Respondent was convicted in 1966 of narcotics violations following a trial where evidence was admitted of certain incriminating statements of respondent that were overheard by warrantless electronic eavesdropping by Government agents by means of a transmitter which an informer consented to wear during his meetings with respondent. The informer could not be located at trial, and the trial court overruled objections to the testimony of the agents who conducted the electronic surveillance. Reading Katz v. United States, 389 U. S. 347 (1967), as overruling On Lee v. United States, 343 U. S. 747 (1952), the Court of Appeals held that the agents' testimony was impermissible under the Fourth Amendment, and reversed respondent's conviction.
Held: The judgment is reversed. Pp. 401 U. S. 748 -756.
1. The Government's use of agents who themselves may reveal the contents of conversations with an accused does not violate the Fourth Amendment, and this Court's decision in Katz v. United States, supra, does not disturb the rationale of On Lee, supra, in this respect, and require a different result because the agent uses electronic equipment to transmit the conversations to other agents. Pp. 401 U. S. 748 -754.
2. The unavailability of the informant as a witness does not create any Fourth Amendment issue. Pp. 401 U. S. 753 -754.
3. Since the decision in Katz v. United States, supra, was not retroactive, Desist v. United States, 394 U. S. 244 , the Court of Appeals erred in not adjudicating this case by the pre- Katz law established by On Lee to the effect that the electronic surveillance did not involve a Fourth Amendment violation. P. 401 U. S. 754 .
MR. JUSTICE BLACK concurred in the judgment for the reasons set forth in his dissent in Katz v. United States, 389 U. S. 347 , 389 U. S. 364 . P. 401 U. S. 754 .
MR. JUSTICE BRENNAN, to the extent that he joined in the Court's judgment, concluded that Desist v. United States, supra, requires reversal of the Court of Appeals' judgment. P. 401 U. S. 755 .
WHITE, J., announced the Court's judgment, and delivered an opinion in which BURGER, C.J., and STEWART and BLACKMUN, JJ., joined. BLACK, J., filed a statement concurring in the judgment, post, p. 401 U. S. 754 . BRENNAN, J., filed an opinion concurring in the result, post, p. 401 U. S. 755 . DOUGLAS, J., post, p. 401 U. S. 756 , HARLAN, J., post, p. 401 U. S. 768 , and MARSHALL, J., post, p. 401 U. S. 795 , filed dissenting opinions.
MR. JUSTICE WHITE announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE BLACKMUN join.
overheard by monitoring the frequency of a radio transmitter carried by Jackson and concealed on his person. [ Footnote 1 ] On four occasions, the conversations took place in Jackson's home; each of these conversations was overheard by an agent concealed in a kitchen closet with Jackson's consent and by a second agent outside the house using a radio receiver. Four other conversations -- one in respondent's home, one in a restaurant, and two in Jackson's car -- were overheard by the use of radio equipment. The prosecution was unable to locate and produce Jackson at the trial, and the trial court overruled objections to the testimony of the agents who conducted the electronic surveillance. The jury returned a guilty verdict, and defendant appealed.
"unless there has been an official search and seizure of his person, or such a seizure of his papers or his tangible material effects, or an actual physical invasion of his house 'or curtilage' for the purpose of making a seizure."
Olmstead v. United States, 277 U. S. 438 , 277 U. S. 466 (1928); Goldman v. United States, 316 U. S. 129 , 316 U. S. 135 -136 (1942). But where "eavesdropping was accomplished by means of an unauthorized physical penetration into the premises occupied" by the defendant, although falling short of a "technical trespass under the local property law," the Fourth Amendment was violated, and any evidence of what was seen and heard, as well as tangible objects seized, was considered the inadmissible fruit of an unlawful invasion. Silverman v. United States, 365 U. S. 505 , 365 U. S. 509 , 511 (1961); see also Wong Sun v. United States, 371 U. S. 471 (1963); Berger v. New York, 388 U. S. 41 , 388 U. S. 52 (1967); Alderman v. United States, 394 U. S. 165 , 394 U. S. 177 -178 (1969).
the privacy on which he justifiably relied while using the telephone in those circumstances.
The Court of Appeals understood Katz to render inadmissible against White the agents' testimony concerning conversations that Jackson broadcast to them. We cannot agree. Katz involved no revelation to the Government by a party to conversations with the defendant, nor did the Court indicate in any way that a defendant has a justifiable and constitutionally protected expectation that a person with whom he is conversing will not then or later reveal the conversation to the police.
Hoffa v. United States, 385 U. S. 293 (1966), which was left undisturbed by Katz, held that, however strongly a defendant may trust an apparent colleague, his expectations in this respect are not protected by the Fourth Amendment when it turns out that the colleague is a government agent regularly communicating with the authorities. In these circumstances, "no interest legitimately protected by the Fourth Amendment is involved," for that amendment affords no protection to "a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it." Hoffa v. United States, at 385 U. S. 302 . No warrant to "search and seize" is required in such circumstances, nor is it when the Government sends to defendant's home a secret agent who conceals his identity and makes a purchase of narcotics from the accused, Lewis v. United States, 385 U. S. 206 (1966), or when the same agent, unbeknown to the defendant, carries electronic equipment to record the defendant's words and the evidence so gathered is later offered in evidence. Lopez v. United States, 373 U. S. 427 (1963).
read both Katz and the Fourth Amendment to require a different result if the agent not only records his conversations with the defendant, but instantaneously transmits them electronically to other agents equipped with radio receivers. Where this occurs, the Court of Appeals held, the Fourth Amendment is violated, and the testimony of the listening agents must be excluded from evidence.
"was talking confidentially and indiscreetly with one he trusted, and he was overheard. . . . It would be a dubious service to the genuine liberties protected by the Fourth Amendment to make them bedfellows with spurious liberties improvised by far-fetched analogies which would liken eavesdropping on a conversation, with the connivance of one of the parties, to an unreasonable search or seizure. We find no violation of the Fourth Amendment here."
343 U.S. at 343 U. S. 753 -754. We see no indication in Katz that the Court meant to disturb that understanding of the Fourth Amendment or to disturb the result reached in the On Lee case, [ Footnote 4 ] nor are we now inclined to overturn this view of the Fourth Amendment.
Concededly. a police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them without a warrant authorizing his encounters with the defendant and without otherwise violating the latter's Fourth Amendment rights. Hoffa v. United States, 385 U.S. at 385 U. S. 300 -303. For constitutional purposes, no different result is required if the agent, instead of immediately reporting and transcribing his conversations with defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person, Lopez v. United States, supra; (2) or carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency. On Lee v. United States, supra. If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant's constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks.
before us. Our problem, in terms of the principles announced in Katz, is what expectations of privacy are constitutionally "justifiable" -- what expectations the Fourth Amendment will protect in the absence of a warrant. So far, the law permits the frustration of actual expectations of privacy by permitting authorities to use the testimony of those associates who, for one reason or another, have determined to turn to the police, as well as by authorizing the use of informants in the manner exemplified by Hoffa and Lewis. If the law gives no protection to the wrongdoer whose trusted accomplice is or becomes a police agent, neither should it protect him when that same agent has recorded or transmitted the conversations which are later offered in evidence to prove the State's case. See Lopez v. United States, 373 U. S. 427 (1963).
particularly under the Fourth Amendment, which is ruled by fluid concepts of "reasonableness."
Nor should we be too ready to erect constitutional barriers to relevant and probative evidence which is also accurate and reliable. An electronic recording will many times produce a more reliable rendition of what a defendant has said than will the unaided memory of a police agent. It may also be that. with the recording in existence. it is less likely that the informant will change his mind, less chance that threat or injury will suppress unfavorable evidence, and less chance that cross-examination will confound the testimony. Considerations like these obviously do not favor the defendant, but we are not prepared to hold that a defendant who has no constitutional right to exclude the informer's unaided testimony nevertheless has a Fourth Amendment privilege against a more accurate version of the events in question.
It is thus untenable to consider the activities and reports of the police agent himself, though acting without a warrant, to be a "reasonable" investigative effort and lawful under the Fourth Amendment, but to view the same agent with a recorder or transmitter as conducting an "unreasonable" and unconstitutional search and seizure. Our opinion is currently shared by Congress and the Executive Branch, Title III, Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 212, 18 U.S.C. § 2510 et seq. (1964 ed., Supp. V), and the American Bar Association. Project on Standards for Criminal Justice, Electronic Surveillance § 4.1 (Approved Draft 1971). It is also the result reached by prior cases in this Court. On Lee, supra; Lopez v. United States, supra.
at trial; for the issue of whether specified events on a certain day violate the Fourth Amendment should not be determined by what later happens to the informer. His unavailability at trial and proffering the testimony of other agents may raise evidentiary problems or pose issues of prosecutorial misconduct with respect to the informer's disappearance, but they do not appear critical to deciding whether prior events invaded the defendant's Fourth Amendment rights.
The Court of Appeals was in error for another reason. In Desist v. United States, 394 U. S. 244 (1969), we held that our decision in Katz v. United States applied only to those electronic surveillances that occurred subsequent to the date of that decision. Here, the events in question took place in late 1965 and early 1966, long prior to Katz. We adhere to the rationale of Desist, see Williams v. United States, ante, p. 401 U. S. 646 . It was error for the Court of Appeals to dispose of this case based on its understanding of the principles announced in the Katz case. The court should have judged this case by the pre- Katz law and under that law, as On Lee clearly holds, the electronic surveillance here involved did not violate White's rights to be free from unreasonable searches and seizures.
MR. JUSTICE BLACK, while adhering to his views expressed in Linkletter v. Walker, 381 U. S. 618 , 381 U. S. 640 (1965), concurs in the judgment of the Court for the reasons set forth in his dissent in Katz v. United States, 389 U. S. 347 , 389 U. S. 364 (1967).
White argues that Jackson, though admittedly "cognizant" of the presence of transmitting devices on his person, did not voluntarily consent thereto. Because the court below did not reach the issue of Jackson's consent, we decline to do so. Similarly, we do not consider White's claim that the Government's actions violated state law.
A panel of three judges on March 18, 1968, reversed the conviction, one judge dissenting. A rehearing en banc was granted, and, on January 7, 1969, the full court followed the panel's decision, three judges dissenting. 405 F.2d 838.
It follows from our opinion that we reject respondent's contentions that Lopez should be overruled.
Other courts of appeals have considered On Lee viable despite Katz. Dancy v. United States, 390 F.2d 370 (CA5 1968); Long v. United States, 387 F.2d 377 (CA5 1967); Koran v. United States, 408 F.2d 1321 (CA5 1969). See also United States v. Kaufer, 406 F.2d 550 (CA2), aff'd per curiam, 394 U. S. 458 (1969); United States v. Jackson, 390 F.2d 317 (CA2 1968); Doty v. United States, 416 F.2d 887 (CA10 1968), id. at 893 (rehearing 1969).
"subsequent decisions and subsequent experience have sapped whatever vitality [ On Lee ] may once have had; that it should now be regarded as overruled,"
dissent, and need not be repeated here. It suffices to say that, for those reasons, I remain of the view that the Fourth Amendment imposes the warrant requirement in both the On Lee and Lopez situations.
The issue in this case is clouded and concealed by the very discussion of it in legalistic terms. What the ancients knew as "eavesdropping" we now call "electronic surveillance," but to equate the two is to treat man's first gunpowder on the same level as the nuclear bomb. Electronic surveillance is the greatest leveler of human privacy ever known. How most forms of it can be held "reasonable" within the meaning of the Fourth Amendment is a mystery. To be sure, the Constitution and Bill of Rights are not to be read as covering only the technology known in the 18th century. Otherwise its concept of "commerce" would be hopeless when it comes to the management of modern affairs. At the same time, the concepts of privacy which the Founders enshrined in the Fourth Amendment vanish completely when we slavishly allow an all-powerful government, proclaiming law and order, efficiency, and other benign purposes, to penetrate all the walls and doors which men need to shield them from the pressures of a turbulent life around them and give them the health and strength to carry on.
That is why a "strict construction" of the Fourth Amendment is necessary if every man's liberty and privacy are to be constitutionally honored.
wiretapping by Government agents should not be carried on, for the excellent reason that it is almost bound to lead to abuse of civil rights."
"[T]he government seems to approach these dissident domestic organizations in the same fashion as it deals with unfriendly foreign powers. The government cannot act in this manner when only domestic political organizations are involved, even if those organizations espouse views which are inconsistent with our present form of government. To do so is to ride roughshod over numerous political freedoms which have long received constitutional protection. The government can, of course, investigate and prosecute criminal violations whenever these organizations, or rather their individual members, step over the line of political theory and general advocacy and commit illegal acts."
Today no one perhaps notices, because only a small, obscure criminal is the victim. But every person is the victim, for the technology we exalt today is everyman's master. Any doubters should read Arthur R. Miller's The Assault On Privacy (1971). After describing the monitoring of conversations and their storage in data banks, Professor Miller goes on to describe "human monitoring" which he calls the "ultimate step in mechanical snooping" -- a device for spotting unorthodox or aberrational behavior across a wide spectrum.
"Given the advancing state of both the remote sensing art and the capacity of computers to handle an uninterrupted and synoptic data flow, there seem to be no physical barriers left to shield us from intrusion."
reality as the well known Baron Parke was remote from the social problems of his day. See Chapman, "Big Brother" in the Justice Department, The Progressive, April 1971, p. 27.
We held in Berger v. New York, 388 U. S. 41 , that wiretapping is a search and seizure within the meaning of the Fourth Amendment, and therefore must meet its requirements, viz., there must be a prior showing of probable cause, the warrant authorizing the wiretap must particularly describe "the place to be searched, and the persons or things to be seized," and that it may not have the breadth, generality, and long life of the general warrant against which the Fourth Amendment was aimed.
In Katz v. United States, 389 U. S. 347 , we held that an electronic device, used without trespass onto any given enclosure (there a telephone booth), was a search for which a Fourth Amendment warrant was needed. [ Footnote 2/1 ] MR. JUSTICE STEWART, speaking for the Court, said: "Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures." Id. at 389 U. S. 359 .
As a result of Berger and of Katz, both wiretapping and electronic surveillance through a "bug" or other device are now covered by the Fourth Amendment.
undercover agent with a radio transmitter concealed on his person interviewed the defendant whose words were heard over a radio receiver by another agent down the street. The idea, discredited by Katz, that there was no violation of the Fourth Amendment because there was no trespass, was the core of the On Lee decision. Id. at 343 U. S. 751 -754.
"was not planted by means of an unlawful physical invasion of petitioner's premises under circumstances which would violate the Fourth Amendment."
Id. at 373 U. S. 439 .
"[T]here is a qualitative difference between electronic surveillance, whether the agents conceal the devices on their persons or in walls or under beds, and conventional police stratagems such as eavesdropping and disguise. The latter do not so seriously intrude upon the right of privacy. The risk of being overheard by 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 comes into play, the risk changes crucially. There is no security from that kind of eavesdropping, no way of mitigating the risk, and so not even a residuum of true privacy. . . ."
society. Electronic surveillance, in fact, makes the police omniscient; and police omniscience is one of the most effective tools of tyranny."
373 U.S. at 373 U. S. 465 -466.
It is urged by the Department of Justice that On Lee be established as the controlling decision in this field. I would stand by Berger and Katz and reaffirm the need for judicial supervision [ Footnote 2/2 ] under the Fourth Amendment of the use of electronic surveillance which, uncontrolled, promises to lead us into a police state.
These were wholly prearranged episodes of surveillance. The first was in the informant's home to which respondent had been invited. The second was also in the informer's home, the next day. The third was four days later, at the home of the respondent. The fourth was in the informer's car two days later. Twelve days after that, a meeting in the informer's home was intruded upon. The sixth occurred at a street rendezvous. The seventh was in the informer's home, and the eighth in a restaurant owned by respondent's mother-in-law. So far as time is concerned, there is no excuse for not seeking a warrant. And while there is always an effort involved in preparing affidavits or other evidence in support of a showing of probable cause, that burden was given constitutional sanction in the Fourth Amendment against the activities of the agents of George III. It was designed not to protect criminals, but to protect everyone's privacy.
"searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment. . . ."
"We simply cannot say that the protections provided by the warrant procedure are not needed in this context; broad statutory safeguards are no substitute for individualized review, particularly when those safeguards may only be invoked at the risk of a criminal penalty."
Id. at 387 U. S. 533 .
In Chimel v. California, 395 U. S. 752 , in considering the constitutionality of a search incident to an arrest we held that, while the area in the immediate reach of an arrestee is "reasonable" though made without a warrant, a search beyond that zone may generally be made "only under the authority of a search warrant." Id. at 395 U. S. 763 . And in two "stop and frisk" cases, Terry v. Ohio, 392 U. S. 1 , and Davis v. Mississippi, 394 U. S. 721 , we held that any restraint of the person, however brief, was subject to judicial inquiry on "reasonableness" 392 U.S. at 392 U. S. 19 , and that "the Fourth Amendment governs all intrusions by agents of the public upon personal security. . . ." Id. at 392 U. S. 18 n. 15.
We have moved far away from the rationale of On Lee and Lopez, and only a retrogressive step of large dimensions would bring us back to it.
Free discourse liberates the spirit, though it may produce only froth. The individual must keep some facts concerning his thoughts within a small zone of people. At the same time, he must be free to pour out his woes or inspirations or dreams to others. He remains the sole judge as to what must be said and what must remain unspoken. This is the essence of the idea of privacy implicit in the First and Fifth Amendments as well as in the Fourth.
"Privacy is the basis of individuality. To be alone and be let alone, to be with chosen company, to say what you think, or don't think, but to say what you will, is to be yourself. Solitude is imperative, even in a high rise apartment. Personality develops from within. To reflect is to know yourself. Character is formed through years of self-examination. Without this opportunity, character will be formed largely by uncontrolled external social stimulations. Americans are excessively homogenized already."
"Few conversations would be what they are if the speakers thought others were listening. Silly, secret, thoughtless and thoughtful statements would all be affected. The sheer numbers in our lives, the anonymity of urban living and the inability to influence things that are important are depersonalizing and dehumanizing factors of modern life. To penetrate the last refuge of the individual, the precious little privacy that remains, the basis of individual dignity, can have meaning to the quality of our lives that we cannot foresee. In terms of present values, that meaning cannot be good. "
"Invasions of privacy demean the individual. Can a society be better than the people composing it? When a government degrades its citizens, or permits them to degrade each other, however beneficent the specific purpose, it limits opportunities for individual fulfillment and national accomplishment. If America permits fear and its failure to make basic social reforms to excuse police use of secret electronic surveillance, the price will be dear indeed. The practice is incompatible with a free society."
The decision not to make Katz retroactive to any electronic surveillance which occurred prior to December 18, 1967 (the day we decided Katz ), is not, in my view, a tenable one for the reasons stated by MR. JUSTICE HARLAN and me in our dissents in Desist v. United States, 394 U. S. 244 , 394 U. S. 255 , 394 U. S. 256 .
I have agreed with the broad purpose of the Supreme Court decision relating to wiretapping in investigations. The Court is undoubtedly sound both in regard to the use of evidence secured over tapped wires in the prosecution of citizens in criminal cases; and is also right in its opinion that, under ordinary and normal circumstances, wiretapping by Government agents should not be carried on for the excellent reason that it is almost bound to lead to abuse of civil rights.
However, I am convinced that the Supreme Court never intended any dictum in the particular case which it decided to apply to grave matters involving the defense of the nation.
It is, of course, well known that certain other nations have been engaged in the organization of propaganda of so-called "fifth columns" in other countries and in preparation for sabotage, as well as in actual sabotage.
It is too late to do anything about it after sabotage, assassinations and "fifth column" activities are completed.
You are, therefore, authorized and directed in such cases as you may approve, after investigation of the need in each case, to authorize the necessary investigation agents that they are at liberty to secure information by listening devices directed to the conversation or other communications of persons suspected of subversive activities against the Government of the United States, including suspected spies. You are requested furthermore to limit these investigations so conducted to a minimum, and to limit them insofar as possible to aliens.
[SEAL] /s/ F. D. R.
(1) No federal personnel is to intercept telephone conversations within the United States by any mechanical or electronic device, without the consent of one of the parties involved, (except in connection with investigations related to the national security).
(2) No interception shall be undertaken or continued without first obtaining the approval of the Attorney General.
(3) All federal agencies shall immediately conform their practices and procedures to the provisions of this order.
Utilization of mechanical or electronic devices to overhear non-telephone conversations is an even more difficult problem, which raises substantial and unresolved questions of Constitutional interpretation. I desire that each agency conducting such investigations consult with the Attorney General to ascertain whether the agency's practices are fully in accord with the law and with a decent regard for the rights of others.
Every agency head shall submit to the Attorney General within 30 days a complete inventory of all mechanical and electronic equipment and devices used for or capable of intercepting telephone conversations. In addition, such reports shall contain a list of any interceptions currently authorized and the reasons for them.
See Greenawalt, The Consent Problem in Wiretapping & Eavesdropping: Surreptitious Monitoring With the Consent of a Participant in a Conversation, 68 Col.L.Rev. 189; Kitch, Katz v. United States: The Limits of the Fourth Amendment, 1968 Sup.Ct.Rev. 133; Note, Police Undercover Agents: New Threat to First Amendment Freedoms, 37 Geo.Wash.L.Rev. 634; Comment, Electronic Surveillance: The New Standards, 35 Brooklyn L.Rev. 49.
The relaxing of constitutional requirements by the Executive Branch is apparent from the Appendices to this dissent.
Osborn v. United States, 385 U. S. 323 , was held to be in that tradition, as the federal district judges, prior to the use of the recording device by the agent and with full knowledge of the alleged law violation involved, "authorized the use of a recording device for the narrow and particularized purpose of ascertaining the truth" of the charge. Id. at 385 U. S. 330 .
The tyranny of surveillance that is not supervised in the Fourth Amendment manner is told by Judge Gesell in United States v. Jones, 292 F.Supp. 1001, 1008-1009, where the competition between agencies and the uncontrolled activities of subordinates ended up with Government itself playing an ignoble role.
Cf. American Bar Association, Project on Standards for Criminal Justice, Electronic Surveillance §§ 4.1, 5.2 (Approved Draft 1971).
"At one point, they referred to 'infiltrating public meetings' at which Senator Stevenson and I spoke, and I wondered how you 'infiltrate' a public meeting. Perhaps they wanted to compile evidence to be used in some future military court -- evidence that I was disloyal to the military establishment because I suggested that we cut manpower by ten percent last year, or because I voted against their appropriations in the two years I've been here."
"When they start investigating political figures, there is no place you can draw the line and maintain any kind of civilian control. . . ."
"We have become a fearful people. There was a time when we feared only our enemies abroad. Now we seem to be as fearful of our enemies at home, and, depending on whom you talk to, those enemies can include people under thirty, people with foreign names, people of different races, people in the big cities. We have become a suspicious nation, as afraid of being destroyed from within as from without."
"Unfortunately, the manifestations of that kind of fear and suspicion are police-state measures."
A Nation in Fear, The Progressive, Feb.1971, pp. 1, 19-20.
"You would be amazed at the different ways you can now be 'bugged.' There is today a transmitter the size of an aspirin tablet which can help transmit conversations in your room to a listening post up to 10 miles away."
"An expert can devise a bug to fit into almost any piece of furniture in your room. And even if you find the bug, you will have no evidence of who put it there. A United States Senator was bugged by a transmitter secretly placed into a lamp which his wife was having fixed at the shop. When experts searched for the transmitter, it was gone."
"A leading electronics expert told my Subcommittee last year that wiretapping and bugging in industrial espionage triples every year. He said that new bugging devices are so small and cleverly concealed that it takes search equipment costing over one hundred thousand dollars and an expert with 10 years of field experience to discover them. Ten years ago, the same search for bugs could have been done with equipment costing only one-fourth as much."
"In California, we found a businessman who had been so frightened by electronic eavesdropping devices which had been concealed in his office, that he is now spending thousands of dollars having his office searched each day, taking his phone apart every morning, and stationing a special guard outside his office 24 hours a day."
"He is one of a growing number of men in industry who live in constant fear that what they say is being listened to by their competitor."
19 Adm.L.Rev. 442, 444. And see E. Long, The Intruders (1966).
"A technological breakthrough in techniques of physical surveillance now makes it possible for government agents and private persons to penetrate the privacy of homes, offices, and vehicles; to survey individuals moving about in public places; and to monitor the basic channels of communication by telephone, telegraph, radio, television, and data line. Most of the 'hardware' for this physical surveillance is cheap, readily available to the general public, relatively easy to install, and not presently illegal to own. As of the 1960's, the new surveillance technology is being used widely by government agencies of all types and at every level of government, as well as by private agents for a rapidly growing number of businesses, unions, private organizations, and individuals in every section of the United States. Increasingly, permanent surveillance devices have been installed in facilities used by employees or the public. While there are defenses against 'outside' surveillance, these are so costly and complex and demand such constant vigilance that their use is feasible only where official or private matters of the highest security are to be protected. Finally, the scientific prospects for the next decade indicate a continuing increase in the range and versatility of the listening and watching devices, as well as the possibility of computer processing of recordings to identify automatically the speakers or topics under surveillance. These advances will come just at the time when personal contacts, business affairs, and government operations are being channeled more and more into electronic systems such as data-phone lines and computer communications."
A. Westin, Privacy and Freedom 365-366 (1967).
WHITE itself makes clear, important constitutional developments since On Lee mandate that we reassess that case, which has continued to govern official behavior of this sort in spite of the subsequent erosion of its doctrinal foundations. With all respect, my agreement with the plurality opinion ends at that point.
I think that a perception of the scope and role of the Fourth Amendment, as elucidated by this Court since On Lee was decided, and full comprehension of the precise issue at stake lead to the conclusion that On Lee can no longer be regarded as sound law. Nor do I think the date we decided Katz v. United States, 389 U. S. 347 (1967), can be deemed controlling both for the reasons discussed in my dissent in Desist v. United States, 394 U. S. 244 , 394 U. S. 256 (1969), and my separate opinion in Mackey v. United States (and companion cases), ante, p. 401 U. S. 675 (the case before us being here on direct review), and because, in my view, it requires no discussion of the holding in Katz, as distinguished from its underlying rationale as to the reach of the Fourth Amendment, to comprehend the constitutional infirmity of On Lee.
"'participant recording,' in which one participant in a conversation or meeting, either a police officer or a cooperating party, wears a concealed device that records the conversation or broadcasts it to others nearby . . . is used tens of thousands of times each year throughout the country, particularly in cases involving extortion, conspiracy, narcotics, gambling, prostitution, corruption by police officials . . . and similar crimes. [ Footnote 3/3 ] "
Finally, given the importance of electronic eavesdropping as a technique for coping with the more deep-seated kinds of criminal activity, and the complexities that are encountered in striking a workable constitutional balance between the public and private interests at stake, I believe that the courts should proceed with specially measured steps in this field. More particularly, I think this Court should not foreclose itself from reconsidering doctrines that would prevent the States from seeking, independently of the niceties of federal restrictions as they may develop, solutions to such vexing problems, see Mapp v. Ohio, 37 U. S. 643 (1961), and Ker v. California, 374 U. S. 23 (1963), and see also Berger v. New York, 388 U. S. 41 (1967); Baldwin v. New York, 399 U. S. 66 , 399 U. S. 117 (1970) (dissenting opinion); California v. Green, 399 U. S. 149 , 399 U. S. 172 (1970) (concurring opinion). I also think that, in the adjudication of federal cases, the Court should leave ample room for congressional developments.
On these premises, I move to the problem of third-party "bugging." To begin by tracing carefully the evolution of Fourth Amendment doctrine in post- On Lee decisions has proved useful in several respects. It serves to cast in perspective both the issue involved here and the imperative necessity for reconsidering On Lee afresh. Additionally, a full exposition of the dynamics of the decline of the trespass rationale underlying On Lee strikingly illuminates the deficiencies of the plurality opinion's retroactivity analysis.
The validity of the trespass rationale was questionable even at the time the decision was rendered. In this respect, On Lee rested on common law notions, and looked to a waning era of Fourth Amendment jurisprudence. Three members of the Court refused to join with Justice Jackson, and, within 10 years, the Court expressly disavowed an approach to Fourth Amendment questions that looked to common law distinctions. See, e.g., Jones v. United States, 362 U. S. 257 (1960); Silverman v. United States, 365 U. S. 505 (1961); Lanza v. New York, 370 U. S. 139 (1962).
rationale needs substantial buttressing if it is to persist in our constitutional jurisprudence after the decisions I discuss below. Indeed, the plurality opinion in the present case, in greatly elaborating the point, tacitly recognizes the analytic inability of this bare hypothesis to support a rule of law so profoundly important to the proper administration of justice. Moreover, if this was the true rationale of On Lee from the outset, it is difficult to see the relevance of Desist to the resolution of the instant case, for Katz surely does not speak directly to the continued viability of that ground for decision. See Katz v. United States, 389 U.S. at 389 U. S. 363 n. (WHITE, J., concurring).
our Silverman and Jones decisions which "refused to crowd the Fourth Amendment into the mold of local property law," 373 U.S. at 373 U. S. 460 (BRENNAN, J., dissenting).
Although the Court's decision in Lopez is cited by the Government as a reaffirmation of On Lee, it can hardly be thought to have nurtured the questionable rationale of that decision or its much-criticized ancestor, Olmstead. To the discerning lawyer Lopez could only give pause, not comfort. While the majority opinion, of which I was the author, declined to follow the course favored by the dissenting and concurring Justices by sounding the death knell for Olmstead and On Lee, our holding, despite an allusion to the absence of "an unlawful . . . invasion of a constitutionally protected area," 373 U.S. at 373 U. S. 438 -439, was bottomed on two premises: the corroborative use that was made of the tape recordings, which increased reliability in the factfinding process, and the absence of a "risk" not fairly assumed by petitioner. The tape recording was made by a participant in the conversation and the opinion emphasized this absence of a third-party intrusion, expressly noting that there was no "electronic eavesdropping on a private conversation which government agents could not otherwise have overheard." 373 U.S. at 373 U. S. 440 . [ Footnote 3/10 ] As I point out in 401 U. S. S. 777Ă of this opinion, it is one thing to subject the average citizen to the risk that participants in a conversation with him will subsequently divulge its contents to another, but quite a different matter to foist upon him the risk that unknown third parties may be simultaneously listening in.
While Lopez cited On Lee without disavowal of its holding, 373 U.S. at 373 U. S. 438 , it is entirely accurate to say that we did not there reaffirm it. [ Footnote 3/11 ] No decision since Lopez gives a breath of life to the reasoning that led to the On Lee and Olmstead results, and it required little clairvoyance to predict the demise of the basic rationale of On Lee and Olmstead foreshadowed by our subsequent opinions in Osborn v. United States, 385 U. S. 323 (166), and Berger v. New York, 388 U. S. 41 (1967).
which the dissenting opinion in Lopez found necessary."
Since Osborn, our decisions have shown no tolerance for the old dividing lines resting, as they did, on fiction and common law distinctions without sound policy justification in the realm of values protected by the Fourth Amendment. Thus, in abolishing the "mere evidence rule," we announced that "the principal object of the Fourth Amendment is the protection of privacy, rather than property," and once again noted the trend to discard "fictional and procedural barriers rested on property concepts." Warden v. Hayden, 387 U. S. 294 , 387 U. S. 34 (1967). That same Term, the Court demonstrated the new flexibility in Fourth Amendment doctrine when it held that the warrant protections would be applied to administrative searches. Camara v. Municipal Court, 387 U. S. 523 (1967).
"[T]he 'indiscriminate use of such [bugging] devices in law enforcement raises grave constitutional questions under the Fourth and Fifth Amendments,' and imposes 'a heavier responsibility on this Court in its supervision of the fairness of procedures. . . .'"
If Berger did not flatly sound a dirge for Olmstead, it articulated principles that led MR. JUSTICE DOUGLAS, by way of concurrence, to comment on its quiet burial. 388 U.S. at 388 U. S. 64 . While it was left to Katz to perform the last rites, that decision inevitably followed from Osborn and Berger. The Berger majority's affirmative citation of On Lee for the principle that, "under specific conditions and circumstances," eavesdropping may be lawful, 388 U.S. at 388 U. S. 63 , serves only to underscore the emerging operative assumptions: that the particular circumstances of each case will be scrutinized to the end of ascertaining the reasonableness of the search, and that will depend in large measure on whether prior judicial authorization, based on a particularized showing, has been obtained. Katz v. United States, supra.
Viewed in perspective, then, Katz added no new dimension to the law. At most, it was a formal dispatch of Olmstead and the notion that such problems may usefully be resolved in the light of trespass doctrine, and, of course, it freed from speculation what was already evident, that On Lee was completely open to question.
at the time of On Lee. I have already traced some of these principles in Part 401 U. S. supra: that verbal communication is protected by the Fourth Amendment, that the reasonableness of a search does not depend on the presence or absence of a trespass, and that the Fourth Amendment is principally concerned with protecting interests of privacy, rather than property rights.
Especially when other recent Fourth Amendment decisions, not otherwise so immediately relevant, are read with those already discussed, the primacy of an additional general principle becomes equally evident: official investigatory action that impinges on privacy must typically, in order to be constitutionally permissible, be subjected to the warrant requirement. Particularly significant in this regard are Camara v. Municipal Court, 387 U. S. 523 (1967); Terry v. Ohio, 392 U. S. 1 (1968), and Chimel v. California, 395 U. S. 752 (1969).
The scope and meaning of the rule have emerged with even greater clarity by virtue of our holdings setting the boundaries for the exceptions. Recently, in Chimel v. California, 395 U. S. 752 (1969), we reiterated the importance of the prior independent determination of a neutral magistrate, and underscored its centrality to the reasonableness requirement of the Fourth Amendment, and abandoned the holdings of Harris v. United States, 331 U. S. 145 (1947), and United States v. Rabinowitz, 339 U. S. 56 (1950). We were concerned by the breadth of searches occasioned by the Rabinowitz rule which frequently proved to be an invitation to a hunting expedition. Searches incident to arrest, we held, must be confined to a locus no greater than necessary to prevent injury to the arresting officer or destruction of evidence. 395 U.S. at 395 U. S. 763 , 767; cf. Terry v. Ohio, 392 U. S. 1 (1968).
"to recognize that the Fourth Amendment governs all intrusions by agents of the public upon personal security, and to make the scope of the particular intrusion, in light of all the exigencies of the case, a central element in the analysis of reasonableness."
That the foundations of On Lee have been destroyed does not, of course, mean that its result can no longer stand. Indeed, the plurality opinion today fastens upon our decisions in Lopez, Lewis v. United States, 385 U. S. 206 (1966), and Hoffa v. United States, 385 U. S. 293 (1966), to resist the undercurrents of more recent cases emphasizing the warrant procedure as a safeguard to privacy. But this category provides insufficient support. In each of these cases, the risk the general populace faced was different from that surfaced by the instant case. No surreptitious third ear was present, and, in each opinion, that fact was carefully noted.
"there, the conduct proscribed was that of eavesdroppers, unknown and unwanted intruders who furtively listened to conversations occurring in the privacy of a house."
385 U.S. at 385 U. S. 212 . Similarly in Hoffa, MR. JUSTICE STEWART took care to mention that "surreptitious" monitoring was not there before the Court, and so too in Lopez, supra.
The first of these assumptions takes as a point of departure the so-called "risk analysis" approach of Lewis and Lopez and, to a lesser extent, On Lee, or the expectations approach of Katz. See discussion in 401 U. S. supra. While these formulations represent an advance over the unsophisticated trespass analysis of the common law, they too have their limitations, and can, ultimately, lead to the substitution of words for analysis. [ Footnote 3/22 ] The analysis must, in my view, transcend the search for subjective expectations or legal attribution of assumptions of risk. Our expectations, and the risks we assume, are in large part reflections of laws that translate into rules the customs and values of the past and present.
Since it is the task of the law to form and project, as well as mirror and reflect, we should not, as judges, merely recite the expectations and risks without examining the desirability of saddling them upon society. The critical question, therefore, is whether, under our system of government, as reflected in the Constitution, we should impose on our citizens the risks of the electronic listener or observer without at least the protection of a warrant requirement.
should be necessary. Cf. Terry v. Ohio, supra; Davis v. Mississippi, supra.
The impact of the practice of third-party bugging, must, I think, be considered such as to undermine that confidence and sense of security in dealing with one another that is characteristic of individual relationships between citizens in a free society. It goes beyond the impact on privacy occasioned by the ordinary type of "informer" investigation upheld in Lewis and Hoffa. The argument of the plurality opinion, to the effect that it is irrelevant whether secrets are revealed by the mere tattletale or the transistor, ignores the differences occasioned by third-party monitoring and recording which insures full and accurate disclosure of all that is said, free of the possibility of error and oversight that inheres in human reporting.
a rule of law that permits official monitoring of private discourse limited only by the need to locate a willing assistant.
"Though the proceeding in question is divested of many of the aggravating incidents of actual search and seizure, yet, as before said, it contains their substance and essence, and effects their substantial purpose. It may be that it is the obnoxious thing in its mildest and least repulsive form, but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure."
116 U.S. at 116 U. S. 635 .
not end electronic eavesdropping. It would prevent public officials from engaging in that practice unless they first had probable cause to suspect an individual of involvement in illegal activities and had tested their version of the facts before a detached judicial officer. The interest On Lee fails to protect is the expectation of the ordinary citizen, who has never engaged in illegal conduct in his life, that he may carry on his private discourse freely, openly, and spontaneously without measuring his every word against the connotations it might carry when instantaneously heard by others unknown to him and unfamiliar with his situation or analyzed in a cold, formal record played days, months, or years after the conversation. Interposition of a warrant requirement is designed not to shield "wrongdoers," but to secure a measure of privacy and a sense of personal security throughout our society.
The Fourth Amendment does, of course, leave room for the employment of modern technology in criminal law enforcement, but in the stream of current developments in Fourth Amendment law, I think it must be held that third-party electronic monitoring, subject only to the self-restraint of law enforcement officials has no place in our society.
I find in neither the ABA study nor Title III any justification for ignoring the identifiable difference -- albeit an elusive one in the present state of knowledge -- between the impact on privacy of single-party informer bugging and third-party bugging, which, in my opinion, justifies drawing the constitutional line at this juncture between the two as regards the necessity for obtaining a warrant. Recognition of this difference is, at the very least, necessary to preserve the openness which is at the core of our traditions and is secure only in a society that tolerates official invasion of privacy simply in circumscribed situations.
"The principles laid down in this opinion [speaking of Entick v. Carrington, 19 How.St.Tr. 1029 (1765)] affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case then before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employes of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security. . . ."
What this means is that the burden of guarding privacy in a free society should not be on its citizens; it is the Government that must justify its need to electronically eavesdrop.
Not content to rest upon the proposition that On Lee remains sound law, the plurality opinion would also hold that the Court of Appeals erred further in disposing "of this case based on its understanding of the principles announced in the Katz case," ante at 401 U. S. 754 , because Desist v. United States, 394 U. S. 244 (1969), held that Katz governed only governmental conduct occurring after the decision in Katz. It is difficult to know where to begin to analyze such a truly extraordinary assertion respecting the operation of the judicial process.
v. United States (and companion cases), ante, p. 401 U. S. 675 . I see no purpose in repeating at this point the analysis I set forth in those opinions. Suffice it to say that, in Desist, I went to some length to point out, by discussing a hypothetical proposition, that the failure to apply any new decision by this Court to cases which had not yet run their course on direct review was inconsistent with the case-by-case approach to constitutional decision and with the proper relationship of this Court to the lower federal courts. In particular, I noted that the logic of Desist suggested that it would constitute error for a lower federal court to adopt a new constitutional rule which this Court subsequently approved. 394 U.S. at 394 U. S. 259 . Today's opinion stands as eloquent evidence of that defect.
Indeed, I find this decision even more troubling than Desist. For the errors of Desist are not merely repeated here; they are plainly compounded. Upon the plurality opinion's own analysis of the instant case, it is clear that Katz has no direct relevance to the present viability of On Lee.
" Katz involved no revelation to the Government by a party to conversations with the defendant, nor did the Court indicate in any way that a defendant has a justifiable and constitutionally protected expectation that a person with whom he is conversing will not then or later reveal the conversation to the police."
Ante at 401 U. S. 749 . As I have already shown, one need not cite Katz to demonstrate the inability of On Lee to survive recent developments without at least substantial reformulation. To hold, then, that a mere citation of Katz, or drawing upon the philosophical underpinnings of that case in order to employ a general constitutional approach in tune with that of the decisions of this Court, conflicts with the holding of Desist is to let this obsession with prospectivity run riot.
Apparently Desist is now to be understood as holding that all lower federal courts are disabled from adjudicating on their merits all allegations of Fourth Amendment error not squarely supported by a prior decision of this Court. If so, one wonders what purpose is served by providing intermediate appellate review of constitutional issues in the federal criminal process. We must not forget that this Court is not the only tribunal in the entire federal system charged with a responsibility for the nurture and development of the Fourth Amendment. It is one thing to disable all federal courts, including this Court, from applying the settled law of the land to cases and controversies before them -- as Desist does with Katz -- and at least another giant step backward to preclude lower courts from resolving wholly disparate controversies in the light of constitutional principles. Can it be seriously contended, as the plurality opinion necessarily implies, that the Court of Appeals should not be reversed today on these alternative grounds had it simply omitted to discuss Katz. To force lower federal courts to adjudicate controversies either mechanistically or disingenuously is, for me, indefensible. Yet this is precisely what the plurality opinion does with its assertion that it is error for lower courts to "dispose" of a case based on their "understanding of the principles announced" in Katz for the next year or so.
I would hold that On Lee is no longer good law, and affirm the judgment below.
I agree with the plurality opinion, ante at 401 U. S. 747 n. 1, that the issue of the informer's consent to utilization of this technique is not properly before us. Whether persons can, consistent with constitutional prohibitions, be tricked or coerced into transmitting their conversations, with or without prior judicial approval, and, if not, whether other parties to the conversation would have standing to object to the admission against them of evidence so obtained, cf. Alderman v. United States, 394 U. S. 165 (1969), are questions upon which I express no opinion.
In the case at hand, agents were also surreptitiously placed in respondent's home at various times. No testimony by these agents was offered at trial.
A. Westin, Privacy and Freedom 131 (1967). This investigative technique is also used to unearth "political" crimes.
"Recordings of the private and public meetings of suspect groups [have] been growing. Police in Miami, Florida, used a hidden transmitter on a police agent to record statements made at meetings of a right-wing extremist group suspected of planning acts of terrorism. In 1964, a police undercover agent obtained recordings of incendiary statements by the leader of a Communist splinter movement in Harlem, at private meetings and at a public rally, which served as the basis for his conviction for attempting to overthrow the state government."
Prior to Osborn v. United States, 385 U. S. 323 (1966), and Katz, the issue before us, if raised, was usually dismissed in a routine fashion with a citation to On Lee, buttressed by a citation to Lopez v. United States, 373 U. S. 427 (1963), with no attempt to distinguish the two cases despite the narrow rationale of the latter. See, e.g., United States v. Pasquinzo, 334 F.2d 74, 75 (CA6 1964); Maddox v. United States, 337 F.2d 234 (CA5 1964); but cf. United States v. Stone, 232 F.Supp. 396 (ND Tex.1964). The few authorities post-dating Katz have divided on the continued viability of the On Lee result, compare, e.g., United States v. Jones, 292 F.Supp. 1001 (DC 1968), and cases cited therein, 292 F.Supp. at 1008, with Dancy v. United States, 390 F.2d 370 (CA5 1968) (Judge Fahy dissenting); United States v. Kaufer, 406 F.2d 550 (CA2 1969); People v. Fiedler, 30 App.Div.2d 476, 294 N.Y.S.2d 368 (1968) (Justices Goldman and Bastow dissenting), aff'd without opinion, 24 N.Y.2d 960, 250 N.E.2d 75 (1969). Perhaps the most comprehensive treatments, examining both the case law and policy considerations underlying the precise issue -- electronic surveillance with the consent of one of the parties -- are by Professor Greenawalt, The Consent Problem in Wiretapping & Eavesdropping: Surreptitious Monitoring With the Consent of a Participant in a Conversation, 68 Col.L.Rev. 189 (1968), and Professor Kitch, Katz v. United States: The Limits of the Fourth Amendment, 1968 Sup.Ct.Rev. 133. For an interesting analysis of the impact of nonconsensual bugging on privacy and the role of prior judicial authorization, see Spritzer, Electronic Surveillance By Leave of the Magistrate: The Case in Opposition, 118 U.Pa.L.Rev. 169 (1969). In addition, see American Bar Association, Project on Standards for Criminal Justice, Electronic Surveillance § 4.1 (Approved Draft 1971); J. Landynski, Search and Seizure and the Supreme Court 198-244 (1966); Schwartz, The Legitimation of Electronic Eavesdropping: The Politics of "Law and Order," 67 Mich.L.Rev. 455, 495-496 (1969); S. Dash, R. Schwartz, & R. Knowlton, The Eavesdroppers 421-441 (1959); Comment, Eavesdropping, Informers, and the Right of Privacy: A Judicial Tightrope, 52 Cornell L.Q. 975 (1967); King, Electronic Surveillance and Constitutional Rights: Some Recent Developments and Observations, 33 Geo.Wash.L.Rev. 240 (1964); Note, Wiretapping and Electronic Surveillance -- Title III of the Crime Control Act of 1968, 23 Rutgers L.Rev. 319 (1969); Blakey & Hancock, A Proposed Electronic Surveillance Control Act, 43 Notre Dame Law. 657 (1968); Kamisar, The Wiretapping-Eavesdropping Problem: A Professor's View, 44 Minn.L.Rev. 891 (1960); Note, From Private Places to Personal Privacy: A Post- Katz Study of Fourth Amendment Protection, 43 N.Y.U.L.Rev. 968, 973-974 (1968); Scoular, Wiretapping and Eavesdropping Constitutional Development from Olmstead to Katz, 12 St. Louis L.J. 513 (1968); 20 Syracuse L.Rev. 791 (1969); 14 Vill.L.Rev. 758 (1969).
See Goldman v. United States, 316 U. S. 129 (1942). Silverman v. United States, 365 U. S. 505 (1961), made explicit that which was still unclear after Goldman: words overheard by trespass are subject to Fourth Amendment protection. See also Won Sun v. United States, 371 U. S. 471 (1963).
Mr. Justice Jackson rejected petitioner's contention that Poy's deception vitiated Lee's consent to his entry on the premises. 343 U.S. at 343 U. S. 752 .
"The conduct of Chin Poy and agent Lee did not amount to an unlawful search and seizure such as is proscribed by the Fourth Amendment. In Goldman v. United States, 316 U. S. 129 , . . . the agents had earlier committed a trespass in order to install a listening device within the room itself. Since the device failed to work, the Court expressly reserved decision as to the effect on the search and seizure question of a trespass in that situation. Petitioner in the instant case has seized upon that dictum, apparently on the assumption that the presence of a radio set would automatically bring him within the reservation if he can show a trespass."
"But petitioner cannot raise the undecided question, for here no trespass was committed. Chin Poy entered a place of business with the consent, if not by the implied invitation, of the petitioner."
Both Chief Justice Warren, in concurrence, 373 U.S. at 373 U. S. 441 , and MR. JUSTICE BRENNAN, who wrote a dissenting opinion in which he was joined by JUSTICES DOUGLAS and Goldberg, 373 U.S. at 373 U. S. 446 , were of the view that Olmstead and On Lee should be overruled. Cf. United States v. Stone, 232 F.Supp. 396 (ND Tex.1964).
While Silverman v. United States, 365 U. S. 505 , would seem to have eliminated any lingering uncertainty on this score, cf. Goldman v. United States, 316 U. S. 129 , Won Sun articulated the unspoken premise of Silverman.
"The exclusionary rule has traditionally barred from trial physical, tangible materials obtained either during or as a direct result of an unlawful invasion. It follows from our holding in Silverman v. United States, 365 U. S. 505 , that the Fourth Amendment may protect against the overhearing of verbal statements as well a against the more traditional seizure of 'papers and effects.' Similarly, testimony as to matters observed during an unlawful invasion has been excluded in order to enforce the basic constitutional policies. [Citation omitted.] Thus, verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest as the officers' action in the present case is no less the 'fruit' of official illegality than the more common tangible fruits of the unwarranted intrusion."
371 U.S. at 371 U. S. 485 . While I joined Mr. Justice Clark's dissenting opinion, 371 U.S. at 371 U. S. 498 , our differences with the majority involved only their analysis of probable cause.
"Stripped to its essentials, petitioner's argument amounts to saying that he has a constitutional right to rely on possible flaws in the agent's memory, or to challenge the agent's credibility without being beset by corroborating evidence that is not susceptible of impeachment. For no other argument can justify excluding an accurate version of a conversation that the agent could testify to from memory. We think the risk that petitioner took in offering a bribe to Davis fairly included the risk that the offer would be accurately reproduced in court, whether by faultless memory or mechanical recording."
373 U.S. at 373 U. S. 439 .
The Chief Justice and dissenters, concerned with the possibility that "the majority opinion may be interpreted as reaffirming sub silentio the result in On Lee v. United States, " expressly repudiated it. 373 U.S. at 373 U. S. 441 (first emphasis added).
"The requirements of the Fourth Amendment are not inflexible, or obtusely unyielding to the legitimate needs of law enforcement. It is at least clear that 'the procedure of antecedent justification before a magistrate that is central to the Fourth Amendment,' [citations omitted] could be made a precondition of lawful electronic surveillance. . . ."
Osborn v. United States, 385 U. S. 323 , 385 U. S. 330 n. 9, quoting MR. JUSTICE BRENNAN's dissenting opinion in Lopez v. United States, 373 U.S. at 373 U. S. 464 .
Judge Gesell, in reviewing the precedents, has recently concluded that it was Katz, read in conjunction with Osborn, that buried On Lee. United States v. Jones, 292 F.Supp. 1101, 1008 (DC 1968).
See Schwartz, The Legitimation of Electronic Eavesdropping: The Polities of "Law and Order," 67 Mich.L.Rev. 455, 458-459 (1969).
My principal disagreement with the Court in Berger involved the wisdom of reviewing the New York statute on its face, rather than focusing on the facts and circumstances of the particular case, and the exposition of the appropriate application of warrant principles to eavesdropping situations. 388 U.S. at 388 U. S. 96 -106.
Cf. Spritzer, Electronic Surveillance By Leave of the Magistrate: The Case in Opposition, 118 U.Pa.L.Rev. 169 (1969).
See Beck v. Ohio, 379 U. S. 89 , 379 U. S. 96 (1964), where the Court emphasized the importance of "an objective predetermination" uncomplicated by a presentation not "subtly influenced by the familiar shortcomings of hindsight judgment."
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. . . . The right of officers to thrust themselves into a home is . . . a grave concern, not only to the individual, but to a society, which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent."
See also Terry v. Ohio, 392 U. S. 1 (1968); United States v. Ventresca, 380 U. S. 102 (1965); Aguilar v. Texas, 378 U. S. 108 (1964); Won Sun v. United States, 371 U. S. 471 (1963); Chapman v. United States, 365 U. S. 610 (1961); Jones v. United States, 362 U. S. 257 (1960); Jones v. United States, 357 U. S. 493 (1958); Giordenello v. United States, 357 U. S. 480 (1958); United States v. Jeffers, 342 U. S. 48 (1951); McDonald v. United States, 335 U. S. 451 (1948); Trupiano v. United States, 334 U. S. 699 (1948); United States v. Lefkowitz, 285 U. S. 452 (1932); Agnello v. United States, 269 U. S. 20 (1925).
See 401 U. S. supra. See United States v. Jones, 292 F.Supp. 1001 (DC 1968).
"'Over and again, this Court has emphasized that the mandate of the [Fourth] Amendment requires adherence to judicial processes,' United States v. Jeffers, 342 U. S. 48 , 342 U. S. 51 , and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well delineated exceptions."
The warrant procedure need not always entail an inquiry into the existence of probable cause in the usual sense. Cf. Camara v. Municipal Court. For example, where an informer is being sent in to investigate a dangerous crime, and there is reason to believe his person would be in danger, monitoring might be justified and a warrant issued even though no probable cause existed to believe the particular meeting would provide evidence of particular criminal activity. Cf. Warden v. Hayden, 387 U. S. 294 , 387 U. S. 298 (1967); McDonald v. United States, 335 U.S. at 335 U. S. 455 -456; Johnson v. United States, 333 U.S. at 333 U. S. 14 -15; Ker v. California, 374 U. S. 23 (1963); Trupiano v. United States, 334 U. S. 699 (1948), all taking the view that exceptions to the warrant requirement may be made in narrowly defined special circumstances.
I do not consider Chambers v. Maroney, 399 U. S. 42 (1970), a retreat from the general proposition established by Katz and Chimel. While I disagreed with the Court, see my separate opinion, 399 U.S. at 399 U. S. 55 , moving vehicles have always presented a special Fourth Amendment problem. Compare Carroll v. United States, 267 U. S. 132 (1925), with Agnello v. United States, 269 U. S. 20 (1925).
"It is obvious that the political system in each society will be a fundamental force in shaping its balance of privacy, since certain patterns of privacy, disclosure, and surveillance are functional necessities for particular kinds of political regime. This is shown most vividly by contrasting privacy in the democratic and the totalitarian state."
Westin, supra, n. 3, at 23.
See Kitch, supra, n. 4, at 141-142, 150-152.
Greenawalt, supra, n. 4; Comment, Eavesdropping, Informers, and the Right of Privacy: A Judicial Tightrope, 52 Cornell L.Q. 975, 983 (1967); Westin, supra, n. 3, at 390.
"[E]avesdropping with the consent of one party . . . has been the basic charter for private detective taps and bugs, for 'owner' eavesdropping on facilities that are used by members of the public, and for much freelance police eavesdropping. Allowing eavesdropping with the consent of one party would destroy the statutory plan of limiting the offenses for which eavesdropping by device can be used and insisting on a court-order process. And as technology enables every man to carry his micro-miniaturized recorder everywhere he goes and allows every room to be monitored surreptitiously by built-in equipment, permitting eavesdropping with the consent of one party would be to sanction a means of reproducing conversation that could choke off much vital social exchange."
See also separate views of Senator Hart set forth in S.Rep. No. 1097, 90th Cong., 2d Sess., 175 (1968); Proposed Legislation on Wiretapping and Eavesdropping after Berger v. New York and Katz v. United States, 7 Bull. No. 2 of the Association of the Bar of the City of New York 1, 3, 22-26 (Aug.1968).
From the same standpoint, it may also be thought that electronic recording by an informer of a face-to-face conversation with a criminal suspect, as in Lopez, should be differentiated from third-party monitoring, as in On Lee and the case before us, in that the latter assures revelation to the Government by obviating the possibility that the informer may be tempted to renege in his undertaking to pass on to the Government all that he has learned. While the continuing vitality of Lopez is not drawn directly into question by this case, candor compels me to acknowledge that the views expressed in this opinion may impinge upon that part of the reasoning in Lopez which suggested that a suspect has no right to anticipate unreliable testimony. I am now persuaded that such an approach misconceives the basic issue, focusing as it does on the interests of a particular individual, rather than evaluating the impact of a practice on the sense of security that is the true concern of the Fourth Amendment's protection of privacy. Distinctions do, however, exist between Lopez, where a known Government agent uses a recording device, and this case which involves third-party overhearing. However unlikely that the participant recorder will not play his tapes, the fact of the matter is that, in a third-party situation, the intrusion is instantaneous. Moreover, differences in the prior relationship between the investigator and the suspect may provide a focus for future distinctions. See Greenawalt, supra, n. 4.
See ABA Project, supra, n. 4. The commentary states at the outset: "This standard reflects the prevailing law." The drafters apparently take as their starting point the risk analysis approach, relying on cases holding that contents of letters may be revealed where otherwise lawfully obtained. Stroud v. United States, 251 U. S. 15 (1919); Ex parte Jackson, 96 U. S. 727 , 96 U. S. 737 (1878); see also Blakey & Hancock, A Proposed Electronic Surveillance Control Act, supra, n. 4, at 663, n. 11. The various state provisions are set forth in Greenawalt, supra, n. 4, at 207-211.
See S.Rep. No. 1097, 90th Cong., 2d Sess., 69 (1968).
"communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State or for the purpose of committing any other injurious act."
See S.Rep. No. 1097, supra, n. 26, at 175 (remarks of Sen. Hart); 114 Cong.Rec. 11598-11599, 14470-14472.
S.Rep. No. 1097, supra, n. 26, at 93-94.
Indeed, the plain thrust of Title III appears to be to accommodate the holdings of Berger and Katz, and provides considerable reassurance to me in adopting the views expressed herein which would doubtless, without more, cast a cloud upon the constitutionality of § 2511. Since the Title III question has been neither briefed nor argued, as this case arose prior to its enactment, I would expressly reserve judgment should it prove upon further study that Congress had an affirmative intention to restrict warrant requirements to nonconsensual surveillance. We would then have to face the question, summarily dealt with in another context in Katzenbach v. Morgan, 384 U. S. 641 , 384 U. S. 651 n. 10 (1966), what deference should be given a congressional determination that certain procedures not plainly violations of due process, should be permitted. See Greenawalt, supra, n. 4, at 232 n. 207. Whether Congress may place restrictions on bugging by local law enforcement not mandated by the Fourteenth Amendment is also an unanswered question. See Spritzer, supra, n. 15, at 177 n. 46.
DOUGLAS and MR. JUSTICE HARLAN. In short, I believe that On Lee v. United States, 343 U. S. 747 (1952), cannot be considered viable in light of the constitutional principles articulated in Katz v. United States, 389 U. S. 347 (1967), and other cases. And for reasons expressed by Mr. Justice Fortas in dissent in Desist v. United States, 394 U. S. 244 , 394 U. S. 269 (1969), I do not think we should feel constrained to employ a discarded theory of the Fourth Amendment in evaluating the governmental intrusions challenged here.


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The legal basis for this data processing is Art. 6 para. 1 lit. f DSGVO (legitimate interests of the person in charge).
The o.g. The legitimate interest in data processing according to Art. 6 para. 1 lit. f DSGVO.
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If the e-mail contact aims to conclude a contract, then additional legal basis for the processing is Art. 6 para. 1 lit. b DSGVO.
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Any data subject has the right to request information on whether or not personal data is being processed.
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Every data subject has the right to revoke consent to the processing of personal data at any time if the processing referred to in Art. 6 (1) lit. a or Art. 9 para. 2 lit. A shall be without prejudice to the lawfulness of the processing effected on the basis of the consent until the withdrawal.
Any data subject shall have the right, at any time and for reasons arising from his particular situation, to prevent the processing of personal data relating to him or her based on Article 6 (1) (e) or f DS-GMO takes an objection. This also applies to profiling based on these provisions. When personal data are processed to operate direct mail, the data subject has the right to object at any time to the processing of personal data concerning him or her for the purposes of such advertising; this also applies to profiling insofar as it is associated with such direct mail.
• (3) with the express consent of the data subject.
In the cases referred to in (1) and (3), appropriate measures shall be taken to safeguard the rights and freedoms and the legitimate interests of the data subject, including at least the right to obtain the intervention of a person by the controller, to disclose his or her own Position and contesting the decision.

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By Patrick V. Hess Tuesday, September 05th 2017 19:48:11 PM .
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DeWolfe v. Richmond: State Law or Just Law?
As recently recounted on this Blog, the 4-3 decision of the Court of Appeals in DeWolfe v. Richmond, ___ Md. ___, 2013 WL 5377174 (Sept. 25, 2013), was notable as another in a growing line of state court decisions resting individual rights on the Maryland Constitution, as opposed to federal law. Expressly grounding its decision on Article 24 of the Maryland Constitution’s Declaration of Rights, the Court ruled that detainees at initial bail hearings have a right to counsel provided by the state, if they cannot afford or otherwise retain counsel of their own. The convoluted procedural history of the case and related cases that preceded it evidences the substantial moment of the competing interests at stake in the decision. Not only does the decision broaden the protective reach of Article 24 of the Maryland Constitution’s Declaration of Rights but also, more practically and immediately, it is estimated that the ruling will require counsel to be afforded for 177,000 bail hearings at 188 different locations annually, at a cost, no less of $28 Million for the Office of the Public Defender, whose total current General Assembly allocation, set before DeWolfe, stands at $94 Million for all services the Office provides.
Resting the decisions of Maryland’s highest court and of the highest courts of all other states exclusively on state law grounds and eschewing, at least facially, rulings based on federal law insulates those decisions from review in the United States Supreme Court. Michigan v. Long, 463 U.S. 1032, 1041 (1983). It is not a novel state judicial stratagem. Its potential has existed since ratification of the United States Constitution and the creation of federal court jurisdiction, but the modern day attention and use that it has received has its origin in Justice William J. Brennan, Jr.’s call to increased state judicial engagement in the protection of individual rights and liberties in an article published in the Harvard Law Review in 1977 and in a preceding public address before the New Jersey State Bar Association on May 22, 1976. The Supreme Court’s October 1975 Term was a watershed term in the Court’s history, marking a major assault on the dam holding the reservoir of gains to individual and personal liberties filled by Warren Court jurisprudence. Unsettled by the Court’s decision after decision that term slicing and paring away at Warren Court precedents and drawing on the personal lessons of his experience as a New Jersey supreme court judge, Justice Brennan began that term to consider and eventually trumpet the potential for state courts to protect, under their own state constitutions and laws, the individual liberties and political rights the Supreme Court had come to recognize in the United States Constitution.
Justice Brennan’s clarion call did not go unheeded. Since the late 1970s state courts in numerous decisions have looked toward their state constitutions with greater regard for their bearing on cases coming before them and in a wide variety of matters, including taxpayer standing, property condemnation for public uses, individual liberties, religious liberties, searches and seizures, impairment of contracts, and criminal procedure. Many of these decisions, indeed, are not just more liberal drum beating, but libertarian and even conservative in the decisions they reach. Moreover, in doing so, state courts have not merely gratuitously and expediently characterized, as state law, decisions that are really just different takes on federal constitutional concepts and questions. Rather, state courts have resorted to considered examination of the text of their relevant state constitutional provisions, to available historical material about those provisions and to other state specific and relevant information to illuminate the purpose and intent of those provisions, giving true and well-grounded meaning to the advice that a decision reflects state law. As a consequence, in many, though not all opinions, the assertion that a decision is based exclusively on state law grounds has reflected not merely the use of a proven device for insulating state judicial decisions from Supreme Court review but expanding recognition of the substantive provisions of state constitutions as themselves a preeminent source of law, rather than merely the afterthoughts of state constitutional conventions or redundant restatements of federal constitutional principles. Such considered decisions have also reinvigorated federalism in the development of the law, particularly as it concerns individual liberties and property rights, as was Justice Brennan’s objective.
Despite the history that preceded it and the controversy that attended it and despite its narrow margin of decision, DeWolfe is not merely notable for its perfunctory reliance on state law grounds but also remarkable, given its express state law basis and importance, for the lack of resort by both the majority and the dissent to an authentic examination of Maryland constitutional law in support their respective positions. In particular, there is no effort by the majority to explain why it is, in this particular case, that the Maryland constitution affords a right to counsel broader than that recognized by relevant Supreme Court decisions. To be sure, the majority, quoting Dua v. Comcast Cable, Inc., 370 Md. 604 , 621, 805 A.2d 1061, 1071 (2010), noted that “simply because a Maryland constitutional provision is in pari materia with a federal one or has a federal counterpart, does not mean that the provision will always be interpreted or applied in the same manner as its federal counterpart.” DeWolfe, 2013 WL 5377174, at *12-13 n.9. But this, of course, is not an explanation for why DeWolfe was a case for a different interpretation or application. Nor does the majority’s observation that the Court of Appeals has on past occasions construed Article 24 of the Maryland Declaration of Rights to afford protection broader than those found in the United States Constitution, id., explain why DeWolfe should be another such case. The beginning and potentially even the end of the explanation could have at least started with an examination of the text of Article 24, the generally accepted approach in cases of statutory and constitutional construction. Even though, however, the majority opinion quotes Article 24 and even though the terms of Article 24 differ significantly from their federal due process counterparts, the majority opinion is devoid of any consideration of those terms. Nor is there any apparent consideration of what in the history of Article 24 and Maryland’s own experience supports the Court’s outcome.
Likewise, there is no effort by the dissent to explain why due process rights under the Maryland constitution do not reach any further than the federal rights or, depending on one’s view of federal rights, should not reach further than those rights. The dissent does, however, deserve credit for adverting to Maryland’s own experience under its current criminal procedures in invoking two Supreme Court decisions indulging the need for compromise among competing interests at the federal level. Still, like the majority opinion, and tellingly, there is no examination of the text of Article 24 by the dissent or the original intent of that provision, in order to determine whether the text or history offers any resistance to the result that the majority reached.
 K. Arthur, The Public Defender Opinion: the Implication of Resting on State-Law Grounds, Maryland Appellate Blog (Oct. 18, 2013).
 See, e.g., Doe v. Department of Public Safety and Correctional Servs., 430 Md. 535, 547 n.11, 62 A.3d 123, 130 n.11 (2013) (ex post facto rights); Marshall v. State, 415 Md. 248, 260, 999 A.2d 1029, 1035 (2010) (“we shall rest our decision, as we have often done in the past, solely upon the Maryland provisions”); Maryland Green Party v. Maryland Board of Elections, 377 Md. 127, 139, 832 A.2d 214, 221 (2003) (ballot access restrictions).
 In the DeWolfe case, the Court of Appeals, in 2010, vacated a Circuit Court judgment for the defendants and remanded to the Circuit Court, ruling that the plaintiffs should have joined the Public Defender as a party to the action. Richmond v. District Court, 412 Md. 612, 990 A.2d 49 (2010). After the Public Defender was joined, the Circuit Court granted plaintiffs’ motion for summary judgment, ruling that the Public Defender Act required the Public Defender to represent indigents at initial appearance proceedings before a commissioner. Defendants appealed, and plaintiffs cross-appealed and also filed petitions for certiorari in the Court of Appeals. The Public Defender cross-petitioned; the Court of Appeals granted the petitions, DeWolfe v. Richmond, 420 Md. 81, 21 A.3d 1063 (2011); and the Court of Appeals affirmed, strictly on the statutory grounds of the Act, in an opinion issued on January 4, 2012. While petitions for reconsideration were pending, the Maryland General Assembly passed and the Governor signed on May 22, 2012 legislation that amended the Public Defender Act, so as to eliminate the statutory basis for the Court’s January 4, 2012 decision. Responding to the Legislature’s action, some parties filed motions asking the Court to decide whether there was, nevertheless, a federal or state constitutional right to state-furnished counsel at initial appearances before District Court Commissioners, while others urged a remand for further development of the record. In an order issued August 22, 2012, the Court rejected requests to remand the case and, instead, ordered further briefing and argument in proceedings before it, proceedings that eventuated in the decision that is the subject here.
 Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977).
 33 Guild Prac. 152 (1976).
 The writer was one of Justice Brennan’s four law clerks during the October 1975 Term. The Justice’s custom at the end of each term of Court was to give his law clerks a bound volume of the decisions in all cases in which the Justice himself had authored an opinion for the Court, submitted a concurrence or written in dissent. In then recent years and prior to the October 1975 Term, that compilation never exceeded one volume, no more than three inches thick. In the October 1975 Term, the compilation consisted of two volumes, each no less than three inches thick. The reason was the explosion of concurring or dissenting opinions by Justice Brennan in the face of the onslaught that term against Warren Court principles and precedents.
 See Bolick, Brennan’s Epiphany: The Necessity of Invoking State Constitutions to Protect Freedom, 12 Tex. Rev. Law & Pol. 137 (2007).
 Bolick, supra note 7, at 145-47.
 County of Riverside v. McLaughlin, 500 U.S. 44, 57-58 (1991) ( allowing as much as a 48 hour delay between a warrantless arrest and a probable cause hearing as a “reasonable accommodation between legitimate competing concerns,” including the Fourth Amendment’s requirement that warrantless arrests be followed by a prompt judicial determination of probable cause); Baker v. McCollan, 443 U.S. 137, 145 (1979) (holding that a three-day detention over a holiday weekend did not amount to a denial of due process).
 Cf. Maryland Green Party, 377 Md. at 139, 832 A.2d at 221, quoting Dua, 370 Md. at 618 n.6, 805 A.2d at 1069-1070 n.6 and Frankel v. Board of Regents, 361 Md. 298, 313-314 n.3, 761 A.2d 324, 332 n.3 (2000) (“[B]y not reaching the federal constitutional issues ‘we do not suggest that the result in this case would be any different if the sole issue were whether the [statutes] violated the federal Constitution.’ We simply are making it clear that our decision is based exclusively upon the [Maryland Constitution] and is in no way dependent upon the federal [Constitution]” (emphasis added)).
 Cf. Bator, The State Courts and Federal Constitutional Litigation, 22 Wm. & Mary L. Rev. 605, 606 n.1 (1981) (“inappropriate for Supreme Court justices themselves to campaign to enact into unreviewable state constitutional law dissenting views about federal constitutional law which have been duly rejected by the United States Supreme Court”).
 Brennan, supra note 4, at 491.

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