Alderman v. United States

STATES. ALDERMAN v. UNITED et al. 133, Term, 9, No. Oct. 1967. Certiorari denied October 1967. Rehearing granted January 29, and and certiorari case decided modify argued May Reargued 2, 1968. Motion to Oc 1968. 14, January 29, 1968, withdrawn, rehearing tober 1968. Order of granted, 10, certiorari decided March 1969.* case *Together 11, with No. Ivanov v. States, and No. Butenko v. United on certiorari to the United States Court Appeals argued for the Third Circuit, October 1968. reargued Solicitor General Griswold for the United Term, 1967, States in No. October on the motion 133, modify January 29, 1968, the Court’s Order of At- 136. With him on the brief were Assistant S. Vinson, Claiborne, torney General Louis F. John S. Jr., Martin, Rosenberg, Beatrice Sidney and M. Glazer. Edward Bennett reargued Williams for petitioners in Term, 1967, opposition No. October motion. Tingar With him the brief were Harold and W. H. Erickson.

T—< CO!>(cid:127) argued Mr. Williams the cause and filed brief for petitioner Danzig, 11. Charles appointment No. argued 393 U. S. the cause and filed Court, petitioner brief No. 197. Solicitor General Griswold argued the cause for the and 197. him United States Nos. With on the Attorney Yeagley, brief were Assistant General Messrs. Martin, Claiborne Kevin Maroney. T. opinion delivered the of the Court.

Me. Justice White of petitioners After the convictions had been affirmed, and while here, cases were pending their was revealed engaged United States had in electronic sur- veillance which have might violated their Fourth Amend- rights ment and tainted their convictions. A remand to the being necessary District Court in adju- each case for in dication the first instance, questions the now before to procedures us relate the standards to be followed by the District in determining Court any whether of the supporting Government's evidence these convictions was illegal of product the any surveillance to which of the petitioners object. entitled to T.,

No. O. 1967. Petitioners Alderman and Al- Ruby with derisio, along now deceased, were Kolod, conspiring convicted of to transmit murderous threats in commerce, interstate 18 §§ U. S. C. (c). 875 Their convictions were affirmed on appeal, 371 F. 2d 983 (C. A. 10th 1967), Cir. and this Court denied certiorari, 389 S. 834 In U. their petition for rehearing, alleged petitioners they recently had discovered that place Alderisio’s of in business Chicago had been subject of electronic by surveillance the Government. response of Reading the Government to admit that Alderisio’s conversations had been by overheard unlawful for granted petition we eavesdropping,1

electronic of States that the United objection rehearing over the any peti- of the conversation “no overheard prose- relevant to this arguably participated tioners S. opinion, curiam U. per In our cution.” parte the ex determination accept we refused (1968), lieu Justice Department of relevance Court, vacated in the District adversary proceedings the case and remanded Appeals, Court of judgment proceedings. further District Court for subsequently filed a motion to States The United Although accepting the Court’s order modify that order. determination of whether required judicial as it insofar product was the prosecution’s evidence urged States order illegal surveillance, the United parties third or referred protect participating innocent in- irrelevant conversations overheard Govern- first subjected surveillance records should ment, by the inspection judge, camera trial who would then only petitioners turn over their counsel those prosecution. arguably materials relevant their Peti- opposed the motion, argued tioners and the matter was the Court last Term. then set before We case down reargument at the opening of the current Term, (1968), the attention of the parties being S. directed to the question disclosure issue and the reargument, suggests

1 In its brief on the Government no by places Alderisio, electronic surveillance was conducted at owned only premises was carried out by but rather at owned his associates by employed firms which him. The also Government contends space Alderisio himself did have subject desk at premises. Finally, the Government asserts that Alderman neither participated any any in conversation overheard nor had interest places object which were the of allega the surveillance. These by the have by tions Government will to be considered the District in the instance, express opinion Court first and we no now on their merit.

169 of the fruits object to use standing Government’s illegal of surveillance.2 Both were petitioners 11 197. convicted

Nos. and of to Union infor- conspiring to transmit the Soviet to of relating mation the national defense the United conspiring (c), §§ S. C. (a), U. by causing § to violate S. Butenko to C. agent prior act as an of the Soviet Union without to Secretary notification Butenko was also State. of a under 18 § convicted substantive offense C. 951. U. S. of Appeals Court affirmed all but Ivanov’s conviction on (C. the second count. 384 2d 554 A. 3d conspiracy F. 1967). Cir. Petitions certiorari filed in were then Court, subsequent as was a motion to amend the 17,1968, restoring In our order of June motion the Government’s requested reargument, 919-920, to the calendar for 392 U. S. we following among counsel to include the issues to discussed briefs argument: and oral

“(1) petitioner Should records of the electronic surveillance of place subjected inspection Alderisio’s of business be to camera judge necessity compelling the trial to determine the the Govern- petitioners, ment to make disclosure of to such records so to what extent?

“(2) inspection If in camera ordered, is authorized or what (for example, injury standards relevance and considerations of to reputations) persons judge or to should the trial determine whether petitioners? records are to be turned over to “(3) applied determining standards are What whether petitioner standing object each against has to the use him of the from information obtained the electronic petitioner surveillance of place specifically, Alderisio’s of business? More petitioner does standing object any have Alderisio use or all informa- tion obtained from such electronic surveillance whether or not he present premises or party was particular overheard Also, petitioner conversation? does Alderman have to ob- ject use him of all information obtained petitioner from the electronic surveillance Alderisio’s business establishment?” which to that similar raise an issue to petition

Ivanov Following T. 1967.3 O. in No. presented was Kolod v. nom. (sub in Alderman argument first Ivanov and of both certiorari for petitions States), nearly iden- questions limited granted, were Butenko Alderman reargument of the involved those tical to case.4 peti of overhearing each conversations admits United States pertinent place and other surveillance took

tioner, but where the In states: its brief Government are unknown. details specifically been installation had instances the “In some of the equipment Attorney In others the by then General. approved I., authority grant to the F. B. under a broader was installed require specific authoriza- time, did in effect at that for policy would call Department of Justice tion. . . . resent [P] any Attorney use General from the specific authorization equipment in such cases.” electronic develop relevant cases, Court must all the District In three electronic surveillance was if the and decide Government’s facts present purposes, the sur- assumption, for is that Our unlawful. illegal. veillance was grant certiorari, was limited case the U. S. In each questions: following peti- assumption was electronic surveillance of that there “On the Amendment, the Fourth codefendant which violated tioner or a “(1) electronic surveillance be sub- Should the records such judge inspection jected in camera the trial to determine necessity compelling to make disclosure of such the Government if petitioner, and so to what extent? records to inspection ordered, “(2) If in camera is to be authorized or (for example, relevance, and considerations of na- what standards security reputations) injury persons should the trial tional judge records are to be over determine whether the turned defendant?

“(3) applied determining to be standards are whether What object standing against has to the use him of informa- petitioner illegal specifically, from surveillance? obtained such More tion place premises illegal particular took at of a surveillance defendant,

“(a) object defendant have Does that to the use information illegal him of or all obtained from the sur-

I. The exclusionary rule fashioned in Weeks v. United States, Ohio, 232 383 (1914), and Mapp U. S. 367 U. S. 643 (1961), excludes from a any criminal trial evidence seized from the defendant in violation of his Fourth Amendment rights. Fruits of such evidence are excluded States, as well. Silverthorne Lumber Co. v. United 251 (1920). S. 391-392 Because the Amendment now protection affords against ear, uninvited oral if statements, illegally overheard, and their fruits States, Silverman v. United subject suppression. also States, Katz v. United 365 U. 505 (1961); S. 389 U. S. Weeks, Mapp In the defendant against whom the evidence was held to be inadmissible was the victim of However, the search. in the cases before peti- us each tioner if demands retrial any the evidence used to product convict him was the surveillance, unauthorized regardless of whose Fourth Amendment rights the sur- veillance violated. At the very least, it urged is evidence inadmissible one against defendant or con- spirator, because tainted electronic illegal surveillance him, as to is also inadmissible against his codefendant coconspirator. or expansive

This reading the Fourth Amendment and exclusionary of the rule fashioned to enforce it is ad- mittedly prior inconsistent with cases, and we reject it. principle The established suppression of a Fourth product Amendment violation can be suc- cessfully urged only by whose rights those were vio- veillance, present whether or not he was premises party on the or the overheard conversation?

“(b) object Does a codefendant have to the use against him of or all information obtained illegal from the sur- veillance, present he was premises whether not on the party the overheard conversation?” aggrieved who are those itself, by the search

lated Co- damaging evidence. by the introduction solely no accorded have been and codefendants conspirators standing. special S. 316 U. in Goldstein v.

Thus by disclosing to witnesses testimony induced (1942), intercepted by the communications telephonic their own held contrary § C. 605 was U. S. Government The Court coconspirators. their admissible exclusionary rule with the § rule under equated the Wong v. United Sun Fourth Amendment.5 under the conclusions. States, 471 came to like 371 U. S. (1963), together; tried narcotics two defendants were There, against from a were held inadmissible party seized third they product the of state because were one defendant him unlawful by made the time of his arrest. ments at were found be admissible But the same narcotics of against the codefendant because seizure “[t]he 5 put by issue and answered the As the was Court: question now to be decided is extend the “The whether we shall for of as to make sanction violation the Communications Act so party intercepted one a the available to not communication the objection courtroom, trial, prior that its use the to the outside which, except use, for induced evidence would be admissible. gone in applying implied court ever far “No has so the sanction for of violation the Fourth Amendment. court has never While this upon point, been decide called the the federal courts numerous unanimity, cases, and with have denied to one object victim an of unconstitutional search and seizure to to the introduction evidence of that which A was seized. fortiori apply rule should same introduction of evidence induced or disclosure thereof to a witness other use than the of victim no imposed broader upon the seizure. We think sanction should be respect of violations of the Government Communications S,U. at 121. Act.” 316 principle applied

The Court noted that had been “in at least fifty Circuit of Appeals cases Courts . . . not to mention by District many Id., decisions Courts.” at n. 12.

173 person premises of privacy invaded no heroin use at his object which would entitle its [him] States, Goldstein v. United 114.” 316 U. S. trial. Cf. Wong supra, Sun v. United States, at 492. States, Jones United v.

The rule is stated S.U. (1960): qualify ‘person aggrieved by “In as a an order to unlawful search and seizure’ one must have been victim a search or one whom seizure, distinguished from directed, search was one only through prejudice who claims use of evi- consequence dence gathered as search seizure at . directed someone else. . .

“Ordinarily, then, entirely proper it is to require challenge legality of one who seeks to of a search suppressing as the basis relevant evidence that allegation he if the allege, disputed he he establish, himself was the victim privacy.” invasion principle acknowledged same was twice This Term. last DeForte, Mancusi v. S. 364 (1968); Simmons (1968).7 U. S. 377 6 “person aggrieved” language The is from Fed. Proc. Rule Crim. Jones thus makes clear that Rule 41 conforms to the (e). general 41 standard and is no broader than the constitutional rule. 7 States, McDonald United (1948), 451 v. 335 U. au S. is not thority McDonald contrary. It at all clear that the opinion automatically standing would extend to codefendant. Two joining majority opinion of the five Justices the did not read the opinion to do and for so found the basis eodefendant’s the guest premises the that fact he was a the searched. “But guest may expect even the shelter of the he rooftree is under Id., against (Jackson, concurring). criminal intrusion.” at 461 J., States, Jones v. United (1960). Cf. 362 U. S. 257 Nor does States, a v. United any (1966), 385 293 support U. S. lend Hoff petitioners’ position, expressly put since the Court aside the issue standing. 174 general and rule

We these cases adhere which, personal rights are rights Fourth Amendment not be vicari- rights, like some other constitutional States, 390 Simmons v. United 377 S. ously U. asserted. States, v. 267 (1960). Jones 362 U. S. (1968); Ullman, Tileston v. (1943). U. S. Cf. prompted circumstances which special None of Alabama, and Barrows NAACP (1958), S. v. 357 U. Jackson, here. present (1953), v. 346 U. S. one against necessity There no to exclude evidence No order of another. protect rights defendant search are at stake when rights illegal of the victim of an The party. is offered some other against the evidence object for himself probably victim can and will very him to do important when if it becomes for so. and petitioners appear independent assert is an What own to and constitutional of their exclude relevant from probative because was seized another evidence But of the Fourth Amendment. we think violation pur- there substantial difference for constitutional is a the incrimination of a poses preventing defend- between seized him very illegally evidence from through ant evidence on the motion of a who suppressing party predicate for exclusion. cannot claim necessity predicate The was not eliminated acknowledging the deterrent aim of the recognizing Walker, Linkletter v. (1965); 381 U. S. 618 rule. See Elkins United S. 206 Neither hold anything nor others which de- those cases thereby commanded searches is Fourth illegal ters values of Amendment. deterrent preventing rights police whose of those have vio- incrimination justify sup- lated considered sufficient to have been probative though evidence even pression of case destroyed. is weakened or the defendant We But we judgment. are not adhere to that convinced that the additional benefits of extending exclusionary rule to other defendants would justify further encroach- upon ment public interest in prosecuting those ac- cused of crime and them having acquitted or convicted the basis of all the exposes evidence which the truth.

We do deprecate Fourth rights. Amendment The security of persons and property remain's a fundamental value which law enforcement respect. officers must Nor should those who flout the rules escape unscathed. In respect we are mindful that there is now a compre- hensive statute making unauthorized electronic surveil- lance a serious crime.8 The general rule under statute is that official eavesdropping wiretapping and permitted only probable with cause and a warrant. experience Without showing the contrary, we should not assume that this new will cavalierly statute disre- garded or will not be against transgressors. enforced course,

Of Congress or legislatures state may extend rule exclusionary provide and illegally seized evidence is inadmissible against anyone any pur- pose.9 But for constitutional purposes, we are not now III, Title Omnibus Crime Control and Safe Streets Act of 90-351, Pub. L. only Stat. impose 211. Not does the Act penalties upon criminal provisions those who governing violate its eavesdropping wiretapping, (18 82 Stat. 213 U. S. C. §2511 (1964 ed., IV)) (fine Supp. $10,000, imprison not more than ment for years, not more than five or both), but it also authorizes recovery damages person of civil whose wire oral com intercepted, disclosed, munication is or used in Act, violation of the (18 (1964 ed., IV)) Stat. 223 S. Supp. (permitting C. §2520 recovery punitive damages, actual as well as a reasonable attorney’s litigation reasonably fee incurred). and other costs of 9 Congress wiretapping has not done so. In its recent and eaves dropping legislation, Congress provided only “aggrieved has that an person” may suppress move to the contents a wire or oral com intercepted munication in violation of the III, Act. Title Omnibus (18 Crime Control and Safe Streets Act of 82 Stat. 221 U. C.S. (10) (a) (1964 ed., IV)). Supp. legislative history Act’s § wire- rule that unlawful expand existing the inclined to or negli- deliberate eavesdropping, whether or tapping person nothing against usable produce can gent, invasion. by the aggrieved

II. en- any petitioner would therefore, cases, In these orig- evidence government of suppression titled to own of his surveillance violative in inating electronic free of unreasonable to be Amendment Fourth violation would occur Such and seizures. searches of unlawfully overheard conversations the United States occurring his on or conversations petitioner himself a present participated not he was whether or premises, States concedes in conversations. those hearing a purposes that for agrees and this much is whether the evidence tainted determine Government’s transcripts surveillance, recordings illegal any petitioner or third the overheard conversations of duly premises properly his ex- persons on must be in the District Court. amined MR. who Stewart, Harlan Mr. Justice Justice phase on this partial case, object dissent against our protecting the homeowner the use of third- on party premises by conversations overheard his position unauthorized surveillance. Their is that unless privacy conversational the homeowner himself is there no basis the Fourth invaded, Amendment for excluding third-party conversations overheard on his premises. agree. If We cannot police make an unwarranted search tangible house and seize prop- erty belonging parties third transcript of —even third-party may conversation —the homeowner object to “aggrieved person,” limiting phrase indicates currently (e), found in Fed. Rule Crim. Proc. 41 should be construed Rep. accordance with existent rules. See S. No. 90th Cong., Sess., at 91, 2d 106.

its he had him, use not because interest protected seized items as “effects” Fourth Amendment, they but because were the fruits of an search of expressly unauthorized his itself house, protected by Nothing the Fourth Amendment.10 seen premises legally or found form the basis testimony an arrest or search warrant or for at the home trial, prosecution owner’s since the using would be the fruits of Fourth Amendment violation. Silverthorne States, Lumber v. United Co. 251 (1920); U. S. 385 States, v. Johnson United Wong 333 S. 10 Sun (1948); U. States, v. United 371 U. 471 (1963). S. characteristically The Court has applied the rule same where an unauthorized electronic surveillance is carried by physical out premises. invasion of the much This frankly the dissent concedes. physical Like evidence might seized, overheard conversations are fruits 10 police If pursuant enter a house to a valid warrant author izing specified the seizure of gambling paraphernalia but discover illegal in process search, may narcotics the narcotics seized and prosecution introduced in evidence the home owner, belong whether the narcotics him or party. to a third g., E. Harris v. States, United 331 S.U. But if the officers have neither a warrant nor the consent of the householder, elementary it is Fourth Amendment law nar that the suppressible cotics are on his In cases, however, motion. both homeowner’s in the standing object interest narcotics and his same; their seizure are the and insofar the Fourth Amendment’s protection right of “effects” concerned, of the officer to seize the contraband without a warrant and use it in evidence is identical. The reason that the narcotics be seized and introduced in first spite evidence ease where there was warrant, a valid of the householder’s interest in the narcotics and his object, but not in the second case where there no was warrant simple suggested by is not the reason that the Mr. Justice Harlan property householder has a interest in the narcotics and therefore “standing” object. has Rather, in the because first case illegal no there was invasion of the premises, while in the second entry and search officer’s violated the Fourth Amendment, the being illegality. narcotics the fruit in evidence. are inadmissible entry and illegal of an Wong States, (1961); S. 505 Silverman United v. Silverman was de- supra. When States, v. Sun recog- had been privacy right of conversational no cided, was the in that case vindicated such; the nized as own home. secure one’s right to be Amendment Fourth Toy when Wong Sun, by Blackie spoken the words In not usable his house were illegally entered police a physical fruits of they were the him because Fourth which violated the premises his invasion Amendment. now the Fourth Court has decided

Because the conversations as person’s private protects Amendment Katz United premises, private well as his concept the dissent would discard (1967), U. S. through illegal overheard private conversations place must as the entry into a be excluded fruits private Although a Fourth Amendment violation. officers a warrant not search a house for without valid incriminating or whether physical information, evidence dissent present away, permit the would the owner is without consent them enter that house and without listening a device, install and warrant, a use over- third-party against conversations the owner in a heard spite in criminal obvious violation of case, his in right to be secure Fourth Amendment his own dwell- present if the ing. premises Even owner on his during he have surveillance, complaint would no the unless his conversations were offered or used against own him. from a telephone tap or Information from the micro- or in the guests in the kitchen rooms of phone or children freely long usable as as the would homeowner’s own are not monitored and against conversations used him. instead police, the Indeed, installing a device, on the they themselves premises, secreted could neither use testify against nor the about owner anything they against be free to use away, saw or carried but would they except him overheard his own conversa- everything police parties tions. And overhear third de- should they in scribing narcotics which have discovered the open drawer, police owner’s desk the could not the then they narcotics, and the but could secure a drawer seize they the and warrant on basis what had heard forth- pursuant seize the to that warrant.11 with narcotics accept. These views we do not We adhere the right view in established this Court secure house against one’s intrusion is unauthorized not protection against viewing limited to a policeman seizing tangible property “papers” and “effects.” — express security for Otherwise, provided the home by the Fourth Amendment approach redundancy. would rights the owner of the premises clearly are as

11Mr. distinguish Justice Harlan would also between situa belonging tion where a party containing document to third and his premises own words is seized from the another without warrant and the party’s spoken situation where the third words over heard electronic Under surveillance. that view the words of party third would be admissible the latter instance but not former. We would exclude the evidence both cases. distinguish So do also we not between electronic surveillance which entry physical is carried of a out means and surveillance which penetrates private trespass. much, area without a technical This think, quite case, Katz we makes clear. In either officialdominvades area in right expect privacy which the homeowner has the himself, family, invitees, object his and his invasion, rights use him of fruits of not because the violated, of others been have but because his own were. Those who present converse and are overheard when owner also have objection valid premises of the unless owner has consented DeForte, 364, to the surveillance. Mancusi v. 392 Cf. U. S. 367- (1968). protects expecta- The Amendment Fourth reasonable privacy protect persons engaged tions of and does not from crime they the risk that those with whom will coop- associate or converse erate with the Government. v. United 385 U. S. Hoffa v—* oo o listening install police enter when

invaded entry is made they are when the house in his device tangible prop- search a warrantless undertake fruits surely employs the prosecution as erty; and the over- offers home when it illegal search of an it intro- does when conversations as it third-party heard homeowner, belonging not to the evidence tangible duces Katz, by holding we do believe that to others. Nor but and their protects persons Amendment the Fourth any of to withdraw conversations, was intended private Amendment extends protection which recognized existing doctrine, overrule the or to home Silverman, that conversations as well as since at least criminal trial when from the property are excludable illegal the fruits of an invasion they found to be Silverman, S., It was noted 365 U. of the home. 511-512, at a federal officer

“This never held that Court has physically may without warrant and without consent home, secretly a man’s office or entrench into there subsequent and relate at the man’s listen, observe criminal triai what was seen heard.” contrary. proceeded quite The to hold We Court same course here. take the

III. aspect pro- The these cases relates to the remaining resolving the District cedures be followed Court will be before the ultimate issue it—whether the any petitioner grew out of his illegally evidence conversations or conversations occurring overheard on his Wong Sun premises.12 question as stated in “ States, (1963), S. ‘whether, It in none of seems these cases were there introduced evidence, recordings, transcripts, or other of the actual conversations overheard electronic surveillance. primary illegality, of the

granting establishment the is made been objection instant has evidence which illegality by by exploitation come at of that or instead sufficiently distinguishable purged to be means ” Nardone See also v. United primary taint.’ 308 U. S. Government concedes that must disclose to records which are relevant

petitioners surveillance recognizes to the decision this ultimate issue. itAnd though that this disclosure must be made even attended danger potential reputation safety of third security or to parties the national the United —unless prefer States would dismissal the case to disclosure of the information. However, Government contends it need put not be to this option disclose-or-dismiss in the instant cases because none the information its “arguably obtained from surveillance is relevant” to petitioners’ convictions, in the sense that none arguably overheard conversations underlay any of the evidence offered in these Although cases. not now insist- ing that its own evaluation of relevance be accepted should automatically and judicial without scrutiny, urges States specified records conversa- tions be first submitted to trial judge in camera Any examination. record arguably found relevant judge would be turned petitioner over to the whose rights Fourth Amendment have been violated, and that petitioner then would have the opportunity to use the disclosed information in his attempt to show that Government has used tainted evidence to convict him. arguably Material not relevant would not be disclosed to any petitioner.13 even, though would This be true the material on its face con injury

tained no public threat of interest or national security, apparently because, view, in the very Government’s it would be distinguish difficult to between that which threatened especially proposal, a modest may appear Although “arguable” would be for disclosure the standard since records surveillance that we conclude relevance, to be object should has any petitioner which in camera being screened to him without over turned may much Admittedly, there be judge. by the trial ultimately an surveillance electronic learned from But winnow- evidence. nothing probative to contributes might have from those items which material ing this a against to the case contribution made a substantial wholly entrusted a should be is task which petitioner might It instance. otherwise the first to the court transcript the or other only place had to judge if the trial evidence alongside the the record record of surveillance textual or substantive similari- the two for compare and assignment enough would be difficult ties. Even that a good But deal judge perform to unaided. for the trial a apparently phrase, An innocent more is involved. appears to what to be a chance reference remark, identity or event, neutral or caller person other end of a telephone, individual even using may words speaking special manner of have to who more intimate significance one knows the facts yet life. information accused’s And that wholly meaning and devoid of colorless one less well all with relevant circumstances. acquainted Unavoid- is a matter ably, judgment, but our view the margin and complex, task too for error too great, wholly rely judgment on the camera of the trial identify might court to those records which con- have to the Government’s case.14 tributed explained below, not. As we think did similar difficulties inhere in distinguishing records which showing between are relevant to taint not. those which are and 14In volume of both the the material to be examined and the difficulty judgments complexity involved, and involving cases an illegal The United States concedes when search has come it has the light, per- ultimate burden of suasion to show that its evidence untainted. But at petitioners acknowledge they same time must go specific demonstrating forward with evidence taint. trial judge give must opportunity, however “[T]he closely confined, prove the accused to that a substan- tial portion of the case him was a fruit of the poisonous tree. This leaves ample opportunity to the Government to convince trial court its proof independent origin.” had an Nardone U. S. With this task ahead of them, hearings be more than formality petitioners entirely not left govern- reliance on ment testimony, there should be turned over to them the records of those overheard conversations which the Government not building was entitled use in its case against them.

Adversary proceedings major aspect are a of our system justice. of criminal Their superiority as a for means attaining justice in given case is nowhere more evident than in those cases, such as the ones at where bar, an must be issue decided on the basis of a large volume probably electronic surveillance will markedly differ from those procedures situations the criminal law where camera have been acceptable States, found to some extent. Dennis United 384 U. S. (1966) (disclosure grand jury subject minutes camera material”); deletion of States, “extraneous Palermo v. United (1959) (whether Act, U. S. the Jencks 18 U. S. C. § requires defense); disclosure of document to the Roviaro v. United (1957) (disclosure 353 U. S. 53 identity). of informant’s In Dennis the case ordinarily the Court noted judges that “[t]rial ought not be burdened with the or responsibility task the of examin ing grand jury voluminous testimony,” sometimes and that it is not “realistic to assume the judgment trial utility court’s as to the impeachment legitimate of material for other purposes, however conscientiously made, possibilities.” would exhaust the S.,U. at 874-875. many the consideration materials, and after

factual among exist interrelationships may which and subtle the need for records. As by these facts reflected the the complexity of increased adversary inquiry is consequent adjudication, presented issues for their parte of ex a means procedures inadequacy displacement of well-informed resolution, accurate justifiable. less advocacy becomes necessarily not eliminate all proceedings magically will Adversary substantially reduce its incidence will they but error, judge, the trial possibility against by guarding informa- unfamiliarity time or with the through lack materials, by the will be suggested in and tion contained scrutiny Amend- which Fourth provide unable It rule demands. exclusionary ment compel the Government will prospect of disclosure in deference to secu- national prosecutions dismiss some interests. But a choice rity third-party material concededly respect faces with Government admits, or and which it illegally it has obtained which find, arguably relevant judge would the defendant.15 evidence offered resolution will avoid exorbitant think this We judicial energy time and and will expenditure public others or the interest. It must prejudice unduly will be limited to the that disclosure be remembered own and of of a defendant’s conversations transcripts on his It place premises. safely can be took those which noted, require should would turnover of dissents, it impact security material, its arguably whatever national relevant agreement might there is the defendant’s To this extent be. illegally excluding of entitles in the fruits obtained evidence interest proposition, product of the surveillance. Given this basic him to the judgment in camera down to a whether the matter comes characteristically sufficiently inspection reliable when na would majority security issue, are On this interests at stake. tional part company. and the dissenters assumed that already know, much this he will disclosure should therefore involve a minimum hazard In addition, others. the trial should, court can and where place appropriate, defendant his counsel un- der enforceable orders against unwarranted disclosure of they may materials which inspect. be entitled to See Fed. Rule (e). expect Crim. Proc. We would not permit district courts to parties to take counsel these lightly. orders

None of this means any defendant will an have unlimited to rummage Depart- license in the files ment of Justice. Armed specified with the records overheard conversations and with to cross- appropriate examine the officials regard to the con- nection between those records and the case made against him, a defendant need or be entitled to nothing else. Whether this is the case not must be left discretion, good informed sense, and fairness of the trial See Nardone v. judge. 308 U. 338, S. (1939).16 341-342

IV. Accordingly, No. O. T. the motion of the United States is denied to the extent requests initial camera inspection of the fruits of unlawful

16The Justice, Douglas, Chief Justice Mr. Justice Mr. Brennan, join opinion and Mr. Justice White the entire addition, Court. In Mr. Justice Harlan and Mr. Justice Stewart join opinion standing codefendants, the extent that it denies coconspirators, and rights others whose Fourth Amendment have not been violated the electronic surveillance The four involved. joining opinion members of agree the Court the entire with the opinion recognizing object the householder’s to evi dence obtained from an unauthorized electronic surveillance his premises even where his own overheard; conversations Mr. Justice judgment Fortas concurs in the to this extent. Fi nally, Stewart, Mr. Justice in addition to the four members joining agrees Court opinion, entire with opinion. Part III of the of the withholding portions of those and the

surveillance to might deem irrelevant judge which the trial materials with Primarily of our decision because these convictions. and of however, judgment order respect standing, denying The order 29, 1968, are withdrawn. January petition The is set aside. writ of certiorari petitioners for is petition and certiorari rehearing granted, judg- and Alderman. to both Alderisio granted as for the Tenth Circuit Appeals the Court of ments of of judgments and the of the Court O. No. T. Third Circuit Nos. and for the Appeals the Dis- of the cases remanded to and each vacated, with consistent proceedings for further trict Court and findings, for a conclusions is, hearing, opinion, respect any peti- with question on the of whether (1) which violated was electronic surveillance tioner there (2) was rights, Amendment there such his Fourth on respect any the nature petitioner, with surveillance any to his of conversations relevance conviction through have overheard surveil- been lance. The District Court should confine the evidence which is material presented both sides to that petitioner’s of a question possible of the violation Fourth Amendment the content conversations rights, overheard surveillance which illegally violated those relevance of such rights and conversations to the petitioner’s subsequent conviction. The District Court will make on those findings questions may such fact light appropriate further evidence and of the If existing entire record. the District Court decides findings (1) the basis such there was electronic respect with to one or more petitioners surveillance but which violated the Fourth Amendment, although (2) that there was a surveillance in violation petitioners’ of one or more Fourth Amendment rights, the conviction such petitioner was not tainted will by obtained, the so enter new use evidence it existing on final of conviction based the record judgments by supplemented findings, thereby preserv- as its further ing parties all appro- affected seek further priate on appellate If, hand, review. the other the Dis- in proceedings trict Court concludes such further any petitioner’s there a violation of was Fourth Amend- rights ment petitioner and that conviction of the was violation, tainted such it would then become its duty to petitioner accord such a new trial.

Vacated and remanded. Douglas, Justice joining opinion while Mr. the Court, concurs in II opinion Part of Mr. Justice Fortas and would hold that the protection of the Fourth Amendment includes also those against whom the investigation is directed. Justice join Stewart. I Mr. Justice Harlan’s

Mr. separate opinion, except insofar it would authorize in camera in proceedings the Ivanov and Butenko cases. I apply would the same standards to all three cases now us, agreeing before to that with opinion extent the Court.

Mr. Justice Black dissents, adhering to his dissent in Katz v. United 389 U. S. 347, 364—374 (1967). Mr. Justice Marshall part took no in the considera- tion or decision of these cases. Justice

Mr. Harlan, in concurring part and dissenting in part. opinion

The Court’s careful is, I think, on constructed faulty premise, which substantially undermines validity of its ultimate conclusions. The majority con- problems major each of the two

fronts these cases as ways. only one of two solved can be they raise either traditional seems to assume Court doc- the traditional or that expanded is to be doctrine assumed that Again, is maintained. is to be trine judge to be made decision is either camera turn- be an automatic there case or that every I every believe, case. do of all conversations over open to us either range of choice however, that Court alternatives restricted to the two issue is third issues, there solution considers. On both view, satisfactorily more accommodate my in would, at competing interests stake.

I.

Standing. agreement I with the reasons am in substantial expand to the traditional given refusing has Court a Amendment chal standing permit doctrine to Fourth a a co- be raised either codefendant or lenge to not from we conspirator.1 But it does follow this that accept my suggestion to Brother Fortas’ that 1 I also am unable illegal can show that standing be accorded defendant who my against him. As Brother search or seizure was directed Fortas recognizes stopping position himself in short of an extreme rejects standing limitations, proper on a decision this issue all only standing may fact a rule cannot consider the broadened exclusionary marginally impact rule uncon add police Rather, one must stitutional conduct. also consider that my permits a Brother Fortas’ rule defendant invade the privacy partici of others to conversations in which did hear he pate. very Moreover, the rule would entail substantial administra majority imagine cases, tive difficulties. In the I would that the bug expectation may police plant produce a with the well large lengthy hearing would, then, number A leads to of crimes. necessary appear police in order to be to determine whether the activity bug knew of an accused’s criminal at the time was planted police plant bug and whether the decision to was moti- standing apply the traditional rules without further analysis. rules, majority The traditional cor rectly them, grant understands would with re in gard (1) conversations which the himself accused participated occurring all (2) conversations on the regardless accused’s “premises,” partici of whether he pated particular way. conversation in any As I hope show, the traditional rationale for this second granting standing the property owner —does not rule — involving fit a case infringement of conversational privacy. persuasive no other Moreover, rationale can be developed support of the property owner’s make a Fourth Amendment claim as to conversations in which he did not participate. himself Consequently, I that, would hold us, circumstances before stand ing only be granted actually should to those who par ticipated the conversation that has illegally been overheard.

A. very There simple why reason the traditional law standing permits premises the owner of the to exclude a tangible object illegally seized on property, his despite the fact that he does not own the particular object taken by police. the though Even he does not have title to object, the the of premises possession owner the is in of it—and we have held that a property of interest even less a predicate substance is sufficient for standing under the Fourth Amendment. Jones v. States, United 257 (1960).2 U. S. This simple rationale does not, how- vated an to obtain effort information the accused I some other individual. do not believe that this administrative justified any in degree by burden substantial hypothesized the marginal protection. increase in Fourth Amendment ante, suggests, 177, Court 10, The at n. I wrong that am finding grant standing that the traditional of property to the owner may properly grounded simple on be the fact of the owner’s domin- owner property to the standing justify granting

ever, absent The third-party conversations. regard with property a interest not have owner does property partici- he did not in a conversation sort beyond gone are spoken were words that pate. The recall.3 rule, traditional justify in order to the

Consequently, the owner majority, as does the argue, must one because the granted standing should premises the are “fruits” conversations third-party bugged property rights. of the owner’s infringement police’s necessarily not fit does theory, however, The “fruits” in vio- conversations private overhear police when the As Katz v. Amendment. of the Fourth lation holds, (1967), squarely U. S. 352-353 not privacy of one’s conversation does majority argues physical objects premises. his on over all ion object (say packet narcotics) though particular even warrant, may in a is not valid search nevertheless described police for the other find the narcotics their search seized this, says Court, It from evidence of crime. follows possessory property interest the seized householder’s standing. ignores argument But sufficient basis for fact standing to a Fourth Amendment that an accused have raise yet hypothe- merits. In the claim and lose case the Court possession sizes, the householder has because he has lost object formerly However, under his control. he on the loses police merits because the seizure was reasonable under circumstances. 3Thus, Court, quite easy distinguish I unlike find it belonging party “between the situation where a document to a third containing premises and his own words is from the seized of another party’s without a warrant the situation the third where words spoken Ante, overheard electronic surveillance.” at n. 11. While the absent owner can read the document when he home, returns to his he cannot summon back the words that were spoken case, personally his In the in absence. one the owner is police aggrieved action; case, in the other he is not. hinge on whether the Government has committed a trespass upon premises technical which con- States, Olmstead United took place. versations (1928), longer is no If in S. the law. fact there has been trespass upon no I do not premises, understand permits how traditional theory complain the owner to if a par- conversation is overheard in he did not which ticipate. Certainly the owner records suppress cannot of such on the ground they conversations the “fruits” of an prop- unconstitutional invasion of his rights. See Goldman v. erty 316 U. S. 135-136 true, It is that the re- course, theory “fruits” would quire police a different if the listening result used a device did physically trespass' upon prem- the accused’s depends ises. But the fact this theory completely on the presence only absence of a technical trespass serves show that the entire theoretical of stand- basis law must be ing reconsidered the area conversational Olmstead, For not privacy. we have buried far as so it dealt with substance Fourth Amendment rights, life only give Instead, new law of standing. reject property concepts we should traditional entirely, reinterpret standing law in the light the substan- Katz. principles developed tive Standing should who granted every person participates in a conversa- expects legitimately private tion he will remain it—for that Katz protects.4 persons is On such the other hand, property permitted owners should to assert a Fourth Amendment claim this area if we are to vitality whose respect principle, the Court has now that, person It seems clear under the Katz rationale, per sonally aggrieved only electronic surveillance not he when actually listening speaking but also when he is to the confidences of others. “the general which establishes reaffirmed, again

once rights personal rights Amendment rule that Fourth Ante, at not asserted.” vicariously . which . . per- does not property owners granting 174. For own privacy, intrusions their upon to vindicate mit them into defendants to intrude permits criminal simply but of private lives others. paradoxical following hypothetical suggests The I own Imagine that an office the Court’s rule. quality of Smith, of to use one permit mine, a friend and building Smith uses charge. of the vacant offices without Jones. private person, talk with a third office to have a me what had I ask friend tell Jones day, my The next replies I that given office had him. Smith said that what said private, was and was the conversation I your prop- Can it be that could business.” was “none the conversation occurred erly because aggrieved feel no if I reply It make sense were to my would property? you if infringed not “My privacy has been do to Smith: property!” I own the said, was It tell me what me that way telling other around —Smith precisely the they legiti- together, Jones talked had a when he and had remain their conversation would expectation mate property owner. from me secret, even I placed listening had suppose device Now given him. telling I had without the office Smith, I guilty out- anyone doubt would Could violation, privacy if I rageous Smith Jones had they to what said? It would then be ludi- listened my ground on the conduct that I, crous to defend after building. office owner case does all, was if I am differently accused of a not crime and stand hear the Smith-Jones demand the conversa- police had monitored. The Government tion the privacy violated of Smith Jones, doubtless has con- privacy but their would be violated further versation. also made available to me.5 were

In privacy, the field of conversational the Fourth See Katz protects persons, places. Amendment man S. And a only place can be in one one time. If the privacy at respected may engage his conversation is at that he place, all privacy those activities which that for is essential privacy is prerequisite. His not at all disturbed fact that other people places speak other cannot with- being out the fear of That pro- overheard. fact be disturbing foundly to the man whose privacy remains fact about other a people's intact. But remains privacy. permit a To criminal defendant complain to about such to permit intrusions is the vicarious assertion rights of Fourth Amendment which I step decline to —a property take in relation to for owners much the same reasons as those which have impelled deny the Court to standing coconspirators. to rejecting

In the “property” rule advanced I mean Court, suggest do not to that standing may never granted properly permit be the vicarious assertion rights. Fourth Amendment While arguable it is an individual should be permitted to raise a constitu- tional claim when the privacy of members of his family has been I not need reach violated, question on the facts of the cases before us. It be must noted, however, recognized that even if this Court pro- a man’s the privacy family test whenever of his was infringed, majority today lines the draws would still seem extremely arbitrary. prevailing Under “property” a rule, example, generally husband complain cannot say, This is of course, property not owner could not bring illegal a civil action listening to have the device removed from premises. simply He his could hear listening not what device recorded, if had none his own conversations had been overheard.

Oi inor talking at her office wife overhear his police if the States, supra, Katz cf. phone booth, a public her when the overhear complain police he can although surely the interest home. Yet husband’s talking at in all three worthy of respect privacy equally wife’s is his per- a protect extended standing If cases. should privacy, an individual family’s interest his son’s claim whenever to make a constitutional permitted has expectation privacy family member’s reasonable place privacy his infringed, regardless where been property emphasis invaded. the Court’s Indeed, was could mean as owner ownership husband, well to a complain is entitled particular property, as his could privacy, wife’s but that the wife violation of her hus- complain to the unlawful surveillance a sufficiently since she not have substantial band did in the on which the occurred. property interest intrusion contrast, stranger if a one’s perfect In overheard on I simply is established. In property, sum, a policy discern coherent behind the Court’s cannot property for interests solicitude area.

B. lengthy my The Court’s discussion loses position basic sight justification the narrower I have To my rule advanced. central recapitulate, is right to aim to show that privacy conversational property a a personal right, right. not It follows permits from this that the Court’s rule owners property vicariously personal rights assert to others. In- granting standing property deed, compromises owners privacy personal of others. response The Court’s seems to be the Fourth protects Amendment “houses” as well “persons.” as But simply private this is treat they conversations as tangible property. pieces were Since an individual goes, him wherever he carry possessions cannot his with a protects person’s the Fourth “house” so Amendment personal possessions kept that his out of the easy man reach. In must contrast, Government’s necessarily carry with his voice around and cannot him, leave it at home even if he When a man is wishes. not home, at he cannot converse there. There thus no his protect protect need to “house” in order to man’s right engage private Consequently, conversation. scope the Court has not increased the accused’s personal privacy by holding have police uncon- stitutionally by putting invaded his “house” a “bug” people there. Houses do not speak; only police do. have violated only privacy persons of those whose conversations are overheard. entirely

I if the however, police per- see a agree, tangible property son’s committing trespass, while their they may constitutionally knowledge use this either to obtain a search gain warrant or to a conviction. Since man has no choice but bulk to leave of his physical possessions in his the Fourth Amend- “house,” protect way ment must “house” in this else the his immunity personal of his possessions arbitrary from search not be Thus if could assured. an individual’s personal possessions to be protected all, they at must protected in house; his but a person’s private conver- protected possible sations are much as as is when he can complain conversation in which he personally participated. go To protect further and other conver- occurring property sations is simply give his complain householder the toas the Government’s treatment of others.

C. While the Court grants special standing rights to property owners, it refuses to reach the question whether employees, visitors, business social guests, other are also interests property with less substantial

persons ques Yet privileges. special standing entitled to on remand District Court presented tion will is will doubtless an case,6 and it Alderisio in the our on docket other cases now of the many sue in in the light for remand reconsideration we will which solution to this While a definitive today. our decision Court’s failure obviously premature, problem is on this any whatever guidance the lower courts give widespread judges trial in confusion as result point will be to divine the rationale attempt the land throughout today. Confusion rule established property hind the past which by our own decisions compounded will be decisively the notion that accused rejected have necessarily in the possessory prem have interest must may he assert a Fourth Amendment claim. ises before Jeffers, (1951); S. 48 Jones United States v. See DeForte, (1960); S. 257 Mancusi v. 362 U. simply But not do it will incor U. S. 364 standing developed law those in an porate the cases past us. For our problem effort to solve the before de police cisions situations which the involved search seeking against was directed individual invoke Here, question Amendment. however, Fourth hear is whether individual the conversations of for it at parties.7 If, example, develops third the hear petitioner Alderisio ing simply that had a bare ante, points out, Court n. As the at denies Government place property by that electronic surveillance took owned Rather, premises owned Alderisio. were either firms which employed Alderisio or “business associates.” thought necessary 7 I subsidiary have to deal with the question any petitioners of these challenge at alleged trial evidence them submitted to be a they bugged fruit participated. of a conversation agree I question should this is be left to the District Court hearing determination the first instance at the on remand. premises were bugged, remain on the business States, supra, v. United not surely Jones it could cf. argued been privacy infringed be that his had even though personally in he had not been involved conversations that had been overheard. The Court the at duty seems bound to least this much clear.8 make II. Proceedings.

In Camera I property While would hold owners have no right they hear in such to conversations were it to a participants, appears not me that at minimum the Court adopt suggested judi- should the Government’s screening procedure regard cial with third-party con- Property permitted versations. owners should private into intrude lives of others unless trial judge determines that the conversation at is at issue arguably pending least prosecution. relevant agree On the other I hand, typical would prosecution required should hand over case, the records of all conversations which the accused played part. parties Since the other to these conver- they talking they sations knew were accused, can hardly have an important concealing interest from him they what said to him. Whatever risk of unau- thorized disclosure is involved may generally be mini- mized even further appropriate issuance of protective orders. Fed. Rule Crim. (e). Proc. 16

There however, at least one class of is, cases which I apply. standard considerations do not refer to the exemplified Butenko, situations Ivanov and in which charged, defendant under one statute or another, justification “property” As the Court’s of its rule seems center exclusively protest on the of homeowners to intrusions into may their rights homes well be that of owners of business premises stringently should be limited. CO In contrast foreign power. spying

with important learn situation, here the accused typical to con- if is limited the turnover information even new For participant. example, was a which he in versations fact listening a device—a the location of may learn he significance espionage work. may in of crucial will to learn fact even he be entitled Moreover, subsequently a been issued though valid warrant has same location. electronic surveillance at the authorizing Similarly, may find out the United the accused foreign certain information that his has obtained States when secret, is still even our Gov- government believes in- information from an has also received this ernment way. in And he dependent source a constitutional in he reposing learn that those whom has been confidence in agents. fact American undercover important, more there is much less reason to Even protective order effectively believe that a court will deter in an case from over the espionage turning defendant to new information he has received those who are not case, For in an the defendant espionage entitled to it. grand jury found to likely is someone the has have passed foreign power. thing secrets a It is one the normal criminal defendant will refuse to believe that penalties on information threatened with pass severe quite It is for unauthorized disclosure. a different thing is probably believe that defendant who will spy power foreign pass additional informa- he tion has received. from apart the sense of fair play most

Moreover, safeguards could judges, additional be devised which in procedure camera would assure an would used presents when an unauthorized disclosure only a sub- to the national As in security. stantial risk the some- in analogous situation which the what Government attempts to invoke a national in security privilege action in civil order an camera trigger proceeding, there should “be a formal claim of privilege, lodged the head of the department which has control over the matter, personal after actual consideration that officer.” Reynolds, States 7-8 U. S. Indeed, I would even did go further than the Court Reynolds lay upon duty trial the affirmative judges of assuring security themselves that the national interests claimed justify camera proceeding are real and not merely colorable.

The Court’s special failure consider the character- istics of the Ivanov and Butenko particularly cases is surprising light gives creating reasons it an absolute rule in favor an automatic turnover. For the majority preference properly recognizes that its for full adversary justified cannot be hearing by an reference to easy an absolute in principle condemning camera judicial in decisions all situations. Indeed, this Court has of expressly procedures authorized the use such in closely related areas involving the vindication of Fourth Amendment rights. See Roviaro v. United Illinois, 353 U. S. 53 (1957); McCray v. 386 U. S. If, 309-313 Court rightly states, the an in propriety of camera screening procedure ais “matter ante, at judgment,” of 182, depending on an informed consideration all I competing factors, do not under- why judge stand the trial should authorized to consider whether the accused simply cannot be trusted keep the Government’s records confidential. Nor do I why understand the Government must be confronted the choice of dismissing with indictment disclosing because the the information accused cannot be counted keep Moreover, on faith with Court.9 it is not not, however, go my would so far as Fortas, 9 I Brother who an in camera require appear proceeding would in in case prejudicial which the Government claims that turnover would be security. I special procedure believe that to the national is of unau- danger in which the cases imagine difficult to would information important disclosure thorized be made may error risk clearly outweigh particular con- determining whether judge the trial prosecu- pending relevant arguably is versation the number example, be, well for It tion. though the very Yet small. at issue is conversations adversary “the need for recognizes that itself Court pre- complexity the. issues by the is increased inquiry ante, 184, it nevertheless leaves at adjudication,” sented judge that the trial decision for an informed no room given of a case is insubstan- on the facts risk error is there espionage small, number of cases tial. Since the made decisions will be these chance whatever no they subjected will not be or that in a hurried fashion scrutiny searching appeal. course, Of most arguably should found rele- any of the conversations required should be before the their disclosure vant, prosecution permitted continue. require I the Government to turn over sum,

In would only and Alderisio the records of those con- to Alderman I which each defendant participated, and versations way open preliminary for a in camera would leave the Ivanov Butenko screening procedure cases. Fortas, concurring part dissenting Mr. Justice in part.

I. holds present cases, (1) In the Court that the Gov- may ernment use evidence it obtains unlawful elec- against any defendant who tronic surveillance does not “standing” complain; (2) have to that a has defendant only party if he standing was overheard conver- justified only when the accused has been espionage indicted his passed activities, indicating probably that he has records foreign power. place premises”;1 (3) sation or it took on “his and that illegally all obtained surveillance records as which a security defendant has national (including information) must submitted to the defendant or subject his counsel, appropriate protective orders, their relevance to the defendant's trial must be deter- mined in adversary proceedings. defendant suppression entitled to from exclusion his trial such obtained information and illegally its fruits. necessary

I find it to file separate opinion this because I (1) person concerning believe that a whom investi- illegal gation involving electronic surveillance has been as the conducted, persons given “standing” well majority opinion, has to suppression illegally (2) obtained material and fruits; its that permissible it is for the trial subject judge, suitable specifications, to order that information vital to na- security tional shall only-in be examined camera to deter- mine its relevance or materiality, although agree I all other information that subject aof motion suppress must be shown to the defendant or his coun- sel so that its materiality can be determined in an adversary hearing.

II. The effect of the Court’s decision, bluntly acknowl- is to add edged, long another list cases in which the courts governmental have tolerated conduct violates the Fourth Amendment. The have done courts legalism resort to the of “standing.” g., See, e. Goldstein States, v. United 316 U. S. (1942); Wong Sun States, v. United 371 U. S. 471 (1963). Cf., Jeffers, United States v. 342 U. 48 (1951); S. Jones S. 257 (1960); DeForte, Mancusi v. 392 U. S. 364 scope 1 The Court leaves the of the interest the defendant “premises”

must have in the to be determined in litigation. future 202 of our constitutional principle

It is a fundamental individual, is bound like the government, that scheme prin- to the totalitarian We do not the law. subscribe may that law, Government is the it ciple As law of the lawbreaker. disregard pursuit even Ohio, 659 643, v. 367 U. S. Mapp said this Court destroy government more “Nothing quickly can (1961), its own dis- laws, worse, failure to observe its than its 2 of its own existence.” regard of the charter our prohibits Constitution Fourth Amendment interference with the fun- governmental “unreasonable” liberty: facet of individual damental “[t]he people persons, houses, papers, to be secure their Jackson the central recognized effects.” Mr. Justice of the Amendment in his importance dissenting Fourth Brinegar States, opinion in 338 U. S. ISO- 160, v. (1949): 181 deprivations of none is so

“Among rights, effective cowing population, crushing spirit of the 2 point years more Mr. Justice Brandeis elaborated than 40 ago: government government laws,

“In a existence of will be scrupulously. imperilled the law Our if it fails observe Govern- good potent, omnipresent ill, For ment teacher. or for people example. contagious. it whole its Crime is teaches the contempt lawbreaker, If the becomes a it breeds Government law; every himself; to become a unto invites man law it invites anarchy. declare in the To administration criminal law justifies the end declare means —to Government private commit in order to secure the conviction of a crimes crim- bring terrible retribution. . inal —would . .” Olmstead v. United States, 438, (1928) (dissenting opinion). 485 277 U. S. States, Terry 206, (1960); Elkins v. United 222 also U. S.

See (1968); Ohio, 1, Goldstein v. United 392 U. S. 316 U. S. (dissenting opinion); California, (1942) Irvine v. S.U. (1954) (Douglas, J., dissenting); Comment, 128, 149 The Benanti Wiretap Rule, and the Exclusionary Case: State Evidence Federal 57 Col. 1167-1168 L. Rev. every putting terror heart. Un-

individual and is one of the and controlled search and seizure first every weapons most arsenal of arbi- effective trary government. only briefly one need And among people possessed have dwelt and worked a admirable many qualities deprived but of these rights personality to know that the human deterio- dignity rates and and disappear self-reliance where persons possessions and homes, subject at hour police.” to unheralded search and by seizure policeman, It is when an individual disquieting through or in ignorance response pressure carelessness of events, person a seizes conducts a search without compliance prescribed with the It is standards law. disturbing even more en- when law enforcement officers gage unconstitutional not conduct because their pursuant individual error but to a calculated institutional policy directive.

Surreptitious electronic surveillance —the “uninvited my ear” as Brother calls it—is “search White seizure” within ambit of the Fourth Amendment. States, Silverman v. United (1961); 365 U. S. 511 505, States, Katz United v. 389 347, U. S. It is usually the product calculated, official decision rather the error of agent than an individual of the state. And because nature unlawful hidden, electronic sur- veillance more society is even offensive to free than the tangible search and seizure of unlawful material. recognition In of the principle that on the lawlessness part of the Government must stoutly this condemned, has ruled that when such Court lawless conduct occurs, may profit the Government from its fruits. Weeks v. States, 232 U. 383 (1914), S. held that a federal prosecution the Government not use evidence se- through illegal search cured and seizure. In Mapp v. Ohio, supra, exclusionary rule was applied to the recognized expressly case, the Court In that

States. unlawfully use seized only proscription the constitutional properly implement material could remedies were acknowledged It that other prohibition. Id., at 651-653. See also sanctions. not effective States, Cali Irvine v. supra, 393; at Weeks v. United Colorado, 338 (1954); v. fornia, 128, 347 U. S. Wolf People (1949) opinion); 25, (dissenting 41-47 U. S. Cohan, (1955). As 2d 2d 905 44 Cal. P. 64-65 in Walder v. United S. said Court Fourth violate the “The Government cannot (1954), of such unlawful . . and use the fruits Amendment . methods . . . to secure a conviction. conduct [T]hese of them outlawed, by obtained means are convictions kind encourage the of invalidated, they because 3 is obnoxious to free men.” society that charge are many commentators But reasons judicial prudence convenience and than related more to except courts of all constitutional States principles, including system, and of the California4 federal by in have allowed evidence material obtained Court, agents acknowledged in violation of the police direct They have allowed this evidence Fourth Amendment. who except those where a defendant moves for cases material can suppression personal show that his by the right privacy was violated unlawful search or persons suppress This restriction on who can seizure. illegally acquired evidence been has attributed some

3 pointed ruling admitting We out last Term that evidence in “[a] necessary legitimizing . a criminal trial . . has the effect of the procured evidence, application conduct which the an while of the Terry exclusionary imprimatur." rule withholds constitutional Ohio, supra, California, Irvine v. supra, 2, n. at 13. See 2, n. v. (dissenting opinion). 150 at 4 People Martin, 755, 45 (1955). See Cal. 2d 290 2d 855 P. right the constitutional commentators5 to the fact that part suppress was at one time considered to stem privilege against self- from the Fifth Amendment’s has Only right whose been person incrimination.6 privilege. claim protection can violated (McNaughton rev. Wigmore, J. Evidence §§ from the 1961). exclusionary rule follows But itself, confining Fourth Amendment there is no basis for persons has privacy its invocation whose been illegal Amendment, violated Fourth search. unlike is Fifth, guarantee couched in terms the Government will not searches engage unreasonable It is a general prohibition, and seizures. a fundamental part of compact, the constitutional observance persons.7 which is of all Accord essential welfare commentators that the ingly, urged necessary impli have cation of Fourth Amendment defendant illegally whom acquired offered, evidence

5Breeder, Wong Study Sun v. States: A Faith and Hope, 483, 539, (1963); Comment, L. 42 Neb. Rev. Fruit of the Criteria, Plea for Poisonous Tree —A Relevant Pa. L. Rev. 1140-1141 Others have attributed exclusionary requirement simply hostility to a rule on towards part See, g., Edwards, Standing Suppress courts. to e. Unreasonably (1952). Evidence, Nw. U. L. Seized 47 Rev. 471 6 Ohio, Mapp (1961), My v. 367 U. S. 643 was a 5-to-4 decision. only Brother Black concurred basis that Fifth Amend self-incrimination, against operating conjunction ment’s ban with Amendment, required exclusionary the Fourth rule. See also California, (1963); 23, Malloy Hogan, Ker v. 374 U. S. 30 378 v. (1964). 1, U. S. 8 7 Supreme recognized The California Court has is not that it incon may object person against that sistent to hold to the use him illegal or seizure, evidence obtained an search while at allowing only person same time has who been made to incriminate suppress People his Compare himself to confession and its fruits. v. Martin, supra, 4, People Varnum, with 808, n. 66 2d 427 Cal. P. 2d (1967). 772

206 to his in violation of it was obtained or not

whether con- It is also excluded. have the evidence privacy, may to the observance means secure only is the tended that this Amendment.8 the Fourth The appealing. cogent and arguments I find these merely accorded privilege Amendment Fourth It lawlessly invaded. been whose domain has to him but privacy, not to personal right, the individual grants pro- means of only utilize lawful to state insist And it is an assurance all against him. ceeding powers formidable exercise its the Government will of law. only subject to the rule investigate and to arrest States, supra, (dissenting at 181 Brinegar v. United See opinion). prevent regardless “standing,” anyone, allow

To of evidence that the Government him the use however, contrary lawlessly would, obtained has Jones v. stemming from of decisions a number States, States, Wong supra; Sun v. United supra. g.,E. App. 188, 130 D. 399 F. v. United U. S. C. Parman . something of Jones It is the mandate (1968) 2d 559 of any citizen in generalized gov- than the interest more 8 Amendment, Circumventing Grant, generally the Fourth See Allen, (1941); 359, 368 Wolf Case: Search 14 Cal. L. Rev. So. Liberties, 1, 22 Seizure, Federalism, Civil Ill. L. Rev. and the and Contemporaneous (1950); Kamisar, Illegal or Seizures and Searches Dialogue Neglected Incriminating A on a Area of Crim Statements: Mapp Traynor, Procedure, 78, Ill. L. F. 105. v. Ohio U. inal 335; Broeder, Fifty States, 319, Large in Duke L. J. at supra, 5, 540; Pitler, “The Fruit of the Poisonous Tree” at n. Shepardized, 579, 649-650, 56 Calif. L. Rev. n. 352 Revisited and Seizure, Comment, Illegal and (1968); Judicial Control of Search (1948); Note, Standing Object to an Un 58 Yale L. J. 488; Comment, Seizure, U. 1965 Wash. L. lawful Search Q. Object Seizure, Standing to Unreasonable Search supra, Edwards, 472; see n. Chi. L. Rev. 342 But at Standing Object Seizure, Field of Search and Ariz. Weeks, (1964); Comment, Mich. L. Rev. L. Rev.

ernmental obedience to suppres- law required sion of unlawfully obtained evidence. But if the Court is prepared to repudiate Jones, stated in holding, something suppres- more must be shown compel sion than claim prejudice a of based on “the only use gathered of consequence evidence as a of a search or seizure directed else,” at someone 362 U. at it S., should at least follow Jones faithfully completely.

Jones represented step imple- full substantial towards mentation of the Fourth The Amendment. case involved charge illegal possession narcotics, and held presence premises that mere lawful on the gave searched “standing” challenge legality of the search.9 It rejected the view held “generally” appeals courts of “that the movant claim either have owned [must] possessed or property seized or to have had sub- possessory stantial in the premises interest searched” in order have suppressed. the seized property Ibid. rejected It explicitly property concepts use determine necessary whether movant had the “inter- est” to obtain “standing” exclusion the unlawfully id., seized evidence. at 266. See Jones, Court said a passage majority scope but full quotes of which incorporate it does not in its opinion:

“In order to qualify 'person as a aggrieved by an search and unlawful seizure’ one must have been a of a victim search one seizure, whom the directed, was search as distinguished from one who prejudice only through claims the use of evidence gathered aas consequence a search or seizure at directed someone . else. . . 9 I today the Court assume incorporate intends to at least holding of Jones.

this direct

208 of proper require to

“Ordinarily, then, entirely is of a search challenge legality to the seeks one who evidence that he relevant suppressing for as the basis disputed that he allegation if be and the allege, of an the victim he himself was establish, that Id., (Emphasis supplied.) privacy.” of invasion at 261. light of read in qúotation, my that position

It is concepts, requires that property of rejection the Court’s may object of those who category the within we include whom illegal against evidence “one of the introduction to surely is “the person was directed.” Such the search privacy”10 ag- a “person invasion of victim of an Safe of the Omnibus Crime Control and Streets Act Title III of provides 90-351, 82 Stat. a law enforce 1968, Pub. L. interception seeking prior judicial of officer authorization ment among include, things, in oral shall other wire or communications complete of application “a full and to court statement his justify upon by applicant, relied his and circumstances facts (i) issued, including as to the order should be details belief an particular been, being, to be that has about com offense description (ii) particular of location mitted, the nature and of place the communication is from which or where the facilities (iii) description type intercepted, particular of to be com (iv) identity sought intercepted, person, munications to be committing known, whose communications are to the offense and (18 (1) (b) intercepted . .” S. C. . . 82 Stat. U. § (1964 ed., IV)). applications Supp. of such should Examination deciding particular investigation at whom a was facilitate the task Berger York, (1967), v. New S. 55-59 directed. See also precon requires, we that the Fourth Amendment as a in which held judicial eavesdrop, authorization that the conversations dition particularity. sought with to be seized described provisions Although I have referred relevant of the Omnibus Act, Streets I note that I not Crime Control Safe have con- constitutionality Act, sidered the as that issue is not involved express agreement disagreement I neither nor in this case. with majority’s concerning the statements Act. though property that was even it is his grieved,” I recognized As think the Court searched seized. Jones, upon property concepts, unless we are to insist him enough give “standing” object it is government agents conducted their unlawful search and seizure in order to obtain evidence use him. rights The Government violates his when it seeks liberty by him deprive unlawfully seizing of his evidence investigation in the course an of him and using him at trial. See Rosencranz v. United (C. 334 F. 1964) (concurring 2d A. 1st Cir. opinion).

III. I agree do not with the Court’s decision that sensitive security national material may that not be relevant to prosecution defendant’s must be turned to over the defendant or his By counsel their scrutiny. the term security “national I mean to material,” rigid refer to a and limited category. It would not material include relating except activities those specifically directed to acts of sabotage, espionage, aggression by or on foreign behalf of states.

Because the Court believes that no distinction can be respect made with right defendant’s suppress relevant evidence the basis of the sensitivity of the it has material, concluded that no distinction can be made to the method of determining whether material is I agree relevant. that an camera inspec- tion of the of unlawful records surveillance should not be the usual method of determining agree relevance. I with all says that Court about the inadequacy inspection which the defendant participate cannot places and the burden that it upon the trial judge. But in cases where the trial court explicitly determines, findings, written sealed and available for examination substantially would courts, that disclosure reviewing I do think that security not interests, national injure necessary in order for the is to the defendant disclosure trial The prosecution. with proceed Government findings only Attorney when the make such should judge specific portions of certified that personally has General that materials so sensitive unlawfully obtained when such a certi- not be disclosed. But they should judge may I the trial made, believe fication clearly material that he deems out the himself weed balance, of course, immaterial. must irrelevant counsel, defendant his unless over to the be turned prosecution. chooses instead dismiss Government sup- emphasize me defendant’s Let charge espionage, whether is the same sabo- press crime: material or another kind of Relevant tage, suppressed if the defend- illegally has been seized illegal standing, ant has but existence nonrelevant prosecution. Only prevent evidence will determining lawlessly the relevance method vary prosecution to the would obtained material accord- security the national ing to whether involved. majority possibility I with that error in agree greater determining only relevance is there much camera my agree But I also with examination. Brother may pose Harlan that disclosure of some the material I danger a serious national interest. therefore may reach conclusion that a differentiation properly of handling be made between the method materials endanger of which would disclosure national security illegally Skepticism other obtained materials. as to ability to detect and over court’s turn to the defend- may ant all relevant material well founded, but camera inspection clearly does not so threaten deprive of their rights defendants constitutional justifies endangering security. national I Accordingly, would Attorney hold after certification General specific portions unlawfully obtained materials judge may are sensitive, the trial find that their dis- closure to the defendant or counsel would his substan- tially injure security national interests, and he arguably determine camera whether the materials are prosecution. relevant defendant’s

Case Details

Case Name: Alderman v. United States

Court Name: Supreme Court of the United States

Date Published: Mar 24, 1969

Citation: 394 U.S. 165

Docket Number: 133

Court Abbreviation: SCOTUS