Electronic Surveillance and the Supreme Court: A Move Back;White case Revie

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DePaul Law Review

Volume 21
Issue 3 Spring 1972: Symposium on Federal- Article 9 State Relations

Constitutional Law - Electronic Surveillance and the Supreme Court: A Move Back

Joseph Bisceglia

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, 21 DePaul L. Rev. 806 (1972)
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CONSTITUTIONAL LAW-ELECTRONIC SURVEILLANCE AND THE SUPREME COURT: A MOVE BACK?

James A. White was convicted of certain narcotics violations under the United States Code' in the United States District Court for the Northern District of Illinois, Eastern Division.2 The government's case was supported in large part by evidence obtained with the use of a "bugged" informant. By placing a small transistorized kel set transmitter under the clothing of one Harvey Jackson, a police informant, government agents were able to monitor with a radio receiver some of White's incriminating conversations with Jackson.

On eight separate occasions during the months of December 1965 and early January 1966 in Chicago, informant Jackson, under the direction of government agents who had obtained no court order or war- rant, transacted business with White for the purchase of heroin while a transmitter was concealed on his person.3 On four occasions the transactions took place at Jackson's home while, in a car parked outside, government agent Robert DeFauw listened in on a radio receiver. On these occasions, a second agent was concealed with Jackson's consent in a kitchen closet and also overheard the conversations. On four other occasions incriminating conversations were transmitted over agent DeFauw's car radio receiver-once from a restaurant, once from White's home, and twice from Jackson's car.

Informant Jackson never appeared in court and never testified himself as to the content of his conversations with White. The defense objected to the introduction of the oral testimony of the government agents who had heard the conversations by means of eavesdropping. The defense claimed that the transmission was an unreasonable search and seizure of White's private conversation within the meaning of the Fourth Amendment and, as such, should be suppressed. The trial court overruled the objections and White was convicted and sentenced to 25 years as a second offender. On review by a three-judge panel of the United States Court of Appeals for the Seventh Circuit, the conviction was reversed. The government petitioned for and was granted a rehearing en banc in front of the same court, and the majority of the full court affirmed the panel's decision and reversed the conviction,4 relying principally on the landmark 1969 Supreme Court decision of Katz v. United States.5 The majority felt that the language of Katz had undermined the reasoning of an earlier Supreme Court decision in On Lee v. United States,6 which had upheld the use of a bugged informant on facts identical to those presented in White. The Supreme Court in a plurality opinion7 reversed the Court of Appeals and affirmed the conviction, holding that Katz v. United States, which extended fourth amendment protections to the seizure of any conversation which the speaker has a justifiable right to expect to be private, does not impose a warrant requirement on electronic eavesdropping where one party to the conversation has consented to having the conversation simultaneously transmitted to a third person. United States v. White, 401 U.S. 745 (1971). 8

The purpose of this note is threefold. It will begin by explaining the constitutional issues presented by electronic eavesdropping and their historical development. There will then be a determination of the extent to which the White case has clarified the limits of constitutional protection in the electronic eavesdropping area. The note will conclude by demonstrating how White indicates a check in the recent trend of the High Court toward enlarging the scope of fourth amendment protection in the area of the seizure of conversation through the employment of electronic devices.

White was convicted of narcotics violations based on evidence obtained by a "bugged" informant. The informant wore a transmitter and government agents monitored White's conversations with the informant using a radio receiver. The defense objected to the use of the eavesdropping evidence, but the trial court overruled the objections and White was convicted. On appeal, the conviction was initially reversed, but the Supreme Court ultimately affirmed the conviction, holding that electronic eavesdropping with one party's consent does not require a warrant. This case clarified the limits of constitutional protection in electronic eavesdropping and checked the trend toward enlarging fourth amendment protection in this area.

HISTORICAL DEVELOPMENT OF THE ISSUES

The earliest view of the Supreme Court regarding the use of electronic eavesdropping devices was embodied in Olmstead v. United States,10 where evidence secured through wiretapping was used to convict petitioners of violation of the National Prohibition Act. The majority considered conversation too intangible to be within the ambit of the fourth amendment prohibition against unreasonable searches and seizures.

The amendment itself shows that the search is to be of material things-- the person, the house, his papers, or his effects. The description of the warrant necessary to make the proceeding lawful is that it must specify the place to be searched and the person or things to be seized... 12

The Court distinguished between seizure without a warrant of a letter or package in the mails, which it had ruled was improper and subject to the exclusionary rule in Ex Parte Jackson,5' and seizure of a conversation over telephone lines, which it felt did not violate the fourth amendment.

By further noting that the evidence was obtained "by use of the sense of hearing" without any "entry of the houses or offices of the defendants,"' 4 the majority laid the groundwork for what was later referred to as the "physical trespass" doctrine or "physical intrusion" doctrine of the seizure of intangibles. The decision thus held not only that mere words themselves could not be seized within the true meaning of the fourth amendment, but that in any event, some actual physical trespass was required to bring the amendment into play in such circum- stances. In Olmstead the seizure of petitioners' conversation was not accompanied by any physical intrusion into their property, but merely by a trespass on the telephone lines, which are no more a part of some- one's house or office "than are the highways along which they are stretched."' 5

The Supreme Court's view on electronic eavesdropping was first seen in Olmstead v. United States. The majority believed conversations were too intangible to fall under the fourth amendment's prohibition against unreasonable searches and seizures, which applies to material things like a person, house, papers, or effects. The Court distinguished between seizing a letter or package in the mail, which wasn't allowed, and seizing a conversation over telephone lines, which didn't violate the fourth amendment. The decision established that physical trespass was required to bring the amendment into play. In Olmstead, the seizure of conversation was a trespass on telephone lines, which are not part of someone's property.

The idea of the need for a "physical trespass" was reaffirmed later in Goldman v. United States.16 There the Court found no physical intrusion, and as a result no warrant requirement, when federal officers picked up the conversation inside petitioner's office by merely placing a detectphone against the wall of an adjoining office. By disposing of the case in this manner, the majority never provided itself with the opportunity of re-eval‎uating the issue of whether, even in the face of a trespass, words could properly be seized within the meaning of the fourth amendment. The Court also rejected a contention that the seizure of petitioner's conversation was a violation of § 605 of the Federal Communications Act,17 enacted in 1934 subsequent to Olmstead. Although petitioner was speaking into a telephone when his words were heard, there was no "interception" of the transmission of the words as they traveled over the telephone itself, which is what the majority felt the Act was designed to prohibit.18

The same type of analysis was used by the majority of the Court to dispose of petitioner's contentions in On Lee v. United States,19 a case of special importance to us because of its factual equivalency to White. In On Lee an old acquaintance-turned-informer named Chin Poy, while wired for sound with an electronic transmitter, engaged On Lee in an incriminating conversation in the latter's laundry while a narcotics agent monitored the conversation outside. The narcotics agent, and not Chin Poy, testified in court. The majority determined:

* . . Petitioner cannot raise the undecided question [of whether the fourth amendment would prohibit the seizure of words in the face of a physical trespass], for here no trespass was committed. Chin Poy entered a place of business with the consent, if not by the implied invitation, of the petitioner.

The majority also rejected contentions "that Chin Poy's subsequent 'un-lawful conduct' vitiated the consent and rendered his entry a trespass ab initio."'21 The Court further rejected arguments "that Chin Poy's entrance was a trespass because consent to his entry was obtained by fraud; ' 22 and, on the authority of Goldstein v. United States2 3-Goldman's companion case-that there was a violation of §605 of the Federal Communications Act.24 The four separate dissenting opinions,25 however, pointed to the growing dissatisfaction with the established concept of Fourth Amendment protection in this area. In the words of Justice Douglas, who had concurred with the majority in Goldman a decade earlier, one could "now more fully appreciate the vice of the practices spawned by Olmstead and Goldman.' '26

Nine years later, a unanimous Court was ready to assert that some constitutional protection against electronic eavesdropping did exist.27 Without reversing any previous decisions, the Court in Silverman v. United States,28 held that driving a spiked microphone through a party wall and into a heating duct serving petitioner's house, thereby convert- ing the duct into a conductor of sound capable of picking up conversation inside the house, was sufficient trespass to bring the fourth amendment into play regardless of

...whether or not there was a technical trespass under the local property law relating to party walls. Inherent Fourth Amendment rights are not inevitably measurable in terms of ancient niceties of tort or real property law.

Despite such language, the majority felt justified in distinguishing Silverman from Goldman, where the listening device was only placed up against the party wall.31 The Court, while thus reaffirming and developing its physical trespass theory, did finally assert by virtue of its decision, although not expressly in the opinion itself, that words could be seized within the meaning of the fourth amendment. The decision also changed the terminology of the physical trespass theory by focusing on "the reality of an actual intrusion into a constitutionally protected area. "

If any skeptic was still left in doubt as to the validity of applying fourth amendment safeguards and the exclusionary rule to "mere words" after Silverman, his concern was resolved by an explicit statement of the Court in Wong Sun v. United States.8 Mr. Justice Brennan, writing for the majority, clearly articulated that Silverman had necessarily implied that the unwarranted seizure of a person's private conversation was subject to fourth amendment safeguards, at least, that is, if the seizure was accompanied by a physical trespass or an "actual intrusion into a constitutionally protected area." But the validity of this latter requirement was soon to be unmistakably denounced in the landmark decision of Katz v. United States.

The Supreme Court reaffirmed the need for a physical trespass in Goldman v. United States.

However, in On Lee v. United States, the Court rejected the argument that a trespass was committed when an informant entered a business with the consent of the petitioner.

In Silverman v. United States, the Court held that a physical trespass was enough to trigger Fourth Amendment protections, regardless of local property laws. The Court also asserted that words could be seized under the Fourth Amendment.

The decision was later clarified in Wong Sun v. United States, which denounced the requirement for a physical trespass or intrusion into a constitutionally protected area.

In the Katz case, a majority of the Court36 found that the F.B.I.'s actions in attaching an electronic device to the outside of a public telephone booth, thus enabling them to hear and record petitioner's telephone conversation, without first obtaining a warrant, violated the fourth amendment, despite the fact that the device in no way physically penetrated the structure. Olmstead and Goldman were found to be ". . . so eroded by ...subsequent decisions that the 'trespass' doctrine there enunciated can no longer be regarded as controlling. 37

Not content with overruling Olmstead and Goldman, the Court also questioned the Silverman criteria, finding that a discussion of whether or not a public phone booth is a constitutionally protected area deflects attention from the problem presented by this case. For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. [citations omitted].

Petitioner had a right to exclude the "uninvited ear" from his conversation and was entitled to assume that the phone booth would effect this exclusion. A majority of the Court thus felt that the violation of a per- son's fourth amendment rights is contingent more upon his justifiable expectation of privacy, rather than upon any physical intrusion into any defined area where he may happen to be at the time.

Prior to this time, an additional set of criteria was developing in those cases where one of the parties to a conversation was working with the authorities and either consented to a monitoring of the conversation by a third person, as in On Lee and White, or recorded the conversation himself, or merely later disclosed the contents of the conversation without the aid of any electronic device. In On Lee, as we have noted, the majority based its decision principally on the need for a physical trespass. Finding none, the Court held that the third party monitoring of the conversation between On Lee and agent Chin Poy raised no fourth amendment issue.

In Lopez v. United States,40 however, the Court suggested another factor which could properly be taken into consideration in a fact situation like that presented in On Lee (or White). Here, an internal revenue agent, while visiting petitioner's office to discuss his failure to pay certain excise taxes, transcribed on a pocket wire recorder his conversation with the petitioner in which the latter offered him a bribe.41 The Court, at first finding that the agent had petitioner's consent to enter the office and was therefore not guilty of any unlawful invasion thereof, noted also that the recording of the conversation was really not an "eavesdrop" at all, but rather only a means by which the government was able to obtain the most reliable evidence possible of a conversation in which its own agent was a participant and which that agent was fully entitled to disclose.

And the device was carried in and out by an agent who was there with petitioner's assent, and it neither saw nor heard more than the agent himself.

This language indicates that the Court would take a different approach toward those cases where one party to a conversation consented to work as an informer or agent;43 and it indicates further that there is no requirement for a warrant where an electronic device merely enables the government to obtain corroborative evidence of that which they were law- fully hearing through their undercover agent.44 By further likening the Lopez situation to a case where a policeman was allowed to testify about the contents of a conversation he had heard on the extension phone of a party to the conversation with that party's consent,45 the majority draws no distinction between third party participation during the conversation-where the agent simultaneously transmits the conversation-or after it-where the agent records the conversation, a distinction which becomes important in White.

The Katz case ruled that the FBI violated the Fourth Amendment by recording a phone conversation without a warrant. The court found that a person's expectation of privacy was more important than physical intrusion. In Lopez v. United States, the court suggested consent could be a factor in monitoring conversations, and that corroborative evidence obtained through an electronic device did not require a warrant.

The Court has clearly held that the fourth amendment is not violated merely because an undercover informant later divulges the contents of a defendant's conversation to the police, where no electronic device was employed and where the defendant consented to the informer's presence and freely spoke with him, as in Lewis v. United States,46 or within his ear-range, as in Hoffa v. United States.47, This is characterized as a mere "misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it."'48

This, then, is the context within which White came before the Court. On Lee, decided nearly twenty years earlier, was factually on point, but its authority had been put into question by the Court's gradual reappraisal and final outright rejection of the trespass doctrine on which the decision was seemingly based. But perhaps the Lopez consent-corroboration formulation could be deemed a viable alternative theory upon which the same result would obtain in such a case-that is, if such a theory could be reconciled with the opinion in Katz. Because of the language and scope of the Katz decision, based on the broad notions of a right to privacy where one justifiably expects privacy, there existed the possibility that its application would extend to situations even where there was a consent factor involved, as in Lopez and On Lee, and that such deceisions might be re-eval‎uated in the light of Katz.49

The precise question presented in White thus became whether, according to the criteria expounded in Katz, one could "justifiably expect" that, in the absence of a search warrant, his conversation would be private to the extent that it would not be simultaneously transmitted to a third party by the other participant. Or, does one who voluntarily converses with another properly assume the risk not only that his words will be repeated (Lewis), or recorded (Lopez), but that they will be simultaneously trans- mitted to some third person with the consent of the other party to the conversation? After the Katz decision, and before the Supreme Court decision in White, the answer to these questions remained uncertain, as reflected by conflicting views in the lower courts. 50

The Supreme Court has ruled that the fourth amendment is not violated when an undercover informant shares information about a defendant's conversation with the police, as long as no electronic device was used and the defendant freely spoke with the informant. The case of White came before the Court, with the question being whether one can "justifiably expect" their conversation to be private without a search warrant. Conflicting views existed in lower courts before the Supreme Court's decision in White.

THE IMPACT OF THE WHITE DECISION

Justice White, in an opinion joined by Justices Burger, Stewart, and Blackmun, reversed the findings of the lower court and decided that Katz does not disturb the finding in On Lee, reaffirming and relying on the consent factor established in the Hoffa, Lewis, Lopez line of cases to justify On Lee's continued vitality. These Justices, in terms of the principles announced in Katz, felt that there was no "justifiable and constitutionally protected expectation that a person with whom [one] is conversing will not then or later reveal the conversation to the police [italics mine]," 51 regardless of what one's subjective expectation of privacy may be in such a situation.

For constitutional purposes, no different result is required if the agent instead of immediately reporting and transcribing his conversations with defendant [as the opinion notes was held proper in Hoffa, either (1) simultaneously records them with electronic equipment which he is carrying on his person, Lopez v. United States.; (2) or carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency. On Lee v. United States .. . . If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant's constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks.

Justice White thus had no difficulty in likening the On Lee-White situation to Lopez, even in view of the "privacy" criteria laid down in Katz, since complete reliance on the trustworthiness of another was considered to be an unjustifiable risk. The fact situation in Katz could be easily distinguished, since no party to the conversation agreed to the eaves- dropping, and the defendant had justifiably relied on the privacy of a telephone booth, not on the good faith of a party to the conversation.53 The plurality opinion even pointed out language in On Lee which indicated that the factor of consent was an alternative and independent ground for the decision in that case. 54

The dissenting Justices, Douglas, Harlan, and Marshall, and Justice Brennan, concurring in the result only because of Desist v. United States,55 were not as willing to reconcile consensual third party monitoring with Katz or to analogize it to Lopez. Justice Harlan deemed the distinction between mere recording by the agent, as in Lopez (in which he penned the majority opinion upholding the agent's action), and transmission to a third person a significant one in determining fourth amendment war- rant requirements. The difference in the amount of risk the average citizen is subjected to in these two situations forces Justice Harlan to draw the line between them, imposing a warrant requirement where some unknown third ear is simultaneously listening in, regardless of the con- sent of one of the participants. He feels that the opinion he wrote in Lopez in no way reaffirmed On Lee, and that it in fact emphasized the absence of any third party intrusion in determining whether the "risk" was fairly assumed by the petitioner.58

The basis for Justice Harlan's concern in advocating the imposition of a warrant requirement in the On Lee-White situation of simultaneous third-party monitoring is grounded in the practical effect which he feels such judicially uncontrolled surveillance would have on the average citizen.

Authority is hardly required to support the proposition that words would be measured a good deal more carefully and communication inhibited if one expected his conversations were being transmitted and transcribed. Were third-party bugging a preval‎ent practice, it might well smother that spontaneity-reflected in frivolous, impetuous, sacrilegious, and defiant discourse-that liberates daily life.

Justice White, with support from other Justices, ruled in On Lee that consent from a third party to monitor a conversation negates any expectation of privacy. This decision was reaffirmed in the case of Lopez. The dissenting justices, however, were not convinced that consensual third-party monitoring should be reconciled with the principles of Katz and Lopez. Justice Harlan argued that simultaneous third-party monitoring should require a warrant to protect citizens' privacy. He believed that uncontrolled surveillance would inhibit communication and undermine the freedom of speech.

This same social policy consideration would have Justice Douglas impose a warrant requirement in any situation where the government seeks to seize one's private conversation. In fact, as indicated by the first words of his dissent, he feels that "[t]he issue in this case is clouded and concealed by the very discussion of it in legalistic terms. . .  Electronic surveillance is the greatest leveler of human privacy ever known."58 Since he finds electronic eavesdropping almost certain to stifle free discourse and lead to abuse of civil rights, he would carefully limit it and apply the protections afforded by the fourth amendment. His concern is carefully documented with statements made by various prominent political figures, including, in an appendix to his dissent, memoranda written by Franklin Delano Roosevelt and Lyndon Johnson, while serving as President, expressing their reservations about the utilization of eavesdropping and wiretapping by government officials.59

Justice Marshall's brief dissent merely indicated that he finds On Lee irreconcilable with Katz.60 Justice Brennan, concurring on procedural grounds,61 would not only extend the fourth amendment to the On Lee- White situation, but, reaffirming his dissent in Lopez, he finds that case "rationally indistinguishable" and would impose a warrant requirement in that situation also.

The decision in White has thus rounded out considerably the criteria with which to analyze most foreseeable electronic bugging situations in determining the necessity of a fourth amendment warrant requirement. White has also limited Katz's application to those situations where neither party to a conversation has consented to its seizure. The result is that now, in the absence of any statutory limitations, the police are free to obtain the contents of a private conversation without first securing a warrant, provided they procure the voluntary consent of one party to the conversation, by having the conniving party: (1) Relate to them afterward what was spoken without the aid of any electronic device, or (2) simultaneously record the conversation and present it to them afterwards, or (3) simultaneously transmit the conversation to them at the time. In those situations where none of the participants consent, the principles enunciated in Katz must be applied to determine whether a warrant must be secured.

This result upholds the constitutionality of that part of Title III of the Omnibus Crime Control and Safe Streets Act of 1968,63 which excludes consensual third party monitoring from the ambit of the Act's limitations.64 The decision would in no way affect the constitutionality of present state laws permitting electronic eavesdropping, since it has limited rather than broadened the fourth amendment application in such circumstances.65

But Katz raised many questions, and White has answered only one. The future decisions of the Court in the area of electronic surveillance will undoubtedly attempt to resolve some of the other uncertainties engendered by Katz. For example, where the factor of consent is not present, and neither party works with the police, under what circumstances the parties to a conversation have justifiably expected their words to remain private must still be developed satisfactorily.65 Problems concerning the adaptability of a warrant to a situation where conversation is sought to be seized, especially those relating to the degree of particularity required and the duration of the warrant's issue, are still to be completely resolved after Katz and Berger v. New York.67 Future decisions will also have to cope with a question expressly reserved by the majority opinion in Katz, i.e., "whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security. . ...68

White has perhaps done more, however, than merely tie one of Katz's loose ends. Although the decision has been logically and legally reconciled with the Katz opinion, the major step taken by the Court in Katz indicated that a majority of the Court was coming to believe that most, if not all, electronic eavesdropping should at least be limited by a warrant requirement. White abruptly halted any such notions. A consideration of the change in membership on the Court should provide a practical clue as to the reason for the Court's failure to extend the principles expressed in Katz, and may portend the tenor of the Court's approach in resolving the quagmire yet remaining in the area of electronic surveillance.69

JOSEPH BISCEGLIA

The White decision upholds the legality of consensual third-party monitoring. However, it leaves many questions unanswered, such as when parties have a reasonable expectation of privacy. Future decisions will need to address these issues and determine if safeguards other than a warrant are sufficient for national security situations. The decision halted the trend towards a warrant requirement for electronic surveillance, and the Court's membership changes may indicate its future approach in this area.

Katz판결 이후 경찰의 도청장치 사용을 용인하는 정책이 수정헌법 4조의 명목으로 주춤 하는듯 하였지만 White 판결이 발표 되면서 다시 원위치로 돌아 온 것 같습니다. 왜냐하면 경찰신분을 숨긴 체 접근하는 대상에 대하여 사생활 침해에 대해 경찰에게 어떠한 책임도 물을 수 없기 때문 입니다. White 판결의 핵심은 피고가 경찰신분을 숨긴 사람에게 사적인 정보를 능동적으로 발설 하는 것은 경찰이 정보입수에 대한 동의를 얻었다고 볼수 있기 때문에 도청장치로 사생활 침해를 금지하는 Katz 룰과 양립 할 수 있다는 논리 입니다. 하지만 저는 White 룰은 정보를 입수 할 때 경찰의 신분을 밝힐것을 요구 하지 않는다는 점이 수정 헌법 4조 권리를 우선시하는 Katz 룰과 자연스럽고 완전한 양립성을 보장 하지 못한다고 생각 했습니다. 즉, 연방대법원 판사님들의 구성에 변동이 생기면 White 룰도 바뀔 것 이라는 필자의 생각 처럼 White 룰은 곧 바뀌게 될 임시적인 룰이라고 생각 했습니다. 

하지만 이글이50년 전에 쓰여진 글인데 아직까지 White 케이스가 뒤집히지 않은 걸 보면 필자와 저의 기대가 현실의 실제 상황을 적절하게 예견하지 못했다고 해야 할 것 같습니다.  

하지만 여전이 배우자나 의사나 변호사와 같은 비밀보장이 인권의 문제와 연결 될 때 사적인 정보의 유출을 Lopez 가 말하는 “동의”로 보아야 할지는 더 생각해 볼 문제라고 생각 합니다.  이와 관련 케이스에 대하여 좀더 조사해 보아야 할것 같습니다.