finding no Fourth Amendment violation where an undercover officer gained entry into the defendant's office with his consent and then recorded his conversations with the defendant because "[t]he Government did not use an electronic device to listen in on conversations it could not otherwise have heard. Instead, the device was used only to obtain the most reliable evidence possible of a conversation in which the Government's own agent was a participant and which that agent was fully entitled to disclose."
How later courts described this case
- finding no Fourth Amendment violation where an undercover officer gained entry into the defendant's office with his consent and then recorded his conversations with the defendant because "[t]he Government did not use an electronic device to listen in on conversations it could not otherwise have heard. Instead, the device was used only to obtain the most reliable evidence possible of a conversation in which the Government's own agent was a participant and which that agent was fully entitled to disclose."
- finding “no invasion of constitutionally protected rights” and “no act of any kind which could justify the creation of an exclusionary rule” when an IRS employee wore a body wire and extracted incriminating statements from a hotel owner during a bribery sting operation
- holding that “[t]he risk of being overheard by an eavesdropper or betrayed by an informer or deceived as to the identity of one with whom one deals is probably inherent in the conditions of human society”
- explaining that recording by undercover agent is permissible where “the device was not planted by means of an unlawful physical invasion ... and it neither saw nor heard more than the agent himself’
Written by the judges who cited it.
Later courts went against this
Questioned by State v. Geraw, 173 Vt. 350 (2002)
While the continuing vitality of Lopez is not drawn directly into question by this case, candor compels me to acknowledge that the views expressed in this opinion [White] may impinge upon that part of the reasoning in Lopez which suggested that a suspect has no right to anticipate unreliable testimony.
Questioned by People v. Hall, 88 Mich. App. 324 (1979)
Justice Harlan himself acknowledged, however; that due to his opinion in White, the continued validity of Lopez might be open to question.
Questioned by Robert G. Baker v. United States of America, United States of America v. Robert G. Baker, 430 F.2d 499 (1970)
We are aware, of course, of United States v. White, 7 Cir., 405 F.2d 838 (en banc), cert. granted, 394 U.S. 957, 89 S.Ct. 1305, 22 L.Ed.2d 559 (1969), and that the Supreme Court’s decision in that case might shed further light on the continued validity of Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381 (1963), after Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
The opinion
Mr. Justice Brennan,
with whom Mr. Justice Douglas and-Mr. Justice Goldberg join,
dissenting.
In On Lee v. United States, 343 U. S. 747 , the Court sustained the admission in evidence of the testimony of a federal agent as to incriminating statements made by the accused, a laundryman, on trial for narcotics offenses. The statements were made by the accused while at large on bail pending trial in a conversation'in his shop with an acquaintance and former employee, who, unknown to the accused, was a government informer and carried a radio transmitter concealed on his person. The federal agent, *447 equipped with a radio receiver tuned to the transmitter, heard the transmitted conversation while standing on the sidewalk outside the laundry. The Court rejected arguments invoking the Fourth Amendment and our supervisory power against the admissibility of the agent’s testimony. I believe that that decision was error, in reason and authority, at the time it was decided; that subsequent decisions and subsequent experience have sapped whatever vitality it may once have had; that it should now be regarded as overruled; that the instant case is rationally indistinguishable; and that, therefore, we should reverse the judgment below.
I.
The United States in its brief and oral argument before this Court in the instant case made'little effort to justify the result in On Lee , doubtless because it realizes that that decision has lost virtually all its force as authority. Instead, the Government seeks to distinguish the instant case. This strategy has succeeded, it appears, with a majority of my Brethren. The Court’s refusal to accord more than passing mention in its opinion to the only decision of this Court — On Lee — factually analogous to the case at bar suggests very strongly that some of my colleagues who have joined the Court’s opinion today agree with us that On Lee should be considered a dead letter. For the Court, rather than follow On Lee , has adopted the substance of the Government’s attempted distinction between On Lee and the instant case.
The Government argues as follows: “Petitioner can hardly complain that his secret thoughts were unfairly extracted from him, for they were, from the beginning, intended to be put into words, and to be communicated to the very auditor who heard them.” This argument has two prongs and I take the second first. To be sure, there were two auditors in On Lee — the informer *448 and the federal agent outside. But equally are there two auditors here — the federal agent and the Minifon. In On Lee , the informer was the vehicle whereby the ac-r cused’s statements were transmitted to a third party, whose subsequent testimony was evidence of the statements. So here, the intended auditor, Agent Davis, was the vehicle enabling the Minifon to record petitioner’s statements in a form that .could be, and was, offered as evidence thereof.
The-Government would have it that the “human witness [Davis] actually testifies and the machine merely repeats and corroborates his narrative.” But it can make no difference that Davis did, and the informer in On Lee did not, himself testify; for the challenged evidence, the Minifon recording, is independent evidence of the statements to which Davis also testified. A mechanical recording is not evidence that is merely repetitive or cor-., roborative of human téstimony. To be sure, it must be authenticated before it can be introduced. ■ But once it is authenticated, its credibility does not depend upon the credibility of the human witness. Therein does a mechanical recording of a conversation differ fundamentally from, for example, notes that one of-the parties to the •conversation may have taken. A trier of fact credits the notes only insofar as he credits the notetaker. But he credits the Minifon recording not because he believes Davis accurately testified as to Lopez’ statements but because he believes the Minifon accurately transcribed those statements. This distinction is well settled in the law of evidence, and it has been held that Minifon recordings are independent third-party evidence. Monroe v. United States, 98 U. S. App. D. C. 228, 233-234, 234 F. 2d 49, 54-55 . 1
*449 The other half of the Government’s argument is that Lopez surrendered his right of privacy when he communicated his “secret thoughts” to Agent Davis. The assumption, manifestly untenable, is that the Fourth Amendment is only designed to protect secrecy. If a person commits his secret thoughts to paper, that is no license for the police to seize the paper; if a person communicates his secret thoughts verbally to another, that' is no license for the police to record the words. Silverman v. United States, 365 U. S. 505 . On Lee certainly rested on no such theory of waiver. The right of privacy would mean little if it were limited to a person’s solitary thoughts, and so fostered secretiveness. It must embrace a concept of the liberty of one’s communications, and historically it has. “The common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, *450 sentiments, and emotions shall be communicated to others . . . and even if he has chosen to give them expression, he generally retains the power to fix the limits of the publicity which shall be given them.” Warren and Brandéis, The Right to Privacy, 4 Harv. L. Rev. 193 , 198 (1890). (Emphasis supplied.)
That is not to say that all communications are privileged. On Lee assumed the risk that his acquaintance .would divulge their conversation; Lopez assumed the same risk vis-á-vis Davis. The risk inheres in all communications which are not in the sight of the law privileged. It is not an undue risk to ask persons to assume, for it does no more than compel them to use discretion in choosing their auditors, to make damaging disclosures only to persons whose character and motives may be trusted. . But the risk which both On Lee and today’s decision impose is .of a different order. It is the risk that third parties, whether mechanical auditors like the Mini-fon or human transcribers of mechanical transmissions as in On Lee — third parties who cannot be shut out of a conversation as conventional eavesdroppers can be, merely by a lowering of voices, or withdrawing to a private place— may give independent evidence of any conversation. There is only one way to guard against such a risk, and that is to keep one’s mouth shut on all occasions.
It is no answer to say that there is no social interest in encouraging Lopez to offer, bribes to federal agents. Neither is there a social interest in allowing a murderer to conceal the murder weapon in his home. But there is a right of liberty of communications as of possessions, and the right can only be secure if its limitations are defined within a framework of principle. The Fourth Amendment does not forbid all searches, but it defines the limits and conditions of permissible searches; the compelled disclosure of private communications by electronic means ought equally to be subject to legal regulation. *451 And if this principle is granted, I see no reasoned basis for reaching different results depending upon whether the conversation is with a private person, with a federal undercover agent (On Lee), or with an avowed federal agent, as here;
See Burgman v. United States, 88 U. S. App. D. C. 184, 188 F. 2d 637 ; Belfield v. Coop, 8 Ill. 2d 293 , 134 N. E. 2d 249 (1956); Boyne City, G. & A. R. Co. v. Anderson, 146 Mich. 328 , 109 N. W. *449 429 (1906); State v. Reyes, 209 Ore. 595, 636 , 308 P. 2d 182, 196 (1957); Paulson v. Scott, 260 Wis. 141 , 50 N. W. 2d 376 (1951). “The ground for receiving the testimony of the phonograph would seem to be stronger [than in the case of the telephone], since in its case there is not only proof by the human witness of the making of the sounds to be reproduced, but a reproduction by the mechanical witness of the'sounds themselves.” Boyne City, G. & A. R. Co. v. Anderson, supra. See generally Annotation, Admissibility of Sound Recordings in Evidence, 58 A. L. R. 2d 1024 (1958). This is to be contrasted with documents offered as evidence of past recollection recorded or present recollection revived, which have no; status unless verified by a witness from his personal knowledge. “The witness must be able now to assert that the record accurately represented his knowledge and recollection at the time. The usual phrase requires the witness to affirm that he ‘knew it to be true at the time.’ ” 3 Wigmore, Evidence (3'd ed. 1940), § 747. “It follows from the nature of the purpose [present recollection revived] for' which the paper is used . . . that it is in no strict sense testimony. In this respect it differs from a record of past recollection, which is adopted by the witness as the embodiment of his testimony and, as thus adopted, becomes his present evidence . . . .” 3 id., § 763. It is to be noted that in both cases the documents come in only on the strength of the witness’ testimony.