Lopez v. United States (373 U.S. 427)/Dissent Brennan

by William J. Brennan, Jr.

United States Supreme Court

373 U.S. 427

Lopez  v.  United States

 Argued: Jan. 14, 1963. --- Decided: May 27, 1963

Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice GOLDBERG join, dissenting.

In On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270, the Court sustained the admission in evidence of the testimony of a federal agent as to incriminating statements made by the accused, a laundryman, on trial for narcotics offenses. The statements were made by the accused while at large on bail pending trial in a conversation in his shop with an acquaintance and former employee, who, unknown to the accused, was a government informer and carried a radio transmitter concealed on his person. The federal agent, equipped with a radio receiver tuned to the transmitter, heard the transmitted conversation while standing on the sidewalk outside the laundry. The Court rejected arguments invoking the Fourth Amendment and our supervisory power against the admissibility of the agent's testimony. I believe that that decision was error, in reason and authority, at the time it was decided; that subsequent decisions and subsequent experience have sapped whatever vitality it may once have had; that it should now be regarded as overruled; that the instant case is rationally indistinguishable; and that, therefore, we should reverse the judgment below.

The United States in its brief and oral argument before this Court in the instant case made little effort to justify the result in On Lee, doubtless because it realizes that that decision has lost virtually all its force as authority. Instead, the Government seeks to distinguish the instant case. This strategy has succeeded, it appears, with a majority of my Brethren. The Court's refusal to accord more than passing mention in its opinion to the only decision of this Court-On Lee-factually analogous to the case at bar suggests very strongly that some of my colleagues who have joined the Court's opinion today agree with us that On Lee should be considered a dead letter. For the Court, rather than follow On Lee, has adopted the substance of the Government's attempted distinction between On Lee and the instant case.

The Government argues as follows: 'Petitioner can hardly complain that his secret thoughts were unfairly extracted from him, for they were, from the beginning, intended to be put into words, and to be communicated to the very auditor who heard them.' This argument has two prongs and I take the second first. To be sure, there were two auditors in On Lee-the informer and the federal agent outside. But equally are there two auditors here-the federal agent and the Minifon. In On Lee, the informer was the vehicle whereby the accused's statements were transmitted to a third party, whose subsequent testimony was evidence of the statements. So here, the intended auditor, Agent Davis, was the vehicle enabling the Minifon to record petitioner's statements in a form that could be, and was, offered as evidence thereof.

The Government would have it that the 'human witness (Davis) actually testifies and the machine merely repeats and corroborates his narrative.' But it can make no difference that Davis did, and the informer in On Lee did not, himself testify; for the challenged evidence, the Minifon recording, is independent evidence of the statements to which Davis also testified. A mechanical recording is not evidence that is merely repetitive or corroborative of human testimony. To be sure, it must be authenticated before it can be introduced. But once it is authenticated, its credibility does not depend upon the credibility of the human witness. Therein does a mechanical recording of a conversation differ fundamentally from, for example, notes that one of the parties to the conversation may have taken. A trier of fact credits the notes only insofar as he credits the notetaker. But he credits the Minifon recording not because he believes Davis accurately testified as to Lopez' statements but because he believes the Minifon accurately transcribed those statements. This distinction is well settled in the law of evidence, and it has been held that Minifon recordings are independent third-party evidence. Monroe v. United States, 98 U.S.App.D.C. 228, 233-234, 234 F.2d 49, 54-55. ^[1]

The other half of the Government's argument is that Lopez surrendered his right of privacy when he communicated his 'secret thoughts' to Agent Davis. The assumption, manifestly untenable, is that the Fourth Amendment is only designed to protect secrecy. If a person commits his secret thoughts to paper, that is no license for the police to seize the paper; if a person communicates his secret thoughts verbally to another, that is no license for the police to record the words. Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734. On Lee certainly rested on no such theory of waiver. The right of privacy would mean little if it were limited to a person's solitary thoughts, and so fostered secretiveness. It must embrace a concept of the liberty of one's communications, and historically it has. 'The common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others * * * and even if he has chosen to give them expression, he generally retains the power to fix the limits of the publicity which shall be given them.' Warren and Brandeis, The Right to Privacy, 4 Harv.L.Rev. 193, 198 (1890). (Emphasis supplied.)

That is not to say that all communications are privileged. On Lee assumed the risk that his acquaintance would divulge their conversaion; Lopez assumed the same risk vis-a -vis Davis. The risk inheres in all communications which are not in the sight of the law privileged. It is not an undue risk to ask persons to assume, for it does no more than compel them to use discretion in choosing their auditors, to make damaging disclosures only to persons whose character and motives may be trusted. But the risk which both On Lee and today's decision impose is of a different order. It is the risk that third parties, whether mechanical auditors like the Minifon or human transcribers of mechanical transmissions as in On Lee-third parties who cannot be shut out of a conversation as conventional eavesdroppers can be, merely by a lowering of voices, or withdrawing to a private place-may give independent evidence of any conversation. There is only one way to guard against such a risk, and that is to keep one's mouth shut on all occasions.

It is no answer to say that there is no social interest in encouraging Lopez to offer bribes to federal agents. Neither is there a social interest in allowing a murderer to conceal the murder weapon in his home. But there is a right of liberty of communications as of possessions, and the right can only be secure if its limitations are defined within a framework of principle. The Fourth Amendment does not forbid all searches, but it defines the limits and conditions of permissible searches; the compelled disclosure of private communications by electronic means ought equally to be subject to legal regulation. And if this principle is granted, I see no reasoned basis for reaching different results depending upon whether the conversation is with a private person, with a federal undercover agent (On Lee), or with an avowed federal agent, as here.

The CHIEF JUSTICE, concurring in the Court's result, suggests two further distinctions between On Lee and the instant case: first, that Agent Davis, in carrying a concealed recording device, was legitimately seeking to protect his reputation as a honest public servant; and second, that in the instant case, unlike On Lee, electronically obtained evidence was not used so as to circumvent the production of the key government witness. I admit these are differences, but I do not see how they bear upon the problem of the case before us, which is the admissibility in a federal criminal trial of the fruits of surreptitious electronic surveillance. Whether a federal tax agent, in order to convince his superiors that he was indeed offered the bribe and did not solicit it, ought to be permitted to carry a Minifon on his person is a separate question from whether the recording made by the Minifon is constitutionally permissible evidence in a federal criminal trial; I take it Lopez would have no standing to challenge the use of such recordings save in a prosecution or other proceeding against him. And whether it is unfair for the Government to introduce electronic evidence without putting the human agent of transmission on the stand seems to me to implicate considerations which have nothing to do with the principle of individual freedom enshrined in the Fourth Amendment. On Lee's trial may well have been less fair than Lopez' because of the withholding of the government informer as a witness. But the invasion of freedom was in both cases the same: the secret electronic transmission or recording of private communications, Lopez' to Davis and On Lee's to the undercover agent.

If On Lee and the instant case are in principle indistinguishable, the question of the continued validity of the Court's position in On Lee is inescapably before us. But we cannot approach the question properly without first clearing away another bit of underbrush: the suggestion that the right of privacy is lost not by the speaker's giving verbal form to his secret thoughts, but by the auditor's consenting to an electronic transcription of the speaker's words. The suggestion is an open invitation to law enforcement officers to use cat's-paws and decoys in conjunction with electronic equipment, as in On Lee. More important, it invokes a fictive sense of waiver wholly incompatible with any meaningful concept of liberty of communication. If a person must always be on his guard against his auditor's having authorized a secret recording of their conversation, he will be no less reluctant to speak freely than if his risk is that a third party is doing the recording. Surely high government officials are not the only persons who find it essential to be able to say things 'off the record.' I believe that there is a grave danger of chilling all private, free, and unconstrained communication if secret recordings, turned over to law enforcement officers by one party to a conversation, are competent evidence of any self-incriminating statements the speaker may have made. In a free society, people ought not to have to watch their every word so carefully.

Nothing in Rathbun v. United, States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134, is to the contrary. We held in that case that evidence obtained by police officers' listening in to a telephone conversation on an existing extension with the consent of one of the parties, who was also the subscriber to the extension, did not violate the federal wiretapping Act, 47 U.S.C. § 605. The decision was a narrow one. The grant of certiorari was limited to the question of statutory construction, and neither the majority nor dissenting opinion discusses any other possible basis for excluding the evidence. Furthermore, as the Court was careful to emphasize, extension phones are in common use, so common that it is a normal risk of telephoning that more than one person may be listening in at the receiver's end. The extension telephone by means of which Rathbun's statements were heard had not been specially installed for law enforcement purposes, and no attempt was made to transcribe the phone conversation electronically. Thus in the Court's view wiretapping in the conventional sense was not involved and § 605 had no application. It should also be pointed out that while it is a very serious inconvenience to be inhibited from speaking freely over the telephone, it perhaps is a far graver danger to a free society if a person is inhibited from speaking out in his home or office. ^[2]

The question before us comes down to whether there is a legal basis, either in the Fourth Amendment or in the supervisory power, ^[3] for excluding from federal criminal trials the fruits of surreptitious electronic surveillance by federal agents.

History and the text of the Constitution point the true path to the answer. In the celebrated case of Entick v. Carrington, 19 Howell's State Trials 1029 (C.P.1765), Lord Camden laid down two distinct principles: that general search warrants are unlawful because of their uncertainty; and that searches for evidence are unlawful because they infringe the privilege against self-incrimination. ^[4] Lord Camden's double focus was carried over into the structure of the Fourth Amendment. See Lasson, The History and Development of the Fourth Amendment to the United States Constitution (1937), 103; Fraenkel, Converning Searches and Seizures, 34 Harv.L.Rev. 361, 366 (1921). ^[5] The two clauses of the Amendment are in the conjunctive, and plainly have distinct functions. The Warrant Clause was aimed specifically at the evil of the general warrant, often regarded as the single immediate cause of the American Revolution. ^[6] But the first clause embodies a more encompassing principle. It is, in light of the Entick decision, that government ought not to have the untrammeled right to extract evidence from people. Thus viewed, the Fourth Amendment is complementary to the Fifth. Feldman v. United States, 322 U.S. 487, 489-490, 64 S.Ct. 1082, 1083, 88 L.Ed. 1408. The informing principle of both Amendments is nothing less than a comprehensive right of personal liberty in the face of governmental intrusion.

And so this Court held in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, 'a case that will be remembered as long as civil liberty lives in the United States' (Brandeis, J., dissenting in Olmstead v. United States, 277 U.S. 438, 474, 48 S.Ct. 564, 571):

'The principles laid down in this opinion (Entick v. Carrington) 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, personal liberty and private property, where that right has never been forfeited by his conviction of some public offense-it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden's judgment. Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man's own testimony, or of his private papers to be used as evidence to convict him of crime, or to forfeit his goods, is within the condemnation of that judgment. In this regard the fourth and fifth amendments run almost into each other.' 116 U.S. at 630, 6 S.Ct. at 532.

The Court in Boyd set its face against a narrowly literal conception of 'search and seizure,' instead reading the Fourth and Fifth Amendments together as creating a broad right to inviolate personalty. Boyd itself was not a search and seizure case in the conventional sense, but involved an order to compel production of documents in the nature of a subpoena duces tecum. And Boyd had been preceded by Ex parte Jackson, 96 U.S. 727, 735, 24 L.Ed. 877, in which the Court had clearly intimated that a statute permitting government officials to open letters in the mail would violate the Fourth Amendment. See also Hoover v. McChesney, 81 F. 472 (Cir.Ct.D.Ky.1897).

The authority of the Boyd decision has never been impeached. Its basic principle, that the Fourth and Fifth Amendments interact to create a comprehensive right of privacy, of individual freedom, has been repeatedly approved in the decisions of this Court. ^[7] Thus we have held that the gist of the Fourth Amendment is '(t)he security of one's privacy against arbitrary intrusion by the police.' Wolf v. Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782; Stefanelli v. Minard, 342 U.S. 117, 119, 72 S.Ct. 118, 119, 96 L.Ed. 138; Frank v. Maryland, 359 U.S. 360, 362, 79 S.Ct. 804, 806, 3 L.Ed.2d 877. Only two Terms ago, in reaffirming that the Fourth Amendment's 'right to privacy' is a 'basic constitutional right,' Mapp v. Ohio, 367 U.S. 643, 656, 81 S.Ct. 1684, 1692, 6 L.Ed.2d 1081, we remarked the "intimate relation" between the Fourth and Fifth Amendments. Id., at 657, 81 S.Ct. at 1692. So also, the Court's insistence that the Fourth Amendment is to be liberally construed, e.g., Byars v. United States, 273 U.S. 28, 32, 47 S.Ct. 248, 249, 71 L.Ed. 520; United States v. Lefkowitz, 285 U.S. 452, 464, 52 S.Ct. 420, 423, 76 L.Ed. 877; Grau v. United States, 287 U.S. 124, 53 S.Ct. 38, 77 L.Ed. 212, that searches for and seizures of mere evidence as opposed to the fruits or instrumentalities of crime are impermissible under any circumstances, e.g., United States v. Lefkowitz, supra, 285 U.S. at 464-466, 52 S.Ct. at 423; Harris v. United States, 331 U.S. 145, 154, 67 S.Ct. 1098, 1103, 91 L.Ed. 1399; Abel v. United States, 362 U.S. 217, 237-238, 80 S.Ct. 683, 696, 4 L.Ed.2d 668, and that the Fourth Amendment is violated whether the search or seizure is accomplished by force, by subterfuge, Gouled v. United States, 255 U.S. 298, 306, 41 S.Ct. 261, 263; see, e.g., Gatewood v. United States, 93 U.S.App.D.C. 226, 209 F.2d 789; Fraternal Order of Eagles v. United States, 3 Cir., 57 F.2d 93; United States v. General Pharmacal Co., D.C., 205 F.Supp. 692; United States v. Bush, D.C., 172 F.Supp. 818; United States v. Reckis, D.C., 119 F.Supp. 687; United States v. Mitchneck, D.C., 2 F.Supp. 225; but see United States v. Bush, 6 Cir., 283 F.2d 51, reversing, D.C., 172 F.Supp. 818, by an invalid subpoena, see, e.g. Hale v. Henkel, 201 U.S. 43, 76, 26 S.Ct. 370, 379; Federal Trade Commission v. American Tobacco Co., 264 U.S. 298, 44 S.Ct. 336, 68 L.Ed. 696; Brown v. United States, 276 U.S. 134, or otherwise, see e.g., Wakkuri v. United States, 6 Cir., 67 F.2d 844, is confirmation that the purpose of the Amendment is to protect individual liberty in the broadest sense from governmental intrusion. And see Poe v. Ullman, 367 U.S. 497, 549-552, 81 S.Ct. 1752, 1780-1781, 6 L.Ed.2d 989 (dissenting opinion).

It is against this background that we must appraise Olmstead v. United States, supra, where the Court, over the dissents of Justices Holmes, Brandeis, Stone, and Butler, held that the fruits of wiretapping by federal officers were admissible as evidence in federal criminal trials. The Court's holding, which is fully pertinent here, ^[8] rested on the propositions that there had been no search because no trespass had been committed against the petitioners and no seizure because no physical evidence had been obtained, thus making the Fourth Amendment inapplicable; and that evidence was not inadmissible in federal criminal trials merely because obtained by federal officers by methods violative of state law or otherwise unethical.

When the Court first confronted the problem of electronic surveillance apart from wiretapping, olmstead was deemed to control, five members of the Court declining to reexamine the soundness of that decision. Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322. In Turn, Olmstead and Goldman were deemed to compel the result in On Lee. But cf. note 10, infra. The instant case, too, hinges on the soundness and continued authority of the Olmstead decision. I think it is demonstrable that Olmstead was erroneously decided, that its authority has been steadily sapped by subsequent decisions of the Court, and that it and the cases following it are sports in our jurisprudence which ought to be eliminated.

(1) Olmstead's illiberal interpretation of the Fourth Amendment as limited to the tangible fruits of actual trespasses was a departure from the Court's previous decisions, notably Boyd, and a misreading of the history and purpose of the Amendment. Such a limitation cannot be squared with a meaningful right to inviolate personal liberty. It cannot even be justified as a 'literal' reading of the Fourth Amendment. 'In every-day talk, as of 1789 or now, a man 'searches' when he looks or listens. Thus we find references in the Bible to 'searching' the Scriptures (John V, 39); in literature to a man 'searching' his heart or conscience; in the law books to 'searching' a public record. None of these acts requires a manual rummaging for concealed objects. * * * (J)ust as looking around a room is searching, listening to the sounds in a room is searching. Seeing and hearing are both reactions of a human being to the physical environment around him to light waves in one instance, to sound waves in the other. And, accordingly, using a mechanical aid to either seeing or hearing is also a form of searching. The camera and the dictaphone both do the work of the end-organs of an individual human searcher-more accurately.' United States v. On Lee, 2 Cir., 193 F.2d 306, 313 (Frank, J., dissenting).

(2) As constitutional exposition, moreover, the Olmstead decision is insupportable. The Constitution would be an utterly impractical instrument of contemporary government if it were deemed to reach only problems familiar to the technology of the eighteenth century; yet the Court in Olmstead refused to apply the Fourth Amendment to wiretapping seemingly because the Framers of the Constitution had not been farsighted enough to foresee the invention of the telephone.

(3) The Court's illiberal approach in Olmstead was a deviant in the law of the Fourth Amendment and not a harbinger of decisional revolution. The Court has not only continued to reiterate its adherence to the principles of the Boyd decision, see, e.g., Mapp v. Ohio, supra, but to require that subpoenas duces tecum comply with the Fourth Amendment, see United States v. Bausch & Lomb Optical Co., 321 U.S. 707, 727-728, 64 S.Ct. 805, 815-816, 88 L.Ed. 1024; Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614; McPhaul v. United States, 364 U.S. 372, 382-383, 81 S.Ct. 138, 144, 5 L.Ed.2d 136-a requirement patently inconsistent with a grudging, narrow conception of 'searches and seizures.'

(4) Specifically, the Court in the years since Olmstead has severed both supports for that decision's interpretation of the Fourth Amendment. We have held that the fruits of electronic surveillance, though intangible, nevertheless are within the reach of the Amendment. Irvine v. California, 347 U.S. 128, 74 S.Ct. 381, 98 L.Ed. 561; Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734; ^[9] Lanza v. New York, 370 U.S. 139, 142, 82 S.Ct. 1218, 1220, 8 L.Ed.2d 384. Indeed, only the other day we reaffirmed that verbal fruits, equally with physical, are within the Fourth. Wong Sun v. United States, 371 U.S. 471, 485-486, 83 S.Ct. 407, 416-417, 9 L.Ed.2d 441. So too, the Court has refused to crowd the Fourth Amendment into the mold of local property law, Chapman v. United States, 365 U.S. 610, 617, 81 S.Ct. 776, 780, 5 L.Ed.2d 828; Jones v. United States, 362 U.S. 257, 266, 80 S.Ct. 725, 733, 4 L.Ed.2d 697; United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59; McDonald v. United States, 335 U.S. 451, 454, 69 S.Ct. 191, 192, 93 L.Ed. 153, and has expressly held, in a case very close on its facts to that at bar, that an actual trespass need not be shown in order to support a violation of the Fourth Amendment. Silverman v. United States, supra, at 511, 81 S.Ct. at 682. ^[10]

(5) Insofar as Olmstead rests on the notion that the federal courts may not exclude evidence, no matter how obtained, unless its admission is specifically made illegal by federal statute or by the Constitution, the decision is manifestly inconsistent with what has come to be regarded as the scope of the supervisory power over federal law enforcement. See, e.g., McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819; Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100; Rea v. United States, 350 U.S. 214, 76 S.Ct. 292, 100 L.Ed. 233; Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479; Morgan, The Law of Evidence, 1941-1945, 59 Harv.L.Rev. 481, 537 (1946). We are empowered to fashion rules of evidence for federal criminal trials in conformity with 'the principles of the common law as they may be interpreted * * * in the light of reason and experience.' Rule 26, Federal Rules of Criminal Procedure. Even if electronic surveillance as here involved does not violate the letter of the Fourth Amendment, which I do not concede, it violates its spirit, and we ought to devise an appropriate prophylactic rule. The Court's suggestion that the supervisory power may never be invoked to create an exclusionary rule of evidence unless there has been a violation of a specific federal law or rule of procedure is, to me, a gratuitous attempt to cripple that power. And I do not see how it can be reconciled with our mandate to fashion rules conformable to evolving common law principles.

(6) The Olmstead decision caused such widespread dissatisfaction that Congress in effect overruled it by enacting § 605 of the Federal Communications Act, which made wiretapping a federal crime. We have consistently given § 605 a generous construction, see Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314; Weiss v. United States, 308 U.S. 321, 60 S.Ct. 269, 84 L.Ed. 298; Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307; Benanti v. United States, 355 U.S. 96, 78 S.Ct. 155, 2 L.Ed.2d 126, recognizing that Congress had been concerned to prevent 'resort to methods deemed inconsistent with ethical standards and destructive of personal liberty.' Nardone (I), supra, at 383, 58 S.Ct. at 277; see Goldstein v. United States, 316 U.S. 114, 120, 62 S.Ct. 1000, 1003, 86 L.Ed. 1312. To be sure, s 605, being directed to the specific practice sanctioned by Olmstead, wiretapping, does not of its own force forbid the admission in evidence of the fruits of other techniques of electronic surveillance. But a congressional enactment is a source of judicial policy as well as a specific mandate to be enforced, and the same 'broad considerations of morality and public well-being,' Nardone (II), at 340, 60 S.Ct. at 267, which make wiretap evidence inadmissible in the federal courts equally justify a court-made rule excluding the fruits of such devices as the Minifon. It is anomalous that the federal courts, while enforcing the right to privacy with respect to telephone communications, recognize no such right with respect to communications wholly within the sanctuaries of home and office.

If we want to understand why the Court, in Olmstead, Goldman, and On Lee, carved such seemingly anomalous exceptions to the general principles which have guided the Court in enforcing the Fourth Amendment, we must consider two factors not often articulated in the decisions. The first is the pervasive fear that if electronic surveillance were deemed to be within the reach of the Fourth Amendment, a useful technique of law enforcement would be wholly destroyed, because an electronic 'search' could never be reasonable within the meaning of the Amendment. See Note, The Supreme Court, 1960 Term, 75 Harv.L.Rev. 40, 187 (1961). For one thing, electronic surveillance is almost inherently indiscriminate, so that compliance with the requirement of particularity in the Fourth Amendment would be difficult; for another, words, which are the objects of an electronic seizure, are ordinarily mere evidence and not the fruits or instrumentalities of crime, and so they are impermissible objects of lawful searches under any circumstances, see p. 456-457, supra; finally, the usefulness of electronic surveillance depends on lack of notice to the suspect.

But the argument is unconvincing. If in fact no warrant could be devised for electronic searches, that would be a compelling reason for forbidding them altogether. The requirements of the Fourth Amendment are not technical or unreasonably stringent; they are the bedrock rules without which there would be no effective protection of the right to personal liberty. A search for mere evidence offends the fundamental principle against self-incrimination, as Lord Camden clearly recognized; a merely exploratory search revives the evils of the general warrant, so bitterly opposed by the American Revolutionaries; and without some form of notice, police searches became intolerable intrusions into the privacy of home or office. Electronic searches cannot be tolerated in the name of law enforcement if they are inherently unconstitutional.

But in any event, it is premature to conclude that no warrant for an electronic search can possibly be devised. 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,' Ohio ex rel. Eaton v. Price, 364 U.S. 263, 272, 80 S.Ct. 1463, 1468, 4 L.Ed.2d 1708 (separate opinion); see McDonald v. United States, 335 U.S. 451, 455, 69 S.Ct. 191, 193, 93 L.Ed. 153; Abel v. United States, 362 U.S. 217, 251-252, 80 S.Ct. 683, 703, 4 L.Ed.2d 668 (dissenting opinion), could be made a precondition of lawful electronic surveillance. And there have been numerous suggestions of ways in which electronic searches could be made to comply with the other requirements of the Fourth Amendment. ^[11]

This is not to say that a warrant that will pass muster can actually be devised. It is not the business of this Court to pass upon hypothetical questions, and the question of the constitutionality of warrants for electronic surveillance is at this stage purely hypothetical. But it is important that the question is still an open one. Until the Court holds inadmissible the fruits of an electronic search made, as in the instant case, with no attempt whatever to comply with the requirements of the Fourth Amendment, there will be no incentive to seek an imaginative solution whereby the rights of individual liberty and the needs of law enforcement are fairly accommodated.

The second factor that may be a significant though unarticulated premise of Olmstead and the cases following it is well expressed by the Government in the instant case: 'if the agent's relatively innocuous conduct here is found offensive, a fortiori, the whole gamut of investigatorial techniques involving more serious deception must also be condemned. Police officers could then no longer employ confidential informants, act as undercover agents, or even wear 'plain clothes.' But this argument misses the point. It is not Agent Davis' deception that offends constitutional principles, but his use of an electronic device to probe and record words spoken in the privacy of a man's office. For there 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. See pp. 449-451, supra. ^[12]

Furthermore, the fact that the police traditionally engage in some rather disreputable practices of law enforcement is no argument for their extension. Eavesdropping was indictable at common law ^[13] and most of us would still agree that it is an unsavory practice. The limitations of human hearing, however, diminish its potentiality for harm . Electronic aids add a wholly new dimension to eavesdropping. They make it more penetrating, more indiscriminate, more truly obnoxious to a free society. Electronic surveillance, in fact, makes the police omniscient; and police omniscience is one of the most effective tools of tyranny.

The foregoing analysis discloses no adequate justification for exception electronic searches and seizures from the requirements of the Fourth Amendment. But to state the case thus is to state it too negatively. It is to ignore the positive reasons for bringing electronic surveillance under judicial regulation. Not only has the problem grown enormously in recent years, see e.g., Todisco v. United States, 9 Cir., 298 F.2d 208; United, States v. Kabot, 2 Cir., 295 F.2d 848, but its true dimensions have only recently become apparent from empirical studies not available when Olmstead, Goldman, and On Lee were decided. The comprehensive study by Samuel Dash and his Associates as well as a number of legislative inquiries ^[14] reveals these truly terrifying facts: (1) Electronic eavesdropping by means of concealed microphones and recording devices of various kinds has become as large a problem as wiretapping, and is pervasively employed by private detectives, police, labor spies, employers and others for a variety of purposes, some downright disreputable. ^[15] (2) These devices go far beyond simple 'BUGGING,' AND PERMIT A DEGREE OF INVASIOn of privacy that can only be described as frightening. ^[16] (3) Far from providing unimpeachable evidence, the devices lend themselves to diabolical fakery. ^[17] (4) A number of States have been impelled to enact regulatory legislation. ^[18] (5) The legitimate law enforcement need for such techniques is not clear, ^[19] and it surely has not been established that a stiff warrant requirement for electronic surveillance would destroy effective law enforcement.

But even without empirical studies, it must be plain that electronic surveillance imports a peculiarly severe danger to the liberties of the person. To be secure against police officers' breaking and entering to search for physical objects is worth very little if there is no security against the officers' using secret recording devices to purloin words spoken in confidence within the four walls of home or office. Our possessions are of little value compared to our personalities. And we must bear in mind that historically the search and seizure power was used to suppress freedom of speech and of the press, see Lasson, supra, at 33, 37 50; Marcus v. Search Warrant, 367 U.S. 717, 724-729, 81 S.Ct. 1708, 1712-1714, 6 L.Ed.2d 1127; Frank v. Maryland, 359 U.S. 360, 376, 79 S.Ct. 804, 813, 3 L.Ed.2d 877 (dissenting opinion), and that today, also, the liberties of the person are indivisible. 'Under Hitler, when it became known that the secret police planted dictaphones in houses, members of families often gathered in bathrooms to conduct whispered discussions of intimate affairs, hoping thus to escape the reach of the sending apparatus.' United States v. On Lee, 2 Cir., 193 F.2d 306, 317 (dissenting opinion). Electronic surveillance strikes deeper than at the ancient feeling that a man's home is his castle; it strikes at Freedom of communication, a postulate of our kind of society. Lopez' words to Agent Davis captured by the Minifon were not constitutionally privileged by force of the First Amendment. But freedom of speech is undermined where people fear to speak unconstrainedly in what they suppose to be the privacy of home and office. King, Wire Tapping and Electronic Surveillance: A Neglected Constitutional Consideration, 66 Dick.L.Rev. 17, 25-30 (1961). If electronic surveillance by government becomes sufficiently widespread, and there is little in prospect for checking it, the hazard that as a people we may become hagridden and furtive is not fantasy.

The right to privacy is the obverse of freedom of speech in another sense. This Court has lately recognized that the First Amendment freedoms may include the right, under certain circumstances, to anonymity. See N.A.A.C.P. v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488; Bates v. Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480; Talley v. California, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559; Louisiana ex rel. Gremillion v. N.A.A.C.P., 366 U.S. 293, 81 S.Ct. 1333, 6 L.Ed.2d 301; Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 83 S.Ct. 889. The passive and the quiet, equally with the active and the aggressive, are entitled to protection when engaged in the precious activity of expressing ideas or beliefs. Electronic surveillance destroys all anonymity and all privacy; it makes government privy to everything that goes on.

In light of these circumstances I think it is an intolerable anomaly that while conventional searches and seizures are regulated by the Fourth and Fourteenth Amendments and wiretapping is prohibited by federal statute, electronic surveillance as involved in the instant case, which poses the greatest danger to the right of private freedom, is wholly beyond the pale of federal law. ^[20]

This Court has by and large steadfastly enforced the Fourth Amendment against physical intrusions into person, home, and property by law enforcement officers. But our course of decisions, it now seems, has been outflanked by the technological advances of the very recent past. I cannot but believe that if we continue to condone electronic surveillance by federal agents by permitting the fruits to be used in evidence in the federal courts, we shall be contributing to a climate of official lawlessness and conceding the helplessness of the Constitution and this Court to protect right's 'fundamental to a free society.' Frank v. Maryland, supra, 359 U.S. at 362, 79 S.Ct. at 806. ^[21]

Notes

1. See Burgman v. United States, 88 U.S.App.D.C. 184, 188 F.2d 637; Belfield v. Coop, 8 Ill.2d 293, 134 N.E.2d 249, 58 A.L.R.2d 1008 (1956); Boyne City, G. & A.R. Co. v. Anderson, 146 Mich. 328, 109 N.W.
2. If anything, Rathbun supports the position that the right of privacy is not forfeited merely because the auditor authorizes electronic eavesdropping. The Court might have grounded its decision in the fact that the receiver had consented to the police officers' listening in; since § 605 proscribes only unauthorized interceptions of telephonic communications, the Court could have held that the listening in was authorized, but it did not, turning the case entirely on the absence of interception within the meaning of the statute, and carefully differentiating between use of an existing extension phone and other modes of listening in. Thus the concession in Rathbun which the Court today quotes was pure dictum.
3. The failure of Lopez or his counsel to raise or argue the supervisory-power point does not bar us from considering it. For the interest secured by the exercise of the power is that of the federal courts themselves, not of the parties. '(T)he objection that the plaintiff comes with unclean hands will be taken by the court itself. It will be taken despite the wish to the contrary of all the parties to the litigation. The court protects itself.' Olmstead v. United States, 277 U.S. 438, 485, 48 S.Ct. 564, 575, 72 L.Ed. 944 (Brandeis, J., dissenting). (Footnote omitted.)
4. 'It is very certain, that the law obligeth no man to accuse himself; because the necessary means of compelling self-accusation, falling upon the innocent as well as the guilty, would be both cruel and unjust; and it should seem, that search for evidence is disallowed upon the same principle.' 19 Howell's State Trials, at 1073.
5. The text of the Fourth Amendment is as follows: 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'
6. 'Historically we are dealing with a provision of the Constitution which sought to guard against an abuse that more than any one single factor gave rise to American independence. John Adams surely is a competent witness on the causes of the American Revolution. And he it was who said of Otis' argument against search by the police * * * 'American independence was then and there born.' 10 Adams, Works 247.' Harris v. United States, 331 U.S. 145, 159, 67 S.Ct. 1098, 1105, 91 L.Ed. 1399 (dissenting opinion).
7. E.g., Bram v. United States, 168 U.S. 532, 543-544, 18 S.Ct. 183, 187, 42 L.Ed. 568; Hale v. Henkel, 201 U.S. 43, 71, 26 S.Ct. 370, 377, 50 L.Ed. 652; Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652; Gouled v. United States, 255 U.S. 298, 306, 41 S.Ct. 261, 263, 65 L.Ed. 647; Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654; Agnello v. United States, 269 U.S. 20, 33-34, 46 S.Ct. 4, 6-7, 70 L.Ed. 145; McGuire v. United States, 273 U.S. 95, 99, 47 S.Ct. 259, 260, 71 L.Ed. 556; United States v. Lefkowitz, 285 U.S. 452, 467, 52 S.Ct. 420, 424, 76 L.Ed. 877; Feldman v. United States, supra, 322 U.S. at 489-490, 64 S.Ct. at 1083; Davis v. United States, 328 U.S. 582, 587, 66 S.Ct. 1256, 1258, 90 L.Ed. 1453; Zap v. United States, 328 U.S. 624, 628, 66 S.Ct. 1277, 1279, 90 L.Ed. 1477.
8. In part, the Court rested its decision on considerations thought peculiar to wiretapping, i.e., the interception of telephonic communications. 'the language of the amendment cannot be extended and expanded to include telephone wires, reaching to the whole world from the defendant's house or office. The intervening wires are not part of his house or office, any more than are the highways along which they are stretched.' 277 U.S. at 465, 48 S.Ct. at 568. 'The reasonable view is that one who installs in his house a telephone instrument with connecting wires intends to project his voice to those quite outside, and that the wires beyond his house, and messages while passing over them, are not within the protection of the Fourth Amendment. Here those who intercepted the projected voices were not in the house of either party to the conversation.' Id., at 466, 48 S.Ct. at 568.
9. In Irvine v. California, supra, though the conduct of the police was held to violate the Fourth and Fourteenth Amendments, the fruits were deemed admissible under the rule of Wolf v. Colorado, supra, overruled in Mapp v. Ohio, supra. It might be noted that the holdings in Irvine and Silverman, insofar as they brought verbal fruits within the Fourth Amendment, were implicit in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319, where it was held that all fruits of an unconstitutional search must be excluded from the federal courts, so as not to 'reduce the Fourth Amendment to a form of words.' Cf. McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153; Nueslein v. District of Columbia, 73 App.D.C. 85, 115 F.2d 690.
10. Silverman involved the penetration of a 'spike mike' several inches into the party wall of the house occupied by the petitioners. The mike touched a heating duct which acted as a conductor of sounds within the house, thus enabling their transmission by the mike to federal officers on the other side of the wall. On its facts the case was very close to Goldman, which had involved a detectaphone placed against and touching (but not penetrating) the outside of a wall. Since the Court in Silverman declined to distinguish the cases on the ground that Silverman did, and Goldman did not, involve an actual trespass, it would seem that the authority of Goldman was severely impaired-and so also, it would seem, that of On Lee and Olmstead.
11. See, e.g., Goldman v. United States, 316 U.S. 129, 140, n. 6, 62 S.Ct. 993, 998 (Murphy, J., dissenting); cf. 8 Wigmore, Evidence (McNaughton rev. ed. 1961), § 2184b(3), at 59; Westin, The Wire-Tapping Problem: An Analysis and a Legislative Proposal, 52 Col.L.Rev. 165, 200-208 (1952).
12. This is not to say that the Fourth Amendment must necessarily embrace every situation involving electronic recording aids to law enforcement. For example, a distinction might be drawn between surveillance of home or office on the one hand, and surveillance of public places, streets, and so forth, on the other hand. Compare McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, with Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898.
13. 'Eaves-droppers, or such as listen under walls or windows or the eaves of a house, to hearken after discourse, and thereupon to frame slanderous and mischievous tales, are a common nuisance and presentable at the court-leet: or are indictable at the sessions, and punishable by fine and finding sureties for their good behaviour.' 4 Blackstone Commentaries 168. See Ga.Code Ann. § 26-2001; N.D.Cent.Code § 12-42-05; S.C.Code § 16-554.
14. Dash, Schwartz, and Knowlton, The Eavesdroppers (1959); Hearings on S. Res. No. 234 before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary 85th Cong., 2d Sess. passim (1958); Report of the California Senate Judiciary Committee on the Interception of Messages by the Use of Electronic and Other Devices (1957); Report of the New York Joint Legislative Committee to Study Illegal Interception of Communications, N.Y.Sess.Laws (1956).
15. See Dash, supra, note 14, at 76 ('bugging' by police of interrogation rooms, jail cells, and interview rooms in jails), 96 (monitoring of employees' conversations by means of microphones concealed in pen sets), 136 (use of microphones by law enforcement officers termed 'universal' in New Orleans and Baton Rouge), 175 (in California, '(b)ugging is much more frequently and openly engaged in by police than wiretapping'), 180 (again in California: 'Literally, whenever the police suspected an individual of being connected with the commission of a crime, and the case was worth it, trained police technicians, or private specialists employed by the police, would pry open windows, pick locks, or by some ruse gain entry to the home or business place of the suspected individual and plant a microphone for the purpose of overhearing his conversations. By means of a leased wire from the telephone company, these planted microphones could be connected to telephone lines which would be drawn in to a single listening post where a great number of conversations in different parts of the city could be monitored at one time and in one place'), 190 (use of concealed microphone for purposes of blackmail), 196 (bugging conversations between busbands and wives in jails), 212 ('tables have been bugged in a restaurant for the purpose, according to the proprietor, of permitting him to know what his customers actually think of his food and to detect discourtesy among his waitresses'), 229-230 (use of bugging to obtain evidence for divorce proceedings), 269-271 (wiretapping and bugging of labor controversies in Philadelphia), 280-281 (in Las Vegas: 'A bug is put in a visiting hoodlum's hotel room as a matter of course, to see what he is up to'). These are, of course, only a few isolated examples of the practice; see, e.g., The Wall Street Journal, April 9, 1963, p. 1, col. 4; p. 22, col. 3.
16. Dash suggests that a parabolic microphone (which concentrates sound much as a curved mirror focuses light) might pick up a conversation at a distance of 100 feet. P. 350. Such a microphone can be made virtually impossible to detect, p. 353, but even the ordinary concealed microphone in the home may be impossible to detect, at least without a mine detector. P. 342. Dash also suggests that a microwave-beam device may have been developed with a range of 1,000 feet or more and ability to penetrate through virtually any obstacle. Pp. 357-358. Such a device, if it exists, is not readily obtainable; but the parabolic microphone and a variety of other such devices are. Thus a current advertisement in a national maganzine for 'The Snooper' describes this device as follows: 'This is literally an electronic marvel that's a direct result of the space age. Incredible as it may seem, it does amplify sound 1,000,000 times. Sensitive 18 disk reflector will pick up normal conversations at a distance (500 ft.) where you can't even see lips moving. Just think of the ways you can use this. Portable; complete with tripod and stethescopic earphones. The best part-a regular tape recorder can be plugged into the back to take everything down. Have fun!' The advertised price is $18.95.
17. 'In a carefully controlled experiment, Samuel Dash made a sample political speech on tape. A sound studio specializing a tape editing for one of the large broadecasting studios then took this tape and edited it in such a way as completely to reverse its meaning. Finally, a third recording was made, this time of Mr. Dash reading the new, distorted version of the speech. The three recordings were compared by ear and by oscilloscope to see whether or not the editing was detectable. By ear it was noticeable only in one place where the editor had been hurried in his work. The oscilloscope could not reveal even this much because of the rapidly changing patterns on the screen. It was decided that the only way to examine the wave forms for purposes of comparison was to record them on motion-picture film; accordingly, equipment was set up for doing this. Although it was expected that the build-up or decay of sounds would be altered by cutting, so skilful had been the editorial manipulation that nothing of the kind was observed. Even after hours of studying the films, no sure clue revealing an editing job could be found.' Dash, at 368.
18. Cal.Penal Code §§ 653h, 653i; Mass.Gen.Laws Ann., c. 272, § 99; Nev.Rev.Stat. § 200.650; N.Y.Penal Law, § 738.
19. In the nature of things, wiretapping is only useful in the investigation of crimes of a continuing nature, which are typically not major crimes. '(T)he wiretapping done by plainclothesmen is still in large part aimed at bookmarkers' operations and prostitution. As a matter of fact, more wiretapping by police is done in gambling cases than in any other kind of case. In gambling and in vice matters generally, there is steady pressure on the plainclothesmen to maintain a certain arrest record. Continuous wiretap surveillance, without court order, enables plainclothesmen to maintain this record.' Dash, at 66. The same principles apply to electronic surveillance generally.
20. Senator Hennings has termed electronic eavesdropping more insidious and more prevalent than wiretapping. The Wiretapping-Eavesdropping Problem: A Legislator's View, 44 Minn.L.Rev. 813, 815 (1960). Another observer has called the problem 'far graver' than wiretapping. Williams, The Wiretapping-Eavesdropping Problem: A Defense Counsel's View, 44 Minn.L.Rev. 855, 862 (1960).
21. Viewing the instant case as I do, I find no occasion to consider the petitioner's defense of entrapment.