United States v. White (401 U.S. 745)/Concurrence Brennan

Mr. Justice BRENNAN, concurring in the result.

I agree that Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969), requires reversal of the judgment of the Court of Appeals. Therefore, a majority of the Court supports disposition of this case on that ground. However, my Brothers DOUGLAS, HARLAN, and WHITE also debate the question whether On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952), may any longer be regarded as sound law. My Brother WHITE argues that On Lee is still sound law. My Brothers DOUGLAS and HARLAN argue that it is not. Neither position commands the support of a majority of the Court. For myself, I agree with my Brothers DOUGLAS and HARLAN. But I go further. It is my view that the reasoning of both my Brothers DOUGLAS and HARLAN compels the conclusion that Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963), is also no longer sound law. In other words, it is my view that current Fourth Amendment jurisprudence interposes a warrant requirement not only in cases of third-party electronic monitoring (the situation in On Lee and in this case) but also in cases of electronic recording by a government agent of a face-to-face conversation with a criminal suspect, which was the situation in Lopez. For I adhere to the dissent in Lopez, 373 U.S., at 446-471, 83 S.Ct., at 1392-1405, in which, to quote my Brother HARLAN, post, at 778 n. 12, 'the doctrinal basis of our subsequent Fourteenth Amendment decisions may be said to have had its genesis.' Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), adopted that 'doctrinal basis' and thus, it seems to me, agreed with the argument in the Lopez dissent that 'subsequent decisions and subsequent experience have sapped whatever vitality (On Lee) may once have had; that it should now be regarded as overruled' and that the situation in Lopez 'is rationally indistinguishable.' 373 U.S., at 447, 83 S.Ct., at 1392. The reasons in support of those conclusions are set forth fully in the Lopez dissent and need not be repeated here. It suffices to say that for those reasons I remain of the view that the Fourth Amendment imposes the warrant requirement in both the On Lee and Lopez situations.

Mr. Justice DOUGLAS, dissenting.