MR. JUSTICE ROBERTS delivered the opinion of the Court.
The petitioners and another were indicted for conspiracy
The petitioners were lawyers. One of them, Martin Goldman, approached Hoffman, the attorney representing
Meantime, two federal agents, with the assistance of the building superintendent, obtained access at night to Shulman's office and to the adjoining one and installed a listening apparatus in a small aperture in the partition wall, with a wire to be attached to earphones extending into the adjoining office. This was for the purpose of overhearing a conference with Hoffman, set for the following afternoon. The next afternoon, one of the agents returned to the adjoining room with two others and a stenographer. They connected the earphones to the apparatus but it would not work. They had with them another device, a detectaphone, having a receiver so delicate as, when placed against the partition wall, to pick up sound waves originating in Shulman's office, and means for amplifying and hearing them. With this
Before the trial, Shulman learned the facts and made a motion, in which the other petitioners joined, to suppress the evidence thus obtained. A preliminary hearing was had and the motion was denied. At the trial, the evidence was admitted over objection that its receipt violated the Fourth Amendment of the Constitution and, as respects Shulman's talk into the telephone receiver, violated also § 605 of the Federal Communications Act.
At the preliminary hearing, and at the trial, counsel for petitioners demanded that they be permitted to inspect the notes and memoranda made by the agents during the investigation, the agents having admitted they had refreshed their recollection from these papers prior to testifying. The trial judge ruled that the papers need not be exhibited by the witnesses.
1. We hold there was no error in denying the inspection of the witnesses' memoranda. The judge was clearly right in his ruling at the preliminary hearing, as the petitioners should not have had access, prior to trial, to material constituting a substantial portion of the Government's case.
We think it the better rule that where a witness does not use his notes or memoranda in court, a party has no absolute right to have them produced and to inspect them. Where, as here, they are not only the witness' notes but are also part of the Government's files, a large discretion must be allowed the trial judge. We are unwilling to hold that the discretion was abused in this case.
The petitioners contend that a communication falls within the protection of the statute once a speaker has uttered words with the intent that they constitute a transmission of a telephone conversation. The validity of the contention must be tested by the terms of the Act fairly construed. So considered, there was neither a "communication" nor an "interception" within the meaning of the Act. The protection intended and afforded by the statute is of the means of communication and not of the secrecy of the conversation. Section 3 embodies the following definition:
"(a) `Wire communication' or `communication by wire' means the transmission of writing, signs, signals, pictures, and sounds of all kinds by aid of wire, cable, or other like connection between the points of origin and reception of such transmission, including all instrumentalities, facilities, apparatus, and services (among other things, the receipt, forwarding, and delivery of communications) incidental to such transmission."
What is protected is the message itself throughout the course of its transmission by the instrumentality or agency of transmission.
3. We hold that what was heard by the use of the detectaphone was not made illegal by trespass or unlawful entry.
The petitioners' contend that the trespass committed in Shulman's office when the listening apparatus was there installed, and what was learned as the result of that trespass, was of some assistance on the following day in locating the receiver of the detectaphone in the adjoining office, and this connection between the trespass and the listening resulted in a violation of the Fourth Amendment. Whatever trespass was committed was connected with the installation of the listening apparatus. As respects it, the trespass might be said to be continuing and, if the apparatus had been used it might, with reason, be claimed that the continuing trespass was the concomitant
4. We hold that the use of the detectaphone by Government agents was not a violation of the Fourth Amendment.
In asking us to hold that the information obtained was obtained in violation of the Fourth Amendment, and that its use at the trial was, therefore, banned by the Amendment, the petitioners recognize that they must reckon with our decision in Olmstead v. United States, 277 U.S. 438. They argue that the case may be distinguished. The suggested ground of distinction is that the Olmstead case dealt with the tapping of telephone wires, and the court adverted to the fact that, in using a telephone, the speaker projects his voice beyond the confines of his home or office and, therefore, assumes the risk that his message may be intercepted. It is urged that where, as in the present case, one talks in his own office, and intends his conversation to be confined within the four walls of the room, he does not intend his voice shall go beyond those walls and it is not to be assumed he takes the risk of someone's use of a delicate detector in the next room. We think, however, the distinction is too nice for practical application of the Constitutional guarantee, and no reasonable or logical distinction can be drawn between what federal agents did in the present case and state officers did in the Olmstead case.
The petitioners ask us, if we are unable to distinguish Olmstead v. United States, to overrule it. This we are unwilling to do. That case was the subject of prolonged consideration by this court. The views of the court, and
The judgments are
MR. CHIEF JUSTICE STONE and MR. JUSTICE FRANKFURTER:
Had a majority of the Court been willing at this time to overrule the Olmstead case, we should have been happy to join them. But as they have declined to do so, and as we think this case is indistinguishable in principle from Olmstead's, we have no occasion to repeat here the dissenting views in that case with which we agree.
MR. JUSTICE JACKSON took no part in the consideration or decision of these cases.
MR. JUSTICE MURPHY, dissenting:
I cannot agree, for to me it is clear that the use of the detectaphone under the circumstances revealed by this record was an unreasonable search and seizure within the clear intendment of the Fourth Amendment.
One of the great boons secured to the inhabitants of this country by the Bill of Rights is the right of personal privacy guaranteed by the Fourth Amendment. In numerous ways the law protects the individual against unwarranted intrusions by others into his private affairs.
On the value of the right to privacy, as dear as any to free men, little can or need be added to what was said in Entick v. Carrington, 19 How. St. Tr. 1030, Boyd v. United States, 116 U.S. 616, and Mr. Justice Brandeis' memorable dissent in Olmstead v. United States, 277 U.S. 438, 471. Suffice it to say that the spiritual freedom of the individual depends in no small measure upon the preservation of that right. Insistence on its retention does not mean that a person has anything to conceal, but means rather that the choice should be his as to what he wishes to reveal, saving only to the Government the right to seek out crime under a procedure with suitable safeguards for the protection of individual rights, such as the warrant whose requisites are set forth in the Fourth Amendment.
The conditions of modern life have greatly expanded the range and character of those activities which require protection from intrusive action by Government officials if men and women are to enjoy the full benefit of that privacy which the Fourth Amendment was intended to provide. It is our duty to see that this historic provision receives a construction sufficiently liberal and elastic to make it serve the needs and manners of each succeeding generation. Cf. Grau v. United States, 287 U.S. 124, 128, and cases cited. Otherwise, it may become obsolete, incapable of providing the people of this land adequate protection. To this end we must give mind not merely to the exact words of the Amendment, but also to its historic purpose, its high political character, and its modern social and legal implications.
With the passing of the years since 1787, marked changes have ensued in the ways of conducting business and personal affairs. Many transactions of a business or personal character that in the eighteenth century were conducted at home are now carried on in business offices away from the home. If the method and habits of the people in 1787 with respect to the conduct of their private business had been what they are today, is it possible to think that the framers of the Bill of Rights would have been
There was no physical entry in this case. But the search of one's home or office no longer requires physical entry, for science has brought forth far more effective devices for the invasion of a person's privacy than the direct and obvious methods of oppression which were detested by our forebears and which inspired the Fourth Amendment.
On the basis of the narrow, literal construction of the search and seizure clause of the Fourth Amendment adopted in Olmstead v. United States, 277 U.S. 438,
But even if Olmstead's case is to stand, it does not govern the present case. It was not the intention of petitioners to project their conversations beyond the walls of petitioner Shulman's private office.
The benefits that accrue from this and other articles of the Bill of Rights are characteristic of democratic rule. They are among the amenities that distinguish a free society from one in which the rights and comforts of the individual are wholly subordinated to the interests of the state. We cherish and uphold them as necessary and salutary checks on the authority of government. They provide a standard of official conduct which the courts must enforce. At a time when the nation is called upon to give freely of life and treasure to defend and preserve the institutions of democracy and freedom, we should not permit any of the essentials of freedom to lose vitality through legal interpretations that are restrictive and inadequate for the period in which we live.
On the subject of the general warrant, see Entick v. Carrington, 19 How. St. Tr. 1030, and May, Constitutional History of England (2d ed.), vol. III, pp. 1-10.
For an account of the writs of assistance, see Quincy (Mass.) 51 (1761) and Gray's appendix to Quincy's Reports. See also Tudor, James Otis, p. 66, and John Adams, Works, vol. II, p. 524.
The lettres de cachet are discussed in Chassaigne, Les Lettres de Cachet sous L'ancien Regime (Paris, 1903).
While the detectaphone is primarily used to obtain evidence, and while such use appears to be condemned by the rulings of this Court in Gouled v. United States, 255 U.S. 298, and United States v. Lefkowitz, 285 U.S. 452, I am not prepared to say that this purpose necessarily makes all detectaphone "searches" unreasonable, no matter what the circumstances, or the procedural safeguards employed. Cf. Marron v. United States, 275 U.S. 192. See Wigmore, Evidence (3d ed.), vol. 8, §§ 2251, 2264; 31 Yale L.J. 518, 522; Chafee, Progress of the Law, 1919-1922, 35 Harv. L. Rev. 673, 699; 32 Col. L. Rev. 386; Cooley, Constitutional Limitations (8th ed.), vol. 1, p. 625.
The decisions of this Court prior to the Olmstead case insisted on a liberal construction of the Fourth Amendment and placed within its compass activities bearing slight, if any, resemblance to the mischiefs known at the time of its adoption. See Boyd v. United States, 116 U.S. 616; Silverthorne Lumber Co. v. United States, 251 U.S. 385; Gouled v. United States, 255 U.S. 298.