Salvatore Cioffi v. United States

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Docket Number

73-1727

Judges

Justice DOUGLAS
Justice BRENNAN

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At a bare minimum, Katz must be read to require that monitoring of this sort be conducted only pursuant to a warrant: "Over and again this Court has emphasized that the mandate of the [Fourth] Amendment requires adherence to judicial processes,' United States v. Jeffers, 342 U.S. 48, 51, 72 S. Ct. 93, 96 L. Ed. 59, and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendmentâsubject only to a few specifically established and well-delineated exceptions.' 389 U.S., at 357, 88 S. Ct. 507 (footnotes omitted). In the absence of such judicial supervision, there is no effective safeguard against the possibility of an uncontrolled electronic police state.

In my view the Executive Branch acts unlawfully when it invades an individual's privacy through trickery or fraud. See, e. g., Lewis v. United States, 385 U.S. 206, 344-347, 87 S. Ct. 424, 17 L. Ed. 2d 312 (Douglas, J., dissenting); Hoffa v. United States, 385 U.S. 293, 347-348, 87 S. Ct. 408, 17 L. Ed. 2d 374 (separate opinion of Douglas, J.). The dangers posed by such invasions become particularly acute, however, when they are achieved through or accompanied by electronic monitoring of the sort presented here.

I would grant certiorari.

See, e. g., Lopez v. United States, 373 U.S. 427, 83 S. Ct. 1381, 10 L. Ed. 2d 462; Osborn v. United States, 385 U.S. 323, 87 S. Ct. 429, 17 L. Ed. 2d 394; United States v. White, 401 U.S. 745, 91 S. Ct. 1122, 28 L. Ed. 2d 453.

See United States v. White, 401 U.S., at 760, 91 S. Ct. 1122 (Douglas, J., dissenting); id., at 755-756, 91 S. Ct. 1122 (Brennan, J., concurring). In Osborn v. United States, 385 U.S. 323, 87 S. Ct. 429, 17 L. Ed. 2d 394, the Court upheld the use of a recording of a face-to-face conversation where there had been prior dudicial authorization for the recording. Id., at 329-330, 87 S. Ct. 429. In my dissent from Osborn and elsewhere, I have set forth my view that even prior judicial approval cannot validate intrusions into constitutionally protected zones of privacy for the seizure of mere evidentiary material; the need for this protection is particularly acute when the items to be seized are an individual's own words, thoughts, papers and personal effects, even if no Fifth Amendment problem is squarely presented. Id., at 349-354, 87 S. Ct. 429 (Douglas, J., dissenting); Warden v. Hayden, 387 U.S. 294, 319-325, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (Douglas, J., dissenting); Couch v. United States, 409 U.S. 322, 343, 93 S. Ct. 611, 34 L. Ed. 2d 548 (Douglas, J., dissenting). In light of the absence of any attempt to secure judicial authorization in the present case, I see no need to press that view further at this time.

See, e. g., Osborn v. United States, 385 U.S., at 352-354, 87 S. Ct. 429 (Douglas, J., dissenting); United States v. White, 401 U.S., at 762-765, 91 S. Ct. 1122 (Douglas, J., dissenting); Lopez v. United States 373 U.S., at 463-471, 83 S. Ct. 1381 (Brennan, J., dissenting).

Salvatore Cioffi v. United States

Salvatore Cioffi v. United States

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