United States v. James A. White
405 F.2d 838
7th Cir.
1969
Check Treatment

*1 my Merrill, supra, not, at was court thus district pertinent: error,” at view, “judicial the claimant the rea it and as to which would describe oft-quoted “The Rock observation 60(b) provision time of Rule sonable Island, & Louisiana Co. v. Arkansas R. might approximated the time with well be 143, 41 S. Instead, joint appeal. counsel was for ‘Menmust Ct. 65 L.Ed. acknowledged (9) oral It was error. argument they square turn when deal corners one drawn the order was Government,’ reflect does not (10) grant counsel. The claimant’s merely expresses callous outlook. 60(b) primari ing is of relief under Rule duty of all courts observe ly of the dis a matter for discretion Congress for conditions defined Practice, Federal 7 Moore’s trict court. charging treasury.” public 1968); para. (2 60.19 Assmann ed. ex- affirm the district court’s (8 1947). Fleming, 159 F.2d 336 Cir. provision. clusion of the interest ruling not The of the district court should except upon showing a clear aside of abuse of that discretion. Farmers Co Strand,

op. Ass’n Elevator Non-Stock v. (8 1967), de 382 F.2d 232 Cir. cert. UNITED America, STATES of nied, 19 L. Plaintiff-Appellee, (11) persuad Ed.2d I am not at all 659. Judge Harper’s ruling ed that amounted WHITE, James A. Defendant-Appellant. (12) Obviously, parties’ to an abuse. Nos. 16022. acceptance or of the form of the mutual production Appeals United States Court of der Their contract. Seventh Circuit. of the order request the district court’s atwas Jan. was an accommodationto nothing the record There is court. April Certiorari Granted claimant, suggesting in return that the See 89 S.Ct. 1305. bargained away for interest, a claim against government. See Stein costs (7 Nelson, er F.2d Queen 1962). (13) Merry Transfer In re (E.D.N.Y.1967),

Corp., F.Supp. 605 mandatory case, interest was where governing York statute. New

under the held cur from a decree

Its omission 60(a) made Rule motion under

able intervening after an later and

13 months held to

appeal. of waiver was A defense factual thus the The case is

be frivolous. author

opposite one and govern

ity relief is available 60(a). under Rule

ment here windfall gives claimant

reversal public funds. expense of party here adverse may not While Government. phrase,

always it is like the sound of just government

a truism that “the litigant.” party It seems

another me Frankfurter’s words Justice

that Mr. *2 Chauncey Eskridge, Ming, William R.

Jr., Ill., Chicago, Shenker, Morris A. Murry Randall, Boeger, John L. St. L. Louis, Mo., defendant-appellant. for Foran, Thomas A. Edward V. Hanra Lulinski, han, Attys., Peter U. S. John Chicago, Ill., Atty., Asst. U. S. Werksman, plaintiff-appellee; M. Gerald Attys., Krajcir, U. J. Asst. S. Robert counsel. CASTLE, Judge, Chief MA Government’s Before evidence tended Judge, prove following

JOR, SCHN facts. On Senior Circuit December KILEY, 9, 1965, Harvey Jackson, ACKENBERG,1 HASTINGS, CUMMINGS, testify trial, FAIRCHILD, SWYGERT, who did not defend- met Judges. KERNER, ant White kitchen of the inform- Circuit Chicago home. The er’s informer had *3 person concealed on his a kel set trans- SWYGERT, Judge. Circuit agent, mitter and had allowed a narcotics White, defendant, A. was James Jackson, Carl himself a closet hide jury on tried before a and convicted adjacent agent to the kitchen. While indict- counts of two consolidated seven concealed, Jackson was so he overheard charged him with certain ments which a conversation between informer Jackson arising under narcotics violations and White and White observed transfer 4705(a) provisions of 26 U.S.C. § package pack- to the informer. This imposed U.S.C. 174. The district court § age, according tests, subsequent con- prison twenty-five years of sentence tained heroin. From inside the closet $35,000. and fined the defendant he where could see and the inform- White court, three-judge panel A this through slightly doors, agent open er judge judgment dissenting, reversed the inquire Jackson overheard the informer Subsequently, of conviction. the Govern- many pack- how ounces there were petition rehearing ment’s for a en banc age ; responded, good defendant “one granted. Upon was of this consideration asserting After ounce.” that he would by court, entire we are of the cause following day payment, return the for prior that our decision should left the informer’s home. followed and that district court’s be agent Narcotics who was Robert DeFauw judgment of conviction must be reversed situated an outside in- automobile and the case remanded for a new trial. home entire former’s overheard the con- versation on a radio which received trans- upon by principal error relied missions from the kel informer’s set. controls our defendant and the one which informer December 1965 the disposition appeal of this ad was public telephone called White mission into incrimi evidence certain arranged day appointment for that nating made the defend payment the informer’s home for so ant which were overheard means prior transfer could made. eavesdropping by narcotics Government Agent Jackson, per- agents. the informer's This was accom mission, on this conversation plished by placing overheard kel of a radio telephone used same receiver transmitter2 Agent Jackson, in- informer. and the Harvey Jackson home, former then went to the latter’s before he talked at various with White agent again home, where locations, including Jackson concealed the defendant’s himself in the in- automobile, place business, the closet and observed as well $1,000 in of- former and White count did informer’s home. At time funds, given previously ficial the inform- the Federal Bureau by agent put er DeFauw. White secure a search warrant Narcotics money pocket, in his told the informer authorizing eavesdrop court order such get that he more “stuff” on De- ping. (1967) required reversal of White’s con Although Judge SCHNACKENBERG hearing, participated viction. he in the en banc re opinion. adoption prior died prior panel set is a small transistorized decision of 2. A radio kel As author court, sound voices or which transmits he was the view that device receiving up picked on of Katz v. United which can rationale units. package leave to received a which he would informer requested the cember day a on the seat of the informer’s car. Then on next m. the p. meet him at 6 he had leave informer fur- White said Chicago corner agent specified street in order meet After Again another man. DeFauw payment. ther agent departure, en- in his White’s Kerstann the entire overheard package tered the taining con- re- car and seized home the informer’s car outside kel heroin. from the ceiving radio transmissions previously concealed had been set which On December 1965 the informer person. on the informer’s given $1,250 placed kel set and a under agent DeFauw, his clothes. While followed DeFauw On December body, Jackson and placed a informer’s kel set residence, $360, drove followed latter’s him with furnished where Jackson usual A con- resumed his residence. him the defendant’s *4 position in the the kitchen closet. the and versation defendant .surveillance the Jackson saw kitchen, enter the place the defendant took inside informer which table, join sit down at a the on a and was overheard defendant’s home counting $1,250. agent informer the by at his When DeFauw receiver radio During heroin, requested the informer position home. more outside White’s White forthcoming him more advised would be of this monitored conversa- course arrange- following tion, day, money but that and was counted payment to be made more for the defendant would have ments were made quickly supplier because the sell of “stuff” “wanted an additional two ounces money.” Agent $1,250, payment on Jackson overheard December 16 with agent closet a de- conversation and due week and a half after within livery. requested DeFauw listened a radio receiver from The defendant faster on position suppliers payment in a car inform- their outside the since his wanted arrangements money er’s were residence. sooner and again p. meet on made to 6 m. Decem- agents following day, On the David ber 16. Connolly and Arthur Lewis followed agent White from his residence to a tavern On DeFauw December briefly Harry placed he where talked D. kel under the informer’s Wil- a liams, Chicago peddler, clothing a another and and followed him to narcotics departed. stopping at met then After a intersection the informer where clothing store, Chicago entered the informer’s car. White drove a White who picked up intersection where Minerva While informer drove he White and hours, agent city accompanied De- who one-half around the for two White for Although carrying Fauw, following car, them in his over- block. Minerva was their a white shoe box when he entered White’s car, heard receiver conversa- radio quality concerning price he tion left with a briefcase. White black Williams, block, picked up left the a Thereafter informer drove heroin. they he had meet returned had car said tavern where because White day. few earlier the same Meanwhile man.” drove car a talked “this White Chicago set, equipped with a kel blocks to another intersection Minerva, sup- picked up a While where he plier Sam had entered same tavern. agent car, point At in the went of narcotics. Williams remained White trailing in- talked William who was into tavern and Kerstann emerge They White, a few observed Minerva from former. left and drove riding separate point to a where after short distance. blocks cars car got couple stopped, out of his White defendant Kerstann followed car, car, in- walked to the informer’s to a street corner where blocks Agent Mey- By re- radio handed him a sack. Vernon former the car. re-entered er, surveilling ceiver, the in- who been the defendant had overheard Kerstann activities, say a radio man heard over met certain former’s had containing his car the defendant ask the informer and seized the briefcase hero- city’s to take south side. Williams in. Williams, carrying paper also brown The Government’s evidence was sack, car and entered informer’s largely upon testimony by based oral appointed him to their desti- drove with agents they narcotics overheard discharging Williams, nation. After incriminating statements made White gave agent informer met DeFauw and informer, Harvey Jackson, to the secret paper him the sack which contained and transmitted the kel set device. heroin. stated, As we have heretofore these January DeFauw transmitted conversations occurred placed gave a kel set on the informer and home, automobile, place defendant’s $1,300. him From the in the in- closet of business as well as in the informer’s secreted, former’s kitchen where he was automobile and home.3 The defense ob Jackson the defendant observed jected when DeFauw and other money. and the informer count concerning testified White’s in bring’ told informer criminating statements transmitted from Dining “remaining Room $950” the kel set concealed the informer’s Aluminer, operated a restaurant body. objection was overruled. A requested White. White also motion the defense made at the con large purchase amount clusion of the Government’s case to strike *5 pay heroin and in advance. The entire the conversations to which the various by agent conversation was heard DeFauw agents ground they on testified the that over the radio in car. were in violation of the fourth and fifth amendments was the court. denied days later, given Two the informer was placed per- and had kel set on his $950 presented The central issue is whether agent son DeFauw. The fol- defendant White’s fourth amendment Dining rights, lowed the informer protecting against White’s govern- him Room Aluminer which the informant mental intrusion unreasonable search automobile, From his seizure, infringed entered. were when DeFauw heard over the defend- his radio narcotics electron- price ant tell the informer of ically intercepted private conversa- going up heroin was that he should tions. Chicago meet White at a intersection constitutionality To decide of the $2,500 delivery where a heroin be overhearing surreptitious Government’s made. conversations, apply of White’s we January 8, recently DeFauw saw criteria set forth in Katz v. standing city stop. at a Minerva bus The United U.S. 88 S.Ct. up, stopped, opened defendant drove 19 L.Ed.2d of facts door, approached and Minerva the car. Katz were Federal Bureau of In- said, on, give man, White vestigation agents, “Come me the having probable cause package, got get acting I’ve out of here.” carefully in a controlled man- Minerva a brown judicial approval, handed leather brief- prior ner but without case into the car and that he would placed listening said an electronic and record- pick up money Agent ing later. public DeFauw telephone device outside placed the defendant telephone White under arrest intercepted booth and conver- may ty, There can be 1968); no doubt that these F.2d Lanza constitutionally protected York, areas. “Wher- v. New 82 S.Ct. may be, (jail visiting ever a man he is entitled area). protected know that he will remain from un- free room not a It is not the alone, relationship reasonable searches and seizures.” United but area Katz, person protected States v. 389 U.S. at 88 S.Ct. the area also, Hagar- at 515. See United States v. critical.

«43 ing statements, made from of oral overheard with- which the defendant sations ** any trespass knowl- out ‘technical under to others without the booth any property edge local law.’ Silverman v. United or consent parties to the conversations. conviction, reversing the 5 L.Ed.2d 734.” 389 defendant’s covertly Consequently, that the admis- Supreme at 512. White’s evidence, of these conversations overheard within the sion scope covertly guar- surveil- fourth amendment’s obtained they lance, were improper because antees. was of the defendant’s in violation seized disregard urges The Government us to Essentially, rights. fourth amendment rationale because certain was determination Court’s Although recog- factual differences. we judicial prior grounded lack of differences, nize these factual we believe authorization, warrant because no search legal significance. them to be without un- obtained, fact had been gov- It is true that the Katz case involved justifi- antecedent der circumstances interception ernmental aof magistrate essential cation before knowledge without the ei- consent or amend- fourth the defendant’s to insure party, ther whereas in the case guarantees. ment conversation, party to the monitored Jackson, cognizant stated The Katz designed pre Government’s activities. amendment fourth against ear” privacy “uninvited serve however, opinion, our must be governmental intrusion and surreptitious placing the kel places.”4 “protect people, not applied to conceptual for all informer Jackson was doctrine, suggested earlier trespass purposes surreptitious same as States, 277 U.S. Olmstead wiring telephone booth in Katz. L.Ed. “bugging” part Each act was tech- and 129, Goldman nique by was trans- which a conversation *6 (1942), 993, L.Ed. govern- mitted “uninvited to ear”— prior provided the basis and which agents. ment The crucial fact in each area, Supreme in this Court decisions respective speakers did case is that the States, 343 U.S. such as On Lee v. United overhearing their not consent of to 96 L.Ed. 72 S.Ct. squarely statements and that conversations by the Court discarded by persons were overheard third unin- underpinnings of Olm Katz: “[T]he by speaker. vited eroded have been so stead Goldman claim, does, that as the Government To subsequent by decisions our party amend- the fourth can waive can enunciated ‘trespass’ there doctrine thing rights is the same ment of another controlling.” longer regarded as be saying been de- Katz would have as at 512. 389 U.S. differently recipient if cided intercepted phone to had consented call indi further Katz case bugging. un- We are Government’s are within conversations cates that meaningless that such a protec able believe amendment’s scope the fourth rendered the gov have form of consent would Amendment Fourth “[T]he tion: any tangible defendant’s overheard only the seizure erns we think in Katz. Since more admissible to the record- items, as well but extends compre eavesdropping “the most relationship Justice Brandeis 4. The right rights most right privacy hensive has been the by continuing judicial men.” Olmstead valued civilized concern. source 438, 478, States, eavesdrop S.Ct. 277 U.S. United Wiretapping forms of and other (dissenting L.Ed. 944 recognized ping most their even are opinion). on a as encroachments advocates zealous right privacy, characterized man’s signifi ject only specifically of constitutional to a few no distinction estab exceptions.6 third cance can between the lished be drawn and well-delineated overhearing presented party in Katz Katz v. United 389 U.S. monitoring here, the and the consensual S.Ct. at 514 omitted]. [footnotes de fact listener consent is without especially important significance operate and cannot cisional approval Court in Katz referred with any speaker’s fourth as a waiver Osborn v. United rights.5 amendment where The content of the defendant’s essentiality prior authorization conversations, private intercepted emphasized. paid In in- Osborn a activity and Government’s clandestine former recorded conversations between control, judicial prior without must be himself and the defendant in order to per evidence if se inadmissible corroborate his sworn statement that the language literally applied: of Katz is attempting employ defendant was him prospective juror. bribe a Osborn conducted without Searches warrants teaches what in the instant have been held unlawful “notwith done, do, case should have failed to but showing standing questionably facts namely, authorizing obtain a warrant probable cause,” Agnello v. United use of electronic surveillance devices. 20, 33, 269 U.S. [46 for the 70 L.Ed. Constitution re 145] exceptions to the warrant rule of quires deliberate, impartial “that explicitly Osborn Katz which are * * * judgment judicial aof officer mentioned in the do not interposed between the citizen and application governmental have * * police Wong Sun presented endeavors 481-482 fact, ease. our conclusion 9 L.Ed.2d [83 441]. agents’ testimony relating that the again empha “Over and this Court has transmitted statements of the defendant sized that the mandate they [Fourth] which overheard is inadmissible is ju requires Amendment adherence to strengthened Court’s processes,” dicial v. Jef language unequivocal clearly pre- fers, any [72 cludes the existence of fourth amend- 59], 96 L.Ed. and that searches con exception ment for consensual surveil- judicial process, ducted outside “And, course, very lance. nature prior approval by judge without precludes of electronic its surveillance magistrate, per se unreasonable pursuant suspect’s use *7 consent.” under the Fourth Amendment —sub Katz v. United at U.S. holding In that purpose See, g., rationale of Katz of the search. e. Camara applies regardless party Municipal of whether Court, one to v. 387 U.S. private a Thus, consents to the (1967). 18 L.Ed.2d 930 interception Government’s of the conversa- warrantless allowed a tion, purport any we ground do not to make de- an automobile on the search of regarding jurisdiction termination might the voluntariness of before that it leave the participation obtained, Jackson’s could be a warrant Carroll agents’ scheme. Since it our is view v. United irrelevant, that a ap- listener’s consent is L.Ed. 543 and has is to sample difficult see how proved taking informer Jackson’s a blood without conduct, product necessary whether securing of coercion first a warrant to consent, prevent dissipation could have constituted a alcoholic blood’s waiver of the content, California, defendant’s constitutional Schmerber U.S. rights. Only his own consent could have 16 L.Ed. created such a present case, waiver. The rationale of the Government did In the permits Katz no other conclusion. argue would have not that the evidence delay obtaining been lost due to the exceptions permit 6. These a warrantless suggest warrant, that obtaining nor do facts a search whenever the burden of likely argument a warrant would be have been made. to frustrate the such an could added). (emphasis Thus Court on at 515 determined a constructive knowledge language applied theory of Katz the literal it is unreasonable require say places telephone re- us would that one a ease before who call not consent to takes the risk versal since White did extension on justifi- may picked no antecedent the other end of the line be sought. up by an party cation third uninvited with or complicity without intended must which Our view as result determining point listener.8 The focal upon application be reached speaker’s the existence of a fourth principles our un- reinforced is rights amendment must be his whether derstanding of the fourth amendment. activity keeping directed at That amendment’s search and seizure private and what were person protection a when lost overhearing risks he should as matter law can said actions justifiably anticipated have time right. of his Since constitute waiver deciding of his statements.9 In whether protects speak- fourth amendment the defendant waived his fourth amend right right privacy, would be er’s rights, ment we are mindful of Su illusory if it could be waived preme Court’s admonition in Johnson v. individuals. Zerbst, provide a cata decisions (1938): 82 L.Ed. 1461 ‘“[C]ourts logue speaker’s of instances where a be indulge every pre [should] reasonable waiver of his fourth havior is such that a sumption against waiver’ of fundament rights ** * as mat amendment has occurred rights al constitutional we example, ter of For Hoffa v. Unit law. presume acquiescence ‘do not in the loss ” 408, 17 ed U.S. rights.’ of fundamental on the un L.Ed. based Nonetheless, Government, relying one articulated rationale that when upon following Katz, from statement speaks in the risk that his takes attempts distinguish from testify may subsequently tended listener us, the facts before “What a of the conversation. as to contents knowingly exposes public, even risk, although prod perhaps the Such a office, subject his own home or is not a confidence,” “misplaced rea uct of a protection.” of Fourth Amendment foreseeable, objection sonably and thus Katz, risk taken thereto is waived. Another ap 88 S.Ct. at 511. To ascertain speaker in Rathbun is outlined plicability formulation, must we case, (1957).7 questions address ourselves protected the ambit of first Rathbun is based narrower 7. To the extent activity theory, party it is incon- amendment important will become. This consent interrelationship ruling is detailed in of Katz. We broad sistent point Greenawalt, speaker of view Problem in risk Consent view it Wiretapping Eavesdropping: purposes & Sur- our discussion. reptitious Monitoring with the Consent deciding important fourth for courts Participant Conversation, *8 of a in a 68 questions into to take account amendment (1968). 189 Colum.L.Rev. relationship amendment between that court, speaking through Judge penumbral pro- This 9. and first amendment’s recently privacy. Hastings, recognized which is nexus a substan- of tection analysis tially inquiry: speaker appropriate. “One who intends risk similar makes govern- pri- places great transaction to be If law risks steps keep an ac- vate takes reasonable to intrusion individual’s and mental private private protected government speech, tivity, especially he his is intrusion unauthorized warrant or well- of his will inhibited in the free exercise be rights, is, special broad- defined circumstances.” United first that amendment (7th Haden, scope governmental and States v. F.2d 465 searches 397 er the 1968). con- Cir. determined to be seizures which are amendment, fourth sistent with the 846 error, at trial and that their admission activities vio

whether the Government’s ground privacy justifiable expectation for reversal.13 constituted lated a held and whether which the defendant Although the Government has cited knowingly acted in such a manner as support position, numerous cases to its expose thus waive his and statements they inapposite. the case be- Unlike rights.10 appraisal of the A realistic us, States, fore Hoffa v. 385 United permits no con conduct other defendant’s 17 374 justifiably expected that he clusion than States, 385 U.S. Lewis v. United private.11 The to be his conversations pre- plans well-laid there was no sented situations where recognized they were made because interception or transmission sought their to exclude the defendant They the defendants’ statements. stand they Why else would uninvited ears. proposition informer is for the that an Jackson, upon placed have hired competent to conversations witness transmitter, person a hidden radio dealings defendant. Looked in the in concealed Jackson viewpoint speaker, at from the to overhear kitchen closet former’s person that a these cases demonstrate Additionally, conversation ? defendant’s confiding in another takes risk private con the locations chosen for the may misplaced and that the confidence be the defendant versations indicate that may or record the confidant memorize against steps protect took reasonable repeat at trial. them governmental intrusion. In such a situ applicable pro- rule That risk and the only we conclude ation can guidance present problem. for the vide no rights fourth amendment defendant’s violated,12 sup the failure to Likewise, were Rathbun v. United press 2 78 L.Ed.2d 134 evidence his statement S.Ct. suggested According language Katz, 10. been in Other tests have deter 12. precise mine the contours of the fourth Government’s activities in elec- “[T]he tronically recording protection. listening As articulated to and amendment’s privacy concurring opinion Katz, petitioner’s Jus words violated the in his * * * justifiably up require upon which he relied tice Harlan sets a twofold seizure’ ment : that a have exhibit thus constituted a ‘search and “[f]irst expectation meaning (subjective) ed an privacy within the of the Fourth Amend- actual and, second, expectation ment.” Id. 389 U.S. at society recognize prepared be one The assessment made the Court at 512. ” equally applicable regarding Katz is as ‘reasonable.’ 389 U.S. at surely (concurring opinion). en- “[He] the defendant White: to assume that the words he utters titled justifiable expectation privacy * * * will be broadcast only conclusion must drawn Id. at at 512. world.” after an examination of all the circum- surrounding in which have reached an identical stances the context Other courts right arises; light conclusion in of the Katz decision. the asserted these cir- Doty place g., 3 Crim.L.R. indivi- E. cumstances which the (10th 1968), attempted appropriate on rehear 2220 ing pending; decision dual has to his Cir. personal asserting Jones, use his claim to States v. Contra, privacy. (D.D.C.1968). Supp. illustrated in This was another F. Katz, Dancy search and seizure after case decided F.2d (5th J., sitting by DeForte, 1968) (Fahy, des Mancusi v. Cir. dissenting). ignation Cir., L.Ed.2d 1154 from the D.C. deciding issue that a union official has stand- circuits which have faced the Other object ing presented to seizure of union records here such as the Second Circuit Jackson, F.2d from ficials, office lie shares with of- States v. phrased (2d 1968), relevant Ninth the Court and the Circuit question the defendant while v. United 1967), F.2d 471 whether Jack *9 justifiably opinion occupying place before such a could voiced their expect governmental Supreme adjudication Katz. freedom intru- of the Court’s sion. overhearing judicial proper the there (1957), case was a consensual basis, approval in of of reasonableness on a constitutional not decided recording. assumption risk of a volved of operated a waiver that as defendant principal The Government’s reliance protection. The amendment his fourth placed on the in Lee Unit- decision On de holdings court’s Rathbun and ed States, 311 in cision Williams L.Ed. 1270 There an electronic denied, U. Cir.), cert. F.2d device which transmitted two conversa- L.Ed.2d S. agent an tions defend- question (1963), before not settle do ant, place of which took de- of no Govern benefit us and laundry fendant’s and the other a few ment. days street, later on the was on concealed body agent. an undercover Lopez On each has occasion transmitted conversa- 10 L.Ed.2d government distinguish it tion was heard factual features which Lopez nearby receiving a con- stationed In with instant case. device. from the agent’s testimony The an under- as to what hád cealed device be- heard was admissible over recorded a conversation de- cover that Admis- fendant’s contention the informer tween him and defendant. recording trespasser awas itself hence seiz- in sion evidence agent’s proscribed by ure was the fourth amend- the undercover to corroborate facts, directly upheld Lee testimony ment. On its in was in circum- On point disposition important dis- and would control of the case. stances Lopez supervened if of this case had and this case not tinction between Jackson, informer, Harvey Supreme if had not on Court here completely produced occasions eroded the a witness whereas was not Lopez wit- Lee. was a decisional basis the Government On goes Lopez hold further than to ness. The recent of the Lee treatment On informer testifies where it on indicates that now stands doctrine defendant, a record- conversations with ground. only unfirm mem Not four did ing admissible of such conversations disagree with bers purpose corroboration. limited for the decided, Lee also On when was but majority pointed Lopez, the out Osborn help Lee was of no to the defendant. concurring Justice, opinion, Chief con- recorded plain that he could was careful to make de- himself and the versations between join any implication that ma corroborating purpose fendant accepting jority the continued vital was allegations ity of On Lee.14 endeavoring employ him to bribe juror. Although ease Lee prospective The most lethal blow to On overruling monitoring in Katz the consent dealt with Court’s involved actually said: “Since decision of this Court—On Le Justice Warren Chief e— f very analogous suggests agree Brennan bar I Mr. Justice to the case at my colleagues strongly wrongly who that some of and should On Lee was decided today joined opinion revitalized, my but base views have Court’s not be grounds agree On Lee should be stated in the with us that different from those Court, special- dissent, dead considered a letter. For have chosen concur adopted Lee, Lopez, ly.” rather than follow On at the Government’s the substance S.Ct. at 1389. tempted Brennan, joined Lee and distinction between On Justices Justice Goldberg, Douglas Id. at in dissent: the instant case.” stated more than to accord “The Court’s refusal only passing mention in its *10 848 point

of the and disposition Goldman Olmstead bulwark and would control provided conceptual teaching basis which had of this case unless its is to be overruling rejected. completely for join On Lee.15 of these with Justice On, reasoning regarding cases combined with the White in Lee as “undis scope (Con leaves for Lee’s teach On turbed” decision Katz. ing. reasons, curring opinion, States, For these Lee cannot On Katz v. United 347, 363, n., 507, the foundation of our decision. 389 U.S. 19 L. 88 S.Ct. (1967)). Ed.2d 576 theOn of the constitution basis Although part a substantial ra principles al forth in Katz and our arguably tionale of On Lee has been dis understanding protection which cases,1 credited in later the case was cited the fourth amendment was drawn approval States, Lopez with v. United provide, we are of the 427, 438, 373 U.S. 83 S.Ct. 10 L. surreptitious monitoring defend Ed.2d in Katz v. United ant’s conversations was naked violation States, 347, 363, 389 U.S. rights that the resultant seiz (1967) (Concurring opinion L.Ed.2d 576 ure of not made in his statements was White). of Justice conformity provisions of that amendment.16 The Government’s use of conversations deception obtained aof Govern- disposition In view of our of this issue ment has been with in nu- dealt unnecessary we find it to consider cases, validity merous and the of such alleged presented by errors the de- consistently upheld conduct has been fendant. freely where the conversation was en- Accordingly, previ- we adhere to our tered into the defendant. reversing judgment ous decision Thus, Lopez v. United court district and remand the case 427, 439, 83 S.Ct. L.Ed.2d a new trial. Court held recording made a Government CASTLE, Judge, Chief with whom properly of a bribe offer was ad- FAIRCHILD, HASTINGS Circuit mitted into evidence. Since Judges, join, dissenting. to, did, testify was entitled about the agree myself I find unable to defendant, conversation he had with the decisional basis On Lee has been erod anything there no “seizure” of with- ed to the extent moni knowledge con- out the defendant’s toring defendant’s conversations voluntarily participated in sent when he with the con with the latter’s incriminating re- conversation. sent, regarded must now be consti only device, therefore, cording used tuting an unreasonable search and seiz pos- to obtain the reliable evidence most ure in violation of Amend the Fourth Gov- sible of recognizes majority opinion ment. The through rightfully its heard ernment directly facts Lee its Hay Penitentiary g., supra. Warden Md. p. e. 15. For further discussion see den, 387 U.S. premise (1967): “The prior 18 L.Ed.2d 782 16. The decision overrules our right property control pertaining interests admissi determinations and seize bility to search of the Government in situations seized Katz v. presented g., been discredited.” Cf. E. similar to those here. Pullings, 321 F.2d States (1967); Silverman v. 1963), L.Ed.2d 576 (7th and United Cir. Vittoria, 284 F.2d (1961) ; Wong Sun 1960), wherein we held that consent an party’s individual can waive another rights. fourth amendment

849 memorize, record, (including Lee) Moreover, “no or agent. case involved the any proper transmit the It conversation.2 seems ‘eavesdropping’ in whatever the reasonable to if re conclude term. Government sense of cording Lopez “eavesdrop in listen was not an electronic device to use did not ping,” it not otherwise because was con it could done in on conversations participants, at sent one of the and there S.Ct. 373 at 83 have heard.” U.S. no fore not an unreasonable search there was followed that 1388. seizure, then a is violated transmission likewise which search and seizure prohibited not Amend Fourth Fourth Amendment. statutory prohibition, ment. Absent recently were Even more decided significance legal there fact States, 385 Lewis v. United U.S. case, transmission, in a one 17 312 L.Ed.2d overhearing person simultaneously Hoffa U.S. conversation with the consent one In S.Ct. participants in while the other a ma Lewis, where the de- held that Court employed chine is such con record a person, who was a fendant invited versation for future There disclosure. agent, house into his secret Government fore, perceive I no distinction which selling purpose for the narcotics require different treatment agent, subsequent into evi- admission purposes of the Fourth Amendment. bought by the dence the narcotics in not the recent do read decision had the conversations which U.S. parties not place did taken as L.Ed.2d 576 violate the Fourth Amendment since changing expressed cas- law as in nothing the defendant took just es Nor I view the de- discussed. do given him, voluntarily and the had not extending degree in cision Katz as nullify deception the defendant’s did not Katz, majority. ascribed to In consent. the Court reversed a conviction based Hoffa, In the Court held that no viola- upon telephone one side of a conversation tion of Fourth Amendment occurred overheard Government defendant, acquaintance when an of an means de- hotel whom invited to his defendant had telephone public vice installed on the suite, heard conversations directed placed his call. booth which defendant presence. him Un- or to others in his The Court that: acquaintance known to defendant “ * * * Amendment the Fourth paid was a informer. Hold- protects people, places. not What ing merely a case of “mis- this knowingly exposes public, person placed confidence” than unreason- rather office, not own home or even seizure, able noted search Court subject protec to Fourth Amendment any either nor mem- this Court “[n] States, 385 tion. See Lewis v. United expressed the ber of it ever view L. [87 U.S. protects Fourth Amendment Lee, 312]; Ed.2d United States wrongdoer’s misplaced per- belief that L. [47 voluntarily son to confides whom 1202], pre But what he seeks Ed. (Citing wrongdoing it.” will not reveal private, area even acees serve Lopez). 385 U.S. at may public, constitu sable ” * ** tionally protected. 389 together, Taken these cases establish 351-352, at 511. voluntarily principle that one who language by the with another The use Su enters into conversation may preme the distinction takes the risk that such illustrates case, important that, It is note there no search warrant court the instant Lopez, Lewis, order in or Hoffa. case, speaking expo- between Katz and the instant consents to state of the law. sure of demonstrates is not conversation reasonable Katz, surreptitiously protected the Government and therefore overheard side of Fourth Amendment. This Court recent- *12 ly party pointed without the consent of either there- out the distinction to, misplaced after defendant had taken steps protect privacy. reasonable to Haden, confidence in United Court, therefore, held that “[t]he 1968), (7th 397 F.2d 460 where we Cir. electronically in Government’s activities (at page 465): listening recording petitioner’s to “One who or intends a conversation upon privacy he words violated which private transaction to be and takes justifiably using relied while the tele- phone steps keep private reasonable and thus a to it is booth constituted meaning protected 'search government and seizure’ within the from intrusion of the Fourth Amendment.” at 389 U.S. unauthorized warrant or well-de- 88 S.Ct. special fined circumstances. Katz Cf. States, 389 88 S.Ct. U.S. Katz, Unlike the instant case involves (1967). 19 L.Ed.2d But he is 576 seizure, misplaced not a search and but a eavesdrop protected surreptitious consequences confidence — not not ping, obtaining merely but of evi places of error if he in trust the si- dence of in conversation lence, duplicity gov- complicity or of a Government, through its was a ernment informer.” or States, participant. Lopez See Therefore, application of Katz 427, 439, 1381, 10 L.Ed. 373 U.S. recognition the instant case of the is its person 2d 462 on the Had the principle telephone that: line in Katz end allowed Government to listen speaks “When one he man to another conversation, there would have ordinarily inherent takes all risks been Rath no constitutional violation. doing, including in so risk States, 107, 111, bun v. United 355 U.S. speaks pub man to whom will make (1957); 78 2 134 S.Ct. L.Ed.2d lic what he The Fourth has heard. Williams, United States v. 311 F.2d against protect Amendment does not 1963), 725 cert. den. (or law-abiding) unreliable L.Ed.2d 1035 associates. (1963). Thus, is States, once conversation supra. Hoffa v. United through private deprived character its logical but a and reasonable extension thereto, parties consent of principle of this a man take Amendment, having pro the Fourth not hearer, risk that his free to memorize pro exposure, initial does not hibited the rep what he hears for later verbatim into hibit the introduction evidence etitions, recording instead transmitted or recorded. conversation as transmitting pres it to another. The Katz, itself, person “what a stated As entirely ent case deals with an [Katz] public, knowingly exposes even situation, different for as the Court office, subject his own home or not emphasizes, petitioner “sought protection. Fourth Amendment See * ** ear,” exclude the uninvited Lewis v. United U.S. spoke under circumstances 424, 427, 312] [87 person which a reasonable would as ” ** * at 511 U.S. sume that uninvited ears were not added). (emphasis listening.” Katz v. United defendant, n.,

Thus, any expectation, (Concurring opin privacy, L.Ed.2d 576 when the whom (1967), supp White), (Emphasis L.Ed.2d 1040 ion Justice 347, 88 lied).3 and Silverman concluding Amend the Fourth prohibit transmission ment does 5 L.Ed.2d the electronic transmission in the included instant case therein, participant de where the only those words which vol- voluntary party the con fendant is a untarily spoke to the informer and in- that, versation, am the fact mindful of hear, knowingly tak- tended that he thus recognized in numerous ing the the informer risk own,5 decisions,4 as our as well disclose them to the Government. stratagem deception often not, therefore, approve *13 Such view does only way in can obtain permit “requirements or violation of the pro relating To crime. formation a name of the Fourth Amendment in the might, in cer of such deceit hibit use Berger of law enforcement.” as forbids areas, prevent enforce effective law tain (388 1885), at at but U.S. 87 Supreme in v. ment. Lewis The Court by compelled rests aon conclusion an 210-211, States, United 385 U.S. analysis of those in which decisions 312 17 L.Ed.2d Supreme has date considered approval from the quotation cited with subject matter. comment, 2.10, p. 16 Model Penal Code § (Tent.Draft 9, 1959): No. HASTINGS, Judge (dissent- Circuit “Particularly, in the enforcement ing). vice, laws, liquor all or narcotics join Judge in I Chief CASTLE impossible for to obtain evidence but able dissent in this case. I wish to add a by decoys. prosecution use of save my few brief own. comments complaining rarely witness- are There rehearing participants I for en in en- to vote the crime was moved es. by joy Misrepresentation banc because in instant White case themselves. agent concerning thought majority opinion, written police I officer Schnackenberg, Judge illegal identity purchaser mis the late of the ** States, necessity takenly upon v. practical relied narcotics is a United Therefore, attempt 19 88 L.Ed.2d the law must 389 U.S. distinguish authority reversal 576 as its between those deceits thought I permissible judgment persuasions of conviction. time, now, the factual I do not.” as those which are present in Katz is unlike situation so above, I For reasons stated am control furnish no case before us deception the view method ling precedent. employed in the case constitu- instant original opinion tionally panel handed permissible funda- and is not so mentally opinion require slip in form on March unfair as to reversal down Schnackenberg power Judge Major supervisory 1968. the exercise our Judge majority, than with Chief over court. Rather were in the district nature, being in the is conceded indiscriminate Castle in dissent. York, majority opinion Berger present 87 en v. New banc footnote, White, ; (1932) also 3. same Andrews Justice L.Ed. United Lopez Hoffa, as cases and On Lee cited today’s deci “which are undisturbed 40 L.Ed. 1023 sion.” Haden, g., F.2d 5. e. State v. United (7th 1968); g., Cir. e. Lewis 1966); (7th Lauchli, 208-211, F.2d Cir. (1966) ; See also Cellino v. Sorrells 1960). 435, 441-442, F.2d majority- prior panel author ration that the the view decision was of SHOCK, Appellant, James E. required a of White’s ale Katz reversal precisely the conviction. Yet TESTER, M. L. Carl E. Miller and Judge position SWYGERT same taken Floyd Weaver, Lieutenant Why majority opinion. in the instant Appellees. indulge necessary this exer itwas No. 19239. the same result in semantics to reach cise Appeals United States Court of authority? cited same Eighth Circuit. Judge I concede that SWYGERT’S Jan. majority sophisticated con ais essay the short stitutional contrast Judge approach taken Schnack direct enberg. present may lie a But therein deference, suggest danger. I With undertaken, majority of Katz that was

broad construction For a

taken stimulating Court. subject treatment of the *14 reading Katz

recommend the v. Unit of The Fourth The Limits ed States: Kitch,

Amendment, by Asso Edmund W. University Law, The ciate Professor of Chicago.1

My directed final comment is summary Lee v.

rather reversal of On 747, 72 majority 96 L.Ed. 1270 ably Judge here. CASTLE Chief My funda- covered this dissent. majority objection mis- mental it has Lee is

treatment On long authority I have to do what it did. view the rather fashioned old only Supreme could set aside Court taking a holdings. By process

its guess making on what head count time, may some future do at

the Court facts, majority On holds: “On its directly point control

Lee would had disposition if Katz of this case Supreme supervened Court if the completely not on other occasions

had of On Lee.”

eroded the decisional basis prophecy future of make no I by the Su- Lee. it is aside Until regard controlling Court,

preme I it as appeal. dispositive judgment of conviction. affirm 133-152, Philip days ago by B. Uni edited Professor few Released a chapter Chicago Press, versity Kurland. as a 1968, pp. Review,