DOUGLAS, J., dissenting.

343 U.S.

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 valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must 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., supra, at 473-474, 478-479.

747

BURTON, J., dissenting.

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, p. 470).

MR. JUSTICE BURTON, with whom MR. JUSTICE FRANKFURTER Concurs, dissenting.

I agree with the dissenting opinion below that what Lee overheard by means of a radio transmitter surreptitiously introduced and operating, without warrant or consent, within petitioner's premises, should not have been admitted in evidence. The Fourth Amendment's protection against unreasonable searches and seizures is not limited to the seizure of tangible things. It extends to intangibles, such as spoken words. In applying the exclusionary rule of Weeks v. United States, 232 U. S. 383, we are primarily concerned with where and how the evidence is seized rather than what the evidence is. Cf. Silverthorne Lumber Co. v. United States, 251 U. S. 385; United States v. Jeffers, 342 U. S. 48; Nueslein v. District of Columbia, 73 App. D. C. 85, 115 F. 2d 690.

It seems clear that if federal officers without warrant or permission enter a house, under conditions amounting to unreasonable search, and there conceal themselves, the conversations they thereby overhear are inadmissible in a federal criminal action. It is argued that, in the instant case, there was no illegal entry because petitioner

BURTON, J., dissenting.

343 U. S.

consented to Chin Poy's presence. This overlooks the fact that Chin Poy, without warrant and without petitioner's consent, took with him the concealed radio transmitter to which agent Lee's receiving set was tuned. For these purposes, that amounted to Chin Poy surreptitiously bringing Lee with him.

This Court has held generally that, in a federal criminal trial, a federal officer may testify to what he sees or hears take place within a house or room which he has no warrant or permission to enter, provided he sees or hears it outside of those premises. Olmstead v. United States, 277 U. S. 438. Cf. Hester v. United States, 265 U. S. 57. This holds true even where the officer supplements his hearing with a hearing aid, detectaphone or other device outside the premises. This merely enables him to hear more distinctly, where he is, what reaches him there from wherever it may come. He and his hearing aid pick up the sounds outside of, rather than within, the protected premises. Goldman v. United States, 316 U. S. 129.

In the instant case, Chin Poy, who was lawfully in petitioner's room, could have testified as to what he, himself, saw or heard there. Yet, if he had been there unlawfully or surreptitiously, without warrant or consent, under conditions amounting to an unreasonable search, he should not be permitted, in this proceeding, to testify even to that. Cf. Gouled v. United States, 255 U. S. 298; Nueslein v. District of Columbia, supra. Similarly, if Lee, under like conditions, without warrant and without authority, entered the room with Chin Poy and, while concealed, overheard petitioner's conversation with Chin Poy, Lee's testimony should be excluded. In substance, that is what took place here. Lee's overhearing of petitioner's statements was accomplished through Chin Poy's surreptitious introduction, within petitioner's laundry, of Lee's concealed radio transmitter which, without petition

747

BURTON, J., dissenting.

er's knowledge or consent, there picked up petitioner's conversation and transmitted it to Lee outside the premises. The presence of the transmitter, for this purpose, was the presence of Lee's ear. While this test draws a narrow line between what is admissible and what is not, it is a clearly ascertainable line. It is determined by where the "effects" are seized or, as here, where the words are picked up. In this case the words were picked up without warrant or consent within the constitutionally inviolate "house" of a person entitled to protection there against unreasonable searches and seizures of his person, house, papers and effects. It is inevitable that the line be narrow between, on the one hand, the constitutional right of a person to be free from unreasonable searches and seizures and, on the other, the need for the effective prosecution of crime. Drawing the line is a continuing process. The important thing is that the direction of the line that emerges from successive cases be clear.

BROTHERHOOD OF RAILROAD TRAINMEN ET AL. v. HOWARD ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT.

No. 458. Argued April 22, 1952.-Decided June 9, 1952.

Petitioner union is an exclusively white union which acts under the Railway Labor Act as bargaining representative for railroad trainmen. By threat of a strike, it forced petitioner railroad to agree not to permit Negro "train porters" to perform any of the duties of brakemen. As a result, the railroad took steps to discharge Negro "train porters" and replace them with white brakemen. Respondent, a member of a group of Negro "train porters" who for many years had satisfactorily performed the duties of brakemen and had their own separate union as their bargaining representative, brought a class suit in a Federal District Court for a judgment declaring the agreement void and enjoining the railroad from carrying it out. Held:

1. The Railway Labor Act prohibits bargaining agents who enjoy the advantages of its provisions from using their position and power to destroy Negro workers' jobs in order to bestow them on white workers. Steele v. Louisville & N. R. Co., 323 U. S. 192. Pp. 769-774.

2. The District Court has the jurisdiction and power to issue the injunction necessary to protect these Negro workers from the racial discrimination practiced against them. Pp. 774-775.

(a) Since this dispute involves the validity of a contract, not its meaning, it cannot be resolved by interpretation of a bargaining agreement so as to give exclusive jurisdiction to the Railway Adjustment Board under Slocum v. Delaware, L. & W. R. Co., 339 U. S. 239. P. 774.

(b) Nor does this dispute hinge on the proper craft classification of the "train porters" so as to call for settlement by the National Mediation Board under Switchmen's Union v. National Mediation Board, 320 U. S. 297. P. 774.

(c) Nor is the issuance of an injunction in this case prohibited by the Norris-LaGuardia Act. Steele v. Louisville & N. R. Co., 323 U. S. 192; Graham v. Brotherhood of Firemen, 338 U. S. 232. P. 774.