National conversation through cspans Daily Program or through our social media feeds. Cspan created by americas Cable Television companies as a Public Service and brought to you today by your television provider. All persons having business before the Honorable Supreme Court of the United States are admonished to draw near and give their attention. Landmark cases, cspans special history series produced in partnership with the National Constitution center. Exploring the human stories and constitutional dramas behind 12 historic Supreme Court decisions. Mr. Chief justice and may it please the court. Quite often in many of our most famous decisions are ones that the court took that were quite unpopular. Lets go through a few cases that illustrate very dramatically and visually what it means to live in a society of different people who help stick together because they believe in a rule of law. Good evening and welcome to cspan landmark cases. Tonights case is katz versus the United States, it is a 1967 case. The person who gave his name to the case is somewhat of an unlikely hero. He was a bookmaker specializing in College Basketball games and he took his wiretapping case to the Supreme Court and in a 71 decision expanded our privacy rights under the constitution. Were going to learn more about his story and the significance of this case over the next 90 minutes. But well begin by listening to judge Justice Samuel alito in his confirmation hearings where he talked about the importance of the katz case. Lets listen. Sometimes changes in the situation in the real world can call for the overruling of the precedent. An example of that is provided by katz versus United States which i was talking about this morning in relation to wiretapping. The old rule under olmstead was that in order for there to be a search, you had to look to property law, you are had to see whether there was invasion of a property interest. And then with the development of Electronic Communications and electronic surveillance, wiretapping or other forms of electronic surveillance, which is what was involved in katz, the Supreme Court said this isnt a sensible way to apply the 4th amendment principle under the conditions of the modern world. And they said famously that the Fourth Amendment protects people not places. So they shifted and found the doctrine underpinnings of the Old Homestead rule to be undermined by developments in the society and shifted the focus from property law to whether somebody had an expectation of privacy. So our two guests at the table are going to unpack that story for us tonight. Let me introduce them to you. Jeffrey roczen, president and ceo of the National Constitution center. The Constitution Center are our partners in this landmark case series this time and the first round in 2015, he is also the author of numerous books about the law and the court. His latest is a biography of William Howard taft that has just been released. So great to be here. Jamil javer is director of the National Security law and policy program at George Mason UniversityAntonin Scalia law center and clerked for neil gorsuch twice and former adviser to Senate Foreign relations and House Intelligence Committee and president george w. Bush. Thanks for being here tonight. Thanks for having me. So as we begin, jeffrey rosen, we worked on selecting this case and why is this case interesting to you. It is the most important privacy case of the 20th century as Justice Alito said. This is the case that repudiated the idea that you needed to have a physical trespass to trigger the Fourth Amendment. This is the general warrants and writs of assistance that sparked the American Revolution but in the age of Electronic Technology it made no sense to say that you had to trespass on Property Private in order to have an unreasonable search of our persons or electronic effects and by declaring that the law protects people not places, the court set the stage for moving the Fourth Amendment into the electronic age and that is precisely the debate that were having today. You have spent much of your recent career focusing on National Security law. Where does katz fit in that pantheon . How important is it . It is the central case as jeffrey just laid out about how we think about the Fourth Amendment and surveillance. And one of the key issues in National Security law today is surveillance and how the government conducts surveillance. It is a topic of much debate, after Edward Snowdens revolution, it was the topic of new revelations in congress. There continues to be debates today at the court this term, two major cases involving well, one involving electronic surveillance and two involving the Fourth Amendment so it continues to be a hotlydebated topic at the court and in our political system. We need to spend some time on the Fourth Amendment itself so im going to put the language on the screen. The right of people to be secure in their persons, houses, papers and effects against run reasonable searched and seizures unreasonable searches and seizures shall not be violated and no warrant shall be issued but upon probable cause and supporting the oath or affirmation. So a bit of a history lesson. And what gave rise to this amendment chief Justice Roberts quoted the speech of jame otis denouncing the writ of assistance, and john adams said at that moment the child revolution was born. So that is how important this historical story is and the writ of assistance allowed the kings agents to break into peoples homes, searching for evidence of the fact that they hadnt paid the hated tea taxes or published against the king. Warrants didnt specify the places but just said go find the authors of these pamphlets or people that didnt find their taxes so they were instruments of tyranny to allow them to rummage through places indiscriminate indiscriminately. Common law courts established the principles in state constitutions, the massachusetts constitution of 1780 has a longer version of the Fourth Amendment, and when James Madison drafted the Fourth Amendment he cut and pasted from those state constitutions to make clear that you couldnt have searches that dont particularly specify places to be searched and a person or things to be seized. You teach the Fourth Amendment. What do you tell the students about what its importance is . I think it is at the core of our civil liberties. It protects, as jeffrey said, against the general warrants and the tyranny of the king. Remember, our framers came from a place of deep suspicion of overleaning federal or governmental power. So when they built our system of governance, they built a government of limited powers and laid out the rights people were entitled to. One of the core rights was the right to be protected against these unreasonable searches and seizures. Well get to your call and tweets in about 10, 15 minutes. If youre watching eastern or central time zone, 2027488900, and then in the Mountain Time frame and send us a tweet. Its cspan. Org. And there is a discussion already underway on our facebook page. Can you be part of that now or after our program is over if youd like. So as we get into the particulars of this case, there are a couple of personalities that people will hear about as we proceed. One is charles katz himself. What can you tell us about charles katz . A constant gambler and a leading basketball handicapper in the United States. He had residences in new york and los angeles at the time of his arrest. He was living in a hotel on the 8200 block of sunset boulevard, famous sunset strip. Famous for rock bands and all sorts of things and he used to stroll down the street to a set of three phone booths in order to conduct his interstate gambling mission. The fbi got wind of this and that is what led to this case, was the wiretapping or the surveillance of the phone booths. Someone sent me a tweet last week that said we have to explain what phone booths were. Thats true. We dont have many around anymore. Harvey snyder, who is he . Hes now a retired Los Angeles Superior Court judge and a law clerk to burton marks and burton marks, we have to note, made a great filing in this case. When he filed the brief, he said thanks to a typo a man has as much a right to bet alone in a public phone booth as in his own home. So snyder took over the case from marks and it was snyder who came up with the brilliant theory of the core of the case that rather than focusing on what is a constitutionally protected place, the question should be barring from tort law, do people have reasonable expectations of privacy. He remembered his own Law School Class where he studied the views of the reasonable man and made that argument before the Supreme Court and it ended up defining the case. That must make both of you, who teach law, feel good, about the importance of individual classes and the impact they can have on your students overall. This is one class that sparked a brainstorm for this lawyer approaches the case. Absolutely. And this is the most exciting sort of case to teach in criminal procedure because it does inspire people to transform the amendment and to translate it in light of new technologies. And to translate in light of new technology. That is what Harvey Snyder did and Harvey Brandeis and thats what cspan viewers should try to do tonight. Well hear more about the court overall. Tell us about him. Justice Supreme Court appointed by president eisenhower served in world ii as a member of the navy reserves. Often times found himself in dissent during the warren court era. But in this case, in the majority, writing perhaps a slightly narrower opinion than what katz is known for. Katz is really known for justice har lens concurrence. So they have the majority and the votes but ultimately the really influential was the concurrence. Youve referred to him and liz brand ice is important in this case. Why. He wrote the most important privacy dissent of the 20th krnts and i want viewers to go and read it and you could get it online right now. But keep watching the show so read it after the show is over. Brandeis and taft, write about him in the book, but chief justice taft said you need a physical trespass in order to trigger the Fourth Amendment. That was a case involving wiretapping and a bootlegger of his time and there the wiretap was under a sidewalk. Brandeis looks forward to cyber space and technologies, ways may be developed where its possible without intruding in desk drawers to extract papers. The right to question was the right to be let alone and the amendment had to be translated for the same privacy with the wires as they took for granted in the 19th centuries. Were in the era of a time when oral arguments are being recorded by the court to. Glif you the particulars of this case, we mentionederlyier the lawyer was Harvey Snyder. Well listen to him in the oral argument as he tees up the particular. The story that brings us to the Supreme Court. Lets listen. 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 followed. 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, there was actually three booths. One had been placed out of order by the Telephone Company and with the Telephone Company cooperation and the other two booths were used by mr. Katz, sometimes used one booth, sometimes 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. We have a period picture of the telephone booths on sunset boulevard that were really a character in this case. So could you explain the authority under which the fbi agents were operating at the time. Sure. So the fbi agents, their understanding was that as jeff laid out that if as long as you didnt invade the physical space and constitutionally protected space, a home, or the like, there wasnt a problem. So they didnt bother to go get a warrant. They knew they had been watching mr. Katz for a while. They knew it was his normal order of business to leave his hotel, walk down the street, take a stroll and enter the phone booth, make his bets in a phone booth or take the bets and i should say and then wander off. So what they did was put this microphone on top of the booth without invading them, and they set the microphones up so they could record what was happening inside the phone booth. As mr. Katz would walk down and an agent would follow him and send the hi sign, because they didnt record anybody else, and mr. Katz would do his thing. So the authority was they werent violating the Supreme Court decisions, penetrating a constitutionally proven place, they dont need a warrant for this and they taped it, and that is how we ended up in court. What law was he breaking . Was betting illegal . What attracted the fbis interest in the first place . There are statutes involving Money Laundering and also ones betting and im trying to get the exact one here. Here it is. Thanks to the great National Constitution center prep team. It is 18 usc 1804, wagering information by telephone and it for bids betting or wagering knowingly using a wire communication for interstate or foreign commerce and bets or wagers. So he was probably violating the law but the question is whether the search as jamil explained it was constitutional and if wasnt, according to existing case law, the evidence had to be excluded. So everything turned on the constitutionality of the search. So what was illegal about it was that it was interstate. Right. If he had been making a local phone call, it would not have been if the gambling was local it wouldnt have used the interstate wires and that is how we ended up in federal court in the Southern District of california now the central district. That is how it wound from that court up to the ninth circuit and then to the u. S. Supreme court. You know the famous line in the case that he said on the phone that was the hallmark of his betting. So you want to tell the audience what it was. He would take duquesne minus 7 for a nickel and the question was, was this a bet. And anybody who has ever gone to vegas and placed a bet on sports knows that the Basketball Team was favored and he was betting 500. Do we know if duquesne won . I dont know. Lets find out. Viewers, figure it out. But he was taking tons of bets on this line and calling all of his acquaintances and the people that gambled with him and the people he places his bets with. Because he was a bookmaker. So he was taking bets and placing them to engage in the process. So he was literally the biggest basketball handicapper of his time. And go ahead. It is striking. Olmstead was the biggest bootlegger of his time so these are not small potato guys and in both cases the feds didnt take the time to get warrants because these guys were under serious enough suspicion they might have done so but they didnt and they gave rise to landmark cases. A time line of the events leading up to the case ,and i want to walk through it so you could see how the events proceeds. The fbi started bugging the phone booths back in february of 1965 on sunset boulevard. And just a short time later, february 25th, 1965, mr. Katz was arrested on eight counts of illegally transmitting bets. On may 30th of 1965, he was convicted and fined 300. That seems small for eight counts. On november 17th, 1966, ninth Circuit Court of appeals upholds the conviction. And march 13th, 1967, the Supreme Court decides it is going to hear the case. So eight counts is a lot. If you had a client facing eight federal counts, what would you say about how serious this was for him . Well, look, they had him dead to rights. They had him on the recorder getting on the phone making the phone calls. So his lawyers didnt have a great he didnt do it. And they have the famous duquesne minus 7 line and there wasn