In June of 2005 ten retail stores on Main Street in Metro City in the State of Blackacre are broken into during the night and valuable merchandise is taken from each store. In response to this crime wave, police patrols on Main Street are increased. In addition, a large unmarked police truck containing a full-body backscatter x-ray unit is parked on Main Street. The police officers patrolling the area at night are instructed to stop persons who are acting in a suspicious fashion and make such people pass through the full-body x-ray machine so that the police officers can determine whether the persons they have stopped are carrying concealed burglary tools or other materials that could be used to break into a store or haul away loot.

At 1:30 a.m. on July 4, 2005, Police Officer Mary Tyler, who has been assigned to patrol Main Street, observes Jane Katz walking slowly down Main Street. Officer Tyler observes that Katz is walking slowly on the sidewalk, stopping at each store, and peering into the display window of each store for two to three minutes before moving on to the next store. This happens five to six times. Officer Mary Tyler then stops Jane Katz, takes her to the nearby police truck with the scanner, and instructs Katz to walk into the scanner unit and stand in it until told to come out. Katz complies with Tyler's instructions. The scanner produces the following image:

Officer Tyler points to the image and asks Katz what the devices on the left-hand side of her waist are. Katz replies that the device on her extreme left is a small cell phone and that the device closer to the center of her body is an electronic diary, which, Katz states, she actually uses as a personal diary. Officer Tyler then reaches under Katz's clothing and removes the electronic diary. She activates the device and she reads the following entry, which is time-stamped July 3, 2005, 11:48 p.m., "I'm bored. I'm depressed I feel poor. I think I'll check out some stores on Main Street. They probably have stuff that will cheer me up."

The State of Blackacre later prosecutes Jane Katz for attempted burglary, a felony. At Katz's trial the prosecutor offers the electronic diary entry (quoted above) in evidence. Defense counsel objects on various grounds. Among those grounds is that the admission of the diary entry violates defendant's federal constitutional rights. However, defense counsel's objection is overruled and the electronic diary entry is admitted in evidence, Katz is convicted, Katz appeals her conviction, and her case eventually finds its way to the Supreme Court of the United States.

The issue before the Supreme Court is the constitutionality or unconstitutionality of Blackacre's use of the electronic diary entry as evidence in Katz's criminal trial. Although it is now 2011, assume that Justice William O. Douglas, Justice Black, and Justice Harlan are still alive. Furthermore, assume that the Supreme Court has decided the cases it decided through the year 1968, including Duncan v. Louisiana (1968); Katz v. United States (1967); Griswold v. Connecticut (1965); Mapp v. Ohio (1961); and Olmstead v. United States (1928). However, assume that no cases decided after 1968 have been decided.

On February 2, two to three of you will assume the position of Justice Douglas and you will together discuss the constitutionality or unconstitutionality of the use of the electronic diary entry at Katz's trial. The rest of you will challenge every step of Justice Douglas's analysis and argument.

Two to three of you will will assume the position of Justice Hugo Black and you will together discuss the constitutionality or unconstitutionality of the use of the electronic diary entry at Katz's trial. The rest of you will challenge every step of Justice Black's analysis and argument.

Two to three of you will will assume the position of Justice Harlan and you will together discuss the constitutionality or unconstitutionality of the use of the electronic diary entry at Katz's trial. The rest of you will challenge every step of Justice Harlan's analysis and argument.