BERGER v. NEW YORK
Legal provision: Amendment 4: Fourth Amendment
Argument of Joseph E. Brill
Chief Justice Earl Warren: Number 615, Ralph Berger against the people for the State of New York.
Mr. Joseph E. Brill: Mr. Chief Justice, may it please the Court.
My client, Ralph Berger was convicted in a state prosecution for conspiracy to bribe the chairman of the New York State Liquor Authority.
His conviction was affirmed by the appellate courts in the State of New York and in each instance without opinion.
However, in the Court of Appeals, then Judge -- Chief Judge Desmond and Judge Fold, now Chief Judge Fold dissented in an opinion which appears at page 691 of the record here.
The questions before this Court as limited by the order allowing certiorari are found at page 3 of our brief.
They involve the constitutionality of the New York State permissive eavesdrop statute and on the assumption of constitutionality of such statute whether the ex parte orders for secret electronic bugging were made on adequate showing of probable cause.
Prior to the trial, a motion was made on behalf of petitioner to suppress evidence and leads thereto on the ground that the same were obtained in violation of his constitutional rights by trespassory electronic bugging of constitutionally protected areas.
That motion to suppress was denied, was lead to renew before the trial court.
At the outset of the trial, during the proceedings under the renewed motion to suppress, the parties entered into a stipulation under which it was agreed that without the evidence and the leads obtained from the electronic eavesdrop devices placed in certain private offices, there was no information to present to a grand jury or on the basis of which to prosecute the petitioner and that all of the evidence and all of the leads thereto were activities at those two locations.
The electronic bugs in those private offices were installed under authorizing officers -- orders, I beg your pardon, issued ex parte by a state judge pursuant to Section 813 (a) of the New York Code of Criminal Procedure.
Those orders made on April 10, 1962 and of June 16, 1962 for the separate premises involved, permitted the prosecutor, his agents, and police working under his direction, and I quote “to overhear and record by means of any instrument, any and all conversations, communications and discussions, that may take place between the persons present in the above mentioned room and to do all things necessary to permit said conversations, communications, and discussions to be overheard and recorded.”
The ex parte orders renewed the eavesdropping for 60 days and were thereafter renewed for additional similar periods.
Later in my discussion I shall advert to the -- in detail to the question as to whether they were submitted to the judge who made the orders, adequate proof to support a finding of probable cause as required by the Fourth Amendment of our federal constitution.
Justice John M. Harlan: What are the total directions of the orders have been extended?
Mr. Joseph E. Brill: Approximately four months Mr. Justice Harlan as I recall it.
Chief Justice Earl Warren: Do you mind telling us what kind of a device it was?
Mr. Joseph E. Brill: I beg your pardon.
Chief Justice Earl Warren: Would you mind telling us what kind of a device it was that was used?
Mr. Joseph E. Brill: It was a bug placed --
Chief Justice Earl Warren: Bug is not very descriptive --
Mr. Joseph E. Brill: The microphone --
Justice William O. Douglas: It was not a wire tap in the conventional --
Mr. Joseph E. Brill: It was not a wire tap Mr. Justice Douglas.
It was a microphone concealed in a telephone box such as it's usually covering the type of telephonic equipment found in any home or any private office connected to unused telephone wires, run through those unused telephone wires into another building where a listening post had been established and where those unused telephone wires were then connected to a recording device, a recorder.
Justice William O. Douglas: Why do you say it wasn't a wire tap then?
Mr. Joseph E. Brill: Well, it was not intended to be a wire tap, I must acknowledge.
Justice William J. Brennan: They picked up conversations in room, not of telephone?
Mr. Joseph E. Brill: It has surely did Mr. Justice Brennan.
It picked up everything in the room, including telephone conversation.
Justice William J. Brennan: The point is the pick up device was housed in the telephone equipment?
Mr. Joseph E. Brill: It was indeed --
Justice William J. Brennan: But not as part of a wire tap --
Mr. Joseph E. Brill: It was indeed --
Justice William O. Douglas: It wasn't -- it was restricted to what went over the telephone then?
Mr. Joseph E. Brill: It was not restricted to anything, Mr. Justice Douglas.
Justice Byron R. White: Well, if the -- it didn't even hear both into the telephone conversation, it just -- it just heard what was said in the room?
Mr. Joseph E. Brill: It heard all that was said in the room presumptively Mr. Justice White.
Chief Justice Earl Warren: Did it get the other end of the conversation?
Justice William O. Douglas: On the telephone?
Mr. Joseph E. Brill: On the telephone, I would have to say, no, Mr. Chief Justice.
It got that which was said in part incidentally the recording itself was inaudible.
It was -- as I characterized in the trial court, “gobble de goo.”
It was almost impossible to make anything have it except as it was put together in the course of the thousands of playings of the recording by the district attorney's office and the police squad attached to it in order to make a transcript which eventually was submitted to the jury, in order to aid it in understanding what was being said.
Justice William J. Brennan: But I gather Mr. Bill, this could have housed without any relation whatever to the telephone.
It might have been housed somewhere else in that room.
Mr. Joseph E. Brill: That's exactly right Mr. Justice Brennan.
It could have been housed anywhere in that room secreted in any place in the private offices and could have functioned without being concealed in the telephone box.
Chief Justice Earl Warren: But the authorization lies to get telephone conversation, would it not?
Mr. Joseph E. Brill: The authorization was to get any and all conversations which took place in that room, anything that was said by anybody in that room regardless of who that person maybe.
Justice William O. Douglas: So, where's the warrant?
Mr. Joseph E. Brill: The warrant is found at 691 and 6 --
Justice William O. Douglas: 691 continued --
Mr. Joseph E. Brill: -- I beg your pardon.
The first warrant concerning which we complain is found at 680 of the record Mr. Justice Douglas and the second warrant is found at 684 and in all respects except for the recitals concerning the affidavits on the basis of which the warrants were made, the direction is the same.
I would like with the Court's --
Justice William O. Douglas: The conversation that they take place in Room 1001 at 22 West 42nd – 48th.
Mr. Joseph E. Brill: That is correct sir.
That incidentally was the private office of an attorney.
The second warrant which appears at 684 authorizes the taking of all conversations, any and all conversations in Room 801 at 15 East 48th Street.
It also was a private office location.
Justice William O. Douglas: Is that an attorney's office?
Mr. Joseph E. Brill: The second one was not, Mr. Justice Douglas.
Justice William O. Douglas: Whose -- whose office was that?
Mr. Joseph E. Brill: The second one was the office of a man named Harry Steinman, who in the course of the proceedings, in which the eavesdropping was conducted under the first warrant is purported that to be a person who was to pay $30,000.00 for a liquor license.
He is described as a liquor license applicant.
He is later named in the indictment itself as a co-defendant.
At issue then firstly in this case is whether the New York ex parte judicial permissive eavesdrop statute --
Justice William J. Brennan: Excuse me Mr. Brill --
Mr. Joseph E. Brill: Yes, Mr. Justice Brennan.
Justice William J. Brennan: What is the record as to how the thing was put in each of the group, who did it?
Mr. Joseph E. Brill: That's very interesting.
It was disclosed at the trial that a police officer described as a wireman, surreptitiously in the early hours of the morning, placed these instrumentalities, the microphone which we call the bug, in the private offices, in which they were located and in at least one instance the policeman made a return visit to the premises.
It's my recollection to how it occurred --
Justice William J. Brennan: How did they get in?
How did they get into the office?
Mr. Joseph E. Brill: Well we weren't permitted to show that, Mr. Justice Brennan.
We attempted to show that --
Justice William J. Brennan: Well, may I ask, it does not appear that his entry in either instances was on the authority of the landlord or owner of the building or otherwise?
Mr. Joseph E. Brill: I think it can be assumed that it was certainly not under the authority of the tenant of the building.
It may have been and I have no knowledge with respect to this, possibly with the consent of the owner of the building, but certainly not with the consent of the tenant of each -- of either of the premises which were both --
Justice William J. Brennan: Well, is there any basis for an inference of the trespass in the --
Mr. Joseph E. Brill: Oh, clearly, clearly.
It's conceded as a matter of fact.
Justice William J. Brennan: In fact, it is only those as far as the tenants are concerned isn't it?
Mr. Joseph E. Brill: So far as the tenants were concerned and with respect to the particular premises in which the microphones were concealed.
Justice William J. Brennan: And the only authority in any event I gather for those entries of the orders that you referred us to?
Mr. Joseph E. Brill: The only authority before the entry was in fact the orders.
Justice William J. Brennan: They -- they don't say anything about how they get in, do they?
Mr. Joseph E. Brill: They say [Attempt to Laughter] to do anything that you wanted to --
Justice William J. Brennan: Just authorize -- authorize in the power to overhear and record by means of any instruments, what may take place, but nothing about any authority to go in no matter how you get in, isn't it?
Mr. Joseph E. Brill: That's right Mr. Justice Brennan, do anything at all to get in and just as long as you get in there and overhear any and all conversations that may take place.
Justice John M. Harlan: It's just like a search warrant --
Mr. Joseph E. Brill: Oh, no.
Mr. Justice Harlan, nothing at all like a search warrant if I may say so.
Justice John M. Harlan: Well, as far as the authority the purported authority to enter is concerned, the order has the same effect, is it not, as authorizing an officer to do the search warrant?
Mr. Joseph E. Brill: I don't think so Mr. Justice Harlan --
Justice Tom C. Clark: They weren't certain on your client, were they?
Mr. Joseph E. Brill: Certainly not Mr. Justice Clark and nobody had any idea that this surreptitious activity was being conducted with this --
Justice William O. Douglas: Was this war -- warrant limited to a day or an hour or any particular time?
Mr. Joseph E. Brill: It was not Mr. Justice Douglas.
It could operate secretly for 24 hours a day for a period of 60 days and then be renewed for a like period.
Justice William O. Douglas: The 60 days is provided by statute?
Mr. Joseph E. Brill: That is correct, Mr. Justice Douglas.
That was the expiration date authorized by the statute.
Justice William J. Brennan: Mr. Brill, does New York have a statute comparable with the federal 3109 requiring the before service of a warrant, notice of entry and announcement of purpose?
Mr. Joseph E. Brill: In connection with a -- the -- what we understand to be ordinary search warrant, I believe there is such requirement in law.
Justice William J. Brennan: But that doesn't apply with this?
Mr. Joseph E. Brill: It does not apply to the circumstances in this case or to the statute itself in this case Mr. Justice Brennan.
Justice William O. Douglas: But this said -- this didn't use airways just before the transmittal to the receiving machine?
Mr. Joseph E. Brill: In this particular case, it did not Mr. Justice Douglas.
This was the picking up, the overhearing of all conversations in the private offices concerned transmitted through the unused telephone wires to the listening post in another location.
Justice William O. Douglas: As you know the Federal Communications Commission recently issued an order governing certain transmission by devices like this.
Would this have satisfied that --
Mr. Joseph E. Brill: I don't think so Mr. Justice Douglas.
Justice Tom C. Clark: Where was the room in which --
Mr. Joseph E. Brill: I beg your pardon sir.
Justice Tom C. Clark: Where was the room in which the recording was placed?
Mr. Joseph E. Brill: Well, we were only able and permitted to ascertain that it was in another room -- it was in a room in another building but the trial court did not permit us as I recall the record to inquire us to the location of that other building.
Justice Tom C. Clark: The other building?
Mr. Joseph E. Brill: Yes sir.
We then present to this Court two issues.
Firstly, whether the New York ex parte judicial permissive eavesdrop statute may constitutionally authorize under the Fourteenth Amendment and as our amicus Civil Liberties Union urges under the First Amendment, a trespassory intrusion by electronic bugging in private premises to make a general search for evidence to support a criminal prosecution.
Secondly, on the assumption that the Fourth Amendment constitutionality of that statute is satisfied, where the ex parte orders for those room eavesdrops based on an adequate showing of probable cause.
It appears that this is the first case in which this Court is called upon to consider the merits of the constitutional question of whether otherwise unconstitution -- constitutional trespassory room bugging can be made constitutional by an advanced ex parte judicial order and whether a State statute setting up such a system is constitutional.
The recent Osborn decision does not reach this issue and I shall refer to Osborn in my discussion.
It is true that in Osborn, a form of electronic monitoring was approved on the basis of advanced judicial permission and it is true that in Osborn, several of the justices of this Court, joined in the decision apparently because this judicial permission was deemed to remove the constitutional objections under the particular facts in that case.
In the first place, Osborn involved a “minifon” device and not a surreptitious intrusion.
The “minifon” problem has always until now been regarded by this Court differently from the trespassory room bug.
Minifon type activity was approved by this Court in the On Lee and Lopez cases.
Trespassory room bugging has been disapproved since the Silverman decision.
It cannot be argued from this that the factor of advanced judicial permission in the Osborn “minifon” situation where the justices who had dissented or otherwise differed from the majority in On Lee and Lopez joined in the Osborn majority.
It cannot be argued from this that Osborn has settled for all purposes and for all types of electronic monitoring, the problem of advanced judicial permission as a cure or otherwise unconstitutional electronic eavesdropping.
Aside from the distinction between a “minifon” device and a room bug in private premises, Osborn is distinguishable from our case on several other grounds.
And Osborn fails to solve the entire problem of advanced judicial permission for several other reasons.
We have set forth in detail in our brief at pages 58 -- 55 to 58, the several distinguishing points affecting Osborn.
Above all, there is the matter of specifically limiting the monitoring -- the electronic monitoring which it was possible to do in Osborn where they were aiming at a specific scheduled conversation to be held at a specific time.
But how can this be remotely compared to a 60-day general room bugging order to overhear all conversations in a private place?
Whatever principles or standards maybe derived from the forms of the judicial permission which was approved in Osborn, those principles and standards cannot possibly be satisfied by 813 (a) of the New York statute and they have not been satisfied in this case.
Since Osborn then does not reach the question of advanced judicial permission for trespassory bugging, we must in this case explore an uncharted sea, that is, we have no guidance from any decision of this Court with the exception that I will mention to help determine what kind of judicial permission for trespassory bugging might be constitutionally acceptable or indeed where there any kind of judicial permission can constitutionally be devised for trespassory bugging.
I just mentioned that some guidance has been offered in earlier decisions of this Court.
I was referring to the discussion of Mr. Justice Lopez -- of Mr. Justice Brennan in the Lopez case, but the point was not pursued to conclusion in that discussion.
It was expressly left for a later day.
This case brings us to that day.
The immediate question in this case is whether New York State found a constitutional solution for the problem of judicial permission?
May I read excerpts from the New York statute?
An ex parte order for eavesdropping maybe issued by any justice of the Supreme Court upon oath or affirmation of a District Attorney, or of the Attorney General, or an officer above the rank of sergeant of any police department of the State, or of any political subdivision thereof, that there is reasonable ground to believe that evidence of crime maybe thus obtained, and particularly describing the person or persons whose communications, conversations, or discussions are to be overheard or recorded and the purpose thereof.
Any such order together with the papers upon which the application was based, shall be delivered to and retained by the applicant as authority for the eavesdropping authorized therein.
A true copy of such order shall at all times be retained in his possession by the judge or justice issuing the same.
As applied in this case through the eavesdrop orders that were issued, the statute as I've already indicated was given its maximum scope.
The eavesdropping was permitted for 60 days and then for renewed periods of 60 days.
It was permitted on an outright trespassory basis in private room premises.
It was permitted to be done as a deliberate, unrestricted search for evidence of any crime, and while I pass for the moment full details as to probable cause, I note here that the warrants used for electronic search were wholly unlimited in the sense that they bore no relation to the alleged probable cause.
Justice John M. Harlan: Is there a separate statute in covering wire tap orders?
Mr. Joseph E. Brill: There is Mr. Justice Harlan.
Justice John M. Harlan: Not embraced within this statute?
Mr. Joseph E. Brill: Not embraced within this statute.
Justice Abe Fortas: What happened to the tape?
Was the entire tape of all recordings produced in court?
Mr. Joseph E. Brill: In the proceedings on the motion to renew Mr. Justice Fortas, all of the reels of tape which were taken at the listening posts, were produced in Court marked as exhibits and in a dry run before the Court at which time they were present, actually attempting to record what was being reproduced, three certified court reporters, who attempted to make transcripts of that which was being reproduced.
As a result of the dry run before the trial court except for one reel which became Exhibit 61 (a) in the trial, all of the others were excluded on various grounds suggested and stated by the trial judge.
Primarily, they were held to be a material, irrelevant, no probative value, and they were also inaudible and impossible to understand.
Justice William J. Brennan: Well -- well, if that's the content that just picked up while the conversations that didn't deal with the --
Mr. Joseph E. Brill: It was Mr. Justice Brennan.
It was an attempted recording of everything that was said by anybody who was in either of the bugged premises.
That was what --
Justice William J. Brennan: But the only prosecutions that came out of the whole business are the ones that we have here?
Mr. Joseph E. Brill: Well, I'm not aware of the total number of prosecutions.
There have been several and on several grounds.
I understand that there have been some perjury indictments.
I understand that there have been other indictments.
There was at least one other indictment charging a conspiracy to bribe perhaps to conspiracy to bribe officials of the New York State Liquor Authority.
And I am not entirely clear as to the details with respect to the bugging or the wiretapping in each of those cases, but I am satisfied, for example that, there is presently pending an indictment in New York involving the Attorney Harry Neyer, whose premises were a bugged under the April 12, 1962 order on the basis of which it is said that there was a development in which he in a telephone conversation with a petitioner in this case led to further activities.
Chief Justice Earl Warren: When an order of this kind is made, is there any requirement for return to be made to the Court of what -- what was found or anything?
Mr. Joseph E. Brill: No Mr. Chief Justice --
Chief Justice Earl Warren: What is -- what is the recordation of this -- of this order?
Where -- where does it take place and under what circumstances can it be determined?
What's in it?
Mr. Joseph E. Brill: Well, that -- it does in fact create problems because under the statute, a copy of the order is given to the eavesdropper and a copy of the order at all times is retained in his possession by the issuing judge.
There is no central place in which it is filed and there's no disclosure with respect to with having them made or having them filed unless and until usually by accident it comes to light or by reason of the constant probing and the questions that are put by diligent counsel, it becomes developed and then only can the proceedings be developed in respect of them.
Chief Justice Earl Warren: But there is no public record made of the fact that an order of this kind was made?
Mr. Joseph E. Brill: The ex parte orders Mr. Chief Justice are entirely secret and are not made a matter of public knowledge until such time as there's had a proceeding on the basis of such emotion as the motions which I made, a motion which I made in this case.
The District Attorney in responding to the motion makes his argument and proof maybe taken.
In this case, the necessity for taking proof was obviated because of the stipulation which was entered into between the District Attorney and myself in which it was agreed that all of the evidence and all of the leads came from the trespassory bugging in these private offices and without that evidence and without those leads, there would be no case on which the prosecution could have gone forward.
Chief Justice Earl Warren: But this is entirely a star chamber proceeding.
There is no -- no public record made to the fact that this kind of an order was entered ever?
Mr. Joseph E. Brill: It couldn't possibly be better characterized, Mr. Chief Justice.
That's exactly what it was.
What ostensibly started as a -- as probable cause in regard to liquor license corruption culminated in electronic search warrants not limited to any specific crime or to any named person, or to any time except as I said before for the expiration date allowed by the statute, namely 60 days.
Justice William J. Brennan: I gather that you are coming separately to the business is probable cause?
Mr. Joseph E. Brill: I am Mr. Justice Brennan.
Justice William J. Brennan: But now you tell us that there's no limitation whatever, just a general get what you can and it may develop many or no crime, is that it?
Mr. Joseph E. Brill: That is true, Mr. Justice Brennan.
Justice William J. Brennan: And well, I suppose you tell us on the probable cause whether there's any requirement of pinpointing some particular crime you apprehend, would you?
Mr. Joseph E. Brill: I will.
I will Mr. Justice Brennan.
If there is ever going to be a statutory system of curing unconstitutional electronic eavesdropping through the cure of advanced judicial permission and anyone believes it will be this statute or one like it.
We have taken the position in our brief that no system of judicial permission can be constitutionally devised for this area except perhaps and I emphasized perhaps for the case of supreme public emergency and then only for security and not for prosecutorial purposes.
In order for this particular case to be reversed by this Court, it is not necessary that a Court agree with this in this broad policy position suggested in our brief, but I think that useful lines of analysis are opened up in our suggestion which can be helpful in deciding this case.
For example, should the constitutional right of privacy be subject to judicially permitted electronic intrusion without limit as to what kind of crime the police eavesdropper is seeking?
The New York statute is unlimited in this respect.
For example also, should the constitutional right of privacy be subjected to judicially permitted intrusion without even defining at all in the judicial warrant, what private conversations criminal or non-criminal maybe be searched?
Is that the way it was done in Osborn?
The New York statute, however, permits such search and indeed, it makes it inevitable.
It seems to us indisputable that this particular statute goes too far by any rational standard of our privacy traditions under the Constitution.
The argument on this point could end here without going on to ask, what kind of a better statute might satisfy the Constitution?
We take it that the Court maybe interested in having us explore the question in its broader extensions and for that reason, we have included in our brief a discussion of the broader policy implications of judicially permitted electronic eavesdropping.
And the conclusion which we have proposed is again that no system of judicial permission can satisfy the Constitution for any case of electronic search where the purpose is criminal prosecution.
I've asked myself whether some position short of this perhaps could be worked out to allow judicially permitted electronic eavesdropping for criminal prosecutions and I have not been able to find a constitutionally, logical or palatable answer short of outright ban.
One reason, why we have believe that necessary to formulate our position is the advent of the age of the parabolic microphone and no one knows what has yet to come?
I have not yet touched on the subject of Fifth Amendment self-incrimination.
The Court is frequently spoken of the interplay feature as between the Fourth and Fifth Amendments.
The indiscriminate character of electronic room bugging and the warrants in this case, make it inevitable that Fifth Amendment rights as well as the Fourth Amendment rights are immediately threatened.
The rights are threatened both through the general search that is intrinsically involved in any such indiscriminate room bugging and they are threatened even more acutely in this case by the search for mere evidence.
In fact, the search for mere evidence is the expressly declared purpose under the New York statute and under the warrants issued in this case.
I come now to our second point, that is, assuming the federal constitutionality of Section 813, we asked whether the ex parte eavesdropping orders authorizing the intrusion nevertheless are invalid under the Fourth Amendment because they were not based upon an adequate showing of probable clause.
These ex parte orders here were secured on application to a judge under the provision of that statute 813 (a).
Justice William J. Brennan: Are the applications in the --
Mr. Joseph E. Brill: They are, Mr. Justice Brennan.
The applications in support of the first order made on Attorney Neyer's offices, with respect to Attorney Neyer's offices appear at 681 to 683 inclusive of the record and the applications in support of the second eavesdrop order on the premises of Steinman appear at pages 685 to 687 inclusive of the record.
We take the position that the record of the proceedings on the renewed motion to suppress before the trial judge, fails to establish that any sworn testimony or evidence was adduced before him indicating that any showing or presentation was made to the issuing judge beyond the affidavits recited in the orders as the basis for the issuance of the Neyer and Steinman eavesdropping.
The validity of the orders then must stand on the record made before the issuing judge.
And as Your Honors can see that record in the case of each order consisted only of the affidavits of two assistant district attorneys in the application for and in each instance the order itself.
The affidavits, primarily the affidavit made by Mr. McCanna which is adopted by reference, by Mr. Scotti, in the Neyer's eavesdrop, rarely -- merely recite in conclusory fashion that the affiance have “information” and “evidence” that a conspiracy exists to force persons seeking to obtain or retain liquor licenses to pay large sums of money for them.
And that Harry Neyer, an attorney, must be engaged to carry the bribe or extortion money to the State Liquor Authority official.
No facts are set forth concerning what information or evidence is alleged to be in the prosecutor's possession, or the source of that information or evidence, or the reliability of the source.
The order itself asserts that it was made on the affidavits of the two assistant district attorneys and makes no reference to “minifons” or any other information or evidence.
In the application in support of the second Steinman eavesdrop order except for references to the earlier Neyer eavesdrop, and that from it evidence was obtained indicating that Steinman had agreed to pay $30,000.00 to Neyer to secure a liquor license, that Court was informed of no more than it was on the Neyer application.
Here again, no facts are set forth in the affidavits identifying the persons from whom the evidence was obtained or the reliability of such persons, or any reasons for crediting them.
The Steinman order itself recites as does the Neyer order that it was made on the affidavits of two assistant district attorneys.
It likewise makes no reference to “minifons” or any other information or evidence.
It is apparent then that except for a reference to a prior eavesdrop of attorney Neyer's office and an innocuous statement that Steinman was a prospective license applicant required to pay $30,000.00, the allegations in support of a Steinman order are sheer unsupported conclusions based on general claims of information or evidence in the prosecutor's possession.
In short, the affidavits on both applications furnish nothing upon which the magistrate could make an informed, and deliberate determination as required by this Court in Aguilar v. Texas.
Contrast these inadequate affidavits with a meticulous showing required to be made and in fact made to the district judges in Osborn, the federal Fourth Amendment decisions preclude the giving of any weight to any after thought suggestion that the respondent could have justified both eavesdrops on the basis of prior “minifon” recordings.
Indeed, the record keeping requirements of 813 (a) negate any possible intention by the New York legislature that eavesdropping when subjected to later Court review should be sustainable on the basis of anything beyond what the formal record itself states.
I ask this Court to note that the references to prior “minifons” and other information now suggested as a basis for probable cause was mentioned for the first time by the prosecutor on the renewed motion to suppress before the trial court.
Finally in view of Osborn one may ask, “Where are the judicial permissive orders for the “minifon” surveillance which the prosecutor claims were antecedent to and supported the application for the room bugging orders in this case.
In closing, I would like to refer to footnote --
Justice Hugo L. Black: May I ask you one question?
Mr. Joseph E. Brill: Yes, Mr. Justice Black.
Justice Hugo L. Black: Suppose this was not the electronic eavesdropping, would you say that there have to be applications to the judge and order under the constitution for plain ordinary everyday eavesdropping could be engaged in?
Mr. Joseph E. Brill: I would say Mr. Justice Black that no plain everyday ordinary eavesdropping would be permitted to be conducted under an order for which an application was made to a judge where the search would be an indiscriminate one from mere evidence without regard to whose conversations were being overheard, without regard to what crime if any was being committed or had been committed, I believe that such an application --
Justice Hugo L. Black: So, why would one be required, suppose that they were not in a house, they won't use without somebody on the outside of the house, in the street?
Mr. Joseph E. Brill: I think that would be a different situation Mr. Justice Black, but that would not be our case.
Justice Hugo L. Black: I understand it wouldn't, but would you -- would you think that that somehow violates the Constitution?
Mr. Joseph E. Brill: Well, I feel that it does.
This Court, however, in Osborn felt that that was proper under the particular circumstances in that unique case which may never again be repeated.
Justice Hugo L. Black: That's all.
I thank you.
Justice William J. Brennan: Well, in other words, suppose instead of an order that put this eavesdropping mechanism, the order was hide a policemen the closet in the Neyer's office.
Justice William O. Douglas: Or under the bed?
Justice William J. Brennan: Yeah.
Mr. Joseph E. Brill: I don't think that in either instance there would be a difference.
I think that in either case such an order would be constitutionally intolerable.
Justice William O. Douglas: Would one be the if that's been accepted warrant issue, could it issue under the New York Act or is this relate just to --
Mr. Joseph E. Brill: This relates to eavesdropping and I believe it could issue under this Act.
Justice William O. Douglas: Have you had any experience with that in New York?
Mr. Joseph E. Brill: None to my knowledge Mr. Justice Douglas.
Justice Hugo L. Black: The Court just related then to electronic eavesdropping –
Mr. Joseph E. Brill: No.
Justice Hugo L. Black: – before getting it --
Mr. Joseph E. Brill: No, Mr. Justice Black.
I believe that the statute is constitutionally intolerable because it permits indiscriminately any kind of general search as the statute authorizes.
Justice William J. Brennan: Well, I gather thought you are emphasizing that this is if I've forgotten your word trespass or something rather --
Mr. Joseph E. Brill: Trespassory invasion
Justice William J. Brennan: Trespassory invasion and I take it, well, they're authorized the mechanical device or a police officer in the closet it would still have the aspect with trespassory invasion?
Mr. Joseph E. Brill: It would, Mr. Justice Brennan.
Justice Byron R. White: Well, I suppose you would have the same reaction, if Mr. Steinman after say the first -- first event or first business arrangement with the police and then begin working with the police and -- but no one knew it.
And he -- and he sat in his own office or in Mr. Neyer's office and had conversations with many people and reported them to the police.
Mr. Joseph E. Brill: Under such a warrant as we have in this case --
Justice Byron R. White: Well, would that be -- you would -- with or without a warrant, I supposed you would say that word unconstitutional too?
Mr. Joseph E. Brill: I would say that that too would be constitutionally intolerable.
There is a distinction between the type of situation which you suggest Mr. Justice White and the situation which was suggested in Osborn.
Chief Justice Earl Warren: But in the situation that Justice White put to you, there would be no trespass, would there?
Mr. Joseph E. Brill: In that situation --
Justice Byron R. White: You went to Mr. Neyer's office, would that be a trespass?
But you wouldn't think that made any difference whether it was a trespasser or not, would you?
Mr. Joseph E. Brill: If he went to Mr. Neyer's office, there might be a trespass.
If he conducted these conversations --
Chief Justice Earl Warren: Well, I would stop putting it in Mr. Steinman's office where he turns State evidence and was willing that the -- that the person or the electronic device be put in this room.
There is a difference there because there would be no trespass as to Steinman, would there?
Mr. Joseph E. Brill: There would not in his own office, Mr. Chief Justice, no.
Chief Justice Earl Warren: Yes, that's all I was talking about.
Mr. Joseph E. Brill: Yes, that's correct sir.
Justice Hugo L. Black: Would you call that constitutionally intolerable?
Mr. Joseph E. Brill: Mr. Justice Black, I believe I would -- I do call that constitutionally intolerable and I'm aware that -- I'm aware that there is a difference between the Court and myself in that regard.
Justice Tom C. Clark: We have a case on that?
Mr. Joseph E. Brill: That's true, Mr. Justice Clark.
Justice Byron R. White: I suppose you want to know that you would find it's constitutionally intolerable whether Steinman had conversations in his own office or in Neyer's office, as long as he was working with the police and the others didn't know it?
Mr. Joseph E. Brill: The distinction which I made Mr. Justice White was that if he had the microphone, the concealed microphone in his own office, the element of trespass would not be involved.
If on the other hand he went to Mr. Neyer's office, secretly cloaked with the microphone, the “minifon” or whatever device he maybe using, I think a trespass might be involved.
In short, as I indicated to --
Justice Byron R. White: Well, that would be true whether he carries a “minifon” or not?
Mr. Joseph E. Brill: Yes, sir
Justice Byron R. White: Then you would have the same reaction, wouldn't you?
Mr. Joseph E. Brill: I would as I say I'm aware of the difference between the Court and myself on that regard.
In closing, I would like to refer to Footnote 75 found at page 44 of the brief of respondent's amici, the Attorney Generals of Massachusetts and Oregon and the National District Attorney's Association in which there is made the tacit admission that the warrants in this case were issued without an adequate showing of probable cause.
May I reserve 10 minutes, Mr. Chief Justice?
Chief Justice Earl Warren: You may.
Mr. Joseph E. Brill: Thank you.
Chief Justice Earl Warren: Mr. Uviller
Argument of Richard Uviller
Mr. Richard Uviller: Mr. Chief Justice, may it please the Court.
Our aim in this matter is to define electronic eavesdropping as a search and seizure, subject to the control of the Fourth Amendment and capable of judicial regulation there under as any other search and seizure.
We believe that in electronic eavesdropping under the Fourth Amendment there can be lawful means of acquiring evidence when it is executed and carried out in conformity with traditional Fourth Amendment regulations.
It should not be too difficult to define it as a search and seizure.
This Court has already regarded it as a Fourth Amendment question in another context in the Silverman case.
Indeed it is strongly analogous to conventional search and seizure for tangible objects, a primary difference being that what is sought in the case of an eavesdrop is words or speech.
Indeed, this is not so different from a conventional search and seizure when the object of that search is also words recorded in the nature of invoices, checks, bills, and so forth.
This is indeed a more sophisticated means of search and seizure.
As our economy and culture has grown more sophisticated so have our devices of law enforcement.
Justice Abe Fortas: Well, doesn't the privilege against self-incrimination cut across your argument with respect to this minifon?
Mr. Richard Uviller: I -- It is -- it is our contention -- it is our contention that this is not a means for compelling self-incriminatory statements.
Justice Abe Fortas: Well, as if you say its like a search warrant, it is?
Mr. Richard Uviller: A search warrant in our view is not a compulsory document in the same sense as a subpoena either.
I -- I'm aware Justice Fortas of the Boyd doctrine in which the Fourth and the Fifth Amendments are in a sense blended and indeed in that era and in the emerging understanding of civil liberties protected by these Amendments, there was some language about the compulsion of a search and seizure or of a search warrant.
I suggest that the Fifth Amendment has no place in our contemporary understanding of the Fifth Amendment.
It has no place in a search and seizure situation.
The Fifth Amendment has no place where the search and seizures where incriminating evidence obtained from the person.
The Fifth Amendment has no place where it is for physical substance such as a man's blood obtained from the person.
Was there a compulsion when blood was taken in Schmerber?
I should say that there was the most oblivious sort of compulsion in the sense that a man against his will was held down while his veins were pierced.
Justice Abe Fortas: I see, your reliance is on Schmerber?
Mr. Richard Uviller: Well, I think that Schmerber is -- is enlightening in this regard, Justice Fortas.
I do not rely upon it entirely because I do think that Boyd or Gouled decision has today the respectability of the -- of one of the federalist papers.
I mean it is extremely difficult for an advocate to address critical remarks to the Boyd decision.
I do feel in all candor that there might maybe some reverence attributed to that opinion which is not fully deserved.
And -- when I -- I mean to discuss mere evidence, although it was quite fully and very interestingly discussed yesterday.
I still think that I cannot succeed here unless I can persuade the Court that the Gouled rule and to the extent that the Gouled rule relies upon Boyd should be no longer followed.
It should be disregarded.
Justice Hugo L. Black: Did you have challenge to Boyd or the concurring opinion of the majority?
Mr. Richard Uviller: The majority opinion; I -- I see Boyd and this is really essential to my argument, Justice Black, I see Boyd for all that it does express some very important principles which have contributed to the growth of civil liberties in this country and I can well understand how such a man as Justice Brandeis would have appraised it as highly as he did.
But I see Boyd at heart as a property founded decision.
I see the essence and heart of the -- of Boyd decision as Entick against Carrington.
And Entick against Carrington as being a trespass decision, a decision which does not hold up with pride, the right of the individual to be secure and private in his thoughts and deeds from the intrusion of government, but a decision which holds up consistent with the English in early American policy which holds up the right to property as the superior right and all else follows there from.
Justice Abe Fortas: Well, that certainly is not the history of the Fifth Amendment of the privilege against self-incrimination?
Mr. Richard Uviller: The Fifth Amendment is for --
Justice Abe Fortas: That's been -- that's been an accuracy of testimonial privilege of saying its --
Mr. Richard Uviller: The Fifth Amendment or the Fifth Amendment in Boyd and the similar privilege as mentioned in Entick, it seems to me was brought in almost by the way.
I do not think that the Fifth Amendment or the privilege against self-incrimination really pertains to a search and seizure.
It's not just Schmerber.
It's because the two are very different, the Fifth and the Fourth.
Justice Abe Fortas: But how are you helped if you -- you are -- if there is a wall erected between the Fourth and the Fifth Amendment, but nevertheless this is a Fifth Amendment violation here?
I take it that the stipulation here means that the words which were garnered and some other might take it from Mr. Berger's own lips.
Justice Hugo L. Black: Oh, yes.
Justice Abe Fortas: The words that were garnered by this surreptitious trespass were incriminatory.
I take it that that's what we have to assume from the stipulation?
Mr. Richard Uviller: I don't -- I don't want to --
Justice Abe Fortas: Now, that raises the Fifth Amendment problem, how are you helped?
Mr. Richard Uviller: Mr. Justice, every piece of evidence that is obtained is incriminatory.
I mean by definition, everything that is search and seizure seeks and obtains as incriminating evidence.
Justice William O. Douglas: In the Miranda case, he was talking in the cell in the precinct -- in his precinct, he wasn't really tortured.
He was talking voluntarily in that sense, but he was in an atmosphere, we said of coercion.
Justice Abe Fortas: And he at least knew that he was talking to the police agents, but here you have a man talking without knowing that he's talking to police agents --
Mr. Richard Uviller: I have --
Justice Abe Fortas: And it would be putting hard I should think to say that this was a voluntary like on the part of Mr. Berger, wouldn't it?
Mr. Richard Uviller: Justice Fortas the Court found no difficulty in saying that there was no compulsion in Osborn and in Hoffa despite the fact that that very situation pertained there.
Unknown to him, he was talking to a police agent and there was no compulsion specifically so found.
Justice Abe Fortas: Well, it's quite a different kind of problem?
Mr. Richard Uviller: Why -- well, but is it as far as compulsion --
Justice William J. Brennan: There's no Pardon at this stage --
Mr. Richard Uviller: I beg your pardon sir?
Justice William J. Brennan: No pardon, -- no Mr. Pardon --
Mr. Richard Uviller: No Mr. Pardon no Mr. Vic in this case.
Mr. Pardon and Mr. Fit Vic a little microphone fixed to the wall, but as far as compulsion is concerned is there any greater degree of compulsion when two people talk in their office overheard by a microphone and when two people talk in an office overheard by a recording device on one of them.
I say that to bring compulsion into the Fourth Amendment, the Miranda case Mr. Justice Douglas, I've read and reread and I think the Court went to considerable lengths in that case to explain just why they felt that there was an atmosphere of coercion inherent in certain types of interrogation.
And I'm – and if we read the Court's intend to that decision correctly.
We believe that those conditions must exist before there is compulsion.
Simply the conversation between a police officer whether he'd be obvious and open, or whether he's then be concealed does not have in it that sort of compulsion which brought the Fifth Amendment into plain random.
Justice William O. Douglas: Of course, the seizure of a letter by a subpoena or the seizure of a letter by a warrant doesn't have in it the element of voluntariness that we normally associate it with?
Mr. Richard Uviller: Well Justice Douglas I --
Justice William O. Douglas: Go ahead
Mr. Richard Uviller: – would make a distinction between subpoena and warrant.
Now in Boyd they were -- they were -- they were joined together although that was indeed it seems to me a subpoena type of statute.
In a subpoena the defendant is required to bring forth the incriminating evidence against himself and in effect connect it to himself by authenticating it, that characterizes a subpoena.
In a warrant situation, not only does the accused not have to do anything himself but he is required to do nothing.
Justice Abe Fortas: What happens to him if he refuses to submit to the search and it's -- but it's a lawful warrant?
What happens to him?
Do the police say, “Well, that's okay?
Thank you very much.
Mr. Richard Uviller: No, I would assume the police would take such measures and it's necessary to carry out the order of the Court.
But that doesn't mean --
Justice Abe Fortas: And you would say that's not coercive that that doesn't involve any element of coercion?
Mr. Richard Uviller: Correct.
It does not compel self-incriminatory statements from the man anymore.
Justice Abe Fortas: It just says that you have a choice between making yourself incriminatory statements or going to jail, that's all?
Mr. Richard Uviller: That's correct, sir.
Exactly the way if a Court -- Justice Fortas, if a court orders a man's arrest on probable cause by warrant, that man is required to submit to that arrest because the court had ordered it. Is that an invasion of his privacy?
It seems to me that an arrest is at least created an invasion of a man's privacy.
He's listening to what maybe said in his office.
If he is -- if that can be ordered by a court on probable cause, then cannot a -- all -- all investigations every aspect of the -- of a criminal prosecution from the stand -- from the point of getting the evidence, the point of getting the defense.
Justice Abe Fortas: The problem is -- the problem is to whether -- the problem is whether the compelled action, the two -- two questions.
One is the action compelled in a sense; and two is, whether the action is in violation of constitutional right.
And there you have when you're talking about the -- whether this is a voluntary action or whether it has an element of involuntariness and I was suggesting as a remote hypothesis that where a man is required to do something on pain of going to jail that that may not be totally voluntary.
Next question is whether -- what he is being compelled to do is something if the State can properly compel the citizen to do or whether it is in violation of the citizen's constitutional rights.
Mr. Richard Uviller: Justice Fortas, there maybe misunderstanding here but I read the implication of what you said to me.
That anytime the search warrant for a gun is issued by a court and a defendant is required to yield that gun pursuant to that search warrant there is a violation of the Fifth Amendment.
Justice Abe Fortas: Oh, you've quite misunderstand me, of course you do.
I'm talking about conversation.
I'm talking about something that a person says, so well within the scope to which the Amendment applies.
I'm talking about conversations, statement of the person that is obtained from him either by the an application of force as in the old days or by a surreptitious trespass as it seems to me a current practice in some areas right now.
Mr. Richard Uviller: Well perhaps if I may, Justice Fortas, I'd like to address myself to the use of the word trespass.
That word is used frequently by my adversary and indeed it's used frequently in this connection generally.
By a trespass, I understand an unauthorized, an unwarranted invasion of either a man's premises or some other aspect of his private life.
To use the term trespass where we are talking about a surveillance pursuant to a court order issued on probable cause seems to me to be a confusion of the issue and a misuse of the term trespass.
I don't that this can be called a trespassory eavesdrop --
Justice William J. Brennan: May I ask you with this.
Suppose this had been -- every fact we had in the Silverman except that you had a Court order, I gather under the statute, the police would have been free to use the Silverman type of device --
Mr. Richard Uviller: Any device I'm quite sure of.
Justice William J. Brennan: Now suppose -- suppose we had everything except the -- here we got the Court order, you'd still say, “Silverman is not trespassory?”
Mr. Richard Uviller: Well --
Justice Abe Fortas: If you had the Court order?
Mr. Richard Uviller: Well, positively because once the Court order -- order autho -- specifically authorizes the intrusion and it seems to me that can be no longer --
Justice William J. Brennan: Even though in fact -- well, I mean you say the order for, I had trouble, I must say, seeing whether there's anything in this order which says to a policeman you can drive a spike mic into Mr. Neyer's office wall.
I don't know how you find that in there but do you tell me that's what -- that's interpreted to me, is that it?
Mr. Richard Uviller: Yes sir and I -- and I certainly cannot point any language in the order that specifically authorizes them the means of placing the instrument within the order -- the order in point of fact takes the act.
Justice William J. Brennan: Why don't we know how the police did this?
Why -- why is it?
Justice Byron R. White: Aren't you quite willing to assume that the police -- that the police did something here which without the order would be trespass?
Mr. Richard Uviller: Without the order it could be -- it would be a crime.
Justice Byron R. White: Alright.
I mean, that's what you -- so we can assume that there was a -- this criminal trespass absent the orders in this --
Mr. Richard Uviller: There is the -- there will be the crime of eavesdropping.
but the -- there would be also --
Justice William J. Brennan: Getting -- in getting -- now, just getting into the place --
Mr. Richard Uviller: Yes.
Justice William J. Brennan: – just getting into the place that they must have got a key or they broke the door down or something to take it --
Mr. Richard Uviller: Well, they didn't break the door down because they didn't want to leave any traces of having been there.
[Laughter] And they didn't have a key for the same reason, so they obtained entrance into a locked room without a key and without force.
Justice William O. Douglas: Well as I read the --
Justice William J. Brennan: A legalized burglary is that –
Justice William O. Douglas: As I read these cases from the 18th Century -- in the 18th Century, they were -- they were tested by usage of a trespass action.
Mr. Richard Uviller: Yes, sir.
Justice William O. Douglas: There was John Wilkes, wasn't it?
There was Entick and Carrington and so on?
Mr. Richard Uviller: Yes -- well, Entick was a -- yes, I guess it was.
Justice William J. Brennan: Trespass action --
Mr. Richard Uviller: Yes.
Justice William O. Douglas: So this would be a trespass but for this warrant?
Mr. Richard Uviller: It certainly would be a trespass but for the warrant.
I mean, it would be the clearest sort of trespass but for the warrant.
There's no question about it.
I go further than that and I was about to say it would be a crime because New York does make this action a felony.
The felony of eavesdropping, a statute which is enforced and which people have been indicted and this by authorizing the overhearing and interception, and recording, takes the action out of the ambit 738 of the crime.
Justice William J. Brennan: And I take that this could have happened in my house if I lived in New York, maybe I'm glad that I don't [Laughter] but is that right?
Mr. Richard Uviller: The limitations are I am suggesting Justice Brennan are the Fourth Amendment limitations which to me --
Justice William J. Brennan: No but could it happen -- could they -- could one of these orders authorize the same thing in my home?
Mr. Richard Uviller: Could it?
It certainly could.
However, there wouldn't have to be Fourth Amendment requirements followed and what that means to me, are these -- these conditions.
One that it would have to be probable cause to believe that evidence of crime could be obtained in this manner and that is the basic Fourth Amendment foundation it seems to me for one.
Second, the order would have to be specific and particularized the place in which it could occur -- could occur which is again Fourth Amendment and the thing to be seized -- now this it seems to me is -- that's one of my most difficult hurdles here.
If I am going to try to analogize electronic surveillance and the search for and seizure of words, spoken words with a search for tangibles, we may -- we must define what we mean by the seizure of the thing of -- in as much as if that is incapable of particularization as is alleged here then we cannot bring this within the permissive as well as the prohibitive features of the Fourth Amendment.
Justice Abe Fortas: But isn't that really the difference between the Osborn situation and this, that is to say in Osborn, there's the chance anyway that the conversation would be -- that was reported would be pinpointed and --
Mr. Richard Uviller: Would be --
Justice Abe Fortas: Would be pinpointed and related to the subject as to which there was presumably a showing of probable cause and that's the difference between minifon in the Osborn situation and this sort of a universal recording of whatever goes on and including I assume many things that had no relationship or whatever to the showing of probable cause?
Mr. Richard Uviller: I don't see that that is a significant distinction in the sense that, a man who goes in with the minifon face the facts, may also record other things.
The man gets on the telephone and talks to someone else and so on.
I think the principal difference is that there's no search in the minifon situation.
It's just a conversation preserved by a memory device, electronic memory devices.
In the search, in bringing electronic surveillance within the search, I have no difficulty with its generality because it seems to me a search is inherently invites nature general.
If the search can be defined as the use of the senses to perceive, to perceive in the quest for a particularly designated object, then clearly a search for tangible objects is necessarily general and it perceives the innocuous along with the -- with the guilty.
It perceives the mere along with the other or non-evidence.
It perceives everything that comes in the natural range of the particular sense of human faculty that's being employed for the search.
So it seems to me the fact that an electronic eavesdrop also perceives the innocuous, perceives the irrelevant to its object, if you will, does not invalidate it either from a -- from the standpoint of an analogy with conventional search and seizure or --
Justice William J. Brennan: And even if what -- what to get in the way of conversation proves an entirely different crime from that -- for which you got the authorization?
Mr. Richard Uviller: Well, that then I think Justice Brennan is another question.
This -- this Court has indicated, I think there's a conflict between Harrison and Millard in this situation which you can only seize what you can thought what is specified in the warrant.
And if you're search had uncovered something else, you cannot obtain it.
A string of lower court cases which I've cited in the brief, indicate the contrary have said that once a police officer is lawfully on the premises for one reason or another either executing a lawful warrant or for some other reason, he does not have to close his eyes to incriminating evidence that falls within the --
Justice William J. Brennan: Well, I just wonder in this case, suppose they turned up some conversation of confession to a murder?
Mr. Richard Uviller: That's another case.
Justice William J. Brennan: It would be another case, what would New York do about it?
Mr. Richard Uviller: Well, New York is already acting on that in this other case.
Justice William J. Brennan: And prosecute it?
Mr. Richard Uviller: People against Gandiffier and Grossman, the trial court reversed on that ground among the others and it was reversed by the appellant division and the conviction was sustained on the grounds that the order being legal initially what was perceived during the course of it relating to the commission of another crime did not have to be disregarded by the police.
There's a conflict on what to do if you discover evidence of a different crime and the one you're looking for, and that conflict is true on -- on conventional search cases.
Justice Potter Stewart: Harris, Harris.
The Harris case stands very exactly on the proposition, doesn't it?
Mr. Richard Uviller: It does --
Justice Potter Stewart: They were looking for two cancel $10,000.00 checks as I remember and they found some false selective service.
Mr. Richard Uviller: Yes, selective service.
Justice Potter Stewart: Forged selective service
Mr. Richard Uviller: And the conviction was upheld and that case conflicts I think with Maryland.
But I --
Justice Potter Stewart: Yeah.
With the prohibition in that case.
Mr. Richard Uviller: Yes.
But there's --
Justice Potter Stewart: Books and record.
Mr. Richard Uviller: As there -- I suggest that the Harris rule is the sound of one as far as this is concerned.
The generality of the search then is controlled by the Fourth Amendment only as to place.
The language of the Fourth Amendment in limiting the search as distinct from the seizure limits it only as to place, not as to thing.
And I think that this is rational and reasonable as I have said because the search naturally perceives more than the designated project.
As to the seizure however, the thing must be designated and this is to somewhat difficult --
Justice Byron R. White: Do you think this is really -- you can go ahead but that -- what -- is there really anything seized at all?
Mr. Richard Uviller: Is anything seized?
I -- I would say yes, Justice White and my --
Justice Byron R. White: What is it -- what if the police -- what if the warrant authorized the policeman to hide in the closet?
They had no recording device or anything else, they just listened and came out to testified to what he heard, is there a seizure?
Mr. Richard Uviller: Yes, sir.
I think there is.
I have some difficulty in fixing the point at which it occurs but I believe there is the seizure.
And I -- I would have to say that the seizure occurs at some point beyond the mere perception because I defined the perception of the search.
I think again, there's an analogy which is already helpful to protect --
Justice Byron R. White: Well, does it make any difference -- does it make any difference though?
Let's assume -- let's assume there wasn't any seizure, you still got the same problem, right?
Mr. Richard Uviller: If there wasn't any seizure then you either have nothing or a crime.
I mean, you don't have a problem with an exclusionary rule.
Justice Byron R. White: Why?
Mr. Richard Uviller: Because nothing has been offered in any trial.
Justice Byron R. White: Oh, I know but there's no -- it doesn't mean that – that's what I say you still have the same thing left even if you say there isn't anything -- there isn't any seizure.
The fact that there's evidence offered and testimony offered, it doesn't mean there was a seizure?
Mr. Richard Uviller: If it comes under the Fourth Amendment, it does -- I've -- in conventional --
Justice Byron R. White: It doesn't have to be a seizure to file in the -- to violate the Fourth Amendment and there could be a search that but no seizure or whatsoever that violates the Fourth Amendment.
Mr. Richard Uviller: I think Your Honor is referring to those cases, in which there was no physical possession obtained in the article, but there was subsequent testimony in Court relating to the article that was seen.
I would suggest that rather than that being the case of no seizure, that was a case of constructive seizure because the Fourth Amendment prohibits search and seizure, it doesn't prohibit search.
Justice Byron R. White: Well, I just don't -- this doesn't appear to me that it makes much difference when you call a seizure, not as you saw this thing problem that --
Mr. Richard Uviller: Well, alright.
Perhaps it's a seizure --
Justice Byron R. White: -- it is not about seizure then?
Mr. Richard Uviller: Perhaps it's a -- it's a semantic problem only.
I -- I am struggling to define seizure because I think that there is a point at which the -- there can be an exclusionary rule brought to bear upon the obtaining of oral evidence outside the scope of a warrant.
Justice William J. Brennan: That is to include of an illegal search or something like that?
Mr. Richard Uviller: It's something of that sort.
I -- I would choose to call that a seizure but it -- I'd be perfectly willing to yield on that the call it just an aspect of the subpoena -- the use of the fruits of a search.
But indeed I --
Justice Hugo L. Black: Excuse me.
Mr. Richard Uviller: Yes, sir.
Justice Hugo L. Black: Did I understand you to say that, you do not think the Fourth Amendment prohibits a search or seizure, but only a search and seizure?
Mr. Richard Uviller: Well, insofar as the exclusionary rule --
Justice Hugo L. Black: I'm not talking about the exclusionary rule.
I'm talking about the protection of the Amendment.
I had supposed that included both an unlawful search and in unlawful seizure separately or collectively?
Mr. Richard Uviller: It's difficult -- I would -- I would suppose the same, but it's difficult to see what the enforcement for an unlawful search without a seizure could be --
Justice Hugo L. Black: Could be crucial, isn't it?
Mr. Richard Uviller: But well -- yes.
The Fourth Amendment of course doesn't do that.
I mean, we -- local statutes prohibit trespass, prohibit -- we specifically prohibit search by electronic means whether it be wiretap or eavesdrop and that seems to me is a local police regulations, it's a statute.
Justice Byron R. White: Couple of the -- three or four weeks ago, an argument here on the building inspection, the opposite of Frank against Maryland, the question is inspection, not the seizure, no issues there not -- whether or not as the Fourth Amendment, it does protects people from being inspected.
It's not seized and I suppose that a policeman that just walks through a door without a warrant with no probable cause or anything else or didn't report that walked through the house, seized nothing saw nothing there was no criminal case pending or anything might well be -- might well be sued or something.
Mr. Richard Uviller: Oh, yes.
Justice Byron R. White: Successfully --
Mr. Richard Uviller: Oh, yes
Justice Byron R. White: -- because of the Fourth Amendment?
Mr. Richard Uviller: Well, perhaps so.
I -- it's certainly consistent with the Fourth Amendment but a right of the civil action for trespass --
Justice Byron R. White: What if they were sued under the Civil Rights Act?
Mr. Richard Uviller: Well, then he would be sued pursuant to a statute.
Justice Byron R. White: Yes, but for violation of constitutional right?
Justice William J. Brennan: What will -- would there be a –
Mr. Richard Uviller: I --
Justice John M. Harlan: In the case that Justice White puts you?
Mr. Richard Uviller: I -- I don't know how I got into this jam.[Laughter]
I hold no brief for this position and I'm happy to accept the search without the seizure on the Fourth Amendment.
I think the serious question here is whether or not this particular device, this particular means of obtaining a search and seizure or search or seizure is inherently beyond the control of the Fourth Amendment.
Are there aspects to this particular variety of the acquisition or method of acquisition of evidence in criminal case which inherently place some beyond the Fourth Amendment and the first of these of course to be overcome is the so-called the “evidence rule”.
We've devoted considerable time in our brief to our view of the mere evidence rule and its contemporary viability.
It is no great art to cite numerous authorities from this Court and other scholarly sources as to the contemporary lack of reason or rationale for the exclusion of evidence because it is of an evidential value only.
The concept of evidential value only or mere evidence, it strikes me, has little to do with the Fourth Amendment.
The Fourth Amendment, I should think authorizes, authorizes permits the acquisition of evidence which is of an incriminatory nature for the purpose of use as evidence.
We're not now talking about a trespass.
We're not now talking about the trespass upon a man's right to hold his plot of ground secure against the footsteps of the king's officers.
We're talking about a right which is much more intangible and much more precious if you will right than not which is the right to privacy itself.
Now, the right to privacy is as much invaded by a search for contraband as it is by a search for mere evidence.
Chief Justice Earl Warren: We'll have a recess now.[Recess]
Mr. Uviller, you may continue.
Mr. Richard Uviller: Mr. Chief Justice, thank you, may it please the Court.
In discussing the Gouled case and the mere evidence rule, I should make it clear at the outset that we have quarrel with the -- a proposition for which Gouled has been repeatedly cited by this Court even during this term.
And that is, that an entry by deception is for the -- it's for the Fourth Amendment purposes equivalent to an entry by force.
When we speak --
Justice Hugo L. Black: Equivalent to what?
Mr. Richard Uviller: Equivalent to an entry by force.
When we speak of overruling Gouled, naturally I'm speaking only about aspect of Gouled which says that, you cannot obtain a warrant for matters of evidentiary value only.
Justice William O. Douglas: That would be overruled in federal law?
Mr. Richard Uviller: Well, it would be overruling quite a lot Mr. Justice but it would also be consistent with quite a lot.
I would suggest that this Court in its own decisions had very frequently ignored the so-called mere evidence aspect of the Gouled rule either by not citing Gouled at all or in many instances by what I think is a distortion of the meaning of Gouled and that is --
Justice William O. Douglas: Are those in your brief?
Mr. Richard Uviller: Yes, sir, yes, sir and that is by the construction of instrumentality to be so broad that in fact it includes what I would consider more realistically speaking mere evidence.
Indeed I could argue here for a distinction between this case and the mere evidence rule of Gouled by simply noting that the conversations in this case were in furtherance of a criminal conspiracy, a conspiracy and agreement implies conversations between the conspirators and the words used here from furtherance.
Justice William O. Douglas: That was -- I just happen to read yesterday this Entick reread, Entick versus Carrington, that was the argument that they made there?
The words were in furtherance of the conspiracy, the letters obtained.
Mr. Richard Uviller: Yes.
Well, and as I say Mr. Justice, this argument has been accepted in some cases and rejected in others.
In many instances like Osborn and Hoffa and so forth words or I could say for example, that the mere evidence rule does not apply to evidence seized from the person for some reason and I could say that words are necessarily evidence seized from the person and therefore exempt from the Gouled proscription.
Justice Hugo L. Black: Would you object to telling me your idea of what was meant by the mere evidence rule?
Mr. Richard Uviller: My understanding of it Mr. Justice is that no warrant will issue and no seizure maybe had or search may maybe conducted for matters or materials which are of evidentiary value only and do not fall into the categories of the fruits of a crime, instrumentalities of the crime, or contraband, including weapons.
Justice William O. Douglas: What was back to the practice from the Star Chamber of getting and collecting letters?
Mr. Richard Uviller: In my understanding of it Mr. Justice, it goes back further than that.
The medieval doctrine of deo --
Justice William O. Douglas: Oh, yes.
But I mean in terms of the immediate background of Entick and Carrington were the vows of Colonel Sydney and the rest of them --
Mr. Richard Uviller: I -- I --
Justice William O. Douglas: -- were sent to their death on the letters that were found?
Mr. Richard Uviller: I have thought that the Star Chamber proceedings used general warrants and that these general warrants issued for the seizure of contraband in the nature of seditious writings and that indeed the mere --
Justice William O. Douglas: As they define it as broadly as you do?
I mean, something in furtherance of the conspiracy of the crime?
Mr. Richard Uviller: Yes, sir, but the the rule exempting mere evidence from seizure, I would say was not applicable to the warrants issued by the Star Chamber.
I should say that the rule exempting --
Justice William O. Douglas: Well, that's in the Camden and as I've read Entick and Carrington puts the two together.
He condemns a general warrant and he condemns the use of testimonial evidence?
Mr. Richard Uviller: As I -- as I recall what Lord Camden said in Entick was that the search for private papers is more heinous than the warrants issued by the Star Chamber rather than stating that they would be equivalence.
And I think that he based that on the fact that a search for private papers that was mere evidence, but on the fact that the right to possession of private papers was in the person from whom they were taken and that this right to possession made the seizure a serious trespass.
I suggest that the -- the foundation of the mere evidence rule is totally inappropriate to rule of evidence.
That it -- that it relates purely to a question of, who has the right to possess?
Contraband; you do not have the right to possess therefore it maybe seized.
The instrumentalities of a crime by medieval and perhaps even present day thought become themselves somewhat infected and have to be purified by the church or state and therefore can be seized.
Justice William O. Douglas: Well, even a Cook would disagree with you on that?
And there was -- as you know of a great tempest about the search for stolen property.
Mr. Richard Uviller: Oh, yes.
Justice William O. Douglas: Contraband?
Mr. Richard Uviller: Yes.
Yes and indeed in that era, it appears that there was -- there were safeguards.
The person who owned the property had to go along with the marshal and identify it as his before it could be seized.
But I suggest that this is all consistent with a notion of property, who in whom was the property interest?
And only -- and you could deprive a suspect of property only if you could show that he did not have a property interest in it.
I suggest today and -- and under the Fourth --
Justice Abe Fortas: It seems startling to me with all respect to have a suggestion that entire history of search and seizure, the English history, our own history which were also crown as to be reread and reinterpreted in terms of property instead of human liberty and I'm afraid that what you're saying sounds that way to me?
Mr. Richard Uviller: I don't think I'm reinterpreting it Mr. Justice Fortas.
I think that's the -- that it -- that it has been reinterpreted and I'm trying to restore to its original interpretation.
Our -- our -- many of our constitutional rights were founded on 18th Century notions of private property and have been reinterpreted to a more intangible and more contemporary notion of a right to privacy that exists without regard to whether one has property seized or invaded in the course of the breach of the privacy.
Justice Abe Fortas: Well, if you -- if you limited that to the Fourth Amendment search and seizure, and if you limited it to verbal statements, perhaps history would not in the future because in those days they did not have the blessing under these magnificent devices by which people's words could be picked up and recorded surreptitiously?
Mr. Richard Uviller: May I respond to that Mr. Justice by saying that in our brief we advocate an abandonment of the Silverman-Goldman distinction.
Consistent with our position that there is a right to privacy that it exists without regard to the boundaries of physical property, we suggest that there should be Fourth Amendment regulation of any search whether it be by physical trespass or by electronic intrusion.
And so, these magnificent devices which Your Honor referred to, which can pierce walls without physical trespass, should by all rights come within the regulation of the Fourth Amendment both as to proscription and as to permissiveness.
And the same standards which authorized the physical intrusion in the search for evidence of a -- of a tangible nature should control the search for evidence of an oral nature whether or not made by physical intrusion.
I think that perhaps what we're tending toward here is an underlying feeling that all who considered this problem are confessed to and that is that there is somewhere in all of us a deeply rooted and essential repugnance for the notion of the silent -- all of the invisible ear of the state present during what is considered by most of us to be an extremely private and personal event, and that is speech within protected quarters.
Certainly, I and we are not immune from that sensation of repugnance and revulsion of for these intrusions, but I'm trying to suggest that by analysis, all attempts, all efforts by law enforcement to enforce its laws inevitably involved some intrusion.
Indeed in many instances of conventional searches not heretofore challenged, it seems to me that the intrusion is at least as great as that by electronic eavesdrop.
Indeed, it is too final line to draw.
In Irvin for example, there was no order.
The dirty business which Mr. Justice Holmes referred to in the slogan with which we have to contend in these matters was not addressed to electronic surveillance per se, but it was addressed to electronic surveillance without prior mandate by Court.
In the case of the search for evidence and I don't care now whether it is by questioning --
Justice William O. Douglas: I don't know how you can say that with great confidence because that assumes that a warrant can issue for the search of anything?
Mr. Richard Uviller: Yes, Mr. Justice
Justice William O. Douglas: And that there's a school of thought that thinks that there are two parts of the Fourth Amendment; One that has its own privacy that can't be penetrated even by the judge and that the other can be by a warrant?
Mr. Richard Uviller: Yes, Your Honor.
I am cognizant of that of view of the Fourth Amendment.
I must say that I do not see it that way myself and I do not -- and I argue for a contrary position.
Justice William O. Douglas: Well, that's what Bradley must have meant in Boyd?
Mr. Richard Uviller: Perhaps so and if so, if Justice Bradley in Boyd meant to exempt private papers or certain types of evidence like that from the permissive aspect of the Fourth Amendment, then I suggest that he does so without foundation in constitutional history.
The Fourth Amendment does not say anything about the type of evidence to be seized.
It talks only about the manner in which a search can be executed.
And the clear implication to me of the Warrant Clause of the Fourth Amendment is that if the standards set forth in the Amendment itself are adhered to, that a warrant may issue for the search and seizure of virtually anything.
Justice William O. Douglas: Well you would -- your -- your first opponent on that would be Collie and I think his first edition of constitutional limitations for quite the opposite view, later followed by Bradley.
Well anyway, there's a -- that of quite of an argument about the seizure and --
Mr. Richard Uviller: There has certainly been controversy in that.
Justice William J. Brennan: Well, for example, would your – I thought they asked this question yesterday Mr. Uviller, would your principle go as so far as to say that a search warrant, probable cause, properly issued and all the rest of it could reach as the only evidence involved against the accused, his own confession which he happened to hide in the desk door beside to abandon with some made sort there and it's all of the face friend and then they went out and get along?
Mr. Richard Uviller: That of course --
Justice William J. Brennan: But even reached out with it?
Mr. Richard Uviller: That is -- that is the hardest, the hardest and most extreme limit.
Justice William J. Brennan: Well, I know it can't, but you can't avoid it.
You got to reach that case too?
Mr. Richard Uviller: Well, yes -- well, I would almost go so far as to say, yes, if it had been written originally without compulsion.
Justice William J. Brennan: Well assume that.
Mr. Richard Uviller: Yes.
Well, I --
Justice William J. Brennan: But then he -- then he's the only one who knows anything about the crime and here's the record confessing to it, changes his mind and puts those on desk drawer.
Mr. Richard Uviller: I would have no doubt for instance that letters confessing the crime could be reached by a search warrant.
I would have no -- this is -- this is evidence.
Justice William J. Brennan: Well now, this -- this I take it as if they'll -- I mailed a letter to you and you -- but -- isn't those – think the other case a little bit?
Mr. Richard Uviller: Well, suppose you would keep a copy, I -- I would think -- I think it could be obtained against you.
I think its evidence.
I think that what we're dealing here is --
Justice William J. Brennan: Well, then you really didn't think that there's absolutely no place or whatever for the Fifth Amendment.
Mr. Richard Uviller: No.
I think that the Fifth Amendment relates to every -- every instance in which there was some form of compulsion --
Justice William J. Brennan: No, I'm --
Mr. Richard Uviller: -- exerted upon the man at the time he made the statement.
Justice William J. Brennan: Even though, there -- they've tried to reach it through a search warrant rather than a subpoena or anything else?
Mr. Richard Uviller: No, subpoena -- the subpoena I say is a special case.
Justice William J. Brennan: Yes.
But that --
Mr. Richard Uviller: I'm talking now about --
Justice William J. Brennan: -- that's the case where you try to reach something which was in fact compelled by confession, I think, but you reach it all with a search warrant?
Mr. Richard Uviller: It was compelled at the time it was made?
Justice William J. Brennan: Yes.
Mr. Richard Uviller: Well, then this Fifth Amendment question, a Fifth Amendment barred.
It would have to be freely made; free of compulsion at the time it was made and then if it constitutes evidence --
Justice Hugo L. Black: Why do you – at the time this was made.
I thought he had it in his possessions and the government issued a subpoena and says, “Bring to me at once, his confession he made,” would that not be compulsion?
Mr. Richard Uviller: I -- yes, I do think that a subpoena would be and I think that --
Justice Byron R. White: If you don't think that a search warrant would then be -- it will be substituted with it.
Well, I can't get it by subpoena because of compulsion, I will just get a search warrant and go get it.
I know it's [Inaudible]
Mr. Richard Uviller: I don't think it's that easy.
First place, you would have to show --
Justice Byron R. White: If only you would have to be -- you would have to be there was no compulsion.
Mr. Richard Uviller: I think there would be no compulsion within the Fifth Amendment sense.
I think that --
Justice Byron R. White: If only you'd say there would say there would be a compulsion not at the time of the confession, but at the time of the issuance of the subpoena?
Mr. Richard Uviller: No.
At the time of the affirmative act of bringing it forward and identifying it, pursuant to the Court order.
Justice Abe Fortas: I know that he doesn't identify it.
He just --
Mr. Richard Uviller: Oh, yes -- oh, you would have to identify it.
Justice William J. Brennan: You mean if he responds to this?
Mr. Richard Uviller: Right, if he responds.
Justice William J. Brennan: And here it is --
Mr. Richard Uviller: Here it is --
Justice William J. Brennan: The --
Mr. Richard Uviller: Yes.
Justice William J. Brennan: The compulsion of the subpoena or --
Mr. Richard Uviller: Yes, sir.
Justice Byron R. White: Yes.
But what if the subpoena -- all the subpoena says, “Bring all the papers in your desk,” and he brings all the papers in the desk.
Mr. Richard Uviller: So, these are the papers in my desk.
Justice Byron R. White: And -- and that is the compulsion?
Mr. Richard Uviller: I believe so.
I believe he is there for -- he is -- he is ordered to do something which -- which links him with the document and therefore provides a link in the -- in the incriminating chain.
Justice Byron R. White: And you think it's different if somebody against his will walks through the door and picks the papers with this warrant and picks the papers out of the -- out of his desk in his room?
Mr. Richard Uviller: I do think so Justice White and I think so on this basis.
I think that the defendant is not required to do anything when a search warrant is issued.
Indeed, he may not even be present.
Justice Byron R. White: I don't think you have to take this position that to be consistent with all -- every other part of your case.
Mr. Richard Uviller: I don't think I do either.
I'm -- I'm discussing now obviously a search and seizure for tangible evidence because I mean to bring a search and seizure for oral evidence into the ambit of the Fourth Amendment by analogy.
I think for example --
Justice Byron R. White: There's still room in Fourth Amendment though you forgot about this.
If you say the overall -- the overall test is reasonableness in terms of what you can search and seize, to search for and seize, it very easily that be said at the constitutional matter, there's a difference between one thing and another of what you can search for.
One not to be reasonable, one that might not be reasonable, it might not be reasonable to search and seizure of private right.
Mr. Richard Uviller: I --
Justice Byron R. White: It's tenable you don't have to go all the way for this – on the word unreasonable.
That has no -- that has no very -- it doesn't mean that you have to able to seize anything?
Mr. Richard Uviller: Without in anyway abandoning that position based on the reasonableness clause which I would adhere to, what I'm arguing here is that the order of the Court must conform to the spirit of the warrant clause.
And that -- that if we are -- since we are not allowing, let us say, eavesdrops incident to an arrest or eavesdrops necessitated by some sort of abstract of reasonableness.
But in New York, we have the statutory scheme which presupposes a court order and that court order based upon probable cause, I suggest that that statutory scheme was drawn with the Warrant Clause in mind.
And that it is -- it is the obedience to the warrant clause which would justify the -- the 813 (c) scheme.
Now, the -- the particular --
Justice William J. Brennan: But I think it is central to your argument even on that approach that you something about the Gouled?
Mr. Richard Uviller: About the Gouled --
Justice William J. Brennan: Gouled, isn't it?
Mr. Richard Uviller: Well as I said, I could argue around Gouled.
I could say these are instrumentalities.
And Gouled --
Justice William J. Brennan: Well, I know about that.[Laughter]
Mr. Richard Uviller: I --
Justice William J. Brennan: That's the reason.
Mr. Richard Uviller: That's the way I felt.
And they -- and I could also argue that this is from the person, Gouled is not applied to evidence from the person.
But I think that the harder and perhaps the more honest approach is to see Gouled as an obstacle to this position.
I'm -- I was -- I was talking about the dissent --
Justice Hugo L. Black: Do you think that Gouled is deciding and what it did on the basis of the reasonableness or the totality of circumstances involved in the search and seizure?
Mr. Richard Uviller: I read Gouled as a -- as based on Boyd.
I think they simply said in Gouled that a warrant cannot issue for matters that are of evidentiary value only.
Justice Hugo L. Black: It said that but do you think if they ignored the fact that constitutes – the Fourth Amendment says, reasonable search and seizures did not consider all of the circumstances such as sleeping in the office at night or at daytime, and surreptitiously taking his favorites [Attempt to Laughter] away.
Do you think that had anything to do with that decision?
Mr. Richard Uviller: I -- one would have to read between the lines I think to see it.
I -- I would say that certainly the idea of --
Justice Hugo L. Black: But you did read that that's a part of the circumstances --
Mr. Richard Uviller: Yes.
Justice Hugo L. Black: – when you determine whether it's a reasonable search and seizure, wouldn't it?
Mr. Richard Uviller: Yes, sir.
I would --
Justice Hugo L. Black: Do you also depend on all the circumstances?
Mr. Richard Uviller: I don't think Justice Black that it was of surreptitious nature of the seizure in the Gouled.
There -- it was a surreptitious seizure but as I read Gouled, it wasn't somewhat surreptitious character of it as the deception practice to gain entry and access.
Justice Hugo L. Black: Well, that's what I'm talking about.
Mr. Richard Uviller: Yes, sir.
Well, I don't think that we have --
Justice Hugo L. Black: Is that a circumstance to determine on the whole as to whether or not that was a reasonable or unreasonable search?
Mr. Richard Uviller: That aspect of Gouled, I have no quarrel with at all, Justice Black, at all and I wanted to make that very clear --
Justice Hugo L. Black: And you wouldn't want to overrule it?
Mr. Richard Uviller: Not -- no, I thought -- I thought I started this afternoon by saying that.
When I say overrule it, I do not mean overrule that aspect of it that was cited so frequently by this Court and which we have no quarrel with.
We're only talking about that aspect which deals with the mere – so called mere evidence rule.
Justice Hugo L. Black: But you're objecting to it your statement which from your standpoint as I gather it attempts seems to make it “per se rule” out of a situation where under the general rule, you decide under all of the circumstances of the case if whether it's reasonable or unreasonable?
Mr. Richard Uviller: Yes, sir, I am sir.
The surreptitious, let's talk for a moment about the surreptitious nature of this type of evidence gathering.
There is no question about the fact that this is surreptitious.
Indeed it depends for its effectiveness on being surreptitious.
It could hardly be argued that eavesdropping should be permitted only if a presentation of the order is made to the suspect prior to the time that the bug is installed.
It could hardly be argued indeed that a public record should be made of the order prior to the time that the bug is installed.
It is by its nature secret.
Is that secrecy itself essentially repugnant?
It does not offend Fourteenth Amendment principles of Due Process.
I suggest once again that it is nothing but another variety of a very common more enforcement investigative technique and that is surreptitiousness.
Let us take for example the simplest form which I doubt anyone could argue was contrary to constitutional principles.
And that is following a man, surveillance by keeping him in sight, and going with him wherever he goes secretly, recording his movements.
Is that an invasion of privacy?
It is, but indeed, there's not even a requirement for a warrant for that.
Perhaps, they should be, but I would suggest that with or without a warrant, it has never been challenged as a secret surveillance and an invasion of privacy because of its secrecy.
This is true indeed of many law enforcement techniques, some of which was sanctioned by this Court in this term such as for example, the purchase of narcotics by a person who is masquerading as a narcotics user.
He is a police officer.
He is secretly gathering evidence by the purchase of these narcotics to use against the man.
Is the fact of secrecy, the fact of deception there in and of itself so essentially repugnant to our notions of liberty and privacy as to invalidate it, I think not.
So here too, I think that the element of secrecy the fact that the entry to install a bug was surreptitious indeed would have been the crime of burglary, had it not been for the order.
I do not think that in of itself should warrant exclusion of this very valuable and important means of obtaining evidence otherwise inaccessible.
Chief Justice Earl Warren: That is -- even though that is true, why shouldn't there be some record made of what was obtained and have that made a public record?
They could provide that it couldn't be opened unless and -- unless it became necessary in some proceeding or something, but why wouldn't they'd be entitled, if it's a search and seizure, why wouldn't that be entitled under the same kind of protection that one gets on a search warrant?
But here although there hundreds and hundreds of judges around the State and thousands of police officers who can engage in this traffic and not one of them is subjected to any supervision in the manner in which he did it.
Now, do you think that comports with Due Process?
Mr. Richard Uviller: Mr. Chief Justice I agree that it should be solved.
I see no reason why there should not be a record made, a public record made.
I see no reason why the prevalence should not be subject to legislative or executive inquiry.
Indeed it would help a great deal if we knew just how often these devices were used and in what sort of case, and in what -- with what results.
I think there should be such a record made and I think that the Constitution doesn't require it then some policy does.
However in New York, that is in effect done because the order is a written document.
It is based upon an affidavit sworn to in writing.
These two documents are placed in the records of the court and in the records of the public agency by which they were acquired.
They are subject to challenge and to inspection on subsequent occasions after the termination of the investigation in question.
Indeed, that is how it comes before this Court at this time.
Chief Justice Earl Warren: When a man goes to trial, does he know whether there has been one of those orders made against him?
Mr. Richard Uviller: Yes, sir.
Chief Justice Earl Warren: Is the order filed in the proceedings of the case?
Mr. Richard Uviller: It is the --
Chief Justice Earl Warren: So that he can say, well, they did have my room wired up and now all I have to do is to find out what they did there and how they got it, and so forth.
Is that in the record before us?
Mr. Richard Uviller: Yes sir, yes, sir.
In effect, I wouldn't say that it's filed in that -- well, in effect in this -- in this sense, If any evidence was obtained from this which is going to be use on it or use as leads to other evidence.
Then the defendant has a motion to suppress that evidence during which he challenges the underlying order, gets to see it and read it exactly as he would a search warrant.
Justice William J. Brennan: Well, how does he find out about in the first instance?
I don't think --
Justice Byron R. White: Notified in advance that they intend to use this kind of evidence?
Mr. Richard Uviller: Yes.
Justice William J. Brennan: Oh, he is?
Mr. Richard Uviller: Yes, sir.
That's what I have in this case.
Justice Byron R. White: Yes.
Justice William J. Brennan: I mean how is that -- I mean, is there anything by statute which requires that or is that?
Mr. Richard Uviller: No, sir.
But it's part of the motion to suppress which lies to challenge --
Justice William J. Brennan: No, no.
No -- I'm -- I'm representing -- I have no idea where the State got its evidence.
I don't know anything about this?
I'm representing the -- how do I get -- you know I'm representing someone who's under indictment or information.
How do I get notice of the fact?
That's what I want.
Mr. Richard Uviller: There's no statutory requirement for notice as to this.
What happens in -- in point of fact is that an inquiry is made usually informal between the parties and the district attorney answers it.
And the defendant then brings his motion which is heard before trial during which there is full disclosure.
Justice William J. Brennan: Since there's no statute, I take it the practice must differ by counties.
This maybe so in New York County, but not necessarily in Queens or --
Mr. Richard Uviller: I can't really answer for the other counties of our State Justice Brennan except to say that the motion to suppress lies by state law in all counties --
Justice William J. Brennan: Yes.
Mr. Richard Uviller: -- and there must be some sort of system worked out county by county by which the defendant is given an opportunity to make this motion.
Now it maybe for example that, he might not find out about it until cross-examination, but usually during the trial if not before the trial, he's going to discover if he hasn't already been told that such a device has been used.
Now, is it filed in every case?
It was not filed in the sense that there's any room other than the record room of the district attorney's office in which all of these orders are placed, but as far in the sense that it becomes part of the Court record.
Now, the problems and situations which I should also mention --
Chief Justice Earl Warren: It becomes a part of the Court record?
Mr. Richard Uviller: Yes, sir
Chief Justice Earl Warren: In what circumstances?
Mr. Richard Uviller: In the circumstances where the case goes to trial.
Chief Justice Earl Warren: Where?
Mr. Richard Uviller: Yes.
Chief Justice Earl Warren: And where its -- where that testimony is used?
Mr. Richard Uviller: Where there is either evidence directly from the tape or obtained through the use of the tape that will be introduced against the defendant.
Justice William O. Douglas: How about the evidence obtained through leads?
Mr. Richard Uviller: Yes, and that too, yes, sir.
In other words, we have the same poison fruit doctrine there if the order -- if the tape order was not properly founded, that is the eavesdropping order, then any results, leads, information, witnesses obtained through the -- through what was overheard is subject to suppression as a fruit of the poison tree.
Justice William J. Brennan: Is that by -- is that by decision or by statutory decision?
Mr. Richard Uviller: By decision, sir.
Chief Justice Earl Warren: And by that does he have to call the witnesses and ask them what they heard over this time or how does he get that information with his motion to suppress?
Mr. Richard Uviller: As to- as to what was actually heard?
Chief Justice Earl Warren: Yes.
Mr. Richard Uviller: Well, I should say that that -- that varies, I -- I obviously would have to because the information is different in every case.
The difficulty is that he may not obtain the information that is not to be use against him, but I should say that that again is similar to a conventional search situation where everything that is perceived during the course of the search is not subject to suppression, but only that which is obtained for introduction in evidence and the same thing pertains to evidence obtained by oral order.
Justice Byron R. White: Is there any -- is there any statutory ban on constituting the police revealing this information that maybe that they then have seen on tapes except in connection with a criminal proceeding?
Mr. Richard Uviller: Yes, sir.
I believe there is.
And I -- we have this -- the amicus is set forth if Your Honor has if the amicus Attorney General of New York has set forth all the statutes in New York dealing with this particular area.
I would like to come to the particular order and the question of probable cause if I may.
Here the sequence of events set forth in the brief of the respondent, indicates that – although there were two eavesdrop orders in question here; one on an attorney named Neyer and the other on Steinman, the results of only the Steinman evidence was used against this defendant.
The first one, Neyer, provided the lead and indeed was referred to in the affidavit seeking the Steinman order.
However, as to the Neyer order and it was not on Berger's premises, Berger the petitioner here, never spoke into that microphone or in its vicinity and therefore we suggest that as to the first order, this Neyer order, Berger is without standing under the Jones against the United States to contest the legality of the order.
True, that insofar as the background of that order became the background for the Steinman order, he may contest that, but as to the face of the affidavit and whether it spelled that probable cause efficiently on the face of the Neyer affidavit, I suggest that by all conventional rules, he has no standing to raise it.
As to the Steinman order where he does have --
Chief Justice Earl Warren: Just why -- just why doesn't he have standing, I didn't quite get that?
Mr. Richard Uviller: Because there was no -- he's not a party aggrieved by that search.
He was not one whose cartilage was invaded, it wasn't his office, though, was he there during the -- the existence of the tap?
Nor was his voice recorded by the eavesdrop.
Therefore, there was no invasion of his right to privacy by the tap on Neyer -- by the bug in Neyer's office.
I suggest under Jones that not only must he be the defendant, but he must also be the party whose constitutional rights were invaded to be able to challenge the bonafides of the order under which it was installed.
I'm not suggesting that he doesn't have a basis for challenging the Neyer eavesdrop insofar as it was used to obtain the Steinman eavesdrop and indeed it was.
The affidavit for the Steinman drop referred to the fact that matters have been learned over the Neyer eavesdrop, but the only question really on appraising the adequacy of an order from a probable cause standpoint, is what did the judge who signed the order, the warrant if you will know at the time he signed it, and was that which was revealed to him sufficient to constitute probable cause.
Justice William J. Brennan: And for this we stick to the four corners of the affidavit?
Mr. Richard Uviller: The Steinman affidavit.
Justice William J. Brennan: Yes, I mean that's all we go with the --
Mr. Richard Uviller: No, there is more than that.
The judge -- unfortunately the record is not too clear on this, but the judge indicated that he had been told various other things by the district attorney who presented that affidavit to him.
And there is some evidence in this record as to what he was told but unfortunately neither the judge's minutes nor any papers were introduced to that effect, though, there is evidence to amplify the Steinman affidavit.
I suggest that in this instance there is sufficient there to constitute probable cause and indeed --
Justice William J. Brennan: By there -- by being there you mean, just the appropriate --
Mr. Richard Uviller: The Steinman order
Justice William J. Brennan: Yes, I mean just the affidavit?
Mr. Richard Uviller: Just the affidavit.
Justice William J. Brennan: Yes.
Mr. Richard Uviller: Just the affidavit.
Now the order itself that was issued on Steinman which is also here for review, incorporates that affidavit by reference and I suggest that the two have to be read together.
While the order itself says, may over hear and in all conversations occurring at this place during this period, it also adopts the affidavit itself.
And reading with two together, the order specifies the thing to be seized and it specifies it by referring to the crime to which it relates.
Now, I suggest that this is adequate specification in particularity in the conventional search and seizure doctrine.
If you identify gambling, paraphernalia for example, just simply by the crime to which it relates that is particularity for a search warrant purposes.
And here, the particularity in this order was conversations relating to the transmission of bribe money to the State Liquor Authority in a conspiracy to obtain liquor licenses unlawfully and to that degree of specificity I suggest satisfies conventional search and seizure requirements.
Chief Justice Earl Warren: Mr. Brill, you had some time left --
Rebuttal of Joseph E. Brill
Mr. Joseph E. Brill: Mr. Chief Justice, may I say with respect to the matter of whether or not the eavesdropping orders become a part of the record.
In my own experience as both a federal and state prosecutor, I know of no cases in which notification of a matter similar to this kind of situation is given in advance by the prosecutor to his adversary representing a defendant or a proposed defendant.
And I am ready to say and do say now to this Court that I know of no case under which an eavesdropping order was obtained in New York County in which prior to the trial, the district attorney advised defense counsel of the existence of such order and of the fact that pursuant to it leads and evidence were obtained.
And I say unqualifiedly in this case --
Justice William J. Brennan: Well, how did you get to -- how did you get to notice here with the --
Mr. Joseph E. Brill: By making a motion to suppress, Mr. Justice Brennan.
Justice William J. Brennan: Do you have to take the initiative, is that it?
Mr. Joseph E. Brill: Exactly so.
We took the initiative.
We found by examining the record in another case that there had been a bugging order and evidence obtained in that case.
That was a case involving a judge of the State Court of Claims.
In the course of that case, his counsel, made a motion and demanded a hearing with respect to whether or not there had been a bugging order.
It was developed in the course of that case and from the transcript of that case I learned that in fact that in that case there had been an eavesdropping order.
Consequently, I made a motion on the assumption that if there had been in that case, there might will be one in my case and I discovered as a result of making that motion that there had in fact been such orders as we have described here and which are the warrants in this case, which are anything but from a reading --
Justice William J. Brennan: Well, did the -- did the prosecution after you filed the motion just what would say, that's right there it is or you have to get a judge to tell him co-partner if you get something?
Mr. Joseph E. Brill: I regret to say Mr. Justice Brennan that the prosecution gave me, no information beyond what I already had and they didn't give me that.
Unfortunately, Mr. Uviller, who had no familiarity with the matter at that posture of the case, was not able to furnish the Court with any of the factual matter concerning it.
The prosecution gave us no information at all.
They opposed the motion to suppress as the matter of fact.
The judge in the -- what is comfortable to special termed who heard the motion denied it with leave to renew.
It was only on the renewal that we got any indication at all of the fact that it was --
Justice William J. Brennan: Well, it was going to get -- you got the indication how, because the judge ordered the prosecution to give you something or because the prosecution voluntarily gave?
Mr. Joseph E. Brill: No.
The prosecution didn't voluntarily do anything.
If we had not renewed the motion to suppress, if we have waived it, if we had gone ahead with the trial, we would have heard nothing about it until that posture in the case when the evidence is being offered --
Justice Potter Stewart: Well, then happen -- what appears in the record on page 22?
Mr. Joseph E. Brill: That Mr. Justice Stewart is the preliminary --
Justice Potter Stewart: It says, Your Honors --
Mr. Joseph E. Brill: -- is the preliminary in connection with the proceedings that were to be held on the renewal of the motion to suppress and that is the area, and to which Mr. Uviller refers when he says the record is cloudy as to what was before the issuing judge at the time the warrants were issued.
It was in the course of the statement made by the prosecutor then in connection with the renewed motion to suppress that he told the Court that as the genesis for these orders, there had been a prior minifon surveillance for which incidentally there was no permissive judicial order.
Justice Potter Stewart: Yes.
Well, I wasn't talk to that.
I was talking about the -- about Mr. McCanna said there right under --
Mr. Joseph E. Brill: What McKenzie said at that time Mr. Justice Stewart --
Justice Potter Stewart: The people now state that we intend to introduce evidence in the course of the trial which has been obtained over an eavesdropping device.
This eavesdropping device was installed in Room 801 at 15 East 40, 854 I rather say.
Mr. Joseph E. Brill: That came after I renewed the motion to suppress as I had leave to do pursuant to the order of the court which denied my motion originally.
Justice Potter Stewart: Why?
Am I mistaken, I thought I've reading these briefs.
I seen somewhere statistics as to the number of these which have been authorized in various years?
Mr. Joseph E. Brill: I think that the respondents' brief reflects the number of eavesdropping orders which it obtained over period of some six years.
It does not give any indication of the number of eavesdrops which have been carried on without orders.
I think that they say they have an average of 22 orders per year for the period of six years --
Justice Potter Stewart: I wondered where are those statistics could come from if all the --
Mr. Joseph E. Brill: That would have to come internally from the prosecutor's office.
There are not publicly available except as they may have been presented to a joint legislative committee investigating a whole subject of electronic intrusions.
Justice Potter Stewart: Those figures were in the respondents' brief like --
Mr. Joseph E. Brill: There in the respondents' brief Your Honor.
Justice Potter Stewart: Uh-hmm.
Mr. Joseph E. Brill: I think they are at page 61 Mr. Uviller advices me.
Justice Potter Stewart: Thank you.
Justice William J. Brennan: Mr. Brill, may I ask, am I correct in thinking that none of your Fourth Amendment argument rests on any construction of the Fourth Amendment, the Warrant Clause, as required to the clause itself, the service of a warrant?
Mr. Joseph E. Brill: That is right sir.
Justice William J. Brennan: You do not make that argument?
Mr. Joseph E. Brill: No, I -- we point out of course --
Justice William J. Brennan: I know that it does.
But you don't say that the Fourth Amendment Warrant Clause requires the actual service of a warrant.
Here of course, there wasn't any service.
A warrant is obtained and it's executed in the way we now understand it was executed?
Mr. Joseph E. Brill: That's right Mr. Justice Brennan.
We say that they cannot be a compliance with the requirements of the Warrant Clause of the Fourth Amendment and we argue that there were no -- there was no compliance with the requirement -- with the requirements of the Warrant Clause under that amendment.
Now, the situation does not permit itself to come within --
Justice William J. Brennan: Well, that's what I was trying to get at.
Are you arguing that there can be compliance with the Warrant Clause, however, proper the warrant, however, much the problem it caused, there can be compliance with the Warrant Clause, only if also the service upon somebody to warrant, are you arguing that?
Mr. Joseph E. Brill: No.
We're saying that even if there were service, let me withdraw that Mr. Brennan.
If there were service of notice in advance following the judicial permissive order as the respondent has pointed out, there would be no eavesdropping.
But I respectfully suggest that it cannot be separated that way based upon the issue of notice along.
Now, we -- I think that the situation is aggravated because there can be no notice because it is surreptitious and consequently, there can be no knowledge and there is an invasion of privacy under the protection of the Fourth Amendment.
I wanted in passing to make a comment on this issue of standing.
The stipulation which was obtained at the outset of the hearing before the trial court on the motion to suppress, integrated both warrants and the proceedings had in connection with both warrants.
There was no separation.
It was not until after the appellate procedures were instituted that the suggestions was made that the two were separated and to suggest and to acknowledge that there is standing with respect to one but no standing with the respect to the order upon the basis of which the second order was obtained is to request the license, to permit the kind of fraudulent activity which police officers might be capable of committing in order to get to the second order.
And I do believe sincerely that we have the right to attack the first order and that issue was before this Court on the application for certiorari.
Respondent raised the issue and we interpose the reply brief in which we discuss the matter in considerable detail.
Now the other matters to which I wanted to advert in rebuttal, Mr. Chief Justice are that covered by our brief and I will not impinge further upon the time of this Court.
Chief Justice Earl Warren: Very well.