United States v. White
401 U.S. 745 (1971)
Rule of Law:
The Fourth Amendment does not protect a person's misplaced belief that a confidant will not reveal their conversation. Therefore, law enforcement does not need a warrant to use an informant equipped with a concealed transmitter to simultaneously broadcast conversations with a suspect to other agents.
Facts:
- Government agents worked with an informant, Harvey Jackson, to investigate James A. White for illegal narcotics transactions.
- On eight separate occasions between late 1965 and early 1966, Jackson engaged in conversations with White.
- During these conversations, Jackson wore a concealed radio transmitter provided by the government agents.
- Government agents monitored the radio frequency from a distance and overheard the incriminating conversations between Jackson and White as they happened.
- These monitored conversations occurred in various locations, including Jackson's home, White's home, a restaurant, and Jackson's car.
Procedural Posture:
- James A. White was tried and convicted on narcotics charges in the United States District Court (trial court).
- During the trial, the court admitted the testimony of government agents who had electronically surveilled conversations between White and an informant, who was unavailable to testify.
- White, as appellant, appealed his conviction to the U.S. Court of Appeals for the Seventh Circuit.
- The Court of Appeals, as an intermediate appellate court, reversed the conviction, holding that the agents' testimony was inadmissible under its interpretation of Katz v. United States.
- The United States, as petitioner, successfully sought a writ of certiorari from the U.S. Supreme Court.
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Issue:
Does the Fourth Amendment bar from evidence the testimony of government agents who, without a warrant, overheard conversations between a defendant and an informant by monitoring a radio transmitter secretly worn by the informant?
Opinions:
Majority - Justice White
No. The Fourth Amendment does not bar the testimony of the agents. A defendant does not have a constitutionally justifiable and protected expectation of privacy in a conversation with a person who turns out to be a government informant. The law permits authorities to use the testimony of associates who turn to the police, and there is no constitutional difference between an informant who later relays a conversation from memory and one who simultaneously transmits it to other agents. By confiding in another person, an individual assumes the risk that their confidant might be reporting to the police, and this risk is not substantially different whether the informant is unequipped or 'wired for sound.' A simultaneously transmitted or recorded version of a conversation is often more accurate than unaided memory, and the Fourth Amendment does not provide a privilege against a more accurate version of events.
Concurring - Justice Brennan
Agrees with the judgment of reversal only. While he believes both On Lee v. United States and Lopez v. United States are no longer good law and that a warrant should be required for this type of surveillance, he concurs in the result because the events at issue occurred before Katz v. United States was decided. Under the Court's ruling in Desist v. United States, the principles of Katz are not retroactive and therefore do not apply to this case.
Dissenting - Justice Douglas
Yes. The Fourth Amendment should bar this testimony. Electronic surveillance is a profound invasion of privacy that is fundamentally different from traditional eavesdropping and should be strictly controlled by the warrant requirement established in Berger and Katz. Allowing uncontrolled participant monitoring threatens free discourse and moves society toward a police state where citizens must live in fear that every word they speak may be transmitted and recorded. The precedents of On Lee and Lopez are from a discredited era of trespass-focused jurisprudence and should not be revived.
Dissenting - Justice Harlan
Yes. The Fourth Amendment should bar this testimony. The foundations of On Lee have been destroyed by subsequent Fourth Amendment jurisprudence that emphasizes privacy over property concepts and requires warrants for significant intrusions. There is a crucial difference between the risk that a confidant may later 'tattle' and the risk of a 'surreptitious third ear' listening in contemporaneously. Uncontrolled third-party bugging undermines the sense of security and spontaneity in private discourse that is essential in a free society, and it subjects every citizen, not just wrongdoers, to the risk of being monitored. Interposing a warrant requirement is necessary to protect the privacy of all members of society.
Dissenting - Justice Marshall
Yes. The Fourth Amendment should bar this testimony. He agrees with the reasoning of Justices Douglas and Harlan that On Lee is no longer viable in light of the principles established in Katz v. United States. Therefore, the warrant requirement should apply to the investigatory activity in this case.
Analysis:
This decision significantly limited the scope of the 'reasonable expectation of privacy' doctrine established in Katz v. United States. By reaffirming the 'assumption of risk' principle from cases like Hoffa, the Court created a major exception to the warrant requirement for participant monitoring. It established that what one voluntarily reveals to another person is not protected by the Fourth Amendment, even if that person is secretly broadcasting the conversation to the government. This ruling solidified a crucial distinction between non-consensual third-party eavesdropping (which requires a warrant) and consensual one-party monitoring (which does not), providing law enforcement with a powerful investigative tool.
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