*1 STATES. v. UNITED LOPEZ January 1963. Argued No. 27, 1963. May Decided *2 Edward J. argued Davis the cause for petitioner.. With him on the brief was Gerald F. Muldoon.
Louis F. argued Claiborne the cause for the United States. With him on the brief were Cox; Solicitor General Assistant Attorney Miller, General Beatrice Rosenberg and Jerome M. Feit.
Mr. Justice Harlan delivered opinion Court.
The petitioner, German S. Lopez, was tried in a federal court on a four-count indictment him charging with at- tempted bribery an Internal Agent, Revenue Roger S. Davis, in violation of 18 U. S. § C. 201.1 The questions
1 18 provides: U. C. §201 promises, offers, “Whoever gives any or money thing or of value ... ány employee officer or person acting or for or on behalf of the States, any United department or agency or thereof, any official function . . . with intent to influence his decision any or action on question,' matter, cause, proceeding or may any which- at time be pending, may or which brought law be before him in his official capacity, or in place profit, trust or or intent to influence him to commit or aid in committing, or to in, collude allow, any .or fraud, or make.opportunity for the any commission of fraud, or to induce him to do or omit to do act violation of his duty, lawful shall be fined not more than three times money amount of such or thing value such imprisoned more years, than three or both.”. before us for review (1) are:' whether the trial court’s treatment “entrapment” constituted error; reversible and (2) whether Davis’ testimony relating to a conversa- tion with petitioner on October 1961, which formed three, counts, the basis of the of the indictment on which petitiofier was convicted, and wire recording of that properly were admitted into evidence. conversation^ The evidence at the trial related to three meetings Lopez, between and Davis that place took at Clauson’s Inn, situated at North Falmouth, Massachusetts, and operated by Lopez under a lease. Davis, who was inves- tigating possible evasion of excise taxes the area, first visited the Inn on the August afternoon of 31,1961, when he asked.Lopez whether there any. dancing, singing, or other entertainment in the evenings and showed him *3 an advertisement for the Inn which stated that there was. Lopez said there was no entertainment and denied re- for sponsibility the advertisement. Davis returned again that evening and saw dancing in bar the and lounge. He described the Inn in a report to his superior the next day as a “potential delinquent” and said that he would “follow up.”
Davis next returned to the on Inn October 21, when he again saw dancing in the bar and lounge, and" spoke (cid:127) with Lopez. Davis’ testimony about this meeting may
be summarized as Early in discussion, Davis follows:. the. told Lopez that he thought the establishment would be liable for a cabaret tax and asked to see the books, but Lopez resisted and suggested they continue the con- his,office. versation in Once there, Lopez suggested that he would like to avoid all “aggravation” and to reach an'- “agreement.” After Davis said he could not drop the matter and would return the following' week; Lopez said he didn’t wish to “insult” Davis and that he didn’t know Receiving “confidence.” his him into to take
whether saying: desk on money some Lopez put reply, the Buy your $200. Here’s case. this drop “You can at money you for more I’ll have And a present. wife Iall have This is now.” time. Christmas money the take him to urged Lopez and balked, Davis my “as a weekend family for and his wife bring to and the extent as to questioning Following some guest.” Davis esti- of which course during the business, Lopez’ added Lopez $3,000, running to tax as year’s mated he stating that desk, money on the to $220 another past years for returns to be bothered want did return, quarter. More current file would but finally Davis followed part Lopez’ importunities he again said Lopez left, Davis Before money. took Davis asked quarter and current for the a return file .would back, on October come 21, ad- of October the events his version Lopez, in money was but said $420 to Davis giving mitted and- returns prepare his have Davis effort in an given Lopez’ testi- According order. proper his books get from file returns he would he told Davis mony, changed Inn had on that date on, since October one entertainment. policy its meeting ato Davis-reported leaving Inn, After the $420 turned over superior and to agent (cid:127)fellow morning of October Inspector. On Regional ato in- who Inspectors, *4 Revenue four Internal met with he to Lopez, “pre- with keep appointment him to structed draw the scheme,” and along play tend 21. Davis meeting of October back to conversation devices, pocket with two electronic equipped then transmitter, subsequently failed (which battery-operated recorded which recorder, wiré work) pocket meeting at their Lopez Davis conversation between. day. later
According to recording of that conversation, Davis suggested they talk Lopez’ office once and, inside the office, Davis explain started to the excise tax form and to discuss the return. Before any computations were made, Lopez said he had never thought he needed to file a cabaret tax return, and the conversation then continued: . .
“Lopez: . Whatever we decide do from here on I’d you like to be on my side and visit with me. Deduct anything you think you should and I’ll be happy to . . . you because may prevent something coming up in the office. If you think I should be advised about it let me know. Pick up the phone. I can meet you in town or anywhere you want. For your information the night other I to . . . have Well,
“Davis: you know got I’ve a job to do. Yes, “Lopez: and Uncle bigger Sam'is than you and I are and we pay lot of taxes, and if we can benefit something by it individually, let’s keep it that way and me believe anything that transpires between you and I, not even my wife or my accountant or anybody is of it. So I aware want you to feel that way about it.” The two then discussed receipts and potential tax liability for 1959-1961, and Lopez protested that Davis’ estimates were very high, although he did not deny the fact' of liability. After Davis said, “I don’t get want to greedy or anything,” Lopez gave him $200 and later in the conversation told Davis he could bring his family weekend, down for a free and should in every “[c]ome so often and I’ll give you a couple of hundred every dollars time you come in.” At one point, Lopez said “Now if you should suggest that T file should returns from this point on, I’ll do it. If you suggest that I can get by
2There have been no omissions from this passage. The indicated appear elisions original record. *5 and every so often drop just doing it, then
without Davis given he had that confirmed Lopez . .” also I’ll . on October $420 accuracy the question not did testimony, in his
Lopez, the little 'more about fact said and in recording the of into goné had Davis that 24 than meeting of October emotionally become (Lopez) had and that he figures lot of for not there “was that Davis he felt because upset 21st.” He fpr on October in there he came that purpose any him to induced offer Davis had suggest not did bribes. indictment ensuing counts first of the four
The gave 21, Lopez of meeting October at the charged that among other Davis, to induce with intent $420 Davis the examination making an from things, “to refrain at the receipts” and relating to'sales and records books re- remaining three counts The from 1959-1961.3 Inn three charged and meeting of October to the lated fpr purpose each attempted bribery, separate acts receipts, concealing sales, aid in influencing Davis years for the 1959-1961. tax due and cabaret (Count 2), $200 to Davis giving acts were month following $200 the an additional promise Davis of a weekend promise free (Count 3), and the 4). family (Count and his to suppress a motion trial, filed petitioner
Prior conversa- recording the October the wire evidence mo- hearing, this and Davis. After Lopez tion between was renewed trial, At motion tion was denied. received evidence. recording was again denied, Davis Agent testimony to the object did Petitioner relating to the October conversation. money given Davis charged to induce 1 also Count business computing tax on . . . . a cabaret
“to refrain . . from [the Revenue Inn], reporting same to the Internal and from Service.”
In his charge to the jury, trial judge emphasized the presumption of innocence and the on the Gov- burden *6 ernment to establish “every essential element” of the crime beyond a reasonable doubt. He then detailed what these essential were and particjulár called .element's atten- tion to the contrast between the specific intent charged in Count 1—to prevent an examination of books and records —and the more general-intent charged the other three counts —to liability conceal for the tax in question. He strongly suggested -that specific intent alleged in Count 1 had beyond not been established a reasonable doubt.
Although defense counsel had briefly adverted to the possibility of “entrapment” in'his summation to the jury, he did not request jüdgment of acquittal on ground. that Nor did request he any instruction on point- or offer at the trial evidence particularly aimed at such a defense. Nevertheless, the trial judge charge ,on did. entrapment.4 (cid:127)' Petitioner made no objection to this or instruction, to any'other aspect of the charge. 4 “Now law with respect entrapment government if this: agent by improper means or persuasion over-bearing or wrongful conduct person induces a ordinary of firmness to commit a crime
which he would not commit, otherwise under those then circumstances ‘ the defendant is to acquitted, not because he did not do something wrongful but because he was induced to do wrongful act which he would not otherwise have done. “Now say needless to types in all of law enforcement, particularly respect with to matters involving types certain of regulatory statutes, it is often government difficult for the get evidence, government and agents may properly,- and without violating law, duty, their take steps such as make possible procure evidence even though steps such involve their own participation, provided partici- their pation is not a temptation deliberate to men ordinary firmness, provided they do not cause a crime to be committed someone who does not have disposition a criminal to commit that crime. “The proof burden of respect to entrapment is on the defend- you ant. And yourself are to ask. whether in .fact on the evidence petitioner found and On Count acquitted jury The (cid:127) not- judgment A motion and 2, on Counts
guilty evi- on the of law a matter “as verdict withstanding ato was sentenced petitioner denied, dence” year. for one imprisonment term conviction affirmance curiam Following per 2dF. Circuit, First for the Appeals the Court two consider certiorari, 371 U. granted we Supra, opinion. this the outset at stated questions 428-429. pp.
I. purpose, meaning, its entrapment, defense this divided sharply that have problems are application, v. United Sorrells See occasions. on past Court *7 369; States, 356 S.U. v. 435; Sherman 287 U. in the Whether S. 386. U. Masciale United for the defense is showing the conclusive of a absence controlling standard the and whether jury, or the court also Government, or the conduct only to looks are defendant, predisposition the account into takes not, We need mooted. been that have issues among the questions any of these with ourselves however, concern claim' belated petitioner’s any approach, for under here, fails record the insubstantial, and is entrapment of this on reversal would warrant any prejudice show score. entrapment is defense which the with
The conduct lawby enforce- crime manufacturing of is the concerned course, conduct, agents. Such their and officials ment involved stratagems permissible the from different is far before detection, crime. Thus prevention and in the of that evidence preponderance the persuaded you you are heard temptation, the crime and the Davis, were, it created as that-'Agent of a crime that instigator author and Davis, the Agent he, place, he not had taken would, circumstances have under never means.” used .unfair of entrapment fairly issue can said be to have been
presented in a prosecution there criminal have been must showing at least by govern- some the kind of conduct agents ment which well may have the accused to induced commit charged. the crime In the case before we think that such us, showing n
has been made-. is undisputed meeting It .that at the 21, petitioner made an unsolicited October offer Davis; Agent $420 to references to October offer in the recorded scarcely conversation leave room for doubt this for general offer was made same purpose as bribes offered at meet- October ing: to obtain concealing any Davis’ assistance in cabaret tax liability past and present periods.5 to the As meeting of October 24, recording peti- shows that tioner’s improper began overtures at almost outset of the discussion, anything when he stated: “Deduct you think I’ll you happy should and to . . . because 'you may prevent something coming up the office.” preceded This similar computa- statements Davis’ tions,6 comment, and his “I don’t get greedy,” want purpose That this way was the of the October 21 offer in no acquittal inconsistent the verdict of on Count 1. Count above, charged, among specific noted things, other intent to induce agent records, not to examine books and and the court in its charge great emphasis language attached to the of this count. Thus may acquittal solely well have been that the 1 was based Count jury’s on the proved conclusion that the Government had not *8 specific beyond existence of the intent a reasonable doubt. 6Petitioner claims that Davis’ assertions the of cabaret existence liability, liability, recklessly tax and of the extent of that were so suggest require finding entrapment. false as to noted, But as petitioner’s preceded any overtures assertions, event, these and in ample believing due, Davis had basis for peti that taxes were deny liability tioner during never undertook to his the conversation Although on may October 24. Davis conceded that he have made computation some errors in “nervousness,” petitioner because of in testimony computations made no claim that these led to the bribe offers. find Moreover, we heavily relies. so petitioner
on which own whole, petitioner’s or in recording nothing on October suggest his conduct testimony, that assess- Upon any reasonable instigated by Davis. was , all manifest that that seems record, of the ment for the an doing opportunity was to afford Davis was which conduct, upon of criminal a course continuation of voluntarily embarked, under had petitioner earlier proof. susceptible circumstances entrap any theory, under that, evident It is therefore Indeed, as a matter of law. not been shown ment has might justified' have showing well paucity refusal, entrapment.7 all But jury at on to instruct made, an instruction was request for such any event given. to the instruction objection was no there chal may not now circumstances, petitioner these Under of that instruction. See Fed. Rules Crim. lenge the form United States, 2d 216; 262 F. Proc., 30.;8 Moore v. States, F. 2d 9. Nor was there Martinez v. United charge, affecting in the any plain this score such error despite warrant rights, substantial as would reversal (b). object. Proc., failure to See Féd. Rules Crim. showing does not disclose a Since the record sufficient induced to cannot con petitioner a'bribe, was offer we charge on burden prejudiced clude that he called for proof, assuming even the burden entrapment does should Petitioner not claim that issue always jury, be decided the court and never submitted to the presented question. and we with that See Sherman v. are not now 369; States, 356 U. S. Masciale v. United 356 U. S. provides pertinent part: 8 Rule 30 may party assign portion charge “No as error or omission objects jury unless he before therefrom thereto retires consider verdict, stating distinctly objects its the matter to which he and the grounds objection. Opportunity given of his shall be to make the objection hearing jury.” out of the *9 was too great. By the same token, we are per- suaded that in this case it is significant to determine whether entrapment should turn on the effect the Gov- ernment’s conduct “men of ordinary firmness,” as the court charged, or on the effect on particular defendant. Accordingly, dowe not reach the question whether the charge was in every respect a correct statement the law. It is enough to say that in the circumstances of this case, there was in any event no reversible error.
II.
Petitioner’s remaining contentions concern the admis
sibility of the
relating
evidence
to his conversation with
Davis on October
argument
24. His
is primarily ad
dressed to the recording of the conversation, which he
claims was
obtained
violation
rights
of his
under the
Fourth Amendment.9 Recognizing the weakness of this
position if
properly
Davis was
permitted to testify about
the same conversation, petitioner now challenges that
testimony as well, although he failed to
so at the
do
trial.
His theory
that,
view
alleged
Davis’
falsification
of his
gained
he
mission,
petitioner’s
access to
office by
misrepresentation and all evidence obtained in the office,
e.,
i.
his conversation with petitioner, was illegally
“seized.” In support of this theory, he relies on Gouled
United
U. S.
and Silverman v. States,
See On claim belated by detained long not need We testify, to permitted been have not should Davis that not was 24. Davis of October conversation about simply office petitioner’s invasion anof unlawful guilty not -was bribe a accept to willingness apparent his because States, S. 371 U. v. United Wong Sun Compare real. consent, and petitioner’s with office in the 471. He-was office privacy violate the not he did there while petitioner’s without something surreptitiously seizing by States, supra. United v. Gouled Compare knowledge. made of statements consisted obtained only evidence The full knew Lopez which statements Davis, to Lopez We wished. Davis if he him against be used could well is made of a bribe an offer whenever that hold to decline that accept, intend not does offeree and private, in communication. constitutionally protected offer is testify properly, could Davis plain it' is Once constitutional Lopez, conversation' about conversation recording of relating to claim in the has The Court perspective. emerges proper eavesdropping’’ of “electronic instances sustained past been have devices when challenge, constitutional against conversa to overhear agents government enable used the reach beyond been have would which tions States, 277 United v. Olmstedd g., See, e. ear. human It 316 U. States, ; Goldman S. 438 U. not be device electronic only that insisted been has. of a constitu- invasion physical unlawful by an planted certain to make induced been had Lee, the defendant In On defendant’s who, .without acquaintance by an old statements carrying small was and informer government turned knowledge, had nar the conversation transmitted which microphone concealed between differences away. Thus distance agent some cotics petitioner. against cut Lee this case On v. United area. Silverman tionally protected in question, is not of these decisions validity supra. “eavesdropping” involves here. Indeed this case The Govern- sense of that term. any proper whatever in bn con- device to listen ment did not use an electronic Instead, it could not have heard. versations otherwise most reliable evi- only the device was used obtain the Govern- dence of a conversation in which the possible agent agent participant was a and which that ment’s own was to disclose. And the fully entitled device invasion of physical of an unlawful planted by means which would petitioner’s premises under circumstances It was carried the Fourth Amendment. out violate petitioner’s who was there with by-an agent assent, and agent nor more than himself. neither heard saw *11 case is similar to Rathbun v. United quite The thus States, against in which we sustained statu- U. S. testimony admission in of tory attack the evidence the to a he overheard on an ex- policeman as conversation of a telephone party tension with the consent con- the present anything, clearer, if is versation. The even case, by in was conceded all concerned “that since Rathbun it may publish record conversation and it.” party either the (Emphasis added.) at 110. S.,U. Stripped essentials, petitioner’s argument to its amounts saying right rely that he has constitutional in possible agent’s memory, challenge flaws or to the agent’s credibility being by corroborating without beset susceptible impeachment. not For no evidence that is an argument justify excluding other can accurate version agent testify could to from conversation petitioner think the risk that took in memory.11 We offering fairly a bribe to Davis included the risk that the accurately reproduced court, offer would be whether memory recording. faultless mechanical challenged. recording trustworthiness of the is not urged It recording that whether or not vio- petitioner’s lated constitutional rights, prevent we should its introduction in evidence this federal trial in the exercise of supervisory our powers. But the court’s inherent power to refuse to receive material evidence is a power that must be sparingly exercised. Its applica- tion' present in the case, where there has been no mani- festly improper conduct federal officials, would be wholly unwarranted.12
The function of a criminal trial is to seek out and deter-
mine
truth or falsity
charges brought against
Proper
defendant.
fulfillment of this function re-
quires that, constitutional
limitations
all
aside,
relevant,
competent
be admissible, unless
manner in
evidence
which it has been
example, by
obtained —for
violating
some statute or
of procedure
compels
rule
the formula-
—
tion of a rule excluding its introduction in a federal court.
g.,
States,
e.
See, McNabb United
332; Mallory
U. S.
v.
When we look for the considerations that might require highly exclusion useful evidence here, nothing. find we There has been no inva- involved sion of constitutionally protected rights, and no violation Of federalilaw or of procedure. rules Indeed, there has even been eavesdropping private electronic on a conversation government agents which could not other- wise have overheard. has, short, been act There any kind which could justify the creation of an exclu- *12 sionary rule. We therefore conclude judgment that the of the Appeals Court of must be
Affirmed. Agent Since Davis himself peti testified to the conversation with subject tioner which recording, question was the of the matter the may whether there be circumstances in which the use of such record ings to-purposes in evidence should be limited “corroboration” presented by this case. result. in the Warren, concurring Justice
Mr. Chief but feel by the Court achieved in the result I concur out pointed As separately. my views to state compelled Brennan, the Mr. Justice dissenting opinion in the reaffirming sub as interpreted be' may majority opinion States, 343 S.U. in Lee United On the result silentio Brennan that On with Mr. Justice agree I 747. Since revitalized, not be and should decided wrongly Lee was those stated from different my grounds but base views Al- specially. to concur I chosen dissent, in have Lee are and On this case assumes that the dissent though dissimilar they quite are same, in to me respects all what this viewpoint from the constitutionally and over powers supervisory under its permit Court should courts. the federal justice in administration criminal Brennan of Mr. Justice opinion I also share communi- in the field of electronic the fantastic advances óf the indi- to the great danger privacy cation constitute in law of such devices use- vidual; indiscriminate under questions grave constitutional enforcement raises con- and that these Amendments; Fifth the Fourth and on this Court responsibility impose heavier siderations in fed- procedures of the fairness supervision its that, as a I not believe system. However, do eral court either proscribed all of such devices should result, uses law enforcement methods. or as unfair unconstitutional I draw this case would would be between One of the lines and On Lee. greater detail, out
As Mr. Justice Harlan sets Agent upon entering premises petitioner, Davis, authority purpose gave full notice both his —to investigate delinquency pay- possible evasion investiga- mont of federal taxes. In the course of this tion, promised offered bribe and petitioner Davis if Davis more in the future would conceal the facts petitioner’s accepted money tax evasion. Davis *13 promptly reported superiors. to his On a return visit petitioner’s to the place of business complete the inves- tigation, was Davis outfitted with a concealed recorder to tape his conversation with petitioner. the At trial, Davis testified to both of his conversations with the petitioner, tape recording the was introduced to corroborate this testimony. petitioner The did not claim he was en- investí-, trapped into the.bribery or that the purpose of the gation from the was start to induce the bribe. On the contrary, he admitted .giving money to. Davis but claimed that it was for the purpose of -having the latter prepare his tax return. only purpose recording served was to protect the credibility against Davis of a man who wished to corrupt public servant performance of public trust. I find nothing unfair in procedure. this agents Tax Agent like Davis are re- quired to examine the tax returns of suspected tax evaders as a necessary part of our system. national taxation Many of these taxpayers are integral parts interviewed underworld. In performance of their duty, agents are thus often faced with situations proof where of an attempted bribe will be a matter of their word against that of the tax evader and perhaps some of his (cid:127) They associatés. should not be against defenseless out- right denials or claims entrapment, which, claims if not open to conclusive refutation, will undermine the repu- tation of the agent for individual honesty and public’s confidence his work. Where confronted with such a situation, only it is. fair that an agent permitted support his credibility with a recording Agent Davis did in this case. Lee,
On however, a is completely different story. When On Lee was arrested, the only direct evidence that he engaged the distribution of opium was the unre- testimony liable alleged an accomplice who handled mis- made had purchasers contacts To agent. narcotics undercover to an selling take sent Government Lee, On against *14 case its strengthen laundry Lee’s into On Poy, Chin one employee,” “special a being out Lee On transmitter, awith concealed armed Poy had Chin the time. at indictment pending bail his been formerly had and years for 16 Lee On known by the exposed character criminal His employee. nar- the discussed Lee and On he which familiarity with supply to the latter agreement and traffic cotics Thus, future. in the request his at with narcotics him inLee On transmitter, engaged with armed Poy, Chin eliciting admissions purpose for the conversation encourage to syndicate opium anof part Lee On was calling trial, instead crime. another At to commit him the narcotics put on Government testify, the to Poy Chin con- the radio end of receiving been at had who agent made admissions to the testify Poy to Chin tact conviction. directly to that led testimony Lee, On Lee was in On transmitter purpose The use here. recorder from the use substantially different testimony of corroborate advantage was not to Its him on put need to obviate rather, but Poy, Chin Lee stated: itself On The Court the stand. why Chin reasons on the only speculate can
“We assump- unlikely not It seems called. was Poy not and blemishes of character defects very that the tion with confi- him trust Lee made On which of record testimony. distrust jury make would dences underworld enough to Poy close Chin so that design criminal enough near bait, serve confidante, but him as would embrace petitioner him vouch for the Government it for close to too agent called Government Instead, witness. as a Lee.”
However,, there were advantages further in not using Chin Poy. Had Poy Chin been available for cross-examina- tion, counsel for On Lee could explored have the nature Poy’s of Chin friendship with On Lee, possibility other unmonitored appeals conversations and to friend- ship, the possibility of police entrapments, pressure brought to bear to persuade Poy Chin turn informer, and Chin Poy’s recollection own of the contents of the conversation. testimony might only not have seri- His have, ously discredited the prosecution, might but also raised questions of constitutional proportions. This has yet Court established limits within .the which the police may use an appeal informer to to friendship and camaraderie-in-crime to induce admissions from a suspect, say but suffice to here, substantial, the issue is We have *15 already struck down the of psychological use pressures appeals to friendship to induce admissions or confes- sions totally under not dissimilar Leyra circumstances. Denno, 347 S. 556; Spano York, v. U. New v. 360 U. S. 315.1 Yet the fact remains that without testimony the Poy, Chin counsel for On Lee could not develop a rec- ord sufficient present to raise and issue for decision, and the courts could not evaluate impact the full of such The facts in On Lee may right also have involved a to counsel issue. The New Appeals York Court of recently has ruled that person after has been arraigned, statement obtained outside the presence of his counsel and without rights advice to his is inadmis sible petitioner at trial since the’ presence is entitled to the of counsel every stage at in the proceedings People v. arraignment. after Meyer, N. Y. 2d 103; 182 N. 2dE. Wainwright, Gideon cf. 335; Spano 372 U. S. York, supra, v. New p. (Douglas, J., con Meyer curring) . police statement in to a made officer vol untarily and without Meyer solicitation while awaiting was on bail grand jury. submission his case to the Presumably, any agent of prosecutor would be circumscribed this rule whether he be a “special employee” Poy patrolman like or a Chin on the beat. upon an or the admin- rights of accused upon the practices justice.2 of criminal istration can call an say that the defense answer
It no to witness. The Poy as a hostile such as Chin informer concealing his iden- an interest may have prosecution States, 353 U. Roviaro v. United tity or whereabouts. disreputable undependable may He be so stand. putting risk him on the defense counsel would im- be to open he would as a defense Moreover, witness, employer. The Government, his by the late peachment apparent would be of this situation possibilities tactical Through obtaining conviction. on prosecutor bent to case- may place transmitter, he recorder use conviction supporting of statements in-chief evidence required if not And impeachment. open is not which the defense may place he informer, on call the if who, disreputable witness finding and callings onus favoring all collateral issues may impeached called, be practices on law The effect enforcement defense. the informer disreputable more stated: hardly need be likely the accused the less Government, employed by the law enforcement any questionable establish able will him. to convict methods used use of permitting the join I the Court Thus while par- agent an under to corroborate devices electronic by implica- I sanction case, facts of this cannot ticular radically shift same use of these devices tion *16 involved, been cross- entrapment has similar of Where the defense invariably been critical has government informer of the examination 369, 371- States, 356 U. S. v. United defense. See Sherman to in Sherman to able to limit case been its Had the Government peti meetings and the recordings between informer of the final consummated, the record would illegal were sales wherein tioner inducing petitioner meetings long of series have revealed never charge apparently unaware officers were make these sales. The to S., place. at 374-375. .they 356 U. had ever taken trial, in the criminal of evidence presentation pattern factual substantial used to conceal that.may be shift the accused and the rights of concerning the legal issues Lee v. United Cf. On justice.3 of criminal administration dissenting). States, J., 747, 758 (Black, S.U. Brennan, Mr. Justice with whom Mr. Justice Goldberg Douglas dissenting. join, Justice and-Mr. States, 747, the Court In On Lee v. United U. testimony admission sustained the evidence incriminating by statements made to agent a federal for narcotics offenses. laundryman, on trial accused, large the accused while at were made The statements an shop in a his on trial conversation'in pending bail who, unknown to the employee, and former acquaintance informer and a radio government carried accused, person. agent, transmitter concealed The federal justice par party If a were to show that the interests of in a limiting require, ticular case so the Court should-consider the use means of a recorder or transmitter corrobora evidence obtained party question. tion of witness who was a to the conversation in a- clearly so the use of evidence in the federal courts is To condition power of this As stated in McNabb v. within the Court. the Court States, 332, 341: United 318 U. S. supervisory authority
“In the exercise of its over the administration justice States, courts, Nardone United of criminal in the federal see v. 341-42, very beginning 338, has, this from 308 U. S. Court applied history, rules evidence its formulated federal authority.] prosecutions. [Collecting And criminal . . . in formu- lating such of evidence for federal criminal trials Court has rules guided by justice been not limited the strict considerations of evidentiary canons relevance.” (dissenting, Upshaw See 335 U. S. 414-416 opinion); Rule Federal Rules of Criminal Procedure. In McNabb purpose exclusionary adopted itself, the rule was to eliminate engage practices universally all incentive to in law enforcement con degree” immediately confessions demned—use of the “third obtain after arrest.
equipped with a radio receiver tuned to the transmitter, standing heard the transmitted conversation while laundry. argu- sidewalk outside the The Court rejected invoking ments the Fourth Amendment and our super- visory against power admissibility agent’s testi- I mony. believe that decision was error, that reason and authority, at the time it was that decided; subse- quent subsequent decisions and experience sapped have vitality may whatever once have had; it should regarded now be the instant case is overruled; rationally indistinguishable; that, therefore, we should judgment reverse the below.
I. The United States in its argument brief and oral before this Court in the instant case justify made'little effort to Lee, the result in On doubtless because it realizes that that decision has virtually lost its authority. force as all Instead, the distinguish Government seeks to the instant case. This strategy has succeeded, it appears, with majority my Brethren. The Court’s refusal to accord more than passing opinion mention its only to the deci- sion of this factually Court —On analogous to the Lee— suggests case at bar very strongly that of my some col- leagues who joined have opinion today agree Court’s with us that Lee On should be considered a dead letter. For the Court, rather than follow On Lee, adopted has substance attempted Government’s distinction between Lee On and the instant case. argues Government as follows: “Petitioner can
hardly complain that his thoughts secret unfairly were extracted from him, they from were, beginning, intended to put into words, and to be communi- cated to very auditor who argu- heard them.” This ment prongs has two and I take the second first. To be sure, were there two auditors in On Lee—the informer
and the agent federal outside. But equally are there two auditors here —the agent federal and the Minifon. In Lee, On the informer was the vehicle whereby the ac-r *18 cused’s statements were transmitted to a third party, whose subsequent testimony was evidence of the state- ments. So here, the intended Agent auditor, Davis, the vehicle enabling the Minifon to petitioner’s record statements a form that .could be, and was, offered as evidence thereof.
The-Government would have that the “human wit ness actually [Davis] testifies and the machine merely repeats and corroborates his narrative.” But it can make no difference that Davis did, and the informer in On Lee not, did himself testify; for the challenged evidence, the Minifon recording, is independent evidence of the state ments to which also Davis testified. A mechanical re cording is not evidence cor-., is merely repetitive or roborative of human téstimony. To sure, it must be n authenticated before it can be introduced. But once it is authenticated, its credibility does not depend upon the credibility of the human Therein witness. does a me chanical recording a conversation differ fundamentally from, for example, notes that one parties of-the to the (cid:127)conversation may have taken. A trier of fact credits the notes only insofar as he credits the notetaker. But he credits the Minifon recording not because he believes Davis accurately testified as to Lopez’ statements but because he believes the Minifon accurately transcribed those statements. This distinction is well settled in the law of evidence, and it has been held that Minifon record ings are independent third-party evidence. Monroe v. United States, 98 U. S. App. D. C. 228, 233-234, 234 F. 2d 49, 54-55.1 See Burgman v. United States, 88 U. S. App. 184, 188 D. C. F. 2d 637; v. Coop, 8 Ill. 2d Belfield 134 N. E. 2d (1956);
Boyne City, G. & A. R. Co. v. Anderson, Mich.
109 N. W.
argument
is that
half of the Government’s
other
when he communi
privacy
right
surrendered
Lopez
assump
Agent
Davis. The
thoughts”
his “secret
cated
the Fourth Amendment
untenable, is that
tion, manifestly
If a
com
secrecy.
person
designed
protect
only
is
is no
paper,
license
thoughts
his secret
mits
if a
paper;
person communicates
police
to seize the
another,
license
thoughts verbally to
that'
his secret
police to record the words. Silverman United
for the
Lee
S. 505. On
certainly
rested on no such
U.
mean little
right
privacy
would
theory of waiver. The
and so
person’s solitary thoughts,
if
limited to a
it were
concept
It must embrace a
fostered secretiveness.
historically
liberty
communications,
of one’s
it has.
right
law
to each individual
“The common
secures
*19
thoughts,
to what extent his
determining, ordinarily,
Reyes,
State v.
(1906);
595, 636,
182,
209 Ore.
308 P. 2d
Scott,
Paulson v.
(1957);
(1951).
260 Wis.
That is say not to that all communications priv- are ileged. On Lee assumed the risk that his acquaintance .would divulge their conversation; Lopez assumed the same risk vis-á-vis Davis. The risk inheres all com- munications which are not in sight of the law priv- ileged. It is not an undue risk to ask persons to assume, for it does no more compel than them to use discretion in choosing their auditors, to make damaging disclosures only persons whose character and motives may be trusted. But the risk which both . On Lee and today’s decision impose is .of a different order. It is the risk that third parties, whether mechanical auditors like Mini- fon or human transcribers of mechanical transmissions as in On Lee—third parties who cannot be shut out of a con- versation as conventional eavesdroppers can be, merely by a lowering of voices, or withdrawing to a private place— may give independent evidence of any conversation. There is only way one to guard against such a risk, and that is to keep one’s mouth shut on all occasions.
It answer to say that there is no social interest offer, in encouraging Lopez to bribes to federal agents. Neither is there a social interest allowing murderer to conceal the murder weapon in his home. But there is *20 right a of liberty of communications as of possessions, and the right can only be secure if its limitations are defined within a framework of principle. The Fourth Amendment does not forbid all searches, but it defines the limits and conditions of permissible searches; the com- pelled disclosure private of communications by electronic means ought equally to be subject to legal regulation. basis no reasoned I see granted, is principle if this And the whether upon depending results reaching different a federal with person, a private with is conversation federal an avowed or Lee), (On agent undercover here; as agent, result, the Court’s concurring in Justice, Chief the Lee and On between distinctions further two
suggests a carrying Davis, Agent that first, case: instant seeking to legitimately was device, recording concealed and servant; public an honest reputation as his protect electron- Lee, On unlike case, instant in the second, circumvent so to used was evidence ically obtained admit I witness. government key production the upon. they bear how not see I do but differences, are these the admissi- which is us, before case problem the surrepti- fruits the trial federal criminal a bility in tax. federal Whether surveillance. electronic tious in- was he superiors his to convince in order agent, ought it, not solicit did bribe offered deed separate ais' person on a Minifon carry permitted Minifon by the recording made from whether question crim- in federal evidence permissible constitutionally is chal- standing to Lopez it I trial; take would.have inal or ain prosecution save recordings of such use .lenge the unfair And whether him. against proceeding other evidence electronic to introduce for the Government transmission agent human putting without have' which considerations implicate me to seems stand freedom individual principle with the nothing to do may trial Lee’s On Amendment. in the Fourth enshrined with- Lopez’ because fair ’than less have been well But as witness. informer government holding same: cases in both of freedom the invasion com- recording of private transmission electronic secret under- Lee’s On to Davis Lopez’ munications, agent. cover
II. If OnLee and the instant case are in principle indis- tinguishable, question of the continued validity of the. position Court’s in' On Lee is inescapably before us. But we cannot approach question properly without first clearing away another bit of underbrush: sug- gestion that right of privacy is lost speaker’s giving verbal form to his secret thoughts, but by the auditor’s consenting to an electronic transcription of the speaker’s words. The suggestion is an open invi- tation to law enforcement officers to use cat’s-paws and decoys in conjunction with electronic equipment, as in On Lee. More important, it invokes a Active sense waiver wholly incompatible with any meaningful concept of liberty of communication. If person always must be on his guard against his auditor’s having authorized secret recording of their conversation, he will be no less reluctant speak freely than if his risk is that a third party is doing the recording. Surely high government are not officials only persons who find essential to be able to say things “off the record.” I believe that there is grave danger of chilling all private, free, and uncon- strained communication if secret recordings, turned over to law enforcement officers one party to a conversation, are competent evidence of any self-incriminating state- ments the-speaker may have made. In a free society, people ought not to have to watch their every word so carefully. Nothing in Rathbun v. United States, 355 S. 107, U.
is to the contrary. We held that case that evidence obtained by police officers’ listening in to a telephone conversation on an existing extension with the consent of one of the parties, who was also' the subscriber to the extension, did not violate the federal wiretapping Act, U, §C. 605. The decision awas narrow one. The grant of certiorari was limited to the question of statutory dissenting nor majority
construction, neither excluding basis possible other discusses opinion *22 careful was Furthermore, as the Court the evidence. so com- use, in common are phones emphasize, extension than more that telephoning normal risk that it mon is The end. in receiver’s listening at the bemay one person state- of which Rathbun’s by means telephone extension law for installed specially not been were heard had ments to tran- made attempt was purposes, and enforcement in the electronically. Thus phone conversation scribe the was sense in the conventional wiretapping view Court’s It should application. had no § and not involved incon- very it is a serious that while out pointed also be over the freely speaking from inhibited to be venience to a danger free graver is a far perhaps it telephone, in his speaking inhibited from out if a is society person home or office.2
III. is there comes to whether us down question The before inor thé Amendment the Fourth basis, either legal criminal from federal excluding supervisory power,3 right of supports position the' anything, Rathbun the that If merely authorizes elec privacy the auditor forfeited because is-not grounded its might decision eavesdropping. Court have The tronic police to the officers’ had consented fact that the receiver the interceptions only in; proscribes listening since unauthorized §605 held that communications, have telephonic the Court could turning not,. the case listening authorized, in was but did the meaning of the interception the entirely within on the absence existing carefully differentiating use of an exten statute, and between listening concession in Thus the other modes of in. phone sion and (cid:127) pure today quotes dictum. the Rathbun which Court super argue Lopez his counsel to raise or the failure of The considering it. For the in point bar us from visory-power does not power courts by that of the federal secured terest exercise objection plaintiff themselves, parties. not of “[T]he will the court itself. It will be taken hands comes unclean parties contrary to the despite of all the wish to taken Ü1 n surreptitious the fruits of electronic
trials surveillance agents. federal
History point text the Constitution path true to the answer. In the celebrated of Entick case Carrington, (C. P. 1765), 19 Howell’s State Trials 1029 principles: gen- Lord Camden laid down two distinct eral search warrants are. unlawful because of their uncer- - tainty; and that searches for evidence are unlawful they infringe against because privilege self-incrimina- tion.4 Lord double focus was carried over into Camden’s Lasson, the structure the Fourth Amendment. See History Development of the Fourth Amendment (1937), 103; United States Constitution Fraenkel, Concerning Searches and Seizures, Harv. L. Rev. (1921).5 The two clauses of the Amendment are *23 the and conjunctive, plainly have distinct functions. The Clause specifically, Warrant was aimed at the of the evil general regarded often warrant, single as the immediate of the cause American Revolution.6 But the first clause litigation. protects States, The court itself.” Olmstead v. United 438, 277 U. S. (Brandeis, J., dissenting). (Footnote omitted.) very certain, “It obligeth 'that the law no man to him is. accuse self; necessary compelling because the self-accusation, means of fall ing upon the innocent guilty, as well as the would be both cruel and unjust; and seem, it should for evidence is disallowed search upon principle.” the same Trials, 19 Howell’sState at 1073. 5The text of the Fourth right Amendment is as follows: “The of people the to be secure “persons,houses, papers, in their effects, and against seizures, unreasonable' searches violated, and shall not be and no issue, upon probable supported by Warrants shall cause, but affirmation, particularly or describing place Oath and the to be searched, persons things and the seized.” 6“Historically dealing provision we are with a of the Constitution sought guard against which anjf an abuse that more than one single gave factor independence. rise to surely American John Adams competent is a witness on the causes of the American Revolution. And he -it argument against was who said of Otis’ search the police , independence . . . ‘American was then and there born.’ 10 light in of is, It principle. encompassing a more embodies have ought not to government decision, that- Entick. people. from extract evidence right the untrammeled complementary is Amendment Fourth viewed, Thus States, 487, S. 322 U. United Feldman v. to the Fifth. Amendments both informing of principle 489-490. right.of personal comprehensive than a nothing less is intrusion. governmental face of liberty, in States, Boyd United in v. Court held And this so long as civil be remembered will “a case that S.U. dissent J., (Brandeis, States” the United liberty lives 474): 277 U. ing Olmstead v. [Entick opinion down this laid principles “The constitu- very essence Carrington] affect farther than reach They security. liberty and tional court, then before case form of the the concrete all they apply ; circumstances its adventitious its and government part on the invasions home and a man’s sanctity of employes doors, breaking is not the of life. It privacies that constitutes drawers, rummaging of his and the invasion it is offence; but the essence security, personal right personal his indefeasible has right property, where liberty private public of some by his conviction been forfeited never right which sacred this the invasion offence, of. —it Lord Cam- essence underlies constitutes *24 opening a house Breaking into judgment. den’s aggravation; are circumstances and drawers boxes aof man’s extortion compulsory forcible and but to be used private papers testimony or of own States, v. United 145, 159 247.” Harris Works 331 U. S. Adams, opinion). (dissenting only general warrants, outlaws course, the Clause Of Warrant judicial superintendence principle
but also root establishes p. 464, seizures. See of searches and infra. 456
as evidence to convict him of. crime or to forfeit his
(cid:127)goods, is within the
judgment.
condemnation of that
In
regard
this
Fourth
Amendments
Fifth
run almost into each other.”
S.,
116
at
U.
630.
in Boyd
Court
against
set its face
a narrowly literal
conception of “search and seizure,”
reading
instead
Fourth and Fifth
together
Amendments
as creating a
right'to
broad
inviolate personality. Boyd itself was not
a search and seizure
case
the conventional sense, but
involved an order
compel
production of documents,in
the nature of a subpoena duces tecum.
Boyd
And
had
preceded
been
by Ex parte Jackson,
The authority
Boyd
décision has never been im
peached.
Its basic principle, that
the Fourth and Fifth'
Amendments interact
create
comprehensive right of
privacy,
individual freedom, has been repeatedly ap
proved in the decisions of this Court.7 Thus we have held
that the gist of the Fourth Amendment is
security
“[t]he
of one’s privacy against arbitrary
police.
intrusion
v. Colorado, 338
S.U.
25, 27;
Minard,
Wolf
v.
Btefanelli
seizure v. g., e. Gatewood 306; see, States, 298, 255 S.U. United Eagles v. Order 789; 2d Fraternal States, F. 209 United General Phar 93; States v. States, F. 2d United United F. Bush, 172 v. States Supp. 692; Co., F. United macol Reckis, Supp. 687; F. States v. United Supp. 818; 225; see Mitchneck, 2 F. but Supp. v. United States reversing Supp. 172 F. Bush, 51, F. 2d States v. United Henkel, 201 g.e. Hale v. see, subpoena, by an 818, invalid American Tobacco v. Federal Trade Comm’n 76; 43, S.U. States, 134, S. 276 U. Brown Co., 264 298; v. United S.U. States, 2d 67 F. United g., Wakkuri v. see e. otherwise, of the Amendment purpose that the is confirmation from sense in the broadest liberty protect is to individual Ullman, 367 Poe see And intrusion. governmental opinion). (dissenting 549-552 U. appraise must background that we this against
It is Court, over where the supra, Olmstead v. Stone, But- Holmes, Brandéis, the dissents Justices wiretapping federal officers the fruits ler, held that criminal trials. in federal as evidence were admissible holding, Court’s fully pertinent which is here,8 rested on propositions that there had been no search because *26 trespass had been against committed petitioners the ho seizure because physical evidence had obtained, been thus making the Fourth Amendment inapplicable; and that evidence was not inadmissible in federal criminal trials merely because obtained federal officers by methods violative of state law or otherwise unethical.
When the Court first confronted problem the of elec- tronic apart surveillance from wiretapping, Olmstead was deemed to control, five members of the Court declining to reexamine the soundness of that decision. Goldman v. United S.U. In turn, Olmstead and Goldman were deemed to compel the result in On Lee. But cf. note 10, The instant case, too,-hinges on infra. the soundness and continued authority of the Olmstead decision. I think it is demonstrable that Olmstead was erroneously decided, that authority its has steadily been part, In the Court rested its decision on thought considerations peculiar to e., wiretapping, interception i. telephonic of communi cations. language “The of the Amendment can not be extended and expanded to telephone include reaching wires to the whole world from the defendant's house or office. The intervening part wires are not his house or office more than highways are the along they which are stretched.” 277 S., at 465. “The U. reasonable view is that one who installs in his telephone house a instrument connecting wires project intends to quite voice to those outside, and that the beyond wires his house and messages while passing over them are not within the protection of the Fourth Amendment. Here those who intercepted projectéd voices were not in house party either to Id., conversation.” at 466. The disingenuous artificiality analysis of this is surely plain. Al- though, arguably, face-to-face conversations in home or office are more intimately part a right privacy telephonic than are conversations, pp. see 452-453, supra, any attempt to draw constitu- tional ignore distinction plain would realities of life, modern telephone which the has assumed indispensable an role in free human communication. and that Court, decisions subsequent sapped jurisprudence in our following sports it are cases it and the be eliminated. ought to which the Fourth interpretation illiberal (1) Olmstead’& tres of actual fruits tangible to the limited Amendment as deci previous Court’s from departure awas passes history and misreading of the Boyd, notably sions, cannot limitation Such Amendment. purpose personal inviolate right meaningful awith squared reading “literal” aas justified even be cannot It liberty. as of talk, every-day “In Amendment. Fourth or listens. looks he when ‘searches’ a man now, ‘searching’ the Bible in the reférences find we Thus ‘searching’ a man literature 39); in (John V, Scriptures *27 ‘searching’ a to law books conscience; in heart manual requires acts of these None record. public looking . . . objects. [J]ust for concealed rummaging in a sounds listening to the searching, is around room both reactions are hearing Seeing and searching. room is around environment physical to being human aof waves sound to instance, one waves in light him —to aid to mechanical using accordingly, And, other. searching. The form also a hearing is seeing or either end- work do the both dictaphone and the camera accu searcher —more human individual an organs 306, 313 2d Lee, F. On 193 States v. United rately.” dissenting). J., (Frank, Olm- moreover, the exposition, constitutional
(2) As would The Constitution insupportable. stead decision contemporary instrument utterly impractical an only problems to reach deemed were if government century; yet eighteenth technology to the familiar the Fourth apply refused in Olmstead the Court seemingly because wiretapping Amendment farsighted had not been the Constitution Framers telephone. invention foresee the enough 460
(3) The Court’s
approach
illiberal
in Olmstead was a
deviant in the law of the Fourth Amendment and not a
harbinger of decisional revolution. The Court has not
only continued to reiterate its adherence to the principles
Boyd
g.,
e.
Ohio,
decision, see,
Mapp v.
supra, but
tecum,
to require
duces
subpoenas
that
comply
Fourth Amendment, see United States v. Bausch & Lomb
Optical Co.,
(4) Specifically,
years
the Court
since Olmstead
has severed both
supports
interpreta
decision’s
tion of the Fourth Amendment. We have held that the
fruits of electronic surveillance, though intangible, never
theless are within the reach of the Amendment.
Irvine v.
California,
T—I v. United States, 335 U. has expressly- held, in a case very close on its facts to that at bar, that an actual trespass need not be shown in order to support a violation the Fourth Amendment. Silver man v. United States, supra, at 511.10 (5) Insofar as Olmstead rests on the notion that federal courts may not exclude evidence, matter how penetration Silverman. involved the “spike a mike” several inches into the party wall of the occupied house petitioners. The mike touched a heating duct which acted as a' conductor of sounds within the house, enabling thus their transmission the mike to federal officers on the other side of the wall. itsOn facts the case very was close to Goldman, which had involved detectaphone a placed against and touching (but not penetrating) the a outside.of wall. Since the Court in Silverman declined to distinguish the cases on the ground that did, Silverman and Goldman not, did involve an actual trespass, it would seem that the authority of Goldman was severely impaired also, so —and would seem, that of On Lee and Olmstead. Actually, the instant case and Lee, On compared with Goldman and Silverman, are for applying fortiori the Fourth Amendment: “This Court has held genérally that, in a federal trial, criminal federal officer may testify to what he sees or hears place take within or house room which he has no warrant permission enter, provided he sees or hears it outside of premises. those . . . This holds true even where the supplements officer his hearing with a hear- ing aid, detectaphone or other device premises. outside the ... He his hearing pick up aid the sounds of, outside rather than within, protected premises. “In the. instant case [On . . . Lee] Lee’s' overhearing peti- tioner’s statements was accomplished through Poy’s Chin surreptitious introduction, petitioner’s within laundry, of Lee’s concealed radio transmitter which, petitioner’s without knowledge or consent, there picked up petitioner’s conversation and transmitted it to Lee outside premises. presence of the transmitter, for purpose, this presence of Lee’s ear. ... In this ease the words picked were up without warrant or consent within the constitutionally inviolate ‘house’ of a person protection entitled to there against unreasonable searches and seizures . . . .” On Lee v. 343 U. S. 747, 766-767 (Burton, J., dissenting). *29 illegal made specifically is admission its
obtained, unless decision Constitution, by statute federal regarded to be has come what with inconsistent manifestly law federal power over supervisory scope as the States, United v. g., McNabb See, e. enforcement. Rea v. States, 410; S. 335 U. v. United Upshaw 332; S.U. States, United Mallory v. 214; States, S.U. United 1941-1945, Evidence, Law Morgan, 449; S. 354 U. to empowered We are (1946). 481, 537 Rev. Harv. L. trials in con criminal for federal of evidence rules fashion they law as common principles “the formity with experi of reason light ... interpreted may be Procedure. of Criminal Rules Federal 26, Rule ence." not does involved as here surveillance if electronic Even I do Amendment,.which Fourth letter violate the ought to devise we spirit, its violates concede, it not suggestion The Court’s rule. prophylactic appropriate an create to be invoked may'never power supervisory that-the has been there unless of evidence exclusionary rule an is, procedure or rule of law federal Specific violation of And power. that cripple attempt gratuitous ame, our mandate with it can be how reconciled I see do common law evolving conformable 'to fashion rules principles. dis widespread such caused décision Olmstead
(6) The enacting byit overruled Congress in effect satisfaction made Act, which Federal Communications § 605 consistently.given haveWe crime. a federal wiretapping v. United Nardone construction, see generous § 605 States, S. 308 U. v. United 379; Weiss States, S. 302 U. Benanti v. States, 338; S. 308 U. v. United Nardone 321; had Congress recognizing 355 U. United in deemed methods “resort to- prevent been concerned per and destructive ethical standards consistent Gold 383; see (I), supra, at Nardone liberty.” sonal sure, States, 316 U. S. To be stein 605, being § directed to specific practice sanctioned *30 Olmstead, wiretapping, does not of its own force forbid admission of the evidence other techniques fruits of electronic But a congressional surveillance. enactment is a judicial source of as policy specific well as a mandate to be enforced, and the same “broad considerations of morality public well-being,” Nardone at (II), which wiretap 'make evidence inadmissible in the federal courts equally justify a court-made excluding rule fruits of such as devices the Minifon. It is anomalous courts, federal enforcing while right pri- vacy with respect to telephone communications, recognize no such right with respect wholly communications within the sanctuaries of home and office.
IV. If we want to why Olmstead, understand the Court, in Goldman, Lee, and On carved such seemingly anomalous exceptions general to the principles haye- which guided the Court enforcing the Fourth Amendment, we must consider two factors not often articulated in the decisions. The first pervasive is the fear that if electronic surveil lance were deemed to be within the reach of the Fourth Amendment, useful technique of law enforcement would be wholly destroyed, because an “search” electronic could never be reasonable within meaning of the Amend ment. See The Note, Supreme Court,. 1960 Term, L. Harv. (1961). Rev." For. one thing, electronic surveillance is almost inherently indiscriminate, so compliance with requirement of particularity in the Fourth difficult; Amendment u7ouldbe for another, words, which are objects of an electronic seizure, are ordi narily mere evidence and not the or fruits instrumentali ties of crime, and they so impermissible are objects of lawful searches under circumstances, see pp. 456-457, supra; finally, the usefulness of electronic surveillance depends lack of notice to the suspect. war- in fact If unconvincing. argument
But the would searches, that for electronic be devised could rant altogether. them forbidding for reason compelling abe are Amendment Fourth requirements bed- are the they stringent; unreasonably or technical pro- no effective would be there which without rules rock mere A search liberty. right personal tection self- against principle fundamental offends evidence recognized; clearly Lord Camden incrimination, general the evils search revives merely exploratory American Revolution- by the bitterly opposed warrant, so searches notice, police some form and without aries; of home privacy into the intrusions intolerable became *31 name in the tolerated cannot be Electronic searches office. inherently unconstitutional. they if are of law enforcement no conclude any event, premature inBut possibly be can devised. search for an electronic warrant not Amendment are the Fourth requirements The legitimate needs to the unyielding obtusely inflexible, pro- “the clear that is at least It enforcement. of law magistrate justification before of antecedent cedure ex rel. Ohio Amendment,” to the Fourth is central opinion) ; (separate Price, v. U. Eaton Abel States, 451, 455; S.U. McDonald v. United see (dissenting opin- States, 217, 251-252 362 U. S. v. United lawful electronic precondition made could be ion), suggestions been numerous And there have surveillance. could be made searches in which electronic ways of the Fourth requirements the other comply with Amendment.11 129, 140, n. 6 g., e. Goldman United See, 316 U. S. (McNaughton dissenting); Wigmore, Evidence
(Murphy, J., cf. 8 Wire-Tapping Prob 59; Westin, 1961), (3), at ed. 2184b rev. § Legislative Proposal, 52 Col. Analysis L. Rev. An and a lem: (1952). 200-208
This is not to say that a warrant that will pass muster can actually be devised. It is not the business of this Court to pass upon hypothetical questions, and the question of the constitutionality of warrants for elec- tronic surveillance is at this stage purely hypothetical. But it is important that the question is still an open one. Until the Court holds inadmissible the fruits anof elec- tronic search made, as in the instant case, with no attempt whatever to comply with the requirements of the Fourth Amendment, will there be no incentive to seek an imaginative solution whereby the rights of individual and the liberty needs of law enforcement are fairly accommodated.
The second factor that may be significant though premise unarticulated Olmstead the cases following isit well expressed by the Government the instant case: “if agent's relatively innocuous conduct here is found offensive, a fortiori, gamut whole of investigatorial techniques involving more serious deception must also be condemned. Police officers could then longer employ confidential informants, act as undercover agents, or even ” wear ‘plain clothes.' But this argument misses the point. It is Agent Davis’ deception that offends con- stitutional principles, but his use of an electronic device to probe and record spoken words in the privacy of a man’s office. For there ais qualitative difference be- *32 tween electronic surveillance, whether the.agents conceal the devices oh their persons or in walls or under beds, and conventional police stratagems such as and eavesdropping disguise. , The latter do not so seriously upon intrude the right of privacy. The risk of being overheard an eavesdropper or betrayed by an informer or deceived as to the identity of one with whom one deals is probably inherent in the conditions of human society. It is the kind of risk we necessarily assume whenever we speak. But as soon as electronic surveillance into comes play, the
466. that security from no is There crucially. changes risk and risk, the mitigating of way no eavesdropping,
kind 449-451, pp. See privacy. true residuum a not even so supra.12. traditionally police fact Furthermore, en- lawof practices disreputable rather some engage Eaves- extension: for their argument no forcement of us most and law13 at common indictable dropping The unsavory practice. an it is agree still would po- its diminish however, hearing, human limitations new wholly add aids Electronic harm. for tentiality pene- more it make They eavesdropping. to dimension to a obnoxious truly more indiscriminate, trating, more makes fact, surveillance, society. Electronic free is one omniscience police ; and omniscient police tyranny. tools effective most
V. justifica- adequate discloses analysis foregoing from seizures and searches electronic excepting for tion to But Amendment. Fourth requirements is to It negatively. too is to state thus the case state electronic-sur- bringing reasons positive ignore the has the only Not regulation. judicial under veillance necessarily must the Fourth'Amendment say that is not This recording law aids involving electronic every situation embrace between might drawn example, distinction For enforcement. surveillance hand, and one on or office home surveillance ' Compare hand. other forth, so streets, and places, public Hester States, U. S. v. United McDonald 57. U. S. or windows or under walls such listen “Eaves-droppers, or thereupon discourse, and after house, hearken of a eaves nusance common tales, are mischievous slanderous frame sessions, and at are indictable at court-leet: presentable . 4 good behaviour.” for their finding sureties by fine and punishable 26-2001; D.N. Ann. § Code Ga. See Commentaries Blackstone 16-554. 12-42-05; Code S. C. § Code Cent. §
467 problem grown enormously in years, see, g., recent e. Todisco v. F. 2d 208; 298 United States v. Kabot, 295 F. 2d but only its true dimensions have recently apparent from empirical become studies not Olmstead, Goldman, available when and On Lee were comprehensive decided. The study Dash by' Samuel and his associates as legislative well as a number of 14 inquiries reveals these terrifying facts: truly Elec- (1) tronic eavesdropping by microphones means of concealed and recording of devices various kinds has become large a problem as and is pervasively em- wiretapping, ployed by private labor detectives, police, spies, employers and others a variety of purposes, downright some dis- reputable.15- (2) go These far beyond devices simple
14Dash, Schwartz, Knowlton, Eavesdroppers and (1959); Hearings on Res. No. 234 before the Subcommittee on Constitu Rights tional Judiciary, Cong., of Senate Committee on the 85th 2d 'passim, (1958) ¡'Report Sess. Seriate-Judiciary of the California Com Interception Messages by mittee on the the Use of of Electronic and (1957); Report Other Devices Legislative of the New York Joint Study Illegal Committee to Interception Communications, N. Y. (1956). Sess. Laws 15 supra, Dash, See (“bugging” by police note at 76 of interro gation j'ail rooms, cells, and jails), in (monitoring interview rooms 96 employees’ microphones conversations pen means of in concealed sets), (use microphones by law enforcement officers termed “universal” (in in New Orleans Rouge), and Baton California, “[bjugging is frequently openly much more engaged by police and in than wiretapping”), (again “Literally, in California: whenever the police suspected being an individual of connected with the commission crime, of á it, police and the case was worth technicians, pri trained or specialists employed by vate police, pry open windows, pick would locks, gain entry some place ruse to the home or business suspected plant microphone individual and purpose for the overhearing By his conversations. means of a leased wire from the telephone company, planted microphones these .could be connected telephone lines which would single listening post drawn to a great where a number of parts city conversations different be monitored (use at one time place”), could one of con- privacy of invasion permit “bugging,” degree *34 (3) Far frightening.16 as only be described that can devices evidence, unimpeachable providing from (4) A number fakery.17 to themselves diabolical lend (bugging blackmail), conversa- microphone purposes of for cealed (“tables have been jails), wives in husbands and tions between according proprietor, to the purpose, bugged for the in a restaurant actually think of what his customers permitting him know of to. (use waitresses”), 229-230 discourtesy among his detect food and to (wire- proceedings), 269-271 bugging for divorce to obtain evidence Philadelphia), 280-281 bugging controversies tapping of labor visiting hotel room as a bug put hoodlum’s (in Vegas: “A is in a Las course, to”). are, up These course, he is to see what matter of g., practice; see, e. The Wall Street only examples of the a few isolated 4;' p. 22, 1963, p. 1, col. 3. Journal, April 9, col. (which microphone parabolic concentrates suggests that Dash a up light) might pick a con curved mirror focuses much as a sound microphone P. 350. Such a of 100 feet. versation at a distance p. impossible detect, virtually to but be .even can made may impossible to microphone ordinary in the home concealed sug 342. Dash also mine detector. P. detect, at least without a developed may been with device have gests that microwave-beam a ability penetrate through vir range 1,000 more and feet or device, exists, is not Pp. if it tually any 357-358. Such obstacle. variety microphone obtainable; parabolic and a readily but a national a current advertisement'in devices are. Thus other such “This is Snooper” device as follows: magazine describes this for “The space age. direct result of literally marvel that’s a an electronic may amplify 1,000,000 times. seem, it does sound as it Incredible pick up normal conversations at a 18" disk reflector Sensitive will lips moving. ft.) you Just (500 see where can’t even distance complete tripod you Portable; ways this. can use think regular tape part recorder stethescopic earphones. The best —a everything fun!” take down. Have plugged into the back to can be price $18.95. The advertised sam carefully experiment, Dash made a “In a controlled Samuel tape specializing speech tape. A ple political sound studio tape large broadcasting then took this editing one of studios for meaning. way completely reverse its and edited it in such reading recording made, Dash this time of Mr. Finally, a third recordings speech. The were three new, distorted version of States have impelled been to enact regulatory legis- lation.18 (5) legitimate law need enforcement such techniques is not clear,19and it surely has been established that a stiff warrant requirement for eléctronic surveillance would destroy effective law enforcement.
But even empirical without studies, it be plain múst that electronic imports surveillance a -peculiarly severe danger to the liberties of the person. To be against secure police officers’breaking and entering to search for physical objects is worth very if little there is security against the officers’ using secret recording devices purloin spoken words in confidence within the four walls home or office. possessions Our are little value compared personalities. our And we must *35 in bear mind that compared by by and oscilloscope ear to see whether or editing not the By was detectable. ear it only was noticeable in place one where the editor had been hurried in his The oscilloscope work. could not reveal even this much because of rapidly changing patterns on the screen. It was only decided way that the to examine the wave- purposes forms for comparison of was to record them on motion- picture film; accordingly, equipment up was set doing for this. Al- though expected it was that the build-up decay of sounds would skilful, by be altered cutting, so had been the manipulation editorial nothing that of the kind was observed. Even after studying of hours the films, no sure clue revealing editing job an could be found.” Dash, at 368. 18Cal. Penal 653h, Code 653i; Mass. §§ Gen. Laws Ann., 272, c. 99; . Nev. Rev. § Stat. 200.650; N. Law, § Y. Penal 738 § 19In the nature things, of wiretapping only is useful in the inves tigation of crimes of continuing nature, which typically are not major crimes, wiretapping by “[T]he pláinclothesmen done is still part in large aimed at operations bookmakers’ prostitution. and As a matter of fact, more wiretapping by police is done gambling cases than in other kind of case. In gambling and in vice matters generally, there steady pressure is pláinclothesmen on the to main tain a certain arrest record. Continuous wiretap surveillance, with out order, court pláinclothesmen enables to maintain this record.” Dash, at 66. The principles same apply to electronic surveillance generally. used power' seizure and search
historically Lasson, see press, of and speech of freedom suppress S. Warrant, 367 U. v. Search Marcus 37-50; 33, at supra, (dis 360, 359 U. Maryland, Frank v. 724-729; of liberties also, the today, and senting opinion), became when it. Hitler, "Under indivisible. are person dictaphones planted police the secret known that in bathrooms gathered often of families members houses, hop affairs, intimate- discussions whispered to conduct sending apparatus.” reach escape the ing thus (dissenting 2d Lee, F. v. On States at than deeper strikes surveillance Electronic opinion). castle; is home man's feeling that ancient our a'postulate communication, freedom at strikes captured Davis Agent words society. Lopez’ kind by constitutionally privileged not were Minifon speech But freedom Amendment. First force unconstrainedly speak fear to people where is undermined office. and of home privacy to be the suppose they in what A Surveillance: Electronic Tapping King, Wire L. Rev. Dick. Consideration, Constitutional Neglected govern surveillance electronic If (1961). 17, 25-30 little is there widespread, sufficiently becomes ment a people hazard it, checking prospect fantasy. is and furtive hagridden may become we speech of freedom the obverse right privacy tó *36 lately recognized has This Court sense. another right, may include freedoms First Amendment NAACP See anonymity. circumstances, to certain under v. Bates 449; Patterson, S.U. 357 rel. ex Alabama v. S. 362 U. California, Talley v. 516; Rock, S. 361 U. Little NAACP, 366 U. v. Gremillion rel. ex Louisiana 60; Comm., Investigation Legislative Florida 293; Gibson quiet, equally and the passive The 372 U. S. protection are entitled aggressive, and the active ideas expressing activity of precious in the engaged when anonymity destroys all surveillance Electronic or beliefs. everything privy government makes all privacy; and goes on. intolerable is an I think it circumstances light of these In seizures and searches while conventional anomaly that Amendments and Fourteenth Fourth by the regulated are statute, elec- federal prohibited is wiretapping and which case, in the instant as involved tronic surveillance freedom, right private to the danger greatest poses the law.20 federal beyond pale wholly of. steadfastly enforced large and has This Court per- into intrusions against physical Fourth Amendment But officers. by law enforcement property and son, home, seems, has been outflanked decisions, it now our course past. very recent technological advances by the elec- if to condone we continue but believe that I cannot agents by permitting by federal tronic surveillance courts, we shall in the federal fruits to be used evidence lawlessness of official a climate contributing to and this Constitution helplessness conceding society.” a free rights “fundamental Court protect at 362.21 Maryland, supra, Frank v. eavesdropping more Hennings electronic termed Senator has Wiretapping- wiretapping. The prevalent than
'insidious more L. Rev. Legislator’s View, 44 Minn. A 'Eavesdropping Problem: “far problem called the (1960). has observer Another Williams, Wiretapping-Eavesdrop graver” wiretapping. than View, 44 Minn. L. Rev. ping A Defense Counsel’s Problem: (1960). consider do, I no occasion to Viewing I find the instant case as entrapment. petitioner’s defense