Opposition Brief — United States v. White

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INDEX.

Page

SE CO ieee cc accnnsonsstuenenesacunensbee' 1

EP ETO TTT ETT rT eT Yee Ter Tree ee 2

NE BWOMUOUE isa sc csctascassensesesesvcseens 2

EY TEETT TTL LTT UTT eC ECT TTT eee 3

CE ches hc ibatisicaseeeeedenddetaacsanednese 6

1, The record below and the Court of Appeal’s opin-

ion does not support the government’s conten-

tion that the informant consented to the illegal

rE es we hla sapieeeavds ves enKeEens 6

2. Respondent’s Fourth Amendment rights were in-

fringed when government agents electronically

and surreptitiously intercepted his private con-

versations without prior judicial approval and in

violation of State criminal laws ............... 8

Ce cn isLNeeN btn Cia keANOERRCRhebecabeeexs 14

CITATIONS.

Cases:

Agnello v. United States, 269 U. S. 20 ............ 10

Aguilar v. State of Texas, 378 U. S. 108 .......... 10

Berger v. New York, 388 U.S. 41 ............. 8,11, 12

Bumper v. State of North Carolina, 88 S. Ct. 1788,

SU REENUEA ENON ED KR RADOLA SSS EMSAL ARSED OS 6

Elkins v. United States, 364 U. S. 206 ............ 12

Fountain v. United States, 384 F. 2d 624(C. A.5).. 7

Goldman v. United States, 316 U. S. 129 .......... 11

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3

Handsford v. United States, 390 F. 2d 373 (C. A.5) 7

Hoffa v. United States, 385 U. S. 293 ............. 9

Katz v. United States, 389 U. S.

BE 0cbcadstnncncsstsasscosed 3, 5, 7, 8, 9, 10, 11, 12, 13

Lewis v. United States, 385 U. S. 206 ............. 9

Long v. United States, 387 F. 2d 377 (C. A. 5)...... 7

Lopez v. United States, 373 U. S. 427 ........... 10, 12

Olmstead v. United States, 277 U. S. 488, 485 ....11,12

On Lee v. United States, 343 U. S. 747 ............ ll

Osborn v. United States, 385 U. S. 323 ............ 8,11

People v. Kurth, 34 Ill. 2d 387, 216 N. E. 2d 154... 12

Rios v. United States, 364 U. S. 253 .............. 12

United States v. Jackson, 390 F. 2d 317 (C. A. 2)... 7

United States v. Jeffers, 342 U. S. 48, 51 ......... 10,11

United States v. Jones, D. C., 292 F. Supp. 1001,

TE Gkbbkotocdodudnedactscteccanseaecauacesas 7

United States v. Kaufer, 4 Cr. L. Rep. 2333 (No.

32692, C. A. 2, decided Jan. 14, 1969)........... 7

United States v. Lefkowitz, 285 U. S. 452 ......... 10

United States v. Leighton, 386 F. 2d 822(C. A.2).. 7

United States v. Rivera, 321 F. 2d 704 (C. A. 2)... U1

Weeks v. United States, 232 U. S. 383 ............ 10

Wong Sun v. United States, 371 U. S. 471 ........ 10, 11

nat

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IN THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1968.

No. 1024.

UNITED STATES OF AMERICA,

Petitioner,

V

JAMES A. WHITE,

Respondent.

On Petition for a Writ of Certiorari to the United States Court of

Appeals for the Seventh Circuit.

BRIEF FOR JAMES A. WHITE IN OPPOSITION.

OPINIONS BELOW.

The Opinion of the Court of Appeals (Pet. App. A,

pp. 7-15" and its opinion on rehearing en banc (Pet. App.

B, pp. 16-41) are not yet reported.

1 “Pet. App.” references are to the Appendix, attached to the

government's petition for writ of certiorari.

—?

=

JURISDICTION.

The judgment of the panel of the Court of Appeals was

entered on March 18, 1968. The government’s petition for

rehearing en banc was granted, and the en banc judgment

of the Court of Appeals (Pet. App. C, p. 42) was ren-

dered on January 7, 1969. Respondent denies that this

Court has jurisdiction to review the judgment rendered

by the Court of Appeals on January 7, 1969 for reasons

set forth in his Argument, infra.

QUESTIONS PRESENTED.

1. Whether respondent’s Fourth Amendment rights,

protecting him against governmental intrusion by unrea-

sonable search and seizure, were infringed when govern-

ment narcotic agents electronically and surreptitiously

intercepted his private conversations without prior ju-

dicial approval and in violation of State criminal laws.

2. When the government seeks to rely upon consent of }

one party to a conversation to justify the lawfulness of

an electronic search, does the government sustain its bur-

den of proving that the alleged consent was freely and

voluntarily given by merely showing that the person was

‘‘cognizant’’ of the eavesdropping?

3. Does the spirit of federal protection against double

jeopardy preclude government petitioning of Federal Ap-

pellate Court for rehearing en banc of panel decision re-

versing defendant’s conviction, especially where the rules

of the Court of Appeals do not specifically provide for

such a rehearing?

4

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ves fom

STATEMENT.

The government’s statement in its petition for writ of

certiorari is clearly erroneous. The government states that

the informant consented to the government’s illegal elec-

tronic eavesdropping (Pet. 3).2 Such contention is not

supported by the record or by the Court of Appeal’s de-

cisions. For that reason, respondent herein sets forth por-

tions of the Court of Appeal’s opinion first rendered in

this case which summarizes the facts as follows:

‘‘Defendant [respondent] was convicted of the pos-

session and sale of narcotics largely as a result of

the testimony of federal narcotics agents that they

heard defendant make self-incriminating statements,

which had been transmitted over the air by an elec-

tronic device hidden under the informer’s clothes.

Thereby, the agents heard conversations taking place

in the defendant’s home, his car, his place of business,

} as well as in the informer’s house and car. The evi-

dence clearly shows that by these means government

agents were able to, and did, testify to what they thus

heard, including admissions by defendant. Informer

Jackson did not testify at the trial. There is no con-

tention that the government relied on any warrant

or Court Order’’ (Pet. App. A, pp. 11-12. Emphasis

added).

A panel of the Court of Appeals reversed the conviction,

applying the principles announced by this Court in Kats

v. United States, 389 U. 8. 347, and held that the Federal

Agents were required to obtain a search warrant before

2 The government's attempt to supplement the record by try-

ing to leave the impression with this Court that the informer gave

his consent to the government to electronically eavesdrop is evi-

denced by the fact that said contention is made by the government

at least twice on page two of its petition (“Questions Presented’’),

three times on page three, once on page four, and once on page five.

i ;

using electronic means to overhear respondent’s conversa-

tions with the secret informant. The panel of the Court

of Appeals did not remand the case for a new trial (Pet.

App. A, pp. 14-15). Also, nowhere in the majority opinion

by the panel of the Court of Appeals does it state that

the secret informant consented to the government’s illegal

electronic eavesdropping.

—

: The government filed a petition for rehearing en banc

in the Court of Appeals, however, the government did not

specifically argue that the Court of Appeals erred in its

statement of the pertinent facts in the case. Respondent’s

reply brief that was filed in the Court of Appeals brought

to the Court’s attention that the government did attempt

to supplement the record by trying to leave the impression

with the Court that the secret informer gave his consent

to the government to electronically eavesdrop on the il-

legally overheard conversations. Respondent stated at

page 3 of his reply brief as follows:

‘‘Indeed, the government cites no page references

to the record showing that the informant ‘consented’

to having the Kel set placed upon his person. Con-

trariwise, the government gives three citations to the

record where government agents concluded that the in-

formant gave them ‘permission’ to listen to one tele-

phone conversation. Further, during oral argument

before this Court, government counsel begrudgingly

admitted that the record did not support a contention

that the informant ‘consented’ to having the Kel set

placed upon his person.”’

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Respondent in his reply brief also brought to the Court

of Appeal’s attention the fact that the trial Court unrea-

sonably limited the cross-examination by defense counsel

of government agents concerning the government’s rela-

tionship with the secret informant. This particular issue

was raised in respondent’s original brief in the Court of

aa

Appeals, but the Court of Appeals found it unnecessary to

consider said issue.

=

The Court of Appeals en banc held that the conviction

must be reversed, but remanded the case for new trial

(Pet. App. B, p. 32). The Court of Appeals did not hold

that the secret informant consented to the government’s

illegal eavesdropping, but held that ‘‘one party to the

monitored conversation, informer Jackson, was cognizant

of the Government’s eavesdropping activities’’ (Pet. App.

B, p. 23). The Court of Appeals held that consent was

without decisional significance and that a third person

could not waive a speaker’s (respondent’s) Fourth Amend-

ment rights. Thus, the Court below made no determina-

tion regarding whether the informant consented. The

Court stated:

‘‘In holding that the rationale of Katz applies re-

gardless of whether one party to a private conversa-

tion consents to the Government’s interception of the

} conversation, we do not purport to make any deter-

mination regarding the voluntariness of informer

Jackson’s participation in the agents’ scheme. Since

it is our view that a listener’s consent is irrelevant, it

is difficult to see how informer Jackson’s conduct,

whether the product of coercion or consent, could have

constituted a waiver of the defendant’s constitutional

rights. Only his own consent could have created such

a waiver. The rationale of Katz permits no other

conclusion’’? (Pet. App. D, p. 24).

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ARGUMENT.

1. The record below and the Court of Appeal’s opinion

does not support the government’s contention that the in-

formant consented to the illegal eavesdropping.

The thrust of the government’s petition for certiorari,

including its ‘‘Questions Presented’’ relies upon a false

premise, to-wit: that the informant consented to the

government’s illegal electronic eavesdropping. As shown

in respondent’s Statement, supra, the record in this case

does not confirm the government’s contention that the in-

formant consented to anything. Not only does the govern-

ment fail to cite in its petition one page reference to the

record supporting its contention, but the Court below never

held that consent was given. The opinion of the Court of

Appeals sitting en banc merely states that the informant

was ‘‘cognizant’’ of the eavesdropping (Pet. App. B, p.

23). The Court below did not make a determination re-

garding the voluntariness of the informant’s participation

in the government agent’s scheme to illegally eavesdrop

upon respondent’s private conversations.

Thus, assuming arguendo that ‘‘consent’’ is material to

the issues in this case, the record does not support the

government’s contention that the informant did consent to

the illegal search. Further, the government had the bur-

den of proving at trial that the informant voluntarily con-

sented to the illegal eavesdropping. Bumper v. State of

North Carolina, 88 S. Ct. 1788. In Bumper, this Court

held:

‘*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. This burden cannot be discharged

by showing no more than acquiescence to a claim of

lawful authority.’’ Bumper v. State of North Carolina,

88 S. Ct. 1788, 1792.

—

Clearly, the mere knowledge by the informant that a

radio device was attached to his person does not sustain

the government’s burden of proving voluntary consent.

‘Consent, as a matter of law, means more than a willing-

ness to cooperate or a formal document expressing con-

sent.’’ United States v. Jones, D. C., 292 F. Supp. 1001,

1008.* :

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Certiorari should be denied in this case for the reason

that the questions presented by the government rely

upon facts and circumstances that are not present here,

to-wit: voluntary consent by one of the parties to the

illegally overheard conversations.

Additionally, there is no conflict between the opinion

in this case and the decisions of the Second and Fifth

Circuits cited by the government (Pet. pp. 3-4). As stated

by the government, those cases hold that Katz v. United

States, 389 U.S. 347, ‘‘does not apply to situations where

one party has consented to have his conversation elec-

) tronically monitored’’ (Pet. p. 3). Here, the government

did not prove consent, therefore all the cases cited by

the government are inapplicable and are not in conflict

with the instant opinion. Further, the informants testi-

fied in the cases relied upon by the government. See,

United States v. Kaufer, 4 Cr. L. Rep. 2333 (No. 32692,

C. A. 2, decided Jan. 14, 1969); Fountain v. United States,

384 F. 2d 624 (C. A. 5); Handsford v. United States, 390

F. 2d 373 (C. A. 5); United States v. Leighton, 386 F. 2d

822 (C. A. 2); United States v. Jackson, 390 F. 2d 317

(C. A. 2); Long v. United States, 387 F. 2d 377 (C. A. 5).

—.

3 In Jones, the informant did sign a written consent to the

monitoring and the government advised the trial Court of its

intention to use the intercepted conversations merely as cor-

roboration of the informant’s testimony. The Court suppressed

the recordings. The Court relied upon this Court’s opinion in

Katz v. United States, 389 U. S. 347 and the Seventh Circuit

Court of Appeal’s first decision in the instant case.

me

Thus, the government cites no case which is in conflict

with the decision in this case.

= an

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2. Respondent’s Fourth Amendment rights were in.

fringed when government agents electronicaliy and sur-

: reptitiously intercepted his private conversations without

4 prior judicial approval and in violation of State criminal

: laws

Assuming arguendo that the record in this case estab-

lishes that the informant did, in fact, freely and volun-

tarily consent to the unlawful eavesdropping, respondent

submits that this Court should deny certiorari for the

reason that it has previously held that ‘‘consent’’ by au }

informant is not controlling in this type of case. In

Osborn v. United States, 385 U. S. 323, the informant con-

sented to the use of the electronic device, but this Court

held that the ‘‘indiscriminate use of such devices in law

enforcement raises grave Constitutional questions under

the Fourth and Fifth Amendments . . .’’ 385 U. S. at )

329. The Osborn decision has been quoted and cited with |

approval in Berger v. State of New York, 388 U. S. 41,

57, and in Katz v. United States, 389 U. S. 347, 355. No-

j where in the Osborn, Berger or Katz cases did this Court

3 conclude that ‘‘consent’’ was material or determinative |

of the issues raised therein.

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; As stated in the opinion below, ‘‘the surreptitious

. placing of the kel set on informer Jackson was for all

‘ conceptual purposes the same as the surreptitious wiring of

3 the telephone booth in Katz’’ (Pet. App. B, pp. 23-24).

: The electronic eavesdropping in Katz and in this case

4 were both part of a ‘‘bagging’’ technique by which’ the

¢ conversations were transmitted to an ‘‘uninvited ear”,

to-wit, government narcotics agents. The critical and

determinative factor in both cases was that the respective

speakers did not consent to the overhearing of their state-

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ments and same were unlawfully overheard by third

persons (government agents), uninvited by the speaker.

=

The government, citing the following sentence from the

opinion in Katz attempts to distinguish Katz from the

facts in this case. ‘‘What a person knowingly exposes to

the public, even in his own home or office, is not a subject

of Fourth Amendment protection.’’ 399 U. S. 351. How-

ever, the government fails to quote the next sentence in

the Katz opinion which states: ‘‘But what he seeks to

preserve as private, even in an area accessible to the

public, may be constitutionally protected’’ (389 U. S. at

351, emphasis added). Here, the record clearly shows and

the Court below specifically found, that the respondent

justifiably expected his conversations to be private (Pet.

App. B, p. 28). The Court below also found that the

government agents recognized that the respondent sought

to exclude their uninvited ears.

| The government’s interpretation of Katz, Hoffa v.

) United States, 385 U. S. 293, and Lewis v. United States,

| 385 U. S. 206, is that whenever a person speaks to a third

person (even in one’s own home), that third person can

legally waive the speaker’s Fourth Amendment rights

and surreptitiously broadeast his words to the world.

} Thus, the government will deny a speaker’s (unless he

talks to himself) Fourth Amendment rights if a third per-

son wants to surreptitiously waive his rights for him. The

government claims that this waiver by a third party

should be allowed without any judicial safeguards.

The decisions in Lewis and Hoffa are inopposite for

those cases presented situations where there was no elec-

tronic interception or transmission of the defendant’s

words. Those cases merely hold that an informant is a

competent witness to conversations and dealings with a

defendant. Of course here, the informant never testified,

but the goverment did electronically intercept and trans-

mit the defendant’s private conversations.

—

The decision below does not suggest that this Court’s

3 decision in Katz overruled Lopez v. United States, 373

M U. S. 427. The facts in Lopez are distinguishable to the

facts here. First, Lopez concerned the attempted bribery

of a government agent, known to the defendant to be a

government agent. Second, the same government agent

who recorded defendant’s conversation testified at trial.

Here, the secret informer never testified. Third, in Lopez

there was no transmission over the air of defendant’s

voice (only a recorder worked properly). Here, defend-

ant’s voice was transmitted over the air to be heard not

only by government agents, but by anyone else who hap-

pened to be tuned in on that specified radio frequency.

— a

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The Fourth Amendment commands that there be a

warrant, issued upon probable cause, supported by oath

or affirmation, particularly describing the place to be

searched and the persons or things to be seized. There

was no warrant in the instant case. As in the Katz case,

Page

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‘The government agents here ignored ‘the pro-

E cedure of an antecedent justification . . . that is cen-

: tral to the Fourth Amendment’ [citing Osborn, 38)

i U. S. 323, 330]; a procedure that we hold to be a con-

stitutional precondition of the kind of electronic sur-

veillance involved in this case.’’ Katz v. United |

States, 389 U. S. at 359 (emphasis added).

See also Weeks v. United States, 232 U. S. 383; Agnello

§ v. United States, 269 U. S. 20; United States v. Jeffers,

: 342 U. S. 48; United States v. Lefkowitz, 285 U. S. 452;

Aguilar v. State of Texas, 378 U. S. 108.

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Additionally, the law is clear that the government has

the burden of proving that its warrantless searches

were conducted under exceptional circumstances and must

show the need for the searches outside judicial process

without prior approval by judge or magistrate before the

government can validly claim an exemption. Wong Sun

ii

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v. United States, 371 U. S. 471; United States v. Jeffers,

342 U. S. 48, 51; United States v. Rivera, 321 F. 2d 704

(C. A. 2). Here, the government did not sustain its bur-

den of proving that its warrantless search comes within

the few exceptions set forth in Katz. Thus, there is no

good reason for granting certiorari in this case.

in 0

In Katz, the government urged that because its agents

relied on the decisions in Olmstead v. United States, 277

U. S. 488 and Goldman v. United States, 316 U. S. 129,

which had been the law at the time of their acts, this

Court should retroactively validate their conduct. That,

this Court refused to do, even though the agents acted

| with restraint. 389 U. S. at 356. The government was

bound by this Court’s application of Fourth Amendment

principles.

Similarly here, the government urges, in effect, that its

’ agents must be judged by pre-Katz standards and that this

Court similarly retroactively validate its conduct. This

rationale should not be adopted here for the same reasons

given by this Court in the Katz case.

Furthermore, the respondent emphatically states that

even under those prior standards, the conviction below, as

| analyzed by the Court of Appeals, would necessarily have

been reversed. The Court of Appeals’ opinion conclusively

establishes the invalidity of the questioned searches and

seizures under Supreme Court cases decided prior to Katz.

Berger v. New York, 388 U. S. 41; Osborn v. United States,

385 U. S. 323. In this regard, it should be noted that al-

though the government relied principally upon the decision

in On Lee v. United States, 343 U. S. 747, in the Court

below (Pet. App. B, p. 31), the government seemingly does

not put such stress on that decision now (Pet., p. 4). Re-

spondent submits that this Court has never revitalized the

On Lee decision and since that decision was based upon

the trespass theory, On Lee was rightfully rejected by

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this Court in Berger, Lopez and Katz and by the Seventh

Circuit Court of Appeals in this case.

Another good reason why this Court should not retro-

actively validate the government agent’s surreptitious

eavesdropping is that it was done in contravention of Illi-

nois State law. People v. Kurth, 34 Ill. 2d 387, 216 N. E.

2d 154. Thus, the agent’s conduct was “manifestly im-

proper” within the meaning of Lopez v. United States, 373

U. 8. 427, 440. This Court should not condone anyone's

intentional violation of law. Elkins v. United States, 364

U. S. 206; Rios v. United States, 364 U. S. 253. As stated

in Justice Homes’ dissent in Olmstead v. United States,

277 U. S. 438, 485, ‘‘if the government becomes a law

breaker, it breeds contempt for law .. .”

3. Lack of jurisdiction to review en banc decision of

Court of Appeals.

Respondent respectfully suggests that there is serious

doubt whether this Court has jurisdiction to review the

judgment rendered on January 7, 1969 by the Court of

Appeals, sitting en banc. As contended by respondent in

his reply brief filed in opposition to the Government's pe-

tition for rehearing en banc, respondent here urges that

the opinion of the panel of the Court of Appeals rendered

on March 18, 1968 was final for the reason that no author-

ity existed at that time for the granting of a petition for

rehearing en banc under the circumstances of this case

and that to afford the government a right of review was

contrary to the spirit of the Fifth Amendment’s prohibi-

tion against double jeopardy.

The right of appeal is statutory and that of the govern-

ment in a criminal proceeding is limited to the circum-

stances provided in Title 18, United States Code, Section

3731. Additionally, appeals by the government in criminal

cases are something unusual, exceptional and not favored.

—

Carroll v. United States, 354 U. S. 394, 399-400. If the

District Court had ruled initially as the Court of Appeals’

opinion of March 18, 1968 said it should have ruled (sus-

tain the motion to strike the evidence), it is clear that the

government would not have been entitled to appellate re-

view of such ruling at the time of said ruling. Carroll v.

United States, 354 U.S. 394. The opinion of the panel of

the Court of Appeals is entitled to the same degree of

finality as is afforded a ruling of the District Court. This

is so whether the right to review is limited by the Fifth

Amendment or by the statutory restriction on the Govern-

ment’s appeals in criminal causes.*

= =

The prejudice here to this respondent is clear for the

reason that the judgment of the Court of Appeals sitting

en banc remanded the case to the District Court for new

trial, whereas, the orginal opinion and judgment of the

panel of the Court of Appeals reversed the conviction with-

out remanding the case for new trial (Pet. App. A, p.

15). Respondent submits that the original judgment of

reversal was proper for the reason that this Court, in an

almost identical situation reversed the judgment of con-

viction without remanding the case. Katz v. United States,

398 U. S. at 359.

We submit that this Court previously had jurisdiction

to review the earlier judgment of reversal rendered by the

panel of the Court of Appeals, but the government chose

not to file a timely petition for certiorari in this Court to

review that judgment. Since the filing of a petition for

certiorari is jurisdictional and because the Court of Ap-

peals did not have jurisdiction to grant the petition for re-

hearing en banc in the first place, this Court should not re-

view the latter judgment entered by the Court of Appeals

sitting en banc.

* In March 1968, the rules of the Seventh Circuit Court of Ap-

peals provided for “rehearings,” but did not provide for rehearings

en banc. See Rule 25, Seventh Circuit Court of Appeals.

SS ree Cs Daron am

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CONCLUSION.

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

MORRIS A. SHENKER,

JOHN L. BOEGER,

408 Olive Street,

St. Louis, Missouri 63102,

Attorneys for Respondent

James A. White.

Of Counsel:

CHAUNCEY ESKRIDGE,

123 West Madison,

Chicago, Lllinois.