Osborn v. United States (385 U.S. 323)/Dissent Douglas

by William O. Douglas

United States Supreme Court

385 U.S. 323

Osborn  v.  United States (385 U.S. 323)

Mr. Justice DOUGLAS, dissenting in Osborn v. United States and Lewis v. United States; and concurring with Mr. Justice CLARK in Hoffa v. United States.

These cases present important questions of federal law concerning the privacy of our citizens and the breach of that privacy by government agents. Lewis v. United States involves the breach of the privacy of the home by a government agent posing in a different role for the purpose of obtaining evidence from the homeowner to convict him of a crime. Hoffa v. United States raises the question whether the Government in that case induced a friend of Hoffa's to insinuate himself into Hoffa's entourage, there to serve as the Government's eyes and ears for the purpose of obtaining incriminating evidence. Osborn v. United States presents the question whether the Government may compound the invasion of privacy by using hidden recording devices to record incriminating statements made by the unwary suspect to a secret federal agent.

Thus these federal cases present various aspects of the constitutional right of privacy. Privacy, though not expressly mentioned in the Constitution, is essential to the exercise of other rights guaranteed by it. As we recently said in Griswold v. State of Connecticut, 381 U.S. 479, 484, 85 S.Ct. 1678, 14 L.Ed.2d 510:

'(S)pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. * * * Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one * * *. The Third Amendment in its prohibition against the quartering of soldiers 'in any house' in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

We are rapidly entering the age of no privacy, where everyone is open to surveillance at all times; where there are no secrets from government. The aggressive breaches of privacy by the Government increase by geometric proportions. Wiretapping and 'bugging' run rampant, without effective judicial or legislative control.

Secret observation booths in government offices and closed television circuits in industry, extending even to rest rooms, are common. ^[1] Offices, conference rooms, hotel rooms, and even bedrooms (see Irvine v. People of State of California, 347 U.S. 128, 74 S.Ct. 381, 98 L.Ed. 561) are 'bugged' for the convenience of government. Peepholes in men's rooms are there to catch homosexuals. See Smayda v. United States, 9 Cir., 352 F.2d 251. Personality tests seek to ferret out a man's innermost thoughts on family life, religion, racial attitudes, national origin, politics, atheism, ideology, sex, and the like. ^[2] Federal agents are often 'wired' so that their conversations are either recorded on their persons (Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462) or transmitted to tape recorders some blocks away. ^[3] The Food and Drug Administration recently put a spy in a church organization. ^[4] Revenue agents have gone in the disguise of Coast Guard officers. ^[5] They have broken and entered homes to obtain evidence. ^[6]

Polygraph tests of government employees and of employees in industry are rampant. ^[7] The dossiers on all citizens mount in number and increase in size. Now they are being put on computers so that by pressing one button all the miserable, the sick, the suspect, the unpopular, the offbeat people of the Nation can be instantly identified. ^[8]

These examples and many others demonstrate an alarming trend whereby the privacy and dignity of our citizens is being whittled away by sometimes imperceptible steps. Taken individually, each step may be of little consequence. But when viewed as a whole, there begins to emerge a society quite unlike any we have seen-a society in which government may intrude into the secret regions of man's life at will.

We have here in the District of Columbia squads of officers who work the men's rooms in public buildings trying to get homosexuals to solicit them. See Beard v. Stahr, 200 F.Supp. 766, 768, judgment vacated, 370 U.S. 41, 82 S.Ct. 1105, 8 L.Ed.2d 321. Undercover agents or 'special employees' of narcotics divisions of city, state, and federal police actively solicit sales of narcotics. See generally 31 U.Chi.L.Rev. 137, 74 Yale L.J. 942. Police are instructed to pander to the weaknesses and craven motives of friends and acquaintances of suspects, in order to induce them to inform. See generally Harney & Cross, The Informer in Law Enforcement 33-44 (1960). In many cases the crime has not yet been committed. The undercover agent may enter a suspect's home and make a search upon mere suspicion that a crime will be committed. He is indeed often the instigator of, and active participant in, the crime-an agent provocateur. Of course, when the solicitation by the concealed government agent goes so far as to amount to entrapment, the prosecution fails. Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413; Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848. But the 'dirty business' (Olmstead v. United States, 277 U.S. 438, 470, 48 S.Ct. 564, 575, 72 L.Ed. 944 (Mr. Justice Holmes dissenting)) does not begin or end with entrapment. Entrapment is merely a facet of a much broader problem. Together with illegal searches and seizures, coerced confessions, wiretapping, and bugging, it represents lawless invasion of privacy. It is indicative of a philosophy that the ends justify the means. ^[9]

We are here concerned with the manner in which government agents enter private homes. In Lewis the undercover agent appeared as a prospective customer. Tomorrow he may be a policeman disguised as the grocery deliveryman or telephone repairman, or even a health inspector. ^[10] Cf. Frank v. State of Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877; Ohio ex rel. Eaton v. Price, 364 U.S. 263, 80 S.Ct. 1463, 4 L.Ed.2d 1708.

We said in Gouled v. United States, 255 U.S. 298, 306, 41 S.Ct. 261, 264, 65 L.Ed. 647:

'(W)hether entrance to the home or office of a person suspected of crime be obtained by a representative of any branch or subdivision of the Government of the United States by stealth, or through social acquaintance, or in the guise of a business call, and whether the owner be present or not when he enters, any search and seizure subsequently and secretly made in his absence, falls within the scope of the prohibition of the Fourth Amendment * * *'

Entering another's home in disguise to obtain evidence is a 'search' that should bring into play all the protective features of the Fourth Amendment. When the agent in Lewis had reason for believing that petitioner possessed narcotics, a search warrant should have been obtained. ^[11]

Almost every home is at times used for purposes other than eating, sleeping, and social activities. Are the sanctity of the home and its privacy stripped away whenever it is used for business? If so, what about the 'mom and pop' grocery store with living quarters in the rear? What about garment workers who do piecework at home? What about saddle makers and shoemakers who have their shops in their homes? Are those proprietors stripped of privacy because customers come into the living quarters on business matters? What about the insurance agent who works out of his home? Is the privacy of his home shattered because he sells insurance there? And the candidate who holds political conferences in his home? Or the house-holder who consults with his attorney or accountant in his home? Are their homes transformed into public places which the Government may enter at will merely because they are occasionally used for business? I think not. A home is still a sanctuary, however the owner may use it. There is no reason why an owner's Fourth Amendment rights cannot include the right to open up his house to limited classes of people. And, when a homeowner invites a friend or business acquaintance into his home, he opens his house to a friend or acquaintance, not a government spy.

This does not mean he can make his sanctuary invasion-proof against government agents. The Constitution has provided a way whereby the home can lawfully be invaded, and that is with a search warrant. Where, as here, there is enough evidence to get a warrant to make a search I would not allow the Fourth Amendment to be short-circuited.

We downgrade the Fourth Amendment when we forgive noncompliance with its mandate and allow these easier methods of the police to thrive.

A householder who admits a government agent, knowing that he is such, waives of course any right of privacy. One who invites or admits an old 'friend' takes, I think, the risk that the 'friend' will tattle and disclose confidences or that the Government will wheedle them out of him. The case for me, however, is different when government plays an ignoble role of 'planting' an agent in one's living room or uses fraud and deception in getting him there. These practices are at war with the constitutional standards of privacy which are parts of our choicest tradition.

The formula approved today by the Court in Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374, makes it possible for the Government to use willy-nilly, son against father, nephew against uncle, friend against friend to undermine the sanctity of the most private and confidential of all conversations. The Court takes the position that whether or not the Government 'placed' Partin in Hoffa's councils is immaterial. The question of whether the Government planted Partin or whether Hoffa was merely the victim of misplaced confidence is dismissed as a 'verbal controversy * * * unnecessary to a decision of the constitutional issues.' Hoffa v. United States, 385 U.S. at 295, 87 S.Ct. at 410. But, very real differences underlie the 'verbal controversy.' As I have said, a person may take the risk that a friend will turn on him and report to the police. But that is far different from the Government's 'planting' a friend in a person's entourage so that he can secure incriminating evidence. In the one case, the Government has merely been the willing recipient of information supplied by a fickle friend. In the other, the Government has actively encouraged and participated in a breach of privacy by sending in an undercover agent. If Gouled is to be followed, then the Government unlawfully enters a man's home when its agent crawls through a window, breaks down a door, enters surreptitiously, or, as alleged here, gets in by trickery and fraud. I therefore do not join in the Hoffa opinion.

I agree with Mr. Justice Clark that the petition in that case should be dismissed as improvidently granted. The two lower courts found that Partin was not planted by the Federal Government in Hoffa's entourage. And I cannot say that those findings are clearly erroneous.

The trial court found: 'I would further find that the government did not place this witness Mr. Partin in the defendants' midst or have anything to do with placing him in their midst, rather that he was knowingly and voluntarily placed in their midst by one of the defendants.' The Court of Appeals held that this finding was supported by substantial evidence and not clearly erroneous. 6 Cir., 349 F.2d 20, 36. 'A court of law, such as this Court is, rather than a court for correction of errors in fact finding, cannot undertake to review concurrent findings of fact by two courts below in the absence of a very obvious and exceptional showing of error.' Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 U.S. 271, 275, 69 S.Ct. 535, 538, 93 L.Ed. 672. At times there are questions of law that may undercut two concurrent findings of fact. ^[12] See Graver Tank & Mfg. Co. v. Linde Air Products Co., supra, at 280, 69 S.Ct., at 540 (concurrence); Gonzales v. United States, 364 U.S. 59, 66, 80 S.Ct. 1554, 1558, 4 L.Ed.2d 1569 (dissent); Blau v. Lehman, 368 U.S. 403, 408-409, 82 S.Ct. 451, 454-455, 7 L.Ed.2d 403. But I see no such difficulty here.

It is true that in cases from state courts involving federal constitutional rights we are careful to review findings of fact lest a state rule undercut the federal claim. Norris v. State of Alabama, 294 U.S. 587, 590, 55 S.Ct. 579, 580, 79 L.Ed. 1074; Hooven & Allison Co. v. Evatt, 324 U.S. 652, 659, 65 S.Ct. 870, 874, 89 L.Ed. 1252; Watts v. State of Indiana, 338 U.S. 49, 51, 69 S.Ct. 1347, 1348, 93 L.Ed. 1801; Napue v. People of State of Illinois, 360 U.S. 264, 271, 79 S.Ct. 1173, 1178, 3 L.Ed.2d 1217; Haynes v. State of Washington, 373 U.S. 503, 515 516, 83 S.Ct. 1336, 1344-1345, 10 L.Ed.2d 513; Jacobellis v. State of Ohio, 378 U.S. 184, 187-188, 84 S.Ct. 1676, 1677-1678, 12 L.Ed.2d 793. In those cases a question of fact and a question of law are usually intertwined, e.g., is a confession 'voluntary,' is a book 'obscene' and the like. Here the question for the factfinders was thether Partin was 'planted' on petitioner or whether petitioner was the victim of misplaced confidence. This is not a case where 'a conclusion' is 'drawn from uncontroverted happenings, when that conclusion incorporates standards of conduct or criteria for judgment which in themselves are decisive of constitutional rights.' Watts v. State of Indiana, supra, 338 U.S. at 51, 69 S.Ct., at 1348. I would apply the same legal criteria as THE CHIEF JUSTICE, once the facts are found. If we were the original factfinders the question would not be an open-and-shut one for me. But the concurrent findings by the lower courts have support in the evidence and I would let them stand.

Once electronic surveillance, approved in Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462, is added to the techniques of snooping which this sophisticated age has developed, we face the stark reality that the walls of privacy have broken down and all the tools of the police state are handed over to our bureaucracy on a constitutional platter. The Court today pays lip service to this danger in Osborn v. United States, but goes on to approve what was done in the case for another reason. In Osborn, use of the electronic device to record the fateful conversation was approved by the two judges of the District Court in advance of its use. ^[13] But what the Court overlooks is that the Fourth Amendment does not authorize warrants to issue for any search even on a showing of probable cause. The first clause of the Fourth Amendment reads:

'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated * * *.'

As held in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746; a validly executed warrant does not necessarily make legal the ensuing search and seizure.

'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 offence,-it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden's judgment. (Entick v. Carrington, 19 HowSt.Tr. 1029.) 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.' Id., at 630, 6 S.Ct. at 532.

It was accordingly held in Gouled v. United States, supra, 255 U.S., a 309, 41 S.Ct., at 265, that a search warrant 'may not be used as a means of gaining access to a man's house or office and papers solely for the purpose of making search to secure evidence to be used against him in a criminal or penal proceeding' but only to obtain contraband articles or the tools with which a crime had been committed. That decision was by a unanimous Court in 1921, the opinion being written by Mr. Justice Clarke. That view has been followed (United States v. Lefkowitz, 285 U.S. 452, 465, 52 S.Ct. 420, 423, 76 L.Ed. 877; Harris v. United States, 331 U.S. 145, 154, 67 S.Ct. 1098, 1103, 91 L.Ed. 1399; United States v. Rabinowitz, 339 U.S. 56, 64, 70 S.Ct. 430, 434, 94 L.Ed. 653) with the result that today a 'search' that respects all the procedural proprieties of the Fourth Amendment is nonetheless unconstitutional if it is a 'search' for testimonial evidence.

As already indicated, Boyd v. United States, supra, made clear that if the barriers erected by the Fourth Amendment were not strictly honored, serious invasions of the Fifth Amendment might result. Encouraging a person to talk into a concealed 'bug' may not be complusion within the meaning of the Fifth Amendment. But allowing the transcript to be used as evidence against the accused is using the force and power of the law to make a man talk against his will, just as is the use of a warrant to obtain a letter from the accused's home and allowing it as evidence. '(I)llegitimate and unconstitutional practices get their first footing * * * by silent approaches and slight deviations from legal modes of procedure.' 116 U.S., at 635, 6 S.Ct. at 535. The fact that the officer could have testified to his talk with Osborn is no answer. Then an issue of credibility between two witnesses would be raised. But the tape recording carrying the two voices is testimony introduced by compulsion and, subject to the defense that the tape was 'rigged,' ^[14] is well nigh conclusive proof.

I would adhere to Gouled and bar the use of all testimonial evidence obtained by wiretapping or by an electronic device. The dangers posed by wiretapping and electronic surveillance strike at the very heart of the democratic philosophy. A free society is based on the premise that there are large zones of privacy into which the Government may not intrude except in unusual circumstances. As we noted in Griswold v. State of Connecticut, supra, various provisions of the Bill of Rights contain this aura of privacy, including the First, Third, Fourth Fifth, and the Ninth Amendments. ^[15] As respects the Fourth, this premise is expressed in the provision that the Government can intrude upon a citizen's privacy only pursuant to a search warrant, based upon probable cause, and specifically describing the objects sought. And, the 'objects' of the search must be either instrumentalities or proceeds of the crime. But wiretapping and electronic 'bugging' invariably involve a search for mere evidence. The objects to be 'seized' cannot be particularly described; all the suspect's conversations are intercepted. The search is not confined to a particular time, but may go on for weeks or months. The citizen is completely unaware of the invasion of his privacy. The invasion of privacy is not limited to him, but extends to his friends and acquaintances-to anyone who happens to talk on the telephone with the suspect or who happens to come within the range of the electronic device. Their words are also intercepted; their privacy is also shattered. Such devices lay down a dragnet which indiscriminately sweeps in all conversations within its scope, without regard to the nature of the conversations, or the participants. A warrant authorizing such devices is no different from the general warrants the Fourth Amendment was intended to prohibit.

Such practices can only have a damaging effect on our society. Once sanctioned, there is every indication that their use will indiscriminately spread. The time may come when no one can be sure whether his words are being recorded for use at some future time; when everyone will fear that his most secret thoughts are no longer his own, but belong to the Government; when the most confidential and intimate conversations are always open to eager, prying ears. When that time comes, privacy, and with it liberty, will be gone. If a man's privacy can be invaded at will, who can say he is free? If his every word is taken down and evaluated, or if he is afraid every word may be, who can say he enjoys freedom of speech? If his every association is known and recorded, if the conversations with his associates are purloined, who can say he enjoys freedom of association? When such conditions obtain, our citizens will be afraid to utter any but the safest and most orthodox thoughts; afraid to associate with any but the most acceptable people. Freedom as the Constitution envisages it will have vanished.

I would reverse Lewis and Osborn and dismiss Hoffa.

Notes

1. See generally, Hearings before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, Invasions of Privacy, 89th Cong., 1st Sess. (1965).
2. See generally Hearings before a Subcommittee of the House Committee on Government Operations, Special Inquiry on Invasion of Privacy, 89th Cong., 1st Sess. (1965); Hearings before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, Psychological Tests and Constitutional Rights, 89th Cong., 1st Sess. (1965).
3. See, e.g., Hearings before the Subcommittee on Administrative Practice and Procedure, supra, n. 1, pt. 2, at 389.
4. Id., at 783.
5. Id., pt. 3, at 1356.
6. Id., at 1379, 1415.
7. See generally Hearings before a Subcommittee of the House Committee on Government Operations, Use of Polygraphs As 'Lie Detectors' By the Federal Government, 88th Cong., 2d Sess. (1964).
8. See generally Hearings before a Subcommittee of the House Committee on Government Operations, The Computer and Invasion of Privacy, 89th Cong., 2d Sess., July 26, 27, and 28, 1966.
9. We know from the Hearings before Senate and House Committees that the Government is using such tactics on a gargantuan scale and has become callous of the rights of the citizens.
10. We are told that raids by welfare inspectors to see if recipients of welfare have violated eligibility requirements flout the Fourth Amendment. See Reich, Midnight Welfare Searches and the Social Security Act, 72 Yale L.J. 1347 (1963).
11. In Lewis, a federal narcotics agent, posing as an operator of a bar and grill, went to petitioner's home for the purpose of obtaining narcotics from him. He had no search warrant, though there were grounds for obtaining one. Agent Cass testified that he had been assigned to investigate narcotics activities in the Boston area in June 1963. He became acquainted with one Gold, a friend of petitioner,* from whom he learned that one might obtain marihuana from the petitioner. It was then that Agent Cass, representing himself as 'Jimmy the Pollack,' telephoned the petitioner stating 'a friend of ours told me you have some pretty good grass (marihuana).' Petitioner replied, 'Yes, he told me about you, Pollack * * * I believe, Jimmy, I can take care of you.' When Cass told him that he needed five bags, petitioner gave him his address and directions, and told him to come right over. On the basis of our prior decisions this information would certainly have made a sufficient showing of probable cause to justify the issuance of a warrant. Yet none was sought or obtained.
12. Compare the cases from state courts dealing with the question whether a confession has been coerced contrary to the requirements of the Fourteenth Amendment, where the Court weighs only the undisputed facts. Ashcraft v. State of Tennessee, 322 U.S. 143, 153, 154, 64 S.Ct. 921, 925-926, 88 L.Ed. 1192; Malinski v. People of State of New York, 324 U.S. 401, 404, 65 S.Ct. 781, 783, 89 L.Ed. 1029; Thomas v. State of Arizona, 356 U.S. 390, 402 403, 78 S.Ct. 885, 891-892, 2 L.Ed.2d 863; Rogers v. Richmond, 365 U.S. 534, 546, 81 S.Ct. 735, 742, 5 L.Ed.2d 760.
13. The recent regulation of the Federal Communications Commission that bans the use of monitoring devices 'unless such use is authorized by all of the parties engaging in the conversation' (31 Fed.Reg. 3400) is of course applicable only when air waves are used; and it does not apply to 'operations of any law enforcement officers conducted under lawful authority.' Ibid. If Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734, is read in the context of our prior decisions, then the majority view is that the use of an electronic device to record a conversation in the home is not a 'search' within the meaning of the Fourth Amendment, unless the device itself penetrates the wall of the home. Section 605 of the Federal Communications Act, 48 Stat. 1103, 47 U.S.C. § 605, that governs the interception of communications made 'by wire or radio' reaches only the problem of the persons to whom the message may be disclosed by federal agents as well as others (Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314; 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307), not the practice itself.
14. Rigging is easy for the expert. See Dash, The Eavesdroppers 367-371 (1959): '* * * the tape to be edited is played on a machine which can be instantaneously stopped at will. When a word or passage occurs which is to be deleted, the machine is stopped, the piece of tape containing the unwanted section is cut out, and the two loose ends are spliced. The words cut out can be inserted in whole or in part somewhere else. Sentences can be rearranged. New words can be dubbed in by an impersonator or made up of sounds taken from other words.' Id., 369.
15. 'The ninth amendment should be permitted to occupy its rightful place in the Constitution as a reminder at the end of the Bill of Rights that there exist rights other than those set out in the first eight amendments. It was intended to preserve the underlying theory of the Constitutional Convention that individual rights exist independently of government, and to negate the Federalist argument that the enumeration of certain rights would imply the forfeiture of all others. The ninth is simply a rule of construction, applicable to the entire constitution.' Comment, The Uncertain Renaissance of the Ninth Amendment, 33 U.Chi.L.Rev. 814, 835 (1966).