William J. Brennan, Jr.

“ For there is a qualitative difference between electronic surveillance, whether the agents conceal the devices on their persons or in walls or under beds, and conventional police stratagems such as eavesdropping and disguise. The latter do not so seriously intrude upon the right of privacy. The risk of being overheard by an eavesdropper or betrayed by an informer or deceived as to the identity of one with whom one deals is probably inherent in the conditions of human society. It is the kind of risk we necessarily assume whenever we speak. ”

“ The passive and the quiet, equally with the active and the aggressive, are entitled to protection when engaged in the precious activity of expressing ideas or beliefs. Electronic surveillance destroys all anonymity and all privacy; it makes government privy to everything that goes on. ”

“ Surely high government officials are not the only persons who find it essential to be able to say things 'off the record.' I believe that there is a grave danger of chilling all private, free, and unconstrained communication if secret recordings, turned over to law enforcement officers by one party to a conversation, are competent evidence of any self-incriminating statements the speaker may have made. ”

“ I cannot but believe that if we continue to condone electronic surveillance by federal agents by permitting the fruits to be used in evidence in the federal courts, we shall be contributing to a climate of official lawlessness and conceding the helplessness of the Constitution and this Court to protect right's 'fundamental to a free society.' Frank v. ”

“ If electronic surveillance by government becomes sufficiently widespread, and there is little in prospect for checking it, the hazard that as a people we may become hagridden and furtive is not fantasy.
The right to privacy is the obverse of freedom of speech in another sense. This Court has lately recognized that the First Amendment freedoms may include the right, under certain circumstances, to anonymity. ”

“ There is only one way to guard against such a risk, and that is to keep one's mouth shut on all occasions.
It is no answer to say that there is no social interest in encouraging Lopez to offer bribes to federal agents. Neither is there a social interest in allowing a murderer to conceal the murder weapon in his home. But there is a right of liberty of communications as of possessions, and the right can only be secure if its limitations are defined within a framework of principle. The Fourth Amendment does not forbid all searches, but it defines the limits and conditions of permissible searches ”

“ Lopez assumed the same risk vis-a -vis Davis. The risk inheres in all communications which are not in the sight of the law privileged. It is not an undue risk to ask persons to assume, for it does no more than compel them to use discretion in choosing their auditors, to make damaging disclosures only to persons whose character and motives may be trusted. But the risk which both On Lee and today's decision impose is of a different order. ”

“ The other half of the Government's argument is that Lopez surrendered his right of privacy when he communicated his 'secret thoughts' to Agent Davis. The assumption, manifestly untenable, is that the Fourth Amendment is only designed to protect secrecy. If a person commits his secret thoughts to paper, that is no license for the police to seize the paper; if a person communicates his secret thoughts verbally to another, that is no license for the police to record the words. ”

“ But as soon as electronic surveillance comes into play, the risk changes crucially. There is no security from that kind of eavesdropping, no way of mitigating the risk, and so not even a residuum of true privacy. See pp. 449-451, supra. [12]
Furthermore, the fact that the police traditionally engage in some rather disreputable practices of law enforcement is no argument for their extension. Eavesdropping was indictable at common law [13] and most of us would still agree that it is an unsavory practice. The limitations of human hearing, however, diminish its potentiality for harm . ”

“ But a congressional enactment is a source of judicial policy as well as a specific mandate to be enforced, and the same 'broad considerations of morality and public well-being,' Nardone (II) , at 340, 60 S.Ct. at 267, which make wiretap evidence inadmissible in the federal courts equally justify a court-made rule excluding the fruits of such devices as the Minifon. It is anomalous that the federal courts, while enforcing the right to privacy with respect to telephone communications, recognize no such right with respect to communications wholly within the sanctuaries of home and office. ”

“ The extension telephone by means of which Rathbun's statements were heard had not been specially installed for law enforcement purposes, and no attempt was made to transcribe the phone conversation electronically. Thus in the Court's view wiretapping in the conventional sense was not involved and § 605 had no application. It should also be pointed out that while it is a very serious inconvenience to be inhibited from speaking freely over the telephone, it perhaps is a far graver danger to a free society if a person is inhibited from speaking out in his home or office. ”

“ As a matter of fact, more wiretapping by police is done in gambling cases than in any other kind of case. In gambling and in vice matters generally, there is steady pressure on the plainclothesmen to maintain a certain arrest record. Continuous wiretap surveillance, without court order, enables plainclothesmen to maintain this record.' Dash, at 66. The same principles apply to electronic surveillance generally.↑ Senator Hennings has termed electronic eavesdropping more insidious and more prevalent than wiretapping. ”

“ To be secure against police officers' breaking and entering to search for physical objects is worth very little if there is no security against the officers' using secret recording devices to purloin words spoken in confidence within the four walls of home or office. Our possessions are of little value compared to our personalities. And we must bear in mind that historically the search and seizure power was used to suppress freedom of speech and of the press, see Lasson, supra, at 33, 37 50 ”

“ Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man's own testimony, or of his private papers to be used as evidence to convict him of crime, or to forfeit his goods, is within the condemnation of that judgment. ”

“ The suggestion is an open invitation to law enforcement officers to use cat's-paws and decoys in conjunction with electronic equipment, as in On Lee. More important, it invokes a fictive sense of waiver wholly incompatible with any meaningful concept of liberty of communication. If a person must always be on his guard against his auditor's having authorized a secret recording of their conversation, he will be no less reluctant to speak freely than if his risk is that a third party is doing the recording. ”

“ Police officers could then no longer employ confidential informants, act as undercover agents, or even wear 'plain clothes.' But this argument misses the point. It is not Agent Davis' deception that offends constitutional principles, but his use of an electronic device to probe and record words spoken in the privacy of a man's office. ”

“ The Government would have it that the 'human witness (Davis) actually testifies and the machine merely repeats and corroborates his narrative.' But it can make no difference that Davis did, and the informer in On Lee did not, himself testify; for the challenged evidence, the Minifon recording, is independent evidence of the statements to which Davis also testified. A mechanical recording is not evidence that is merely repetitive or corroborative of human testimony. ”

“ Electronic eavesdropping by means of concealed microphones and recording devices of various kinds has become as large a problem as wiretapping, and is pervasively employed by private detectives, police, labor spies, employers and others for a variety of purposes, some downright disreputable. ”

“ It is the risk that third parties, whether mechanical auditors like the Minifon or human transcribers of mechanical transmissions as in On Lee-third parties who cannot be shut out of a conversation as conventional eavesdroppers can be, merely by a lowering of voices, or withdrawing to a private place-may give independent evidence of any conversation. ”

“ For one thing, electronic surveillance is almost inherently indiscriminate, so that compliance with the requirement of particularity in the Fourth Amendment would be difficult; for another, words, which are the objects of an electronic seizure, are ordinarily mere evidence and not the fruits or instrumentalities of crime, and so they are impermissible objects of lawful searches under any circumstances, see p. ”

“ Furthermore, as the Court was careful to emphasize, extension phones are in common use, so common that it is a normal risk of telephoning that more than one person may be listening in at the receiver's end. ”

“ The question before us comes down to whether there is a legal basis, either in the Fourth Amendment or in the supervisory power, [3] for excluding from federal criminal trials the fruits of surreptitious electronic surveillance by federal agents.
History and the text of the Constitution point the true path to the answer. In the celebrated case of Entick v. Carrington, 19 Howell's State Trials 1029 (C.P.1765) , Lord Camden laid down two distinct principles: that general search warrants are unlawful because of their uncertainty ”

“ John Adams surely is a competent witness on the causes of the American Revolution. And he it was who said of Otis' argument against search by the police * * * 'American independence was then and there born.' 10 Adams, Works 247.' Harris v. United States, 331 U.S. 145, 159, 67 S.Ct. ”

“ District of Columbia, 73 App.D.C. 85, 115 F.2d 690.↑ Silverman involved the penetration of a 'spike mike' several inches into the party wall of the house occupied by the petitioners. The mike touched a heating duct which acted as a conductor of sounds within the house, thus enabling their transmission by the mike to federal officers on the other side of the wall. ”