Week Two, Part 8 - Crim: Search & Seizure

Our first topic in Criminal Procedure is the Fourth Amendment prohibition against unreasonable search and seizure. Professor Dutile makes a few introductory remarks about the overriding issue of civil liberties versus the state’s duty to ferret out crime.

“It’s a balancing act,” he says, “and the real fighting is where the line should be. I don't care where you end up, only that you're more enlightened.”

Dutile picks up the class roster. “Let’s talk about Katz v. United States, the most important Fourth Amendment case ever decided.”

Uh-oh. Time for some Socratic method. Heads go down to avoid eye contact and students pull out neatly written briefs. My heart rate quickens and I try to find comfort in my hard-to-pronounce surname. Too bad it’s not three syllables longer.

“Ms. Wilson,” Dutile announces.

From the far corner, Susan Wilson raises her hand. Like me, she’s “non-trad,” meaning over thirty and married. Before law school she was in health care, first as a nurse then an administrator. I’ve talked with her several times. She’s pro-life and told me Notre Dame Law was her “dream school.”

Question by question Dutile teases out the facts of the case. The bookie. The illegal betting. The listening device on the phone booth.

We move on to the holding. In 1967, the Supreme Court ruled the government’s attachment of a listening device to the outside of a public telephone booth was an unreasonable search.

“Now before Katz, what was the test to determine whether there was a search?” Dutile asks.

“If the police or somebody came on the land,” Wilson says.

“Whether there was physical trespass. Good. The old language was ‘penetration into it.’ That would work up until the 1900's. I could go inside my house and talk to someone, confident that there would be no invasion. Now with electronic devices, all those bets are out the window, and the court is changing the test.” Dutile pauses. “Ms. Wilson, what’s the Katz rule based on?”

“An expectation of privacy.”

“What type of expectation?”

“A reasonable one.”

“Good. ‘Reasonable expectation of privacy’ has become the phrase for capturing what Katz is all about.”

“Ms. Wilson, suppose the person whom Katz had been talking to ran to the police. Is the evidence okay to use?”

“Yes.”

“Why?”

“Because there’s a known risk when you speak to someone. There’s no reasonable expectation of privacy.”

Dutile cranks up the “hypo-machine.” Suppose Katz has a loud voice and a police officer overhears? Suppose while Katz is on the phone, he has his ledger on a shelf and an officer sees it? Suppose Katz is speaking softly, but an officer has the unusual but not unique talent of reading lips? Suppose the police officer is a lip-reader who’s across the street with binoculars?

On and on we go. In every instance Dutile presses Susan as to whether the evidence is okay to use. Dutile doesn’t give us his take on the hypotheticals. It’s all Opinion By Wilson.

Dutile says, “Our role as lawyers is not to know the answers to the five million specific situations, but to be aware of the issues.”

The period is almost over. “One last thing about Katz. First impression is that the government lost. Actually they won, big! Why? Because the Court said electronic eavesdropping could be used Constitutionally.”

Before we leave, Dutile says we’re going to have a contest. He passes out squares of paper and tells us to guess the outcome of Saturday’s football game against Northwestern University.

I jot down “48-17, Irish” and turn it in, convinced of my own genius.

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