On Lee v. United States/Dissent Frankfurter
Mr. Justice FRANKFURTER, dissenting.

The law of this Court ought not to be open to the just charge of having been dictated by the 'odious doctrine,' as Mr. Justice Brandeis called it, that the end justifies reprehensible means. To approve legally what we disapprove morally, on the ground of practical convenience, is to yield to a short-sighted view of practicality. It derives from a preoccupation with what is episodic and a disregard of long-run consequences. The method by which the state chiefly exerts an influence upon the conduct of its citizens, it was wisely said by Archbishop William Temple, is 'the moral qualities which it exhibits in its own conduct.'

Loose talk about war against crime too easily infuses the administration of justice with the psychology and morals of war. It is hardly conductive to the soundest employment of the judicial process. Nor are the needs of an effective penal code seen in the truest perspective by talk about a criminal prosecution's not being a game in which the Government loses because its officers have not played according to rule. Of course criminal prosecution is more than a game. But in any event it should not be deemed to be a dirty game in which 'the dirty business' of criminals is outwitted by 'the dirty business' of law officers. The contrast between morality professed by society and immorality practiced on its behalf makes for contempt of law. Respect for law cannot be turned off and on as though it were a hot-water faucet.

It is a quarter century since this Court, by the narrowest margin, refused to put wiretapping beyond the constitutional pale where a fair construction of the Fourth Amendment should properly place it. Since then, instead of going from strength to strength in combatting crime, we have gone from inefficiency to inefficiency, from corruption to corruption. The moral insight of Mr. Justice Brandeis unerringly foresaw this inevitability. 'The progress of science in furnishing the government with means of espionage is not likely to stop with wire tapping. Ways may some day be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions.' Olmstead v. United States, 277 U.S. 438, 471, 474, 48 S.Ct. 564, 571, 72 L.Ed. 944. The circumstances of the present case show how the rapid advances of science are made available for that police intrusion into our private lives against which the Fourth Amendment of the Constitution was set on guard.

It is noteworthy that although this Court deemed wiretapping not outlawed by the Constitution, Congress outlawed it legislatively by the Communications Act of 1934, 42 Stat. 1064, 1103, 47 U.S.C. § 605, 47 U.S.C.A. § 605; Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314; Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307. What is perhaps even more noteworthy is its pervasive disregard in practice by those who as law officers owe special obedience to law. What is true of the federal Act against wiretapping and its violations is widely true of related state legislation and its disobedience. See Westin, The Wire-Tapping Problem, 52 Col.L.Rev. 165 (1952). Few sociological generalizations are more valid than that lawlessness begets lawlessness.

The members of this Court who so vigorously urged that wiretapping is within the clear scope of the prohibition of the Fourth Amendment were no sentimetalists about crime or criminals. Mr. Justice Holmes, Mr. Just ice Brandeis, Mr. Justice Butler and Chief Justice Stone were no softies. In all matters of social policy we have to choose, and it was the hardy philosophy of life that his years in the Army of the Potomac taught him that led Mr. Justice Holmes to deem it 'a less evil that some criminals should escape than that the Government should play an ignoble part.' Olmstead v. United States, supra, 277 U.S. at page 470, 48 S.Ct. at page 575.

Suppose it be true that through 'dirty business' it is easier for prosecutors and police to bring an occasional criminal to heel. It is most uncritical to assume that unless the Government is allowed to practice 'dirty business' crime would become rampant or would go unpunished.

In the first place, the social phenomena of crime are imbedded in the texture of our society. Equally deepseated are the causes of all that is sordid and ineffective in the administration of our criminal law. These are outcroppings, certainly in considerable part, of modern industrialism and of the prevalent standards of the community, related to the inadequacy in our day of early American methods and machinery for law enforcement and to the small pursuit of scientific inquiry into the causes and treatment of crime.

Of course we cannot wait on the slow progress of the sociological sciences in illuminating so much that is still dark. Nor should we relax for a moment vigorous enforcement of the criminal law until society, by its advanced civilized nature, will beget an atmosphere and environment in which crime will shrink to relative insignificance. Mr. deepest feeling against giving legal sanction to such 'dirty business' as the record in this case discloses is that it makes for lazy and not alert law enforcement. It puts a premium on force and fraud, not on imagination and enterprise and professional training. The third degree, search without warrant, wiretapping and the like, were not tolerated in what was probably the most successful administration in our time of the busiest United States Attorney's office. This experience under Henry L. Stimson in the Southern District of New York, compared with happenings elsewhere, doubtless planted in me a deep conviction that these short-cuts in the detection and prosecution of crime are as self-defeating as they are immoral.

Sir James Fitzjames Stephen brings significant testimony on this point:

'During the discussions which took place on the Indian Code      of Criminal Procedure in 1872 some observations were made on      the reasons which occasionally lead native police officers to      apply torture to prisoners. An experienced civil officer      observed, 'There is a great deal of laziness in it. It is far      pleasanter to sit comfortably in the shade rubbing red pepper      into a poor devil's eyes than to go about in the sun hunting      up evidence.' This was a new view to me, but I have no doubt      of its truth.' 1 Stephen, A History of the Criminal Law of      England (1883), 442 note. Compare §§ 25 and 26 of the Indian      Evidence Act (1872).

And Fitzjames Stephen, who acted on this experience in drawing the Indian Evidence Act, was no softie, either before be became a judge or on the bench.

Accordingly I adhere to the views expressed in Goldman v. United States, 316 U.S. 129, 136, 62 S.Ct. 993, 996, 86 L.Ed. 1322, that the Olmstead case should be overruled for the reasons set forth in the dissenting opinions in that case. These views have been strongly underlined by the steady increase of lawlessness on the part of law officers, even after Congress has forbidden what the dissenters in Olmstead found the Constitution to forbid.

Even on the basis of the prior decisions of this Court, however, I feel bound to dissent. The Court seems not content with calling a halt at the place it had reached on what I deem to be the wrong road. As my brother BURTON shows, the Court now pushes beyond the lines of legality heretofore drawn. Such encouragement to lazy, immora conduct by the police does not bode well for effective law en forcement. Nor will crime be checked by such means. 

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