See 402 U.S. 990, 91 S.Ct. 1643.

Syllabus

Respondent was convicted in 1966 of narcotics violations following a trial where evidence was admitted of certain incriminating statements of respondent that were overheard by warrantless electronic eavesdropping by Government agents by means of a transmitter which an informer consented to wear during his meetings with respondent. The informer could not be located at trial, and the trial court overruled objections to the testimony of the agents who conducted the electronic surveillance. Reading Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), as overruling On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952), the Court of Appeals held that the agents' testimony was impermissible under the Fourth Amendment, and reversed respondent's conviction. Held: The judgment is reversed. Pp 748-756.

405 F.2d 838, reversed.

Mr. Justice WHITE, joined by THE CHIEF JUSTICE, Mr. Justice STEWART, and Mr. Justice BLACKMUN, concluded that:

1. The Government's use of agents who themselves may reveal the contents of conversations with an accused does not violate the Fourth Amendment, and this Court's decision in Katz v. United States, supra, does not disturb the rationale of On Lee, supra, in this respect and require a different result because the agent uses electronic equipment to transmit the conversations to other agents. Pp. 748-754.

2. The unavailability of the informant as a witness does not create any Fourth Amendment issue. Pp. 753-754.

3. Since the decision in Katz v. United States, supra, was not retroactive, Desist v. United States, 394 U.S. 244, the Court of Appeals erred in not adjudicating this case by the pre-Katz law established by On Lee to the effect that the electronic surveillance did not involve a Fourth Amendment violation. P. 754.

Mr. Justice BLACK concurred in the judgment for the reasons set forth in his dissent in Katz v. United States, 389 U.S. 347, 364. P. 754.

Mr. Justice BRENNAN, to the extent that he joined in the Court's judgment, concluded that Desist v. United States, supra, requires reversal of the Court of Appeals' judgment. P. 755.

Will R. Wilson for petitioner.

John L. Boeger, St. Louis, Mo., for respondent.

Mr. Justice WHITE announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, Mr. Justice STEWART, and Mr. Justice BLACKMUN join.