343 U.S. 747 (1952), 543, On Lee v. United States

Docket Nº:No. 543
Citation:343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270
Party Name:On Lee v. United States
Case Date:June 02, 1952
Court:United States Supreme Court

Page 747

343 U.S. 747 (1952)

72 S.Ct. 967, 96 L.Ed. 1270

On Lee


United States

No. 543

United States Supreme Court

June 2, 1952

Argued April 24, 1952




While petitioner was at large on bail pending his trial in a federal court on federal narcotics charges, an old acquaintance and former employee, who, unknown to petitioner, was a federal "undercover agent" and had a radio transmitter concealed on his person, entered the customer's room of petitioner's laundry and engaged petitioner in a conversation. Self-incriminating statements, made by petitioner during this conversation and a later conversation on a sidewalk with the same "undercover agent," were listened to on a radio receiver outside the laundry by another federal agent, who testified concerning them, over petitioner's objection, at the trial in which petitioner was convicted.


1. The conduct of the federal agents did not amount to such a search and seizure as is proscribed by the Fourth Amendment. Pp. 750-753.

(a) The undercover agent committed no trespass when he entered petitioner's place of business, and his subsequent conduct did not render the entry a trespass ab initio. Pp. 751-753.

(b) The doctrine of trespass ab initio is applicable only as a rule of liability in civil actions, not where the right of the Government to make use of evidence in a criminal prosecution is involved. P. 752.

(c) The contentions that the undercover man's entrance was a trespass because consent was obtained by fraud, and that the other agent was a trespasser because, by means of the radio receiver outside the laundry, he overheard what went on inside, must be rejected. Pp. 752-753.

(d) Decisions relating to problems raised where tangible property is unlawfully seized are inapposite in the field of mechanical or electronic devices designed to overhear or intercept conversation, at least where access to the listening post was not obtained by illegal methods. P. 753.

(e) Even if the Court were to overturn its ruling that wiretapping is outside the ban of the Fourth Amendment, Olmstead v.

Page 748

United States, 277 U.S. 438, petitioner would not be aided, since his case cannot be treated as one involving wiretapping. Pp. 753-754.

2. The facts do not show a violation of § 605 of the Federal Communications Act, since there was no interference with any communications facility that petitioner possessed or was entitled to use, nor was petitioner sending messages to anyone or using a system of communications within the Act. P. 754.

3. The evidence should not have been excluded as a means of disciplining law enforcement officers. McNabb v. United States, 318 U.S. 332, distinguished. Pp. 754-758.

193 F.2d 306, affirmed.

Petitioner was convicted in the District Court of federal offenses. The Court of Appeals affirmed. 193 F.2d 306. This Court granted certiorari. 342 U.S. 941. Affirmed, p. 758.

JACKSON, J., lead opinion

MR. JUSTICE JACKSON delivered the opinion of the Court.

Petitioner was convicted on a two-count indictment, one charging the substantive offense of selling a pound of opium in violation of 21 U.S.C. §§ 173 and 174, the other conspiring to sell the opium in violation of 18 U.S.C. § 371. The Court of Appeals sustained the conviction by a divided court.1 We granted certiorari.2

The questions raised by petitioner have been considered, but only one is of enough general interest to merit discussion. That concerns admission in evidence of two conversations petitioner had, while at large on bail pending

Page 749

trial, with one Chin Poy. The circumstances are these:

Petitioner, On Lee, had a laundry in Hoboken. A customer's room opened on the street, back of it was a room for ironing tables, and in the rear were his living quarters. Chin Poy, an old acquaintance and former employee, sauntered in and, while customers came and went, engaged the accused in conversation in the course of which petitioner made incriminating statements. He did not know that Chin Poy was what the Government calls "an undercover agent" and what petitioner calls a "stool pigeon" for the Bureau of Narcotics. Neither did he know that Chin Poy was wired for sound, with a small microphone in his inside overcoat pocket and a small antenna running along his arm. Unbeknownst to petitioner, an agent of the Narcotics Bureau named Lawrence Lee had stationed himself outside with a receiving set properly tuned to pick up any sounds the Chin Poy microphone transmitted. Through the large front window, Chin Poy could be seen, and, through the receiving set, his conversation, [72 S.Ct. 970] in Chinese, with petitioner could be heard by agent Lee. A few days later, on the sidewalks of New York, another conversation took place between the two, and damaging admissions were again "audited" by agent Lee.

For reasons left to our imagination, Chin Poy was not called to testify about petitioner's incriminating admissions. Against objection,3 however, agent Lee was allowed

Page 750

to relate the conversations as heard with aid of his receiving set. Of this testimony, it is enough to say that it was certainly prejudicial if its admission was improper.

Petitioner contends that this evidence should have been excluded because the manner in which it was obtained

Page 751

violates both the search and seizure provisions of the Fourth Amendment,4 and § 605 of the Federal Communications Act, 47 U.S.C. § 605,5 and, if not rejected on those grounds, we should pronounce it inadmissible anyway under the judicial power to require fair play in federal law enforcement.

[72 S.Ct. 971] 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, we held that the action of federal agents in placing a detectaphone on the outer wall of defendant's hotel room, and thereby overhearing conversations held within the room, did not violate the Fourth Amendment. There, 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

Page 752

invitation, of the petitioner. Petitioner contends, however, that Chin Poy's subsequent "unlawful conduct" vitiated the consent and rendered his entry a trespass ab initio.

If we were to assume that Chin Poy's conduct was unlawful and consider this argument as an original proposition, it is doubtful that the niceties of tort law initiated almost two and a half centuries ago by the case of the Six Carpenters, 8 Coke 146(a), cited by petitioner, are of much aid in determining rights under the Fourth Amendment. But petitioner's argument comes a quarter of a century too late: this contention was decided adversely to him in McGuire v. United States, 273 U.S. 95, 98, 100, where Mr. Justice Stone, speaking for a unanimous Court, said of the doctrine of trespass ab initio:

This fiction, obviously invoked in support of a policy of penalizing the unauthorized acts of those who had entered under authority of law, has only been applied as a rule of liability in civil actions against them. Its extension is not favored.

He concluded that the Court would not resort to "a fiction whose origin, history, and purpose do not justify its application where the right of the government to make use of evidence is involved." This was followed in Zap v. United States, 328 U.S. 624, 629.

By the same token, the claim that Chin Poy's entrance was a trespass because consent to his entry was obtained by fraud must be rejected. Whether an entry such as this, without any affirmative misrepresentation, would be a trespass under orthodox tort law is not at all clear. See Prosser on Torts, § 18. But the rational of the McGuire case rejects such fine-spun doctrines for exclusion of evidence. The further contention of petitioner that agent Lee, outside the laundry, was a trespasser because by these aids he overheard what went on inside verges on the frivolous. Only in the case of physical entry, either

Page 753

by force, as in McDonald v. United States, 335 U.S. 451, by unwilling submission to authority, as in Johnson v. United States, 333 U.S. 10, or without any express or implied consent, as in Nueslein v. District of Columbia, 73 App.D.C. 85, 115 F.2d 690, would the problem left undecided in the Goldman case be before the Court.

Petitioner relies on cases relating to the more common and clearly distinguishable problems raised where tangible property is unlawfully seized. Such unlawful seizure may violate the Fourth Amendment, even though the entry itself was by subterfuge or fraud, rather than force. United States v. Jeffers, 342 U.S. 48; Gouled v. United States, 255 U.S. 298 (the authority of the latter case is sharply limited by Olmstead v. United States, 277 U.S. 438, at 463). But such decisions are inapposite in the field of mechanical or electronic devices designed to [72 S.Ct. 972] overhear or intercept conversation, at least where access to the listening post was not obtained by illegal methods.

Petitioner urges that, if his claim of unlawful search and seizure cannot be sustained on authority...

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