SILVERMAN v. UNITED STATES

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Argument of Edward Bennett Williams

Chief Justice Earl Warren: Mr. Williams, you may proceed.

Mr. Edward Bennett Williams: Mr. Chief Justice, may it please the Court.

The question that's presented to the Court in the case at bar concerns the admissibility of evidence in federal courts.

Precisely stated, the question is whether evidence which is obtained by agents of the Federal Government by the use of this electronic eavesdropping device which his known as a spike microphone which was inserted into the party wall of the private dwelling house of petitioners so that all of the conversations which took place in that dwelling house over a period of days could be overheard by the federal agents, whether evidence of that kind may be offered against the petitioners in a criminal proceeding.

The facts are these, if the Court please --

Justice John M. Harlan: This is the device?

Mr. Edward Bennett Williams: This is precisely the device, Your Honor.

The facts are these.

In July of 1958, the petitioners were indicted for violation of the gambling statutes of the District of Columbia and for violation of the Federal Gambling Tax Act.

The indicted sounded in four counts.

They charged the petitioners, in substance, with accepting over the telephone wagers on baseball games and boxing matches.

It charged that these were accepted in a row house at 408 21st Street, Northwest in the District of Columbia.

The house was a two-story dwelling house with four rooms, two upstairs and two downstairs.

On April 30 of 1958, a search was made of these premises pursuant to a search warrant issued by the United States Commissioner for the District of Columbia.

As a result of that search, certain records were seized and certain -- certain paraphernalia were seized.

The search warrant was issued, if the Court please, on an affidavit that was signed by two agents of the Bureau of Internal Revenue Service and by an officer of the Metropolitan Police Department and, it alleged in essence that over a period of nine days from April 21 to April 30, from a vantage point, otherwise unidentified, they were able to overhear conversations in which the petitioners were engaged and which they characterized as wagering conversations.

A motion was filed under Rule 41 of the Federal Rules of Criminal Procedure for the return and the suppression of evidence, for the return of the physical object seized in their suppression, and for the suppression of the conversations overheard on the ground that they were in violation of petitioners' rights under the Fourth Amendment to the Constitution of the United States.

That motion came on for hearing before Judge Holtzoff of the United States District Court for the District of Columbia.

At the hearing, a stipulation was entered into by counsel for the Government with counsel for the defense that agents of the Federal Government had gone onto the premises at 410 21st Street which was the row house immediately contiguous to the petitioners' that they have gone unto those premises with the consent of the owner and that, by use of this microphone, they had overheard the conversations which were spelled out in the affidavit on which the search warrant was issued.

Justice William J. Brennan: Mr. Williams, is that a custom made or an assembly line?

Mr. Edward Bennett Williams: I hope it's not an assembly line article, Mr. Justice Brennan, but it is an article which has some widespread use at the present time by federal law enforcement agents.

Justice Potter Stewart: Was the affidavit which supporting the search warrant, does that affidavit appear in the record here?

Mr. Edward Bennett Williams: It does, sir.

The affidavit appears in the record next to the motion for the return suppression of evidence.

It appears, Mr. Justice Stewart, at page 12 of the record.

Now, the stipulation entered into before the judge on the motion was to the effect that this device was --

Justice Felix Frankfurter: That is not the search warrant itself.

That's the descript --

Mr. Edward Bennett Williams: That's the effort --

Justice Felix Frankfurter: -- that's annexed -- that was annexed to your motion for suppression.

Mr. Edward Bennett Williams: And that was annexed, if the Court please, to the original application for a search warrant made by the officers who applied for it.

That was the affidavit on which the search warrant was issued by the United States Commissioner on April 30, 1958.

We annexed it as an exhibit to our moving papers because we were making the constitutional argument.

It was further stipulated that this was inserted below the baseboard for a distance of six or seven inches into the party wall of petitioners' dwelling house and that it was the means by which the conversations were overheard.

Judge Holtzoff denied the motion for return and suppression and I think it is germane here to read just a sentence of his opinion or two.

He said, "By permission of the owner," and I'm reading from page 20 of the record, "police officers obtained entrance to a portion of the premises which adjoined the search premises, and attached an electronic device to the inside wall of the adjoining premises with a wire projecting six or eight inches into the party wall between the two houses.

By means of this electronic device, the officers were able to overhear conversations that went on in the suspected premises.

These conversations were made the basis of the affidavit in question."

And then, below on the same page, he gives us the reason for his denial of the motion before him."

The provisions of the Fourth Amendment relating to search and seizure are limited to physical searches and seizures of objects.

This has been continuously held by the Supreme Court.

Thus, in Olmstead against the United States, the Court laid down the general proposition that if evidence is obtained by use of sense of hearing and that only, and there is no entry into the house or office of the defendant, there is no unlawful search and seizure."

And, again at page 23, he says, "The state of the law today, so far as the Supreme Court decisions are concerned, is that the constitutional limitations on searches and seizures do not apply to conversations and are confined to physical invasion and to the seizure of physical objects.

The Fourth Amendment does not ban eavesdropping."

If the Court please, by reason of a technical defect in the indictment, a superseding indictment was returned.

The technical defect is not germane here but a superseding indictment was returned in five counts and the same motion was made.

This time, it came on for hearing before Judge Youngdahl of the same court.

Judge Youngdahl announced that he felt himself bound by the rule of the case.

He did not hear argument on the motion and entered an order dismissing the motion.

The case then came on for trial before Judge Jackson of the same court.

The motion was once again renewed before the trial judge.

He, feeling bound by the rule of the case, denied the motion and the case proceeded.

At the trial, if the Court please, oral evidence of the conversations which were overheard, to which the petitioners were parties, the conversations which were overheard by means of this device were offered by the prosecutor and received into evidence against the petitioners.

I think it is a fair statement of the record to say that these conversations constituted the bulk of the oral evidence given against the defendants in the court below.

Justice Felix Frankfurter: What significance that either Judge Holtzoff or the Court of Appeals attached to the consent given by the contiguous -- the owner of the contiguous house?

Mr. Edward Bennett Williams: They attached this significance that the officers were where they were by permission but, Mr. Justice Frankfurter, the record is bare that any permission or consent was ever given to use the party wall in the way in which it was used by the officers.

Justice Felix Frankfurter: I thought you read it awhile ago that one of the opinions stated that "with the consent of."

Mr. Edward Bennett Williams: It was with the consent that they entered the premises but there --

Justice Felix Frankfurter: But not sticking this thing in?

Mr. Edward Bennett Williams: But not sticking this into the walls.

Justice Tom C. Clark: Are you saying it's the same use of gadget like the suction type they stick into the wall?

Mr. Edward Bennett Williams: The type of device that was used in the Goldman case, the detectaphone, I think so.

And, I intend to cover that rather thoroughly, Mr. Justice Clark.

I think it is distinguishable.

Justice William J. Brennan: Well, weren't there other means beside that this device Mr. Williams that he used in this instance?

Mr. Edward Bennett Williams: This was -- this was the only device used, except for the fact that one of the officers testified that he used a water glass and, by use of a water tumbler, was able to overhear some conversations.

None of those conversations were ever articulated.

None of those conversations ever went into evidence.

It is significant that the only conversations that were received into evidence or offered by the Government were conversations which were specifically identified as having been obtained by the use of this device.

Justice Felix Frankfurter: Mr. Williams, may I revert to my question about consent?

Mr. Edward Bennett Williams: Yes, sir.

Justice Felix Frankfurter: Not indicating whether it does or doesn't have significance to the other questions, but if consent was given to enter and was it known that these were enforcing officers?

Mr. Edward Bennett Williams: I'm -- it was known that they were enforcement --

Justice Felix Frankfurter: Well, I don't suppose it takes much of the slide to say that if consent was given to officers to come into the house, did that kind lenders the consent to do what they were coming in for?

Mr. Edward Bennett Williams: Of course, it also follows --

Justice Felix Frankfurter: I'm not saying if that matters.

Mr. Edward Bennett Williams: I think it also follows that the owner of the contiguous dwelling house could not consent to allow the police officers to do something which he could not have done himself, and I think --

Justice Felix Frankfurter: I'm going onto the significance but, so far as any consent is relevant in the relevant item in the equation, the total equation, I should think the consent of entry would carry with it what they entered for.

Mr. Edward Bennett Williams: Which would be an unauthorized consent.

Justice Felix Frankfurter: I'm not --

Mr. Edward Bennett Williams: If it went that far.

Justice Felix Frankfurter: Not to his part of this war.

Mr. Edward Bennett Williams: I think it would have been, sir.

I --

Justice Felix Frankfurter: It would've been --

Mr. Edward Bennett Williams: Yes.

It would've been certainly an unauthorized consent because he would not have had authority to misuse a party wall which is designed to give his house support and to secure his privacy, auditory and visual, to invade the privacy of his neighbor.

Justice Felix Frankfurter: Well, I'm not suggesting the consent -- there was consent for them consequently, but there was consent to the physical thing that was done on his half.

I suppose a man could fiddle around so long as he doesn't undermine the -- the existence of the next house --

Mr. Edward Bennett Williams: Well --

Justice Felix Frankfurter: -- this part of the house --

Mr. Edward Bennett Williams: There's --

Justice Felix Frankfurter: -- further.

Justice Tom C. Clark: How thick was the wall (Inaudible)

Mr. Edward Bennett Williams: The -- the record shows, Mr. Justice Clark, that it was between 13 and 14 inches thick.

Justice Tom C. Clark: (Inaudible)

Mr. Edward Bennett Williams: Yes, sir.

Now, at the trial, these facts were developed.

The officers had gone onto the premises at 410 21st Street.

They took this device and they probed underneath the baseboard to find a place where they could insert it.

They found that they hit masonry or brick and that they could not insert it except at one place, two-feet back from the front wall, for a distance of nine inches.

And there, they could insert it and went into the wall until it came into contact with a surface which the officer said gave meaning that it was resilient.

Now, the record shows that, at this particular point, the heating duct of petitioner's premises ran through the wall.

Brick was channeled out so that the duct could run through the wall and directly behind where the officers were inserting this microphone was the heating register for the petitioner's premises.

They lay the tip of this needle against the heating duct and they converted the heating system into a giant conductor of sound.

They made every register in the premises at 408 21st Street a microphone so that as the record shows, they were able to hear conversations in every part of the dwelling house at 408 21st Street.

And, in order to reach that heating duck which they suspected they were heating, they had to go in for a distance of seven and one eighths inches.

An inspection of the premises, after the fact, showed that sure enough, there was an oval indentation under the baseboard which precisely fitted this needle and, if the needle were pressed through to its point of contact, it came into contact in direct line with a perforation in the heating duct of the petitioner's premises.

Justice John M. Harlan: Does the record show what information, if any, of these officers had before they got permission to go into 408?

Mr. Edward Bennett Williams: It shows, Mr. Justice Harlan, that they did not know before they went on those premises where precisely the heating duct was located.

Justice John M. Harlan: I know.

I meant, today, with any evidence to indicate that they had suspicion a gambling operation was being conducted next to the farm -- next to the house.

Mr. Edward Bennett Williams: The record shows that the affidavit on which they -- which they used to get the search warrant shows that they had anonymous information or they had information from what they described as a reliable source, otherwise unidentified, and went on the premises after finding that several telephones had been leased to this particular house, and then made their observations.

Yes, sir?

Justice Charles E. Whittaker: Was this a hot-air heating?

Mr. Edward Bennett Williams: This was a hot-air heating system, yes, sir.

[Laughter]

Now, the defendants, of course, were convicted and the case went to the Circuit Court on appeal and, there, by a 2-to-1 decision, there was an affirmation.

I think it is worthwhile to call the Court's attention, at page 269 to -- of the record, to Judge Washington's analysis of the facts.

This is uncontradicted.

The majority does not analyze the facts and this is an uncontradicted analysis of what the record shows and, I should say, uncontradicted form.

The police gained entrance quite legally to the row house next to that occupied by appellants.

They then carefully probe the brick wall between the two houses in search of an advantageous spot for the insertion of their eavesdropping device, a needle or spike about 12 inches long connected to an amplifying duct.

The testimony indicated that the spike, in order to serve its purpose adequately, had to come into contact with a solid object capable of resonance.

Mere insertion in the plaster or brick of the wall would be ineffective.

The desired sound reception was obtained by inserting the spike about seven inches into the party wall under the baseboard at a point where the wall contained the metal heating duct for appellants' house.

The heating duct was an excellent vibrator and, furthermore, ran into the bedroom as well as the living room of appellants' house.

Every inference in what little direct evidence there was pointed to the fact that the spike made contact with the heating duct, as the police admittedly hoped it would.

Once the spike touched the heating duct, the duct became in effect a giant microphone running through the entire house occupied by appellants.

The spike was the conductor by which the sounds in appellants' house were transmitted to the amplifier in the adjoining house.

Conversations on both floors of appellants' house were clearly heard by the police through earphones attached to the amplifier.

Motion was filed in the Circuit Court for a rehearing en banc.

This was denied and, finally a petition was filed here and granted.

Now, four times in the last three decades, this Court has considered what I think can be described as closely analogous facts and a closely analogous question.

In 1928, this Court decided the famous case of Olmsted against the United States.

The Court will recall that in that case the contention was made by the petitioner that the interception of his telephone conversations and the reception of those conversations in evidence by the trial judge violated his rights under the Fourth Amendment.

The Supreme Court of the United States rejected that contention by a vote of 5-to-4.

Mr. Justice Holmes, Mr. Justice Brandeis, Mr. Justice Butler and Stone dissented.

In almost with unerring prophecy, three decades ago, Mr. Justice Brandeis foresaw the factual situation in the case at bar.

When he said time works changes, it brings into existence new conditions and purposes.Subtler and more far-reaching means of invading privacy have become available to the Government.

Discovery and invention had made it possible for the Government, by means far more effective than stretching upon their Act to obtain disclosure in court of what is whispered in the closet.

In the application of a constitution, our contemplation cannot be only of what has been but of what may be.

"Ways may someday be developed," says Mr. Justice Brandeis in his opinion, "by which the Government will be enabled to expose to a jury the most intimate occurrences of the home."

14 years went by and there came before this Court the Goldman case in 1942, decided shortly after World War II began.

In that case, the petitioner claimed and complained that a detectaphone had been planted against the wall of a contiguous office and that agents of the Federal Government had listened to his conversations in the next office and that this evidence had been offered against him and that this was violative of the Fourth Amendment and that this case was distinguishable from the Olmsted case because of the fact that he did not foresee that such an intrusion into his privacy could take place because he was not projecting his voice over the telephone beyond his office but having a private conversation with a man in a room.

The Court, by a vote of 5-to-3, rejected his contention with Mr. Justice Murphy dissenting and Mr. Justice Frankfurter joined with Mr. Justice Stone articulating the fact that if the majority of the Court had seen fit to overrule Olmsted, they would go along but, since the Court did not, Olmsted was controlling.

Now, the philosophical rational behind these cases, I think, is fair to say was that the Court felt that the penumbra of the Fourth Amendment did not cover conversations.

It did not cover things other than material, physical, tangible entities.

But in that case, there was articulated in the dissent with, what I think was irrefutable logic by Mr. Justice Murphy, these sentiments.

It's a strange doctrine that keeps inviolate the most mundane observations entrusted to the permanence of paper but allows the revelations of thoughts uttered within the sanctity of private quarters thoughts, perhaps too intimate to be set down even in a secret diary, or, indeed, utterances about which the common law drew the cloak of privilege the most confidential relations between husband and wife, client-lawyer, patient-physician, penitent and spiritual adviser nor can I see any rational basis for denying to the modern means of communication the same protection that is extended by the amendment to seal letters in the mails.

Again, it was 10 years before a comparable situation came to the Court.

In the On Lee case, decided in 1952, this Court had to consider whether a violation of petitioners' Fourth Amendment rights took place when an informer went on to petitioners' business premises, engaged him in a conversation incriminatory in nature, all the while having concealed on his person a radio transmitter which was carrying this conversation to a federal agent who had secreted himself beyond petitioners' premises.

The Court, by a vote of 5-to-4, rejected petitioners' contentions.

The place was a public place to which the informer was invited and one of the parties in that instance had consented to the transmission of the conversation.

But, it is very significant that in the brief filed by the United States by the Solicitor General, he sought even at that early stage, almost a decade ago, to distinguish that case from a case such as the one that is presently before the Court when he said, in his brief, the various situations envisaged in the dissenting opinion in the Second Circuit where mechanical contrivances are used to publicize conversations within a private home are unrelated to the instant case.

As has been observed here, a private home is not here involved.

The conversation transpired in a place to which the public was invited.

In any event, science should in the future, perfect instruments which seriously invade truly private conversations, the validity of such developments may be considered as they appeared.

Justice Felix Frankfurter: I'm always interested when counsel resort to some statement in the prior brief by counsel.

What is it, is it a theory of estoppel?

After all, counsel want to win the case before them.

Mr. Edward Bennett Williams: No --

Justice Felix Frankfurter: I should think you've done it again and again.

Mr. Edward Bennett Williams: The theory here, Mr. Justice Frankfurter, is to give a demonstration, I think, of the foresight of the Solicitor General in envisaging a situation that might come before this Court, such as the one in the case at bar, and to demonstrate that he foresaw that that was clearly distinguishable from the case which he was then arguing.

Justice Felix Frankfurter: I think if you're going to get -- put a -- call a -- put a cradle, the Solicitor General wrote a bridge for his name so that the presence of the Solicitor General doesn't come into the --

Mr. Edward Bennett Williams: Well, I --

Justice Felix Frankfurter: -- character conditions to foresight his predecessor.

Mr. Edward Bennett Williams: I'm sure that the Court is aware of the fact that it was not the present Solicitor General.

I did not quote him critically.

I quoted it as an intelligent observation of what might one day be before this Court.

Justice Felix Frankfurter: These are just little private things, but I'm constantly -- I hear this constantly from lawyers --

Mr. Edward Bennett Williams: Yes, sir.

Justice Felix Frankfurter: -- pull out a brief from a prior case --

Mr. Edward Bennett Williams: Yes, sir.

Justice Felix Frankfurter: -- and a great deal of extra line, I don't know what they do with their law.

Mr. Edward Bennett Williams: I did not intend to do it with a great deal of a (Inaudible) Mr. Justice Frankfurter.

In the following case, two years later, where this same factual situation was treated by the Court, Irvine against the State of California.

We had a flagrant situation.

A situation where officers of the State of California had gained access to the petitioners' dwelling house by use of a skeleton key, board a hole in his roof, listened to conversations which took place within his house and which were transmitted to a garage where the agents of the State of California had secreted themselves.

This Court found that this conduct was violative of the petitioners' rights under the Fourth Amendment.

This was articulated in a majority opinion and it was articulated in the dissents, but the majority of this Court was unwilling to impose upon the State of California the federal exclusionary rule on evidence illegally obtained.

But, the case is significant here because it's demonstrative of the fact that, contrary to the finding of the lower court in this instance, conversations are within the comprehension and purview of the Fourth Amendment protections, and I think that it's a fair statement to say that this Court was far more concerned with the calculated, long, invasion of the privacy of the petitioner in that case than they were over the momentary trespass upon his physical premises.

Now, what is the Government say about all this?

The Government doesn't contend, as I understand their position, that private conversations are not within the protection of the Fourth Amendment.

The Government, rather, says, "There's no trespass in this case."

That's the thrust of their position.

To that, we say there is a trespass in this case, number one, but, number two, that it is no longer necessary that there'd be an old common law trespass before there is a violation of rights under the Fourth Amendment.

On trespass, the record shows, number one, that this device was inserted into a party wall against the heating duct designed to service petitioners' premises and petitioners' premises alone.

The record shows that it was inserted seven and an eighths inches before it came into contract -- contact with the back of the register of the petitioners' dwelling house.

Justice Felix Frankfurter: Was the exact length of the party wall established on the (Inaudible)

Mr. Edward Bennett Williams: The record shows that it was between 13 and 14 inches, and that's the best that any witness was able to do for us.

Justice Felix Frankfurter: Nobody said beyond 14, did they?

Mr. Edward Bennett Williams: No one said it was beyond 14.

Justice Felix Frankfurter: We'll have a seven and an eighth will be more than half of those --

Mr. Edward Bennett Williams: It would be an eighth of an inch more --

Justice Felix Frankfurter: -- it would be an eighth of the --

Mr. Edward Bennett Williams: -- more than half.

Justice Felix Frankfurter: -- the trespass, to the extent of eighth -- one eighth of an inch, wasn't it?

Mr. Edward Bennett Williams: I --

Justice Felix Frankfurter: (Voice Overlap) on the basis of the record.

Mr. Edward Bennett Williams: I think it was a trespass far and excess of one-eighth of an inch.

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Edward Bennett Williams: I don't like to measure it in terms of eighth of inches in this instance.

Justice Felix Frankfurter: Well, but wouldn't that be one-eighth anyhow?

Mr. Edward Bennett Williams: If you adopt the Government's theory --

Justice Felix Frankfurter: But any --

Mr. Edward Bennett Williams: -- that this wall was owned as a tenancy by severalty and that each owned one-half and could do whatever he chose with his one-half, including remove the bricks, I suppose that it was a trespass only in one-eighth of an inch, yes, sir.

Justice Felix Frankfurter: Well, one-eighth exempt for your purposes, wasn't it?

Mr. Edward Bennett Williams: I don't --

Justice Felix Frankfurter: The purpose of trespass, I mean.

Mr. Edward Bennett Williams: It would be an eighth of an inch on that theory, but --

Justice Felix Frankfurter: Or is that de minimis?

Is that de minimis?

Mr. Edward Bennett Williams: There was a de minimis, I think, when it came into contact with the heating register of the petitioners' dwelling house and converted the heating system into a sound conductor system, Mr. Justice.

Justice William J. Brennan: Did he say, Mr. Williams, it was evident -- evidence in the perforation of the heating registry?

Mr. Edward Bennett Williams: Yes, sir.

Yes, sir.

That was found on inspection some time after the facts that were developed in this case, yes, sir.

Justice Felix Frankfurter: Do you tell a fellow who's stupid about these things how could it come in contact with the heating register unless it got beyond the eighth inch -- one-eighth of an inch?

Mr. Edward Bennett Williams: I'm not sure I understand the thrust of your question.

The heating --

Justice Felix Frankfurter: That may merely show that I'm ignorant, not that you don't understand.

Mr. Edward Bennett Williams: The heating duct was inside the wall.

Justice Felix Frankfurter: Yes.

Mr. Edward Bennett Williams: It was -- the bricks were channeled out so that the duct --

Justice Felix Frankfurter: Doesn't the heating duct of -- of the petitioners' house go to the half of the contiguous house?

Mr. Edward Bennett Williams: It did not because it necess --

Justice Felix Frankfurter: Well, then, it must have been an entirely on the -- on the petitioner's premises.

Mr. Edward Bennett Williams: It was sir, because of a seven and eighth --

Justice Felix Frankfurter: There must have been -- then, the contact must have shown, in it of itself, some trespass if the --

Mr. Edward Bennett Williams: That's --

Justice Felix Frankfurter: If the heating duct wasn't on the -- on the house from which they were operating, it must have been on the other house and, therefore, the other house couldn't have been the contiguous house.

Isn't that true?

Mr. Edward Bennett Williams: I -- I think that it's entirely correct to say that it shows as trespass when they came into contact with the heating duct, which were peculiarly designed for 408 21st Street, yes, sir.

Justice Charles E. Whittaker: But you don't contend, as I understand it, Mr. Williams, that the heating duct was entirely on the south half of the wall.

Your theory is that the whole wall was a part of the premises left to the defendants, isn't that it?

Mr. Edward Bennett Williams: My theory is this, Mr. Justice Whittaker.

That a party wall is no more or less than a joint investment by contiguous owners in support and privacy and that if the party wall is abused or if its purpose is aborted by either party, either by invading into the support or invading into the privacy of his neighbor, then there is a trespass.

All walls have, as I understand it, three functions.

One is for support, one is for security against intrusion by animals and elements and strangers, and the third is for privacy, auditory and visual privacy.

Now, a party wall has, for its purpose, support and auditory and visual privacy.

And, when one owner uses the party wall to invade the privacy of his contiguous owner by inserting a device of this kind, I say there is a trespass because if the Government's contention is true, if the Government's contention is true, it means that the Fourth Amendment gives no protection -- auditory protection to persons who live in row houses, tenement houses, apartment houses, or rooming houses.

The Fourth Amendment would then protect only those persons who lived in private dwelling houses, the walls of which were self-sustaining and wholly apart from other walls.

It would mean that in multi-family dwelling units, in order to be absolutely certain that one was having a private conversation, it would be necessary to adjourn to a room insulated in tinfoil, a windowless, heatless room and hold conversations where a device of this kind could not penetrate.

I don't think that the Fourth Amendment can be construed to extend its protection solely to those persons who live only in self-standing, individual, private dwelling houses which do not have any party walls.

Justice Felix Frankfurter: What your -- your argument -- this argument challenges the foundation of Olmsted, namely, that there is no search unless there is really a physical entry -- an unallowed physical entry into the premises from which you get information.

Mr. Edward Bennett Williams: It does --

Justice Felix Frankfurter: Isn't that true?

Mr. Edward Bennett Williams: It does challenge that, Mr. Justice Frankfurter, because I --

Justice Felix Frankfurter: I know, but that's what it amounts to, your challenge.

Mr. Edward Bennett Williams: I -- I don't believe that -- I don't believe that constitutional rights should be contingent upon the preservation of the scientific status quo.

I don't believe that.

And, in our brief, we show that, in the past decade, and we show it through illusion to the Senate subcommittee on constitutional rights hearings and their reports to the Senate, of which I believe this Court can take judicial notice, that today, parabolic microphones have been developed which are able to extricate sound from a room 50 yards away.

Shotgun microphones can extricate sound from a room 50 yards away.

Sonic beams can flood a room today 100 yards away and the conversations therein contained can be extricated, and that the only possibility of insulating one's self from that kind of an invasion is to use some form of aluminum that will resist this kind of wave and use a windowless, heatless room, or a window which is made up of conducting glass.

Now, I believe that, as Mr. Chief Justice Marshall said, constitutions, more than any other form of human institution, should approach immortality and that, in their application, the contemplation should be not what was but what may be.

And I think that today, with the advances of science, that the only way in which the Fourth Amendment can guarantee the protection and the right to be let alone, which it was designed to guarantee, is to eliminate from the law, the old common law concept of tort trespasses because, otherwise, it becomes a mere nugatory --

Justice John M. Harlan: On that --

Mr. Edward Bennett Williams: -- barren right.

Justice John M. Harlan: On that view, the sticking of this gadget into the wall becomes immaterial in that view.

Mr. Edward Bennett Williams: Yes sir, and that's what I said at the outset, Mr. Justice Harlan.

I believe there was a trespass here, but I would hope that when this Court decides the case that it would find the existence of a trespass is not the turning factor.

Justice John M. Harlan: Well, -- well, carried to the full extreme, is this an overstatement of your position that the Fourth Amendment prohibits the use of any electronics device in investigatory rights? Is that an overstatement of your position?

Mr. Edward Bennett Williams: Yes, that is an overstatement of my position.

Justice John M. Harlan: Well --

Mr. Edward Bennett Williams: I -- I say that it -- I believe that the Fourth Amendment should guaran --

Justice John M. Harlan: An electronic device that can protrude itself by sound effect or any other method into the inside of a person's house.

Mr. Edward Bennett Williams: I believe that the Fourth Amendment, in the frame of reference scientifically in which we are now treating it here today, if it is to give what it was intended to give, must protect one in his private family dwelling house from the kind of invasion that can, today, be affected by the use of electronic devices in lifting the sound from the room and transmitting it to places where the con -- the persons engaged in the conversation have no reason to believe that it is being transmitted.

Yes, I believe that, sir.

Justice John M. Harlan: Well, one aspect of your argument is for us to overrule Olmsted.

Mr. Edward Bennett Williams: I -- I hope the Court will do that but --

Justice John M. Harlan: And it is necessary in your --

Mr. Edward Bennett Williams: It is necessary to do that --

Justice John M. Harlan: In your broad approach --

Mr. Edward Bennett Williams: Yes, sir.

Justice John M. Harlan: In your broad argument, that is a constant, isn't it?

Justice Felix Frankfurter: It's necessary to overrule Olmsted.

Mr. Edward Bennett Williams: Yes, sir.

Justice John M. Harlan: Necessary to overrule Olmsted.

Mr. Edward Bennett Williams: Yes, sir.

It is sir.

But it is --

Justice Felix Frankfurter: Now, you're talking --

Justice John M. Harlan: It is the premise of --

Mr. Edward Bennett Williams: I have to say to you, Mr. Justice Frankfurter, it is not necessary to overrule -- overrule Olmsted to reverse this case.

I would hope that, in reversing this case, it would overrule Olmsted but this is distinguishable because, here, there is a trespass even within the comprehension of Goldman and Olmsted.

In the -- in the Olmsted case, they had physical contact with a wire, but the wire was much removed from the premises occupied by Olmsted.

It was a -- a telephone wire in the basement of a large apartment house, not in his unit.

Justice Felix Frankfurter: In answer to Justice Harlan, you were concerned merely with the ear.

What about the eye?

What about visual?

If I may take your figure of speech, because you talk about invasion is a figure of speech, what about visual ascertaining?

Mr. Edward Bennett Williams: I think if science should devise a means but --

Justice Felix Frankfurter: Well, I though that -- let's speculate because I'm certainly I'm no good at it, but with a telescope you can see things that you can't see with the naked eye.

What about using a telescope to look into the rule across the street?

Mr. Edward Bennett Williams: I think that --

Justice Felix Frankfurter: I mean one has to know where you go in (Voice Overlap) --

Mr. Edward Bennett Williams: Yes, that's right.

If -- if a device were such as a -- did for auditory -- for visual -- the visual sense, what this device did for the auditory sense, penetrated a wall like an x-ray machine, I would say it was a violation of the Fourth Amendment.

If it was simply a telescope, by which one looked across a street and looked into a window which the occupant could reasonably foresee, might be used in this way because he didn't pull the shade, then I would have -- have trouble with that because I think that it's -- where a -- a telescope is used and someone wants to protect and insulate himself from being seen, he could pull the shade, but there's no way to insulate one's self from this device except to go through the -- the process which I outlined a few moments ago for the Court, which I think is a wholly unreasonable thing to expect a citizen to do in order to converse privately in his dwelling house today.

Justice Felix Frankfurter: Well, are you then suggesting that, in determining these things, we should consider to what extent you can isolate yourself against outside of contrusion?

Mr. Edward Bennett Williams: I certainly think that is one factor which goes into --

Justice Felix Frankfurter: The people who've got nice traits --

Mr. Edward Bennett Williams: The evaluation of this question.

Justice Felix Frankfurter: The people who've got nice traits are protected but the people who just have poor, cheap curtains on, is that it?

Mr. Edward Bennett Williams: I -- I don't think that anyone, no matter how humble his dwelling house, cannot get privacy from visual invasion if he -- if he wants to do it, sir.

I don't think that is a factor.

Justice Felix Frankfurter: What do you mean it might prove telescope that it might get visual penetration in the means that are effective for the eye as they are for the ear.

Mr. Edward Bennett Williams: I -- I think that I could insulate myself from your television -- from your telescope regardless of what kind of a tenement I lived in.

Yes, sir.

Justice Felix Frankfurter: But not -- but not a thing that may well be now on the market or surely will be, whereby it can penetrate the shade that you pull down.

Mr. Edward Bennett Williams: If it can penetrate a wall, then I say that it's a violation because I cannot, within reason, protect my privacy as against it.

This -- yes, sir.

Justice Felix Frankfurter: Anyhow, that's not this case.

Mr. Edward Bennett Williams: That's not this case, no, sir.

Justice Potter Stewart: Mr. Williams, coming back to this case and to the -- to the question of whether or not there was a physical common law trespass, you told us that the owners show that the insertion of this spike was seven and an eighth inches and by -- I mean in the testimony, there was, therefore, at least a trespass of an eighth of an inch.

But, now, the fact is, isn't it, that the evidence is in controversy on that issue and isn't there a finding by Judge Holtzoff that there was no trespass, was no physical trespass?

Mr. Edward Bennett Williams: Well, he found -- he found two things.

Justice Potter Stewart: Why don't you read it that way?

Mr. Edward Bennett Williams: He found two things.

He found, on the one hand, that there was an insertion from six to eight inches but he said that, de minimis non curat lex, that he was not going to hang constitutional rights or liberties on a fraction of an inch and that he felt constrained to follow Olmsted and Goldman which he interpreted as holding as not protecting conversations within a dwelling house but only protecting touchable, tangible, material, physical things.

This is what I read Judge Holtzoff is saying.

Justice John M. Harlan: Could I ask you a question.

Mr. Edward Bennett Williams: Yes, sir.

Justice John M. Harlan: Taking your theory for a moment in its broadest application, would you draw any distinction between a case where the agents were just interested in snooping generally to see what they can pick up and a case where they directed their snooping to an activity where, independently of the snooping, they had reason to believe something crooked was going on?

Mr. Edward Bennett Williams: Well, I have trouble with the word "snooping," Mr. Justice Harlan.

If you mean --

Justice John M. Harlan: Well, I --

Mr. Edward Bennett Williams: -- snooping by this device.

Justice John M. Harlan: I mean, electronic

Mr. Edward Bennett Williams: I would say --

Justice John M. Harlan: -- snooping.

Mr. Edward Bennett Williams: I would say it didn't -- wouldn't make any difference what the fact was because I would think that if federal officers are going to use this type of device to extricate sound from private dwelling houses, it certainly ought to be, if this were possible, with the support of a warrant issued by a court, but I gravely doubt whether a warrant would ever issue for this kind of thing because, obviously, this is an evidentiary search and warrants, as I understand them, are not issued for evidentiary searches.

They're only issued for getting contraband or getting --

Justice John M. Harlan: Well, you --

Mr. Edward Bennett Williams: Fruits of crime or instruments of crime, so that, I don't think --

Justice John M. Harlan: You have a --

Mr. Edward Bennett Williams: -- this kind of device would ever be authorized by a search warrant.

Justice John M. Harlan: Well, you --

Mr. Edward Bennett Williams: And, I certainly think it should not be used without a search warrant if a search warrant would never lie for it.

Justice John M. Harlan: Yes, but how about procedure, like you have in New York telephone wires where you go to a judge and get permission to tap it.

Mr. Edward Bennett Williams: I believe that that is an entirely illegal and invalid procedure.

Justice John M. Harlan: Not in New York.

Mr. Edward Bennett Williams: I think it's invalid and illegal in New York.

I think that the Federal Government has preempted this feel --

Justice John M. Harlan: Well, that's a different --

Mr. Edward Bennett Williams: And that New York is --

Justice John M. Harlan: That's a different question.

Mr. Edward Bennett Williams: -- is a -- New York law enforcement officers violate the federal statute every time they do that, Mr. Justice Harlan.

Justice John M. Harlan: That's a different question.

Mr. Edward Bennett Williams: I'm sorry?

Justice John M. Harlan: That's a different question.

Justice Felix Frankfurter: But I think you have to meet Justice Harlan's question beyond the answer that you gave because, as you suggest, Congress tomorrow might provide for authorization for a search warrant.

And, there, it was a problem with the constitutionality of such law (Inaudible) authorization.

Just go beyond --

Mr. Edward Bennett Williams: Well, then, I suppose the question --

Justice Felix Frankfurter: Saying that on the present -- under the present authorization of search warrants, a search warrant wouldn't be issued.

Mr. Edward Bennett Williams: The question would then be whether this Court wanted to extend the traditional concept of the purpose for which warrants of search or issue, as I understand it, in all Anglo-Saxon jurisprudence.

Never have I known a court which authorized the issuance of a warrant of search solely for the securing of evidentiary material.

Justice Felix Frankfurter: Well, if it isn't a violation of the Fourth Amendment, then it isn't a question of choice for this Court that Congress passes the statute to authorize it, so that you will go back upon the proper construction of the Fourth Amendment --

Mr. Edward Bennett Williams: Yes sir.

Justice Felix Frankfurter: Not if this Court wants or doesn't want.

Mr. Edward Bennett Williams: That's right, but the Congress --

Justice Felix Frankfurter: You're not in the -- in the (Inaudible)

Mr. Edward Bennett Williams: The Congress has not seen fit to authorize this form of law enforcement insofar as I know the use of electronic eavesdropping for purposes of hearing private conversations in dwelling houses.

Now, if the Court please --

Justice Felix Frankfurter: But it's -- but if your argument is that this falls by virtue of the Fourth Amendment, is that right?

Is that your argument?

Mr. Edward Bennett Williams: My argument is that it falls by virtue of the Fourth Amendment, by virtue of the Fifth Amendment and that, in any event, this Court in the exercise of its supervisory power over the administration of justice in the lower courts, ought to outlaw the reception of this kind of evidence.

Justice Felix Frankfurter: Do you argue that it falls under the Fourth Amendment?

Mr. Edward Bennett Williams: Yes, sir.

Justice Felix Frankfurter: And, one -- one consents -- on amendment is enough in order to try this.

Mr. Edward Bennett Williams: That's right.

Justice Felix Frankfurter: If that is true, then how do you differentiate the case put by Justice Harlan, whether have an issue of the warrant for snooping purposes or merely for confirmatory of cumulative evidence? Why do you make a distinction?

Mr. Edward Bennett Williams: I make this distinction for this reason, Mr. Justice Frankfurter.

As I understand, the Fourth Amendment guaranteed the right of the people to be secure in their homes against unreasonable searches and seizures, but a necessary qualification of that right was that warrants might issue on probable cause to conduct a reasonable search and seizure.

But historically, as I understand the origin of the Fourth Amendment and the decisions under it, warrants of search issued in common law solely for contraband, fruits of crime, and instruments of crime.

And, I think that when the founding fathers wrote the Fourth Amendment into the American Bill of Rights, it was in this frame of reference and they never intended that officers of the law should be given ingress into the home of private citizens so that they could fair about in a search for evidence of crime.

I don't believe that, and so I say that if the Congress should pass such an Act authorizing warrants to issue or this kind of a search, that there would be a grave constitutional question which would be presented to this Court, notwithstanding the existence of the statute.

This is my belief, Mr. Justice Frankfurter.

Justice Felix Frankfurter: Well, if that's your view, then the short answer to Justice Harlan's question, if I may say so, in your point of view is that if Congress couldn't authorize it, it couldn't be done without authorization.

Mr. Edward Bennett Williams: It's --

Justice Felix Frankfurter: I think for snooping for -- concerning snooping or whatnot.

Mr. Edward Bennett Williams: I think it's just the same as the fellow who lived in 410 21st Street.

He couldn't authorize going into that wall because he couldn't have done it himself.

I feel that the two questions are analogous.

I -- I say -- and my time is running, but I say to the Court that it's my belief that, traditionally, in Anglo-Saxon jurisprudence, we have always held the axiom that a man's house is his castled.

It was articulated, I suppose, most eloquently by Mr. William Pitt as the Earl of Chatham.

Justice Felix Frankfurter: You could save same time and not to go --

Mr. Edward Bennett Williams: When he --

Justice Felix Frankfurter: You have to -- you go there --

Mr. Edward Bennett Williams: I don't intend to.

Justice Felix Frankfurter: If you -- if you will --

Mr. Edward Bennett Williams: But I --

Justice Felix Frankfurter: -- take that time and deal with the question of McNabb because you've raised that.

You said, a minute ago, even if you -- even if this is not a -- there's no constitutional barrier, you can invoke.

The supervisory power of this Court, do you mind saying something about that in your remaining time?

Mr. Edward Bennett Williams: Yes, sir.

As Your Honor is very well familiar with, in the McNabb case, this Court decided that, notwithstanding the fact that there had not been a constitutional violation of McNabb's rights by the illegal detention and by the reception in evidence of what otherwise was a wholly voluntary confession that this Court felt, in the exercise of its powers over the administration of justice over the lower courts, that it should exclude this kind of evidence.

I suppose, and I don't know, that the philosophical rationale behind this was that this Court has forever found upon the tenant that the end justifies the means in the administration of criminal justice.

And when a confession was obtained as the result of an illicit means, namely, the illicit detention of Petitioner McNabb, this Court was unwilling to allow the Government to enjoy the fruits of that illicit act and, therefore, invoke the federal exclusionary rule to strike it down and I feel that the case at bar is an appropriate case for the invocation of that rule.

For these reasons, I respectfully request that the Court reverse the judgment in the case at bar for the reasons which I have outlined during my argument that it was a violation of the Fourth Amendment or alternatively, the Fifth or in the exercise of its supervisory power that this is the kind of evidence that should be excluded from a federal courtroom in this land.

Thank you.

Chief Justice Earl Warren: Mr. Davis.

Argument of John F. Davis

Mr. John F. Davis: Mr. Chief Justice, may it please the Court.

I shall not attempt to defend as proper police action the use of such science fiction devices as Mr. Williams would describe.

I do not know whether it's possible for police officers to send, race into houses, and to find out what is going on as they drive down the streets.

But whether it is possible or not, that is not the case before us and I think we have enough with this -- with this device which we have.

This -- this is actually a rather simple hearing aid.

Basically, it cons --

Justice William J. Brennan: You call it a hearing aid?

Mr. John F. Davis: I call it a hearing aid.

[Laughter]

Justice Potter Stewart: And you miss another day on that.

Mr. John F. Davis: I -- I'll come back to that in a minute.

It consists of a microphone, which is this gadget here, with a sharp spike attached to it to conduct sounds.

This is itself not electric.

It's mechanical that conduct sound waves that are picked up by the spike to the microphone.

This device here has got a battery in it which is still live.

I tested it.

And --

Justice William J. Brennan: What are those things, Mr. Davis?

Mr. John F. Davis: These are switches.

There's an --

Justice William J. Brennan: Who makes that whole device?

Mr. John F. Davis: I do not know who makes it.

I --

Justice William J. Brennan: Can I buy --

Mr. John F. Davis: They are obtainable --

Justice William J. Brennan: Can I go into a hardware store and buy one?

Mr. John F. Davis: I don't think -- I don't think so.

There are, however -- they are -- there are other copies exactly like this.

I see a device exactly like this --

Justice Felix Frankfurter: But is it necessarily --

Mr. John F. Davis: So, I think it's been assembled as a unit by somebody.

Justice Felix Frankfurter: Well, is it necessarily usable only for illicit purposes or purposes which you wouldn't defend? I don't --

Mr. John F. Davis: I am defending the use that it is making.

Justice Felix Frankfurter: So I mean you are legally defending it what they're used for.

I thought --

Mr. John F. Davis: I think this has no use except as a device to -- to snoop with.

Justice Felix Frankfurter: Who -- but --

Mr. John F. Davis: The parts may have, but not this device as put together.

Justice Felix Frankfurter: But why couldn't I use it in the large house just the way they use them in intra-telephones?

Mr. John F. Davis: Well, I don't think -- you might try it, Your Honor, perhaps to hear a baby moving in the next room or something like that.

It could be used--

Justice William J. Brennan: There are better devices than that.

Mr. John F. Davis: It could be used for that.

[Laughter]

Justice Felix Frankfurter: But you said you are defending it.

Mr. John F. Davis: I am defending it, yes.

Justice Felix Frankfurter: Well, please free me up.

You started out what -- what was your opening sentence?

Mr. John F. Davis: That I didn't want to defend science fiction devices but I'm willing to defend hearing aids.

[Laughter]

Justice Felix Frankfurter: I thought you --

Chief Justice Earl Warren: Well, this was science fiction just a few years ago, was --

Mr. John F. Davis: No, I think not, Mr. Chief Justice.

Chief Justice Earl Warren: Like my --

Mr. John F. Davis: I think that -- I think not.

I think this is -- no -- no real development, scientifically over the device used in Goldman, and I was about to describe the nature of it so you could see that --

Chief Justice Earl Warren: How about Olmsted?

Mr. John F. Davis: Olmsted, well, no.

Chief Justice Earl Warren: But --

Mr. John F. Davis: No, no.

Chief Justice Earl Warren: This was --

Mr. John F. Davis: No.

Chief Justice Earl Warren: Science -- science fiction in my day, wasn't it?

Mr. John F. Davis: I don't think so.

They had microphones then as they do now.

I don't know that they had the spike attached.

I think that that's probably not invention to put a spike on it.

Justice Hugo L. Black: What's the difference between that system and the telephone system as this worked?

Mr. John F. Davis: There isn't any basic difference than this.

This has got the microphone which you speak into in the telephone.

I don't know if it's a crystal microphone or a carbon microphone.

I just don't know.

But it -- and it's -- this -- this device here is the electric power pack with a -- with a little battery in it that amplifies the sound so it could be heard in the -- in the earphones.

It's not like radar.

This doesn't bounce waves off from anything that comes back to anybody.

This is just a -- a microphone which is made more sensitive to sounds which come to it by the insertion of the spike in it.

Justice Tom C. Clark: Where are the earphones attached?

Mr. John F. Davis: The earphones come from a wire -- that comes from the power pack --

Justice Tom C. Clark: Over here.

Mr. John F. Davis: To the -- it's all -- there are three units that connect together by wire.

I think the use of this device in the present case illustrates both its use and its limitations.

The officers in their apartment next door to the gambling headquarters could, without the use of any aids whatsoever, hear what was going on in the next room.

There's evidence in this case at page 68, part of the evidence in the trial, that they heard gambling transactions without the use of any device, at the very bottom of page 68, "In the afternoon about 2:45, I entered the premises and was able to overhear Mr. Martin and Mr. Schwartz quoting the yards in the baseball game."

"On that date, the 29th, you did not use any electronic device."

"No, sir.

I just had my ear to the wall."

This was evidence in this case.

So, they could hear but they couldn't hear very well.

There were things that -- that they missed.

So, they aided their hearing somewhat by taking an ordinary water glass, a tumbler, and they put it against the wall and they listen to the bottom end of this glass.

This way, they could hear better.

With this device which they pushed underneath the -- the baseboard into a crack which exited there, the evidence is clear that this wasn't -- no structural damage change was made in the wall.

There was an aperture and this was merely pushed in by the man's thumbs.

It wasn't hammered in.

There was no change made in the party wall.

That was pushed under the -- under the -- the baseboard and, with this, they could hear very well because we find that the evidence in this case is overwhelmingly specific that these particular defendants were engaged in violation of law.

Now, the petitioner does not claim that this spike went inside of the Defendant's room in the sense that it penetrated the wall and came through.

There was a question whether it penetrated the duct.

Justice William J. Brennan: Well, it wouldn't because this isn't long enough to penetrate a 14-inch wall, isn't it?

Mr. John F. Davis: No, it isn't, and it didn't.

And, there's no claim that it did.

There is --

Justice William J. Brennan: (Inaudible)

Physically, it couldn't.

Mr. John F. Davis: No, it couldn't.

Then, the question was asked whether it penetrated the rear and the back of the heating duct.

Now, in the first place, the evidence is -- it's not admitted that this ever touched the heating duct.

Witnesses for the defendant claimed that it had been pressed in at a place where it touched the heating duct and it made small indentations, not perforations, but indentations on the back of that duct.

This is evidence solely by the defendants' witnesses.

It's not the Government's -- governance evidence was that it would not have gone far enough to touch that duct even if it had been in a line with the duct.

Chief Justice Earl Warren: What did it touch in the -- according to the testimony of the Government?

Mr. John F. Davis: It touched some unidentified obstruction in the wall, something --

Chief Justice Earl Warren: Was there something --

Mr. John F. Davis: (Inaudible)

Chief Justice Earl Warren: Was there something that was resonant?

Mr. John F. Davis: Well, I don't know if that was resonant or not.

It was something which enabled them to hear through the -- through the earphones.

It was something which conducted sound, if that's what you mean by resonant.

Chief Justice Earl Warren: The Government's testimonies say it did not touch the -- the heating duct.

Mr. John F. Davis: The Government's testimony didn't say it didn't but if the Government's -- it would be impossible for it to touch the heating duct if the Government's testimony is taken as accurate because the Government's testimony of the three persons who were present when this was inserted would have had it inserted about five and then -- five and an eighth inches.

Chief Justice Earl Warren: Did they measure it?

Mr. John F. Davis: The -- well, they didn't measure it but they were -- each one of them testified how far that it had gone in and Mr. Williams cross-examined one of the witnesses and had him mark off on just how far it was and it was measured then from the best of his -- best of his knowledge, and that's at page 102 and 103.

And it shows that it was much less than -- that it was less than six inches when it was inserted.

So, if this evidence is belived, it couldn't have -- and the evidence as to heating duct is believed, he couldn't touch because it wouldn't go far enough.

I may say that I think the burden of proof on their being an illegal intrusion is on the -- on the petitioner in a case like this because he's got the heavy burden of showing the evidence shouldn't be introduced.

And, the truth of the matter is --

Chief Justice Earl Warren: May I ask you, what -- what did that strike in -- according to your theory?

Mr. John F. Davis: We do not know what it struck.

We could not see in it all we know, the evidence -- all the evidence says is that it struck some object in the wall which gave.

Justice William J. Brennan: And, in order to work, as I understand it, is this so Mr. Davis, it had to strike something?

Mr. John F. Davis: Well, the evidence which the defendant put in said that it had to come up against a sounding board and --

Justice William J. Brennan: Did the Government --

Mr. John F. Davis: -- the Government said it could be hear better if it was against something that served as a sounding board.

Justice Felix Frankfurter: And wouldn't something have to be in the petitioner's part of the house?

Mr. John F. Davis: No, no, not necessarily.

Any -- any device where the -- that would vibrate to the sound to the voices.

The voices came right through the --

Justice William J. Brennan: The wall.

Mr. John F. Davis: -- the wall that could have been put entirely against the baseboard if the -- if the sound waves would hit the -- the officers' ears as they sat inside, it would hit the baseboard and if -- presumably could've picked it up just by putting the point of it against the baseboard.

Chief Justice Earl Warren: Suppose they drilled right into the wall and inserted at the -- the distance that you say the Government testimony showed, would -- would there be any -- any effectiveness to the instrument?

Mr. John F. Davis: I wouldn't have been in -- I don't know whether it would be effect -- there would be effectiveness to the instrument because sound waves were conducted through this wall and, presumably, this would have amplified them somewhat.

I mean en -- when the closer contact you'd get with any part of the wall, I would think, would -- would improve it.

Justice Felix Frankfurter: Is that --

Justice Felix Frankfurter: Does that mean that --

Chief Justice Earl Warren: No, go ahead.

Justice Felix Frankfurter: Does that mean that if it was just been inserted one inch in the neighboring house, the sound -- the sound would have been amplified to the --

Mr. John F. Davis: It would have been amplified somewhat, Your Honor, whether --

Justice William J. Brennan: Well, I know, but would it have been amp -- is there evidence that it would have been amplified to the degree it was heard as easily as it was?

Mr. John F. Davis: No, there's no such evidence.

All I have --

Justice William J. Brennan: But was there any evidence of the --

Mr. John F. Davis: Well, there is evidence --

Justice William J. Brennan: -- the degree to which it would have been amplified?

Mr. John F. Davis: There is evidence, Your Honor, that these people could hear these sounds sitting in the next room without any device, which is evidence.

Not -- maybe the --

Justice William J. Brennan: Well, anyone who has lived in an apartment knows --

Mr. John F. Davis: Yes.

Justice William J. Brennan: -- who's going to hear sounds from the --

Mr. John F. Davis: So that, any --

Justice William J. Brennan: adjoining apartment, but --

Mr. John F. Davis: If this is so --

Justice William J. Brennan: You can't hear the conversation.

Mr. John F. Davis: If this is so, the sound waves are coming through into this room so that they didn't have to -- in order to reach this microphone and amplify it, it would not -- I mean, we can -- there's no evidence to this effect, but it's -- it's obvious that when you got a microphone with a device like this that you could pick it up inside the --

Justice William J. Brennan: Well, what I'm trying to get is was there evidence that all they needed to do was to touch that point against the wall and this would have permitted amplification?

Mr. John F. Davis: There is no -- there is no testimony to that effect.

I say it can be -- can be drawn from the evidence which is in there.

Justice Felix Frankfurter: You could have say that -- you could have said that to the extent to which amplification is made for the -- the sounds are more distinguished and one hears it from across house to house or, across apartment to apartment.

At least, clearly you would say that's outside the scope of all the people.

Mr. John F. Davis: That's right.

I -- I would say that this was merely hearing more carefully.

I mean, if -- if they got a man -- if -- if they had a man with unusually acute hearing that they took along with them to listen because they couldn't hear, this would be a similar -- a similar thing.

This is a device which enable the -- I -- I want to say that I find this device not entirely satisfactory to amplify sounds --

Justice William J. Brennan: Have you tried it?

Mr. John F. Davis: I have tried it.

I have the detective from the police department bring one up to my office and I tried it in the office.

I couldn't tell --

Justice William J. Brennan: Well, they're government walls though, aren't they?

[Laughter]

Mr. John F. Davis: Well, I tried it underneath the doors.

I couldn't tell whether Mr. Spritzer was talking to the Solicitor General or his wife.

I just [Laughter] couldn't tell it.

Justice Felix Frankfurter: You seem to have a kind of fun with this instrument.

[Laughs]

Justice Tom C. Clark: Can you turn up the power like you would with a little radio?

Mr. John F. Davis: This one has a low and a high power.

The one I had was a little different.

It had a knob on it.

It didn't -- it didn't make it any better.

I think that it would be --

Justice William J. Brennan: Well, how -- how far did you insert it in Mr. Spritzer's wall?

[Laughter]

Mr. John F. Davis: Well, I stuck it under the door because the -- our baseboards weren't up enough.

Maybe -- I don't know that it was a bad test and there's no evidence.

Justice William J. Brennan: You probably didn't get it again in the heating ducts.

[Laughter]

Mr. John F. Davis: Mr. Justice, this isn't -- is a -- is an exhibit in the case and, in all seriousness, I think that this exhibit should be examined by the individual -- any members of the court that are interested in it because I think that this case should not be decided on some theory that we have here an infernal instrument such as are well describes which is going to enable people to penetrate into other people's privacy beyond a certain extent, and I think you ought to know the particular device which we have here.

And, as I say it's an exhibit --

Chief Justice Earl Warren: Well, what's the purpose of the spike if it isn't to penetrate?

Mr. John F. Davis: It is.

It's to -- it's to increase the efficiency of this microphone.

It's to get to something and to conduct the sound from it to the microphone.

Justice Felix Frankfurter: Well, the suggestion -- the suggestion of your admonition to the Court or your helpless suggestion to the Court is that we ought not to outlaw cruel things but merely very refined instruments.

Mr. John F. Davis: Well, no.

You ought not to change -- what I mean is you ought not to change the law on the theory that there are some superb race that people are going to use to -- to penetrate to the very depths of our houses until that -- until there is such a thing.

I don't know if there is or not.

The references to the -- to the Senate Committee hearings are -- are interesting.

There -- there is testimony on these -- on these gadgets.

People got up and talked about them.

I don't think that proves that -- what they'll do, but there is -- there is testimony of these things in the future.

Justice Felix Frankfurter: Well, one wouldn't be borrowing sublet when assumed that there'll be improvements on these things that their legitimate does, does one?

Mr. John F. Davis: Well, there has been.

As far as I know, no one has had any hesitation about using microphones since Goldman's day and, if this is as much as they can do since Goldman, I think we're fairly safe for some time to come.

Now, let's talk about this hitting the -- the heating duct and the -- and the heating system in the apartment becoming a gigantic microphone.

In the first place, the testimony does not establish that it hit the heating duct.

It may have, it may not.

We don't know what it hit.

If the Government's testimony is correct, it didn't go far enough to hit the heating duct.

If it did hit the heating duct and if the heating system became a gigantic microphone, the only things that were heard in the next room were from the room next door where the gambling operations were taking place and, in one case, it was heard partly by ear and partly with this machine in the stairway, in the entryway where people came in downstairs, just as they came in -- in the house.

Justice Felix Frankfurter: Anything heard from the second floor?

Mr. John F. Davis: Yes, well, the gambling premises were on the second floor.

This was on the second floor.

This is called a dwelling house and it is a dwelling house in a sense that it's made for people to live in, but no one was living in it.

It was -- this was used solely as a gambling headquarters at the time of this -- of this operation.

Chief Justice Earl Warren: Was there anything in the test -- testimony offered by the Government to the effect that only the conversation in one room could be heard through this?

Mr. John F. Davis: No, no.

If in fact --

Chief Justice Earl Warren: You think that (Voice Overlap) --

Mr. John F. Davis: -- it's clear that it could be heard in the stairway in the hall where people came in as well as that one room, but that is the extent of the testimony.

Chief Justice Earl Warren: They -- they -- do they contend that it could not be heard in all the rooms of the house?

Mr. John F. Davis: Well, there's no evidence one way or the other on that.

I don't know whether it could be heard in the other rooms or not.

Justice Felix Frankfurter: Did the noises come from the room into which or toward which the spike was projected or from the room above?

Mr. John F. Davis: From the -- it came to the room directly opposite, the room where the spike was inserted except, as I say, for one instance where a man came in and knocked on the door and the agents could hear him come into the house and could hear him speak.

And in that case, he wasn't in the room and they could hear that one conversation, and that is the --

Justice Felix Frankfurter: What length of time did the -- did the overheard conversations take place?

Mr. John F. Davis: Well, it took place on a series of days.I think there were three or four days.

What would happen is that the agents, and these agents were Internal Revenue agents and the Metropolitan police, would enter this house around noon or little before noon and the defendants in this case would come in around -- I think, early in the afternoon and they would conduct their betting operations for that day's ballgames and the prize fights that night throughout the afternoon into the evening.

And so, the agents would be there eight hours from noon until 8, 10 o'clock.

Justice Felix Frankfurter: Was the recordings that were made of the overheard conversation voluminous?

Mr. John F. Davis: There were no recordings made.

Justice Felix Frankfurter: Well, I mean or recollection, were they voluminous?

Mr. John F. Davis: There were -- there were many, yes.

There were -- the -- the testimony in the case shows not four or five bets being placed, but hundreds of bets being placed that were heard.

I mean, they didn't attempt to give them all.

They -- they gave the testimony as 10 or 15 on this day and 10 or 15, but it's quite apparent they heard hundreds of bets being placed.

Justice Felix Frankfurter: And the agents relied solely on their memory for what they heard?

Mr. John F. Davis: No, they had notes that were made in which --

Justice Felix Frankfurter: Well, were the notes voluminous?

Mr. John F. Davis: I -- I don't know.

I really don't know.

Justice Hugo L. Black: Mr. Davis --

Justice Tom C. Clark: (Voice Overlap) it's your room -- there were persons in the other rooms you have?

Mr. John F. Davis: Were there persons in the other rooms?

There's no evidence that anyone went anywhere, but this single room that was used as a betting headquarters.

Justice Tom C. Clark: Did it conduct a raid after this?

Mr. John F. Davis: Yes, on the basis of this -- on the basis of the evidence which was obtained -- on the basis of what was overheard, they got the search warrant and arrest warrant, and they --

Justice Tom C. Clark: Did they find anybody in any other rooms there?

Mr. John F. Davis: Well, one of the people they picked up is he left the building.

The other -- another person was in the -- in the gambling room.

No one was in any other room at the time they went in.

Justice Hugo L. Black: Mr. Davis, you referred us to page 68 with reference to testimony of conversations that were overheard before this contrivance was put in the wall?

Mr. John F. Davis: No, not before but without the aid of this contrivance.

This, actually, was heard on the 29th and -- and the contrivance had been used in the 22nd, 23rd and 24th as I recall.

Justice Hugo L. Black: Was there any effort -- does the evidence show any effort to give before the contrivance was put in the wall?

Mr. John F. Davis: The evidence --

Justice Hugo L. Black: Or was it put in -- I just don't understand quite the sequence of events.

Mr. John F. Davis: No.

They -- they did go into the -- into the building first, the place where they had permission to go, 410.

They went in without the device, and I think the evidence is that they felt that they could hear something next door.

They didn't have the device.

They went in early in, as I remembered early in April, maybe March, to find out what was going on and they've heard sounds.

They didn't hear any illegal transactions.

They've got no evidence at that time, but it was after they had been in that they then got the electronic device and listened, as I remember it.

Chief Justice Earl Warren: Mr. Davis, I've been wondering if there's nothing in the evidence to show that this spike hit -- hit the heating apparatus or nothing in the evidence to show that they could hear through it, but many part of the building.

Where did -- where did Judge Washington get his --

Mr. John F. Davis: I --

Chief Justice Earl Warren: -- his information --

Mr. John F. Davis: I --

Chief Justice Earl Warren: -- to the effect that this created or established a giant microphone?

Mr. John F. Davis: I am -- I may have misspoken.

I didn't mean there was no evidence.

The defendant's evidence was that this struck and pushed against the microphone and the defendant brought in experts who said you could hear all through the building.

Chief Justice Earl Warren: And you say there was no evidence on the part of the Government contrary to that?

Mr. John F. Davis: No, Mr. Chief Justice.

I'd say, if the evidence in the part of the Government is to be given credence, it could not have touched the heating duct.

They didn't -- there was no occasion when the Government witnesses were on the stand to testify as to the heating duct.

But, it's impossible with the description of how far it goes into the wall for this spike to have touched the heating duct if the Government's witnesses are to be believed because they said it only went in five and one-eighth inches and it -- that's not far enough to touch the heating duct.

Chief Justice Earl Warren: What would have it touched if he didn't touch that?

Mr. John F. Davis: It could have touched a log, for example, the --

Chief Justice Earl Warren: The what?

Mr. John F. Davis: A log, a -- a board, a piece of -- a strip in the wall, it could have touched -- I don't know.

Any number of things could be involved.

Chief Justice Earl Warren: We'll recess.

Print this transcript Transcript: 

Argument of John F. Davis

Mr. John F. Davis: If the Court please.

I want to say a word about what the record shows on whether or not there was a trespass in this case.

Really hinges upon the same testimony which is involved in -- and we were discussing before lunch about how far the needle protruded into the wall.

The evidence of the Government witnesses -- under the evidence of the Government witnesses, this would not have protruded beyond the middle line of the party wall.

There is evidence of the police officers who had examined the plans of the house, as well as the rooms themselves that the walls were 13 to 14 inches thick and that includes trimming the baseboard and things.

But -- so that we get a -- we get 13 or 14 inches and the question is whether -- if you're going to find out whether there's been a crossing of the standard line, it would presumably have to be between six and a half and -- and seven inches but this would've had to go into the wall.

Justice William J. Brennan: (Inaudible)

Mr. John F. Davis: He said six to eight in the -- in the introduction.

He -- he -- that's right.

Justice William J. Brennan: (Inaudible)

Mr. John F. Davis: He said that it was a party wall and that the intrusion into the party wall, if there was a trespass, it was de minimis and that he wouldn't consider it a trespass.

Justice William J. Brennan: (Inaudible)

Justice William J. Brennan: No, he did not make --

Justice William J. Brennan: -- six to eight.

Justice William J. Brennan: His only statement was that that's right.

It was six to eight.

He made no finding that it didn't go any further than that.

Justice Potter Stewart: How about the -- getting away for a moment from the facts of the -- of the trespass, how about the law of the District of Columbia as to party walls?

Is it clear as to who owns what in a party wall?

Mr. John F. Davis: In a party -- yes, the principle cases that followed the case, which is cited in our brief, and District of Columbia law is, apparently, the same as the law in most of the jurisdictions in the United States that each party continues to own up to the division line, but he owes their cross-easements of support --

Justice Potter Stewart: For support.

Mr. John F. Davis: -- mutual support for the -- for the others, so that you can't pull down.

You owe -- you owe the other man a right to keep it there, to keep its post up.

Justice Potter Stewart: But you have an undivided ownership in the wall up to the midpoint.

Mr. John F. Davis: Up to the center -- centerline.

So that, under that law, if that -- and I think that is the law in the District -- the Fowler case, I would think, established it.

If we did go beyond the centerline, there was an -- crossing over the -- into his property in that sense, I may say that I do not concede that the mere fact, if it were established that we crossed over the centerline, I don't think that establishes that there was an illegal search because, by and large, the law is that there has to be an intrusion inside the house, not a crossing over of a property line, not a trespass, but an intrusion into the -- breaking into the other person's house.

I think the leading case on that is the Hester case, which Justice Holmes decided, in which there was an admitted trespass on the land of the -- of the defendant but this, itself, didn't make an illegal search since there was no breaking into -- into a house involved.

Justice Felix Frankfurter: The point was just to the house.

Mr. John F. Davis: Pardon?

Justice Felix Frankfurter: The point was that it wasn't the house, the home where people lived, in the Hester case, was that it?

Mr. John F. Davis: Well, there, they saw people come out of the house with jugs of -- of moonshine and --

Justice Felix Frankfurter: Yes, but the point is that the protection is of --

Mr. John F. Davis: Of the house, that's right.

But there has been --

Justice Felix Frankfurter: (Voice Overlap) say as the party wall is part of the house, isn't it?

Mr. John F. Davis: Well, yes, but the question is --

Justice Felix Frankfurter: That is not the problem.

Mr. John F. Davis: -- did he go inside -- inside the house.

I mean, he wasn't where he -- he believes to be --

Justice Felix Frankfurter: Well, I'm suggesting the Hester case, wasn't thinking about (Voice Overlap) --

Mr. John F. Davis: No, the Hester goes -- that is true.

It didn't deal within -- the Agnello case is a case where they did go up on the porch and looked through a window but it isn't discussed in the -- in the opinion.

Justice William J. Brennan: Well, Mr. Davis, may I get back to this penetration.

Don't we have to take in the finding of six to eight inches if there was a penetration, whatever the significance may be, more than halfway through the party wall.

Mr. John F. Davis: No, I think you have to take that there is no definite finding one way or the other because if it were six --

Justice William J. Brennan: Am I not right that most of the Government's witnesses put the penetration at less than six inches?

Mr. John F. Davis: That's right.

Justice William J. Brennan: And the defendants --

Mr. John F. Davis: But -- but -- excuse me, I didn't mean to interrupt but the Government's witnesses testified after Judge Holtzoff had made the -- after he'd made his finding.

Their -- their testimony came in the trial itself and he was making this statement on the basis of statements by counsel in the argument before him and really stipulated facts before him.

And, I --

Justice William J. Brennan: (Voice Overlap) --

Mr. John F. Davis: Well, yes, except that the United States Attorney didn't ever stipulate that it was six to eight inches.

I mean -- but that was Judge Holtzoff's conclusions that he did --

Justice William J. Brennan: What -- what bothers me for -- if it should become critical in the decision of this case whether there was penetration more than halfway through, what are we to take as a fact?

Mr. John F. Davis: You'll have your choice of sending it back for reappraising of the evidence or reading the evidence as it is -- it is here and making your own determination because there is no determination by Judge Holtzoff and the Court of Appeals said there was evidence on which the judges might have determined that it didn't go halfway and that's all the Court of Appeals said on the thing.

On the other hand, the dissenter in the Court of Appeals said that it went six to seven inches or something like that, I think.

Justice Charles E. Whittaker: (Inaudible)

Mr. John F. Davis: No, because it -- it wouldn't have been submitted to the jury because the question of the legality of introduction of the evidence.

This evidence was introduced before the jury but no -- no instructions were given and nothing was submitted to the jury.

Chief Justice Earl Warren: Mr. Davis, what does the evidence show as to how far it would have been necessary to insert that point, that spike, in order to reach the heating system?

Mr. John F. Davis: The heating system?

Chief Justice Earl Warren: Yes.

Mr. John F. Davis: Well, you can -- I guess, the only evidence would be on that, would be the depth of the duct and there's evidence -- the heating duct which is said to be -- well, the Government -- the Government witness wasn't very clear on it.

Four to six inches.

He said this metal duct itself was four to six inches.

The defense gave more accurate or more precise, I don't know if it's more accurate but more precise testimony on the depth of it, and that appears towards the end of the record.

I don't find it.

I -- maybe I'll find it in a minute.

But then, the only way to find out how far it would have to go would be to take that testimony of -- let's say -- let's take for the minute, six inches and it's --

Chief Justice Earl Warren: I beg your pardon?

Mr. John F. Davis: Let's assume that the metal duct was six inches deep and that it was one inch from the wall.

Then, we would -- we'd know that it would take up about seven inches of the 14-inch wall.

If it were less than -- here is the -- the testimony on the depth of the duct from the defendants' witnesses appears at pages 211 and 212.

He says that the duct was four and nine-sixteenth inches from the wall.

It went four and nine sixteenths.

So, taking actually five, it would have taken seven inches to hit it.

Justice Potter Stewart: This is four and ninth-sixteenth from the defendants' wall, is that it?

Mr. John F. Davis: That's right.

Justice Potter Stewart: (Voice Overlap) --

Mr. John F. Davis: So, it would've -- if that would -- if that testimony is to be given credence and if it did hit the duct, then it would have to gone in about seven inches, at least, which would be about halfway.

Chief Justice Earl Warren: Well, now, I'm an -- I don't get that.

I don't -- if those distances, if it's four and three quarters inches, four and three quarters inches from where?

Mr. John F. Davis: No.

That -- the metal piece itself, the metal piece which runs from the pipe out into the room is four and three quarters inches.

But, when you refer out to the wall and get the molding on, it -- it comes from the outside wall to the back of the duct.

Looking at it from the point of view of the petitioners' side becomes five and nine-sixteenth inches, if these -- if these figures would be given complete credence.

This is the defendants' testimony.

So that, if this is so, it would have to be -- so, that's nearly -- that's five -- a little over five and one-half.

It would need six -- it would need more than halfway to touch the duct.

It would have had to have been inserted more than halfway to touch this duct.

That's why the defendant introduced this testimony because he was tempting to show that it did go more than halfway.

I may say that if we're going to take these measurements, we ought to examine them pretty carefully.

Now, this becomes very technical and I -- and I don't want to rely on it but their testimony as to where the -- the heating entrance was into the room shows about 18 inches from the front wall of the house, and they say when they looked in there, they saw indentations on the metal about two inches, I think it is, from the end.

So, this will put it about 18 inches from the front of the -- from the front wall of the house.

On the other hand, when they go around to the other side, they say that the indentation where the spike was inserted was 18 inches from the front wall.

Well, this will mean that the spike would not have gone in straight when they measured -- when they measured the distance, the spike would had gone in through the indentation to the -- in the shoe molding to the dent in the thing, it would go in at an angle and then measurement as to the distance, I think, may not be accurate.

I -- these things are difficult to appraise and this Court ought not to be called on to make that kind of finding of fact, but --

Chief Justice Earl Warren: Well --

Mr. John F. Davis: -- if you want to go and analyze those facts, well, you want to bear that kind of thing in mind.

Chief Justice Earl Warren: Well, do you think -- do you think this case should turn on whether they were in there five and three quarter inches or six and three quarter inches?

Would you want the -- would you want the conviction of this man to stand on which of those --

Mr. John F. Davis: No, I --

Chief Justice Earl Warren: -- since there were accurate?

Mr. John F. Davis: No, I -- I think this conviction -- the conviction of this man should stand in any event.

I think we have a somewhat easier case.

I think it falls much clear -- more clearly in line with Goldman if there was no trespass.I think -- I think we would.

I think the --

Justice Hugo L. Black: If there were no what?

Mr. John F. Davis: If there were no trespass, if there were no crossing over of the property line.

Chief Justice Earl Warren: And --

Justice Hugo L. Black: Is that controlled by whether you think that's been (Inaudible)

Mr. John F. Davis: No, it's controlled on whether or not it went more than halfway through the wall.

Chief Justice Earl Warren: And -- and would you be willing to rest that on the Court's finding that they went in there somewhere between six and eight inches?

Mr. John F. Davis: No, I don't think that's really a finding of fact on the entire record because it was made before else by Jude Holtzoff on a preliminary hearing before the evidence was in and I don't think that that is determinative of -- how far it went.

Chief Justice Earl Warren: Isn't the matter -- isn't that the basis on which he made this finding?

Mr. John F. Davis: Well, he made the finding originally.

It was renewed before Judge Jackson, both at the beginning of the testimony and, again, at the end of the Government's case after the evidence had been introduced and on the basis of all of the evidence.

The Court then denied the motions to exclude it.

So that, you have the preliminary finding by Judge Holtzoff just made on oral argument and then you have the more definitive decisions by Judge Jackson made on the evidence before him.

Chief Justice Earl Warren: He didn't take the -- he didn't take the finding of Judge Holtzoff --

Mr. John F. Davis: No, he heard all the evidence.

Chief Justice Earl Warren: The evidence --

Mr. John F. Davis: All the evidence in the case was introduced before him.

I mean, all the evidence we have that we're giving on the distance that went in was introduced before Judge Jackson, and he made the determination on the motion on the basis of that evidence.

Chief Justice Earl Warren: There were no instructions on the subject.

Mr. John F. Davis: There were no instructions for the jury.

He didn't leave it to the jury.

Justice Tom C. Clark: Then Judge Holtzoff's conclusion go up on the penetration point?

Mr. John F. Davis: No, I think Judge Holtzoff felt that a party wall -- there'd be no trespass in going into a -- it was common.

I think he felt there was common ownership of the -- best way I read his opinion that there was ownership of the party wall, and I think that is not -- the property concepts are not designed for this -- for this purpose and they don't fit it very well, but I -- I think that that is not the property law in the District of Columbia.

I think the property law is set forth in Fowler that if there is a property line running down through the middle and there isn't common ownership of the wall.

But, Judge Holtzoff said -- would say that tenants and common cannot trespass on each other's property.

Each one of them has got a right as long as he's not injuring the other.

Well, I think that if this case is decided on the basis of the law today, that the action of the officers in this case was not in violation of the Constitution.

I think the case is directly covered by the decision of this Court in the Goldman case and that it's -- by covered, by equal implication from the law in the Olmsted case.

I would state that law, I think, as follows.

That, if there is no physical illegal intrusion into the premises, there is no illegal search or seizure through overhearing or through seeing what takes place in those -- on those premises even when one uses electric devices to do it.

I think Justice -- Justice Burton really stated the law in accordance with this in his dissent in the On Lee case.

He said, "This Court has generally held that, in a federal criminal trial, a federal officer may testify to what he sees or hears take place within a house or room which he has no warrant or permission to enter provided he sees or hears it outside those premises.

This holds true even where the officer supplements his hearing with a hearing aid."

I didn't make up at all, but "with a hearing aid, detectaphone, or other device outside the premises."

Justice William J. Brennan: Detectaphone or other device.

Are they synonym?

Mr. John F. Davis: Not entirely.

This merely enables him to hear more distinctly where he is, what reaches him from wherever it may come.

He and his earing -- hearing aid pick up the sounds outside of rather than within the protected premises.

Well, if this is the law, and if it stands up until this case, then the question really comes down to whether or not electronic devices have developed to such a stage or the practice of electronic snooping has developed to such an extent that this Court now feels that it's necessary that this law should be changed.

And, I suggest that, in making a determination of that kind, it should be based upon what we have before us and it shouldn't be based upon some type of electronic devices which are mysteriously -- described in -- in some other context.

Chief Justice Earl Warren: Mr. Davis, may I ask you the question that Mr. Justice Harlan asked Mr. Williams?

Do you make any distinction so far as this right that you're talking about now in the police officers between the situation where they're just going around generally and listening into people's homes or the situation where -- on the other hand, where they suspect that maybe there's something going on illegally in there?

Do you make any distinction or do you say that all of them are --

Mr. John F. Davis: Are legal?

Chief Justice Earl Warren: Are proper.

Mr. John F. Davis: Well, I -- I think there may be -- I don't know how to answer the question in terms of just going around listening because I think that if police officers are -- are patrolling and they hear things, whether they -- I mean, if it's their job to keep the peace and they're patrolling, and even if they have some device that helps them hear, if they hear things that are breaking the law, that this is -- this is not improper.

I think -- I do think that you reach a stage of intrusion upon people's privacy where you reach violations of the Fifth and the Fourteenth Amendment, as -- as the Court implied in the Rochan case and some members of the Court and the Irvine case, that there can be such unplesh -- unpleasant intrusions into people's privacy that it violates the Fifth Amendment.

And, in that respect, we do not have -- we've got a rather careful situation here.

I mean, here, the officers had information that these people were carrying on a gambling operation.

They observed it from across the street and they saw people whom they knew had -- to be -- to have been gamblers, they had police records, entering and leaving the premises.

They found that the kind of equipment had been installed in the house which is used in this, namely, the telephone with three or four lines going in.

It was on this basis that they began to watch more carefully what was going on inside the house.

They gained entry into the house next door and they used this listening device.

The house was, as I say, not a -- not a dwelling house.

No one lived there.

It was a-- used an operation for a gambling operation so that, there is -- there is in this case, if I may say so, rather careful pedestrian police work which led to the use of this particular device.

Chief Justice Earl Warren: Suppose had -- suppose these had just been some strangers there and the police said, "Well, we don't know who these people are and they may be involved in -- in some illegal activity, so we'll just go and put this instrument on their home and did this as a -- "

Mr. John F. Davis: I think it would have a harder case from that -- in that situation.

Chief Justice Earl Warren: It would be harder --

Mr. John F. Davis: I think it would be --

Chief Justice Earl Warren: -- what do you think of it?

Mr. John F. Davis: Well, I think, again, under the law that stands today, that there is not illegal search in such as -- in such a case.

Justice Potter Stewart: Mr. Davis, I --

Chief Justice Earl Warren: Well --

Justice Potter Stewart: Excuse me.

Chief Justice Earl Warren: You would sustain that?

Mr. John F. Davis: That is right.

I would argue that, under Goldman -- that Goldman didn't depend upon anything else than it l -- that we -- unless we would have changed the law, that that would be sustained.

Chief Justice Earl Warren: And if we have to protect the public against that kind of so-called snooping, and -- then we'll have to get rid of Goldman.

Mr. John F. Davis: Well, I want to --

Chief Justice Earl Warren: Well --

Mr. John F. Davis: -- want to come to how to protect the public from that kind of snooping, and I will in a minute if -- but before I get off with the due --

Justice Potter Stewart: Well --

Mr. John F. Davis: Excuse me.

Chief Justice Earl Warren: Go ahead, go ahead.

Mr. John F. Davis: I didn't --

Chief Justice Earl Warren: Just go ahead.

Justice Potter Stewart: My -- my question is very similar to the one that the Chief Justice just asked you and it may be the same question, although I'm not sure.

The Government used what was overheard by this device in this case in two different ways, as I understand it.

It was used, first, in the affidavits which supported the search warrant.

That is correct, isn't it?

Mr. John F. Davis: That is right.

Justice Potter Stewart: These officers who overheard the conversations swore to that fact and it was on that basis or partially on that basis that the search warrants were issued.

And then, in quite a different way or a second way, a distinct way, what was overheard was testified to at the criminal trial of these defendants and was admitted into evidence.

Now, do you distinguish between those two uses at all?

Might it be -- did you --

Mr. John F. Davis: I think --

Justice Potter Stewart: Do you recognize that it might be possible that the --

Mr. John F. Davis: It might --

Justice Potter Stewart: -- that the first use might be proper and the second one might be improper?

Mr. John F. Davis: I think it might be, but I think it cannot be important in the disposition of this case because I think that if -- I think the stricter rule would be in connection with the introducing -- introduction of the evidence at the trial.

And if this was error, then this should be reversed as -- so that it washes out --

Justice Potter Stewart: Reverse --

Mr. John F. Davis: If there is --

Justice Potter Stewart: Reverse for a new trial but what was found, if the first use was proper --

Mr. John F. Davis: Then there would be --

Justice Potter Stewart: -- what was found as a result of the search warrant would be admissible, wouldn't it?

Would it not?

Mr. John F. Davis: That would, unless they have also --

Justice Potter Stewart: Or it might be?

Mr. John F. Davis: That's right.

And then, there is the -- there would be then the further question as to whether, on a new trial, they should be enabled to use the material --

Justice Potter Stewart: Yes.

Mr. John F. Davis: That material.

And, I think there would be a -- probably a less -- a -- I don't know how to measure these things, but --

Justice Potter Stewart: Well, maybe (Voice Overlap) --

Mr. John F. Davis: At least, as you read the cases, there would be a less strict --

Justice Potter Stewart: For example, hearsay can support --

Mr. John F. Davis: That's right.

Justice Potter Stewart: -- an affidavit for the issuance of a search warrant.

Mr. John F. Davis: That's right.

Justice Potter Stewart: And hearsay is not admissible in the -- in the trial of a case.

Mr. John F. Davis: And then --

Justice William J. Brennan: As a matter of fact, on the very first sentence of this affidavit under our cases, a search warrant would have issued, would it not?

Mr. John F. Davis: That's -- that's right, and --

Justice William J. Brennan: Without going into all the other details --

Mr. John F. Davis: Well, that's right.

They were -- well, it didn't.

I mean, it issued on everything but there probably was enough evidence outside of this in this -- in the affidavit because there was the information, there were the telephones, they were seeing the people go and come from the --

Justice William J. Brennan: Reliance on a reliable source.

Mr. John F. Davis: Yes, sir.

Justice Felix Frankfurter: So, the first sentence wouldn't satisfy Draper, would it?

Mr. John F. Davis: Well, I don't know.

It didn't -- it didn't describe them in detail.

In Draper, as I remember it, they described the area in detail.

But the question then is how do -- how does the public get protection from this kind of thing and I may suggest that appropriate -- the only effective way to get real protection if there are abuses, and there are abuses in parts of the country on wiretapping and -- and eavesdropping, is through legislation.

The most that the Court can --

Chief Justice Earl Warren: But before you go into that point, my -- my question was in the context of a constitutional violation.

Mr. John F. Davis: Yes.

Chief Justice Earl Warren: If it was a constitutional violation, how would this Court stop it if you went as far as to say that it was perfectly alright for a police officer to -- to go to a strange home when he didn't know anything about?

And, for the purpose of inquiring and finding out what -- what they were doing in there was to use this instrument.

Well, I wasn't talking about whether Congress could do it --

Mr. John F. Davis: Well, in that --

Chief Justice Earl Warren: -- or whether they should do it, as talking in terms of the constitutional question.

Mr. John F. Davis: Well, the con -- it cuts into the constitutional question, too, because the type of legislation which has been suggested by Senator Keating, in the Senate and earlier in the House, deals not only with interception of telephonic communications, but also this kind of thing.

And, there, there is a -- he concludes a provision for the issuance of warrants.

So that -- if that kind of legislation were adopted, then the situation would be that this would be -- could be -- would, under the legislation, be considered a search, if you please.

But, if the terms of the warrant were -- were met, by then, it wouldn't be considered an illegal search, an unreasonable search because it would be the kind of search which is ordinarily carried on through physical search warrants where you give authority to people to go into the premises and -- and hunt the things out so that we can get some relief on the constitutional ground, as well as on the -- on the legislative ground, through legislation.

Justice Felix Frankfurter: Mr. Davis, you suggested about embarking and showing that it's -- there's no other way of dealing with this kind of united social conduct.

The search warrant was based on this instrument we used on higher knowledge or belief, namely, reliable sources arouse suspicion but they must have known something.

This kind of business is carried on either by people going there through the telephone.

The people go there in numbers.

You said there were quite a number, a hundreds of them, whatever there is.

Mr. John F. Davis: Yes.

Justice Felix Frankfurter: But steady stream of people who were supposed to be at home raises the possibilities for inventing detectors to pursue and, if it's over the telephone, there are other means of finding out what this kind of heavy traffic over the phone does.

Simply suggest even assuming that he's got with extra set of copies, I just wonder how much of this thing is -- the characteristic easy way of getting information instead of using brains, instead of devices like this.

Mr. John F. Davis: Well, I -- I think that this -- in this particular context of this particular case, and I don't know that all interception cases are like it, that you do have an example of the capital painstaking police work.

Now, actually, in this case, there were no individuals that came to this house.

Justice Felix Frankfurter: And it was --

Mr. John F. Davis: No money was --

Justice Felix Frankfurter: Then there was a telephone.

Mr. John F. Davis: -- ever had.

Justice Felix Frankfurter: Then there was a telephone.

Mr. John F. Davis: There were three telephone lines and, naturally, I mean, the -- the lines were -- were not intercepted.

Note, there was no interception to the -- from the telephone conversations in this case.

Justice Felix Frankfurter: You could find out -- it's not for me just to suggest, so I'd rather just make a venture.

If the tele -- if the phones come at certain hours on certain days within a framework of interest --

Mr. John F. Davis: Well --

Justice Felix Frankfurter: -- all sorts of thoughts can arise to a fellow which prevented from doing this.

Mr. John F. Davis: If -- if he knows the telephone is being used that way, yes.

Justice Felix Frankfurter: Well, I'm -- my starting point is the starting point of the affidavit, reliable source.

They must have known something.

Mr. John F. Davis: Yes, they -- they knew these gamblers -- these people who had been gambling and moved in here and put in telephones and were --

Justice Felix Frankfurter: They didn't know that --

Mr. John F. Davis: -- coming and going at these regular hours.

Justice Felix Frankfurter: They didn't know that, did they?

Mr. John F. Davis: They didn't know that, yes.

Justice Felix Frankfurter: Well, that enables them, if it's -- if it's horse races and baseball games, that already limits still the area of inquiry or points it up to where it can be pursued and --

Mr. John F. Davis: Well --

Justice Felix Frankfurter: -- and good sniffing can be technical deal.

Mr. John F. Davis: That's right.

I think, in determining whether to -- if I'm right, in determining whether to go further than was -- than the courts were willing to go in Olmsted and in Goldman, consideration should be given to, as I say, one, whether this thing is so horrifying, these things have developed so far that the situation which existed in a time ago when Olmsted is -- no longer fits -- fits the present picture and I submit this -- this thing doesn't show anything like that.

The second question is whether the practice, with the practice of wiretapping, snooping, and things like that has gone so far, become so distasteful that, now, we feel we have to do something different than -- that has been done before and do it through court-made law rather than legislative law.

I think it may be of some help to the Court to read a report of the Committee of Privy Counselors, published in 1957 as Command Paper 283, in which an investigation was made in Great Britain with respect to interception of communications and the report of this Committee is -- Committee of a man who carry some weight.

There was Lord Monson and Sir Norman Birkett and Mr. P.C. Gordon Walker who made this report and, their feeling was that no action should be taken in Great Britain to prevent the -- to upset the then status quo which did permit, and they felt lawfully, the interception of Massachusetts.

Justice Felix Frankfurter: Mr. Davis, since you rely on that report, more needs to be said about it.

First and foremost, no such tapping is authorized in England, except by the person, I emphasize, the person who associates the permission.

The second, they have State for Home Affairs.

He's the third most important member of the Cabinet.

He personally is responsible for it.

He's responsibly in the House of Commons to defend it.

And, if you -- since you read the report, you know how few such permissions are given.

They're almost negligible in number.

All of which is true, isn't it?

Mr. John F. Davis: This is true.

Justice Felix Frankfurter: Alright.

Mr. John F. Davis: This is --

Justice Felix Frankfurter: Now, if we -- we had the kind of positions they had, an officer who's in the position of the Home Secretary, as I say, the third important -- he holds the third -- most important post to the British Government and he himself, on his own conscience, responsible for the questioning of the House of Commons, must give this permission.

Mr. John F. Davis: Now, as --

Justice Felix Frankfurter: Even then, as you know, there's a great deal of galop in the racecar.

Mr. John F. Davis: As far as federal wiretapping goes -- and as far as the states goes, it's a different question.

As far as federal wiretapping goes, the testimony has been that the Federal Bureau of Investigations taps no wires except in a very limited kind of case, the espionage and sometimes, kidnapping --

Justice Felix Frankfurter: Have you got any number?

Have you got it in number?

Mr. John F. Davis: Yes, yes.

Justice Felix Frankfurter: How many?

Mr. John F. Davis: 73, a number which is less than shows in this report.

Justice Felix Frankfurter: And do you --

Mr. John F. Davis: Just to who -- who have testified that there was 73 and that there -- in one year.

There'd never been more than 200, numbers which compare very -- very closely with the numbers in this report, Mr. Justice.

Justice Hugo L. Black: Who will locate --

Mr. John F. Davis: Pardon?

Justice Hugo L. Black: Who'll have to locate the man at the apartment?

Mr. John F. Davis: The -- none of the -- no wiretapping can take place without the personal approval of the Attorney General of the United States, not the Deputy Attorney General or -- or anybody else, the -- the Attorney General of the United States --

Justice Felix Frankfurter: Can we find out what permission he gave or what Mr. Hoover does?

Can anybody find out?

You know very well he can.

Mr. John F. Davis: This -- this is -- the only evidence we have is the evidence of these statements which are made to Congress and which I assume we will accept.

Justice Felix Frankfurter: But these are statements holds there.

These arose -- the report what you have in your hand arose out of a specific case.

It was so aroused the concern of the British public that they had a two-day debate in the House of Commons which resulted in its very way you report by the imminent people.

Mr. John F. Davis: Yes, we don't -- we don't do our investigations as well, but we do them very thoroughly.

I have here the reports of the Senate Committee investigating wiretapping and this extremely thorough report shows a great deal of eavesdropping by detectives in -- in some of the States in New York.

There's a great deal of information about wiretapping in New York States and -- but no one, so far as I know, questions the -- the accuracy of the figures on federal wiretapping.

Justice Felix Frankfurter: Yes, but there are --

Mr. John F. Davis: Now --

Justice Felix Frankfurter: -- report say to carry this report down to what happened very recently, early this year at least, namely, one of these authorizations was given.

It was in connection with a member of the medical profession who, on the basis of the disclosures found, reported by the Home Office, but the Medical Society expelled him.

There was another hullabaloo and there was another report and the conclusion was that what was obtained by these -- in these rare instances was not to be given no matter how laudable the purpose to any other agent.

Mr. John F. Davis: Yes, that was their -- this report, too.

I think they handle them extremely well in England.

I'm not --

Justice Felix Frankfurter: That's just a question as well as --

Mr. John F. Davis: I'm not --

Justice Felix Frankfurter: -- the question of what security you have as against ours.

Mr. John F. Davis: As far as the federal system goes, the system which is followed here, it appears from all -- everything we can tell is -- is very close to the same system that they followed in Britain.

Justice Felix Frankfurter: Well, you're much more optimistic about that than I have reason to believe.

Mr. John F. Davis: Now, if this is not so, if -- if wiretapping is becoming an intolerable intrusion into our privacy --

Justice Felix Frankfurter: That isn't what Mr. Dasher's report concluded, did it?

Mr. John F. Davis: Mr. Dasher's report typed away from the federal wiretapping entirely.

Justice Felix Frankfurter: For a very good reason which you --

Mr. John F. Davis: Well --

Justice Felix Frankfurter: -- probably know is well provided.

Mr. John F. Davis: Well -- but the report-- Mr. Dasher's report doesn't -- doesn't have anything on federal wiretapping.

Justice Felix Frankfurter: No, but it's held to the extensiveness of it.

Mr. John F. Davis: It's very extensive in many places, particularly in the big cities, and if it has become -- now, what the courts, if -- if this is to be handled by court-made law, the most that can be done, may I suggest, is to discourage the only type of wiretapping that has a social -- social benefit, namely, wiretapping by police officials who are attempting to -- to enforce the law.

This will -- nothing this Court does with respect to that will have anything to do whatsoever with wiretapping by private detectives, by state agencies or by purveyors of -- of malicious gossip, blackmailers, I mean, all that is out.

So that, really, if this is a problem -- a social problem which needs correction, the appropriate way to correct it is through legislation and Congress has -- has been worrying with this problem for a good -- for a good period of time and I suggest for your consideration the bills which have introduced by Congressman Siler in the House and Senator Keating in the Senate, neither of which received -- well, the Senate Bill didn't receive the entire approval of the department because, there, you'd have to get a court order for wiretapping and the department's position is it should've continued to authorized by -- by the Attorney General.

But, these -- these Bills, particularly, Senator Keating's Bill will fetch not only teleph -- interruptions of telephonic communications, but it will cover the kind of thing which is involved here insofar as there's any federal authority to do it.

And, it will cover it not only as far as federal law was concerned, but it will cover it in the much more important field where -- whenever there is federal power, it will be outlawed when -- whoever does it.

Now, the State of New York has already passed its own legislation which outlaws not only wiretapping but eavesdropping itself.

What they haven't done in New York is to outlaw the use of that evidence, of course, in criminal cases.

So, I suggest to Your Honors that --

Justice Felix Frankfurter: They have outlawed, it's used by private people altogether, haven't they?

People are being sent to jail in New York for private detection.

Mr. John F. Davis: For -- for wiretapping or eavesdropping --

Justice Felix Frankfurter: Yes.

Mr. John F. Davis: -- that is true.

Well, but the -- the detectives can be sent to jail, too, if they don't -- if they don't get a court warrant for it.

The only question that's opened is whether or not the evidence which is illegally obtained in New York can continue to be used in the criminal trials.

It's outlawed in civil trials but it still can be used in criminal trials in New York.

So, I -- I suggest --

Justice Felix Frankfurter: May I ask you -- may I ask you whether -- repelled, whether the basis of allowing wiretapping on by the Department of Justice is on an ad hoc basis or other categories of crime?

Mr. John F. Davis: J Edgar -- Mr. J. Edgar Hoover has stated that his views only in the -- in the special category of crimes --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. John F. Davis: And he names subversion, the national security, and crimes in --

Justice Felix Frankfurter: Kidnapping.

Mr. John F. Davis: Involving danger -- immediate danger to human life.

Most of the Bills which have introduced -- been introduced in Congress, by the way, would limit the use of this thing to the same sort of situation.

Chief Justice Earl Warren: Mr. Williams.

Argument of Edward Bennett Williams

Mr. Edward Bennett Williams: There were some questions asked of counsel for the Government that I think should be cleared up by record references.

The suggestion was made to the Court that it was wholly a defense theory that the agents of the Government were hitting the duct of the premises at 408 21st Street.

The record doesn't bear this out because, at page 144 of the record and 145, it's shown that Officer Stone said, and I cite the bottom of page 144 that, in response to a question, "Now, when you penetrated with your mic, you penetrated at the point of the heat duct, did you not?"

"Possibly, yes, sir."

Then, over at 145, "And you thought you were going in at a point where the duct was, did you not?"

Answer, "I had an idea that might be the case.

Yes, sir, and the duct at 408 filled the part of what otherwise would have been a party wall, did it not?"

"That's correct.

It was inserted into the wall."

And that particular duct was a duct that serviced 408 exclusively, did it not?"

And, he answered, "That's correct."

Now, at page 158, if the Court please, a reading of the colloquy at page 158 where the same witness is under examination, I cannot but to suggest to the Court that he believed, although it was difficult to get him to admit that he was penetrating at a point where he was touching the duct.

He says, at the bottom of page 58, after several questions at 158, "I believe I did state that I thought of the possibility that the mic was contacting the duct on the other side."

And, at page 160, the question is put, "Now, you testified," and I'm reading from two-thirds of the way down, "in answer to a question by Mr. Williams, you knew you didn't think you were hitting brick when you came into this object, isn't that correct?"

Answer, "It didn't feel like a brick wall, no, sir."

Question, "What did it feel like to the best of your memory?"

"Well, there was a sleight, slight bit of give, a slight before it stopped."

The record is absolutely uncontradicted, if the Court please, that the only place where this needled could penetrate is was for a nine-inch stretch under the baseboard of that wall, precisely in front of the heating duct.

Mr. Chief Justice asked the counsel for the Government if there was anything in the record to show how far this needle had to be inserted before it touched the duct.

The rec -- the record is entirely clear on this, Mr. Chief Justice.

I direct your attention to page 215 of the record.

Page 215, Question, and I'm reading from about one-fourth of the way down, "Will you tell His Honor and the jurors the measurements that you found when you measured that distance including the shoe molding, the baseboard, and then the plain airspace."

We found we had to go in seven and a half inches -- seven and an eighth inches to touch that duct -- the back of that duct."

Seven and an eighth inches counting what sir, counting the shoe mold and the baseboard, yes, sir."

At 220, that testimony is repeated.

Halfway down, "Now, I believe you testified there came a time when you went to 410 21st Street and you insul -- inserted a coat hanger or a spike.

You had to put this object seven and a half inches from the lip of the toe molding to touch what you referred to as the back of the duct, is that correct?"

Answer, "I believe I said seven and an eighth inches, sir."

"Seven and an eighth?"

"Yes, sir."

Again, at page 234 and 235, if the Court please, that testimony is repeated.

If you will look at the very top sentence at the page 235, you will see that it was seven and an eighth inches that this spike had to penetrate in order to touch the duct.

Again, the record speaks contrary to what counsel for the Government says when he says that it's silent with respect to whether this had to come in contact with the surface in order to be effective because, at page 200 -- I'm sorry, at page 156, it's entirely clear from the record that this had to touch something.

From the testimony of the Government's own witnesses, two-thirds of the way down, Question, "Well, will you explain it to me again then, please, because I didn't understand?"

Answer, "I said from my knowledge of this instrument, it should be in contact, that the point should be in contact with some surface which would act as a sounding board to pick up the sound waves and transmit the sound waves to the needle.

The needle does not have to be embedded into that object so long as there is a contact."

Also, the record is very clear, if the Court please, that the fact is they could hear conversations from all over the house at 408 21st Street, petitioner's dwelling house."

Page 97 of the record and, again, it's the Government's own witnesses, at the very bottom, "Now, where did Mr. Menendez and Mr. Martin conversed?"

Answer, "I couldn't tell you exactly where they conversed because I was not in the premises.

I could not tell you exactly where they conversed because I was not in the premises of 408 but, it seems to me, they were conversing in the room on the first floor, on the first floor of the building, I would say and, mind you, they were on the second floor when they conducted their electronic surveillance.

It --

Chief Justice Earl Warren: Where -- where is that on the --

Mr. Edward Bennett Williams: At the very bottom, Mr. Chief Justice, at page 97.

Chief Justice Earl Warren: 97.

Mr. Edward Bennett Williams: Then, again, at page 98, question, "Is it your testimony that this microphone on the second floor picked up conversations on the first floor?"

Answer, "That is correct.

I would say that."

Again, at page 99, if the Court please, "Now, on the occasion that you were there with Detective Stone when you inserted the spike microphone and Mr. Menendez was present in the other house with Mr. Martin, you were in this front bedroom, were you not?"

"That is correct.

I was in the front bedroom.

That was on the second floor."

Again, if the Court please, at page 100, question, "Did you go downstairs when you found that Mr. Menendez and Mr. Martin were conversing downstairs?

Did you go downstairs and insert your microphone?"

Answer, "No, sir.

It was not necessary to go downstairs to insert the microphone."

So, I say that it's accurate and there are other references here.

Again, at page 101 and 104, that they were using the sound -- the elec -- the heat conductor system of 408 is a giant sound conductor.

There was nothing else there for this needle to touch except the -- the metal heating duct it gave, and it gave them auditory observation of all of the premises at 408 21st Street by seven and one-eighth inch insertion into the party wall.