United States v. WhiteAnnotate this Case
401 U.S. 745 (1971)
U.S. Supreme Court
United States v. White, 401 U.S. 745 (1971)
United States v. White
Argued November 10, 1969
Reargued October 20, 1970
Decided April 5, 1971
401 U.S. 745
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
Respondent was convicted in 1966 of narcotics violations following a trial where evidence was admitted of certain incriminating statements of respondent that were overheard by warrantless electronic eavesdropping by Government agents by means of a transmitter which an informer consented to wear during his meetings with respondent. The informer could not be located at trial, and the trial court overruled objections to the testimony of the agents who conducted the electronic surveillance. Reading Katz v. United States,389 U. S. 347 (1967), as overruling On Lee v. United States,343 U. S. 747 (1952), the Court of Appeals held that the agents' testimony was impermissible under the Fourth Amendment, and reversed respondent's conviction.
Held: The judgment is reversed. Pp. 401 U. S. 748-756.
405 F.2d 838, reversed.
MR. JUSTICE WHITE, joined by THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE BLACKMUN, concluded that:
1. The Government's use of agents who themselves may reveal the contents of conversations with an accused does not violate the Fourth Amendment, and this Court's decision in Katz v. United States, supra, does not disturb the rationale of On Lee, supra, in this respect, and require a different result because the agent uses electronic equipment to transmit the conversations to other agents. Pp. 401 U. S. 748-754.
2. The unavailability of the informant as a witness does not create any Fourth Amendment issue. Pp. 401 U. S. 753-754.
3. Since the decision in Katz v. United States, supra, was not retroactive, Desist v. United States,394 U. S. 244, the Court of Appeals erred in not adjudicating this case by the pre-Katz law established by On Lee to the effect that the electronic surveillance did not involve a Fourth Amendment violation. P. 401 U. S. 754.
MR. JUSTICE BRENNAN, to the extent that he joined in the Court's judgment, concluded that Desist v. United States, supra, requires reversal of the Court of Appeals' judgment. P. 401 U. S. 755.
WHITE, J., announced the Court's judgment, and delivered an opinion in which BURGER, C.J., and STEWART and BLACKMUN, JJ., joined. BLACK, J., filed a statement concurring in the judgment, post, p. 401 U. S. 754. BRENNAN, J., filed an opinion concurring in the result, post, p. 401 U. S. 755. DOUGLAS, J., post, p. 401 U. S. 756, HARLAN, J., post, p. 401 U. S. 768, and MARSHALL, J., post, p. 401 U. S. 795, filed dissenting opinions.
MR. JUSTICE WHITE announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE BLACKMUN join.
In 1966, respondent James A. White was tried and convicted under two consolidated indictments charging various illegal transactions in narcotics violative of 26 U.S.C. § 4705(a) and 21 U.S.C. § 174. He was fined and sentenced as a second offender to 25-year concurrent sentences. The issue before us is whether the Fourth Amendment bars from evidence the testimony of governmental agents who related certain conversations which had occurred between defendant White and a government informant, Harvey Jackson, and which the agents
overheard by monitoring the frequency of a radio transmitter carried by Jackson and concealed on his person. [Footnote 1] On four occasions, the conversations took place in Jackson's home; each of these conversations was overheard by an agent concealed in a kitchen closet with Jackson's consent and by a second agent outside the house using a radio receiver. Four other conversations -- one in respondent's home, one in a restaurant, and two in Jackson's car -- were overheard by the use of radio equipment. The prosecution was unable to locate and produce Jackson at the trial, and the trial court overruled objections to the testimony of the agents who conducted the electronic surveillance. The jury returned a guilty verdict, and defendant appealed.
The Court of Appeals read Katz v. United States,389 U. S. 347 (1967), as overruling On Lee v. United States,343 U. S. 747 (1952), and interpreting the Fourth Amendment to forbid the introduction of the agents' testimony in the circumstances of this case. Accordingly, the court reversed, but without adverting to the fact that the transactions at issue here had occurred before Katz was decided in this Court. In our view, the Court of Appeals misinterpreted both the Katz case and the Fourth Amendment and, in any event, erred in applying the Katz case to events that occurred before that decision was rendered by this Court. [Footnote 2]
Until Katz v. United States, neither wiretapping nor electronic eavesdropping violated a defendant's Fourth Amendment rights
"unless there has been an official search and seizure of his person, or such a seizure of his papers or his tangible material effects, or an actual physical invasion of his house 'or curtilage' for the purpose of making a seizure."
Olmstead v. United States,277 U. S. 438, 277 U. S. 466 (1928); Goldman v. United States,316 U. S. 129, 316 U. S. 135-136 (1942). But where "eavesdropping was accomplished by means of an unauthorized physical penetration into the premises occupied" by the defendant, although falling short of a "technical trespass under the local property law," the Fourth Amendment was violated, and any evidence of what was seen and heard, as well as tangible objects seized, was considered the inadmissible fruit of an unlawful invasion. Silverman v. United States,365 U. S. 505, 365 U. S. 509, 511 (1961); see also Wong Sun v. United States,371 U. S. 471 (1963); Berger v. New York,388 U. S. 41, 388 U. S. 52 (1967); Alderman v. United States,394 U. S. 165, 394 U. S. 177-178 (1969).
Katz v. United States, however, finally swept away doctrines that electronic eavesdropping is permissible under the Fourth Amendment unless physical invasion of a constitutionally protected area produced the challenged evidence. In that case, government agents, without petitioner's consent or knowledge, attached a listening device to the outside of a public telephone booth and recorded the defendant's end of his telephone conversations. In declaring the recordings inadmissible in evidence in the absence of a warrant authorizing the surveillance, the Court overruled Olmstead and Goldman and held that the absence of physical intrusion into the telephone booth did not justify using electronic devices in listening to and recording Katz' words, thereby violating
the privacy on which he justifiably relied while using the telephone in those circumstances.
The Court of Appeals understood Katz to render inadmissible against White the agents' testimony concerning conversations that Jackson broadcast to them. We cannot agree. Katz involved no revelation to the Government by a party to conversations with the defendant, nor did the Court indicate in any way that a defendant has a justifiable and constitutionally protected expectation that a person with whom he is conversing will not then or later reveal the conversation to the police.
Hoffa v. United States,385 U. S. 293 (1966), which was left undisturbed by Katz, held that, however strongly a defendant may trust an apparent colleague, his expectations in this respect are not protected by the Fourth Amendment when it turns out that the colleague is a government agent regularly communicating with the authorities. In these circumstances, "no interest legitimately protected by the Fourth Amendment is involved," for that amendment affords no protection to "a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it." Hoffa v. United States, at 385 U. S. 302. No warrant to "search and seize" is required in such circumstances, nor is it when the Government sends to defendant's home a secret agent who conceals his identity and makes a purchase of narcotics from the accused, Lewis v. United States,385 U. S. 206 (1966), or when the same agent, unbeknown to the defendant, carries electronic equipment to record the defendant's words and the evidence so gathered is later offered in evidence. Lopez v. United States,373 U. S. 427 (1963).
Conceding that Hoffa, Lewis, and Lopez remained unaffected by Katz, [Footnote 3] the Court of Appeals nevertheless
read both Katz and the Fourth Amendment to require a different result if the agent not only records his conversations with the defendant, but instantaneously transmits them electronically to other agents equipped with radio receivers. Where this occurs, the Court of Appeals held, the Fourth Amendment is violated, and the testimony of the listening agents must be excluded from evidence.
To reach this result, it was necessary for the Court of Appeals to hold that On Lee v. United States was no longer good law. In that case, which involved facts very similar to the case before us, the Court first rejected claims of a Fourth Amendment violation because the informer had not trespassed when he entered the defendant's premises and conversed with him. To this extent, the Court's rationale cannot survive Katz.See 389 U.S. at 389 U. S. 352-353. But the Court announced a second and independent ground for its decision; for it went on to say that overruling Olmstead and Goldman would be of no aid to On Lee, since he
"was talking confidentially and indiscreetly with one he trusted, and he was overheard. . . . It would be a dubious service to the genuine liberties protected by the Fourth Amendment to make them bedfellows with spurious liberties improvised by far-fetched analogies which would liken eavesdropping on a conversation, with the connivance of one of the parties, to an unreasonable search or seizure. We find no violation of the Fourth Amendment here."
343 U.S. at 343 U. S. 753-754. We see no indication in Katz that the Court meant to disturb that understanding of the Fourth Amendment or to disturb the result reached in the On Lee case, [Footnote 4] nor are we now inclined to overturn this view of the Fourth Amendment.
Concededly. a police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them without a warrant authorizing his encounters with the defendant and without otherwise violating the latter's Fourth Amendment rights. Hoffa v. United States, 385 U.S. at 385 U. S. 300-303. For constitutional purposes, no different result is required if the agent, instead of immediately reporting and transcribing his conversations with defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person, Lopez v. United States, supra; (2) or carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency. On Lee v. United States, supra. If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant's constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks.
Our problem is not what the privacy expectations of particular defendants in particular situations may be or the extent to which they may, in fact, have relied on the discretion of their companions. Very probably, individual defendants neither know nor suspect that their colleagues have gone or will go to the police or are carrying recorders or transmitters. Otherwise, conversation would cease, and our problem with these encounters would be nonexistent, or far different from those now
before us. Our problem, in terms of the principles announced in Katz, is what expectations of privacy are constitutionally "justifiable" -- what expectations the Fourth Amendment will protect in the absence of a warrant. So far, the law permits the frustration of actual expectations of privacy by permitting authorities to use the testimony of those associates who, for one reason or another, have determined to turn to the police, as well as by authorizing the use of informants in the manner exemplified by Hoffa and Lewis. If the law gives no protection to the wrongdoer whose trusted accomplice is or becomes a police agent, neither should it protect him when that same agent has recorded or transmitted the conversations which are later offered in evidence to prove the State's case. See Lopez v. United States,373 U. S. 427 (1963).
Inescapably, one contemplating illegal activities must realize and risk that his companions may be reporting to the police. If he sufficiently doubts their trustworthiness, the association will very probably end, or never materialize. But if he has no doubts, or allays them, or risks what doubt he has, the risk is his. In terms of what his course will be, what he will or will not do or say, we are unpersuaded that he would distinguish between probable informers, on the one hand, and probable informers with transmitters, on the other. Given the possibility or probability that one of his colleagues is cooperating with the police, it is only speculation to assert that the defendant's utterances would be substantially different or his sense of security any less if he also thought it possible that the suspected colleague is wired for sound. At least there is no persuasive evidence that the difference in this respect between the electronically equipped and the unequipped agent is substantial enough to require discrete constitutional recognition,
particularly under the Fourth Amendment, which is ruled by fluid concepts of "reasonableness."
Nor should we be too ready to erect constitutional barriers to relevant and probative evidence which is also accurate and reliable. An electronic recording will many times produce a more reliable rendition of what a defendant has said than will the unaided memory of a police agent. It may also be that. with the recording in existence. it is less likely that the informant will change his mind, less chance that threat or injury will suppress unfavorable evidence, and less chance that cross-examination will confound the testimony. Considerations like these obviously do not favor the defendant, but we are not prepared to hold that a defendant who has no constitutional right to exclude the informer's unaided testimony nevertheless has a Fourth Amendment privilege against a more accurate version of the events in question.
It is thus untenable to consider the activities and reports of the police agent himself, though acting without a warrant, to be a "reasonable" investigative effort and lawful under the Fourth Amendment, but to view the same agent with a recorder or transmitter as conducting an "unreasonable" and unconstitutional search and seizure. Our opinion is currently shared by Congress and the Executive Branch, Title III, Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 212, 18 U.S.C. § 2510 et seq. (1964 ed., Supp. V), and the American Bar Association. Project on Standards for Criminal Justice, Electronic Surveillance § 4.1 (Approved Draft 1971). It is also the result reached by prior cases in this Court. On Lee, supra; Lopez v. United States, supra.
No different result should obtain where, as in On Lee and the instant case, the informer disappears and is unavailable
at trial; for the issue of whether specified events on a certain day violate the Fourth Amendment should not be determined by what later happens to the informer. His unavailability at trial and proffering the testimony of other agents may raise evidentiary problems or pose issues of prosecutorial misconduct with respect to the informer's disappearance, but they do not appear critical to deciding whether prior events invaded the defendant's Fourth Amendment rights.
The Court of Appeals was in error for another reason. In Desist v. United States,394 U. S. 244 (1969), we held that our decision in Katz v. United States applied only to those electronic surveillances that occurred subsequent to the date of that decision. Here, the events in question took place in late 1965 and early 1966, long prior to Katz. We adhere to the rationale of Desist, see Williams v. United States, ante, p. 401 U. S. 646. It was error for the Court of Appeals to dispose of this case based on its understanding of the principles announced in the Katz case. The court should have judged this case by the pre-Katz law and under that law, as On Lee clearly holds, the electronic surveillance here involved did not violate White's rights to be free from unreasonable searches and seizures.
The judgment of the Court of Appeals is reversed.
It is so ordered.
MR. JUSTICE BLACK, while adhering to his views expressed in Linkletter v. Walker,381 U. S. 618, 381 U. S. 640 (1965), concurs in the judgment of the Court for the reasons set forth in his dissent in Katz v. United States,389 U. S. 347, 389 U. S. 364 (1967).
White argues that Jackson, though admittedly "cognizant" of the presence of transmitting devices on his person, did not voluntarily consent thereto. Because the court below did not reach the issue of Jackson's consent, we decline to do so. Similarly, we do not consider White's claim that the Government's actions violated state law.
A panel of three judges on March 18, 1968, reversed the conviction, one judge dissenting. A rehearing en banc was granted, and, on January 7, 1969, the full court followed the panel's decision, three judges dissenting. 405 F.2d 838.
It follows from our opinion that we reject respondent's contentions that Lopez should be overruled.
Other courts of appeals have considered On Lee viable despite Katz.Dancy v. United States, 390 F.2d 370 (CA5 1968); Long v. United States, 387 F.2d 377 (CA5 1967); Koran v. United States, 408 F.2d 1321 (CA5 1969). See also United States v. Kaufer, 406 F.2d 550 (CA2), aff'd per curiam,394 U. S. 458 (1969); United States v. Jackson, 390 F.2d 317 (CA2 1968); Doty v. United States, 416 F.2d 887 (CA10 1968), id. at 893 (rehearing 1969).
MR. JUSTICE BRENNAN, concurring in the result.
I agree that Desist v. United States,394 U. S. 244 (1969), requires reversal of the judgment of the Court of Appeals. Therefore, a majority of the Court supports disposition of this case on that ground. However, my Brothers DOUGLAS, HARLAN, and WHITE also debate the question whether On Lee v. United States,343 U. S. 747 (1952), may any longer be regarded as sound law. My Brother WHITE argues that On Lee is still sound law. My Brothers DOUGLAS and HARLAN argue that it is not. Neither position commands the support of a majority of the Court. For myself, I agree with my Brothers DOUGLAS and HARLAN. But I go further. It is my view that the reasoning of both my Brothers DOUGLAS and HARLAN compels the conclusion that Lopez v. United States,373 U. S. 427 (1963), is also no longer sound law. In other words, it is my view that current Fourth Amendment jurisprudence interposes a warrant requirement not only in cases of third-party electronic monitoring (the situation in On Lee and in this case) but also in cases of electronic recording by a government agent of a face-to-face conversation with a criminal suspect, which was the situation in Lopez. For I adhere to the dissent in Lopez, 373 U.S. at 373 U. S. 446-471, in which, to quote my Brother HARLAN, post at 401 U. S. 778 n. 12, "the doctrinal basis of our subsequent Fourteenth Amendment decisions may be said to have had its genesis." Katz v. United States,389 U. S. 347 (1967), adopted that "doctrinal basis" and thus, it seems to me, agreed with the argument in the Lopez dissent that
"subsequent decisions and subsequent experience have sapped whatever vitality [On Lee] may once have had; that it should now be regarded as overruled,"
and that the situation in Lopez "is rationally indistinguishable." 373 U.S. at 373 U. S. 447. The reasons in support of those conclusions are set forth fully in the Lopez
dissent, and need not be repeated here. It suffices to say that, for those reasons, I remain of the view that the Fourth Amendment imposes the warrant requirement in both the On Lee and Lopez situations.
MR. JUSTICE DOUGLAS, dissenting.
The issue in this case is clouded and concealed by the very discussion of it in legalistic terms. What the ancients knew as "eavesdropping" we now call "electronic surveillance," but to equate the two is to treat man's first gunpowder on the same level as the nuclear bomb. Electronic surveillance is the greatest leveler of human privacy ever known. How most forms of it can be held "reasonable" within the meaning of the Fourth Amendment is a mystery. To be sure, the Constitution and Bill of Rights are not to be read as covering only the technology known in the 18th century. Otherwise its concept of "commerce" would be hopeless when it comes to the management of modern affairs. At the same time, the concepts of privacy which the Founders enshrined in the Fourth Amendment vanish completely when we slavishly allow an all-powerful government, proclaiming law and order, efficiency, and other benign purposes, to penetrate all the walls and doors which men need to shield them from the pressures of a turbulent life around them and give them the health and strength to carry on.
That is why a "strict construction" of the Fourth Amendment is necessary if every man's liberty and privacy are to be constitutionally honored.
When Franklin D. Roosevelt, on May 21, 1940, authorized wiretapping in cases of "fifth column" activities and sabotage and limited it "insofar as possible to aliens," he said that,
"under ordinary and normal circumstances,
wiretapping by Government agents should not be carried on, for the excellent reason that it is almost bound to lead to abuse of civil rights."
"[T]he government seems to approach these dissident domestic organizations in the same fashion as it deals with unfriendly foreign powers. The government cannot act in this manner when only domestic political organizations are involved, even if those organizations espouse views which are inconsistent with our present form of government. To do so is to ride roughshod over numerous political freedoms which have long received constitutional protection. The government can, of course, investigate and prosecute criminal violations whenever these organizations, or rather their individual members, step over the line of political theory and general advocacy and commit illegal acts."
Today no one perhaps notices, because only a small, obscure criminal is the victim. But every person is the victim, for the technology we exalt today is everyman's master. Any doubters should read Arthur R. Miller's The Assault On Privacy (1971). After describing the monitoring of conversations and their storage in data banks, Professor Miller goes on to describe "human monitoring" which he calls the "ultimate step in mechanical snooping" -- a device for spotting unorthodox or aberrational behavior across a wide spectrum.
"Given the advancing state of both the remote sensing art and the capacity of computers to handle an uninterrupted and synoptic data flow, there seem to be no physical barriers left to shield us from intrusion."
Id. at 46.
When one reads what is going on in this area today, our judicial treatment of the subject seems as remote from
reality as the well known Baron Parke was remote from the social problems of his day. See Chapman, "Big Brother" in the Justice Department, The Progressive, April 1971, p. 27.
We held in Berger v. New York,388 U. S. 41, that wiretapping is a search and seizure within the meaning of the Fourth Amendment, and therefore must meet its requirements, viz., there must be a prior showing of probable cause, the warrant authorizing the wiretap must particularly describe "the place to be searched, and the persons or things to be seized," and that it may not have the breadth, generality, and long life of the general warrant against which the Fourth Amendment was aimed.
In Katz v. United States,389 U. S. 347, we held that an electronic device, used without trespass onto any given enclosure (there a telephone booth), was a search for which a Fourth Amendment warrant was needed. [Footnote 2/1] MR. JUSTICE STEWART, speaking for the Court, said: "Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures." Id. at 389 U. S. 359.
As a result of Berger and of Katz, both wiretapping and electronic surveillance through a "bug" or other device are now covered by the Fourth Amendment.
There were prior decisions representing an opposed view. In On Lee v. United States,343 U. S. 747, an
undercover agent with a radio transmitter concealed on his person interviewed the defendant whose words were heard over a radio receiver by another agent down the street. The idea, discredited by Katz, that there was no violation of the Fourth Amendment because there was no trespass, was the core of the On Lee decision. Id. at 343 U. S. 751-754.
Lopez v. United States,373 U. S. 427, was also pre-Berger and pre-Katz. The government agent there involved carried a pocket wire recorder which the Court said
"was not planted by means of an unlawful physical invasion of petitioner's premises under circumstances which would violate the Fourth Amendment."
Id. at 373 U. S. 439.
MR. JUSTICE BRENNAN, dissenting, stated the philosophy of Katz soon to be adopted:
"[T]here is a qualitative difference between electronic surveillance, whether the agents conceal the devices on their persons or in walls or under beds, and conventional police stratagems such as eavesdropping and disguise. The latter do not so seriously intrude upon the right of privacy. The risk of being overheard by an eavesdropper or betrayed by an informer or deceived as to the identity of one with whom one deals is probably inherent in the conditions of human society. It is the kind of risk we necessarily assume whenever we speak. But as soon as electronic surveillance comes into play, the risk changes crucially. There is no security from that kind of eavesdropping, no way of mitigating the risk, and so not even a residuum of true privacy. . . ."
". . . Electronic aids add a wholly new dimension to eavesdropping. They make it more penetrating, more indiscriminate, more truly obnoxious to a free
society. Electronic surveillance, in fact, makes the police omniscient; and police omniscience is one of the most effective tools of tyranny."
373 U.S. at 373 U. S. 465-466.
It is urged by the Department of Justice that On Lee be established as the controlling decision in this field. I would stand by Berger and Katz and reaffirm the need for judicial supervision [Footnote 2/2] under the Fourth Amendment of the use of electronic surveillance which, uncontrolled, promises to lead us into a police state.
These were wholly prearranged episodes of surveillance. The first was in the informant's home to which respondent had been invited. The second was also in the informer's home, the next day. The third was four days later, at the home of the respondent. The fourth was in the informer's car two days later. Twelve days after that, a meeting in the informer's home was intruded upon. The sixth occurred at a street rendezvous. The seventh was in the informer's home, and the eighth in a restaurant owned by respondent's mother-in-law. So far as time is concerned, there is no excuse for not seeking a warrant. And while there is always an effort involved in preparing affidavits or other evidence in support of a showing of probable cause, that burden was given constitutional sanction in the Fourth Amendment against the activities of the agents of George III. It was designed not to protect criminals, but to protect everyone's privacy.
On Lee and Lopez are of a vintage opposed to Berger and Katz. However they may be explained, they are
products of the old common law notions of trespass. Katz, on the other hand, emphasized that, with few exceptions,
"searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment. . . ."
389 U.S. at 389 U. S. 357. Camara v. Municipal Court,387 U. S. 523, put administrative searches under the Fourth Amendment. We held that administrative actions, like other searches, implicated officials in an invasion of privacy, and that the Fourth Amendment was meant to guard against the arbitrariness of any such invasion. We said:
"We simply cannot say that the protections provided by the warrant procedure are not needed in this context; broad statutory safeguards are no substitute for individualized review, particularly when those safeguards may only be invoked at the risk of a criminal penalty."
Id. at 387 U. S. 533.
In Chimel v. California,395 U. S. 752, in considering the constitutionality of a search incident to an arrest we held that, while the area in the immediate reach of an arrestee is "reasonable" though made without a warrant, a search beyond that zone may generally be made "only under the authority of a search warrant." Id. at 395 U. S. 763. And in two "stop and frisk" cases, Terry v. Ohio,392 U. S. 1, and Davis v. Mississippi,394 U. S. 721, we held that any restraint of the person, however brief, was subject to judicial inquiry on "reasonableness" 392 U.S. at 392 U. S. 19, and that "the Fourth Amendment governs all intrusions by agents of the public upon personal security. . . ." Id. at 392 U. S. 18 n. 15.
We have moved far away from the rationale of On Lee and Lopez, and only a retrogressive step of large dimensions would bring us back to it.
The threads of thought running through our recent decisions are that these extensive intrusions into privacy
made by electronic surveillance make self-restraint by law enforcement officials an inadequate protection, that the requirement of warrants under the Fourth Amendment is essential to a free society. [Footnote 2/3]
Monitoring, if prevalent, certainly kills free discourse and spontaneous utterances. Free discourse -- a First Amendment value -- may be frivolous or serious, humble or defiant, reactionary or revolutionary, profane or in good taste; but it is not free if there is surveillance. [Footnote 2/4]
Free discourse liberates the spirit, though it may produce only froth. The individual must keep some facts concerning his thoughts within a small zone of people. At the same time, he must be free to pour out his woes or inspirations or dreams to others. He remains the sole judge as to what must be said and what must remain unspoken. This is the essence of the idea of privacy implicit in the First and Fifth Amendments as well as in the Fourth.
The philosophy of the value of privacy reflected in the Fourth Amendment's ban on "unreasonable searches and seizures" has been forcefully stated by a former Attorney General of the United States:
"Privacy is the basis of individuality. To be alone and be let alone, to be with chosen company, to say what you think, or don't think, but to say what you will, is to be yourself. Solitude is imperative, even in a high rise apartment. Personality develops from within. To reflect is to know yourself. Character is formed through years of self-examination. Without this opportunity, character will be formed largely by uncontrolled external social stimulations. Americans are excessively homogenized already."
"Few conversations would be what they are if the speakers thought others were listening. Silly, secret, thoughtless and thoughtful statements would all be affected. The sheer numbers in our lives, the anonymity of urban living and the inability to influence things that are important are depersonalizing and dehumanizing factors of modern life. To penetrate the last refuge of the individual, the precious little privacy that remains, the basis of individual dignity, can have meaning to the quality of our lives that we cannot foresee. In terms of present values, that meaning cannot be good. "
"Invasions of privacy demean the individual. Can a society be better than the people composing it? When a government degrades its citizens, or permits them to degrade each other, however beneficent the specific purpose, it limits opportunities for individual fulfillment and national accomplishment. If America permits fear and its failure to make basic social reforms to excuse police use of secret electronic surveillance, the price will be dear indeed. The practice is incompatible with a free society."
R. Clark, Crime in America 287 (1970). Now that the discredited decisions in On Lee and Lopez are resuscitated and revived, must everyone live in fear that every word he speaks may be transmitted or recorded [Footnote 2/5] and later repeated to the entire world? I can
imagine nothing that has a more chilling effect on people speaking their minds and expressing their views on important matters. The advocates of that regime should spend some time in totalitarian countries and learn first-hand the kind of regime they are creating here. [Footnote 2/6]
The decision not to make Katz retroactive to any electronic surveillance which occurred prior to December 18, 1967 (the day we decided Katz), is not, in my view, a tenable one for the reasons stated by MR. JUSTICE HARLAN and me in our dissents in Desist v. United States,394 U. S. 244, 394 U. S. 255, 394 U. S. 256.
|401 U.S. 745app1|
APPENDIX I TO OPINION OF DOUGLAS, J., DISSENTING
THE WHITE HOUSE
May 21, 1940
MEMORANDUM FOR THE ATTORNEY GENERAL
I have agreed with the broad purpose of the Supreme Court decision relating to wiretapping in investigations. The Court is undoubtedly sound both in regard to the use of evidence secured over tapped wires in the prosecution of citizens in criminal cases; and is also right in its opinion that, under ordinary and normal circumstances, wiretapping by Government agents should not be carried on for the excellent reason that it is almost bound to lead to abuse of civil rights.
However, I am convinced that the Supreme Court never intended any dictum in the particular case which it decided to apply to grave matters involving the defense of the nation.
It is, of course, well known that certain other nations have been engaged in the organization of propaganda of so-called "fifth columns" in other countries and in preparation for sabotage, as well as in actual sabotage.
It is too late to do anything about it after sabotage, assassinations and "fifth column" activities are completed.
You are, therefore, authorized and directed in such cases as you may approve, after investigation of the need in each case, to authorize the necessary investigation agents that they are at liberty to secure information by listening devices directed to the conversation or other communications of persons suspected of subversive activities against the Government of the United States, including suspected spies. You are requested furthermore to limit these investigations so conducted to a minimum, and to limit them insofar as possible to aliens.
[SEAL] /s/ F. D. R.
|401 U.S. 701app2|
APPENDIX II TO OPINION OF DOUGLAS, J., DISSENTING
THE WHITE HOUSE
June 30, 1965
MEMORANDUM FOR THE HEADS OF
I am strongly opposed to the interception of telephone conversations as a general investigative technique. I recognize that mechanical and electronic devices may sometimes be essential in protecting our national security. Nevertheless, it is clear that indiscriminate use of those investigative devices to overhear telephone conversations, without the knowledge or consent of any of the persons involved, could result in serious abuses and invasions of privacy. In my view, the invasion of privacy of communications is a highly offensive practice which should be engaged in only where the national security is at
stake. To avoid any misunderstanding on this subject in the Federal Government, I am establishing the following basic guidelines to be followed by all government agencies:
(1) No federal personnel is to intercept telephone conversations within the United States by any mechanical or electronic device, without the consent of one of the parties involved, (except in connection with investigations related to the national security).
(2) No interception shall be undertaken or continued without first obtaining the approval of the Attorney General.
(3) All federal agencies shall immediately conform their practices and procedures to the provisions of this order.
Utilization of mechanical or electronic devices to overhear non-telephone conversations is an even more difficult problem, which raises substantial and unresolved questions of Constitutional interpretation. I desire that each agency conducting such investigations consult with the Attorney General to ascertain whether the agency's practices are fully in accord with the law and with a decent regard for the rights of others.
Every agency head shall submit to the Attorney General within 30 days a complete inventory of all mechanical and electronic equipment and devices used for or capable of intercepting telephone conversations. In addition, such reports shall contain a list of any interceptions currently authorized and the reasons for them.
/s/ Lyndon B. Johnson
See Greenawalt, The Consent Problem in Wiretapping & Eavesdropping: Surreptitious Monitoring With the Consent of a Participant in a Conversation, 68 Col.L.Rev. 189; Kitch, Katz v. United States: The Limits of the Fourth Amendment, 1968 Sup.Ct.Rev. 133; Note, Police Undercover Agents: New Threat to First Amendment Freedoms, 37 Geo.Wash.L.Rev. 634; Comment, Electronic Surveillance: The New Standards, 35 Brooklyn L.Rev. 49.
The relaxing of constitutional requirements by the Executive Branch is apparent from the
Osborn v. United States,385 U. S. 323, was held to be in that tradition, as the federal district judges, prior to the use of the recording device by the agent and with full knowledge of the alleged law violation involved, "authorized the use of a recording device for the narrow and particularized purpose of ascertaining the truth" of the charge. Id. at 385 U. S. 330.
The tyranny of surveillance that is not supervised in the Fourth Amendment manner is told by Judge Gesell in United States v. Jones, 292 F.Supp. 1001, 1008-1009, where the competition between agencies and the uncontrolled activities of subordinates ended up with Government itself playing an ignoble role.
Cf. American Bar Association, Project on Standards for Criminal Justice, Electronic Surveillance §§ 4.1, 5.2 (Approved Draft 1971).
Congressman Mikva of Illinois, in speaking of the spread of military surveillance of civilians -- another facet of the problem in the instant case -- recently said:
"At one point, they referred to 'infiltrating public meetings' at which Senator Stevenson and I spoke, and I wondered how you 'infiltrate' a public meeting. Perhaps they wanted to compile evidence to be used in some future military court -- evidence that I was disloyal to the military establishment because I suggested that we cut manpower by ten percent last year, or because I voted against their appropriations in the two years I've been here."
"* * * *"
"When they start investigating political figures, there is no place you can draw the line and maintain any kind of civilian control. . . ."
"* * * *"
"We have become a fearful people. There was a time when we feared only our enemies abroad. Now we seem to be as fearful of our enemies at home, and, depending on whom you talk to, those enemies can include people under thirty, people with foreign names, people of different races, people in the big cities. We have become a suspicious nation, as afraid of being destroyed from within as from without."
"Unfortunately, the manifestations of that kind of fear and suspicion are police-state measures."
A Nation in Fear, The Progressive, Feb.1971, pp. 1, 19-20.
Senator Edward Long, who intensively investigated wiretapping and "bugging" said:
"You would be amazed at the different ways you can now be 'bugged.' There is today a transmitter the size of an aspirin tablet which can help transmit conversations in your room to a listening post up to 10 miles away."
"An expert can devise a bug to fit into almost any piece of furniture in your room. And even if you find the bug, you will have no evidence of who put it there. A United States Senator was bugged by a transmitter secretly placed into a lamp which his wife was having fixed at the shop. When experts searched for the transmitter, it was gone."
"A leading electronics expert told my Subcommittee last year that wiretapping and bugging in industrial espionage triples every year. He said that new bugging devices are so small and cleverly concealed that it takes search equipment costing over one hundred thousand dollars and an expert with 10 years of field experience to discover them. Ten years ago, the same search for bugs could have been done with equipment costing only one-fourth as much."
"In California, we found a businessman who had been so frightened by electronic eavesdropping devices which had been concealed in his office, that he is now spending thousands of dollars having his office searched each day, taking his phone apart every morning, and stationing a special guard outside his office 24 hours a day."
"He is one of a growing number of men in industry who live in constant fear that what they say is being listened to by their competitor."
19 Adm.L.Rev. 442, 444. And see E. Long, The Intruders (1966).
"A technological breakthrough in techniques of physical surveillance now makes it possible for government agents and private persons to penetrate the privacy of homes, offices, and vehicles; to survey individuals moving about in public places; and to monitor the basic channels of communication by telephone, telegraph, radio, television, and data line. Most of the 'hardware' for this physical surveillance is cheap, readily available to the general public, relatively easy to install, and not presently illegal to own. As of the 1960's, the new surveillance technology is being used widely by government agencies of all types and at every level of government, as well as by private agents for a rapidly growing number of businesses, unions, private organizations, and individuals in every section of the United States. Increasingly, permanent surveillance devices have been installed in facilities used by employees or the public. While there are defenses against 'outside' surveillance, these are so costly and complex and demand such constant vigilance that their use is feasible only where official or private matters of the highest security are to be protected. Finally, the scientific prospects for the next decade indicate a continuing increase in the range and versatility of the listening and watching devices, as well as the possibility of computer processing of recordings to identify automatically the speakers or topics under surveillance. These advances will come just at the time when personal contacts, business affairs, and government operations are being channeled more and more into electronic systems such as data-phone lines and computer communications."
A. Westin, Privacy and Freedom 365-366 (1967).
MR. JUSTICE HARLAN, dissenting.
The uncontested facts of this case squarely challenge the continuing viability of On Lee v. United States,343 U. S. 747 (1952). As the plurality opinion of MR. JUSTICE
WHITE itself makes clear, important constitutional developments since On Lee mandate that we reassess that case, which has continued to govern official behavior of this sort in spite of the subsequent erosion of its doctrinal foundations. With all respect, my agreement with the plurality opinion ends at that point.
I think that a perception of the scope and role of the Fourth Amendment, as elucidated by this Court since On Lee was decided, and full comprehension of the precise issue at stake lead to the conclusion that On Lee can no longer be regarded as sound law. Nor do I think the date we decided Katz v. United States,389 U. S. 347 (1967), can be deemed controlling both for the reasons discussed in my dissent in Desist v. United States,394 U. S. 244, 394 U. S. 256 (1969), and my separate opinion in Mackey v. United States (and companion cases), ante, p. 401 U. S. 675 (the case before us being here on direct review), and because, in my view, it requires no discussion of the holding in Katz, as distinguished from its underlying rationale as to the reach of the Fourth Amendment, to comprehend the constitutional infirmity of On Lee.
Before turning to matters of precedent and policy, several preliminary observations should be made. We deal here with the constitutional validity of instantaneous third-party electronic eavesdropping, conducted by federal law enforcement officers, without any prior judicial approval of the technique utilized, but with the consent and cooperation of a participant in the conversation, [Footnote 3/1]
and where the substance of the matter electronically overheard [Footnote 3/2] is related in a federal criminal trial by those who eavesdropped as direct, not merely corroborative, evidence of the guilt of the nonconsenting party. The magnitude of the issue at hand is evidenced not simply by the obvious doctrinal difficulty of weighing such activity in the Fourth Amendment balance, but also, and more importantly, by the prevalence of police utilization of this technique. Professor Westin has documented in careful detail the numerous devices that make technologically feasible the Orwellian Big Brother. Of immediate relevance is his observation that
"'participant recording,' in which one participant in a conversation or meeting, either a police officer or a cooperating party, wears a concealed device that records the conversation or broadcasts it to others nearby . . . is used tens of thousands of times each year throughout the country, particularly in cases involving extortion, conspiracy, narcotics, gambling, prostitution, corruption by police officials . . . and similar crimes. [Footnote 3/3] "
Moreover, as I shall undertake to show later in this opinion, the factors that must be reckoned with in reaching constitutional conclusions respecting the use of electronic eavesdropping as a tool of law enforcement are exceedingly subtle and complex. They have provoked sharp differences of opinion both within and without the judiciary, and the entire problem has been the subject of continuing study by various governmental and nongovernmental bodies. [Footnote 3/4]
Finally, given the importance of electronic eavesdropping as a technique for coping with the more deep-seated kinds of criminal activity, and the complexities that are encountered in striking a workable constitutional balance between the public and private interests at stake, I believe that the courts should proceed with specially measured steps in this field. More particularly, I think this Court should not foreclose itself from reconsidering doctrines that would prevent the States from seeking, independently of the niceties of federal restrictions as they may develop, solutions to such vexing problems, see Mapp v. Ohio,37 U. S. 643 (1961), and Ker v. California,374 U. S. 23 (1963), and see also Berger v. New York,388 U. S. 41 (1967); Baldwin v. New York,399 U. S. 66, 399 U. S. 117 (1970) (dissenting opinion); California v. Green,399 U. S. 149, 399 U. S. 172 (1970) (concurring opinion). I also think that, in the adjudication of federal cases, the Court should leave ample room for congressional developments.
On these premises, I move to the problem of third-party "bugging." To begin by tracing carefully the evolution of Fourth Amendment doctrine in post-On Lee decisions has proved useful in several respects. It serves to cast in perspective both the issue involved here and the imperative necessity for reconsidering On Lee afresh. Additionally, a full exposition of the dynamics of the decline of the trespass rationale underlying On Lee strikingly illuminates the deficiencies of the plurality opinion's retroactivity analysis.
On Lee involved circumstances virtually identical to those now before us. There, Government agents enlisted the services of Chin Poy, a former friend of Lee, who was suspected of engaging in illegal narcotics traffic. Poy was equipped with a "minifon" transmitting device which enabled outside Government agents to monitor Poy's conversations with Lee. In the privacy of his laundry, Lee made damaging admissions to Poy which were overheard by the agents and later related at trial. Poy did not testify. Mr. Justice Jackson, writing for five Justices, held the testimony admissible. Without reaching the question of whether a conversation could be the subject of a "seizure" for Fourth Amendment purposes, as yet an unanswered if not completely open question, [Footnote 3/5] the
The validity of the trespass rationale was questionable even at the time the decision was rendered. In this respect, On Lee rested on common law notions, and looked to a waning era of Fourth Amendment jurisprudence. Three members of the Court refused to join with Justice Jackson, and, within 10 years, the Court expressly disavowed an approach to Fourth Amendment questions that looked to common law distinctions. See, e.g., Jones v. United States,362 U. S. 257 (1960); Silverman v. United States,365 U. S. 505 (1961); Lanza v. New York,370 U. S. 139 (1962).
It is, of course, true that the opinion in On Lee drew some support from a brief additional assertion that "eavesdropping on a conversation, with the connivance of one of the parties" raises no Fourth Amendment problem. 343 U.S. at 343 U. S. 754. But surely it is a misreading of that opinion to view this unelaborated assertion as a wholly independent ground for decision. At the very least, this
rationale needs substantial buttressing if it is to persist in our constitutional jurisprudence after the decisions I discuss below. Indeed, the plurality opinion in the present case, in greatly elaborating the point, tacitly recognizes the analytic inability of this bare hypothesis to support a rule of law so profoundly important to the proper administration of justice. Moreover, if this was the true rationale of On Lee from the outset, it is difficult to see the relevance of Desist to the resolution of the instant case, for Katz surely does not speak directly to the continued viability of that ground for decision. See Katz v. United States, 389 U.S. at 389 U. S. 363 n. (WHITE, J., concurring).
By 1963, when we decided Lopez v. United States,373 U. S. 427, four members of the Court were prepared to pronounce On Lee and Olmstead v. United States,277 U. S. 438 (1928), dead. [Footnote 3/8] The pyre, they reasoned, had been stoked by decisions like Won Sun v. United States,371 U. S. 471 (1963), which, on the one hand, expressly brought verbal communication within the sweep of the Fourth Amendment, [Footnote 3/9] and, on the other, reinforced
our Silverman and Jones decisions which "refused to crowd the Fourth Amendment into the mold of local property law," 373 U.S. at 373 U. S. 460 (BRENNAN, J., dissenting).
Although the Court's decision in Lopez is cited by the Government as a reaffirmation of On Lee, it can hardly be thought to have nurtured the questionable rationale of that decision or its much-criticized ancestor, Olmstead. To the discerning lawyer Lopez could only give pause, not comfort. While the majority opinion, of which I was the author, declined to follow the course favored by the dissenting and concurring Justices by sounding the death knell for Olmstead and On Lee, our holding, despite an allusion to the absence of "an unlawful . . . invasion of a constitutionally protected area," 373 U.S. at 373 U. S. 438-439, was bottomed on two premises: the corroborative use that was made of the tape recordings, which increased reliability in the factfinding process, and the absence of a "risk" not fairly assumed by petitioner. The tape recording was made by a participant in the conversation and the opinion emphasized this absence of a third-party intrusion, expressly noting that there was no "electronic eavesdropping on a private conversation which government agents could not otherwise have overheard." 373 U.S. at 373 U. S. 440. [Footnote 3/10] As I point out in 401 U. S. S. 777
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