I. THE FOURTH AMENDMENT

A. Physical Presence of Informant

Conversations with, or in the hearing of, an undercover agent or government informant are not a search and seizure within the meaning of the Fourth Amendment. The Supreme Court held in Hoffa v. United States1 that a person speaking within the hearing of a government agent is not relying on the security of any constitutionally protected area, but rather on his misplaced confidence that the listener will not reveal what is said. The use of an informant to gather evidence of incriminating statements for use against the speaker does not pose a Fourth Amendment problem.

2

Informants invited into a home or place of business

may testify regarding what they saw and heard. Entrance

1

2

385 U.S. 293, 302 (1966).

See also United States v. Santillo, 507 F.2d 629, 632 (3d Cir.), cert. denied, 421 U.S. 968 (1975) (undercover agent's testimony from notes admissible at trial); Berlin Democratic Club v. Rumsfeld, 410 F.Supp. 144, 153 (D.D.C. 1976) (covert penetration of organization does not violate Fourth Amendment); State v. Hamm, 234 N.W. 2d 60, 63 (S.D. 1975) (use of informant to suspects does not violate Fourth Amendment).

"pump"

3

with consent is not a Fourth Amendment violation.

An

agent invited to enter for a particular pupose, however,

is not authorized to make a general search for incriminating evidence. 4

B. Electronic Eavesdropping with Consent of Informant Electronic eavesdropping on conversations to which a consenting informant is a party or is physically present is not a search and seizure and no warrant is required. This is so whetner the conversation is transmitted by a 6 device worn by the informant, taped by the informant, or

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5

3

4

5

Lewis v. United States, 385 U.S. 206, 211 (1966) (agent invited into home to purchase narcotics); United States v. Tarrant, 460 F.2d 701, 703 (5th Cir. 1972) (agent invited into home testified regarding observed illegal possession of firearms). See also Lopez v. United States, 373 U.S. 427, 438 (1963) (agent invited into business office did not violate privacy of office).

Lewis v. United States, 385 U.S. 206, 211 (1966), supra.

United States v. White, 401 U.S. 745, 752 (1971).

6

Id.

7

Lopez v. United States, 373 U.S. 427, 439 (1963).

In People v. Collier, a judge of the New York Supreme Court held that the conduct of an undercover agent placed in a community where no suspected crime was under investigation violated the Fourth Amendment rights of an individual who was convicted by evidence gathered by the agent.

The agent's assignment was to infiltrate an entire community and, specifically, a politically active organization within the community. His activities included both attendance at public gatherings and numerous secret warrantless searches of the defendant's home. Acknowledging the appropriate function of an undercover agent in infiltrating groups where there is evidence of criminal activity,

the court found

that the police had no probable cause to believe that a

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9

LO

Ansley v. Stynchcombe, 480 F. 2d 437, 441 (5th Cir. 1973).

United States v. Bonano, 487 F. 2d 654, 658 (2d Cir. 1973).

85 Misc. 2d 529, 376 N.Y.S. 2d 954 (Sup. Ct. N.Y. County

criminal investigation in the community was required, or that the individual defendant was engaged in criminal activity.

The Fourth Amendment was violated in the first instance by planting an agent in the community, and second

by allowing him to focus his evidence gathering efforts on one individual.

This broad ruling is inconsistent with a series of federal and state court decisions. These decisions recognize a legitimate police function in attending public gatherings to collect information about people active in political organizations. Mere presence in the community and

attendance of public meetings do not invade any constiNor is there any

tutionally protected area of privacy.

precedent for requiring that probable cause exist before an informant is placed in a public meeting or engages in conversation with any individual. Although the conduct of the

police in this case was reprehensible and the constitutional rights of the defendant were violated in several instances, there is little support for the decision's implication that the use of a "listening post" informant is unconstitutional.