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Wiretapping and Eavesdropping - Early Restrictions On Electronic Surveillance

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The Supreme Court first considered the constitutionality of wiretapping in the 1928 case of Olmstead v. United States, 277 U.S. 438 (1928). The Court ruled that governmental wiretapping of telephone conversations fell outside the protection of the Fourth Amendment. The Court based its conclusion upon a narrow, textual reading of the amendment. First, the Court found that words spoken into a telephone were not tangible things and thus could not be subjected to a search or seizure. Second, it reasoned that because wiretapping could be accomplished without a trespass, there was no physical invasion of property to justify invoking the Fourth Amendment. Finally, the Court assumed that one who uses the telephone "intends to project his voice to those quite outside."

The ruling in Olmstead was controversial. The Court split five to four, and there were strong reactions from Congress and the public opposing the ruling. Although Olmstead permitted police officials to employ wiretapping without constitutional restraints, Olmstead did not address the constitutionality of informant spying. The Court would tackle that issue in the 1952 case of On Lee v. United States, 343 U.S. 747 (1952). In On Lee, the defendant challenged the constitutionality of the government's use of a wired informant to record his statements. Chin Poy, a friend and former employee of On Lee, went to On Lee's laundry shop secretly wired for sound with a small microphone inside his coat pocket. A federal officer stationed outside the laundry intercepted the conversation between On Lee and Chin Poy. Several days later, the same officer monitored another conversation between On Lee and Chin Poy. During both conversations, On Lee made incriminating statements.

The Court ruled that the government's conduct did not violate On Lee's Fourth Amendment rights. No constitutional trespass had occurred because On Lee consented to Chin Poy's entry into the laundry shop. The Court also rejected On Lee's companion claim that the officer committed a trespass because the electronic equipment allowed him to overhear secretly what transpired inside the shop. The Court called this argument "frivolous." The Court explained that only a "physical entry," such as one associated with force, submission to legal coercion, or without any sign of consent, would trigger constitutional protection against clandestine surveillance. Finally, the Court dismissed the contention that it should treat informant surveillance on an equal footing with police wiretapping. To the Court, the use of a radio wire in these circumstances suggested only "the most attenuated analogy to wiretapping."

By the 1960s, the Court, which was then led by Chief Justice Earl Warren, had reexamined and overturned many constitutional rulings affecting the rights of criminal suspects. But the Warren Court's willingness to limit the search and seizure powers of the police did not extend to informant spying. In a trio of cases in the mid-1960s, the Court refused to impose constitutional restrictions on the government's power to employ informants to monitor and record private conversations. In Lopez v. United States, 373 U.S. 427 (1963), the defendant appealed his conviction for the attempted bribery of an Internal Revenue agent who had visited Lopez's business to inquire about the payment of excise taxes. During this visit, Lopez offered the agent a bribe. Several days later, the agent returned to the office secretly equipped with a pocket tape recorder. Pretending to go along with the bribery scheme, the agent recorded his conversation with Lopez, who again made incriminating statements. At trial, the agent's testimony about the bribery conversation and the tape recording of the second conversation were both admitted into evidence.

The Court ruled that Lopez's Fourth Amendment rights were not violated. Critical to the Court's conclusion was the fact that Lopez had consented to the agent's presence. The only evidence seized by the agent was evidence that Lopez had voluntarily given to the agent. While the Lopez majority upheld Lopez's conviction, four dissenting Justices not only argued that Lopez's Fourth Amendment rights had been violated, but insisted that both Olmstead and On Lee were wrongly decided. Notwithstanding the views of the dissenters in Lopez, the Court would issue two additional decisions in 1966 that reaffirmed the government's unfettered discretion to plant informants within private places.

In Lewis v. United States, 385 U.S. 206 (1966), an undercover police officer misrepresented his identity during a telephone conversation and obtained an invitation to visit Lewis's home to purchase narcotics. The officer visited Lewis's home twice, both times purchasing narcotics. Unlike the government agent in Lopez, the officer in Lewis was not wired for sound. At trial, both the narcotics and the officer's testimony regarding his conversations with Lewis were admitted into evidence. Upholding Lewis's conviction, the Court implied that Lewis had assumed the risk that his statements would be overheard and used against him by inviting the undercover agent into his home to conduct illegal business. While recognizing that a person's home is normally accorded heightened Fourth Amendment protections, the Court ruled that those protections are waived when, as here, the individual uses his home as a commercial center and invites outsiders in to conduct illegal business.

Hoffa v. United States, 385 U.S. 293 (1966), also rested upon an assumption of risk rationale. A government informant, who was also a member of union leader Jimmy Hoffa's entourage, reported to the F.B.I. incriminating conversations made by Hoffa in his hotel suite and other places. Hoffa argued that the informant's actions infringed his Fourth Amendment rights. The Court upheld Hoffa's conviction, ruling that Hoffa had effectively forfeited his right to rely on the security of his hotel suite by allowing the informant to enter it and to hear and participate in the incriminating conversations. The Court explained that no interest protected by the Fourth Amendment was infringed in Hoffa. All that could be said about Hoffa's constitutional interest was that "he was relying upon his misplaced confidence" that the informant would not reveal his wrongdoing. That interest, however, was not protected by the Fourth Amendment.

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