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The Scope of the Fourth Amendment: Privacy and the Police Use of Spies, Secret Agents, and Informers

Published online by Cambridge University Press:  27 December 2018

Geoffrey R. Stone
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Extract

This article has been produced under the Samuel Pool Weaver Constitutional Law Essay program, which is supported by trust funds given to the American Bar Foundation by the late Samuel Pool Weaver to encourage research and writing about the Constitution and its application to current problems. Under the terms of the program as presently structured, a constitutional law scholar is invited from time to time to write an essay on a subject agreed upon between the scholar and the American Bar Foundation. This is the first essay produced under the program's new format.

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Research Article
Information
American Bar Foundation Research Journal , Volume 1 , Issue 4 , Fall 1976 , pp. 1193 - 1271
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Copyright © American Bar Foundation, 1976 

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References

1 See, e. g., 2 Thomas Erskine May, Constitutional History of England 275 (1863); George E. Dix, Undercover Investigations and Police Rulemaking, 53 Tex. L. Rev. 203, 208-9 n.7 (1975); Richard C. Donnelly, Judicial Control of Informants, Spies, Stool Pigeons, and Agent Provocateurs, 60 Yale L.J. 1091, 1093 (1951).Google Scholar

2 See, e. g., Sorrells v. United States, 287 U.S. 435, 441 (1932); see also Note, Judicial Control of Secret Agents, 76 Yale L.J. 994 (1967).Google Scholar

3 For descriptions of the use of secret agents and informers in Nazi Germany and Stalinist Russia, see William L. Shirer, The Rise and Fall of the Third Reich 273 (New York: Simon & Schuster, 1960); Herbert McClosky & J. E. Turner, The Soviet Dictatorship 467, 479-80 (New York, 1960).Google Scholar

4 See, e. g., III Senate Select Committee to Study Government Operations with Respect to Intelligence Activities, Final Report, S. Rep. No. 755, 94th Cong., 2d Sess. 225-70 (1976); Comp troller General of the United States, Report to the House Committee on the Judiciary on FBI Domestic Intelligence Operations—Their Purpose and Scope: Issues that Need to be Resolved 96-117 (1976); Extended March 1975 Cook County Grand Jury, Report on Improper Police Intelligence Activities (1976).Google Scholar

5 The Fourth Amendment is not the only possible source of legal control of this practice. Sometimes, e. g., the First Amendment might impose restraints. See generally Dix, supra note 1, at 241-46; Comment, Present and Suggested Limitations on the Use of Secret Agents and Informers in Law Enforcement, 41 U. Colo. L. Rev. 261, 278-81 (1969). In other instances, the Sixth Amendment might be relevant. See, e. g., Massiah v. United States, 377 U.S. 201 (1964). Apart from constitutional restraints, the entrapment doctrine places some check on the behavior of secret agents. See, e. g., Hampton v. United States, 96 S. Ct. 1646 (1976); United States v. Russell, 411 U.S. 423 (1973). And, of course, internal police rulemaking might ultimately prove useful. See generally Dix, supra note 1.Google Scholar

6 See, e. g., United States v. White, 401 U.S. 745 (1971); Hoffa v. United States, 385 U.S. 293 (1966); Lewis v. United States, 385 U.S. 206 (1966); On Lee v. United States, 343 U.S. 747 (1951); Gouled v. United States, 255 U.S. 298 (1921).Google Scholar

7 See Gouled v. United States, 255 U.S. 298 (1921).Google Scholar

8 Dix, supra note 1, at 209.Google Scholar

9 The Fourth Amendment provides that:Google Scholar

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.Google Scholar

10 See, e. g., Nelson Bernard Lasson, The History and Development of the Fourth Amendment to the United States Constitution 13-105 (Baltimore: Johns Hopkins Press, 1937); Francis Lieber, On Civil Liberties and Self-Govemment 76-80 (1853); Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union 365-68 (Boston: Little, Brown and Co., 5th ed. 1883).Google Scholar

11 Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 398 (1974).Google Scholar

12 Benjamin Nathan Cardozo, The Nature of the Judicial Process 83 (New Haven: Yale University Press, 1921). See also Weems v. United States, 217 U.S. 349, 373 (1910).Google Scholar

13 See Amsterdam, supra note 11, at 363-64.Google Scholar

14 116 U.S. 616 (1886).Google Scholar

15 Id. at 622.Google Scholar

16 Id. at 630.Google Scholar

17 Id. at 622.Google Scholar

18 277 U.S. 438 (1928).Google Scholar

19 Id. at 464.Google Scholar

20 Shirley M. Hufstedler, The Directions and Misdirections of a Constitutional Right of Privacy, 26 Rec. N.Y.C.B.A. 546, 553 (1971).Google Scholar

21 96 U.S. 727 (1877).Google Scholar

22 277 U.S. at 464.Google Scholar

23 Id. at 469.Google Scholar

24 Id. at 478.Google Scholar

25 See, e. g., Lopez v. United States, 373 U.S. 427, 457-63 (1963) (Brennan, Douglas, & Goldberg, JJ., dissenting); Schwartz v. Texas, 344 U.S. 199, 204-5 (1952) (Frankfurter, J., concurring; Douglas, J., dissenting); On Lee v. United States, 343 U.S. 747, 758-62 (1952) (Frankfurter & Douglas, JJ., dissenting separately); Goldman v. United States, 316 U.S. 129, 136, 141 (1942) (separate opinion of Stone, C.J., & Frankfurter, J.; Murphy, J., dissenting).Google Scholar

26 For example, in Goldman v. United States, 316 U.S. 129 (1942), the Court relied on Olmstead to justify its holding that no search or seizure occurred when federal officers over heard conversations in an individual's office by placing an electronic bugging device against the outside wall of the office.Google Scholar

27 See, e. g., Berger v. New York, 388 U.S. 41, 57, 59 (1967); Lanza v. New York, 370 U.S. 139, 143 (1962); Silverman v. United States, 365 U.S. 505, 512 (1961).Google Scholar

28 389 U.S. 347 (1967).Google Scholar

29 Edmund W. Kitch, Katz v. United States: The Limits of the Fourth Amendment, 1968 Sup. Ct. Rev. 133.Google Scholar

30 Justice Black was the lone dissenter. Justice Marshall did not participate in the decision.Google Scholar

31 389 U.S. at 350.Google Scholar

32 Id. at 351 n.9.Google Scholar

33 Id. at 351.Google Scholar

34 Id. at 353.Google Scholar

35 There are, no doubt, those who would argue that this aspect of the value-oriented approach is in fact its greatest weakness. The point, in short, is that the Court has no business “rewriting” the Constitution to keep it “up to date.” Rather, where ambiguities exist in a constitutional provision, they should be resolved in such a way as to leave to the nonjudicial branches of government flexibility to deal with the relevant problems free of constitutionally imposed constraints. The argument seems particularly unpersuasive to me where, as here, we are dealing with a provision designed to protect individual liberties, and adopted in the first instance because of a distrust of the willingness of those other branches of government adequately to protect these liberties in the absence of constitutional constraint. Indeed, if any presumption is to be adopted with respect to the resolution of legitimate ambiguities in such provisions, it should, in my view, favor expansion rather than contraction of the constitutionally protected right. This is not to say, of course, that judges should be free to rewrite such provisions so as to expand their protections to accord with their own personal values and prejudices. On the contrary, the judicial task is to interpret, not to rewrite, and for the interpretation to be legitimate it must be grounded in the language of the provision, the historical record, and a realistic assessment of our contemporary society. And although the line between rewriting and interpreting may at rimes be a fine one, careful application of the value-oriented approach in the Fourth Amendment context seems to me well within the range of proper judicial interpretation.Google Scholar

36 389 U.S. at 350.Google Scholar

37 United States v. Ortiz, 95 S. Ct. 2585, 2588 (1975). See also Davis v. Mississippi, 394 U.S. 721, 726 (1969); Terry v. Ohio, 392 U.S. 1, 16-17, 25 (1968).Google Scholar

38 See, e. g., Boyd v. United States, 116 U.S. 616, 630 (1886).Google Scholar

39 See, e. g., Schmerber v. California, 384 U.S. 757, 767 (1966); Mapp v. Ohio, 367 U.S. 643, 656 (1961); Wolf v. Colorado, 338 U.S. 25, 27 (1949); Boyd v. United States, 116 U.S. 616, 630 (1886).Google Scholar

40 Wolf v. Colorado, 338 U.S. 25, 27 (1949).Google Scholar

41 Arthur Raphael Miller, The Assault on Privacy 25 (Ann Arbor: University of Michigan Press, 1971). See also Hufstedler, supra note 20, at 547-48.Google Scholar

42 403 U.S. 15 (1971).Google Scholar

43 Id. at 21 (emphasis added). See also Rowan v. Post Office Dept., 397 U.S. 728 (1970).Google Scholar

44 See Geoffrey R. Stone, Fora Americana: Speech in Public Places, 1974 Sup. Ct. Rev. 233, 263.CrossRefGoogle Scholar

45 410 U.S. 113 (1973).Google Scholar

46 Id. at 153.Google Scholar

47 For the sake of clarity, the Court in such cases might more appropriately speak in terms of the individual's interest in personal autonomy, or a right to be let alone, rather than attempt to absorb those interests within an all-embracing concept of privacy. See note 49 infra.Google Scholar

48 See 389 U.S. at 350-51.Google Scholar

49 In recent years, legal scholars, social scientists, and others concerned with the problem of privacy have almost consistently concluded that its basic feature is not autonomy, but the individual's ability to control the flow of information about him. See, e. g., Miller, supra note 41, at 25; Charles Fried, An Anatomy of Values: Problems of Personal and Social Choice 140 (Cambridge: Harvard University Press, 1970); Alan F. Westin, Privacy and Freedom 7 (New York: Atheneum Press, 1967); Edward Shils, Privacy: Its Constitution and Vicissitudes, 31 Law & Contemp. Prob. 281, 282 (1966); Hufstedler, supra note 20, at 550; Oscar M. Ruebhausen & Orville G. Brim, Jr., Privacy and Behavioral Research, 65 Colum. L. Rev. 1184, 1189-90 (1965); Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 198 (1890).Google Scholar

50 Note, Privacy in the First Amendment, 82 Yale L.J. 1462, 1474 (1973).Google Scholar

51 Cf. James B. White, The Fourth Amendment as a Way of Talking About People: A Study of Robinson and Matlock, 1974 Sup. Ct. Rev. 165, 229; Lloyd L. Weinreb, The General ities of the Fourth Amendment, 42 U. Chi. L. Rev. 47, 85 (1974).Google Scholar

52 See, e. g., Fried, supra note 49, at 140-42.Google Scholar

53 Marcus v. Search Warrant, 367 U.S. 717, 724 (1961); accord, United States v. United States District Court, 407 U.S. 297, 313-14 (1972). See Cooley, supra note 10, at 366-69 n.1; Lasson, supra note 10, at 24-33.Google Scholar

54 See, e. g., Entick v. Carrington, 19 Howell's St. Tr. 1030 (C.P. 1765); see also Huckle v. Money, 95 Eng. Rep. 768 (1763); Wilkes v. Wood, 98 Eng. Rep. 489 (1765); Money v. Leach, 97 Eng. Rep. 1050 (1765).Google Scholar

55 Boyd v. United States, 116 U.S. 616, 626-27 (1886). See Marcus v. Search Warrant, 367 U.S. 717, 729 (1961).Google Scholar

56 Burdeau v. McDowell, 256 U.S. 465, 475 (1921). See also Barnes v. United States, 373 F.2d 517 (5th Cir. 1967); United States v. Goldberg, 330 F.2d 30 (3d Cir. 1964).Google Scholar

57 As Professor White has suggested, however, there may be some instances in which “there can be a kind of after-the-fact ratification of the [private] conduct by” governmental officials that may be sufficient to bring the amendment into play. See White, supra note 51, at 221 n.107.Google Scholar

58 This conclusion is applicable only with respect to the storage or dissemination of law fully obtained information. The storage or dissemination of unconstitutionally obtained information should properly be viewed as unconstitutional also–as an extension of the initial illegality.Google Scholar

59 Although government's own storage of lawfully obtained information may not be governed by the Fourth Amendment, a different result may be called for when government requires a private citizen to store information about others so that government might at some future time be able to obtain it. See California Bankers Ass'n v. Schultz, 416 U.S. 21, 95-96 (1974) (Marshall, J., dissenting).Google Scholar

60 As already noted, the Court held in Katz that conversations could be “seized.” See 389 U.S. at 353. See also United States v. United States District Court, 407 U.S. 297, 313-15 (1972). The Court had at least seemingly reached a similar conclusion in several prior decisions. See, e. g., Berger v. New York, 388 U.S. 41 (1967); Wong Sun v. United States, 371 U.S. 471 (1963); Silverman v. United States, 365 U.S. 505 (1961).Google Scholar

61 Cf. United States v. Miller, 96 S. Ct. 1619, 1623 (1976).Google Scholar

62 Even if such a limitation is adopted, the “actual physical intrusion” requirement of Olmstead should nevertheless be abandoned, for the extent to which one's security in the privacy of a place is threatened by government efforts to obtain information as to what goes on in that place is not in any way dependent upon the presence or absence of an actual physical intrusion.Google Scholar

63 United States v. On Lee, 193 F.2d 306, 315-16 (2d Cir. 1951) (Frank, J., dissenting).Google Scholar

64 Weinreb, supra note 51, at 52-53. See also Edmond Cahn, The Sense of Injustice–An Anthropocentric View of Law 151 (New York: New York University Press, 1949); Cooley, supra note 10, at 365 n.4.Google Scholar

65 389 U.S. at 351.Google Scholar

66 This, indeed, seems to be the approach suggested by Judge Hufstedler. See Hufstedler, supra note 20, at 562. See also Note, Police Surveillance of Political Dissidents, 4 Colum. Hum. Rts. L. Rev. 101, 135 (1972).Google Scholar

67 389 U.S. at 353.Google Scholar

68 In his separate concurring opinion in Katz, Justice Harlan offered a somewhat more precise statement of a limiting principle. In his view, governmental information-gathering activity constitutes a search and seizure if the person subjected to the activity “exhibited an actual (subjective) expectation of privacy” and the expectation is “one that society is prepared to recognize as ‘reasonable.'” 389 U.S. at 361 (Harlan, J., concurring).Google Scholar

69 See, e. g., United States v. Dionisio, 410 U.S. 1, 8, 14-15 (1973); Couch v. United States, 409 U.S. 322, 335, 336 n.19 (1973); United States v. White, 401 U.S. 745, 751-52 (1971) (plurality opinion); Alderman v. United States, 394 U.S. 165, 179 n.11 (1969); Terry v. Ohio, 392 U.S. 1, 9 (1968).Google Scholar

70 Such a requirement was first suggested in Justice Marian's concurring opinion in Katz. See 389 U.S. at 361. Justice Harlan subsequently expressed second thoughts about his initial formulation, however. See United States v. White, 401 U.S. 745, 786 (1971) (Harlan, J., dissenting).Google Scholar

71 See Amsterdam, supra note 11, at 384; Book Review of Westin, Privacy and Freedom, 15 U.C.L.A.L. Rev. 1586, 1597-98 (1968).Google Scholar

72 The Court seems to have reached a similar conclusion. See United States v. United States District Court, 407 U.S. 297, 314-15 (1972); Terry v. Ohio, 392 U.S. 1, 18 n.15, 21 (1968); Camara v. Municipal Court, 387 U.S. 523, 533, 535 (1967); but see United States v. White, 401 U.S. 745, 786 (1971) (Harlan, J., dissenting).Google Scholar

73 For an example of this phenomenon, see text at notes 150-66 infra.Google Scholar

74 See Comment, Electronic Eavesdropping and the Right to Privacy, 52 B.U.L. Rev. 831, 838-39 (1972). Cf. Cooley, supra note 10, at 373.Google Scholar

75 For an interesting example of this sort of analysis, see United States v. Holmes, 521 F.2d 859 (5th Cir. 1975).Google Scholar

76 See Cooley, supra note 10, at 365. Lord Chatham made the point rather dramatically: “The poorest man may, in his cottage, bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England may not enter; all his force dare not cross the threshold of the ruined tenement.” Quoted in Cooley, supra note 10, at 365 n.4.Google Scholar

77 389 U.S. at 351.Google Scholar

78 410 U.S. 1 (1973).Google Scholar

79 Id. at 14. See also United States v. Mara, 410 U.S. 19, 21 (1973) (handwriting).Google Scholar

80 If the officer entered the store outside normal business hours, his conduct could not be justified on an “exposure to the public” theory, for the shopkeeper may do things then that have not been exposed to the public and with respect to which he therefore retains a legitimate privacy interest. See, e. g., Amos v. United States, 255 U.S. 313 (1921); Villano v. United States, 310 F.2d 680 (10th Cir. 1962); Hughes v. Johnson, 305 F.2d 67 (9th Cir. 1962).Google Scholar

81 See, e. g., United States v. Williams, 328 F.2d 887 (2d Cir. 1964); Fisher v. United States, 205 F.2d 702 (D.C. Cir. 1953); Ludwig v. United States, 3 F.2d 231 (7th Cir. 1924).Google Scholar

82 See, e. g., Fraternal Order of Eagles v. United States, 57 F.2d 93 (3d Cir. 1932); Stagecrafters Club, Inc. v. District of Columbia, 89 A.2d 876 (D.C. 1952); Kansas v. Seven Slot Machines, 203 Kan. 833, 457 P.2d 97 (1969).Google Scholar

83 See, e. g., Magda v. Benson, 536 F.2d 111 (6th Cir. 1976); United States v. Mustone, 469 F.2d 970 (1st Cir. 1972); United States v. Dzialak, 441 F.2d 212 (2d Cir. 1971); State v. Smith, 510 P.2d 793 (Alas. 1973); People v. Krivda, 5 Cal. 3d 357, 486 P.2d 1262, 96 Cal. Rptr. 62 (1971) (In Bank); State v. Purvis, 249 Ore. 404, 438 P.2d 1002 (1968).Google Scholar

84 Similarly, an individual who parks his automobile on the street and therefore assumes the risk that it will be broken into by others cannot fairly be said to have exposed the contents of his automobile to public view within the meaning of this doctrine.Google Scholar

85 I do not mean to imply that the fact that the effect is primarily or even exclusively upon the ordinariness of life is in any sense dispositive of the scope issue. Rather, it is simply one factor to be considered. Moreover, the seriousness of the impact on this interest is also relevant. This would clearly be true, for example, when government officers peek into open windows. As Professor Amsterdam has noted, the question in that context is whether in a free society we should be compelled “to draw the blinds every time we enter a room, under pain of surveillance if we do not.” Amsterdam, supra note 11, at 403.Google Scholar

86 For example, another factor that might at times be relevant is the extent to which the practice results in the revelation of information other than that specifically sought. This is a primary characteristic of the paradigm, for when a government officer enters a home to look for evidence of crime he necessarily learns a great deal about the occupants that is unrelated to the purpose of the search. Consider, however, the situation in which a trained dog sniffs packages to determine whether they contain marijuana. The only information gained through that practice is whether the package is likely to contain the substance sought. The “narrowness” of the infor mation revealed would seem to cut in favor of a finding that this practice does not intrude upon reasonable expectations of privacy. See generally United States v. Bronstein, 521 F.2d 459 (2d Cir. 1975); United States v. Fulero, 498 F.2d 748 (D.C. Cir. 1974); United States v. Solis, 393 F. Supp. 325 (D.C. Cal. 1975).Google Scholar

87 255 U.S. 298 (1921).Google Scholar

88 The Court's statement of the facts in Gouled declares, rather ambiguously, that after gaining entry Cohen, in Gouled's absence, “seized and carried away” the document in question. 255 U.S. at 304. The details of the seizure, as described in the text, are set forth in the Brief for the United States at 8, 58-59. In subsequent decisions the Court has seen fit to characterize Cohen's conduct as a “secret and general ransacking” of Gouled's office. See, e. g., Lewis v. United States, 385 U.S. 206, 210 (1966).Google Scholar

89 255 U.S. at 301.Google Scholar

90 Id. at 305-6.Google Scholar

91 343 U.S. 747 (1952).Google Scholar

92 Justice Black dissented on the ground that the agent's testimony should be inadmissible under the Court's supervisory power and therefore did not reach the constitutional issue. Justices Frankfurter, Douglas, and Burton dissented on Fourth Amendment grounds.Google Scholar

93 This issue had previously been left open in Goldman v. United States, 316 U.S. 129 (1942), and was finally resolved in Silverman v. United States, 365 U.S. 505 (1961).Google Scholar

94 343 U.S. at 752.Google Scholar

95 Id. at 754.Google Scholar

96 373 U.S. 427 (1963).Google Scholar

97 Although concurring in the result, Chief Justice Warren did not join Justice Marian's opinion. Unlike Harlan, Warren argued that On Lee should be overruled because Chin Poy did not himself testify at On Lee's trial. In Warren's view, electronic devices could properly be used, as in Lopez, to corroborate the testimony of the government agent but not as a substitute for the agent's live testimony. See 373 U.S. at 441-46 (Warren, C.J., concurring).Google Scholar

98 373 U.S. at 438.Google Scholar

99 By the time of the decision in Lopez, the Court had specifically held that use of electronic devices to record or transmit conversations was governed by the Fourth Amendment if accompanied by a trespass on the suspect's premises. See Silverman v. United States, 365 U.S. 505 (1961).Google Scholar

100 373 U.S. at 439.Google Scholar

101 Id. at 450.Google Scholar

102 Id. at 465.Google Scholar

103 Id. at 450.Google Scholar

104 Id. at 465-66.Google Scholar

105 Id. at 466.Google Scholar

106 Id. at 450.Google Scholar

107 385 U.S. 206 (1966).Google Scholar

108 385 U.S. 293 (1966). The Court on that day also handed down its decision in Osborn v. United States, 385 U.S. 323 (1966). Osbom, a lawyer, was convicted of attempting to bribe a juror. Osborn had hired Vick, a member of the local police department, to conduct background investigations of prospective jurors. Unbeknownst to Osborn, Vick had agreed to report any illegal activities to federal agents. Equipped with a recording device, Vick had a conversation with Osborn in the latter's office during which Osbom made several incriminating statements. Osborn contended that use of the recording device violated his rights under the Fourth Amend ment. In a seven-to-one decision, the Court disagreed. In reaching mat result, however, the Court found it unnecessary to rely on Lopez, concluding instead that, even if use of the device constituted a search and seizure, the probable cause, warrant, and reasonableness requirements of the amendment had been satisfied. See 385 U.S. at 327-31. Interestingly, this approach was predicated on the unspoken assumption that the information on which the warrant was based–all of which had been gathered through Vick's earlier undercover conversations with Osborn–was obtained without violating Osbom's rights.Google Scholar

109 A second telephone call and sale of marijuana occurred two weeks later. Lewis was finally arrested some four months after the second sale.Google Scholar

110 Lewis did not contend that the initial telephone call was unconstitutional. Moreover, Lewis specifically conceded that, based in part upon that call, the agent had probable cause to believe that a narcotics offense would be committed in his home. See 385 U.S. at 208-9 n.4.Google Scholar

111 385 U.S. at 212.Google Scholar

112 Id. at 210. See note 88 supra.Google Scholar

113 Id. at 210.Google Scholar

114 Id, at 211. At the same time, Justice Warren cautioned that this does not mean the “agent is authorized to conduct a general search for incriminating materials.”Google Scholar

115 Id. at 212.Google Scholar

116 Justice Brennan, joined by Justice Fortas, concurred on the grounds that, by turning his home into a commercial center and inviting “anyone willing to enter to come in to trade with him,” Lewis had waived “his right to privacy in the premises.” As a result, the seller cannot complain “so long as the agent does no more than buy his wares.” 385 U.S. at 213. Justice Douglas dissented on the ground that any deceptive entry by a government agent into a home constitutes a search and seizure whether or not the home is used as a commercial center See 385 U.S. at 344-47.Google Scholar

117 385 U.S. at 299.Google Scholar

118 Hoffa also argued that Partin's conduct violated his rights under the Fifth and Sixth Amendments.Google Scholar

119 Justices White and Fortas did not participate in the consideration or decision of Hoffa. Chief Justice Warren dissented on the grounds that Partin's testimony should have been held inadmissible under the Court's supervisory powers. Justices Douglas and Clark were of the view that the writs of cerriorari should have been dismissed as improvidently granted.Google Scholar

120 385 U.S. at 301.Google Scholar

121 Id. at 302.Google Scholar

122 Id. at 301. Justice Stewart made this statement only a year before his declaration in Katz that the Fourth Amendment “protects people, not places.”Google Scholar

123 Id. at 302.Google Scholar

124 Id. at 303, citing Lopez v. United States, 373 U.S. 427, 465 (1963) (Brennan, J., dissenting). See text at note 102 supra.Google Scholar

125 385 U.S. at 302.Google Scholar

126 Id. at 302 n.6.Google Scholar

127 401 U.S. 745 (1971).Google Scholar

128 The Court also held, as an alternative ground of decision, that the principles announced in Kan were inapplicable to this case since the conversations overheard in White took place prior to the decision in Katz. The Court was split five-to-four on this issue as well, with Justice Brennan joining Justices White, Burger, Stewart, and Blackmun to form a majority.Google Scholar

129 401 U.S. at 749.Google Scholar

130 Id. at 752.Google Scholar

131 See 401 U.S. at 754.Google Scholar

132 401 U.S. at 786.Google Scholar

133 See id. at 788 n.24. Justice Marian did suggest, however without much conviction, that there might be a difference between the use of transmitters and recorders.Google Scholar

134 401 U.S. at 787.Google Scholar

135 Id. at 789.Google Scholar

136 Id. at 787.Google Scholar

137 Id. at 789.Google Scholar

138 Dix, supra note 1, at 209.Google Scholar

139 See, e. g., United States v. White, 401 U.S. 745, 752 (1966) (plurality opinion); id. at 777 (Harlan, J., dissenting); Hoffa v. United States, 385 U.S. 293 (1966); Lopez v. United States, 343 U.S. 747 (1952); id. at 465-66 (Brennan, J., dissenting). See also Olmstead v. United States, 277 U.S. 438, 468 (1928).Google Scholar

140 See text at notes 59-64 supra.Google Scholar

141 See text at notes 66-70 supra.Google Scholar

142 For descriptions of the role of undercover agents and informers in Nazi Germany and Stalinist Russia, see Shirer, supra note 3, at 273; McClosky, supra note 3, at 467, 479-80.Google Scholar

143 United States v. United States District Court, 407 U.S. 297, 314 (1972).Google Scholar

144 Kent Greenawalt, The Consent Problem in Wiretapping and Eavesdropping: Surrepti tious Monitoring with the Consent of a Participant in a Conversation, 68 Colum. L. Rev. 189, 216 (1968).Google Scholar

145 Louis B. Schwartz, On Current Proposals to Legalize Wire Tapping, 103 U. Pa. L. Rev. 157, 162 (1954).Google Scholar

146 See, e. g., Charles Fried, Privacy, 77 Yale L.J. 475, 482 (1968); Comment, The Applica bility of the “New” Fourth Amendment to Investigations by Secret Agents: A Proposed Deline ation of the Emerging Fourth Amendment Right to Privacy, 45 Wash. L. Rev. 785, 792 (1970).Google Scholar

147 The potential inhibiting effect is similar to that experienced by a member of the NAACP in Alabama who fears that the fact of his membership will be publicized. See NAACP v. Alabama, 357 U.S. 449, 562 (1958). See also Louisiana v. NAACP, 366 U.S. 293 (1961); Watkins v. United States, 354 U.S. 178, 197-98 (1957). And, in a related context, the Court has explicitly recognized the role anonymity serves in a system of free expression. See Talley v. California, 362 U.S. 60 (1960).Google Scholar

148 President's Commission on Law Enforcement and Administration of Justice, Task Force Report: Organized Crime 18 (1967).Google Scholar

149 United States v. United States District Court, 407 U.S. 297, 314 (1972).Google Scholar

150 See May, supra note 1, at 275-78.Google Scholar

151 See text preceding note 73 supra.Google Scholar

152 See text at notes 73-75 supra.Google Scholar

153 In 1967 Professor Westin, after studying the problem at some length, concluded that participant monitoring, in which a secret agent or informer makes use of a concealed recording or transmitting device, is used “tens of thousands of times” annually. Westin, supra note 49, at 131. It seems reasonable to believe that unbugged spies and informers are used at least several times that often. See also Holmes v. Burr, 486 F.2d 55, 68 (9th Cir. 1973) (Hufstedler, J., dissenting); Jerome H. Skolnick, Justice Without Trial: Law Enforcement in Democratic Society 112-38 (New York: John Wiley & Sons, 1966). It is also worth noting that in 1975 the FBI alone employed approximately 1,500 informants solely for domestic intelligence investigations. See Senate Select Committee, supra note 4, at 228.Google Scholar

154 See generally Senate Select Committee, supra note 4, at 225-70; Federal Bureau of Investigation, Annual Report 6 (1970).Google Scholar

155 See May, supra note 1, at 275-78.Google Scholar

156 Amsterdam, supra note 11, at 401.Google Scholar

157 See Paul Chevigny, Cops and Rebels 249-76 (New York: Pantheon Books, 1972).Google Scholar

158 See, e. g., Westin, supra note 49, at 131; Skolnick, supra note 153, at 115.Google Scholar

159 As to the particular relevance of the victimless nature of the offenses, see The Presi dent's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 218 (1967).Google Scholar

160 That the incentive to use the practice is understandable does not in itself end the matter, for it is equally understandable why police agencies might want to wiretap telephones or be permitted to search the homes and offices of persons even remotely suspected of engaging in criminal conduct. But however understandable this desire, the problem remains that its wide spread use poses a danger to other, constitutionally more important, interests.Google Scholar

161 In 1790 only 6 percent of the population lived in urban areas. In 1970, 73 percent of the population lived in such areas. See U.S. Bureau of the Census, Statistical Abstract of the United States: 1972, at 5, 24.Google Scholar

162 Indeed, even today the practice is rarely employed in small towns and rural commun ities. See Daniel L. Rotenberg, The Police Detection Practice of Encouragement: Lewis v. United States and Beyond, 4 Hous. L. Rev. 609, 629 (1967).Google Scholar

163 See note 161 supra.Google Scholar

164 As a result, it can no longer plausibly be argued that the financial constraints on the use of this practice will themselves keep its use within reasonable limits. For except insofar as the police prefer to use full-time regular agents in particular situations, the financial constraints are now virtually nonexistent.Google Scholar

165 See, e. g., Lawrence P. Tiffany, Donald M. McIntyre, Jr., & Daniel L. Rotenberg, Detection of Crime 253 (Boston: Little, Brown and Co., 1967); The President's Commission on Law Enforcement and Administration of Justice, supra note 159, at 218; Skolnick, supra note 153, at 123-24; Malachi L. Hamey & John C. Cross, The Informer in Law Enforcement 33 (Springfield, Ill.: Charles C. Thomas, 1960).Google Scholar

166 Hoffa v. United States, 385 U.S. 293, 303 (1966), quoting Lopez v. United States, 373 U.S. 427, 465 (1963) (Brennan, J., dissenting).Google Scholar

167 Lopez v. United States, 373 U.S. 427, 450 (1963) (Brennan, J., dissenting).Google Scholar

168 See United States v. White, 401 U.S. 745, 749, 751, 752 (1971) (plurality opinion); Hoffa v. United States, 385 U.S. 293, 302 (1966); cf. Lopez v. United States, 373 U.S. 427, 439 (1963).Google Scholar

169 See Amsterdam, supra note 11, at 406-7.Google Scholar

170 See Dix, supra note 1, at 217.Google Scholar

171 Lopez v. United States, 373 U.S. 427, 450 (1963) (Brennan, J., dissenting).Google Scholar

172 See Arnold Enker, Controls on Electronic Eavesdropping–A Basic Distinction, 2 Israel L. Rev. 461, 462-63 (1967).Google Scholar

173 White, supra note 51, at 229.Google Scholar

174 As Professor Amsterdam has observed, “under electronic surveillance you are afraid to talk to anybody in your office or over the phone, while under a spy system you are afraid to talk to anybody at all.” Amsterdam, supra note 11, at 407.Google Scholar

175 In some instances, the degree of actual governmental involvement in the activities of the would-be spy may arguably be so slight as not to amount to “state action.” This might perhaps be true, for example, if the would-be spy simply informs the police of his activities and they do no more than express a willingness to accept any additional information he might gather. Once the police even without offering any inducement begin taking an active role in the would-be spy's activities, however, state action should be found to exist. The discussion in the text relates only to those instances where police involvement is sufficient to justify such a finding.Google Scholar

176 See authorities cited in note 1 supra.Google Scholar

177 See White, supra note 51, at 224, 229-30.Google Scholar

178 A similar analysis should prevail in the third-party consent situation. Suppose, for example, that × and Y are roommates, sharing possession of an apartment. × permits the police to search the premises. Insofar as X's rights are concerned, the search clearly is lawful as long as he voluntarily consented. The legality of the search with respect to Y is more problematic. The Court has held that when two or more persons share “joint access or control” of the premises for most purposes, “it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” United States v. Matlock, 415 U.S. 164, 171 n.7 (1974). As in the secret agent context, it seems to me that the proper standard for measuring the legality of the search with respect to Y is not whether × voluntarily consented but, rather, whether he did so without any monetary or other material inducement from the authorities. For what is ultimately at stake here is not only X's right to be free of unlawful coercion, but also Y's “own interest in the security of the private relationships he is entitled to establish.” White, supra note 51, at 227. And although it may be reasonable to ask Y to assume the risk that × is generally untrustworthy, it is far more dangerous to impose upon him the additional risk that government will affirmatively attempt to induce a betrayal of his trust.Google Scholar

179 See Amsterdam, supra note 11, at 408.Google Scholar

180 Comment, supra note 146, at 810.Google Scholar

181 Greenawalt, supra note 144, at 220.Google Scholar

182 See id. at 220.Google Scholar

183 As indicated earlier, these requirements might not apply if the agent is a private citizen whose cooperation with the authorities was not in any way induced by express or implied offers of material reward. See text at notes 175-77 supra. It might also be noted that the applicability of the Fourth Amendment in those situations where the target individual is actually aware of the agent's official status, as in Osborn v. United States, 385 U.S. 323 (1966), raises somewhat different questions from the situations here under discussion.Google Scholar

184 As suggested earlier, the extent to which application of the Fourth Amendment's protections to any particular information-gathering practice might unduly frustrate legitimate law enforcement interests is a relevant concern in deciding the ultimate question of “reasonableness.” See text at note 72 supra.Google Scholar

185 See, e. g., Terry v. Ohio, 392 U.S. 1 (1968) (stop and frisk); United States v. Robinson, 414 U.S. 218 (1973) (search incident to arrest); Camara v. Municipal Court, 387 U.S. 523 (1967) (administrative searches); Davis v. Mississippi, 394 U.S. 721 (1969) (detentions for fingerprinting) (dictum); Chambers v. Maroney, 399 U.S. 42 (1970) (automobile searches).Google Scholar

186 See Amsterdam, supra note 11, at 387-95.Google Scholar

187 Even if such an approach is adopted, a warrant ordinarily should be required unless the agent can demonstrate that the reality of the situation rendered such a course impracticable. Cf. Rotenberg, supra note 162, at 620. Thus, even in cases like Lewis v. United States, 385 U.S. 206 (1966), a warrant would be required.Google Scholar

188 Comment, supra note 146, at 810. See also Note, Judicial Control of Secret Agents, 76 Yale L.J. 994, 1015-17 (1967).Google Scholar

189 Use of the mutual acquaintance technique to gain the target's confidence is fairly commonplace. See, e. g., Lewis v. United States, 385 U.S. 206 (1966); United States v. Test, 486 F.2d 922 (10th Cir. 1973); United States v. Smith, 43 F.2d 173 (S.D. Tex. 1930); United States v. Hurst, 302 F. Supp. 714 (E.D. Tenn. 1969).Google Scholar

190 There may be situations, for example, in which it is difficult to determine whether, in light of a hiatus in the conversation, we are really dealing with one or two “contacts.” These problems are likely to be relatively infrequent, however.Google Scholar

191 It may be, of course, that the actual benefits to be gained in effective law enforcement from the adoption of such an approach are so slight as not to be worth the bother. My own suspicion, however, is that the added flexibility that the reasonable suspicion standard–even as modified by the “first contact” approach–offers law enforcement officials when compared with a straight probable cause standard is not insubstantial. And this seems particularly true in relation to the types of offenses with which this technique ordinarily is employed.Google Scholar

192 See Comment, supra note 5, at 261; cf. White, supra note 51, at 230.Google Scholar

193 White, supra note 51, at 230.Google Scholar

194 Although it might seem doubtful that this tactic would actually prove successful, a review of the cases indicates that, with respect to at least some forms of criminal activity, it is in fact markedly effective. See, e. g., United States v. Russell, 411 U.S. 423 (1973); Lewis v. United States, 385 U.S. 206 (1966); United States v. Bush, 283 F.2d 51 (6th Cir. 1960); Warren v. Hawaii, 119 F.2d 936 (9th Cir. 1941); United States v. Hurst, 302 F. Supp. 714 (E.D. Tenn. 1969); United States v. Smith, 43 F.2d 173 (S.D. Tex. 1930); People v. St. Ives, 110 Ill. App. 2d 37, 249 N.E.2d 97 (1969). One apparent explanation for the effectiveness of this technique is that, in approaching the target with the unlawful proposition, the agent, as in Lewis, often attempts to gain the target's confidence by reference to some real or feigned mutual acquaintance. And although, as noted earlier, this means of gaining the target's confidence should ordinarily be prohibited in the absence of probable cause, it seems less troublesome here, where the inherent nature of the underlying tactic tends to minimize the threat to the target's legitimate privacy interest.Google Scholar

195 See note 211 infra.Google Scholar

196 See, e. g., People v. Collier, 85 Misc. 2d 529, 376 N.Y.S.2d 954 (Sup. Ct. 1975).Google Scholar

197 See Berger v. New York, 388 U.S. 41, 60-63 (1967).Google Scholar

198 The discussion in the text is not intended to deal specifically with the situation in which an individual's friend or associate is coerced, deceived, or induced into revealing information previously disclosed to him in confidence. Unlike the problem addressed in the text, this situation involves governmental efforts to obtain information about X, not direcdy from × but, rather, from Y. In at least some instances it is settled that this practice can violate X's rights under the Fourth Amendment. For example, if × gives Y temporary possession of some object without relinquishing ownership, it is clear that government seizure of that object in an unlawful search of Y's person or premises is violative of X's rights. See, e. g., Jones v. United States, 362 U.S. 257 (1960). In that context, X's property rights as well as his privacy interests are at stake. The result should not necessarily be different, however, when only privacy is at issue. For example, if × mails a letter to Y and government officials intercept and read that letter while it is in transit without complying with the Fourth Amendment, X's rights have been violated. See, e. g., Ex parte Jackson, 96 U.S. 277 (1877). If Y receives the letter, and it is then seized in an unlawful search of Y, it seems to me that X's rights are no less violated even though he no longer has a property interest in the letter. Similarly, if government agents unlawfully wiretap a telephone conversation between Y and Z, during which Y reveals information previously disclosed to him by X, × should have standing to complain. In each of these situations, X's “reasonable expectations of privacy” have been frustrated by government's unlawful searches of Y.Google Scholar

The analysis is more complex, however, when government obtains the information from Y without violating Y's own rights under the Fourth Amendment. This might arise, for example, when the government gives Y immunity in return for his disclosure of information revealed to him previously by X. Although the interests at stake in this situation are similar, if not identical, to those involved in the secret agent context, there are several potentially significant differences in terms of the degree to which the respective practices infringe on the individual's expectations of privacy. Unlike the secret agent situation, for example, this practice involves no deception of the person about whom the information is obtained. Moreover, this practice is somewhat less likely to result in disclosure of detailed personal information than the use of secret agents. Because of the ongoing nature of the secret agent-target relationship, the agent can guide conversations so as to gain access to information that might not otherwise be revealed. And, of course, the secret agent can record or report that information while it is still fresh in his memory. Those aspects of the information-gathering process are not present, however, when a friend or associate is coerced or induced into revealing information previously disclosed to him. Thus, although the mode of analysis of these two practices is the same, the results might arguably differ.Google Scholar

199 For a fuller discussion of those decisions, see part II supra.Google Scholar

200 The assumption of risk notion is discussed more fully in text at notes 166-78 supra.Google Scholar

201 Katz v. United States, 389 U.S. 347 (1967).Google Scholar

202 United States v. White, 401 U.S. 745 (1971). See text at notes 127-37 supra.Google Scholar

203 In effect, White concluded that Hoffa“was left undisturbed by Katz.” 401 U.S. at 749.Google Scholar

204 401 U.S. at 752.Google Scholar

205 Justices Douglas, Harlan, and Marshall dissented. Justice Brennan concurred in the result on technical grounds but expressly rejected Justice White's conclusions on the issue here under discussion and is treated here as a dissenter for that purpose. See 401 U.S. at 755.Google Scholar

206 401 U.S. at 787.Google Scholar

207 Id. at 788.Google Scholar

208 Id. at 787.Google Scholar

209 See, e. g., Enker, supra note 172, at 463; Comment, supra note 74, at 842; Note, The Supreme Court-1970 Term, 85 Harv. L. Rev. 38, 255-56 (1971).Google Scholar

210 See text at notes 74-75 supra. See also Cooley, supra note 10, at 373; Comment, supra note 74, at 838-39. Cf. United States v. Holmes, 521 F.2d 859, 864-68 (5th Cir. 1975).Google Scholar

211 At least three such situations were identified: (1) where a private citizen acting without any implied or express material inducement from government officials decides to serve as a secret agent; (2) where an agent approaches an individual as a “total stranger” and reasonably suspects that the individual has committed or is about to commit a criminal offense, or that he is in possession of some information in which the authorities have a legitimate interest; and (3) where the conversation is “criminal at its inception.”Google Scholar

212 United States v. On Lee, 193 F.2d 306, 315 (2d Cir. 1951) (Frank, J., dissenting), quoting in Silverman v. United States, 365 U.S. 505, 511-12 n.4 (1961). See also Cooley, supra note 10, at 365.Google Scholar

213 Silverman v. United States, 365 U.S. 505, 511 (1961). See Johnson v. United States, 333 U.S. 10, 14 (1948).Google Scholar

214 See text at note 76 supra. Indeed, the Court itself has allowed searches of the individual's home or office without full compliance with the Fourth Amendment probable cause and warrant requirements in only the most carefully circumscribed circumstances. See, e. g., Warden v. Hayden, 387 U.S. 294 (1967) (hot pursuit); Chimel v. California, 395 U.S. 752 (1969) (incident to arrest); Camara v. Municipal Court, 387 U.S. 523 (1967) (administrative searches).Google Scholar

215 In effect, then, the analysis accepts arguendo the Court's view of the problem in the absence of entry rather than the approach suggested in part III of this paper.Google Scholar

216 See United States v. Mitchneck, 2 F. Supp. 225 (D.C. Mont. 1933).Google Scholar

217 See Gatewood v. United States, 209 F.2d 789 (D.C. Cir. 1953).Google Scholar

218 See United States v. Epstein, 240 F. Supp. 80 (S.D.N.Y. 1965).Google Scholar

219 See Leahy v. United States, 272 F.2d 487 (9th Cir. 1960).Google Scholar

220 See People v. Veloz, 22 Cal. App. 3d 499, 99 Cal. Rptr. 519 (Dist. Ct. App. 1971).Google Scholar

221 See Whiting v. United States, 321 F.2d 72 (1st Cir. 1963).Google Scholar

222 See also United States v. Guidry, 534 F.2d 1220 (6th Cir. 1976); United States v. Novello, 519 F.2d 1078 (5th Cir. 1975); Fraternal Order of Eagles v. United States, 57 F.2d 93 (3d Cir. 1932); In re Robert T., 8 Cal. App. 3d 990, 88 Cal. Rptr. 37 (Dist. Ct. App. 1970); People v. Porter, 227 Cal. App. 2d 211, 38 Cal. Rptr. 621 (Dist. Ct. App. 1964).Google Scholar

223 See, e. g., Lewis v. United States, 385 U.S. 206, 211 (1966); United States v. Jeffers, 342 U.S. 48, 51 (1951).Google Scholar

224 The extensiveness of the intrusion will, of course, vary depending upon the nature of the role the agent assumes.Google Scholar

225 It has generally been held, for example, that it constitutes a “search” within the meaning of the Fourth Amendment for a government officer, relying upon either force of authority or trickery, to induce an individual to open the door of his home to enable the officer to see into the premises. See, e. g., Johnson v. United States, 333 U.S. 10 (1948); People v. Rives, 61 Cal. 2d 268, 391 P.2d 393, 38 Cal. Rptr. 1 (1964) (In Bank); People v. Miller, 248 Gal. App. 2d 731, 56 Cal. Rptr. 865 (Dist. Ct. App. 1967). Similarly, although the Supreme Court has not as yet decided the issue, see United States v. Watson, 96 S. Ct. 820 (1976), several courts have held that the entry of a government officer into an individual's home to make an arrest constitutes a “search” requiring full compliance with the probable cause and warrant requirements. See, e. g., Dorman v. United States, 435 F.2d 385 (D.C. Cir. 1970) (en bane); England v. State, 488 P.2d 1347 (Okla. Crim. App. 1971). Moreover, even those courts that have held the warrant requirement inapplicable have nevertheless insisted that the officer at least reasonably believe that the suspect is on the premises. See, e. g., People v. Eddington, 23 Mich. App. 210, 178 N.W.2d 686 (1970), aff'd, 198 N.W.2d 297 (1972).Google Scholar

226 See, e. g., Camara v. Municipal Court, 387 U.S. 523 (1967); United States v. Ryles, 291 F. Supp. 492, 494 (D. Del. 1968); People v. Mesaris, 14 Cal. App. 3d 71, 91 Cal. Rptr. 837 (Dist. Ct. App. 1970).Google Scholar

227 See On Lee v. United States, 343 U.S. 747, 751-52 (1951). In On Lee, however, the agent entered the portion of the laundry that was open to the general public. As a consequence, the entry itself would be permissible under the “commercial center” doctrine, and the Court's reference to “consent” should probably be interpreted in that light.Google Scholar

228 See, e. g., Schneckloth v. Bustamonte, 412 U.S. 218 (1973); Zap v. United States, 328 U.S. 624 (1946); Davis v. United States, 328 U.S. 582 (1946).Google Scholar

229 See, e. g., Bumper v. North Carolina, 391 U.S. 543 (1968); Amos v. United States, 255 U.S. 313 (1921).Google Scholar

230 See, e. g., United States v. General Pharmacal Co., 205 F. Supp. 692 (D.N.J. 1962); United States v. Guerrina, 112 F. Supp. 126 (E.D, Pa. 1953); People v. Mesaris, 14 Cal. App. 3d 71, 91 Cal. Rptr. 837 (Dist. Ct. App. 1970); Commonwealth v. Wright, 411 Pa. 81, 190 A.2d 709 (1963). See also Weinreb, supra note 51, at 67.Google Scholar

231 This conclusion is not inconsistent with the Court's decision in SchneckJoth v. Bustamonte, 412 U.S. 218 (1973). Whatever the merits of Schneckloth, in which the Court held that “consent” can be valid even if the individual does not actually know he has a right to refuse, the ignorance of the “consenter” in this context is more extreme and, moreover, is induced by the government's own deceptive and misleading conduct.Google Scholar

232 Katz v. United States, 389 U.S. 347, 351 (1967).Google Scholar

233 Air Pollution Variance Bd. v. Western Alfalfa Corp., 416 U.S. 861, 865 (1974). See, e. g., United States v. Dionisio, 410 U.S. 1 (1973); United States v. Mara, 410 U.S. 19 (1973). See also text at notes 256-60 infra.Google Scholar

234 United States v. White, 401 U.S. 745, 786 (1971) (Harlan, J., dissenting).Google Scholar

235 See, e. g., Air Pollution Variance Bd. v. Western Alfalfa Corp., 416 U.S. 861 (1974), United States v. Dionisio, 410 U.S. 1 (1973); United States v. Mara, 410 U.S. 19 (1973). See also text at notes 256-60 infra.Google Scholar

236 See text at notes 56-57 supra.Google Scholar

237 Hoffa v. United States, 385 U.S. 293, 302 (1966), accord, United States v. White, 401 U.S. 745, 749 (1971) (plurality opinion).Google Scholar

238 See text at notes 166-74 supra.Google Scholar

239 United States v. White, 401 U.S. 745, 786 (1971) (Harlan, J., dissenting).Google Scholar

240 Fraternal Order of Eagles v. United States, 57 F.2d 93, 94 (3d Cir. 1932).Google Scholar

241 See Gouled v. United States, 255 U.S. 298, 305-6 (1921).Google Scholar

242 Indeed, virtually every court that has considered this issue since Gouled has reached a similar conclusion. See, e. g., Fraternal Order of Eagles v. United States, 57 F.2d 93 (3d Cir. 1932); United States v. General Pharmacal Co., 205 F. Supp. 692 (D.N.J. 1962); United States v. Reckis, 119 F. Supp. 687 (D. Mass. 1954); United States v. Mitchneck, 2 F. Supp. 225 (D.C. Mont. 1933); People v. Mesaris, 14 Cal. App. 3d 71, 91 Cal. Rptr. 837 (Dist. Ct. App. 1970).Google Scholar

243 See text at notes 171-74 supra.Google Scholar

244 With respect to those situations in which a meterman or similar person is induced after his visit to disclose his prior observations, see note 198 supra.Google Scholar

245 See text at notes 174-78 supra.Google Scholar

246 Hoffa v. United States, 385 U.S. 293 (1966).Google Scholar

247 See, e. g., United States v. White, 401 U.S. 745, 749 (1971) (plurality opinion); Hoffa v. United States, 385 U.S. 293, 302 (1966).Google Scholar

248 Cf. United States v. Locklear, 237 F. Supp. 895 (N.D. Cal. 1965).Google Scholar

249 Moreover, an assumption that the agent's sole motivation in such circumstances is to converse is, at best, speculative. For in many, if not most, instances the agent is likely to have mixed motives. That is, although the agent may wish to enter the premises in order to converse, he may also hope to see things of interest, and in any event would certainly note whatever he happened to see. Any effort to sort out those motives is likely to prove futile.Google Scholar

250 See Hoffa v. United States, 385 U.S. 293, 302 (1966); see also Lewis v. United States, 385 U.S. 206, 212 (1966).Google Scholar

251 Weinreb, supra note 51, at 67.Google Scholar

252 See, e. g., Johnson v. United States, 333 U.S. 10 (1948).Google Scholar

253 See Note, supra note 2, at 1012.Google Scholar

254 Cf. United States v. Lane, 230 F. Supp. 950 (S.D.N.Y. 1964); People v. Albert, 182 Cal. App. 2d 729, 6 Cal. Rptr. 473 (Dist. Ct. App. 1960). This same point, it should be noted, would apply even if the analysis suggested in part III of this paper is adopted.Google Scholar

255 See, e.g., Lewis v. United States, 385 U.S. 206 (1966); United States v. Bradley, 455 F.2d 1181 (1st Cir. 1972); United States v. Bush, 283 F.2d 51 (6th Cir. 1960); United States v. Lane, 230 F. Supp. 950 (S.D.N.Y. 1964); United States v. Smith, 43 F.2d 173 (S.D. Tex. 1930).Google Scholar

256 See, e. g., United States v. Williams, 328 F.2d 887 (2d Cir. 1964); Fisher v. United States, 205 F.2d 702 (D.C. Cir. 1953); Smith v. United States, 105 F.2d 778 (D.C. Cir. 1939); Ludwig v. United States, 3 F.2d 231 (7th Cir. 1924).Google Scholar

257 See, e. g., Amos v. United States, 255 U.S. 313 (1921).Google Scholar

258 See, e. g., Villano v. United States, 310 F.2d 680 (10th Cir. 1962); Hughes v. Johnson, 305 F.2d 67 (9th Cir. 1962); Baysden v. United States, 271 F.2d 325 (4th Cir. 1959). See also Lewis v. United States, 385 U.S. 206, 211 (1966).Google Scholar

259 See text at notes 227-31 supra.Google Scholar

260 See Katz v. United States, 389 U.S. 347, 351 (1967).Google Scholar

261 United States v. White, 401 U.S. 745, 786 (1971) (Harlan, J., dissenting). The difficulties inherent in the application of this concept are well illustrated by the “private club” cases. See, e. g., Fraternal Order of Eagles v. United States, 57 F.2d 93 (3d Cir. 1932); Stagecrafters Club, Inc. v. District of Columbia, 89 A.2d 876 (D.C. 1952); Kansas v. Seven Slot Machines, 203 Kan. 833, 457 P.2d 97 (1969).Google Scholar

262 Lewis v. United States, 385 U.S. 206 (1966).Google Scholar

263 385 U.S. at 211. See also id. at 213 (Brennan, J., concurring).Google Scholar

264 See, e. g., United States v. Ryles, 451 F.2d 190 (3d Cir. 1971); United States v. Boggus, 411 F.2d 110 (9th Cir. 1969); State v. Roy, 54 Haw. 513, 510 P.2d 1066 (1973); People v. St. Ives, 110 Ill. App. 2d 37, 249 N.E.2d 97 (1969).Google Scholar

265 For a possible example of such a situation, see, e. g., United States v. Harris, 534 F.2d 207 (10th Cir. 1975). It should also be noted that the commercial center theory, by its very nature, makes no distinction between lawful and unlawful businesses. As a consequence, one potential danger of a broad interpretation of the doctrine is that it would govern not only the Lewis-type situation but also those situations in which an individual invites others into his home for lawful purposes. It would, therefore, be a ready vehicle for all sorts of abuses.Google Scholar

266 This discussion presupposes that the agent does not himself unnecessarily suggest or otherwise induce the invitation to enter. See text at note 254 supra.Google Scholar

267 For a discussion of the warrant requirement generally, see White, supra note 51, at 181-82 n.34; Weinreb, supra note 51, at 71-72.Google Scholar

268 See, e. g., Coolidge v. New Hampshire, 403 U.S. 443, 455 (1971) (plurality opinion); Warden v. Hayden, 387 U.S. 294 (1967); Schmerber v. California, 384 U.S. 757 (1966).Google Scholar

269 As explained earlier at some length, the failure to obtain a warrant in such a situation cannot fairly be justified on grounds of consent, exposure to the public, misplaced confidence, or assumption of risk. Moreover, although the nature and scope of the searches in the two situations may differ, this does not justify different results. See text at notes 223-26 supra.Google Scholar

270 Needless to say, the “exigent circumstances” exception should be strictly construed. It should not apply, for example, in cases like Lewis, where the agent had ample opportunity to obtain a warrant in the rime between the initial telephone call and the visit to Lewis's home. In short, the warrant requirement should be waived only if the agent's effort to obtain a warrant would disrupt the normalcy of the situation in such a way as to endanger the investigation itself.Google Scholar

271 May, supra note 1, at 275. See also Cooley, supra note 10, at 372 n.2.Google Scholar