Berger v. New York/Concurrence Douglas

by William O. Douglas

United States Supreme Court

388 U.S. 41

Berger  v.  New York

 Argued: April 13, 1967. --- Decided: June 12, 1967

Mr. Justice DOUGLAS, concurring.

I join the opinion of the Court because at long last it overrules sub silentio Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944, and its offspring and brings wiretapping and other electronic eavesdropping fully within the purview of the Fourth Amendment. I also join the opinion because it condemns electronic surveillance, for its similarity to the general warrants out of which our Revolution sprang and allows a discreet surveillance only on a showing of "probable cause." These safeguards are minimal if we are to live under a regime of wiretapping and other electronic surveillance.

Yet there persists my overriding objection to electronic surveillance, viz., that it is a search for 'mere evidence' which, as I have maintained on other occasions (Osborn v. United States, 385 U.S. 323, 349-354, 87 S.Ct. 429, 443, 446, 17 L.Ed.2d 394), is a violation of the Fourth and Fifth Amendments, no matter with what nicety and precision a warrant may be drawn a proposition that I developed in detail in my dissent in Warden v. Hayden, 387 U.S. 312, 87 S.Ct. 1653, 18 L.Ed.2d 795, decided only the other day.

A discreet selective wiretap or electronic "bugging" is of course not rummaging around, collecting everything in the particular time and space zone. But even though it is limited in time, it is the greatest of all invasions of privacy. It places a government agent in the bedroom, in the business conference, in the social hour, in the lawyer's office-everywhere and anywhere a "bug" can be placed.

If a statute were to authorize placing a policeman in every home or office where it was shown that there was probable cause to believe that evidence of crime would be obtained, there is little doubt that it would be struck down as a bald invasion of privacy, far worse than the general warrants prohibited by the Fourth Amendment. I can see no difference between such a statute and one authorizing electronic surveillance, which, in effect, places an invisible policeman in the home. If anything, the latter is more offensive because the homeowner is completely unaware of the invasion of privacy.

The traditional wiretap or electronic eavesdropping device constitutes a dragnet, sweeping in all conversations within its scope-without regard to the participants or the nature of the conversations. It intrudes upon the privacy of those not even suspected of crime and intercepts the mos i ntimate of conversations. Thus, in the Coplon case (United States v. Coplon, D.C., 91 F.Supp. 867, rev'd, 89 U.S.App.D.C. 103, 191 F.2d 749) wiretaps of the defendant's home and office telephones recorded conversations between the defendant and her mother, a quarrel between a husband and wife who had no connection with the case, and conferences between the defendant and her attorney concerning the preparation of briefs, testimony of government witnesses, selection of jurors and trial strategy. Westin, The Wire-Tapping Problem: An Analysis and a Legislative Proposal, 52 Col.L.Rev. 165, 170-171 (1952); Barth, The Loyalty of Free Men 173 (1951). It is also reported that the FBI incidentally learned about an affair, totally unrelated to espionage, between the defendant and a Justice Department attorney. Barth, supra, at 173. While tapping one telephone, police recorded conversations involving, at the other end, The Juilliard School of Music, Brooklyn Law School, Consolidated Radio Artists, Western Union, Mercantile Commercial Bank, several restaurants, a real estate company, a drug store, many attorneys, an importer, a dry cleaning establishment, a number of taverns, a garage, and the Prudential Insurance Company. Westin, supra, at 188, n. 112. These cases are but a few of many demonstrating the sweeping nature of electronic total surveillance as we know it today.

It is, of course, possible for a statute to provide that wiretap or electronic eavesdrop evidence is admissible only in a prosecution for the crime to which the showing of probable cause related. See Nev.Rev.Stat. § 200.680 (1963). But such a limitation would not alter the fact that the order authorizes a general search. Whether or not the evidence obtained is used at a trial for another crime, the privacy of the individual has been infringed by the interception of all of his conversations. And, even though the information is not introduced as evidence, it can and probably will be used as leads and background information. Again, a statute could provide that evidence developed from eavesdrop information could not be used at trial. Cf. Silverthorne Lumber Co., Inc. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319; Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307; Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734. But, under a regime of total surveillance, where a multitude of conversations are recorded, it would be very difficult to show which aspects of the information had been used as investigative information.

As my Brother WHITE says in his dissent, this same vice inheres in any search for tangible evidence such as invoices, letters, diaries, and the like. "In searching for seizable matters, the police must necessarily see or hear, and comprehend, items which do not relate to the purpose of the search." That is precisely why the Fourth Amendment made any such rummaging around unconstitutional, even though supported by a formally adequate warrant. That underwrites my dissent in Hayden.

With all respect, my Brother BLACK misses the point of the Fourth Amendment. It does not make every search constitutional provided there is a warrant that is technically adequate. The history of the Fourth Amendment, as I have shown in my dissent in the Hayden case, makes it plain that any search in the precincts of the home for personal items that are lawfully possessed and not articles of a crime is "unreasonable." That is the essence of the "mere evidence" rule that long obtained until overruled by Hayden.

The words that a man says consciously on a radio are public property. But I do not see how government using surreptitious methods can put a person on the radio and use his words to convict him. Under our regime a man stands mute if he chooses, or talks if he chooses. The test is whether he acts voluntarily. That is the essence of the face of privacy protected by the 'mere evidence' rule. For the Fourth Amendment and the Fifth come ito play when the accused is "the unwilling source of the evidence" (Gouled v. United States, 255 U.S. 298, 306, 41 S.Ct. 261, 264, 65 L.Ed. 647), there being no difference "whether he be obliged to supply evidence against himself or whether such evidence be obtained by an illegal search of his premises and seizure of his private papers." Ibid.

That is the essence of my dissent in Hayden. In short, I do not see how any electronic surveillance that collects evidence or provides leads to evidence is or can be constitutional under the Fourth and Fifth Amendments. We could amend the Constitution and so provide-a step that would taken us closer to the ideological group we profess to despise. Until the amending process ushers us into that kind of totalitarian regime, I would adhere to the protection of privacy which the Fourth Amendment, fashioned in Congress and submitted to the people, was designed to afford the individual. And unlike my Brother BLACK, I would adhere to Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, and apply the exclusionary rule in state as well as federal trials-a rule fashioned out of the Fourth Amendment and constituting a high constitutional barricade against the intrusion of Big Brother into the lives of all of us.

Notes