# Desist v. United States/Dissent Fortas

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinions Douglas Harlan Fortas
United States Supreme Court
394 U.S. 244
Desist v. United States
Argued: Nov. 12, 1968. --- Decided: March 24, 1969
Mr. Justice FORTAS, dissenting.
The decisions today in Kaiser v. New York, 394 U.S. 280, 89 S.Ct. 1044, 22 L.Ed.2d 274 and Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 apply to only the limited number of cases where the constitutionally forbidden wiretap or eavesdropping occurred prior to December 18, 1967. It was on that day that we decided Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, which administered the formal coup de grace to the moribund doctrine of Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928). The Court in effect grants absolution to police invasions of individual privacy by wiretaps and electronic devices not involving physical trespass, as long as the unconstitutional conduct took place before Katz. It holds that only from and after Katz will it apply the Fourth Amendment's command without reference to whether a physical trespass was involved. The significance of the decisions is not only that they deprive a relatively few convicted persons of their constitutional rights, but also that they diminish the Constitution; they imply that the availability of constitutional principle can be the subject of judicial choice in circumstances which, I respectfully submit, are far from compelling. I cannot agree.
The Court says that it has authority to determine whether a ruling will be made 'retroactive,' and it gives several reasons for its decision not to apply Katz 'retroactively': (1) Katz 'was a clear break with the past' because it repudiated Olmstead's requirement of a physical trespass into the accused's home or office, 394 U.S., at 248, 89 S.Ct., at 1033; (2) the purpose of the Katz rule excluding evidence even where there was no physical intrusion was to deter police invasion of constitutional rights, a purpose that would not be aided by 'retrospective' application of the ruling; (3) police and courts alike, until Katz, justifiably relied upon the continuing vitality of Olmstead; and (4) it would unduly burden law administration to apply Katz 'retroactively.' The Court derives these factors from various of its decisions, commencing with Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L Ed.2d 601 (1965), in which decisions of this Court have been held to apply prospectively only.
In my judgment the Court's holding is of pervasive importance because it adds new and unhappy dimensions to the 'non-retroactivity' doctrine. Not only does the Court deny the benefit of a fundamental constitutional provision, and not merely of court-made rules implementing a constitutional mandate or of a statutory principle, to a class of persons because of the chance operation of the judicial calendar; it does so in face of the fact that the ruling at issue is neither novel nor unanticipated. The Court's statement to the contrary is, as I shall discuss, simply unsupportable.
I do not challenge this Court's power to decline to apply newly devised rules implementing constitutional principles to prior cases or situations, or its authority to make similar accommodation when it changes longstanding statutory interpretations. Most of the Court's 'non-retroactivity' holdings have emerged in state cases dealing with the application of a ruling that was relatively unpresaged and the practical effect of which, if applied to the past as well as the future, would be acutely disruptive of state practice and institutions. In those cases the pressures of comity and the hesitancy drastically to nullify state actions lent special force to the demand that the decision should not be applied 'retroactively.' In DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093 (1968), for example, these circumstances were deemed to warrant only prospective application of the right to trial by jury in state prosecutions that was established in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444 (1968), and Bloom v. Illiniois, 391 U.S. 194, 88 S.Ct. 1477 (1968).
The Court so held even though it thereby let stand convictions that had been rendered pursuant to a faulty reading of the Constitution. Even where considerations that favor 'non-retroactiviey' exist, however, a new constitutional rule will not always be 'non-retroactively' applied. The Court has insisted that all persons, not just those selected by the chance of the calendar, receive the benefit of newly declared constitutional commands that are central to the reliability of the fact-finding process at trial and without which innocent persons may have been adjudged guilty. See, e.g., Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968) (holding retroactive Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968)); McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968) (holding retroactive Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967)); Arsenault v. Com. of Massachusetts, 393 U.S. 5, 89 S.Ct. 35, 21 L.Ed.2d 5 (1968) (holding retroactive White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963)); Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508 (1969) (holding retroactive Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968)); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).
In the present cases, the Court decides that the lawfulness of wiretaps and electronic eavesdropping occurring before December 18, 1967, will be controlled by Olmstead v. United States, supra, a decision that the Court agrees is a false and insupportable reading of the Constitution. The Court holds that the Fourth Amendment meant something quite different before Katz was decided than it means afterwards; that Katz and persons whose rights are violated after the date of that decision may have the benefit of the true meaning of the constitutional provision, but that those who were victims before Katz may not.
If such a distinction in the application of a substantive constitutional principle can ever be justified, it can be only in the most compelling circumstances. Such circumstances might possibly exist if the newly announced principle related only to the States, in that it extended to the States a principle heretofore deemed to apply only to the Federal Government, or if 'retroactive' application would place an extreme burden on the administration of justice; if the new ruling were wholly unanticipated in the decisions of the Court; and if the new rule did not directly and clearly affect the fairness of the trial. Cf. DeStefano v. Woods, supra; Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772 (1966); Linkletter v. Walker, supra. B t there is no justification for refusing 'retroactive' application to a constitutional principle merely because of an earlier reading of the Constitution that had been widely repudiated as unsound and that this Court's own intervening opinions had discredited, although not expressly overruled. Olmstead is in this category. Katz did no more than administer the coup de grace to its moribund doctrine. The action of the Court today cannot be justified by claiming that it is required by Olmstead's continued vitality. On the contrary, the Court today breathes life into Olmstead's corpse.
In Kaiser v. New York, the Court affirms a state conviction despite the fact that the conviction was based upon telephone conversations that the police had recorded by a wiretap. The petitioner made the telephone calls to a coconspirator at a bar in Manhattan. The police had installed a wiretap device in the terminal box in the building where the bar was located.
The taps were made pursuant to a warrant issued under a New York statute. The warrant cannot, however, support the use of the wiretap evidence, for in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040, decided on June 12, 1967, we held that the New York statute did not comply with Fourth Amendment requirements. The Court's decision rests instead on the fact that the petitioner's conversations were intercepted and recorded without a trespass and on the assertion that the Olmstead doctrine was fully viable at the time that the petitioner's telephone conversations were overheard.
In Desist v. United States, the federal case decided today, the federal agents attached the 'uninvited ear' of the microphone to the outer instead of the inner panel of the double door separating their hotel room from that of the petitioners. Because of this distinction, their conduct is today held to be immunized from Fourth Amendment attack. Olmstead would sanction the differentiation. If the microphone had been attached to the inner panel, or if the agents had used a device that impinged by 1/1000th of an inch upon the room rented by petitioners, Olmstead would not have sanctified the result. See Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961).
This distinction is, of course, nonsense, as I suppose most rational persons would agree; and I am unwilling to suppose that if the majority in Olmstead had foreseen the ensuing development and uninhibited use of electronic devices for searching out and seizing the words of others, it would have nevertheless allowed the perimeter of physical property rights to limit the Fourth Amendment's protection of citizens' privacy from unseen invasion.
In any event, there is no doubt that Olmstead was thoroughly repudiated by this Court long before December 18, 1967, when Katz was decided. Katz is not responsible for killing Olmstead. Prior cases had left the physical-trespass requirement of Olmstead virtually lifeless and merely awaiting the death certificate that Katz gave it. They demonstrated to all who were willing to receive the message that Olmstead would not shield eavesdropping because it took place outside the physical pro erty line. Silverman v. United States, supra; Clinton v. Virginia, 377 U.S. 158, 84 S.Ct. 1186, 12 L.Ed.2d 213 (1964); Berger v. New York, supra.
Not for 17 years, until this day, has this Court applied Olmstead to sanction a Fourth Amendment violation because of Olmstead's peculiar distinction. Statements by the Department of Justice in recent years have placed no reliance upon Olmstead's quaint constriction of the individual's area of privacy. The Omnibus Crime Control and Safe Streets Act of 1968, recently enacted by Congress, does not recognize Olmstead's long-out-moded distinction between permissible and impermissible invasions of privacy. That statute requires judicial authorization for wiretaps and electronic surveillance, whether or not they would involve a physical trespass. Pub.L. 90-351, Tit. III, 82 Stat. 211. The New York statute involved in Kaiser purports to require warrants for eavesdropping, but it makes no such absurd distinction as Olmstead describes. N.Y.Code Crim.Proc. § 813-a.
Only those police officials and courts whose devotion to wiretapping and electronic surveillance is so intense as to induce them to exploit those techniques until the last spade of earth is shoveled on the doctrinal corpse have continued to rely on Olmstead. It is not the least of the unfortunate consequences of today's decisions that they validate this kind of foot-dragging. They reward those who fought the battle for uncontrolled police eavesdropping to the bitter end, despite the clear, though undelivered, verdict. They add this Court's approval to those who honor the Constitution's mandate only where acceptable to them or compelled by the precise and inescapable specifics of a decision of this Court. And they award dunce caps to those law enforcement officers, courts, and public officials who do not merely stand by until an inevitable decree issues from this Court, specifically articulating that which is clearly immanent in the fulfillment of the Constitution, but who generously apply the mandates of the Constitution as the developing case law elucidates them.
The full realization of our great charter of liberty, set forth in our Constitution, cannot be achieved by this Court alone. History does not embrace the years needed for us to hold, millimeter by millimeter, that such and such a penetration of individual rights is an infringement of the Constitution's guarantees. The vitality of our Constitution depends upon conceptual faithfulness and not merely decisional obedience. Certainly, this Court should not encourage police or other courts to disregard the plain purport of our decisions and to a opt a let's-wait-until-it's-decided approach.
The best evidence of the moribund state of Olmstead at the time Katz was decided is the Court's opinion in Katz itself. That opinion acknowledged and relied upon the fact that Olmstead had long ceased to have vitality. In Katz, the Court said:
'It is true that the absence of (physical) penetration was at one time thought to foreclose further Fourth Amendment inquiry, Olmstead v. United States, 277 U.S. 438, 457, 464, 466, 48 S.Ct. 564, 565, 567, 568, 72 L.Ed. 944; Goldman v. United States, 316 U.S. 129, 134-136, 62 S.Ct. 993, 995-997, 86 L.Ed. 1322, for that Amendment was thought to limit only searches and seizures of tangible property. But '(t)he premise that property interests control the right of the Government to search and seize has been discredited.' Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 304, 87 S.Ct. 1642, 1648, 18 L.Ed.2d 782. Thus, although a closely divided Court supposed in Olmstead that surveillance without any trespass and without the seizure of any material object fell outside the ambit of the Constitution, we have since departed from the narrow view on which that decision rested. Indeed, we have expressly held that the Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statememts overheard without any 'technical trespass under * * * local property law.' Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 682, 5 L.Ed.2d 734. Once this much is acknowledged, and once it is recognized that the Fourth Amendment protects people and not simply 'areas'-against unreasonable searches and seizures it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure.
'We conclude that the underpinnings of Olmstead and Goldman have been so eroded by our subsequent decisions that the 'trespass' doctrine there enunciated can no longer be regarded as controlling. * * *' 389 U.S., at 352-353, 88 S.Ct. at 512.
Since Katz itself recognized that Olmstead had been 'eroded by our subsequent decisions' and that we had 'since departed from the narrow view on which (it) * * * rested,' how can the Court now say that because Katz overruled Olmstead it 'was a clear break with the past'? The issue presented by Desist and Kaiser is not whether the petitioners will be given the benefit of Katz. The issue is not whether Katz is 'retroactive.' The issue is whether because in Katz we formally announced that the 'reach of (the Fourth Amendment) * * * cannot turn upon the presence or absence of a physical intrusion into any given enclosure,' persons claiming the benefit of this principle prior to that date must be denied its protection. It is, I submit, entirely appropriate to state the issue in these terms because there can be no doubt whatever that if the present cases had been presented to this Court a day, a year, or a number of years before Katz, we would have held that the petitioners' constitutional rights had been violated, and that the petitioners were entitled, like any other citizens, to their constitutional rights. In these circumstances, I utterly fail to see how today's decisions can be justified. It is indeed a paradox that Katz, whose role it was to bury the corpse of Olmstead, is here being used to revive it.

## Notes

* ↑ Linkletter held that the Court's decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), that illegally seized evidence was not admissible in state prosecutions, should not be applied 'retroactively'. In Tehan v. U.S. ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966), the Court held that its decision in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), that it violates the privilege against self-incrimination for the prosecution or the trial judge to comment on a criminal defendant's failure to testify in his defense, should not apply 'retroactively.' Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), held that Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), should not apply 'retroactively.' Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), held that United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), both of which related to the right to counsel at a pretrial lineup, should not be applied 'retroactively.' In DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968), the Court held that the right to trial by jury in state criminal prosecutions that had been established in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), and Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968), was not 'retroactive.' Finally, the Court held in Fuller v. Alaska, 393 U.S. 80, 89 S.Ct. 61, 21 L.Ed.2d 212 (1968), that Lee v. Florida, 392 U.S. 378, 88 S.Ct. 2096, 20 L.Ed.2d 1166 (1968), was not 'retroactive.' Lee ruled that evidence obtained in violation of § 605 of the Federal Communications Act of 1934, 48 Stat. 1103, 47 U.S.C. § 605, was inadmissible in state criminal prosecutions.
* ↑ The meaning of 'prospectivity' or 'nonretroactivity' has varied in the Court's decisions. In Linkletter v. Walker, supra, n. 1, and Tehan v. U.S. ex rel. Shott, supra, n. 1, Mapp and Griffin were said not to apply to convictions that had become final prior to the announcement of those decisions. But Mapp and Griffin were applied to cases pending on direct review at the time of those decisions. Johnson v. New Jersey, supra, n. 1, by contrast, held Miranda and Escobedo applicable only to trials begun after Miranda and Escobedo were announced. Stovall v. Denno, supra, n. 1, held that the Wade and Gilbert decisions should apply only to cases in which the illegal official conduct took place after the date of decision. DeStefano v. Woods, supra, n. 1, held that Duncan and Bloom should apply only to cases where the trial commenced after the date of decision, a date which, since these cases involved the right to jury trial, was apt to coincide with the date of the official conduct. Fuller v. Alaska, supra, n. 1, held that Lee v. Florida, supra, n. 1, would apply only in cases in which the illegally obtained evidence was introduced after the date of decision. In all of these cases, the new rule was applied also in the case in which it was announced.
* ↑ Cf. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966) (rules concerning in-custody interrogation); Mapp . Ohio, 367 U.S. 643, 81 S.Ct. 1684 (1961) (exclusionary rule).
* ↑ Cf. Fuller v. Alaska, 393 U.S. 80, 89 S.Ct. 61 (1968).
* ↑ If the evidence introduced in Desist had been obtained by telephone wiretap, I assume the majority would have to agree that it could not be used at trial. This is a federal case, and as early as 1937 this Court held that evidence obtained in violation of § 605 of the Federal Communications Act, 48 Stat. 1103, 47 U.S.C. § 605, may not be received in evidence in a federal court. Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314. The fact that a telephone wiretap would not be admissible in the circumstances of this case further elucidates the whimsicality of the present decision. As a result of the chance sequence of decisions, the Court gives less cope to the Federal Government's violation of constitutional mandate than the Court would permit in the case of disregard of a statutory command.
* ↑ The Court did apply the Olmstead doctrine in On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952). See also Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 (1942).
* ↑ See, e.g., Hearing pursuant to S.Res. 62 before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 86th Cong., 1st Sess., pt. 4, 1034-1035, 1036 (1959); Hearings on S. 1086, S. 1221, S. 1495, and S. 1822 before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 87th Cong., 1st Sess., 372-373 (1961); Hearings on S. 2813 and S. 1495 before the Senate Committee on the Judiciary, 87th Cong., 2d Sess., 11-46 (1962); Hearings pursuant to S.Res. 39 before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 89th Cong., 1st Sess., pt. 3, 1154-1165 (1965); Hearings on S. 2187 and other bills before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, 89th Cong., 2d Sess., 33-35 (1966); Hearings pursuant to S.Res. 25 before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 90th Cong., 1st Sess., 48-58 (1967); Brownell, The Public Security and Wire Tapping, 39 Cornell L.Q. 195 (1954); Rogers, The Case for Wire Tapping, 63 Yale L.J. 792 (1954).
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