WHITE, UNITED STATES v. 401 U.S. 745 (1971)

During the reign of olmstead v. united states (1927) the Supreme Court consistently ruled, in cases including on lee v. united states (1952) and lopez v. united states (1963), that government informers who deceptively interrogated criminal suspects and either secretly transmitted the conversations to eavesdropping government agents with concealed recorders or secretly recorded the conversations, had committed no trespass, and therefore the fourth amendment was inapplicable. The use of spies without complying with Fourth Amend ment controls was reaffirmed in hoffa v. united states (1966). katz v. united states (1967), however, abolished the trespass requirement for Fourth Amendment protection and focused on the personal privacy interests that were entitled to protection. Some therefore thought On Lee was no longer good law. In United States v. White, however, the Court held otherwise. Though there was no clear majority for either approving or disapproving On Lee, four Justices voted to reaffirm that decision, and Justice hugo l. black concurred to make a majority on the ground that Olm-stead 's trespass requirement should be retained. The On Lee doctrine was thus reaffirmed.

Justice byron r. white, for the plurality, ruled that a person is not protected by the Fourth Amendment against a faithless friend, regardless of whether a trespass is involved. An expectation of such protection is not "justifiable" under the Katz standard. Police have always been allowed to use the evidence of faithless associates who turn to the police or are informers: "one contemplating illegal activities must realize and risk that his companions may be reporting to the police." The fact that the faithless friend was wired, transmitting the conversation to others or recording it for later replaying, makes no constitutional difference.

The dissents focused on the latter point. Justice john marshall harlan rejected the "assumption of risk" rationale of the majority, stressing that the real question was which risks the law should force people to assume. Whereas the use of unwired spies or contemporaneous recording to ensure reliability are both justifiable, simultaneous overhearing by third parties is different; free discourse would be seriously jeopardized if people were forced to assume the risk that their words were being simultaneously transmitted to third parties and transcribed. "Were third-party bugging a prevalent practice, it might well smother that spontaneity—reflected in frivolous, impetuous, sacrilegious, and defiant discourse—that liberates daily life." Justice Harlan emphasized that the dissenters' views would not prohibit the use of wired informers but would only bring the practice under Fourth Amendment warrant and other procedures.

Even though the principal White opinion did not command a majority, it kept On Lee in effect and freed the government from Fourth Amendment restrictions on the use of spies and informers, wired or otherwise.

Herman Schwartz
(1986)

(see also: Electronic Eavesdropping.)