Abe Fortas

“ I therefore reach the conclusion that a differentiation may properly be made between the method of handling materials the disclosure of which would endanger the national security and other illegally obtained materials. Skepticism as to the court's ability to detect and turn over to the defendant all relevant material may be well founded, but in camera inspection does not so clearly threaten to deprive defendants of their constitutional rights that it justifies endangering the national security. ”

“ But in cases where the trial court explicitly determines, in written findings, sealed and available for examination by reviewing courts, that disclosure would substantially injure national security interests, I do not think that disclosure to the defendant is necessary in order for the Government to proceed with a prosecution. ”

“ The Fourth Amendment is not merely a privilege accorded to him whose domain has been lawlessly invaded. It grants the individual a personal right, not to privacy, but to insist that the state utilize only lawful means of proceeding against him. ”

“ It is usually the product of calculated, official decision rather than the error of an individual agent of the state. And because by nature it is hidden, unlawful electronic surveillance is even more offensive to a free society than the unlawful search and seizure of tangible material. ”

“ Relevant material that has been illegally seized may be suppressed if the defendant has standing, but the existence of nonrelevant illegal evidence will not prevent a prosecution. Only the method of determining the relevance of the lawlessly obtained material to the prosecution would vary according to whether the national security is involved.
I agree with the majority that the possibility of error in determining relevance is much greater if there is only in camera examination. ”

“ They have allowed this evidence except in those cases where a defendant who moves for suppression of the material can show that his personal right of privacy was violated by the unlawful search or seizure. This restriction on persons who can suppress illegally acquired evidence has been attributed by some commentators [5] to the fact that the constitutional right to suppress was at one time considered to stem in part from the Fifth Amendment's privilege against self-incrimination. [6] Only the person whose right has been violated can claim the protection of that privilege. ”

“ As I think the Court recognized in Jones, unless we are to insist upon property concepts, it is enough to give him 'standing' to object that the government agents conducted their u lawful search and seizure in order to obtain evidence to use against him. The Government violates his rights when it seeks to deprive him of his liberty by unlawfully seizing evidence in the course of an investigation of him and using it against him at trial. ”