Abe Fortas

“ The Court in effect grants absolution to police invasions of individual privacy by wiretaps and electronic devices not involving physical trespass, as long as the unconstitutional conduct took place before Katz. It holds that only from and after Katz will it apply the Fourth Amendment's command without reference to whether a physical trespass was involved. The significance of the decisions is not only that they deprive a relatively few convicted persons of their constitutional rights, but also that they diminish the Constitution ”

“ Only those police officials and courts whose devotion to wiretapping and electronic surveillance is so intense as to induce them to exploit those techniques until the last spade of earth is shoveled on the doctrinal corpse have continued to rely on Olmstead. It is not the least of the unfortunate consequences of today's decisions that they validate this kind of foot-dragging. They reward those who fought the battle for uncontrolled police eavesdropping to the bitter end, despite the clear, though undelivered, verdict. ”

“ If such a distinction in the application of a substantive constitutional principle can ever be justified, it can be only in the most compelling circumstances. Such circumstances might possibly exist if the newly announced principle related only to the States, in that it extended to the States a principle heretofore deemed to apply only to the Federal Government, or if 'retroactive' application would place an extreme burden on the administration of justice; if the new ruling were wholly unanticipated in the decisions of the Court ”

“ B t there is no justification for refusing 'retroactive' application to a constitutional principle merely because of an earlier reading of the Constitution that had been widely repudiated as unsound and that this Court's own intervening opinions had discredited, although not expressly overruled. Olmstead is in this category. Katz did no more than administer the coup de grace to its moribund doctrine. The action of the Court today cannot be justified by claiming that it is required by Olmstead's continued vitality. On the contrary, the Court today breathes life into Olmstead's corpse. ”

“ In any event, there is no doubt that Olmstead was thoroughly repudiated by this Court long before December 18, 1967, when Katz was decided. Katz is not responsible for killing Olmstead. Prior cases had left the physical-trespass requirement of Olmstead virtually lifeless and merely awaiting the death certificate that Katz gave it. They demonstrated to all who were willing to receive the message that Olmstead would not shield eavesdropping because it took place outside the physical pro erty line. ”

“ Because of this distinction, their conduct is today held to be immunized from Fourth Amendment attack. Olmstead would sanction the differentiation. If the microphone had been attached to the inner panel, or if the agents had used a device that impinged by 1/1000th of an inch upon the room rented by petitioners, Olmstead would not have sanctified the result. ”

“ United States, 316 U.S. 129, 134-136, 62 S.Ct. 993, 995-997, 86 L.Ed. 1322, for that Amendment was thought to limit only searches and seizures of tangible property. But ' (t) he premise that property interests control the right of the Government to search and seize has been discredited.' Warden, Md. ”