LEWIS v. UNITED STATES.
No. 36.
Supreme Court of the United States
Argued October 17, 1966.--Decided December 12, 1966.
385 U.S. 206
Ralph S. Spritzer argued the cause for the United States. With him on the brief were Solicitor General Marshall, Assistant Attorney General Vinson, Nathan Lewin, Beatrice Rosenberg and Sidney M. Glazer.
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
The question for resolution here is whether the Fourth Amendment was violated when a federal narcotics agent,
On December 3, 1964, Edward Cass, an undercover federal narcotics agent, telephoned petitioner‘s home to inquire about the possibility of purchasing marihuana. Cass, who previously had not met or dealt with petitioner, falsely identified himself as one “Jimmy the Pollack [sic]” and stated that a mutual friend had told him petitioner might be able to supply marihuana. In response, petitioner said, “Yes. I believe, Jimmy, I can take cаre of you,” and then directed Cass to his home where, it was indicated, a sale of marihuana would occur. Cass drove to petitioner‘s home, knocked on the door, identified himself as “Jim,” and was admitted. After discussing the possibility of regular future dealings at a disсounted price, petitioner led Cass to a package located on the front porch of his home. Cass gave petitioner $50, took the package, and left the premises. The package contained five bags of marihuanа.1 On December 17, 1964, a similar transaction took place, beginning with a phone conversation in which Cass identified himself as “Jimmy the Pollack” and ending with an invited visit by Cass to petitioner‘s home where a second sale of marihuana occurred. Once agаin, Cass paid petitioner
Petitioner was arrested on April 27, 1965, and charged by a two-count indictment with violations of the narcotics laws relating to transfers of marihuana.
Petitioner does not argue that he was entrapped, as he could not on the facts of this case;3 nor does he contend that a search of his home was made or that anything other than the purchased narcotics was taken away. His only contentions are that, in the absence of a warrant, any official intrusion upon the privacy of a home constitutes a Fourth Amendment violatiоn and that the fact the suspect invited the intrusion cannot be held a waiver when the invitation was induced by fraud and deception.
Both petitioner and the Government recognize the necessity for some undercover police activity and both сoncede that the particular circumstances of each case govern the admissibility of evidence obtained by stratagem or deception.4 Indeed, it has long been acknowl-
Petitioner argues that the Government overstеpped the constitutional bounds in this case and places principal reliance on Gouled v. United States, 255 U. S. 298 (1921). But a short statement of that case will demonstrate how misplaced his reliance is. There, a business acquaintance of the petitioner, acting under orders of federal officers, obtained entry into the petitioner‘s office by falsely representing that he intended only to pay a social visit. In the petitioner‘s absence, however, the
In the instant case, on the other hand, the petitioner invited the undercover agent to his home for the specific purpose of executing a felonious sale of narcotics. Petitioner‘s only concern was whеther the agent was a willing purchaser who could pay the agreed price. Indeed, in order to convince the agent that his patronage at petitioner‘s home was desired, petitioner told him that, if he became a regular customer there, he would in the future receive an extra bag of marihuana at no additional cost; and in fact petitioner did hand over an extra bag at a second sale which was consummated at the same place and in precisely the same mаnner. During neither of his visits to petitioner‘s home did the agent see, hear, or take anything that was not contemplated, and in fact intended, by petitioner as a necessary part of his illegal business. Were we to hold the deceptions of the agent in this сase constitutionally prohibited, we would come near to a rule that the use of undercover agents in any manner is virtually unconstitutional per se. Such a rule would, for example, severely hamper the Government in ferreting out those organized criminal activities that are characterized by covert dealings with victims who either cannot or do not protest.6 A prime example is provided by the narcotics traffic.
Finally, petitioner also relies on Rios v. United States, 364 U. S. 253 (1960); Jones v. United States, 362 U. S. 257 (1960); McDonald v. United States, 335 U. S. 451 (1948); and Johnson v. United States, 333 U. S. 10 (1948). But those cases all dealt with the exclusion of evidence that had been forcibly seized against the suspects’ desires and without the authorization conferred by search warrants. A reading of them will readily demonstrate that they are inapposite to the facts of this case;
“In short, this case involves the exercise of no governmental power to intrude upon protected premises; the visitor was invited and willingly admitted by the suspect. It concerns no design on the part of a government agent to observe or hear what was happening in the privacy of a home; the suspect chose the location where the transaction took place. It presents no question of the invasion of the privacy of a dwelling; the only statements repeated were those that were willingly made to the agent and the only things taken were the packets of marihuana voluntarily transferred to him. The pretense resulted in no breach of privacy; it merely encouraged the suspect to say things which he was willing and anxious to say to anyone who would be interested in purchаsing marihuana.”
Further elaboration is not necessary. The judgment is
Affirmed.
[For opinion of DOUGLAS, J., dissenting, see post, p. 340.]
MR. JUSTICE BRENNAN, with whom MR. JUSTICE FORTAS joins, concurring.
While I concur in the Court‘s judgment, I vote to affirm solely on the reasoning on which the Court ulti-
The Fourth Amendment protects against governmental intrusion upon “the sanctity of a man‘s home and the privacies of life.” Boyd v. United States, 116 U. S. 616, 630. However, the occupant can break the seal of sanctity and waive his right to privaсy in the premises. Plainly he does this to the extent that he opens his home to the transaction of business and invites anyone willing to enter to come in to trade with him. When his customer turns out to be a government agent, the seller cannot, then, complain that his рrivacy has been invaded so long as the agent does no more than buy his wares. Thus the corner grocery with the living quarters in the rear would not be protected with respect to the area set aside for the purchase of groceries, although thе living quarters to which shoppers are not privy retain the constitutional immunity. Cf. Wong Sun v. United States, 371 U. S. 471.
The petitioner in this case opened his apartment for the conduct of a business, the sale of narcotics; the agent, in the same manner as any private person, entered the premises for the very purpose contemplated by the occupant and took nothing away except what would be taken away by any willing purchaser. There was therefore no intrusion upon the “sanctity” of petitioner‘s homе or the “privacies of life.”