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May 24, 1974

John D. EHRLICHMAN et al.

Gesell, District Judge.

The opinion of the court was delivered by: GESELL

GESELL, District Judge.

 Five defendants stand indicted for conspiring to injure a Los Angeles psychiatrist in the enjoyment of his Fourth Amendment rights by entering his offices without a warrant for the purpose of obtaining the doctor's medical records relating to one of his patients, a Daniel Ellsberg, then under Federal indictment for revealing top secret documents. They now claim that broad pretrial discovery into the alleged national security aspects of this case is essential to the presentation of their defense, in that it will establish (1) that the break-in was legal under the Fourth Amendment because the President authorized it for reasons of national security, and (2) that even in the absence of such authorization the national security information available to the defendants at that time led them to the good-faith, reasonable belief that the break-in was legal and justified in the national interest. The Court has carefully considered these assertions, which have been fully briefed and argued over a two-day period, and finds them to be unpersuasive as a matter of law. *fn1"

 In approaching these issues, it is well to recall the origins of the Fourth Amendment and the crucial role that it has played in the development of our constitutional democracy. That Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

 The Fourth Amendment protects the privacy of citizens against unreasonable and unrestrained intrusion by Government officials and their agents. It is not theoretical. It lies at the heart of our free society. As the Supreme Court recently remarked, "no right is held more sacred." Terry v. Ohio, 392 U.S. 1, 9, 88 S. Ct. 1868, 1873, 20 L. Ed. 2d 889 (1968), quoting from Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251, 11 S. Ct. 1000, 35 L. Ed. 734 (1891). Indeed, the American Revolution was sparked in part by the complaints of the colonists against the issuance of writs of assistance, pursuant to which the King's revenue officers conducted unrestricted, indiscriminate searches of persons and homes to uncover contraband. James Otis' famous argument in Lechmere's Case, challenging the writ as a "monster of oppression" and a "remnant of Star Chamber tyranny, " *fn2" sowed one of the seeds of the coming rebellion. The Fourth Amendment was framed against this background; and every state in the Union, by its own constitution, has since reinforced the protections and the security which that Amendment was designed to achieve.

 Thus the security of one's privacy against arbitrary intrusion by governmental authorities has proven essential to our concept of ordered liberty. When officials have attempted to justify law enforcement methods that ignore the strictures of this Amendment on grounds of necessity, such excuses have proven fruitless, for the Constitution brands such conduct as lawless, irrespective of the end to be served. Throughout the years the Supreme Court of the United States, regardless of changes in its composition or contemporary issues, has steadfastly applied the Amendment to protect a citizen against the warrantless invasion of his home or office, except under carefully delineated emergency circumstances. Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967); Agnello v. United States, 269 U.S. 20, 46 S. Ct. 4, 70 L. Ed. 145 (1925). No right so fundamental should now, after the long struggle against governmental trespass, be diluted to accommodate conduct of the very type the Amendment was designed to outlaw.

 The break-in charged in this indictment involved an unauthorized entry and search by agents of the Executive branch of the Federal Government. It is undisputed that no warrant was obtained and no Magistrate gave his approval. Moreover, none of the traditional exceptions to the warrant requirement are claimed and none existed; however desirable the break-in may have appeared to its instigators, there is no indication that it had to be carried out quickly, before a warrant could have been obtained. On the contrary, it had been meticulously planned over a period of more than a month. The search of Dr. Fielding's office was therefore clearly illegal under the unambiguous mandate of the Fourth Amendment. See Wolf v. People, 117 Colo. 279, 187 P.2d 926 (1947), aff'd sub nom., Wolf v. Colorado, 338 U.S. 25, 69 S. Ct. 1359, 93 L. Ed. 1782 (1949).

 Defendants contend that even though the Fourth Amendment would ordinarily prohibit break-ins of this nature, the President has the authority, by reason of his special responsibilities over foreign relations and national defense, to suspend its requirements, and that he did so in this case. Neither assertion is accurate. Many of the landmark Fourth Amendment cases in this country and in England concerned citizens accused of disloyal or treasonous conduct, for history teaches that such suspicions foster attitudes within a government that generate conduct inimical to individual rights. See United States v. United States District Court, 407 U.S. 297, 314, 92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972). The judicial response to such Executive overreaching has been consistent and emphatic: the Government must comply with the strict constitutional and statutory limitations on trespassory searches and arrests even when known foreign agents are involved. See, e.g., Abel v. United States, 362 U.S. 217, 226, 80 S. Ct. 683, 4 L. Ed. 2d 668 (1960); United States v. Coplon, 185 F.2d 629 (2d Cir. 1950), cert. denied, 342 U.S. 920, 72 S. Ct. 362, 96 L. Ed. 688 (1952). To hold otherwise, except under the most exigent circumstances, would be to abandon the Fourth Amendment to the whim of the Executive in total disregard of the Amendment's history and purpose.

 Defendants contend that, over the last few years, the courts have begun to carve out an exception to this traditional rule for purely intelligence-gathering searches deemed necessary for the conduct of foreign affairs. However, the cases cited are carefully limited to the issue of wiretapping, a relatively nonintrusive search, United States v. Butenko, 494 F.2d 593 (3d Cir. 1974); United States v. Brown, 484 F.2d 418 (5th Cir. 1973); Zweibon v. Mitchell, 363 F. Supp. 936 (D.D.C. 1973), and the Supreme Court has reserved judgment in this unsettled area. United States v. United States District Court, 407 U.S. 297, 322 n. 20, 92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972). *fn3" The Court cannot find that this recent, controversial judicial response to the special problem of national security wiretaps indicates an intention to obviate the entire Fourth Amendment whenever the President determines that an American citizen, personally innocent of wrongdoing, has in his possession information that may touch upon foreign policy concerns. *fn4" Such a doctrine, even in the context of purely information-gathering searches, would give the Executive a blank check to disregard the very heart and core of the Fourth Amendment and the vital privacy interests that it protects. Warrantless criminal investigatory searches -- which this break-in may also have been *fn5" -- would, in addition, undermine vital Fifth and Sixth Amendment rights.

 The facts presented pretrial lead the Court to conclude as a matter of law that the President not only lacked the authority to authorize the Fielding break-in but also that he did not in fact give any specific directive permitting national security break-ins, let alone this particular intrusion. The President has repeatedly and publicly denied prior knowledge or authorization of the Fielding break-in, and the available transcripts of the confidential tape recordings support that claim. *fn6" No defendant has presented any evidence to the contrary, and neither Ehrlichman nor Colson, the two defendants who had the greatest access to the President, contend that such specific authorization was given to anyone. The Special Prosecutor has uncovered nothing to the contrary. Although there is no recording of the crucial San Clemente meeting between the President, Ehrlichman and Krogh, their similar accounts of that conversation reflect intense Presidential concern with the need to plug the national security leaks and a belief that Dr. Ellsberg might be involved, but no specific reference either to Dr. Fielding or to trespassory searches. The President described that meeting in the following terms:

I considered the problem of such disclosures most critical to the national security of the United States and it was my intent, which I believe I conveyed, that the fullest authority of the President under the Constitution and the law should be used if necessary to bring a halt to these disclosures. I considered the successful prosecution of anyone responsible for such unauthorized disclosures a necessary part of bringing to an end this dangerous practice of making such unauthorized disclosures.
I did not have prior knowledge of the break-in of Dr. Fielding's office, nor was I informed of it until March 17, 1973. ...

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