User:Jlofgren/United States v. White, 401 U.S. 745

United States v. White, 401 U.S. 745 (1971) was a United States Supreme Court decision that reaffirmed On Lee and preserved the government's ability to admit testimony obtained through the use of an electronic listening device on an undercover informant, during a criminal trial

Facts
A government informant engaged in conversations with the defendant relating to illegal drugs. The informant was discreetly carrying a radio transmitter, which transmitted the conversations back to federal narcotics agents. At trial the government used the recordings of these transmissions against the defendant, but the informant never personally testified as a witness. On appeal, the U.S. Court of Appeals for the 7th Circuit held that in light of Katz v. United States the recording was not admissible as evidence. The government then appealed to the United States Supreme Court.

Greg's summary Respondent was convicted in 1966 of narcotics violations following a trial where evidence was admitted of certain incriminating statements of respondent that were overheard by warrantless electronic eavesdropping by Government agents by means of a transmitter which an informer consented to wear during his meetings with respondent. The informer could not be located at trial, and the trial court overruled objections to the testimony of the agents who conducted the electronic surveillance. Reading Katz v. United States, 389 U.S. 347 (1967), as overruling On Lee v. United States, 343 U.S. 747 (1952), the Court of Appeals held that the agents' testimony was impermissible under the Fourth Amendment, and reversed respondent's conviction. Held: The judgment is reversed. Pp. 748-756.

Issue(s)Before the Court

 * Did Katz overrule On Lee, thereby making testimony obtained by the government through an undercover informant equipped with an electronic listening device inadmissible in a criminal trial?

Holding

 * Katz did not overrule On Lee. The government may admit testimony obtained through the use of an electronic listening device on an undercover informant, even when that informant does not personally testify at trial.

Decision and Rationale
In finding for the government, the Court denied that Katz had overruled On Lee. They reasoned that any individual engaging in illegal activities does so at the risk, and must "realize" the risk, that his co-conspirators might report the activities to the authorities. Thus, this "realization" by the defendant that his partners may turn on him violates his/her "justifiable" expectation of privacy test as defined by Katz. Furthermore, if it would be constitutional for a police informant, acting without a warrant, to testify to a conversation he had with the defendant, it is unthinkable that a recording of that conversation would be, conversely, inadmissible.
 * "If the law gives no protection to the wrongdoer whose trusted accomplice is or becomes a police agent, neither should it protect him when that same agent has recorded or transmitted the conversations."

Justice Douglas's Dissent
Oppositely, the dissenting Justice Douglas contended that Katz with limited exceptions had made "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment." He also argued that the First Amendment's protection of free speech prevents such pervasive monitoring by the government.
 * "Monitoring, if prevalent, certainly kills free discourse and spontaneous utterances."

Justice Harlan's Dissent
In his dissent, Justice Harlan strongly felt that the plurality was too focused on their “’risk analysis’ solely in terms of the expectations and risks of the ‘wrongdoers...’” What the plurality forgot about were those individuals who had never contemplated a crime in their life, but whose private conversations could now freely be recorded by the government. Harlan argued that the issue here was really whether the government should be required to obtain a warrant before using electronic listening devices.

Furthermore, unlike the plurality, Harlan believed there was a substantial difference between an informant testifying to a conversation which he had with the defendant as opposed to the playing of a third-party recording, “which insures full and accurate disclosure of all that is said, free of the possibility of error and oversight that inheres in human reporting.”
 * ”The interest On Lee fails to protect is the expectation of the ordinary citizen, who has never engaged in illegal conduct in his life, that he may carry on his private discourse freely, openly, and spontaneously without measuring his every word against the connotations it might carry when instantaneously heard by others unknown to him and unfamiliar with his situation or analyzed in a cold, formal record played days, months, or years after the conversation.”

Justice Marshall's Dissent
In a brief dissent, Justice Marshall commented that in the "area of electronic surveillance" the rights of the people should be safeguarded by the requirement of a warrant.