Lopez v. United States
373 U.S. 427 (1963)
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Rule of Law:
The Fourth Amendment does not protect a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it. Therefore, a government agent can secretly record a conversation with a suspect without a warrant, provided the agent is lawfully on the premises and is a party to the conversation.
Facts:
- Internal Revenue Agent Roger S. Davis visited Clauson's Inn, operated by German S. Lopez, as part of an investigation into potential excise tax evasion.
- During a meeting on October 21, 1961, Lopez invited Davis into his private office to discuss the tax matter.
- In the office, Lopez offered Davis an unsolicited bribe of $420 to drop the investigation and promised more money in the future.
- Davis took the money and reported the bribe to his superiors at the Internal Revenue Service.
- On October 24, 1961, Davis returned for a pre-arranged meeting with Lopez, this time equipped with a concealed wire recorder provided by federal inspectors.
- During this meeting, Lopez reiterated his criminal intent, offered Davis an additional $200, and confirmed the purpose of the initial $420 payment.
- The entire conversation on October 24 was captured on the concealed recording device.
Procedural Posture:
- German S. Lopez was charged in a four-count indictment in federal trial court with the attempted bribery of an Internal Revenue Agent.
- Prior to trial, Lopez's motion to suppress the wire recording of his conversation with the agent was denied.
- At trial, the motion was renewed and again denied, and the recording was admitted into evidence.
- A jury acquitted Lopez on Count 1 but convicted him on Counts 2, 3, and 4.
- The trial court denied Lopez's motion for a judgment notwithstanding the verdict and sentenced him to one year of imprisonment.
- Lopez, as appellant, appealed to the U.S. Court of Appeals for the First Circuit, which affirmed the conviction.
- The U.S. Supreme Court granted Lopez's petition for a writ of certiorari.
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Issue:
Does the use of a concealed wire recorder by a government agent to secretly record a conversation with a suspect in the suspect's office, where the agent is present with the suspect's consent, violate the Fourth Amendment's protection against unreasonable searches and seizures?
Opinions:
Majority - Mr. Justice Harlan
No, the use of a concealed wire recorder by a government agent who is a party to the conversation and lawfully on the premises does not violate the Fourth Amendment. Davis was in Lopez's office with consent and did not engage in an unlawful invasion. The electronic device was not used for eavesdropping on a conversation the agent could not otherwise hear; it was used to obtain a reliable record of a conversation in which the agent was a direct participant. Lopez's statements were voluntarily made to Davis, and he assumed the risk that Davis might reveal their contents. The Fourth Amendment does not protect a defendant from the risk that his offer of a bribe will be accurately reproduced in court, whether by faultless memory or a mechanical recording.
Concurring - Mr. Chief Justice Warren
No, the recording was admissible under these specific circumstances. This case is distinguishable from prior cases like On Lee v. United States, where an informant's testimony was replaced by a recording, preventing cross-examination. Here, Agent Davis testified at trial, and the recording served only to corroborate his testimony and protect his credibility against Lopez's conflicting account. The use of a recording device is a fair method for a law enforcement officer to substantiate his version of events when faced with a bribe attempt and should not be proscribed when used for such a limited, corroborative purpose.
Dissenting - Mr. Justice Brennan
Yes, this electronic surveillance violated the Fourth Amendment. The right to privacy embraces the liberty of one's communications, and a person does not surrender this right by speaking to another. The risk of being betrayed by an acquaintance is fundamentally different from the risk of having a conversation secretly recorded by a government-planted electronic device. Permitting such surveillance creates a chilling effect on free communication, as the only defense is to remain silent. The Court's trespass-focused doctrine from Olmstead is outdated; the Fourth Amendment should protect against intangible intrusions into privacy, and secret electronic recording of conversations in a private office is precisely the kind of governmental intrusion the Amendment was meant to prevent.
Analysis:
This pre-Katz decision upheld the constitutionality of 'consensual surveillance,' establishing the influential 'assumption of the risk' or 'misplaced confidence' doctrine. It holds that when one speaks to another person, they assume the risk that their confidant may be a government agent who is recording the conversation. The ruling reinforced a view of the Fourth Amendment tied to physical trespass, reasoning that since the agent was lawfully present, no unconstitutional search occurred. This decision created a sharp contrast with the Court's later shift in Katz v. United States, which focused on a 'reasonable expectation of privacy' rather than property lines, though the 'assumption of the risk' rationale from Lopez has survived and continues to influence surveillance law.
