Lopez v. United States (373 U.S. 427)/Concurrence Warren

Mr. Chief Justice WARREN, concurring in the result.

I concur in the result achieved by the Court but feel compelled to state my views separately. As pointed out in the dissenting opinion of Mr. Justice BRENNAN, the majority opinion may be interpreted as reaffirming sub silentio the result in On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270. Since I agree with Mr. Justice BRENNAN that On Lee was wrongly decided and should not be revitalized, but base my views on grounds different from those stated in the dissent, I have chosen to concur specially. Although the dissent assumes that this case and On Lee are in all respects the same, to me they are quite dissimilar constitutionally and from the viewpoint of what this Court should permit under its supervisory powers over the administration of criminal justice in the federal courts.

I also share the opinion of Mr. Justice BRENNAN that the fantastic advances in the field of electronic communication constitute a great danger to the privacy of the individual; that indiscriminate use of such devices in law enforcement raises grave constitutional questions under the Fourth and Fifth Amendments; and that these considerations impose a heavier responsibility on this Court in its supervision of the fairness of procedures in the federal court system. However, I do not believe that, as a result, all uses of such devices should be proscribed either as unconstitutional or as unfair law enforcement methods. One of the lines I would draw would be between this case and On Lee.

As Mr. Justice HARLAN sets out in greater detail, Agent Davis, upon entering the premises of the petitioner, gave full notice of both his authority and purpose-to investigate possible evasion or delinquency in the payment of federal taxes. In the course of this investigation, the petitioner offered Davis a bribe and promised more in the future if Davis would conceal the facts of the petitioner's tax evasion. Davis accepted the money and promptly reported it to his superiors. On a return visit to the petitioner's place of business to complete the investigation, Davis was outfitted with a concealed recorder to tape his conversation with the petitioner. At trial, Davis testified to both of his conversations with the petitioner, and the tape recording was introduced to corroborate this testimony. The petitioner did not claim he was entrapped into the bribery or that the purpose of the investigation from the start was to induce the bribe. On the contrary, he admitted giving the money to Davis but claimed that it was for the purpose of having the latter prepare his tax return. The only purpose the recording served was to protect the credibility of Davis against that of a man who wished to corrupt a public servant in the performance of his public trust. I find nothing unfair in this procedure. Tax agents like Agent Davis are required to examine the tax returns of suspected tax evaders as a necessary part of our national taxation system. Many of these taxpayers interviewed are integral parts of the underworld. In the performance of their duty, agents are thus often faced with situations where proof of an attempted bribe will be a matter of their word against that of the tax evader and perhaps some of his associates. They should not be defenseless against outright denials or claims of entrapment, claims which, if not open to conclusive refutation, will undermine the reputation of the individual agent for honesty and the public's confidence in his work. Where confronted with such a situation, it is only fair that an agent be permitted to support his credibility with a recording as Agent Davis did in this case.

On Lee, however, is a completely different story. When On Lee was arrested, the only direct evidence that he was engaged in the distribution of opium was the unreliable testimony of an alleged accomplice who handled the contacts with purchasers and had made the mistake of selling to an undercover narcotics agent. To strengthen its case against On Lee, the Government sent a 'special employee,' one Chin Poy, into On Lee's laundry armed with a concealed transmitter, On Lee being out on bail pending indictment at the time. Chin Poy had known On Lee for 16 years and had formerly been his employee. His criminal character is exposed by the familiarity with which he and On Lee discussed the narcotics traffic and the agreement of the latter to supply him with narcotics at his request in the future. Thus, Chin Poy, armed with the transmitter engaged On Lee in conversation for the purpose of eliciting admissions that On Lee was part of an opium syndicate and to encourage him to commit another crime. At trial, instead of calling Chin Poy to testify, the Government put on the narcotics agent who had been at the receiving end of the radio contact with Chin Poy to testify to the admissions made by On Lee, testimony that led directly to conviction.

The use and purpose of the transmitter in On Lee was substantially different from the use of the recorder here. Its advantage was not to corroborate the testimony of Chin Poy, but rather, to obviate the need to put him on the stand. The Court in On Lee itself stated:

'We can only speculate on the reasons why Chin Poy was not     called. It seems a not unlikely assumption that the very     defects of character and blemishes of record which made On      Lee trust him with confidences would make a jury distruct his      testimony. Chin Poy was close enough to the underworld to     serve as bait, near enough the criminal design so that      petitioner would embrace him as a confidante, but too close      to it for the Government to vouch for him as a witness. Instead, the Government called agent Lee.' However, there were further advantages in not using Chin Poy. Had Chin Poy been available for cross-examination, counsel for On Lee could have explored the nature of Chin Poy's friendship with On Lee, the possibility of other unmonitored conversations and appeals to friendship, the possibility of entrapments, police pressure brought to bear to persuade Chin Poy to turn informer, and Chin Poy's own recollection of the contents of the conversation. His testimony might not only have seriously discredited the prosecution, but might also have raised questions of constitutional proportions. This Court has not yet established the limits within which the police may use an informer to appeal to friendship and camaraderie-in-crime to induce admissions from a suspect, but suffice it to say here, the issue is substantial. We have already struck down the use of psychological pressures and appeals to friendship to induce admissions or confessions under not totally dissimilar circumstances. Leyra v. Deno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948; Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265. Yet the fact remains that without the testimony of Chin Poy, counsel for On Lee could not develop a record sufficient to raise and present the issue for decision, and the courts could not evaluate the full impact of such practices upon the rights of an accused or upon the administration of criminal justice.

It is no answer to say that the defense can call an informer such as Chin Poy as a hostile witness. The prosecution may have an interest in concealing his identity or whereabouts. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639. He may be so undependable and disreputable that no defense counsel would risk putting him on the stand. Moreover, as a defense witness, he would be open to impeachment by the Government, his late employer. The tactical possibilities of this situation would be apparent to a prosecutor bent on obtaining conviction. Through use of a recorder or transmitter, he may place in the case-in-chief evidence of statements supporting conviction which is not open to impeachment. And if not required to call the informer, he may place on the defense the onus of finding and calling a disreputable witness, who if called, may be impeached on all collateral issues favoring the defense. The effect on law enforcement practices need hardly be stated: the more disreputable the informer employed by the Government, the less likely the accused will be able to establish any questionable law enforcement methods used to convict him.

Thus while I join the Court in permitting the use of electronic devices to corroborate an agent under the particular facts of this case, I cannot sanction by implication the use of these same devices to radically shift the pattern of presentation of evidence in the criminal trial, a shift that may be used to conceal substantial factual and legal issues concerning the rights of the accused and the administration of criminal justice. Cf. On Lee v. United States, 343 U.S. 747, 758, 72 S.Ct. 967, 974 (Black, J., dissenting).

Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice GOLDBERG join, dissenting.