United States v. White (401 U.S. 745)

Respondent was convicted in 1966 of narcotics violations following a trial where evidence was admitted of certain incriminating statements of respondent that were overheard by warrantless electronic eavesdropping by Government agents by means of a transmitter which an informer consented to wear during his meetings with respondent. The informer could not be located at trial, and the trial court overruled objections to the testimony of the agents who conducted the electronic surveillance. Reading Katz v. United States, 389 U.S. 347 (1967), as overruling On Lee v. United States, 343 U.S. 747 (1952), the Court of Appeals held that the agents' testimony was impermissible under the Fourth Amendment, and reversed respondent's conviction.

Held: The judgment is reversed. Pp. 748-756.

405 F.2d 838, reversed.

MR. JUSTICE WHITE, joined by THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE BLACKMUN, concluded that:


 * 1. The Government's use of agents who themselves may reveal the contents of conversations with an accused does not violate the Fourth Amendment, and this Court's decision in Katz v. United States, supra, does not disturb the rationale of On Lee, supra, in this respect and require a different result because the agent uses electronic equipment to transmit the conversations to other agents. Pp. 748-754.


 * 2. The unavailability of the informant as a witness does not create any Fourth Amendment issue. Pp. 753-754.


 * 3. Since the decision in Katz v. United States, supra, was not retroactive, Desist v. United States, 394 U.S. 244, the Court of Appeals erred in not adjudicating this case by the pre-Katz law established by On Lee to the effect that the electronic surveillance did not involve a Fourth Amendment violation. P. 754.

MR. JUSTICE BLACK concurred in the judgment for the reasons et forth in his dissent in Katz v. United States, 389 U.S. 347, 364. P. 754.

MR. JUSTICE BRENNAN, to the extent that he joined in the Court's judgment, concluded that Desist v. United States, supra, requires reversal of the Court of Appeals' judgment. P. 755.

WHITE, J., announced the Court's judgment, and delivered an opinion in which BURGER, C.J., and STEWART and BLACKMUN, JJ., joined. BLACK, J., filed a statement concurring in the judgment, post, p. 754. BRENNAN, J., filed an opinion concurring in the result, post, p. 755. DOUGLAS, J., post, p. 756, HARLAN, J., post, p. 768, and MARSHALL, J., post, p. 795, filed dissenting opinions.

Assistant Attorney General Wilson reargued the cause for the United States. With him on the briefs were Solicitor General Griswold, Joseph J. Connolly, John S. Martin, Jr., Jerome M. Feit, Beatrice Rosenberg, and Sidney M. Glazer.

John L. Boeger reargued the cause for respondent. With him on the brief were Morris A. Shenker and Chauncey Eskridge.

Abraham Glasser and Maurice Edelbaum filed a brief for John G. Broady et al. as amici curiae urging affirmance.