# Opposition Brief — United States v. White > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0262%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1971 - **Citation:** 401 U.S. 745 ## Text _— 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 — 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 WS a 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 r— 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.”’ Sab ee he oa tira ! 3 ; x 4 : 4 4 ‘3 : 5 : 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). POY OE Re eT Be Pe oA SMELL Bai RESAS SEIS BEM R EI NCE rg ii NA iS ci ia Ns ia a tea ig 4 = 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.* : - —_—(—_— 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 i a ah Sas 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. eile, tality teks hier! PI a RAND LO en tat Np pen f ; 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- a > 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 oe - RI a ek tae Sete Fi in Bae 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 Sie att ‘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. Se IN Rts Pid BBE Sola eae abe 5, La 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 a ta jis ae Fe SOE SP ON ESOS _— 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 ST ee BI Bla Soa Pt SEAS hee hae SPLIT SEAS SA aes Tie ST Bch SARY ot ‘ ¥ %, , 4 * ; 3 is x : CBE hr i rte Pe — 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 —_" fe 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0262%3A03. Public record. Not legal advice.