Silverman v. U.S.
365 U.S. 505 (1961)
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Rule of Law:
Evidence obtained through the use of a listening device that involves an unauthorized physical penetration into a constitutionally protected area, such as a home, constitutes an illegal search and seizure under the Fourth Amendment.
Facts:
- District of Columbia police suspected that premises at 408 21st Street, N.W., were being used for a gambling operation by petitioners Silverman and others.
- Police obtained permission from the owner of the adjacent vacant row house to use it as an observation post.
- From the adjoining house, officers used a 'spike mike,' a microphone with a foot-long spike, to listen to conversations inside the petitioners' house.
- Officers inserted the spike several inches into the party wall separating the two houses.
- The spike made physical contact with a heating duct serving the house occupied by the petitioners.
- This contact converted the petitioners' entire heating system into a sound conductor, allowing police to overhear incriminating conversations from both floors of the house.
Procedural Posture:
- The petitioners were charged with gambling offenses in the District Court for the District of Columbia (the trial court).
- At trial, the court admitted testimony from police about conversations overheard with the spike mike, over the petitioners' objections.
- A jury found the petitioners guilty.
- The petitioners (as appellants) appealed to the United States Court of Appeals for the District of Columbia Circuit.
- The Court of Appeals (with the United States as appellee) affirmed the convictions.
- The petitioners successfully petitioned the United States Supreme Court for a writ of certiorari.
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Issue:
Does the use of a 'spike mike' that physically penetrates a shared wall and makes contact with a heating duct inside a suspect's home to overhear conversations constitute an unconstitutional search under the Fourth Amendment?
Opinions:
Majority - Mr. Justice Stewart
Yes. The use of the spike mike constituted an unconstitutional search because the eavesdropping was accomplished by means of an unauthorized physical penetration into the premises occupied by the petitioners. The Court distinguished this case from prior rulings in Goldman v. United States and On Lee v. United States, where listening devices were used without any physical trespass or encroachment into the protected area. In this case, the officers usurped part of the petitioners' house—the heating system—which was an integral part of the premises. This physical intrusion into a constitutionally protected area, regardless of whether it constitutes a technical trespass under local property law, violates the Fourth Amendment's core protection of a person's right to be free from unreasonable governmental intrusion in their home.
Concurring - Mr. Justice Douglas
Yes. While agreeing with the outcome, the majority's focus on 'unauthorized physical penetration' is beside the point. The invasion of privacy is the same regardless of whether an electronic device penetrates a wall or is simply placed against it. The true measure of the injury is not the depth of penetration, but the fact that the intimacies of the home were tapped and revealed. The sole concern should be whether the privacy of the home was invaded, which it was here, and any such search should require a warrant.
Concurring - Mr. Justice Clark and Mr. Justice Whittaker
Yes. They joined the Court's opinion specifically because the majority determined that the unauthorized physical penetration constituted a sufficient trespass to distinguish this case from the coverage of earlier decisions like Goldman.
Analysis:
This decision established the 'physical penetration' or 'trespass' doctrine as the controlling test for determining whether electronic eavesdropping constitutes a search under the Fourth Amendment. By distinguishing Goldman based on the 'fraction of an inch' of the spike's intrusion, the Court created a bright-line rule that tied Fourth Amendment protections to property rights and physical intrusion. This trespass doctrine would remain the standard for several years until the Court replaced it in Katz v. United States with the 'reasonable expectation of privacy' test, which shifted the focus from physical spaces to individual privacy.
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