While petitioner was at large on bail pending his trial in a
federal court on federal narcotics charges, an old acquaintance and
former employee, who, unknown to petitioner, was a federal
"undercover agent" and had a radio transmitter concealed on his
person, entered the customer's room of petitioner's laundry and
engaged petitioner in a conversation. Self-incriminating
statements, made by petitioner during this conversation and a later
conversation on a sidewalk with the same "undercover agent," were
listened to on a radio receiver outside the laundry by another
federal agent, who testified concerning them, over petitioner's
objection, at the trial in which petitioner was convicted.
1. The conduct of the federal agents did not amount to such a
search and seizure as is proscribed by the Fourth Amendment. Pp.
343 U. S.
(a) The undercover agent committed no trespass when he entered
petitioner's place of business, and his subsequent conduct did not
render the entry a trespass ab initio.
Pp. 343 U. S.
(b) The doctrine of trespass ab initio
only as a rule of liability in civil actions, not where the right
of the Government to make use of evidence in a criminal prosecution
is involved. P. 343 U. S.
(c) The contentions that the undercover man's entrance was a
trespass because consent was obtained by fraud, and that the other
agent was a trespasser because, by means of the radio receiver
outside the laundry, he overheard what went on inside, must be
rejected. Pp. 343 U. S.
(d) Decisions relating to problems raised where tangible
property is unlawfully seized are inapposite in the field of
mechanical or electronic devices designed to overhear or intercept
conversation, at least where access to the listening post was not
obtained by illegal methods. P. 343 U. S.
(e) Even if the Court were to overturn its ruling that
wiretapping is outside the ban of the Fourth Amendment,
Page 343 U. S. 748
United States, 277 U. S. 438
petitioner would not be aided, since his case cannot be treated as
one involving wiretapping. Pp. 343 U. S.
2. The facts do not show a violation of § 605 of the Federal
Communications Act, since there was no interference with any
communications facility that petitioner possessed or was entitled
to use, nor was petitioner sending messages to anyone or using a
system of communications within the Act. P. 343 U. S.
3. The evidence should not have been excluded as a means of
disciplining law enforcement officers. McNabb v. United
States, 318 U. S. 332
distinguished. Pp. 343 U. S.
193 F.2d 306, affirmed.
Petitioner was convicted in the District Court of federal
offenses. The Court of Appeals affirmed. 193 F.2d 306. This Court
granted certiorari. 342 U.S. 941. Affirmed,
343 U. S.
MR. JUSTICE JACKSON delivered the opinion of the Court.
Petitioner was convicted on a two-count indictment, one charging
the substantive offense of selling a pound of opium in violation of
21 U.S.C. §§ 173 and 174, the other conspiring to sell the opium in
violation of 18 U.S.C. § 371. The Court of Appeals sustained the
conviction by a divided court. [Footnote 1
] We granted certiorari. [Footnote 2
The questions raised by petitioner have been considered, but
only one is of enough general interest to merit discussion. That
concerns admission in evidence of two conversations petitioner had,
while at large on bail pending
Page 343 U. S. 749
trial, with one Chin Poy. The circumstances are these:
Petitioner, On Lee, had a laundry in Hoboken. A customer's room
opened on the street, back of it was a room for ironing tables, and
in the rear were his living quarters. Chin Poy, an old acquaintance
and former employee, sauntered in and, while customers came and
went, engaged the accused in conversation in the course of which
petitioner made incriminating statements. He did not know that Chin
Poy was what the Government calls "an undercover agent" and what
petitioner calls a "stool pigeon" for the Bureau of Narcotics.
Neither did he know that Chin Poy was wired for sound, with a small
microphone in his inside overcoat pocket and a small antenna
running along his arm. Unbeknownst to petitioner, an agent of the
Narcotics Bureau named Lawrence Lee had stationed himself outside
with a receiving set properly tuned to pick up any sounds the Chin
Poy microphone transmitted. Through the large front window, Chin
Poy could be seen, and, through the receiving set, his
conversation, in Chinese, with petitioner could be heard by agent
Lee. A few days later, on the sidewalks of New York, another
conversation took place between the two, and damaging admissions
were again "audited" by agent Lee.
For reasons left to our imagination, Chin Poy was not called to
testify about petitioner's incriminating admissions. Against
objection, [Footnote 3
however, agent Lee was allowed
Page 343 U. S. 750
to relate the conversations as heard with aid of his receiving
set. Of this testimony, it is enough to say that it was certainly
prejudicial if its admission was improper.
Petitioner contends that this evidence should have been excluded
because the manner in which it was obtained
Page 343 U. S. 751
violates both the search and seizure provisions of the Fourth
Amendment, [Footnote 4
] and §
605 of the Federal Communications Act, 47 U.S.C. § 605, [Footnote 5
] and, if not rejected on
those grounds, we should pronounce it inadmissible anyway under the
judicial power to require fair play in federal law enforcement.
The conduct of Chin Poy and agent Lee did not amount to an
unlawful search and seizure such as is proscribed by the Fourth
Amendment. In Goldman v. United States, 316 U.
, we held that the action of federal agents in
placing a detectaphone on the outer wall of defendant's hotel room,
and thereby overhearing conversations held within the room, did not
violate the Fourth Amendment. There, the agents had earlier
committed a trespass in order to install a listening device within
the room itself. Since the device failed to work, the court
expressly reserved decision as to the effect on the search and
seizure question of a trespass in that situation. Petitioner in the
instant case has seized upon that dictum, apparently on the
assumption that the presence of a radio set would automatically
bring him within the reservation if he can show a trespass.
But petitioner cannot raise the undecided question, for here, no
trespass was committed. Chin Poy entered a place of business with
the consent, if not by the implied
Page 343 U. S. 752
invitation, of the petitioner. Petitioner contends, however,
that Chin Poy's subsequent "unlawful conduct" vitiated the consent
and rendered his entry a trespass ab initio.
If we were to assume that Chin Poy's conduct was unlawful and
consider this argument as an original proposition, it is doubtful
that the niceties of tort law initiated almost two and a half
centuries ago by the case of the Six Carpenters,
146(a), cited by petitioner, are of much aid in determining rights
under the Fourth Amendment. But petitioner's argument comes a
quarter of a century too late: this contention was decided
adversely to him in McGuire v. United States, 273 U. S.
, 273 U. S. 98
273 U. S. 100
where Mr. Justice Stone, speaking for a unanimous Court, said of
the doctrine of trespass ab initio:
"This fiction, obviously invoked in support of a policy of
penalizing the unauthorized acts of those who had entered under
authority of law, has only been applied as a rule of liability in
civil actions against them. Its extension is not favored."
He concluded that the Court would not resort to "a fiction whose
origin, history, and purpose do not justify its application where
the right of the government to make use of evidence is involved."
This was followed in Zap v. United States, 328 U.
, 328 U. S.
By the same token, the claim that Chin Poy's entrance was a
trespass because consent to his entry was obtained by fraud must be
rejected. Whether an entry such as this, without any affirmative
misrepresentation, would be a trespass under orthodox tort law is
not at all clear. See
Prosser on Torts, § 18. But the
rational of the McGuire
case rejects such fine-spun
doctrines for exclusion of evidence. The further contention of
petitioner that agent Lee, outside the laundry, was a trespasser
because by these aids he overheard what went on inside verges on
the frivolous. Only in the case of physical entry, either
Page 343 U. S. 753
by force, as in McDonald v. United States, 335 U.
, by unwilling submission to authority, as in
Johnson v. United States, 333 U. S.
, or without any express or implied consent, as in
Nueslein v. District of Columbia,
73 App.D.C. 85, 115 F.2d
690, would the problem left undecided in the Goldman
be before the Court.
Petitioner relies on cases relating to the more common and
clearly distinguishable problems raised where tangible property is
unlawfully seized. Such unlawful seizure may violate the Fourth
Amendment, even though the entry itself was by subterfuge or fraud,
rather than force. United States v. Jeffers, 342 U. S.
; Gouled v. United States, 255 U.
(the authority of the latter case is sharply
limited by Olmstead v. United States, 277 U.
, at 277 U. S.
). But such decisions are inapposite in the field of
mechanical or electronic devices designed to overhear or intercept
conversation, at least where access to the listening post was not
obtained by illegal methods.
Petitioner urges that, if his claim of unlawful search and
seizure cannot be sustained on authority, we reconsider the
question of Fourth Amendment rights in the field of overheard or
intercepted conversations. This apparently is upon the theory that,
since there was a radio set involved, he could succeed if he could
persuade the Court to overturn the leading case holding wiretapping
to be outside the ban of the Fourth Amendment, Olmstead v.
United States, 277 U. S. 438
the cases which have followed it. We need not consider this,
however, for success in this attempt, which failed in Goldman
v. United States, 316 U. S. 129
would be of no aid to petitioner unless he can show that his
situation should be treated as wiretapping. The presence of a radio
set is not sufficient to suggest more than the most attenuated
analogy to wiretapping. Petitioner was talking confidentially and
indiscreetly with one he trusted, and he
Page 343 U. S. 754
was overheard. This was due to aid from a transmitter and
receiver, to be sure, but with the same effect on his privacy as if
agent Lee had been eavesdropping outside an open window. The use of
bifocals, field glasses or the telescope to magnify the object of a
witness' vision is not a forbidden search or seizure, even if they
focus without his knowledge or consent upon what one supposes to be
private indiscretions. It would be a dubious service to the genuine
liberties protected by the Fourth Amendment to make them bedfellows
with spurious liberties improvised by farfetched 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.
Nor do the facts show a violation of § 605 of the Federal
Communications Act. Petitioner had no wires, and no wireless. There
was no interference with any communications facility which he
possessed or was entitled to use. He was not sending messages to
anybody, or using a system of communications within the Act.
Goldstein v. United States, 316 U.
Finally, petitioner contends that, even though he be overruled
in all else, the evidence should be excluded as a means of
disciplining law enforcement officers. Cf. McNabb v. United
States, 318 U. S. 332
however, we held that, where defendants had been
unlawfully detained in violation of the federal statute
requiring prompt arraignment before a commissioner,
confession made during the detention would be excluded as evidence
in federal courts even though not inadmissible on the ground of any
otherwise involuntary character. But here neither agent nor
informer violated any federal law, and violation of state law, even
had it been shown here, as it was not, would not render the
Page 343 U. S. 755
obtained inadmissible in federal courts. Olmstead v. United
States, 277 U. S. 438
277 U. S.
In order that constitutional or statutory rights may not be
undermined, this Court has, on occasion, evolved or adopted from
the practice of other courts exclusionary rules of evidence going
beyond the requirements of the constitutional or statutory
provision. McNabb v. United States, supra; Weeks v. United
States, 232 U. S. 383
so doing, it has, of course, departed from the common law rule
under which otherwise admissible evidence was not rendered
inadmissible by the fact that it had been illegally obtained. Such
departures from the primary evidentiary criteria of relevancy and
trustworthiness must be justified by some strong social policy. In
discussing the extension of such rules, and the creation of new
ones, it is well to remember the remarks of Mr. Justice Stone in
McGuire v. United States, 273 U. S.
, at 273 U. S.
"A criminal prosecution is more than a game in which the
government may be checkmated and the game lost merely because its
officers have not played according to rule."
Rules of evidence, except where prescribed by statute, are
formulated by the courts to some extent, as "a question of sound
policy in the administration of the law." Zucker v.
205 N.Y. 50, 65, 98 N.E. 209, 213. Courts which
deal with questions of evidence more frequently than we do have
found it unwise to multiply occasions when the attention of a trial
court in a criminal case must be diverted from the issue of the
defendant's guilt to the issue of someone else's misconduct in
obtaining evidence. They have considered that
"The underlying principle obviously is that the court, when
engaged in trying a criminal cause, will not take notice of the
manner in which witnesses have possessed themselves of papers or
other articles of personal property which
Page 343 U. S. 756
are material and properly offered in evidence."
People v. Adams,
176 N.Y. 351, 358, 68 N.E. 636, 638.
However, there is a procedure in federal court by which defendant
may protect his right in advance of trial to have returned to him
evidence unconstitutionally obtained. Silverthorne Lumber Co.
v. United States, 251 U. S. 385
since we hold here that there was no violation of the Constitution,
such a remedy could not be invoked. Exclusion would have to be
based on a policy which placed the penalizing of Chin Poy's breach
of confidence above ordinary canons of relevancy. For On Lee's
statements to Chin Poy were admissions against interest provable
against him as an exception to the hearsay rule. The normal manner
of proof would be to call Chin Poy and have him relate the
conversation. We can only speculate on the reasons why Chin Poy was
not called. It seems a not unlikely assumption that the very
defects of character and blemishes of record which made On Lee
trust him with confidences would make a jury distrust his
testimony. Chin Poy was close enough to the underworld to serve as
bait, near enough the criminal design so that petitioner would
embrace him as a confidante, but too close to it for the Government
to vouch for him as a witness. Instead, the Government called agent
Lee. We should think a jury probably would find the testimony of
agent Lee to have more probative value than the word of Chin
Society can ill afford to throw away the evidence produced by
the falling out, jealousies, and quarrels of those who live by
outwitting the law. Certainly no one would foreclose the turning of
state's evidence by denizens of the underworld. No good reason of
public policy occurs to us why the Government should be deprived of
the benefit of On Lee's admissions because he made them to a
confidante of shady character.
Page 343 U. S. 757
The trend of the law in recent years has been to turn away from
rigid rules of incompetence, in favor of admitting testimony and
allowing the trier of fact to judge the weight to be given it. As
this Court has pointed out:
"Indeed, the theory of the common law was to admit to the
witness stand only those presumably honest, appreciating the
sanctity of an oath, unaffected as a party by the result, and free
from any of the temptations of interest. The courts were afraid to
trust the intelligence of jurors. But the last 50 years have
wrought a great change in these respects, and today the tendency is
to enlarge the domain of competency, and to submit to the jury for
their consideration as to the credibility of the witness those
matters which heretofore were ruled sufficient to justify his
exclusion. This change has been wrought partially by legislation
and partially by judicial construction."
Funk v. United States, 290 U.
, 290 U. S.
The use of informers, accessories, accomplices, false friends,
or any of the other betrayals which are "dirty business" may raise
serious questions of credibility. To the extent that they do, a
defendant is entitled to broad latitude to probe credibility by
cross-examination and to have the issues submitted to the jury with
careful instructions. But to the extent that the argument for
exclusion departs from such orthodox evidentiary canons as
relevancy and credibility, it rests solely on the proposition that
the Government shall be arbitrarily penalized for the low morals of
its informers. However unwilling we as individuals may be to
approve conduct such as that of Chin Poy, such disapproval must not
be thought to justify a social policy of the magnitude necessary to
arbitrarily exclude otherwise relevant evidence. We think the
administration of justice is better served if stratagems such as we
have here are regarded as raising
Page 343 U. S. 758
not questions of law, but issues of credibility. We cannot say
that testimony such as this shall, as a matter of law, be refused
MR. JUSTICE BLACK believes that, in exercising its supervisory
authority over criminal justice in the federal courts, see
McNabb v. United States, 318 U. S. 332
318 U. S. 341
this Court should hold that the District Court should have rejected
the evidence here challenged.
193 F.2d 306.
342 U.S. 941.
It seems probable that petitioner failed to properly object to
agent Lee's testimony. Shortly after agent Lee began to testify,
petitioner's counsel addressed the court:
". . . I would like to enter a general objection to testimony by
this witness of conversations alleged to have been had between
agent Gim and Gong not in the hearing of the defendant on trial or
in his presence."
This objection is not even addressed to the testimony describing
the conversation between On Lee and Chin Poy. Later, when agent Lee
started to describe the conversation between On Lee and Chin Poy,
petitioner's counsel said, "That is objected to." At best, this is
a general objection, which is insufficient to preserve such a
specific claim as violation of a constitutional provision in
obtaining the evidence. Wigmore on Evidence, § 18(C)(1). Some
jurisdictions recognize an exception to the rule that an overruled
general objection cannot avail proponent on appeal in the case
where it appears on the face of the evidence that it is admissible
for no purpose whatever, or where the nature of the precise
specific objection which could be made is readily discernible.
Sparks v. Territory of Oklahoma,
146 F. 371. But this
exception is generally confined to the cases where such evidence
was plainly irrelevant. Where, as in this case, the objection
relies on collateral matter to show inadmissibility, and in
addition the exclusionary rule to be relied on involves
interpretation of the Constitution, the orthodox rule of evidence
requiring specification of the objection is buttressed by the
uniform policy requiring constitutional questions to be raised at
the earliest possible stage in the litigation.
To call the objection a general one is to put it in the light
most favorable to petitioner; later colloquy between counsel and
court indicates that the intended ground of that objection was
irrelevance. There were, in addition, motions to dismiss the
indictment on each count, and to exclude certain other testimony,
but no reference to the testimony here in question at the motion
stage. There was no motion for a new trial, but there was a motion
to set aside the verdict -- but still no mention of the search and
seizure argument for exclusion. There is not even any mention of it
in the statement of points to be relied on in the Court of Appeals.
The Court of Appeals, however, does treat it fully, presumably
under Rule 52(b) of the Rules of Criminal Procedure, 18 U.S.C.,
allowing the appellate court to notice "plain error." Though we
think the Court of Appeals would have been within its discretion in
refusing to consider the point, their having passed on it leads us
to treat the merits also.
"The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to
U.S.Const., Amend. IV.
". . . no person not being authorized by the sender shall
intercept any communication and divulge or publish the existence,
contents, substance, purport, effect, or meaning of such
intercepted communication to any person. . . ."
MR. JUSTICE FRANKFURTER, dissenting.
The law of this Court ought not to be open to the just charge of
having been dictated by the "odious doctrine," as Mr. Justice
Brandeis called it, that the end justifies reprehensible means. To
approve legally what we disapprove morally, on the ground of
practical convenience, is to yield to a short-sighted view of
practicality. It derives from a preoccupation with what is episodic
and a disregard of long-run consequences. The method by which the
state chiefly exerts an influence upon the conduct of its citizens,
it was wisely said by Archbishop William Temple, is "the moral
qualities which it exhibits in its own conduct."
Loose talk about war against crime too easily infuses the
administration of justice with the psychology and morals of war. It
is hardly conductive to the soundest employment of the judicial
process. Nor are the needs of an effective penal code seen in the
truest perspective by talk about a criminal prosecution's not being
a game in which the Government loses because its officers have not
played according to rule. Of course, criminal prosecution is more
than a game. But, in any event, it should not be deemed to be a
dirty game in which "the dirty business" of criminals is outwitted
by "the dirty business" of law officers. The contrast between
Page 343 U. S. 759
by society and immorality practiced on its behalf makes for
contempt of law. Respect for law cannot be turned off and on as
though it were a hot water faucet.
It is a quarter century since this Court, by the narrowest
margin, refused to put wiretapping beyond the constitutional pale,
where a fair construction of the Fourth Amendment should properly
place it. Since then, instead of going from strength to strength in
combatting crime, we have gone from inefficiency to inefficiency,
from corruption to corruption. The moral insight of Mr. Justice
Brandeis unerringly foresaw this inevitability.
"The progress of science in furnishing the government with means
of espionage is not likely to stop with wiretapping. Ways may
someday be developed by which the government, without removing
papers from secret drawers, can reproduce them in court, and by
which it will be enabled to expose to a jury the most intimate
occurrences of the home. Advances in the psychic and related
sciences may bring means of exploring unexpressed beliefs, thoughts
Olmstead v. United States, 277 U.
, 277 U. S. 471
277 U. S. 474
The circumstances of the present case show how the rapid advances
of science are made available for that police intrusion into our
private lives against which the Fourth Amendment of the
Constitution was set on guard.
It is noteworthy that, although this Court deemed wiretapping
not outlawed by the Constitution, Congress outlawed it
legislatively by the Communications Act of 1934, 42 Stat. 1064,
1103, 47 U.S.C. § 605; Nardone v. United States,
302 U. S. 379
Nardone v. United States, 308 U.
. What is perhaps even more noteworthy is its
pervasive disregard in practice by those who, as law officers, owe
special obedience to law. What is true of the federal Act against
wiretapping and its violations is widely true of related state
legislation and its disobedience. See
Wire-Tapping Problem, 52 Col.L.Rev. 165 (1952). Few
Page 343 U. S. 760
sociological generalizations are more valid than that
lawlessness begets lawlessness.
The members of this Court who so vigorously urged that
wiretapping is within the clear scope of the prohibition of the
Fourth Amendment were no sentimentalists about crime or criminals.
Mr. Justice Holmes, Mr. Justice Brandeis, Mr. Justice Butler and
Chief Justice Stone were no softies. In all matters of social
policy, we have to choose, and it was the hardy philosophy of life
that his years in the Army of the Potomac taught him that led Mr.
Justice Holmes to deem it "a less evil that some criminals should
escape than that the Government should play an ignoble part."
Olmstead v. United States, supra,
at 277 U. S.
Suppose it be true that, through "dirty business," it is easier
for prosecutors and police to bring an occasional criminal to heel.
It is most uncritical to assume that, unless the Government is
allowed to practice "dirty business," crime would become rampant,
or would go unpunished.
In the first place, the social phenomena of crime are imbedded
in the texture of our society. Equally deepseated are the causes of
all that is sordid and ineffective in the administration of our
criminal law. These are outcroppings, certainly in considerable
part, of modern industrialism and of the prevalent standards of the
community, related to the inadequacy in our day of early American
methods and machinery for law enforcement and to the small pursuit
of scientific inquiry into the causes and treatment of crime.
Of course, we cannot wait on the slow progress of the
sociological sciences in illuminating so much that is still dark.
Nor should we relax for a moment vigorous enforcement of the
criminal law until society, by its advanced civilized nature, will
beget an atmosphere and environment in which crime will shrink to
Page 343 U. S. 761
My deepest feeling against giving legal sanction to such "dirty
business" as the record in this case discloses is that it makes for
lazy, and not alert, law enforcement. It puts a premium on force
and fraud, not on imagination and enterprise and professional
training. The third degree, search without warrant, wiretapping and
the like were not tolerated in what was probably the most
successful administration in our time of the busiest United States
Attorney's office. This experience under Henry L. Stimson in the
Southern District of New York, compared with happenings elsewhere,
doubtless planted in me a deep conviction that these shortcuts in
the detection and prosecution of crime are as self-defeating as
they are immoral.
Sir James Fitzjames Stephen brings significant testimony on this
"During the discussions which took place on the Indian Code of
Criminal Procedure in 1872, some observations were made on the
reasons which occasionally lead native police officers to apply
torture to prisoners. An experienced civil officer observed,"
"There is a great deal of laziness in it. It is far pleasanter
to sit comfortably in the shade rubbing red pepper into a poor
devil's eyes than to go about in the sun hunting up evidence."
"This was a new view to me, but I have no doubt of its
1 Stephen, A History of the Criminal Law of England (1883), 442
§§ 25 and 26 of the Indian Evidence Act
(1872). And Fitzjames Stephen, who acted on this experience in
drawing the Indian Evidence Act, was no softie, either before be
became a judge or on the bench.
Accordingly I adhere to the views expressed in Goldman v.
United States, 316 U. S. 129
316 U. S. 136
that the Olmstead
case should be overruled for the reasons
Page 343 U. S. 762
in the dissenting opinions in that case. These views have been
strongly underlined by the steady increase of lawlessness on the
part of law officers, even after Congress has forbidden what the
dissenters in Olmstead
found the Constitution to
Even on the basis of the prior decisions of this Court, however,
I feel bound to dissent. The Court seems not content with calling a
halt at the place it had reached on what I deem to be the wrong
road. As my brother BURTON shows, the Court now pushes beyond the
lines of legality heretofore drawn. Such encouragement to lazy,
immoral conduct by the police does not bode well for effective law
enforcement. Nor will crime be checked by such means.
MR. JUSTICE DOUGLAS, dissenting.
The Court held in Olmstead v. United States,
277 U. S. 438
over powerful dissents by Mr. Justice Holmes, Mr. Justice Brandeis,
Mr. Justice Butler, and Chief Justice Stone, that wiretapping by
federal officials was not a violation of the Fourth and Fifth
Amendments. Since that time, the issue has been constantly stirred
by those dissents and by an increasing use of wiretapping by the
police. Fourteen years later, in Goldman v. United States,
316 U. S. 129
issue was again presented to the Court. I joined in an opinion of
the Court written by Mr. Justice Roberts, which adhered to the
case, refusing to overrule it. Since that time,
various aspects of the problem have appeared again and again in the
cases coming before us. I now more fully appreciate the vice of the
practices spawned by Olmstead
Reflection on them has brought new insight to me. I now feel that I
was wrong in the Goldman
case. Mr. Justice Brandeis, in
his dissent in Olmstead,
espoused the cause of privacy --
the right to be let alone. What he wrote is an
Page 343 U. S. 763
historic statement of that point of view. I cannot improve on
"When the Fourth and Fifth Amendments were adopted, 'the form
that evil had theretofore taken' had been necessarily simple. Force
and violence were then the only means known to man by which a
government could directly effect self-incrimination. It could
compel the individual to testify -- a compulsion effected, if need
be, by torture. It could secure possession of his papers and other
articles incident to his private life -- a seizure effected, if
need be, by breaking and entry. Protection against such invasion of
'the sanctities of a man's home and the privacies of life' was
provided in the Fourth and Fifth Amendments by specific language.
Boyd v. United States, 116 U. S. 616
, 116 U. S.
. But 'time works changes, brings into existence new
conditions and purposes.' Subtler and more far-reaching means of
invading privacy have become available to the government. Discovery
and invention have made it possible for the government, by means
far more effective than stretching upon the rack, to obtain
disclosure in court of what is whispered in the closet."
"Moreover, 'in the application of a Constitution, our
contemplation cannot be only of what has been, but of what may be.'
The progress of science in furnishing the government with means of
espionage is not likely to stop with wiretapping. Ways may some day
be developed by which the government, without removing papers from
secret drawers, can reproduce them in court, and by which it will
be enabled to expose to a jury the most intimate occurrences of the
home. Advances in the psychic and related sciences may bring means
of exploring unexpressed beliefs, thoughts and emotions. 'That
Page 343 U. S. 764
places the liberty of every man in the hands of every petty
officer' was said by James Otis of much lesser intrusions than
these. To Lord Camden, a far slighter intrusion seemed 'subversive
of all the comforts of society.' Can it be that the Constitution
affords no protection against such invasions of individual
"* * * *"
"The makers of our Constitution undertook to secure conditions
favorable to the pursuit of happiness. They recognized the
significance of man's spiritual nature, of his feelings, and of his
intellect. They knew that only a part of the pain, pleasure and
satisfactions of life are to be found in material things. They
sought to protect Americans in their beliefs, their thoughts, their
emotions and their sensations. They conferred, as against the
government, the right to be let alone -- the most comprehensive of
rights and the right most valued by civilized men. To protect, that
right, every unjustifiable intrusion by the government upon the
privacy of the individual, whatever the means employed, must be
deemed a violation of the Fourth Amendment. And the use, as
evidence in a criminal proceeding, of facts ascertained by such
intrusion must be deemed a violation of the Fifth."
"* * * *"
"Experience should teach us to be most on our guard to protect
liberty when the government's purposes are beneficent. Men born to
freedom are naturally alert to repel invasion of their liberty by
evil-minded rulers. The greatest dangers to liberty lurk in
insidious encroachment by men of zeal, well-meaning but without
277 U. S. 277
U.S. 473, 277 U. S.
Page 343 U. S. 765
That philosophy is applicable not only to a detectaphone placed
against the wall or a mechanical device designed to record the
sounds from telephone wires, but also to the "walky-talky" radio
used in the present case. The nature of the instrument that science
or engineering develops is not important. The controlling, the
decisive factor is the invasion of privacy against the command of
the Fourth and Fifth Amendments.
I would reverse this judgment. It is important to civil
liberties that we pay more than lipservice to the view that this
manner of obtaining evidence against people is "dirty business."
Mr. Justice Holmes, dissenting, Olmstead v. United
p. 277 U. S.
MR. JUSTICE BURTON, with whom MR. JUSTICE FRANKFURTER concurs,
I agree with the dissenting opinion below that what Lee
overheard by means of a radio transmitter surreptitiously
introduced and operating, without warrant or consent, within
petitioner's premises, should not have been admitted in evidence.
The Fourth Amendment's protection against unreasonable searches and
seizures is not limited to the seizure of tangible things. It
extends to intangibles, such as spoken words. In applying the
exclusionary rule of Weeks v. United States, 232 U.
, we are primarily concerned with where and how
the evidence is seized, rather than what the evidence is. Cf.
Silverthorne Lumber Co. v. United States, 251 U.
; United States v. Jeffers, 342 U. S.
; Nueslein v. District of Columbia,
App.D.C. 85, 115 F.2d 690.
It seems clear that if federal officers, without warrant or
permission, enter a house, under conditions amounting to
unreasonable search, and there conceal themselves, the
conversations they thereby overhear are inadmissible in a federal
criminal action. It is argued that, in the instant case, there was
no illegal entry because petitioner
Page 343 U. S. 766
consented to Chin Poy's presence. This overlooks the fact that
Chin Poy, without warrant and without petitioner's consent, took
with him the concealed radio transmitter to which agent Lee's
receiving set was tuned. For these purposes, that amounted to Chin
Poy's surreptitiously bringing Lee with him.
This Court has held generally that, in a federal criminal trial,
a federal officer may testify to what he sees or hears take place
within a house or room which he has no warrant or permission to
enter, provided he sees or hears it outside of those premises.
Olmstead v. United States, 277 U.
. Cf. Hester v. United States,
265 U. S. 57
holds true even where the officer supplements his hearing with a
hearing aid, detectaphone or other device outside the premises.
This merely enables him to hear more distinctly, where he is, what
reaches him there from wherever it may come. He and his hearing aid
pick up the sounds outside of, rather than within, the protected
premises. Goldman v. United States, 316 U.
In the instant case, Chin Poy, who was lawfully in petitioner's
room, could have testified as to what he, himself, saw or heard
there. Yet, if he had been there unlawfully or surreptitiously,
without warrant or consent, under conditions amounting to an
unreasonable search, he should not be permitted, in this
proceeding, to testify even to that. Cf. Gouled v. United
States, 255 U. S. 298
Nueslein v. District of Columbia, supra.
Lee, under like conditions, without warrant and without authority,
entered the room with Chin Poy and, while concealed, overheard
petitioner's conversation with Chin Poy, Lee's testimony should be
excluded. In substance, that is what took place here. Lee's
overhearing of petitioner's statements was accomplished through
Chin Poy's surreptitious introduction within petitioner's laundry
of Lee's concealed radio transmitter which, without
Page 343 U. S. 767
knowledge or consent, there
picked up petitioner's
conversation and transmitted it to Lee outside the premises. The
presence of the transmitter, for this purpose, was the presence of
Lee's ear. While this test draws a narrow line between what is
admissible and what is not, it is a clearly ascertainable line. It
is determined by where the "effects" are seized or, as here, where
the words are picked up. In this case, the words were picked up
without warrant or consent within
inviolate "house" of a person entitled to protection there against
unreasonable searches and seizures of his person, house, papers and
effects. It is inevitable that the line be narrow between, on the
one hand, the constitutional right of a person to be free from
unreasonable searches and seizures and, on the other, the need for
the effective prosecution of crime. Drawing the line is a
continuing process. The important thing is that the direction of
the line that emerges from successive cases be clear.