KATZ v. UNITED STATES
Acting on a suspicion that Katz was transmitting gambling information over the phone to clients in other states, Federal agents attached an eavesdropping device to the outside of a public phone booth used by Katz. Based on recordings of his end of the conversations, Katz was convicted under an eight- count indictment for the illegal transmission of wagering information from Los Angeles to Boston and Miami. On appeal, Katz challanged his conviction arguing that the recordings could not be used as evidence against him. The Court of Appeals rejected this point, noting the absence of a physical intrusion into the phone booth itself. The Court granted certiorari.
Does the Fourth Amendment protection against unreasonable searches and seizures require the police to obtain a search warrant in order to wiretap a public pay phone?
Legal provision: Amendment 4: Fourth Amendment
Yes. The Court ruled that Katz was entitled to Fourth Amendment protection for his conversations and that a physical intrusion into the area he occupied was unnecessary to bring the Amendment into play. "The Fourth Amendment protects people, not places," wrote Justice Potter Stewart for the Court. A concurring opinion by John Marshall Harlan introduced the idea of a 'reasonable' expectation of Fourth Amendment protection.
Argument of Harvey A. Schneider
Chief Justice Earl Warren: Number 35, Charles Katz, Petitioner versus United States.
Mr. Schneider: Mr. Chief Justice, and may it please the Court.
The facts of this case that is now before the Court are really quite simple.
The law applicable is something else again.
But the facts are as follows.
Mr. Katz was surveilled by agents of the Federal Bureau of Investigation for a period of approximately six days.
During that period of time, the surveillance was conducted by the use of a microphone being taped on top of a public telephone booth or a bank of booths, so it was actually three booths.
One booth had been placed out of order by the telephone company and with the telephone company's cooperation, the other two booths were used by Mr. Katz.
Sometimes he used one booth, sometimes he used another.
The tape was placed on top of the booth or the microphone was placed on top by a tape.
The FBI Agents had undoubtedly read their homework and had not physically penetrated into the area of the telephone booth.
Subsequently after about six days of surveillance, Mr. Katz was arrested.
He was then taken to his apartment building where his room was searched under a search warrant and numerous items were seized from Mr. Katz's apartment.
The issues before the Court are fairly clear.
One, whether or not, the search and seizure or one of the interceptions of the telephone communications was proscribed by the Fourth Amendment; and two, whether or not the warrant that was used to search his apartment building is constitutionally proper or constitutionally defective.
Justice Brennan: Was the warrant placed on -- was the warrant obtained on the information and obtained through bugging?
Mr. Schneider: Yes, Your Honor, to a large extent --
Justice Brennan: Or analyze the wrong word when you say bugging or --
Mr. Schneider: Sir I'm sorry, I didn't hear.
Justice Brennan: What is it?
I just said bugging.
Is this a bugging thing or something else?
Mr. Schneider: That's a good question, Your Honor.
I'm not sure.
It's certainly the lower court in making the District Court in making its determination said that it did not think it was a bugging device.
It's certainly not a wiretap because I understand that historically a wiretap includes tapping into a line.
They certainly didn't do these.
I -- we consider it generally a bugging but whether to not, it's technically a bugging or a common sense.
Justice John M. Harlan: (Voice Overlap) it's bugging.
Mr. Schneider: I don't know.
I think it is a bugging to me.
In some, it's an interception.
That's what it is, whether to not --
Justice John M. Harlan: Artificial, is it?
Mr. Schneider: That's correct.
I don't think what label you put on it.
Whether you put it label on a bugging or anything else, makes any difference.
Justice Brennan: Isn't that this just -- this just pick up only what Katz said over the telephone or did it also pick up what was said to him?
Mr. Schneider: There was a -- the FBI Agent testified, Your Honor, that in one instance a third party came into the booth.
His conversation was recorded.
And they said they did not listen to that conversation, but in fact it was recorded.
It was then refuted that they did not listen but it was recorded.
To my knowledge and the record indicates, that was the only instance in which the --
Justice Brennan: That was two-way, was it?
A two-way conversation.
Mr. Schneider: No, they can only pick up Mr. Katz's into the conversation.
Justice Brennan: That's what I want to get.
That's all they could pick up.
Mr. Schneider: Yes sir.
I thought you meant whether it's a third person under that Mr.Katz was intercepted.
Justice Brennan: No, but they get only Mr. Katz's in the conversation.
Mr. Schneider: Yes sir.
Justice Potter Stewart: How was this taken?
Was this automatically recorded?
Is that it?
Mr. Schneider: The way it worked was that there were approximately five agents who were operating on the team.
Mr.Katz would leave his apartment building on a certain specified time.
The agents would see him leave.
They would radio to another group of agents who were waiting near the booth.
This agent would run over and activate the microphone that was taped on top of the booth.
The sounds would be reflected into the microphone and then ultimately to a tape recorder which recorded the conversation.
Justice Potter Stewart: Where was the tape recorder?
Mr. Schneider: I assume it was on the agent's car over a nearby alley.
Justice Potter Stewart: Now, did you answer me that the affidavit had come which the warrant was obtained?
Was the information obtained in this way?
Mr. Schneider: Yes sir.
The affidavit definitely was based to a large extent in our view upon information obtained by use of this interception.
Justice John M. Harlan: How long did this bugging device (Inaudible)?
Mr. Schneider: Well, as I understand the testimony of the agent, they tried to activate it when he was about a block away from the telephone booth.
So whether what walking distance of a block is, it was activated all during the time that he was in the booth.
And then as soon as they saw him leave, they would deactivate it.
Now, this conversations ranged anywhere from four to 10 or 12 minutes, so it would be activated in a period of probably 15 minutes in total kind of a time that they act prior to the time they reach the booth and --
Justice John M. Harlan: (Inaudible)
Mr. Schneider: Yes, the surveillance then act --
Justice John M. Harlan: (Inaudible)
Mr. Schneider: That is correct.
Justice John M. Harlan: (Inaudible) based on the knowledge and investigation in these booths (Inaudible).
Mr. Schneider: Yes sir, the surveillance began, I believe it was February 19.
They have the -- the interceptions began on February 19.
They actually had him under surveillance and notice that he used that booth approximately three weeks prior to that.
Justice John M. Harlan: There is no warrant or anything?
Mr. Schneider: No sir, to search the booth or intercept the message.
Justice John M. Harlan: (Voice Overlap).
Mr. Schneider: No sir.
Chief Justice Earl Warren: The Government's claim that they have probable cause for arresting him at the time they put this bug on?
Mr. Schneider: I am not clear to the Government's position on that point, I think they do.
We contend that they did not but the Government probably will explain that in detail.
In any event, after the following of certiorari in this case, Your Honor, the Court's decision of Berger versus of New York; we think, is somewhat simplified with the problem that we had presented here.
There was some question, I think, up to that time.
Maybe there was some question as to whether or not a conversation was the subject or the proper subject of the Fourth Amendment protections.
And whether you could -- the capture of such conversation was a search in seizure.
In Berger, this Court specifically so held and perhaps Mr.Justice Douglas' comment that the Olmstead was overruled sub silentio is accurate.
We believe it is.
We think that if you begin with what seems to be the undeniable premise that the interception in the instant case of a telephone communication is within the Fourth Amendment.
That is this subject of a potential search and seizure.
Then this case is very easy and it sort of turns on what the Chief Justice has said about a moment ago about the interceptions itself.
It should be pointed out to the Court that the interceptions are accomplished without a warrant and they cannot be justified as incident to a lawful arrest for the following reason.
Of course this Court has said incurred that searches and seizures are justifiable in only three instances.
One involves consensual search, which of course is not involve in this case.
The other two instances is being search with a warrant and instant to lawful arrest.
As I said no warrant in this case and the arrest in this case was after all of the electronic interception took place.
So as I understand the federal rule that since the search was -- preceded the arrest, it could not be justified as incidental to a lawful arrest.
On that basis alone, on the base of the interception, was not without warrant -- not incidental and as we conclude in and respectfully submit that the case is decidable in that point alone and it should be reversed on that point alone.
However -- and this is the reason we're here.
One possible way to get around this argument that, it was not in illegal search and seizure.
It evolves around the determination of the issue of whether or not a telephone booth is a constitutionally protected area.
And of course, that's the issue on which certiorari was granted.
We think and respectfully submit to the Court that whether or not, a telephone booth or any area is constitutionally protected, is the wrong initial inquiry.
We do not believe that the question should be determined as to whether or not, let's say you have an invasion of a constitutionally protected area, that shouldn't be the initial inquiry, but rather that probably should be the conclusion that is reached after the application of a test such as that we propose are similar test.
Now, we have proposed in our brief and there's nothing magical or ingenious about our test.
It's an objective test which stresses the rule of reason, we think.
The test really asks or opposes the question, “Would a reasonable person objectively looking at the communication setting, the situation and location of a communicator and communicatee -- would he reasonably believe that that communication was intended to be confidential?”
We think that in applying this test there are several criteria that can be used.
Justice William J. Brennan: So that parabolic mic on the two people conversing in the field a mile away might --
Mr. Schneider: Absolutely.
And I think that Hester, the Hester case which is cited on the Government's brief, we think that Hester is wrong.
We think that if a confidential communication was intended and all the other aspects of confidentiality are present, then it makes no difference whether you're in an open field or in the privacy of your own home.
We would submit to the Court that there are factors present which would tend to give the Courts, the trial courts, and ultimately this Court, some guidelines as to whether or not objectively speaking, the communication was intended to be private.
Justice Byron R. White: I take it you would make the same argument instead of the agents instead in a joining booth can listen with the ear.
Mr. Schneider: I would make the same argument in what respect?
I'm not sure if the Court --
Justice Byron R. White: That the conversation has illegally succeeded, that it is inadmissible.
Mr. Schneider: No, I would not -- I may or may not make or deprived that conclusion, depending upon the application of the test that I'm suggesting.
For example --
Justice Byron R. White: What was that?
Certainly the test is exactly the same with same results and certainly intended to be confidential.
Mr. Schneider: No, but if I may respectfully state to the Court that there are certain elements or certain items which are to be -- I think should be considered in determining whether or not objectively speaking.
I think if I understand the importance of the Court's question, the Court is, Mr.Justice White is suggesting a subjective test whether or not the person who is conducting the conversation intended his communication to be private.
And of course, almost in every instance, the answer to that question would be in the affirmative.
I'm suggesting rather an objective test whether third party looking at the overall seemed would arrive at that conclusion.
I think that such items --
Justice Potter Stewart: In other words, it's possible that you're in a telephone booth.
Mr. Schneider: Sir?
Justice Potter Stewart: If you are in the telephone booth, the possibility that someone with the naked ear might stick his ears next to the wall, bares on whether or not that's actually the situation that might be regarded confidential.
Mr. Schneider: In my view, yes.
I believe the following factors at least should be included in an analysis of this problem.
One, what is the physical location?
In other words, where did the conversation take place?
Was it in a situation where numerous persons were present or whether just a few people present?
I think that bears on the issue.
I think the tone of voice bears on the issue.
I think that you can have a communication for example in your house which almost everyone would see all things being equal would be confidential.
However, if you use a loud enough voice, I think you destroy your own confidentiality.
Justice Potter Stewart: You have the windows open.
Mr. Schneider: Absolutely.
Justice Byron R. White: The authorities are -- these aren't the -- it shouldn't be able to enhance the sensitivity of the ears or use any artificial means to breach what otherwise objectively you'd say might be confidential conversation.
Mr. Schneider: Well, I can answer that in two ways.
First of all, I believe that the activity engaged in one of the enforcement officer is another one of the criteria to be applied in using this objective test.
I feel also that the answer to the question depends on whether you approach it from a private citizen or as a constitutional lawyer.
As a private citizen, if the Court is asking my question, I would not be in favor of any kind of bugging device.
As a constitutional lawyer, I believe that within the ambit of the Fourth Amendment and with the sufficient protections present, I think there can be bugging.
And I think this Court in Berger indicate that if there is sufficient protection present, that there can be in a given setting with probable cause and specificity in terms of items to be searched, in terms of persons to be searched, I think you might in a constitutional sense have a situation where an artificial listening device may be used.
Justice Byron R. White: So if it's a constitutionally protected area, you would say with the right procedures, you might be able to invade this area, but here they were not.
Those are procedures that don't occur.
Mr. Schneider: That's correct.
And again --
Justice Byron R. White: No warrant, no --
Mr. Schneider: That's absolutely correct.
And again, I really feel that the emphasis on whether or not you have a constitutionally protected area may be placing the emphasis on the wrong place.
We feel that the Fourth Amendment and at the Court's decisions recently for a long time, I believe, have indicated that the right to privacy is what's protected by the Fourth Amendment.
We feel that the right to privacy follows the individual.
And that whether or not, he's in a space when closed by four walls, and a ceiling, and a roof, or an auto-mobile, or any other physical location, is not determined of the issue of whether or not the communication can ultimately be declared confidential.
We think that the right to privacy follows the individual.
And if all the other aspects of confidentiality are present, he's entitled to the confidentiality of this communication that I think distinguishes the Hester case.
Justice John M. Harlan: What bearing do you have (Inaudible)?
Mr. Schneider: I think that taking Osborn and Berger together for example that these two cases read together would seem to indicate that if there are very particular measures taken, various specific measures taken, so that in the language of the Court or in other areas that the attached magistrate is imposed between the people who are trying to intercept and the communication they are attempting to intercept.
If those very specific qualities are present, then I think those two decisions can be read as saying that you can search and you can use a listening device if those objects are present.
That's how I read --
Justice William J. Brennan: Again that none of them was present here?
Mr. Schneider: No sir.
There's certainly no warrant, no attack, and the record does not indicate.
Justice John M. Harlan: (Inaudible)
Mr. Schneider: That is correct.
Of course, as I understand on those decisions that the decisions turned on the aspect of voluntariness and that the person whose communication was intercepted actually invited them in to talk.
They weren't doing anything that is devious insofar as gaining access to the place.
It's true that their communications were intercepted once they got access.
But I think that's to be distinguished from the instant case where the interception itself is devious, let alone with the interception.
Chief Justice Earl Warren: We'll recess now.
Mr. Schneider: I was enumerating it in a little detail.
The elements that we consider should be considered in applying this objective test that we proposed.
And may have I slit over on one of those items and I like to just briefly restate that.And that is this.
We think that the physical activity or physical position of the officer or law enforcement officer has to assume in order to overhear the communication is a relevant aspect to be considered.
Now, it's before this Court, although it is in the record that one of the FBI agents in this case observes or listens to telephone communications -- excuse me – listen to communications from Mr.Katz while occupying a hotel room or an apartment room next to Mr.Katz's.
The way he did this apparently was, he took of the electrical apparatus although, I assumed it was the wall plug where the sockets go.
Took that off of his side of his room and put his ear and probably used a drinking glass to magnify the sound.
Now, we think that those are the kind of things that show that the officer is going on a great length in order to obtain the communication.
With regard to that element alone, it would seem that if the other elements are present, then an unconstitutional search has arisen.
I think it's fairly clear if the Court please that under the test that we proposed or any similar objective test, that the physical trespass test which seems to be the rule enunciated in Goldman can no longer stand.
And we would request respectfully that Goldman be overruled.
And we see no way to get around overruling Goldman if in fact this new test or anything similar to it is going to be applied.
Justice John M. Harlan: Do you think that Olmstead would have to be overruled too?
Mr. Schneider: Well, we respectfully submit that --
Justice John M. Harlan: You already had.
Mr. Schneider: I think it has been, yes sir.
Justice John M. Harlan: You would have to say it's a strong sub silentio.
Mr. Schneider: Well, maybe not too strong, Your Honor, for this reason.As I understand what Olmstead said, it said that an interception of the kind that occurred in that case is not a search and is not a seizure.
Specifically in Berger, this Court held that the capture of a telephone conversation or a conversation isn't in the Fourth Amendment, and that it is a seizure.
I don't think that they can be reconciled, those two propositions.
Either Goldman over -- strike to either this Court in Berger overruled Olmstead.
I don't think it has to be said that it overruled it really very strongly subsequently.
I think it overruled him.
Justice John M. Harlan: At least in that case.
Mr. Schneider: That's case, yes sir.
Justice Byron R. White: But for you to win, Goldman must be overruled.
Mr. Schneider: No I don't -- not necessarily.
I think that we couldn't win here by showing under the Court rule for example there was a warrantless search not founded upon probable cause, and not incident to a lawful arrest.
I think on that basis alone, we would be entitled to reverse.
Justice Byron R. White: Yes, but that assumes if there has been some invasion in that that the private area and Goldman says there hasn't been a name.
Mr. Schneider: That assumes I suppose that you have to make the initial inquiry that there has been or that there is a constitutionally protected area.
Justice William J. Brennan: Well, really though, Goldman and that aspect of Olmstead, didn't they rather turn on the old notion of a trust facility intrusion?
Mr. Schneider: No question about it.
Justice William J. Brennan: And to the extent that Olmstead, that element of Olmstead that you have to see his tangibles, that Berger and Wong Sun, and others have said it's not so.
Conversation may be seized.
But certainly they are still to that extent at least expressly, even though what the Court has done in abandoning the old property concepts thinking of the last two.
It still remains I take it to the extent trespassory intrusions or an element of the Fourth Amendment protection.
That hasn't -- that argument hasn't yet been expressly ruled, has it?
Mr. Schneider: No --
Justice William J. Brennan: And therefore, won't you really have expressed it over Goldman?
Mr. Schneider: I --
Justice William J. Brennan: Here we don't have a trespassory intrusion.
Mr. Schneider: Well, of course it depends on how you define trespass.
Justice William J. Brennan: Well, I don't know, I must say.
This was on the top of this telephone booth.
Mr. Schneider: Well, certainly there was penetration of sound waves that went from --
Justice William J. Brennan: Oh!
I know that.
Mr. Schneider: So that's the trespass is about (Voice Overlap).
Justice William J. Brennan: But that I don't think is what trespassory meant before this.
Mr. Schneider: Well no I think --
Justice William J. Brennan: And in Berger, you did have a trespassory intrusion.
Mr. Schneider: That's correct.
Yes, I --
Justice William J. Brennan: I just think you would have to concede the element of trespassory intrusion is still not the expressly at least.
Mr. Schneider: I think that's probably a fair statement.
Justice Byron R. White: So you really have to do something with Goldman.
Mr. Schneider: Yes sir.
Justice William J. Brennan: Now, I must say, you certainly have what we've been saying properties into concepts are no longer the underpinning invasion of privacy.
That's going for you, then I still question whether there is that much left to go with Olmstead.
Mr. Schneider: I'm sorry I did not hear that.
Justice William J. Brennan: On whether there is still left both with Goldman and Olmstead.
Mr. Schneider: Whether or not, there is still vitality in those decisions.
I think it's clear that they have not been expressly overruled.
As far as the trespassory, we submit that they should be based on the Court's current trend of protecting privacy and getting away from political trespassers.
Justice William J. Brennan: Well I would suppose once -- when the Court has accepted and now it has, those privacy invasions of privacy rather than property concepts, trespassers are property concept.
Mr. Schneider: As far as I'm aware, that's true.
I mentioned briefly this morning in passing that along with the same notion at least to for a test or anything similar as this, the Hester case also has to go as well, at least that dictum.
I think it's dictum (Voice Overlap)
Justice William J. Brennan: Was that in this Court?
Mr. Schneider: Yes sir.
That was -- Mr.Justice Holmes wrote the opinion in that case, the short case actually, two agents had seen -- came on to the defendant's property, hid behind the bush or something.
From 50 or 100 yards away, they observed the defendant exchanging with the third person what I believe was the illegal or illicit alcoholic beverages or some kind.
The Court had the search and seizure issue before but held that really it didn't reach the search and seizure issue because it's said in effect that it was seeing the officers -- the agents were seeing a play enacted before their eyes and didn't have to do anything over in order to intercept.
At the very end of the appendix to the last or next to the last sentence Mr.Justice Holmes states in any of event, an open field is not entitled the Fourth Amendment protection.
I think that the statement was not necessary for the decision in the case.
May I also would submit that to the extent that any test similar that which we propose is accepted by the Court, a test you can not stand.
I've also indicated --
Justice Hugo L. Black: Could you state --
Mr. Schneider: Sir?
Justice John M. Harlan: Could you state this Court tested this as you propose?
Mr. Schneider: Yes, we propose a test using in a way it's not too dissimilar from a tort, that tort reasonable man test.
We're suggesting that what should be used is the communication setting should be observed and those items that should be considered are the tone of voice, the actual physical location where the conversation took place, the activities on the part of the officer.
When all those things are considered, we would ask that the test be applied as to whether or not a third person objectively looking at the entire scene could reasonably interpret and could reasonably say that the communicator intended his communication to be confidential.
Justice John M. Harlan: Both of us know that many people do (Inauidlbe).
Mr. Schneider: Then at least applying the elements of our case, he has certainly gone a step toward waiving the privilege.
If you can talk in terms of waiver, if he -- it has door closed even but talks in an extremely loud tone of voice so that anybody passing by or using an adjacent booth can overhear, I think he too has gone through a step toward shedding himself of the privilege.
Justice William J. Brennan: Well is that waiver so much analytically is that there's simply no invasion of privacy?
Mr. Schneider: I said, I didn't mean to put it in terms of waiver.
I think that's right.
I think that the constitutional protection would not apply the way to phrase it.
We -- I have indicated this morning that we think that the right to privacy which is the Fourth Amendment's concern, as I understand, follows the individual.
And we would base our contention upon this by reading or literal reading of the Fourth Amendment.
I respectfully call the Court's attention that the Fourth Amendment after paraphrasing a little bit here, but it says people have a right to be “Secure in their persons.”
That is the very first item of protection that is contained in the First Amendment.
It says persons of the Fourth Amendment.
It says persons then it says houses.
And I believe it says personal effects in one other item.
But it's significant to know what I think, that the very first item of protection in the Fourth Amendment is persons.
And we would contend that this fact is a little credence to our view, that privacy does follow the individual.
We have asked also, of course, to brief the issue of the warrant that was involved in this case and to argue on it.
As Mr.Justice Brennan pointed out earlier, I believe it was he that if there was an illegal search and seizure of the telephone communications, I believe that the warrant to the extent that it is based on the information obtained from that search and that seizure must fall because it would not be based upon probable cause.
I don't think there's sufficient evidence presented in the warrant absent the interception of the telephone communication to have enabled the agent to get a warrant, but assuming for purpose of argument that there is sufficient evidence or sufficient information present.
We would say that the warrant authorized the search for mere evidence.
Now, we recognized that this argument applies right in the face of the Court's recent decision in Hayden.
We are unable frankly to reconcile Hayden with Rule 41 of the Federal Rules of Criminal Procedure.
We think that rules --
Justice Potter Stewart: Well, let's say 41 authorizes expressly searches and seizures whether it's fruits --
Mr. Schneider: Fruits and instrumentalities.
Justice Potter Stewart: And you say that automatically that because it doesn't belong -- that in effect it excludes search for real mere evidence.
Mr. Schneider: In this respect, the Court in majority opinion in Hayden, Your Honor, stated that Rule 41 followed the Gouled decision and incorporated the test of Gouled.
And also the majority opinion in the case, that the 41 is a limitation or it consists of the limitation on the enforcement officers to get a warrant under a situation where mere evidence only or exclusively assault or in addition.
We think that the Congress has the right to make a statue or a rule as in this case more restrictive than that which is minimally required by this Court.
Justice Potter Stewart: This is not a constitutional argument.
This is just that there is presently no Federal Law which authorizes the seizure or mere evidence although we've now said it was a constitutional matter.
Mr. Schneider: It's permissible.
Justice Potter Stewart: It's permissible.
Mr. Schneider: That's right but we think that based on Gouled that Rule 41 was an attempt by the Congress to restrict it.
Justice Potter Stewart: Well I restricted it only in light of the law of Gouled.
Mr. Schneider: That's right but it hasn't been changed and as far as I know and unless there is another legislative enactment, I think that 41 still is the law.
Justice John M. Harlan: What position is here under the warrant?
Mr. Schneider: Numerous items, the return of the warrant of course is in the record.
There were such things as newspaper clippings, magazines, and telephone books.
There were to be sure items which would normally be quick, considered book making paraphernalia or handicapping information at least of slips markers that sort of thing.
Justice Potter Stewart: You don't think all of these would be instrumentality?
Mr. Schneider: Well I think the markers in the slips surely are.
Justice Potter Stewart: How about the telephone book?
Mr. Schneider: The telephone book?
I don't have (Voice Overlap).
Justice Potter Stewart: Wasn't there a long list of basketball results of various teams.
Mr. Schneider: That may well be.
That certainly the items that he was using in order to engage to what ever activity he engaged in.
I find it difficult to concede that newspaper clippings or copies of sport magazine and that sort of thing are fruits or instrumentalities.
I find it very difficult.
Justice Potter Stewart: Well the kind of the business in which he was engaged?
Mr. Schneider: Well, I think -- I frankly am unable to understand what fruits and instrumentalities really mean.
Justice Potter Stewart: I don't think anyone else did.
Mr. Schneider: Right.
So I must candidly admit that.
However, it seems to me, if you extend this proposition too far, I suppose and I don't mean to make light of the situation, but if he dials the telephone with his index finger, then the government's entitled to an amputation.
I don't think that's the law.
I think that you can -- there's no end to where you can go on this fruits and instrumentalities.
Unless there is anymore question, we have a divided argument on this case, Your Honor.
Mr.Martin -- and rebuttal after the government has presented its case.
If there are no other questions I would refer to Mr.Martin at this time.
Chief Justice Earl Warren: Very well.
Argument of John S. Martin, Jr.
Mr. Martin: Mr.Chief Justice, may it please the Court.
I think that the heart of petitioner's argument to a certain extent is a radical change in the concept to the Fourth Amendment.
I think as Mr.Justice Brennan mentioned, it has been said in recent years that the Fourth Amendment protects more rights of privacy than rights in property.
However this Court has never held the right of privacy protected by the Fourth Amendment, does not exist within the framework of a constitutionally protected area.
As counsel mentioned, Mr.Justice Holmes speaking for unanimous Court, this Court's opinion in Hester versus the United States, said very clearly, “The protections of the Fourth Amendment do not extend to an open field.
To adapt the test which counsel has suggested in this case would radically change the rules under which law enforcement has been operating for a long time with the approval of this Court, and I mean it in this sense.
It seems to me that to say that no matter where the activity takes place, it is protected by the Fourth Amendment.
The subjects to that Amendment not only the matter of what is overheard, but what is observed.
Assume, if you would please, the following situation.
Take the case that we have here.
And instead of the agents being interested in hearing what Mr.Marks said, but let's assume it was a kidnapping case and they knew that this booth had been used on one occasion too by the kidnapper to call with regard to ransom.
And the kidnapper had scheduled to call for eight o'clock in the evening.
So as not to scare him off, the agents might station themselves in another building some distance away, and armed with binoculars perhaps even in infrared scope that would allow them to see at night, put this telephone booth under surveillance.
The kidnapper would approach that booth.
He might look around to make sure that he was secured, that nobody was observing him.
He would be wrong in his conclusion.
I assumed that under Mr.Mark's -- Mr.Schneider's rationale that the fact that the agents saw him entered the booth, but they could not testify that that would be an unreasonable search and seizure.
I think that this Court has always recognized the doctrine.
That one is protected is the right to privacy which exists within a constitutionally protected area, within a home, within an office, some area in which the party involved has an interest.
It may not have to be a property interest of a tenant or an owner, maybe that of a guest in those premises.
But it exists only within the framework of a constitutionally protected area.
We submit on an analysis in that term what occurred here did not occur in a constitutionally protected area.
As we see it, there is no significant difference between the telephone booth involved in this case and an open field.
An occupant in a public telephone booth is just as subject to visual surveillance as a man standing in an open field.
These phone booths are neither designed nor are they considered to be totally sound proof.
It's rather easy to overhear this I think all of us know.
Justice Abe Fortas: I know.
But isn't the test somewhat closer to what a citizen like reasonably expect to -- they immunized from the particular kind of activity, whether it's oversight or overhearing.
Mr. Martin: Well I don't --
Justice Abe Fortas: Probably going into a glass telephone booth, I suppose can reasonably expect to be overseen that going into a glass telephone booth, assuming that it's reasonably soundproof which your -- says it is not.
But assuming that it's reasonably a soundproof, then going into a glass telephone booth might readily assume that he was conducting a private conversation.
Mr. Martin: Well I --
Justice Abe Fortas: Let me put to you another situation.
Suppose there's a large gathering on the Times Square and somebody is making a public speech there, he has to expect that he will be overheard.
That's his purpose and intention.
Suppose there on the crowd, a man is there with a friend and he turns to a friend to his family, said little something in a low tone of voice.
And at the same place at the same area, same plot of ground, same circumstances, but one expects that he will be overheard, and the other expects that what he is saying is in private.
Would you draw a distinction between those cases?
Mr. Martin: No, I would not, Mr.Justice Fortas.
Justice Abe Fortas: Why?
Mr. Martin: I think that --
Justice Abe Fortas: Do you it's because of the place?
Mr. Martin: That's correct.
What is taking place is taking place in the public area.
Seems to me if the --
Justice Abe Fortas: What's that got to do with anything?
Mr. Martin: Well --
Justice Abe Fortas: Well the Holmes' quotation, when you've take in context seems to me the reasonable any other man in an open view in an open field.
And I don't suppose you could never overseen --
Mr. Martin: That's correct.
Justice Abe Fortas: -- they could reasonably expect that they wouldn't be overseen.
Well if they use an example, I think Mr.Justice Brennan is in dissent or something.
That might very well be able to rely on the assumption that not being overheard and nobody is planning of a parabolic microphone or something of this sort to pick that conversation.
Mr. Martin: But it seems to me, Mr.Justice Fortas, that the difference between whether or not they feel that they're being overheard or that somebody is observing them from afar with binoculars is no difference.
Mr. Martin: It maybe that two people meet to pass stolen goods.
And they meet in an abandoned area that they think nobody is observing.
And if the --
Justice Abe Fortas: You mean privacy is restricted to the booth wall?
Mr. Martin: Not to the booth wall, certainly not to the booth wall, but it is restricted to some area in which there is a private interest.
I think that has been the law today.
That is the law that has been followed.
I don't -- what I'm getting at most particularly is I don't see drawing a distinction between overhearing and viewing.
And this Court has said on the number of occasions that it is perfectly proper to for law enforcement officials to use means to observe what is going on in distant areas, to use binoculars, telescopes that was mentioned Mr.Justice Brandeis, again running for unanimous court in United States versus Lee.
I think that this has always been recognized, and I don't see any rational basis withdrawing the distinction between what is being said and what is being done and being observed.
And we assumed that drawing on that concept, what is involved here is not an area.
That in which the occupant of the booth gets any private interest, while the booth might be provided for his convenience, certainly there is no difference in the rate he pays if that booth and if the phone is hung upon in open wall.
He takes no interest in the premises.
And we say under these circumstances, under the rule in the Hester case and the Lee case, this is not a constitutional protected area.
And therefore in the circumstance of this case, there was no violation of the Fourth Amendment.
But we suggest also that even if this Court were to find, that a public phone booth was entitled to some degree or protection under the Fourth Amendment, that what was done by the agents in this case, did meet the standards of the Fourth Amendment, when we're viewing the particular type of premises involved.
I would like if might to just go into some of the background of what was done in this case.
Early in February of 1965, the agents received information from reliable informants, which led them to believe that the petition in this case, Mr.Katz, was using the public phone, this particular public phone booth to place wages in interstate by calling Massachusetts.
On to that information, they undertook surveillance both to Katz.
They found that he was using this particular booth which was approximately four blocks from his hotel.
On a regular basis at regular periods of the day, having surveilled into this booth on a number of occasions they didn't check the telephone records, telephone company.
They found that he was calling the number of a known gambler in Massachusetts.
It was only after or they had all of this information that the agents undertook the surveillance in this case.
After they had all of this information they then set up a system involving a team of five agents.
The recorder was placed on the top of the phone booth.
It had two microphones.
One microphone was attached to each of two booths.
They were taped on the top of the booth.
The surveilling agents were there at the hotel.
They would follow Mr.Katz as he left his hotel and at a point approximately one and half blocks from the phone booth.
When he got to that point, the surveilling agents would call and radio to the agents at the booth, who at that point would go over and activate the recorder.
Justice William J. Brennan: What are the requirements for activating it?
Mr. Martin: Your Honor, it's just not clear in the record.
I assume that from all the description that it's found in the record, it seems to be just a regular tape recorder that you would just switch on.
Justice William J. Brennan: I see.
Mr. Martin: So they waited until he was coming.
They activated the recorder.
He came and placed his calls.
As soon as he left the area, the agents deactivated the recorder.
Indeed there was one occasion where he left the area, they gone over and turned it off.
They got where to he was coming back again.
They switch it back on.
But as soon as he was out of the area of the phone booth, that tape recorder was turned off.
The resembler was very careful on this case by the agents was only one occasion this was done for six days.
And only one day did an innocent party come in and used that booth during the period of surveillance.
The agents testified with regard to that conversation that the --
Justice Byron R. White: What difference does it make into your argument that it didn't all scare -- you say that this is a constitutionally protected area.
You're now at another point.
Mr. Martin: That is correct, Mr.Justice White.
We would assume -- we would say in the first place that it not been a constitutionally protected area, that there is no right.
The Fourth Amendment just doesn't apply to the open field then we say to a public telephone booth.
We say that alternatively if this Court feels that it is should accord some degree of protection for public phone booth, our argument is basically that, well here, if some degree of protection is afforded to public phone booth, it is not necessarily the same type of protection that would be accorded to a private home or an office.
Justice Abe Fortas: Well, I know, but is that a legal principle?
Is that a legal principle that you're now saying?
Mr. Martin: Well, that is one of our arguments, Mr.Justice Fortas.
Justice Abe Fortas: What kind of protection can we -- within our jurisdiction what kind of protection can we concur out of them.
I mean it's either there isn't an upfront to the Fourth Amendment and --
Mr. Martin: Well, it is our argument Mr.Justice Fortas.
This is not an upfront to Fourth Amendment.
Justice Abe Fortas: I know that.
Mr. Martin: The Fourth Amendment does not set down any hard and fast rules.
The Fourth Amendment sets up a standard of reasonableness.
Justice Abe Fortas: I'm trying to get that following to Mr.Justice White's question.
What difference does it make that the FBI agents were carefully and discrete instead of keeping the tape recorders on all day and all night, record everything.
Mr. Martin: Well, Mr.Justice Fortas, this is based upon our alternative argument.
We argued initially that a public telephone booth is not a constitutionally protected area.
Alternatively, we argued that even if it were to be considered by this Court to be an area, entitled to some degree of protection under The Fourth Amendment.
That the Fourth Amendment turns on the question of whether or not, particular search involved was reasonable.
And this Court has often said that question of reasonableness must be determined upon the facts in each case.
Justice Abe Fortas: Suppose it's unreasonable as to everybody else would use the phone booth, Mrs.Jones comes in and telephones a daughter, anybody else in this phonebook.
That wouldn't make it unreasonable so far as Mr.Katz has been said earlier.
Mr. Martin: Well I do --
Justice Abe Fortas: The first argument is correct.
Mr. Martin: I think that The Fourth Amendment has directed a conduct of law enforcement officers.
And I think this Court can determine whether or not, under the Fourth Amendment that conduct was reasonable getting the circumstances that they were viewing, the probable cause they had to believe a crime was being committed, and also taking all those factors into consideration.
What were the steps that they took?
Did they take a wholesale of shotgun approach to this?
Or, did they exercise --?
Justice John M. Harlan: That is out of the topic.
The topic should get at (Inaudible).
Mr. Martin: That is correct.
It comes also from the Osborn opinion where the court said that here we had a discrete use of the electronic --
Justice Potter Stewart: I suppose on the element of specificity, you base reliance on the care in the sense that they record only his conversation.
Mr. Martin: That is correct.
Justice Potter Stewart: They gather your argument is they had reason already to know would have -- would be relevant to the committing of the crime of which finally he was --
Mr. Martin: That is correct
Justice Potter Stewart: -- charged, is that it?
Mr. Martin: That is correct.
That they had a reason to believe, he was using this for the specific purpose of committing the violation of Federal Law.
Justice Potter Stewart: Instantly, did you argue I've forgotten, did you have probable cause to arrest him before you intercepted to any of those?
Mr. Martin: Well this was not -- actually talking in these terms in the brief.
I would think there was probable cause.
They had reliable information that he was using the phone to call known gamblers.
A check of the records of the telephone company indicated that he was calling a number of a known gambler in Massachusetts.
I think this would amount to probable cause.
Justice Byron R. White: It certainly went to a lot of trouble.
Now, I suppose you got your search warrant base on that.
Mr. Martin: Well, I think there are two problems --
Justice Byron R. White: Would you say it would be a probable cause or has the probable cause to get a search warrant?
Mr. Martin: That's correct.
We had a probable cause to get a search warrant.
But I do think that this Court has often recognized that the probable cause is not equivalent to evidence of guilt beyond unreasonable doubt which you had to satisfy a jury and I don't think I would want to take this case before the jury on just what we had at the time the electronic surveillance.
Justice Byron R. White: Well, I know but you could have got a warrant for his apartment.
Mr. Martin: You could have got the warrant for his apartment.
Justice Byron R. White: And without evidence, I don't suppose you would suggest that there was a shortage of the evidence.
Mr. Martin: Well I think there was still a shortage of proof on the exact -- all of these, the evidence in the apartment showed that he came within that aspect of the statute which requires that the person is affected by be engaged in the business of gambling.
I think that the evidence, the rundown chiefs --
Justice Byron R. White: But you really have to prove his use of the facility.
Mr. Martin: That's correct.
And I don't think that we could have done that, sufficient to satisfy the jury beyond unreasonable doubt with judge what we had prior to the electronic surveillance and on the basis of what we see on the arrest (Voice Overlap)
Justice Abe Fortas: Suppose instead of going into a phone booth, he had gone into the office of somebody -- somebody or in his own office, what -- would that be a protected area so far as he was concerned?
Mr. Martin: Yes, certainly that's --
Justice Abe Fortas: You mean anybody's office is a protected area to everybody.
Mr. Martin: For anybody who is legitimately on these premises, I suppose that it's not a protected area if he broke into the office.
Justice Abe Fortas: Yes.
Mr. Martin: But if --
Justice Abe Fortas: What difference would it make when they broke into the office?
Mr. Martin: Well, I think that under this Court's opinion, in the Jones case, that was indicated that you had to be rightfully there.
It seems to me that if you have no right in the premises at all in which in fact you're in acting interrogation to the rights of the true owner.
I think that then, you would not be accorded any protection in that area whether that you would be in a public place.
Justice Abe Fortas: Suppose you're on a neighbor's house for a cocktail and he said excuse me and went to the next room and use the telephone.
Could that be a protected area so far as use --
Mr. Martin: Most definitely.
It is our contention that that would be then, but we're dealing with a public phone booth.
We are dealing with something different.
And it's our position that even if this Court would have said that public phone booth wasn't type of some degree of protection under The Fourth Amendment, that it is not the same protection that comes to a house.
Public phone booth is more closely analogous we submit to a public field certainly that it is to a home.
And a party in a public phone booth has no right to expect that he is going to be accorded all the protection he would be in a private house.
We submit that what was done here was not an indiscriminate search and seizure that such was condemned by this Court in Irvine.
It was a very careful.
It was carefully limited one to only involving a particular petitioner in this case.
Innocent members of the public were not subject to surveillance.
The only one instance which has happened, the agents testified, that the tape recorder involved was a stereotype, had two tracks A and B.
They could control which conversation they would listen to.
And they did not in fact listen to the conversation of the innocent party.
Justice Byron R. White: Well, Mr.Martin, what did you seize in fellow?
You say this was a reasonable search of the what?
Mr. Martin: Well, what I would say that it is under this Court's opinion in Berger, I think the words were seized.
Justice Byron R. White: So the words were seized and the admissibility -- the admissibility of that evidence those conversations depend upon the reasonableness of that search.
And one of the rules about the reasonableness of search is under the Rule 41, is you can't search for mere evidence.
Have you think the word, these words over the telephone was a fruit or instrumentality?
Mr. Martin: Certainly, I think in this case they we're the actual means and instrumentalities of the crime.
The crime is to transport wagering information or wagers over the interstate facilities, telephone facilities.
Justice Byron R. White: Well, why didn't you get a warrant then?
I don't see why you need protection or anything else to make the search of a telephone booth like this.
Mr. Martin: I think the reason the agents didn't get warrant in this particular case is a very practical one.
I think the agents in this case as Mr.Schneider said they've done their homework.
And they were relying upon this Court's decision of Goldman, and felt that they had complied with that, that there was no penetration to a constitutional protected area.
And therefore, it was for that reason, they didn't seek warrant.
Also under Rule 41, there would be some difficulty.
And I'm not prepared to say either way, I think it is questionable whether or not you could get a warrant for the seizure of words in Rule 41 by its terms.
To often date, it says that warrant shall issue for the seizure of property.
And it later defines property as any books, records, documents, or other tangible property.
So there is a problem under Rule 41 as to whether or not, you could get a warrant.
I do think that the practical reason in this case was the agent's reliance on Goldman.
Justice Byron R. White: Well then, whether you could get a warrant or not, I would think you can't get a warrant.
You can't get a warrant.
Once you search without a warrant, it would be more acceptable.
Mr. Martin: Well, I do think, Mr.Justice White, that this Court has said that --
Justice Byron R. White: They couldn't get a warrant for these words, seize these words.
Your argument is it's nevertheless reasonable to seize them without a warrant.
Mr. Martin: Well, with two things, I think constitutionally.
That's what we're talking about, were talking about constitutional.
Justice Byron R. White: Well, it doesn't only have to talk about in this case.
It's a federal case and I suppose you got to satisfy all the federal rules.
Mr. Martin: Well I -- I don't -- I think one that that is s you say if you're talking just outside the constitutional framework, I certainly don't think the fact that it's not included with the federal rules raises a constitutional issue.
And I'm not sure that in fact, it's not accorded to the Federal Rules requires therefore exclusion.
I think that there have been cases where they said that the fact of rule wasn't a requirement.
It doesn't necessarily invalidate everything that was done.
But going pass that, I think that there is some evidence in the Court's opinion even though the rules now provide of an inherent power where perhaps a search warrant could have been obtained.
I think this was - you had the same situation to Osborn where the Court proved a warrant.
And it seems to me that there might be some question under whether that was in full conformity with Rule 41 because the problem with the rule authorizing only the seizure property.
So I think there is an -- I think historically there isn't basis or a view that a warrant could have issued as you said under 41, it could not happened.
Justice Byron R. White: Well, how would you advice the federal investigators here to hence forward if it's decided that telephone booths like these are constitutionally restricted area, then what would you advice the agents to do, get a warrant?
Mr. Martin: Well I think that --
Justice Byron R. White: Or would we say there isn't anything you can do about?
Mr. Martin: I think that the question of whether or not you could have sustain a warrant in such that I record upon to that tackled advise, I would advise them to get a warrant and let's litigate that issue.
I think that there is a reasonable argument that can be made.
The rule is really not designed with this inline, that it was using the term property as broad as it built that term was used in campus, everything under the Fourth Amendment.
And has been said, Berger overrules the prior told that words we're not subject to seizure.
You can reasonably read and the intent of the drafters of the rule that they would want rules to cover anything subject to seizure.
So I think that there is an argument that can be made.
It is basically our position then that even though there was not a warrant in this place, what was done here was reasonable.
This Court has indicated that far back as Carroll versus the United States, last year in See versus City of Seattle that what is reasonable under the Fourth Amendment may vary to a certain extend upon the nature of the premises that are involved, that are subject to the search and seizure.
Justice Hugo L. Black: Why wouldn't that be true if that's all in Berger, the Court held that all telephonic eavesdropping violates the Fourth Amendment?
Mr. Martin: In Berger I don't believe, Mr.Justice Black as I read the Court's opinion that was what they were saying.
I think what they -- it was ultimately condemned in Berger was the fact that the warrant that issued was a general warrant that allowed the police in acting --
Justice Hugo L. Black: (Voice Overlap) but I thought what they were after there was the right of privacy, the right of men not to be eavesdropped.
Mr. Martin: Well, I think --
Justice Hugo L. Black: And in that instance over the telephone.
Mr. Martin: I don't think that that is what the --
Justice Hugo L. Black: (Voice Overlap) all that the past cases like Olmstead and all these others you have been discussing.
Mr. Martin: Well, Mr.Justice Black, they did in the Berger case cite Goldman and indicating that it had some continuing validity.
So I don't think it all intended to be as broad as --
Justice Hugo L. Black: But you have indicated that that was a continuing device.
Mr. Martin: But I don't think --
Justice Hugo L. Black: I think where there are cases decided because there is some evidence around but as I understand what the courts held and what it's holding under the Fourth Amendment, the Fourth Amendment gives the man a right to complete privacy which is his privacy from having his telephone calls overheard.
Mr. Martin: I can only say that I can agree with your reading in the Berger case, Mr.Justice Black.
As I see it, what was condemned in that case was a situation where a general warrant was used to allow law enforcement officers to --
Justice Hugo L. Black: Well, that wasn't a general warrant, was it?
Mr. Martin: Well the Court said that it was a general warrant.
It said that what if in any event what the warrant did do was authorized over a period of 60 days, the indiscriminate use of an eavesdropping device to pick out everything that was going on within an office --
Justice Hugo L. Black: How is there room for anything left to be reasonable, which is invading a man's privacy?
He has this something that he doesn't want to be heard by the people.
Mr. Martin: Well I think that's the nature of the Fourth Amendment, Mr.Justice Black that everything -- the right to a warrant is --
Justice Hugo L. Black: (Voice Overlap) the Fourth Amendment has lately been construed.
Mr. Martin: I'm sorry sir.
Justice Hugo L. Black: I couldn't agree that that's the nature of the Fourth Amendment, but I could agree that that's the nature of the Fourth Amendment as recently construed.
Mr. Martin: Well, I do think that the Fourth Amendment still as construed by this Court carries with it the concept of reasonableness.
Justice Hugo L. Black: Of what?
Mr. Martin: Carries with it the concept of judging the action and determining whether that action was reasonable.
Justice Hugo L. Black: But if it's an invasion of privacy to overhear people's conversation as it's undoubtedly here, why is there any room to determine that that's a reasonable invasion?
Mr. Martin: Well, I supposed it's a gross invasion.
Justice Hugo L. Black: For what purpose?
Mr. Martin: It seems to me sir that's it's a gross invasion of privacy.
Justice Hugo L. Black: Reasonable for what purpose?
Mr. Martin: Well, it's reasonable when viewed in a light of everything that has gone on.
I think it's a --
Justice Hugo L. Black: But for what purpose?
What are your viewing and thought that it determined a reasonable as to what?
Mr. Martin: As to whether or not what has been done comports that this stand --
Justice Hugo L. Black: Well, the snooping as it's called, is that a violation to the Fourth Amendment?
Mr. Martin: Well, I don't think the Court has said that eavesdropping in all cases is a violation of the Fourth Amendment.
Justice Hugo L. Black: Did it indicate which one it wouldn't be?
Mr. Martin: Well, it indicated in which it certainly was, and that was the Berger case, that certainly in this case, where you authorize people to go in and indiscriminately 60 days, that that is a violation to the Fourth Amendment.
But I don't think that it in any sense precluded the question when you have a very discriminate use.
Justice Hugo L. Black: Of what grounds would you draw to say it's reasonable?
Mr. Martin: In this case?
Justice Hugo L. Black: In any case.
Mr. Martin: Well I will --
Justice Hugo L. Black: Is it reasonable?
Mr. Martin: I would point --
Justice Hugo L. Black: To go and overhear a man's conversation when you're talking about crime or something and when he doesn't wanted to be heard, what grounds would you say would make it reasonable to sue?
Mr. Martin: I say it would be reasonable Mr.Justice Black, if you had strong probable cause to believe that the conversation that you would overhear would relate to the specific commission of a federal crime.
And if the action which you took to overhear those conversations was such is to protect innocent members of the public from having their conversations indiscriminately overheard, I think that in these conditions which are the conditions that we have here, that meets the reasonableness standard of the Fourth Amendment.
I would now like to turn, if I may, if the Court please.
Chief Justice Earl Warren: I just like to have it define with you or delineate that you would please, what the protected areas are?
Now, you -- you jumped very speciously from an open field to a telephone booth.
Then you say that if he was in anyone else's office or any place lawfully in a building as I understood you, that, it would be a protected area.
Now, what is there about the telephone booth that puts it in the situation of an open field?
Mr. Martin: I would say, Mr.Chief Justice that the difference is the right that you have to exclude others from the area in which you're acting.
Chief Justice Earl Warren: Doesn't a man, when he puts his money in the box and closes that door, and gets central, and talks have the right to -- to keep anyone else out or does anyone have the right to break in there on him while he's doing that?
Mr. Martin: Well, he certainly has no right to keep people from standing right next to him where they could hear exactly what is going on.
Chief Justice Earl Warren: But that is not what we're talking about here.
We're talking about whether it is I suppose when a man stood at the window of his home and talk to somebody outside in the garden in such a loud tone that people on the sidewalk could hear it, it wouldn't be a protected area either, would it?
Mr. Martin: That would not be protected under the Fourth Amendment.
Chief Justice Earl Warren: Yes.
Why would that be different from -- why would the home situation be different from the telephone booth?
Mr. Martin: Because the home is an area in which a man can withdraw and can he so choses protect himself.
And no one has the right to enter into a man's home for any purpose.
I think that is the difference between -- the man has an interest in his home which is to be protected.
And if this was the interest that the Fourth Amendment was drawing to protect, the man has a right and to say to anybody, you cannot come here unless you can so chose some justification under the law.
Chief Justice Earl Warren: How about those going into somebody else's home that's (Voice Overlap) and telephone him, would you say that's a protected area?
Mr. Martin: That is -- the office is definitely a protected area.
The question really has been drawn then in terms of standing and who has standing to assert the protection that that office is afforded.
And this Court has said that it is not a merely the owner who has that standing.
That is anyone in the premises but it's the nature of the premises again to just protect it.
Chief Justice Earl Warren: Alright.
Well, let's say that he had it in someone else's office and the rightful possessor of the office said to the FBI, “Oh, You could go in there and bug in, if you want.”
And they went in and did it.
Would that change that from a protected area to a non-protected area?
Mr. Martin: I think that if he was acting -- if the FBI was acting with the consent of the person, Your Honor, this was in the least situation.
Chief Justice Earl Warren: Let's say they're acting in the same sense that they were here.
Mr. Martin: Then I would think that that would not be protected.That's right Mr.Chief Justice.
Chief Justice Earl Warren: Why?
Mr. Martin: Because the nature of the Fourth Amendment has always been such.
It's true that it arises from the right of a person to exclude others from a particular area which is under his control and absent of that right to exclude others there is no right under the Fourth Amendment.
I think that the Fourth Amendment was designed to protect public from trespass by law enforcement officer who was designed to protect the individual in cases where law enforcement people would break into their homes, break into their offices, and search generally.
But the interest always under the Fourth Amendment with some interest of the individual, some area in which he had the right to withdraw, and to be free from government scrutiny.
I just -- I submit that that is the distinction that has been drawn and that on the facts of this case, even if you assume, Mr.Chief Justice, that there is some degree of protection to be afforded to the public telephone, that what was done here was reasonable did protect whatever interest there is the public might have in the public telephone.
Chief Justice Earl Warren: Probably, the only difference that I can see is that here, a man went into the telephone booth, in a place that was presumably private according to the intentions of the telephone company.
It had a door, you could close it, and it was a small place with only one person that could reasonably be in.
And there was a telephone there.And he paid for the privilege of using that.
And then after that, the telephone company said to the FBI, “It's alright, let's go ahead and put the bug in.”
Mr. Martin: Well, he withdrew -- he went into a booth.
There is no question about it.
But that was a booth that was not a soundproof, Mr.Chief Justice.
Chief Justice Earl Warren: Well, not many homes are soundproof.
Mr. Martin: But I mean it seems to me that when you go into a public phone booth you cannot -- don't expect that you're going to be as protected in that area as you are in your home.
That it's --
Chief Justice Earl Warren: Perhaps not as much but you certainly expect it to be private and you don't talk to the world, then you talk on the telephone there, do you?
Mr. Martin: No, of course, you don't.
You do run the risk of course that you would be overheard by people passing by, by people on adjoining booths.
We think that in any event that accepting your major premise that this is entitled to some degree of protection.
That the protection of that is entitled to is not necessarily have to be made exactly coextensive with the protection would be provided for home.
Then if you provide that you can only eavesdrop in situations such as this, where the equipment is discretely used, and only when there is ample probable cause to believe that the phone booth is then and there being used for the condition of a federal crime.
That would legitimately protect any interest to be protected in a public phone booth.
Chief Justice Earl Warren: Suppose the room was a little larger and a little more firmly built, and it couldn't be opened from the outside after the person went in and close the door, would that change with any of your opinion?
Mr. Martin: Well, if in it was such that you could reasonably draw the conclusion that what we were doing was not just merely having this as a convenience to what exclude some peripheral noise.
And perhaps there would be a different charge for using this particular type of phone booth.
Then you might conclude that the party -- it was intended the party using that booth receives some interest such as brief though, may be a least, but I don't think they do have that in a normal public telephone.
Chief Justice Earl Warren: But you know sometimes public telephones where you pay telephones are out on a long, long bench.
They're out open there where no one can, or that anybody can hear what's going on if they're close enough.
Why do you suppose they put those booths in?
Mr. Martin: Well, I suppose that they put the booths particularly on the street to exclude some of the strenuous noise that --
Chief Justice Earl Warren: But you find them in hotels, you find them in office buildings, or anyplace else where there isn't any particular noise to disturb them.
Mr. Martin: Well, I don't think that one, you do now and you're really having a sheet more to the open type of booth.
I don't think that the telephone company when they put in, whether it'd be an open booth or closed booth, things that they are conferring greater or less rights on the people who are using the phone.
Chief Justice Earl Warren: Well, I thought you told me a moment ago that if they have made the room more secure from sound waves and had made it evident that they expected that there would be a room where they would speak confidentially that it would be a different situation.
Mr. Martin: Well, I think that then you might expect that they -- what they are doing is that they are conferring, they are expected to find, building this type of booth and providing this type of facility.
They are providing something much different than mere public phone booth or the open phone.
I would like if may now to address myself to the question --
Justice Hugo L. Black: Are you saying that we're taking the position that this man's telephone booth is not Katz's.
Mr. Martin: Exactly, Mr.Justice Black.
Justice Abe Fortas: But perhaps if there were Las Vegas motel that was soundproof and made of sturdy material that that would be this case.
Mr. Martin: Well, it might be his office.
Justice Abe Fortas: Well, what if they are just ordinary telephone, telephone booth is installed by the telephone company that said Las Vegas for gamblers only (Laughter).
It's soundproof and that it's sturdily constructed that it might be in this case.
Mr. Martin: Well, it would certainly be a different case, Mr.Justice Fortas.
I would like to be permitted now turning the question, we support specifically directed counsel in the brief had argued.
And that is the quoting of Frank v. United Sates as it affects this case.
This arises from the following facts, subsequent to the time the petitioner's appeal was affirmed, he was called before a grand jury in the Southern District of Florida.
And pursuant to Section 409(l) of the Communications Act, he was granted immunity and was questioned and in fact gave answers about the telephone calls between the subject matter of this indictment.
Now, we concede at the outset of these questioning had taken place prior to the trial of this case.
The petitioner could not have been tried that he would have had immunity from prosecution.
We would consider also that if this Court would adopt the holding in Frank v.United States, the conviction would have to be vacated.
It is our position that Frank v. United States was incorrectly decided.
Neither the Circuit Court in Frank nor petitioner in their brief in this Court has suggested any reason from either the legislative history, the Communications Act immunity section or in the Fourth Amendment why the privilege conferred by the immunity statute must be immunity conferred, must be viewed to be retroactive.
This Court has expressly rejected that concept in the case of Reina v. United States --
Justice Byron R. White: Is this really -- is this really -- let's assume you're right and if you disposed that this is correct.
Mr. Martin: That's correct.
I think that --
Justice Byron R. White: No, I wouldn't think that any decision might be reversed.
It might be a new trial.
Mr. Martin: If there was a retrial in this case?
If -- assuming that --
Justice William O. Douglas: Well, if we reverse here, you would --
Mr. Martin: We will not be tried.
Justice William O. Douglas: You couldn't?
Mr. Martin: No, that is correct.
We would not take the decision (Voice Overlap)
Justice Potter Stewart: There is immunity now.
Mr. Martin: That's correct.
And I think in the future he has immunity.
But from anything in the past, he stands convicted.
And there is no reason to apply that immunity retroactively, that's our position.
Justice Potter Stewart: That depends, of course, on the meaning of the word penalty against the statute.
Mr. Martin: Well, it says penalty -- we submit that there is nothing in the legislative history to indicate that the denial, the grant or denial relieved by this Court could be considered a penalty under the Act.
And when it talked of penalty, it talked in terms of any future prosecution or future use of the evidence obtained that might violate his rights under the Fifth Amendment.
But this Court specifically held in the Reina Case, that it did not apply retroactively.
That there you had a situation of a man who have been in jail was convicted then granted immunity, and he said that he didn't have to testify until he was granted a pardon of what rejected that argument.
We submit that on the same basis, the argument in this case should be rejected.
Immunity does not have retroactive effect in his conviction.
And the fact that this man was called and compelled to testify has no effect on the conviction in this case.
I would also like to briefly turn to the question of the validity of the search warrant which the counsel had raised.
Here again, counsel contend that there was not a probable cause for the warrant.
Now, here again we assumed that this Court will sustain the use of the recordings for -- and this Court would reverse on that ground the question of the validity of the search warrant would really become moot since the petitioner would not be retried because of the grant immunity.
Taking those factors into consideration, it's clear that the search warrant was based on ample probable cause.
It's set forth the fact that the agents had received reliable information.
The petitioner had been using the phones to make interstate calls that he had been associated with known gamblers.
The affidavit also stated that recordings have been made in these calls and that those calls indicated that petitioner was using the telephone to place wages interstate and also to get the basketball in line to enable to do that.
Justice Abe Fortas: Excuse me, did you -- did I understand you to say that if we should reverse for a new trial that the immunity which petitioner has acquired would prevent a new trial?
Mr. Martin: That is our position, Mr.Justice Fortas, yes.
Justice Abe Fortas: Why would you relay the procedure?
Why don't you wait until that comes up?
Mr. Martin: Well, I think whether or not, the immunity does go that far is practical judgment then probably it would not be retried.
Justice Abe Fortas: That's' why.
Are you talking about -- are you telling us that the department would not retry him or are you saying that the department believes that the effect of the immunity would mean that he could not be retried?
Mr. Martin: Well, I think that the --
Justice Abe Fortas: So he went away that's another aspect, different from Frank even, isn't it?
Mr. Martin: Yes, Mr.Justice Fortas it is.
I suppose what I'm saying is that the department in view of the immunity statute and the question, I think it would be a substantial question whether or not he could be retried.
Justice Abe Fortas: But there are no decisions on that, are there?
Mr. Martin: No, there are not.
But the statute seems to us to be drafted to preclude any -- for the trial, it seemed that at that point it would be subjecting him to a penalty.
Justice William J. Brennan: Well, I suppose you are also saying Mr.Martin that this is reversed on one of these grounds that the evidence which would be available on the retrial would not be sufficient to convict anyone.
Mr. Martin: Well, I would agree that that would certainly be very questionable.
That's right, Mr.Justice Brennan.
Justice William J. Brennan: That is if the taped conversations may not be used and if the search warrant
Mr. Martin: That is correct.
Justice William J. Brennan: -- is tied to those conversations, therefore, you can't use what you got in the apartment too, then you don't have anything else on which to convict them.
Mr. Martin: That's correct.
Justice John M. Harlan: Well, whatever as far as we're concerned should do --
Mr. Martin: That is correct.
Justice John M. Harlan: (Inaudible)
We submit that the affidavit you did then established ample probable cause and they're certainly sufficient under this Court's decision in Ventresca.
I think petitioner's argument that this was merely an evidentiary search warrant is somewhat undercut by his own concession here that a number of the items that were seized were clearly means instrumentalities to the crime.
Once this warrant called for an authorized to search and seizure for gambling instruments and gambling paraphernalia.
The terminology used in this warrant had been sustained uniformly by the Circuit Court of Appeals.
We submit that a review of what was actually seized in this case shows that what the agents were seizing was the means of instrumentalities by which this petitioner carry on his illegal gambling activity.
And to the extent that there might have been one or two items seized that may or may not come within this framework of a means and instrumentality of the crime.
Certainly the fact that those who anted to those that might have been seized in no way invalidates the legitimate search and seizure took place in view of all these facts we submit the judgment to appeal from should be affirmed.
Chief Justice Earl Warren: What was the sentence in this case?
Justice John M. Harlan: The $300 fine.
Chief Justice Earl Warren: Rather extensive operation here to convict this man, it took sometime to try him.
What was the sentence?
Justice John M. Harlan: The sentence was a $300 fine, Mr.Chief Justice.
Chief Justice Earl Warren: $300 fine?
Argument of Burton Marks
Mr. Marks: Thank you Mr.Chief Justice, if it please the Court.
The argument of the Solicitor General that the area is what we're concerned with seems to be an anachronism just as the laws of trespass of this -- at the property laws which were conceived hundreds of years ago in the common law are anachronistic.
A good example might be the old concept of common law of property that the man owned his property from the middle of the earth of this as high as the sky.
And we know now that there is no trespass when an airplane flies over a man's land at least so long as it doesn't interfere with it.
So the rules and laws of trespass have changed as science has advanced the concept of how you can invade the privacy of a person.
Now, it is our suggestion that taking the reasonable search proposition of the Fourth Amendment, reading Berger as we think it is read that there can be searches and seizures under properly controlled circumstances of anything --
Justice Hugo L. Black: What do you mean by proper control?
Mr. Marks: Well, as I understand Berger they said that the proper control was discrimination as to what you are looking for, the time that you're going to look for it, who is going to be involved, and what specific subject matter you are looking for.
Justice Hugo L. Black: You construed it and as authorizing telephonic eavesdropping if there's a statement made to the officer just showing you and what they want to do as to tell that's eavesdrop this man over the telephone in order to see if he's been guilty of a crime if they do it in the narrow manner.
Mr. Marks: I can -- that is exactly right assuming that Section 605 of Title 48 --
Justice Hugo L. Black: So then it wouldn't bar telephonic eavesdropping.
Mr. Marks: In the absence of the statute which does bar a telephonic eavesdropping, I would say that the Fourth Amendment and the Berger case as it construed it does not prohibit reasonably but extremely discriminate searches of that type.
And I know that --
Justice Hugo L. Black: You don't mean to divide it up into different crime.
You don't mean that at the Court's reasonableness too.
Mr. Marks: No that --
Justice Hugo L. Black: You can say you can eavesdrop if it relates to national security.
You just can't do it if it relates to robbery and burglary and rape.
Mr. Marks: I think that that has to be a matter assuming that I'm correct in this Court.
And I sincerely believed that the Court held -- the majority in Berger held that they will uphold reason -- will uphold statutes which are finely and narrowly drawn as being within the framework of the Fourth Amendment, then it doesn't matter what the crime is assuming that -- and some of the justices state that that should be a matter of experimentation let up to the legislature.
I just noted with interest before I left Los Angeles, they come here, I received a notice in the -- a press release that Senator Long's bill for instance had gone into the Senate Judiciary Committee.
And that bill provided for wire -- absolutely no wiretapping except in national security.
There are numerous other bills and other legislature which want to allow law enforcements such as in the crime commission study to investigate the fact of any crime.
I have a personal feeling as to what I want and what I would like to see but that has no bearing on what I think this Court has said with respect to the reasonableness of the search.
And with respect to that also, it seems to me that in the Osborn case, a search warrant was in fact issued notwithstanding what you might have called the procedures that the judges instituted to put a bug on the man to go and listen to the lawyer's conversation.
Because what happened was if there was an affidavit based on probable cause to believe that a specific crime had been committed and they're after an order by the Court.
And you could call it what you want but it seems to me it was a search warrant that was issued by the Court to hear specific conversation by the eavesdropper.
And that, you can call it an authorization but it seems to me that without a question, there was a search warrant in Osborn.
In the instant case, if you want to turn it on search warrant probably there was ample probable cause in my opinion for the FBI who as my Brother, Mr.Schneider said did their homework, and I don't think they did it enough.
They had the following information before they put the bug in the phone, that Mr.Katz was making phone calls.
They knew that he was making phone calls to person they suspected to be a bookmaker.
They also had information from a confidential informant that Mr.Katz was using the phone to make wagers, not only that but they had information that Mr.Katz was going at specific times of the day to a specific area to make these phone calls.
Now, based on that proposition, would it not have been very simple to go down to Court and ask for a search warrant to -- and set out how they were going to do it.
And every time Mr.Katz came into the telephone booth that they were going to make the -- turn the recorder.
Justice Hugo L. Black: Do you think that would have invalid under the Berger case?
Mr. Marks: I think that that but there's no question they might at that way.
Justice Hugo L. Black: Otherwise, they didn't have the right.
Mr. Marks: Yes.
I don't --
Justice Hugo L. Black: -- that the Constitution to come in and get a search warrant on the basis of the facts that they knew he was followed and have probably cause to believe he had been guilty of using those wires to violate the law in reference to gambling.
Mr. Marks: Yes.
Justice Hugo L. Black: And that that's what justify search warrant.
Mr. Marks: Correct.
Justice Hugo L. Black: The Court could not been out on any ground?
Mr. Marks: That is my opinion for that -- that's exactly what the Berger case says.
And again, I say I restricted to what the Court says not with my own personal opinion of what should be under the Fourth Amendment.
Justice Hugo L. Black: Well, that would be all right.
Chief Justice Earl Warren: Well, I understood Mr.Schneider to say that he thought there was not a probable cause but that the Government did.
Mr. Marks: For an arrest, at the time that they bug the phone booth.
Chief Justice Earl Warren: Well, that wasn't probable cause for an arrest but was it a probable cause for?
Mr. Marks: Probably cause for the issuance of a search warrant to obtain mere evidence which this Court has held as permissible under a search warrant.
They had, in other words, at this point the Court has put us at least I think in a position where at the search for evidence alone is admissible, then the search warrant could have issued for that.
On the other hand, if a conversation that that is in fact the crime itself, then you're picking up evidence of the crime, the commission of the crime as much as you might be picking up the loot that a robber has picked up or the tools that he used in the commission of a robbery or a murder.
Chief Justice Earl Warren: Did they have positive information that he was using -- he was going into that telephone booth to carry on his business of wagering.
Mr. Marks: They had a confidential informant that they stated and informed them that he was making bets when we went into the telephone booth, and that he was wagering for others, and then placing bets for others.
And to corroborate this, they had already seen the telephone company records which indicated where the calls have been placed to.
And from previous information, they knew or thought they knew that the calls placed were to a bookmaker or a known bookmaker.
And if that were the case, I would say that there'd be no question in my mind that that would be sufficient probable cause to institute a search for a crime which was being committed.
Although absent knowing what the conversations were, I don't think that they would have probable cause for arrest.
Once they determine --
Chief Justice Earl Warren: Do you think that under Berger, that would have entitled them to a search warrant --
Mr. Marks: Yes.
Chief Justice Earl Warren: -- of this character to permit them to do what they did here?
Mr. Marks: Absolutely, but it would have to be very discriminate as -- as I say the other bit of information they had was, Katz's constant and consistent daily activity of going into this particular booth at a particular time.
Chief Justice Earl Warren: Conceding would you mind to talk as just what is left with your case?
Mr. Marks: Conceding --
oh, the fact that they didn't obtained a search warrant.
Chief Justice Earl Warren: Isn't that your own case?
Mr. Marks: No, that is not the whole case.
The second proposition is that absent of search warrant, they have no right to invade a constitutionally protected area which area is defined by the person and not by some rule of law which says that there has to be an area which is protected --
Justice Byron R. White: With the warrant they could have invaded that area, do you think?
Mr. Marks: If it was reasonable.
Justice Byron R. White: Right, invasion --
Mr. Marks: Right.
Justice Byron R. White: -- correct, so your case does rest on the fact that there is no warrant?
Mr. Marks: Well, I would say this; I enforce the conclusion from Berger that this is a search warrant case without question.
Justice Byron R. White: Would -- is this area, would you apply the same line of reasoning to the binoculars?
Mr. Marks: No, but the difference between binoculars and hearings I think is a very simple thing.
That again, it's the test of reason.
You can know that you are being seen or at least reasonably suspect that you maybe spied on easier than you can suspect that you're being listened to by distant methods.
And there's no way to -- if you want to avoid being seen, then you go into an area where no one can see you hopefully.
And that would seem to be an inside room --
Justice William J. Brennan: Are there infrared devices now that could go through brick walls and see what's inside?
Mr. Marks: Right, if they're going to resort to fluoroscopy to get to what somebody is doing inside, then I would say that our test as far as invasion of privacy would apply equally well where the person has intended not to be seen, and could be reasonably seen that under no circumstances except by the use of other devices unknown to the person could the police have gotten there and that might --
Justice Hugo L. Black: How come there are very few people that intend to commit a crime who expect to be seen?
Mr. Marks: That's right but they're -- they unfortunately there have been such as in the Hester case.
And again the Hester case might go upon that premise.
Although again, I think with all due respect that Justice Holmes made an ipsy-dipsy statement about the feel of not being a constitutionally protected area because from what I understand the case now was very sparse.
There was in fact a physical trespass on the land of another by the agents which might not have been warned and that might have invalidated the entire search such as in the Hurst case which was a little bit later.
And as I say, it's quite an old case.
And the changes and the thoughts of what were constitutionally protected areas have made quite a few strides since then.
Now, with respect somewhat to this Frank case problem, it's a very unusual situation that has occurred here and probably the reason that there have been no cases before involving Mr.Katz's particular situation is that it doesn't happen very often, although if the Court wouldn't allow it to happen, it might happen consistently more and more.
And that is as follows.
Mr.Katz had, before he went to trial, an absolute right not to testify against himself, not to be compelled to make any testimony.
The Government didn't deem it necessary to have his testimony in order to secure whatever investigation they wanted.
And they decided to put him on trial and they convicted him.
Now, after he was --
Justice Hugo L. Black: With our without that evidence?
Mr. Marks: Pardon me?
Justice Hugo L. Black: With or without that evidence?
Mr. Marks: That they secured from his lips?
Justice Hugo L. Black: Yes.
Mr. Marks: Well, they convicted him without the subsequent testimony which was before the grand jury.
I don't know exactly what he testified to in the grand jury since that was private.
But the interesting point is this.
That after Mr.Katz had been convicted and while he was contesting his conviction, the grand jury wanted to question him about matters which involved what he was -- the conviction that he was appealing from.
And in order to compel this testimony, the court below on the first go around put Mr.Katz in jail.
And he spent 90 days in jail somewhat until the first grand jury had expired protecting his right not to have to testify even though when there was a grant of immunity.
Now, we go to the second proposition that the Government says we granted him immunity and now he decided to testify because he didn't want to go to jail again, which is a type of compulsion that I think is the greatest of all to get a man to testify.
Now, they say, “We've used whatever compulsion we can.
We forced him into a position where he has to testify or stay in jail and nevertheless if its conviction isn't reversed, we still have the benefits of the conviction.
We still have the benefits whatever that maybe to the Unites States Government of $300.
And we've got some additional evidence to go out and get somebody else.”
Now, whether or not this Court has rejected the quid pro quo argument, there seems to be something basically unfair about compelling a man to testify when he doesn't want to testify, unless you give him something for it.
And that's why I think the Reina case may not be proper as a matter of due process of law, whatever we want to call it, fairness between the Government and that the individual who is being subjected to penalties.
I think therefore that the Frank case should be upheld.
Justice William J. Brennan: Well, do we have to overrule Reina to do that?
Mr. Marks: Well, Reina was a different situation because Mr.Reina could have said being in jail, “I don't want to testify,” and there was no compulsion whatsoever that the Court could give him to force him to testify because it's all the Court could say is go to jail and he could say, I'm in jail.
So you can't do anything to me because I don't know these particular circumstances.
He was trying to strike a bargain.
And I think he might have done a little bit more table finding he might have got a part of the bargain that he wanted but I don't think you have to overrule the entire case because the situation is different for the person in jail and out of jail.
And it depends on what compulsion the Government can use against the person in order to determine what benefits he is to get from the testimony which otherwise would not have to give unless there was this immunity statute, which is interposed between it.
With respect to the warrants, I concur with my Brother, Mr.Schneider.
I don't know what the fruits and instrumentalities of the crime are.
I know what they usually are.
I know how far the courts have extended to say that there is -- certain objects are fruits and instrumentalities of a particular crime.
I know that now that the Court has said that there may be a search for mere evidence that the discretion of the officer as to what is evidence is going to be so broad as to make every search warrant, in my opinion, a general search warrant.
In the instant case, the best that can be said for instance about Mr.Katz's yellow sheets of paper that have the basketball scores on them was that there were some evidence of the fact that he might have been in the business of wagering.
And therefore the warrant that issued was in that sense a general warrant and a search for mere evidence, and not a search for the instrumentalities of the crime because he didn't need those papers to make a bet or to make a wager.
They helped them at some time but they weren't instrumentalities of the crime of transmitting the wager for the gambling information.
Justice Hugo L. Black: What are they usually involved?
Mr. Marks: To compute the line --
Justice Hugo L. Black: To what?
Mr. Marks: To get the line, the daily line.
Justice Hugo L. Black: Why do you write them there?
Mr. Marks: Well, he, Mr.Katz maybe off the record a little bit that he's one of the best handicappers in the country.
Justice Hugo L. Black: He's what?
Mr. Marks: One of the best handicappers in the country on basketball games.
He's kept these -- the records of basketball teams for 30 years, that's what these things were.
And he has device his own system for determining how good the team would be from what the record was of each team playing against another team over the period of years.
Now, that may have helped him in making a determination of what kind of wager he was going to make.
Justice Byron R. White: Haven't they even given the background of him?
Mr. Marks: As a matter of fact, what we have to do is to go out and have the evidence once it was submitted, go in and get his photo so that he could get copies of what he's (Voice Overlap).
Justice Potter Stewart: Go on in business?
Mr. Marks: Finally, I might say this and this is a test that I think the Court can take it's own judicial notice if we took the test and of course again, it's outside of the record but the Attorney General, that's the Solicitor General submitted it somewhat on his own that you can overhear a conversation from an adjoining phone booth.
I submit that if the Court wants to make a test, go and sit in some phone booth, the one at the Sunset Boulevard, it's the ordinary type with a little glass door.
Just sit in it and listen next door and see if you can hear a person and determine what he is saying in an ordinary conversational voice.
I submit that you cannot so hear and that there was intended to give privacy and this right of privacy of the individual should be respected.