John Marshall Harlan II

“ By casting its 'risk analysis' solely in terms of the expectations and risks that 'wrongdoers' or 'one contemplating illegal activities' ought to bear, the plurality opinion, I think, misses the mark entirely. On Lee does not simply mandate that criminals must daily run the risk of unknown eavesdroppers prying into their private affairs; it subjects each and every law-abiding member of society to that risk. ”

“ Moreover, as I shall undertake to show later in this opinion, the factors that must be reckoned with in reaching constitutional conclusions respecting the use of electronic eavesdropping as a tool of law enforcement are exceedingly subtle and complex. They have provoked sharp differences of opinion both within and without the judiciary, and the entire problem has been the subject of continuing study by various governmental and nongovernmental bodies. ”

“ The impact of the practice of third-party bugging, must, I think, be considered such as to undermine that confidence and sense of security in dealing with one another that is characteristic of individual relationships between citizens in a free society. It goes beyond the impact on privacy occasioned by the ordinary type of 'informer' investigation upheld in Lewis and Hoffa. ”

“ The interest On Lee fails to protect is the expectation of the ordinary citizen, who has never engaged in illegal conduct in his life, that he may carry on his private discourse freely, openly, and spontaneously without measuring his every word against the connotations it might carry when instantaneously heard by others unknown to him and unfamiliar with his situation or analyzed in a cold, formal record played days, months, or years after the conversation. ”

“ For the errors of Desist are not merely repeated here; they are plainly compounded. Upon the plurality opinion's own analysis of the instant case, it is clear that Katz has no direct relevance to the present viability of On Lee. '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.' Ante, at 749. ”

“ Since Osborn our decisions have shown no tolerance for the old dividing lines resting, as they did, on fiction and common-law distinctions without sound policy justification in the realm of values protected by the Fourth Amendment. Thus, in abolishing the 'mere evidence rule' we announced that 'the principal object of the Fourth Amendment is the protection of privacy rather than property,' and once again noted the trend to discard 'fictional and procedural barriers rested on property concepts.' Warden v. ”

“ The central consideration was, the Court concluded, that these administrative actions, no less than the typical search, involved government officials in an invasion of privacy, and that it was against the possible arbitrariness of invasion that the Fourth Amendment with its warrant machinery was meant to guard. Berger and Katz built, as noted earlier, on Osborn v. United States, supra, and Camara, and gave further expression to the principle. [18] It was not enough that government agents acted with restraint, for reasonableness must in the first instance be judged in a detached realm. ”

“ The argument of the plurality opinion, to the effect that it is irrelevant whether secrets are revealed by the mere tattletale or the transistor, ignores the differences occasioned by third-party monitoring and recording which insures full and accurate disclosure of all that is said, free of the possibility of error and oversight that inheres in human reporting.
Authority is hardly required to support the proposition that words would be measured a good deal more carefully and communication inhibited if one suspected his conversations were being transmitted and transcribed. ”

“ The very purpose of interposing the Fourth Amendment warrant requirement is to redistribute the privacy risks throughout society in a way that produces the results the plurality opinion ascribes to the On Lee rule. ”

“ Much offhand exchange is easily forgotten and one may count on the obscurity of his remarks, protected by the very fact of a limited audience, and the likelihood that the listener will either overlook or forget what is said, as well as the listener's inability to reformulate a conversation without having to contend with a documented record. ”

“ Especially when other recent Fourth Amendment decisions, not otherwise so immediately relevant, are read with those already discussed, the primacy of an additional general principle becomes equally evident: official investigatory action that impinges on privacy must typically, in order to be constitutionally permissible, be subjected to the warrant requirement. ”

“ On these premises I move to the problem of third-party 'bugging.' To begin by tracing carefully the evolution of Fourth Amendment doctrine in post-On Lee decisions has proved useful in several respects. It serves to cast in perspective both the issue involved here and the imperative necessity for reconsidering On Lee afresh. Additionally, a full exposition of the dynamics of the decline of the trespass rationale underlying On Lee strikingly illuminates the deficiencies of the plurality opinion's retroactivity analysis. ”

“ For no other argument can justify excluding an accurate version of a conversation that the agent could testify to from memory. We think the risk that petitioner took in offering a bribe to Davis fairly included the risk that the offer would be accurately reproduced in court, whether by faultless memory or mechanical recording.' 373 U.S., at 439, 83 S.Ct., at 1388.↑ The Chief Justice and dissenters, concerned with the possibility that 'the majority opinion may be interpreted as reaffirming sub silentio the result in On Lee v. United States,' expressly repudiated it. ”

“ What this means is that the burden of guarding privacy in a free society should not be on its citizens; it is the Government that must justify its need to electronically eavesdrop.
Not content to rest upon the proposition that On Lee remains sound law, the plurality opinion would also hold that the Court of Appeals erred further in disposing 'of this case based on its understanding of the principles announced in the Katz case,' ante, at 754, because Desist v. United States, 394 U.S. 244, 89 S.Ct. ”

“ It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure.' 116 U.S. 616, at 635, 6 S.Ct. ”

“ Although § 2511 (2) (c) exempts consensual and participant monitoring by law enforcement agents from the general prohibitions against surveillance without prior judicial authorization and makes the fruits admissible in court, see § 2515, congressional malaise with such conduct is evidenced by the contrastingly limited endorsement of consensual surveillance carried out by private individuals. ”

“ The controlling principle is 'to recognize that the Fourth Amendment governs all intrusions by agents of the public upon personal security, and to make the scope of the particular intrusion, in light of all the exigencies of the case, a central element in the analysis of reasonableness.' 392 U.S., at 18 n. 15, 88 S.Ct., at 1878. See also Davis v. Mississippi, 394 U.S., at 727, 89 S.Ct., at 1397. [20]
That the foundations of On Lee have been destroyed does not, of course, mean that its result can no longer stand. Indeed, the plurality opinion today fastens upon our decisions in Lopez, Lewis v. ”

“ On Lee involved circumstances virtually identical to those now before us. There, Government agents enlisted the services of Chin Poy, a former friend of Lee, who was suspected of engaging in illegal narcotics traffic. Poy was equipped with a 'minifon' transmitting device which enabled outside Government agents to monitor Poy's conversations with Lee. ”

“ Whether persons can, consistent with constitutional prohibitions, by tricked or coerced into transmitting their conversations, with or without prior judicial approval, and, if not, whether other parties to the conversation would have standing to object to the admission against them of evidence so obtained, cf. ”

“ The scope and meaning of the rule have emerged with even greater clarity by virtue of our holdings setting the boundaries for the exceptions. Recently, in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) , we reiterated the importance of the prior independent determination of a neutral magistrate and underscored its centrality to the reasonableness requirement of the Fourth Amendment, and abandoned the holdings of Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947) , and United States v. ”

“ Surreptitious Monitoring With the Consent of a Participant in a Conversation, 68 Col.L.Rev. 189 (1968) , and Professor Kitch, Katz v. United States: The Limits of the Fourth Amendment, 1968 Sup.Ct.Rev. 133. For an interesting analysis of the impact of nonconsensual bugging on privacy and the role of prior judicial authorization see Spritzer, Electronic Surveillance By Leave of the Magistrate: The Case in Opposition, 118 U.Pa.L.Rev. 169 (1969) . In addition, see American Bar Association, Project on Standards for Criminal Justice, Electronic Surveillance § 4.1 (Approved Draft 1971) ”