United States v. White, 401 U.S. 745 (1971)

MR. JUSTICE HARLAN, dissenting.

The uncontested facts of this case squarely challenge the continuing viability of On Lee v. United States, 343 U.S. 747 (1952). As the plurality opinion of MR. JUSTICE WHITE itself makes clear, important constitutional developments since On Lee mandate that we reassess that case, which has continued to govern official behavior of this sort in spite of the subsequent erosion of its doctrinal foundations. With all respect, my agreement with the plurality opinion ends at that point.

I think that a perception of the scope and role of the Fourth Amendment, as elucidated by this Court since On Lee was decided, and full comprehension of the precise issue at stake lead to the conclusion that On Lee can no longer be regarded as sound law. Nor do I think the date we decided Katz v. United States, 389 U.S. 347 (1967), can be deemed controlling both for the reasons discussed in my dissent in Desist v. United States, 394 U.S. 244, 256 (1969), and my separate opinion in Mackey v. United States (and companion cases), ante, p. 675 (the case before us being here on direct review), and because, in my view, it requires no discussion of the holding in Katz, as distinguished from its underlying rationale as to the reach of the Fourth Amendment, to comprehend the constitutional infirmity of On Lee.

I

Before turning to matters of precedent and policy, several preliminary observations should be made. We deal here with the constitutional validity of instantaneous third-party electronic eavesdropping, conducted by federal law enforcement officers, without any prior judicial approval of the technique utilized, but with the consent and cooperation of a participant in the conversation,{1} and where the substance of the matter electronically overheard{2} is related in a federal criminal trial by those who eavesdropped as direct, not merely corroborative, evidence of the guilt of the nonconsenting party. The magnitude of the issue at hand is evidenced not simply by the obvious doctrinal difficulty of weighing such activity in the Fourth Amendment balance, but also, and more importantly, by the prevalence of police utilization of this technique. Professor Westin has documented in careful detail the numerous devices that make technologically feasible the Orwellian Big Brother. Of immediate relevance is his observation that

"participant recording," in which one participant in a conversation or meeting, either a police officer or a cooperating party, wears a concealed device that records the conversation or broadcasts it to others nearby . . . is used tens of thousands of times each year throughout the country, particularly in cases involving extortion, conspiracy, narcotics, gambling, prostitution, corruption by police officials . . . and similar crimes.{3}

Moreover, as I shall undertake to show later in this opinion, the factors that must be reckoned with in reaching constitutional conclusions respecting the use of electronic eavesdropping as a tool of law enforcement are exceedingly subtle and complex. They have provoked sharp differences of opinion both within and without the judiciary, and the entire problem has been the subject of continuing study by various governmental and nongovernmental bodies.{4}

Finally, given the importance of electronic eavesdropping as a technique for coping with the more deep-seated kinds of criminal activity, and the complexities that are encountered in striking a workable constitutional balance between the public and private interests at stake, I believe that the courts should proceed with specially measured steps in this field. More particularly, I think this Court should not foreclose itself from reconsidering doctrines that would prevent the States from seeking, independently of the niceties of federal restrictions as they may develop, solutions to such vexing problems, see Mapp v. Ohio, 37 U.S. 643 (1961), and Ker v. California, 374 U.S. 23 (1963), and see also Berger v. New York, 388 U.S. 41 (1967); Baldwin v. New York, 399 U.S. 66, 117 (1970) (dissenting opinion); California v. Green, 399 U.S. 149, 172 (1970) (concurring opinion). I also think that, in the adjudication of federal cases, the Court should leave ample room for congressional developments.

II

On these premises, I move to the problem of third-party "bugging." To begin by tracing carefully the evolution of Fourth Amendment doctrine in post-On Lee decisions has proved useful in several respects. It serves to cast in perspective both the issue involved here and the imperative necessity for reconsidering On Lee afresh. Additionally, a full exposition of the dynamics of the decline of the trespass rationale underlying On Lee strikingly illuminates the deficiencies of the plurality opinion’s retroactivity analysis.

A

On Lee involved circumstances virtually identical to those now before us. There, Government agents enlisted the services of Chin Poy, a former friend of Lee, who was suspected of engaging in illegal narcotics traffic. Poy was equipped with a "minifon" transmitting device which enabled outside Government agents to monitor Poy’s conversations with Lee. In the privacy of his laundry, Lee made damaging admissions to Poy which were overheard by the agents and later related at trial. Poy did not testify. Mr. Justice Jackson, writing for five Justices, held the testimony admissible. Without reaching the question of whether a conversation could be the subject of a "seizure" for Fourth Amendment purposes, as yet an unanswered if not completely open question,{5} the Court concluded that, in the absence of a trespass,{6} no constitutional violation had occurred.{7}

The validity of the trespass rationale was questionable even at the time the decision was rendered. In this respect, On Lee rested on common law notions, and looked to a waning era of Fourth Amendment jurisprudence. Three members of the Court refused to join with Justice Jackson, and, within 10 years, the Court expressly disavowed an approach to Fourth Amendment questions that looked to common law distinctions. See, e.g., Jones v. United States, 362 U.S. 257 (1960); Silverman v. United States, 365 U.S. 505 (1961); Lanza v. New York, 370 U.S. 139 (1962).

It is, of course, true that the opinion in On Lee drew some support from a brief additional assertion that "eavesdropping on a conversation, with the connivance of one of the parties" raises no Fourth Amendment problem. 343 U.S. at 754. But surely it is a misreading of that opinion to view this unelaborated assertion as a wholly independent ground for decision. At the very least, this rationale needs substantial buttressing if it is to persist in our constitutional jurisprudence after the decisions I discuss below. Indeed, the plurality opinion in the present case, in greatly elaborating the point, tacitly recognizes the analytic inability of this bare hypothesis to support a rule of law so profoundly important to the proper administration of justice. Moreover, if this was the true rationale of On Lee from the outset, it is difficult to see the relevance of Desist to the resolution of the instant case, for Katz surely does not speak directly to the continued viability of that ground for decision. See Katz v. United States, 389 U.S. at 363 n. (WHITE, J., concurring).

By 1963, when we decided Lopez v. United States, 373 U.S. 427, four members of the Court were prepared to pronounce On Lee and Olmstead v. United States, 277 U.S. 438 (1928), dead.{8} The pyre, they reasoned, had been stoked by decisions like Won Sun v. United States, 371 U.S. 471 (1963), which, on the one hand, expressly brought verbal communication within the sweep of the Fourth Amendment,{9} and, on the other, reinforced our Silverman and Jones decisions which "refused to crowd the Fourth Amendment into the mold of local property law," 373 U.S. at 460 (BRENNAN, J., dissenting).

Although the Court’s decision in Lopez is cited by the Government as a reaffirmation of On Lee, it can hardly be thought to have nurtured the questionable rationale of that decision or its much-criticized ancestor, Olmstead. To the discerning lawyer Lopez could only give pause, not comfort. While the majority opinion, of which I was the author, declined to follow the course favored by the dissenting and concurring Justices by sounding the death knell for Olmstead and On Lee, our holding, despite an allusion to the absence of "an unlawful . . . invasion of a constitutionally protected area," 373 U.S. at 438-439, was bottomed on two premises: the corroborative use that was made of the tape recordings, which increased reliability in the factfinding process, and the absence of a "risk" not fairly assumed by petitioner. The tape recording was made by a participant in the conversation and the opinion emphasized this absence of a third-party intrusion, expressly noting that there was no "electronic eavesdropping on a private conversation which government agents could not otherwise have overheard." 373 U.S. at 440.{10} As I point out in Part III of this opinion, it is one thing to subject the average citizen to the risk that participants in a conversation with him will subsequently divulge its contents to another, but quite a different matter to foist upon him the risk that unknown third parties may be simultaneously listening in.

While Lopez cited On Lee without disavowal of its holding, 373 U.S. at 438, it is entirely accurate to say that we did not there reaffirm it.{11} No decision since Lopez gives a breath of life to the reasoning that led to the On Lee and Olmstead results, and it required little clairvoyance to predict the demise of the basic rationale of On Lee and Olmstead foreshadowed by our subsequent opinions in Osborn v. United States, 385 U.S. 323 (166), and Berger v. New York, 388 U.S. 41 (1967).

Only three years after Lopez, MR. JUSTICE STEWART writing for the Court in Osborn v. United States, supra, expressly abjured reliance on Lopez and, instead, approved identical conduct based on the "circumstances under which the tape recording was obtained in [that] case," facts that involved

using [a recorder] under the most precise and discriminate circumstances, circumstances which fully met the "requirement of particularity" which the dissenting opinion in Lopez found necessary.

Osborn v. United States, 385 U.S. at 327, 329.{12}

Since Osborn, our decisions have shown no tolerance for the old dividing lines resting, as they did, on fiction and common law distinctions without sound policy justification in the realm of values protected by the Fourth Amendment. Thus, in abolishing the "mere evidence rule," we announced that "the principal object of the Fourth Amendment is the protection of privacy, rather than property," and once again noted the trend to discard "fictional and procedural barriers rested on property concepts." Warden v. Hayden, 387 U.S. 294, 34 (1967). That same Term, the Court demonstrated the new flexibility in Fourth Amendment doctrine when it held that the warrant protections would be applied to administrative searches. Camara v. Municipal Court, 387 U.S. 523 (1967).

Certainly if Osborn, Warden, and Camara did not plainly draw into question the vigor of earlier precedents, Berger v. New York, 388 U.S. 41, did, and expunged any remnants of former doctrine which might have been thought to have survived Osborn and Warden.{13} There, the Court, following a path opened by Mr. Justice Brandeis’ dissent in Olmstead, and smoothed in Osborn and Camara, expressed concern about scientific developments that have put within the reach of the Government the private communications of "anyone in almost any given situation," 388 U.S. at 47; it left no doubt that, as a general principle, electronic eavesdropping was an invasion of privacy, and that the Fourth Amendment prohibited unsupervised "bugging." Disturbed by the extent of intrusion which, "[b]y its very nature, . . . is broad in scope," and noting that "[f]ew threats to liberty exist which are greater than that posed by the use of eavesdropping devices," id. at 63, the Court brought to life the principle of reasonableness adumbrated in Osborn. Mr. Justice Clark, writing for the majority, reiterated the new approach:

[T]he "indiscriminate use of such [bugging] devices in law enforcement raises grave constitutional questions under the Fourth and Fifth Amendments," and imposes "a heavier responsibility on this Court in its supervision of the fairness of procedures. . . ."

388 U.S. at 56, quoting from Osborn v. United States, 385 U.S. 323, 329 n. 7. Nor did the Court waver in resolve in the face of respondent’s dire prediction that "neither a warrant nor a statute authorizing eavesdropping can be drawn so as to meet the Fourth Amendment’s requirements."{14} It was said that "[i]f that be true then the `fruits’ of eavesdropping devices are barred under the Amendment." 388 U.S. at 63.{15}

If Berger did not flatly sound a dirge for Olmstead, it articulated principles that led MR. JUSTICE DOUGLAS, by way of concurrence, to comment on its quiet burial. 388 U.S. at 64. While it was left to Katz to perform the last rites, that decision inevitably followed from Osborn and Berger. The Berger majority’s affirmative citation of On Lee for the principle that, "under specific conditions and circumstances," eavesdropping may be lawful, 388 U.S. at 63, serves only to underscore the emerging operative assumptions: that the particular circumstances of each case will be scrutinized to the end of ascertaining the reasonableness of the search, and that will depend in large measure on whether prior judicial authorization, based on a particularized showing, has been obtained. Katz v. United States, supra.

Viewed in perspective, then, Katz added no new dimension to the law. At most, it was a formal dispatch of Olmstead and the notion that such problems may usefully be resolved in the light of trespass doctrine, and, of course, it freed from speculation what was already evident, that On Lee was completely open to question.

B

But the decisions of this Court since On Lee do more than demonstrate that the doctrine of that case is wholly open for reconsideration, and has been since well before Katz was decided. They also establish sound general principles for application of the Fourth Amendment that were either dimly perceived or not fully worked out at the time of On Lee. I have already traced some of these principles in Part II-A, supra: that verbal communication is protected by the Fourth Amendment, that the reasonableness of a search does not depend on the presence or absence of a trespass, and that the Fourth Amendment is principally concerned with protecting interests of privacy, rather than property rights.

Especially when other recent Fourth Amendment decisions, not otherwise so immediately relevant, are read with those already discussed, the primacy of an additional general principle becomes equally evident: official investigatory action that impinges on privacy must typically, in order to be constitutionally permissible, be subjected to the warrant requirement. Particularly significant in this regard are Camara v. Municipal Court, 387 U.S. 523 (1967); Terry v. Ohio, 392 U.S. 1 (1968), and Chimel v. California, 395 U.S. 752 (1969).

In Camara, the Court brought under the Fourth Amendment administrative searches that had once been thought to be without its sweep. In doing so, the opinion emphasized the desirability of establishing in advance those circumstances that justified the intrusion into a home and submitting them for review to an independent assessor,{16} principles that this Court has always deemed to be at the core of Fourth Amendment protections.{17} In bringing such searches within the ambit of the warrant requirement, Camara rejected the notion that the "less hostile" nature of the search relegated this invasion of privacy to the "periphery" of Fourth Amendment concerns. 387 U.S. at 530. The central consideration was, the Court concluded, that these administrative actions, no less than the typical search, involved government officials in an invasion of privacy, and that it was against the possible arbitrariness of invasion that the Fourth Amendment with its warrant machinery was meant to guard. Berger and Katz built, as noted earlier, on Osborn v. United States, supra, and Camara, and gave further expression to the principle.{18} It was not enough that government agents acted with restraint, for reasonableness must in the first instance be judged in a detached realm.{19}

The scope and meaning of the rule have emerged with even greater clarity by virtue of our holdings setting the boundaries for the exceptions. Recently, in Chimel v. California, 395 U.S. 752 (1969), we reiterated the importance of the prior independent determination of a neutral magistrate, and underscored its centrality to the reasonableness requirement of the Fourth Amendment, and abandoned the holdings of Harris v. United States, 331 U.S. 145 (1947), and United States v. Rabinowitz, 339 U.S. 56 (1950). We were concerned by the breadth of searches occasioned by the Rabinowitz rule which frequently proved to be an invitation to a hunting expedition. Searches incident to arrest, we held, must be confined to a locus no greater than necessary to prevent injury to the arresting officer or destruction of evidence. 395 U.S. at 763, 767; cf. Terry v. Ohio, 392 U.S. 1 (1968).

To complete the tapestry, the strands of doctrine reflected in the search cases must be interwoven with the Court’s other contemporary holdings. Most significant are Terry v. Ohio, supra, and Davis v. Mississippi, 394 U.S. 721 (1969), which were also harbingers of the new thrust in Fourth Amendment doctrine. There, the Court rejected the contention that only an arrest triggered the "incident to arrest" exception to the warrant requirement of the Fourth Amendment, and held that any restraint of the person, however brief and however labeled, was subject to a reasonableness examination. 392 U.S. at 19. The controlling principle is

to recognize that the Fourth Amendment governs all intrusions by agents of the public upon personal security, and to make the scope of the particular intrusion, in light of all the exigencies of the case, a central element in the analysis of reasonableness.

392 U.S. at 18 n. 15. See also Davis v. Mississippi, 394 U.S. at 727.{20}

III

A

That the foundations of On Lee have been destroyed does not, of course, mean that its result can no longer stand. Indeed, the plurality opinion today fastens upon our decisions in Lopez, Lewis v. United States, 385 U.S. 206 (1966), and Hoffa v. United States, 385 U.S. 293 (1966), to resist the undercurrents of more recent cases emphasizing the warrant procedure as a safeguard to privacy. But this category provides insufficient support. In each of these cases, the risk the general populace faced was different from that surfaced by the instant case. No surreptitious third ear was present, and, in each opinion, that fact was carefully noted.

In Lewis, a federal agent posing as a potential purchaser of narcotics gained access to petitioner’s home and there consummated an illegal sale, the fruits of which were admitted at trial along with the testimony of the agent. Chief Justice Warren, writing for the majority, expressly distinguished the third-party overhearing involved, by way of example, in a case like Silverman v. United States, supra, noting that

there, the conduct proscribed was that of eavesdroppers, unknown and unwanted intruders who furtively listened to conversations occurring in the privacy of a house.

385 U.S. at 212. Similarly in Hoffa, MR. JUSTICE STEWART took care to mention that "surreptitious" monitoring was not there before the Court, and so too in Lopez, supra.

The plurality opinion seeks to erase the crucial distinction between the facts before us and these holdings by the following reasoning: if A can relay verbally what is revealed to him by B (as in Lewis and Hoffa), or record and later divulge it (as in Lopez), what difference does it make if A conspires with another to betray B by contemporaneously transmitting to the other all that is said? The contention is, in essence, an argument that the distinction between third-party monitoring and other undercover techniques is one of form, and not substance. The force of the contention depends on the evaluation of two separable but intertwined assumptions: first, that there is no greater invasion of privacy in the third-party situation, and, second, that uncontrolled consensual surveillance in an electronic age is a tolerable technique of law enforcement, given the values and goals of our political system.{21}

The first of these assumptions takes as a point of departure the so-called "risk analysis" approach of Lewis and Lopez and, to a lesser extent, On Lee, or the expectations approach of Katz.See discussion in Part II, supra. While these formulations represent an advance over the unsophisticated trespass analysis of the common law, they too have their limitations, and can, ultimately, lead to the substitution of words for analysis.{22} The analysis must, in my view, transcend the search for subjective expectations or legal attribution of assumptions of risk. Our expectations, and the risks we assume, are in large part reflections of laws that translate into rules the customs and values of the past and present.

Since it is the task of the law to form and project, as well as mirror and reflect, we should not, as judges, merely recite the expectations and risks without examining the desirability of saddling them upon society. The critical question, therefore, is whether, under our system of government, as reflected in the Constitution, we should impose on our citizens the risks of the electronic listener or observer without at least the protection of a warrant requirement.

This question must, in my view, be answered by assessing the nature of a particular practice and the likely extent of its impact on the individual’s sense of security balanced against the utility of the conduct as a technique of law enforcement. For those more extensive intrusions that significantly jeopardize the sense of security which is the paramount concern of Fourth Amendment liberties, I am of the view that more than self-restraint by law enforcement officials is required, and, at the least, warrants should be necessary. Cf. Terry v. Ohio, supra; Davis v. Mississippi, supra.

B

The impact of the practice of third-party bugging, must, I think, be considered such as to undermine that confidence and sense of security in dealing with one another that is characteristic of individual relationships between citizens in a free society. It goes beyond the impact on privacy occasioned by the ordinary type of "informer" investigation upheld in Lewis and Hoffa. The argument of the plurality opinion, to the effect that it is irrelevant whether secrets are revealed by the mere tattletale or the transistor, ignores the differences occasioned by third-party monitoring and 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.

Authority is hardly required to support the proposition that words would be measured a good deal more carefully and communication inhibited if one suspected his conversations were being transmitted 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.{23} Much off-hand exchange is easily forgotten, and one may count on the obscurity of his remarks, protected by the very fact of a limited audience, and the likelihood that the listener will either overlook or forget what is said, as well as the listener’s inability to reformulate a conversation without having to contend with a documented record.{24} All these values are sacrificed by a rule of law that permits official monitoring of private discourse limited only by the need to locate a willing assistant.

It matters little that consensual transmittals are less obnoxious than wholly clandestine eavesdrops. This was put forward as justification for the conduct in Boyd v. United States, 116 U.S. 616 (1886), where the Government relied on mitigating aspects of the conduct in question. The Court, speaking through Mr. Justice Bradley, declined to countenance literalism:

Though the proceeding in question is divested of many of the aggravating incidents of actual search and seizure, yet, as before said, it contains their substance and essence, and effects their substantial purpose. It may be that it is the obnoxious thing in its mildest and least repulsive form, but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure.

116 U.S. at 635.

Finally, it is too easy to forget -- and, hence, too often forgotten -- that the issue here is whether to interpose a search warrant procedure between law enforcement agencies engaging in electronic eavesdropping and the public generally. By casting its "risk analysis" solely in terms of the expectations and risks that "wrongdoers" or "one contemplating illegal activities" ought to bear, the plurality opinion, I think, misses the mark entirely. On Lee does not simply mandate that criminals must daily run the risk of unknown eavesdroppers prying into their private affairs; it subjects each and every law-abiding member of society to that risk. The very purpose of interposing the Fourth Amendment warrant requirement is to redistribute the privacy risks throughout society in a way that produces the results the plurality opinion ascribes to the On Lee rule. Abolition of On Lee would not end electronic eavesdropping. It would prevent public officials from engaging in that practice unless they first had probable cause to suspect an individual of involvement in illegal activities and had tested their version of the facts before a detached judicial officer. 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. Interposition of a warrant requirement is designed not to shield "wrongdoers," but to secure a measure of privacy and a sense of personal security throughout our society.

The Fourth Amendment does, of course, leave room for the employment of modern technology in criminal law enforcement, but in the stream of current developments in Fourth Amendment law, I think it must be held that third-party electronic monitoring, subject only to the self-restraint of law enforcement officials has no place in our society.

IV

I reach these conclusions notwithstanding seemingly contrary views espoused by both Congress and an American Bar Association study group.{25} Both the ABA study and Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 212, 18 U.S.C. § 2510 et seq. (1964 ed., Supp. V), appear to reflect little more than this Court’s prior decisions. Indeed, the comprehensive provisions of Title III are evidence of the extent of congressional concern with the impact of electronic surveillance on the right to privacy. This concern is further manifested in the introductory section of the Senate Committee Report.{26} Although § 2511(2)(c) exempts consensual and participant monitoring by law enforcement agents from the general prohibitions against surveillance without prior judicial authorization and makes the fruits admissible in court, see § 2515, congressional malaise with such conduct is evidenced by the contrastingly limited endorsement of consensual surveillance carried out by private individuals.{27} While individual Congressmen expressed concern about and criticized the provisions for unsupervised consensual electronic surveillance contained in § 2511,{28} the Senate Committee Report comment, to the effect that "[i]t [§ 2511(2)(c)] largely reflects existing law," S.Rep. No. 1097, 90th Cong., 2d Sess., 994 (1968), followed by citations to On Lee and Lopez,{29} strongly suggests that the provisions represent not intractable approval of these practices, but rather an intention to adopt these holdings and to leave to the courts the task of determining their viability in light of later holdings such as Berger, Osborn, and Katz.{30}

I find in neither the ABA study nor Title III any justification for ignoring the identifiable difference -- albeit an elusive one in the present state of knowledge -- between the impact on privacy of single-party informer bugging and third-party bugging, which, in my opinion, justifies drawing the constitutional line at this juncture between the two as regards the necessity for obtaining a warrant. Recognition of this difference is, at the very least, necessary to preserve the openness which is at the core of our traditions and is secure only in a society that tolerates official invasion of privacy simply in circumscribed situations.

The Fourth Amendment protects these traditions, and places limitations on the means and circumstances by which the Government may collect information about its citizens by intruding into their personal lives. The spirit of the principle is captured by the oft-quoted language of Boyd v. United States, 116 U.S. at 630:

The principles laid down in this opinion [speaking of Entick v. Carrington, 19 How.St.Tr. 1029 (1765)] affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case then before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employes of the sanctity of a man’s home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security. . . .

What this means is that the burden of guarding privacy in a free society should not be on its citizens; it is the Government that must justify its need to electronically eavesdrop.

V

Not content to rest upon the proposition that On Lee remains sound law, the plurality opinion would also hold that the Court of Appeals erred further in disposing "of this case based on its understanding of the principles announced in the Katz case," ante at 754, because Desist v. United States, 394 U.S. 244 (1969), held that Katz governed only governmental conduct occurring after the decision in Katz. It is difficult to know where to begin to analyze such a truly extraordinary assertion respecting the operation of the judicial process.

Because this case is here on direct review, even were the issues squarely controlled by Katz, I would unhesitatingly apply here the rule there adopted, for the reasons first expressed in my dissent in Desist, 394 U.S. at 256, and elaborated in my separate opinion in Mackeyv. United States (and companion cases), ante, p. 675. I see no purpose in repeating at this point the analysis I set forth in those opinions. Suffice it to say that, in Desist, I went to some length to point out, by discussing a hypothetical proposition, that the failure to apply any new decision by this Court to cases which had not yet run their course on direct review was inconsistent with the case-by-case approach to constitutional decision and with the proper relationship of this Court to the lower federal courts. In particular, I noted that the logic of Desist suggested that it would constitute error for a lower federal court to adopt a new constitutional rule which this Court subsequently approved. 394 U.S. at 259. Today’s opinion stands as eloquent evidence of that defect.

Indeed, I find this decision even more troubling than Desist. For the errors of Desist are not merely repeated here; they are plainly compounded. Upon the plurality opinion’s own analysis of the instant case, it is clear that Katz has no direct relevance to the present viability of On Lee.

Katz involved no revelation to the Government by a party to conversations with the defendant, nor did the Court indicate in any way that a defendant has a justifiable and constitutionally protected expectation that a person with whom he is conversing will not then or later reveal the conversation to the police.

Ante at 749. As I have already shown, one need not cite Katz to demonstrate the inability of On Lee to survive recent developments without at least substantial reformulation. To hold, then, that a mere citation of Katz, or drawing upon the philosophical underpinnings of that case in order to employ a general constitutional approach in tune with that of the decisions of this Court, conflicts with the holding of Desist is to let this obsession with prospectivity run riot.

Apparently Desist is now to be understood as holding that all lower federal courts are disabled from adjudicating on their merits all allegations of Fourth Amendment error not squarely supported by a prior decision of this Court. If so, one wonders what purpose is served by providing intermediate appellate review of constitutional issues in the federal criminal process. We must not forget that this Court is not the only tribunal in the entire federal system charged with a responsibility for the nurture and development of the Fourth Amendment. It is one thing to disable all federal courts, including this Court, from applying the settled law of the land to cases and controversies before them -- as Desist does with Katz -- and at least another giant step backward to preclude lower courts from resolving wholly disparate controversies in the light of constitutional principles. Can it be seriously contended, as the plurality opinion necessarily implies, that the Court of Appeals should not be reversed today on these alternative grounds had it simply omitted to discuss Katz. To force lower federal courts to adjudicate controversies either mechanistically or disingenuously is, for me, indefensible. Yet this is precisely what the plurality opinion does with its assertion that it is error for lower courts to "dispose" of a case based on their "understanding of the principles announced" in Katz for the next year or so.

I would hold that On Lee is no longer good law, and affirm the judgment below.