The opinion
WASHINGTON, Circuit Judge
(dissenting).
Police use of an electronic eavesdropping device produced the essential evidence in this case. I would exclude evidence so obtained, along with any addi *179 tional evidence which was its fruit, and would reverse the convictions.
The police gained entrance — quite legally — to the row house next to that occupied by appellants. They then carefully probed the brick party wall between the two houses in search of an advantageous spot for the insertion of their eavesdropping device — a needle or spike about twelve inches long, connected to an amplifying circuit. The testimony indicated that the spike, in order to serve its purpose adequately, had to come in contact with a solid object capable of resonance. Mere insertion in the plaster or brick of the wall would be ineffective. The desired sound reception was obtained by inserting the spike about seven inches into the party wall, under the baseboard, at a point where the wall contained the metal heating duct for appellants’ house. The heating duct was an excellent vibrator, and furthermore ran into the bedroom as well as the living room of appellants’ house. Every inference, and what little direct evidence there was, pointed to the fact that the spike made contact with the heating duct, as the police admittedly hoped it would. Once the spike touched the heating duct, the duct became in effect a giant microphone, running through the entire house occupied by appellants. The spike was the conductor by which sounds in appellants’ house were transmitted to the amplifier in the adjoining house. Conversations on both floors of appellants’ house were clearly heard by the police through earphones attached to the amplifier.
Whether the police, in installing and using the electronic device, committed a technical trespass upon appellants’ property is a matter which seems immaerial to me. True, the import of On Lee v. United States, 1952, 343 U.S. 747 , 72 S.Ct. 967 , 96 L.Ed. 1270 , when read in the context of conflicting opinions in the same case by the judges in the Second Circuit, United States v. On Lee, 1951, 193 F.2d 306 , and the earlier Supreme Court decisions in Olmstead v. United States, 1928, 277 U.S. 438 , 48 S.Ct. 564 , 72 L.Ed. 944 , and Goldman v. United States, 1942, 316 U.S. 129 , 62 S.Ct. 993 , 86 L.Ed. 1322 , may perhaps be that the Fourth Amendment protects one’s security in the home only to the extent of barring unauthorized physical entry of a person upon the premises of another. Thus, eavesdropping of the kind which occurred here may be held not to abridge any Fourth Amendment rights. But it does violate, I think, our fundamental concept of ordered liberty, as embodied in the due process clauses of the Fifth and Fourteenth Amendments. See Irvine v. People of State of California, 1954, 347 U.S. 128 , 74 S.Ct. 381 , 98 L.Ed. 561 ; Palko v. State of Connecticut, 1937, 302 U.S. 319 , 58 S.Ct. 149 , 82 L.Ed. 288 . Under a governmental system of constitutional or limited exercise of public power, ordered liberty requires that the police, like other public officials, take action against a citizen only pursuant to duly-conferred authority.
The police actions in this case are inconsistent with such a view of ordered liberty. The Government has pointed to no statutory authority for what was done, and electronic eavesdropping was surely not contemplated in common law concepts of legitimate police activity. Electronic eavesdropping today affords the police investigatory means which directly impair the right of the citizen to be free from unauthorized interference and surveillance by others. The latest contributions of modern electronics have far greater capacity for public evil than their earlier counterpart — the wiretap. Electronic devices — easily concealed and indiscriminate as to what is overheard — • permit police officers to observe at will, for long periods and without detection, all the private affairs which transpire within a particular area. Such thoroughgoing and indiscriminate surveillance threatens legitimate interests in peace and security if only because the indiscreet, the idle, or the highly personal communications of innocent third parties may be overheard. And it is hardly necessary to mention the threat of electronic eavesdropping as a possible instrument *180 of political oppression. The Supreme Court in Irvine condemned electronic eavesdropping where police invaded the privacy of the marriage chamber. I do not think, as do my brethren, that due process has such limited application. Here, the police overheard conversations in an entire house over a period of nine days. The officers were limited only by their own patience and endurance. It is true that evidence was obtained showing these defendants to be guilty beyond a doubt of offenses under our statutes. But guilt cannot justify oppressive conduct by the police. The rights of these defendants were in my view seriously invaded.
For these reasons, I would reverse the convictions. I add that as to the other matters raised (see Points I, II and III of the majority opinion), I agree with my colleagues.