At the trial in a federal district court in which petitioners
were convicted of gambling offenses under the District of Columbia
Code, there was admitted in evidence over their objection testimony
of police officers describing incriminating conversations engaged
in by petitioners at their alleged gambling establishment, which
the officers had overheard by means of an electronic listening
device pushed through the party wall of an adjoining house until it
touched heating ducts in the house occupied by petitioners.
Held: Such testimony should not have been admitted in
evidence, and the convictions must be set aside. Pp.
365 U. S.
506-512.
(a) Although much of what the officers heard and testified about
consisted of petitioners' share of telephone conversations, it
cannot be said that the officers intercepted those conversations
and divulged their contents in violation of § 605 of the
Communications Act of 1934. Pp.
365 U. S.
507-508.
(b) On the record in this case, the eavesdropping was
accomplished by means of an unauthorized physical penetration into
the premises occupied by petitioners, which violated their rights
under the Fourth Amendment.
Goldman v. United States,
316 U. S. 129, and
On Lee v. United States, 343 U. S. 747,
distinguished. Pp.
365 U. S.
509-512.
107 U.S.App.D.C. 144, 275 F.2d 173, reversed.
Page 365 U. S. 506
MR. JUSTICE STEWART delivered the opinion of the Court.
The petitioners were tried and found guilty in the District
Court for the District of Columbia upon three counts of an
indictment charging gambling offenses under the District of
Columbia Code. At the trial, police officers were permitted to
describe incriminating conversations engaged in by the petitioners
at their alleged gambling establishment, conversations which the
officers had overheard by means of an electronic listening device.
The convictions were affirmed by the Court of Appeals, 107
U.S.App.D.C. 144, 275 F.2d 173, and we granted certiorari to
consider the contention that the officers' testimony as to what
they had heard through the electronic instrument should not have
been admitted into evidence. 363 U.S. 801.
The record shows that in the spring of 1958 the District of
Columbia police had reason to suspect that the premises at 408 21st
Street, N.W., in Washington, were being used as the headquarters of
a gambling operation. They gained permission from the owner of the
vacant adjoining row house to use it as an observation post. From
this vantage point, for a period of at least three consecutive days
in April, 1958, the officers employed a so-called "spike mike" to
listen to what was going on within the four walls of the house next
door.
The instrument in question was a microphone with a spike about a
foot long attached to, it together with an amplifier, a power pack,
and earphones. The officers inserted the spike under a baseboard in
a second-floor room of the vacant house and into a crevice
extending several inches into the party wall, until the spike hit
something solid "that acted as a very good sounding board." The
record clearly indicates that the spike made contact with a heating
duct serving the house occupied
Page 365 U. S. 507
by the petitioners, thus converting their entire heating system
into a conductor of sound. Conversations taking place on both
floors of the house were audible to the officers through the
earphones, and their testimony regarding these conversations,
admitted at the trial over timely objection, played a substantial
part in the petitioners' convictions. [
Footnote 1]
Affirming the convictions, the Court of Appeals held that the
trial court had not erred in admitting the officers' testimony. The
court was of the view that the officers' use of the spike mike had
violated neither the Communications Act of 1934, 47 U.S.C. § 605,
cf. Nardone v. United States, 302 U.
S. 379, nor the petitioners' rights under the Fourth
Amendment,
cf. Weeks v. United States, 232 U.
S. 383.
In reaching these conclusions, the court relied primarily upon
our decisions in
Goldman v. United States, 316 U.
S. 129, and
On Lee v. United States,
343 U. S. 747.
Judge Washington dissented, believing that, even if the
petitioners' Fourth Amendment rights had not been abridged, the
officers' conduct had transgressed the standards of due process
guaranteed by the Fifth Amendment.
Cf. Irvine v.
California, 347 U. S. 128.
As to the inapplicability of § 605 of the Communications Act of
1934, we agree with the Court of Appeals. That section provides
that
". . . no person not being
Page 365 U. S. 508
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.
. . ."
While it is true that much of what the officers heard consisted
of the petitioners' share of telephone conversations, we cannot say
that the officers intercepted these conversations within the
meaning of the statute.
Similar contentions have been rejected here at least twice
before. In
Irvine v. California, 347 U.
S. 128,
347 U. S. 131,
the Court said:
"Here the apparatus of the officers was not in any way connected
with the telephone facilities, there was no interference with the
communications system, there was no interception of any message.
All that was heard through the microphone was what an eavesdropper,
hidden in the hall, the bedroom, or the closet, might have heard.
We do not suppose it is illegal to testify to what another person
is heard to say merely because he is saying it into a
telephone."
In Goldman v. United States, 316 U.
S. 129,
316 U. S. 134,
it was said that
"[t]he listening in the next room to the words of [the
petitioner] as he talked into the telephone receiver was no more
the interception of a wire communication, within the meaning of the
Act, than would have been the overhearing of the conversation by
one sitting in the same room."
In presenting here the petitioners' Fourth Amendment claim,
counsel has painted with a broad brush. We are asked to reconsider
our decisions in
Goldman v. United States, supra, and
On Lee v. United States, supra. We are told that
reexamination of the rationale of those cases, and of
Olmstead
v. United States, 277 U. S. 438,
from which they stemmed, is now essential in the light of recent
and projected developments in the science of electronics. We are
favoured with a description of "a device known as the parabolic
microphone which can pick up a conversation three hundred yards
away." We are told of a
Page 365 U. S. 509
"still experimental technique whereby a room is flooded with a
certain type of sonic wave," which, when perfected, "will make it
possible to overhear everything said in a room without ever
entering it or even going near it." We are informed of an
instrument "which can pick up a conversation through an open office
window on the opposite side of a busy street." [
Footnote 2]
The facts of the present case, however, do not require us to
consider the large questions which have been argued. We need not
here contemplate the Fourth Amendment implications of these and
other frightening paraphernalia which the vaunted marvels of an
electronic age may visit upon human society. Nor do the
circumstances here make necessary a reexamination of the Court's
previous decisions in this area. For a fair reading of the record
in this case shows that the eavesdropping was accomplished by means
of an unauthorized physical penetration into the premises occupied
by the petitioners. As Judge Washington pointed out without
contradiction in the Court of Appeals:
"Every inference, and what little direct evidence there was,
pointed to the fact that the spike made contact with the heating
duct, as the police admittedly hoped it would. Once the spike
touched the heating duct, the duct became in effect a giant
microphone, running through the entire house occupied by
appellants."
107 U.S.App.D.C. at 150, 275 F.2d at 179.
Eavesdropping accomplished by means of such a physical intrusion
is beyond the pale of even those decisions in
Page 365 U. S. 510
which a closely divided Court has held that eavesdropping
accomplished by other electronic means did not amount to an
invasion of Fourth Amendment rights. In
Goldman v. United
States, supra, the Court held that placing a detectaphone
against an office wall in order to listen to conversations taking
place in the office next door did not violate the Amendment. In
On Lee v. United States, supra, a federal agent, who was
acquainted with the petitioner, entered the petitioner's laundry
and engaged him in an incriminating conversation. The agent had a
microphone concealed upon his person. Another agent, stationed
outside with a radio receiving set, was tuned in on the
conversation, and, at the petitioner's subsequent trial, related
what he had heard. These circumstances were held not to constitute
a violation of the petitioner's Fourth Amendment rights.
But in both
Goldman and
On Lee, the Court took
pains explicitly to point out that the eavesdropping had not been
accomplished by means of an unauthorized physical encroachment
within a constitutionally protected area. In
Goldman,
there had, in fact, been a prior physical entry into the
petitioner's office for the purpose of installing a different
listening apparatus, which had turned out to be ineffective. The
Court emphasized that this earlier physical trespass had been of no
relevant assistance in the later use of the detectaphone in the
adjoining office. 316 U.S. at
316 U. S.
134-135. And in
On Lee, as the Court said, ". .
. no trespass was committed." The agent went into the petitioner's
place of business "with the consent, if not by the implied
invitation, of the petitioner." 343 U.S. at
343 U. S.
751-752.
The absence of a physical invasion of the petitioner's premises
was also a vital factor in the Court's decision in
Olmstead v.
United States, 277 U. S. 438. In
holding that the wiretapping there did not violate the Fourth
Amendment, the Court noted that
"[t]he insertions
Page 365 U. S. 511
were made without trespass upon any property of the defendants.
They were made in the basement of the large office building. The
taps from house lines were made in the streets near the
houses."
277 U.S. at
277 U. S. 457.
"There was no entry of the houses or offices of the defendants."
277 U.S. at
277 U. S. 464.
Relying upon these circumstances, the Court reasoned that "[t]he
intervening wires are not part of [the defendant's] house or office
any more than are the highways along which they are stretched." 277
U.S. at
277 U. S.
465.
Here, by contrast, the officers overheard the petitioners'
conversations only by usurping part of the petitioners' house or
office -- a heating system which was an integral part of the
premises occupied by the petitioners, a usurpation that was
effected without their knowledge and without their consent. In
these circumstances, we need not pause to consider whether or not
there was a technical trespass under the local property law
relating to party walls. [
Footnote
3] Inherent Fourth Amendment rights are not inevitably
measurable in terms of ancient niceties of tort or real property
law.
See Jones v. United States, 362 U.
S. 257,
362 U. S. 266;
On Lee v. United States, supra, at
343 U. S. 752;
Hester v. United States, 265 U. S. 57;
United States v. Jeffers, 342 U. S.
48,
342 U. S. 51;
McDonald v. United States, 335 U.
S. 451,
335 U. S.
454.
The Fourth Amendment, and the personal rights which it secures,
have a long history. At the very core stands the right of a man to
retreat into his own home and there be free from unreasonable
governmental intrusion.
Entick v. Carrington, 19 Howell's
State Trials 1029, 1066;
Boyd v. United States,
116 U. S. 616,
116 U. S.
626-630. [
Footnote
4] This
Page 365 U. S. 512
Court has never held that a federal officer may, without warrant
and without consent, physically entrench into a man's office or
home, there secretly observe or listen, and relate at the man's
subsequent criminal trial what was seen or heard.
A distinction between the detectaphone employed in
Goldman and the spike mike utilized here seemed to the
Court of Appeals too fine a one to draw. The court was "unwilling
to believe that the respective rights are to be measured in
fractions of inches." But decision here does not turn upon the
technicality of a trespass upon a party wall as a matter of local
law. It is based upon the reality of an actual intrusion into a
constitutionally protected area. What the Court said long ago bears
repeating now:
"It may be that it is the obnoxious thing in its mildest and
least repulsive form; but illegitimate and unconstitutional
practices get their first footing in that way, namely, by silent
approaches and slight deviations from legal modes of
procedure."
Boyd v. United States, 116 U.
S. 616,
116 U. S. 635.
We find no occasion to reexamine
Goldman here, but we
decline to go beyond it, by even a fraction of an inch.
Reversed.
[
Footnote 1]
Alleging that the conversations thus overheard had been the
basis for a search warrant under which other incriminating evidence
was discovered at 408 21st Street, N.W., the petitioners sought
unsuccessfully to suppress the evidence obtained upon execution of
the warrant. It is the Government's position that there were ample
grounds to support the search warrant, even without what was
overheard by means of the spike mike. We deal here only with the
admissibility at the trial of the officers' testimony as to what
they heard by means of the listening device, leaving a
determination of the warrant's validity to abide the event of a new
trial.
[
Footnote 2]
See Hearings before the Subcommittee on Constitutional
Rights of the Committee on the Judiciary, United States Senate,
85th Cong., 2d Sess., on Wiretapping, Eavesdropping, and the Bill
of Rights; Hearings before Subcommittee No. 5 of the Committee on
the Judiciary, House of Representatives, 84th Cong., 1st Sess., on
Wiretapping; Dash, Schwartz and Knowlton, The Eavesdroppers
(Rutgers University Press, 1959), pp. 346-358.
[
Footnote 3]
See Fowler v. Koehler, 43 App.D.C. 349.
[
Footnote 4]
William Pitt's eloquent description of this right has been often
quoted. The late Judge Jerome Frank made the point in more
contemporary language:
"A man can still control a small part of his environment, his
house; he can retreat thence from outsiders, secure in the
knowledge that they cannot get at him without disobeying the
Constitution. That is still a sizable hunk of liberty -- worth
protecting from encroachment. A sane, decent, civilized society
must provide some such oasis, some shelter from public scrutiny,
some insulated enclosure, some enclave, some inviolate place which
is a man's castle."
United States v. On Lee, 193 F.2d 306, 315-316
(dissenting opinion).
MR. JUSTICE DOUGLAS, concurring.
My trouble with
stare decisis in this field is that it
leads us to a matching of cases on irrelevant facts. An electronic
device on the outside wall of a house is a permissible invasion of
privacy according to
Goldman v. United States,
316 U. S. 129,
while an electronic device that penetrates the wall, as here, is
not. Yet the invasion
Page 365 U. S. 513
of privacy is as great in one case as in the other. The concept
of "an unauthorized physical penetration into the premises," on
which the present decision rests seems to me to be beside the
point. Was not the wrong in both cases done when the intimacies of
the home were tapped, recorded, or revealed? The depth of the
penetration of the electronic device -- even the degree of its
remoteness from the inside of the house -- is not the measure of
the injury. There is in each such case a search that should be
made, if at all, only on a warrant issued by a magistrate. I stated
my views in
On Lee v. United States, 343 U.
S. 747, and adhere to them. Our concern should not be
with the trivialities of the local law of trespass, as the opinion
of the Court indicates. But neither should the command of the
Fourth Amendment be limited by nice distinctions turning on the
kind of electronic equipment employed. Rather, our sole concern
should be with whether the privacy of the home was invaded. Since
it was invaded here, and since no search warrant was obtained as
required by the Fourth Amendment and Rule 41 of the Federal Rules
of Criminal Procedure, I agree with the Court that the judgment of
conviction must be set aside.
MR. JUSTICE CLARK and MR. JUSTICE WHITTAKER, concurring.
In view of the determination by the majority that the
unauthorized physical penetration into petitioners' premises
constituted sufficient trespass to remove this case from the
coverage of earlier decisions, we feel obliged to join in the
Court's opinion.