Apropos of nothing: Katz v. United States, 389 U.S. 347 (1967), is an fascinating decision.
The facts in short: without a warrant, the FBI planted a listening device on the outside of a public telephone booth* that it knew the defendant used to communicate about illegal gambling. His overheard words were introduced as evidence against him. He claimed the evidence should have been excluded because it was obtained without a warrant, in violation of the 4th Amendment. The United States argued that the 4th Amendment was not implicated because there had been no trespass upon private property.
The Katz decision’s articulation of the interest protected by the 4th Amendment -- the reasonable expectation of privacy -- has been the cornerstone of modern 4th Amendment jurisprudence.** Remarkably, that articulation is found not in Justice Stewart’s majority opinion, but in Justice Harlan’s concurrence -- in which no other Justice joined.
But most interesting to me is Justice White’s two-paragraph concurrence. It was so startling that Justices Douglas and Brennan wrote separately for the sole purpose of denouncing it.
White wrote: “We should not require the warrant procedure and the magistrate's judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable.”
The warrant procedure, of course, is the interposition of the judiciary between the executive arm of state and the individual. If there is genius in the 4th Amendment, it lies in that institutional barrier. In effect, two institutions, one interested and one neutral, must agree that an extreme intrusion into the private life of the individual is warranted. Douglas and Brennan voiced astonishment at White’s “wholly unwarranted green light for the Executive Branch” to eavesdrop whenever it decided, for itself, that doing so was reasonably in the interest of national security. They insisted that the 4th Amendment required the warrant procedure precisely because the Executive could not and should be neutral in such decisions.
National security concerns were not presented by the facts of the case. They were not briefed, argued, or, for that matter, even decided by the case.
Why, then, did Justice White feel compelled to write such an unusual concurrence?
I wondered about that for years, then I came across a clue . . . .