John Marshall Harlan II

“ There is a very simple reason why the traditional law of standing permits the owner of the premises to exclude a tangible object illegally seized on his property, despite the fact that he does not own the particular object taken by the police. Even though he does not have title to the object, the owner of the premises is in possession of it-and we have held that a property interest of even less substance is a sufficient predicate for standing under the Fourth Amendment. ”

“ Indeed, granting standing to property owners compromises the personal privacy of others.
The Court's response seems to be that the Fourth Amendment protects 'houses' as well as 'persons.' But this is simply to treat private conversations as if they were pieces of tangible property. Since an individual cannot carry his possessions with him wherever he goes, the Fourth Amendment protects a person's 'house' so that his personal possessions may be kept out of the Government's easy reach. ”

“ While I would hold that property owners have no right as such to hear conversations in which they were not participants, it appears to me that at a minimum the Court should adopt the Government's suggested judicial screening procedure with regard to third-party conversations. Property owners should not be permitted to intrude into the private lives of others unless a trial judge determines that the conversation at issue is at least arguably relevant to the pending prosecution. ”

“ Even more important, there is much less reason to believe that a protective court order will effectively deter the defendant in an espionage case from turning over the new information he has received to those who are not entitled to it. For in an espionage case, the defendant is someone the grand jury has found is likely to have passed secrets to a foreign power. It is one thing to believe that the normal criminal defendant will refuse to pass on information if threatened with severe penalties for unauthorized disclosure. ”

“ It may well be, for example, that the number of conversations at issue is very small. Yet though the Court itself recognizes that 'the need for adversary inquiry is increased by the complexity of the issues presented for adjudication,' ante, at 184, it nevertheless leaves no room for an informed decision by the trial judge that the risk of error on the facts of a given case is insubstantial. Since the number of espionage cases is small, there is no chance whatever that these decisions will be made in a hurried fashion or that they will not be subjected to the most searching scrutiny on appeal. ”

“ If, as the Court rightly states, the propriety of an in camera screening procedure is a 'matter of judgment,' ante, at 182, depending on an informed consideration of all the competing factors, I do not understand why the trial judge should not be authorized to consider whether the accused simply cannot be trusted to keep the Government's records confidential. ”

“ Since a man has no choice but to leave the bulk of his physical possessions in his 'house,' the Fourth Amendment must protect his 'house' in this way or else the immunity of his personal possessions from arbitrary search could not be assured. Thus if an individual's personal possessions are to be protected at all, they must be protected in his house; but a person's private conversations are protected as much as is possible when he can complain as to any conversation in which he personally participated. ”

“ The Court's failure to consider the special characteristics of the Ivanov and Butenko cases is particularly surprising in the light of the reasons it gives for creating an absolute rule in favor of an automatic turnover. For the majority properly recognizes that its preference for a full adversary hearing cannot be justified by an easy reference to an absolute principle condemning in camera judicial decisions in all situations. ”

“ If standing is to be extended to protect a person's interest in his family's privacy, an individual should be permitted to make a constitutional claim whenever a family member's reasonable expectation of privacy has been infringed, regardless of the place where his privacy was invaded. ”

“ Here, however, the question is whether an individual may hea the conversations of third parties. [7] If, for example, it develops at the hearing that petitioner Alderisio simply had a bare right to remain on the business premises that were bugged, cf. Jones v. United States, supra, it surely could not be argued that his privacy had been infringed even though he had not been personally involved in any of the conversations that had been overheard. The Court seems duty bound to make at least this much clear. ”

“ Similarly, the accused may find out that the United States has obtained certain information that his foreign government believes is still secret, even when our Government has also received this information from an independent source in a constitutional way. And he may learn that those in whom he has been reposing confidence are in fact American undercover agents. ”

“ And a man can only be in one place at one time. If the privacy of his conversation is respected at that place, he may engage in all those activities for which that privacy is an essential prerequisite. ”

“ Instead, we should reject traditional property concepts entirely, and reinterpret standing law in the light of the substantive principles developed in Katz. Standing should be granted to every person who participates in a conversation he legitimately expects will remain private-for it is such persons that Katz protects. ”

“ It must be noted, however, that even if this Court recognized a man's right to protest whenever the privacy of his family was infringed, the lines the majority draws today would still seem extremely arbitrary. Under the prevailing 'property' rule, for example, a husband generally cannot complain if the police overhear his wife talking at her office or in a public phone booth, cf. ”