# Alderman v. United States (394 U.S. 165)/Concurrence Fortas

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinions Harlan Fortas
United States Supreme Court
394 U.S. 165
Alderman v. United States
Argued: Oct. 14, 1968. --- Decided: Oct 14, 1968
Mr. Justice FORTAS, concurring in part and dissenting in part.
In the present cases, the Court holds (1) that the Government may use evidence it obtains by unlawful electronic surveillance against any defendant who does not have 'standing' to complain; (2) that a defendant has standing only if he was a party to the overheard conversation or if it took place on 'his premises'; and (3) that all illegally obtained surveillance records as to which a defendant has standing (including national security information) must be submitted to the defendant or his counsel, subject to appropriate protective orders, and their relevance to the defendant's trial must be determined in adversary proceedings. The defendant is entitled to suppression or exclusion from his trial of such illegally obtained information and its fruits.
I find it necessary to file this separate opinion because I believe (1) that a person concerning whom an investigation involving illegal electronic surveillance has been conducted, as well as the persons given 'standing' in the majority opinion, has the right to suppression of the illegally obtained material and its fruits; and (2) that it is permissible for for trial judge, subject to suitable specifications, to order that information vital to the national security shall be examined only in camera to determine its relevance or materiality, although I agree that all other information that may be the subject of a motion to suppress must be shown to the defendant or his counsel so that its materiality can be determined in an adversary hearing.
The effect of the Court's decision, bluntly acknowledged, is to add another to the long list of cases in which the courts have tolerated governmental conduct that violates the Fourth Amendment. The courts have done this by resort to the legalism of 'standing.' See, e.g., Goldstein v. United States, 316 U.S. 114, 121, 62 S.Ct. 1000, 1004, 86 L.Ed. 1312 (1942); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Cf., United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Mancusi v. De Forte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968).
It is a fundamental principle of our constitutional scheme that government, like the individual, is bound by the law. We do not subscribe to the totalitarian principle that the Government is the law, or that it may disregard the law even in pursuit of the lawbreaker. As this Court said in Mapp v. Ohio, 367 U.S. 643, 659, 81 S.Ct. 1684, 1694, 6 L.Ed.2d 1081 (1961), 'Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.'
The Fourth Amendment to our Constitution prohibits 'unreasonable' governmental interference with the fundamental facet of individual liberty: (t)he right of the people to be secure in their persons, houses, papers, and effects.' Mr. Justice Jackson recognized the central importance of the Fourth Amendment in his dissenting opinion in Brinegar v. United States, 338 U.S. 160, 180-181, 69 S.Ct. 1302, 1313 (1949):
'Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police.'
It is disquieting when an individual policeman, through carelessness or ignorance or in response to the pressure of events, seizes a person or conducts a search without compliance with the standards prescribed by law. It is even more disturbing when law enforcement officers engage in unconstitutional conduct not because of their individual error but pursuant to a calculated institutional policy and directive.
Surreptitious electronic surveillance-the 'uninvited ear' as my Brother WHITE calls it-is a 'search and seizure' within the ambit of the Fourth Amendment. Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 682, 5 L.Ed.2d 743 (1961); Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576 (1967). It is usually the product of calculated, official decision rather than the error of an individual agent of the state. And because by nature it is hidden, unlawful electronic surveillance is even more offensive to a free society than the unlawful search and seizure of tangible material.
In recognition of the principle that lawlessness on the part of the Government must be stoutly condemned, this Court has ruled that when such lawless conduct occurs, the Government may not profit from its fruits. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), held that in a federal prosecution the Government may not use evidence secured through an illegal search and seizure. In Mapp v. Ohio, supra, the exclusionary rule was applied to the States. In that case, the Court expressly recognized that only a proscription of the use of unlawfully seized material could properly implement the constitutional prohibition. It acknowledged that other remedies were not effective sanctions. Id., at 651-653, 81 S.Ct., at 1689-1691. See also Weeks v. United States, supra, 232 U.S., at 393, 34 S.Ct., at 344; Irvine v. California, 347 U.S. 128, 137, 74 S.Ct. 381, 385, 98 L.Ed. 561 (1954); Wolf v. Colorado, 338 U.S. 25, 41-47, 69 S.Ct. 1359, 1369-1372, 93 L.Ed. 1782 (1949) (dissenting opinion); People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R.2d 513 (1955). As this Court said in Walder v. United States, 347 U.S. 62, 64-65, 74 S.Ct. 354, 356, 98 L.Ed. 503 (1954), 'The Government cannot violate the Fourth Amendment * * * and use the fruits of such unlawful conduct to secure a conviction. * * * (T)hese methods are outlawed, and convictions obtained by means of them are invalidated, because they encourage the kind of society that is obnoxious to free men.'
But for reasons which many commentators charge are related more to convenience and judicial prudence than to constitutional principles, courts of all States except California and of the federal system, including this Court, have allowed in evidence material obtained by police agents in direct and acknowledged violation of the Fourth Amendment. They have allowed this evidence except in those cases where a defendant who moves for suppression of the material can show that his personal right of privacy was violated by the unlawful search or seizure. This restriction on persons who can suppress illegally acquired evidence has been attributed by some commentators to the fact that the constitutional right to suppress was at one time considered to stem in part from the Fifth Amendment's privilege against self-incrimination. Only the person whose right has been violated can claim the protection of that privilege. 8 J. Wigmore, Evidence §§ 2196, 2270 (McNaughton rev. 1961). But if the exclusionary rule follows from the Fourth Amendment itself, there is no basis for confining its invocation to persons whose right of privacy has been violated by an illegal search. The Fourth Amendment, unlike the Fifth, is couched in terms of a guarantee that the Government will not engage in unreasonable searches and seizures. It is a general prohibition, a fundamental part of the constitutional compact, the observance of which is essential to the welfare of all persons. Accordingly, commentators have urged that the necessary implication of the Fourth Amendment is that any defendant against whom illegally acquired evidence is offered, whether or not it was obtained in violation of his right to privacy, may have the evidence excluded. It is also contended that this is the only means to secure the observance of the Fourth Amendment.
I find these arguments cogent and appealing. The Fourth Amendment is not merely a privilege accorded to him whose domain has been lawlessly invaded. It grants the individual a personal right, not to privacy, but to insist that the state utilize only lawful means of proceeding against him. And it is an assurance to all that the Government will exercise its formidable powers to arrest and to investigate only subject to the rule of law. See Brinegar v. United States, supra, 338 U.S., at 181, 69 S.Ct., at 1313 (dissenting opinion).
To allow anyone, regardless of 'standing,' to prevent the use against him of evidence that the Government has lawlessly obtained would, however, be contrary to a number of decisions stemming from Jones v. United States supra. E.g., Wong Sun v. United States, supra; Parman v. United States, 130 U.S.App.D.C. 188, 399 F.2d 559 (1968). It is the mandate of Jones that something more than the generalized interest of any citizen in governmental obedience to law may be required for suppression of unlawfully obtained evidence. But if the Court is not prepared to repudiate the holding, stated in Jones, that something more must be shown to compel suppression than a claim of prejudice based only on 'the use of evidence gathered as a consequence of a search or seizure directed at someone else,' 362 U.S., at 261, 80 S.Ct., at 731, it should at least follow Jones faithfully and completely.
Jones represented a substantial step towards full implementation of the Fourth Amendment. The case involved a charge of illegal possession of narcotics, and it held that mere lawful presence on the premises searched gave 'standing' to challenge the legality of the search. It rejected the view 'generally' held by courts of appeals 'that the movant (must) claim either to have owned or possessed the seized property or to have had a substantial possessory interest in the premises searched' in order to have the seized property suppressed. Ibid. It explicitly rejected the use of property concepts to determine whether the movant had the necessary 'interest' or 'standing' to obtain exclusion of the unlawfully seized evidence. See id., at 266, 80 S.Ct., at 733.
The Court said in Jones, in a passage the majority quotes but the full scope of which it does not incorporate in its opinion:
'In order to qualify as a 'person aggrieved by an unlawful search and seizure' one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else. * * * 'Ordinarily, then, it is entirely proper to require of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he allege, and if the allegation be disputed that he establish, that he himself was the victim of an invasion of privacy.' (Emphasis supplied.) Id., at 261, 80 S.Ct., at 731.
It is my position that this quotation, read in light of the Court's rejection of property concepts, requires that we include within the category of those who may object to the introduction of illegal evidence 'one against whom the search was directed.' Such a person is surely 'the victim of an invasion of privacy' and a 'person aggrieved,' even though it is not his property that was searched or seized. As I think the Court recognized in Jones, unless we are to insist upon property concepts, it is enough to give him 'standing' to object that the government agents conducted their u lawful search and seizure in order to obtain evidence to use against him. The Government violates his rights when it seeks to deprive him of his liberty by unlawfully seizing evidence in the course of an investigation of him and using it against him at trial. See Rosencranz v. United States, 334 F.2d 738, 741 (C.A.1st Cir. 1964) (concurring opinion).
I do not agree with the Court's decision that sensitive national security material that may not be relevant to a defendant's prosecution must be turned over to the defendant or his counsel for their scrutiny. By the term 'national security material,' I mean to refer to a rigid and limited category. It would not include material relating to any activities except those specifically directed to acts of sabotage, espionage, or aggression by or on behalf of foreign states.
Because the Court believes that no distinction can be made with respect to the defendant's right to suppress relevant evidence on the basis of the sensitivity of the material, it has concluded that no distinction can be made as to the method of determining whether the material is revelant. I agree that an in camera, inspection of the records of unlawful surveillance should not be the usual method of determining relevance. I agree with all that the Court says about the inadequacy of an inspection in which the defendant cannot participate and the burden that it places upon the trial judge. But in cases where the trial court explicitly determines, in written findings, sealed and available for examination by reviewing courts, that disclosure would substantially injure national security interests, I do not think that disclosure to the defendant is necessary in order for the Government to proceed with a prosecution. The trial judge should make such findings only when the Attorney General has personally certified that specific portions of the unlawfully obtained materials are so sensitive that they should not be disclosed. But when such a certification is made, I believe that the trial judge may himself weed out the material that he deems to be clearly irrelevant and immaterial. The balance, of course, must be turned over to the defendant or his counsel, unless the Government chooses instead to dismiss the prosecution.
Let me emphasize that the defendant's right to suppress is the same whether the charge is espionage, sabotag , or another kind of crime: Relevant material that has been illegally seized may be suppressed if the defendant has standing, but the existence of nonrelevant illegal evidence will not prevent a prosecution. Only the method of determining the relevance of the lawlessly obtained material to the prosecution would vary according to whether the national security is involved.
I agree with the majority that the possibility of error in determining relevance is much greater if there is only in camera examination. But I also agree with my Brother HARLAN that disclosure of some of the material may pose a serious danger to the national interest. I therefore reach the conclusion that a differentiation may properly be made between the method of handling materials the disclosure of which would endanger the national security and other illegally obtained materials. Skepticism as to the court's ability to detect and turn over to the defendant all relevant material may be well founded, but in camera inspection does not so clearly threaten to deprive defendants of their constitutional rights that it justifies endangering the national security. According, I would hold that after certification by the Attorney General that specific portions of unlawfully obtained materials are sensitive, the trial judge may find that their disclosure to the defendant or his counsel would substantially injure national security interests, and he may determine in camera whether the materials are arguably relevant to the defendant's prosecution.

## Notes

* ↑ The Court leaves the scope of the interest that the defendant must have in the 'premises' to be determined in future litigation.
* ↑ Mr. Justice Brandeis elaborated this point more than 40 years ago:
* ↑ We pointed out last Term that '(a) ruling admitting evidence in a criminal trial * * * has the necessary effect of legitimizing the conduct which produced the evidence, while an application of the exclusionary rule withholds the constitutional imprimatur ' Terry v. Ohio, supra, n. 2, at 13, 88 S.Ct., at 1875. See Irvine v. California, supra, n. 2, at 150, 74 S.Ct., at 392 (dissenting opinion).
* ↑ See People v. Martin, 45 Cal.2d 755, 290 P.2d 855 (1955).
* ↑ Broeder, Wong Sun v. United States: A Study in Faith and Hope, 42 Neb.L.Rev. 483, 539, 540 (1963); Comment, Fruit of the Poisonous Tree-A Plea for Relevant Criteria, 115 U.Pa.L.Rev. 1136, 1140-1141 (1967). Others have attributed the standing requirement simply to a hostility towards the exclusionary rule on the part of the courts. See, e.g., Edwards, Standing to Suppress Unreasonably Seized Evidence, 47 Nw.U.L.Rev. 471 (1952).
* ↑ Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), was a 5-to-4 decision. My Brother Black concurred only on the basis that the Fifth Amendment's ban against self-incrimination operating in conjunction with the Fourth Amendment, required the exclusionary rule. See also Ker v. California, 374 U.S. 23, 30, 83 S.Ct. 1623, 1628, 10 L.Ed.2d 726 (1963); Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964).
* ↑ The California Supreme Court has recognized that it is not inconsistent to hold that any person may object to the use against him of evidence obtained by an illegal search or seizure, while at the same time allowing only a person who has been made to incriminate himself to suppress his confession and its fruits. Compare People v. Martin, supra, n. 4, with People v. Varnum, 66 Cal.2d 808, 59 Cal.Rptr. 108, 427 P.2d 772 (1967).
* ↑ See generally Grant, Circumventing the Fourth Amendment, 14 So.Cal.L.Rev. 359, 368 (1941); Allen, The Wolf Case: Search and Seizure, Federalism, and the Civil Liberties, 45 Ill.L.Rev. 1, 22 (1950); Kamisar, Illegal Searches or Seizures and Contemporaneous Incriminating Statements: A Dialogue on a Neglected Area of Criminal Procedure, 1961 U.Ill.L.F. 78, 105. Traynor, Mapp v. Ohio at Large in the Fifty States, 1962 Duke L.J. 319, 335; Broeder, supra, n. 5, at 540; Pitler, 'The Fruit of the Poisonous Tree' Revisited and Shepardized, 56 Calif.L.Rev. 579, 649-650, n. 352 (1968); Comment, Judicial Control of Illegal Search and Seizure, 58 Yale L.J. 144, 157 ( 948); Note, Standing to Object to an Unlawful Search and Seizure, 1965 Wash.U.L.Q. 488; Comment, Standing to Object to an Unreasonable Search and Seizure, 34 U.Chi.L.Rev. 342 (1967). But see Edwards, supra, n. 5, at 472; Weeks, Standing to Object in the Field of Search and Seizure, 6 Ariz.L.Rev. 65 (1964); Comment, 55 Mich.L.Rev. 567, 581 (1957).
* ↑ I assume that the Court today intends to incorporate at least this direct holding of Jones.
* ↑ Title III of the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. 90-351, 82 Stat. 211, provides that a law enforcement officer seeking prior judicial authorization for interception of wire or oral communications shall include, among other things, in his application to the court 'a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed, (ii) a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communications sought to be intercepted, (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted * * *.' 82 Stat. 218 (18 U.S.C. § 2518(1) (b) (1964 ed., Supp. IV)). Examination of such applications should facilitate the task of deciding at whom a particular investigation was directed. See also Berger v. New York, 388 U.S. 41, 55-59, 87 S.Ct. 1873, 1881-1884, 18 L.Ed.2d 1040 (1967), in which we held that the Fourth Amendment requires, as a precondition of judicial authorization of an eavesdrop, that the conversations sought to be seized be described with particularity.
Although I have referred to relevant provisions of the Omnibus Crime Control and Safe Streets Act, I note that I have not considered the constitutionality of the Act, as that issue is not involved in this case. I express neither agreement nor disagreement with the majority's statements concerning the Act.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
Public domainPublic domainfalsefalse