Mr. Chief Justice Warren

delivered the opinion of the Court.

The issue before us is whether petitioner’s conviction should be set aside on the ground that as a matter of law the defense of entrapment was established. Petitioner was convicted under an indictment charging three sales of narcotics in violation of 21 U. S. C. § 174. A previous conviction had been reversed on account of improper instructions as to the issue of entrapment. 200 F. 2d 880. In the second trial, as in the first, petitioner’s defense was *371a claim of entrapment: an agent of the Federal Government induced him to take part in illegal transactions when otherwise he would not have done so.

In late August 1951, Kalchinian, a government informer, first met petitioner at a doctor’s office where apparently both were being treated to be cured of narcotics addiction. Several accidental meetings followed, either at the doctor^ office or at the pharmacy where both filled their prescriptions from the doctor. From mere greetings, conversation progressed to a discussion of mutual experiences and problems, including their attempts to overcome addiction to narcotics. Finally Kal-chinian asked petitioner if he knew of a good source of narcotics. He asked petitioner to supply him with a source because he was not responding to treatment. From the first, petitioner tried to avoid the issue. Not until after a number of repetitions of the request, predicated on Kalchinian’s presumed suffering, did petitioner finally acquiesce. Several times thereafter he obtained a quantity of narcotics which he shared with Kalchinian. Each time petitioner told Kalchinian that the total cost of narcotics he obtained was twenty-five dollars and that Kalchinian owed him fifteen dollars. The informer thus bore the cost of his share of the narcotics plus the taxi and other expenses necessary to obtain the drug. After several such sales Kalchinian informed agents of the Bureau of Narcotics that he had another seller for them. On three occasions during November 1951, government agents observed petitioner give narcotics to Kalchinian in return for money supplied by the Government.

At the trial the factual issue was whether the informer had convinced an otherwise unwilling person to commit a criminal act or whether petitioner was already predisposed to commit the act and exhibited only the natural hesitancy of one acquainted with the narcotics trade. *372The issue of entrapment went to the jury,1 and a conviction resulted. Petitioner was sentenced to imprisonment for ten years. The Court of Appeals for the Second Circuit affirmed. 240 F. 2d 949. We granted certiorari. 353 U. S. 935.

In Sorrells v. United States, 287 U. S. 435, this Court firmly recognized the defense of entrapment in the federal courts. The intervening years have in no way detracted from the principles underlying that decision. The function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include the manufacturing of crime. Criminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police officer. However, “A different question is presented when the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.” 287 U. S., at 442. Then stealth and strategy become as objectionable police methods as the coerced confession and the unlawful search. Congress could not have intended that its statutes were to be enforced by tempting innocent persons into violations.

However, the fact that government agents “merely afford opportunities or facilities for the commission of the offense does not” constitute entrapment. Entrapment occurs only when the criminal conduct was “the product of the creative activity” of law-enforcement officials. (Emphasis supplied.) See 287 U. S., at 441, 451. To determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal. The prin*373ciples by which the courts are to make this determination were outlined in Sorrells. On the one hand, at trial the accused may examine the conduct of the government agent; and on the other hand, the accused will be subjected to an “appropriate and searching inquiry into his own conduct and predisposition” as bearing on his claim of innocence. See 287 U. S., at 451.

We conclude from the evidence that entrapment was established as a matter of law. In so holding, we are not choosing between conflicting witnesses, nor judging credibility. Aside from recalling Kalchinian, who was the Government’s witness, the defense called no witnesses. We reach our conclusion from the undisputed testimony of the prosecution’s witnesses.

It is patently clear that petitioner was induced by Kalchinian. The informer himself testified that, believing petitioner to be undergoing a cure for narcotics addiction, he nonetheless sought to persuade petitioner to obtain for him a source of narcotics. In Kalchinian’s own words we are told of the accidental, yet recurring, meetings, the ensuing conversations concerning mutual experiences in regard to narcotics addiction, and then of Kalchinian’s resort to sympathy. One request was not enough, for Kalchinian tells us that additional ones were necessary to overcome, first, petitioner’s refusal, then his evasiveness, and then his hesitancy in order to achieve capitulation. Kalchinian not only procured a source of narcotics but apparently also induced petitioner to return to the habit. Finally, assured of a catch, Kalchinian informed the authorities so that they could close the net. The Government cannot disown Kalchinian and insist it is not responsible for his actions. Although he was not being paid, Kalchinian was an active government informer who had but recently been the instigator of at least *374two other prosecutions.2 Undoubtedly the impetus for such achievements was the fact that in 1951 Kalchinian was himself under criminal charges for illegally selling narcotics and had not yet been sentenced.3 It makes no difference that the sales for which petitioner was convicted occurred after a series of sales. They were not independent acts subsequent to the inducement but part of a course of conduct which was the product of the inducement. In his testimony the federal agent in charge of the case admitted that he never bothered to question Kalchinian about the way he had made contact with *375petitioner. The Government cannot make such use of an informer and then claim disassociation through ignorance.

The Government sought to overcome the defense of entrapment by claiming that petitioner evinced a “ready complaisance” to accede to Kalchinian’s request. Aside from a record of past convictions, which we discuss in the following paragraph, the Government’s case is unsupported. There is no evidence that petitioner himself was in the trade. When his apartment was searched after arrest, no narcotics were found. There is no significant evidence that petitioner even made a profit on any sale to Kalchinian.4 The Government’s characterization of petitioner’s hesitancy to Kalchinian’s request as the natural wariness of the criminal cannot fill the evidentiary void.5

The Government’s additional evidence in the second trial to show that petitioner was ready and willing to sell narcotics should the opportunity present itself was petitioner’s record of two past narcotics convictions. In 1942 petitioner was convicted of illegally selling narcotics; in 1946 he was* convicted of illegally possessing them. However, a nine-year-old sales conviction and a five-year-old possession conviction are insufficient to prove petitioner had a readiness to sell narcotics at the time Kalchinian approached him, particularly when we must *376assume from the record he was trying to overcome the narcotics habit at the time.

The case at bar illustrates an evil which the defense of entrapment is designed to overcome. The government informer entices someone attempting to avoid narcotics not only into carrying out an illegal sale but also into returning to the habit of use. Selecting the proper time, the informer then tells the government agent. The setup is accepted by the agent without even a question as to the manner in which the informer encountered the seller. Thus the Government plays on the weaknesses of an innocent party and beguiles him into committing crimes which he otherwise would not have attempted.6 Law enforcement does not require methods such as this.

It has been suggested that in overturning this conviction we should reassess the doctrine of entrapment according to principles announced in the separate opinion of Mr. Justice Roberts in Sorrells v. United States, 287 U. S. 435, 453. To do so would be to decide the case on grounds rejected by the majority in Sorrells and, so far as the record shows, not raised here or below by the parties before us. We do not ordinarily decide issues not presented by the parties and there is good reason not to vary that practice in this case.

At least two important issues of law enforcement and trial procedure would have to be decided without the benefit of argument by the parties, one party being the Government. Mr. Justice Roberts asserted that although the defendant could claim that the Government had induced him to commit the crime, the Government could not reply by showing that the defendant’s criminal conduct was due to his own readiness and not to the persuasion of govern*377ment agents. The handicap thus placed on the prosecution is obvious.7 Furthermore, it was the position of Mr. Justice Roberts that the factual issue of entrapment— now limited to the question of what the government agents did — should be decided by the judge, not the jury. Not only was this rejected by the Court in Sorrells, but where the issue has been presented to them, the Courts of Appeals have since Sorrells unanimously concluded that unless it can be decided as a matter of law, the issue of whether a defendant has been entrapped is for the jury as part of its function of determining the guilt or innocence of the accused.8

To dispose of this case on the ground suggested would entail both overruling a leading decision of this Court and brushing aside the possibility that we would be *378creating more problems than we would supposedly be solving.

The judgment of the Court of Appeals is reversed and the case is remanded to, the District Court with instructions to dismiss the indictment.

Reversed and remanded.

Mr. Justice Frankfurter,

whom

Mr. Justice Douglas, Mr. Justice Harlan, and Mr. Justice' Brennan join, concurring in the result.

Although agreeing with the Court that the undisputed facts show entrapment as a matter of law, I reach this result by a route different from the Court’s.

The first case in which a federal court clearly recognized and sustained a claim of entrapment by government officers as a defense to an indictment was, apparently, Woo Wai v. United States, 223 F. 412. Yet the basis of this defense, affording guidance for its application in particular circumstances, is as much in doubt today as it was when the defense was first recognized over forty years ago, although entrapment has been the decisive issue in many prosecutions. The lower courts have continued gropingly to express the feeling of outrage at conduct of law enforcers that brought recognition of the defense in the first instance, but without the formulated basis in reason that it is the first duty of courts to construct for justifying and guiding emotion and instinct.

Today’s opinion does not promote this judicial desideratum, and fails to give the doctrine of entrapment the solid foundation that the decisions of the lower courts and criticism of learned writers have clearly shown is needed.1 Instead it accepts without re-examination the *379theory espoused in Sorrells v. United States, 287 U. S. 435, over strong protest by Mr. Justice Roberts, speaking for Brandéis and Stone, JJ., as well as himself. The fact that since the Sorrells case the lower courts have either ignored its theory and continued to rest decision on the narrow facts of each case, or have failed after penetrating effort to define a satisfactory generalization, see, e. g., United States v. Becker, 62 F. 2d 1007 (L. Hand, J.), is proof that the prevailing theory of the Sorrells case ought not to be deemed the last word. In a matter of this kind the Court should not rest on the first attempt at an explanation for what sound instinct counsels. It should not forego re-examination to achieve clarity of thought, because confused and inadequate analysis is too apt gradually to lead to a course of decisions that diverges from the true ends to be pursued.2

It is surely sheer fiction to suggest that a conviction cannot be had when a defendant has been entrapped by government officers or informers because “Congress could not have intended that its statutes were to be enforced by tempting innocent persons into violations.” In these cases raising claims of entrapment, the only legislative intention that can with any show of reason be extracted from the statute is the intention to make criminal precisely the conduct in which the defendant has engaged. That conduct includes all the elements necessary to constitute criminality. Without compulsion and “know*380ingly,” where that is requisite, the defendant has violated the statutory command. If he is to be relieved from the usual punitive consequences, it is on no account because he is innocent of the offense described. In these circumstances, conduct is not less criminal because the result of temptation, whether the tempter is a private person or a government agent or informer.

The courts refuse to convict an entrapped defendant, not because his conduct falls outside the proscription of the statute, but because, even if his guilt be admitted, the methods employed on behalf of the Government to bring about conviction cannot be countenanced. As Mr. Justice Holmes said in Olmstead v. United States, 277 U. S. 438, 470 (dissenting), in another connection, “It is desirable that criminals should be detected, and to that end that all available evidence should be used. It also is desirable that the Government should not itself foster and pay for other crimes, when they are the means by which the evidence is to be obtained. . . . [F] or my part I think it a less evil that some criminals should escape than that the Government should play an ignoble part.” Insofar as they are used as instrumentalities in the administration of criminal justice, the federal courts have an obligation to set their face against enforcement of the law by lawless means or means that violate rationally vindicated standards of justice, and to refuse to sustain such methods by effectuating them. They do this in the exercise of a recognized jurisdiction to formulate and apply “proper standards for the enforcement of the federal criminal law in the federal courts,” McNabb v. United States, 318 U. S. 332, 341, an obligation that goes beyond the conviction of the particular defendant before the court. Public confidence in the fair and honorable administration of justice, upon which ultimately depends the rule of law, is the transcending value at stake.

*381The formulation of these standards does not in anyway conflict with the statute the defendant has violated, or involve the initiation of a judicial policy disregarding or qualifying that framed by Congress. A false choice is put when it is said that either the defendant’s conduct does not fall within the statute or he must be convicted. The statute is wholly directed to defining and prohibiting the substantive offense concerned and expresses no purpose, either permissive or prohibitory, regarding the police conduct that will be tolerated in the detection of crime. A statute prohibiting the sale of narcotics is as silent on the question of entrapment as it is on the admissibility of illegally obtained evidence. It is enacted, however, on the basis of certain presuppositions concerning the established legal order and the role of the courts within that system in formulating standards for the administration of criminal justice when Congress itself has not specifically legislated to that end. Specific statutes are to be fitted into an antecedent legal system.

It might be thought that it is largely an academic question whether the court’s finding a bar to conviction derives from the statute or from a supervisory jurisdiction over the administration of criminal justice; under either theory substantially the same considerations will determine whether the defense of entrapment is sustained. But to look to a statute for guidance in the application of a policy not remotely within the contemplation of Congress at the time of its enactment is to distort analysis. It is to run the risk, furthermore, that the court will shirk the responsibility that is necessarily in its keeping, if Congress is truly silent, to accommodate the dangers of overzealous law enforcement and civilized methods adequate to counter the ingenuity of modern criminals. The reasons that actually underlie the defense of entrapment can too easily be lost sight of in the pursuit of a wholly fictitious congressional intent.

*382The crucial question, not easy of answer, to which the court must direct itself is whether the police conduct revealed in the particular case falls below standards, to which common feelings respond, for the proper use of governmental power. For answer it is wholly irrelevant to ask if the “intention” to commit the crime originated with the defendant or government officers, or if the criminal conduct was the product of “the creative activity” of law-enforcement officials. Yet in the present case the Court repeats and purports to apply these unrevealing tests. Of course in every case of this kind the intention that the particular crime be committed originates with the police, and without their inducement the crime would not have occurred. But it is perfectly clear from such decisions as the decoy letter cases in this Court, e. g., Grimm v. United States, 156 U. S. 604, where the police in effect simply furnished the opportunity for the commission of the crime, that this is not enough to enable the defendant to escape conviction.

The intention referred to, therefore, must be a general intention or predisposition to commit, whenever the opportunity should arise, crimes of the kind solicited, and in proof of such a predisposition evidence has often been admitted to show the defendant’s reputation, criminal activities, and prior disposition. The danger of prejudice in such a situation, particularly if the issue of entrapment must be submitted to the jury and disposed of by a general verdict of guilty or innocent, is evident. The defendant must either forego the claim of entrapment or run the substantial risk that, in spite of instructions, the jury will allow a criminal record or bad reputation to weigh in its determination of guilt of the specific offense of which he stands charged. Furthermore, a test that looks to the character and predisposition of the defendant rather than the conduct of the police loses sight of the underlying reason for the defense of entrapment. No *383matter what the defendant’s past record and present inclinations to criminality, or the depths to which he has sunk in the estimation of society, certain police conduct to ensnare him into further crime is not to be tolerated by an advanced society. And in the present case it is clear that the Court in fact reverses the conviction because of the conduct of the informer Kalchinian, and not because the Government has failed to draw a convincing picture of petitioner’s past criminal conduct. Permissible police activity does not vary according to the particular defendant concerned; surely if two suspects have been solicited at the same time in the same manner, one should not go to jail simply because he has been convicted before and is said to have a criminal disposition. No more does it vary according to the suspicions, reasonable or unreasonable, of the police concerning the defendant’s activities. Appeals to sympathy, friendship, the possibility of exorbitant gain, and so forth, can no more be tolerated when directed against a past offender than against an ordinary law-abiding citizen. A contrary view runs afoul of fundamental principles of equality under law, and would espouse the notion that when dealing with the criminal classes anything goes. The possibility that no matter what his past crimes and general disposition the defendant might not have committed the particular crime unless confronted with inordinate inducements, must not be ignored. Past crimes do not forever outlaw the criminal and open him to police practices, aimed at securing his repeated conviction, from which the ordinary citizen is protected. The whole ameliorative hopes of modern penology and prison administration strongly counsel against such a view.

This does not mean that the police may not act so as to detect those engaged in criminal conduct and ready and willing to commit further crimes should the occasion arise. Such indeed is their obligation. It does mean *384that in holding out inducements they should act in such a manner as is likely to induce to the commission of crime only these persons and not others who would normally avoid crime and through self-struggle resist ordinary temptations. This test shifts attention from the record and predisposition of the particular defendant to the conduct of the police and the likelihood, objectively considered, that it would entrap only those ready and willing to commit crime. It is as objective a test as the subject matter permits, and will give guidance in regulating police conduct that is lacking when the reasonableness of police suspicions must be judged or the criminal disposition of the defendant retrospectively appraised. It draws directly on the fundamental intuition that led in the first instance to the outlawing of “entrapment” as a prosecutorial instrument. The power of government is abused and directed to an end for which it was not constituted when employed to promote rather than detect crime and to bring about the downfall of those who, left to themselves, might well have obeyed the law. Human nature is weak enough and sufficiently beset by temptations without government adding to them and generating crime.

What police conduct is to be condemned, because likely to induce those not otherwise ready and willing to commit crime, must be picked out from case to case as new situations arise involving different crimes and new methods of detection. The Sorrells case involved persistent solicitation in the face of obvious reluctance, and appeals to sentiments aroused by reminiscences of experiences as companions in arms in the World War. Particularly reprehensible in the present case was the use of repeated requests to overcome petitioner’s hesitancy, coupled with appeals to sympathy based on mutual experiences with narcotics addiction. Evidence of the setting in which the inducement took place is of course highly relevant in *385judging its likely effect, and the court should also consider the nature of the crime involved, its secrecy and difficulty of detection, and the manner in which the particular criminal business is usually carried on.

As Mr. Justice Roberts convincingly urged in the Sor-rells case, such a judgment, aimed at blocking off areas of impermissible police conduct, is appropriate for the court and not the jury. “The protection of its own functions and the preservation of the purity of its own temple belongs only to the court. It is the province of the court and of the court alone to protect itself and the government from such prostitution of the criminal law. The violation of the principles of justice by the entrapment of the unwary into crime should be dealt with by the court no matter by whom or at what stage of the proceedings the facts are brought to its attention.” 287 U. S., at 457 (separate opinion). Equally important is the consideration that a jury verdict, although it may settle the issue of entrapment in the particular case, cannot give significant guidance for official conduct for the future. Only the court, through the gradual evolution of explicit standards in accumulated precedents, can do this with the degree of certainty that the wise administration of criminal justice demands.

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.

In 1966, respondent James A. White was tried and convicted under two consolidated indictments charging various illegal transactions in narcotics violative of 26 U. S. C. § 4705 (a) and 21 U. S. C. § 174. He was fined and sentenced as a second offender to 25-year concurrent sentences. The issue before us is whether the Fourth Amendment bars from evidence the testimony of governmental agents who related certain conversations which had occurred between defendant White and a government informant, Harvey Jackson, and which the agents *747overheard by monitoring the frequency of a radio transmitter carried by Jackson and concealed on his person.1 On four occasions the conversations took place in Jackson’s home; each of these conversations was overheard by an agent concealed in a kitchen closet with Jackson’s consent and by a second agent outside the house using a radio receiver. Four other conversations — one in respondent’s home, one in a restaurant, and two in Jackson’s car — were overheard by the use of radio equipment. The prosecution was unable to locate and produce Jackson at the trial and the trial court overruled objections to the testimony of the agents who conducted the electronic surveillance. The jury returned a guilty verdict and defendant appealed.

The Court of Appeals read Katz v. United States, 389 U. S. 347 (1967), as overruling On Lee v. United States, 343 U. S. 747 (1952), and interpreting the Fourth Amendment to forbid the introduction of the agents’ testimony in the circumstances of this case. Accordingly, the court reversed but without adverting to the fact that the transactions at issue here had occurred before Katz was decided in this Court. In our view, the Court of Appeals misinterpreted both the Katz case and the Fourth Amendment and in any event erred in applying the Katz case to events that occurred before that decision was rendered by this Court.2

*748I

Until Katz v. United States, neither wiretapping nor electronic eavesdropping violated a defendant's Fourth Amendment rights “unless there has been an official search and seizure of his person, or such a seizure of his papers or his tangible material effects, or an actual physical invasion of his house 'or curtilage’ for the purpose of making a seizure.” Olmstead v. United States, 277 U. S. 438, 466 (1928); Goldman v. United States, 316 U. S. 129, 135-136 (1942). But where “eavesdropping was accomplished by means of an unauthorized physical penetration into the premises occupied” by the defendant, although falling short of a “technical trespass under the local property law,” the Fourth Amendment was violated and any evidence of what was seen and heard, as well as tangible objects seized, was considered the inadmissible fruit of an unlawful invasion. Silverman v. United States, 365 U. S. 505, 509, 511 (1961); see also Wong Sun v. United States, 371 U. S. 471 (1963); Berger v. New York, 388 U. S. 41, 52 (1967); Alderman v. United States, 394 U. S. 165, 177-178 (1969).

Katz v. United States, however, finally swept away doctrines that electronic eavesdropping is permissible under the Fourth Amendment unless physical invasion of a constitutionally protected area produced the challenged evidence. In that case government agents, without petitioner’s consent or knowledge, attached a listening device to the outside of a public telephone booth and recorded the defendant’s end of his telephone conversations. In declaring the recordings inadmissible in evidence in the absence of a warrant authorizing the surveillance, the Court overruled Olmstead and Goldman and held that the absence of physical intrusion into the telephone booth did not-justify using electronic devices in listening to and recording Katz’ words, thereby vio*749lating the privacy on which he justifiably relied while using the telephone in those circumstances.

The Court of Appeals understood Katz to render inadmissible against White the agents’ testimony concerning conversations that Jackson broadcast to them. We cannot agree. Katz involved no revelation to the Government by a party to conversations with the defendant nor did the Court indicate in any way that a defendant has a justifiable and constitutionally protected expectation that a person with whom he is conversing will not then or later reveal the conversation to the police.

Hoffa v. United States, 385 U. S. 293 (1966), which was left undisturbed by Katz, held that however strongly a defendant may trust an apparent colleague, his expectations in this respect are not protected by the Fourth Amendment when it turns out that the colleague is a government agent regularly communicating with the authorities. In these circumstances, “no interest legitimately protected by the Fourth Amendment is involved,” for that amendment affords no protection to “a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.” Hoffa v. United States, at 302. No warrant to “search and seize” is required in such circumstances, nor is it when the Government sends to defendant’s home a secret agent who conceals his identity and makes a purchase of narcotics from the accused, Lewis v. United States, 385 U. S. 206 (1966), or when the same agent, unbeknown to the defendant, carries electronic equipment to record the defendant’s words and the evidence so gathered is later offered in evidence. Lopez v. United States, 373 U. S. 427 (1963).

Conceding that Hoffa, Lewis, and Lopez remained unaffected by Katz, 3 the Court of Appeals nevertheless *750read both Katz and the Fourth Amendment to require a different result if the agent not only records his conversations with the defendant but instantaneously transmits them electronically to other agents equipped with radio receivers. Where this occurs, the Court of Appeals held, the Fourth Amendment is violated and the testimony of the listening agents must be excluded from evidence.

To reach this result it was necessary for the Court of Appeals to hold that On Lee v. United States was no longer good law. In that case, which involved facts very similar to the case before us, the Court first rejected claims of a Fourth Amendment violation because the informer had not trespassed when he entered the defendant's premises and conversed with him. To this extent the Court’s rationale cannot survive Katz. See 389 U. S., at 352-353. But the Court announced a second and independent ground for its decision; for it went on to say that overruling Olmstead and Goldman would be of no aid to On Lee since he “was talking confidentially and indiscreetly with one he trusted, and he was overheard. ... It would be a dubious service to the genuine liberties protected by the Fourth Amendment to make them bedfellows with spurious liberties improvised by farfetched analogies which would liken eavesdropping on a conversation, with the connivance of one of the parties, to an unreasonable search or seizure. We find no violation of the Fourth Amendment here.” 343 U. S., at 753-754. We see no indication in Katz that the Court meant to disturb that understanding of the Fourth Amendment or to disturb the result reached in the On Lee case,4 nor are we now inclined to overturn this view of the Fourth Amendment.

*751Concededly a police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with the defendant and without otherwise violating the latter’s Fourth Amendment rights. Hoffa v. United States, 385 U. S., at 300-303. For constitutional purposes, no' different result is required if the agent instead of immediately reporting and transcribing his conversations with defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person, Lopez v. United States, supra; (2) or carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency. On Lee v. United States, supra. If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant’s constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks.

Our problem is not what the privacy expectations of particular defendants in particular situations may be or the extent to which they may in fact have relied on the discretion of their companions. Very probably, individual defendants neither know nor suspect that their colleagues have gone or will go to the police or are carrying recorders or transmitters. Otherwise, conversation would cease and our problem with these encounters would be nonexistent or far different from those now *752before us. Our problem, in terms of the principles announced in Katz, is what expectations of privacy are constitutionally “justifiable”' — what expectations the Fourth Amendment will protect in the absence of a warrant. So far, the law permits the frustration of actual expectations of privacy by permitting authorities to use the testimony of those associates who for one reason or another have determined to turn to the police, as well as by authorizing the use of informants in the manner exemplified by Hoff a and Lewis. If the law gives no protection to the wrongdoer whose trusted accomplice is or becomes a police agent, neither should it protect him when that same agent has recorded or transmitted the conversations which are later offered in evidence to prove the State’s case. See Lopez v. United States, 373 U. S. 427 (1963).

Inescapably, one contemplating illegal activities must realize and risk that his companions may be reporting to the police. If he sufficiently doubts their trustworthiness, the association will very probably end or never materialize. But if he has no doubts, or allays them, or risks what doubt he has, the risk is his. In terms of what his course will be, what he will or will not do or say, we are unpersuaded that he would distinguish between probable informers on the one hand and probable informers with transmitters on the other. Given the possibility or probability that one of his colleagues is cooperating with the police, it is only speculation to assert that the defendant’s utterances would be substantially different or his sense of security any less if he also thought it possible that the suspected colleague is wired for sound. At least there is no persuasive evidence that the difference in this respect between the electronically equipped and the unequipped agent is substantial enough to require discrete constitutional recog-*753ration, particularly under the Fourth Amendment which is ruled by fluid concepts of “reasonableness.”

Nor should we be too ready to erect constitutional barriers to relevant and probative evidence which is also accurate and reliable. An electronic recording will many times produce a more reliable rendition of what a defendant has said than will the unaided memory of a police agent. It may also be that with the recording in existence it is less likely that the informant will change his mind, less chance that threat or injury will suppress unfavorable evidence and less chance that cross-examination will confound the testimony. Considerations like these obviously do not favor the defendant, but we are not prepared to hold that a defendant who has no constitutional right to exclude the informer’s unaided testimony nevertheless has a Fourth Amendment privilege against a more accurate version of the events in question.

It is thus untenable to consider the activities and reports of the police agent himself, though acting without a warrant, to be a “reasonable” investigative effort and lawful under the Fourth Amendment but to view the same agent with a recorder or transmitter as conducting an “unreasonable” and unconstitutional search and seizure. Our opinion is currently shared by Congress and the Executive Branch, Title III, Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 212, 18 U. S. C. §2510 et seq. (1964 ed., Supp. V), and the American Bar Association. Project on Standards for Criminal Justice, Electronic Surveillance § 4.1 (Approved Draft 1971). It is also the result reached by prior cases in this Court. On Lee, supra; Lopez v. United States, supra.

No different result should obtain where, as in On Lee and the instant case, the informer disappears and is un*754available at trial; for the issue of whether specified events on a certain day violate the Fourth Amendment should not be determined by what later happens to the informer. His unavailability at trial and proffering the testimony of other agents may raise evidentiary problems or pose issues of prosecutorial misconduct with respect to the informer’s disappearance, but they do not appear critical to deciding whether prior events invaded the defendant’s Fourth Amendment rights.

II

The Court of Appeals was in error for another reason. In Desist v. United States, 394 U. S. 244 (1969), we held that our decision in Katz v. United States applied only to those electronic surveillances that occurred subsequent to the date of that decision. Here the events in question took place in late 1965 and early 1966, long prior to Katz. We adhere to the rationale of Desist, see Williams v. United States, ante, p. 646. It was error for the Court of Appeals to dispose of this case based on its understanding of the principles announced in the Katz case. The court should have judged this case by the pr e-Katz law and under that law, as On Lee clearly holds, the electronic surveillance here involved did not violate White’s rights to be free from unreasonable searches and seizures.

The judgment of the Court of Appeals is reversed.

It is so ordered.

Mr. Justice Black, while adhering to his views expressed in Linkletter v. Walker, 381 U. S. 618, 640 (1965), concurs in the judgment of the Court for the reasons set forth in his dissent in Katz v. United States, 389 U. S. 347, 364 (1967).

*755Mr. Justice Brennan,

concurring in the result.

I agree that Desist v. United States, 394 U. S. 244 (1969), requires reversal of the judgment of the Court of Appeals. Therefore, a majority of the Court supports disposition of this case on that ground. However, my Brothers Douglas, Harlan, and White also debate the question whether On Lee v. United States, 343 U. S. 747 (1952), may any longer be regarded as sound law. My Brother White argues that On Lee is still sound law. My Brothers Douglas and Harlan argue that it is not. Neither position commands the support of a majority of the Court. For myself, I agree with my Brothers Douglas and Harlan. But I go further. It is my view that the reasoning of both my Brothers Douglas and Harlan compels the conclusion that Lopez v. United States, 373 U. S. 427 (1963), is also no longer sound law. In other words, it is my view that current Fourth Amendment jurisprudence interposes a warrant requirement not only in cases of third-party electronic monitoring (the situation in On Lee and in this case) but also in cases of electronic recording by a government agent of a face-to-face conversation with a criminal suspect, which was the situation in Lopez. For I adhere to the dissent in Lopez, 373 U. S., at 446-471, in which, to quote my Brother Harlan, post, at 778 n. 12, “the doctrinal basis of our subsequent Fourteenth Amendment decisions may be said to have had its genesis.” Katz v. United States, 389 U. S. 347 (1967), adopted that “doctrinal basis” and thus, it seems to me, agreed with the argument in the Lopez dissent that “subsequent decisions and subsequent experience have sapped whatever vitality [On Lee] may once have had; that it should now be regarded as overruled” and that the situation in Lopez “is rationally indistinguishable.” 373 U. S., at 447. The reasons in support of those conclusions are set forth fully in the Lopez *756dissent and need not be repeated here. It suffices to say that for those reasons I remain of the view that the Fourth Amendment imposes the warrant requirement in both the On Lee and Lopez situations.

Mr. Justice Douglas,

dissenting.

I

The issue in this case is clouded and concealed by the very discussion of it in legalistic terms. What the ancients knew as “eavesdropping,” we now call “electronic surveillance”; but to equate the two is to treat man’s first gunpowder on the same level as the nuclear bomb. Electronic surveillance is the greatest leveler of human privacy ever known. How most forms of it can be held “reasonable” within the meaning of the Fourth Amendment is a mystery. To be sure, the Constitution and Bill of Rights are not to be read as covering only the technology known in the 18th century. Otherwise its concept of “commerce” would be hopeless when it comes to the management of modern affairs. At the same time the concepts of privacy which the Founders enshrined in the Fourth Amendment vanish completely when we slavishly allow an all-powerful government, proclaiming law and order, efficiency, and other benign purposes, to penetrate all the walls and doors which men need to shield them from the pressures of a turbulent life around them and give them the health and strength to carry on.

That is why a “strict construction” of the Fourth Amendment is necessary if every man’s liberty and privacy are to be constitutionally honored.

When Franklin D. Roosevelt on May 21, 1940, authorized wiretapping in cases of “fifth column” activities and sabotage and limited it “insofar as possible to aliens,” he said that “under ordinary and normal circumstances *757wire-tapping by Government agents should not be carried on for the excellent reason that it is almost bound to lead to abuse of civil rights.” See Appendix I to this dissent. Yet as Judge Ferguson said in United States v. Smith, 321 F. Supp. 424, 429:

“[T]he government seems to approach these dissident domestic organizations in the same fashion as it deals with unfriendly foreign powers. The government cannot act in this manner when only domestic political organizations are involved, even if those organizations espouse views which are inconsistent with our present form of government. To do so is to ride roughshod over numerous political freedoms which have long received constitutional protection. The government can, of course, investigate and prosecute criminal violations whenever these organizations, or rather their individual members, step over the line of political theory and general advocacy and commit illegal acts.”

Today no one perhaps notices because only a small, obscure criminal is the victim. But every person is the victim, for the technology we exalt today is everyman’s master. Any doubters should read Arthur R. Miller’s The Assault On Privacy (1971). After describing the monitoring of conversations and their storage in data banks, Professor Miller goes on to describe “human monitoring” which he calls the “ultimate step in mechanical snooping” — a device for spotting unorthodox or aberrational behavior across a wide spectrum. “Given the advancing state of both the remote sensing art and the capacity of computers to handle an uninterrupted and synoptic data flow, there seem to be no physical barriers left to shield us from intrusion.” Id., at 46.

When one reads what is going on in this area today, our judicial treatment of the subject seems as remote from *758reality as the well-known Baron Parke was remote from the social problems of his day. See Chapman, “Big Brother” in the Justice Department, The Progressive, April 1971, p. 27.

II

We held in Berger v. New York, 388 U. S. 41, that wiretapping is a search and seizure within the meaning of the Fourth Amendment and therefore must meet its requirements, viz., there must be a prior showing of probable cause, the warrant authorizing the wiretap must particularly describe “the place to be searched, and the persons or things to be seized,” and that it may not have the breadth, generality, and long life of the general warrant against which the Fourth Amendment was aimed.

In Katz v. United States, 389 U. S. 347, we held that an electronic device, used without trespass onto any given enclosure (there a telephone booth), was a search for which a Fourth Amendment warrant was needed.1 Mr. Justice Stewart, speaking for the Court, said: “Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures.” Id., at 359.

As a result of Berger and of Katz, both wiretapping and electronic surveillance through a “bug” or other device are now covered by the Fourth Amendment.

There were prior decisions representing an opposed view. In On Lee v. United States, 343 U. S. 747, an *759undercover agent with a radio transmitter concealed on his person interviewed the defendant whose words were heard over a radio receiver by another agent down the street. The idea, discredited by Katz, that there was no violation of the Fourth Amendment because there was no trespass, was the core of the On Lee decision. Id., at 751-754.

Lopez v. United States, 373 U. S. 427, was also pre-Berger and pre-Katz. The government agent there involved carried a pocket wire recorder which the Court said “was not planted by means of an unlawful physical invasion of petitioner’s premises under circumstances which would violate the Fourth Amendment.” Id., at 439.

Mr. Justice Brennan, dissenting, stated the philosophy of Katz soon to be adopted:

“[T]here is a qualitative difference between electronic surveillance, whether the agents conceal the devices on their persons or in walls or under beds, and conventional police stratagems such as eavesdropping and disguise. The latter do not so seriously intrude upon the right of privacy. The risk of being overheard by an eavesdropper or betrayed by an informer or deceived as to the identity of one with whom one deals is probably inherent in the conditions of human society. It is the kind of risk we necessarily assume whenever we speak. But as soon as electronic surveillance comes into play, the risk changes crucially. There is no security from that kind of eavesdropping, no way of mitigating the risk, and so not even a residuum of true privacy. . . .

“. . . Electronic aids add a wholly new dimension to eavesdropping. They make it more penetrating, more indiscriminate, more truly obnoxious to a free *760society. Electronic surveillance, in fact, makes the police omniscient; and police omniscience is one of the most effective tools of tyranny.” 373 U. S., at 465-466.

It is urged by the Department of Justice that On Lee be established as the controlling decision in this field. I would stand by Berger and Katz and reaffirm the need for judicial supervision2 under the Fourth Amendment of the use of electronic surveillance which, uncontrolled, promises to lead us into a police state.

These were wholly pre-arranged episodes of surveillance. The first was in the informant’s home to which respondent had been invited. The second was also in the informer’s home, the next day. The third was four days later at the home of the respondent. The fourth was in the informer’s car two days later. Twelve days after that a meeting in the informer’s home was intruded upon. The sixth occurred at a street rendezvous. The seventh was in the informer’s home and the eighth in a restaurant owned by respondent’s mother-in-law. So far as time is concerned there is no excuse for not seeking a warrant. And while there is always an effort involved in preparing affidavits or other evidence in support of a showing of probable cause, that burden was given constitutional sanction in the Fourth Amendment against the activities of the agents of George III. It was designed not to protect criminals but to protect everyone’s privacy.

On Lee and Lopez are of a vintage opposed to Berger and Katz. However they may be explained, they are *761products of the old common-law notions of trespass. Katz, on the other hand, emphasized that with few exceptions “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment . . , 389 U. S., at 357. Camara v. Municipal Court, 387 U. S. 523, put administrative searches under the Fourth Amendment. We held that administrative actions, like other searches, implicated officials in an invasion of privacy and that the Fourth Amendment was meant to guard against the arbitrariness of any such invasion. We said:

“We simply cannot say that the protections provided by the warrant procedure are not needed in this context; broad statutory safeguards are no substitute for individualized review, particularly when those safeguards may only be invoked at the risk of a criminal penalty.” Id., at 533.

In Chimel v. California, 395 U. S. 752, in considering the constitutionality of a search incident to an arrest we held that, while the area in the immediate reach of an arrestee is “reasonable” though made without a warrant, a search beyond that zone may generally be made “only under the authority of a search warrant.” Id., at 763. And in two “stop and frisk” cases, Terry v. Ohio, 392 U. S. 1, and Davis v. Mississippi, 394 U. S. 721, we held that any restraint of the person, however brief, was subject to judicial inquiry on “reasonableness” (392 U. S., at 19) and that “the Fourth Amendment governs all intrusions by agents of the public upon personal security . . . .” Id., at 18 n. 15.

We have moved far away from the rationale of On Lee and Lopez and only a retrogressive step of large dimensions would bring us back to it.

The threads of thought running through our recent decisions are that these extensive intrusions into privacy *762made by electronic surveillance make self-restraint by law enforcement officials an inadequate protection, that the requirement of warrants under the Fourth Amendment is essential to a free society.3

Monitoring, if prevalent, certainly kills free discourse and spontaneous utterances. Free discourse — a First Amendment value — may be frivolous or serious, humble or defiant, reactionary or revolutionary, profane or in good taste; but it is not free if there is surveillance.4 *763Free discourse liberates the spirit, though it may produce only froth. The individual must keep some facts concerning his thoughts within a small zone of people. At the same time he must be free to pour out his woes or inspirations or dreams to others. He remains the sole judge as to what must be said and what must remain unspoken. This is the essence of the idea of privacy implicit in the First and Fifth Amendments as well as in the Fourth.

The philosophy of the value of privacy reflected in the Fourth Amendment’s ban on “unreasonable searches and seizures” has been forcefully stated by a former Attorney General of the United States:

“Privacy is the basis of individuality. To be alone and be let alone, to be with chosen company, to say what you think, or don’t think, but to say what you will, is to be yourself. Solitude is imperative, even in a high rise apartment. Personality develops from within. To reflect is to know yourself. Character is formed through years of self-examination. Without this opportunity, character will be formed largely by uncontrolled external social stimulations. Americans are excessively homogenized already.

“Few conversations would be what they are if the speakers thought others were listening. Silly, secret, thoughtless and thoughtful statements would all be affected. The sheer numbers in our lives, the anonymity of urban living and the inability to influence things that are important are depersonalizing and dehumanizing factors of modern life. To penetrate the last refuge of the individual, the precious little privacy that remains, the basis of individual dignity, can have meaning to the quality of our lives that we cannot foresee. In terms of present values, that meaning cannot be good.

*764“Invasions of privacy demean the individual. Can a society be better than the people composing it? When a government degrades its citizens, or permits them to degrade each other, however beneficent the specific purpose, it limits opportunities for individual fulfillment and national accomplishment. If America permits fear and its failure to make basic social reforms to excuse police use of secret electronic surveillance, the price will be dear indeed. The practice is incompatible with a free society.” R. Clark, Crime in America 287 (1970).

Now that the discredited decisions in On Lee and Lopez are resuscitated and revived, must everyone live in fear that every word he speaks may be transmitted or recorded 5 and later repeated to the entire world? I can *765imagine nothing that has a more chilling effect on people speaking their minds and expressing their views on important matters. The advocates of that regime should spend some time in totalitarian countries and learn firsthand the kind of regime they are creating here.6

*766Ill

The decision not to make Katz retroactive to any electronic surveillance which occurred prior to December 18, 1967 (the day we decided Katz), is not, in my view, a tenable one for the reasons stated by Mr. Justice Harlan and me in our dissents in Desist v. United States, 394 U. S. 244, 255, 256.

APPENDIX I TO OPINION OP DOUGLAS, J., DISSENTING

THE WHITE HOUSE WASHINGTON

May 21, 1940

CONFIDENTIAL

MEMORANDUM FOR THE ATTORNEY GENERAL

I have agreed with the broad purpose of the Supreme Court decision relating to wire-tapping in investigations. The Court is undoubtedly sound both in regard to the use of evidence secured over tapped wires in the prosecution of citizens in criminal cases; and is also right in its opinion that under ordinary and normal circumstances wire-tapping by Government agents should not be carried on for the excellent reason that it is almost bound to lead to abuse of civil rights.

However, I am convinced that the Supreme Court never intended any dictum in the particular case which it decided to apply to grave matters involving the defense of the nation.

It is, of course, well known that certain other nations have been engaged in the organization of propaganda of so-called “fifth columns” in other countries and in preparation for sabotage, as well as in actual sabotage.

*767It is too late to do anything about it after sabotage, assassinations and “fifth column” activities are completed.

You are, therefore, authorized and directed in such cases as you may approve, after investigation of the need in each case, to authorize the necessary investigation agents that they are at liberty to secure information by listening devices directed to the conversation or other communications of persons suspected of subversive activities against the Government of the United States, including suspected spies. You are requested furthermore to limit these investigations so conducted to a minimum and to limit them insofar as possible to aliens.

[seal] /s/ F. D. R.

APPENDIX II TO OPINION OF DOUGLAS, J., DISSENTING

ADMINISTRATIVELY CONFIDENTIAL THE WHITE HOUSE WASHINGTON

June 30, 1965

MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES

I am strongly opposed to the interception of telephone conversations as a general investigative technique. I recognize that mechanical and electronic devices may sometimes be essential in protecting our national security. Nevertheless, it is clear that indiscriminate use of those investigative devices to overhear telephone conversations, without the knowledge or consent of any of the persons involved, could result in serious abuses and invasions of privacy. In my view, the invasion of privacy of communications is a highly offensive practice which should be engaged in only where the national security is at *768stake. To avoid any misunderstanding on this subject in the Federal Government, I am establishing the following basic guidelines to be followed by all government agencies:

(1) No federal personnel is to intercept telephone conversations within the United States by any mechanical or electronic device, without the consent of one of the parties involved, (except in connection with investigations related to the national security).

(2) No interception shall be undertaken or continued without first obtaining the approval of the Attorney General.

(3) All federal agencies shall immediately conform their practices and procedures to the provisions of this order.

Utilization of mechanical or electronic devices to overhear non-telephone conversations is an even more difficult problem, which raises substantial and unresolved questions of Constitutional interpretation. I desire that each agency conducting such investigations consult with the Attorney General to ascertain whether the agency’s practices are fully in accord with the law and with a decent regard for the rights of others.

Every agency head shall submit to the Attorney General within 30 days a complete inventory of all mechanical and electronic equipment and devices used for or capable of intercepting telephone conversations. In addition, such reports shall contain a list of any interceptions currently authorized and the reasons for them.

/s/ Lyndon B. Johnson

Mr. Justice Harlan,

dissenting.

The uncontested facts of this case squarely challenge the continuing viability of On Lee v. United States, 343 U. S. 747 (1952). As the plurality opinion of Mr. Jus*769tice White itself makes clear, important constitutional developments since On Lee mandate that we reassess that case, which has continued to govern official behavior of this sort in spite of the subsequent erosion of its doctrinal foundations. With all respect, my agreement with the plurality opinion ends at that point.

I think that a perception of the scope and role of the Fourth Amendment, as elucidated by this Court since On Lee was decided, and full comprehension of the precise issue at stake lead to the conclusion that On Lee can no longer be regarded as sound law. Nor do I think the date we decided Katz v. United States, 389 U. S. 347 (1967), can be deemed controlling both for the reasons discussed in my dissent in Desist v. United States, 394 U. S. 244, 256 (1969), and my separate opinion in Mackey v. United States (and companion cases), ante, p. 675 (the case before us being here on direct review), and because, in my view, it requires no discussion of the holding in Katz, as distinguished from its underlying rationale as to the reach of the Fourth Amendment, to comprehend the constitutional infirmity of On Lee.

I

Before turning to matters of precedent and policy, several preliminary observations should be made. We deal here with the constitutional validity of instantaneous third-party electronic eavesdropping, conducted by federal law enforcement officers, without any prior judicial approval of the technique utilized, but with the consent and cooperation of a participant in the conversation,1 *770and where the substance of the matter electronically overheard2 is related in a federal criminal trial by those who eavesdropped as direct, not merely corroborative, evidence of the guilt of the nonconsenting party. The magnitude of the issue at hand is evidenced not simply by the obvious doctrinal difficulty of weighing such activity in the Fourth Amendment balance, but also, and more importantly, by the prevalence of police utilization of this technique. Professor Westin has documented in careful detail the numerous devices that make technologically feasible the Orwellian Big Brother. Of immediate relevance is his observation that “ 'participant recording/ in which one participant in a conversation or meeting, either a police officer or a co-operating party, wears a concealed device that records the conversation or broadcasts it to others nearby ... is used tens of thousands of times each year throughout the country, particularly in cases involving extortion, conspiracy, narcotics, gambling, prostitution, corruption by police officials . . . and similar crimes.” 3

*771Moreover, as I shall undertake to show later in this opinion, the factors that must be reckoned with in reaching constitutional conclusions respecting the use of electronic eavesdropping as a tool of law enforcement are exceedingly subtle and complex. They have provoked sharp differences of opinion both within and without the judiciary, and the entire problem has been the subject of continuing study by various governmental and nongovernmental bodies.4

*772Finally, given the importance of electronic eavesdropping as a technique for coping with the more deep-seated kinds of criminal activity, and the complexities that are encountered in striking a workable constitutional balance between the public and private interests at stake, I believe that the courts should proceed with specially measured steps in this field. More particularly, I think this Court should not foreclose itself from reconsidering doctrines that would prevent the States from seeking, independently of the niceties of federal restrictions as they may develop, solutions to such vexing problems, see Mapp v. Ohio, 367 U. S. 643 (1961), and Ker v. California, 374 U. S. 23 (1963), and see also Berger v. New York, 388 U. S. 41 (1967); Baldwin v. New York, 399 U. S. 66, 117 (1970) (dissenting opinion); California v. Green, 399 U. S. 149, 172 (1970) (concurring opinion). I also think that in the adjudication of federal cases, the Court should leave ample room for congressional developments.

*773II

On these premises I move to the problem of third-party “bugging.” To begin by tracing carefully the evolution of Fourth Amendment doctrine in post-Ow Lee decisions has proved useful in several respects. It serves to cast in perspective both the issue involved here and the imperative necessity for reconsidering On Lee afresh. Additionally, a full exposition of the dynamics of the decline of the trespass rationale underlying On Lee strikingly illuminates the deficiencies of the plurality opinion’s retroactivity analysis.

A

On Lee involved circumstances virtually identical to those now before us. There, Government agents enlisted the services of Chin Poy, a former friend of Lee, who was suspected of engaging in illegal narcotics traffic. Poy was equipped with a “minifon” transmitting device which enabled outside Government agents to monitor Poy’s conversations with Lee. In the privacy of his laundry, Lee made damaging admissions to Poy which were overheard by the agents and later related at trial. Poy did not testify. Mr. Justice Jackson, writing for five Justices, held the testimony admissible. Without reaching the question of whether a conversation could be the subject of a “seizure” for Fourth Amendment purposes, as yet an unanswered if not completely open question,5 the *774Court concluded that in the absence of a trespass,6 no constitutional violation had occurred.7

The validity of the trespass rationale was questionable even at the time the decision was rendered. In this respect On Lee rested on common-law notions and looked to a waning era of Fourth Amendment jurisprudence. Three members of the Court refused to join with Justice Jackson, and within 10 years the Court expressly disavowed an approach to Fourth Amendment questions that looked to common-law distinctions. See, e. g., Jones v. United States, 362 U. S. 257 (1960); Silverman v. United States, 365 U. S. 505 (1961); Lanza v. New York, 370 U. S. 139 (1962).

It is, of course, true that the opinion in On Lee drew some support from a brief additional assertion that “eavesdropping on a conversation, with the connivance of one of the parties” raises no Fourth Amendment problem. 343 U. S., at 754. But surely it is a misreading of that opinion to view this unelaborated assertion as a wholly independent ground for decision. At the very least, this *775rationale needs substantial buttressing if it is to persist in our constitutional jurisprudence after the decisions I discuss below. Indeed, the plurality opinion in the present case, in greatly elaborating the point, tacitly recognizes' the analytic inability of this bare hypothesis to support a rule of law so profoundly important to the proper administration of justice. Moreover, if this was the true rationale of On Lee from the outset, it is difficult to see the relevance of Desist to the resolution of the instant case, for Katz surely does not speak directly to the continued viability of that ground for decision. See Katz v. United States, 389 U. S., at 363 n. (White, J., concurring).

By 1963, when we decided Lopez v. United States, 373 U. S. 427, four members of the Court were prepared to pronounce On Lee and Olmstead v. United States, 277 U. S. 438 (1928), dead.8 The pyre,- they reasoned, had been stoked by decisions like Wong Sun v. United States, 371 U. S. 471 (1963), which, on the one hand, expressly brought verbal communication within the sweep of the Fourth Amendment,9 and, on the other, re*776inforced our Silverman and Jones decisions which “refused to crowd the Fourth Amendment into the mold of local property law,” 373 U. S., at 460 (Brennan, J., dissenting).

Although the Court’s decision in Lopez is cited by the Government as a reaffirmation of On Lee, it can hardly be thought to have nurtured the questionable rationale of that decision or its much-criticized ancestor, Olmstead. To the discerning lawyer Lopez could only give pause, not comfort. While the majority opinion, of which I was the author, declined to follow the course favored by the dissenting and concurring Justices by sounding the death knell for Olmstead and On Lee, our holding, despite an allusion to the absence of “an unlawful ... invasion of a constitutionally protected area,” 373 U. S., at 438-439, was bottomed on two premises: the corroborative use that was made of the tape recordings, which increased reliability in the factfinding process, and the absence of a “risk” not fairly assumed by petitioner. The tape recording was made by a participant in the conversation and the opinion emphasized this absence of a third-party intrusion, expressly noting that there was no “electronic eavesdropping on a private conversation which government agents could not otherwise have overheard.” 373 U. S., at 440.10 As I point out in Part III *777of this opinion, it is one thing to subject the average citizen to the risk that participants in a conversation with him will subsequently divulge its contents to another, but quite a different matter to foist upon him the risk that unknown third parties may be simultaneously listening in.

While Lopez cited On Lee without disavowal of its holding, 373 U. S., at 438, it is entirely accurate to say that we did not there reaffirm it.11 No decision since Lopez gives a breath of life to the reasoning that led to the On Lee and Olmstead results, and it required little clairvoyance to predict the demise of the basic rationale of On Lee and Olmstead foreshadowed by our subsequent opinions in Osborn v. United States, 385 U. S. 323 (1966), and Berger v. New York, 388 U. S. 41 (1967).

Only three years after Lopez, Mr. Justice Stewart writing for the Court in Osborn v. United States, supra, expressly abjured reliance on Lopez and, instead, approved identical conduct based on the “circumstances under which the tape recording was obtained in [that] case,” facts that involved “using [a recorder] under the most precise and discriminate circumstances, circumstances which fully met the 'requirement of particularity' *778which the dissenting opinion in Lopez found necessary.” Osborn v. United States, 385 U. S., at 327, 329.12

Since Osborn our decisions have shown no tolerance for the old dividing lines resting, as they did, on fiction and common-law distinctions without sound policy justification in the realm of values protected by the Fourth Amendment. Thus, in abolishing the “mere evidence rule” we announced that “the principal object of the Fourth Amendment is the protection of privacy rather than property,” and once again noted the trend to discard “fictional and procedural barriers rested on property concepts.” Warden v. Hayden, 387 U. S. 294, 304 (1967). That same Term the Court demonstrated the new flexibility in Fourth Amendment doctrine when it held that the warrant protections would be applied to administrative searches. Camara v. Municipal Court, 387 U. S. 523 (1967).

Certainly if Osborn, Warden, and Camara did not plainly draw into question the vigor of earlier precedents, Berger v. New York, 388 U. S. 41, did, and expunged any remnants of former doctrine which might have been *779thought to have survived Osborn and Warden. 13 There, the Court, following a path opened by Mr. Justice Bran-déis’ dissent in Olmstead, and smoothed in Osborn and Camara, expressed concern about scientific developments that have put within the reach of the Government the private communications of “anyone in almost any given situation,” 388 U. S., at 47; it left no doubt that, as a general principle, electronic eavesdropping was an invasion of privacy and that the Fourth Amendment prohibited unsupervised “bugging.” Disturbed by the extent of intrusion which “[b]y its very nature ... is broad in scope,” and noting that “[f]ew threats to liberty exist which are greater than that posed by the use of eavesdropping devices,” id., at 63, the Court brought to life the principle of reasonableness adumbrated in Osborn. Mr. Justice Clark, writing for the majority, reiterated the new approach:

“[T]he ‘indiscriminate use of such [bugging] devices in law enforcement raises grave constitutional questions under the Fourth and Fifth Amendments,’ and imposes ‘a heavier responsibility on this Court in its supervision of the fairness of procedures ....’” 388 U. S., at 56, quoting from Osborn v. United States, 385 U. S. 323, 329 n. 7.

Nor did the Court waver in resolve in the face of respondent’s dire prediction that “neither a warrant nor a statute authorizing eavesdropping can be drawn so as to meet the Fourth Amendment’s requirements.” 14 It *780was said that “ [i] f that be true then the ‘fruits’ of eavesdropping devices are barred under the Amendment.” 388 U. S., at 63.15

If Berger did not flatly sound a dirge for Olmstead, it articulated principles that led Mr. Justice Douglas, by way of concurrence, to comment on its quiet burial. 388 U. S., at 64. While it was left to Katz to perform the last rites, that decision inevitably followed from Osborn and Berger. The Berger majority’s affirmative citation of On Lee for the principle that “under specific conditions and circumstances” eavesdropping may be lawful, 388 U. S., at 63, serves only to underscore the emerging operative assumptions: that the particular circumstances of each case will be scrutinized to the end of ascertaining the reasonableness of the search, and that will depend in large measure on whether prior judicial authorization, based on a particularized showing, has been obtained. Katz v. United States, supra.

Viewed in perspective, then, Katz added no new dimension to the law. At most it was a formal dispatch of Olmstead and the notion that such problems may usefully be resolved in the light of trespass doctrine, and, of course, it freed from speculation what was already evident, that On Lee was completely open to question.

B

But the decisions of this Court since On Lee do more than demonstrate that the doctrine of that case is wholly open for reconsideration, and has been since well before Katz was decided. They also establish sound general principles for application of the Fourth Amendment that were either dimly perceived or not fully worked out *781at the time of On Lee. I have already traced some of these principles in Part II-A, supra: that verbal communication is protected by the Fourth Amendment, that the reasonableness of a search does not depend on the presence or absence of a trespass, and that the Fourth Amendment is principally concerned with protecting interests of privacy, rather than property rights.

Especially when other recent Fourth Amendment decisions, not otherwise so immediately relevant, are read with those already discussed, the primacy of an additional general principle becomes equally evident: official investigatory action that impinges on privacy must typically, in order to be constitutionally permissible, be subjected to the warrant requirement. Particularly significant in this regard are Camara v. Municipal Court, 387 U. S. 523 (1967); Terry v. Ohio, 392 U. S. 1 (1968), and Chimel v. California, 395 U. S. 752 (1969).

In Camara the Court brought under the Fourth Amendment administrative searches that had once been thought to be without its sweep. In doing so the opinion emphasized' the desirability of establishing in advance those circumstances that justified the intrusion into a home and submitting them for review to an independent assessor,16 principles that this Court has always deemed to be at the core of Fourth Amendment protections.17 *782In bringing such searches within the ambit of the warrant requirement, Camara rejected the notion that the “less hostile” nature of the search relegated this invasion of privacy to the “periphery” of Fourth Amendment concerns. 387 U. S., at 530. The central consideration was, the Court concluded, that these administrative actions, no less than the typical search, involved government officials in an invasion of privacy, and that it was against the possible arbitrariness of invasion that the Fourth Amendment with its warrant machinery was meant to guard. Berger and Katz built, as noted earlier, on Osborn v. United States, supra, and Camara, and gave further expression to the principle.18 It was not enough that government agents acted with restraint, for reasonableness must in the first instance be judged in a detached realm.19

*783The scope and meaning of the rule have emerged with even greater clarity by virtue of our holdings setting the boundaries for the exceptions. Recently, in Chimel v. California, 395 U. S. 752 (1969), we reiterated the importance of the prior independent determination of a neutral magistrate and underscored its centrality to the reasonableness requirement of the Fourth Amendment, and abandoned the holdings of Harris v. United States, 331 U. S. 145 (1947), and United States v. Rabinowitz, 339 U. S. 56 (1950). We were concerned by the breadth of searches occasioned by the Rabinowitz rule which frequently proved to be an invitation to a hunting expedition. Searches incident to arrest, we held, must be confined to a locus no greater than necessary to prevent injury to the arresting officer or destruction of evidence. 395 U. S., at 763, 767; cf. Terry v. Ohio, 392 U. S. 1 (1968).

To complete the tapestry, the strands of doctrine reflected in the search cases must be interwoven with the Court’s other contemporary holdings. Most signifi*784cant are Terry v. Ohio, supra, and Davis v. Mississippi, 394 U. S. 721 (1969), which were also harbingers of the new thrust in Fourth Amendment doctrine. There the Court rejected the contention that only an arrest triggered the “incident-to-arrest” exception to the warrant requirement of the Fourth Amendment, and held that any restraint of the person, however brief and however labeled, was subject to a reasonableness examination. 392 U. S., at 19. The controlling principle is “to recognize that the Fourth Amendment governs all intrusions by agents of the public upon personal security, and to make the scope of the particular intrusion, in light of all the exigencies of the case, a central element in the analysis of reasonableness.” 392 U. S., at 18 n. 15. See also Davis v. Mississippi, 394 U. S., at 727.20

Ill

A

That the foundations of On Lee have been destroyed does not, of course, mean that its result can no longer stand. Indeed, the plurality opinion today fastens upon our decisions in Lopez, Lewis v. United States, 385 U. S. 206 (1966), and Hoffa v. United States, 385 U. S. 293 (1966), to resist the undercurrents of more recent cases emphasizing the warrant procedure as a safeguard to privacy. But this category provides insufficient support. In each of these cases the risk the general populace faced was different from that surfaced by the instant case. No surreptitious third ear was present, and in each opinion that fact was carefully noted.

*785In Lewis, a federal agent posing as a potential purchaser of narcotics gained access to petitioner’s home and there consummated an illegal sale, the fruits of which were admitted at trial along with the testimony of the agent. Chief Justice Warren, writing for the majority, expressly distinguished the third-party overhearing involved, by way of example, in a case like Silverman v. United States, supra, noting that “there, the conduct proscribed was that of eavesdroppers, unknown and unwanted intruders who furtively listened to conversations occurring in the privacy of a house.” 385 U. S., at 212. Similarly in Hoff a, Mr. Justice Stewart took care to mention that “surreptitious” monitoring was not there before the Court, and so too in Lopez, supra.

The plurality opinion seeks to erase the crucial distinction between the facts before us and these holdings by the following reasoning: if A can relay verbally what is revealed to him by B (as in Lewis and Hoff a), or record and later divulge it (as in Lopez), what difference does it make if A conspires with another to betray B by contemporaneously transmitting to the other all that is said? The contention is, in essence, an argument that the distinction between third-party monitoring and other undercover techniques is one of form and not substance. The force of the contention depends on the evaluation of two separable but intertwined assumptions: first, that there is no greater invasion of privacy in the third-party situation, and, second, that uncontrolled consensual surveillance in an electronic age is a tolerable technique of law enforcement, given the values and goals of our political system.21

*786The first of these assumptions takes as a point of departure the so-called “risk analysis” approach of Lewis, and Lopez, and to a lesser extent On Lee, or the expectations approach of Katz. See discussion in Part II, supra. While these formulations represent an advance over the unsophisticated trespass analysis of the common law, they too have their limitations and can, ultimately, lead to the substitution of words for analysis.22 The analysis must, in my view, transcend the search for subjective expectations or legal attribution of assumptions of risk. Our expectations, and the risks we assume, are in large part reflections of laws that translate into rules the customs and values of the past and present.

Since it is the task of the law to form and project, as well as mirror and reflect, we should not, as judges, merely recite the expectations and risks without examining the desirability of saddling them upon society. The critical question, therefore, is whether under our system of government, as reflected in the Constitution, we should impose on our citizens the risks of the electronic listener or observer without at least the protection of a warrant requirement.

This question must, in my view, be answered by assessing the nature of a particular practice and the likely extent of its impact on the individual’s sense of security balanced against the utility of the conduct as a technique of law enforcement. For those more extensive intrusions that significantly jeopardize the sense of security which is the paramount concern of Fourth Amendment liberties, I am of the view that more than self-restraint by law enforcement officials is required and at the least warrants *787should be necessary. Cf. Terry v. Ohio, supra; Davis v. Mississippi, supra.

B

The impact of the practice of third-party bugging, must, I think, be considered such as to undermine that confidence and sense of security in dealing with one another that is characteristic of individual relationships between citizens in a free society. It goes beyond the impact on privacy occasioned by the ordinary type of “informer” investigation upheld in Lewis and Hoff a. The argument of the plurality opinion, to the effect that it is irrelevant whether secrets are revealed by the mere tattletale or the transistor, ignores the differences occasioned by third-party monitoring and recording which insures full and accurate disclosure of all that is said, free of the possibility of error and oversight that inheres in human reporting.

Authority is hardly required to support the proposition that words would be measured a good deal more carefully and communication inhibited if one suspected his conversations were being transmitted and transcribed. Were third-party bugging a prevalent practice, it might well smother that spontaneity — reflected in frivolous, impetuous, sacrilegious, and defiant discourse — that liberates daily life.23 Much off-hand exchange is easily for*788gotten and one may count on the obscurity of his remarks, protected by the very fact of a limited audience, and the likelihood that the listener will either overlook or forget what is said, as well as the listener’s inability to reformulate a conversation without having to contend with a documented record.24 All these values are sacrificed by *789a rule of law that permits official monitoring of private discourse limited only by the need to locate a willing assistant.

It matters little that consensual transmittals are less obnoxious than wholly clandestine eavesdrops. This was put forward as justification for the conduct in Boyd v. United States, 116 U. S. 616 (1886), where the Government relied on mitigating aspects of the conduct in question. The Court, speaking through Mr. Justice Bradley, declined to countenance literalism:

“Though the proceeding in question is divested of many of the aggravating incidents of actual search and seizure, yet, as before said, it contains their substance and essence, and effects their substantial purpose. It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure.” 116 U. S., at 635.

Finally, it is too easy to forget — and, hence, too often forgotten — that the issue here is whether to interpose a search warrant procedure between law enforcement agencies engaging in electronic eavesdropping and the public generally. By casting its “risk analysis” solely in terms of the expectations and risks that “wrongdoers” or “one contemplating illegal activities” ought to bear, the plurality opinion, I think, misses the mark entirely. On Lee does not simply mandate that criminals must daily run the risk of unknown eavesdroppers prying into their private affairs; it subjects each and every law-abiding member of society to that risk. The very purpose of interposing the Fourth Amendment warrant requirement is to redistribute the privacy risks throughout society in a way that produces the results the plurality opinion ascribes to the On Lee rule. Abolition of On Lee would *790not end electronic eavesdropping. It would prevent public officials from engaging in that practice unless they first had probable cause to suspect an individual of involvement in illegal activities and had tested their version of the facts before a detached judicial officer. The interest On Lee fails to protect is the expectation of the ordinary citizen, who has never engaged in illegal conduct in his life, that he may carry on his private discourse freely, openly, and spontaneously without measuring his every word against the connotations it might carry when instantaneously heard by others unknown to him and unfamiliar with his situation or analyzed in a cold, formal record played days, months, or years after the conversation. Interposition of a warrant requirement is designed not to shield “wrongdoers,” but to secure a measure of privacy and a sense of personal security throughout our society.

The Fourth Amendment does, of course, leave room for the employment of modern technology in criminal law enforcement, but in the stream of current developments in Fourth Amendment law I think it must be held that third-party electronic monitoring, subject only to the self-restraint of law enforcement officials, has no place in our society.

IV

I reach these conclusions notwithstanding seemingly contrary views espoused by both Congress and an American Bar Association study group.25 Both the ABA *791study and Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 212, 18 U. S. C. § 2510 et seq. (1964 ed., Supp. V), appear to reflect little more than this Court’s prior decisions. Indeed, the comprehensive provisions of Title III are evidence of the extent of congressional concern with the impact of electronic surveillance on the right to privacy. This concern is further manifested in the introductory section of the Senate Committee Report.26 Although §2511 (2) (c) exempts consensual and participant monitoring by law enforcement agents from the general prohibitions against surveillance without prior judicial authorization and makes the fruits admissible in court, see § 2515, congressional malaise with such conduct is evidenced by the contrastingly limited endorsement of consensual surveillance carried out by private individuals.27 While individual Congressmen expressed concern about and criticized the provisions for unsupervised consensual electronic surveillance contained in § 2511,28 the Senate Committee Report comment, to the effect that “[i]t (§ 2511 (2)(c)] largely reflects existing law,” S. Rep. No. 1097, 90th Cong., 2d Sess., 93-94 (1968), followed by citations to On Lee and Lopez, 29 strongly suggests that the provisions represent not intractable approval of these practices, but rather an intention to adopt these holdings and to leave to the courts the task of determining their viability in *792light of later holdings such as Berger, Osborn, and Katz. 30

I find in neither the ABA study nor Title III any justification for ignoring the identifiable difference— albeit an elusive one in the present state of knowledge- — • between the impact on privacy of single-party informer bugging and third-party bugging, which in my opinion justifies drawing the constitutional line at this juncture between the two as regards the necessity for obtaining a warrant. Recognition of this difference is, at the very least, necessary to preserve the openness which is at the core of our traditions and is secure only in a society that tolerates official invasion of privacy simply in circumscribed situations.

The Fourth Amendment protects these traditions, and places limitations on the means and circumstances by which the Government may collect information about its citizens by intruding into their personal lives. The *793spirit of the principle is captured by the oft-quoted language of Boyd v. United States, 116 U. S., at 630:

“The principles laid down in this opinion i[ speaking of Entick v. Carrington, 19 How. St. Tr. 1029 (1765)] affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case then before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employes of the sanctity of a man’s home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security . . . .”

What this means is that the burden of guarding privacy in a free society should not be on its citizens; it is the Government that must justify its need to electronically eavesdrop.

V

Not content to rest upon the proposition that On Lee remains sound law, the plurality opinion would also hold that the Court of Appeals erred further in disposing “of this case based on its understanding of the principles announced in the Katz case,” ante, at 754, because Desist v. United States, 394 U. S. 244 (1969), held that Katz governed only governmental conduct occurring after the decision in Katz. It is difficult to know where to begin to analyze such a truly extraordinary assertion respecting the operation of the judicial process.

Because this case is here on direct review, even were the issues squarely controlled by Katz, I would unhesitatingly apply here the rule there adopted, for the reasons first expressed in my dissent in Desist, 394 U. S., at 256, and elaborated in my separate opinion in Mackey *794v. United States (and companion cases), ante, p. 675. I see no purpose in repeating at this point the analysis I set forth in those opinions. Suffice it to say that, in Desist, I went to some length to point out, by discussing a hypothetical proposition, that the failure to apply any new decision by this Court to cases which had not yet run their course on direct review was inconsistent with the case-by-case approach to constitutional decision and with the proper relationship of this Court to the lower federal courts. In particular, I noted that the logic of Desist suggested that it would constitute error for a lower federal court to adopt a new constitutional rule which this Court subsequently approved. 394 U. S., at 259. Today’s opinion stands as eloquent evidence of that defect.

Indeed, I find this decision even more troubling than Desist. For the errors of Desist are not merely repeated here; they are plainly compounded. Upon the plurality opinion’s own analysis of the instant case, it is clear that Katz has no direct relevance to the present viability of On Lee. “Katz involved no revelation to the Government by a party to conversations with the defendant nor did the Court indicate in any way that a defendant has a justifiable and constitutionally protected expectation that a person with whom he is conversing will not then or later reveal the conversation to the police.” Ante, at 749. As I have already shown, one need not cite Katz to demonstrate the inability of On Lee to survive recent developments without at least substantial reformulation. To hold, then, that a mere citation of Katz, or drawing upon the philosophical underpinnings of that case in order to employ a general constitutional approach in tune with that of the decisions of this Court, conflicts with the holding of Desist is to let this obsession with prospectivity run riot.

*795Apparently Desist is now to be understood as holding that all lower federal courts are disabled from adjudicating on their merits all allegations of Fourth Amendment error not squarely supported by a prior decision of this Court. If so, one wonders what purpose is served by providing intermediate appellate review of constitutional issues in the federal criminal process. We must not forget that this Court is not the only tribunal in the entire federal system charged with a responsibility for the nurture and development of the Fourth Amendment. It is one thing to disable all federal courts, including this Court, from applying the settled law of the land to cases and controversies before them — as Desist does with Katz — and at least another giant step backward to preclude lower courts from resolving wholly disparate controversies in the light of constitutional principles. Can it be seriously contended, as the plurality opinion necessarily implies, that the Court of Appeals should not be reversed today on these alternative grounds had it simply omitted to discuss Katz? To force lower federal courts to adjudicate controversies either mechanistically or disingenuously is for me indefensible. Yet this is precisely what the plurality opinion does with its assertion that it is error for lower courts to “dispose” of a case based on their “understanding of the principles announced” in Katz for the next year or so.

I would hold that On Lee is no longer good law and affirm the judgment below.

Mr. Justice Marshall,

dissenting.

I am convinced that the correct view of the Fourth Amendment in the area of electronic surveillance is one that brings the safeguards of the warrant requirement to bear on the investigatory activity involved in this case. In this regard I agree with the dissents of Mr. Justice *796Douglas and Me. Justice Harlan. In short, I believe that On Lee v. United States, 343 U. S. 747 (1952), cannot be considered viable in light of the constitutional principles articulated in Katz v. United States, 389 U. S. 347 (1967), and other cases. And for reasons expressed by Mr. Justice Fortas in dissent in Desist v. United States, 394 U. S. 244, 269 (1969), I do not think we should feel constrained to employ a discarded theory of the Fourth Amendment in evaluating the governmental intrusions challenged here.

*542Justice White

delivered the opinion of the Court.

On September 24, 1987, petitioner Keith Jacobson was indicted for violating a provision of the Child Protection Act of 1984 (Act), Pub. L. 98-292, 98 Stat. 204, which criminalizes the knowing receipt through the mails of a “visual depiction [that] involves the use of a minor engaging in sexually explicit conduct. . . .” 18 U. S. C. § 2252(a)(2)(A). Petitioner defended on the ground that the Government entrapped him into committing the crime through a series of communications from undercover agents that spanned the 26 months preceding his arrest. Petitioner was found guilty after a jury trial. The Court of Appeals affirmed his conviction, holding that the Government had carried its burden of proving beyond reasonable doubt that petitioner was predisposed to break the law and hence was not entrapped.

Because the Government overstepped the line between setting a trap for the “unwary innocent” and the “unwary criminal,” Sherman v. United States, 356 U. S. 369, 372 (1958), and as a matter of law failed to establish that petitioner was independently predisposed to commit the crime for which he was arrested, we reverse the Court of Appeals’ judgment affirming his conviction.

I

In February 1984, petitioner, a 56-year-old veteran-turned-farmer who supported his elderly father in Nebraska, ordered two magazines and a brochure from a California adult bookstore. The magazines, entitled Bare Boys I and Bare Boys II, contained photographs of nude preteen and *543teenage boys. The contents of the magazines startled petitioner, who testified that he had expected to receive photographs of “young men 18 years or older.” Tr. 425. On cross-examination, he explained his response to the magazines:

“[PROSECUTOR]: [Y]ou were shocked and surprised that there were pictures of very young boys without clothes on, is that correct?

“[JACOBSON]: Yes, I was.

“[PROSECUTOR]: Were you offended?

“[JACOBSON]: I was not offended because I thought these were a nudist type publication. Many of the pictures were out in a rural or outdoor setting. There was — I didn’t draw any sexual connotation or connection with that.” Id., at 463.

The young men depicted in the magazines were not engaged in sexual activity, and petitioner’s receipt of the magazines was legal under both federal and Nebraska law. Within three months, the law with respect to child pornography changed; Congress passed the Act illegalizing the receipt through the mails of sexually explicit depictions of children. In the very month that the new provision became law, postal inspectors found petitioner’s name on the mailing list of the California bookstore that had mailed him Bare Boys I and II. There followed over the next 2V2 years repeated efforts by two Government agencies, through five fictitious organizations and a bogus pen pal, to explore petitioner’s willingness to break the new law by ordering sexually explicit photographs of children through the mail.

The Government began its efforts in January 1985 when a postal inspector sent petitioner a letter supposedly from the American Hedonist Society, which in fact was a fictitious organization. The letter included a membership application and stated the Society’s doctrine: that members had the *544“right to read what we desire, the right to discuss similar interests with those who share our philosophy, and finally that we have the right to seek pleasure without restrictions being placed on us by outdated puritan morality.” Record, Government Exhibit 7. Petitioner enrolled in the organization and returned a sexual attitude questionnaire that asked him to rank on a scale of one to four his enjoyment of various sexual materials, with one being “really enjoy,” two being “enjoy,” three being “somewhat enjoy,” and four being “do not enjoy.” Petitioner ranked the entry “[p]re-teen sex” as a two, but indicated that he was opposed to pedophilia. Ibid.

For a time, the Government left petitioner alone. But then a new “prohibited mailing specialist” in the Postal Service found petitioner’s name in a file, Tr. 328-331, and in May 1986, petitioner received a solicitation from a second fictitious consumer research company, “Midlands ■ Data Research,” seeking a response from those who “believe in the joys of sex and the complete awareness of those lusty and youthful lads and lasses of the neophite [sic] age.” Record, Government Exhibit 8. The letter never explained whether “neophite” referred to minors or young adults. Petitioner responded: “Please feel free to send me more information, I am interested in teenage sexuality. Please keep my name confidential.” Ibid.

Petitioner then heard from yet another Government creation, “Heartland Institute for a New Tomorrow” (HINT), which proclaimed that it was “an organization founded to protect and promote sexual freedom and freedom of choice. We believe that arbitrarily imposed legislative sanctions restricting your sexual freedom should be rescinded through the legislative process.” Id., Defendant’s Exhibit 102. The letter also enclosed a second survey. Petitioner indicated that his interest in “[pjreteen sex-homosexual” material was above average, but not high. In response to another question, petitioner wrote: “Not only sexual expression but freedom of the press is under attack. We must be ever vigilant *545to counter attack right wing fundamentalists who are determined to curtail our freedoms.” Id., Government Exhibit 9.

HINT replied, portraying itself as a lobbying organization seeking to repeal “all statutes which regulate sexual activities, except those laws which deal with violent behavior, such as rape. HINT is also lobbying to eliminate any legal definition of ‘the age of consent.’ ” Id., Defendant’s Exhibit 113. These lobbying efforts were to be funded by sales from a catalog to be published in the future “offering the sale of various items which we believe you will find to be both interesting and stimulating.” Ibid. HINT also provided computer matching of group members with similar survey responses; and, although petitioner was supplied with a list of potential “pen pals,” he did not initiate any correspondence.

Nevertheless, the Government’s “prohibited mailing specialist” began writing to petitioner, using the pseudonym “Carl Long.” The letters employed a tactic known as “mirroring,” which the inspector described as “reflect[ing] whatever the interests are of the person we are writing to.” Tr. 342. Petitioner responded at first, indicating that his interest was primarily in “male-male items.” Record, Government Exhibit 9A. Inspector “Long” wrote back:

“My interests too are primarily male-male items. Are you satisfied with the type of VCR tapes available? Personally, I like the amateur stuff better if its [sic] well produced as it can get more kinky and also seems more real. I think the actors enjoy it more.” Id., Government Exhibit 13.

Petitioner responded:

“As far as my likes are concerned, I like good looking young guys (in their late teens and early 20’s) doing their thing together.” Id., Government Exhibit 14.

Petitioner’s letters to “Long” made no reference to child pornography. After writing two letters, petitioner discontinued the correspondence.

*546By March 1987, 34 months had passed since the Government obtained petitioner’s name from the mailing list of the California bookstore, and 26 months had passed since the Postal Service had commenced its mailings to petitioner. Although petitioner had responded to surveys and letters, the Government had no evidence that petitioner had ever intentionally possessed or been exposed to child pornography. The Postal Service had not checked petitioner’s mail to determine whether he was receiving questionable mailings from persons — other than the Government — involved in the child pornography industry. Tr. 348.

At this point, a second Government agency, the Customs Service, included petitioner in its own child pornography sting, “Operation Borderline,” after receiving his name on lists submitted by the Postal Service. Id., at 71-72. Using the name of a fictitious Canadian company called “Produit Outaouais,” the Customs Service mailed petitioner a brochure advertising photographs of young boys engaging in sex. Record, Government Exhibit 22. Petitioner placed an order that was never filled. Id., Government Exhibit 24.

The Postal Service also continued its efforts in the Jacobson case, writing to petitioner as the “Far Eastern Trading Company Ltd.” The letter began:

“As many of you know, much hysterical nonsense has appeared in the American media concerning ‘pornography’ and what must be done to stop it from coming across your borders. This brief letter does not allow us to give much comments; however, why is your government spending millions of dollars to exercise international censorship while tons of drugs, which makes yours the world’s most crime ridden country are passed through easily.” Id., Government Exhibit 1.

The letter went on to say:

“[W]e have devised a method of getting these to you without prying eyes of U. S. Customs seizing your *547mail. . . . After consultations with American solicitors, we have been advised that once we have posted our material through your system, it cannot be opened for any inspection without authorization of a judge.” Ibid.

The letter invited petitioner to send for more information. It also asked petitioner to sign an affirmation that he was “not a law enforcement officer or agent of the U. S. Government acting in an undercover capacity for the purpose of entrapping Far Eastern Trading Company, its agents or customers.” Petitioner responded. Ibid. A catalog was sent, id., Government Exhibit 2, and petitioner ordered Boys Who Love Boys, id., Government Exhibit 3, a pornographic magazine depicting young boys engaged in various sexual activities. Petitioner was arrested after a controlled delivery of a photocopy of the magazine.

When petitioner was asked at trial why he placed such an order, he explained that the Government had succeeded in piquing his curiosity:

“Well, the statement was made of all the trouble and the hysteria over pornography and I wanted to see what the material was. It didn’t describe the — I didn’t know for sure what kind of sexual action they were referring to in the Canadian letter.” Tr. 427-428.

In petitioner’s home, the Government found the Bare Boys magazines and materials that the Government had sent to him in the course of its protracted investigation, but no other materials that would indicate that petitioner collected, or was actively interested in, child pornography.

Petitioner was indicted for violating 18 U. S. C. § 2252(a) (2)(A). The trial court instructed the jury on the petitioner’s entrapment defense,1 petitioner was convicted, and a di*548vided Court of Appeals for the Eighth Circuit, sitting en banc, affirmed, concluding that “Jacobson was not entrapped as a matter of law.” 916 F. 2d 467, 470 (1990). We granted certiorari. 499 U. S. 974 (1991).

II

There can be no dispute about the evils of child pornography or the difficulties that laws and law enforcement have encountered in eliminating it. See generally Osborne v. Ohio, 495 U. S. 103, 110 (1990); New York v. Ferber, 458 U. S. 747, 759-760 (1982). Likewise, there can be no dispute that the Government may use undercover agents to enforce the law. “It is well settled that the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution. Artifice and stratagem may be employed to catch those engaged in criminal enterprises.” Sorrells v. United States, 287 U. S. 435, 441 (1932); Sherman, 356 U. S., at 372; United States v. Russell, 411 U. S. 423, 435-436 (1973).

In their zeal to enforce the law, however, Government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute. Sorrells, supra, at 442; Sherman, supra, at 372. Where the Government has induced an *549individual to break the law and the defense of entrapment is at issue, as it was in this case, the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by Government agents. United States v. Whole, 288 U. S. App. D. C. 261, 263-264, 925 F. 2d 1481, 1483-1484 (1991).2

Thus, an agent deployed to stop the traffic in illegal drugs may offer the opportunity to buy or sell drugs and, if the offer is accepted, make an arrest on the spot or later. In *550such a typical case, or in a more elaborate “sting” operation involving government-sponsored fencing where the defendant is simply provided with the opportunity to commit a crime, the entrapment defense is of little use because the ready commission of the criminal act amply demonstrates the defendant’s predisposition. See United States v. Sherman, 200 F. 2d 880, 882 (CA2 1952). Had the agents in this case simply offered petitioner the opportunity to order child pornography through the mails, and petitioner — who must be presumed to know the law — had promptly availed himself of this criminal opportunity, it is unlikely that his entrapment defense would have warranted a jury instruction. Mathews v. United States, 485 U. S. 58, 66 (1988).

But that is not what happened here. By the time petitioner finally placed his order, he had already been the target of 26 months of repeated mailings and communications from Government agents and fictitious organizations. Therefore, although he had become predisposed to break the law by May 1987, it is our view that the Government did not prove that this predisposition was independent and not the product of the attention that the Government had directed at petitioner since January 1985. Sorrells, supra, at 442; Sherman, 356 U. S., at 372.

The prosecution’s evidence of predisposition falls into two categories: evidence developed prior to the Postal Service’s mail campaign, and that developed during the course of the investigation. The sole piece of preinvestigation evidence is petitioner’s 1984 order and receipt of the Bare Boys magazines. But this is scant if any proof of petitioner’s predisposition to commit an illegal act, the criminal character of which a defendant is presumed to know. It may indicate a predisposition to view sexually oriented photographs that are responsive to his sexual tastes; but evidence that merely indicates a generic inclination to act within a broad range, not all of which is criminal, is of little probative value in establishing predisposition.

*551Furthermore, petitioner was acting within the law at the time he received these magazines. Receipt through the mails of sexually explicit depictions of children for noncommercial use did not become illegal under federal law until May 1984, and Nebraska had no law that forbade petitioner’s possession of such material until 1988. Neb. Rev. Stat. § 28-813.01 (1989). Evidence of predisposition to do what once was lawful is not, by itself, sufficient to show predisposition to do what is now illegal, for there is a common understanding that most people obey the law even when they disapprove of it. This obedience may reflect a generalized respect for legality or the fear of prosecution, but for whatever reason, the law’s prohibitions are matters of consequence. Hence, the fact that petitioner legally ordered and received the Bare Boys magazines does little to further the Government’s burden of proving that petitioner was predisposed to commit a criminal act. This is particularly true given petitioner’s unchallenged testimony that he did not know until they arrived that the magazines would depict minors.

The prosecution’s evidence gathered during the investigation also fails to carry the ■ Government’s burden. Petitioner’s responses to the many communications prior to the ultimate criminal act were at most indicative of certain personal inclinations, including a predisposition to view photographs of preteen sex and a willingness to promote a given agenda by supporting lobbying organizations. Even so, petitioner’s responses hardly support an inference that he would commit the crime of receiving child pornography through the mails.3 Furthermore, a person’s inclinations and “fantasies . . . are *552his own and beyond the reach of government. . . Paris Adult Theatre I v. Slaton, 413 U. S. 49, 67 (1973); Stanley v. Georgia, 394 U. S. 557, 565-566 (1969).

On the other hand, the strong arguable inference is that, by waving the banner of individual rights and disparaging the legitimacy and constitutionality of efforts to restrict the availability of sexually explicit materials, the Government not only excited petitioner’s interest in sexually explicit materials banned by law but also exerted substantial pressure on petitioner to obtain and read such material as part of a fight against censorship and the infringement of individual rights. For instance, HINT described itself as “an organization founded to protect and promote sexual freedom and freedom of choice” and stated that “the most appropriate means to accomplish [its] objectives is to promote honest dialogue among concerned individuals and to continue its lobbying efforts with State Legislators.” Record, Defendant’s Exhibit 113. These lobbying efforts were to be financed through catalog sales. Ibid. Mailings from the equally fictitious American Hedonist Society, id., Government Exhibit 7, and the correspondence from the nonexistent Carl Long, id., Defendant’s Exhibit 5, endorsed these themes.

Similarly, the two solicitations in the spring of 1987 raised the spectre of censorship while suggesting that petitioner ought to be allowed to do what he had been solicited to do. The mailing from the Customs Service referred to “the worldwide ban and intense enforcement on this type of material,” observed that “what was legal and commonplace is now an ‘underground’ and secretive service,” and emphasized that “[t]his environment forces us to take extreme measures” to ensure delivery. Id., Government Exhibit 22. The Postal Service solicitation described the concern about child pornography as “hysterical nonsense,” decried “international censorship,” and assured petitioner, based on consultation with “American solicitors,” that an order that had been posted could not be opened for inspection without au*553thorization of a judge. Id., Government Exhibit 1. It further asked petitioner to affirm that he was not a Government agent attempting to entrap the mail order company or its customers. Ibid. In these particulars, both Government solicitations suggested that receiving this material was something that petitioner ought to be allowed to do.

Petitioner’s ready response to these solicitations cannot be enough to establish beyond reasonable doubt that he was predisposed, prior to the Government acts intended to create predisposition, to commit the crime of receiving child pornography through the mails. See Sherman, 356 U. S., at 374. The evidence that petitioner was ready and willing to commit the offense came only after the Government had devoted 2V2 years to convincing him that he had or should have the right to engage in the very behavior proscribed by law. Rational jurors could not say beyond a reasonable doubt that petitioner possessed the requisite predisposition prior to the Government’s investigation and that it existed independent of the Government’s many and varied approaches to petitioner. As was explained in Sherman, where entrapment was found as a matter of law, “the Government [may not] pla[y] on the weaknesses of an innocent party and beguil[e] him into committing crimes which he otherwise would not have attempted.” Id., at 376.

Law enforcement officials go too far when they “implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.” Sorrells, 287 U. S., at 442 (emphasis added). Like the Sorrells Court, we are “unable to conclude that it was the intention of the Congress in enacting this statute that its processes of detection and enforcement should be abused by the instigation by government officials of an act on the part of persons otherwise innocent in order to lure them to its commission and to punish them.” Id., at 448. When the Government’s quest for convictions leads to the apprehension of an otherwise law-abiding citizen who, if *554left to his own devices, likely would have never run afoul of the law, the courts should intervene.

Because we conclude that this is such a case and that the prosecution failed, as a matter of law, to adduce evidence to support the jury verdict that petitioner was predisposed, independent of the Government’s acts and beyond a reasonable doubt, to violate the law by receiving child pornography through the mails, we reverse the Court of Appeals’ judgment affirming the conviction of Keith Jacobson.

It is so ordered.

Justice O’Connor,

with whom The Chief Justice and Justice Kennedy join, and with whom Justice Scalia joins except as to Part II, dissenting.

Keith Jacobson was offered only two opportunities to buy child pornography through the mail. Both times, he ordered. Both times, he asked for opportunities to buy more. He needed no Government agent to coax, threaten, or persuade him; no one played on his sympathies, friendship, or suggested that his committing the crime would further a greater good. In fact, no Government agent even contacted him face to face. The Government contends that from the enthusiasm with which Mr. Jacobson responded to the chance to commit a crime, a reasonable jury could permissibly infer beyond a reasonable doubt that he was predisposed to commit the crime. I agree. Cf. United States v. Hunt, 749 F. 2d 1078, 1085 (CA4 1984) (ready response to solicitation shows predisposition), cert. denied, 472 U. S. 1018 (1985); United States v. Kaminski, 703 F. 2d 1004, 1008 (CA7 1983) (“ ‘the most important factor ... is whether the defendant evidenced reluctance to engage in criminal activity which was overcome by repeated Government inducement’ ”) (quoting United States v. Reynoso-Ulloa, 548 F. 2d 1329, 1336 (CA9 1977), cert. denied, 436 U. S. 926 (1978)); United States v. Sherman, 200 F. 2d 880, 882 (CA2 1952) (indication of pre*555disposition is a defendant’s willingness to commit the offense “ ‘as evinced by ready complaisance’ ” (citation omitted)).

The first time the Government sent Mr. Jacobson a catalog of illegal materials, he ordered a set of photographs advertised as picturing “young boys in sex action fun.” He enclosed the following note with his order: “I received your brochure and decided to place an order. If I like your product, I will order more later.” Record, Government Exhibit 24. For reasons undisclosed in the record, Mr. Jacobson’s order was never delivered.

The second time the Government sent a catalog of illegal materials, Mr. Jacobson ordered a magazine called “Boys Who Love Boys,” described as: “11 year old and 14 year old boys get it on in every way possible. Oral, anal sex and heavy masturbation. If you love boys, you will be delighted with this.” Id., Government Exhibit 2. Along with his order, Mr. Jacobson sent the following note: “Will order other items later. I want to be discreet in order to protect you and me.” Id., Government Exhibit 3.

Government agents admittedly did not offer Mr. Jacobson the chance to buy child pornography right away. Instead, they first sent questionnaires in order to make sure that he was generally interested in the subject matter. Indeed, a “cold call” in such a business would not only risk rebuff and suspicion, but might also shock and offend the uninitiated, or expose minors to suggestive materials. Cf. FCC v. Pacifica Foundation, 438 U. S. 726, 748 (1978) (right to be free from offensive material in one’s home); 39 U. S. C. § 3010 (regulating the mailing of sexually explicit advertising materials). Mr. Jacobson’s responses to the questionnaires gave the investigators reason to think he would be interested in photographs depicting preteen sex.

The Court, however, concludes that a reasonable jury could not have found Mr. Jacobson to be predisposed beyond a reasonable doubt on the basis of his responses to the Government’s catalogs, even though it admits that, by that time, *556he was predisposed to commit the crime. The Government, the Court holds, failed to provide evidence that Mr. Jacobson’s obvious predisposition at the time of the crime “was independent and not the product of the attention that the Government had directed at petitioner.” Ante, at 550. In so holding, I believe the Court fails to acknowledge the reasonableness of the jury’s inference from the evidence, redefines “predisposition,” and introduces a new requirement that Government sting operations have a reasonable suspicion of illegal activity before contacting a suspect.

I

ThisThis Court has held previously that a defendant s predisposition is to be assessed as of the time the Government agent first suggested the crime, not when the Government agent first became involved. Sherman v. United States, 356 U. S. 369, 372-376 (1958). See also United States v. Williams, 705 F. 2d 603, 618, n. 9 (CA2), cert. denied, 464 U. S. 1007 (1983). Until the Government actually makes a suggestion of criminal conduct, it could not be said to have “implanted] in the mind of an innocent person the disposition to commit the alleged offense and induce its commission . . . .” Sorrells v. United States, 287 U. S. 435, 442 (1932). Even in Sherman v. United States, supra, in which the Court held that the defendant had been entrapped as a matter of law, the Government agent had repeatedly and unsuccessfully coaxed the defendant to buy drugs, ultimately succeeding only by playing on the defendant’s sympathy. The Court found lack of predisposition based on the Government’s numerous unsuccessful attempts to induce the crime, not on the basis of preliminary contacts with the defendant. .

Today, the Court holds that Government conduct may be considered to create a predisposition to commit a crime, even before any Government action to induce the commission of the crime. In my view, this holding changes entrapment doctrine. Generally, the inquiry is whether a suspect is pre*557disposed before the Government induces the commission of the crime, not before the Government makes initial contact with him. There is no dispute here that the Government’s questionnaires and letters were not sufficient to establish inducement; they did not even suggest that Mr. Jacobson should engage in any illegal activity. If all the Government had done was to send these materials, Mr. Jacobson’s entrapment defense would fail. Yet the Court holds that the Government must prove not only that a suspect was predisposed to commit the crime before the opportunity to commit it arose, but also before the Government came on the scene. Ante, at 548-549.

The rule that preliminary Government contact can create a predisposition has the potential to be misread by lower courts as well as criminal investigators as requiring that the Government must have sufficient evidence of a defendant’s predisposition before it ever seeks to contact him. Surely the Court cannot intend to impose such a requirement, for it would mean that the Government must have a reasonable suspicion of criminal activity before it begins an investigation, a condition that we have never before imposed. The Court denies that its new rule will affect run-of-the-mill sting operations, ante, at 549-550, and one hopes that it means what it says. Nonetheless, after this case, every defendant will claim that something the Government agent did before soliciting the crime “created” a predisposition that was not there before. For example, a bribetaker will claim that the description of the amount of money available was so enticing that it implanted a disposition to accept the bribe later offered. A drug buyer will claim that the description of the drug’s purity and effects was so tempting that it created the urge to try it for the first time. In short, the Court’s opinion could be read to prohibit the Government from advertising the seductions of criminal activity as part of its sting operation, for fear of creating a predisposition in its suspects. That limitation would be especially likely to *558hamper sting operations such as this one, which mimic the advertising done by genuine purveyors of pornography. No doubt the Court would protest that its opinion does not stand for so broad a proposition, but the apparent lack of a principled basis for distinguishing these scenarios exposes a flaw in the more limited rule the Court today adopts.

The Court’s rule is all the more troubling because it does not distinguish between Government conduct that merely highlights the temptation of the crime itself, and Government conduct that threatens, coerces, or leads a suspect to commit a crime in order to fulfill some other obligation. For example, in Sorrells, the Government agent repeatedly asked for illegal liquor, coaxing the defendant to accede on the ground that “ ‘one former war buddy would get liquor for another.’ ” 287 U. S., at 440. In Sherman, the Government agent played on the defendant’s sympathies, pretending to be going through drug withdrawal and begging the defendant to relieve his distress by helping him buy drugs. 356 U. S., at 371.

The Government conduct in this case is not comparable. While the Court states that the Government “exerted substantial pressure on petitioner to obtain and read such material as part of a fight against censorship and the infringement of individual rights,” ante, at 552, one looks at the record in vain for evidence of such “substantial pressure.” The most one finds is letters advocating legislative action to liberalize obscenity laws, letters which could easily be ignored or thrown away. Much later, the Government sent separate mailings of catalogs of illegal materials. Nowhere did the Government suggest that the proceeds of the sale of the illegal materials would be used to support legislative reforms. While one of the HINT letters suggested that lobbying efforts would be funded by sales from a catalog, Record, Defendant’s Exhibit 113, the catalogs actually sent, nearly a year later, were from different fictitious entities (Produit Outaouais and Far Eastern Trading Company), and gave no *559suggestion that money would be used for any political purposes. Id., Government Exhibit 22, Government Exhibit 2. Nor did the Government claim to be organizing a civil disobedience movement, which would protest the pornography laws by breaking them. Contrary to the gloss given the evidence by the Court, the Government’s suggestions of illegality may also have made buyers beware, and increased the mystique of the materials offered: “For those of you who have enjoyed youthful material ... we have devised a method of getting these to you without prying eyes of U. S. Customs seizing your mail.” Id., Government Exhibit 1. Mr. Jacobson’s curiosity to see what “ ‘all the trouble and the hysteria’ ” was about, ante, at 547, is certainly susceptible of more than one interpretation. And it is the jury that is charged with the obligation of interpreting it. In sum, the Court fails to construe the evidence in the light most favorable to the Government, and fails to draw all reasonable inferences in the Government’s favor. It was surely reasonable for the jury to infer that Mr. Jacobson was predisposed beyond a reasonable doubt, even if other inferences from the evidence were also possible.

II

The second puzzling thing about the Court s opinion is its redefinition of predisposition. The Court acknowledges that “petitioner’s responses to the many communications prior to the ultimate criminal act were . . . indicative of certain personal inclinations, including a predisposition to view photographs of preteen sex . . . Ante, at 551. If true, this should have settled the matter; Mr. Jacobson was predisposed to engage in the illegal conduct. Yet, the Court concludes, “petitioner’s responses hardly support an inference that he would commit the crime of receiving child pornography through the mails.” Ibid.

The Court seems to add something new to the burden of proving predisposition. Not only must the Government *560show that a defendant was predisposed to engage in the illegal conduct, here, receiving photographs of minors engaged in sex, but also that the defendant was predisposed to break the law knowingly in order to do so. The statute violated here, however, does not require proof of specific intent to break the law; it requires only knowing receipt of visual depictions produced by using minors engaged in sexually explicit conduct. See 18 U. S. C. § 2252(a)(2); United States v. Moncini, 882 F. 2d 401, 404-406 (CA9 1989). Under the Court’s analysis, however, the Government must prove more to show predisposition than it need prove in order to convict.

The Court ignores the judgment of Congress that specific intent is not an element of the crime of receiving sexually explicit photographs of minors. The elements of predisposition should track the elements of the crime. The predisposition requirement is meant to eliminate the entrapment defense for those defendants who would have committed the crime anyway, even absent Government inducement. Because a defendant might very well be convicted of the crime here absent Government inducement even though he did not know his conduct was illegal, a specific intent requirement does little to distinguish between those who would commit the crime without the inducement and those who would not. In sum, although the fact that Mr. Jacobson’s purchases of Bare Boys I and Bare Boys II were legal at the time may have some relevance to the question of predisposition, it is not, as the Court suggests, dispositive.

The crux of the Court’s concern in this case is that the Government went too far and “abused” the “‘processes of detection and enforcement’ ” by luring an innocent person to violate the law. Ante, at 553, quoting Sorrells, 287 U. S., at 448. Consequently, the Court holds that the Government failed to prove beyond a reasonable doubt that Mr. Jacobson was predisposed to commit the crime. It was, however, the jury’s task, as the conscience of the community, to decide whether Mr. Jacobson was a willing participant in the crimi*561nal activity here or an innocent dupe. The jury is the traditional “defense against arbitrary law enforcement.” Duncan v. Louisiana, 391 U. S. 145, 156 (1968). Indeed, in Sorrells, in which the Court was also concerned about overzealous law enforcement, the Court did not decide itself that the Government conduct constituted entrapment, but left the issue to the jury. 287 U. S., at 452. There is no dispute that the jury in this case was fully and accurately instructed on the law of entrapment, and nonetheless found Mr. Jacobson guilty. Because I believe there was sufficient evidence to uphold the jury’s verdict, I respectfully dissent.