The Katz Brief

Below, find the bullet point version of the Katz brief, along with some discussion below. These are the types of things that you’ll want to include in your case briefs. It is obvious that you must communicate what the case is about, but the most important part of the brief is your discussion of the context and impact of the decision. You need to tie this case in with the other cases from the assigned readings. You can also use this space to discuss some of the socio-political context, or any other considerations you think might have affected the outcome or implementation of the decision. Enjoy!

Katz v. U.S. (1967) 389 U.S. 347.

Case Facts:

  • Katz was making illegal wagers in public phone booth
  • Listening device outside phone booth
  • No warrant, but evidence introduced at trial anyway
  • Katz found guilty, appealed to exclude the evidence

Issues before the Court

  • Does privacy attach to places or people?
  • Is the phone booth a “protected place” for privacy purposes?
  • If there is no physical intrusion into the protected place, can a search be said to have taken place?

Majority Opinion

  • 7-1, Stewart for the Majority
  • 4th Amendment protects people, not places.
  • Katz had a reasonable expectation of privacy of spoken word
  • Police needed a warrant, and would have gotten it.

Concurring Opinions

  • Harlan: Two-pronged test, (1) actual expectation of privacy, and (2) reasonableness of the expectation
  • White: Does not apply to national security purposes
  • Douglas, joined by Brennan: Yes, it does apply to national security purposes

Dissenting Opinion

  • Black: The 4th does not apply to conversation, and making it do so is not the judge’s job


Black’s main disagreement with the majority opinion is two-fold. First, Black does not agree that spoken words, which are naturally ephemeral, can be considered “persons, houses, papers [or] effects” for the purposes of 4th Amendment protection. The spoken word is not a “thing,” and the 4th Amendment does not extend to this kind of broad personal privacy. The second area of disagreement follows from this. Because Black believes that the Constitution does not ban eavesdropping without a warrant, he is critical of what he sees as the majority’s attempt to reverse engineer the 4th Amendment to conform to the vision they’d prefer. He is also responding the what he sees as the majority’s cavalier treatment of precedent. namely Olmstead and Goldman. The majority overruled both of these cases, the first of which held that conversations were not protected, and the second of which held that only upon physical penetration of an area would a warrant be required.

The test laid out in Harlan’s concurrence is still in use today. This case changed the way we think about privacy. It added a subjective component, whereby the Court considers whether the defendant demonstrated an expectation of privacy. This privacy right, which attaches to the person and is context dependent, laid the groundwork for subsequent expansions of privacy protections, including in the realm of reproductive rights.

There is also some disagreement among members of the majority as to whether the warrant requirement is applicable in national security cases.

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