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.

II. THE FIFTH AMENDMENT

The Supreme Court held in Hoffa v. United States that the use at trial of incriminating statements made to, or overheard by, an informant does not violate the defendant's privilege against compulsory self-incrimination. Such statements are made voluntarily and lack any element of com11 12 pulsion. Lower federal courts and state courts have

consistently held that informant-obtained statements are admissible and do not violate the defendant's Fifth Amend

Courts have seldom treated the argument that the use

of an undercover agent is per se a violation of due process. The argument was flatly rejected by the Supreme Court in Hoffa v. United States, where an informant testified regarding the defendant's jury-tampering efforts during an

11

12

See, e.g., United States v. DiLorenzo, 429 F. 2d 216, 219 (2d Cir. 1970) cert. denied, 420 U.S. 950 (1971).

See, e.g. Easley v. State, 56 Ala. App. 102, 319 So. 2d 721, 724 (1975).

earlier trial.

B. Secrecy With Prejudice

Even where there is prejudice to the defendant, the

due process theory has seldom proven successful.

In addition,

The Ninth Circuit suggested in dicta, however, that informants may violate due process when they are used to invade the trial strategy counsels of a pro se defendant to gain advantage for the prosecution. the opinion in People v. Collier suggested that indiscriminate, pervasive infiltration of a community and its organizations may be so outrageous as to deprive the accused of due

process.

The Fifth Circuit has recently suggested in dicta that there may be a due process argument where the informant worked on a contingent fee basis and the defendant was a 13 "target."

13

United States v. McClure, 20 Crim. L. Rptr. 2485 (8th Cir. Feb. 7, 1977).

IV. THE FIRST AMENDMENT

A.

In General

The known or suspected presence of informants in a group organized to pursue a lawful purpose may inhibit protected speech and association activities. As Mr. Justice Marshall stated:

Dangers inherent in undercover investigation
are even more pronounced when the investigated
activity threatens to dampen the exercise of First
Amendment rights. 14

Groups and individuals have challenged government use of informants to attend meetings and infiltrate organizations on the grounds that protected freedoms of association and expression are thereby chilled. Federal courts recognize legitimate data collection and compilation that is relevant to law enforcement functions of investigating and deterring crime. Certain activities in pursuance of those functions are sanctioned as legitimate and immune from challenge in a court. Courts have been careful, however, to distinguish

14

Socialist Workers Party v. Attorney General of the United States, 419 U.S. 1314, (Marshall, Circuit Justice,

1974).

legitimate purposes, surveillance techniques, and uses of data from illegitimate ones. Covert activities that do not have a legitimate law enforcement purpose, that are illegal or specifically harmful to protected rights in and of themselves, or that make inappropriate use of the information may be challenged and enjoined in court.

In Laird v. Tatum the Supreme Court held that in order for a challenge to covert government activities on First Amendment grounds to be justiciable the plaintiff must allege "specific present objective harm or a threat of specific future harm." Plaintiffs had complained that

the existence and operation of an Army intelligence gathering system had a chilling effect on protected First Amendment rights. The Court noted that the Army activities had a

legitimate law enforcement purpose

employed were public and lawful.

and that the techniques

Absent a showing that

the plaintiffs were specifically harmed in their enjoyment

of their constitutional rights, such law enforcement activities are immune from attack in court.

15

408 U.S. 1 (1972).