United States v. White – Oral Reargument – October 20, 1970

Media for United States v. White

Audio Transcription for Oral Argument – November 10, 1969 in United States v. White

Audio Transcription for Oral Reargument – October 20, 1970 in United States v. White

Warren E. Burger:

The next case for argument is No. 13, United States against White.

You may proceed whenever you are ready Mr. Wilson.

Will R. Wilson:

May it please the Court.

This is a reargument, our second argument of this case, therefore, I am going to assume that the Court is somewhat familiar with the case and I point out that it involves a criminal conviction for the sale of heroin.

The principal law point center in the application of the Fourth Amendment to the investigatory process which was an overhearing by radio without warrant.

There are other issues.

The first issue that the defendant stresses is whether the informant who made the purchase gave his consent to being equipped or wired with a radio for the purpose of transmitting the interview.

The second issue is whether there were, in this investigatory process a search and seizure which required a warrant where no warrant was issued, therefore go to the admissibility of the evidence obtained.

The third issue concerns the trial procedure where the informant or purchaser did not himself testify and the case was made exclusively from the testimony of the investigatory agents who observed the transaction.

The fourth issue is the retroactivity of the Katz case under Desist.

Now to speak briefly to the consent of the informant or the purchaser or the agent, the government’s position is that the whole course of conduct establishes an overwhelming basis for the consent of the informant to have a radio placed on him and to go through with the transaction.

Warren E. Burger:

This was a pocket radio of some kind?

Will R. Wilson:

It was called the Kel radio.

Warren E. Burger:

It’s a transmitter?

Will R. Wilson:

Transmitter and it’s put on the chest under the clothing so as to record — I mean to pick up a conversation.

Warren E. Burger:

And then that conversation is carried outside the building and recorded in the – somewhere else?

Will R. Wilson:

Yes, in this situation most of the interviews have occurred in the home of the agent and the informant and the two of the government agents were stationed across the street, it will transmit for a mile or so.

Warren E. Burger:

Presumably, they were sitting in the car with — where they were listening to it?

Will R. Wilson:

I believe it was the car or another, it was something — it was across the street from where the thing occurred.

Now going to the consent of the informant who — part of the procedure, he met the agents at one place where they searched him to determine that he was not — he had no narcotics and all of these informants are themselves addicts that are used by the investigatory body to make the purchase.

The search team for narcotics found that he had not on him, put the radio on him, gave him money and then went with him to his home where one of the informants hid in a closet in the kitchen of the — I mean, one of the government agents hid in a closet of the kitchen and the other two were across the street.

There were four such meetings over a period of roughly 30 days in addition to a telephone conversation that was overheard, and two conversations on the car and one in a restaurant; some 8 or 9 transactions over a period of 30 days and our position is that any objective viewing of this course of conduct would establish without question that the informant did consent to the procedure and did cooperate with it in the sense that consent is an element in a consensual overhearing.

The informant’s name was Harvey Jackson.

He called him on the telephone.

In addition to that he took delivery of several — deliveries of heroin which he in turn, turned over to the government agents and he accepted from the government agents $1,000, $1,350 and $1,300 which he in turn paid over at one time or another for the purchase of narcotics.

We say that this whole course of conduct establishes that the informant, Harvey Jackson, did consent in the sense that is of material to the Fourth Amendment issue.

The defendant himself in his arguments, attacks or raises questions about the motivation of the informant for consenting and we say that, that’s wholly immaterial as to why he did it, but now getting to the analysis of the facts, the law point centered around the Fourth, Fifth, and Sixth Amendment questions, and I want to give you — take the set of facts, typical set of facts and go through them and analyzing against the contentions of those amendments.

Harvey Jackson met three government agents at 57th and Outer Drive, where the searched him, installed a radio, gave him the money and the group together went to Harvey Jackson’s home.

One of the government agents, hid in a closet with the door cracked open where he could see and hear the transaction that was about to take place.

Two of them went across the street.

Will R. Wilson:

The defendant White came in the back door, came into the kitchen of the government informant.

They sat down together.

There was a commercial transaction, that is, an offer and acceptance, a delivery of the merchandise, and a payment for it.

Then White, the defendant got up and left and after that Jackson turned the narcotics over to the government agent who was in the closet.

Now there is no Fifth Amendment problem in this, because this was the event, this was the crime itself and there is no confession or admission involved — there is nothing that came from the lips of the defendant referring to past events.

So there can’t be a question of him testifying against himself in this question, because none of the proof involved the introduction of any statements by the defendant with reference to a past event.

All of them are to a current event which is a commercial transaction of the crime itself.

There is no Sixth Amendment question involved in this because he was not under arrest, at anytime any of the statements were made.

There was nothing he said after arrest that was introduced in evidence and so there is no question about him being entitled to counsel or to be furnished counsel or anything like that.

So the only constitutional question as I see it that could be involved are the questions of the Fourth Amendment, and thus was this an unreasonable search and seizure without a warrant?

Now first taking the factual situation, the narcotics themselves, the existence of the narcotics, White sold the narcotics to Jackson, the government’s man and voluntarily delivered it to the government agent in his own kitchen, generally, or in his own automobile in other situation.

After White parted with both the title and possessions of the narcotics, he had no legal rights in those narcotics at all, even as an illegal transaction.

Jackson could do anything he wanted to with those narcotics.

He could flush them down the toilet, throw them out of the window or give them to a government agent and it was none of White’s business what Jackson did with those narcotics.

So, there was no seizure of the narcotics.

They were voluntarily delivered to the government by the man who’d bought them, and I don’t see that there could be any question about there being, needed a warrant to get the possession of the narcotics come out of the situation.

Now let’s pass to the agent in the closet.

His testimony was verbal.

He was put on by direct examination, by cross examination.

When defendant White went to another man’s house for a commercial transaction, he had no legal right to say who was present or not present.

The man who owned the house had the right to say that.

And so consequently, he had no legal right to an expectation of privacy that there wouldn’t be anybody else in his customer’s house.

The customer had a right to bring anybody he wanted to in his house, and he had a right to hide him in the closet if he wanted to.

There are many cases that hold that.

To hold it otherwise would be to make the event itself unprovable with direct evidence.

And there wasn’t any difference between a witness sitting in a closet who eyeballs this transaction and sees and hears the transaction, and then testifies to it later, then a witness standing on the corner, who sees it next to him and testifies about it and that’s not a search and seizure problem.

And so there is no question of there being any necessity for a warrant to introduce the testimony of the eyeball witness to the transaction.

Now, let’s pass to the agents across the street which is really the arguable situation here, that were listening in on the radio by the consent and invitation of Harvey Jackson.

Now this is not an On Lee situation where the government used an old friend after indictment of the defendant to extract an admission or confession of a past event with the agents listening in by radio.

That’s not this situation.

Will R. Wilson:

Here the agents were listening to event itself happen, to the crime being committed in the consummation of a commercial transaction as barred below.

The commission of the crime itself is not protected against direct proof by any legal expectation of privacy and I think that’s a fundamental statement.

You cannot go into the commission of a crime with the expectation of privacy that you won’t be observed or the proof won’t be offered.

Consider a bank robbery situation, where the bank lobby is rigged with the secret camera and secret radio and secret recorder to obtain good proof of the happening of the bank robbery.

Does this require a search warrant, obviously not.

It would be wholly impractical to require the bank to get a search warrant each day of its operation and there they might have a robbery that day and there would be no proper cause and lots of other things.

But the use of electronics to record the happening of the crime in a bank robbery is not a search and seizure situation requiring a warrant.

Does the bank robber have any legal expectation of privacy which shields him from proof of the event itself, by any direct evidence, either electronically recorded or otherwise, obviously not.

Does a narcotic peddler, in making his sale, delivery and collection of money, have any greater legal right to an expectation of privacy than the bank robbery, obviously not, he should not.

The gathering of the evidence of the event itself with either camera or radio or any other electronic device should not require a warrant in either situation.

The Fourth Amendment protects certain places and certain relations and certain people.

Let’s look at the relationship between Harvey Jackson and defendant White.

It was that of a buyer and seller at a commercial transaction.

It was not a confidential relationship.

It was not an old friend as in the Chana (ph) case, was not a lawyer-client, not a doctor-patient, not a priest-penitent, not a husband-wife, it was not a relationship that would be protected in the sense of a right of expectation of privacy out of the relationship, so that leaving aside the place altogether, the Fourth Amendment wouldn’t attach to that relationship of a commercial transaction which is it by law illegal.

Potter Stewart:

But now — that was all true in the Katz case.

There was no — none of the recognized relationships of confidentiality.

He was a gambler and the man was only, he was placing bets and that too was of the commercial — criminal commercial transaction itself, was it not?

Will R. Wilson:

That’s correct, Your Honor.

Potter Stewart:

Katz was using the telephone to place the bets in Florida?

Will R. Wilson:

As I remember, he went into public phone-booth and he shut the door.

Now, I feel like that the Katz case is not in point here for the reason that when he went in that phone-booth and paid his money for the phone call and shut the door, he had a right of expectation of privacy.

Now that’s not our situation in this case.

In the Katz case had he, for instance, not gone, had it been one of these phones just out in the open and he got to the phone out in the open and made his call and bid an FBI agent stand beside him, he wouldn’t have been protected against the privacy of that because he didn’t expect to get any privacy.

He expected to get his privacy from the privacy of that phone-booth.

Potter Stewart:

Oh!

In this case we have a home, both the defendant’s home and the informer’s home and an automobile and a restaurant, those are the four —

Will R. Wilson:

Yes sir, that’s it.

I will come to the telephone in a minute which is the most difficult problem of our brief here.

Byron R. White:

But in the Katz case, the defendant didn’t take anybody in the phone-booth with him, did he?

Will R. Wilson:

No, sir.

Byron R. White:

Here he took — he always had somebody around?

Will R. Wilson:

And he had, he took the man with him in the phone-booth and man did not electronically listened in.

He simply held his ear up near the receiver, while Katz was – while the informer was talking to the defendant.

Byron R. White:

Yeah, but the defendant there in Katz didn’t know anybody (Inaudible)

Will R. Wilson:

He did not.

Byron R. White:

Take somebody to the phone-booth or —

Will R. Wilson:

The Katz – the essential difference is Katz is not really a consensual case, there wasn’t any consent though there at all and this is a consensual case and the real —

Potter Stewart:

I know that’s — I am very aware that important evidence but so far as electronic monitoring of the criminal offense itself, that was true in Katz, isn’t it?

Will R. Wilson:

That’s — and that’s true in our —

Potter Stewart:

The actual placing of the bets.

Will R. Wilson:

Yes, sir.

Potter Stewart:

Not a confession of something that have happened in the past?

Will R. Wilson:

That’s right, that’s right.

Perhaps my statement was little too broad on that.

Hugo L. Black:

The law was violated in secret?

Will R. Wilson:

Yes sir and the man who was overheard, was in a place where he had a right of expectation of privacy under the Katz decision.

Our statement about electronic was a little too broad on that scope.

Now let’s come to the telephone conversation, where the Court will recall, Jackson, the government informant went to the telephone and called the defendant White for the purpose of making his date to pay some money.

And he took with him a government agent who went into the phone-booth with him and listened by holding his ear up close to the telephone and he listened to Jackson to the end of the conversation with the consent of Jackson.

Now that gets closer to the Fourth Amendment problem in my judgment than anything else in the case, at this juncture.

But again, it’s a consent case and you should take the Rathbun case which you remember is the telephone extension case, where the man was listening on an extension of the telephone, instead of listening to the very telephone itself.

It was held that, that was not a warrant situation.

And we see really little difference in this case and the Rathbun case.

Again, I point out that what the agent listened to was not an admission or confession and so there is no Fifth or Sixth Amendment and only a Fourth Amendment problem in there.

It was not a wire tap and it was not an uninvited ear because he was invited by one party to the conversation.

And we see really no difference between when you get to looking at it, between that instant in the telephone booth and the instant of the radio.

Now there was a car, I believe were two cars and I think they are substantially the same situation as the others.

The next is defendant White’s home, which — where the agent went by himself, but equipped with the radio where government officers could listen to the conversation in defendant White’s home, but again we say that the Lewis case, squarely holds that there is no invasion of the privacy of the home when defendant converts his home to a commercial use by selling narcotics, that’s the square holding of the Lewis case and secondly, you have got the consent element as far as electronics are concerned.

And the Lopez case supports a consensual recording and I see really no difference between a consensual recording and a consensual radio which broadcasts somebody else to either overhear or record.

Will R. Wilson:

So in summation of this point, we say there was no violation of a confidential relationship to which the Fourth Amendment could attach and there was no violation of a protected place to which a Fourth Amendment could attach in all of these situations.

Byron R. White:

Why is all this relevant at all — why is the Katz case irrelevant?

Will R. Wilson:

Well it was — the circuit court reversed on the Katz case.

Byron R. White:

I know but how about it’s retroactivity?

Will R. Wilson:

Oh!

Well, that point is there and we urge it — I would urge the court not to decide the case on retroactivity.

The importance of law points.

Byron R. White:

And we’ve already decide this?

Hugo L. Black:

Haven’t we already decided that the Katz is not retroactive?

Will R. Wilson:

Well, they contend not.

Hugo L. Black:

Right, but that we have not so —

Byron R. White:

Well, how do you read Desist?

Will R. Wilson:

I would read Desist as cutting off everything back of the day on which Desist, I mean on which Katz came down.

Katz, in effect overruled two constitutional decisions.

They have quite an argument on that which I have —

Byron R. White:

Well in order to get to the Katz’s point, we have to overrule the Desist, don’t we?

Will R. Wilson:

I don’t know which way you take the points.

I suppose, you could decide the case either way on either set of points.

Byron R. White:

Oh, I don’t know.

Will R. Wilson:

If there was no need for a warrant, you don’t get to Desist.

I don’t know it’s — now I want to point out on this account that the government has pending here some 22 cases, pending in this Court involving this type of point, one way or another, this overhearing point, and very close to the — in one way or another very close to the point being argued here on the Fourth Amendment.

And due to the points of law enforcement of getting this decided, we are not — while we urge Desist point, we would —

William J. Brennan, Jr.:

Are there any other cases here Mr. Attorney General, post Katz’s case?

Will R. Wilson:

I am sorry, no I am not —

Byron R. White:

They are all pre Katz’s case, is that right?

Will R. Wilson:

I think that’s correct.

Byron R. White:

And hos do they — and were any of them decided after Desist in the Court of Appeals?

Will R. Wilson:

No —

Byron R. White:

You mean, the Court of Appeals have decided that Katz is retroactive?

Will R. Wilson:

What we have is somewhat of analysis of the 22 cases here and with the Court’s permission I can make an analysis, plenty support of it.

Will R. Wilson:

On that I don’t have any information.

Isn’t it true that at the time that Court of Appeals in this case decided as it did, Desist did not come down?

Will R. Wilson:

Yes, sir, this was before Desist.

So they didn’t have any retroactivity questions?

Will R. Wilson:

No, they did not.

To prior decision of this Court?

Will R. Wilson:

That’s right.

The third question involved is that the informant did not testify at the trial.

This was raised and this problem was discussed, and there was dissent by Judge Warren on one of these cases and has been brought up before.

But our position on that is the question of the tactics of the trial and the use of the witnesses is not a constitutional question, that the necessity of obtaining a warrant and its constitutionality must be determined at the time of the search.

And you don’t know then whether or not who is going to testify, whether there’d be any trial at all.

And so we say that, that this maybe some other type of law problem, but the question of whether the witness is used isn’t — it can’t be a factor in determining constitutionality of the search and the necessity for a warrant.

Thanks.

Warren E. Burger:

Thank you, Attorney General.

Mr. Boeger.

John L. Boeger:

Mr. Chief Justice, may it please the Court.

The issue here is not just the legality of a search and seizure.

The issue, of course, is combination of an illegal search and seizure and then the use of that evidence in a federal criminal trial.

Warren E. Burger:

Where is the — would you spell out for me precisely where do you think the search is and where is the seizure on facts in this case?

John L. Boeger:

Well, this would be — while the – oh, let’s take the situation of the informant.

Warren E. Burger:

Say the man in the closet first, that the man who is sitting in the closet listening with his ears, not aided by any electronic devices?

John L. Boeger:

Of course, I think he seizes words in effect.

Now, whether that is an unreasonable search and seizure, that’s a different question than what’s involved in the electronic eavesdropping cases, but I mean, he actually has the words.

Warren E. Burger:

Suppose he had been just a casual visitor drinking beer with the two of them and down until the United States Attorney or the treasury agents, all about this, do you think he also would have been guilty of seizing, if you put it seizing these words?

John L. Boeger:

Yes, again it’s a question of whether or not it’s unreasonable, but I think when someone looks with their eyes at something in plain view, that’s a seizure and then goes over and picks up the material, that’s a seizure.

Of course, it’s a question of whether seizing something in plain view is an unreasonable search and seizure.

Potter Stewart:

You don’t need to go that far in this case, do you?

John L. Boeger:

No, not in this case.

And —

Potter Stewart:

You are not — there is no real issue about the man in the closet, is there in this case?

John L. Boeger:

No, we haven’t argued that point.

Potter Stewart:

The issue is about the electronic — the radio transmitter, is that true?

John L. Boeger:

That’s the only – as I understand it, this is the only ruling by the Court of Appeals and, of course, the only thing raised by the government in the petition for cert, and of course it’s the only thing that we have raised.

Warren E. Burger:

Well, let’s move on to each of them one at a time and help me if you make a distinction.

How about then the occasion when they were in Jackson’s home?

Jackson had the electronic transmitter somewhere on his person and it transmitted out.

Would you tell us what is the search and what is the seizure and then third, what’s unreasonable about it?

Those would be three issues, wouldn’t they?

John L. Boeger:

I do not think there is a meaningful distinction between whether the overhearing occurred in the informant’s home or whether it occurred in the defendant’s home.

I think the social interest and the policy regions behind the Fourth Amendment still requires and should require that there’d be judicial control whenever an individual has an electronic device, listening device on his person and then engages someone else in conversation.

Hugo L. Black:

You put your emphasis on social interest and the policies behind rather in the language in that which you think of —

John L. Boeger:

Of course the language of the Fourth Amendment —

Hugo L. Black:

It could have several answers that will affect here?

John L. Boeger:

It has — that is the important thing.

Of course, our cases aren’t just cut and dried as others and therefore — for example, its my contention which actually doesn’t have to be made in this case that actually the government obtaining warrants before they electronically eavesdrop, doesn’t necessarily mean that this electronic surveillance should be permitted, but this Court has indicated —

Hugo L. Black:

You say it’s eavesdropping?

John L. Boeger:

Electronic eavesdropping.

Of course, this Court has indicated and Osborn, the Berger case and the Katz case, that if we are going to allow the search and seizure that shouldn’t be done without a warrant, I think there are good reasons for not permitting the electronic surveillance at all even with the warrant.

But apparent —

Hugo L. Black:

Do you need a constitutional reason or just good reason in your judgment?

John L. Boeger:

I think there is good constitutional reasons based upon the holding of this Court many years ago in the Boyd case.

In Boyd, this Court held that the government could not subpoena private papers of the individual.

The Court treated the case as a criminal case, I believe it was a custom’s violation forfeiture case.

The court held that the government couldn’t even subpoena through judicial processes, private papers.

Now the only distinction between that and the electronic eavesdropping is that in one case the individual put his thoughts down on the paper whereas here in the White case, the individual spoke his thoughts.

Byron R. White:

Well what — would you suppose that the informer himself who was been invited into the defendant’s home and said something to him and records it on the informer’s brain and may be informer testify and there is no electronics involved?

John L. Boeger:

Of course, that’s what this Court held in the Hoffa case.

Byron R. White:

Wouldn’t your principle really reach that?

John L. Boeger:

In my opinion, it isn’t but I think —

Byron R. White:

Isn’t that really the heart of the matter whether the government may use an informer or —

John L. Boeger:

No, because a person maybe and this Court has held in —

Byron R. White:

But the real expectation is that this fellow was a friend, that’s why he is willing to speak to him and deal with him?

John L. Boeger:

And I will accept that he takes a risk that this person might repeat what he said.

Byron R. White:

You mean it’s not an invasion of his house, if the government sends an informer in to speak —

John L. Boeger:

I think it is, but apparently this Court ruled otherwise in Hoffa.

Byron R. White:

You did say that you accepted that.

John L. Boeger:

And Lewis.

Byron R. White:

You just said I thought — you say it isn’t a violation of Fourth Amendment for the informer to enter the defendant’s house or not?

John L. Boeger:

I think it is, but I think the Court has held otherwise in Hoffa —

Byron R. White:

Yeah, but doesn’t your position, isn’t that rather critically your position here?

John L. Boeger:

No, I don’t think so because I think the electronic surveillance is then an addition to the what intrusions are already been made.

Byron R. White:

So the defendant’s — the government does invade his privacy by sending the informer in the house.

It isn’t until he records something on a receiver or transmits it, that the violation —

John L. Boeger:

For purposes of this case I’ll concede that.

Byron R. White:

Even though and you would say that if this recorder isn’t working and nobody hears anything, even though he is using it, he can go out to testify in Court too is what I gather?

John L. Boeger:

Right and of course, anytime there is a Fourth Amendment violation, you still have to prove — show taint.

Government in it’s right ironically takes a possession that electronic surveillance is very necessary in the fight against crime and in federal and state law enforcement, but the ironic part about it when you start examining cases where, the government has had to admit that the electronic surveillance was illegal.

Then when this Court has ordered hearings in lower courts to the determine taint, it always ends up for almost, while a large percentage of the time, they have never use the electronic surveillance and this is even in situations where defendants have been overheard, discussing the case, discussing facts concerning the allegations and the indictment.

Hugo L. Black:

Do you think that you could prevail in this case without getting to Desist, as Mr. Justice White first asked you?

John L. Boeger:

Yes, Your Honor.

As I understand this Court’s rulings and Desist, it was that Katz is prospective as to — I don’t know — things that Katz departed from in previous holdings.

I don’t think the Seventh Circuit’s holdings, of course, the Seventh Circuit found in its en banc opinion that this was a Fourth Amendment violation regardless of whether they considered Katz.

Now, it’s pretty difficult, but maybe this case needs to be — we turn back the hands of time and have the Court consider this case as the law was before Katz.

William J. Brennan, Jr.:

You mean that this argument, without Katz you could prevail despite On Lee and Lopez?

John L. Boeger:

Yes.

And of course, the government relies on Hoffa and Lewis and they don’t want us to use Katz, but Hoffa and Lewis were decided before eavesdropping in this case.

Also at the time, of course, that the Seventh Circuit rendered it’s opinion, Desist had been handed down by this Court.

Therefore, I think more properly Linkletter should apply in this situation.

And Linkletter would apply Katz because the White case was on direct appeal at the time Katz was decided.

This isn’t a 2255 situation coming up years later.

John L. Boeger:

This is something that was objected to a trial and taken on up thorough the appellate process.

We submit that this Court should not give it’s judicial blessing to uncontrolled electronic eavesdropping by the government.

No where in this brief does the government suggest a reason why they have to electronically eavesdrop on conservations without some judicial controls.

Certainly, in this case it went on for many days and currently there is no argument that a judge wasn’t available which sometimes happens on mid-night searches in narcotics cases.

But if this Court should reverse this case, it’s going to permit the government to electronically eavesdrop on conversations that the speaker thinks are private, that they are not going to be electronically recorded or transmitted to others.

Of course, since the government argues that they should be able to do this, not only without a warrant, but without even probable cause, but on rumor alone I think the chances of abuse are enormous.

It not only, in our opinion, would be a violation of the victim’s Fourth Amendment rights, but it would be a suppression of First Amendment rights of all citizens in the United States.

Thurgood Marshall:

If suppose the informant– excuse me —

Hugo L. Black:

You mean annoying the constitutional [Inaudible] is that what you mean?

John L. Boeger:

In other words —

Hugo L. Black:

I am not talking about the Linkletter.

Your argument is [Inaudible] is unconstitutional to let anybody testify against the defendant who heard him by eavesdropping?

John L. Boeger:

That is my opinion, I do think that the Court —

Hugo L. Black:

[Voice Overlap] corrected, isn’t it?

John L. Boeger:

Well, I think this Court has indicated in Katz and then Osborn, Berger that they will permit it if there is a judicial control, something like a warrant.

Now there have been arguments made that it might be impossible to draft a statute in such a way to get away from a general search for evidence.

I guess, we’ll have to wait and see if and when a case ever comes up on this new statute.

Warren E. Burger:

Well, are you taking the position — Go ahead.

Thurgood Marshall:

Suppose the informer had a concealed tape recorder, is that eavesdropping?

John L. Boeger:

If the informant has a recorder —

Thurgood Marshall:

Concealed in the kitchen, which recorded the whole sale of the narcotics, would the tape on that recorder be any good?

John L. Boeger:

If they, assuming that they put it in the evidence at the trial.

Thurgood Marshall:

Why it would be inadmissible?

John L. Boeger:

Because, again I think the Fourth Amendment requires that before this type of evidence be permitted, that they obtain a warrant.

And of course, in this case you have the additional problem of the informant not even testifying trial and this is significant for two reasons.

First, of course, you are unable to cross examine the informant, but secondly, evidence was introduced in this case which was hearsay.

In other words, the agents overheard conversations made by the defendant and the informant.

The agent testified to what he heard the informant say.

Now that’s clearly hearsay.

Certainly, there is no way that you could cross examine the informant.

Thurgood Marshall:

But he do agree that the recording wouldn’t be hearsay?

John L. Boeger:

It’s not hearsay.

I just think the Fourth Amendment requires a warrant in that situation.

Thurgood Marshall:

And it also requires a warrant for any overhearing?

John L. Boeger:

Electronic overhearing?

Thurgood Marshall:

Any type?

John L. Boeger:

No, not —

Thurgood Marshall:

Well, you keep saying eavesdropping.

John L. Boeger:

Electronic eavesdropping.

Thurgood Marshall:

Well I mean, neither the informant nor the device or it was underneath that was right there in front of it when eavesdropping, you get another name?

John L. Boeger:

No and that’s a situation of course —

Thurgood Marshall:

The Electronic surveillance —

John L. Boeger:

Electronic surveillance —

Thurgood Marshall:

So you are getting back to Mr. Justice White’s point.

You just said is any electronic surveillance, any other evidence received from that is automatically inadmissible?

John L. Boeger:

Unless there is a warrant.

Hugo L. Black:

Well, what you have the — I still don’t understand, how you are sustaining your position now [Inaudible] Katz and in order to rest it on the Katz —

John L. Boeger:

Well for one thing —

Hugo L. Black:

Katz surveillance, Katz says in Fourth Amendment, no concept of the Fourth Amendment protected is the places is not there anymore.

What the Fourth Amendment is to think that the people, not persons and from that, I would suppose you would argue that a person has reasonable expectation irrespective of its home, office that it’s not going to be bumped, isn’t that — that your argument?

John L. Boeger:

Yes Your Honor.

Hugo L. Black:

And how could you make a departure from Katz and how could you make without getting rid of this?

John L. Boeger:

I think if all the cases, all the decisions of this Court run out of Katz or rather that there is no case directly in point with this case, therefore, the Seventh Circuit’s opinion is not contrary to any previous decision of this case.

For that reason, the appellee, the respondent to this case does not need Katz in order to prevail.

We have another, I suppose the closest case is of course the On Lee case which — I do not know if the government is arguing that On Lee is still good law or whether they are not, but certainly On Lee was consensual —

The underlying argument is the Katz and not On Lee?

John L. Boeger:

Well, maybe it did and maybe it did not.

I do know that Katz says that overruled Goldman and the Olmstead case.

Mr. Justice Brennan in his dissent in Lopez said that Goldman, Olmstead and On Lee should be overruled.

Well, I think it is certainly clear that Katz overruled Olmstead and Goldman.

John L. Boeger:

It did not specifically state the opinion that they are overruling On Lee.

I suppose this case presents that issue clearly.

Warren E. Burger:

As I understand you are saying that all eavesdropping violates the Fourth Amendment?

John L. Boeger:

Electronic eavesdropping, Your Honor?

Warren E. Burger:

What?

John L. Boeger:

I mean, you mean —

Hugo L. Black:

I thought you said only eavesdropping, why should it be different if you say electronic but not electronic?

John L. Boeger:

My personal opinion is that the use of informants and certainly use of the informants quite often entails coercion on that person, addicts.

I think better practice would be that there be a warrant before you take someone in to go in and elicit statement from someone.

Hugo L. Black:

The man has been kidnapped, taken out into the woods somewhere else secretly, only chance in the world you had to convict him, the only possibility bars that some eavesdropping, it’s very difficult to commit the crime and so on.

Do you say that was barred?

John L. Boeger:

No, but certainly that’s not an informant type of situation —

Hugo L. Black:

But I thought you said eavesdropping, I am talking about eavesdropping.

John L. Boeger:

No, I am not taking the position, I am not taking the position that all eavesdropping — just all eavesdropping requires a warrant.

Hugo L. Black:

The electronic eavesdropping?

John L. Boeger:

Electronic eavesdropping.

Hugo L. Black:

Do you think the constitution written back at the time that it was written provided that the electronic eavesdropping should be barred, but that could be free of any other kind of eavesdropping to be introduced?

John L. Boeger:

Well, of course, back then when it was written, they didn’t, I guess, have such things as electronic bugs and that might be the reason why it’s not specifically stated in the Fourth Amendment.

Of course, there had been some dispute in the past —

Hugo L. Black:

They didn’t have it in there at time they wrote the Fourth Amendment?

John L. Boeger:

That’s right, there has actually been some dispute.

Hugo L. Black:

But for some reason — but for some unknown reason, the same language that’s used all the time, been there all the time, then it was not thought to cover any electronic eavesdropping, but now it does but leaves other eavesdropping to be used as evidence?

John L. Boeger:

This apparently is what this Court has held certainly in —

Hugo L. Black:

Well, I am afraid you are right about that?

John L. Boeger:

Now, we submit that whether or not there was a voluntary government agent, in other words, whether or not the informant consented to the placement of the bug on his person is a legally significant issue.

However, if this case is reversed, it will permit the government to go out, coerce people to put the bug on their person and then engage people in conversation and record what they say.

I think this would be —

(Inaudible)

John L. Boeger:

Yes, and apparently although the government says this is necessary in their fight against crime, they have been doing it for years and organized gambling are still going —

(Inaudible)

John L. Boeger:

Apparently, it is going on.

I think in the long-run that the use of coerced informant, placing the bugs on them that this is going to be close to what George Orwell wrote about in 1984 which is only 14 years away.

I think it will cause people to clam up, they aren’t going to cooperate with the police, probably people don’t cooperate with the police as much now as they used to.

They are afraid of the police.

They are going to be afraid that everyone they are talking to is bugged and I am–

Hugo L. Black:

They’d be afraid to commit any crime, afraid that policeman tell on him?

John L. Boeger:

That’s I think we all want to go off the record every once in a while.

Warren E. Burger:

Have you finished your presentation-in-chief, Mr. Boeger?

You are saving your rest of your time for rebuttal?

John L. Boeger:

No, I represent the respondent.

I just have one —

Warren E. Burger:

You have how much time, let me take a look at the note here; you have got six minutes.

John L. Boeger:

Well, I just really only have one short comment, Your Honor.

Although the government is apparently stating that they are not urging that they be permitted to use this type of electronic bug to obtain statements or confessions of past events, I might point out to the Court that the effect of a reversal here might permit just that because in the Sixth Circuit, just very recently in the Hoffa case, they have taken the possession that there was no constitutional violations when the co-defendant was bugged one day prior to the return of the indictment.

Of course, that case has been submitted there now, but the government did take the possession there that there was no Fifth, Sixth, or Fourth Amendment violation.

Thank you.

Warren E. Burger:

Thank you.

Mr. Attorney General, you have seven minutes.

Will R. Wilson:

May it please the Court, just a few points in rebuttal.

One, counsel referred to some of this is being hearsay and I think that that’s not a proper classification.

Any direct testimony of the words which constitute an event is not hearsay and I don’t think there is any hearsay problem in this case at all.

Perhaps the most difficult, one of the most difficult judicial task for a Court of last resort is the balancing of values which necessarily go into close constitutional decisions.

Hugo L. Black:

Is what?

Will R. Wilson:

Is the balancing of values, which perhaps in interpreting the constitution.

In that regard, I want to point out that radio communication is increasingly a part of police work and that’s particularly true in these narcotics cases.

A typical narcotics case involves undercover agent who makes contact to make a purchase, he goes to a street corner.

He is picked in a car by someone he doesn’t know, who takes him around the city and they drive for maybe sometimes several hours while they try to throw off a tail.

They then go to an apartment he didn’t know about and there he meets somebody that he never saw before and negotiates his purchase and usually, they have to send out and get the narcotics and bring it back.

And a proper working of that by the police just requires a radio communication that takes a squad from four to seven men to investigate that situation, may have to have communication coming out of the informant who is negotiating the sale.

Now —

Warren E. Burger:

I suppose sometimes, it might have a matter of more than a passing interest to the government agency to know whether one of its men was endangered too?

Will R. Wilson:

That’s exactly right, Your Honor, because this is a very dangerous business and especially for the man who is negotiating the purchase and they need that to ensure his safety.

In addition, our help and should, they need it for, to permit the proper timing of the arrest and then they also needed for, it’s very valuable in following a car.

If an informant has a radio – Kel radio on and they can follow the car at a much greater distance; they don’t have to get so close to it in order to do the tailing and it protects the potential defendant against the informant.

In this type of police work, the person, who negotiates the sale, is often an addict himself and is maybe not the most reliable person in the world.

And one of the things that the responsible officer wants to know is exactly what is happening and not just a secondhand version of it from an informant or purchaser who may not be too reliable.

And so it actually operates to help protect the defendant himself against possible —

Thurgood Marshall:

Mr. Attorney General, what about the appellee’s position that they never had an opportunity to cross-examine this man?

Will R. Wilson:

Well —

Thurgood Marshall:

Is there any explanation in the record as to why he wasn’t produced?

Will R. Wilson:

The explanation in the record is that they looked for him and couldn’t find him.

There is dispute between us as to the diligence and all of that but there is an explanation that they looked for him and couldn’t find him at the time of the trial.

We would wind up our presentation here by urging that in considering of this situation that we urge upon the Court that you take into consideration the overall demands of law enforcement in this situation and if there is to be a balancing of rights here as between the person under surveillance or under suspicion, the narcotics trail in considering his rights vis-à-vis the government, in making that case to also balancing against that the effects of a narcotic trade and I would make a special appeal for the young people of inner cities where —

Hugo L. Black:

Would that make any difference as far as the constitution of question is concerned?

Will R. Wilson:

It does not, Your Honor, except that you get to this problem of a very difficult decision of a closed case.

Warren E. Burger:

Do we govern it to a balancing until we find that there is one right under the constitution apparently on a collision course with another right?

That is to spell out some right of the public in conflict with claimed right of the individual, that’s the only time we have to get to balancing, isn’t it?

Will R. Wilson:

Well, that’s possible too and I was thinking in terms of the overall affect of law enforcement in the narcotics field and of the terrible effect upon the victims.

Warren E. Burger:

And I suppose if anyone were to suggest that a listener can’t repeat the conversation he has heard, perhaps even the First Amendment argument might be raised about that in addition on First Amendment right to be.

Will R. Wilson:

We respectfully request that the decision be reversed.

Warren E. Burger:

Thank you Mr. Attorney General.

Thank you Mr. Boeger.

The case is submitted.