On Lee v. United States
1952 U.S. LEXIS 2794, 343 U.S. 747, 96 L. Ed. 2d 1270 (1952)
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Rule of Law:
The use of an undercover informant equipped with a concealed electronic transmitter to overhear a defendant's incriminating statements does not constitute an unreasonable search and seizure under the Fourth Amendment when the informant is on the premises with the defendant's consent.
Facts:
- On Lee was the proprietor of a laundry in Hoboken, New Jersey.
- Chin Poy, a former employee and acquaintance of On Lee, was secretly acting as an undercover agent for the Bureau of Narcotics.
- Chin Poy entered On Lee's laundry, a business space open to customers, and engaged On Lee in conversation.
- During this conversation, On Lee made incriminating statements regarding the sale of opium.
- Unbeknownst to On Lee, Chin Poy was wearing a concealed microphone in his overcoat pocket which transmitted the conversation to a receiving set.
- A federal narcotics agent, Lawrence Lee, was stationed outside the laundry and listened to the entire conversation through the receiving set.
- A few days later, agent Lee overheard another incriminating conversation between On Lee and Chin Poy on a New York City sidewalk using the same method.
Procedural Posture:
- On Lee was convicted in a federal trial court on one count of selling opium and one count of conspiracy.
- At trial, the court admitted the testimony of Agent Lawrence Lee, who related the conversations he overheard via the radio transmitter worn by the informant.
- On Lee appealed his conviction to the United States Court of Appeals.
- The Court of Appeals affirmed the conviction in a divided decision.
- The United States Supreme Court granted On Lee's petition for a writ of certiorari.
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Issue:
Does the use of a government informant, wearing a concealed microphone that transmits his conversations with a suspect to a nearby federal agent, violate the Fourth Amendment's prohibition against unreasonable searches and seizures when the informant enters the suspect's premises with consent?
Opinions:
Majority - Mr. Justice Jackson
No. The use of an informant wearing a concealed microphone does not violate the Fourth Amendment because there was no unlawful trespass. Chin Poy entered On Lee's place of business with consent, and the Court rejected the argument that this consent was invalidated by fraud or that it constituted a trespass 'ab initio,' citing McGuire v. United States. The situation is not analogous to wiretapping but is instead akin to eavesdropping with the consent of one party to the conversation; Agent Lee could have legally overheard the conversation if he were standing outside an open window. The use of a radio transmitter to enhance hearing from a lawful position is not a search, much like using binoculars is not a search. The Court declined to exclude the evidence based on its supervisory powers, as no federal law was violated, and concluded that the informant's deception raises issues of credibility for a jury, not questions of law regarding the admissibility of evidence.
Dissenting - Mr. Justice Frankfurter
Yes. This method of obtaining evidence should be found unconstitutional as it constitutes 'dirty business' that undermines respect for the law. The Court should not approve of reprehensible means simply because they are convenient for law enforcement. Sanctioning such conduct encourages lazy and immoral policing, putting a premium on fraud rather than skillful investigation. The dissent argues for overruling Olmstead v. United States, stating that technological advances have made government intrusion into private lives a greater threat than ever before, which the Fourth Amendment was designed to prevent.
Dissenting - Mr. Justice Douglas
Yes. The government's actions constitute a profound invasion of privacy that violates the Fourth and Fifth Amendments. Admitting he was wrong to adhere to Olmstead in the past (in Goldman v. United States), Justice Douglas now fully embraces the reasoning of Justice Brandeis's dissent in Olmstead, which championed the 'right to be let alone.' The controlling factor is not the specific technology used, but the unjustifiable intrusion by the government upon the privacy of the individual, which the Constitution forbids.
Dissenting - Mr. Justice Burton
Yes. The evidence should have been excluded because the words were unconstitutionally seized from within a protected space. Although Chin Poy entered with consent, he surreptitiously brought a concealed radio transmitter, which was the functional equivalent of agent Lee secretly entering the premises himself. The 'seizure' of the spoken words occurred where the transmitter picked them up—inside On Lee's constitutionally protected 'house.' This distinguishes the case from Goldman, where the listening device was outside the premises; here, the electronic 'ear' was unlawfully placed inside the protected area without a warrant.
Analysis:
This decision solidified the 'misplaced trust' or 'unreliable ear' doctrine, establishing that a defendant assumes the risk that a person they speak to may be a government informant reporting their conversation. It reinforced the trespass-based interpretation of the Fourth Amendment prevalent at the time, holding that electronic surveillance without a physical intrusion into a protected space is not a 'search.' This precedent significantly empowered law enforcement's use of wired informants for decades until the Court's decision in Katz v. United States (1967) shifted the Fourth Amendment analysis from trespass to a person's 'reasonable expectation of privacy.'
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