LANZA v. NEW YORK

Print this transcript Transcript: 

Argument of Leo Pfeffer

Mr. Leo Pfeffer: If Your Honors please.

The facts of this case insofar as they are constitutionally pertinent, I think are uncontradicted and I think they're undisputed.

The brother of the petitioner, one Joseph Lanza had been arrested under warrant charging him with violation of parole.

He had been placed in jail in Westchester County by the officials of State of New York.

At the request of the Parole Board officials, an electronic recording device was concealed in the room in the jail, in the prison which was used by the prisoner to meet and consult with his relatives, his friends and his attorneys.

The record shows and this is pointed out for some reason, in the people's brief, that there was another room in the prison which was set aside exclusively for attorneys and that room was free of this electronic eavesdropping device but obviously, neither the prisoner or anybody who came to visit him could select the room in which he's going to see them when the prisoner -- and when the wife of the prisoner, his attorney and the petitioner here and his brother came to visit him on separate occasions, he was brought -- they were brought into this room where the electronic device had been planted as a trap.

On the basis of this electronic device, conversations which were had between the prisoner, his wife, his attorney and the petitioner here and his brother were recorded.

Thereafter, the pet -- the prisoner was released on parole by a member of the New York State Parole Board and the circumstances which gave rise to that release caused a State Investigating Committee to investigate.

In the course of this investigation, the prisoner, the petitioner's brother; his wife, the attorney and the petitioner herein were on separate occasions called before the investigating committee and were interrogated regarding any efforts which they have been -- might have made to use, influence or corrupt beings to obtain the restoration of parole of the prisoner.

Each one of the four refused to answer the questions put to them by the committee.

No action was taken against any of the other three except that an effort was made to punish the attorney for contempt.

But that was dismissed by the courts and no -- nothing further was done.

No prosecution was brought against either the prisoner himself, the petitioner's brother or his wife.

However, the petitioner was prosecuted under a New York statute which makes it a misdemeanor punishable by imprisonment for up to one year for refusal to ask -- to answer a pertinent question, a material of proper question put to it by a legislative committee.

The petitioner was tried and 19 questions had been put before him by the counsel for the legislative committee.

He refused to answer each one of these questions.

He was -- and that had been prosecuted on 19 separate counts.

He was found guilty of all counts, in all counts but the -- and sentenced for the full time of one year on each count.

But tampering justice with mercy -- with mercy, the sentencing judge provided that nine of the sentences would be served concurrently with the other 10 which would be served consecutively so that he was sentenced for this refusal to answer on the base of this one short conversation with sentence to 10 years in prison.

The Appellate Division affirmed the conviction but modified the judgement by reducing the sentence to one year stating that irrespective of whether he had been guilty of one crime or 19 crimes or any amount in between.

As a matter of discretion they would remove -- reduce the judgement to be served for -- to one year.

The Court of Appeals by a narrow margin of four to three, affirmed the conviction although it modified the judgement further to provide that only one crime had been committed.

Nevertheless, it said that the Appellate Division had indicated in his discretion that -- that matches every year and therefore, didn't change the actual sentence but simply declared that he's been guilty of only one crime.

Three of the judges were of the opinion that by reason of the circumstances whereby the information which the questioning was based, these questions could not be deemed to be proper whether the meaning of the penal law which provides the failure to answer a material and proper question constitutes a misdemeanor.

And that -- that's my state -- well, that is not before the Court.

Contending as we have done in all the courts below, that the petitioner's constitutional rights under the Fourteenth Amendment and the Fourth Amendment that's made applicable to states, the Fourteenth had been violated, we sought certiorari and certiorari was granted.

We based our case on two interrelated contentions.

We assert that by reason of the circumstances of this case, the defendant or the petitioner was deprived of his liberty without due process of law, within the -- meaning of the Fourteenth Amendment as it is operated by its own terms.

Second, we urged that this conduct on the part of the State of New York would if it had been committed by federal officials been the violation of the Fourth Amendment and that accordingly it is a violation of the Fourteenth Amendment and that in either case whether it's Fourteenth Amendment by reason of its own operation or by reason of its relationship to the Fourth, renders unusable by the State.

The information gained through this electronic eavesdropping device and that any questions placed thereon could not be or shouldn't answer any questions based thereon could not be the subject for criminal conviction.

Now, the people of the State -- the people of the State of New York in their brief, the first point, urged that only 17 of the 19 questions were corrupted and that the first and the 19th which were general questions, which simply stated, state what -- what efforts were made by you on behalf of your brother is the first question and the second question was -- the first question was, on February 5th 1957, your brother Joseph Lanza was arrested and returned to prison, charged with the violation of parole, told the commission -- committee please, any and all efforts extended by you to assist in obtaining the release of your brother Joseph Lanza on parole or the restoration of his parole.

That was the first question.

Last question was another catch-all general question, Mr. Lanza, please tell the committee the name of anyone with whom you spoke to in the month of February of 1957 about the restoration of the parole of your brother Joseph Lanza.

It's our contention that these questions are as corrupt as the other 17.

That but for the fact of the electronic device, there would have been never any occasion, no occasion whatsoever to call the petitioner herein before the legislative committee.

The record shows that the petitioner was a person, a responsible businessman, who had never been before a lower court, perhaps maybe a traffic violation but never been before a lower court much less having a criminal record of any kind.

He had no bouts with the law, a reputable businessman.

His only relationship to the petitioner herein and to the controversy was in, was a fact that he was a brother.

Now, it is true --

Justice John M. Harlan: (Inaudible)

Mr. Leo Pfeffer: The -- not New York -- not the committee, they took -- they took it.

It was done by the Parole Board but as we urged, it's a same respondent.

There's only one respondent here, the State of New York.

And that the -- the -- and we quote on opinion by -- in the Silverthorne case as well as another, is the fact that the -- the State of New York through its legislative committee took advantage of the electronic eavesdropping which had been committed by the Parole Board, in effect ratified it, made it part of this as itself.

Justice John M. Harlan: (Inaudible)

Mr. Leo Pfeffer: I would say this Your Honor, Justice Harlan that if the legislative committee had no other reason to call him, except for that coerced confession, there had been no other evidence to -- in anyway to justify as being called, as is the case here, I would say that he could -- that he would be immune from prosecution for refusing to answer those questions.

Now, the -- the State of New York in its brief asserts at the Costello case authorizes a -- in that case, it was a deportation, an acquisition based upon evidence of -- although some of them evidenced was obtained through illegal wiretapping.

But the Costello case very carefully, the court very carefully says there that none of the District Attorney's questions, none not one, even applies that he had ever gained this information from the 1943 wiretaps.

Costello was a known racketeer.

He had been indicted.

The public records showed ample justification for his being questioned or being subject to the -- to the proceedings.

Nothing there was -- nothing which was gained through wiretap was used against Costello nor was the proceeding against him based upon the wiretap.

Here, I repeat to -- but for the fact that the wire -- the electronic device has been planted.

There would have been no reason to call the petitioner to the legislative committee with this one exception from this -- the people bases its case that the -- he was a visitor in the jail.

He did go visit his brother and all visitors must sign a register; so that even if has there been no electronic eavesdropping, presumably, the records of the visiting would be available to the Parole Board and to the legislative committee and on the basis of that, they would have called him.

I submit Your Honors that that would not have constituted an adequate ground on the light of the -- of the tenor of cases of this Court to subpoena the defend -- the petitioner.

All that happened was that a brother visits his brother in jail one time, a fraternal act which is explainable as a natural act of brotherly affection, brotherly friendliness.

No inference can arise from that effect which would justify, which justify subpoenaing this defendant -- this petitioner, before the legislative committee.

So that is -- we believe, we believe that the records establishes clearly.

Justice William J. Brennan: (Inaudible)

Mr. Leo Pfeffer: Which one, the first one?

Justice William J. Brennan: (Inaudible)

Mr. Leo Pfeffer: Oh, did you visit your brother?

Justice William J. Brennan: (Inaudible)

Mr. Leo Pfeffer: And he refused to answer whether he -- he visits his brother?

Justice William J. Brennan: (Inaudible)

Mr. Leo Pfeffer: Then the question was a materiality of that.

I -- I think that would -- that could not be -- no commission to stand because there's obviously nothing material in mere visiting one's brother.

Justice William J. Brennan: (Inaudible)

Mr. Leo Pfeffer: It didn't state -- it's a (Inaudible) -- there's no opinion by the -- by the Court of Appeals.

It's simply affirmed that judgement modifying it in respect to the -- respect to the --

Justice William J. Brennan: (Inaudible)

Mr. Leo Pfeffer: Were the Appellate Division, the Appellate Division.

Now, it did so, it -- it -- but it found it unnecessary to determine whether there have been one crime or 19 crimes and presumably on the basis of the court so said that even if there had been one crime committed and it -- it's held in the Appellate Division that -- it bases its decision on that fact but primarily on the fact that evidence illegally acquired under New York law is nevertheless admissible in the criminal proceeding and therefore nevertheless can be used as a basis for an investigating committee.

This was the justification, the primary justification both of the trial judge and the Appellate Division that the immorality of the acquisition wasn't technically illegal, and I'll come to that in a moment, at the time it was committed, it was not technically illegal under New York law.

But the immorality of the acquisition did not make it un -- inadmissible either in a -- in a lower court or in a legislative committee.

Now --

Justice John M. Harlan: (Inaudible)

Mr. Leo Pfeffer: He was asked about those two questions and he said he's made a generalization that we have evidence or we have -- he was asked that -- he stated that first -- the 19th question, he said it, the first of the 19 questions were not based upon the illegally or immorally obtained evidence.

But I think it is quite clear that what he meant by that was that they had access to the prison records to show that the petitioner has visited his brother.

There's nothing other than that.

Nothing other than that which in any way connects the petitioner with whatever offense may have been committed if any.

Now, I think that's quite -- that's quite clear from the whole time -- record.

That's all there is and nothing more.

Unknown Speaker: (Inaudible)

Mr. Leo Pfeffer: Well, because it is my -- it is our contention that the mere fact of visiting a brother in jail would not sustain -- would not sustain in ordinary circumstances, was there not be electronic device, the electronic eavesdropping, a mere fact that one man visits his brother in -- in prison is not enough to justify but otherwise would be a dragnet subpoena before a legislative committee.

This is an act -- this is an act which is explainable by non-criminal or non-immoral motivations, an act of ordinary conduct, having no -- from which no implications of any misconduct can be based, visiting a brother in jail once.

And I think that -- that the -- this alone would have not supported nor would have been ground for -- for calling him, nor with the District Attorney called him merely because he visited his brother in jail.

Justice William J. Brennan: (Inaudible)

Mr. Leo Pfeffer: The (Inaudible) -- the constitutional issue -- the constitutional question I am urging on --

Justice William J. Brennan: (Inaudible)

Mr. Leo Pfeffer: Well, the -- the point I'm making is that but for, but for the electronic eavesdropping, he would never been called.

As a matter of fact --

Justice William J. Brennan: (Inaudible)

Mr. Leo Pfeffer: Would make the same question, yes.

Well, we've reached this -- oh, I merely reached this Court, that were all.

I don't think we'd reach this Court.

As a matter of fact, the -- it was never necessary -- it was never necessary for the Parole Board or the State of New York or legislative committee to examine the prison records, to who visited him because they had the electronic eaves -- device.

They knew from that.

They wouldn't go -- go look it up when they have that.

Perhaps if they had -- if they had -- if they had not availed themselves of the electronic device and had gone through the prison records and found that the visiting and hence said we will call him.

We might have had a different case.

But they never even (Inaudible) to that, it wasn't that necessary.

All the information they needed or felt they needed was gotten through this electronic eavesdropping device.

They never have consulted the -- the prison records.

There was no need for it.

Justice John M. Harlan: (Inaudible)

Mr. Leo Pfeffer: I -- I think Mr. --

Justice John M. Harlan: (Inaudible)

Mr. Leo Pfeffer: I think Mr. Justice Harlan that from the questioning put to -- to the counsel for the committee at the time by the attorney for the petitioner and the response given by the -- by the counsel.

It was quite clear that what he -- that he was absent from the questions.

He -- he'll -- he -- he took a -- he took a look at -- at the questions.

He said why, number one does not specifically refer to the -- to the eavesdropping.

It doesn't make specific reference as the others do to the eavesdropping.

The others they said -- when you said so and so, did you not mean so and so.

And he looks at -- say, “Well, there's nothing about it in -- in number one.

There's nothing about the number 19.”

He picked with number 19 first, showing that he was simply glancing through it and he basing upon a fact that on the face of it, it showed -- it was a broad general question and the question, the issue is whether the State of New York can immunize itself by sandwiching in a first and last question which on the face appeared to be general and unrelated make no specific reference to the -- to the particular eavesdropping.

But nevertheless, nevertheless quite clearly grew out of that wrong.

Again, I think the important thing to note is that but for the eavesdropping, but for the eavesdropping, it is unreasonable.

I think it's inescapable that the petitioner would never have been before that legislative committee.

I think that's the crux of the issue.

Now, the -- people makes the argument that at the time this was done, there was no law against the electronic eavesdropping in New York, true enough.

But this, I don't think, it's certainly not conclusive under the Fourteenth Amendment.

The purpose of the Fourteenth Amendment is to allow judicial review of conduct which is immoral even if it is not illegal under state law.

If illegality was a sole test and obviously the state could immunize -- immunize itself, some of our passing the law, committing that which otherwise would be a violation of due process.

But I think it is extremely significant that no sooner did this event become public and become known that almost immediately, almost immediately a statute was enacted by the State of New York, making this conduct criminal.

Criminal even if performed by a state official in the language which I haven't been able to find a precedent for, the finding -- persons to -- to include state officials.

This was almost an involuntary -- an imp -- reaction based upon the shocked conscience of the community.

And I think it is significant too that whereas the offense for which the defend -- the petitioner herein was charged was a misdemeanor.

The evidence or the -- of -- upon -- the information upon which his conviction was based was -- the opinion that it was made a felony.

The State of New York committed what -- community deemed a felony in order to convict this defendant of a misdemeanor.

I think that the -- this is quite significant to show that this conduct was shocking to the conscience of the community.

Now the --

Unknown Speaker: (Inaudible)

Mr. Leo Pfeffer: Yes.

Unknown Speaker: (Inaudible)

Mr. Leo Pfeffer: As far it directs -- or for this person, him alone, it was a trap for him, there -- the -- record shows -- this is the language, as a request of the Parole Board, a trap was set for Joe Lanza.

That's -- that's the language of -- of the -- of the state.

Now, there's -- one further point on this.

If -- oh, it is argued by the people that the -- that this -- what was shocking about this was the interference with an attorney-client relationship.

In one of the cases, in one case it was an attorney-client relationship which was involved and that this is what was immoral.

This is what was protested.

But it's important to note, it's important to note that the penal law which made this criminal did not limit it to attorney-client relationships, did not say as it did in another case, one statute -- one provision says that anybody who bugs, this is the language which is used in the -- back in the -- in the trade.

Anybody who use it -- plants an electronic device in a jury room is guilty of a separate effects, but the other broad statute makes no reference to attorney and client.

Any electronic eavesdropping is made a felony whether or not the persons are in a relationship of attorney and client, husband to wife, brother and brother or complete strangers.

The offense is not based upon the relationship between the persons whose conversations was overheard.

The offense is based upon the immoral conduct on the part of the State and this is what shocked the people and this is what resulted in the statute being enacted.

Now, there is a double offense here.

This was offensive because in here there was in effect fraud.

There was in effect a breach of a fiduciary relationship.

The petitioner here was a -- in the true sense, a literal sense, he was a ward of the State of New York.

He had -- he could not go somewhere else and say, “I will talk in private to my brother.”

He could -- he could only go where the State of New York allowed him to go.

And the State of New York said, “Here, you can talk to your brother, to your wife and to your attorney over here, in this room here.”

I think that implicit but real was a representation there that you can talk in confidence there, that you can talk there in safety, we that supplied this place for you and we represent to you that it is safe.

Now, the court -- the State of New York said, “We're not going to let you talk to your brother or your attorney and your wife in private.”

There's going to be a stenographer there.

He's going to take note take it down.

He would know.

There wasn't that thing.

There was just naturally the prison guard who stands over there to see that there's no -- no concealed weapons or anything like that pass but who does nothing -- overhear the conversation, he was not suppose to.

And -- and that constituted in our view a misrepresentation which made this doubly immoral.

Now my associate, Mr. Fuchsberg will continue and we will reserve 10 minutes for rebuttal.

Thank you.

Unknown Speaker: (Inaudible)

Mr. Leo Pfeffer: (Inaudible)

Chief Justice Earl Warren: Mr. Fuschberg.

Argument of Jacob D. Fuchsberg

Mr. Jacob D. Fuchsberg: May it please The Court.

I would like for a brief moment to go back to a question asked by Judge Brennan and Judge Harlan with respect to the divisibility of the various questions, and just point out the following to the Court.

I think aside from the argument that Mr. Pfeffer made to the effect that there was -- there seemed to be no justification except through a dragnet procedure for any inquiry of Harry Lanza and therefore the two questions that are sought to be separated from the other -- from the other 17 would not themselves be properly asked.

I think we also cannot take them and separate them unofficially because by the familiar principles of the doctrine of ejusdem generis, we must judge the intent of the first and 19th question, the two general questions in the light of the specific things asked in the other 17 which indicate that the first and 19th so-called omnibus questions of necessity must have had reference to and be motivated by the specific matter that's inquired into by the other 17.

Now you see, if Your Honors please, the order in which the questions were put to the witness are really of little significance for this reason.

They were put to Mr. Lanza on three different occasions.

The 19 questions were put to him and the occasion of the first inquiry by the Committee.

And at that time, he was not offered immunity.

Now, when he was recalled to the Committee, at that time, he was offered immunity and asked to answer all 19 questions.

So as a result, he knew by reason of the 17 questions to follow the first one, what the first one and the 19th one were leading to and therefore, to attempt to separate the first and 19th from all the other 17, when there isn't the slightest information.

And I will go back to the testimony given by the counsel for the Committee in just a moment that these things can be broken asunder unless we would've take a patently artificial approach.

Now Mr. Bauman, the attorney for the Committee when he was called to testify and its very interesting to see while he does make the PAT statement that rather boldly, that the first and 19th questions were not necessarily based upon the eavesdropping through the electronic device.

It's interesting to note the language he uses which is quoted by us -- which is quoted at page 9 of the people of the State of New York's brief.

When he's asked is -- were -- whether any of those questions were unrelated to the eavesdropping, the first words he uses were, “I think some of the questions were based upon the recordings.”

It's obviously a rationalization.

And then in the immediately following question, this is on page 9 of the brief to which I referred and that's at page 159 through 161 of the record when he's asked to point one out, he says, “The first one that occurs to me”, and that -- so I think it's obvious when we take this language plus the admission in the brief of the people that the only other information that it had was the register at the prison, where it indicated that one brother had visited another on a single occasion, indicates that in fact, and I challenge the people here today to indicate any other source that act -- obviously there was actually no other source or reason for this inquiry except such as was propelled by this illegal eavesdropping.

Now, going from that to the question of the Fourth Amendment which I -- I'd like to hit as its relation to the states through its integration into the Fourteenth Amendment --

Unknown Speaker: (Inaudible)

Mr. Jacob D. Fuchsberg: No sir except indirectly as we raised the Fourteenth Amendment and the protective provisions of the Fifth Amendment are deemed -- maybe deemed incorporated in the due process.

But -- but we -- otherwise, we did not raise that specifically sir.

Unknown Speaker: (Inaudible)

Mr. Jacob D. Fuchsberg: I beg your pardon?

Unknown Speaker: (Inaudible)

Mr. Jacob D. Fuchsberg: Yes, sir.

Unknown Speaker: (Inaudible)

Mr. Jacob D. Fuchsberg: Yes sir, we are.

Well, I -- it --

Unknown Speaker: (Inaudible)

Mr. Jacob D. Fuchsberg: It is based on the way they received it and it is based specifically on their attempt to use the product of this invasion of this man's privacy, this unconstitutional invasion of his privacy as a means to try to coerce through the use of another arm of the state further information from him.

And therefore to compel him to give further testimony and disclose further private communications which would not have been inquired about but for the illegal act and unconstitutional invasion of his privacy in the first place.

Now --

Unknown Speaker: (Inaudible)

Mr. Jacob D. Fuchsberg: No sir -- we -- we --

Unknown Speaker: (Inaudible)

Mr. Jacob D. Fuchsberg: No, but we --

Unknown Speaker: (Inaudible)

Mr. Jacob D. Fuchsberg: No.

What we say sir is that no individual should -- where his constitutional rights have been invaded, that the product of that invasion cannot be used for any purpose and certainly not to coerce from him because this is what it amounts to further information which would never ordinarily have been inquired about but for the illegality in the first place.

If there has been for instance, if we were just to talk about the Fourth Amendment, if there was an invasion of his rights by a violation of the Fourth Amendment, we cannot thereby we say, use that as a means of getting further information from him.

The sole purpose or the sole thing that's protected by the constitution is merely to bar the intro -- introduction of it into evidence in a criminal prosecution against the individual, the protection of his right to have his (Inaudible) and violate unless there was a -- a legitimate method of a -- and motivation for inquiring into him is equally protected by the constitution.

I think the Silverthorne case uses that specific language.

Justice Hugo L. Black: (Inaudible)

Mr. Jacob D. Fuchsberg: Yes, well I --

Justice Hugo L. Black: (Inaudible)

Mr. Jacob D. Fuchsberg: No sir.

I -- I think Mr. Justice Black that we object both of the method in which this was obtained and to the additional use for which it was intended to be put.

And we rest both on the Fourth Amendment because we regard the search and seizure provision as having been violated here as incorporated in the Fourteenth Amendment by the cases and we also claimed that irrespective of the Fourth Amendment, as Mr. Pfeffer argued, there was an invasion of a general rights of due process without my attempting to -- my own definition here in this Court, with respect to the Fourteenth Amendment.

You see with the respect to the search and seizure provision, I particularly wanted to say something about it in the light of the Mapp case where this Court in --

Justice Potter Stewart: Mr. Fuchsberg before you proceed to that --

Mr. Jacob D. Fuchsberg: Yes, Mr. Justice Stewart.

Justice Potter Stewart: -- isn't the answer to Mr. Justice Black's suggestion that there might be available here a self-incrimination argument, isn't the complete answer to that or am I mistaken to the fact that the -- the body before whom he was being questioned offered him complete immunity from prosecution?

Mr. Jacob D. Fuchsberg: Well that -- that's one -- that's the reason why we -- we did --

Justice Potter Stewart: And that's the reason, not argued --

Mr. Jacob D. Fuchsberg: We didn't offer that specific.

Justice Potter Stewart: Is not available to you --

Mr. Jacob D. Fuchsberg: Right, right sir.

Justice Potter Stewart: -- isn't that correct?

Mr. Jacob D. Fuchsberg: Right sir.

Justice Potter Stewart: Yes.

Mr. Jacob D. Fuchsberg: And that's why I -- I specifically said we're -- we're not concerned with the use of this evidence for the purpose of attaining a conviction of him and its use in a criminal prosecution against him.

What we're concerned with is the use of the fruits of such an illegal investigation or inquiry or interception of this conversation for purposes other than a criminal prosecution against him.

And we believe that that's equally protected by his constitutional rights --

Justice William J. Brennan: Well, if it come down to this Mr. Fuchsberg, what you're saying is that because of the way they did this, they couldn't even ask him the question?

Mr. Jacob D. Fuchsberg: That's right sir.

Justice William J. Brennan: And therefore they can't predicate any conviction for refusal to answer them upon questions that they should never asked him in the first place because merely to ask him was to allow them the fruits of an illegal act that you say violates both the Fourth Amendment as incorporated in the Fourteenth and the due process provision of the Fourteenth independently heretofore?

Mr. Jacob D. Fuchsberg: Exactly sir because it compounds the wrong that's already been committed and it permits them to carry that on a further step.

When --

Unknown Speaker: (Inaudible)

Mr. Jacob D. Fuchsberg: Oh -- that -- that is right sir.

With respect -- I merely -- in connection with significance of the Mapp case, particularly relating to this case and I want to make a few comments on -- on the application specifically of the protective guard of -- of the Fourth Amendment here is that this Court in -- in that recent case pointed out that you didn't need a technical trespass by way of a -- I think that's the language of the court.

In order to constitute an invasion of -- of the privacy of the man's domain or here I -- I would say, it's -- it's more than his castle because here he -- he's a guest and -- and perhaps even a higher moral code of obligation attaches to a temporary abode which is provided for him specifically by someone else with all the protective moral safeguards that -- that's suppose to entail.

But even if we require some kind of a thought, even it be not a technical trespass, in order to -- by -- in order to give rise to the application of the Fourth Amendment, I want to point out that there is inherent in the -- admitted facts in this case, the commission of at least one of several thoughts.

For instance, there is -- in this particular case, the element of fraud, there is certainly at least an implied representation that this man could engage in this conference safely and with privately in the precinct of this particular conference room and a -- a violation of that promise is certainly tortuous.

At least, it certainly would come under the general character of an action on the case on -- on the common law -- in our common law.

In addition, I would say that -- since the people here have argued that Mr. Lanza was there in effect by sufferance, that's what they say.

There are all kinds of regulations in the prison.

There's no indication that he knew about them and that therefore his right to privacy in this conversation was not inviolable and it almost shocks me to have read that argument.

Nevertheless, I think even in common law where a person is a bare licensee, even there, there is a safeguard against entrapment.

In other words, you cannot set a trap for a person even if he is not a business visitor or partakes of some of the highest standards of care that are old -- in the law of tort.

And in this particular case by -- ever since we have the setting of a snare and a trap specifically, obviously, no matter what his relationship was in this particular room, there was to him a standard of care that was obviously violated.

So that if we need in our case, in order to give rise very forcefully to their protective guard of the Fourth Amendment, we have here plenty of the atmosphere and the fact with regard to the -- to the performance of a tortuous act and the use of that in order to extort from him through the use of perhaps an invisible but not imaginary means of invading or seizing from him the private contents of his conversations with his brother in this particular prison.

Now, the people have argued in their brief that the universal condemnation and they're willing to rest with that kind of slap on the wrist which would be of a little help to Mr. Lanza that the universal condemnation of the conduct of that branch of the State of New York that engaged in this eavesdropping, they say that that condemnation really attached only to the invasion of the attorney-client privilege, to the extent that one of the conversations tapped was one not only with Mr. Harry Lanza who is the brother of the -- of the prisoner but also with his attorney as well.

And I would like to point out to this Court that in this very case involving the brother and not the attorney, the Appellate Division of the State of New York specifically referred to the conduct here and I quote this from their opinion, “That the conduct here was reprehensible and defensive.”

The Court at that time though when it handed down its opinion in the Appellate Division, felt that it was restrained by the law as if then conceived it to be prior to the decision in the Mapp case to permit the evidence which was the fruit of this illegal inquiry into evidence no matter how rep -- reprehensive and offensive they considered it.

Now, we have pointed out to this Court that in a series of decisions which we believe are very analogous in principle to this one, in the Leyra case, and in the Rochin case and in the Silverthorne case.

This Court has clearly indicated that in a variety of circumstances and in a variety of manners, the fruits of the wrongdoing cannot be used and cannot be used at all and what we're dealing with here is a case where what -- I don't think we can divide the Parole Commission on the one hand and the legislative committee on the other.

It is all one political and sovereign entity.

They were mere -- they are merely two arms of the same state and that the act of one cannot be used to -- as a -- in order to press further in the direction of the violation of the rights of the defendant in this case and to this reason which we respectfully ask that this conviction be set aside and the defendant, the petitioner be granted his freedom.

Chief Justice Earl Warren: Mr. Uviller.

Argument of H. Richard Uviller

Mr. H. Richard Uviller: Mr. Chief Justice, may it please the Court.

The petitioner in this case comes before this High Court on a contention that the State of New York has violated certain of his constitutionally cognizable rights.

I think in order to evaluate that claim, it's necessary first to put the contention into its factual context for it is only by that means that the constitution in this area can be given meaning.

It goes without doubt that the petitioner in this case appeared only as a witness before a commission.

There is not here involved a criminal charge.

There is not here involved the use of evidence against him and as a matter of fact, he enjoyed the complete immunity from prosecution which was accorded him by the Committee.

There was in fact no right which was in any jeopardy or which was harmed in any way by the proceedings which he faced before this joint committee.

Justice Felix Frankfurter: How does -- how did the grant, the so-called grant (Inaudible)

Mr. H. Richard Uviller: What happened in this case was Mr. Justice Frankfurter, he was asked a number of questions on all of which he asserted his right to decline to answer on grounds of self-incrimination again under the pertinent provisions of the New York State Constitution and thereafter was granted by vote of the Committee, immunity from prosecution from or because of and future use against him of any and all answers he might make in this regard.

Thereafter, the questions were posed to him again.

Justice William J. Brennan: Does your statute inquire that the committee affirmatively extend immunity?

Mr. H. Richard Uviller: Apparently so Your Honor.

There was at the time some debate among the members of the Committee as to the precise mechanism that they should use.

And eventually, a vote was taken and he was informed that he had the immunity.

Apparently the Committee made some inquiry into whether or not they had the authority to grant the immunity and found that they did as in fact they do.

Justice William J. Brennan: Then, did they call him back, is that it?

Mr. H. Richard Uviller: I believe so, yes Your Honor.

Justice William J. Brennan: Put the same questions too?

Mr. H. Richard Uviller: Yes sir.

The questions in all were of course as we've said 19.

Of those 19, the Committee counsel unequivocally testified --

Justice Felix Frankfurter: Before you get into that --

Mr. H. Richard Uviller: Yes Your Honor.

Justice Felix Frankfurter: The Committee informed of the -- (Inaudible) the witness, I'm not talking about the specifics (Inaudible)

Is the witness (Inaudible)

Mr. H. Richard Uviller: But that is apparently so Your Honor, yes.

Unless he -- the immunity consists in the future use against most statements which he may make in response.

Consequently, if he makes no response at all, apparently, he has no immunity and he maybe prosecuted.

Certainly, the immunity does not extend to possible contempt.

Justice Felix Frankfurter: (Inaudible) -- thereafter -- thereafter, (Inaudible) thereafter, he maybe prosecuted for the (Inaudible)

Mr. H. Richard Uviller: It's my understanding that that is a fact, however I cannot state any authority on the question because I don't know of any instance in which it was done.

Justice William J. Brennan: May I ask one other question?

Mr. H. Richard Uviller: Yes, Your Honor.

Justice William J. Brennan: When he refuses to answer as he did here, the Committee when the questions are put, does the committee have to go back to the legislature for -- as it's done in the case of a congressional committee?

Mr. H. Richard Uviller: Apparently, not to the legislature.

What was done in this case was that the transcript of the proceedings returned over to a grand jury in the County of New York and predicated upon that transcript, the grand jury returned the information containing the counts which reflected the questions that were refused to answer before the Committee.

It is made a misdemeanor under the penal law and in this case, the misdemeanor was charged by grand jury proceeding.

Now the -- I don't want to go first to the question which has concerned my adversary for some time on the severability of the questions.

But I should like to concentrate first on the nature of the proceeding which this petitioner faced before the Joint Legislative Committee.

I think it is clear from the decisions of this Court that there is a vast difference between the panoply of constitutional rights enjoined by man accused of a crime.

And those enjoined by a witness who appears before a duly constituted and authorized committee of a legislative body which is seeking to find facts and exercising that vital and inherent function of investigation which this Court has recognized to be an important adjunct to the legislative power.

Under those circumstances, and I submit that it is because of the fact that no personal or property rights are involved.

The witness before the Committee has very limited rights.

Now, in -- the recent case of Hannah against Larche handed down by this Court, I believe that the principal was -- was well stated and exactly stated.

Furthermore, the Court has expressed considerable reluctance to interfere with the legislative process in this regard.

The only cases which I've been able to discover, have been cases from the Circuit Court of Appeals which are cited in our brief, in which it is clearly stated that if there be an abuse by a legislative investigation and if there be a threatened denial of a constitutional right by this investigated methods, the remedy is with the people and with the legislature itself.

I submit that this is wise so there's no reason to assume that a legislature is any less concerned with the rights of -- of its individual citizens, then as a court.

And in this very instance as has been pointed out by my adversary, the legislature of New York has acted and has passed an eavesdropping statute which clearly covers any -- any constitutional denial by any person in the course of the conducting of an investigation.

Now, it has been argued here --

Justice William J. Brennan: Should you even be making the same argument of the Committee itself that bugged that room?

Mr. H. Richard Uviller: I would Mr Justice Brennan.

I -- I -- I'm coming in a moment I hope to the point that the bugging of that room did not constitute a violation of the Fourth Amendment in itself.

Now at the present time, I'm trying to advance the idea that even if it did, there was no right at -- pertaining to the witness for the Committee.

Justice William J. Brennan: Well, that's what I understood you to be arguing.

In other words, that the Committee has the power to question and all that was asserted here was the power to question.

His refusal to answer was based on the fact that had no powers I understand the argument of the other side, the question at all because of the bugging of the room.

But your position would be the Committee would still have the power to question at least, even though it itself had bugged you, is that it?

Mr. H. Richard Uviller: That would be precisely Mr. Justice Brennan.

Justice William J. Brennan: That's -- even assuming that -- in other respects, it might be a violation of the Forth Amendment, who had bugged the room.

Mr. H. Richard Uviller: Yes, I think that the -- the -- the purpose and eventual use of the information obtained by this method is -- is crucial.

In the instant case, I stressed very strongly that the use was a proper legislative one.

There's been no contention advanced throughout these proceedings that the legislature was in fact duly authorized to conduct such an investigation.

Justice William J. Brennan: In other words, pertinency in that sense is not challenged.

That is of the questioning this witness.

Mr. H. Richard Uviller: Both pertinency and purpose Your Honor.

The -- the questions asked the witness certainly were pertinent to the general subject of possible corruption in the Parole Commission and there's certainly no question that the legislature through its committee had a right to investigate such a -- such a possibility as corruption in one of the executive branches, so that there was a legislative purpose.

Justice Hugo L. Black: (Inaudible)

Mr. H. Richard Uviller: I believe that under the Fourteenth Amendment itself, Mr. Justice Black, there are limits -- well, on what the State can do in any circumstances.

And I think those limits have been expressed clearly in the Rochin and the Leyra case.

There are circumstances where a state will go so far for the accumulation of evidence for one proceeding or another where the conscience of civilized men will be shocked, and I think that the use of torture is one such example.

Certainly, the physical violence that was used in Rochin was thought to be such that -- that a violation of due process in itself was occasioned.

And I would --

Justice Hugo L. Black: (Inaudible)

Mr. H. Richard Uviller: I would -- I would -- I would go so far as to say, yes.

I think that the Fourth Amendment -- I think that the Fourth Amendment is considerable more limited than the Fourteenth.

I'm aware of fact -- perhaps this is a good point to make a transition.

I'm aware of the fact that the -- this Court has held that eavesdropping does constitute a violation of the Fourth Amendment, but only where it is conducted.

In such circumstances as to indicate that there has been a physical intrusion into a protected area.

And I would submit to the Court that in this instance, the facts of the case will show that there was no physical intrusion into a protected area and perhaps (Voice Overlap) --

Justice Felix Frankfurter: (Inaudible) eavesdropping is not (Inaudible)

It's not an intrusion (Inaudible)

Mr. H. Richard Uviller: (Inaudible) there was indeed no physical intrusion into a constitutionally protected area.

Justice Felix Frankfurter: That's (Inaudible) eavesdropping as such, it is not on the intrusion of the constitutionally protected area of (Inaudible)

Mr. H. Richard Uviller: Oh, it's my understanding that Irvine against California, Your Honor, has held that it was in fact a violation of the Fourth Amendment but of course in that case, on the prevailing doctrine of Wolf against Colorado, the conviction was not disturbed on those grounds.

Similar --

Unknown Speaker: (Inaudible)

Mr. H. Richard Uviller: I beg your pardon.

Justice Tom C. Clark: That was a man's home.

Mr. H. Richard Uviller: That was indeed a man's home and in -- and so was the Silverman case recently from this jurisdiction --

Justice Tom C. Clark: Irvine, Irvine (Inaudible)

Mr. H. Richard Uviller: Irvine?

My understanding of the Irvine case was that there was a statement in that case that there had been a violation of the Fourth Amendment.

However, there had been no violation of the Fourteenth under the then prevailing doctrine of the Fourth Amendment did not compel the -- the State of California to adhere to the exclusionary rule which is currently the law.

Justice Tom C. Clark: It followed Wolf.

Mr. H. Richard Uviller: I'm sorry Mr. Justice.

Justice Tom C. Clark: I said, it followed the Wolf.

Mr. H. Richard Uviller: Exactly, I believe that the Wolf against Colorado was the controlling case in the decision.

But I think that there was at least an -- a dictum in the case that the Fourth Amendment is violated and in fact, the Goldman case followed the same test and there where there was no physical intrusion but a detectaphone placed upon the outside wall of a room without any physical intrusion into the room, it was held that there was no illegal search and seizure.

Justice Felix Frankfurter: Goldman makes the point it was clearer because that involves Fourth Amendment as it's such.

It was held that there was not (Inaudible)

Mr. H. Richard Uviller: Because there was no physical intrusion Mr. Justice Frankfurter and that is the point that I'm trying to -- to make.

That the Silverman case itself has restated only very recently the physical intrusion into a protective area of test.

Well, now I submit that under the facts in the instant case, there was in the first instance, no physical intrusion.

Now, I say that fully mindful of the fact, that the record is bare in the question of where this particular microphone was placed.

But certainly, there was no evidence below that the -- that the microphone had been placed in the business room by means of a physical intrusion into the room.

On --

Justice Felix Frankfurter: With whom -- on whom would they be (Inaudible)

That's a lot of (Inaudible)

I would take -- I would take the second half of the test in response to that and that is was this is a protected area which was intruded upon if there was an intrusion.

And with respect to that, I would definitely and definitively say, no it was not.

And I would -- I would recall to the Court as cited in our brief, the fact that the laws of New York provide that in a prison, no prisoners to converse with any other person except in the presence and under the supervision and surveillance of an official of the prison.

After all the prison is not a man's castle.

Prison is by design if not by nature.

Justice Felix Frankfurter: (Inaudible)

Mr. H. Richard Uviller: It is -- it -- it is -- it is let us say, a temporary resting place.

Justice William J. Brennan: Well, it may not be but -- it may not be of his own choosing I expect but --

Mr. H. Richard Uviller: In -- in any event.

Justice William J. Brennan: It's his place of abode, isn't it?

Mr. H. Richard Uviller: It is indeed but it is an abode of such a nature that rights are necessarily lost upon incarceration.

Now, one loses many rights in prison, one loses the rights to possessions, the right to free commerce with others --

Justice William J. Brennan: (Inaudible)

Mr. H. Richard Uviller: -- or move about, no question.

And I think that perhaps primary among these rights is the right to privacy.

A prisoner is subject to search at all times by his guards arbitrarily and without cause that can be no question of it, the rules of the Correction Department of New York explicitly so provide.

He is subject to physical observation.

His cells are open.

His movements are watched.

And I would submit that he certainly is subject to the surveillance of a guard in any and all parts of that prison so long as he is a guest of the state there.

And -- and in this instance, we do not have in the record any description of the physical confines of the so-called visitor's room.

Justice Felix Frankfurter: This is -- it isn't (Inaudible)

Mr. H. Richard Uviller: Quite so Your Honor.

And as a matter of fact --

Justice Felix Frankfurter: (Voice Overlap) include it from (Inaudible)

Mr. H. Richard Uviller: If he was a -- if -- well, Mr. Fuchsberg has -- has introduced tort law into this case and I -- I see we now come into -- to real property.

I -- I -- I would say that he was in the room with the prisoner Joseph Lanza.

Certainly, Joseph Lanza is the person who is confined in the prison and if there is the offer of an aura of privacy which he contends there was, it was an offer to him, not to the petitioner in the instant case who was his brother.

But I would submit that such an offer of an aura of privacy as is contended was made in this case is absolutely bound of support in the record.

As a matter of fact, as far as we can judge from the record itself, if there was any search offer, it was not accepted as such by either the prisoner or the petitioner.

For the transcript itself reveals that their conversations had in this prison visitor's room, was certainly not the type of free and open conversation which one would expect to find in a secure, a constitutionally protected area.

Justice Felix Frankfurter: (Inaudible)

Mr. H. Richard Uviller: I most certainly -- I -- I think the result would be the same too and I think the petitioner has so conceded.

I think that he has conceded that the warden had the right to be there and overhear the conversation provided he did so openly.

I think that he predicates his argument solely on the -- on the fact that this was a concealed or an electronic device and that -- that there was somehow an intrinsic immorality attaching to the use of such a device whereas if a man's ear.

Justice Hugo L. Black: (Inaudible)

Mr. H. Richard Uviller: I know of no such provision.

As a matter of fact, I think the law is to the contrary.

I think the law is to the contrary in New York State Mr. Justice Black.

Our regulations provide that prisoner and his belongings are subject to search by the keeper for contraband weapons and so forth.

While a man is in prison of course his belongings himself are severely limited.

Many prisons, maximum security prison such as this one do not even permit him to keep his own clothes.

Certainly, the -- the writing implements, the shaving implements and all of the usual tools of living are sharply limited and supervised --

Justice Felix Frankfurter: (Inaudible)

Mr. H. Richard Uviller: As a matter of fact, I believe that all visitors also are searched upon coming in or certainly packages are removed from them and the regulations provide for that as well.

In other words, we are dealing here with an area where the constitutional protections as such are of necessity if not by design greatly limited.

I don't mean to say that a prisoner has no rights in jail.

Obviously, a prisoner has many rights in jail.

He always has the right to petition to a court.

He has the right to confer to with counsel and I would go so far as to say, confer with counsel in private and the -- and he has the right to be free of brutality or -- or physical torture.

Chief Justice Earl Warren: (Inaudible)

Mr. H. Richard Uviller: No, I do not think it was Mr. Chief Justice, for this reason.

There were two conversations in essence that were overheard by means of these devices.

One was --

Chief Justice Earl Warren: (Inaudible)

Mr. H. Richard Uviller: Well, it came about in this way sir.

The first was a conversation between the prisoner and his wife Ellen.

During the course of that conversation which was very general in nature, he -- she indicated to him that his attorney, Sylvester Cosentino was there and they had driven up together.

During the course of the conversation toward the end of it, the attorney, Mr. Cosentino apparently walked into the visitor's room because there is a hello, by Joseph Lanza and then from thereon, his voice participating.

However, there is indication in the conversation of all that he expected to converse in private with the prisoner shortly in another place.

This is the only indication we have had in the records so far the existence of this lawyer's room but apparently not contested that there was such.

So that there was for a while a three-way conversation on the tape between the prisoner, Joseph Lanza, not the petitioner, his wife, Ellen and Cosentino.

At the end of that conversation, the wife walks out and the attorney is in the business room with the prisoner for approximately six exchanges that take place between them.

Let's say about six things when suddenly interrupted the door is open, there's another voice and they both leave apparently to continue their conference in the lawyer's room.

Now, that conversation, that entire conversation is in no way involved in the present case.

Now, I wish to emphasize that, if there was in that brief exchange and interference with an attorney's privilege, it is not involved in this case.

But it is perfectly clear, from the testimony of the committee counsel below, that insofar as any of the questions put to Harry Lanza were based upon the intercepted conversations, they were only based upon interceptive conversations between Harry and Joseph, and they were not based upon intercepted conversations between the prisoner and his wife, which perhaps enjoys greater legal protection than the relationship between brothers and certainly not between the attorney and the prisoner.

As a matter of fact, there was an independent case in New York that arose out of attempt to hold the attorney in contempt for refusing to answer questions before another state investigative body predicated upon that brief exchange that he had with his client.

And the courts of New York declined to do so primarily on the ground that even though the questions did not themselves constitute a breach of the attorney-client relationship nor would the answers have constituted such.

They did flow from this interception and the -- and therefore, the attorney could not be compelled to answer them.

But in any event, that was a completely independent matter as far as the present case is concerned but as the tapes here involved and the only tape involved here was the conversation between the brothers, Harry and Joseph.

And it's perfectly clear from the questions themselves which paraphrase matters which appeared upon the tapes that they were referring only to that portion of the interception which were occurred between the two brothers and that the interference if any, with the attorney-client relationship was in no way involved.

Justice William J. Brennan: Was that on the case cited in the brief here, the one involved --

Mr. H. Richard Uviller: That's a matter of (Inaudible)

I believe it is --

Justice William J. Brennan: Well apparent -- if that's so at least to that extent, your state courts have put a limitation upon even asking questions of someone whose conversation of this kind was overheard.

Mr. H. Richard Uviller: Yes sir, that's correct.

That in this --

Justice Felix Frankfurter: (Inaudible) attorney and client relationship.

Mr. H. Richard Uviller: Yes, exactly so, just as -- as Mr. Justice Frankfurter said, that is what I attempted to imply when I said that we concede and fully concede that even a prisoner has a number of constitutionally protected right.

Justice William J. Brennan: Well as -- what I'm -- I thought you had answered me earlier that because this was a legislative inquiry, the fact that they may have been prompted to subpoena to this petitioner as a witness by reason of anything they may have overheard in that bugged conversation and the fact that doing so may have been a violation either of the Fourth or the Fourteenth Amendment.

Nevertheless because it was a legislative inquiry, as long as the questions were pertinent to the subject matter of that inquiry, they were entitled to call him as a witness and ask him questions.

Mr. H. Richard Uviller: Yes.

Justice William J. Brennan: But that apparently is not so in this other case involving a lawyer.

Mr. H. Richard Uviller: Yes.

I -- I have -- I have emphasized or attempted to emphasize the facts of this particular case which is predicated upon the status of this particular witness and the questions that were involved asked of him.

Now, as to the case of Reuter against Cosentino, I -- I would not support it or oppose it.

It is the law in New York.

I think that it went quite far and I wouldn't be surprised if it went further that it needed to because there was a -- a statement there that there was in fact no actual interference.

The questions that were asked of him were questions such as did you go to see someone as a result of your conversation with him and so on, matters which would be outside of the privilege themselves.

However, the -- the courts I think bent over backwards in that instance in order to express their feeling about their relationship involved.

The relationship between a prisoner and his attorney and perhaps the legislative committee in that -- in that regard of -- should feel itself constrained to follow at least the thinking of the court.

However, I would emphasize that in doing so, the Court went further than -- than I think is proper in curtailing a coequal branch of government.

Justice William J. Brennan: Well you did say earlier too that I understood in your colloquy with Mr. Justice Black that even in the situation such as we have here, had there been brutality used rather than a bugging that this would have disabled constitutionally.

The Committee even from subpoenaing the petitioner and after (Inaudible)

Mr. H. Richard Uviller: Yes I would go so far and I -- and I -- and I would moreover say that if there had been any jeopardy to his -- to his rights as a result of the committee action, that is to say if he in anyway could suffer personally in his personal private -- or property as a result that that also might serve as some limitation on the -- on how far they could go.

Even though -- I say this, even though there are a number of cases which we rely on in our brief in which there were in fact possible criminal penalties involved as a result or outcome of the investigation and nonetheless, this Court declined to interfere with respect to the powers of investigation, the powers of Congress to inform itself.

In Hannah against Larche itself as the Court will remember there was a -- an investigation there into a possible denial of suffrage and -- and possible criminal violations attended thereto.

Nonetheless, the right of a witness to know the man accusing him, the right to see the records of the -- of the complaints and the right to cross-examine its accusers was suspended.

And certainly, these are fundamental -- fundamental rights attended upon an adjudicative type of proceeding but even there --

Justice William J. Brennan: But suppose this -- suppose this has been of a flagrant violation of the Fourth Amendment in that it was a breaking into landless home and then overhearing a conversation and then the same thing had followed, did the Committee then have been able to interrogate him?

Mr. H. Richard Uviller: I -- I know of -- of no decision in this Court on the point precisely.

From my understanding is that that is the close to that fact in Hearst against Black in the -- which is cited in our brief and even though there had been a -- a -- an unlawful search and seizure and records have been obtained, the courts refused to enjoin nor use at a commission hearing thereafter.

Justice William J. Brennan: Well --

Mr. H. Richard Uviller: Consequently --

Justice William J. Brennan: Well those of course -- that -- that is a little different for -- those of the records but whether -- if the question I've put you was, if we had everything here except that it was a breaking flagrant violation of the Fourth Amendment into his home an overheard conversation and then they had subpoenaed him to -- before the -- and put the same question there.

Mr. H. Richard Uviller: In the event that there had been a clear violation of the Fourth Amendment in the obtaining of the information, I would say that in a legislative proceeding where the witness was given full immunity from any possible incrimination or any possible harm to him from disclosure, that fact alone should not prevent the legislature from informing itself further on the information which he has obtained in that manner.

I can see clearly that there might be situations in which a very important community need a great problem and is raised and the only information the legislature has, has come to it through the legal means.

Now, they're not interested in punishing anybody.

They're not interested in bringing any indictments against anybody.

What they're interested in is a valid legislative purpose to a man to change the law in such a way to prevent this situation from being aggravated.

Now, under those circumstances, is the legislature to be foreclosed and precluded from informing itself further solely because the fact that the initial information was obtained illegally.

I would say, no.

Insofar as no rights to the witness are involved then the legislative right to inform itself should be supreme.

Justice Felix Frankfurter: Would -- would make a difference with you, whether the original illegality was hardly (Inaudible)

Mr. H. Richard Uviller: Well, I think certainly that that is a factor.

The fact that there wasn't -- that there -- that there was no connection between the body which eventually used the information and the body which obtained it is a significant factor in the case.

However, I would not go so far as to say that were it the same body that the same result would not pertain because essentially what we're dealing here was the legislative function.

Justice Felix Frankfurter: (Inaudible)

Mr. H. Richard Uviller: We certainly do not.

The facts in this case indicate that there was -- the Committee itself, the Joint Legislative Committee itself had nothing to do with the ordering of the use of this electronic device.

Chief Justice Earl Warren: (Inaudible)

Mr. H. Richard Uviller: It would depend on whether the grand jury had -- had offered immunity to the witness.

Chief Justice Earl Warren: (Inaudible)

Mr. H. Richard Uviller: If the grand jury had offered immunity to this witness, I think it would be exactly the same.

Yes --

Chief Justice Earl Warren: (Inaudible)

Mr. H. Richard Uviller: Well, I did and for two reasons, one, because a le -- the legislature enjoys a certain independence as a coequal branch of Government and second because as a legislative Inquiry, it was fact finding purely.

It was not adjudicative and no one's rights could've been affected by the outcome.

And in that respect, it resembles the grand jury proceeding in which the witness was given immunity.

Now, I would like to come now to the question of the severability of the questions.

And in this respect, I think it's important to emphasize.

I was challenged by my adversary to do so, that the testimony that we have in the case comes solely from the Committee counsel himself.

His testimony is that there were a number of other sources which were not developed by cross-examination as to what they were which lead them to this particular investigation and to this particular witness.

Indeed, it's quite reasonable that there should be.

At the time, there was not only the record book of the prison which showed that he was a visitor and indeed had to show that Harry Lanza visited his brother Joseph Lanza, but there was also considerable amount of newspaper publicity.

And certainly, the if -- their investigation were undertaken into the manner in which Joseph Lanza had obtained his release on parole is quite normal that those in his family and those who visited him and those who were connected with his interest should be called in as witnesses to supply what information they may have to the investigating body.

This apparently is what was done in this case.

And I think that it's quite clear from the testimony of the trial from Mr. Bauman, brief as it is that he was making every effort, every possible conscientious effort at that time to be perfectly fair in his responses as to the derivation of the matters which went to the formula -- into the questions he formulated as committee counsel.

Now, I think that it would be seen for example from his request -- the question as to the third account in the indictment that he said, “Well, I want to be perfectly fair with you.

I think that it might have been based in part upon the transcript as well as upon other information which we had.”

Now, there was no such equivocal answer with respect to either the first or last count of this information.

It was absolutely exquisite.

It was perfectly clear that these questions were not predicated in anyway upon the information.

Now, counsel has advanced thought --

Justice Potter Stewart: (Inaudible)

Mr. H. Richard Uviller: Well, I'm not asking Your Honor to assume it.

I'm -- the testimony at the trial was clear and explicit on that point but it was not derived from the -- from the taps.

The questions themselves reveal that it was not.

The first and last question asked him simply, “What efforts did you make on behalf of your brother to obtain his restoration to parole?”

Now this is certainly the type of question which one would expect completely independent of any transcripts.

There's nothing in the transcripts themselves that -- that was utilized in the formulation of the question as there was in the other 17 questions.

The same is true with the last question, perfectly general question about efforts that he made in behalf of his brother.

Top -- the two questions taken on their face in addition to the testimony given by the counsel who formulated them to the effect that certainly they were not based in any measure upon the transcripts, I submit is a factual determination that they were not.

In response to this, counsel apparently urges that they were so intertwined that -- of necessity one contributed to the other and in fact he would have never been called as a witness at all if not had been for the transcripts.

Justice Felix Frankfurter: The counsel has made or examined?

Mr. H. Richard Uviller: Yes sir.

Justice Felix Frankfurter: (Inaudible)

Mr. H. Richard Uviller: As a matter of fact the -- the entire subject of the source of the question was developed on cross-examination.

And he was asked explicitly about each of the questions --

Justice Felix Frankfurter: Did he not -- (Inaudible)

Mr. H. Richard Uviller: No, that was -- that was stated during the course of cross-examination when he was asked on cross-examination to indicate any question or questions in the series which were not based upon this information and he indicated those two.

Justice Felix Frankfurter: Do you keep that position or was there equivocation (Inaudible)

Mr. H. Richard Uviller: Absolutely no equivocation as to those two questions Mr. Justice.

Justice Felix Frankfurter: (Inaudible)

Mr. H. Richard Uviller: It was.

That was before the trial judge Your Honor.

Justice Felix Frankfurter: (Inaudible)

Mr. H. Richard Uviller: It was Your Honor.

Justice Felix Frankfurter: So far as you know (Inaudible)

Mr. H. Richard Uviller: As -- that is certainly sir.

Justice Felix Frankfurter: (Inaudible)

Mr. H. Richard Uviller: Yes, sir.

Justice Felix Frankfurter: (Inaudible)

Mr. H. Richard Uviller: That's correct Your Honor.

Justice Felix Frankfurter: (Inaudible)

Mr. H. Richard Uviller: Did either one of them mention it?

No, I don't believe that it was explicitly contested.

Unknown Speaker: (Inaudible)

Mr. H. Richard Uviller: In a decision -- well, there was no opinion in the Court of Appeals.

Unknown Speaker: (Inaudible)

Mr. H. Richard Uviller: I -- I don't believe so.

I don't believe it was exquisitely mentioned.

Unknown Speaker: (Inaudible)

Mr. H. Richard Uviller: I beg pardon Your Honor.

Unknown Speaker: (Inaudible) -- it was mentioned?

Mr. H. Richard Uviller: It was mentioned as part of the general factual contentions, yes Your Honor.

Unknown Speaker: (Inaudible)

Mr. H. Richard Uviller: I don't believe that you do at the present time.

I could certainly supply them to Your Honor.

Justice Felix Frankfurter: But his testimony --

Mr. H. Richard Uviller: It was the testimony --

Justice Felix Frankfurter: (Inaudible) on which it (Inaudible) in the record?

Mr. H. Richard Uviller: Certainly sir.

In fact, it's our contention in the terms.

As far as the basic concern -- I would -- I would be very glad to furnish the Court with copies of those briefs and indicate proportions.

Unknown Speaker: (Inaudible)

Mr. H. Richard Uviller: Well, the -- the -- the issue before the Court it seems to me is this, did the Committee in formulating these questions, predicate the question upon contaminated sources assuming for the moment that the source was contaminated.

Now in making that determination, it seems to me that the factual testimony of the Committee counsel who -- which is the only testimony on the point in the record, must be taken as conclusive as to the fact and that is the fact that they were not predicated upon that information.

Justice Felix Frankfurter: That has been suggested throughout this litigation that the Committee was constitutionally (Inaudible)

Mr. H. Richard Uviller: There has been no suggestion of that --

Justice Felix Frankfurter: But they could ask him the question.

Mr. H. Richard Uviller: They certainly --

Justice Felix Frankfurter: That the answer that he gave is (Inaudible) to complicate this, if relevant to the judgment (Inaudible)

Mr. H. Richard Uviller: So it would seem to me Your Honor.

Unknown Speaker: What about the proposition that the (Inaudible)

Mr. H. Richard Uviller: Well, now as to that, I would say that there's absolutely nothing upon which counsel bases his contention in that regard.

He claims that -- that of necessity, they must have called him because of the fact that he was -- his conversation was overheard.

I say that whatever testimony there was below about the calling of this witness, is -- is to the contract and that is that there were a number of sources independent of the transcript which -- which led them to call this witness as well as others.

And among those were not merely -- as I've mentioned before, not merely the fact that he was a visitor of his brother's in prison but as well the fact that his name was mentioned in connection with the entire case in -- in publicity and -- and the fact that he was in fact the brother of -- of the prisoner who -- whose parole was under investigation.

Clearly, there are a number of factors independent of these transcripts, which point to the logical action of the Committee investigating this subject to call those intimately concerned with the welfare of the -- of the man whose parole is under investigation.

Certainly, there is nothing in the record to indicate that -- that -- to the contract that the transcripts were the reason that he was called.

But whether --

Justice Felix Frankfurter: (Inaudible)

Mr. H. Richard Uviller: It was.

He -- he did indicate he was -- he did indicate at that time, it wasn't developed extensively but there was testimony at the hearing also with respect to the reasons that he'd been called as a witness.

And he indicated that there were a number of sources other than the transcripts that -- that led to his coy.

It wasn't developed in -- in extent so but -- but it is on the record.

Justice Felix Frankfurter: It isn't on the matter of (Inaudible)

Information might have come to him otherwise (Inaudible)

Mr. H. Richard Uviller: Clearly, this was a Joint Legislative Committee which was undertaking a rather large scale investigation of an executive branch of Government.

I think it's completely logical that there are a number of witnesses even though the -- the record does not reveal this, a number of witnesses that were called, a number of sources that were availed off.

This is customary in an investigation of this type.

Justice Felix Frankfurter: Am I wrong in taking that -- surely of misconduct (Inaudible)

Mr. H. Richard Uviller: I think it's fair to say at that time it was quite a matter of notoriety.

Unknown Speaker: Did it mention this case (Inaudible)

Mr. H. Richard Uviller: It did Your Honor, yes.

Though again I must -- I must say that the record is -- is violent of -- of reflections of as to what the nature of the publicity was.

I think that it's clear that this case was part of the publicity.

In any event, it's our contention that the -- that the questions are entirely severable on their facts and that -- that the calling of the witness can no more be attributed to the transcripts than to any other independent source or a combination of them.

And as such, even if -- if this Court feels that there was a contamination of questions which were predicated upon the overheard information, that such contamination would not extend to the first and last counts of the information.

Now, it's a well-recognized principle stated forcefully in the Costello cases and other places that where a judgement is sufficiently supported by valid counts, the judgement will stand, regardless of other counts which may be defective.

In the Costello case, there was a clear contamination of certain questions which were asked and yet that contamination did not in fact matters which were derived from other sources.

The combination of these two principles leads to the result than in the instant case, there can be no doubt --

Justice William J. Brennan: But -- but -- isn't this true though Mr. Uviller in Costello if my -- my memory serves me that it was affirmative testimony by Mr. Hogan had that information from other sources.

Mr. H. Richard Uviller: There was -- there was -- that's correct Your Honor.

There -- what -- what -- what was involved there was a -- an immigration question and -- and apparently completely unrelated to the question --

Justice William J. Brennan: The taps went back as I remember it many years --

Mr. H. Richard Uviller: The -- the taps did.

Justice William J. Brennan: But in addition -- in addition, Mr. Hogan testified I think make to other sources which in fact --

Mr. H. Richard Uviller: That there were other sources.

That's correct Your Honor.

Justice William J. Brennan: We don't have anything like -- we don't have like anything like that here, do we?

Mr. H. Richard Uviller: Well, there is -- there is testimony hereto which is similar from the Committee counsel which I've alluded to earlier that there were --

Justice William J. Brennan: Oh and then he identify --

Mr. H. Richard Uviller: -- other sources.

Justice William J. Brennan: Did he identify the other sources?

Mr. H. Richard Uviller: No he did not.

Justice William J. Brennan: Well, that's (Voice Overlap) --

Mr. H. Richard Uviller: I don't believe that --

Justice William J. Brennan: I don't --

Mr. H. Richard Uviller: Well, I don't know that there was any identification of the other sources in the Costello case either --

Justice William J. Brennan: In Costello?

Mr. H. Richard Uviller: -- Your Honor.

I don't believe so.

Justice William J. Brennan: You maybe right.

Mr. H. Richard Uviller: I think that it was -- I have the opinion to guide me only in which they said that Mr. Hogan testified that there were other sources but whether they were identified --

Justice William J. Brennan: Well, I may have been a little obscure in writing the opinion.I had some recollection with -- with some other.

Mr. H. Richard Uviller: Now, it -- it might be that there was.

Unknown Speaker: (Inaudible)

Mr. H. Richard Uviller: Well, now that's another statement that was made by counsel.

I don't know where he gets that information that this room was specially tapped.

Whether there was an eavesdropping device used in this room for other prisoners, whether it was used for other visitors for this particular prisoner and so forth is not apparent from the record.

When he said that it was a trap for this particular petitioner, I must say I was startled.

I don't know where that comes from.

But in any event, clearly there was at that time a general inquiry being conducted in -- in a certain amount of official curiosity as to the nature of the parole of -- of Joseph Lanza.

Consequently, it's not surprising that independent agencies of -- of the Government, of the State should institute their own investigatory procedures, one of which was apparently to overhear these conversations, both the one here in issue and others.

Now, I alluded earlier to the fact that New York has passed a law which has made this a felony.

Now, from that fact, counsel has stated here that the State of New York committed a felony in order to convict Lanza of a misdemeanor.

Now by that statement, he is speculating that had this law been in effect at the time which it was not that there could have been an authorization obtained ex parte from a court for the use of the eavesdropping equipment by officials that there was no probable cause that could have been made out and therefore that there would have been a violation of law in conducting such eavesdropping.

I would suggest that there's absolutely no basis for that speculation.

In fact, it's quite logical to infer to the contrary and that is, had we have this law on the books at that time, not only would there be nothing immoral about the use of this electronic equipment but it would have been conducted in pursuance to the statute and would have been perfectly lawful.

Justice Felix Frankfurter: Would it (Inaudible) constitutional infraction of statutory privilege?

Mr. H. Richard Uviller: If there was a constitutional infraction certainly.

Justice Felix Frankfurter: (Inaudible)

Mr. H. Richard Uviller: And on that -- on that -- in -- on that score, counsel has urged that this is an immoral act and as such must constitute a violation of the constitution.

When we consider --

Justice Felix Frankfurter: (Inaudible) couldn't get there, there's no statute on (Inaudible)

Mr. H. Richard Uviller: Certainly, I would suggest Mr. Justice that he could not get to the constitution through the road of morality because in this very instance -- in this very instance, the community of New York has authorized the use of electronic equipment under certain supervised conditions.

Even the Fourth Amendment itself of course, makes no absolute prohibition against search and seizure but only provides that unreasonable search and seizures are conducted without appropriate court prior adjudication of reasonable grounds are multiple.

Now in this -- the -- the eavesdropping section which is now the law of New York indeed quite parallels the provisions of the constitution in that regard.

The lawful eavesdropping must be conducted by means of an ex parte order obtained from a court.

The only issue then is under these circumstances, could there have been one if there had been that law in effect.

Now, I suggest that counsel speculation that they couldn't have been unless this would have been a felony under the law as was subsequently enacted, is a pure figment of his imagination.

It's not based upon fact.

It's pure void speculation.

In fact, under the present instance, the -- the statement that he made has an even greater vice because he has said that this was conducted, that this intrusion as he would have it was conducted in order to convict Lanza of a misdemeanor.

Nothing could be further from the case.

It was conducted for information only.

It was used not to convict Lanza of a misdemeanor or to convict anybody else of any crime.

It was used merely in order to facilitate the information gathering functions of a valid legislative committee.

There has been no contest here as to the subsequent trial at which the petitioner here was convicted.

There's been no allegation that that trial in any way failed to comport with constitutional standards.

Consequently to assert that this was an act which was committed by the State in order to convict the petitioner of a misdemeanor is a gross distortion of the facts of the case.

In conclusion, I think that our -- the points made in our -- in our brief are tracing this issue point-by-point from the severabililty of the questions to the constitutional right or a jeopardy in -- inherent in the proceedings before the legislature ultimately back to what occurred in that prison visitors' room will demonstrate that there was at no time during the course of this investigation any action by the State which in anyway trampled the constitutional rights of the petitioner in this case and on that we rest.

Thank you.

Chief Justice Earl Warren: Mr. Pfeffer.

Rebuttal of Leo Pfeffer

Mr. Leo Pfeffer: Yes.

I will try to answer as many of the questions which were raised.

Obviously, I can only touch each one briefly.

The question was asked whether the trap -- the bugging was specifically for Lanza, was simply the whole room was bugged.

The New York State Legislature, New York Joint Legislative Committee on Privacy of Communications in report on this case, stated as follows, "As the request of Parole Board Officers” “bugging trap" was set for Lanza and his family" New York State has admitted that this was a trap set exclusively for Lanza at a hearing -- at a report by the New York State Legislature itself.

Justice William J. Brennan: Is that cited in your brief?

Mr. Leo Pfeffer: It's cited in my petition for certiorari on page 7 with the -- with the citation.

New York Legislative Document Number 19th -- 1958 Number 9, page 24.

Second on the question, I think it was Mr. Justice Clark raised the point about publicity, was an act of publicity.

And Uviller says, yes there was publicity and they may have gotten the information from there.

Well, there was publicity but none of the publicity ever mentioned the petitioner until he was called before the legislative committee.

Now, the first time his name appeared in the press not until he was called before the legislative committee on the basis of this tap -- this tap.

Question was asked on the Costello case.

Mr. Uviller doesn't remember that -- what the -- the evidence in the Costello case other than the wiretap.

The opinion state specifically that Costello had been invited and the -- and the -- the testimony in the indictment was one of the factors in the case completely independent of the wiretapping.

Besides other things, public records -- the -- the court first of public records which was told and testified to but a prior indictments so that -- and says completely that none of Mr. Hogan's questions even apply to the -- even gained that he ever gained his information from the 1943 wiretaps.

Now, on the independence of the -- of the legislature and the coordinate facts of legislature, that has belittled that there might considerably be a greater reluctance on the part of court with the fear with the legislative conduct because of the coordinative branch.

Justice William J. Brennan: Now in that connection, I want to be clear Mr. Pfeffer, I think Fuchsberg answered the question of mine that, yes, your position is that by reason of this bugging, this Committee could not even have summoned this witness and put questions to it.

Mr. Leo Pfeffer: That is argued unless there were -- unless there were an independent and directly show that there were independent grounds, if that bugging never occurred, they would've still called him.

If that never called -- occurred that they were still calling then they might have called him but not asking anything which came out of the bugging.

Here, there's a double rule, calling out the questioning exclusively which came out of the bugging.

Justice William J. Brennan: Well now the Chief Justice asked Mr. Uviller whether he'd make -- whether there was -- a distinction could be drawn if this had been a grand jury inquiry, would you draw that distinction?

Mr. Leo Pfeffer: No.

I want to go into that because I think the -- the -- the people must reveal, have kind of conceded.

They conceded the point I'm just making that the constitution does not protect only against judicial interventions with privacy or with rights that the legislature too is subject to the constitution.

Certainly in the case of a state legislature, the argument the coordinative branch made very well have some validity where this Court is called upon to pass judgement of what a committee of the Congress of coordinate branch.

But we're asking you to pass judgment upon the State and the Fourteenth Amendment used the word state.

I don't need to -- to spell out the many decisions which indicate that -- that means every branch of the state is equally subject to the Fourteenth Amendment and to its obligations.

Now Mr. Uviller has admitted, he said and asked the question that, if this had been an aggravated violation of decency and morality, that important, like the result -- as to Mr. Justice Black's question, if there had been torture or it has been -- the one that the other Justice asked it, had been broken in without -- without a warrant.

That even there that there -- even the legislature could not use.

The question then is, in what category are to we view this action.

I think the answer to that is that people of the State of New York can answer to themselves.

They have passed immediately, spontaneously a law saying, “This is a horrible conduct.”

There is no felony in New York, making it a felony, maybe a misdemeanor -- maybe something, a civil wrong, making the felony for a police officer to break in without a warrant.

But it is a felony for that same police officer to bug -- to bug a -- a person.

The people of the State of New York have indicated how serious they consider this breach of decency.

They have passed judgement on it.

All we're asking is at this point give sanction to this judgement.

Justice Felix Frankfurter: And you think -- you think that whenever the New York legislature passes (Inaudible) certain conducts and holding superior punishment for disobedient of this new statute, would that prove that that -- that conduct prior (Inaudible) was in violation of the constitution of the United States?

Mr. Leo Pfeffer: I think that if we assume and I think we must assume that law is a means whereby the people translate their moral judgements into effective criteria, then we must say and if we assume this, Mr. Justice Frankfurter, you more than anyone else have argued that it if the Fourteenth Amendment translates as a means of giving effect to the moral standards of the community, then I think the question answers itself.

Justice Felix Frankfurter: My -- my (Inaudible) a statute passed by New York which proves that there before that (Inaudible) of the community or even (Inaudible)

Mr. Leo Pfeffer: I don't -- more is advanced Mr. Justice Frankfurter but they could have advanced so rapidly that the statute was passed within I think less than two months after this occurred.

That --

Justice Felix Frankfurter: (Inaudible) -- I still ask you whether the fact that any state passes a statute (Inaudible) certain conduct to prove that that conduct prior to that statute of the -- in violation of the constitution of the United States because if it's in violation of the constitution of the United States, if it's that fact and I don't think a statute can say this?

Mr. Leo Pfeffer: I am using this statute Mr. Justice Frankfurter as evidence to support our contention that even were there no statute, were there no statute, this would equally be unconstitutional.

Justice Felix Frankfurter: I follow that argument.

Mr. Leo Pfeffer: That's it.

I'm saying the only point I'm asserting the statute is a strong evidence to -- to support, to support my view that this constitute immoral conduct if we accept that as a standard for due process under the Fourteenth Amendment.

Justice Felix Frankfurter: Well, the standard of due process as to what New York does is what is done generally throughout the country.

I'd have (Inaudible) how many states have such a statute but (Inaudible) conduct.

We've had (Inaudible)

We've had Goldman.

We've had (Inaudible) etcetera, etcetera.

We have the law (Inaudible) doesn't offend the (Inaudible)

Mr. Leo Pfeffer: Mr. Justice Frankfurter, that's entirely true.

In our brief, we -- we suggest that perhaps this might be a good time for the Court to reexamine On Lee.

But we need not go that far.

We need not go that far.

This is beyond On Lee.

On Lee, there was no violation of a fiduciary relationship.

A man goes into a store like a business visitor.

A friend is carrying this -- this little concealed microphone in there.

There is no violation of a representation in effect.

Here, the -- there was nothing which if -- if the defendant, now he did not want to talk to him there, he could have gone elsewhere.

Here, he could not escape -- he could not escape the bugging.

He could not go out and say I'll talk to you somewhere in my own home or somewhere else.

Here, the State of New York, through its official offices, set a trap and this was exactly the words of the State of New York, they used the word trap, a bugging trap, this was a trap.

I think this goes beyond -- this goes beyond On Lee.

And for the same reason, for the same reason, I think this is analogous to Silverman even though technically there was no physical intrusion.

There's no magic in physical intrusion.

There's nothing magic effect that -- that a wall was -- was spiked a half inch.

The Court refused in Silverman to say that this constituted a trespass within the meaning of the common law of trespass but refused to base it upon that.

The act was wrong, it was wrongful, was immoral.

And I suggest to you that there is nothing magic in the fact that in On Lee -- in Goldman, they spiked a half inch or a quarter of an inch into a wall, whereas here, they bugged a trap in the precinct room -- in a business room in the prison.

I think this is at (Inaudible) -- at least equally wrong and at least equally a -- inconsistent --

Unknown Speaker: (Inaudible)

Mr. Leo Pfeffer: -- inconsistent with the principles and the purposes of the Fourth Amendment.

And of course by the basis -- on the basis of Mapp, it is therefore unusable by the State of New York, unusable, not merely in the criminal proceeding but unusable by any part of the State of New York.

There is in one reason why I suggest that such be in the strictest standards as far as this --

Justice William J. Brennan: But when you say unusable, because I get it, unusable in this context is it couldn't -- the Committee couldn't even ask him a question.

Mr. Leo Pfeffer: Yes, yes, couldn't they ask questions basically, yes.

Now, in the case of --

Justice Felix Frankfurter: (Inaudible) of the witness.

Mr. Leo Pfeffer: I said that Mr. Justice Frankfurter.

If they summoned him on the witness on the basis of this tap, the answer is I believe that they could not do so.

They could not --

Unknown Speaker: Even though they gave him immunity.

Mr. Leo Pfeffer: The immunity is not -- is not the issue here.

He is not asserting that he would be -- that he's filed his rights under -- under self-incrimination are being violated.

He's asserting his right on a completely independent constitutional provision, the Fourth Amendment which is as forceful in its sphere as the Fifth Amendment, in this sphere.

Now, if in the case of use of evidence in the criminal proceeding which is illegally be obtained, I'm arguing could have made or have been made in the courts that when you have to weigh the competing values as between whether a person commits the crime should be free from the just it asserts as against the state's avoidance of using illegal means.

A reasonable argument (Inaudible) -- that the -- of the lesser of the two evils is that the state should use it -- the criminal -- the bad evidence and that the defendant should not go scot free.

Here, no crime was committed.

Nobody was invited, nobody was prosecuted.

The only prosecution here is a refusal to answer the question.

Were there no refusal to answer a question, there'd been no crime.

Nobody was indicted for answering, nobody -- as far as the record show, as far as any conduct by a State of New York is concern -- concerned, there was no crime committed by nobody at all.

Therefore, you don't have to come to really -- count of competing value, shall we allow crimes to be unpunished.

This is not involved here.

I think -- oh, Mr. Uviller said that if the statute had been enacted, the people could have gone and gotten permission leave from a judge to plant the wire, this tap, this bugging trap.

I think that begs that whole issue.

I think we have to assume if we are correct in our contention that this was immoral conduct, now if we're incorrect of course, enforced the case on that basis or a violation of the Fourth Amendment.

If this is not a violation of the Fourth Amendment or not moral conduct then we're not in court.

But if we are correct that this was a violation of the Fourth Amendment or if this was a moral conduct then we must assume that no judge would have permitted it.

The judge could not have made moral that which is immoral nor made immune from the force of the Fourth Amendment that which violates the Fourth Amendment.

Justice Hugo L. Black: (Inaudible)

Mr. Leo Pfeffer: Well, I -- I -- I think Mr. Justice Black that I would --

Justice Hugo L. Black: (Inaudible)

Mr. Leo Pfeffer: Yes, yes, yes.

I would prefer for my part to say that if the judge found that this would constitute a violation of the Fourth Amendment, I'm perfectly willing to go that he would not -- not only couldn't as Mr. Justice Frankfurter points out, but is -- we must assume he would not have granted permission for it since that permission would've been futile and I -- we must assume that he would not have authorized to do that which would be a violation of the Fourth Amendment.

It's only because wiretapping is held by this Court not to be a violation of the Fourth Amendment but simply statutorily prohibited that presumably a -- a statute can provide that if you get permission from a judge or if the Attorney General allows it then it could be -- it -- it is permissible.

But if as in this case, we assume that the conduct here was a violation of the Fourth Amendment, it's our assertion that no judge would have or could have granted the permission to --

Justice Felix Frankfurter: (Inaudible) that was your argument.

(Inaudible)

Mr. Leo Pfeffer: That's -- that --

Justice Felix Frankfurter: (Inaudible)

Mr. Leo Pfeffer: Well --

Justice Felix Frankfurter: (Inaudible)nobody should have decided anything except to say this (Inaudible) the court provided in the constitution, provided in the constitution (Inaudible)

Mr. Leo Pfeffer: It's in -- the reason -- well, this case is here Mr. Justice Frankfurter is that the New York courts did not know of Mapp.

They assumed on the basis of New York decisions that the fact that evidence is procured in violation of the Fourth Amendment or a violation of any other constitutional provision does not make the -- does make the evidence unusable.

It's -- this as a court is quite possible that had the court that had the benefit of Mapp, it would -- we would not be here.

But the issue, the court which -- the court's decision, the appellate court's decisions, the whole argument is that fact that the -- the (Inaudible) of the acquisition whether it's immorality or whether it's violation of the Fourth Amendment that's not important for this -- at this moment.

The (Inaudible) of the acquisition does not make the -- the fruits of the acquisition unusable.

Mapp has shown that it does.

Justice Felix Frankfurter: (Inaudible) this ground in which the New York -- the New York courts could draw, one, the question of materiality is dealt with.

Mr. Leo Pfeffer: Except --

Justice Felix Frankfurter: Was -- that was the New York law.

It didn't have to bother about anything else.

Mr. Leo Pfeffer: That was not the New York law.

The New York law permitted this evidence.

Justice Felix Frankfurter: I said that was the New York law which was decided.

Mr. Leo Pfeffer: Yes, yes.

Justice Felix Frankfurter: So that was of course the obvious ground obviously so that it is (Inaudible)

Mr. Leo Pfeffer: Exactly, yes Your Honor, yes sir.

Well, I think that I have sought to answer I believe those points which have been raised which I -- are most troublesome.

The rest I believe are briefs -- speaks for itself.

Thank you very much.