explaining that courts must assess the “de sirability” of privacy expectations and ask whether courts “should” recognize them by “balanc[ing]” the “impact on the individual’s sense of security . . . against the utility of the conduct as a technique of law enforcement”
How later courts described this case
- explaining that courts must assess the “de sirability” of privacy expectations and ask whether courts “should” recognize them by “balanc[ing]” the “impact on the individual’s sense of security . . . against the utility of the conduct as a technique of law enforcement”
- holding that, just as an informant “may write down for official use his conversations with a defendant and testify concerning them, . . . no different result is required if the agent . . . records them with electronic equipment which he is carrying on his person”
- finding that, “however strongly a defendant may trust an apparent colleague, his expectations in this respect are not protected by the Fourth Amendment when it turns out that the colleague is a government agent regularly communicating with the authorities”
- stating that the court must transcend the "search for subjective expectations” inasmuch as subjective expectations are inextricably linked to a determination of whether society considers the expectation reasonable
Written by the judges who cited it.
Distinguished
Distinguished by People v. Catania, 427 Mich. 447 (1986)
Justice Brennan concurred in the White result because, in his view, Katz was inapplicable to behavior which occurred before the decision in Katz, p 755.
The opinion
*755 Mr. Justice Brennan,
concurring in the result.
I agree that Desist v. United States, 394 U. S. 244 (1969), requires reversal of the judgment of the Court of Appeals. Therefore, a majority of the Court supports disposition of this case on that ground. However, my Brothers Douglas, Harlan, and White also debate the question whether On Lee v. United States, 343 U. S. 747 (1952), may any longer be regarded as sound law. My Brother White argues that On Lee is still sound law. My Brothers Douglas and Harlan argue that it is not. Neither position commands the support of a majority of the Court. For myself, I agree with my Brothers Douglas and Harlan. But I go further. It is my view that the reasoning of both my Brothers Douglas and Harlan compels the conclusion that Lopez v. United States, 373 U. S. 427 (1963), is also no longer sound law. In other words, it is my view that current Fourth Amendment jurisprudence interposes a warrant requirement not only in cases of third-party electronic monitoring (the situation in On Lee and in this case) but also in cases of electronic recording by a government agent of a face-to-face conversation with a criminal suspect, which was the situation in Lopez . For I adhere to the dissent in Lopez, 373 U. S., at 446-471 , in which, to quote my Brother Harlan, post, at 778 n. 12, “the doctrinal basis of our subsequent Fourteenth Amendment decisions may be said to have had its genesis.” Katz v. United States, 389 U. S. 347 (1967), adopted that “doctrinal basis” and thus, it seems to me, agreed with the argument in the Lopez dissent that “subsequent decisions and subsequent experience have sapped whatever vitality [On Lee] may once have had; that it should now be regarded as overruled” and that the situation in Lopez “is rationally indistinguishable.” 373 U. S., at 447 . The reasons in support of those conclusions are set forth fully in the Lopez *756 dissent and need not be repeated here. It suffices to say that for those reasons I remain of the view that the Fourth Amendment imposes the warrant requirement in both the On Lee and Lopez situations.