Court’s
Fourth Amendment jurisprudence, which until the
latter half of the 20th century was tied to common-
law trespass. Later cases, which have deviated from
that exclusively property-based approach, have
applied the analysis of Justice Harlan’s concurrence
in Katz v. United States, 389 U. S. 347, which said
that the Fourth Amendment protects a person’s
“reasonable expectation of privacy,” id., at 360.
Here, the Court need not address the Government’s
contention that Jones had no “reasonable
expectation of privacy,” because Jones’s Fourth
Amendment rights do not rise or fall with
the Katz formulation. At bottom, the Court must
“assur[e] preservation of that degree of privacy
against government that existed when the Fourth
Amendment was adopted.” Kyllo v. United States,
533 U. S. 27, 34. Katz did not repudiate the
understanding that the Fourth Amendment
embodies a particular concern for government
trespass upon the areas it enumerates.
The Katz reasonable-expectation-of-privacy test has
been added to, but not substituted for, the
common-law trespassory test.
See Alderman v. United States, 394 U. S. 165,
176; Soldal v. Cook County, 506 U. S. 56, 64. United
States v. Knotts, 460 U. S. 276, and United
States v. Karo, 468 U. S. 705—post-Katz cases
rejecting Fourth Amendment challenges to
“beepers,” electronic tracking devices representing
another form of electronic monitoring—do not
foreclose the conclusion that a search occurred
here. New York v. Class, 475 U. S. 106,
and Oliver v. United States, 466 U. S. 170, also do not
support the Government’s position. Pp. 4–12.
(c) The Government’s alternative argument—that if
the attachment and use of the device was a search,
it was a reasonable one—is forfeited because it was
not raised below. P. 12.
615 F. 3d 544, affirmed.
Yes. Justice Antonin Scalia delivered the opinion of
the Court. The Court affirmed the judgment of the
lower court, and held that the installation of a GPS
tracking device on Jones' vehicle, without a warrant,
constituted an unlawful search under the Fourth
Amendment. The Court rejected the government's
argument that there is no reasonable expectation of
privacy in a person's movement on public
thoroughfares and emphasized that the Fourth
Amendment provided some protection for trespass
onto personal property.
Justice Sonia Sotomayor wrote a concurring opinion,
agreeing that the government had obtained
information by usurping Jones' property and by
invading his privacy. However, she further reasoned
that the Fourth Amendment was not only concerned
with trespasses onto property. She stated that a
Fourth Amendment search occurs whenever the
government violates a subjective expectation of
privacy that society recognizes as reasonable, which
is particularly important in an era where physical
intrusion is unnecessary to many forms of
surveillance.
Justice Samuel Alito concurred in the judgment but
criticized the framing of the question in terms of
trespass to property. He believed that such a
construction of the problem strained the language of
the Fourth Amendment and that it would be better
to analyze the case by determining whether the
Government violated Jones' reasonable expectations
of privacy.
Disini v Sec of Justice
Case Summary and Outcome
The Supreme Court of Philippines declared Sections
4(c)(3), 12, and 19 of the Cybercrime Prevention Act
of 2012 as unconstitutional. It held that Section
4(c)(3) violated the right to freedom of expression by
prohibiting the electronic transmission of unsolicited
commercial communications. It found Section 12 in
violation of the right to privacy because it lacked
sufficient specificity and definiteness in collecting
real-time computer data. It struck down Section 19
of the Act for giving the government the authority to
restrict or block access to computer data without
any judicial warrant.
Facts
The case arises out of consolidated petitions to the
Supreme Court of the Philippines on the
constitutionality of several provisions of
the Cybercrime Prevention Act of 2012, Act
No. 10175.
The Petitioners argued that even though the Act is
the government’s platform in combating illegal
cyberspace activities, 21 separate sections of the Act
violate their constitutional rights, particularly the
right to freedom of expression and access to
inforamtion.
In February 2013, the Supreme Court extended the
duration of a temporary restraining order against the
government to halt enforcement of the Act until the
adjudication of the issues.
Decision Overview
Justice Abad delivered the Court’s opinion.
The government of Philippines adopted the
Cybercrime Prevention Act of 2012 for the purpose
of regulating access to and use of
cyberspace. Several sections of the law define
relevant cyber crimes and enable the government to
track down and penalize violators.
Among 21 challenged sections, the Court declared
Sections 4(c)(3), 12, and 19 of the Act as
unconstitutional.
Section 4(c)(3) prohibits the transmission of
unsolicited commercial electronic communications,
commonly known as spams, that seek to advertise,
sell, or offer for sale of products and services unless
the recipient affirmatively consents, or when the
purpose of the communication is for service or
administrative announcements from the sender to
its existing users, or “when the following conditions
are present: (aa) The commercial electronic
communication contains a simple, valid, and reliable
way for the recipient to reject receipt of further
commercial electronic messages (opt-out) from the
same source; (bb) The commercial electronic
communication does not purposely disguise the
source of the electronic message; and (cc) The
commercial electronic communication does not
purposely include misleading information in any part
of the message in order to induce the recipients to
read the message.”
The government argued that unsolicited commercial
communications amount to both nuisance and
trespass because they tend to interfere with the
enjoyment of using online services and that they
enter the recipient’s domain without prior
permission.
The Court first noted that spams are a category
of commercial speech, which does not receive the
same level of protection as other constitutionally
guaranteed forms of expression ,”but is nonetheless
entitled to protection.” It ruled that the prohibition
on transmitting unsolicited communications “would
deny a person the right to read his emails, even
unsolicited commercial ads addressed to
him.” Accordingly, the Court declared Section4(c)(3)
as unconstitutional.
Section 12 of the Act authorizes the law
enforcement without a court warrant “to collect or
record traffic data in real-time associated with
specified communications transmitted by means of a
computer system.” Traffic data under this Section
includes the origin, destination, route, size, date, and
duration of the communication, but not its content
nor the identity of users.
The Petitioners argued that such warrantless
authority curtails their civil liberties and set the stage
for abuse of discretion by the government. They
also claimed that this provision violates the right to
privacy and protection from the government’s
intrusion into online communications.
According to the Court, since Section 12 may lead to
disclosure of private communications, it must
survive the rational basis standard of whether it is
narrowly tailored towards serving a government’s
compelling interest. The Court found that the
government did have a compelling interest in
preventing cyber crimes by monitoring real-time
traffic data.
As to whether Section 12 violated the right to
privacy, the Court first recognized that the right at
stake concerned informational privacy, defined as
“the right not to have private information disclosed,
and the right to live freely without surveillance and
intrusion.” In determining whether a
communication is entitled to the right of privacy, the
Court applied a two-part test: (1) Whether the
person claiming the right has a legitimate
expectation of privacy over the communication, and
(2) whether his expectation of privacy can be
regarded as objectively reasonable in the society.
The Court noted that internet users have subjective
reasonable expectation of privacy over their
communications transmitted online. However, it did
not find the expectation as objectively reasonable
because traffic data sent through internet “does not
disclose the actual names and addresses (residential
or office) of the sender and the recipient, only their
coded Internet Protocol (IP) addresses.”
Even though the Court ruled that real-time traffic
data under Section 12 does not enjoy the objective
reasonable expectation of privacy, the existence of
enough data may reveal the personal information of
its sender or recipient, against which the Section
fails to provide sufficient safeguard. The Court
viewed the law as “virtually limitless, enabling law
enforcement authorities to engage in “fishing
expedition,” choosing whatever specified
communication they want.”
Accordingly, the Court struck down Section 12 for
lack of specificity and definiteness as to ensure
respect for the right to privacy.
Section 19 authorizes the Department of Justice to
restrict or block access to a computer data found to
be in violation of the Act. The Petitioners argued
that this section also violated the right to freedom of
expression, as well as the constitutional protection
against unreasonable searches and seizures.
The Court first recognized that computer data
constitutes a personal property, entitled to
protection against unreasonable searches and
seizures. Also, the Philippines’ Constitution requires
the government to secure a valid judicial warrant
when it seeks to seize a personal property or to
block a form of expression. Because Section 19
precluded any judicial intervention, the Court found
it unconstitutional.
Riley v California
Facts of the case
David Leon Riley belonged to the Lincoln Park
gang of San Diego, California. On August 2,
2009, he and others opened fire on a rival gang
member driving past them. The shooters then
got into Riley's Oldsmobile and drove away. On
August 22, 2009, the police pulled Riley over
driving a different car; he was driving on
expired license registration tags. Because Riley's
driver's license was suspended, police policy
required that the car be impounded. Before a
car is impounded, police are required to
perform an inventory search to confirm that the
vehicle has all its components at the time of
seizure, to protect against liability claims in the
future, and to discover hidden contraband.
During the search, police located two guns and
subsequently arrested Riley for possession of
the firearms. Riley had his cell phone in his
pocket when he was arrested, so a gang unit
detective analyzed videos and photographs of
Riley making gang signs and other gang indicia
that were stored on the phone to determine
whether Riley was gang affiliated. Riley was
subsequently tied to the shooting on August 2
via ballistics tests, and separate charges were
brought to include shooting at an occupied
vehicle, attempted murder, and assault with a
semi-automatic firearm.
Before trial, Riley moved to suppress the
evidence regarding his gang affiliation that had
been acquired through his cell phone. His
motion was denied. At trial, a gang expert
testified to Riley's membership in the Lincoln
Park gang, the rivalry between the gangs
involved, and why the shooting could have been
gang-related. The jury convicted Riley on all
three counts and sentenced to fifteen years to
life in prison. The California Court of Appeal,
Fourth District, Division 1, affirmed.
Question
Was the evidence admitted at trial from Riley's
cell phone discovered through a search that
violated his Fourth Amendment right to be free
from unreasonable searches?
judgment in which he expressed doubt that the
warrantless search exception following an
arrest exists for the sole or primary purposes of
protecting officer safety and preserving
evidence. In light of the privacy interests at
stake, however, he agreed that the majority's
conclusion was the best solution. Justice Alito
also suggested that the legislature enact laws
that draw reasonable distinctions regarding
when and what information within a phone can
be reasonably searched following an arrest.

Discussion:

Yes. Chief Justice John G. Roberts, Jr. wrote the

opinion for the unanimous Court. The Court
held that the warrantless search exception
following an arrest exists for the purposes of
protecting officer safety and preserving
evidence, neither of which is at issue in the
search of digital data. The digital data cannot be
used as a weapon to harm an arresting officer,
and police officers have the ability to preserve
evidence while awaiting a warrant by
disconnecting the phone from the network and
placing the phone in a "Faraday bag." The Court
characterized cell phones as minicomputers
filled with massive amounts of private
information, which distinguished them from the
traditional items that can be seized from an
arrestee's person, such as a wallet. The Court
also held that information accessible via the
phone but stored using "cloud computing" is
not even "on the arrestee's person."
Nonetheless, the Court held that some
warrantless searches of cell phones might be
permitted in an emergency: when the
government's interests are so compelling that a
search would be reasonable.

Justice Samuel A. Alito, Jr. wrote an opinion

concurring in part and concurring in the