The Lifespan of Denial

[Read for “Third Party Consent”]

In Georgia v. Randolph (2006), the Court held that one occupant can veto the consent to search given by another occupant. In Fernandez v. California (2014), the Court was asked to clarify how long such a veto lasts. If one resident denies consent, may the police return at a later time when that resident is not present? How long must they wait?

The good folks at SCOTUSblog have provided a nice analysis of the opinion here and here. You should read both of these short articles.

Notice the prevalence of domestic violence as a subtext in most of these co-occupancy consent cases. Given our current utter failure as a society to deal with the problem of domestic violence (especially where NFL players are involved, it seems), what does this say about the Court’s reconsideration of the Georgia v. Randolph holding? Does Fernandez really address the problems raised in the Chief Justice’s dissent in Randolph?




These Open Fields are HOT!

In Chapter 10, we return to the case of Kyllo v. US. In the Court’s decision in Kyllo v. US (2001), the majority held that the use by police of a thermal imaging camera to investigate the temperature of a house without a warrant was unconstitutional. However, the Court relied on a very interesting rationale:

“Where, as here, 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.”

Thermal imaging devices can be quite useful, and police departments have been allowed to use them for various purposes since the Court’s decision in Kyllo. Under Kyllo, police can certainly get a warrant for the use of such devices. They can also use them for officer safety during hot pursuit or other emergency situation. Here’s a relatively famous recent example:

The kind of infrared thermal imaging device that was new technology in 2001 is relatively commonplace today. Read this Volokh Conspiracy piece about the application of the general public use doctrine to infrared thermal imaging devices today. Does the logic in Kyllo mean that the ban on warrantless infrared thermal imaging searches has an expiration date? (Especially now, since identity theives are making use of the devices for their own purposes.) If it does, have we reached it?

The Life Span of a Denial of Consent

As per SCOTUSblog,

“The Court agreed to spell out further whether police may enter a home, without a warrant, to make a search, when the home is occupied by two individuals but consent to search has been given only by one of them.  A Los Angeles man in the case urged the Court to hear it, to clarify whether a co-occupant of a home must be on hand to object to a police search, when the other occupant has agreed to let the officers enter.  The case of Fernandez v. California (12-7822) seeks clarification of the Court’s 2006 decision in Georgia v. Randolph.”

The case facts are as follows (excerpted from the lower court record):


I. Prosecution Case

A. Percipient Testimony

1. Abel Lopez

On October 12, 2009, at about 11:00 a.m., Abel Lopez was approached after cashing a check near the corner of 14th Street and Magnolia in Los Angeles by a man with light skin, a grey sweater, and a tattoo on his bald head. The man, whom Lopez  later identified as defendant, asked what neighborhood Lopez was from. Lopez said, “I’m from Mexico.” Defendant laughed and said Lopez was in his territory and should give him his money. He then said, “The D.F.S. rules here. They rule here.” Defendant took a knife out of his pocket and pointed it towards Lopez’s chest. Lopez put up his hands to protect himself and defendant cut Lopez’s wrist.

Lopez tried to run away and, while running, took out his cell phone and called 911. He told the 911 operator he needed help because someone wanted to kill him. Defendant then whistled loudly and three or four men ran out of a building on 14th Street and Magnolia. They hit Lopez in the face and all over his body, knocking him to the ground, where they continued to hit and kick him. When he got up, Lopez did not have his cell phone or wallet; He saw the men running back to the building from which they had come. As a result of the attack, Lopez suffered a deep cut on his left wrist and bruising “and swelling over his body.

Several minutes after the attack, the police and paramedics arrived. Lopez participated in a field showup, where he identified defendant.

2. Detective Clark and Officer Cirrito

Detective Kelly Clark and Officer Joseph Cirrito responded to a police radio dispatch on October 12, 2009. Because the police dispatcher indicated possible involvement by members of the Drifters gang in an assault with a deadly weapon, Clark and Cirrito drove to an alley near Magnolia and 14th Street where they knew Drifters gathered. As they stood in the alley, two men walked by and one said, “[T]he guy is in the apartment.” The speaker appeared very scared and walked away quickly. When he returned, he again said, “He’s in there. He’s in the apartment.” Immediately thereafter, the detectives saw a tall, light-skinned, Hispanic or White male wearing a light blue T-shirt and khaki pants run through the alley and into the house where the witness was pointing. The house had been restructured into multiple apartments and was a known gang location. A minute or so later, the officers heard sounds of screaming and fighting from the apartment building into which the suspect had run.

Clark and Cirrito called for backup and, once additional officers arrived, knocked on the door of the unit from which they had heard screaming. The door was opened by Roxanne Rojas, who was holding a baby and appeared to be crying. Her face was red and she had a big bump on her nose that looked fresh. She had blood on her shirt and hand that appeared to come from a fresh injury. Cirrito asked what happened and she said she had been in a fight. Cirrito then asked if anyone else was inside the apartment, and she said only her son. When Cirrito asked her to step outside so he could conduct a sweep of the apartment, defendant stepped forward. He was dressed only in boxer shorts and seemed very agitated. He said, “You don’t have any right to come in here. I know my rights.” Cirrito removed him from the residence and took him into custody.

While Cirrito and Clark arrested defendant at the rear of the house, two men ran out of the front of the house. Officers detained them for questioning.

After defendant was removed from the scene, officers secured the apartment. Clark then went back to Rojas, told her that defendant had been identified as a robbery suspect, and asked for Rojas’s consent to search the apartment. Rojas gave consent, orally and in writing. During the ensuing search, officers found Drifters gang paraphernalia, a butterfly knife, boxing gloves, and clothing, including black pants and a light blue shirt. None of the items stolen from the victim was ever found.

The officers interviewed Rojas about her injuries. She said that when defendant entered the apartment, she confronted him about his relationship with a woman named Vanessa. They argued, and defendant struck Rojas in the face. The officers also spoke to Rojas’s four-year-old son, Christian, who told them defendant had a gun. Officers recovered a sawed-off shotgun from a heating unit where Christian told them it was hidden.

Two days later, Cirrito interviewed Rojas again. She said several times that she did not want to be a “rat” and that defendant would be very upset if he knew she was talking to the police. She denied that defendant struck her and said she had been struck in the face by Vanessa.

B. Expert Testimony

1. Defendant’s Active Gang Membership

Cirrito testified for the prosecution as a gang expert, opining that defendant was an active member of the Drifters, a Latino street gang. He said that the Drifters began as a “car club,” but moved into criminal activities in the 1980’s. By the 1990’s, they began to engage in more violent crimes, such as assaults, carjackings, attempted murders, and narcotics sales. As of October 2009, there were about 140 active Drifters members. In 2009, defendant told officers he had been a member of the Drifters (12th Street Bagos clique) for nine years.

The Drifters’s territory includes a “stronghold” in the area between 14th Street and 15th Street, and between Hoover and Menlo. The stronghold is an area where gang members can retreat if there is danger, and from which members can escape through secret passageways.

Cirrito testified that defendant had at least four tattoos that indicated his affiliation with the Drifters: “D.F.S.,” an abbreviation for Drifters, was tattooed on his leg; “Drifters” was tattooed on his back; “L.A.” was tattooed on his chest; and a gas mask and fedora were tattooed on his back. According to Cirrito, “[N]ot everyone that gets an L.A. on there is a gang member, but there is a trend that gang members, especially the Latino gangs[,] will use that L.A. logo. It represents L.A. where they take a lot of pride [in] where they’re from” Cirrito also testified that the gas mask and fedora represent an underground rap group called Psychoheads, which “talk[] a lot about weed, smoking weed and so on. It’s an underground group, but they’re very popular with the neighborhood gangsters. A lot of gang members will put that on because, again, it’s — we talk about reputation and pride in the area. Psycho-heads came from the Pico Union area, which is close by that particular area of the Drifters.”

Cirrito testified that a “moniker” is a nickname typically given to a gang member. Defendant’s moniker is “Blocks.” The moniker “Blocks” appeared in a Drifters “roll call” (list of active gang members) on a water heater near defendant’s apartment. “Blocks” also appeared in tagging on a garage door a few days after defendant’s arrest, which’ read “D.F.S. [(Drifters)], Bagos, Block[s].” “Bagos” is the Drifters clique in the area in which defendant lives.

Cirrito testified that an art book recovered from defendant’s bedroom oh October 12, 2009, also evidences defendant’s gang membership. Specifically,  he noted that the book contains a roll call with monikers and references to “D.F.S. 13,” “D.F.S. 12th Street, Bagos,” “Blocks,” “Rox,” “Roxy, 12th Street,” “Drifters,” and “Drifters 13.” Cirrito said that “13” indicates an affiliation with the Mexican mafia, the M.A.”

Cirrito testified that baseball caps were also recovered from defendant’s living room following his arrest; one cap was brown, with “L.A.” and “Drifters” written inside, and another was blue and embroidered with the name “Trigger,” a documented Drifters member.

In summary, Cirrito opined that defendant was an active member of the Drifters because he had tattoos that reference the Drifters gang; he goes by the moniker “Blocks”; he admitted to officers that he has been a member of the Drifters; he had gang paraphernalia in his home; he lived in a Drifters stronghold; and during the incident for which he was arrested, he said, “Where are you from? D.F.S. rules here.”

2. Cirrito’s Opinion That the Robbery Was Gang Related

Cirrito testified that gang members care deeply about their gang’s reputation in the community because “reputation means everything to them.” He said that gangs want respect from rival gangs, but they also want to terrorize the neighborhoods in which they operate so people will be afraid to come forward and talk about the gang’s criminal activities. A gang makes itself known in the community in several ways, primarily by committing crimes and tagging.

The Drifters establish their territory “[b]y committing crimes in — just open daylight. There’s fear and intimidation. . . . [S]ome of these younger people . . . want to be gang members. Some of them, it’s almost peer pressure. Some of them are actually forced because they live in that neighborhood. They get beat up. They’re getting — I’ll say attacked or pocket checked, and, eventually, they give in to just be part of this gang.”

Cirrito opined that Drifters members individually and collectively engage in a pattern of criminal gang activity. Their primary activities are robbery, grand theft auto, assault with a deadly weapon, narcotics, and attempted murder.

The prosecutor asked Cirrito the following hypothetical: “I want you to assume that the location we’re talking about is 14th and Magnolia, that it is twelve o’clock in the day, broad daylight for other people to see and that you have an individual who had recently been to a check cashing location or a similar location. He is leaving his girlfriend’s house in that area, 14th and Magnolia. He’s alone. He is approached by someone with a distinctive tattoo on the top of their head who is taller than that individual, that that person comes up to the man who is alone and asks that person, ‘Where are you from?’ That the person says — we’ll call the smaller person the victim. He says, I’m not from anywhere. I’m from Mexico,’ that the suspect says ‘Drifters rule here,’ in Spanish. ‘This is Drifters, D.F.S.,’ something to that effect multiple times, and the location is 14th and Magnolia. The suspect then demands the wallet of the victim and takes out a knife, points the knife at the victim, and the victim, in an attempt to defend himself, puts [his] wrist in front of [his] body, and the knife actually punctures through the sweater into the wrist of the victim. The victim starts to run, at which point the suspect then whistles, and three to four additional presumably other gang members come to attack the victim. The victim calls 911 and is subsequently punched, kicked, beaten and has his wallet stolen, his Mexican ID is stolen, his cell phone is  stolen, and the cash that he had recently cashed at the check cashing is taken. He sees the suspect with the knife and the tattoo along with the three to four others, then all flee, and he participates in a field showup and is able to identify the person with the tattoo, the person with the knife. His property is never recovered. Under that set of circumstances, would you believe, Officer, based on your background, training and experience, that that hypothetical, whether the act, the robbery itself, would be committed for the benefit of or at the direction of or in association with a criminal street gang, assuming that that particular location, 14th and Magnolia, was the stronghold of that gang with the specific intent to promote, further or assist in criminal conduct by gang members?”

Cirrito opined that, for the following reasons, he believed the hypothetical crime to be gang related: “It almost falls under the definition of what a gang is. A gang has three or more people who formally or informally have a common name, sign[,] or symbol[,] who engage or have engaged individually or collectively in a crime that causes fear and intimidation within a community, and . . . one of the crimes under this definition of 186.22 is a robbery. And the fact that it was done in broad daylight in this gang location, it’s very bold to do that in daylight. You must feel — that individual must feel that he has a lot of power in that community. That person must feel that . . . no one is going to rat me out. No one’s going to tell them who I was. The idea that he whistles others, that it was premeditated, that they’re waiting, they have this all set up, and that these three other individuals or four individuals assist this one individual in taking property of one person. To even go back on that, when that person walks up on this person and says, ‘Where are you from?’ For most citizens who live in this area, when they hear that, they know I’m getting banged on. He’s asking me where I’m from. If you think about it, an individual — anybody that approaches you and you don’t know who they are and they engage in a conversation, you get a little defensive like what does this person want? Now, he’s telling you ‘Drifters rule here.’ I’m basically now thinking — well, this person is thinking I’m either going to get robbed; I’m going to get jumped; beat up. I might even be killed because this guy’s a gang member, and it’s not just him that I have to fight. It’s all — it’s the gang. He’s telling me he’s from a gang, Drifters, for example. So in my opinion, this is for the benefit of a gang. The robbery itself — the cell phones could be used. They could change out the SIM card. They could be used for narcotics sales. They could be pawned off for a few bucks. The Mexican ID could be used to — for someone that doesn’t have ID. They could change it. It could be used for fraud, identity theft. The $400 could be used for buying more narcotics. It could be for buying guns, weapons. It could be paying for books for people who have recently been incarcerated [***6] and are in jail and that they need books for phone calls and cigarettes and anything else that they need. So my feeling is that this crime was done for the benefit of a gang.”

II. Defense Case

Roxanne Rojas testified that on October 12, 2009, she and defendant were living together in the apartment where defendant was arrested. About 11:00 a.m., defendant left the apartment to buy tacos and cigarettes; Rojas remained home with their two-month-old daughter and four-year-old son. While defendant was gone, a woman named Vanessa came to the apartment, and she and Rojas fought. Rojas and Vanessa were both injured during the fight. When defendant returned to the apartment through the back door, Vanessa left out the front door. Defendant saw that Rojas was injured and began to yell at her. Moments later, an officer arrived. The officer asked Rojas to let him in, and Rojas “didn’t say yes. I didn’t say no. I said let me get my children.” Rojas agreed that defendant has a Drifters tattoo, but said he was no longer active in the gang.

Defendant testified that he had been involved with the Drifters earlier in his life. He was “forcibly jumped in” when he was 18 or 19 years old and he “had to basically like go with the flow.” He was never heavily involved with the Drifters; “[i]t always was just about like simply like me living there . . . like I’m out mere doing stuff in the neighborhood . . . hanging out with people I grew up with.” He admitted that he had been convicted of receiving stolen property and served time in prison. He said he was released in 2007 and turned his life around. He began working and got an apartment in Marina del Rey for himself, Rojas, and her son. When Rojas got pregnant with her second child, the family moved to a two-bedroom apartment on 15th Street and Magnolia, but he had nothing to do with the Drifters.

Defendant testified that on the morning of October 12, 2009, he woke up late, played with his son, and then went out to get tacos for the family. On 14th Street, he was approached by a Hispanic man who appeared to be drunk. The man said, “Crazy Riders,” which is a rival gang from the area. Defendant ignored him and kept walking. The man continued to talk to him and then “got into the point where he’s coming at me.” Defendant pushed him away, and the two men got into a fistfight. When it was over, defendant continued to the liquor, store to buy cigarettes and then went home. Defendant never saw the man again. When he returned home, Rojas told him a girl had come to the house looking for him, and she and the girl had gotten into a fight. Defendant was upset that Rojas had let the girl in, and he and Rojas began yelling at one another. He did not hit Rojas during the argument. The police arrived a few minutes later and arrested him.

On cross-examination, defendant conceded that he has four prior felony convictions for theft-related crimes. He said “Blocks” or “Blockhead” is his nickname, but it is not a gang moniker.

III. Sentencing and Appeal

On October 8, 2010, defendant pled nolo contendere to counts 3, 4, and 5 (firearms and ammunition possession). In connection with defendant’s plea, the parties agreed that defendant’s son would not be called as a witness in the jury trial and the prosecution would not reference a gun seized at defendant’s home after his arrest. On October 25, 2010, the jury convicted defendant of counts 1 and 2 (second degree robbery and corporal injury on a spouse, cohabitant, or child’s parent); as to count 1, the jury further found that (1) in the commission of the offense, defendant had personally used a dangerous and deadly weapon, and (2) the offense was committed for the benefit of, at the direction of, or in association with a criminal street gang.

As to count 1, the court sentenced defendant to 14 years (midterm of three years, plus an additional consecutive term of 10 years pursuant to § 186.22, subd. (b)(1)(A), plus an additional term of one year pursuant to § 12022, subd. (b)(1)). As to count 2, the court sentenced defendant to the midterm of three years, to run concurrent with the principal term. As to counts 3, 4, and 5, the court sentenced defendant to the midterm of two years, to run concurrent with the principal term.

Defendant timely appealed. 

The question the Court will address is “whether petitioner’s objection to police entry into his shared apartment barred the police from later conducting a warrantless search of the apartment based on the consent of his cotenant obtained after the petitioner had been removed from the premises for a domestic violence investigation and then lawfully arrested for a prior robbery.” It’s a mouthful, to be sure. But, given what we know about third party consent, how is the Court likely to treat this question? The merits brief for the state of California, among other documents related to the case, can be found here.




U.S. v. Robinson

U.S. v. Robinson

414 U.S. 218 (1973)

153 U.S.App.D.C. 114, 471 F.2d 1082, reversed

REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, BLACKMUN, and POWELL, JJ., joined. POWELL J., filed a concurring opinion. MARSHALL, J., filed a dissenting opinion, in which DOUGLAS and BRENNAN, JJ., joined.

MR. JUSTICE REHNQUIST delivered the opinion of the Court.

Respondent Robinson was convicted in United States District Court for the District of Columbia of the possession and facilitation of concealment of heroin in violation of [the law]. He was sentenced to concurrent terms of imprisonment for these offenses. On his appeal to the Court of Appeals for the District of Columbia Circuit, that court first remanded the case to the District Court for an evidentiary hearing concerning the scope of the search of respondent’s person which and occurred at the time of his arrest. The District Court made findings of fact and conclusions of law adverse to respondent, and he again appealed. This time the Court of Appeals en banc reversed the judgment of conviction, holding that the heroin introduced in evidence against respondent had been obtained as a result of a search which violated the Fourth Amendment to the United States Constitution.We granted certiorari, and set the case for argument together with Gustafson v. Florida, also decided today.

On April 23, 1968, at approximately 11 p.m., Officer Richard Jenks, a 15-year veteran of the District of Columbia Metropolitan Police Department, observed the respondent driving a 1965 Cadillac near the intersection of 8th and C Streets, N.E., in the District of Columbia. Jenks, as a result of previous investigation following a check of respondent’s operator’s permit four days earlier, determined there was reason to believe that respondent was operating a motor vehicle after the revocation of his operator’s permit. This is an offense defined by statute in the District of Columbia which carries a mandatory minimum jail term, a mandatory minimum fine, or both.

Jenks signaled respondent to stop the automobile, which respondent did, and all three of the occupants emerged from the car. At that point, Jenks informed respondent that he was under arrest for “operating after revocation and obtaining a permit by misrepresentation.” It was assumed by the Court of Appeals, and is conceded by the respondent here, that Jenks had probable cause to arrest respondent, and that he effected a full-custody arrest.

In accordance with procedures prescribed in police department instructions, Jenks then began to search respondent. He explained at a subsequent hearing that he was “face-to-face” with the respondent, and “placed [his] hands on [the respondent], my right hand to his left breast like this (demonstrating) and proceeded to pat him down thus [with the right hand].”

During this pat-down, Jenks felt an object in the left breast pocket of the heavy coat respondent was wearing, but testified that he “couldn’t tell what it was,” and also that he “couldn’t actually tell the size of it.” Jenks then reached into the pocket and pulled out the object, which turned out to be a “crumpled up cigarette package.” Jenks testified that, at this point he still did not know what was in the package:

“As I felt the package, I could feel objects in the package, but I couldn’t tell what they were. . . . I knew they weren’t cigarettes.”

The officer then opened the cigarette pack and found 14 gelatin capsules of white powder which he thought to be, and which later analysis proved to be, heroin. Jenks then continued his search of respondent to completion, feeling around his waist and trouser legs, and examining the remaining pockets. The heroin seized from the respondent was admitted into evidence at the trial which resulted in his conviction in the District Court.

The opinion for the plurality judges of the Court of Appeals, written by Judge Wright, the concurring opinion of Chief Judge Bazelon, and the dissenting opinion of Judge Wilkey, concurred in by three judges, gave careful and comprehensive treatment to the authority of a police officer to search the person of one who has been validly arrested and taken into custody. We conclude that the search conducted by Jenks in this case did not offend the limits imposed by the Fourth Amendment, and we therefore reverse the judgment of the Court of Appeals.


It is well settled that a search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment. This general exception has historically been formulated into two distinct propositions. The first is that a search may be made of the person of the arrestee by virtue of the lawful arrest. The second is that a search may be made of the area within the control of the arrestee.

Examination of this Court’s decisions shows that these two propositions have been treated quite differently. The validity of the search of a person incident to a lawful arrest has been regarded as settled from its first enunciation, and has remained virtually unchallenged until the present case. The validity of the second proposition, while likewise conceded in principle, has been subject to differing interpretations as to the extent of the area which may be searched.

Because the rule requiring exclusion of evidence obtained in violation of the Fourth Amendment was first enunciated in Weeks v. United States, it is understandable that virtually all of this Court’s search and seizure law has been developed since that time. In Weeks, the Court made clear its recognition of the validity of a search incident to a lawful arrest…

Throughout the series of cases in which the Court has addressed the second proposition relating to a search incident to a lawful arrest — the permissible area beyond the person of the arrestee which such a search may cover — no doubt has been expressed as to the unqualified authority of the arresting authority to search the person of the arrestee. In Chimel, where the Court overruled Rabinowitz and Harris as to the area of permissible search incident to a lawful arrest, full recognition was again given to the authority to search the person of the arrestee:

“When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction.”

Thus, the broadly stated rule, and the reasons for it, have been repeatedly affirmed in the decisions of this Court since Weeks v. United States, supra, nearly 60 years ago. Since the statements in the cases speak not simply in terms of an exception to the warrant requirement, but in terms of an affirmative authority to search, they clearly imply that such searches also meet the Fourth Amendment’s requirement of reasonableness.


In its decision of this case, the Court of Appeals decided that even after a police officer lawfully places a suspect under arrest for the purpose of taking him into custody, he may not ordinarily proceed to fully search the prisoner. He must, instead, conduct a limited frisk of the outer clothing and remove such weapons that he may, as a result of that limited frisk, reasonably believe and ascertain that the suspect has in his possession. While recognizing that Terry v. Ohio dealt with a permissible “frisk” incident to an investigative stop based on less than probable cause to arrest, the Court of Appeals felt that the principles of that case should be carried over to this probable cause arrest for driving while one’s license is revoked. Since there would be no further evidence of such a crime to be obtained in a search of the arrestee, the court held that only a search for weapons could be justified.

Terry v. Ohio did not involve an arrest for probable cause, and it made quite clear that the “protective frisk” for weapons which it approved might be conducted without probable cause. This Court’s opinion explicitly recognized that there is a “distinction in purpose, character, and extent between a search incident to an arrest and a limited search for weapons.”

“The former, although justified in part by the acknowledged necessity to protect the arresting officer from assault with a concealed weapon, is also justified on other grounds, and can therefore involve a relatively extensive exploration of the person. A search for weapons in the absence of probable cause to arrest, however, must, like any other search, be strictly circumscribed by the exigencies which justify its initiation. Thus, it must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby, and may realistically be characterized as something less than a ‘full’ search, even though it remains a serious intrusion.”

“. . . An arrest is a wholly different kind of intrusion upon individual freedom from a limited search for weapons, and the interests each is designed to serve are likewise quite different. An arrest is the initial stage of a criminal prosecution. It is intended to vindicate society’s interest in having its laws obeyed, and it is inevitably accompanied by future interference with the individual’s freedom of movement, whether or not trial or conviction ultimately follows. The protective search for weapons, on the other hand, constitutes a brief, though far from inconsiderable, intrusion upon the sanctity of the person.”

Terry therefore affords no basis to carry over to a probable cause arrest the limitations this Court placed on a stop-and-frisk search permissible without probable cause.


Virtually all of the statements of this Court affirming the existence of an unqualified authority to search incident to a lawful arrest are dicta. We would not, therefore, be foreclosed by principles of stare decisis from further examination into history and practice in order to see whether the sort of qualifications imposed by the Court of Appeals in this case were, in fact, intended by the Framers of the Fourth Amendment or recognized in cases decided prior to Weeks. Unfortunately, such authorities as exist are sparse. Such common law treatises as Blackstone’s Commentaries and Holmes’ Common Law are simply silent on the subject. Pollock and Maitland, in their History of English Law, describe the law of arrest as “rough and rude” before the time of Edward I, but do not address the authority to search incident to arrest.

While these earlier authorities are sketchy, they tend to support the broad statement of the authority to search incident to arrest found in the successive decisions of this Court, rather than the restrictive one which was applied by the Court of Appeals in this case. The scarcity of case law before Weeks is doubtless due in part to the fact that the exclusionary rule there enunciated had been first adopted only 11 years earlier in Iowa; but it would seem to be also due in part to the fact that the issue was regarded as well settled.

The Court of Appeals in effect determined that the only reason supporting the authority for a full search incident to lawful arrest was the possibility of discovery of evidence or fruits. Concluding that there could be no evidence or fruits in the case of an offense such as that with which respondent was charged, it held that any protective search would have to be limited by the conditions laid down in Terry for a search upon less than probable cause to arrest. Quite apart from the fact that Terry clearly recognized the distinction between the two types of searches, and that a different rule governed one than governed the other, we find additional reason to disagree with the Court of Appeals.

The justification or reason for the authority to search incident to a lawful arrest rests quite as much on the need to disarm the suspect in order to take him into custody as it does on the need to preserve evidence on his person for later use at trial. The standards traditionally governing a search incident to lawful arrest are not, therefore, commuted to the stricter Terry standards by the absence of probable fruits or further evidence of the particular crime for which the arrest is made.

Nor are we inclined, on the basis of what seems to us to be a rather speculative judgment, to qualify the breadth of the general authority to search incident to a lawful custodial arrest on an assumption that persons arrested for the offense of driving while their licenses have been revoked are less likely to possess dangerous weapons than are those arrested for other crimes. It is scarcely open to doubt that the danger to an officer is far greater in the case of the extended exposure which follows the taking of a suspect into custody and transporting him to the police station than in the case of the relatively fleeting contact resulting from the typical Terry-type stop. This is an adequate basis for treating all custodial arrests alike for purposes of search justification.

But quite apart from these distinctions, our more fundamental disagreement with the Court of Appeals arises from its suggestion that there must be litigated in each case the issue of whether or not there was present one of the reasons supporting the authority for a search of the person incident to a lawful arrest. We do not think the long line of authorities of this Court dating back to Weeks, or what we can glean from the history of practice in this country and in England, requires such a case-by-case adjudication. A police officer’s determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would, in fact, be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that, in the case of a lawful custodial arrest, a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a “reasonable” search under that Amendment.


The search of respondent’s person conducted by Officer Jenks in this case and the seizure from him of the heroin, were permissible under established Fourth Amendment law. … Since it is the fact of custodial arrest which gives rise to the authority to search, it is of no moment that Jenks did not indicate any subjective fear of the respondent or that he did not himself suspect that respondent was armed. Having in the course of a lawful search come upon the crumpled package of cigarettes, he was entitled to inspect it; and when his inspection revealed the heroin capsules, he was entitled to seize them as “fruits, instrumentalities, or contraband” probative of criminal conduct.

The judgment of the Court of Appeals holding otherwise is Reversed.

MR. JUSTICE POWELL, concurring. 

Although I join the opinions of the Court, I write briefly to emphasize what seems to me to be the essential premise of our decisions.

The Fourth Amendment safeguards the right of “the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. . . .” These are areas of an individual’s life about which he entertains legitimate expectations of privacy. I believe that an individual lawfully subjected to a custodial arrest retains no significant Fourth Amendment interest in the privacy of his person. Under this view, the custodial arrest is the significant intrusion of state power into the privacy of one’s person. If the arrest is lawful, the privacy interest guarded by the Fourth Amendment is subordinated to a legitimate and overriding governmental concern. No reason then exists to frustrate law enforcement by requiring some independent justification for a search incident to a lawful custodial arrest. This seems to me the reason that a valid arrest justifies a full search of the person, even if that search is not narrowly limited by the twin rationales of seizing evidence and disarming the arrestee.  The search incident to arrest is reasonable under the Fourth Amendment because the privacy interest protected by that constitutional guarantee is legitimately abated by the fact of arrest.


Certain fundamental principles have characterized this Court’s Fourth Amendment jurisprudence over the years. Perhaps the most basic of these was expressed by Mr. Justice Butler, speaking for a unanimous Court in Go-Bart Co. v. United States (1931): “There is no formula for the determination of reasonableness. Each case is to be decided on its own facts and circumstances.” As we recently held:

“The constitutional validity of a warrantless search is preeminently the sort of question which can only be decided in the concrete factual context of the individual case.”

And the intensive, at times painstaking, case-by-case analysis characteristic of our Fourth Amendment decisions bespeaks our “jealous regard for maintaining the integrity of individual rights.” 

In the present case, however, the majority turns its back on these principles, holding that “the fact of the lawful arrest” always establishes the authority to conduct a full search of the arrestee’s person, regardless of whether, in a particular case “there was present one of the reasons supporting the authority for a search of the person incident to a lawful arrest.” The majority’s approach represents a clear and marked departure from our long tradition of case-by-case adjudication of the reasonableness of searches and seizures under the Fourth Amendment. I continue to believe that

“[t]he scheme of the Fourth Amendment becomes meaningful only when it is assured that, at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances.”

Because I find the majority’s reasoning to be at odds with these fundamental principles, I must respectfully dissent.


On April 19, 1968, Officer Richard Jenks stopped a 1965 Cadillac driven by respondent at the intersection of 9th and U Streets, N.W. in the District of Columbia, for what was called a “routine spot check.” At that time, Officer Jenks examined respondent’s temporary operator’s permit, automobile registration card, and Selective Service classification card. Although he permitted respondent to go on his way, Officer Jenks pursued a discrepancy he had noted between the “1938” date of birth given on the operator’s permit and the “1927” date of birth given on the Selective Service card. A check of police traffic records showed that an operator’s permit issued to one Willie Robinson, Jr., born in 1927, had been revoked, and that a temporary operator’s permit had subsequently been issued to one Willie Robinson, born in 1938. The pictures on the revoked permit and on the application for the temporary permit were of the same man — the person stopped by Jenks for the routine check on April 19. Having investigated the matter himself in this fashion, it is clear that Officer Jenks had probable cause to believe that respondent had violated a provision of the District of Columbia Motor Vehicle Code making it unlawful for any person to operate a motor vehicle in the District during the period for which his operator’s permit is revoked.

Four days later, on April 23, 1968, while on duty in their patrol car, Officer Jenks and his partner saw respondent driving the same vehicle. They pulled up behind respondent’s car and signaled it to stop. From all indications in the record, respondent immediately complied and brought his car to a stop alongside the curb, the officers parking their patrol car immediately behind his.

Respondent got out of his car and walked back toward the patrol car. Both Officer Jenks and his partner got out of the patrol car and started toward respondent’s car. Officer Jenks asked respondent for his permit and registration card and, when shown the same permit respondent had given him four days earlier, informed respondent that he was under arrest for operating a motor vehicle after revocation of his operator’s permit.

Jenks then began to search respondent. His normal procedure in conducting a search of an arrestee would be to “have him spread-eagle over a wall or something of that nature.” But in Jenks’ own words, “I think almost every search is different. It depends on the man’s size and the nature of the crime.” Since he had a substantial height and weight advantage over respondent, and because the arrest was only for a traffic offense, Jenks chose instead to conduct the search face to face, in contrast to his normal practice.

The first step in the search was for Jenks to place both his hands on respondent’s chest and begin to pat him down. During this pat -down, Jenks felt something in the left breast pocket of respondent’s heavy overcoat. Jenks later testified that he could not immediately tell what was in the pocket. The record does indicate, however, that the object did not feel like a gun, and that Jenks had no particular indication it was a weapon of any kind. Nonetheless, he reached into the pocket and took the object out. It turned out to be a crumpled-up cigarette package.

With the package now in his hands, Jenks could feel objects inside, but could not tell what they were. It does not appear that Jenks had any reason to believe, or did, in fact, believe, that the objects were weapons of any sort. He nevertheless opened up the package and looked inside, thereby finding the gelatin capsules of heroin which were introduced against respondent at his trial for the possession and facilitation of concealment of heroin.


 Mr. Justice Jackson, writing for the Court in Johnson v. United States (1948), explained:

“The point of the Fourth Amendment which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. . . . When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.”

The majority’s fear of overruling the “quick ad hoc judgment” of the police officer is thus inconsistent with the very function of the Amendment — to ensure that the quick ad hoc judgments of police officers are subject to review and control by the judiciary.

In the vast majority of cases, the determination of when the right of privacy must reasonably yield to the right of search is required to be made by a neutral judicial officer before the search is conducted. … The requirement that the police seek prior approval of a search from a judicial officer is, no doubt, subject to “a few specifically established and well delineated exceptions,” including searches … incident to a lawful arrest. But because an exception is invoked to justify a search without a warrant does not preclude further judicial inquiry into the reasonableness of that search. It is the role of the judiciary, not of police officers, to delimit the scope of exceptions to the warrant requirement.

“[T]he general requirement that a search warrant be obtained is not lightly to be dispensed with, and ‘the burden is on those seeking [an] exemption [from the requirement] to show the need for it. . . .'”

Exceptions to the warrant requirement are not talismans precluding further judicial inquiry whenever they are invoked, but rather are “jealously and carefully drawn.” 

Carrying out our mandate of delineating the proper scope of the “search incident to arrest” exception requires consideration of the purposes of that exception as they apply to the particular search that occurred in this case. Yet the majority, rather than focusing on the facts of this case, places great emphasis on the police department order which instructed Officer Jenks to conduct a full search and to examine carefully everything he found whenever making an in-custody arrest. …

The majority also suggests that the Court of Appeals reached a novel and unprecedented result by imposing qualifications on the historically recognized authority to conduct a full search incident to a lawful arrest. Nothing could be further from the truth, as the Court of Appeals itself was so careful to point out.

One need not go back to Blackstone’s Commentaries, Holmes’ Common Law, or Pollock & Maitland in search of precedent for the approach adopted by the Court of Appeals. Indeed, given the fact that mass production of the automobile did not begin until the early decades of the present century, I find it somewhat puzzling that the majority even looks to these sources for guidance on the only question presented in this case: the permissible scope of a search of the person incident to a lawful arrest for violation of a motor vehicle regulation. The fact is that this question has been considered by several state and federal courts, the vast majority of which have held that, absent special circumstances, a police officer has no right to conduct a full search of the person incident to a lawful arrest for violation of a motor vehicle regulation.

Accordingly, I think it disingenuous for the Court to now pronounce that what precedents exist on the question

“tend to support the broad statement of the authority to search incident to arrest found in the successive decisions of this Court, rather than the restrictive one which was applied by the Court of Appeals in this ease.”

It is disquieting, to say the least, to see the Court at once admit that “[v]irtually all of the statements of this Court affirming the existence of an unqualified authority to search incident to a lawful arrest are dicta” and concede that we are presented with an open question on which “further examination into history and practice” would be helpful, yet then conduct an examination into prior practice which is not only wholly superficial, but totally inaccurate and misleading.

The majority’s attempt to avoid case-by-case adjudication of Fourth Amendment issues is not only misguided as a matter of principle, but is also doomed to fail as a matter of practical application. As the majority itself is well aware, the powers granted the police in this case are strong ones, subject to potential abuse. Although, in this particular case, Officer Jenks was required by police department regulations to make an in-custody arrest, rather than to issue a citation, in most jurisdictions and for most traffic offenses, the determination of whether to issue a citation or effect a full arrest is discretionary with the officer. There is always the possibility that a police officer, lacking probable cause to obtain a search warrant, will use a traffic arrest as a pretext to conduct a search. I suggest this possibility not to impugn the integrity of our police, but merely to point out that case-by-case adjudication will always be necessary to determine whether a full arrest was effected for purely legitimate reasons or, rather, as a pretext for searching the arrestee. “An arrest may not be used as a pretext to search for evidence.”  


 The majority states that

“[a]police officer’s determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search.”

No precedent is cited for this broad assertion — not surprisingly, since there is none. Indeed, we only recently rejected such

“a rigid, all-or-nothing model of justification and regulation under the Amendment, [for] it obscures the utility of limitations upon the scope, as well as the initiation, of police action as a means of constitutional regulation. This Court has held in the past that a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope.”

As we there concluded,

“in determining whether the seizure and search were ‘unreasonable,’ our inquiry is a dual one — whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.”

As I view the matter, the search in this case divides into three distinct phases: the pat-down of respondent’s coat pocket; the removal of the unknown object from the pocket; and the opening of the crumpled-up cigarette package.


No question is raised here concerning the lawfulness of the pat-down of respondent’s coat pocket. The Court of Appeals unanimously affirmed the right of a police officer to conduct a limited frisk for weapons when making an in-custody arrest, regardless of the nature of the crime for which the arrest was made. …


With respect to the removal of the unknown object from the coat pocket, the first issue presented is whether that aspect of the search can be sustained as part of the limited frisk for weapons. The weapons search approved by the Court of Appeals was modeled upon the narrowly drawn protective search for weapons authorized in Terry, which consists “of a limited patting of the outer clothing of the suspect for concealed objects which might be used as instruments of assault.” 

It appears to have been conceded by the Government below that the removal of the object from respondent’s coat pocket exceeded the scope of a Terry frisk for weapons, since, under Terry, an officer may not remove an object from the suspect’s pockets unless he has reason to believe it to be a dangerous weapon.

The underlying rationale of a search incident to arrest of a traffic offender initially suggests as reasonable a search whose scope is similar to the protective weapons frisk permitted in Terry. A search incident to arrest, as the majority indicates, has two basic functions: the removal of weapons the arrestee might use to resist arrest or effect an escape, and the seizure of evidence or fruits of the crime for which the arrest is made, so as to prevent their concealment or destruction. 

The Government does not now contend that the search of respondent’s pocket can be justified by any need to find and seize evidence in order to present its concealment or destruction, for, as the Court of Appeals found, there is no evidence or fruits of the offense with which respondent was charged. The only rationale for a search in this case, then, is the removal of weapons which the arrestee might use to harm the officer and attempt an escape. This rationale, of course, is identical to the rationale of the search permitted in Terry. As we said there,

“The sole justification of the search in the present situation is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.”

Since the underlying rationale of a Terry search and the search of a traffic violator are identical, the Court of Appeals held that the scope of the searches must be the same. And in view of its conclusion that the removal of the object from respondent’s coat pocket exceeded the scope of a lawful Terry frisk, a conclusion not disputed by the Government or challenged by the majority here, the plurality of the Court of Appeals held that the removal of the package exceeded the scope of a lawful search incident to arrest of a traffic violator.

The problem with this approach, however, is that it ignores several significant differences between the context in which a search incident to arrest for a traffic violation is made, and the situation presented in Terry. Some of these differences would appear to suggest permitting a more thorough search in this case than was permitted in Terry;other differences suggest a narrower, more limited right to search than was there recognized.

The most obvious difference between the two contexts relates to whether the officer has cause to believe that the individual he is dealing with possesses weapons which might be used against him.Terry did not permit an officer to conduct a weapons frisk of anyone he lawfully stopped on the street, but rather, only where “he has reason to believe that he is dealing with an armed and dangerous individual. . . .”  While the policeman who arrests a suspected rapist or robber may well have reason to believe he is dealing with an armed and dangerous person, certainly this does not hold true with equal force with respect to a person arrested for a motor vehicle violation of the sort involved in this case.

Nor was there any particular reason in this case to believe that respondent was dangerous. He had not attempted to evade arrest, but had quickly complied with the police both in bringing his car to a stop after being signaled to do so and in producing the documents Officer Jenks requested. In fact, Jenks admitted that he searched respondent face to face, rather than in spread-eagle fashion, because he had no reason to believe respondent would be violent.


The majority opinion fails to recognize that the search conducted by Officer Jenks did not merely involve a search of respondent’s person. It also included a separate search of effects found on his person. And even were we to assume, arguendo, that it was reasonable for Jenks to remove the object he felt in respondent’s pocket, clearly there was no justification consistent with the Fourth Amendment which would authorize his opening the package and looking inside.

To begin with, after Jenks had the cigarette package in his hands, there is no indication that he had reason to believe or did, in fact, believe that the package contained a weapon. More importantly, even if the crumpled-up cigarette package had, in fact, contained some sort of small weapon, it would have been impossible for respondent to have used it once the package was in the officer’s hands. Opening the package, therefore, did not further the protective purpose of the search. Even the dissenting opinion in the Court of Appeals conceded that, “since the package was now in the officer’s possession, any risk of the prisoner’s use of a weapon in this package had been eliminated.”

It is suggested, however, that, since the custodial arrest itself represents a significant intrusion into the privacy of the person, any additional intrusion by way of opening or examining effects found on the person is not worthy of constitutional protection. But such an approach was expressly rejected by the Court in Chimel. There, it was suggested that, since the police had lawfully entered petitioner’s house to effect an arrest, the additional invasion of privacy stemming from an accompanying search of the entire house was inconsequential. The Court answered:

“[W]e can see no reason why, simply because some interference with an individual’s privacy and freedom of movement has lawfully taken place, further intrusions should automatically be allowed despite the absence of a warrant that the Fourth Amendment would otherwise require.”

The Fourth Amendment preserves the right of “the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. . . .” Chimel established the principle that the lawful right of the police to interfere with the security of the person did not, standing alone, automatically confer the right to interfere with the security and privacy of his house. Hence, the mere fact of an arrest should be no justification, in and of itself, for invading the privacy of the individual’s personal effects.

The Government argues that it is difficult to see what constitutionally protected “expectation of privacy” a prisoner has in the interior of a cigarette pack. One wonders if the result in this case would have been the same were respondent a businessman who was lawfully taken into custody for driving without a license and whose wallet was taken from him by the police. Would it be reasonable for the police officer, because of the possibility that a razor blade was hidden somewhere in the wallet, to open it, remove all the contents, and examine each item carefully. Or suppose a lawyer lawfully arrested for a traffic offense is found to have a sealed envelope on his person. Would it be permissible for the arresting officer to tear open the envelope in order to make sure that it did not contain a clandestine weapon — perhaps a pin or a razor blade? Would it not be more consonant with the purpose of the Fourth Amendment and the legitimate needs of the police to require the officer, if he has any question whatsoever about what the wallet or letter contains, to hold on to it until the arrestee is brought to the precinct station?

I, for one, cannot characterize any of these intrusions into the privacy of an individual’s papers and effects as being negligible incidents to the more serious intrusion into the individual’s privacy stemming from the arrest itself. Nor can any principled distinction be drawn between the hypothetical searches I have posed and the search of the cigarette package in this case. The only reasoned distinction is between warrantless searches which serve legitimate protective and evidentiary functions and those that do not. 

The search conducted by Officer Jenks in this case went far beyond what was reasonably necessary to protect him from harm or to ensure that respondent would not effect an escape from custody. In my view, it therefore fell outside the scope of a properly drawn “search incident to arrest” exception to the Fourth Amendment’s warrant requirement. I would affirm the judgment of the Court of Appeals holding that the fruits of the search should have been suppressed at respondent’s trial.

Nor would it necessarily have been reasonable for the police to have opened the cigarette package at the police station. The Government argued below, as an alternative theory to justify the search in this case, that, when a suspect is booked and is about to be placed in station house detention, it is reasonable to search his person to prevent the introduction of weapons or contraband into the jail facility and to inventory the personal effects found on the suspect. Since respondent’s cigarette package would have been removed and opened at the station house anyway, the argument goes, the search might just as well take place in the field at the time of the arrest. This argument fails for two reasons. First, the justification for stationhouse searches is not the booking process itself, but rather the fact that the suspect will be placed in jail. In the District of Columbia, petty offenses of the sort involved in the present case are bailable, and, as the Government stipulated in Mills, the normal procedure is for offenders to be advised of the opportunity to post collateral at the station house and to avoid an inventory search unless they are unable or refuse to do so. One cannot justify a full search in the field on a subsequent event that quite possibly may never take place.

Second, even had it become necessary to place respondent in confinement, it is still doubtful whether one could justify opening up the cigarette package and examining its contents. The purposes of preventing the introduction of weapons or contraband into the jail facility are fully served simply by removing the package from the prisoner. It is argued that the police must inventory effects found on the prisoner in order to avoid a later claim by the prisoner that jail personnel stole his property. But as the Court of Appeals noted in Mills, the police can protect themselves against such claims by means involving a less extreme intrusion on privacy than would be entailed in opening up and examining the contents of all effects found on the person. As an example, the Court of Appeals suggested that the prisoner be given

“an opportunity, like that accorded someone given a bathhouse locker for temporary use, to ‘check’ his belongings in a sealed envelope, perhaps upon executing a waiver releasing the officer of any responsibility.”

The Government also suggested in oral argument before this Court that it would be administratively inconvenient to require a police officer, after removing an object from an arrestee, to hold on to the object, rather than to look inside and determine what it contained. Mere administrative inconvenience, however, cannot justify invasion of Fourth Amendment rights. One can no doubt imagine cases where the inconvenience might be so substantial as to interfere with the task of transporting the suspect into custody. While these situations might necessitate a different rule, certainly in this case there would have been no inconvenience whatsoever. Officer Jenks could easily have placed the cigarette package in his own pocket or handed it to his partner to hold onto until they reached the precinct station.

Opinion text from the US Supreme Court Center at Justia, edited by Rebecca D. Gill.


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.