U.S. Supreme Court
WHALEN v. ROE, 429 U.S. 589 (1977)
429 U.S. 589WHALEN, COMMISSIONER OF HEALTH OF NEW YORK v. ROE ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK
No. 75-839.
Argued October 13, 1976
Decided February 22, 1977
Responding to a concern that drugs were being diverted into unlawful channels, the New York Legislature in 1972 enacted a statutory scheme to correct defects in the previous law. The 1972 statute classifies potentially harmful drugs and provides that prescriptions for the category embracing the most dangerous legitimate drugs (Schedule II) be prepared on an official form. One copy of the form, which requires identification of the prescribing physician, dispensing pharmacy, drug and dosage, and the patient's name, address, and age, must be filed with the State Health Department, where pertinent data are recorded on tapes for computer processing. All forms are retained for a five-year period under a system to safeguard their security, and are thereafter destroyed. Public disclosure of the patient's identity is prohibited, and access to the files is confined to a limited number of health department and investigatory personnel. Appellees, including a group of patients regularly receiving Schedule II drugs and prescribing doctors, brought this action challenging the constitutionality of the Schedule II patient-identification requirements. Holding that "the doctor-patient relationship is one of the zones of privacy accorded constitutional protection" and that the Act's patient-identification provisions invaded that zone with "a needlessly broad sweep," since appellant had been unable to demonstrate the need for those requirements, a three-judge District Court enjoined the enforcement of the challenged provisions. Held:
1. The patient-identification requirement is a reasonable exercise of the State's broad police powers, and the District Court's finding that the necessity for the requirement had not been proved is not a sufficient reason for holding the statute unconstitutional. Pp. 596-598.
2. Neither the immediate nor the threatened impact of the patient-identification requirement on either the reputation or the independence of patients for whom Schedule II drugs are medically indicated suffices to constitute an invasion of any right or liberty protected by the Fourteenth Amendment. Pp. 598-604.
(a) The possibility that a doctor or pharmacist may voluntarily [429 U.S. 589, 590] reveal information on a prescription form, which existed under prior law, is unrelated to the computerized data bank. Pp. 600-601.
(b) There is no support in the record or in the experience of the two States that the New York program emulates for assuming that the statute's security provisions will be improperly administered. P. 601.
(c) The remote possibility that judicial supervision of the evidentiary use of particular items of stored information will not provide adequate protection against unwarranted disclosure is not a sufficient reason for invalidating the entire patient-identification program. Pp. 601-602.
(d) Though it is argued that concern about disclosure may induce patients to refuse needed medication, the 1972 statute does not deprive the public of access to Schedule II drugs, as is clear from the fact that about 100,000 prescriptions for such drugs were filed each month before the District Court's injunction was entered. Pp. 602-603.
3. Appellee doctors' contention that the 1972 statute impairs their right to practice medicine free from unwarranted state interference is without merit, whether it refers to the statute's impact on their own procedures, which is no different from the impact of the prior statute, or refers to the patients' concern about disclosure that the Court has rejected (see 2 (d), supra). P. 604.
403 F. Supp. 931, reversed.
STEVENS, J., delivered the opinion for a unanimous Court. BRENNAN, J., post, p. 606, and STEWART, J., post, p. 607, filed concurring opinions.
A. Seth Greenwald, Assistant Attorney General of New York, argued the cause for appellant. With him on the brief were Louis J. Lefkowitz, Attorney General, and Samuel A. Hirshowitz, First Assistant Attorney General.
Michael Lesch argued the cause for appellees Roe et al. With him on the brief was Solomon Z. Ferziger. H. Miles Jaffe argued the cause for appellees Patient et al. With him on the brief were Melvin L. Wulf and John H. F. Shattuck. *
[ Footnote * ] Evelle J. Younger, Attorney General of California, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, and Shunji Asari and Owen Lee Kwong, Deputy Attorneys General, [429 U.S. 589, 591] filed a brief for the State of California as amicus curiae urging reversal.
Robert Plotkin and Paul R. Friedman filed a brief for the National Association of Mental Health et al. as amici curiae urging affirmance. [429 U.S. 589, 591]
MR. JUSTICE STEVENS delivered the opinion of the Court.
The constitutional question presented is whether the State of New York may record, in a centralized computer file, the names and addresses of all persons who have obtained, pursuant to a doctor's prescription, certain drugs for which there is both a lawful and an unlawful market.
The District Court enjoined enforcement of the portions of the New York State Controlled Substances Act of 1972 1 which require such recording on the ground that they violate appellees' constitutionally protected rights of privacy. 2 We noted probable jurisdiction of the appeal by the Commissioner of Health, 424 U.S. 907 , and now reverse. 3
Many drugs have both legitimate and illegitimate uses. In response to a concern that such drugs were being diverted into unlawful channels, in 1970 the New York Legislature created a special commission to evaluate the State's drug-control laws. 4 The commission found the existing laws deficient [429 U.S. 589, 592] in several respects. There was no effective way to prevent the use of stolen or revised prescriptions, to prevent unscrupulous pharmacists from repeatedly refilling prescriptions, to prevent users from obtaining prescriptions from more than one doctor, or to prevent doctors from over-prescribing, either by authorizing an excessive amount in one prescription or by giving one patient multiple prescriptions. 5 In drafting new legislation to correct such defects, the commission consulted with enforcement officials in California and Illinois where central reporting systems were being used effectively. 6
The new New York statute classified potentially harmful drugs in five schedules. 7 Drugs, such as heroin, which are highly abused and have no recognized medical use, are in Schedule I; they cannot be prescribed. Schedules II through V include drugs which have a progressively lower potential for abuse but also have a recognized medical use. Our [429 U.S. 589, 593] concern is limited to Schedule II, which includes the most dangerous of the legitimate drugs. 8
With an exception for emergencies, the Act requires that all prescriptions for Schedule II drugs be prepared by the physician in triplicate on an official form. 9 The completed form identifies the prescribing physician; the dispensing pharmacy; the drug and dosage; and the name, address, and age of the patient. One copy of the form is retained by the physician, the second by the pharmacist, and the third is forwarded to the New York State Department of Health in Albany. A prescription made on an official form may not exceed a 30-day supply, and may not be refilled. 10
The District Court found that about 100,000 Schedule II prescription forms are delivered to a receiving room at the Department of Health in Albany each month. They are sorted, coded, and logged and then taken to another room where the data on the forms is recorded on magnetic tapes for processing by a computer. Thereafter, the forms are returned to the receiving room to be retained in a vault for a five-year period and then destroyed as required by the statute. 11 [429 U.S. 589, 594] The receiving room is surrounded by a locked wire fence and protected by an alarm system. The computer tapes containing the prescription data are kept in a locked cabinet. When the tapes are used, the computer is run "off-line," which means that no terminal outside of the computer room can read or record any information. Public disclosure of the identity of patients is expressly prohibited by the statute and by a Department of Health regulation. 12 Willful violation [429 U.S. 589, 595] of these prohibitions is a crime punishable by up to one year in prison and a $2,000 fine. 13 At the time of trial there were 17 Department of Health employees with access to the files; in addition, there were 24 investigators with authority to investigate cases of overdispensing which might be identified by the computer. Twenty months after the effective date of the Act, the computerized data had only been used in two investigations involving alleged overuse by specific patients.
A few days before the Act became effective, this litigation was commenced by a group of patients regularly receiving prescriptions for Schedule II drugs, by doctors who prescribe such drugs, and by two associations of physicians. 14 After various preliminary proceedings, 15 a three-judge District Court conducted a one-day trial. Appellees offered evidence tending to prove that persons in need of treatment with Schedule II drugs will from time to time decline such treatment because of their fear that the misuse of the computerized data will cause them to be stigmatized as "drug addicts." 16 [429 U.S. 589, 596]
The District Court held that "the doctor-patient relationship is one of the zones of privacy accorded constitutional protection" and that the patient-identification provisions of the Act invaded this zone with "a needlessly broad sweep," and enjoined enforcement of the provisions of the Act which deal with the reporting of patients' names and addresses. 17
I
The District Court found that the State had been unable to demonstrate the necessity for the patient-identification requirement on the basis of its experience during the first 20 months of administration of the new statute. There was a time when that alone would have provided a basis for invalidating the statute. Lochner v. New York, 198 U.S. 45 , involved legislation making it a crime for a baker to permit his employees to work more than 60 hours in a week. In an opinion no longer regarded as authoritative, the Court held the statute unconstitutional as "an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty . . . ." Id., at 56. [429 U.S. 589, 597]
The holding in Lochner has been implicitly rejected many times. 18 State legislation which has some effect on individual liberty or privacy may not be held unconstitutional simply because a court finds it unnecessary, in whole or in part. 19 For we have frequently recognized that individual States have broad latitude in experimenting with possible solutions to problems of vital local concern. 20
The New York statute challenged in this case represents a considered attempt to deal with such a problem. It is manifestly the product of an orderly and rational legislative decision. It was recommended by a specially appointed commission which held extensive hearings on the proposed legislation, and drew on experience with similar programs in other States. There surely was nothing unreasonable in the assumption that the patient-identification requirement might [429 U.S. 589, 598] aid in the enforcement of laws designed to minimize the misuse of dangerous drugs. For the requirement could reasonably be expected to have a deterrent effect on potential violators 21 as well as to aid in the detection or investigation of specific instances of apparent abuse. At the very least, it would seem clear that the State's vital interest in controlling the distribution of dangerous drugs would support a decision to experiment with new techniques for control. 22 For if an experiment fails - if in this case experience teaches that the patient-identification requirement results in the foolish expenditure of funds to acquire a mountain of useless information - the legislative process remains available to terminate the unwise experiment. It follows that the legislature's enactment of the patient-identification requirement was a reasonable exercise of New York's broad police powers. The District Court's finding that the necessity for the requirement had not been proved is not, therefore, a sufficient reason for holding the statutory requirement unconstitutional.
II
Appellees contend that the statute invades a constitutionally protected "zone of privacy." 23 The cases sometimes [429 U.S. 589, 599] characterized as protecting "privacy" have in fact involved at least two different kinds of interests. 24 One is the individual interest in avoiding disclosure of personal matters, 25 and another is the interest in independence in making certain [429 U.S. 589, 600] kinds of important decisions. 26 Appellees argue that both of these interests are impaired by this statute. The mere existence in readily available form of the information about patients' use of Schedule II drugs creates a genuine concern that the information will become publicly known and that it will adversely affect their reputations. This concern makes some patients reluctant to use, and some doctors reluctant to prescribe, such drugs even when their use is medically indicated. It follows, they argue, that the making of decisions about matters vital to the care of their health is inevitably affected by the statute. Thus, the statute threatens to impair both their interest in the nondisclosure of private information and also their interest in making important decisions independently.
We are persuaded, however, that the New York program does not, on its face, pose a sufficiently grievous threat to either interest to establish a constitutional violation.
Public disclosure of patient information can come about in three ways. Health Department employees may violate the statute by failing, either deliberately or negligently, to maintain proper security. A patient or a doctor may be accused of a violation and the stored data may be offered in evidence in a judicial proceeding. Or, thirdly, a doctor, a pharmacist, or the patient may voluntarily reveal information on a prescription form.
The third possibility existed under the prior law and is entirely unrelated to the existence of the computerized [429 U.S. 589, 601] data bank. Neither of the other two possibilities provides a proper ground for attacking the statute as invalid on its face. There is no support in the record, or in the experience of the two States that New York has emulated, for an assumption that the security provisions of the statute will be administered improperly. 27 And the remote possibility that judicial supervision of the evidentiary use of particular items of stored information will provide inadequate protection [429 U.S. 589, 602] against unwarranted disclosures is surely not a sufficient reason for invalidating the entire patient-identification program. 28
Even without public disclosure, it is, of course, true that private information must be disclosed to the authorized employees of the New York Department of Health. Such disclosures, however, are not significantly different from those that were required under the prior law. Nor are they meaningfully distinguishable from a host of other unpleasant invasions of privacy that are associated with many facets of health care. Unquestionably, some individuals' concern for their own privacy may lead them to avoid or to postpone needed medical attention. Nevertheless, disclosures of private medical information to doctors, to hospital personnel, to insurance companies, and to public health agencies are often an essential part of modern medical practice even when the disclosure may reflect unfavorably on the character of the patient. 29 Requiring such disclosures to representatives of the State having responsibility for the health of the community, does not automatically amount to an impermissible invasion of privacy.
Appellees also argue, however, that even if unwarranted disclosures do not actually occur, the knowledge that the information is readily available in a computerized file creates a genuine concern that causes some persons to decline needed [429 U.S. 589, 603] medication. The record supports the conclusion that some use of Schedule II drugs has been discouraged by that concern; it also is clear, however, that about 100,000 prescriptions for such drugs were being filled each month prior to the entry of the District Court's injunction. Clearly, therefore, the statute did not deprive the public of access to the drugs.
Nor can it be said that any individual has been deprived of the right to decide independently, with the advice of his physician, to acquire and to use needed medication. Although the State no doubt could prohibit entirely the use of particular Schedule II drugs, 30 it has not done so. This case is therefore unlike those in which the Court held that a total prohibition of certain conduct was an impermissible deprivation of liberty. Nor does the State require access to these drugs to be conditioned on the consent of any state official or other third party. 31 Within dosage limits which appellees do not challenge, the decision to prescribe, or to use, is left entirely to the physician and the patient.
We hold that neither the immediate nor the threatened impact of the patient-identification requirements in the New York State Controlled Substances Act of 1972 on either the reputation or the independence of patients for whom Schedule II drugs are medically indicated is sufficient to constitute an [429 U.S. 589, 604] invasion of any right or liberty protected by the Fourteenth Amendment. 32
III
The appellee doctors argue separately that the statute impairs their right to practice medicine free of unwarranted state interference. If the doctors' claim has any reference to the impact of the 1972 statute on their own procedures, it is clearly frivolous. For even the prior statute required the doctor to prepare a written prescription identifying the name and address of the patient and the dosage of the prescribed drug. To the extent that their claim has reference to the possibility that the patients' concern about disclosure may induce them to refuse needed medication, the doctors' claim is derivative from, and therefore no stronger than, the patients'. 33 Our rejection of their claim therefore disposes of the doctors' as well. [429 U.S. 589, 605]
IV
A final word about issues we have not decided. We are not unaware of the threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files. 34 The collection of taxes, the distribution of welfare and social security benefits, the supervision of public health, the direction of our Armed Forces, and the enforcement of the criminal laws all require the orderly preservation of great quantities of information, much of which is personal in character and potentially embarrassing or harmful if disclosed. The right to collect and use such data for public purposes is typically accompanied by a concomitant statutory or regulatory duty to avoid unwarranted disclosures. Recognizing that in some circumstances that duty arguably has its roots in the Constitution, nevertheless New York's statutory scheme, and its implementing administrative procedures, evidence a proper concern with, and protection of, the individual's interest in privacy. We therefore need not, and do not, decide any question which might be presented by the unwarranted disclosure [429 U.S. 589, 606] of accumulated private data - whether intentional or unintentional - or by a system that did not contain comparable security provisions. We simply hold that this record does not establish an invasion of any right or liberty protected by the Fourteenth Amendment.
Reversed.
MR. JUSTICE BRENNAN, concurring.
I write only to express my understanding of the opinion of the Court, which I join.
The New York statute under attack requires doctors to disclose to the State information about prescriptions for certain drugs with a high potential for abuse, and provides for the storage of that information in a central computer file. The Court recognizes that an individual's "interest in avoiding disclosure of personal matters" is an aspect of the right of privacy, ante, at 598-600, and nn. 24-25, but holds that in this case, any such interest has not been seriously enough invaded by the State to require a showing that its program was indispensable to the State's effort to control drug abuse.
The information disclosed by the physician under this program is made available only to a small number of public health officials with a legitimate interest in the information. As the record makes clear, New York has long required doctors to make this information available to its officials on request, and that practice is not challenged here. Such limited reporting requirements in the medical field are familiar, ante, at 602 n. 29, and are not generally regarded as an invasion of privacy. Broad dissemination by state officials of such information, however, would clearly implicate constitutionally protected privacy rights, and would presumably be justified only by compelling state interests. See, e. g., Roe v. Wade, 410 U.S. 113, 155 -156 (1973).
What is more troubling about this scheme, however, is the central computer storage of the data thus collected. Obviously, as the State argues, collection and storage of data [429 U.S. 589, 607] by the State that is in itself legitimate is not rendered unconstitutional simply because new technology makes the State's operations more efficient. However, as the example of the Fourth Amendment shows, the Constitution puts limits not only on the type of information the State may gather, but also on the means it may use to gather it. The central storage and easy accessibility of computerized data vastly increase the potential for abuse of that information, and I am not prepared to say that future developments will not demonstrate the necessity of some curb on such technology.
In this case, as the Court's opinion makes clear, the State's carefully designed program includes numerous safeguards intended to forestall the danger of indiscriminate disclosure. Given this serious and, so far as the record shows, successful effort to prevent abuse and limit access to the personal information at issue, I cannot say that the statute's provisions for computer storage, on their face, amount to a deprivation of constitutionally protected privacy interests, any more than the more traditional reporting provisions.
In the absence of such a deprivation, the State was not required to prove that the challenged statute is absolutely necessary to its attempt to control drug abuse. Of course, a statute that did effect such a deprivation would only be consistent with the Constitution if it were necessary to promote a compelling state interest. Roe v. Wade, supra; Eisenstadt v. Baird, 405 U.S. 438, 464 (1972) (WHITE, J., concurring in result).
MR. JUSTICE STEWART, concurring.
In Katz v. United States, 389 U.S. 347 , the Court made clear that although the Constitution affords protection against certain kinds of government intrusions into personal and private matters, * there is no "general constitutional `right to [429 U.S. 589, 608] privacy.' . . . [T]he protection of a person's general right to privacy - his right to be let alone by other people - is, like the protection of his property and of his very life, left largely to the law of the individual States." Id., at 350-351 (footnote omitted).
MR. JUSTICE BRENNAN'S concurring opinion states that "[b]road dissemination by state officials of [the information collected by New York State] . . . would clearly implicate constitutionally protected privacy rights . . . ." Ante, at 606. The only possible support in his opinion for this statement is its earlier reference to two footnotes in the Court's opinion, ibid., citing ante, at 598-600, and nn. 24-25 (majority opinion). The footnotes, however, cite to only two Court opinions, and those two cases do not support the proposition advanced by MR. JUSTICE BRENNAN.
The first case referred to, Griswold v. Connecticut, 381 U.S. 479 , held that a State cannot constitutionally prohibit a married couple from using contraceptives in the privacy of their home. Although the broad language of the opinion includes a discussion of privacy, see id., at 484-485, the constitutional protection there discovered also related to (1) marriage, see id., at 485-486; id., at 495 (Goldberg, J., concurring); id., at [429 U.S. 589, 609] 500 (Harlan, J., concurring in judgment), citing Poe v. Ullman, 367 U.S. 497, 522 (Harlan, J., dissenting); 381 U.S., at 502 -503 (WHITE, J., concurring in judgment); (2) privacy in the home, see id., at 484-485 (majority opinion); id., at 495 (Goldberg, J., concurring); id., at 500 (Harlan, J., concurring in judgment), citing Poe v. Ullman, supra, at 522 (Harlan, J., dissenting); and (3) the right to use contraceptives, see 381 U.S., at 503 (WHITE, J., concurring in judgment); see also Roe v. Wade, 410 U.S. 113, 169 -170 (STEWART, J., concurring). Whatever the ratio decidendi of Griswold, it does not recognize a general interest in freedom from disclosure of private information.
The other case referred to, Stanley v. Georgia, 394 U.S. 557 , held that an individual cannot constitutionally be prosecuted for possession of obscene materials in his home. Although Stanley makes some reference to privacy rights, id., at 564, the holding there was simply that the First Amendment - as made applicable to the States by the Fourteenth - protects a person's right to read what he chooses in circumstances where that choice poses no threat to the sensibilities or welfare of others, id., at 565-568.
Upon the understanding that nothing the Court says today is contrary to the above views, I join its opinion and judgment.
U.S. Supreme Court
KATZ v. UNITED STATES, 389 U.S. 347 (1967)
389 U.S. 347
KATZ v. UNITED STATES.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.
No. 35.
Argued October 17, 1967.
Decided December 18, 1967.
Petitioner was convicted under an indictment charging him with transmitting wagering information by telephone across state lines in violation of 18 U.S.C. 1084. Evidence of petitioner's end of the conversations, overheard by FBI agents who had attached an electronic listening and recording device to the outside of the telephone booth from which the calls were made, was introduced at the trial. The Court of Appeals affirmed the conviction, finding that there was no Fourth Amendment violation since there was "no physical entrance into the area occupied by" petitioner. Held:
1. The Government's eavesdropping activities violated the privacy upon which petitioner justifiably relied while using the telephone booth and thus constituted a "search and seizure" within the meaning of the Fourth Amendment. Pp. 350-353.
(a) The Fourth Amendment governs not only the seizure of tangible items but extends as well to the recording of oral statements. Silverman v. United States, 365 U.S. 505, 511 . P. 353.
(b) Because the Fourth Amendment protects people rather than places, its reach cannot turn on the presence or absence of a physical intrusion into any given enclosure. The "trespass" doctrine of Olmstead v. United States, 277 U.S. 438 , and Goldman v. United States, 316 U.S. 129 , is no longer controlling. Pp. 351, 353.
2. Although the surveillance in this case may have been so narrowly circumscribed that it could constitutionally have been authorized in advance, it was not in fact conducted pursuant to the warrant procedure which is a constitutional precondition of such electronic surveillance. Pp. 354-359.
369 F.2d 130, reversed.
Burton Marks and Harvey A. Schneider argued the cause and filed briefs for petitioner. [389 U.S. 347, 348]
John S. Martin, Jr., argued the cause for the United States. With him on the brief were Acting Solicitor General Spritzer, Assistant Attorney General Vinson and Beatrice Rosenberg.
MR. JUSTICE STEWART delivered the opinion of the Court.
The petitioner was convicted in the District Court for the Southern District of California under an eight-count indictment charging him with transmitting wagering information by telephone from Los Angeles to Miami and Boston, in violation of a federal statute. 1 At trial the Government was permitted, over the petitioner's objection, to introduce evidence of the petitioner's end of telephone conversations, overheard by FBI agents who had attached an electronic listening and recording device to the outside of the public telephone booth from which he had placed his calls. In affirming his conviction, the Court of Appeals rejected the contention that the recordings had been obtained in violation of the Fourth Amendment, [389 U.S. 347, 349] because "[t]here was no physical entrance into the area occupied by [the petitioner]." 2 We granted certiorari in order to consider the constitutional questions thus presented. 3
The petitioner has phrased those questions as follows:
"A. Whether a public telephone booth is a constitutionally protected area so that evidence obtained by attaching an electronic listening recording device to the top of such a booth is obtained in violation of the right to privacy of the user of the booth. [389 U.S. 347, 350]
"B. Whether physical penetration of a constitutionally protected area is necessary before a search and seizure can be said to be violative of the Fourth Amendment to the United States Constitution."
We decline to adopt this formulation of the issues. In the first place, the correct solution of Fourth Amendment problems is not necessarily promoted by incantation of the phrase "constitutionally protected area." Secondly, the Fourth Amendment cannot be translated into a general constitutional "right to privacy." That Amendment protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all. 4 Other provisions of the Constitution protect personal privacy from other forms of governmental invasion. 5 But the protection of a person's general right to privacy - his right to be let alone by other people 6 - is, like the [389 U.S. 347, 351] protection of his property and of his very life, left largely to the law of the individual States. 7
Because of the misleading way the issues have been formulated, the parties have attached great significance to the characterization of the telephone booth from which the petitioner placed his calls. The petitioner has strenuously argued that the booth was a "constitutionally protected area." The Government has maintained with equal vigor that it was not. 8 But this effort to decide whether or not a given "area," viewed in the abstract, is "constitutionally protected" deflects attention from the problem presented by this case. 9 For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. See Lewis v. United States, 385 U.S. 206, 210 ; United States v. Lee, 274 U.S. 559, 563 . But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. [389 U.S. 347, 352] See Rios v. United States, 364 U.S. 253 ; Ex parte Jackson, 96 U.S. 727, 733 .
The Government stresses the fact that the telephone booth from which the petitioner made his calls was constructed partly of glass, so that he was as visible after he entered it as he would have been if he had remained outside. But what he sought to exclude when he entered the booth was not the intruding eye - it was the uninvited ear. He did not shed his right to do so simply because he made his calls from a place where he might be seen. No less than an individual in a business office, 10 in a friend's apartment, 11 or in a taxicab, 12 a person in a telephone booth may rely upon the protection of the Fourth Amendment. One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.
The Government contends, however, that the activities of its agents in this case should not be tested by Fourth Amendment requirements, for the surveillance technique they employed involved no physical penetration of the telephone booth from which the petitioner placed his calls. It is true that the absence of such penetration was at one time thought to foreclose further Fourth Amendment inquiry, Olmstead v. United States, 277 U.S. 438, 457 , 464, 466; Goldman v. United States, 316 U.S. 129, 134 -136, for that Amendment was thought to limit only searches and seizures of tangible [389 U.S. 347, 353] property. 13 But "[t]he premise that property interests control the right of the Government to search and seize has been discredited." Warden v. Hayden, 387 U.S. 294, 304 . Thus, although a closely divided Court supposed in Olmstead that surveillance without any trespass and without the seizure of any material object fell outside the ambit of the Constitution, we have since departed from the narrow view on which that decision rested. Indeed, we have expressly held that the Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements, over-heard without any "technical trespass under . . . local property law." Silverman v. United States, 365 U.S. 505, 511 . Once this much is acknowledged, and once it is recognized that the Fourth Amendment protects people - and not simply "areas" - against unreasonable searches and seizures, it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure.
We conclude that the underpinnings of Olmstead and Goldman have been so eroded by our subsequent decisions that the "trespass" doctrine there enunciated can no longer be regarded as controlling. The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a "search and seizure" within the meaning of the Fourth Amendment. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance. [389 U.S. 347, 354]
The question remaining for decision, then, is whether the search and seizure conducted in this case complied with constitutional standards. In that regard, the Government's position is that its agents acted in an entirely defensible manner: They did not begin their electronic surveillance until investigation of the petitioner's activities had established a strong probability that he was using the telephone in question to transmit gambling information to persons in other States, in violation of federal law. Moreover, the surveillance was limited, both in scope and in duration, to the specific purpose of establishing the contents of the petitioner's unlawful telephonic communications. The agents confined their surveillance to the brief periods during which he used the telephone booth, 14 and they took great care to overhear only the conversations of the petitioner himself. 15
Accepting this account of the Government's actions as accurate, it is clear that this surveillance was so narrowly circumscribed that a duly authorized magistrate, properly notified of the need for such investigation, specifically informed of the basis on which it was to proceed, and clearly apprised of the precise intrusion it would entail, could constitutionally have authorized, with appropriate safeguards, the very limited search and seizure that the Government asserts in fact took place. Only last Term we sustained the validity of [389 U.S. 347, 355] such an authorization, holding that, under sufficiently "precise and discriminate circumstances," a federal court may empower government agents to employ a concealed electronic device "for the narrow and particularized purpose of ascertaining the truth of the . . . allegations" of a "detailed factual affidavit alleging the commission of a specific criminal offense." Osborn v. United States, 385 U.S. 323, 329 -330. Discussing that holding, the Court in Berger v. New York, 388 U.S. 41 , said that "the order authorizing the use of the electronic device" in Osborn "afforded similar protections to those . . . of conventional warrants authorizing the seizure of tangible evidence." Through those protections, "no greater invasion of privacy was permitted than was necessary under the circumstances." Id., at 57. 16 Here, too, a similar [389 U.S. 347, 356] judicial order could have accommodated "the legitimate needs of law enforcement" 17 by authorizing the carefully limited use of electronic surveillance.
The Government urges that, because its agents relied upon the decisions in Olmstead and Goldman, and because they did no more here than they might properly have done with prior judicial sanction, we should retroactively validate their conduct. That we cannot do. It is apparent that the agents in this case acted with restraint. Yet the inescapable fact is that this restraint was imposed by the agents themselves, not by a judicial officer. They were not required, before commencing the search, to present their estimate of probable cause for detached scrutiny by a neutral magistrate. They were not compelled, during the conduct of the search itself, to observe precise limits established in advance by a specific court order. Nor were they directed, after the search had been completed, to notify the authorizing magistrate in detail of all that had been seized. In the absence of such safeguards, this Court has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive [389 U.S. 347, 357] means consistent with that end. Searches conducted without warrants have been held unlawful "notwithstanding facts unquestionably showing probable cause," Agnello v. United States, 269 U.S. 20, 33 , for the Constitution requires "that the deliberate, impartial judgment of a judicial officer . . . be interposed between the citizen and the police . . . ." Wong Sun v. United States, 371 U.S. 471, 481 -482. "Over and again this Court has emphasized that the mandate of the [Fourth] Amendment requires adherence to judicial processes," United States v. Jeffers, 342 U.S. 48, 51 , and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment 18 - subject only to a few specifically established and well-delineated exceptions. 19
It is difficult to imagine how any of those exceptions could ever apply to the sort of search and seizure involved in this case. Even electronic surveillance substantially contemporaneous with an individual's arrest could hardly be deemed an "incident" of that arrest. 20 [389 U.S. 347, 358] Nor could the use of electronic surveillance without prior authorization be justified on grounds of "hot pursuit." 21 And, of course, the very nature of electronic surveillance precludes its use pursuant to the suspect's consent. 22
The Government does not question these basic principles. Rather, it urges the creation of a new exception to cover this case. 23 It argues that surveillance of a telephone booth should be exempted from the usual requirement of advance authorization by a magistrate upon a showing of probable cause. We cannot agree. Omission of such authorization
"bypasses the safeguards provided by an objective predetermination of probable cause, and substitutes instead the far less reliable procedure of an after-the-event justification for the . . . search, too likely to be subtly influenced by the familiar shortcomings of hindsight judgment." Beck v. Ohio, 379 U.S. 89, 96 .
And bypassing a neutral predetermination of the scope of a search leaves individuals secure from Fourth Amendment [389 U.S. 347, 359] violations "only in the discretion of the police." Id., at 97.
These considerations do not vanish when the search in question is transferred from the setting of a home, an office, or a hotel room to that of a telephone booth. Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures. The government agents here ignored "the procedure of antecedent justification . . . that is central to the Fourth Amendment," 24 a procedure that we hold to be a constitutional precondition of the kind of electronic surveillance involved in this case. Because the surveillance here failed to meet that condition, and because it led to the petitioner's conviction, the judgment must be reversed.
It is so ordered.
MR. JUSTICE MARSHALL took no part in the consideration or decision of this case.