# Gelbard v. United States/Concurrence Douglas

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinions Douglas White
* Dissenting Opinion Rehnquist
[p62] MR. JUSTICE DOUGLAS, concurring.
Although I join in the opinion of the Court, I believe that, independently of any statutory refuge which Congress may choose to provide, the Fourth Amendment shields a grand jury witness from any question (or any subpoena) which is based upon information garnered from searches which invade his own constitutionally protected privacy.
I would hold that Title III of the Omnibus Crime Control and Safe Streets of 1968 offends the Fourth Amendment, as does all wiretapping and bugging, for reasons which I have often expressed elsewhere. E.g., Cox v. United States, 406 U.S. 934; Williamson v. United States, 405 U.S. 1026; Katz v. United States, 389 U.S. 347, 359; Berger v. New York, 388 U.S. 41, 64; Osborn v. United States, 385 U.S. 323, 340; Pugach v. Dollinger, 365 U.S. 458, 459; On Lee v. United States, 343 U.S. 747, 762. In each of the present cases a grand jury witness seeks to prove and suppress suspected unconstitutional seizures of his own telephone conversations. And, in every relevant respect, the proceedings below were in striking parallel to those in Silverthorne Lumber Co. v. United States, 251 U.S. 385.
In that case, after federal agents unlawfully seized papers belonging to the Silverthornes and to their lumber company, the documents were returned upon order of the court. In the interim, however, the agents had copied them. After returning the seized originals, the prosecutor attempted to regain possession of them by issuing a grand jury subpoena duces tecum. When the petitioners refused to comply with the subpoena they [p63] were convicted of contempt. In reversing those judgments, this Court, through Mr. Justice Holmes, held that the Government was barred from reaping any fruit from its forbidden act and wove into our constitutional fabric the celebrated maxim that "[t]he essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all." 251 U.S., at 392.
Petitioners Gelbard and Parnas and respondents Egan and Walsh occupy positions which are virtually identical to that of the Silverthornes and their company. They desire to demonstrate that but for unlawful surveillance of them the grand jury would not now be seeking testimony from them. And, as in Silverthorne, they are the victims of the alleged violations, seeking to mend no one's privacy other than their own. Finally, here, as there, the remedy preferred is permission to refuse to render the requested information.
Unless Silverthorne is to be overruled and uprooted from those decisions which have followed it, such as Nardone v. United States, 308 U.S. 338, 340-341; Benanti v. United States, 355 U.S. 96, 103; Elkins v. United States, 364 U.S. 206, 210; Mapp v. Ohio, 367 U.S. 643, 648; Wong Sun v. United States, 371 U.S. 471, 484-485; Harrison v. United States, 392 U.S. 219, 222; and Alderman v. United States, 394 U.S. 165, 171, 177, these witnesses deserve opportunities to prove their allegations and, if successful, to withhold from the Government any further rewards of its "dirty business." Olmstead v. United States, 277 U.S. 438, 470 (Holmes, J., dissenting).
The Solicitor General does not propose that Silverthorne be overruled. Nor does he deny its remarkable similarity. Indeed, his analysis of the constitutional issue at stake here fails even to mention that landmark [p64] decision. And none of the precedents cited by him detract from Silverthorne's vitality.
Rather, the Government treats this decision as a "novel [p65] extension" of Fourth Amendment protections, leaning heavily upon the observation that the exclusionary rule has never been extended to "provide that illegally seized evidence is inadmissible against anyone for any purpose." Alderman, supra, at 175. This aphorism is contravened, concludes the Solicitor General, by any result permitting a nondefendant to "suppress" evidence sought to be introduced at another's trial or to withhold testimony from a grand jury investigation of someone else.
To be sure, no majority of this Court has ever held that "anything which deters illegal searches is thereby commanded by the Fourth Amendment." Id., at 174. But that concern is not at stake here. No one is attempting to assert vicariously the rights of others. Here it is only necessary to adhere to the basic principle that victims of unconstitutional practices are themselves entitled to effective remedies. For, "where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief." Bell v. Hood, 327 U.S. 678, 684. And see Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388.
The fact that the movants below sought to withhold evidence does not transform these cases into unusual ones. A witness is often permitted to retain exclusive custody of information where a contrary course would jeopardize important liberties such as First Amendment guarantees, Watkins v. United States, 354 U.S. 178; NAACP v. Alabama, 357 U.S. 449, 463; Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539; Baird v. State Bar of Arizona, 401 U.S. 1, 6-7; In re Stolar, [p66] 401 U.S. 23; Fifth Amendment privileges, Hoffman v. United States, 341 U.S. 479, or traditional testimonial privileges.
The same is true of Fourth Amendment authority to withhold evidence, even from a grand jury. Hale v. Henkel, 201 U.S. 43; Silverthorne, supra. No one would doubt, for example, that under Bell v. Hood, supra, and Bivens, supra (or Monroe v. Pape, 365 U.S. 167, where state police were concerned), a telephone subscriber could obtain an injunction against unlawful wiretapping of his telephone despite the fact that such termination might remove from the Government's reach evidence with which it could convict third parties.
A contrary judgment today would cripple enforcement of the Fourth Amendment. For, if these movants, who the Solicitor General concedes are not the prosecutors' targets, were required to submit to interrogation, then they (unlike prospective defendants) would have no further opportunity to vindicate their injuries. More generally, because surveillances are often "directed primarily to the collecting and maintaining of intelligence with respect to subversive forces, and are not an attempt to gather evidence for specific criminal prosecutions," United States v. United States District Court, 407 U.S. 297, 318-319, the normal exclusionary threat of Weeks v. United States, 232 U.S. 383, would be sharply attenuated and intelligence centers would be loosed from virtually every deterrent against abuse. Furthermore, even [p67] where the "uninvited ear" is used to obtain criminal convictions, rather than for domestic spying, a rule different from our result today would supply police with an added incentive to record the conversations of suspected co-conspirators in order to marshal evidence against alleged ringleaders. We are told that "[p]olice are often tempted to make illegal searches during the investigations of a large conspiracy. Once the police have established that several individuals are involved, they may deem it worthwhile to violate the constitutional rights of one member of the conspiracy (particularly a minor member) in order to obtain evidence for use against others." White & Greenspan, Standing to Object to Search and Seizure, 118 U. Pa. L. Rev. 333, 351 (1970) (footnotes omitted). Because defendants are normally denied "standing" to suppress evidence procured as a result of invasions of others' privacy, today's remedy is necessary to help neutralize the prosecutorial reward of such tactics.
Today's remedy assumes an added and critical measure of importance for, due to the clandestine nature of electronic eavesdropping, other inhibitions on officers' abuse, such as the threat of damage actions, reform through the political process, and adverse publicity, will be of little avail in guarding privacy.
Moreover, when a court assists the Government in extracting fruits from the victims of its lawless searches it degrades the integrity of the judicial system. For "[n]othing 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." Mapp v. Ohio, 367 U.S. 643, 659. For this reason, our decisions have [p68]embraced the view that "[t]he tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures and enforced confessions... should find no sanction in the judgments of the courts, which are charged at all times with support of the Constitution." Weeks v. United States, 232 U.S. 383, 392. As mentioned earlier, this principle was at the heart of the Silverthorne decision. Later in his dissent in Olmstead v. United States, 277 U.S., at 470, a case in which federal wiretappers had violated an Oregon law, Mr. Justice Holmes, citing Silverthorne, thought that both the officers and the court were honor bound to observe the state law: "If the existing code does not permit district attorneys to have a hand in such dirty business it does not permit the judge to allow such iniquities to succeed." In the same case, Justice Brandeis, who was then alone in his view that wiretapping was a search within the meaning of the Fourth Amendment, phrased it this way: "In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy." Id., at 485.
In an entrapment case, Mr. Justice Frankfurter, with whom Justices Harlan, BRENNAN, and I joined, thought that "the federal courts have an obligation to set their face against enforcement of the law by lawless means" because "[p]ublic confidence in the fair and honorable administration of justice, upon which ultimately depends the rule of law; is the transcending value at stake." Sherman v. United States, 356 U.S. 369, 380 (concurring in result); see also his opinion for the Court in Nardone v. United States, 308 U.S. 338, 340-341. In a [p69] Self-Incrimination Clause decision, MR. JUSTICE BRENNAN (joined by MR. JUSTICE MARSHALL and myself) used fewer words: "it is monstrous that courts should aid or abet the lawbreaking police officer." Harris v. New York, 401 U.S. 222, 232 (dissenting opinion).
These standards are at war with the Government's claim that intelligence agencies may invoke the aid of the courts in order to compound their neglect of constitutional values. To be sure, at some point taint may become so attenuated that ignoring the original blunder will not breed contempt for law. But here judges are not asked merely to overlook infractions diminished by time and independent events. Rather, if these witnesses' allegations are correct, judges are being invited to become the handmaidens of intentional police lawlessness by ordering these victims to elaborate on their telephonic communications of which the prosecutors would have no knowledge but for their unconstitutional surveillance.
In summary, I believe that Silverthorne was rightly decided, that it was rooted in our continuing policy to equip victims of unconstitutional searches with effective means of redress, that it has enjoyed repeated praise in subsequent decisions, that it has not been seriously challenged here, and that it requires that we affirm the Third Circuit in Egan and Walsh and reverse the Ninth Circuit in Gelbard and Parnas.

## Notes

* ↑ At oral argument, counsel for the United States contended that Silverthorne Lumber Co. v. United States, 251 U.S. 385, was distinguishable. First, it was said that in these cases there has yet been no showing of illegal surveillance. Tr. of Oral Arg. 26. The point is, however, that these witnesses claim to be able to make such a showing, although none of the trial courts below have permitted hearings on the issue. Second, it was also argued that Silverthorne was inapposite because there the very papers seized unlawfully were the ones later sought under the court's subpoena. Ibid. But there is little doubt that Mr. Justice Holmes' reasoning would also have relieved the Silverthornes from testifying before the grand jury as to the contents of the purloined papers.
* ↑ Three of the cases cited by the Solicitor General stand for nothing more than the rule that a defendant may not challenge prior to trial the evidence from which the indictment was drawn. Costello v. United States, 350 U.S. 359; Lawn v. United States, 355 U.S. 339; United States v. Blue, 384 U.S. 251. To be sure, the other authorities cited rejected various privileges from testifying but only for reasons which are not in conflict with Silverthorne Lumber Co. v. United States, supra. For example, in Murphy v. Waterfront Comm'n, 378 U.S. 52; and Piemonte v. United States, 367 U.S. 556, in light of our dispositions in those cases, no threatened constitutional violation remained as a predicate for a privilege. For in Murphy we eliminated the threat that testimony to a state grand jury given in exchange for a state immunity grant could, despite the witness' fears to the contrary, be used against him by other jurisdictions. And in Piemonte the Fifth Amendment basis for declining to answer was dissolved by the majority's finding that there had been a proper grant of immunity. True, Goldstein v. United States, 316 U.S. 114, 121, and Alderman v. United States, 394 U.S. 165, denied standing to defendants to suppress the fruits of Fourth Amendment injuries to others, but that issue is not presented here inasmuch as all of these movants purported to be victims of intercepted conversations. Finally, Blair v. United States, 250 U.S. 273, held that a grand jury witness may not withhold evidence solely because he believes that the statutes (which the grand jury suspects may have been violated) are unconstitutional. That contention, of course, has not been tendered by these grand jury witnesses. Moreover, Blair itself recognizes that "for special reasons a witness may be excused from telling all that he knows." Id., at 281. "Special reasons" presumably was meant to include Fourth Amendment grounds, as was permitted shortly thereafter in Silverthorne.
* ↑ E.g., Alexander v. United States, 138 U.S. 353 (lawyer-client); Blau v. United States, 340 U.S. 332 (marital); United States v. Reynolds, 345 U.S. 1 (military aircraft specifications).
* ↑ Our remark in United States v. United States District Court, 407 U.S. 297, 318-319, was our understanding only of the motivation behind federal national security wiretapping. But the statistical evidence shows that nonsecurity wiretapping also is seldom used to convict criminals. In 1969, court-ordered federal wiretapping seized 44,940 conversations but only 26 convictions were obtained. In 1970, federal court orders permitted the seizure of 147,780 communications, with 48 convictions. H. Schwartz, A Report on the Costs and Benefits of Electronic Surveillance ii-v (1971).
* ↑ As Mr. Justice Fortas said, wiretapping "is usually the product of calculated, official decision rather than the error of an individual agent of the state." Alderman v. United States, 394 U.S., at 203.