§ 6.05 Surveillance of Conversations by "False Friends"

• Jurisdiction: United States

§ 6.05 Surveillance of Conversations by "False Friends"⁸³

[A] "False Friends" versus Katz

Katz v. United States⁸⁴ involved electronic monitoring by the government of private conversations to which neither of the speakers consented. That is, while K and X spoke on the telephone, unbeknownst to either, government agents listened to their conversations. Katz concluded that the speakers had a reasonable expectation of privacy in their conversations. Therefore, the government was required to conduct the surveillance — a Fourth Amendment "search" — in a constitutionally reasonable manner by obtaining a search warrant.

Katz must be distinguished from cases in which the police acquire a suspect's statements without electronically monitoring his conversations, or by monitoring them with the consent of a conversational participant. This occurs when X, a police informant or undercover police agent, insinuates himself into D's confidence in order to elicit incriminating information from D. In such circumstances, X might be termed a "false friend" of D, essentially a visible "bug" with an invisible purpose.

[B] False Friends

No "search" occurs if X, a police informant or undercover agent who is visibly present but is masquerading as D's friend, business associate, or colleague in crime, listens to and reports to the government D's statements to X or to another person in X's presence. Prior to Katz, the Supreme Court invoked an "assumption of the risk" doctrine to reach this conclusion; after Katz, it reaffirmed this rule but framed its reasoning in expectation-of-privacy terms.

In the leading pre-Katz false-friend case, Hoffa v. United States,⁸⁵ H conversed with X in H's hotel suite. X was an acquaintance of H, but at the time of their conversations the Supreme Court assumed that X was serving as a paid government informant. The government sought to introduce D's statements to X at H's later trial.

The Court rejected H's claim that his statements were obtained in violation of the Fourth Amendment. The justices held that although the hotel room in which the conversations arose was a constitutionally protected area, "no interest legitimately protected by the Fourth Amendment [was] involved" because H "was not relying on the security of the hotel room; he was relying upon his misplaced confidence that [X] would not reveal his wrongdoing."

The lesson of Hoffa is that when a person voluntarily speaks to another, i.e., deliberately reveals his mental impressions to a second...