On Lee v. United States/Dissent Douglas

Mr. Justice DOUGLAS, dissenting.

The Court held in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944, over powerful dissents by Mr. Justice Holmes, Mr. Justice Brandeis, Mr. Justice Butler, and Chief Justice Stone that wire tapping by federal officials was not a violation of the Fourth and Fifth Amendments. Since that time the issue has been constantly stirred by those dissents and by an increasing use of wire tapping by the police. Fourteen years later in Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322, the issue was again presented to the Court. I joined in an opinion of the Court written by Mr. Justice Roberts, which adhered to the Olmstead case, refusing to overrule it. Since that time various aspects of the problem have appeared again and again in the cases coming before us. I now more fully appreciate the vice of the practices spawned by Olmstead and Goldman. Reflection on them has brought new insight to me. I now feel that I was wrong in the Goldman case. Mr. Justice Brandeis in his dissent in Olmstead espoused the cause of privacy-the right to be let alone. What he wrote is an historic statement of that point of view. I cannot improve on it.

'When the Fourth and Fifth Amendments were adopted, 'the form     that evil had theretofore taken' had been necessarily simple. Force and violence were then the only means known to man by     which a government could directly effect self-incrimination. It could compel the individual to testify-a compulsion     effected, if need be, by torture. It could secure possession     of his papers and other articles incident to his private life      a seizure effected, if need be, by breaking and entry. Protection against such invasion of 'the sanctities of a     man's home and the privacies of life' was provided in the      Fourth and Fifth Amendments by specific language. Boyd v.     United States, 116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed. 746.     But 'time works changes, brings into existence new conditions      and purposes.' Subtler and more far-reaching means of      invading privacy have become available to the government. Discovery and invention have made it possible for the     government, by means far more effective than stretching upon      the rack, to obtain disclosure in court of what is whispered      in the closet.

'Moreover, 'in the application of a Constitution, our     contemplation cannot be only of what has been, but of what      may be.' The progress of science in furnishing the government      with means of espionage is not likely to stop with wire      tapping. Ways may some day be developed by which the     government, without removing papers from secret drawers, can      reproduce them in court, and by which it will be enabled to      expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means     of exploring unexpressed beliefs, thoughts and emotions. 'That places the liberty of every man in the hands of every petty     officer' was said by James Otis of much lesser intrusions      than these. To Lord Camden a far slighter intrusion seemed     'subversive of all the comforts of society.' Can it be that      the Constitution affords no protection against such invasions      of individual security?

'The makers of our Constitution undertook to secure     conditions favorable to the pursuit of happiness. They     recognized the significance of man's spiritual nature, of his      feelings and of his intellect. They knew that only a part of     the pain, pleasure and satisfactions of life are to be found      in material things. They sought to protect Americans in their     beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be     let alone-the most comprehensive of rights and the right most      valuded by civilized men. To protect, that right, every     unjustifiable intrusion by the government upon the privacy of      the individual, whatever the means employed, mut be deemed a      violation of the Fourth Amendment. And the use, as evidence      in a criminal proceeding, of facts ascertained by such      intrusion must be deemed a violation of the Fifth.

'Experience should teach us to be most on our guard to     protect liberty when the government's purposes are      beneficent. Men born to freedom are naturally alert to repel     invasion of their liberty by evil-minded rulers. The greatest     dangers to liberty lurk in insidious encroachment by men of      zeal, well-meaning but without understanding.' (277 U.S. 473,      48 S.Ct. 570.) That philosophy is applicable not only to a detectaphone placed against the wall or a mechanical device designed to record the sounds from telephone wires but also to the 'walky-talky' radio used in the present case. The nature of the instrument that science or engineering develops is not important. The controlling, the decisive factor is the invasion of privacy against the command of the Fourth and Fifth Amendments.

I would reverse this judgment. It is important to civil liberties that we pay more than lip service to the view that this manner of obtaining evidence against people is 'dirty business'. See Mr. Justice Holmes, dissenting, Olmstead v. United States, supra, 277 U.S. at page 470, 48 S.Ct. at page 575.