United States v. White, No. 13

• Court: United States Supreme Court
• Writing for the Court: Mr. Justice WHITE, joined by THE CHIEF JUSTICE; BLACK; BRENNAN; Mr. Justice WHITE announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE; BLACK; BRENNAN; DOUGLAS; Brennan; APPENDIX I TO OPINION OF DOUGLAS; You are, therefore; A
• Citation: 401 U.S. 745,91 S.Ct. 1122,28 L.Ed.2d 453
• Parties: UNITED STATES, Petitioner, v. James A. WHITE
• Docket Number: No. 13
• Decision Date: 10 November 1969

401 U.S. 745 91 S.Ct. 1122 28 L.Ed.2d 453 UNITED STATES, Petitioner,

v.

James A. WHITE.

No. 13. Argued Nov. 10, 1969. Reargued Oct. 20, 1970. Decided April 5, 1971. Rehearing Denied May 17, 1971.

See 402 U.S. 990, 91 S.Ct. 1643.

Syllabus

Respondent was convicted in 1966 of narcotics violations following a trial where evidence was admitted of certain incriminating statements of respondent that were overheard by warrantless electronic eavesdropping by Government agents by means of a transmitter which an informer consented to wear during his meetings with respondent. The informer could not be located at trial, and the trial court overruled objections to the testimony of the agents who conducted the electronic surveillance. Reading Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), as overruling On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952), the Court of Appeals held that the agents' testimony was impermissible under the Fourth Amendment, and reversed respondent's conviction. Held: The judgment is reversed. Pp 748—756.

405 F.2d 838, reversed.

Mr. Justice WHITE, joined by THE CHIEF JUSTICE, Mr. Justice STEWART, and Mr. Justice BLACKMUN, concluded that:

1. The Government's use of agents who themselves may reveal the contents of conversations with an accused does not violate the Fourth Amendment, and this Court's decision in Katz v. United States, supra, does not disturb the rationale of On Lee, supra, in this respect and require a different result because the agent uses electronic equipment to transmit the conversations to other agents. Pp. 748—754.

2. The unavailability of the informant as a witness does not create any Fourth Amendment issue. Pp. 753—754.

3. Since the decision in Katz v. United States, supra, was not retroactive, Desist v. United States, 394 U.S. 244, the Court of Appeals erred in not adjudicating this case by the pre-Katz law established by On Lee to the effect that the electronic surveillance did not involve a Fourth Amendment violation. P. 754.

Mr. Justice BLACK concurred in the judgment for the reasons set forth in his dissent in Katz v. United States, 389 U.S. 347, 364. P. 754.

Page 746

Mr. Justice BRENNAN, to the extent that he joined in the Court's judgment, concluded that Desist v. United States, supra, requires reversal of the Court of Appeals' judgment. P. 755.

Will R. Wilson for petitioner.

John L. Boeger, St. Louis, Mo., for respondent.

Mr. Justice WHITE announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, Mr. Justice STEWART, and Mr. Justice BLACKMUN join.

In 1966, respondent James A. White was tried and convicted under two consolidated indictments charging various illegal transactions in narcotics violative of 26 U.S.C. § 4705(a) and 21 U.S.C. § 174. He was fined and sentenced as a second offender to 25-year concurrent sentences. The issue before us is whether the Fourth Amendment bars from evidence the testimony of governmental agents who related certain conversations which had occurred between defendant White and a government informant, Harvey Jackson, and which the agents

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overheard by monitoring the frequency of a radio transmitter carried by Jackson and concealed on his person.¹ On four occasions the conversations took place in Jackson's home; each of these conversations was overheard by an agent concealed in a kitchen closet with Jackson's consent and by a second agent outside the house using a radio receiver. Four other conversations—one in respondent's home, one in a restaurant, and two in Jackson's car were overheard by the use of radio equipment. The prosecution was unable to locate and produce Jackson at the trial and the trial court overruled objections to the testimony of the agents who conducted the electronic surveillance. The jury returned a guilty verdict and defendant appealed.

The Court of Appeals read Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), as overruling On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952), and interpreting the Fourth Amendment to forbid the introduction of the agents' testimony in the circumstances of this case. Accordingly, the court reversed but without adverting to the fact that the transactions at issue here had occurred before Katz was decided in this Court. In our view, the Court of Appeals misinterpreted both the Katz case and the Fourth Amendment and in any event erred in applying the Katz case to events that occurred before that decision was rendered by this Court.²

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I

Until Katz v. United States, neither wiretapping nor electronic eavesdropping violated a defendant's Fourth Amendment rights 'unless there has been an official search and seizure of his person, or such a seizure of his papers or his tangible material effects, or an actual physical invasion of his house 'or curtilage' for the purpose of making a seizure.' Olmstead v. United States, 277 U.S. 438, 466, 48 S.Ct. 564, 568, 72 L.Ed. 944 (1928); Goldman v. United States, 316 U.S. 129, 135—136, 62 S.Ct. 993, 996—997, 86 L.Ed. 1322 (1942). But where 'eavesdropping was accomplished by means of an unauthorized physical penetration into the premises occupied' by the defendant, although falling short of a 'technical trespass under the local property law,' the Fourth Amendment was violated and any evidence of what was seen and heard, as well as tangible objects seized, was considered the inadmissible fruit of an unlawful invasion. Silverman v. United States, 365 U.S. 505, 509, 511, 81 S.Ct. 679, 681, 682, 5 L.Ed.2d 734 (1961); see also Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Berger v. New York, 388 U.S. 41, 52, 87 S.Ct. 1873, 1880, 18 L.Ed.2d 1040 (1967); Alderman v. United States, 394 U.S. 165, 177—178, 89 S.Ct. 961, 968—969, 22 L.Ed.2d 176 (1969).

Katz v. United States, however, finally swept away doctrines that electronic eavesdropping is permissible under the Fourth Amendment unless physical invasion of a constitutionally protected area produced the challenged evidence. In that case government agents, without petitioner's consent or knowledge, attached a listening device to the outside of a public telephone booth and recorded the defendant's end of his telephone conversations. In declaring the recordings inadmissible in evidence in the absence of a warrant authorizing the surveillance, the Court overruled Olmstead and Goldman and held that the absence of physical intrusion into the telephone booth did not justify using electronic devices in listening to and recording Katz' words, thereby vio-

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lating the privacy on which he justifiably relied while using the telephone in those circumstances.

The Court of Appeals understood Katz to render inadmissible against White the agents' testimony concerning conversations that Jackson broadcast to them. We cannot agree. Katz involved no revelation to the Government by a party to conversations with the defendant nor did the Court indicate in any way that a defendant has a justifiable and constitutionally protected expectation that a person with whom he is conversing will not then or later reveal the conversation to the police.

Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), which was left undisturbed by Katz, held that however strongly a defendant may trust an apparent colleague, his expectations in this respect are not protected by the Fourth Amendment when it turns out that the colleague is a government agent regularly communicating with the authorities. In these circumstances, 'no interest legitimately protected by the Fourth Amendment is involved,' for that amendment affords no protection to 'a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.' Hoffa v. United States, at 302, 87 S.Ct., at 413. No warrant to 'search and seize' is required in such circumstances, nor is it when the Government sends to defendant's home a secret agent who conceals his identity and makes a purchase of narcotics from the accused, Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966), or when the same agent, unbeknown to the defendant, carries electronic equipment to record the defendant's words and the evidence so gathered is later offered in evidence. Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963).

Conceding that Hoffa, Lewis, and Lopez remained unaffected by Katz,³ the Court of Appeals nevertheless

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read both Katz and the Fourth Amendment to require a different result if the agent not only records his conversations with the defendant but instantaneously transmits them electronically to other agents equipped with radio receivers. Where this occurs, the Court of Appeals held, the Fourth Amendment is violated and the testimony of the listening agents must be excluded from evidence.

To reach this result it was necessary for the Court of Appeals to hold that On Lee v. United States was no longer good law. In that case, which involved facts very similar to the case before us, the Court first rejected claims of a Fourth Amendment violation because the informer had not trespassed when he entered the defendant's premises and conversed with him. To this extent the Court's rationale cannot survive Katz. See 389 U.S., at 352 353, 88 S.Ct., at 511—512. But the Court announced a second and independent ground for its decision; for it went on to say that overruling Olmstead and Goldman would be of no aid to On Lee since he 'was talking confidentially and indiscreetly with one he trusted, and he was overheard. * * * It would be a dubious service to the genuine liberties protected by the Fourth Amendment to make them bedfellows with spurious liberties improvised by farfetched analogies which would liken eavesdropping on a conversation, with the connivance of one of the parties, to...