United States v. White

PETITIONER:United States
RESPONDENT:James A. White
LOCATION:

DOCKET NO.: 13
DECIDED BY: Burger Court (1970-1971)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 401 US 745 (1971)
ARGUED: Nov 10, 1969
REARGUED: Oct 20, 1970
DECIDED: Apr 05, 1971

Facts of the case

A government informant, Harvey Jackson, wore a concealed radio transmitter and engaged in four conversations with defendant White at three different locations: Jackson’s house, a restaurant, and Jackson’s automobile. Government agents listened to each of the radio transmissions, thereby overhearing defendant White make self-incriminating remarks regarding his involvement in multiple narcotics transactions. Jackson was unavailable during the trial, so the prosecution offered the testimony of the agents who had conducted the electronic surveillance as evidence.

Question

Does the 4th Amendment bar from evidence the testimony of government agents relating certain conversations that occurred between a defendant and an undercover government informant, which the agents overheard while monitoring the frequency of a radio transmitter concealed on the body of that informant?

Warren E. Burger:

Number 46 United States against White.

Mr. Attorney General.

Will R. Wilson:

Mr. Chief Justice and may it please the Court.

This is a Fourth Amendment criminal case involving a conviction for the sale of heroin reversed by the Circuit Court on the Katz case.

This was a narcotic agent wired for — with a Kel radio without a search warrant.

It involved the purchase, delivery, payment and the sale of heroin.

The informer to negotiate the parties was not available to testify so the case was proved altogether out of government agents.

One of them whom hid on the closet and others heard the — some of the conversation over a Kel radio.

In all, there were four kitchen meetings in the home of the informant government agent type, one in the defendant’s home, two in the informer’s car and one in the restaurant.

The facts are that on December 9, 1965, informant Harvey Jackson met in his own kitchen the defendant White.

At that time, there was a narcotics agent hiding in a closet where he could see in here the events in the kitchen and the informant had on him a Kel radio which is a short-range radio and there was a narcotics agent in the car, a short distance away from the house listening to the conversation.

At that time, there was a delivery of one ounce of heroin.

On December the 10th, there was another such meeting at which the same setup with the — at which time the informant paid a thousand dollars and agreed to purchase some additional heroin the next day.

On December the 14th, the informant went to defendant White’s home also with a radio on him and went in and paid the defendant in his home and agreed to purchase two additional ounces, at that time a government agent was outside listening to the conversation.

On December the 16th of 1965 in the informant’s car, the informant and the defendant drove for two hours with the informant having on him a Kel radio and with agents of the narcotic bureau following the car and listening to the conversation.

In that series of events the defendant took the informant’s car and let the informant out, and met another man named Sam Minerva who gave him heroin and then he picked up the informant again.

On December the 18th, back in informant Jackson’s kitchen, at his home with Jackson and White at the table, the agent in the closet, the agent outside listening to the radio, there was paid $1,250.00 on the transaction by Jackson to White.

On December the 29th of 1965, White met the informant Jackson agreed to meet him at Lake and Royal Street in Chicago each drove his own car.

White walked up to Jackson’s car and delivered the heroin with Jackson being having on his radio and the agent is listening from some distance.

On January the 5th, in the informant Jackson’s kitchen with the same setup, White — Jackson paid White $1,300.00.

On the January the 8th, at a restaurant called the Luminar Restaurant which the defendant have some connection with, they met, discussed, again with the radio on and the narcotic agent outside the restaurant listening to the camera — conversation agreed to meet at leg in Well Street and purchased three things of heroin for $2500.00.

On January the 9th, White, the defendant drove up and stopped and stayed in Randall Street where he was met by Minerva delivering the narcotic and at that time the agents close-in and made the arrest and the case was completed.

So to recap, there were four meetings in informant kitchen. One meeting in defendant’s home, two meetings in informant’s car, one meeting at the Luminar Restaurant and addition to that, an overhearing on the telephone, the very offset of the Katz case where the informant called the defendant and permitted the agents to listen in on his end of the telephone through the same receiver.

So, let’s look first at what questions are not involved in this.

We do not have any questions of the Fifth or Sixth Amendment because this is not the overhearing of conversations about past events in the nature of admission or a confession.

This is an overhearing of the actual transaction itself and there is no recitation relied on and put in the evidence or involved here that would involve either the Fifth Amendment or Sixth Amendment questions in the sense of either testifying against himself as to past events or the right to counsel.

And that we think is fairly clear if you consider the situation involving the normal condition of bank lobby now where there is a hidden camera and frequently hidden radio or recording devices, and a bank robber comes in and triggers the camera and the camera records the actual crime itself and the recording device or radio records the words used by the bank robber in committing the crime.

I think no one would seriously contend that there was any constitutional question in the Fourth, Fifth, or Sixth involved in that situation.

Here the radio was substantially the same thing, a broadcast of the crime itself being committed.

The — White’s conversation and the words used give him an evidence were all a part of the contract and sale, a commercial transaction, a contract and sale of heroin.

Will R. Wilson:

This is not a crime of violence or any other kind of crime except a commercial transaction and it is by law made illegal.

So, the — as far as the informant’s kitchen and car is concerned, there’s no trespass because they belonged to the informant who invited the defendant White to come there and make the sale.

And the restaurant was a public place and defendant’s home was no trespassed because the defendant invited the informant to come to his home to take — to make payment for the narcotic.

All of that is pretty well governed by the Lewis case.

Now that brings us to Katz which is you all know is the bugging of a telephone booth situation.

And its discussions of the expectation of privacy which is probably the central question that the court will be concerned with in this situation.

And so we could ask ourselves what legal expectations of privacy did the lower court to defendant White when he went to defendant’s Jackson — to Jackson’s kitchen to sell narcotics.

Certainly, the law does not protect White against the other part of the transaction testified.

This is a — as I said this is a bargain and sale, a contract made partly in words, partly by the passage of money, and partly by the passage of the narcotics, the delivery of narcotic.

And whether civil or criminal either side can testify as to a contract, and either, in any type of case.

So when the parties enter into a commercial transaction that is by law made criminal.

Either party can testify so White had no expectation of privacy that the other side of his contract wouldn’t and couldn’t testify to it as he had a perfect legal right to do.

And then there is in the situation language which comes in that I think needs to be clarified somewhat and that is this coming from some of the older cases.

The question of misplaced confidences between the seller of narcotics who is selling to a government agent.

And I want to point out that this was arm’s length transaction.

This isn’t a — there wasn’t any relationship of confidence between this two people.

It’s not husband and wife, lawyer-client, or doctor-patient, a priest-penitent, anything like that.

This is a sale between strangers and an arm’s length sale.

And one of the risks that a man in the illegal business of selling narcotics takes is that some of his customers will turn to out to be government agents.

And he knows that when he goes in the business.

He runs that risk and so there isn’t any misplaced confidence in this situation.

And certainly the law does not protect White against either the fact that may turn out to be a government agent and that he may testify.

And there’s no breach of duty on the part of the informant in this situation.

Thurgood Marshall:

But the informant didn’t testify in this case?

Will R. Wilson:

No sir, he didn’t.

Thurgood Marshall:

Is it a distinction between that in regard to Lewis?

Will R. Wilson:

Yes sir, I do Mr. Justice.

In this that it gives to the policy of the question raised by the former Chief Justice in his dissent in one of this cases and that is, can the Government use the recorded or secondary testimony if you want to call it that when the informant doesn’t testify?

In this case, we could not and find the informant at that time.

And it is — it becomes then I guess a policy question as to where there the Government should or should not be able to use the testimony at that time.

Will R. Wilson:

But it’s not a constitutional question because the constitutional rights are determined as of the time of the search and not by the development of the case.

Thurgood Marshall:

I understand that you did not put in all of the conversations.

Will R. Wilson:

Mr. Justice, we all have to make a statement later which we will make.

I understood that they did put them all in but I’m not clear on that so we we’ll clear that up.

I didn’t —

Thurgood Marshall:

Well, I think there is difference if the Government picked and choose what the wanted to put in.

Will R. Wilson:

Well, —

Thurgood Marshall:

Because if the man was testifying, he’d have to testify everything.

Will R. Wilson:

No sir, he wouldn’t.

He would have —

Thurgood Marshall:

He would under cross-examination.

Will R. Wilson:

Under cross-examination but not under direct examination.

Thurgood Marshall:

Well, they’re on gross weight.

It is no possibility of cross-examination there.

Will R. Wilson:

No possibility when it’s not produced that’s correct.

Thurgood Marshall:

And there’s no way of finding out whether this informant was a paid informant or not?

Will R. Wilson:

Well, —

Thurgood Marshall:

Or what his relation was to the Government?

Will R. Wilson:

He was a — he was acting for the Government over a considerable period of time here.

Does the record show what he was paid?

Will R. Wilson:

No, sir.

Warren E. Burger:

But suppose we assume that he was paid?

Will R. Wilson:

But I can say, we might he might well —

Thurgood Marshall:

Well, if he was on the stand he would be obliged to explain all of that, wouldn’t he?

Will R. Wilson:

Yes, sir.

But you see that would —

Thurgood Marshall:

Since he couldn’t do that?

Will R. Wilson:

That would go to the court — that would go to the credibility of his testimony and we’re not — since we’re not offering him the credibility of his testimony is not an issue.

Thurgood Marshall:

Well, I see your point.

He didn’t deserve or he didn’t require to do produce the conversations, did it?

Will R. Wilson:

No, sir.

They — I’ve read the record and it was no —

If you put it less than all of the record and the records had and the recording was asked — the rest of the record was asked for, you didn’t refuse it?

Will R. Wilson:

No, sir.

We did not refuse it.

Now, as to the agent hiding in the closet I see no constitutional question on that at all.

As to the Kel radio which is the central question before the Court here.

There’s nothing sinister about a radio.

It’s — the radio is a common part of our life now used in all types of communication as good law enforcement technique.

It increased the accuracy of proving the case.

It helps detect the safety of the agent.

Now, one of the things that we’re concerned with is in this narcotic purchases, that’s a rather dangerous business for the agent.

And if he is in there and needs help, the agent listening on the outside can determine that and come in once long go at lost made under those circumstances.

It makes it better development of all aspects of the case.

Frequently, on a propose purchase of narcotics when the agent goes in to an apart where there something it turns out that he negotiates with them.

They don’t have it.

They said, they say you wait here and will send forth.

They send forth and if the agents on the outside have the intelligence that conversation they can follow the man and get his source and take him to where he is going for it.

If they don’t have that, they may arrest — I mean, make their arrest prematurely there, their raids prematurely and they do not have a smooth development of the case that they do using the Kel radio.

And as especially true in the business of following the cars, it’s difficult to follow a car in traffic.

If they do not have a radio communication in tailing the car, they have to be closer to it.

If they got a radio communication with an informant from the car, they can drop back and have a great deal more success in following the car at a distance.

It protects the defendant against falls testimony.

These narcotic agents nature things they are usually addicts, they are not perhaps the most reliable people in the world in many ways.

And this gives the Bureau of Narcotics a check and a protection on the agent himself of framing a defendant when they can listen to the conversation and hear it all.

Now taking the subject of these consensual overhearings direct, we take the flat position that a consensual overhearing where one party to a conversation consents does not involve Fourth Amendment problems.

Just recently in the case of Frazier versus Cupp which was a search and seizure case involving a duffel bag where two, I believe it was a murder case, had hidden the clothes that they wore at the time crime in a duffel bag.

And one of the defendants gave permission to the officers to search the duffel bag without a warrant.

It was held that that was illegal search and so having one of the parties having consent, the search was legal as to both of them and the close could be used in evidence against the non-consenting party in that type of search.

Well, the same thing would apply to both ends of a telephone conversation or radio conversation and having to see no difference between the overheard telephone conversations in this case and the overheard radio conversations.

Will R. Wilson:

They were, if they are legal without a warrant on the Fourth Amendment, it’s because of the consent of one of the parties of the conversation and it seems to me they are the same thing.

It’s almost the exact opposite of the situation, the Katz case where the listing device was put in on without the consent of either party and on the end of the person who was under trial.

Of course, the Court’s familiar with the Lopez case where and IRS agent went into a bribe situation.

I may say that the Government uses this Kel radios in two main situations.

In the main, one is for narcotics cases and the second is for bribery case.

And bribery is one of the central problems in Government as everybody knows.

Now, in the Lopez case, IRS agent went in with the recoding device and I personally see no difference between a recording device and a Kel radio which puts it outside for notes or recording.

And it was held there in an arm’s length transaction.

No confidential relationship between a government agent for the IRS and the taxpayer that there was no expectation of privacy in that situation.

And that bring us to On Lee, perhaps one of the earliest of these cases.

In On Lee of course has been greatly criticized and it is vulnerable criticism on the Fifth and Sixth Amendments and that is the obtaining by stealth of confession or admission after the event which is On Lee as the Court remembers, the narcotic agent went into the laundry and the agent stayed outside after the case have been made and after indictment and it raises both Fifth and Sixth Amendment problems.

It was upheld on the Fourth and my feeling is that it was correctly upheld on the Fourth.

Again, a consensual hearing is not a search and seizure situation.

The defendant has raised questions about whether this is a true consensual case based upon the proof track court found that informant Jackson did consent and we have covered that as a factual matter in extensive supplemental brief.

Now to reiterate the point raised a few minutes ago about the informant himself not testified.

Our position is that that’s not a constitutional point.

It might go to the weight of the evidence.

It might go to some search problem as best evidence but it doesn’t goes the constitutionality of the search because that must be determined as of the time of the search and not by subsequent technical developments in the trial itself.

I’d like to reserve the rest of my time.

Could I ask you a question General?

Will R. Wilson:

Yes, Your Honor.

What impact do you think destroys the decision in Desist case?

Will R. Wilson:

Well, we have Desist as a second point and we urge that — but we are very hopeful of not reaching that we can prevail on our First and Fourth Amendment point.

But we think that this case if you passed that.

Well if it is, we don’t have to reach the Fourth Amendment choice.

Will R. Wilson:

Well, that’s right.

We have in our brief though.

I don’t know intensively.

We heard that you got all the comment.

Is this same in Katz about the interactive?

Will R. Wilson:

Yes, sir.

Where do you go from there?

Will R. Wilson:

Well, we feel that this is a Katz.

All I can say is that I don’t know that I fully understand my way around all of the Desist law but if I understand it correctly, that is when the Court, I don’t see it’s what amounts in new constitutional law in the sense of overruling and accepting the position.

That as far as the officers are concerned, it would be applied only to their acts after they have full knowledge of the new law in fact and that being true we see that we think that it should apply here and especially the fact that this is such widespread device and used so throughout law enforcement and it’s been done in the belief that it was not a search warrant situation.

Do you think it’s a considerably more significance to your department as law enforcement department to know now what whatever happened in this case violated the Constitution?

Rather than simply to get this judgment affirmed on the basis of the non-retroactivity of Katz?

Will R. Wilson:

That’s correct Your Honor.

We sincerely hope that the Court can see it’s way to right on this point rather than to this point if possible because it’s one that’s vital to the daily work of law enforcement agencies and the Desist point is the matter of salvaging a case.

That’s right.

Warren E. Burger:

Mr. Boeger.

John L. Boeger:

Mr. Chief Justice, may it please the Court.

United States versus James A. White is not a case of consensual eavesdropping.

The record below and the Government’s own statement of facts and its free from the merits do not support the contention that there was consent by the informant in this case.

This issue was raised by the respondent in the Court of Appeals.

The Court of Appeals specifically stated in their en banc opinion that they did not reach the issue of consent because they did not feel that it was material.

The Government in their petition for writ of certiorari in their statement of facts stated that the informant consented.

In our brief, in our position I call to their attention the fact that the record did not support consent — voluntary consent.

Interestingly enough, in their statement of facts in their brief on the merits, there is no claim that the informant voluntarily consented.

On Friday, I received the reply brief where the Government argues that this — it would be fair for this Court to infer that the informant acted freely and voluntarily because he work for the Government for about eight days.

Of course, the first day work was when the first situation of the electronic eavesdropping took place.

The Government quotes from a District of Columbia, District Court case United States versus Sorkin.

I have no quarrel with that case.

However, the only thing that case held was that if the informant hoped that there were be leniency if he cooperated, this did not necessarily mean that he involuntarily consent it.

But the Court stated that if the Government promise leniency or if they went out and found a weak person or a vulnerable person and turned them into informants, they would restraint this use because this — the record would not support a finding or voluntary consent.

The Court went on to say that consent in type of cases should be decided just like consent in any ordinary search and seizure case.

Now, the Government’ failure or tires to excuse this failure to sustain its burden of proving consent by saying that the defense never raise the consent issue at trial.

Well, I submit that it was raised a trial and that the Court ruled because there was an objection to the evidence.

There was a motion the strike all the evidence obtained by the eavesdropping.

The Government cited a number of cases to the trial judge On Lee, Lopez case, and a number of Seventh Circuit cases.

John L. Boeger:

Every case cited was a situation where there was consent.

The trial court then just stated that we’ve been through this before and overall the motion to strike.

We submit that it’s the Government’s burden whenever they rely upon consent to sustain the lawfulness of a search and seizure but the burden is upon them to prove consent.

This Court in Bumper versus North Carolina held and I just give a short quote, “When a prosecutor seeks to rely upon consent to justify the lawfulness of a search he has the burden of proving that the consent was in fact freely and voluntarily given.

The Court further — this Court further said that acquiescence is not sufficient consent.

We’re talking about two rather different things aren’t we?

The Bumper case involve the person whose alleged Fourth Amendment rights were violated, this where a constant to an entry in the search is a very, very critical issue and one that was involved is said in that case.

This one involves the question of whether or not this person was or was not a government agent, doesn’t it, a voluntary government agent?

There’s no question here of — no questions raised here about the violation of this absent witnesses Fourth Amendment rights.

John L. Boeger:

Well, of course Bumper involved —

Here’s whether or not he was a voluntary agent of the Government.

Is that it?

John L. Boeger:

Well, Bumper course involved the lady that let the policeman.

Yes, the mother of the —

John L. Boeger:

Of course she was the defendant.

I don’t remember the facts quite clearly.

John L. Boeger:

But if I think what’s very important is that if this case would be reversed, it would allow the Government to coerce people to become informant, it would all them and give them authority to get the people to put this type above and go in and talk to anybody trying — well, just violate their privacy under the Fourth Amendment.

Warren E. Burger:

You could make that same argument about any treasury agent or narcotics agent or FBI agent and argue that he’d been threatened of being dismissed if not didn’t go in and carrying out this order.

If you can prevail on the argument you’re making now?

John L. Boeger:

Well, of course, since the informant didn’t’ testify in this case, we don’t know want happened and I think this is very important.

In other words, if the informant had testified and there had been cross-examination maybe the record would have showed that he was a voluntary agent that they didn’t go out and say, now if you don’t do this you’re going to be charged with some particular crime.

But the way the record is right now, the way the record stands, we don’t know?

Warren E. Burger:

Has this Court or any court ever said that it has to be this kind of verified consent that you’re talking about?

John L. Boeger:

The consent that this Court —

Warren E. Burger:

That you’re talking about now?

Has this Court every said in many case intimated that the consent must pass these — jump these hurdles that you’re talking about?

John L. Boeger:

In an electronic eavesdropping case?

No.

Lopez was of course an agent.

On Lee case was paid informer.

John L. Boeger:

Maybe some of the other cases, the point just wouldn’t raised.

Thurgood Marshall:

What about General Wilson’s point as where this man was voluntary or not, he did on eight separate times, put one of these things in his pocket and agreed to cooperate?

John L. Boeger:

Well, I agree that the record does sustain that and he did it and that he knew the battles on it.

Thurgood Marshall:

Well, as to your client’s right, the respondent’s rights, how are they violated by the agent’s right is being violated?

I think that’s the Government position.

John L. Boeger:

Well, I believe that’s right and —

Thurgood Marshall:

Well, can you answer it?

John L. Boeger:

Well, I think the answer is when there’s a search and seizure and the Government attempts to sustain it because of consent —

Thurgood Marshall:

Then do you think the Government —

John L. Boeger:

It’s up to them to prove it.

Thurgood Marshall:

You mean the Government had assured the respondent consented to it?

John L. Boeger:

No that the informant consented.

Thurgood Marshall:

What difference does it make?

John L. Boeger:

I think if this isn’t required of this Court in its opinions that it would give the Government authority to coerce people to become informants and bug, who knows.

Warren E. Burger:

Well, let’s assume that they are coerced informants?

What impact does that have on it if there is a faithful recording made of what transpired? Let’s take your position for a moment.

John L. Boeger:

I think that whole scale eavesdropping by the Government could probably be one of the most serious problems of this country because it could suppress First Amendment rights of all citizens not just the Fourth Amendment rights of individual defendants.

I suppose your argument on voluntariness would also go just in the event the Government just paid the informant.

No question particularly but there’s a promise of benefit or gain.

John L. Boeger:

No, I think that might be a little different situation.

Do you think in a guilty plea, rules are not only coercion but promise of benefit or game?

That destroys the voluntariness and plea doesn’t it?

John L. Boeger:

You mean if the informant is quite guilty but haven’t been sentenced yet?

No, ordinarily in a criminal case, if you are examining a plea bargain for example and if there’s some promise of benefit.

Doesn’t that have a lot to do with the voluntariness of the plea?

John L. Boeger:

Yes, and I was under the impression that the laws the way it stood now that if a person enter a plea of guilty for the reason that he was promised a certain sentence that this would be involuntary.

Well, what about the informant.

If the Government pays him enough, he’ll do anything?

John L. Boeger:

I think it might fall down to that.

That’s what I thought.

Warren E. Burger:

Does it in any way affect the reliability of the evidence that you can suggest?

John L. Boeger:

In this case, Your Honor, I think of course the Government’s reply brief on what an informant, why he might be motivated to carry device, I think are there may be cases in which the informant was pressured to such an extent as deprive him of his freewill.

The failure of informant to be on that witness stand and the failure of the respondent, defense counsel to cross-examine that person is why we have this consent problem before the Court right now.

So I think that’s a reliability problem.

And I think the Court should not do away with the right if cross-examination.

I like to bring out one — what I think is probably the most important think of the entire case.

The Government states, it gives a number of reason why electronic eavesdropping is important to them.

It’s protection for secret agents number of things.

Well, of course they could have protection for their agents and still not introduce the evidence at the trial.

And of course if they don’t and haven’t used the evidence in any way then it didn’t taint the conviction and so there’s no problem.

But nowhere —

If that was there evidence in any way, they probably won’t get a conviction?

John L. Boeger:

Well, that’s possible if they don’t have the evidence.

Well, here they have evidence and they did use it.

John L. Boeger:

They did use its —

It is whether or not it was —

John L. Boeger:

And of course it tainted the conviction.

— constitutionally valid use?

John L. Boeger:

I don’t think there is any doubt that when they — if the evidence was unlawfully obtained, then of course, I think that does taint a conviction of its use at all I think under the Silverthorne Lumber case.

Tell me Mr. Boeger, if this informant had appeared, had been cross-examined, would you concede then that this evidence was properly admitted?

John L. Boeger:

Oh!

Absolutely not, I think anytime the Government uses an electronic device that they must get a warrant.

The Government wants all people in the United States to trust their discretion, agents all over the county, their discretion on who to bug, when to bug, why to bug them, they even say in their brief that they won’t be able to do it without probable cause so they do it on rumor.

They give no reason on their brief why they have to do this without getting judicial authority.

There has to be and there should be some judicial control over host sale eavesdropping.

Thurgood Marshall:

What about Katz?

John L. Boeger:

Your Honor?

Thurgood Marshall:

What about Katz?

Are you talking about today?

Doesn’t Katz take care of your problem in that —

John L. Boeger:

There’s no doubt I think that Katz takes care of my problem.

I think —

How do you mean?

Katz means there has to be judicial authorization in this situation?

John L. Boeger:

Yes.

Do you think Katz overrule Lopez and On Lee?

That’s what you’re saying I take it.

John L. Boeger:

I think Katz overrules On Lee but it’s factually a little different situation on the facts its’ not on all force.

What is that Katty?

John L. Boeger:

Katz is on all-force factually with On Lee.

This case is on all force with On Lee because on On Lee there was — we’ve gone into previously On Lee, there was consent.

There was a paid informant.

Well, if you’re right that Katz covered Desist situation, what about Desist?

John L. Boeger:

Well, Desist is an attempt by the Government to have this Court apply a 1969 case to apply it retroactively so that Katz which is a 1967 case can’t be applied here?

What’s the date of all these events?

John L. Boeger:

Desist was 1969.

No, the events in this case.

John L. Boeger:

Bugging was in late ‘65 and early ’66.

Now, Katz —

Does Desist say that Katz is an applicable to anything prior to that decision?

John L. Boeger:

Well, it doesn’t say everything.

It says that to the extent Katz departed from previous holdings of this Court.

It should be given wholly prospective application.

I submit that as far as this case is concerned that the Seventh Circuit’s judgment is not in conflict with any prior decision of this Court, and this is exactly what the Seventh Circuit en banc opinion states.

Warren E. Burger:

But if I follow you, you want the benefit of Katz which came after your case but not the benefit of Desist?

John L. Boeger:

But Desist came after the judgment in this case.

Actually Desist which relies upon the Stovall case, Stovall came after the bugging and after the trial of this case.

Whereas the Linkletter case which the Court had followed Linkletter or would follow Linkletter here, Katz case would apply because the White case was on direct appeal at the time of this Court’s decision in Katz.

The Government has stated that the informant was unavailable at trial.

Well, in checking the record, you’ll see at page 39 of the printed appendix that the trial was in November 1966.

John L. Boeger:

The agents testified that they looked at the informant’s home in July and August couldn’t find him.

They checked the missing persons list and the like Company and then the question was asked, “Did you go any other places?”

And at page 40 of the appendix, the agent said, “No, this is all the checking we did.”

So they didn’t even check in September and October and parts of November to see if they could find the informant.

Respondent submits that there are additional reasons for affirming the Seventh Circuit’s judgment and that in the exercise of this Court’s supervisory powers.

This conduct of the agents, we submit was in violation or Illinois States statutes.

There had been an earlier case in the Illinois State by the Illinois State Supreme Court, People versus Dixon that had approved the telephone extension, an agent listening on the telephone extension.

However, I don’t think that that case necessarily mens that the type of bugging involved in White would have been legal.

And then in People versus Kurth, another Illinois Supreme Court case which was decided before trial of this case.

The Illinois Supreme Court said that, “Our statute it’s immaterial whether or not there’s consent or not.

It’s illegal.”

So this isn’t a Lopez situation because here the agents the conduct was unlawful.

The agents knew that the Illinois Supreme Court had held that bugging without a warrant or just bugging without consent was illegal.

And they went ahead and did it anyway.

May I ask you a question, let’s assume that Katz is — you can’t rely on Katz for one reason.

How do you distinguish this case with On Lee?

John L. Boeger:

On Lee, the agent or the secret informant was a paid informant.

The Court’s opinion does not say specifically whether or that we make a finding of consent.

But I think in reading the opinion —

This is with what, with whom, and for what?

John L. Boeger:

The informant that there was consent by the informant.

But somehow your man, your informant, if this — if the man who came into result was the agent and the bug planted on him?

He didn’t know he had it at all.

Is right a privacy as being a faithful general?

John L. Boeger:

I submit that that would be the same as the Silverman case.

Is that what you’re arguing?

John L. Boeger:

That’s exactly.

And that —

John L. Boeger:

That would be an actual intrusion in —

And that’s something that your defendant — your client can take advantage of it really?

John L. Boeger:

Yes, in other words there would be an actual intrusion into the constitutionally protected area.

Of whom?

Is that it?

John L. Boeger:

Sir?

Of the body of the agent?

Whose privacy is being bothered?

John L. Boeger:

The defendant.

In other words —

By reason of what?

John L. Boeger:

A bug being in the constitutionally protected area without a warrant, without —

But that has nothing to do as to whoever the agent who had the bug on it knew who is coerced and having it around, knew that he had it on that’s wholly irrelevant.

John L. Boeger:

Well, I think under Silverman, if there is an invasion into the constitutionally protected area, it’s a violation of the Fourth Amendment.

Or at the very least, if it’s an actual intrusion, it’s certainly under the supervisory powers of this Court that the Silverman they say would not permissible to use that evidence.

Your point Mr. Boeger, is that if the, in this hypothetical case, the man is an agent only by reason that he is the unknown carrier of a microphone surreptitiously put there by other the government agent that that’s the equivalent of —

John L. Boeger:

Of a bug.

Just projecting a microphone or bug inside that room, without the knowledge of anybody.

But that you don’t — as I understand it, you don’t go so far as to suggest that this case is that kind of a case when the record shows here that this man voluntarily, knowingly, had a microphone on him over a period of several days.

Your question only is whether or not it was or perhaps I was wrong in using voluntarily and attributing it to you but at least knowingly?

John L. Boeger:

Knowingly, I believe that he knew it.

So it’s not the hypothetical case that we were talking about?

John L. Boeger:

Right.

Warren E. Burger:

But if the man had no bug at all but merely came and testified against the defendant in this case, you wouldn’t have had any argument to make to us, is that it?

John L. Boeger:

I would.

That, I think —

Warren E. Burger:

What would that argument be?

John L. Boeger:

I think would be the —

Warren E. Burger:

If the Government shouldn’t hire undercover agents to get narcotic peddlers?

John L. Boeger:

I think the Government can hire undercover agents all I ask is that just as this Court stated in Osborn, discussed in the Burger case, is that they go to a judge and let him decide whether or not it would be proper to use an electronic eavesdropping device.

Warren E. Burger:

I’m talking now about a man who goes in without the device.

Are you suggesting that before they send an undercover agent in, in these circumstances, they must get a warrant to send that agent in if he carries no device?

John L. Boeger:

I don’t think the Court needs to go that far in this case.

But I — that’s my own feeling.

In other words, that’s also similar to the Lewis case but Lewis, the Government admitted that we did not put an informant into the house to see or hear anything.

We didn’t — we weren’t eavesdropping at all.

We just went in there to pick up a package and leave.

Warren E. Burger:

What do you have to say about the Attorney General’s argument that this bugging device as you call it produces a much more accurate version of the conversation so that the undercover agent can’t distort or invent some testimony?

John L. Boeger:

Well —

Warren E. Burger:

You have a recording now, you have a perfectly reliable reproduction of the conversation, don’t you?

John L. Boeger:

Well, it’s — I think it’s the same thing as somebody committed murder and the murder weapon is in the defendant’s home.

They still must and should get a warrant before they break down the door and go on get that murder weapon.

Now, it may be better that if they had that murder weapon and run a ballistic test on it but then the defendant’s fingerprints were on the gun and no one else’s that that might be better evidence.

But this Court has held on numerous occasions that they still must get judicial authority before they break down somebody’s door.

No investigative functions are denied?

And it seems you have to have problem upon —

Warren E. Burger:

Well, certainly, I think they can investigate.

But how can they?

Not without a warrant if you want to use an undercover agent.

John L. Boeger:

I think when it, you get to a point where they have a prospective defendant.

Certainly, in this case, there were eight days so maybe along with that — somewhere along the line they thought they have their man.

So I think when they use an informant in this situation —

Somewhere along the line, I hear that — that’s when it listens over the radio, would they?

John L. Boeger:

Well, I suppose they have some sort of investigation prior to that but I don’t know.

The defense counsel tried to cross-examine the agents regarding their relationship with the informant prior to the date of the first transaction and the defense counsel wouldn’t allow it to go into that.

I think one of the comments by the trial judge was that the informant is not on trial here.

Warren E. Burger:

Thank you Mr. Boeger.

Mr. Wilson, do you have anything further?

Will R. Wilson:

Just two points I want to get briefly.

One of them is on the part Judge, Mr. Justice Marshall raised on the production of the witness that we form at the trial.

If we are required to do that and can only use the evidence when you have informant there that puts the premium on having their life.

And in this situation, the best policy would be not to fix it where if the informant is gone you can’t try the man, in my judgment.

Will R. Wilson:

And secondly, that it doesn’t go to the constitutionality the search in the first place.

And the other thing on the, I’ll address myself directly to the question of getting a search warrant in this situation?

This type of radio communication is used right from the inception of the case before you have a probable cause frequently and if you have to get a warrant before you use it, it will prevent the building of proper cause and secondly, in a rapidly developing narcotics sale, the agent frequently does not know either the place or the people he is going to be negotiating with.

He goes and gets to meet somebody in a street car and gets in the car and they take him of clear-cross town to an apartment or something else and there the sale is consummated.

So that if we have to designate either the place or the people to be searched while it will make it a very difficult situation —

General Wilson, what is the — what are the characteristics of a kel radio, K-E-L radio, is it?

Will R. Wilson:

Kel is a little, a very small radio that would broadcast about three miles.

And is it accurate to say or to surmise that it could be used only in connection with the knowing informer?

Will R. Wilson:

Yes, sir, I don’t there’s any chance of inserting it on someone without their knowledge.

As I understand it, it’s hidden usually around the chest somewhere to pick up the language.

And I suppose does he turn it turn on and off or not?

Do you know?

Will R. Wilson:

I think it stays on most of the time he is there.

But I don’t know whether he’s got — that I’ll find that out.

In short, we will urge the Court that in the interest if in balancing the value share, you got the value in the privacy is raised in all of its opinions as against the question of law enforcement, the security of the citizen, the sale of narcotics which is increasingly difficult problem.

We ask that the in the definition of privacy under Fourth Amendment not be extended in this situation and that that the law officers be continued to use this Kel radios in a skillful development of these cases as a top problem in law enforcement.

And so we would urge the Court to hold that this is not a Fourth Amendment search requiring a warrant in probable cause and that also if the Court reaches the point that we not be required to produce the witness before we can produce the evidence in this situation that is the informer.

Thurgood Marshall:

General Wilson, do you say that as form now on, you want us to say the Government does not have to get a warrant suggested in Burger and Katz?

Will R. Wilson:

No, sir.

Not at all.

I said in this situation.

You see we contend that Katz does not apply with the situation.

These are — these consensual hearings.

Thurgood Marshall:

Well, you mean that as to narcotics cases?

Will R. Wilson:

Well, yes.

Thurgood Marshall:

How far do you want to —

Will R. Wilson:

I don’t know it —

Thurgood Marshall:

The Fourth Amendment, how far do you want it?

Will R. Wilson:

[Voice Overlap] just one another but that’s the principal place they applied in narcotics.

Thurgood Marshall:

How far do you want us to go on this exception?

Will R. Wilson:

Well, it — what we would like for the Court to hold is that where there is a conversation that is the commission of the crime itself as distinguished from confession on admission of past events and that where one of the parties of the conversation consents to an overhearing by government agent that that is not a situation requiring a search warrant on the Fourth Amendment.

Warren E. Burger:

Thank you.

The case is submitted.

Thank you for submission gentlemen.